FOIA Update: Agency-FOIA Areas of Concern

January 1, 1981

FOIA Update
Vol. II, No. 4
1981


Agency-FOIA Areas of Concern

At July hearings before the Senate Subcommittee on the Constitution and the House Subcommittee on Government Information and Individual Rights, the Department of Justice testified on the Freedom of Information Act problems of greatest concern to the Administration. The Department of Justice is preparing a comprehensive package of amendments to FOIA on behalf of the Administration, which will be submitted to Congress this fall. The following comments are excerpted from the more lengthy testimony given by Assistant Attorney General Jonathan C. Rose of the Office of Legal Policy:

The Department of Justice recently solicited comments from all government agencies on the operation of FOIA and requested suggestions on how the Act could be improved. The Department is in the process of analyzing the comments and drafting possible amendments based on these comments and on the extensive work which was done on this matter by the previous administration.

We wish to stress our strong support for the basic purpose and philosophy of the Act: to inform the public as fully as possible of the conduct of its government in order to protect the integrity and effectiveness of the government itself. We are also fully aware of the maxim that the best is often the enemy of the good in government. Thus, the Administration is not seeking perfection in the operation of the FOIA. However, it seems clear that there are significant problems with implementation of some of the provisions of FOIA which urgently require legislative attention.

I: Criminal Law Enforcement

First, there appears reason to believe that the current requirements imposed by the Act on criminal law enforcement agencies may well have impaired the investigatory abilities of those agencies, imposed very substantial administrative burdens, and may, in sum, clearly not be in the overall public interest.

For example, the investigatory units within the Department of Justice yearly receive thousands of requests for law enforcement records. The FBI receives over 15,000 requests yearly and the DEA over 2,000. The DEA estimates that 40 percent of its requests are from prisoners and another 20 percent are from individuals whom the DEA can identify to be connected with criminal drug activities. Prisoner requests to the FBI constitute a lesser percentage of requests (about 11 percent) but a greater absolute number (over 1,600 last year). Individuals connected with criminal activities have made extensive use of FOIA to obtain investigatory records about themselves or to seek information concerning ongoing investigations, government informants, or government law enforcement techniques.

To comply with requests for investigatory information, investigatory files must be reviewed line-by-line to segregate exempt from non-exempt information. The present exemption applicable to criminal investigatory files is narrowly drawn and the review and segregation process is time consuming and complex.

It is often very difficult for an analyst to determine what information may have an adverse effect on important law enforcement interests. Requesters may be able to piece together (in ways unknown to the FBI employee responding to a FOIA request) segregated bits of information which appear innocuous on their face but which can be used to identify the existence of a government investigation or an informant. It has been the Department's experience that some criminals, especially those involved in organized crime, have both the incentive and the resources to use FOIA to such ends. Some have shown great persistence in using the Act. The FBI, for instance, has received 137 requests from one imprisoned felon, who is reported to be an organized crime "hit man."

FBI, DEA Experiences

Moreover, experiences of the FBI and DEA indicate that there is a widespread perception among confidential sources that federal investigators cannot fully guarantee the confidentiality of information because of FOIA. This perception apparently exists not only among individual "street" informants, who have become increasingly aware of the existence of FOIA, but also among institutional information sources, including local law enforcement agencies. In light of the complexity of the Act and the obligation to release segregable information, this perception is difficult to dispel even in instances where we believe that the information offered by informants can clearly be protected by the Act as it stands. The FBI and the DEA have reported to us a number of incidents in which potential informants have cited FOIA as their reason for declining to cooperate.

It should be noted, finally, that the administration of FOIA entails a significant commitment of the limited resources of our criminal law investigatory agencies. In 1980, the FBI employed a unit of approximately 300 full-time employees at a direct cost of about $11.5 million.

When viewed in light of the substantial use of the Act which is made by prisoners or individuals connected with criminal activity and its interference with law enforcement, one must wonder whether the public is indeed benefiting from these expenditures. It should be noted that only about 5 percent of all the requests to the FBI and DEA are from the media, scholars, or public interest research groups.

II: Impact on National Security

A second area of major concern to the Administration is the impact of FOIA on national security agencies. Confidentiality is obviously of paramount importance to intelligence information sources, whether they are individual sources or foreign governments. But the agency processing and judicial review requirements of FOIA, along with the mandate to release "reasonably segregable" material which is not properly classified, make it impossible in the judgment of the national security and intelligence agencies to offer the clear and certain guarantee of confidentiality which national security intelligence often requires. Our intelligence agencies can demonstrate that there is a belief among some important foreign sources that FOIA makes it impossible for our government to adequately protect sensitive information from disclosure. That belief in their view significantly impedes our intelligence activities abroad.

FOIA imposes upon the intelligence agencies administrative burdens which can interfere substantially with their ability to carry out their primary functions. Within an agency such as the CIA, no single individual or even any single unit has access to a comprehensive cross-section of files which would permit a complete and timely response to broad FOIA requests. Line personnel are forced to respond to FOIA requests while continuing to attempt to fulfill their regular duties. Our intelligence agencies have no excess of trained intelligence agents, and their time is of great value to the United States. The line-by-line review of documents requested under FOIA seems a very questionable use of their time, particularly in light of the fact that, even though a great deal of material must be reviewed, very little can ultimately be released by intelligence agencies.

