A MEMORANDUM FOR THE EXECUTIVE DEPARTMENTS AND AGENCIES CONCERNING THE AMENDMENTS TO THE FREEDOM OF INFORMATION ACT (5 U.S.C. 552, SOMETIMES REFERRED TO AS SECTION 3 OR THE PUBLIC INFORMATION SECTION OF THE ADMINISTRATIVE PROCEDURE ACT) EFFECTED BY P.L. 93-502, ENACTED NOVEMBER 21,1974, AND EFFECTIVE FEBRUARY 19, 1975
This Memorandum may be cited as "A.G.'s 1974 FOI Amdts. Mem." The June 1967 Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act is cited herein as "A.G.'s 1967 FOI Mem." (For the form of citation of legislative reports on the 1974 Amendments as used herein, see Appendix III-A, below.)
When the Freedom of Information Act was enacted in 1967, Attorney General Clark issued a memorandum on its application and interpretation for the guidance of all Federal departments and agencies. The 1974 Amendments to the Act represent a less fundamental change from existing practice than did the Act itself; yet in several respects they pose legal and administrative problems of great complexity. For that reason, and because of the high public importance of the program which the Amendments affect, I have thought it appropriate to meet their enactment with guidelines similar to the 1967 memorandum.
Despite the short time available, an extensive consultative process has been followed in the preparation of these guidelines, including the solicitation of advice from those concerned with Freedom of Information matters in many agencies of the Government, and from the professional staffs of the congressional committees responsible for the Amendments. The guidance does not purport to be exhaustive, and I invite further comments from the agencies, and from the public, which may assist in achieving effective administration of the Act.
The President has asked me, in issuing these guidelines, to emphasize on his behalf that it is not only the duty but the mission of every agency to make these Amendments effective in achieving the important purposes for which they were designed. The Department of Justice will continue to regard the encouragement of sound and effective implementation of the Freedom of Information Act as one of its most important responsibilities.
TABLE OF CONTENTS
Part I. Amendments pertaining to the scope and application of the exemptions
A. Changes in exemption 1 (classified national defense and foreign policy records) and the provision concerning in camera inspections
B. Changes in exemption 7 (investigatory law enforcement records)
C. The provision on the availability of "reasonably segregable" portions of a record containing exempt matter
Part II. Amendments pertaining to administration and other matters
A. Fees--Waiver or reduction by agencies
B. Publication of indexes of "(a)(2)" materials
C. Requirement that a request "reasonably describe" the records to which access is sought
D. Disciplining of personnel responsible for arbitrary and capricious withholding
E. Redefinition of "agency"
F. Contents of denial letters
Part III. Appendices.
A. Legislative history chronology and citations.
B. Attorney General's December 11, 1974 "Preliminary Guidance" Memorandum, including attachments thereto (attachment C of the December 11th memorandum is the text of the Freedom of Information Act as amended in 1974).
PART I. AMENDMENTS PERTAINING TO THE SCOPE AND APPLICATION OF THE EXEMPTIONS
I-A. CHANGES IN EXEMPTION 1 (CLASSIFIED NATIONAL DEFENSE AND FOREIGN POLICY RECORDS) AND THE PROVISION CONCERNING IN CAMERA INSPECTIONS
The 1974 Amendments modify the national defense and foreign policy exemption of the Act, 5 U.S.C. 552(b)(1), and add an express provision concerning in camera judicial inspection of records sought to be withheld under any exemption, including exemption 1. The change in exemption 1 primarily affects the procedures and standards applicable to an agency's processing of requests for classified records. The provision concerning in camera judicial inspection affects the manner in which a court may treat classified records which an agency seeks to withhold.
AMENDMENT OF EXEMPTION 1
Exemption 1 of the 1966 Act authorized the withholding of information "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." As amended, exemption 1 will permit the withholding of matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." The previous language established a standard which essentially was met whenever a record was marked "Top Secret," "Secret," or "Confidential" pursuant to authority in an Executive order such as No. 10501 or its successor, No. 11652. The more detailed standard of the amended exemption limits its applicability to information which, as noted in the Conference Report, "is 'in fact, properly classified' pursuant to both procedural and substantive criteria contained in such Executive order." (Conf. Rept. p. 12.)
Consequently, a Freedom of Information request which encompasses classified records will require, at both the initial and appellate stages, an administrative determination that the records warrant continued classification under the criteria of Executive Order 11652 or any subsequent Executive order governing the protection of national security information. This determination must be based upon substantive classification review of the records, regardless of their age. The records should also be reviewed for conformity with the procedural requirements of the Order, any irregularities should be corrected.
When it is not possible to make the necessary determination within the time limits established by 1974 Amendments, because of the volume, the complexity, or the inaccessibility of the records encompassed by the request, it will frequently be desirable to negotiate a time arrangement for processing the request mutually acceptable to the requester and the agency. (See Appendix III-B for discussion of time limits.) If in such circumstances a requester is unwilling to enter into an arrangement of this nature, an agency will be compelled to rely upon the original classification marking until classification review can be accomplished. Such review must proceed as rapidly as possible.
The primary substantive criteria presently incorporated by the amended exemption appear to be section 1, 4(C) and 5(A), (B), (C), (D), and (E) of Executive Order 11652. The remaining provisions of the Executive Order constitute the procedural criteria. The mandatory review provisions of the Order are not directly affected by the amendment to exemption 1 and should continue to be applied when a member of the public specifically requests classification review under those provisions. However, absent such specific request, the provisions of the Freedom of Information Act, rather than the mandatory review provisions of the Executive Order, will govern the processing of the request.
Under Executive Order 11652, information originally classified by an agency ordinarily can be declassified only by the same agency. There is nothing in the amendments or their legislative history which displays any intent that this disposition be reversed--resulting in a requirement that HEW, for example, make the decision as to whether a document classified by the State Department is "properly" classified. To the contrary, the legislative history recognizes the primacy in this area of those agencies "responsible" for national defense and foreign policy matters. (Conf. Rept. p. 12.) In order to reserve the decision to the classifying agency, it is necessary to consider documentary material contained in one agency's files which has been classified by another agency as being an "agency record" of the latter rather than the former. This seems a permissible construction, since the phrase is nowhere defined and it is unrealistic to regard classified documentary material as "belonging" to one agency for the purposes here relevant when primary control over dissemination of its contents, even within the Government, rests with another agency. Thus, when records requested from one agency contain documentary material classified by another agency it would appear appropriate to refer those portions of the request to the originating agency for determination (as to all matters) under the Act. When such referral is made, the agency to which the request was directed retains its obligation to comply with the Act as to those portions of the request which have not been referred; and the agency receiving the referral has that obligation with respect to the remainder. For purposes of the time limits of the Act, it is consistent with the foregoing analysis to consider the date of receipt of referred portions of a request to be the date on which they are received by the agency to which they are referred (or the date on which they would have been so received, with the exercise of due diligence by the referring agency). Every effort should be made, however, to comply with the limits computed from the date of receipt by the referring agency; and referred requests should be accorded priority.
When requested records contain information classified by the agency receiving the request, but as to which one or more other agencies have a subject matter interest, the agency receiving the request must process and act upon it without referral. Any interagency consultation required by the Executive Order or otherwise desired must be completed within the time limits established by the Act.(1) Agencies consulted in such circumstances must provide guidance to the primary agency as rapidly as possible in view of the time constraints.
IN CAMERA INSPECTION WITH RESPECT TO EXEMPTION 1
The terms of the amended Act authorize a court to examine classified records in camera to determine the propriety of the withholding under the new substantive standards of the exemption. The Conference Report makes clear, however, that "in camera examination need not be automatic" and that before a court orders in camera inspection "the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure." (Conf. Rept. p. 9.) The Conference Report, also emphasizes congressional recognition that:
"[T]he Executive departments responsible for national defense and foreign policy matters have unique insight into what adverse effects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that federal courts, in making de novo determinations in section 552 (b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." (p. 12)
A recent Court of Appeals decision--not involving a Freedom of Information Act request, but taking account of the amendment of exemption 1 and the new provision for in camera inspection--comports with this legislative view. It affirms the need for judicial restraint in the field of national security information and the appropriateness of judicial deference to classification decisions made, and reviewed administratively in accordance with the provisions of Executive Order 11652, particularly decisions reflecting the expertise and independent judgment of the interagency review body established under that Order.(2)
In his veto of the 1974 Amendments, accompanied by suggestions for acceptable revisions, the President had expressed concern that the Amendments posed serious problems, including a problem of constitutional dimensions, to the extent that they authorized a court to overturn an Executive classification decision which had a reasonable basis. To avoid this difficulty, the President proposed:
"that where classified documents are requested, the courts could review the classification, but would have to uphold the classification if there is a reasonable basis to support it. In determining the reasonableness of the classification, the courts would consider all attendant evidence prior to resorting to an in camera examination of the document." Veto Message, 10 Weekly Compilation of Presidential Documents 1318 (1974).
The language of the bill was not changed, but Congressman Moorhead, House manager of the bill and a conferee for the House, after quoting this portion of the President's veto message, stated: "[I]n the procedural handling of such cases under the Freedom of Information Act, this is exactly the way the courts would conduct their proceedings." (120 Cong. Rec. H 10865 (November 20, 1974).)
In Environmental Protection Agency v. Mink, 410 U.S. 73 (1973), the Supreme Court acknowledged the power of Congress to alter the Court's holding of unreviewability of classification decisions. It expressly recognized, however, that this power was subject "to whatever limitations the Executive privilege may be held to impose upon such congressional ordering." 410 U.S. at 83. The Amendments, in other words, do not affect the responsibility of the President to protect certain Executive branch information to the extent that such responsibility is conferred upon him by the Constitution; and they do not enlarge the power of the courts insofar as that Presidential function is concerned.
I-B. CHANGES IN EXEMPTION 7 (INVESTIGATORY LAW ENFORCEMENT RECORDS)
The 1974 Amendments to the Freedom of Information Act substantially altered the exemption concerning investigatory material compiled for law enforcement purposes. Prior to the amendments, the Act permitted the withholding of "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency."(3) The 1974 Amendments substitute the term "records" for "files," and prescribe that the withholding of such records be based upon one or more of six specified types of harm. The revised exemption now reads:
"(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose 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, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;"
There follows a discussion of the phrase "investigatory records compiled for law enforcement purposes," the six bases for withholding investigatory material, and the implementation of the amended provision.
