Attorney General's Memorandum on the 1974 Amendments to the FOIA


ATTORNEY GENERAL'S MEMORANDUM

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

EDWARD H. LEVI, Attorney General

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.

EDWARD H. LEVI,
Attorney General,
February 1975.


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"


A series of court decisions had construed the prior provision as exempting any material

contained in a file properly designated as an investigatory file compiled for law enforcement

purposes.(4) The primary purpose of Senator Hart's

amendment to revise exemption 7(5) was to

overturn the result of those decisions and to require consideration of the particular document and

the need to withhold it. (See, e.g., 120 Cong. Rec. S 9329-30 (May 30, 1974).)

Because of the change from "files" to "records" and the provision concerning reasonably

segregable portions of records (see Part I-C, below), the particular documents must ordinarily be

examined.(6) The threshold questions are whether the requested material is "investigatory" and

whether it was "compiled for law enforcement purposes." These terms were not defined in the

original Act and are not defined in the Act as amended.

"Investigatory records" are those which reflect or result from investigative efforts. The latter

may include not merely activities in which agencies take the initiative, but also the receipt of

complaints or other communications indicating possible violations of the law, where such receipt

is part of an overall program to prevent, detect or counteract such violations, or leads to such an

effort in the particular case.

Under the original Act, "law enforcement" was construed administratively and by the courts as

applying to the enforcement of law not only through criminal prosecutions, but also through civil

and regulatory proceedings, so that investigations by agencies with no criminal law enforcement

responsibilities were included. The legislative history of the 1974 amendments indicates that no

change in this basic concept was contemplated. (See, e.g., Conf. Rept. p. 13.)

"Law enforcement" includes not merely the detection and punishment of law violation, but also

its prevention. Thus, lawful national security intelligence investigations are covered by the

exemption,(7) as are background security investigations and personnel investigations of applicants

for Government jobs under Executive Order 10450. (Cf. Conf. Rept. p. 13.) On the other hand,

not every type of governmental information-gathering qualifies. Records of more general

information-gathering activities (e.g., reporting forms submitted by a regulated industry or by

recipients of Federal grants) developed in order to monitor, generally or in particular cases, the

effectiveness of existing programs and to determine whether changes may be appropriate, should

not be considered "compiled for law enforcement purposes" except where the purpose for which

the records are held and used by the agency becomes substantially violation-oriented, i.e.,

becomes re-focused on preventing, discovering or applying sanctions against noncompliance

with federal statutes or regulations. Records generated for such purposes as determining the need

for new regulations or preparing statistical reports are not "for law enforcement purposes."

THE SIX BASES FOR INVOKING EXEMPTION 7

Once it is determined that a request pertains to "investigatory records compiled for law

enforcement purposes," the next question is whether release of the material would involve one of

the six types of harm specified in clauses (A) through (F) of amended exemption 7. If not, the

material must be released despite its character as an investigatory record compiled for law

enforcement purposes, and (generally speaking) even when the requester is currently involved in

civil or criminal proceedings with the Government. (Of course exemptions other than exemption

7 may be applicable, or restrictions upon disclosure other than those expressly set forth in the

Freedom of Information Act--for example, the prohibition against disclosing the transcript of

grand jury proceedings, Rule 6 of the Federal Rules of Criminal Procedure.)

The six bases for nondisclosure set forth in 5 U.S.C. 552(b)(7)(A)-(F) may be explained as

follows:

(A) INTERFERENCE WITH ENFORCEMENT

Under clause 552(b)(7)(A), nondisclosure is justified to the extent that production of the records

would "interfere with enforcement proceedings." This clause is derived, without change, from

Senator Hart's amendment.

The term "enforcement proceedings" is not defined, but it seems clear that its scope corresponds

generally to that of "law enforcement purposes," covering criminal, civil and administrative

proceedings. Moreover, in explaining this clause of his amendment, Senator Hart made clear he

considered proceedings to be "interfered with" when investigations preliminary to them are

interfered with. He used the term "enforcement procedures" as synonymous with "enforcement

proceedings" to describe the over-all coverage of the clause. (120 Cong. Rec. S 9330 (May 30,

1974).) Thus, records of a pending investigation of an applicant for a Government job would be

withholdable under clause (A) to the extent that their production would interfere with the

investigation.

Normally, clause (A) will apply only to investigatory records relating to law enforcement efforts

which are still active or in prospect--sometimes administratively characterized as records in an

"open" investigatory file. But this will not always be the case. There may be situations (e.g., a

large conspiracy) where, because of the close relationship between the subject of a closed file

and the subject of an open file, release of material from the former would interfere with the

active proceeding. Also, material within a closed file of one agency may bear directly upon

active procecdings of another agency, Federal or State.

The meaning of "interfere" depends upon the particular facts. (120 Cong. Rec. S 9330 (May 30,

1974) (Senator Hart).) One example of interference when litigation is pending or in prospect is

harm to the Government's case through the premature release of information not possessed by

known or potential adverse parties. Ibid. Regarding investigations, interference would be

created by a release which might alert the subject to the existence of the investigation, or which

would "in any other way" threaten the ability to conduct the investigation. (120 Cong. Rec. S

9337 (May 30, 1974) (letter of Senator Hart).) The legislative history indicates that, while the

7th exemption as it previously stood was to be narrowed by changing "files" to "records" and

specifying six bases for asserting the exemption, these new bases themselves were to be

construed in a flexible manner. (See, e.g., 120 Cong. Rec. S 19812 (May 30, 1974) (Senator

Hart); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This applies to clause (A) and

may properly be considered in determining the meaning of "interfere."

(B) DEPRIVATION OF RIGHT TO FAIR TRIAL OR ADJUDICATION

Clause (B) permits withholding to the extent that production would "deprive a person of a right

to a fair trial or an impartial adjudication." This provision also came, without change, from

Senator Hart's amendment; no specific explanation of it is contained in the legislative history.

A fundamental difference between clause (A) and clause (B) is that, while the former is intended

primarily to protect governmental functions, clause (B) protects the rights of private persons.

"Person" is defined in the Administrative Procedure Act (APA), of which the Freedom of

Information Act is a part, to include corporations and other organizations as well as individuals.