There is, of course, nothing in the Act to prevent its use by those whose interests are directly contrary to the national security. Phillip Agee, for example, has made extensive use of FOIA in his personal crusade to undermine the CIA abroad. The response to one request from Mr. Agee for all CIA records containing mention of him cost the American taxpayers over $300,000. That is a government expense which many citizens and members of Congress might justifiably question, particularly in a time of severe budgetary constraints. However, under existing law, CIA had no choice but to expend the money.

III: Discovery Device

The use of FOIA as a litigation discovery device presents a third area of great concern to the Administration. It is common practice for parties in litigation with the United States, or for that matter parties engaged in private litigation, to request information under the Act, even where they have compulsory process available under the rules of civil or criminal procedure or under agency regulations. Such requests are often nothing more than attempts to circumvent the limitations of relevance and need imposed by applicable discovery rules, or, simply to harass the government. A requester/litigant can, through FOIA, impose burdensome document production requirements which are, for good reason, impermissible under the applicable discovery rules.

It is often necessary for the government attorneys responsible for a government litigation to take time from their case preparation to review documents in response to a FOIA request from an opposing litigant. There is considerable evidence that many in the private bar are aware of the potential for disruption and delay of litigation afforded by FOI A and deliberately use the Act to harass a prosecuting agency.

We do not believe that Congress intended FOIA to be so used as a means of disrupting law enforcement or avoiding the rules of discovery in judicial or administrative proceedings.

IV: Commercial Interests

A fourth area which we believe requires the attention of this committee is use of FOIA by commercial interests to obtain confidential business information which has been submitted by businesses to the government. It is apparent that commercial interests have made great use of FOIA to obtain such information. For instance, over 85 percent of the FOIA requests to the Food and Drug Administration, which received over 33,000 FOIA requests last year, are from the regulated food and drug industries, or their representatives seeking information relating to its competitors.

While it is unclear what damage may have been done to business subrnitters by FOIA releases, there is at least a perception in parts of the business community that commercially valuable information submitted to the government is vulnerable to release under FOIA. This perception is reinforced by the absence of any adequate procedural means of asserting their legitimate interest either before the agency or in court. As a result, there is evidence that the quality of information received from the business community has deteriorated.

Providing greater assurances that confidential business information will not be disclosed via FOIA would seem to be in the clear interest not only of the submitters but of the government agencies which depend on a free flow of information from private enterprises.

V: Cost of FOIA

Finally, we believe that it is important that Congress re-examine the costs of complying with FOIA. Congress clearly did not contemplate that FOIA implementation would be as expensive as it has become. During the deliberations over 1974 amendments, Congress estimated annual government-wide costs resulting from these amendments would be between $40,000 and $100,000.

A Justice Department survey estimated the direct cost of FOIA compliance in 1979 at $47.8 million. A more recent survey by the Department's Office of Information Law and Policy indicated that 1980 direct costs were approximately $57 million. We believe that as large as these figures are, they still greatly understate the real costs of FOIA to the taxpayer. In particular these estimates do not quantify the indirect lost "opportunity costs" or the costs of the disruption of agency business caused by FOIA.

Separate from the question of total cost is the question of who is paying for FOIA. At present, it appears that agencies collect, through fees charged to the requester, only about 4 percent of the direct cost of responding to FOIA requests. We believe it is important to re-examine the fee collection authority under FOIA in light of the considerable cost of FOIA compliance and the extensive use which has been made of the Act by private, commercial interests. There appears to be no good reason why those who are using the Act to serve private commercial and financial interests should not be required to pay the full costs of FOIA processing and, when appropriate, the fair market price for commercially valuable information. The failure to do so not only results in the unnecessary expenditure of considerable taxpayer money to serve the narrow interest of private requesters, but also tends to encourage frivolous or unnecessarily broad requests.

Conclusion

The problems outlined above constitute the primary areas of concern for the Administration. The Act presents, of course, a number of other problems which I have not discussed today and which can be usefully addressed by legislation. We expect that our legislative proposals will address some of these, including the difficulties of complying with the current time limits in the Act. The lengthy processing backlogs existing in some agencies (which sometimes are over a year) obviously render the Act virtually useless for requesters who need a timely response, such as the current events media on whom the public relies primarily for its information. We are interested in exploring ways not only to relieve the problems which have arisen from the Act, but also to make the Act a more useful and timely public information device.

In this regard, I would note also that Congress may wish to reconsider its own complete exclusion from the Act. Nothing in our review of the Act to date has convinced us of the wisdom or necessity for this complete and total Congressional exclusion. Certainly, no body of the federal government has more to do with how key decisions affecting our citizens are made. However, we of course recognize that this issue is one for the Congress itself to assess and resolve.

We wish to stress again that the Administration is fully committed to the purposes and philosophy of the Freedom of Information Act. An informed electorate is the best guarantee of a good and effective government. But ultimately the end we seek through this Act as in the case of any other law is good government in the public's interest and not the disruption of essential government functions or the waste of government resources to serve only private interests.

As the original sponsors of the Act fully recognized, the public's right to know must be balanced against a citizen's right in certain circumstances to communicate confidentially with his government. Furthermore, the public is entitled to an effective government and such a government cannot in all cases be an entirely open government. We believe that, with the benefit of the experience which we have now acquired in administering this statute, such abuses can be prevented while the Act is, at the same time, made a more effective and useful vehicle for public communication.

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