whether disclosure of information would primarily benefit the public, not on whether taxpayers would be overburdened further if fees are waived. The law mandates that the benefit of disclosure is the only relevant factor to be considered by an agency in exercising its discretion to waive fees. The "precedential impact" standard outlined in paragraph 13 is incongruous. Clearly, if the fee is waived for release of certain material to one requester that might weigh heavily in a decision to waive fees for another individual requesting the same information. But, it does not follow that a fee waiver would be mandatory for every other request for information about "possible GSA wrongdoing" received by the agency. The Act's standard should be applied to each new request, and a fee waiver decision based on the circumstances of each case. In paragraphs 12 and 14, you indicate that GSA denies a fee waiver if the request is deemed a "fishing expedition" or not "in the public interest." What general criteria have been established to assist your agency in reaching such a conclusion? No such criteria were cited in your letter, nor do you outline a sufficient basis for making that determination in Mr. Rothman's case. Absent any clear criteria, the mere assertion that a request is a fishing expedition is not a proper rationale for denying a fee waiver. It also remains clear to me that the potential conflict of interest of a federal employee is rightfully a question of public interest. Without taking any position in the instant case, I believe that as a matter of general principle, assertions that no conflict exists do not automatically render a request like Mr. Rothman's frivolous. In Rothman's particular case, it appears confusion still exists as to what sort of search GSA conducted prior to Mr. Solomon's confirmation. If GSA conducted an independent search of all the files that might contain information on leases with Arlen and its subsidiaries why hasn't that clearly been indicated? Such a search presumably would have uncovered all the information Mr. Rothman requested. The assertion that Mr. Solomon's subordinates have applied stringent internal conflict of interest regulations to his situation is not a satisfactory substitute for the requested search. You correctly state in your letter that requesters are not obligated under the Act to provide information in support of a fee waiver request. The burden of determining if disclosure would primarily benefit the public rests squarely with the agency. Of course, some information from the requester can greatly aid the agency in its deliberation. Again, using Mr. Rothman's case as an example, it appears that he provided all the information he could under the circumstances. in his April 8 letter, he indicated he represented Soho News. However, the possibility that some of the stories developed as a result of the information sought from GSA might be sold to other publications not identified in the initial request should not affect the free waiver request. Free-lancers frequently don't know at the outset who will carry their story. To require such information, as well as an estimate of the audience to be reached, would preclude many free-lance writers from eligibility for fee waivers by GSA. Similarly, to require a specific indication of purpose and of expected results when a requester does not know what information a search will unearth, is an impossible standards to meet. Finally, I am distressed that GSA considers the number of previous FOIA requests by an individual a relevant factor in determining if a fee waiver is appropriate. Neither the Act itself, nor the legislative history, supports this contention. I must reiterate that the Act provides only one standard for waiving feesWould disclosure primarily benefit the public? The number of previous requests and the amount of fees previously waived should have no bearing on the answer. I hope that GSA's examination of is FOIA regulations will include a careful review of these procedures and criteria that appear to contravene the Act's provisions. An early response would be appreciated. After receiving it my staff would be happy to meet with you to discuss GSA's fee waiver procedures. Sincerely, JAMES ABOUREZK, Chairman, Subcommittee on Administrative [Exhibit 98g] GENERAL SERVICES ADMINISTRATION, Hon. JAMES ABOUREZK, Chairman, Subcommittee on Administrative Practice and Procedure, Washington, D.C. DEAR MR. ABOUREZK: Thank you for your letter of July 7, 1977, responding to our letter of June 14, 1977, and presenting your additional views on the question of the General Services Administration's policy on fee waivers in response to a Freedom of Information requester's statement that a waiver is in the public interest. We fully appreciate your position on the question and respect your sincere conviction in the arguments you have presented. Nevertheless, we remain convinced that the position of GSA in the particular instance before us, i.e., a waiver of all fees associated with a search of all GSA records pertinent to Arlen Realty or its subsidiaries, is correct. We are satisfied that the denial of the waiver in this instance was in the best interest of the public for the reasons stated in our letter of June 14, 1977. We reiterate that the decision to deny the waiver in that instance was not a pro forma action. It was made only after careful and repeated consideration by all elements of GSA responsible for administering the Freedom of Information Act, including the Office of the Deputy Administrator, the Office of Information, and the Office of General Counsel. In making the decision, we relied upon years of experience in Freedom of Information implementation by