TIME LIMITS PROVISION Additional Material Submitted for the Record [Exhibit 84] STATISTICS ON JUSTICE DEPARTMENT APPEALS UNIT FOIA BACKLOG MEMORANDUM To: Peter F. Flaherty, Deputy Attorney General. From: Quinlan J. Shea, Jr., Director, Office of Privacy and Information Appeals. Subject: Third quarterly report, 1977. In term of accomplishment, this was the most spectacular quarter in the history of the Office of Privacy and Information Appeals. Unfortunately, although 646 appeal files were closed during the quarter, we took in 693 new appeals. The first and second quarters were already showing the effects of the build-up of the regular complement of the F.B.I.'s FOIPA Branch. In the third quarter we were hit with the impact of the Bureau's Project Onslaught. There is no reason to expect any drop in our intake during the fourth quarter of the year and it may well continue to rise. If the Bureau can be ready for us to process appeals, however, we will process in excess of 1000 appeals during the fourth quarter. It is worth noting that we closed only 1166 appeals in all of 1976 and have already closed 1466 in the first nine months of 1977 (we took in 1556 appeals in 19761660 so far in 1977). It will be no trick to turn the corner, once the corner stops moving away! [Exhibit 85] FOIA CLEARINGHOUSE MEMO TO ATTORNEY GENERAL BELL MEMORANDUM To: The Honorable Griffin B. Bell. Re Improved compliance with the Freedom of Information Act. The 1974 amendments to the Freedom of Information Act underscored the 1966 Congressional mandate that prompt disclosure of government-held information should be the rule and withholding the rare exception. Although some agen 21-656 0 78 - 50 cles responded commendably, openness has not been uniform and the reflex refusal of public access remains deeply imbedded within the bureaucratic consciousness. Thus, the FOIA's potential for dispelling public distrust of Government has not been fully realized. Perhaps the major reason that Government-wide compliance has not been accomplished is the failure of high officials in the Executive Branch to demand such compliance. Indeed, the Justice Department, which is in a unique position to perform this task, is generally perceived as a force of intransigence. Largely because of the unwieldy FOIA apparatus at the FBI, which makes prompt responses to even simple requests impossible, the Department has one of the worst records of non-compliance. By way of contrast, the Defense Department, which handles a larger volume of requests, often for classified information, generally meets the Act's ten and twenty working-day time limits and thereby minimizes lawsuits. The Justice Department normally takes from several months to a year to respond, and more often than any other agency its responses lead to lawsuits, many of which should not be defended. We therefore recommend the following improvements, in addition to increases in personnel: 1. The most needed mechanism of compliance is a true presumption in favor of disclosure in all cases. Too often the first and only question asked by agency personnel is, "does the request fall within one of the nine exemptions from mandatory disclosure?" This question, however, all too often serves as a challenge to fertile legal minds to develop new and novel theories for exempting material. The principal fallacy of this approach is that the exemptions are only permissive. marking the outer limit of material which an agency may withhold when a demonstrable harm to an agency's operations or to a legitimate private interest clearly outweighs the public's interests in disclosure. Thus, the question which should always be addressed first is, "does the probability of harm to government or legitimate private interests clearly outweigh the public's interests in disclosure?" Unless the answer supports non-disclosure, there is no reason to address the question of whether the information falls within one of the nine specific, limited exemptions. 2. More than general guidelines are necessary if this presumption favoring disclosure is to become Government-wide practice. The Justice Department, as a condition of defending an FOIA lawsuit, should demand a brief, but meaningful, memorandum from the withholding agency explaining what injury to the agency or to third parties would result from disclosure and why the public interest or the need of the particular requester does not nonetheless require disclosure. If the policy reasons for withholding are unconvincing, the suit should not be defended. Moreover, if the fourth exemption (confidential commercial information) or sixth exemption (clearly unwarranted invasion of personal privacy) is involved, the memorandum should reflect the views of affected third parties and thus avoid those situations where an agency has invoked an exemption only to have the third party, who was not previously contacted, consent to disclosure after commencement of the lawsuit. E.g., Health Research Group v. HEW, Civ. No. 