2, 1972, a request was made to the Department of Justice for certain business review letters issued by the Antitrust Division. The initial denial was dated November 24, 1972-over three months after the initial request-from which an appeal was taken to the Attorney General on December 6. Although the requester filed suit on February 21, 1973, the final agency response was not forthcoming until April 19. That response denied access to the documents under longstanding departmental policy. Thus, a period of over 4 months elapsed before the administrative appeal was decided. (Hearings, vol. I at 210; vol. II at 165, 172.) And. ironically, in the interim the Department proposed regulations effective March 1st under which the responsible agency official will respond to any request for information within ten days, and under which the "Attorney General will act upon the appeal within 20 working days." (38 Fed. Reg. 4391, Feb. 14, 1973.)

Mr. John Shattuck, testifying for the American Civil Liberties Union, provided further examples involving requests to the Justice Department:

"In one ACLU case, we made a request by letter to the Justice Department's Internal Security Division. Two months after we requested information by letter we were informed that we had to complete the proper form. After we sent a completed form, more than two additional months elapsed before we were informed that the record we requested did not exist. In another case, involving the United States Parole Board, more than two months passed after we had made several telephone requests for a new set of parole criteria being used by the Board before we were orally informed that we would not receive the criteria. A demand letter was sent to the Board's counsel, threatening suit if we did not receive the information within thirty days. On the twentieth day, the Board's counsel by telephone informed us that he was almost certain we would be provided with a copy, but that he needed a couple of more weeks to clear release with others in the agency. Among the "reasons" given for this delay, the counsel stated that the Department of Justice was having difficulty deciding which office should handle our request, since it did not wish to concede that the Parole Board was an "agency" within the meaning of the Act." (Hearings, vol. II at 53.)

Added another witness: "If Justice delayed is justice denied,' how much more pernicious is the denial when Justice does the delaying." (Hearings, vol. II at 63.) It should be obvious that most persons requesting information from the government ordinarily will not go to court if their requests are not answered within the short time provided in this subsection. As Mr. Robert Ackerly responded to a question whether attorneys will run into court before agencies have been found the records requested:

"That rarely happens. We have made that implied threat to the agencies saying, look, it has been a month or 6 weeks and if we don't get a positive response we will treat it as a denial. But it if you are really interested in getting the information and if you believe that the agency tells you they are trying to locate it, you will work with the agency to try to get the information.

"I don't think these suits have been brought for the fun of bringing law suits or for practice. I think most people are sincere in their requests. And we want to get the documents and not litigation.

"So I think, I don't know what the agency's experience is but my experience is that we work with the agencies and I have not yet brought a suit without a final denial although I may have one with EPA now because I am losing patience with them." (Hearings, vol. II at 112.)

On the other hand, an agency with records in hand should not be able to use interminable delays to avoid embarrassment, to delay the impact of disclosure, or to wear down and discourage the requester. Therefore, the time limits set in section 1(c) of S. 2543 will mark the exhaustion of administrative remedies, allowing the filing of lawsuits after a specified period of time, even if the agency has not yet reached a determination whether to release the information requested. Where there are "exceptional circumstances," the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Such "exceptional circumstances" will not be found where the agency had not, during the period before administrative remedies had been exhausted, committed all appropriate and available personnel to the review and deliberation process. The final court-supervised extension of time is to be allowed where the agency is clearly making a diligent, good-faith effort to complete its review of requested records but could not practically meet the time deadlines set pursuant to S. 2543.

For those agencies which believe that 10-day deadlines are simply unworkable, the recent address by Federal Energy Office Administrator William Simon to the

National Press Club should be instructive. Despite the extraordinary number of inquiries received by his office, Mr. Simon told journalists:

"Within 24 hours of our receiving your requests for information, we will issue an acknowledgment, or grant the request. Within ten working days, I personally guarantee that you will get the information you seek, or have the opportunity to appeal. Appeals will be ruled upon within no more than 10 days."

