16. Who determines what level employee-clerical or professional-is needed to search for documents? (If guidelines exist for determining the level please furnish a copy.) 17. Would your agency favor uniform, government-wide criteria for fee waivers? 18. Would your agency favor a uniform, government-wide criteria for fee waivers. 19. Would your agency favor an amendment to the Freedom of Information Act allowing agencies to charge fees for reviewing documents and for overhead costs in certain situations? If so, under what circumstances? 20. Does your agency have any legislative or administrative recommendations for changing the fee waiver provisions of the Act, or for changing the way in which the existing provisions are applied and utilized to insure conformance with Congressional intent? (If any one document or set of regulations provides the answer to more than one of the questions, please forward one copy of that document and indicate by the appropriate question where the response can be found.) [Exhibit 97] PRELIMINARY ANALYSIS OF SUBCOMMITTEE FEE WAIVER QUESTIONNAIRE Some of the subcommittee's preliminary findings based on the responses to the fee waiver questionnaire sent to 32 agencies are as follows: 1. Because the reporting provision of the Act does not require agencies to compile data on fee waiver requests it is impossible for Congress to determine if the provision is being abused. 2. Six of the responding agencies would not, on their own initiative, consider waiving fees if the requseter did not know to make the request, or if the amount involved was not so small as to be automatically waived. 3. All agencies responding would consider a request for a fee waiver after the initial request was made. Several indicated they would consider a waiver even after the release of documents although most imposed a deadline of up to the time of release of information. 4. The number and level of officials authorized to waive fees varies widely among agencies. Some give that power only to one person, while others permit officials in any office having custody of requested records to make the fee waiver determination. This, of course, greatly increases the possibility of inconsistency and arbitrariness within an agency, on this issue. 5. Fifteen of the responding agencies indicated they would require a statement of purpose from a requester in order to determine if a fee waiver were appropriate, unless it was absolutely clear on the face of the request that the person was eligible for a waiver. This is despite the face that the Act clearly places the burden on the agency to determine if a waiver is appropriate. While certainly some basic information from the requester is helpful, often agencies will request information in unnecessary detail which results in a delay in acting on the response. 6. Thirteen agencies indicated that in many cases they would require an agreement in advance for payment of fees before considering the request received. Thus the time limits in the Act would not be triggered upon receipt of the request, as required by the Statute. 7. Seven agencies indicated they had no regulations or informal policy requiring a detailed explanation to the requester as to why the fee waiver was denied. 8. Eight agencies had no procedure or provision for an administrative appeal of a fee waiver denial. Thus requesters who sought a fee waiver would have to come up with the money to go to court in order to obtain a reversal of a fee waiver denial. 9. Most agencies had no regulations dictating what level employee was needed to search for records. In cases where the search fee charged for clerical employees is different from that for professional employees the decision as to which employee is required can be very significant for the non-profit or indigent requester. 10. Seven agencies felt there was no need for government-wide criteria for fee waivers. However, the majority of agencies felt that uniform criteria and more specific criteria would be of benefit both to the agencies and the requester. 11. Six agencies would oppose a uniform fee schedule arguing that each agency should set fees according to its particular requirement. That is the present procedure under the Act. 12. Seventeen agencies would support a change in the law to permit the charging of fees for review time or for other overhead costs. 13. The most frequently proposed legislative change, other than permitting review charges, was a provision directing that the fees collected be credited to the individual agency rather than the general treasury. 