pact on the fee waiver provision of the commercial interest test applied in determining whether one is entitled to attorneys fees. I think that there can be no doubt that the media cannot be denied fee waivers on the ground that they are a commercial enterprise because they may sell their news by subscription. In general, the fee waiver area is really one in which we think some kind of governmentwide guidance is absolutely essential. Agency reaction to this provision has been completely unsympathetic to the underlying policies of the act. Unless some kind of Justice Department leadership role is exercised here, or some kind of agencywide oversight is undertaken, search and copying fees will continue to be a barrier to citizens or members of the news media attempting to exercise their rights under the FOIA. These are just a couple of the problem areas that we have encountered. I would be happy to answer any questions you may have. Ms. EMSELLEM. Thank you very much. Counsel? Ms. HUFFMAN. From your experience, have the Attorney General's May memo' and subsequent memos sent by Mr. Shea under Mr. Flaherty's name 2 been successful in terms of generating the release of more information? Ms. COHN. It is really a little hard to tell. From my own experience, I really cannot provide a complete answer to that question because we usually only become involved in a case once litigation has become necessary. I cannot say that very many of my cases have been settled since the Attorney General's memorandum was issued. As far as making greater disclosures at the agency level is concerned, I would say that I think greater disclosures will be made if the policies discussed in Mr. Flaherty's and Mr. Shea's memos are carried out. To that extent, we view these steps as being an improvement. While I think Mr. Shea's office has decided to disclose controversial information in a few recent cases, enforcing those policies on a Governmentwide basis is really what is important. As far as my general experience is concerned, I really cannot give you a better assessment at this point. MS. HUFFMAN. This morning the Justice Department reiterated its feeling that the 1974 amendment to exemption (b) (7) has presented great problems. In the past the Department and the FBI have taken the position that the old exemption, which dictated a per se exemption for all investigatory files should be reinstituted. Can you outline specifically some of the problems you feel reinstitution of that per se exemption would present in terms of what kinds. of information now being released would no longer be released? Ms. CонN. My answer would be the very kind of problem that I have already outlined. You cannot make any fine distinctions in terms of calling something an open or closed file. That is just an unworkable kind of formulation. I think that the courts, which have addressed the type of harm that the Justice Department witnesses were talking about, have basically addressed that question in the context of NLRB unfair labor practice enforcement proceeding. 1 See p. 217 of the appendix. * See pp. 663, 664 of the appendix. Here we have a concrete, ongoing proceeding before the agency in which one of the parties to that proceeding comes in and in effect makes a discovery request for records relating to the subject matter of the unfair labor practice charge and what evidence the NLRB has in its files. Uniformly, the courts that have addressed that issue haveconcluded that it would harm those proceedings if these discovery requests were in fact complied with. To the extent that there is the possibility of coercion of employee witnesses and union witnesses in those kinds of contexts, or to the extent that disclosure would permit the companies to come in and construct defenses which would circumvent or somehow undermine the agency's position in the ongoing proceeding, we would agree with those decisions that exemption 7(A) applies. But, to the extent that there is any dicta in those decisions as well which would carry over to other examples, which would indicate that whole files can be withheld merely by an allegation of speculative harm without some kind of proof or greater showing, we think that those decisions do not comport with the legislative history of exemption 7(A). Ms. EMSELLEM. Do you feel that the Government witnesses took an argument for a very particular problem-a litigant seeking information outside of the regular discovery process-and applied it across the board to cover all investigatory files? I thought that they were making a confused presentation this morning, giving that particular situation as an example, and then using it to argue for a per se withholding of all investigative files whether open or not. Ms. COHN. I think that is exactly right. I would also like to emphasize that, while Mr. Flaherty's statement seems to argue that Congress ought to take a look at this and maybe rewrite exemption 7(A) or somehow change the 1974 amendments to that exemption, I would suggest that, in the cases that I have mentioned, the Justice Department has already done that by withholding anything that it determines to be an open file. The Justice Department is at present applying exemption 7(A) in a per se type of way without