A 10-day limit for the initial response to an information request is also provided by regulation for the Defense Supply Agency. (32 C.F.R. § 1260.6 (b) (3).) The committee has added a novel certification provision to the section on administrative time deadlines to take care of a small class of special and rare situations where the agency finds-and the Attorney General agrees-that an initial response time of 10 days is generally inadequate to locate documents and where transfer of time from the appeal period to the initial response period would leave the agency with insufficient appeal time to adequately review an initial denial. The Immigration and Naturalization Service provides an example of this specialized situation. The INS processes an average of 90,000 formal requests for records each year, most of which seek access to one or more of the 12 million individual files dispersed among and frequently transferred between 57 widely scattered Service offices and 10 Federal Records Centers. When the Justice Department early in 1973 revised its FOIA regulations and imposed a 10day time limit on initial responses by other parts of the Department, the Immigration Service indicated that the proposed limit would be frequently unattainable, pointing out that in addition to the factors described above, the files follow the subjects, who often move from one immigration district to another, and that there are often inaccuracies in the information furnished by the requester. The certification provision would allow the Service, or parts of other agencies demonstrating an exceptional situation similar to that of the Service, to take up to 30 days to respond to an initial request. Agencies that simply processed large volumes of requests or frequently faced novel questions of legal interpretation could not avail themselves of this procedure. Nor could agencies or parts of agencies utilize this certification procedure simply because they had been unable to regularly meet standard deadlines, without a showing of the geographical and other concrete obstacles to the location of files or records present in the INS example.

Under subsection (a) (6) (C) an agency may, by notifying the requester, obtain a limited extension of the 10- or 20-day time limits prescribed in subsection (a) (6) (A). If an agency has, for the class of records sought, certified a longer period of time for its initial response under the provisions of subsection (a) (6) (B), however, no further extension of time may be obtained for the initial response.

Where an extension of time is obtained for the initial response to a request, no further extension will be available on appeal. And in no circumstance will the extension of time exceed 10 days.

Furthermore, extensions up to 10 days will be allowed only in four defined types of "unusual circumstances," and only to the extent "reasonably necessary to the proper processing of the particular request." The need to research for and collect records from field facilities or "other establishments that are separate from the office processing the request" does not permit an extension while such an office obtains the records from the agency's own file, records, or administrative division when located in the same city as the processing office. Rather, this is intended to cover the collection of records from other cities, or from a federal records center or other facility which is not part of the agency. The need for consultation does not permit an extension for routine intra-agency consultation between the involved operating unit, the legal unit, and the public information unit, since any such consultation that may be needed should occur within the basic time limits. While it would permit necessary consultation between two operating units of an agency with different functions, routine clearances among various units with a possible interest in the record-such as occur on almost every request processed by the Internal Revenue Service-would not provide a basis for extensions of time.

Consultation outside the agency is intended to include situations where the request is of substantial subject-matter or policy concern to another agency, for example, a request for records of the Justice Department's Antitrust Division on particular international business matters that are of concern to the State Department. It does not include, however, cases where an agency contemplating denial of an administrative appeal needs the time to consult the Justice Department's Freedom of Information Committee, since it is expected that such consultation will be completed within the prescribed time limits.

The House Report observed that "Very few of the agencies make an effort to inform requesters that they can appeal the initial decision. . . Thus, in most agencies the regulations state that an initial refusal may be appealed to a top official in the agency, but agencies seldom make a point of its appellate procedure in the letters denying the initial request." Section 1(c) of S. 2543 therefore adds to the FOIA the requirement that upon an initial denial of a request for information the agency shall notify the person making the request "of the right of such person to appeal to the head of the agency any adverse determination." Likewise, when a denial is upheld on appeal the agency "shall notify the person making such request of the provisions for judicial review of that determination." Intermediate appeals are not contemplated under S. 2543, nor would the administrative time limitations make such appeals practicable.

During the subcommittee hearings Senator Kennedy proposed that “administrative appeals from information denials not go through the agency initially refusing access, where egos and self-protective instincts remain in full force, but to an independent agency with special expertise." (Hearings, vol. II at 2.) A similar suggestion was made by a spokesman for the Consumers Union. (Id. at 58.) A form of this proposal was instituted administratively by the Attorney General, when he announced at the hearings:

"I will immediately remind all federal agencies of the Department's standing request that they consult our Freedom of Information Committee before issuing final denials of requests under the Act.

"In this connection I will order our litigating divisions not to defend freedom of information lawsuits against the agencies unless the committee has been consulted. And I will instruct the committee to make every possible effort to advance the objective of the fullest responsible disclosure." (Hearings, vol. II at 217.)

