RICHARD Q. VAWTER, Director of Information, [Exhibit 98c] U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C., May 25, 1977. General Services Administration, Washington, D.C. DEAR MR. VAWTER: The Senate Subcommitee on Administrative Practice and Procedure, which I now chair, is responsible for continual oversight of the implementation by federal agencies of the Freedom of Information Act. The subcommittee is currently conducting a detailed investigation into possible agency abuses of the discretionary authority to waive fees, as well as the frequent lack of procedures for administrative appeal of fee waiver denials. As part of that effort I have had the opportunity to review your correspondence with David Rothman, a reporter, regarding fees GSA seeks to charge for lease information he requested under the FOIA. Using his case as an example, the subcommittee would like to explore GSA's practices and procedures in the area of fee waivers. The legislative history of the fee waiver provision is quite clear. In adopting 552(a) (4) (A) in 1974, Congress recognized that many agencies were denying access to information, by charging exhorbitant search and copy fees. The fee waiver amendment was drafted specifically to preclude that practice. (Conference Report, p. 8.) While the authority to waive fees is discretionary, the Act does provide a clear standard for agencies to follow if they exercise that discretion. "Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public." · 552 (a) (4) (A) The Attorney General's 1974 memorandum on the amendments elaborated on that criterion: If the information requested by Mr. Rothman regarding leases with Arlen subsidiaries was provided to the Senate during Mr. Solomon's confirmation hearings—as his letter transmitting the information indicates-it is unclear to me why it will cost $2313 to release that data. One would assume from your May 2 letter that a detailed review of leases by GSA employees was completed for the confirmation hearing. If, however, that was not done then a thorough search by GSA pursuant to a FOIA request and a fee waiver would seem proper. The possible conflict of interest of any government employee is a question of continuing public interest. President Carter has shown his concern in this area by going to great lengths to remove even the appearance of any conflict by his top level appointees. Confirmation does not lessen the concern. The public can only benefit from a discussion of the facts in any potential conflict-of-interest situation. And public benefit, after all, is the only test the Act mandates for fee waivers. While an agency may establish its guidelines for determining if the public will primarily benefit by disclosure, the basic standard may never be abrogated by any agency, either formally or informally. It appears that GSA may have done just that in denying Mr. Rothman a fee exemption. The issues in this case raise serious questions about GSA's fee waiver regula. tions and practices. Your early response would be appreciated. Sincerely, JAMES ABOUREZK, Senator JAMES ABOUREZK, [Exhibit 98] Practice and Procedure. JUNE 14, 1977. U.S. Senate, Washington, D.C. DEAR SENATOR ABOUREZK: This is in response to your letter of May 25, 1977. concerning the General Services Administration's practices and procedures with regard to fee waivers in Freedom of Information Act inquiries in general and the denial of a fee waiver to Mr. David Rothman in particular. We welcome the opportunity to respond to your request. Over the past several years GSA has adopted a firm policy of openness which we believe puts us at the forefront of agency compliance with the Freedom of Information Act. We would be happy to cooperate in a general review or audit of our Freedom of Information operations, including our position concerning fee waivers. You may be interested to know that Mr. David Rothman, to whom you refer in your letter, has made approximately 60 Freedom of Information requests of this agency in the past three years. Many of his requests called for extensive research, both manual and computer, and much free service has been provided. During the course of these three years, we believe GSA officials have responded in the best spirit of the law and with generous amounts of good faith, as called for in the Attorney General's Memorandum of 1974. We have spent thousands of hours searching out information for Mr. Rothman, have given him computer printouts without charge when they were available, devoted hours of telephone time to him and, for a period of nearly six months in 1974, provided him a desk, telephone service and a technical escort while he personally searched through our lease files. As you are aware, the law does not allow us to recover the overhead costs that we incur in implementing the Act. Costs that are reimbursed go into miscellaneous receipts of the U.S. Treasury. In the current situation Mr. Rothman apparently is investigating the possibility of a conflict of interest on the part of GSA Administrator Jay Solomon because of business this agency may have with the firm of which he recently was an officer, Arlen Realty and Development Corp. and its 546 subsidiaries. From your letter, however, we ascertained that some confusion exists over the scope of his request in terms of the number of records that must be searched and, consequently, over the estimated fee. Specifically, the fee estimate of $2,313 covers far more than lease information. Mr. Rothman's letter of March 1, 1977, dealing mainly with leases, contains a catch-all paragraph requesting records pertaining to "the extent of any other dealings that Arlen might have had with GSA." Since GSA has five divisions, each the size of a major corporation and operating throughout the nation, the answer would require considerable research. Had Mr. Rothman's request been only for lease information, our estimate of fees would have been considerably less. Since the apparent confusion came to our attention and was confirmed in a June 1 telephone conversation with Mr. Rothman, we have advised him that to search for leases with the eight Arlen subsidiaries in which he expressed particular