ployees' agreement or disagreement with the person who is asking for the documents. Much of the problem stems, I think, from the Attorney General's memorandum in 1975 which said, among other things, there is no need for any "particular formalized procedure." there is no need to develop a system of rigid guidelines and flexible case precedents, although it did say deliberate irrational discrimination from one case to the next was of course improper. An agency must only "consider" exercising its discretion to waive fees and only if there is a "substantial question" of public benefit. Then it said there is no doubt that the whole waiver area is "discretionary," a comment for which it cited no legislative history except for a single word from the conference report-which, as has been pointed out to you earlier, conflicts with the words of the statute, saying that fees "shall" be waived. My own examination of the statute's legislative history has led me to conclude that there are specific procedural commands in the statute as well as a great deal of material indicating what Congress meant by its public benefit standard. Procedurally the 1974 conference report says fee waiver determinations are to be made "in regulations." In structure of section 552(a)(4) (a) itself, which deals with fee waivers, the fee waiver provision occurs in a paragraph devoted to agency fee "regulations." Section 552 (a) (2), which compels agencies to disclose secret law requires them to index and make available agency opinions in a case-by-case situation. It seems to me that applies. Finally, section 552(a) (6) (a) requires agencies to provide the reasons. for denying any FOLA requests. I believe that a court, faced with an agency regulation which failed to make policy determinations under the public benefit test and an agency filing system which failed to allow the public or even the agency to figure out what had been done in previous decisions, would overturn the agency regulations. The entire analysis of this will be published in my study. Substantively, the concerns are not merely procedural. Substantively, the notion of granting fee waivers for "public benefit," which is in the statute, was consistently associated in the legislative history, in the administrative conference study of 1971, and indeed in the Independent Offices Appropriations Act and Circular No. A-25 of the Office of Management and Budget-which carried it the IOAA in 1959-with requests from nonprofit groups seeking to affect government policy. This is important because the previous witnesses today suggested that newspapers and scholars are the primary category that most benefited. It seems to me, with a pluralistic approach to democratic participation in the Government, that Congress has recognized in the legislative history that nonprofit groups also deserve to be considered in this situation. In addition, of course, the journalistic purposes and the requests of scholars are throughout the legislative history. Furthermore, the public benefit test and the fee waiver provision can be found to be associated with a description of a "public benefit" test in the attorney fee provision of the statute. The legislative history says that public benefit is to be considered in awarding attorney's fees and explicitly says that "public benefit" is provided by nonprofit groups, newspapers, scholars, and similar categories. You asked earlier whether any suits have been filed to enforce the "shall" language of the act. Several suits have been filed under fee waivers. Most of the court decisions are unpublished and obtainable only from the Department of Justice or by going around to the various courts, primarily the District of Columbia. I have obtained most of those unpublished decisions and have analyzed them as well. I find they are a mixed bag, never quite exploring the full legislative history of the provision. Much more guidance can be found in interpreting this public benefit test from the attorney fee cases, which have consistently identified requests by nonprofit groups, scholars, authors, and so forth, as constituting a public benefit. The Department of Justice itself testified in 1977 in the Senate that there was "some analogy" between cases interpreting attorney's fees and cases that might involve fee waivers. But to my knowledge, in no case has the Department of Justice in the ensuing 3 years actually applied the attorney fee cases to either fee waiver litigation or to its own fee waiver decisions. The law of fee waivers would take a quantum jump if the agencies and courts would apply the attorney fee cases to resolving the issues of congressional intent as to "public benefit" in fee waiver requests. We have previously discussed the fact that the statute says "shall." The agency regulations say "may." Another substantive issue and one of the remaining ones here is that many agencies have denied fee waivers because of the cost. I find this difficult to justify under the legislative history and under the words of the statute. The ninth circuit recently decided a case, Long v. IRS, in 1979, involving a private requester, not a public benefit requester. The Government argued that, because it would cost them $160,000 to comply with this request, to find the documents, they could deny the FOIA request. The ninth circuit ruled that Congress intended that agencies must absorb substantial costs and consequently the Government could not deny documents to a private requester because of cost. Yet they are continually denying documents to the public benefit requesters on that basis. If private requesters can impose substantial costs on the agencies, public benefit requesters would seem to be eligible for the same treatment under the law. A final concern must be expressed with regard to the practice of some agencies in insisting that requesters journey to Washington, D.C., to inspect documents rather than being given a waiver of search and copying fees for such requests. Section 552 (a) (4) (A) states that an agency must "furnish" documents which are requested, in contrast to other provisions of the FOIA where Congress said that documents must be available for "inspection." It seems absurd that a person on the west coast would be told that he or she must buy an airplane ticket to the east coast to