This procedure has been written into departmental regulations. (38 Fed Reg. 19123, July 18, 1973.) The committee supports this step and believes that data should be developed regarding its effectiveness before legislative action is taken to legislate mandatory outside consultation.

[Exhibit 88]

EXCERPT FROM CONFERENCE REPORT (SENATE REPORT) No. 93-1200 ON 1974 FOIA AMENDMENTS

ADMINISTRATIVE DEADLINES

The House Bill required that an agency make a determination whether or not to comply with a request for records within 10 days (excepting Saturdays, Sundays, and legal public holidays) and to notify the person making the request of such determination and the reasons therefor, and the right of such person to appeal any adverse determination to the head of the agency. It also required that agencies make a final determination on any appeal of an adverse determination within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the date of receipt of the appeal by the agency. Further, any person would be deemed to have exhausted his administrative remedies if the agency fails to comply with either of the two time deadlines.

The Senate amendment contained similar provisions but authorized certain other Administrative actions to extend these deadlines for another 30 working days under specified types of situations, if requested by an agency head and approved by the Attorney General. It also would grant an agency, under specified "unusual circumstances," a 10-working day extension upon notification to the person requesting the records. In addition, an agency could transfer part of the number of days from one category to another and authorize the court to allow still additional time for the agency to respond to the request. The Senate amendment also provided that any agency's notification of denial of any request for records set forth the names and titles or positions of each person responsible for the denial. It further allowed the court, in a Freedom of Information action, to allow the government additional time if "exceptional circumstances” were present and if the agency was exercising "due diligence in responding to the request."

The conference substitute generally adopts the 10- and 20-day administrative time deadlines of the House bill but also incorporatees the 10-working-day extension of the Senate amendment for "unusual circumstances" in situations

where the agency must search for and collect the requested records from field facilities separate from the office processing the request, where the agency must search for, collect, and examine a voluminous amount of separate and distinct records demanded in a single request, or where the agency has a need to consult with another agency or agency unit having a substantial interest in the determination because of the subject matter. This 10-day extension may be invoked by the agency only once-either during initial review of the request or during appellate review.

The 30-working-day certification provision of the Senate amendment has been eliminated, but the conference substitute retains the Senate language requiring that any agency's notification to a person of the denial of any request for records set for the names and titles or positions of each person responsible for the denial. The conferees intend that this listing include those persons responsible for the originai, as well as the appellate, determination to deny the information requested. The conferees intend that consultations between an agency unit and the agency's legal staff, the public information staff, on the Department of Justice should not be considered, the basis for an extension under this subsection.

The conference substitute also retains the Senate language giving the court authority to allow the agency additional time to examine requested records in exceptional circumstances where the agency was exercising due diligence in responding to the request and had been since the request was received.

[Exhibit 89]

EXCERPT FROM ATTORNEY GENERAL'S MEMORANDUM
ON 1974 FOIA AMENDMENTS, FEBRUARY 1975

1. Time limits for agency determinations.-Agencies must amend their regulations to conform to the provisions in the 1974 Amendments which prescribe administrative time limits for processing requests for access to there records. Basically, these provisions call for an initial determination to be made on any such request within 10 working days (usually two weeks) after its receipt. In case of an appeal from an initial denial, a determination on the appeal is to be made by the agency within 20 working days (four weeks) after receipt of the appeal. After any agency determination to comply in whole or part with a request for records, whether made initially or on appeal, the records shall be made available "promptly."

These time limit provisions apply to requests and to appeals that are received by agencies on or after Wednesday, February 19,1975. Agency regulations under the Act should be revised to reflect these provisions and the revisions should be published in the Federal Register and distributed to all concerned agency personnel before that date. The discussion which follows is chiefly concerned with the impact of the time limits on requests which, for one reason or another, an agency finds difficult to process properly within such periods.

It is important to note that these time limits run from the date of "receipt." The experience of the Justice Department with voluntarily adopted time limits for acting on requests and appeals for our own records has indicated that much time can be lost in mail rooms and elsewhere in routing requests and appeals to those who must act upon them. Such delays can be sharply reduced by explicit and well-conceived instructions to requesters on how to address their requests and their appeals. It is strongly recommended that such instructions be set forth in agency regulations, as well as in any other pertinent agency information and guidance materials that may be prepared. While failure to comply with such reasonable regulations will not necessarily disqualify a request from entitlement to processing under the Act, it will probably defer the date of "receipt" from which the time limitations are computed, to take account of the amount of time reasonably required to forward the request to the specified office of employee.1 Such regulations designed to facilitate processing must not, of course, be used to protract or delay it.