requiring a showing of any kind of harm. In this respect to disagree with Mr. Flaherty's description of what the 1974 amendments were designed to do. He seems to indicate in his prepared statement that the court cases which the 1974 amendments overruled were only cases involving closed files, indicating that Congress never intended to subject open files to the act's disclosure requirements. Well, that is just not the case. I have submitted my brief in the Baldwin case,' involving the SpiroAgnew files, as part of the record. That brief, in more detail, explains the legislative history of the 1974 amendments and what those particular cases involve that were overruled by the 1974 amendments. Two of them were cases involving open files, where the Government only alleged the mere possibility of some future proceedings to support its argument for withholding. MS. EMSELLEM. Do you think one way of addressing the problem would be to distinguish between a litigant requesting information and a citizen requesting information? 1 See p. 686 of the appendix. Ms. COнN. I think that that kind of distinction would be too difficult to draw. I do not really think that exemption 7 needs amending in any way. I think that whatever valid governmental interests there are in protecting enforcement proceedings are now recognized in the 1974 amendments. Congress attempted to strike a proper balance between the prodisclosure philosophy of the FOIA and its recognition that there are certain governmental interests that needed to be protected. I think that balance is presently contained in the harm analysis which the 1974 amendments now contain. My own personal view is that perhaps we ought to just liberalize the discovery rules which are applicable to these agency proceedingsand eliminate a lot of the FOIA litigation. Ms. HUFFMAN. I have a couple of questions on the delay issue. Do you attribute the delay in responding to requests-most notably that of the FBI-to a lack of manpower, to the Bureau's processing procedures, to a general hostility to the act, or to a combination of all three factors? Ms. CоHN. Well, we certainly recognize that the FBI and Justice were inundated with an unanticipated number of requests, and that they lacked the manpower at some point to keep themselves abreast of the constant influx of these FOIA letters. But now the FBI has undertaken a program to bring themselvesinto compliance; they have taken on additional personnel. If they get rid of the backlog, why is it that the FBI asserts that it will never be able to comply? We asked ourselves this question, knowing that the Department of Defense, for example, receives-according to our understanding-many more requests each year than the FBI, and yet, for some reason, DOD is able to scrupulously respond to all of its requests and appeals within the 10- and 20-working-day time limits. That raises the question: Well, if the Department of Defense can do that, then why does the FBI insist that there is just no way it ever can? 1 Unfortunately, no comprehensive comparative study between FBI and DOD procedures has ever been undertaken. We understand that there is a GAO report that is supposed to come out sometime soon 1 which was to look into the FBI procedures for processing requests. We do not know whether the question of comparing FBI procedures to DOD procedures is one that is being undertaken in that report, but we think it is one that should be addressed. My knowledge about current FBI procedures is somewhat out of date. We did some discovery in one of our cases-but that was approximately 2 years ago-to try to detail the various levels of review and the precise way in which a document is processed at the FBI. It is our feeling that the FBI's backlog is probably in part attributable to very inefficient procedures in reviewing documents which have been requested under the FOIA. There might perhaps be four levels of review. The fourth person might then not even have the authority to declassify information, in which case the document would have to go to a whole other review committee. We think that if somebody took a good hard look at the procedures. and tried to work on the problem from that aspect, a lot of the delay could be eliminated. 1 The GAO report was released April 10, 1978. MS. HUFFMAN. The FBI makes the point that it gets many requests that are voluminous. However, both the FBI and the Justice Department's appeals unit follow a first-in, first-out policy. Would you favor some sort of administrative procedure to separate big requests from small ones so a small requester need not wait in line behind someone requesting numerous documents? Ms. CонN. Yes. To the extent that there are voluminous amounts of files that have to be searched in response to a particular FOIA request, surely there are administrative burdens in doing that within 10 or 20 days. But we do not think that the person whose request is only for two pages of documents should be made to wait while the FBI processes requests for all the massive files relating to Alger Hiss or the Rosenbergs. There has to be some better way of going about doing this. Distinguishing between large and small requests is one way of doing that. I think you could have another track