(5 U.S.C. 551(2).) The term "trial" is undefined, but would normally be thought to apply to

judicial proceedings, both civil and criminal, in Federal and State courts. "Adjudication" is

defined in the APA to mean the procedure by which Federal agencies formulate decisions in all

matters except rulemaking (including ratemaking). (5 U.S.C. 551(7); see also 5 U.S.C. 551(4),

(6), (9), and (12).) It is unlikely, however, that this definition was intended to apply here, since

there is no apparent reason why Federal ratemaking or, for that matter, the most important state

administrative proceedings should have been thought undeserving of any protection in contrast

to informal and relatively inconsequential determinations that may qualify as Federal

"adjudication" technically speaking (e.g., approval or denial of an application for a small "grant

for a cultural demonstration trip.) It will be seen elsewhere as well that the drafting of these

Amendments apparently does not presume the APA definition of "adjudication". (See Part II-B,

pp. 19-20 below.) It would seem best to interpret the word in this clause to refer to structured,

relatively formal, quasi-judicial administrative determinations in both State and Federal

agencies, in which the decision is rendered upon a consideration of statutorily or

administratively defined standards.

Clause (B) would typically be applicable when requested material would cause prejudicial

publicity in advance of a criminal trial, or a civil case tried to a jury. The provision is obviously

aimed at more than just inflammation of jurors, however, since juries do not sit in administrative

proceedings. In some circumstances, the release of damaging and unevaluated information may

threaten to distort administrative judgment in pending cases, or release may confer an unfair

advantage upon one party to an adversary proceeding.

(C) INVASION OF PRIVACY

Clause (C) exempts law enforcement investigatory records to the extent that their production

would "constitute an unwarranted invasion of personal privacy." The comparable provision in

Senator Hart's amendment referred to "clearly unwarranted" invasions, but "clearly" was deleted

by the Conference Committee.

Except for the omission of "clearly," the language of clause (C) is the same as that contained in

the original Act for the sixth exemption, the exemption for personnel, medical and similar files.

Thus, in determining the meaning of clause (C), it is appropriate to consider the body of court

decisions regarding the latter--bearing in mind, of course, that the deletion of "clearly" renders

the Government's burden somewhat lighter under the new provisions. (See, e.g., 120 Cong. Rec.

H 10003 (Oct. 7, 1974) (letter of chairman of conferees).) In applying clause (C), it will also be

necessary to take account of the Privacy Act of 1974, Public Law 93-579, which takes effect in

September 1975.

The phrase "personal privacy" pertains to the privacy interests of individuals. Unlike clause (B),

clause (C) does not seem applicable to corporations or other entities. The individuals whose

interests are protected by clause (C) clearly include the subject of the investigation and "any

[other] person mentioned in the requested file." (120 Cong. Rec. S 9330 (May 30, 1974) (Senator

Hart).) In appropriate situations, clause (C) also protects relatives or descendants of such

persons.

While neither the legislative history nor the terms of the Act and the 1974 Amendments

comprehensively specify what information about an individual may be deemed to involve a

privacy interest, cases under the sixth exemption have recognized, for example, that a person's

home address can qualify. It is thus clear that the privacy interest does not extend only to types

of information that people generally do not make public. Rather, in the present context it must

be deemed generally to include information about an individual which he could reasonab]y

assert an option to withhold from the public at large because of its intimacy or its possible

adverse effects upon himself or his family.

When the facts indicate an invasion of privacy under clause (C), but there is substantial

uncertainty whether such invasion is "unwarranted," a balancing process may be in order, in

which the agency would consider whether the individual's rights are outweighed by the public's

interest in having the material available. (Cf. Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971),

and Wine Hobby U.S.A., Inc. v. United States Bureau of Alcohol, Tobacco and Firearms, 502

F.2d 133 (3d Cir.1974) (sixth exemption cases).)

The Conference Report states (p. 13) that "disclosure of information about a person to that

person does not constitute an invasion of privacy." It must be noted, however, that records

concerning one individual may contain information affecting the privacy interests of others. Of

course, when information otherwise exempt under clause (C) is sought by a requester claiming to

be the subject of the information, the agency may require appropriate verification of identity.

(D) DISCLOSURE OF CONFIDENTIAL SOURCES OR INFORMATION PROVIDED BY

SUCH SOURCES

Clause (D), which was substantially broadened by the Conference Committee, exempts material

the production of which would:

disclose the identity of a confidential source and, in the case of a record compiled by a criminal

law enforcement authority in the course of a criminal investigation, or by an agency conducting

a lawful national security intelligence investigation, confidential information furnished only by

the confidential source.

The first part of this provision, concerning the identity of confidential sources, applies to any

type of law enforcement investigatory record, civil or criminal. (Conf. Rept. p. 13.) The term

"confidential source" refers not only to paid informants but to any person who provides

information "under an express assurance of confidentiality or in circumstances from which such

an assurance could be reasonably inferred." Ibid. In most circumstances, it would be proper to

withhold the name, address and other identifying information regarding a citizen who submits a

complaint or report indicating a possible violation of law. Of course, a source can be confidential

with respect to some items of information he provides, even if he furnishes other information on

an open basis; the test, for purposes of the provision, is whether he was a confidential source

with respect to the particular information requested, not whether all connection between him and

the agency is entirely unknown.

The second part of clause (D) deals with information provided by a confidential source.

Generally speaking, with respect to civil matters, such information may not be treated as exempt

on the basis of clause (D), except to the extent that its disclosure would reveal the identity of the

confidential source. However, with respect to criminal investigations conducted by a "criminal

law enforcement authority" and lawful national security intelligence investigations conducted by

any agency, any confidential information furnished only by a confidential source is, by that fact

alone, exempt. (See, e.g., 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).)

According to the Conference Report (p. 13), "criminal law enforcement authority" is to be

narrowly construed and includes the FBI and "similar investigative authorities." It would appear,

then, that "criminal law enforcement authority" is limited to agencies--or agency components--whose primary function is the prevention or investigation of violations of criminal statutes

(including the Uniform Code of Military Justice), or the apprehension of alleged criminals.

There may be situations in which a criminal law enforcement authority, e.g., the FBI or a State

authority obtains confidential information from a confidential source in the course of a criminal

investigation and then provides a copy to another Federal agency. In the event that a Freedom of

Information Act request is directed to the latter agency, nondisclosure based on the second part

of clause (D) is proper, regardless of whether the requested agency is itself a "criminal law

enforcement authority." What determines the issue is the character of the agency that "compiled"

the record.