14. An analysis of the standards used by agencies in deciding fee waiver cases is not complete. However it is evident from a preliminary review of the questionnaires that the standards vary widely. Some agencies have no regulations on the issue. Some agency regulations violate the spirit if not the letter of the law. While it is impossible, because of the lack of data, to document how widespread abuse of the provision is, the potential for abuse clearly is great. [Exhibit 98] CORRESPONDENCE ON ROTHMAN FEE WAIVER CASE GENERAL SERVICES ADMINISTRATION, Mr. DAVID H. ROTHMAN, 805 South Pitt Street, Alexandria, Va. DEAR MR. ROTHMAN: This is in further response to your Freedom of Information request dated March 1, 1977 as amended by telephone on March 15, 1977 and by letter on March 17, 1977. We have completed our nationwide survey to determine the search fees related to your request. A fee of $2,313 must be prepaid before we will begin to search for the records you described. Clerical search: 358 hours at $4 per hour--. Total $1.432 800 81 2, 313 The above figure is an estimate. Should the actual fee be greater, you will be asked to pay the difference; if it is less, you will receive a refund. Submit your check or money order to this office, payable to the General Services Administra tion. Sincerely, RICHARD Q. VAWTER, Director of Information. [Exhibit 98a] ALEXANDRIA, VA., April 8, 1977. Mr. RICHARD Q. VAWTER, Information Director, General Services Administration, DEAR MR. VAWTER: Under 5 U.S.C. 552, the Freedom of Information Act. I hereby appeal your letter of March 25, 1977, in response to my Freedom of Information request dated March 1, 1977, as amended by telephone on March 15, 1977, and by letter on March 17, 1977. Specifically I object to your insistence on billing me an estimated $2.313 if I still want my request honored. I maintain that I am entitled to access at no cost because my request is in the public interest. A letter from Morton H. Halnerin, 122 Maryland Ave., N.E., Washington. D.C., to Elritt N. Nettles. Acting Staff Director. Director for the Freedom of Information and Security Review Office of the Assistant Secretary of Defense, dated April 11, 1975, raises some of the same legal issues that apply in my case. I should like to quote at length from Mr. Halperin's letter, which I understand resulted in a waiver of fees. Mr. Halperin wrote: "I have requested and here repeat my request that you waive these fees on the grounds that furnishing the information can be considered as primarily benefiting the general public.' "It is clear that, as the Attorney General's Memo (AG's 1974 FOI Amdts Mem) indicates, the waiver is discretionary. (p. 16.) However, as the AG memo notes: "Where an agency perceives a substantial question whether release of requested information can be considered as "primarily benefitting the general public," it should be considered exercising its discretion under this provision. What is required is the application of good faith in determining whether public payment should be made for essentially public benefits. In its consideration of the matter, the agency need not employ any particular formalized procedure, and may draw upon both special expertise and general knowledge concerning such matters as the size of the public to be benefited, the significance of the benefit, the private interest of the requester which the release may, further, the usefulness of the material to be released, the likelihood that tangible public good will be realized, and other factors which may be pertinent to the appropriation of public payment. Deliberate, irrational discrimination between one case and the next is improper; but neither is it necessary to develop a system of rigid guidelines or inflexible case precedents.' (p. 15.) "The Conference Report says this about fees: "... In addition, the conference substitute retains the agency's discretionary public-interest waiver authority but eliminates the specific categories of situations where fees should not be charged. 66 'By eliminating the list of specific categories, the conferees do not intend to imply that agencies should actually charge fees in those categories. Rather, they felt, such matters are properly the subject for individual agency determination in regulations implementing the Freedom of Information law. The conferees intend that fees should not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information.' (Conference Report, No. 93-1380, p. 8.) "The Senate Bill approved unanimously by the Judiciary Committee contained the language finally approved. The Senate Committee Report (93-854) states that '(t) his public interest standard should be liberally construed by the agencies...' (p. 12). “Also of relevance in the legislative history, I believe, is the discussion of attorneys fees and court costs-which have an analogous purpose that the law should work so 'that the average citizen can take advantage of the law to the same extent as the great corporations." The above would also apply to independent journalists acting in the public interest. Mr. Halperin continues: "The Senate Report relating to attorney's fees reads as follows: "It should be noted that the criteria set out in this subsection are intended to provide guidance and direction-not