Agencies should also consider the adoption of devices and the designing of procedures to speed processing of requests. It might be desirable, for example, to specify in agency regulations and guidance that FOIA requests be clearly identi

1 Where such delay has occurred. it would be desirable to provide for acknowledgment of effective receipt. Such acknowledgment should also be provided where delay is caused in the mails, or by any other means of which the requester is likely unaware.

fied by the requester as such on the envelope and in the letter. Similarly, agency personnel should be required to mark FOIA requests and appeals conspicuously so that they may be given expeditious treatment. Of course, the new time limits also mean that an efficient system of date-stamping for incoming matter is essential.

The 1974 Amendments contain two provisions for extension of the foregoing time limits. One authorizes administrative extension by giving requesters written notices with prescribed contents in three types of “unusual circumstances" which are specified in the amendments. It is clear that such extensions cannot exceed ten working days in the aggregate, so that only one ten-day extension can be invoked by the agency, either at the initial or the appellate stage. Neither the language of the statute, however, nor the legislative history specifically precludes the taking of more than one extension where the circumstances justify, so long as the ten-day maximum is not exceeded with respect to the entire request. Logic favors the latter interpretation, since the same circumstances which make a particular request difficult to process at the initial stage frequently complicate the appeal as well. Accordingly, we interpret the statute to permit more than one extension, either divided between the initial and appeal stages or within a single stage, so long as the total extended time does not exceed ten working days with respect to a particular request.

Agencies should carefully consider whether they should make some provisions in their regulations concerning (a) who controls the use of the 10-day extension and (b) its allocation to the initial stage, the appeal stage, or partly to one and partly to the other. Such provisions, of course, would only operate in the unusual circumstances specified in the statute. Subject to this condition it would appear permissible for agency regulations to provide for distribution of the ten days on a case-by-case basis, or by restricting any extension at the initial stage to five days absent special showing (so as to reserve five days for the appeal stage), or in some other manner. Agencies should also be prepared to instruct their staffs on the form, contents, and timeliness of extension notices in the light of the statutory requirements.

The second provision for time extension in the 1974 Amendments authorizes a court to allow an agency "additional time to complete its review of the records" if the government can show exceptional circumstances and that the agency is exercising due diligence in responding to the request. In cases where an agency believes that this provision would probably lead to a judicial extension of its time if the agency were to be sued immediately, the agency may in the interest of avoiding unnecessary litigation and exploring fully the scope of a possible administrative grant of access, wish to suggest to the requester the possibility of agreeing with the agency upon a specific extension of time. In preparing its regulations on time limits, an agency should consider (a) who within the agency should give attention to the considerations discussed in this paragraph, and (b) the extent to which communications or agreements with requesters under this paragraph should be recorded for such bearing as they may have on possible litigation.

The legal consequence provided in the 1974 Amendments for an agency's disregard of the prescribed administrative time limits (i.e., the 10 and 20 day limits and any up-to-10 days extension effected by notice to the requester) is that the requester may sue at once, without resort to further administrative remedies. The Act as amended expressly provides that the requester "shall be deemed to have exhausted his administrative remedies" in case the agency fails to comply with applicable time limits. This means that if the 10-day time limit for initial determinations (together with any permissible extension of this limit as discussed above) is not complied with, the agency may have lost the 20 days or more that would otherwise have been available to it in the event of a timely-issued denial and an appeal. Thus, every effort should be made to issue an initial determination-even one with qualifications or conditions within the required time. Where it is necessary to find and examine the records before the legality or appropriateness of their release can be assessed, and where, after diligent effort, this has not been achieved within the required period, the requester may be advised in substance that the agency has determined at the present time to deny the request because the records have not yet been found and/or examined; that this determination will be reconsidered as soon as the search and/or examination is complete, which should be within 2 days; but that the requester may, if he wishes, immediately file an administrative appeal.

2

2 The qualifications or conditions cannot be so extensive as to render the response meaningless because such a response would not constitute the required "determination".