THE MEANING OF "INVESTIGATORY RECORDS COMPILED FOR LAW ENFORCEMENT PURPOSES"
A series of court decisions had construed the prior provision as exempting any material contained in a file properly designated as an investigatory file compiled for law enforcement purposes.(4) The primary purpose of Senator Hart's amendment to revise exemption 7(5) was to overturn the result of those decisions and to require consideration of the particular document and the need to withhold it. (See, e.g., 120 Cong. Rec. S 9329-30 (May 30, 1974).)
Because of the change from "files" to "records" and the provision concerning reasonably segregable portions of records (see Part I-C, below), the particular documents must ordinarily be examined.(6) The threshold questions are whether the requested material is "investigatory" and whether it was "compiled for law enforcement purposes." These terms were not defined in the original Act and are not defined in the Act as amended.
"Investigatory records" are those which reflect or result from investigative efforts. The latter may include not merely activities in which agencies take the initiative, but also the receipt of complaints or other communications indicating possible violations of the law, where such receipt is part of an overall program to prevent, detect or counteract such violations, or leads to such an effort in the particular case.
Under the original Act, "law enforcement" was construed administratively and by the courts as applying to the enforcement of law not only through criminal prosecutions, but also through civil and regulatory proceedings, so that investigations by agencies with no criminal law enforcement responsibilities were included. The legislative history of the 1974 amendments indicates that no change in this basic concept was contemplated. (See, e.g., Conf. Rept. p. 13.)
"Law enforcement" includes not merely the detection and punishment of law violation, but also its prevention. Thus, lawful national security intelligence investigations are covered by the exemption,(7) as are background security investigations and personnel investigations of applicants for Government jobs under Executive Order 10450. (Cf. Conf. Rept. p. 13.) On the other hand, not every type of governmental information-gathering qualifies. Records of more general information-gathering activities (e.g., reporting forms submitted by a regulated industry or by recipients of Federal grants) developed in order to monitor, generally or in particular cases, the effectiveness of existing programs and to determine whether changes may be appropriate, should not be considered "compiled for law enforcement purposes" except where the purpose for which the records are held and used by the agency becomes substantially violation-oriented, i.e., becomes re-focused on preventing, discovering or applying sanctions against noncompliance with federal statutes or regulations. Records generated for such purposes as determining the need for new regulations or preparing statistical reports are not "for law enforcement purposes."
THE SIX BASES FOR INVOKING EXEMPTION 7
Once it is determined that a request pertains to "investigatory records compiled for law enforcement purposes," the next question is whether release of the material would involve one of the six types of harm specified in clauses (A) through (F) of amended exemption 7. If not, the material must be released despite its character as an investigatory record compiled for law enforcement purposes, and (generally speaking) even when the requester is currently involved in civil or criminal proceedings with the Government. (Of course exemptions other than exemption 7 may be applicable, or restrictions upon disclosure other than those expressly set forth in the Freedom of Information Act--for example, the prohibition against disclosing the transcript of grand jury proceedings, Rule 6 of the Federal Rules of Criminal Procedure.)
The six bases for nondisclosure set forth in 5 U.S.C. 552(b)(7)(A)-(F) may be explained as follows:
(A) INTERFERENCE WITH ENFORCEMENT
Under clause 552(b)(7)(A), nondisclosure is justified to the extent that production of the records would "interfere with enforcement proceedings." This clause is derived, without change, from Senator Hart's amendment.
The term "enforcement proceedings" is not defined, but it seems clear that its scope corresponds generally to that of "law enforcement purposes," covering criminal, civil and administrative proceedings. Moreover, in explaining this clause of his amendment, Senator Hart made clear he considered proceedings to be "interfered with" when investigations preliminary to them are interfered with. He used the term "enforcement procedures" as synonymous with "enforcement proceedings" to describe the over-all coverage of the clause. (120 Cong. Rec. S 9330 (May 30, 1974).) Thus, records of a pending investigation of an applicant for a Government job would be withholdable under clause (A) to the extent that their production would interfere with the investigation.
Normally, clause (A) will apply only to investigatory records relating to law enforcement efforts which are still active or in prospect--sometimes administratively characterized as records in an "open" investigatory file. But this will not always be the case. There may be situations (e.g., a large conspiracy) where, because of the close relationship between the subject of a closed file and the subject of an open file, release of material from the former would interfere with the active proceeding. Also, material within a closed file of one agency may bear directly upon active procecdings of another agency, Federal or State.
The meaning of "interfere" depends upon the particular facts. (120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) One example of interference when litigation is pending or in prospect is harm to the Government's case through the premature release of information not possessed by known or potential adverse parties. Ibid. Regarding investigations, interference would be created by a release which might alert the subject to the existence of the investigation, or which would "in any other way" threaten the ability to conduct the investigation. (120 Cong. Rec. S 9337 (May 30, 1974) (letter of Senator Hart).) The legislative history indicates that, while the 7th exemption as it previously stood was to be narrowed by changing "files" to "records" and specifying six bases for asserting the exemption, these new bases themselves were to be construed in a flexible manner. (See, e.g., 120 Cong. Rec. S 19812 (May 30, 1974) (Senator Hart); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This applies to clause (A) and may properly be considered in determining the meaning of "interfere."
(B) DEPRIVATION OF RIGHT TO FAIR TRIAL OR ADJUDICATION
Clause (B) permits withholding to the extent that production would "deprive a person of a right to a fair trial or an impartial adjudication." This provision also came, without change, from Senator Hart's amendment; no specific explanation of it is contained in the legislative history.
A fundamental difference between clause (A) and clause (B) is that, while the former is intended primarily to protect governmental functions, clause (B) protects the rights of private persons. "Person" is defined in the Administrative Procedure Act (APA), of which the Freedom of Information Act is a part, to include corporations and other organizations as well as individuals. (5 U.S.C. 551(2).) The term "trial" is undefined, but would normally be thought to apply to judicial proceedings, both civil and criminal, in Federal and State courts. "Adjudication" is defined in the APA to mean the procedure by which Federal agencies formulate decisions in all matters except rulemaking (including ratemaking). (5 U.S.C. 551(7); see also 5 U.S.C. 551(4), (6), (9), and (12).) It is unlikely, however, that this definition was intended to apply here, since there is no apparent reason why Federal ratemaking or, for that matter, the most important state administrative proceedings should have been thought undeserving of any protection in contrast to informal and relatively inconsequential determinations that may qualify as Federal "adjudication" technically speaking (e.g., approval or denial of an application for a small "grant for a cultural demonstration trip.) It will be seen elsewhere as well that the drafting of these Amendments apparently does not presume the APA definition of "adjudication". (See Part II-B, pp. 19-20 below.) It would seem best to interpret the word in this clause to refer to structured, relatively formal, quasi-judicial administrative determinations in both State and Federal agencies, in which the decision is rendered upon a consideration of statutorily or administratively defined standards.
Clause (B) would typically be applicable when requested material would cause prejudicial publicity in advance of a criminal trial, or a civil case tried to a jury. The provision is obviously aimed at more than just inflammation of jurors, however, since juries do not sit in administrative proceedings. In some circumstances, the release of damaging and unevaluated information may threaten to distort administrative judgment in pending cases, or release may confer an unfair advantage upon one party to an adversary proceeding.
(C) INVASION OF PRIVACY
Clause (C) exempts law enforcement investigatory records to the extent that their production would "constitute an unwarranted invasion of personal privacy." The comparable provision in Senator Hart's amendment referred to "clearly unwarranted" invasions, but "clearly" was deleted by the Conference Committee.
Except for the omission of "clearly," the language of clause (C) is the same as that contained in the original Act for the sixth exemption, the exemption for personnel, medical and similar files. Thus, in determining the meaning of clause (C), it is appropriate to consider the body of court decisions regarding the latter--bearing in mind, of course, that the deletion of "clearly" renders the Government's burden somewhat lighter under the new provisions. (See, e.g., 120 Cong. Rec. H 10003 (Oct. 7, 1974) (letter of chairman of conferees).) In applying clause (C), it will also be necessary to take account of the Privacy Act of 1974, Public Law 93-579, which takes effect in September 1975.
The phrase "personal privacy" pertains to the privacy interests of individuals. Unlike clause (B), clause (C) does not seem applicable to corporations or other entities. The individuals whose interests are protected by clause (C) clearly include the subject of the investigation and "any [other] person mentioned in the requested file." (120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) In appropriate situations, clause (C) also protects relatives or descendants of such persons.
While neither the legislative history nor the terms of the Act and the 1974 Amendments comprehensively specify what information about an individual may be deemed to involve a privacy interest, cases under the sixth exemption have recognized, for example, that a person's home address can qualify. It is thus clear that the privacy interest does not extend only to types of information that people generally do not make public. Rather, in the present context it must be deemed generally to include information about an individual which he could reasonab]y assert an option to withhold from the public at large because of its intimacy or its possible adverse effects upon himself or his family.
When the facts indicate an invasion of privacy under clause (C), but there is substantial uncertainty whether such invasion is "unwarranted," a balancing process may be in order, in which the agency would consider whether the individual's rights are outweighed by the public's interest in having the material available. (Cf. Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971), and Wine Hobby U.S.A., Inc. v. United States Bureau of Alcohol, Tobacco and Firearms, 502 F.2d 133 (3d Cir.1974) (sixth exemption cases).)
The Conference Report states (p. 13) that "disclosure of information about a person to that person does not constitute an invasion of privacy." It must be noted, however, that records concerning one individual may contain information affecting the privacy interests of others. Of course, when information otherwise exempt under clause (C) is sought by a requester claiming to be the subject of the information, the agency may require appropriate verification of identity.
(D) DISCLOSURE OF CONFIDENTIAL SOURCES OR INFORMATION PROVIDED BY SUCH SOURCES
Clause (D), which was substantially broadened by the Conference Committee, exempts material the production of which would:
disclose 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.
The first part of this provision, concerning the identity of confidential sources, applies to any type of law enforcement investigatory record, civil or criminal. (Conf. Rept. p. 13.) The term "confidential source" refers not only to paid informants but to any person who provides information "under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Ibid. In most circumstances, it would be proper to withhold the name, address and other identifying information regarding a citizen who submits a complaint or report indicating a possible violation of law. Of course, a source can be confidential with respect to some items of information he provides, even if he furnishes other information on an open basis; the test, for purposes of the provision, is whether he was a confidential source with respect to the particular information requested, not whether all connection between him and the agency is entirely unknown.
