ATTORNEY GENERAL'S MEMORANDUM
ON THE
1974 AMENDMENTS
TO THE
FREEDOM OF INFORMATION ACT
ON THE
1974 AMENDMENTS
TO THE
FREEDOM OF INFORMATION ACT
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
Citations:
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.)
UNITED STATES DEPARTMENT OF JUSTICE
UNITED STATES DEPARTMENT OF JUSTICE
February 1975
FOREWORD
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.
Attorney General,
February 1975.
TABLE OF CONTENTS
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)
INTRODUCTION
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"
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
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.
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
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.
Introduction
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
Attachments:
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.
Discussion
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.
ATTORNEY GENERAL
Attachments:
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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