might lead the requestor to initiate litigation. The effort here is to curtail the abuse of the Freedom of Information Act as an alternative to normal discovery procedure. The costs to the agencies receiving requests of this kind have been substantially higher than those associated with discovery because under FOIA there are no limits of relevancy. The question of law enforcement is a crucial and difficult one for us. We are deeply concerned that the Freedom of Information Act has impeded the proper function of the government as an enforcer of our laws. To remedy this serious problem, we intend to propose several amendments. The first of these will specifically exempt internal manuals and instructions to investigators, inspectors, auditors, or negotiators. Although many courts have found these materials exempt under the Act's existing language, we have had no express resolution or clarification by the Supreme Court. In an effort to safeguard the confidentiality of our sources, we also intend to put some limit on the release of records compiled by criminal law enforcement agencies pertaining to organized crime, terrorism, or foreign counterintelligence and to the release of criminal law enforcement investigative files. We also are considering precluding felons from obtaining records under the Freedom of Information Act. To be sure, these are the most sensitive aspects of our law enforcement operations. This fact makes it essential that inadvertent FOIA release not jeopardize their function. I assure you that we have attempted to tailor and focus our amendments to address this critical objective. This raises the question of foreign intelligence and our need to protect confidential sources there. We are persuaded that the necessity of protection of confidential information and sources and methods is urgent here, as in law enforcement. But we are not persuaded by arguments for sweeping file exemptions that would have virtually exempted intelligence agencies from the Act. Such an approach would produce an amendment that would be vastly overbroad and would stand in stark contrast to the spirit and philosophy of the Act. We have therefore worked hard to arrive at a much narrower document exemption, one that would work to correct the informant perception and other problems, but would not turn into an all-encompassing file exemption. Finally, as the Attorney General has already announced, we hope to legislatively overturn the recent decision by the Supreme Court in the Kissinger case. Although the Court there did not address the question of the propriety of government officials moving personal records from the confines of an agency, we intend to propose some kind of legislation that would permit private individuals to reach such information and records even though they had been removed. That is a brief tour of what has been a very long journey to arrive at this juncture. Obviously, not all of these proposals will meet with unanimous acclaim. We do, however, believe they are both essential and the least restrictive means possible to protect the crucial interest the government has in doing its job effectively and in ensuring that the public's need to know is satisfied. We have rejected various amendments that would have imposed higher costs on the public; amendments that obfuscated the Act's clarity; amendments that worked to restrict unduly access to the Act by certain individuals in our society.for we perceive our responsibility here to embrace our dual job of enforcing the law and safeguarding the civil liberties of our citizens.. : To this end, it is worth noting that the government expends massive resources in processing FOIA requests. The Congressional reformers in 1974 made estimates of the resource burden the Act should impose: For instance, the Senate Judiciary Committee projected $47,000 per year; the House Committee on Government Operations estimated $50,000 in 1974 and $100,000 for each of the succeeding five fiscal Both committees determined that the costs could be years. absorbed by agencies' existing operating budgets. The reality is far different. Although it is extremely difficult to assess the direct and indirect expenses associated with FOIA processing, our Office of Information Law and Policy estimates that in 1978 some $47.8 million was expended government-wide. Even that is probably a gross underestimate, not accounting for such hidden costs as personnel, travel, training and materials as well as those very real efforts, mentioned earlier, to accord FOIA processing high agency priority. There can be no doubt that the federal government takes its FOIA obligations seriously. But more can be done, especially by the Justice Department, to ensure that FOIA is an effective tool for the public. Already, our Office of Information Law and Policy prints FOIA Update, a newsletter designed to inform and to explain. recent law and policy changes, and to provide opportunity for discussion of troublesome issues. Additionally, the Attorney General's role will increase once the amendments I have discussed with you become law. The Freedom of Information Act already contemplates that the Attorney General encourage agency compliance and report annually to Congress efforts undertaken in this regard. To the extent that some amendments may result in non-disclosure of records accessible heretofore, I believe the Department has an obligation to ensure that all information properly disclosable is made available and that all persons affected by the Act can have confidence in its procedures. Government officials must not be dissuaded from forthright decisionmaking for fear of FOIA disclosures; citizens should not be disinclined to respond to government inquiry with candor; business submittors should be assured that they will be heard on questions of confidentiality; and the public should know that the Attorney General will not only encourage agency compliance but will take steps to ensure against agency abuse. : Although there are some who would argue that it is undesirable to force the Attorney General or his designee into a balancing test to determine "public interest," and there are certainly agencies that would oppose aggressive Department of Justice intervention into their determinations regarding non-disclosure, we deem this responsibility to be both congressionally mandated and institutionally essential. The Supreme Court has declared that "Disclosure, not secrecy, is the dominant objective of the Act." I can assure you that the Department of Justice both in its legislative - initiatives and in its enforcement responsibilities committed to that objective. is |