With respect to that portion of the second part of clause (D) dealing with national security

intelligence investigations, the Conference Report states (p. 13) that it applies not only to such

investigations conducted by criminal law enforcement authorities but to those conducted by

other agencies as well. According to the report, "national security" is to be strictly construed and

refers to "military security, national defense, or foreign policy"; and "intelligence" is intended to

apply to "positive intelligence-gathering activities, counter-intelligence activities, and

background security investigations by [authorized] governmental units * * *." Ibid.

A further qualification contained in this second part of clause (D) is that the confidential

information must have been furnished "only by the confidential source." In administering the

Act, it is proper to consider this requirement as having been met if, after reasonable review of the

records, there is no reason to believe that identical information was received from another

source.

(E) DISCLOSURE OF TECHNIQUES AND PROCEDURES

Clause (E), derived without change from Senator Hart's amendment, exempts records to the

extent that release would "disclose investigative techniques and procedures."

The legislative history indicates that this exemption does not apply to routine techniques or

procedures which are generally known outside the Government. (See, e.g., Conf. Rept. p. 12.)

For example, the exemption does not protect the disclosure of such procedures as ballistics tests

and fingerprinting, though it would shield new developments or refinements in those procedures.

(Of course, the results of such generally known procedures may be exempt on another ground.)

Administrative staff manuals and instructions, covered by 5 U.S.C. 552(a)(2), are not generally

protected by this clause (Conf. Rept. p. 13), although the exempt status of material otherwise

covered by clause (E) is not affected by its inclusion in such a manual or instruction.

(F) ENDANGERING LAW ENFORCEMENT PERSONNEL

Clause (F), which was added by the Conference Committee, exempts material whose disclosure

would "endanger the life or physical safety of law enforcement personnel." (See, e.g., 120 Cong.

Rec. H 10003-04 (Oct. 7, 1974) (letter of chairmen of conferees).) The legislative record

contains little discussion of this provision.

Clause (F) might apply, for example, to information which would reveal the identity of

undercover agents, State or Federal, working on such matters as narcotics, organized crime,

terrorism, or espionage. It is unclear whether the phrase "law enforcement personnel" means that

the endangered individual must be technically an "employee" of a law enforcement organization;

arguably it does not. It is clear, however, that the language of clause (F) cannot be stretched to

protect the safety of the families of law enforcement personnel or the safety of other persons.

Nonetheless, it is safe to proceed on the assumption that Congress did not intend to require the

release of any investigatory records which would pose a threat to the life or physical safety of

any person; perhaps clause (A) (interference with law enforcement) would be liberally construed

to cover a request which involves such a threat.

IMPLEMENTATION OF EXEMPTION 7

The prior discussion deals with the grounds for nondisclosure that are specified in amended

section 552(b)(7). Application of these grounds by agency personnel within the available time

limits will often present great difficulty, especially when the request pertains to a large file. One

means by which the agency might seek to assist its personnel -- and the public -- is the

development of guidelines regarding the manner of applying the exemption 7 clauses to standard

categories of investigatory records in its files.

The general policy underlying the seventh exemption is maximum public access to requested

records, consistent with the legitimate interests of law enforcement agencies and affected

persons. (See, e.g., 120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) A central issue

which must be faced in every case is the type of showing needed to establish that disclosure

"would" lead to one of the consequences enumerated in clauses (A) through (F). The President

and some opponents of the bill voiced concern that "would" connoted a degree of certainty

which in most cases it would be impossible to establish. (See Weekly Compilation of

Presidential Documents 1318 (1974); 120 Cong. Rec. S 19814 (Nov. 21, 1974) (Senator

Hruska); 120 Cong. Rec. S 19818 (Nov. 21, 1974) (Senator Thurmond).) The bill's proponents,

including the sponsor of the amendment, did not accept the interpretation that would result in

such a strict standard. (See, e.g., 120 Cong. Rec. H 10865 (Nov. 20, 1974) (Congressman

Moorhead); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This legislative history

suggests that denial can be based upon a reasonable possibility, in view of the circumstances,

that one of the six enumerated consequences would result from disclosure.

A practical problem which can be predicted is that agency personnel will sometimes be uncertain

whether they have sufficient information to make the necessary determination as to the

likelihood of one of the six consequences justifying nondisclosure. This raises the question

whether it is necessary to go beyond the records themselves and in effect to conduct an

independent investigation to determine, for example, what privacy or confidentiality interests are

involved. This question cannot be answered in the abstract, for its resolution will depend

substantially upon the particular circumstances. Since the six clauses in the exemption are to be

interpreted in a flexible manner, see p. 8 above, it should usually be sufficient to rely upon

conclusions which -- taking due account of such factors as the age of the records and the

character of law violation involved -- can reasonably be drawn from the records themselves.

It is clear that implementation of the amended exemption 7 will frequently involve a substantial

administrative burden. It was not, however, the intent or the expectation of the Congress that this

burden would be excessive. (See, e.g., 120 Cong. Rec. S 19808 (Nov. 21, 1974) (Senator

Kennedy); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) If, therefore, a law

enforcement agency (the category of agencies principally affected) regularly finds that its

application of these provisions involves an effort so substantial as to interfere with its necessary

law enforcement functions, it should carefully re-examine the manner in which it is interpreting

or applying them. Needless to say, burden is no excuse for intentionally disregarding, or

slighting the requirements of the law, and, where necessary, additional resources should be

sought or provided to achieve full compliance.


I-C. THE PROVISION ON THE AVAILABILITY OF "REASONABLY SEGREGABLE"

PORTIONS OF A RECORD CONTAINING EXEMPT MATTER

The 1974 Amendments added at the end of section 552(b) the following:

"Any reasonably segregable portion of a record shall be provided to any person requesting such

record after deletion of the portions which are exempt under this subsection [i.e., exempt under

one of the nine exemptions listed in subsection (b)]."

This new sentence should be read in conjunction with the new in camera review provision of

section 552(a)(4)(B) which states:

"In such a case [i.e., where a requester under the Act sues to enjoin an agency from withholding

agency records] the court shall determine the matter de novo, and may examine the contents of

such agency records in camera to determine whether such records or any part thereof shall be

withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is

on the agency to sustain its action." (Emphasis supplied.)