76-2286 (D.D.C., Feb. 16, 1977). Such a memorandum would be exempt as materials compiled in preparation for litigation, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), and would be of considerable assistance to the Justice Department attorney defending the lawsuit. Furthermore, the Justice Department should require defendant agencies to forward to the Department's litigating attorney copies of the documents being withheld (or a representative sample if the documents are bulky), so that the attorney can verify the accuracy and thoroughness of any affidavits filed. Too often, a defending attorney relies upon an agency's affidavits containing colorful descriptions of the documents and fanciful claims of dire injuries from the proposed disclosures, only to be faced with a Judge's ire when upon in camera inspection he learns their true contents. One such occurrence was described in Ditlow v. Volpe, 362 F. Supp. 1321, 1326 (D.D.C. 1973), rev'd as to other documents, 494 F. 2d 1073 (D.C. Cir.), cert. denied, 419 U.S. 974 (1974): "This is a case where lawyer's verbiage has transformed six insignificant paragraphs into a major bone of contention. The only thing more puzzling than why Plaintiffs would want these documents is why Defendants refuse to disclose them. Of course, Plaintiffs had no certain knowledge of the contents and doubtless were incited by the great efforts expended by the Government to prevent disclosure." This procedure should also put an end to cases where the agency reviews the individual documents sought only after litigation has commenced and then learns that the documents' "presumed" contents do not correspond with their actual contents, so that "voluntary" disclosure is warranted. E.g., Knobbe v. IRS, Civ. No. 75-156-V6 (D. Kans., April 29, 1976). It should likewise help to avoid situations like that where, after appellate courts held certain documents to be exempt and Congress responded by amending the Act, the agency learned (or alleged) that certain of those documents never existed, see Weisberg v. Department of Justice, 543 F. 2d 308 (D.C. Cir. 1976), and situations like that where the Government secured the transfer of an indigent plaintiff's case to another jurisdiction on the basis of an allegation that the requested documents were located there, only to claim after the transfer that the documents never existed. Lynott v. Department of Justice, Civ. No. 676–1244A (N.D. Ga. 1976). 3. Another method of reducing the number and scope of litigated FOIA cases is for agencies to provide a procedure whereby, at the requester's option, an agency will justify its claims of exemption in detail prior to litigation. Courts generally require such a detailed itemization and indexing once litigation commences, e.g., Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), and as a result of this effort the Government often decides to disclose many documents, and requesters often abandon certain of their claims. The furnishing of an optional, pre-litigation index should reduce unnecessary litigation and speed up lawsuits once they are filed. This procedure should thus lessen the burden on the courts as well as the Justice Department. Moreover, this indexing procedure should reinforce the incentives for discretionary agency disclosures. As pointed out by the appellate court in Vaughn (484 F. 2d at 828 (footnote omitted)) : "The procedural requirements we have spelled out herein may impose a substantial burden on an agency seeking to avoid disclosure. Yet the current approach places the burden on the party seeking disclosure, in clear contravention of the statutory mandate. Our decision here may sharply stimulate what must be, in the final analysis, the simplest and most effective solution-for agencies voluntarily to disclose as much information as possible and to create internal procedures that will assure that disclosable information can be easily separated from that which is exempt. A sincere policy of maximum disclosure would truncate many of the disputes that are considered by this court. And if the remaining burden is mostly thrust on the Government, administrative ingenuity will be devoted to lightening the load." 4. The burden on the Justice Department's FOIA litigators also would be reduced, and the purposes of the FOIA furthered, if the Department were more restrained in its legal arguments. Its attorneys should do more than ask whether an argument favoring withholding is a conceivable interpretation of the Act, but instead ask whether it is a correct interpretation of the Act. The Department has a duty to the public as well as to agencies resisting disclosure. For example, it is irresponsible and ultimately self-defeating for the Department to continue to claim that the Government can neither confirm nor deny the existence of documents revealing the CIA's attempts to suppress news stories of the Government's use of the Hughes-Glomar Explorer after several respected journalists have