airtight standards for courts to use in determining awards of fees. Each criterion should be considered independently, so that, for example, newsmen would ordinarily recover fees even where the government's defense had a reasonable basis in law, while corporate interests might recover where the withholding was without such basis'." (Senate Report N. 93-854, pp.19-20.) "Returning from this consideration of the analogous issue of attorney's fees to the direct question, Congress clearly intended that the assessment of fees not be a bar to the use of the FOIA by private individuals or public interest groups. At the same time, it permits the charging of fees so that corporations or individuals using the Act for private gains could be charged the cost of the services provided. "The legislative history of the provision calling for a liberal interpretation of the phrase 'primarily benefitting the public' suggests that all fees should be waived whenever the release of the information contributes to public debate on an important policy issue and when the person requesting the information is doing so for the purpose of contributing to the 'uninhibited, robust and wideopen' debate on public issues which the Supreme Court has repeatedly held to be protected by the First Amendment (see, e.g., New York Times v. Sullivan.) "This approach suggests that all fees should be waived if two criteria are met: (1) the information released will contribute importantly to public debate on important policy issues and (2) the information was requested to be used for that purpose." 21-656-78- -52 I meet both criteria, for I am a journalist commissioned by a newspaper, Soho Weekly News of New York, N.Y., to examine the qualifications of Mr. Joel Solomon as GSA Administrator. Without passing judgment on Mr. Solomon, I believe that the issue is one of honesty in government. The public, as well as policy-makers themselves, has a legitimate interest in relevant information concerning individuals destined for important government jobs. Although President Carter has not formally announced Mr. Solomon's nomination, Senator James Sasser of Tennessee is on record as having said: "I am confident that Jay Solomon will receive speedy confirmation from the Senate after a formal announcement." Those words appeared in the February 23, 1977, edition of The Tennessean newspaper, which reported: "Jay Solomon, Chattanooga businessman, will be the new administrator of the General Services Administration if he receives Senate confirmation." Clearly Mr. Solomon seems destined for the administratorship meaning that he and his extensive business dealings, including those involving GSA, are an important news story. Moreover, if Mr. Solomon did not become Administrator, that in itself would be a matter of journalistic interest. A United States Senator, after all, expects that Mr. Solomon will receive the appointment. With the aforementioned facts in mind, I cannot accept your contention that I do not deserve a waiver since you do not even know if Mr. Solomon will be chosen. Nor can I agree with your statement that his qualifications are not now of concern to the press because the Federal Bureau of Investigation is examining them; the very fact that Mr. Solomon is worthy of the FBI's attention makes him more of a "story," even if the investigation is a routine one. Moreover, the FBI, no matter how experienced in these matters, is not infallible. Upon request, a list will be supplied to you of high government officials who have resigned under pressure, or have been fired, because of their questionable actions, from positions for which the FBI originally investigated them. Also, Mr. Vawter. I am surprised that you, a former reporter, would claim in a phone conversation with me that a journalistic inquiry at this time would be a needless duplication of the FBI's work. Presumably, while a newspaper reporter, you yourself wrote about prospective nominees under FBI investigation. The FBI's interest in a matter does no negate the First Amendment. I also question your belief that the $2,313 would be an unreasonable burden upon the taxpayers. They have an interest in the efficient, honest operation of GSA, which influences the spending of about $5 billion in tax money each year. Five billion dollars is 500,000 times the income of a taxpayer earning $10,000 a year-and well over a million times the amount of federal income taxes such an individual would pay. Presumably a taxpayer would want to know relevant facts about Mr. Solomon, who will help decide how the money is spent. His role will be a major one. Institutionally GSA is supposed to keep taxpayers abreast of the spending of public funds. Toward this end, for example, the agency employs an official known as a "Director of Information." If I am not mistaken, you, the Director, receive a salary in the neighborhood of $40,000 annually-possibly more. You have been at GSA about