The legislative history of these two related provisions indicates that Congress intended to codify

a deletion principle, already applied in numerous instances by courts and agencies, so as to

prevent the withholding of entire records or files merely because portions of them are exempt,

and to require the release of nonexempt portions. (H. Rept. No. 92-1419 on Administration of

the Freedom of Information Act, pp. 55, 72 (92d Cong., 2d Sess. 1972); H. Rept. p. 7; S. Rept.

pp. 17, 31, 32; 120 Cong. Rec. S. 9313 (May 30, 1974) (Senator Kennedy); and see, e.g., Bristol

Myers Co. v. FTC, 424 F.2d 935, 939 (D.C. Cir. 1970); Grumman Aircraft Engineering Corp. v.

Renegotiation Board, 425 F.2d 578 (D.C. Cir.1970).)

In order to apply the concept of "reasonably segregable,"(8) agency personnel should begin by

identifying for deletion all portions of the requested document which are to be withheld in order

to protect the interest covered by the exemption or exemptions involved. The remaining material

(assuming it constitutes information that is responsive to the request) must be released if it is at

all intelligible -- unintelligibility indicating, of course, that it is not "reasonably" segregable from

the balance. There is language in the legislative history of the "reasonably segregable" provision

which indicates that even unintelligible matter remaining after the deletion process must be

released. (See S. Rept. pp. 31-32.) It does not seem that this sentence, contained in a report on

the bill in its earlier stages, should outweigh the plain language of the provision. Conjunctions,

prepositions, articles and adverbs are almost always technically "segregable" without disclosing

material which must be protected. Unless the qualification "reasonably" means that such

unintelligible excerpts need not be provided, it seems meaningless. Of course, doubts about the

intelligibility or responsiveness of remaining nonexempt material should be resolved in favor of

release to the requester.


PART II. AMENDMENTS PERTAINING TO ADMINISTRATION AND OTHER

MATTERS

Note: Part II chiefly discusses subjects referred to but not explored in the Attorney General's

Dec. 11, 1974 "Preliminary Guidance" Memorandum on the 1974 Amendments. In general,

subjects which were there discussed in detail are not further discussed here. The Dec. 11th

Memorandum is attached hereto as Appendix III-B.


II-A. FEES -- WAIVER OR REDUCTION BY AGENCIES

The amended Act provides, at the end of the subparagraph requiring an agency to promulgate a

uniform schedule of search and duplication fees (5 U.S.C. 552(a)(4)(A)), that:

"Documents shall be furnished without charge or at a reduced charge where the agency

determines that waiver or reduction of the fee is in the public interest because furnishing the

information can be considered as primarily benefiting the general public."

Where an agency perceives a substantial question whether release of requested information can

be considered as "primarily benefiting the general public," it should consider exercising its

discretion under this provision. What is required is the application of good faith in determining

whether public payment should be made for essentially public benefits. In its consideration of

the matter, the agency need not employ any particular formalized procedure, and may draw upon

both special expertise and general knowledge concerning such matters as the size of the public to

be benefited, the significance of the benefit, the private interest of the requester which the release

may further, the usefulness of the material to be released, the likelihood that tangible public good

will be realized, and other factors which may be pertinent to the appropriateness of public

payment. Deliberate, irrational discrimination between one case and the next is of course

improper; but neither is it necessary to develop a system of rigid guidelines or inflexible case

precedents.

There is no doubt that waiver or reduction of fees is discretionary. The statute provides that it

"shall" be done only "where the agency determines that waiver or reduction * * * is in the public

interest because furnishing the information can be considered as primarily benefitting the

general public." (Emphasis supplied.) The most authoritative expression of legislative history on

the point, the Conference Report, refers to the provision as establishing a "discretionary public-

interest waiver authority." (Conf. Rept. p. 8.)


II-B. PUBLICATION OF INDEXES OF "(a)(2)" MATERIALS

THE PUBLICATION REQUIREMENT

Prior to the 1974 Amendments, subsection (a)(2) of the Act required each agency to "make

available for public inspection and copying" the agency's so-called (a)(2) materials, that is,

certain final opinions and orders, certain statements of policy and interpretation, and certain

administrative staff manuals and instructions to staff. Subsection (a)(2) also required each

agency to "maintain and make available for public inspection and copying a current index

providing identifying information for the public" as to such of the agency's (a)(2) materials as

were issued, adopted, or promulgated after July 4, 1967. The 1974 Amendments add to this

scheme the following:

"Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or

otherwise) copies of each index or supplements thereto unless it determines by order published

in the Federal Register that the publication would be unnecessary and impracticable, in which

case the agency shall nonetheless provide copies of such index on request at a cost not to exceed

the direct cost of duplication."

The requirement to "publish" merely means to reproduce a quantity of the indexes. There are

several ways in which such reproduction can be achieved. The Conference Report states that

publication by commercial firms will suffice, so long as the indexes thus produced. "are made

readily available for public use." (Conf. Rept. p. 7.(9)) The House Report indicates that an index in

"brochure form available for distribution would be an appropriate way to meet this [publication]

requirement." (H. Rept. p. 5.) The Senate Report states that "photocopy reproduction" of indexes

will constitute adequate publication if there is insufficient interest in an agency's indexes to

justify printing. (S. Rept. p. 8.(10))

In addition to publication, the new Amendments require agencies to "distribute (by sale or

otherwise) copies of each index or supplements thereto." There is no specific indication in the

legislative history as to what the word "distribute" means, but since it is followed by the phrase

"(by sale or otherwise)," it evidently does not contemplate an active delivery program, but rather

the publicized availability of copies on demand. The necessary publicizing of availability can be

provided by the Office of the Federal Register, which currently plans to print a list of published

indexes at quarterly intervals.

The amendment dispenses with the publication requirement where the agency publishes a

finding in the Federal Register that publication of the index would be "unnecessary and

impracticable." Publication is "unnecessary" when there is insufficient interest in an agency's

indexes to justify mass routine publication. (S. Rept. p. 8.) "Impracticable" is evidently the same

as "impractical." (S. Rept. p. 8.) This condition might be met, for example, if the materials to be

indexed are so rapidly increasing that any publication with reasonable frequency would still be

substantially incomplete. Although these two requirements ("unnecessary and impracticable")

are cumulative rather than alternative (see S. Rept. p. 8), they obviously are both highly relative

concepts and must be considered in connection with one another. "Practicability" cannot be

appraised in the abstract; it reflects a relationship between the actual effort involved and the

utility of the product achieved -- one important element of that utility being the need for the

product.