The second part of clause (D) deals with information provided by a confidential source. Generally speaking, with respect to civil matters, such information may not be treated as exempt on the basis of clause (D), except to the extent that its disclosure would reveal the identity of the confidential source. However, with respect to criminal investigations conducted by a "criminal law enforcement authority" and lawful national security intelligence investigations conducted by any agency, any confidential information furnished only by a confidential source is, by that fact alone, exempt. (See, e.g., 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).)
According to the Conference Report (p. 13), "criminal law enforcement authority" is to be narrowly construed and includes the FBI and "similar investigative authorities." It would appear, then, that "criminal law enforcement authority" is limited to agencies--or agency components--whose primary function is the prevention or investigation of violations of criminal statutes (including the Uniform Code of Military Justice), or the apprehension of alleged criminals. There may be situations in which a criminal law enforcement authority, e.g., the FBI or a State authority obtains confidential information from a confidential source in the course of a criminal investigation and then provides a copy to another Federal agency. In the event that a Freedom of Information Act request is directed to the latter agency, nondisclosure based on the second part of clause (D) is proper, regardless of whether the requested agency is itself a "criminal law enforcement authority." What determines the issue is the character of the agency that "compiled" the record.
With respect to that portion of the second part of clause (D) dealing with national security intelligence investigations, the Conference Report states (p. 13) that it applies not only to such investigations conducted by criminal law enforcement authorities but to those conducted by other agencies as well. According to the report, "national security" is to be strictly construed and refers to "military security, national defense, or foreign policy"; and "intelligence" is intended to apply to "positive intelligence-gathering activities, counter-intelligence activities, and background security investigations by [authorized] governmental units * * *." Ibid.
A further qualification contained in this second part of clause (D) is that the confidential information must have been furnished "only by the confidential source." In administering the Act, it is proper to consider this requirement as having been met if, after reasonable review of the records, there is no reason to believe that identical information was received from another source.
(E) DISCLOSURE OF TECHNIQUES AND PROCEDURES
Clause (E), derived without change from Senator Hart's amendment, exempts records to the extent that release would "disclose investigative techniques and procedures."
The legislative history indicates that this exemption does not apply to routine techniques or procedures which are generally known outside the Government. (See, e.g., Conf. Rept. p. 12.) For example, the exemption does not protect the disclosure of such procedures as ballistics tests and fingerprinting, though it would shield new developments or refinements in those procedures. (Of course, the results of such generally known procedures may be exempt on another ground.) Administrative staff manuals and instructions, covered by 5 U.S.C. 552(a)(2), are not generally protected by this clause (Conf. Rept. p. 13), although the exempt status of material otherwise covered by clause (E) is not affected by its inclusion in such a manual or instruction.
(F) ENDANGERING LAW ENFORCEMENT PERSONNEL
Clause (F), which was added by the Conference Committee, exempts material whose disclosure would "endanger the life or physical safety of law enforcement personnel." (See, e.g., 120 Cong. Rec. H 10003-04 (Oct. 7, 1974) (letter of chairmen of conferees).) The legislative record contains little discussion of this provision.
Clause (F) might apply, for example, to information which would reveal the identity of undercover agents, State or Federal, working on such matters as narcotics, organized crime, terrorism, or espionage. It is unclear whether the phrase "law enforcement personnel" means that the endangered individual must be technically an "employee" of a law enforcement organization; arguably it does not. It is clear, however, that the language of clause (F) cannot be stretched to protect the safety of the families of law enforcement personnel or the safety of other persons. Nonetheless, it is safe to proceed on the assumption that Congress did not intend to require the release of any investigatory records which would pose a threat to the life or physical safety of any person; perhaps clause (A) (interference with law enforcement) would be liberally construed to cover a request which involves such a threat.
IMPLEMENTATION OF EXEMPTION 7
The prior discussion deals with the grounds for nondisclosure that are specified in amended section 552(b)(7). Application of these grounds by agency personnel within the available time limits will often present great difficulty, especially when the request pertains to a large file. One means by which the agency might seek to assist its personnel -- and the public -- is the development of guidelines regarding the manner of applying the exemption 7 clauses to standard categories of investigatory records in its files.
The general policy underlying the seventh exemption is maximum public access to requested records, consistent with the legitimate interests of law enforcement agencies and affected persons. (See, e.g., 120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) A central issue which must be faced in every case is the type of showing needed to establish that disclosure "would" lead to one of the consequences enumerated in clauses (A) through (F). The President and some opponents of the bill voiced concern that "would" connoted a degree of certainty which in most cases it would be impossible to establish. (See Weekly Compilation of Presidential Documents 1318 (1974); 120 Cong. Rec. S 19814 (Nov. 21, 1974) (Senator Hruska); 120 Cong. Rec. S 19818 (Nov. 21, 1974) (Senator Thurmond).) The bill's proponents, including the sponsor of the amendment, did not accept the interpretation that would result in such a strict standard. (See, e.g., 120 Cong. Rec. H 10865 (Nov. 20, 1974) (Congressman Moorhead); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This legislative history suggests that denial can be based upon a reasonable possibility, in view of the circumstances, that one of the six enumerated consequences would result from disclosure.
A practical problem which can be predicted is that agency personnel will sometimes be uncertain whether they have sufficient information to make the necessary determination as to the likelihood of one of the six consequences justifying nondisclosure. This raises the question whether it is necessary to go beyond the records themselves and in effect to conduct an independent investigation to determine, for example, what privacy or confidentiality interests are involved. This question cannot be answered in the abstract, for its resolution will depend substantially upon the particular circumstances. Since the six clauses in the exemption are to be interpreted in a flexible manner, see p. 8 above, it should usually be sufficient to rely upon conclusions which -- taking due account of such factors as the age of the records and the character of law violation involved -- can reasonably be drawn from the records themselves.
It is clear that implementation of the amended exemption 7 will frequently involve a substantial administrative burden. It was not, however, the intent or the expectation of the Congress that this burden would be excessive. (See, e.g., 120 Cong. Rec. S 19808 (Nov. 21, 1974) (Senator Kennedy); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) If, therefore, a law enforcement agency (the category of agencies principally affected) regularly finds that its application of these provisions involves an effort so substantial as to interfere with its necessary law enforcement functions, it should carefully re-examine the manner in which it is interpreting or applying them. Needless to say, burden is no excuse for intentionally disregarding, or slighting the requirements of the law, and, where necessary, additional resources should be sought or provided to achieve full compliance.
I-C. THE PROVISION ON THE AVAILABILITY OF "REASONABLY SEGREGABLE" PORTIONS OF A RECORD CONTAINING EXEMPT MATTER
The 1974 Amendments added at the end of section 552(b) the following:
"Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection [i.e., exempt under one of the nine exemptions listed in subsection (b)]."
This new sentence should be read in conjunction with the new in camera review provision of section 552(a)(4)(B) which states:
"In such a case [i.e., where a requester under the Act sues to enjoin an agency from withholding agency records] the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action." (Emphasis supplied.)
The legislative history of these two related provisions indicates that Congress intended to codify a deletion principle, already applied in numerous instances by courts and agencies, so as to prevent the withholding of entire records or files merely because portions of them are exempt, and to require the release of nonexempt portions. (H. Rept. No. 92-1419 on Administration of the Freedom of Information Act, pp. 55, 72 (92d Cong., 2d Sess. 1972); H. Rept. p. 7; S. Rept. pp. 17, 31, 32; 120 Cong. Rec. S. 9313 (May 30, 1974) (Senator Kennedy); and see, e.g., Bristol Myers Co. v. FTC, 424 F.2d 935, 939 (D.C. Cir. 1970); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 425 F.2d 578 (D.C. Cir.1970).)
In order to apply the concept of "reasonably segregable,"(8) agency personnel should begin by identifying for deletion all portions of the requested document which are to be withheld in order to protect the interest covered by the exemption or exemptions involved. The remaining material (assuming it constitutes information that is responsive to the request) must be released if it is at all intelligible -- unintelligibility indicating, of course, that it is not "reasonably" segregable from the balance. There is language in the legislative history of the "reasonably segregable" provision which indicates that even unintelligible matter remaining after the deletion process must be released. (See S. Rept. pp. 31-32.) It does not seem that this sentence, contained in a report on the bill in its earlier stages, should outweigh the plain language of the provision. Conjunctions, prepositions, articles and adverbs are almost always technically "segregable" without disclosing material which must be protected. Unless the qualification "reasonably" means that such unintelligible excerpts need not be provided, it seems meaningless. Of course, doubts about the intelligibility or responsiveness of remaining nonexempt material should be resolved in favor of release to the requester.
PART II. AMENDMENTS PERTAINING TO ADMINISTRATION AND OTHER MATTERS
Note: Part II chiefly discusses subjects referred to but not explored in the Attorney General's Dec. 11, 1974 "Preliminary Guidance" Memorandum on the 1974 Amendments. In general, subjects which were there discussed in detail are not further discussed here. The Dec. 11th Memorandum is attached hereto as Appendix III-B.
II-A. FEES -- WAIVER OR REDUCTION BY AGENCIES
The amended Act provides, at the end of the subparagraph requiring an agency to promulgate a uniform schedule of search and duplication fees (5 U.S.C. 552(a)(4)(A)), that:
"Documents shall be furnished without charge or at a 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 benefiting the general public."
Where an agency perceives a substantial question whether release of requested information can be considered as "primarily benefiting the general public," it should consider exercising its discretion under this provision. What is required is the application of good faith in determining whether public payment should be made for essentially public benefits. In its consideration of the matter, the agency need not employ any particular formalized procedure, and may draw upon both special expertise and general knowledge concerning such matters as the size of the public to be benefited, the significance of the benefit, the private interest of the requester which the release may further, the usefulness of the material to be released, the likelihood that tangible public good will be realized, and other factors which may be pertinent to the appropriateness of public payment. Deliberate, irrational discrimination between one case and the next is of course improper; but neither is it necessary to develop a system of rigid guidelines or inflexible case precedents.
There is no doubt that waiver or reduction of fees is discretionary. The statute provides that it "shall" be done only "where the agency determines that waiver or reduction * * * is in the public interest because furnishing the information can be considered as primarily benefitting the general public." (Emphasis supplied.) The most authoritative expression of legislative history on the point, the Conference Report, refers to the provision as establishing a "discretionary public- interest waiver authority." (Conf. Rept. p. 8.)