look at documents because the agency has decided to stop searching for documents under the FOIA. It seems doubly absurd when the requester is eligible for a fee waiver. We cannot be insensitive to the costs of any Government program, but if economies are to be made they should not be made at the expense of the public's right to know what their Government is doing or has done to affect Government actions-through documents requested by the news media, scholars and authors, and nonprofit groups. The De partment of Justice has done a study contending that the FOIA cost the Government $48 million in 1978. But little of that can be attributed to persons requesting fee waivers. We all know that much of the use of the FOIA is by business and commercial requesteds or other private benefit requesters. Indeed, limited data generated in the course of my study indicate that fee waiver requests account for only 1 or 2 percent of all FOIA requests. If, as the Department of Justice has concluded, only $1.5 million was collected in fees in 1978, it seems clear that most of the subsidy provided in administration of the FOIA has been to requesters other than the public benefit requesters. It also seems unbalanced for agencies to deny fee waivers on the basis of cost when those who have the financial incentive to pay search and copying costs are able to obtain the documents they want, and apparently at a substantial subsidy. I am not at all convinced that the statute must be changed in order to bring about agency practices and regulations which result in consistency and which lead to the granting of fee waivers in the instances in which Congress intended that they be granted. The legal basis for requiring adequate regulations and proper grants of fee waivers already exists in the words of the statute, its legislative history, and some judicial opinions-particularly in the analogous areas of attorney fees. The agencies themselves could recognize their own obligations. The Department of Justice could do a great deal to encourage agency compliance simply by rewriting the fee waiver portion of its 1975 memoranda and by announcing a policy of refusing to defend agencies whose policies contain the procedural and substantive deficiencies outlined above. The Department of Justice has recenly delegated to the U.S. attorneys throughout the Nation the conduct of FOIA litigation. It seems to me this will lead to more diversity rather than more uniformity. It should concern both business with regard to trade secret treatment and others with regard to fee waiver and other issues under the statute. I would suggest that, rather than amending the statute and lacking such reform actions by the Department of Justice or others, one or two carefully prepared test cases could do far more than another attempt by Congress to say again what it said in 1974. Uniform or "model" agency regulations might help bring about fee waiver policies which are more consistent with the statute, particularly if an advisory committee of persons outside the government were involved in drafting them. Such regulations could include a two-tier system for automatic fee waivers, granted ordinary requesters something like 250 free pages and the news media, nonprofit groups, scholars, and authors, and perhaps indigents 2,500 free pages; a strong presumption of fee waivers for the latter types of requesters above the automatic threshold, as well as any other public benefit requesters; perhaps an inspection provision for exceptionally voluminous requests from such requesters-but not if the requester must travel hundreds or thousands of miles-so that such requesters are able to spend the one type of "coin" which they do have, namely volunteer time, while still being subject to some self-discipline; adequate provisions for filing and indexing of fee waiver decisions or at least fee waiver appeal decisions; and clear requirements for explanations in fee waiver decisions of reasons-which should not consist of mere recitations of the statutory standard. The original purpose of the Freedom of Information Act, to prevent governmental institutions from becoming "unresponsive to public needs" and to provide "adequate information to evaluate Federal programs and formulate wise policies," Soucie v. Davis, 448 F.2d 1067, 1080 (D.C. Cir. 1971), cannot be realized until agencies, the Department of Justice, and the courts bring fee waiver policies in line with the statute and congressional intent. I will be glad to answer any questions you might have. Senator SASSER. Thank you, Mr. Bonine. In view of the detailed statement that you have made, we are going to submit our questions to you in writing and ask you to respond to them likewise. Mr. BONINE. I would be glad to. [The prepared statement, with attachments, of Mr. Bonine and responses to written questions from Senator Sasser follow:] TESTIMONY OF JOHN E. BONINE University of Oregon School of Law, U.S. Senate Subcommittee on Intergovernmental Relations Mr. Chairman and members of the Subcommittee: Thank you for inviting me to testify at this oversight hearing on the administration of the Freedom of Information Act (FOIA). My name is John E. Bonine. I am a law professor at the University of Oregon and former associate general counsel at the U.S. Environmental Protection Agency. My testimony today will focus mainly on the fee waiver provision in the FOIA, S 552 (a) (4) (A). The comments will be based primarily on a study of public interest fee waivers which I recently performed for the Administrative Conference of the United States. The study will be published by the Duke Law Journal in April 1981. The fee waiver provision adopted in 1974 states that, although fees may normally be charged by federal agencies for searching for documents and making copies, the agencies are to "waive" or reduce fees when furnishing documents would primarily benefit the "general public." Agencies already had discretionary authority to waive or reduce fees under pre-1974 law, but were using fees to discourage some types of requesters from exercising their rights to obtain documents from the government. Testimony by news reporters, researchers, and nonprofit groups a 1971 study by the Administrative Conference to adopt the new FOIA fee waiver provision. as well as led the Congress |