It should be noted that the "unnecessary and impracticable" provision is to be applied on an

index-by-index basis, so that an agency may fail to publish an index of one category of its (a)(2)

documents while publishing indexes of all of the remainder. When an agency makes a

determination that this provision is applicable, an order to that effect must be published in the

Federal Register. In such cases, despite the absence of publication, the agency must of course

continue to maintain the index, make it available for public inspection, and "provide copies * * *

on request at a cost not to exceed the direct cost of duplication."(11)

THE INDEXING REQUIREMENT

The indexing requirement, which immediately precedes the publication requirement, reads as

follows:

"Each agency shall maintain and make available for public inspection and copying current

indexes providing identifying information for the public as to any matter issued, adopted, or

promulgated after July 4,1967, and required by this paragraph to be made available or

published."

The provision is virtually identical to the public index requirement found in subsection (a)(2) of

the Freedom of Information Act as passed in 1966. Since, however, some uncertainty had arisen

over what constitutes an adequate (a)(2) index under those provisions, the subject merits

consideration here.

While the language of the Act does not define or describe an acceptable index, its intent may

reasonably be inferred from its characterization of the contemplated index as one "providing

identifying information for the public." The only articulated test for an index contained in the

legislative history of the 1974 Amendments is that it be "in a usable and concise form". (H. Rept.

p. 5.) The 1965 Senate Report stated that the index requirement was designed to "afford the

private citizen the essential information to enable him to deal effectively and knowledgeably

with the Federal agencies." (S. Rept.. 813, 89th Cong., 1st Sess." p. 7.) On the other hand, the

1964 Senate Report set forth as a criterion "that any competent practitioner who exercises

diligence, may familiarize himself with materials through use of the index." (S. Rept. 1219, 88th

Cong., 2d Sess. p. 6.) This suggests that an agency need not convert an index relating to

specialized (a)(2) material into such a form that it can be used by the average layman without

staff assistance. A reasonable reading of the Act and its history would indicate that the index

requirement will be met by any classification system which will substantially enable a member

of the public, with specialized assistance where the nature of the subject matter so requires, to

isolate desired materials from the mass of agency documents covered by the index.

Both the 1965 Senate and 1966 House reports (S. Rept. 813, 89th Cong., 1st Sess. p. 7; H. Rept.

1497, 89th Cong., 2d Sess. p. 8) cite the sophisticated index-digest system of the Interstate

Commerce Commission as a system which satisfies the index requirement. The Senate Report on

the 1974 Amendments refers to the equally detailed index of the Federal Communications

Commission as an index "already in compliance with this requirement." (S. Rept. p. 8.)

Obviously, however, the elaborateness of the index must depend upon the volume and

complexity of the materials involved. Any systematic device which helps people identify

documents, whether it be a multivolume index-digest or a simple tabulation of subject headings

(and of the materials contained under each heading) should fulfill the index requirement; it may

be organized by subject headings, by a numbering system, by names of parties, or by any other

useful classification device.

THE NATURE OF THE MATERIALS TO WHICH THE INDEXING AND PUBLICATION

REQUIREMENTS APPLY


The indexing and publication requirements under discussion apply to materials described in

subsection (a)(2) of the Act (so-called "(a)(2) materials") which are as follows:

"(A) Final opinions, including concurring and dissenting opinions, as well as orders, made in the

adjudication of cases;

"(B) those statements of policy and interpretations which have been adopted by the agency and

are not published in the Federal Register; and

"(C) administrative staff manuals and instructions to staff that affect a member of the public."

The primary purpose of subsection (a)(2) was to compel disclosure of what has been called

"secret law", or as the 1966 House Report put it, agency materials which have "the force and

effect of law in most cases." (H. Rept. 1497, 89th Cong.,2d Sess. p. 7.) Generally speaking,

(a)(2) materials consist of those documents which contain what the agency has treated as

authoritative indications of its position on legal or policy questions. It should be noted that some

recent court decisions point towards a considerable broadening of the class of documents which

meet these criteria. (See, e.g., Tax Analysts and Advocates v. I.R.S., 362 F. Supp. 1298

(D.D.C.1973), aff'd without discussion of the (a)(2) issues, No. 73-1978 (D.C. Cir., Aug.

19,1974).)

An agency is not required to make available for public inspection and copying (a)(2) materials

which fall within one of the exemptions found in subsection (b); by its terms that subsection

applies to the entire "section," i.e., the entire Freedom of Information Act. For the same reason,

agencies are not required to maintain or to publish an index of exempt (a)(2) materials. However,

the legislative history of the 1974 amendments indicates that agencies cannot fail to disclose or

index (a)(2) documents merely because some portions of the documents may be exempt. (S.

Rept. p. 32.) Rather than withholding such documents, agencies must delete the exempt portions

and then index and make available for public inspection any reasonably segregable remainder.

The balance of this discussion deals with the three subcategories of (a)(2) materials.

(a)(2)(A) final opinions, including concurring and dissenting opinions, as well as orders made in

the adjudication of cases

Both the adjective "final" in this provision, and the qualifying phrase "made in the adjudication

of cases" should be read to apply to both "opinions" and "orders." The terms "order" and

"adjudication" are defined in § 551 (6) and (7) of the Administrative Procedure Act (APA), of

which the Freedom of Information Act is a part. If these definitions were unqualifiedly applied

to the present provision, they could be read as including within (a)(2)(A) materials many items

which could not reasonably have been intended (for example, Park Police traffic tickets, and the

millions of ministerial IRS grants of refunds of withheld taxes each year), and there would have

to be excluded important matters which must have been meant to be covered (for example,

opinions and decisions issued in ratemaking proceedings). These § 551 definitions were, of

course, chiefly designed to support the main goals of the original APA, particularly to establish

the applicability of certain procedural requirements to certain types of proceedings (5 U.S.C.