II-B. PUBLICATION OF INDEXES OF "(a)(2)" MATERIALS
THE PUBLICATION REQUIREMENT
Prior to the 1974 Amendments, subsection (a)(2) of the Act required each agency to "make available for public inspection and copying" the agency's so-called (a)(2) materials, that is, certain final opinions and orders, certain statements of policy and interpretation, and certain administrative staff manuals and instructions to staff. Subsection (a)(2) also required each agency to "maintain and make available for public inspection and copying a current index providing identifying information for the public" as to such of the agency's (a)(2) materials as were issued, adopted, or promulgated after July 4, 1967. The 1974 Amendments add to this scheme the following:
"Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication."
The requirement to "publish" merely means to reproduce a quantity of the indexes. There are several ways in which such reproduction can be achieved. The Conference Report states that publication by commercial firms will suffice, so long as the indexes thus produced. "are made readily available for public use." (Conf. Rept. p. 7.(9)) The House Report indicates that an index in "brochure form available for distribution would be an appropriate way to meet this [publication] requirement." (H. Rept. p. 5.) The Senate Report states that "photocopy reproduction" of indexes will constitute adequate publication if there is insufficient interest in an agency's indexes to justify printing. (S. Rept. p. 8.(10))
In addition to publication, the new Amendments require agencies to "distribute (by sale or otherwise) copies of each index or supplements thereto." There is no specific indication in the legislative history as to what the word "distribute" means, but since it is followed by the phrase "(by sale or otherwise)," it evidently does not contemplate an active delivery program, but rather the publicized availability of copies on demand. The necessary publicizing of availability can be provided by the Office of the Federal Register, which currently plans to print a list of published indexes at quarterly intervals.
The amendment dispenses with the publication requirement where the agency publishes a finding in the Federal Register that publication of the index would be "unnecessary and impracticable." Publication is "unnecessary" when there is insufficient interest in an agency's indexes to justify mass routine publication. (S. Rept. p. 8.) "Impracticable" is evidently the same as "impractical." (S. Rept. p. 8.) This condition might be met, for example, if the materials to be indexed are so rapidly increasing that any publication with reasonable frequency would still be substantially incomplete. Although these two requirements ("unnecessary and impracticable") are cumulative rather than alternative (see S. Rept. p. 8), they obviously are both highly relative concepts and must be considered in connection with one another. "Practicability" cannot be appraised in the abstract; it reflects a relationship between the actual effort involved and the utility of the product achieved -- one important element of that utility being the need for the product.
It should be noted that the "unnecessary and impracticable" provision is to be applied on an index-by-index basis, so that an agency may fail to publish an index of one category of its (a)(2) documents while publishing indexes of all of the remainder. When an agency makes a determination that this provision is applicable, an order to that effect must be published in the Federal Register. In such cases, despite the absence of publication, the agency must of course continue to maintain the index, make it available for public inspection, and "provide copies * * * on request at a cost not to exceed the direct cost of duplication."(11)
THE INDEXING REQUIREMENT
The indexing requirement, which immediately precedes the publication requirement, reads as follows:
"Each agency shall maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4,1967, and required by this paragraph to be made available or published."
The provision is virtually identical to the public index requirement found in subsection (a)(2) of the Freedom of Information Act as passed in 1966. Since, however, some uncertainty had arisen over what constitutes an adequate (a)(2) index under those provisions, the subject merits consideration here.
While the language of the Act does not define or describe an acceptable index, its intent may reasonably be inferred from its characterization of the contemplated index as one "providing identifying information for the public." The only articulated test for an index contained in the legislative history of the 1974 Amendments is that it be "in a usable and concise form". (H. Rept. p. 5.) The 1965 Senate Report stated that the index requirement was designed to "afford the private citizen the essential information to enable him to deal effectively and knowledgeably with the Federal agencies." (S. Rept.. 813, 89th Cong., 1st Sess." p. 7.) On the other hand, the 1964 Senate Report set forth as a criterion "that any competent practitioner who exercises diligence, may familiarize himself with materials through use of the index." (S. Rept. 1219, 88th Cong., 2d Sess. p. 6.) This suggests that an agency need not convert an index relating to specialized (a)(2) material into such a form that it can be used by the average layman without staff assistance. A reasonable reading of the Act and its history would indicate that the index requirement will be met by any classification system which will substantially enable a member of the public, with specialized assistance where the nature of the subject matter so requires, to isolate desired materials from the mass of agency documents covered by the index.
Both the 1965 Senate and 1966 House reports (S. Rept. 813, 89th Cong., 1st Sess. p. 7; H. Rept. 1497, 89th Cong., 2d Sess. p. 8) cite the sophisticated index-digest system of the Interstate Commerce Commission as a system which satisfies the index requirement. The Senate Report on the 1974 Amendments refers to the equally detailed index of the Federal Communications Commission as an index "already in compliance with this requirement." (S. Rept. p. 8.) Obviously, however, the elaborateness of the index must depend upon the volume and complexity of the materials involved. Any systematic device which helps people identify documents, whether it be a multivolume index-digest or a simple tabulation of subject headings (and of the materials contained under each heading) should fulfill the index requirement; it may be organized by subject headings, by a numbering system, by names of parties, or by any other useful classification device.
THE NATURE OF THE MATERIALS TO WHICH THE INDEXING AND PUBLICATION REQUIREMENTS APPLY
The indexing and publication requirements under discussion apply to materials described in subsection (a)(2) of the Act (so-called "(a)(2) materials") which are as follows:
"(A) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
"(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
"(C) administrative staff manuals and instructions to staff that affect a member of the public."
The primary purpose of subsection (a)(2) was to compel disclosure of what has been called "secret law", or as the 1966 House Report put it, agency materials which have "the force and effect of law in most cases." (H. Rept. 1497, 89th Cong.,2d Sess. p. 7.) Generally speaking, (a)(2) materials consist of those documents which contain what the agency has treated as authoritative indications of its position on legal or policy questions. It should be noted that some recent court decisions point towards a considerable broadening of the class of documents which meet these criteria. (See, e.g., Tax Analysts and Advocates v. I.R.S., 362 F. Supp. 1298 (D.D.C.1973), aff'd without discussion of the (a)(2) issues, No. 73-1978 (D.C. Cir., Aug. 19,1974).)
An agency is not required to make available for public inspection and copying (a)(2) materials which fall within one of the exemptions found in subsection (b); by its terms that subsection applies to the entire "section," i.e., the entire Freedom of Information Act. For the same reason, agencies are not required to maintain or to publish an index of exempt (a)(2) materials. However, the legislative history of the 1974 amendments indicates that agencies cannot fail to disclose or index (a)(2) documents merely because some portions of the documents may be exempt. (S. Rept. p. 32.) Rather than withholding such documents, agencies must delete the exempt portions and then index and make available for public inspection any reasonably segregable remainder.
The balance of this discussion deals with the three subcategories of (a)(2) materials.
(a)(2)(A) final opinions, including concurring and dissenting opinions, as well as orders made in the adjudication of cases
Both the adjective "final" in this provision, and the qualifying phrase "made in the adjudication of cases" should be read to apply to both "opinions" and "orders." The terms "order" and "adjudication" are defined in § 551 (6) and (7) of the Administrative Procedure Act (APA), of which the Freedom of Information Act is a part. If these definitions were unqualifiedly applied to the present provision, they could be read as including within (a)(2)(A) materials many items which could not reasonably have been intended (for example, Park Police traffic tickets, and the millions of ministerial IRS grants of refunds of withheld taxes each year), and there would have to be excluded important matters which must have been meant to be covered (for example, opinions and decisions issued in ratemaking proceedings). These § 551 definitions were, of course, chiefly designed to support the main goals of the original APA, particularly to establish the applicability of certain procedural requirements to certain types of proceedings (5 U.S.C. 554), rather than to delineate with precision the distinction between (a)(2) and (a)(3) records, a distinction which did not exist when the definitions were enacted. Thus, fidelity to the obvious intent of both the original and subsequent draftsmen can be achieved by regarding the phrase "adjudication of cases" to be something different from the word "adjudication" used elsewhere within the APA. The latter term, defined in § 551 (7), is linked by § 551(6) with "matters" rather than "cases." A similar analysis applies to the word "orders" in (a)(2)(A), when modified by the phrase "made in the adjudication of cases." There is thus something less than a perfect equation between (a)(2)(A) and the earlier definitions. Hence, a permissible construction of the provision, and one in accord with its history and purpose, would read it as applying to structured, relatively formal proceedings, in which the agency is functioning in a quasi-judicial capacity, and in which its decision is rendered upon a consideration of statutorily or administratively defined standards.
The (a)(2)(A) requirement of finality is met when the opinion or order is "final" as to the agency, that is, when the agency makes a conclusive determination of a matter. The fact that the agency's determination may be subject to review by another body does not destroy this characteristic.
The courts have indicated that advice and legal conclusions of agency legal staffs are not "orders" or "opinions" within the Freedom of Information Act unless they are incorporated into the final order and administrative decision of the agency or are specifically referred to as the sole basis for its decision. (See International Paper v. F.P.C., 438 F.2d 1349, 1358-9 (2d Cir. 1971); cf. American Mail Line Ltd. v. Gulick, 411 F.2d 696 (D.C. Cir.1969).)
(a)(2)(B) statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register
"Statements of policy" are statements which articulate a settled course of action which will be pursued in a class of matters entrusted to agency discretion. "Interpretations" are explanations or clarifying applications of laws, regulations, or statements of policy. Numerous expressions by agency personnel may fall within the breadth of these terms, but only expressions which are "adopted by the agency" fall within (a)(2)(B). This qualification can only be met by statements and interpretations issued by the head of the agency, or by a responsible official who has been empowered by the agency to make authoritative issuance. There are innumerable instances in which agency personnel at various levels are authorized to respond to citizen inquiries and requests for assistance, or to perform ministerial functions which require statements of pre-existing policy or interpretations. But such authority does not necessarily imply authority to adopt policy or interpretations on behalf of the agency -- and the issue of adoption for purposes of (a)(2)(B) is not the same as the issue of whether the agency may be bound with respect to a particular individual by reason of employee information or advice.