balancing the potential impact the waiver might have on the requester's ability to pursue his research with the real and potential impact the waiver, and subsequent waivers necessitated by the first, would have on GSA operations. Unless there is evidence to the contrary, we do not believe that the taxpayer should ordinarily incur the costs of subsidizing investigative reporters in their quest to uncover what they perceive to be the possibility of wrongdoing. GSA has never and will never use the free requirement to challenge the intent or avoid the consequences of the Freedom of Information Act. Long before the recent directive of the Attorney General, GSA followed the practice that no records would be withheld, even if subject to exemption, unless there was a compelling purpose to be served by withholding them. Each agency official whose FOI denial comes before the Office of Information on appeal is required to document the harm that will result from the disclosure of the relevant records before an affirmation of that denial will even be considered by the Deputy Administrator. While there is no formal Executive Branch clearinghouse for Freedom of Information compliance, we invite the Subcommittee to inquire of our reputation for openness with appropriate officials at the Department of Justice, the agency which informally has served a clearinghouse function. As noted in our previous letter, we are currently revising our Freedom of Information regulations. In the process, we intend to clarify those sections which pertain to fees and fee waivers. While we do not anticipate that these regulatory changes will alter our position with respect to the present controversy, we would be most pleased to meet with you or members of your staff at any time to discuss these regulations, the present controversy, or any other aspect of GSA's administration of the Freedom of Information Act. Sincerely, RILLA MORAN WOODS, Director, Office of Public Affairs. [Exhibit 99] CORRESPONDENCE ON FITZGIBBON FEE WAIVER CASE DEPARTMENT OF STATE, Washington, D.C., March 16, 1977. Mr. ALAN L. FITZGIBBON, 5225 Pooks Hill Road, Bethesda, Md. DEAR MR. FITZGIBBON: Re Freedom of Information Case No. 640430. I have now reviewed with the Department's legal advisers your request that all fees in the above case be waived, on the grounds of public benefit to ensue from their release. Each request for waiver of fees is evaluated individually by the Department. In general, to qualify for a waiver on the grounds of public interest or benefit, a request should be (a) of no financial benefit, direct or indirect, to the person or organization making it; (b) of major intrinsic or historical; (c) For information not already substantially on the record; (d) of genuine interest to a large section of society, and not primarily to any one special interest group, however prominent; (e) Made available by the requester and/or by the Department to all interested parties; and (f) Not made by a requester, personal or organizational, from whom unpaid fees remain due to the Department for another Freedom of Information Act request. After careful consideration, we have concluded that your request does not meet these criteria-in particular, that we have no evidence of ongoing or broad public interest in the events described in the documents you seek. We therefore believe that a waiver on the grounds of public benefit is not justified. We are, however, prepared to consider any further arguments you wish to bring in support of your claim. We appreciate your bringing to our attention the ruling in Fitzgibbon v. CIA: the Department takes cognizance of the principles involved in that decision, but does not feel bound to apply the results in that case to the instant decision, as we believe that the facts and issues differ. Sincerely, BARBARA ENNIS, Director, Freedom of Information Staff, Bureau of Public Affairs. Re FOIA CASE No. 640430. MS. BARBARA ENNIS, MARK H. LYNCH, ATTORNEY AT LAW, Director, Freedom of Information Staff, Bureau of Public Affairs, Department of State, Washington, D.C. DEAR MS. ENNIS: This is an appeal on behalf of my client, Mr. Alan Fitzgibbon, from your refusal to waive all fees involved in processing State Department records relating to the case of Jesus de Galindez. Mr. Fitzgibbon requested a fee waiver by letter dated January 25, 1977, and your denial letter is dated March 16. As you are aware, the Central Intelligence Agency had refused to waive search and copying fees for documents in its possession relating to the Galindez case, and Mr. Fitzgibbon successfully challenged this refusal in court. Fitzgibbon v. CIA, Civ. No. 76-700 (D.D.C., Jan. 10, 1977). You will note that the time in which to file an appeal from this decision has expired and no appeal has been noticed. Thus this decision is indisputably the law. In his memorandum opinion, Judge Aubrey Robinson held that "furnishing information contained in CIA files regarding the abduction and murder of Jesus de Galindez can be considered as primarily benefiting the general pub lic." Slip Op. at 2. I am astonished and appalled at the arrogance of the Department of State in refusing to abide by an unappealed judgment of a United States District Judge. Your statement-without any explanation-that the "facts and issues differ" between Mr. Fitzgibbon's request to the CIA and his request to the State Department displays a disregard for logic that equals your disregard for the law. Moreover, Judge Robinson's decision makes it clear that in ruling on a request for a fee waiver, the burden is on the agency to demonstrate that furnishing the information cannot be considered as primarily benefitting the general public. Your letter, however, does