554), rather than to delineate with precision the distinction between (a)(2) and (a)(3) records, a

distinction which did not exist when the definitions were enacted. Thus, fidelity to the obvious

intent of both the original and subsequent draftsmen can be achieved by regarding the phrase

"adjudication of cases" to be something different from the word "adjudication" used elsewhere

within the APA. The latter term, defined in § 551 (7), is linked by § 551(6) with "matters" rather

than "cases." A similar analysis applies to the word "orders" in (a)(2)(A), when modified by the

phrase "made in the adjudication of cases." There is thus something less than a perfect equation

between (a)(2)(A) and the earlier definitions. Hence, a permissible construction of the provision,

and one in accord with its history and purpose, would read it as applying to structured, relatively

formal proceedings, in which the agency is functioning in a quasi-judicial capacity, and in which

its decision is rendered upon a consideration of statutorily or administratively defined standards.

The (a)(2)(A) requirement of finality is met when the opinion or order is "final" as to the agency,

that is, when the agency makes a conclusive determination of a matter. The fact that the agency's

determination may be subject to review by another body does not destroy this characteristic.

The courts have indicated that advice and legal conclusions of agency legal staffs are not

"orders" or "opinions" within the Freedom of Information Act unless they are incorporated into

the final order and administrative decision of the agency or are specifically referred to as the sole

basis for its decision. (See International Paper v. F.P.C., 438 F.2d 1349, 1358-9 (2d Cir. 1971);

cf. American Mail Line Ltd. v. Gulick, 411 F.2d 696 (D.C. Cir.1969).)

(a)(2)(B) statements of policy and interpretations which have been adopted by the agency and

are not published in the Federal Register

"Statements of policy" are statements which articulate a settled course of action which will be

pursued in a class of matters entrusted to agency discretion. "Interpretations" are explanations or

clarifying applications of laws, regulations, or statements of policy. Numerous expressions by

agency personnel may fall within the breadth of these terms, but only expressions which are

"adopted by the agency" fall within (a)(2)(B). This qualification can only be met by statements

and interpretations issued by the head of the agency, or by a responsible official who has been

empowered by the agency to make authoritative issuance. There are innumerable instances in

which agency personnel at various levels are authorized to respond to citizen inquiries and

requests for assistance, or to perform ministerial functions which require statements of pre-existing policy or interpretations. But such authority does not necessarily imply authority to

adopt policy or interpretations on behalf of the agency -- and the issue of adoption for purposes

of (a)(2)(B) is not the same as the issue of whether the agency may be bound with respect to a

particular individual by reason of employee information or advice.

Whether legal memoranda containing interpretations and recommendations of agency counsel

fall within (a)(2)(B) depends primarily on whether they have been adopted by the agency. Such

memoranda are usually advisory unless some positive adoptive action is taken. Moreover,

internal legal advice, opinions, and recommendations -- as long as they occupy only that status

and have not been "adopted" -- as ordinarily intra-agency or inter-agency memoranda within

exemption 5.

Although the 1966 House Report stated that agencies must make available under (a)(2)(B) only

those materials cited or relied upon by the agency as precedent (H. Rept. 1497, 89th Cong., 2d

Sess. p. 7), there is judicial authority indicating that whether the agency regards the material as

precedential or non-precedential may not be controlling. (See, e.g. Tax Analysts and Advocates v.

I.R.S., 362 F. Supp. 1298, 1303 (D.D.C. 1973), aff'd on other issues, No. 73-1978 (D.C. Cir.

Aug. 19, 1974).)

(a)(2)(C) administrative staff manuals and instructions to staff that affect a member of the

public.

In this provision the adjective "administrative" and the clause "that affect a member of the

public" apply to both "manuals" and "instructions". Thus, (a)(2)(C) generally does not include

materials which deal with proprietary agency matters. For a brief discussion of the clause "that

affect a member of the public" see A.G.'s 1967 FOI Mem. at p. 17.

The 1965 Senate Report explained that the word "administrative" was added to the language of

subsection (a)(2)(C) to limit the availability of staff manuals and agency instructions "to those

which pertain to administrative matters rather than to law enforcement matters." (S. Rept. 813,

89th Cong., 1st Sess. p. 2.) The purpose of this limitation was of course to prevent disclosure of

information or techniques which if known in advance would render effective government action

more difficult. Accordingly, despite the legislative history as quoted above, the limitation has

been held not to protect all law enforcement material but only that whose disclosure would

significantly impede detection or prosecution of law violators. (See, e.g., Hawkes v. I.R.S., 467

F.2d 787 (6th Cir.1972).) Interpretation of the legislative history in this fashion should permit the

word "administrative" to exclude manuals and instructions which do not deal with "law

enforcement" in the strict sense of being violation-related; but which deal with the performance

of functions that would automatically be rendered ineffective by general awareness of agency

techniques or procedures. An example would be staff instructions pertaining to negotiating

techniques in concluding contracts or international agreements. The courts have understandably

been wary of extension of this limitation. In order to preserve the possibility of its use in non-

violation-related situations, agencies must scrupulously avoid invoking it except in situations

such as those described, when the very function to be performed presumes secrecy as to the

manner of its performance.


II-C. REQUIREMENT THAT A REQUEST "REASONABLY DESCRIBE" THE RECORDS

TO WHICH ACCESS IS SOUGHT

Prior to the 1974 Amendments, subsection (a)(3) of the Act required each agency to make

documents available "on request for identifiable records made in accordance with published

rules." The 1974 Amendments revised this to require that the request be one which "reasonably

describes such records," rather than one which is for "identifiable records."

As the legislative history points out, this change serves basically to clarify rather than to alter the

law as it has been understood by several courts and many agencies. See S. Rept. p. 10. The

House Report describes the amendment as

"designed to insure that a requirement for a specific title or file number cannot be the only

requirement of an agency for the identification of documents. A description of a requested

document would be sufficient if it enabled a professional employee of the agency who was

familiar with the subject area of the request to locate the record with a reasonable amount of

effort." H. Rept. pp. 5-6.

The last point deserves some emphasis: It is not enough that the request provide enough data to

locate the record; it must enable it to be located in a manner which does not involve an

unreasonable amount of effort. This point also finds support in the Senate Report, which cites

with approval the decision in Irons v. Schuyler giving judicial expression

to the same principle.(12)

When an agency receives a request which does not "reasonably describe" the records sought, it

should notify the requester of the defect. In addition it is recommended that, when practicable,

the agency offer assistance in reformulation of the request to comply with the Act.