written first person accounts of the CIA's requests not to print Glomar stories and after the United States Government has admitted in a lawsuit in California that the U.S. indeed owns the Glomar, even though it is registered with Hughes' Summa Corporation. See Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976). Likewise, the Department's position that no attorneys' fees are collectible in cases where the Government denies access, forces a requester to court. and only then abandons its claims of exemption, serves no legitimate government purpose. E.g., Emery v. Laise, Civ. No. 76-516 (D.D.C., June 3, 1976); Communist Party v. Department of Justice, Civ. No. 75-1770 (D.D.C., Mar. 23, 1976). Moreover, the Department's appeals in these and similar cases will ultimately cost the taxpayers tens of thousands of dollars in additional outlays. 5. Finally, on the legislative front, the Justice Department should stop wasting its time attempting to roll back the disclosure requirements of the FOIA (e.g., Maguire bill H.R. 12975, 94th Cong., 2d Sess.), and instead should work with interested persons in developing innovative responses to new problems. For example, the Justice Department must do more than defend so-called "reverseFOIA" cases, where companies sue to enjoin disclosure. Department attorneys should seek creative legislative solutions which take into account the interests of submitters, as well as requesters, and which resolve the notice and forum shopping problems these suits create. In fact, short of legislation, it should begin moving to require joinder under Rule 19 of requesting parties who plainly have an interest in such lawsuits and who, for reasons of judicial economy and fairness, ought to be joined as defendants. Similarly, companies and the public would both be better protected, and employees might for the first time have meaningful guidance, if the Justice Department would work with outside groups to reduce the scope and make concrete the provisions of the Trade Secrets Act, 18 U.S.C. § 1905, whose vague language presently defies both authoritative interpretation and evenhanded application. If there were ever a statute in need of clarification, so that all of the relevant interests were clearly established, section 1905 is that statute. What it would take to bring about reform and fuller compliance with the FOIA is positive thinking on the part of Department attorneys and an effort to work with citizen groups, companies, newsmen, and others seeking responsible solutions. Indeed, unless the Department fully accepts the Congressional mandate for openness and demands strict compliance by other agencies, the problems and substantial litigation which have arisen under the FOIA can be expected to be repeated under the recently enacted Privacy Act, 5 U.S.C. § 552a, and Sunshine Act, 5 U.S.C. § 552b, and the newly amended Advisory Committee Act. 5 U.S.C. App. I. Legislative History EXCERPT FROM HOUSE REPORT No. 93-876 TIME LIMITS As the subcommittee's hearings clearly demonstrated, information is often useful only if it is timely. Thus excessive delay by the agency in its response is often tantamount to denial. It is the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits. The testimony also indicated the ability of some Federal agencies to respond to inquiries within the time specified in the bill-ten days for original requests and twenty days for administrative appeals of denials. It is recognized, however, that there may be exceptional circumstances where the requested information is stored in a remote location outside the country and cannot be retrieved by the agency for examination within the 10-day time period even with the most diligent effort. In such unusual cases, the committee expects that the requester will accept the good faith assurances of the agency that the information requested will be retrieved and the request itself acted upon in the most expeditious manner possible. It is thus the intent of this provision that the agency have a sufficient flexibility which will enable it to meet its requirement in an orderly and efficient manner. Though the subcommittee heard reports of efforts by district courts to docket freedom of information complaints in an expeditious manner, it was found that the defendant Federal agencies as a general rule were slow in filing responses to complaints, thus inhibiting the rapid disposition of freedom of information suits. Under the amendments in this bill, the defendant agency would be required to respond to complaints within 20 days—the same time limits specified for private litigants under the Federal Rules of Civil Procedure, rather than the present 60-day time period for Federal agency response specified in the Federal Rules of Civil Procedure. Failure to meet the new mandatory time limits would constitute exhaustion of remedies, permitting court review. The committee believes that shorter mandatory response time need not be a burden on the