which might distinguish between requests for personal files, for example, on one hand and maybe requests by newspeople for information related to an event which has some timeliness aspect to it so that a more immediate answer might be of greater importance. I think that this kind of tracking system is something that ought to be looked into. Ms. HUFFMAN. The Justice Department has expressed the view that release of the information might be less in the public interest if it involved an incredible amount of documents or an incredible amount of fees. Do you think the size of the request should have any bearing at all on the determination to waive fees? Ms. COHN. I think the number of documents, in and of itself, should not be a decisive factor in deciding whether a fee waiver is warranted. Obviously, there might be voluminous numbers of files, disclosure of which would clearly be in the public interest. That is precisely the kind of request that either a concerned citizen or a public interest group or a representative of the news media could not otherwise afford unless there was a fee waiver. So, that is precisely the situation in which search and copying fees are the biggest barrier to disclosure under the FOIA. If all of the other requirements are met showing that disclosure would be in the public interest, fees ought to be waived. The legislative history of the fee waiver provision' really indicates that, if the relevant criteria are met, if it is shown that it is a matter which would promote public debate, and it is therefore a matter of public interest, fees ought to be waived. The problem is that agencies view this type of case as being a matter of discretion. Well, surely there is some discretion involved here in terms of deciding whether the criteria have been met. But, once deciding that they have been met, there is discretion on the question of waiving fees. Having found that those criteria apply, fees ought to be waived and the information ought to be released. 1 See pp. 819-821 of the appendix. MS. HUFFMAN. Do you think Congress ought to rewrite the fee waiving provision to make it mandatory rather than discretionary as it is the case in the present provision? Ms. COнN. Well, you cannot eliminate the discretion completely in the sense that somebody still has to make the administrative judgment that certain criteria are met. I don't think you can identify by legislation every situation in which a fee waiver should be made and those in which it shouldn't. But, again, Congress could reiterate its intent and admonish the fact that it is not presently being complied with. Ms. HUFFMAN. I have one final question. Do you think it is either necessary or advisable that there be one Federal office that coordinates the executive branch implementation of the FOI Act, similar to the function that OMB serves for the Privacy Act? Ms. COHN. Well, I suppose that question came up several years ago when the FOIA was first enacted and then when it was amended. At that point we did not have much confidence in OMB's ability to really conduct this kind of oversight function. But it has turned out that they really have done a pretty good job in the area of the Privacy Act. We do think in a lot of the areas that we have been talking about today that there really needs to be some agency wide, or governmentwide guidance, either in the nature of guidelines or constant_oversight to make sure that these requirements are being carried out. To that extent, perhaps it might be a good idea to try and give OMB, for example, responsibility. But, I really think that, to a certain extent, the Justice Department is in a unique position of exercising that kind of leadership function. We have seen a couple of examples in which the Civil Division is attempting to do just that in trying to overcome the problems of the past. But we hope that Justice takes this opportunity to try and issue some kind of greater guidance to agencies in general so that we see some fuller compliance in the future. Ms. EMSELLEM. Thank you for your testimony. Ms. CонN. Thank you. [The prepared statement of Ms. Cohn follows:] PREPARED STatement of DIANE B. COHN I am Diane B. Cohn, an attorney with the Freedom of Information Clearinghouse. The Clearinghouse is an organization sponsored by Ralph Nader which is designed to assist members of the public and the press in pursuing their rights to obtain government-held information under the Freedom of Information Act and other access laws. I very much appreciate your invitation to appear before the subcommittee today to address the question of whether the policies of the FOIA are being fully implemented, particularly in areas where the role of the Justice Department, both is the government's "hired gun" in defending FOIA suits and in providing general guidance for agency compliance, is of critical importance. At this time, those of us outside the government are still in the process of assessing how the Justice Department is going about putting into effect Attorney General Bell's May 5th directive! that all levels of government begin to truly abide by both the requirements and the spirit of the Freedom of Information Act. We are pleased to be able to say that 1 See p. 217 of the appendix. |