Whether legal memoranda containing interpretations and recommendations of agency counsel fall within (a)(2)(B) depends primarily on whether they have been adopted by the agency. Such memoranda are usually advisory unless some positive adoptive action is taken. Moreover, internal legal advice, opinions, and recommendations -- as long as they occupy only that status and have not been "adopted" -- as ordinarily intra-agency or inter-agency memoranda within exemption 5.
Although the 1966 House Report stated that agencies must make available under (a)(2)(B) only those materials cited or relied upon by the agency as precedent (H. Rept. 1497, 89th Cong., 2d Sess. p. 7), there is judicial authority indicating that whether the agency regards the material as precedential or non-precedential may not be controlling. (See, e.g. Tax Analysts and Advocates v. I.R.S., 362 F. Supp. 1298, 1303 (D.D.C. 1973), aff'd on other issues, No. 73-1978 (D.C. Cir. Aug. 19, 1974).)
(a)(2)(C) administrative staff manuals and instructions to staff that affect a member of the public.
In this provision the adjective "administrative" and the clause "that affect a member of the public" apply to both "manuals" and "instructions". Thus, (a)(2)(C) generally does not include materials which deal with proprietary agency matters. For a brief discussion of the clause "that affect a member of the public" see A.G.'s 1967 FOI Mem. at p. 17.
The 1965 Senate Report explained that the word "administrative" was added to the language of subsection (a)(2)(C) to limit the availability of staff manuals and agency instructions "to those which pertain to administrative matters rather than to law enforcement matters." (S. Rept. 813, 89th Cong., 1st Sess. p. 2.) The purpose of this limitation was of course to prevent disclosure of information or techniques which if known in advance would render effective government action more difficult. Accordingly, despite the legislative history as quoted above, the limitation has been held not to protect all law enforcement material but only that whose disclosure would significantly impede detection or prosecution of law violators. (See, e.g., Hawkes v. I.R.S., 467 F.2d 787 (6th Cir.1972).) Interpretation of the legislative history in this fashion should permit the word "administrative" to exclude manuals and instructions which do not deal with "law enforcement" in the strict sense of being violation-related; but which deal with the performance of functions that would automatically be rendered ineffective by general awareness of agency techniques or procedures. An example would be staff instructions pertaining to negotiating techniques in concluding contracts or international agreements. The courts have understandably been wary of extension of this limitation. In order to preserve the possibility of its use in non- violation-related situations, agencies must scrupulously avoid invoking it except in situations such as those described, when the very function to be performed presumes secrecy as to the manner of its performance.
II-C. REQUIREMENT THAT A REQUEST "REASONABLY DESCRIBE" THE RECORDS TO WHICH ACCESS IS SOUGHT
Prior to the 1974 Amendments, subsection (a)(3) of the Act required each agency to make documents available "on request for identifiable records made in accordance with published rules." The 1974 Amendments revised this to require that the request be one which "reasonably describes such records," rather than one which is for "identifiable records."
As the legislative history points out, this change serves basically to clarify rather than to alter the law as it has been understood by several courts and many agencies. See S. Rept. p. 10. The House Report describes the amendment as
"designed to insure that a requirement for a specific title or file number cannot be the only requirement of an agency for the identification of documents. A description of a requested document would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." H. Rept. pp. 5-6.
The last point deserves some emphasis: It is not enough that the request provide enough data to locate the record; it must enable it to be located in a manner which does not involve an unreasonable amount of effort. This point also finds support in the Senate Report, which cites with approval the decision in Irons v. Schuyler giving judicial expression to the same principle.(12)
When an agency receives a request which does not "reasonably describe" the records sought, it should notify the requester of the defect. In addition it is recommended that, when practicable, the agency offer assistance in reformulation of the request to comply with the Act.
II-D. DISCIPLINING OF PERSONNEL RESPONSIBLE FOR ARBITRARY AND CAPRICIOUS WITHHOLDING
Among the changes in the Act effected by the 1974 Amendments is the addition of the following provision concerning disciplining of agency personnel, 5 U.S.C. 552(a)(4)(F):
"Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Civil Service Commission shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Commission, after investigation and consideration of the evidence submitted, shall submit its findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Commission recommends."
Congress did not expect this provision to be invoked often, but only "in unusual circumstances." (120 Cong. Rec. H 10002 (Oct. 7, 1974) (Congressman Moorhead); see also 120 Cong. Rec. H 10006 (Oct. 7, 1974) (Congressman Erlenborn).) The provision originated in the Senate bill, under which the court was required to take action if it found that the employee's withholding of records was "without reasonable basis in law." The Conference Committee changed this to "arbitrarily and capriciously." (See Conf. Rept. p. 10.) It is thus clear that, to justify commencement of Civil Service Commission proceedings, much more is required than a judicial determination that an agency has erred in its interpretation of the Act.
The procedures to be followed by the Civil Service Commission were discussed by Congressman Moorhead (120 Cong. Rec. H 10001- 02). He stated that they might include a hearing, and would be in accord "with regular civil service procedures." The employee's rights would include "the right to appeal any adverse finding by the Commission." The statute directs the agency in question to "take the corrective action that the Commission recommends," and without further specification leaves the choice of such corrective action to the discretion of the Commission.
The court's findings under § 552(a)(4)(F) relate to "the officer or employee who was primarily responsible for the withholding." Within an agency, responsibility for withholding is coextensive with authority to deny. The agency should therefore fix such authority with absolute clarity in its regulations, both with respect to initial denials and appeals. (On this point, see pp. 13-15 of the December 11, 1974 Preliminary Guidance Memorandum, Appendix III-B, below.)
In addition to the special problems relating to the case of a request for records classified by another agency (see I-A above), occasions will arise in which the protection of information contained in a record held by one agency is of primary concern to another agency. The 1974 Amendments explicitly recognize the existence of such situations by making special provision for agency consultation in such circumstances. (See 5 U.S.C. 552(a)(6)(B)(iii).) When a denial is made at the request of another agency, and out of regard for its primary interest or expertise, the person in the other agency who made the request to deny may be a "person responsible for the denial." (5 U.S.C. 552(a)(6)(C).) However, such a result might be proper only if he is advised by the withholding agency, before his final recommendation to deny is accepted, that he will be so designated in the denial letter, and is in fact so designated.
II-E. REDEFINITION OF "AGENCY"
Prior to the 1974 Amendments, the Freedom of Information Act contained no special definition of "agency", but relied upon the definition in 5 U.S.C. 551, applicable to the Administrative Procedure Act generally. Subesction (e) of the Freedom of Information Act as now amended provides:
"(e) For purposes of this section, the term 'agency' as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency."
There were certain differences between the definitions of "agency" in the House and Senate bills. The Conference Report (pp. 14-15) explains that the conferees followed the House bill, and throws considerable light on the meaning of "agency" in the amended Act, as follows:
"The conferees state that they intend to include within the definition of 'agency' those entities encompassed by 5 U.S.C. 551 and other entities including the United States Postal Service, the Postal Rate Commission, and government corporations or government-controlled corporations, now in existence or which may be created in the future. They do not intend to include corporations which receive appropriated funds but are neither chartered by the Federal Government nor controlled by it, such as the Corporation for Public Broadcasting. Expansion of the definition of 'agency' in this subsection is intended to broaden applicability of the Freedom of Information Act but it is not intended that the term 'agency' be applied to subdivisions, offices or units within an agency.
"With respect to the meaning of the term 'Executive Office of the President' the conferees intend the result reached in Soucie v. David, 448 F.2d 1067 (C.A.D.C. 1971). The term is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President."
It seems clear from the legislative history that the new provision of the Act defining "agency" is intended chiefly to clarify and expand the class of organizational entities to be doomed "agencies" so that their records will be subject to the Act. In fact, however, the issue of what is an "agency" will be confronted only rarely in the context of whether particular records are covered, but will arise more often in determining whether the various requirements of the Act applicable to concededly covered "agency" records must be complied with by a lesser or greater organizational unit within the particular Governmental entity. (See, e.g., subsections (a)(1), (a)(2), (a)(3), (a)(4)(A), (a)(4)(b), (a)(4)(F), (a)(5), (a)(6)(A), (a)(6)(C), (b)(2), (b)(5), (b)(7)(D), and (d).) The amendment apparently did not intend to affect this aspect of the matter(13) and it is left in the same uncertainty that existed under the previous law. 5 U.S.C. 551 specifies that an authority is an agency "whether or not it is within or subject to review by another agency." Soucie v. David, 448 F.2d 1067,1073 (D.C. Cir. 1971), cited with approval in the excerpt from the Conference Report quoted above, states that agency status is "apparently" conferred on "any administrative unit with substantial independent authority in the exercise of specific functions." In other words, particularly in some of the larger Government departments, there may be "agencies" within "agencies."
Despite its theoretical perplexity, this issue has rarely been a source of substantial practical difficulties. The principle which has evolved is that it is for the over-unit -- the higher-level "agency" -- to determine which of its constituent parts will function independently for Freedom of Information Act purposes. It is sometimes permissible to make the determination differently for purposes of various provisions of the Act -- for example, to publish and maintain an index at the over-unit level, while letting the appropriate subunits handle requests for their own records. Giving variable context to the term "agency" in this fashion often furthers the purposes of the Act -- as, in the example just given, by speeding up responses to requests (handled at the lower organizational level)while making the index of documents available at a larger number of "agency" offices or reading rooms (those of the higher organizational unit). As long as the over-unit makes a good-faith disposition of this issue which does not needlessly impede the purposes of the Act, it seems unlikely that its decision will be reversed.
II-F. CONTENTS OF DENIAL LETTERS
Any denial under the amended Act must include:
(a) The reasons for the denial, with appropriate references to the exemptions involved;
(b) The name and title of the person or persons responsible for denying the request (presumably the official who signed the letter unless otherwise indicated); and
(c) A statement to the requester complying with the Act, 5 U.S.C. 552(a)(6 (A), describing his administrative appeal rights.
A letter on administrative appeal that affirms a denial in whole or part must contain a statement to the requester complying with 5 U.S.C. 552(a)(6)(A) describing his judicial review rights. Of course it should also set forth the reasons for affirmance (which may be merely "the reasons stated in the denial" if that is the case) and the name and title of the person responsible for the affirmance.
1. The Amendments do, however, provide that such consultations may constitute "unusual circumstances" for which the time limits may be extended for a maximum of 10 working days.