interest would cost $117. To search our computer data base for all 546 subsidiaries, extract documents related to renegotiations of leases identified and make copies is estimated to cost $286. A copy of our letter to Mr. Rothman is enclosed. In a May 4 letter, Mr. Rothman asked for a list of all our leases nationwide. On May 18, we advised him that such a list is available and that he was welcome to come in and see it, although it does not contain all the information he desired. To tailor a computer program to his needs would cost over a thousand dollars. Mr. Rothman has not come in to see the available printout. As an act of good faith, we provided Mr. Rothman with all the information made available to the Senate committee on leases that we and Mr. Solomon consider to present potential conflicts. Though it was not the responsibility of this agency to determine whether Mr. Solomon, a presidential appointee, had conflicts of interest that would affect his ability to administer this agency, we were aware that the agency had some leases with Arlen. In anticipation of the confirmation hearings, we made a survey of our regional offices to identify such leases with the parent company, Arlen Realty and Development Corporation and Arlen Shopping Centers Inc., of which Mr. Solomon was chief executive officer. At the same time, Mr. Solomon had the files of Arlen searched for instances where it leased to GSA. The information received in each survey coincided. We have no reason to believe that we have leases with any of the other 545 subsidiaries. With regard to the fee waiver question, we tend to agree that our regulation is narrowly constructed, and appreciate your calling this to our attention. We are in the midst of a complete review of our Freedom of Information regulations and will give consideration to broadening the language so that it more closely parallels the Act. Even now, however, every aspect of our implementa tion is based on the Act itself, and our own regulations simply are used as a further guideline. Regulations, of course, cannot supersede the law. In our implementation of the Act, and our consideration of requests for waivers of fees, we are most aware of our duty to the taxpayers to ensure that the system is not abused. We try to strike a balance between the interests of the already overburdened taxpayers and the inquirer, who very well might uncover abuses that are adding to that burden. We believe that our experience in dealing with these matters, the experience of some of our staff as reporters and editors outside government, and our experience in dealing with Mr. Rothman over nearly four years led us to a sound judgment to deny a waiver. The decision was made after careful consideration by our information staff, our operating program offices, the general counsel's office and the deputy administrator, who has final authority in any Freedom of Information matter. As you are aware, GSA is the "business manager" of the federal government and has broad procurement authorities. The possibilities for conflicts of interest within GSA are boundless, and, at any time, accusations or innuendoes about almost any office or officer within GSA might be raised. It is for this reason that we maintain stringent internal regulations pertinent to real or apparent conflicts of interest, and are quick to take stern action against any employee who violates them. At the same time, this agency is a fishing ground for investigative reporters. While we appreciate the public interest to be served by the revelation of wrongdoing, we must also take into account the public interest to be served by our efficient performance of our statutory duties. When confronted with a Freedom of Information request which we believe amounts to a fishing expedition, we must balance the costs of diverting personnel and resources from assigned duties without reimbursement to the Treasury to the highly speculative possibility that the requester's research will serve a greater public interest by uncovering agency wrongdoing. In making these determinations to waive fees, we must also take into account the precedential impact one waiver will have on future request for waivers. We could hardly grant Mr. Rothman a waiver in the present case and then deny the same to him or any other requester who wishes to investigate the possibility of wrongdoing within the General Services Administration. In effect, one waiver presupposes subsequent waivers and is an invitation to all requesters to make wholesale requests for significant quantities of our records, without taking into account the great costs to the taxpayers. As mentioned previously, GSA, because of its statutory duties, is particularly vulnerable to such requests, which could, if unchecked, virtually close down the agency. Perhaps our written reasons for denying a fee waiver for Mr. Rothman were too strictured. But our deliberations leading up to our denial were further ranging. We recognize there is no requirement under the Act for an inquirer to identify the purpose of a request or to provide any other information. However, in considering a waiver of fees, it is essential to have some additional support than a statement that the inquirer is a reporter and that he believes a request to be in the public interest. Mr. Rothman submitted no supporing data. He made no argument whatsoever to support his claim that his inquiry was in the public interest. He did not indicate whether he had any indication that Mr. Solomon was involved in a conflict of interest situation that was not brought to the attention of the Senate; he did not indicate the publication, if any, he was representing in his request so that we could judge the size of an audience; and his many previous inquiries that required the considerable expenditure of largely unreimbursed resources resulted in minimal publication with almost no original impact on public awareness of GSA's activities. We remain prepared to work with Mr. Rothman to assist him in any reasonable way, such as restructuring his requests so that we are able to accommodate him with the records he desires at a substantially reduced fee. But