eight years now, and assuming that your income in that period averaged $25,000 a year, the taxpayers already have spent $200,000 on your salary, exclusive of retirement and other benefits. It would appear that GSA is committed to the spending of money for "public information." The above comments are offered under the assumption that the information would cost $2,313 to obtain. I wonder, however, if expenses would reach such a level. I am astonished that GSA, with its many computers, cannot immediately tell whether certain firms are dealing with the agency. Sound management would call for such a capability. In awarding new contracts, for instance, GSA would want to know if companies have honored existing ones. If such a management tool is not at hand now, I see no reason why GSA should penalize me for its mistake. Meanwhile, for the purpose of record, I want to detail the request as now modified. Under 5 U.S.C. 552, I am asking for access to documents with the following information about leases involving Arlen Realty & Development Corporation and certain subsidiaries: Locations, including exact addresses. Square footages. Exact names of lessors. Exact names of payees. Dates of signings, and names of signers. When the leases took effect and when they will expire. Values of the leases over their terms, and annual rents. I would also appreciate access to documents showing the extents, kinds and dates of any other dealings that Arlen and certain subsidiaries have had with the GSA. If I am correct, you indicated in a telephone conversation that the Federal Supply Service has not had any dealings with the main company and certain subsidiaries. Please confirm this in writing. In reference to "certain subsidiaries," I am now interested in: All companies with "Arlen" in their names, including Arlen Shopping Centers and Arlen Realty Management Corporation (not to be confused with Arlen Realty and Development Corporation). Presumably your computers are programmed to search quickly for information about companies with similar names, particularly if the common word is the first one. ASC Realty Inc. (Springfield, Va., New York, Florida). As in the case of Arlen, I would appreciate GSA's programming the computer to "pick up" all companies with the same word at the beginnings of their names. The same holds true for companies that follow on this list. Also, if the search is conducted manually in places. I would appreciate GSA's instructing clerks to watch for similar first words. Atlantic Department Stores Inc. (New York). Curtis Partition Corp. (New Jersey). E. J. Korvette (Connecticut, New Jersey). Korvettes Inc. (New York) should probably show up during the same search. Interior Construction Corporation (New York). In addition, I am interested in Independent Construction Company, believed to be headquartered in Tennessee, which apparently is not a subsidiary of Arlen. In your letter of March 15, you said the search would include Independent Construction. If you reject this appeal, I would appreciate detailed reasons. If I do not receive a substantive response to this within 20 days, I shall consider my request denied. I would hope, however, that upon reflection, you would appreciate the merits of my case. Sincerely yours, DAVID H. ROTHMAN. [Exhibit 98b] GENERAL SERVICES ADMINISTRATION, Mr. DAVID H. ROTHMAN, DEAR MR. ROTHMAN: This is in response to your April 8, 1977, letter labeled, "Freedom of Information Appeal." You object to our request for a fee of $2,313 to cover our costs in searching for the information you requested on Arlen Realty and its subsidiaries. Though your recitation of arguments used by Morton Halperin in his dealings with the Department of Defense was interesting, it does not seem to be analogous to your situation. There exists a long established and respected procedure for clearing nominees for high-level positions. Prior to nomination by the President, it is customary for a background check to be conducted by the Federal Bureau of Investigation. The nomination is then considered by the appropriate Senate committee, in this case the Senate Governmental Affairs Committee. Then the full Senate considers the nomination and confirms the appointment. In light of this procedure, which has proven effective over many years, it would be an unfair added burden on the American taxpayers to take federal employees away from their regular duties to make the extensive search you reqested without appropriate reimbursement. Regarding the telephone conversation you mentioned on page 5 of your April 8 letter, the Federal Supply Service reports it has no dealings with the companies about which you inquired. Since we have denied nothing, your letter is not being treated as an appeal. A search to determine whether we have records of transactions with the companies you mentioned will begin upon receipt of your check or money order for $2,313. Sincerely, RICHARD Q. VAWTER, |