2. Alfred A. Knopf, Inc. v. Colby, No. 74-1478 (4th Cir. Feb. 7,1975).
3. The exception clause, which was dropped by the 1974 Amendments, applied, for example, to requests under the Jencks Act, 18 U.S.C. 3500. While a subject of occasional confusion in the early days of the Act, this clause merely meant that the exemption was not intended to repeal or foreclose discovery rights of litigants such as those under the Jencks Act. See A.G.'s 1967 FOI Mem. at 38. It can be assumed that the reason the clause was dropped was merely to avoid encumbering the more complex amended exemption with a clause which was unnecessary; its omission thus does not change the law.
4. See, e.g., Weisberg v. U.S. Department of Justice, 489 F.2d 1195 (D.C. Cir. 1973), cert. denied, 416 U.S. 993 (1974).
5. Neither the bill passed by the House nor the bill reported by the Senate Judiciary Committee contained any amendment of exemption 7. Senator Hart's amendment was adopted during the Senate debate, and it was revised during the House-Senate conference.
6. It might be possible to make the necessary exemption 7 determination without such individual examination when, for example, an entire file is known to contain standardized forms all portions of which meet the exemption requirements. Such a situation Is obviously likely to be rare, at least with respect to presently existing files.
7. See 5 U.S.C. 552(b)(7)(D).
8. The concept of "reasonably segregable" should not be confused with the concept of "inextricably intertwined," developed chiefly in connection with the 5th exemption. The latter concept is applied in determining what matter is exempt; the former is applied to compel the release of certain matter already determined to be nonexempt. See, e.g., Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974). Thus, "inextricably intertwined" material is exempt material, whereas it is only nonexempt material that may or may not be "reasonably segregable."
9. The Senate Report cautions 'that where agencies rely on such a commercial service, they will be expected "to maintain the commercial service at the agency offices or reading rooms." (S. Rept. p. 9.)
10. The Senate Report continues: "The cost, if any, of such photocopied indexes should, however, reflect not the actual cost of reproduction but the equivalent per-item cost were the indexes printed in quantity." (S. Rept. p. 8.)
11. But see footnote 10 above.
12. 465 F.2d 608 (D.C. Cir. 1972). The Irons case involved a request for "all unpublished manuscript decisions of the Patent Office." That description alone was enough to enable the documents to be identified -- but only by searching through well over 3,500,000 files built up over more than a century. The court held that the request was not one for identifiable records within the meaning of the Act.
13. See the last sentence of the first paragraph quoted from the Conference Report.
Part III: APPENDICES
III-A: LEGISLATIVE HISTORY CHRONOLOGY AND CITATIONS
1. September 20, 1972 Moorhead Report (House Report No. 92-1419). This report summarized hearings on the "Administration of the Freedom of Information Act" held during 1972.
(*)2. March 5, 1974 House Report No. 93-876 on H.R. 12471. This report includes the text of the bill as it was passed by the House on March 14, 1974.
3. March 14, 1974 House Debate on H.R. 12471. 120 Cong. Rec. pp. H1787-H1803. (All references to page numbers in the Congressional Record are to the page numbering in the daily editions.)
(*)4. May 16, 1974 Senate Report No. 93-854 on S. 2543. This report includes the amendments to the Act which would have been made by S. 2543 as it was reported by the Senate Judiciary Committee.
5. May 30, 1974 Senate Debate on S. 2543, 120 Cong. Rec. pp. S93l0-S9343. This debate includes the text of several floor amendments to S. 2543 which were adopted before that bill was inserted into H.R. 12471 as a substitute for the text of the latter bill and then passed as H.R. 12471.
6. August 20, 1974 President Ford's letter to conferees. Weekly Compilation of Presidential Documents, Vol. 10, No. 34.
(*)7. October 1, 1974 Conference Report (Senate Report No. 93-1200).
8. October 1, 1974 Senate passes conference version, 120 Cong. Rec. pp. S17971-S17972.
9. October 7, 1974 House passes conference version, 120 Cong. Rec. pp. H10001-H10009.
10. October 17, 1974 President Ford's Veto Message. Weekly Compilation of Presidential Documents, Vol. 10, No. 42.
11. November 20, 1974 House Override Debate, 120 Cong. Rec. HI0864-HI0874.
12. November 21, 1974 Senate Override Debate, 120 Cong. Rec. S19806-S19823.
* These legislative reports on the 1974 Amendments to the Freedom of Information Act are cited in the foregoing memorandum as "H. Rept.," "S. Rept.," and "Conf. Rept.," respectively.
III-B: ATTORNEY GENERAL'S DECEMBER 11, 1974 "PRELIMINARY GUIDANCE" MEMORANDUM
Office of the Attorney General
Washington, D.C. 20530
December 11, 1974
MEMORANDUM TO HEADS OF ALL FEDERAL DEPARTMENTS AND AGENCIES
Re: Preliminary Guidance concerning the 1974 Freedom of Information Act Amendments, P.L. 93-502, enacted November 21, 1974.
By action of the Senate on November 21st in overriding the President's veto of the enrolled bill H.R. 12471, several important amendments have been made to the Freedom of Information Act, 5 U.S.C. 552. Most of these will have some effect upon your agency.
The new amendments (hereinafter the "1974 Amendments") will become effective on February 19, 1975. It is essential that every agency take certain actions as soon as possible, as discussed below, in order to be in compliance with the 1974 Amendments when they become effective.
Outline of Discussion
1. Time Limits for Agency Determinations
2. Index Publication
3. Uniform Agency Fees
4. Procedures on Requests for Classified Records
5. Requirements for Annual Report
6. Assignment of Responsibility
7. Substantive Changes
8. Miscellaneous Matters
9. Further Actions
A. Freedom of Information Act prior to 1974 Amendments.
B. 1974 Amendments to the Act (P.L. 93-502).
C. Freedom of Information Act as now amended.
D. Summary of Principal Changes made by 1974 Amendments.
The discussion below is in the nature of advice and assistance rather than a directive. While it is intended to apply generally to all federal agencies (except to the extent an agency may be subject to unique provisions of law, e.g., 39 U.S.C. 410, 412)(**), some recommendations may not fit the circumstances of a particular agency.
1. Time Limits for Agency Determinations. Agencies must amend their regulations to conform to the provisions in the 1974 Amendments which prescribe administrative time limits for processing requests for access to their records. Basically, these provisions call for an initial determination to be made on any such request within 10 working days (usually two weeks) after its receipt. In case of an appeal from an initial denial, a determination on the appeal is to be made by the agency within 20 working days (four weeks) after receipt of the appeal. After any agency determination to comply in whole or part with a request for records, whether made initially or on appeal, the records shall be made available "promptly."
These time limit provisions apply to requests and to appeals that are received by agencies on or after Wednesday, February 19, 1975. Agency regulations under the Act should be revised to reflect these provisions and the revisions should be published in the Federal Register and distributed to all concerned agency personnel before that date. The discussion which follows is chiefly concerned with the impact of the time limits on requests which, for one reason or another, an agency finds difficult to process properly within such periods.
It is important to note that these time limits run from the date of "receipt." The experience of the Justice Department with voluntarily adopted time limits for acting on requests and appeals for our own records has indicated that much time can be lost in mail rooms and elsewhere in routing requests and appeals to those who must act upon them. Such delays can be sharply reduced by explicit and well-conceived instructions to requesters on how to address their requests and their appeals. It is strongly recommended that such instructions be set forth in agency regulations, as well as in any other pertinent agency information and guidance materials that may be prepared. While failure to comply with such reasonable regulations will not necessarily disqualify a request from entitlement to processing under the Act, it will probably defer the date of "receipt" from which the time limitations are computed, to take account of the amount of time reasonably required to forward the request to the specified office or employee.(1) Such regulations designed to facilitate processing must not, of course, be used to protract or delay it.
Agencies should also consider the adoption of devices and the designing of procedures to speed processing of requests. It might be desirable, for example, to specify in agency regulations and guidance that FOIA requests be clearly identified by the requester as such on the envelope and in the letter. Similarly, agency personnel should be required to mark FOIA requests and appeals conspicuously so that they may be given expeditious treatment. Of course, the new time limits also mean that an efficient system of date-stamping for incoming matter is essential.
The 1974 Amendments contain two provisions for extension of the foregoing time limits. One authorizes administrative extensions by giving requesters written notices with prescribed contents in three types of "unusual circumstances" which are specified in the amendments. It is clear that such extensions cannot exceed ten working days in the aggregate, so that only one ten-day extension can be invoked by the agency, either at the initial or the appellate stage. Neither the language of the statute, however, nor the legislative history specifically precludes the taking of more than one extension where the circumstances justify, so long as the ten-day maximum is not exceeded with respect to the entire request. Logic favors the latter interpretation, since the same circumstances which make a particular request difficult to process at the initial stage frequently complicate the appeal as well. Accordingly, we interpret the statute to permit more than one extension, either divided between the initial and appeal stages or within a single stage, so long as the total extended time does not exceed ten working days with respect to a particular request.
Agencies should carefully consider whether they should make some provisions in their regulations concerning (a) who controls the use of the 10-day extension and (b) its allocation to the initial stage, the appeal stage, or partly to one and partly to the other. Such provisions, of course, would only operate in the unusual circumstances specified in the statute. Subject to this condition, it would appear permissible for agency regulations to provide for distribution of the ten days on a case-by-case basis, or by restricting any extension at the initial stage to five days absent special showing (so as to reserve five days for the appeal stage), or in some other manner. Agencies should also be prepared to instruct their staffs on the form, contents, and timeliness of extension notices in the light of statutory requirements.
The second provision for time extension in the 1974 Amendments authorizes a court to allow an agency "additional time to complete its review of the records" if the government can show exceptional circumstances and that the agency is exercising due diligence in responding to the request. In cases where an agency believes that this provision would probably lead to a judicial extension of its time if the agency were to be sued immediately, the agency may in the interest of avoiding unnecessary litigation and exploring fully the scope of a possible administrative grant of access, wish to suggest to the requester the possibility of agreeing with the agency upon a specific extension of time. In preparing its regulations on time limits, an agency should consider (a) who within the agency should give attention to the considerations discussed in this paragraph, and (b) the extent to which communications or agreements with requesters under this paragraph should be recorded for such bearing as they may have on possible litigation.