not even address-let alone carry-this burden. Judge Robinson's finding with respect to the CIA is just as accurate with respect to the State Department: "There has been no showing by the agency here that the Galindez affair was not newsworthy and of public interest at the time it first arose and there has been no showing by the agency that the Galindez affair does not continue to be of interest to the general public, in an historical sense at least." Slip Op. at 2. In the event that you should undertake to establish that the Galindez case is not a matter of public interest and that disclosure of the documents cannot be considered as primarily benefitting the general public, I am enclosing for your consideration the materials which were submitted in Fitzgibbon v. CIA. These include affidavits executed by Mr. Fitzgibbon and four emminent Latin American scholars and a recent request for Galindez documents which was made by a New York Times daily reporter at the direction of his editors. Finally, I wish to emphasize that your letter of March 16 is the most outrageous single example of abuse of a citizen's rights under the FOIA which I have encountered since the Act was amended in 1974. Your disregard and disrespect for the principles of our legal system are staggering. If this case has to be litigated, it would appear to be an appropriate occasion for application of the sanctions provided by 5 U.S.C. § 552(a)(4)(F). Furthermore, I am taking the additional step of bringing this matter to the attention of your superiors and the chairman of the Congressional committees which oversee the FOIA in the hope that some action will be taken to bring about compliance with the FOIA at the Department of State and to discipline the individuals who are responsible for the prevailing lawlessness. Sincerely, Enclosure. Re FOI Request of Alan Fitzgibbon-640430. Mr. MARK H. LYNCH, Attorney at Law, 2000 P Street NW, Washington, D.C. MARK H. LYNCH. DEPARTMENT OF STATE, Washington, D.C., April 11, 1977. DEAR MR. LYNCH: I am writing in further reply to your letter of March 25, 1977, appealing the Department of State's refusal to waive fees in the above case. On consideration, the Department has decided not to press for fees due in this case. We believe that litigation would be against the interests of all concerned. However, the Department rejects the allegations in your letter and maintains that a waiver on grounds of public benefit was properly denied in this case. The Department's criteria were clearly set forth and correctly applied. Sincerely, BARBARA ENNIS, Director, Freedom of Information Staff, Correspondence [Exhibit 100] CORRESPONDENCE IN ANEVOC FEE WAIVER CASE Mr. CHRISTOPHER HODGE, DEPARTMENT OF THE NAVY, BUREAU OF NAVAL PERSONNEL, Washington, D.C., September 23, 1975. Counselor, Military Counseling Committee, New York Monthly Meeting of the Religious Society of Friends, New York, N.Y. DEAR MR. HODGE: This is in reply to your letter of August 22, 1975, to the Washington National Records Center, which was referred to the Chief of Naval Personnel. You have requested copies of the 1948, 1959, and 1969 editions of the Bureau of Naval Personnel Manual with complete copies of changes, without cost to you or your organization, under the provisions of the Freedom of Information Act, as amended (5 U.S.C. section 552). In your letter, you submitted information which you contend establishes entitlement to waiver of applicable search and duplication costs incurred by the Department of the Navy in connection with this request. As you may know, the above-cited statute provides, in part: "Documents shall be furnished without charge or at 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 benefitting the general public." This provision is reflected in the implementing navel directive, Secretary of the Navy Instruction 5720.42B, Subj: Availability to the public of Department of the Navy records (32 C.F.R. section 701.1 et seq., at section 702.40). It has been determined that the records which you requested are available and are releasable in their entirety. However, substantial costs to the Department of the Navy will be involved in complying with your request. It is determined that these costs cannot be waived in this case, because it is considered that the information which you have furnished does not clearly establish an entitlement to such a waiver in accordance with the statute quoted above. Specifically, it is considered that only a few individuals would possibly obtain benefit from the proposed service. You are advised that it is your right to appeal this determination to the designee of the Secretary of the Navy within 120 days of the date of this letter. Such appeal, if made, should be addressed to: Judge Advocate General (Code 14L), Washington, D.C. 20370. The enclosed copy of this letter should be attached, and it is recommended that the letter of appeal and the envelope both bear the notation, "Freedom of Information Act appeal." In the alternative you may obtain the 1969 edition of the Bureau of Naval Personnel Manual from the Superintendent of Documents, United States Printing Office, Washington, D.C. 20402 at a cost of $42.50. The remainder of the requested records, which comprise approximately 15,312 numbered pages, may be obtained by sending this activity your check or money order for $767.30, which is the estimated amount of the applicable duplication fee computed in accordance with title 32, section 701.40, "Code of Federal Regulations." In the event that you appeal in the manner previously indicated, and it is determined that you are entitled to waiver or reduction of the fees, a refund would be paid to you. Sincerely, W. L. MCDONALD, |