II-D. DISCIPLINING OF PERSONNEL RESPONSIBLE FOR ARBITRARY AND

CAPRICIOUS WITHHOLDING

Among the changes in the Act effected by the 1974 Amendments is the addition of the following

provision concerning disciplining of agency personnel, 5 U.S.C. 552(a)(4)(F):

"Whenever the court orders the production of any agency records improperly withheld from the

complainant and assesses against the United States reasonable attorney fees and other litigation

costs, and the court additionally issues a written finding that the circumstances surrounding the

withholding raise questions whether agency personnel acted arbitrarily or capriciously with

respect to the withholding, the Civil Service Commission shall promptly initiate a proceeding to

determine whether disciplinary action is warranted against the officer or employee who was

primarily responsible for the withholding. The Commission, after investigation and

consideration of the evidence submitted, shall submit its findings and recommendations to the

administrative authority of the agency concerned and shall send copies of the findings and

recommendations to the officer or employee or his representative. The administrative authority

shall take the corrective action that the Commission recommends."

Congress did not expect this provision to be invoked often, but only "in unusual circumstances."

(120 Cong. Rec. H 10002 (Oct. 7, 1974) (Congressman Moorhead); see also 120 Cong. Rec. H

10006 (Oct. 7, 1974) (Congressman Erlenborn).) The provision originated in the Senate bill,

under which the court was required to take action if it found that the employee's withholding of

records was "without reasonable basis in law." The Conference Committee changed this to

"arbitrarily and capriciously." (See Conf. Rept. p. 10.) It is thus clear that, to justify

commencement of Civil Service Commission proceedings, much more is required than a judicial

determination that an agency has erred in its interpretation of the Act.

The procedures to be followed by the Civil Service Commission were discussed by

Congressman Moorhead (120 Cong. Rec. H 10001- 02). He stated that they might include a

hearing, and would be in accord "with regular civil service procedures." The employee's rights

would include "the right to appeal any adverse finding by the Commission." The statute directs

the agency in question to "take the corrective action that the Commission recommends," and

without further specification leaves the choice of such corrective action to the discretion of the

Commission.

The court's findings under § 552(a)(4)(F) relate to "the officer or employee who was primarily

responsible for the withholding." Within an agency, responsibility for withholding is coextensive

with authority to deny. The agency should therefore fix such authority with absolute clarity in

its regulations, both with respect to initial denials and appeals. (On this point, see pp. 13-15 of

the December 11, 1974 Preliminary Guidance Memorandum, Appendix III-B, below.)

In addition to the special problems relating to the case of a request for records classified by

another agency (see I-A above), occasions will arise in which the protection of information

contained in a record held by one agency is of primary concern to another agency. The 1974

Amendments explicitly recognize the existence of such situations by making special provision

for agency consultation in such circumstances. (See 5 U.S.C. 552(a)(6)(B)(iii).) When a denial is

made at the request of another agency, and out of regard for its primary interest or expertise, the

person in the other agency who made the request to deny may be a "person responsible for the

denial." (5 U.S.C. 552(a)(6)(C).) However, such a result might be proper only if he is advised by

the withholding agency, before his final recommendation to deny is accepted, that he will be so

designated in the denial letter, and is in fact so designated.

II-E. REDEFINITION OF "AGENCY"

Prior to the 1974 Amendments, the Freedom of Information Act contained no special definition

of "agency", but relied upon the definition in 5 U.S.C. 551, applicable to the Administrative

Procedure Act generally. Subesction (e) of the Freedom of Information Act as now amended

provides:

"(e) For purposes of this section, the term 'agency' as defined in section 551(1) of this title

includes any executive department, military department, Government corporation, Government

controlled corporation, or other establishment in the executive branch of the Government

(including the Executive Office of the President), or any independent regulatory agency."

There were certain differences between the definitions of "agency" in the House and Senate bills.

The Conference Report (pp. 14-15) explains that the conferees followed the House bill, and

throws considerable light on the meaning of "agency" in the amended Act, as follows:

"The conferees state that they intend to include within the definition of 'agency' those entities

encompassed by 5 U.S.C. 551 and other entities including the United States Postal Service, the

Postal Rate Commission, and government corporations or government-controlled corporations,

now in existence or which may be created in the future. They do not intend to include

corporations which receive appropriated funds but are neither chartered by the Federal

Government nor controlled by it, such as the Corporation for Public Broadcasting. Expansion of

the definition of 'agency' in this subsection is intended to broaden applicability of the Freedom of

Information Act but it is not intended that the term 'agency' be applied to subdivisions, offices or

units within an agency.

"With respect to the meaning of the term 'Executive Office of the President' the conferees intend

the result reached in Soucie v. David, 448 F.2d 1067 (C.A.D.C. 1971). The term is not to be

interpreted as including the President's immediate personal staff or units in the Executive Office

whose sole function is to advise and assist the President."

It seems clear from the legislative history that the new provision of the Act defining "agency" is

intended chiefly to clarify and expand the class of organizational entities to be doomed

"agencies" so that their records will be subject to the Act. In fact, however, the issue of what is

an "agency" will be confronted only rarely in the context of whether particular records are

covered, but will arise more often in determining whether the various requirements of the Act

applicable to concededly covered "agency" records must be complied with by a lesser or greater

organizational unit within the particular Governmental entity. (See, e.g., subsections (a)(1),

(a)(2), (a)(3), (a)(4)(A), (a)(4)(b), (a)(4)(F), (a)(5), (a)(6)(A), (a)(6)(C), (b)(2), (b)(5), (b)(7)(D),

and (d).) The amendment apparently did not intend to affect this aspect of the matter(13) and it is

left in the same uncertainty that existed under the previous law. 5 U.S.C. 551 specifies that an

authority is an agency "whether or not it is within or subject to review by another agency."

Soucie v. David, 448 F.2d 1067,1073 (D.C. Cir. 1971), cited with approval in the excerpt from

the Conference Report quoted above, states that agency status is "apparently" conferred on "any

administrative unit with substantial independent authority in the exercise of specific functions."

In other words, particularly in some of the larger Government departments, there may be

"agencies" within "agencies."

Despite its theoretical perplexity, this issue has rarely been a source of substantial practical

difficulties. The principle which has evolved is that it is for the over-unit -- the higher-level

"agency" -- to determine which of its constituent parts will function independently for Freedom

of Information Act purposes. It is sometimes permissible to make the determination differently

for purposes of various provisions of the Act -- for example, to publish and maintain an index at

the over-unit level, while letting the appropriate subunits handle requests for their own records.