The legal consequence provided in the 1974 Amendments for an agency's disregard of the prescribed administrative time limits (i.e., the 10 and 20 day limits and any up-to-10 days extension effected by notice to the requester) is that the requester may sue at once, without resort to further administrative remedies. The Act as amended expressly provides that the requester "shall be deemed to have exhausted his administrative remedies" in case the agency fails to comply with applicable time limits. THIS MEANS THAT IF THE 10-DAY TIME LIMIT FOR INITIAL DETERMINATIONS (TOGETHER WITH ANY PERMISSIBLE EXTENSION OF THIS LIMIT AS DISCUSSED ABOVE) IS NOT COMPLIED WITH, THE AGENCY MAY HAVE LOST THE 20 DAYS OR MORE THAT WOULD OTHERWISE HAVE BEEN AVAILABLE TO IT IN THE EVENT OF A TIMELY-ISSUED DENIAL AND AN APPEAL. Thus, every effort should be made to issue an initial determination -- even one with qualifications or conditions(2) -- within the required time. Where it is necessary to find and examine the records before the legality or appropriateness of their release can be assessed, and where, after diligent effort, this has not been achieved within the required period, the requester may be advised in substance that the agency has determined at the present time to deny the request because the records have not yet been found and/or examined; that this determination will be reconsidered as soon as the search and/or examination is complete, which should be within __ days; but that the requester may, if he wishes, immediately file an administrative appeal.
In the event an agency fails to issue a timely determination and is sued, it should nevertheless continue to process the request. To the extent that the request is granted, the suit may become moot; to the extent the request is denied, the government will be able to prepare a defense on the merits.
If an initial denial in whole or part is issued by an agency after suit has been filed, and the requester administratively appeals, the agency should, unless otherwise instructed by its counselor by the court, proceed to process the appeal. Moreover, agencies may wish to consider making provisions for the initiation of an appeal upon their own motions in such circumstances; otherwise, failing an appeal by the requester, the agency may be committed in litigation to a position it does not genuinely support. If suit is filed while an appeal is pending, whether or not the suit is premature, the agency should normally continue to process the appeal.
The time limit provisions of the 1974 Amendments appear to presuppose that agencies will have a basically two-step, rather than a single-step, procedure in their regulations, i.e., that they will provide for an initial determination whether to grant or deny access, followed by an administrative appeal. While there is nothing in the 1974 Amendments which expressly forbids an initial determination that is administratively final, it seems clear that the vast majority of agencies will continue to use some form of two-step procedure, not only because it permits the correction of errors and avoidance of unnecessary litigation but also because, under the 1974 Amendments, it makes available an additional 20 days for agency consideration of the request. Agencies contemplating changes in their regulations from a single-step to a two-step procedure, or changes to a different form of two-step procedure, should note that the 1974 Amendments contemplate an administrative "appeal." This means that the agency official charged with acting on appeals must be different from the official responsible for initial denials.
Some agency regulations now prescribe a period of time, such as 30 days, within which a requester must file an appeal, ordinarily running from the requester's receipt of the denial letter. The 1974 Amendments contemplate that an initial determination to furnish records will be dispatched within the time limits discussed above, and that the records will be furnished either at the same time or "promptly" thereafter. At the time of the initial determination there may be some uncertainty on the part of the requester, or even on the part of the agency, as to the precise extent of the materials being made available and being denied. Accordingly, if an agency's regulations as revised contain a time limit for the filing of an appeal,(3) it is suggested that the period run from receipt of the initial determination (in cases of denials of an entire request), and from receipt of any records being made available pursuant to the initial determination (in cases of partial denials). Such a provision would relate only to the end, not to the beginning, of the period for the requester to file an appeal; it would in no way interfere with the right to file an appeal immediately after any initial determination involving any degree of denial. Such a provision should promote fairness, help reduce premature and unnecessary appeals, and minimize technical questions about the timeliness of appeals.
2. Index Publications. Under subsection (a)(2) of the Act prior to the 1974 Amendments, each agency has been required to "maintain and make available for public inspection and copying a current index providing identifying information for the public" as to the agency's so-called (a)(2) materials, i.e., certain final opinions and orders, statements of policy and interpretation, and administrative staff manuals and instructions. Under the 1974 Amendments, this index will be required to be published promptly at quarterly or more frequent intervals and distributed, unless the agency determines by order published in the Federal Register that such publication would be unnecessary and impractical, in which case copies of the index shall be provided on request at duplication cost. Therefore, on or before February 19, 1975, or "promptly" thereafter, each agency must publish the required index, or must adopt and publish in the Federal Register an order containing the determination referred to above. As indicated in the Conference Report (Senate Report 93-1200 of October 1, 1974 at p. 7) commercial publication may satisfy the publication requirement if the agency makes the publication readily available for public use.
If an agency already publishes or plans to publish indexes to some of its (a)(2) materials in compliance with the above publication requirement, but determines that it is unnecessary and impractical to publish its indexes of the remainder, there is apparently no objection under the 1974 Amendments to using a combination of publication and the statutory alternative just described.
Recent court decisions have left some confusion as to what constitutes (a)(2) materials.(4) If an agency reasonably maintains that certain types of records are not covered, it may of course properly decline to publish them. In case of doubt, it may accompany its publication of the index or its Federal Register statement with the disclaimer that its action is being taken for the convenience of possible users of the materials, and does not constitute a determination that all of them are within subsection (a)(2) of the Act. As to what constitutes an acceptable index, consult the prior Justice Department guidance.(5)
3. Uniform Agency Fees for Search and Duplication. The 1974 Amendments make significant changes in the law pertaining to the fees which an agency may charge for services performed for requesters under the Act. Each agency must "promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to all constituent units of such agency." This means that agencies should, in accordance with 5 U.S.C. 553, publish in the Federal Register a Notice of Proposed Rule Making before January 13, 1975, containing a proposed uniform schedule of fees to become effective on February 19th, 1975; and then, after consideration of public comment, publish the regulations themselves as they will become effective on February 19th.
Since by reason of these procedural requirements, the fee schedule regulations involve more "lead time" than the other regulation changes which the 1974 Amendments make necessary, it may be desirable to handle them separately, under an accelerated timetable. Of course provisions assigning functions and prescribing procedures for administration of the fee schedule need not be contained in the schedule itself, and may be reserved for inclusion in the other Freedom of Information regulations.
In providing for the administration of fee schedules, agencies may wish to consider whether and when they will furnish estimates of fees, and the circumstances in which they will request payment of estimated or incurred fees before the work is done or the materials transmitted. Since requesters will be financially liable for fees after the requested services have been performed, there is a need for some device to protect members of the public from unwittingly incurring obligations which far exceed their expectations. It is of course not possible simply to advise requesters of substantial costs and await their permission to proceed, since this process would consume much of the 10-day reply period. The problem might be met by including a provision in the agency's regulations to the effect that, unless the request specifically states that whatever cost is involved will be acceptable, or acceptable up to a specified limit that covers anticipated costs, a request that is expected to involve assessed fees in excess of $___ will not be deemed to have been received until the requester is advised (promptly on physical receipt of the request) of the anticipated cost and agrees to bear it. There is some question whether such a provision can be effective to toll the statutory time period, but in light of the need to protect the public against large unanticipated expenses, and in light also of the fact that the requester can avoid all delay by specifying in his request that all costs (or costs to a specified limit) will be accepted, our view is that such provisions are likely to be sustained.
A separate problem is the need in some cases for adequate assurance that the requester will pay the fees where they are substantial. Of course, if a substantial public good is accomplished by the request, the agency may under the 1974 Amendments simply waive the fees. But where that provision is not to be applied, means to assure payment should be considered. This might be achieved by a requirement in the regulation that when the anticipated fees exceed $____, a deposit for a certain proportion of the amount must be made within ___ days of the agency's advising the requester.
The kinds of services for which fees may be charged under the 1974 Amendments are limited to search and duplication. Agencies may thus no longer seek reimbursement (a) for time spent in examining the requested records for the purpose of determining whether an exemption can and should be asserted, (b) for time spent in deleting exempt matter being withheld from records to be furnished, or (c) for time spent in monitoring a requester's inspection of agency records made available to him in this manner.
Search services are services of agency personnel -- clerical or, if necessary, of a higher salary level --used in trying to find the records sought by the requester. They include time spent in examining records for the purpose of finding records which are within the scope of the request. They also include services to transport personnel to places of record storage, or records to the location of personnel for the purpose of search, if they can be shown to be reasonably necessary. The legislative history of the 1974 Amendments indicate that, when computerized record systems are involved, "the term 'search' would. . . not be limited to standard record-finding, and in these situations charges would be permitted for services involving the use of computers needed to locate and extract the requested information." Senate Report No. 93-854, May 16, 1974, p. 12.
Search fees are assessable even when no records responsive to the request, or no records not exempt from disclosure, are found. It is recommended, however, that requesters be charged for unsuccessful or unproductive searches only where they have been given fair notice that this may occur. Such notice should be plainly set forth in an agency's regulations. Of course, where the cost of search is small its unproductiveness is persuasive ground for waiver.
Duplication includes costs associated with the paper and other supplies used to prepare duplicates made to comply with the request and the services of personnel used in such preparation.
Where an agency undertakes, either voluntarily or under some other statute, to perform for a requester services which are clearly not required under the Freedom of Information Act, -- e.g., the formal certification of records as true copies, attestation under the seal of the agency, creation of a new list, tabulation or compilation of information, translation of existing records into another language -- the question of fees should be resolved in the light of the federal user charge statute, 31 U.S.C. 483a, and any other applicable law. If for reasons of convenience an agency elects to include charges for such services in the fee schedule required to be promulgated by the 1974 Amendments, it should make clear the authority other than the Freedom of Information Act upon which such charges rest.
The amount of fees is ordinarily to be expressed as a rate per unit of service. The 1974 Amendments contain three general criteria: (a) the fees must provide for recovery of only the "direct costs" of search and duplication services, (b) they must be "reasonable standard" charges, and (c) they must be waived or reduced where the agency determines such action would be in the public interest because furnishing the information "can be considered as primarily benefitting the general public." The reference to "direct costs" should be taken to mean that no agency overhead expenses should be allocated to the services used in conducting a search. This would exclude such items as utilities, training expenses and management costs (except for management personnel directly involved in performing and supervising the particular search). If, for example, air freight or air express is used to transfer records at field offices to the office processing the request in order that the search can be completed and a determination made within applicable time limits, the air haul charge, but probably not the cost of ordering such transportation and processing payment, may be considered to be direct costs.