we persist in our belief that our actions in this case have been well-reasoned and fair. We hope this has been of assistance to you. Sincerely, Enclosure. RICHARD Q. VAWTER, Estimated costs for various services requested by David Rothman List of all GSA leases (May 4 request). No cost. Disclosed May 6, 1977 at no cost. Estimated costs for various services requested by David Rothman-Continued Provision of lease information on 8 Arlen subsidiaries (April 21 request)_. Provision of lease information on 546 Arlen subsidiaries (April 21 request). Completion of search for "any other dealings between Provision of names of all lessors and payees on GSA Dates of signings and values of all GSA leases (May 4 request) $117. - $286. - $2,196. $250. More than $1,000. SUBPART 105-60.3 AVAILABILITY OF OPINIONS, ORDERS, POLICIES, § 105-60.306 Effect of failure to make informational materials available. Materials available pursuant to § 105–60.302 that effect a member of the public may be relied upon, used, or cited as precedent by GSA against any private party only if (a) they have been indexed and either made available or published as required by 5 U.S.C. 552 (a) (2), or (b) the private party has actual and timely notice of their terms. § 105-60.307 Fees. § 105-60.307-1 Scope of section. This section sets forth policies and procedures to be followed in the assessment and collection of fees from a requester for the search and reproduction of GSA records. § 105-60.307-2 Record material available without charge. Each GSA reading room porvides a rack displaying GSA records available to the public in that region. Normally, material related to bids (excluding construction plans and specifications) and any material displayed on the rack may be obtained without charge upon request. § 105-60.307-3 Copy of GSA records available at a fee. One copy of GSA records not available free of charge will be provided at a fee as provided in § 105-60.307-8. A reasonable number of additional copies will be provided for the applicable fee where reproduction services are not readily obtainable from private commercial sources. § 105-60.307-4 Exemptions from fee. When the Director of Information or Regional Director of Business Affairs handling the request for GSA records determines that at least one of the following conditions exists, he shall waive the fee requirement and provide one copy of the GSA records without charge to the requester: (a) When the incremental cost of collecting the fee would be an unduly large part of or an amount greater than the fee; (b) When the reproduction is for a foreign, state, or local Government or international agency and furnishing it without charge is an appropriate courtesy; or (c) When furnishing the records without charge conforms to generally established business custom, such as furnishing personal reference data to prospective employers of former employees. § 105-60.307-5 Searches. (a) The time spent in the following activities may be computed in determining "search time" subject to applicable fees as provided in § 105-60.307-8: (1) Time spent in trying to locate GSA records which come within the scope of the request; (2) Time spent either in transporting a necessary agency searcher to a place of record storage or in transporting records to the location of a necessary agency searcher (GSA must document in writing the necessity of transporting either the searcher or the records); and (3) Direct costs involving the use of computer time to locate and extract requested records. (b) The time spent in the following activities may not be computed in determining search time subject to applicable fees as provided in § 105-60.307–8: (1) Time spent in examining a requested record for the purpose of determining whether an exemption can and should be asserted; (2) Time spent in deleting exempt mater being withheld from records to be made available; (3) Time spent in monitoring a requester's inspection of agency records made available to him; and (4) Time spent in operating reproduction facilities. [Exhibit 98e] GENERAL SERVICES ADMINISTRATION, Mr. DAVID ROTHMAN, 805 South Pitt Street, Alexandria, Va. DEAR MR. ROTHMAN: This is with reference to your letter of June 17 in which you continue to argue that the General Services Administration should conduct a massive search project on your behalf concerning any business this agency is doing or has done with Arlen Realty and Development Corp. and/or its subsidiaries. Your request for a waiver of fees associated with such a search, and your appeals, have been given thorough and serious consideration at appropriate legal, program, information and management levels of this agency at a considerable expenditure of executive time. As explained to you by Mr. Richard Vawter, our Director of Information, steps suggested by the Senate Governmental Affairs committee have been taken to insulate our new Administrator, Jay Solomon, from any conflict between his duties with GSA and his continuing ownership of stock in Arlen. We remain unconvinced that the public would benefit by the diversion of government personnel from their regularly assigned duties to conduct this massive search for additional areas of possible conflict which you have requested. In his letter to you of June 14, Mr. Vawter listed several alternatives involving various levels of search we would provide and the fees that would be charged. We remain prepared to fulfill your requests upon your prepayment of the estimated fees, even though to conduct the massive search you have requested would be an extremely heavy administrative burden. This letter constitutes GSA's final consideration of your request for a fee waiver. DEAR MR. VAWTER: Thank you for your response to my letter regarding GSA's fee waiver procedures under the Freedom of Information Act. Unfortunately, I remain concerned about some of the procedures and standards outlined in your letter, as well as the manner in which they are applied in particular cases to justify fee waiver denials. The balancing test you mention in paragraph 10 is not required by the Act and may in fact violate the spirit, if not the law itself. The act focuses on |