Giving variable context to the term "agency" in this fashion often furthers the purposes of the

Act -- as, in the example just given, by speeding up responses to requests (handled at the lower

organizational level)while making the index of documents available at a larger number of

"agency" offices or reading rooms (those of the higher organizational unit). As long as the over-unit makes a good-faith disposition of this issue which does not needlessly impede the purposes

of the Act, it seems unlikely that its decision will be reversed.


II-F. CONTENTS OF DENIAL LETTERS

Any denial under the amended Act must include:

(a) The reasons for the denial, with appropriate references to the exemptions involved;

(b) The name and title of the person or persons responsible for denying the request (presumably

the official who signed the letter unless otherwise indicated); and

(c) A statement to the requester complying with the Act, 5 U.S.C. 552(a)(6 (A), describing his

administrative appeal rights.

A letter on administrative appeal that affirms a denial in whole or part must contain a statement

to the requester complying with 5 U.S.C. 552(a)(6)(A) describing his judicial review rights. Of

course it should also set forth the reasons for affirmance (which may be merely "the reasons

stated in the denial" if that is the case) and the name and title of the person responsible for the

affirmance.

1. The Amendments do, however, provide that such consultations may constitute "unusual

circumstances" for which the time limits may be extended for a maximum of 10 working days.

2. Alfred A. Knopf, Inc. v. Colby, No. 74-1478 (4th Cir. Feb. 7,1975).

3. The exception clause, which was dropped by the 1974 Amendments, applied, for example, to

requests under the Jencks Act, 18 U.S.C. 3500. While a subject of occasional confusion in the

early days of the Act, this clause merely meant that the exemption was not intended to repeal or

foreclose discovery rights of litigants such as those under the Jencks Act. See A.G.'s 1967 FOI

Mem. at 38. It can be assumed that the reason the clause was dropped was merely to avoid

encumbering the more complex amended exemption with a clause which was unnecessary; its

omission thus does not change the law.

4. See, e.g., Weisberg v. U.S. Department of Justice, 489 F.2d 1195 (D.C. Cir. 1973), cert.

denied, 416 U.S. 993 (1974).

5. Neither the bill passed by the House nor the bill reported by the Senate Judiciary Committee

contained any amendment of exemption 7. Senator Hart's amendment was adopted during the

Senate debate, and it was revised during the House-Senate conference.

6. It might be possible to make the necessary exemption 7 determination without such individual

examination when, for example, an entire file is known to contain standardized forms all

portions of which meet the exemption requirements. Such a situation Is obviously likely to be

rare, at least with respect to presently existing files.

7. See 5 U.S.C. 552(b)(7)(D).

8. The concept of "reasonably segregable" should not be confused with the concept of

"inextricably intertwined," developed chiefly in connection with the 5th exemption. The latter

concept is applied in determining what matter is exempt; the former is applied to compel the

release of certain matter already determined to be nonexempt. See, e.g., Montrose Chemical

Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974). Thus, "inextricably intertwined" material is exempt

material, whereas it is only nonexempt material that may or may not be "reasonably segregable."

9. The Senate Report cautions 'that where agencies rely on such a commercial service, they will

be expected "to maintain the commercial service at the agency offices or reading rooms." (S.

Rept. p. 9.)

10. The Senate Report continues: "The cost, if any, of such photocopied indexes should,

however, reflect not the actual cost of reproduction but the equivalent per-item cost were the

indexes printed in quantity." (S. Rept. p. 8.)

11. But see footnote 10 above.

12. 465 F.2d 608 (D.C. Cir. 1972). The Irons case involved a request for "all unpublished

manuscript decisions of the Patent Office." That description alone was enough to enable the

documents to be identified -- but only by searching through well over 3,500,000 files built up

over more than a century. The court held that the request was not one for identifiable records

within the meaning of the Act.

13. See the last sentence of the first paragraph quoted from the Conference Report.

Part III: APPENDICES

III-A: LEGISLATIVE HISTORY CHRONOLOGY AND CITATIONS

1. September 20, 1972 Moorhead Report (House Report No. 92-1419). This report summarized

hearings on the "Administration of the Freedom of Information Act" held during 1972.

(*)2. March 5, 1974 House Report No. 93-876 on H.R. 12471. This report includes the text of the

bill as it was passed by the House on March 14, 1974.

3. March 14, 1974 House Debate on H.R. 12471. 120 Cong. Rec. pp. H1787-H1803. (All

references to page numbers in the Congressional Record are to the page numbering in the daily

editions.)

(*)4. May 16, 1974 Senate Report No. 93-854 on S. 2543. This report includes the amendments to

the Act which would have been made by S. 2543 as it was reported by the Senate Judiciary

Committee.

5. May 30, 1974 Senate Debate on S. 2543, 120 Cong. Rec. pp. S93l0-S9343. This debate

includes the text of several floor amendments to S. 2543 which were adopted before that bill was

inserted into H.R. 12471 as a substitute for the text of the latter bill and then passed as H.R.

12471.

6. August 20, 1974 President Ford's letter to conferees. Weekly Compilation of Presidential

Documents, Vol. 10, No. 34.

(*)7. October 1, 1974 Conference Report (Senate Report No. 93-1200).

8. October 1, 1974 Senate passes conference version, 120 Cong. Rec. pp. S17971-S17972.

9. October 7, 1974 House passes conference version, 120 Cong. Rec. pp. H10001-H10009.

10. October 17, 1974 President Ford's Veto Message. Weekly Compilation of Presidential

Documents, Vol. 10, No. 42.

11. November 20, 1974 House Override Debate, 120 Cong. Rec. HI0864-HI0874.

12. November 21, 1974 Senate Override Debate, 120 Cong. Rec. S19806-S19823.

* These legislative reports on the 1974 Amendments to the Freedom of Information Act are cited

in the foregoing memorandum as "H. Rept.," "S. Rept.," and "Conf. Rept.," respectively.


III-B: ATTORNEY GENERAL'S DECEMBER 11, 1974 "PRELIMINARY GUIDANCE"

MEMORANDUM

Office of the Attorney General

Washington, D.C. 20530

December 11, 1974

MEMORANDUM TO HEADS OF ALL FEDERAL DEPARTMENTS AND AGENCIES

Re: Preliminary Guidance concerning the 1974 Freedom of Information Act Amendments, P.L.

93-502, enacted November 21, 1974.

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.

Wm. B. Saxbe

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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