MAPI 7 G-117 The burdensome number of FOIA requests made of some agencies, when combined with the fact that each agency is responsible for its own compliance with the law, reveals the reasons agency practices are so divergent. This memorandum illustrates these differences in approach by several lead agencies through the stages of disclosure, notice, and appeal. Only belatedly has the Justice Department begun to coordinate some of these differences. In fact, the Justice Department may be the key to the problem. Overburdened as the other agencies are, it is the Department of Justice which has to take the appeals to court. As the case law has added to the rights of both requesters and submitters, it has added to and complicated the workload of Justice. Set out in the Appendices are two recent responses by the Justice Department to the Chrysler case which illustrate the changing response of the government to trade secrets and their protection. The prospect for administrative or legislative changes has never looked better. Various amendments to the Federal Trade Commission and Department of Commerce statutes add specialized protection in certain areas. While limited to the specific areas they cover, these changes may trigger requests for specific protection in many other areas. Other legislation which would amend FOIA directly and apply to all agencies may also be considered by Congress; this may be more likely because of the questions in this area left unanswered by the Supreme Court's opinion in the Chrysler case. Since the problems of FOIA have been caused and compounded by all three branches of government, it is important that each of them work toward solutions. Legislative History The 1966 Freedom of Information Act The enactment of FOIA in 1966 was the result of pressure for the amendment of its predecessor, Section 3 of the Administrative Procedure Act (APA). The 1966 legislation was supported in large part by the press and certain elements of the bar. Section 3 was not a public information statute in that its use did not generally result in public access to official records. Among other reasons, it permitted withholding of information where "the public interest" required secrecy, or for "good cause found," with both of these essential determinations confined to the individual agency's discretion. Section 3 was also criticized on the grounds of widely varying interpretations of its application by federal agencies and the resultant diversity of practice. Bills to tighten this section had been introduced in every session of Congress since the APA's adoption in 1946. These proposals--including the final and successful one--were invariably opposed by the affected agencies and, to some extent, by business interests which feared that adoption of the Act would result in the release of business secrets given government in confidence. But Congress' general attitude was reflected in MAPI 8 G-117 its final passage of the 1966 Freedom of Information Act; it was adopted without change by voice vote in the Senate and by a 307-0 roll call vote in the House. President Johnson signed the bill on July 4, 1966; it became effective exactly one year later. The 1966 Act was clearly and emphatically intended to be a "public information" statute. Its legislative history emphasizes the intent of Congress that information collected and maintained by the executive branch should be made more available to the public. There was a recognition, however, that records which cannot be disclosed without impairing rights of privacy or important operations of government must be protected from disclosure. The report of the Senate Committee on the Judiciary describes the attempted balance in these words: At the same time that a broad philosophy of It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure./1 FOIA Amendments But agency implementation of FOIA did not live up to the expectations of Congress. After extensive and critical hearings,/2 the Act was amended in 1974 and again in 1976 to increase disclosure. The 1974 revision, explained later, made significant changes in procedural aspects such as fees, time limits for agency release, court and congressional review, 1/ Senate Committee on the Judiciary, Clarifying and Protecting the Right of the Public to Information, S. Rep. No. 89-813, 89th Cong., 1st Sess. 3 (1965) [hereinafter cited as 1965 Senate Report]. 2/ See, for example, the House Committee on Government Operations, Administration of the Freedom of Information Act, H.R. Rep. No. 92-1419, 92nd Cong., 2d Sess. (1972) (hereinafter cited as 1972 House Report]. ΜΑΡΙ 9 G-117 and definitions of "agency" and identifiable records./1 The 1976 changes concentrated on limiting the type of statutes that qualify under Exemption 3, which allows withholding if a statute (other than FOIA itself) specifically exempts the agency from disclosing the requested information. Hearings have been held every year since then but no further changes in FOIA have occurred. Disclosure Requirements--Subsection (a) Subsection (a)(1)--Publication in the Federal Register This subsection of the Act requires agencies to publish in the Federal Register a variety of materials. Information to be published includes the following categories: (A) ... "[D]escriptions of its central and field (B) "[S]tatement of the general course and method (C) "[R]ules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations. 1/ Joint Committee Print, Freedom of Information Act and Amendments of 1974 (Source Book), 94th Cong., 1st Sess. (1975). 2/ See the Thirteenth Report of the House Committee on Government Operations, A Citizen's Guide on How to Use the Freedom of Information Act and the Privacy Act in Requesting Government Documents, H. R. Rep. No. 95-793, 95th Cong., 1st Sess. (1977) [hereinafter referred to as the Thirteenth House Report]. 3/ 1967 Attorney General's Memorandum, at 9. (D) "[S]ubstantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency." 11 (E) "[E]ach amendment, revision or repeal of the foregoing." Beyond these five affirmative requirements for publication of information in the Federal Register, two other provisions of subsection (a) are worthy of mention. First, this subsection of the statute provides an incentive for publication in the form of this sanction: "Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. Secondly, the Federal Register publication requirement can ". . . with the approval of the Director of the Federal Register" be satisfied by incorporation by reference of ". matter reasonably available to the class of persons affected thereby. Examples of those matters reasonably available are those ". thoroughly analyzed and published in professional or specialized services, such as Commerce Clearing House, West Publications, etc. ."/1 Subsection (a)(2)--Public Availability of Opinions, Orders, Policies, Interpretations, Manuals, and Instructions In addition to those items of information required by the Act to be published in the Federal Register--and subject to the nine general exemptions set out in subsection (b)--the Freedom of Information Act makes certain records publicly available for examination and copying. This "public availability" requirement may be satisfied in the alternative by publishing and offering for sale the records involved. Subsection (a) (2) describes the information required to be made publicly available as follows: (A) "[F]inal opinions, including concurring and dissenting opinions, as well as orders, made in (B) "[T]hose statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." This includes statements which are not of general applicability but upon which the agency may rely as precedent. 1/ Senate Committee on the Judiciary, Clarifying and Protecting the Right of the Public to Information, S. Rep. No. 88-1219, 2d Sess. 4 (1964). 88th Cong., ΜΑΡΙ - 11 G-117 (C) "[A]dministrative staff manuals and instruc- The rationale for this subsection's extended reach is explained by the pertinent House report in this language: In addition to the orders and opinions required As the Federal Government has extended its activi- Final opinions and orders.--By its own terms, subsection (a) (2) (A) does not include every agency "order." It is limited to orders issued as part of the final disposition of an adjudicatory proceeding. However, the Supreme Court has held that the nonreviewable decision of the NLRB General Counsel not to file a complaint in unfair labor practices cases was a final opinion required to be publicly disclosed./5 1/ Fruehauf Corp. v. IRS, 566 F.2d 574 (6th Cir.) on remand from the Supreme Court, 429 U.S. 1085 (1977); Kent Corp. v. NLRB, 530 F.2d 612 (5th Cir.), cert. denied 429 U.S. 920 (1976). 2/ 1967 Attorney General Memorandum, at 19 (citing the 1966 House report mentioned below on tax matters). 3/ Mezines, Stein & Gruff, Administrative Law, vol. II, at 9-47, et seq. (1979). 4/ House Committee on Government Operations, Clarifying and Protecting the Right of the Public to Information, H.R. Rep. No. 89-1497, 89th Cong., 2d Sess. 7 (1966) [hereinafter cited as 1966 House Report]. 5/ NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). |