The requirement for "reasonable standard" charges should be taken to mean that the actual rates to be charged must be stated in dollars and cents or otherwise definitively indicated -- as, for example, by reference to publicly filed tariffs. It precludes special rates based upon negotiation,(6) upon increases in federal personnel pay rates not reflected in an amended schedule, or upon other factors not incorporated in the schedule. There is, however, no requirement that the schedule contain only a single rate for personnel time. Legislative reference to the "direct costs" of search indicates that where there are sharp differences in the salaries of the personnel needed to conduct various types of searches which the agency may conduct, the schedule may set forth separate scales -- e.g., one for clerical time and one for supervisory or professional time. The applicable rates may be determined after considering the pay scales, converted to hourly rates, of the numbers and grades of the personnel who would be assigned to perform the required services. Recognizing that some mix of personnel may be involved, it would seem that reasonable approximations of costs will satisfy the legislative requirement for "reasonable" standard charges.
The remaining legislative factor in the amount of fees is the provision concerning waiver or reduction, noted above. Either the fee schedule or the other agency regulations under the Act as amended should clearly assign the function of determining, both in connection with initial actions and at the appeal stage, whether such waivers or reductions should be made and the amount of any such reduction.
4. Procedures on Requests for Classified Records. Passing for the purposes of this memorandum any constitutional questions, requests for documents that raise questions under exemption 1, as amended, may often require more detailed administrative processing at both the initial and appeal stages than was required under the decision in Environmental Protection Agency v. Mink, 410 U.S. 73 (1973). Such processing will nonetheless be subject to the new statutory time limits. The scope of the problem which this presents is not entirely clear at this time. All agencies which generate or hold substantial amounts of classified documents should immediately begin considering a range of procedures for accommodating to the statutory changes. The Department of Justice solicits the views of affected agencies in this regard and anticipates issuing more detailed guidance for the processing of requests for classified documents under the 1974 Amendments prior to their effective date.
5. Requirements for Annual Report. The 1974 Amendments require each agency to file with the Congress a detailed Annual Report on March 1 of each year, covering administration of the Freedom of Information Act during the prior calendar year. With respect to the report due on March 1, 1975, some of the information called for in the Amendments will not be available, since the Amendments were not in effect during calendar 1974. Agencies should make as complete a Report as possible on the basis of the information at hand. It is not our view that the Congress intended agencies to conduct interviews or detailed historical research to develop information not recorded at the time. Agencies should begin at once to develop procedures for compiling the information which the Annual Reports must contain, and these should be in place no later than January 1, 1975 so that the Report for calendar 1975 will be complete. We recommend that these procedures be designed to accumulate, in addition to other information required, data on the costs of administering the Act.
6. Assignment of Responsibility to Grant and Deny. Agency regulations should leave no uncertainty as to who has the responsibility for acting upon requests under the Act. Responsibility means the duty and the authority to act; an assignment of either the duty or the authority normally carries with it the other, except as regulations may otherwise provide. When an agency employee or official receives a request which exceeds his authority to grant or deny, the requester should be referred to the official or unit which has authority under the agency's regulations.(7)
The employee or official who denies a request is referred to in several places in the 1974 Amendments. Any notification of denial of a request for records must "set forth the names and titles or positions of each person responsible for the denial of such request." § 552(a)(6)(C). The required Annual Report must include "the names and titles or positions of each person responsible for the denial of records requested, . . . and the number of instances of participation for each." § 552(d)(3). The so-called sanctions provision states that when a court makes a written finding as to possible arbitrary or capricious withholding by agency personnel, the Civil Service Commission shall promptly initiate a proceeding to determine "whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding." § 552(a)(4)(F).
The common element in these provisions is the characterization of an agency employee or official as the person "responsible" or "primarily responsible" for a denial. It is therefore incumbent upon an agency to fix such responsibility clearly in its regulations by confining authority to deny, both on initial determinations and on appeals, to specified officials or employees. In view of the time limits discussed above, it would appear impracticable to specify such officials or employees by name, thereby preventing action during their absence; specifications by organizational title should be so drawn as to include both regular incumbents and persons acting in their stead.
It is not necessary that the head of the agency be the official designated to determine all appeals. The reference to an "appeal to the head of the agency" in the provision concerning time limits for initial determinations must be read in conjunction with the three provisions concerning "responsible" officials referred to above, particularly the last two sentences of the sanctions provision.(8) Coupled with the impracticability of running all appeals through Cabinet officers in certain departments, these provisions indicate that the head of an agency may, by regulation, delegate to another high official the function of acting on his behalf with respect to appeals.
Care should be taken to provide safeguards against confusion between the person who is authorized to deny access and the individuals or committees which assist him by providing information, furnishing legal or policy advice, recommending action, or implementing the decision. Care should also be taken to avoid the situation in which the official or employee whose signature appears on a notification of denial as ostensibly the responsible person is in fact acting on the orders of his superior. In such a case, the notification should identify the superior as the responsible person, with the subordinate signing "by direction" or with other appropriate indication of his role.
7. Substantive Changes. The 1974 Amendments include three provisions whose nature is "substantive," in the sense that they affect what records are subject to compulsory disclosure under the Act, rather than how requests for records shall be processed or litigated. These are a revision of the 1st exemption (pertaining to documents classified under an Executive Order for reasons of defense or foreign policy), a revision of the 7th exemption (investigatory law enforcement records), and a provision on the availability of "reasonably segregable" portions of records from which exempt matter has been deleted.
While these three substantive changes, like the rest of the 1974 Amendments, do not become effective until February 19, 1975, it would be parsimonious and ultimately unwise to act before that time as if they were not in prospect. Each agency should take these changes into account to the best of its ability even before they become effective, particularly in its processing of requests and appeals and in assisting in the conduct of litigation. The application of these revisions will be the subject of a subsequent Justice Department memorandum.
8. Miscellaneous Matters. The 1974 Amendments replace the requirement that a request be for "identifiable records" with the requirement that it be one which "reasonably describes such records." § 552(a)(3)(A). Agency regulations which contain provisions that parallel the old "identifiable records" language should be revised accordingly. A broad categorical request may or may not meet the "reasonably describes" standard; an agency receiving such a request may communicate with the requester to clarify it.
The 1974 Amendments require that any adverse initial determination set forth the reasons therefor and a notice of the requester's appeal rights, and that any adverse determination on appeal give notice of the requester's rights of judicial review. § 552(a)(6)(A). Agency regulations should be amended to reflect these new requirements.
In the event of suit under the Act, the government's time to answer is reduced from the 60 days generally available to the government in civil actions to 30 days "unless the court otherwise directs for good cause shown." § 552(a)(4)(C). Upon termination of a suit under the Act in which the requester has "substantially prevailed," the court may assess "reasonable attorneys fees and other litigation costs reasonably incurred." § 552(a)(4)(E). While neither of these changes necessarily calls for a revision of agency regulations, each can have an impact on agency operations: If a judicial extension of the 30-day time period is to be sought, the agency is likely to be called upon to provide information as to the facts and circumstances believed to constitute "good cause"; and if attorney's fees are assessed, they will be normally charged to the agency whose withholding of records was at issue. Needless to say, the attorney's fee provision increases substantially the likelihood that an agency will be sued when it issues a denial having weak or doubtful justification.
Each agency should carefully examine the text of the 1974 Amendments to see if there are impacts upon its own regulations or operations which may not apply to other agencies and which are not discussed herein. It should also be noted that the Amendments include a redefinition of "agency" for purposes of the Act, set forth in the new § 552(e), which extends the Act's coverage to some entities not considered agencies for purposes of other provisions of the Administrative Procedure Act.
As a general policy in cases where difficult problems are encountered as to such matters as the scope of the request, the time to process it, or the fees involved, agencies are encouraged to consider telephoning the requester to seek an informal accommodation, which should ordinarily be promptly confirmed in writing.
9. Further Action. The administrative and reporting requirements of the new Amendments, together with the relatively brief time limits imposed, demand the closest internal coordination of agency efforts, both in designing compliance with the 1974 revisions and in administering the Act after they become effective. To achieve this, agencies should consider establishing, perhaps on a temporary or ad hoc basis, an internal board or committee which would include talent at appropriate levels in the areas of law, public information, program operations, records management, budget and training.
The Justice Department will distribute before the effective date of the 1974 Amendments an interpretive and advisory "Analysis," primarily addressed to the three "substantive" provisions referred to in item 7 above, but perhaps containing further guidance on procedural questions such as those discussed herein. Until that is issued, it would be appreciated if requests from agencies for advice and assistance concerning the Act be kept to a minimum. However, comments on this Preliminary Guidance memorandum are solicited, with a view to making desirable additions and changes.
Wm. B. Saxbe
A. Freedom of Information Act prior to 1974 Amendments.
B. 1974 Amendments to the Act (P.L. 93-502).
C. Freedom of Information Act as now amended.
D. Summary of Principal Changes made by 1974 Amendments.
** These provisions modify the application of the Freedom of Information Act to records of the Postal Service.
1. Where such delay has occurred, it would be desirable to provide for acknowledgment of effective receipt. Such acknowledgment should also be provided where delay is caused in the mails, or by any other means of which the requester is likely unaware.
2. The qualifications or conditions cannot be so extensive as to render the response meaningless because such a response would not constitute the required "determination."
3. The establishment of an explicit time limit is not mandatory. In its absence, a "reasonable time" would presumably be allowed. Such a disposition, however, increases uncertainty and hence litigation.
4. See, e.g., Grumman Aircraft Engineering Corp. v. Renegotiation Board, 482 F.2d 710 (D.C. Cir. 1973), cert. granted upon the government's petition and now pending; Tax Analysts and Advocates v. IRS, 362 F. Supp. 1298 (D.D.C. 1973), affirmed, __ F.2d __ (1974). See also Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, June 1967, at pp. 20-22.
5. Attorney General's Memorandum, supra, at pp. 20-22.
6. This does not preclude a negotiated settlement of a dispute over the fees for a particular request.
7. As a matter of courtesy, if a request is misdirected the agency employee receiving it should himself route it to the proper official under the agency's regulations. The requester should be informed of this action and advised that the time of receipt for processing purposes will be deemed to run from the receipt by the proper official.
8. "The [Civil Service] Commission, after investigation and consideration of the evidence submitted, shall submit its findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Commission recommends." § 552(a)(4)(F).
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