the requester, as will be the case with certain requests 13 C.F.R. 102.6(d)(2) Federal Trade Commission: "The first $100 of search and/or duplication fees are free to the following category of requestors. journalists..." FTC News Release, Department of Defense (Office of Secretary of Defense): ...the record is for the Public Information " News Media.' 32 C.F.R. 286.1, et seq. Environmental Protection Agency: "Reduction or waiver of fees shall be considered (but not necessarily In addition, the following four agencies are listed in a recent Senate Committee report as having indicated on a survey "that fees were normally waived for news media requests": Civil Service Commission, Postal Service, NASA, and Veterans Administration. "Agency Implementation of the 1974 Amendments to the FOI Act," Report on Oversight Hearings by the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, March 1980, at p. 87. However, I have not been able to confirm that these agencies do have such a policy by reference to regulations or rules of the agencies. I hope this information is useful to you and, again, appreciate very much your interest in this subject. If we can supply the Committee with any additional information, please let me know. " 70-427 0 81 - 4 Very truly yours, Peter C. Lovenheim, Esq. Project Director FOI Service Center Senator SASSER. What are the most difficult agencies to deal with with regard to getting Freedom of Information Act information? Mr. LOVENHEIM. The FBI is probably without question the most difficult, partly because of the nature of the information requested and the large number of requests, but also the position the agency takes in making frequent and successful use of the existing statutory exemptions. Mr. LEWIS. I think the Secret Service and CIA are also difficult agencies. Senator SASSER. Gentlemen, and lady, let me ask you this: Would you support General Shenefield's idea or concept that a convicted felon should be denied access to Freedom of Information information? Mr. LEWIS. I think I would have to get some guidance from my committee officers of the society on that question. That has never come up. Senator SASSER. We heard testimony a few months ago before the Permanent Investigations Subcommittee, of which I am a member, from individuals who had cooperated in the effort to stamp out organized crime. These individuals had then been given new identities under the new identity program of the Department of Justice. At least one of these individuals testified that he was very apprehensive that the organized crime elements would find out about his new identity and about his new location through use of the Freedom of Information Act. Do you have any response to that, any reaction to his apprehension? In other words, the fear is not just journalists and not just interested citizens but that organized criminal elements also utilize the Freedom of Information Act. Mr. LEWIS. I was interested in Mr. Shenefield's testimony, in light of the requirement that the Justice Department and every agency faces under section b(1) and b(7) exemptions not to release that kind of information. Under b(7) (D), no Government agency may release information under the act which "discloses the identity of a confidential source, and in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source." Also, the Justice Department may not release information under (F) of section b(7), which endangers the life or physical safety of law enforcement personnel. They may not release information, under subsection (E), which discloses investigative techniques and procedures. If information being released by the Justice Department does as you suggest, the people administering the law are violating the law. It would seem to me that the existing exemptions cover every conceivable problem in releasing sensitive information. Senator SASSER. It would seem to me you make a good case. That exemption does just what you say it does. Mr. LOVENHEIM. I would agree with Mr. Lewis that the problem is a perceptual one on the part of certain sources for the investigative agencies. The solution would be to correct the misperception rather than to further amend the act. Mr. LEWIS. It just gives the impression to some people that the CIA and FBI are really interested in preventing the kind of embarrassing disclosures that have come out through the FOIA. Senator SASSER. Mr. Lewis, you mentioned the Forsham v. Harris case concerning agency records. It is true that once the Government has taken receipt of a contractor's work that the work product is then subject to the Freedom of Information Act. Isn't that true? Mr. LOVENHEIM. That is right, Mr. Chairman. Senator SASSER. If we broaden the definition of agency records to include the Forsham v. Harris situation, my question is, Would we be intruding unjustifiably into the private sector? Mr. LOVENHEIM. If the definition of agency records was expanded to include the problem raised by the Forsham case, all the existing exemptions to the Freedom of Information Act would still apply to protect the personal privacy, trade secrets, confidentiality of the business people involved. What an amendment like that would be saying is where the Government plans a research project, pays for it, uses the results, and continues to have a right of access to the documents under the line of research, then those are public records, just like those sitting in the files within a government building. So I don't think it would necessarily intrude on private enterprise, but it would do much to reassert the public's right to know what types of activities are being contracted out by the Government and the results of those activities. Senator SASSER. Do you find in the course of advising reporters who want to use the Freedom of Information Act that there are different requirements for use of the act, administrative requirements, imposed by different agencies? Mr. LOVENHEIM. The basic methods of making the request of all the agencies are substantially the same. The problems are with the fee schedules; how much is it going to cost to have a professional search for these records in the Energy Department versus the Veterans. Administration, as well as the cost of photocopying. Those are the problems that the reporters come to me about very often, because it is only after they have made the request that they find out it is going to cost them $1,200 to get the records. Then very often they have to go back to square 1 and start over with their investigative process. Senator SASSER. Thank you very much for appearing here this morning and giving us the benefit of your views. It has been very helpful. Mr. LEWIS. Thank you, Mr. Chairman. Senator SASSER. We will take a