agencies. Under procedures established by the Justice Department, all agencies presently are to consult with the Department's Office of Legal Counsel prior to a final denial of a request which might result in litigation. This consultation takes the form of an analysis of the legal and policy implications involved in a prospective denial. Accordingly, should a denial result in litigation, the defendant agency and the Department of Justice should already know the basis of their defense, and the necessity for a 60-day response period is lessened thereby. [Exhibit 87] EXCERPT FROM SENATE REPORT NO. 93-854 ON 1974 FOIA AMENDMENTS ADMINISTRATIVE DEADLINES Section 1(c) would establish time deadlines for the administrative handling of requests for information under the FOIA. It would require the agency to determine within 10 days after the receipt of any request whether to comply with that request and would give the agency an additional 20 days to respond to an appeal of its initial denial. Agencies could, by regulation, shift time from the appeal to the initial reply period. With each notification of denial to the requester, the agency would have to outline clearly the subsequent steps that could be taken to challenge the denial. The study by the Administrative Conference, testimony by government witnesses, and the pattern set by present agency regulations suggest flexibility in responding to requests for information, even where specific time deadlines are set. Proposals by governmental witnesses have been made that this matter be left entirely to each agency's regulations, so that the agency could determine the flexibility and discretion it needed to deal with requests. (Hearings, vol. II at 82, 217-18.) Witnesses from the public sector, however, uniformly decried delays in agency responses to requests as being of epidemic proportion, often tending to be tantamount to refusal to provide the information. Media representatives, in particular, identified delay as the major obstacle to use of the FOIA by the press and urged strict guidelines for agency responses. (Hearings, vol. II at 23, 27.) Too often agencies realize that a delay in responding to a press request for records can often moot the story being investigated and will ultimately blunt the reporter's desire to utilize the provisions of the Act: “In the journalistic field, stories that cannot be run when they are newsworthy often cannot be run at all," observed New York Times Vice President Harding Bancroft. "Reluctant officials are all too aware of this." (Hearings, vol. I at 102.) Senator Chiles, testifying before the subcommittee, pointed out the findings of a special Library of Congress study that found: "That the major Government agencies took an average of 33 days to even respond to a request for public record under the Freedom of Information Act. And an average of 33 days to respond when the initial decision to withhold information was appealed by someone looking for the facts." (Hearings, vol. II at 14-15.) Almost every public witness at the hearings brought out specific examples of inordinate delays encountered following initial requests for information. Senator Thurmond observed in his opening statement, "often the lapse of time or unjustified delay, renders the information useless." (Hearings, vol I at 176.) and Mr. Ralph Nader told the subcommittee that "Above all else, time delay and the frequent need to use agency appeal procedures make the public's right to know, as established by the Freedom of Information Act, a hollow right." (Hearings, vol. I at 210.) And one commentator noted, "delay is the agency's one predictable defense to a request which it doesn't wish to honor." (Elias & Rucker. "Knowledge is Power: Poverty Law and the Freedom of Information Act." Legal Serv. Clearinghouse, May 1972, reprinted in 120 Con. Rec. 5834, Jan. 30, 1974. daily ed.) Mr. Anthony Marrocchi, representing the Oil, Chemical and Atomic Workers International Union, placed a compelling prospective on agency delays in responding to requests for information relating to health and safety of workers. He testified: "Now, a great deal of the time we find not outright refusal, just dilatory tacties being used where we don't hear for many months or they don't answer our request for this information. It is left hanging so to speak. . . . In those cases where we have been successful in securing the [inspector's] report, the average delay from the issuance of the citation to receipt of the report has been 8 months. . . . "Obviously, when dealing with information that is vital to the health of workers, such delays and denials are unconscionable. . . . So to be dilatory on an antitrust action is an inconvenience but to be dilatory when health is concerned may doom an individual to early death." (Hearings, vol. II at 67, 69.) Frequent instances of agencies' failing to follow their own regulations militate against allowing them to govern their own performance. For example, on August |