brief recess at this point. [Brief recess.] Senator SASSER. The subcommittee will come to order. I was delayed, unfortunately, and I apologize to the witness. We had a vote. That is where I have been. Our next witness is Ms. Katherine Meyer, director of the Freedom of Information Clearinghouse. Ms. Meyer. TESTIMONY OF KATHERINE A. MEYER, DIRECTOR, FREEDOM OF INFORMATION CLEARINGHOUSE MS. MEYER. Thank you, Mr. Chairman. I am director of the Freedom of Information Clearinghouse, which was established in 1972 as a part of Ralph Nader's Center for the Study of Responsive Law. In its 8 years of operation, the clearinghouse has assisted the public and the press in the effective use of open Government laws, including the FOIA, and it was instrumental in the drafting of the 1974 amendments to the FOIA which strengthened the public's right of access to Government-held information. Clearinghouse attorneys have also litigated more FOIA cases than any other organization. Since the 1974 amendments, the FOIA has proven to be an invaluable tool in providing the public with the means to participate in and scrutinize the workings of our Government. Although there has been significant improvement in the administration of the act, unfortunately too many Federal agencies have not yet embraced the act's mandate for the fullest possible disclosure of Government records. This recalcitrance is demonstrated by overly broad interpretations of the act's substantive exemptions and by what continue to be much more exasperating for the FOIA user, excessive delays in processing requests, arbitrary denials of fee waiver applications, and unreasonable resistance to settling attorneys' fees claims brought by prevailing FOIA plaintiffs. I am going to summarize some of my remarks with respect to those three procedure problems. With respect to delay, it continues to be the single greatest obstacle to effective use of the act. This is especially true for the news media for which timely access to Government information is absolutely crucial to keeping the public informed on matters of wide public concern. Consequently, although it was hoped that the inclusion of specific statutory time limits in the 1974 amendments for the processing of requests would significantly increase media use of the act, this has not been our experience. In fact, we find it much more fruitful for journalists to rely on inside sources and "leaks" of information than to resort to their statutory right of access to information under the FOIA. This is by no means a problem experienced across the board. While some agencies are conscientious about responding to initial requests and appeals within the 10 and 20 days required by statute and in granting access to nonexempt documents as soon as possible, too many other agencies practice what we see to be a system of discriminatory practices. Unfortunately, it is those agencies with which requesters consistently have problems-the CIA, FBI, Departments of State, Justice and DOE-which are the repositories of information of the greatest public concern. I have attached as an example of this state of affairs a complaint recently filed by the Center for National Security Studies, a project of the Civil Liberties Union, which seeks to enjoin the CIA from continuing its unreasonable delay in what the center believes to be discretionary treatment of the center's FOIA requests. While the Justice Department has suggested that the solution to the delay problem is to amend the time limits to allow agencies to take up to as much as 1 year to respond to requests, such an approach is entirely unjustified and would only serve to weaken agency compliance with the act. The act already amply provides for flexibility in meeting the time limits where the request is for voluminous records or the agency must consult with other offices or agencies in order to respond. Moreover, requesters invariably afford agencies additional time to reach their positions with respect to what will be released in order to avoid the costs of unnecessary litigation. They are also fully aware that the courts are all too willing to countenance a certain amount of delay where the agency has not demonstrated that it is acting in bad faith. In our opinion the answer to the delay problem lies primarily in more efficient organization and use of agency resources and personnel. To begin with, there should be a uniform policy establishing priority processing for FOIA requests. The policy should call for the abandonment of the first in/first out approach currently in use in favor of a policy which gives first priority to requests for information of immediate public concern. For example, requests from the media should ordinarily take precedence over requests from individuals and business entities seeking information for their own personal use. Similarly, limited requests for information should be identified and handled quickly rather than set aside while the agency processes requests for massive pages of docu ments. A substantial amount of search time could be eliminated if the agencies were to improve their recordkeeping and indexing practices. Oftentimes a requester is told that either the request cannot be processed at all of that it will take an indefinite period of time simply because the information cannot be identified in the agency's files on the basis of the description contained in the request. This presents a particular dilemma for historians and researchers who want information concerning a particular subject matter but have no idea how to key their requests to the filing system employed by the agency. The problem can best be dealt with by maintaining a centralized indexing system with extensive cross-referencing so that desired records can easily be pulled. To the extent that delay is genuinely caused by excessive backlogs of requests and understaffed FOIA offices, rather than inefficient administration, we urge the Government to apply more resources to the administration of the FOIA. We strongly disagree with the argument cited by many agency officials in seeking relief from the requirements of the act that the burden of compliance is deleterious to the public interest because it takes agency time and resources away from more important activities. In our opinion there is no more important function of a democratic government than its dedication to an informed citizenry. The answer to the problems of inadequate resources for administering the FOIA is not to cut back on the public's right of access to Government information but, rather, in the first instance to apply the resources appropriated for the task in an efficient manner and then to seek additional appropriations from Congress where needed. |