FOIA Update: Excerpts from Justice Testimony

January 1, 1988

FOIA Update
Vol. IX, No. 3
1988


Excerpts From Justice Testimony

[The following are excerpts from the prepared written testimony of Assistant Attorney General for Legal Policy Stephen J. Markman before the Senate Judiciary Committee's Subcommittee on Technology and the Law at the Freedom of Information Act oversight hearing held on August 2, 1988. All footnotes have been omitted.]

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here this morning to address the Department of Justice's administration of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1982 & Supp. IV 1986), the principal statute governing public access to federal information from the Executive Branch. This Act has become an essential part of our democratic system of government.

As you know, the Department of Justice exercises government-wide policy responsibility to encourage agency compliance with the Freedom of Information Act, in accordance with 5 U.S.C. § 552(e), and this responsibility is discharged by the Department's Office of Legal Policy and its subordinate Office of Information and Privacy. However, within the Department of Justice, each component bears the responsibility of responding in the first instance to FOIA requests for its own records.

The Department of Justice works hard to fulfill its responsibilities under the FOIA. In 1987, the Department acted on 60,610 requests. This was an increase of more than 4,000 from 1986, which itself was an increase of more than 4,000 from 1985. In 1987, the Department also acted on over 2,100 administrative appeals. The processing of last year's requests and appeals required the dedication of over 600 employee years. This commitment -- just for administrative processing, not for litigation -- amounts to almost one percent of the entire personnel resources of the Department.


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My prepared statement contains a detailed discussion for the record of several aspects of the Department's activities with respect to the FOIA, including the 1986 amendments to the FOIA and their implementation. Part II summarizes the background of the FOIA, the 1974 amendments to the FOIA, and the experience of the federal government in meeting the requirements of the Act. It then addresses the genesis of the more recent reform proposals, which began during the Carter Administration and culminated in the enactment of the Freedom of Information Reform Act of 1986, as well as the Department's efforts to implement the law enforcement and fee and fee waiver revisions made by the 1986 FOIA amendments.

Part III then describes the Department of Justice's numerous activities guiding the government-wide implementation of the Act in recent years. This discussion demonstrates the vast increase in the quantity and quality of the Department's FOIA guidance and training efforts since the beginning of the present Administration, when the Office of Information and Privacy was created.

But before getting into the discussion of the specific amendments to the FOIA and the Department's efforts to encourage agency compliance with its requirements, I would like to take this opportunity today to discuss some of this Administration's policy perspectives on the Freedom of Information Act, to provide some context concerning the important public policy issues that are embodied within it. For many years now, these basic policy issues have undergirded the public debate over the subject of FOIA reform, the background and legislative results of which I subsequently review. Part I of my testimony thus states some general themes and considerations that I believe should be borne in mind in considering the subject of the FOIA and its implementation.

I. POLICY PERSPECTIVES

When President Lyndon Johnson signed the Freedom of Information Act into law on July 4, 1966, his bill-signing statement articulated the delicate public policy balance that the FOIA was intended to strike for our Federal Government:

A democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull the curtains of secrecy around decisions which can be revealed without injury to the public interest.

Since then, the FOIA has had a profound effect on the operation of the Federal Government, though not always in the areas and in the manner anticipated, and it has sometimes been seen as "out of balance" in several respects.

When it was enacted, the FOIA rode on high hopes. Journalists and scholars, public interest groups and private citizens all hailed the Act as ushering in a new era of accountability in government. Dissatisfaction with the original provisions of the Act led to the 1974 amendments, and dissatisfaction with those changes led to the 1986 revisions. Yet, even after more than two decades of agency experience, litigation and legislative revision, it is still difficult to appraise the extent to which expectations for the FOIA have been met and whether a proper balance under the Act has been realized.

First, it must be said that there can be no quarrel with the overall goal of the Freedom of Information Act. An informed electorate is the cornerstone of a healthy democracy, and any mechanism that effectively serves this end is of great societal value. Surely all would agree that the FOIA has contributed to this end and that its worthy public policy goal has often been achieved.

Indeed, where this goal has been achieved, the acknowledged accomplishments of the Act have been well publicized. The FOIA undeniably fosters a general public perception of government openness and accountability. Certainly, FOIA disclosures have provided the basis for numerous news stories and books and much public discussion on a very broad array of important topics. In addition, it is self-evident that by making many agency records publicly available, the FOIA facilitates a kind of public oversight, discouraging unprincipled and arbitrary agency actions by virtue of the mere prospect of compelled disclosure.

At the same time, more than two decades of experience with the Act suggest that it provides these benefits at a far greater cost in other respects than was originally anticipated -- a cost which should not be ignored and which in at least some situations may be too high a price to pay.

Evaluation of the Freedom of Information Act's effectiveness often is hampered by an excessive focus on only one aspect of the "public interest" -- that is, by considering only how many documents are disclosed, how many requests are denied, and what the "batting average" is for various federal agencies or requesters. Contrary to such a simplistic analysis, the overall "public interest" sought to be served by the FOIA incorporates a multiplicity of discrete, sometime conflicting, "public interests" -- each of which figures into the mix which constitutes the broadest "public interest" of good government.

In addition to the "public interest" in disclosing information for government oversight, as already mentioned, there are three other principal "public interests" that I believe to be essential to a balanced approach to, and understanding of, the Freedom of Information Act.

The first and most obvious such "public interest" under the FOIA is that some classes of sensitive records should not be required to be disclosed to the public at all. The FOIA, of course, provides nine express exemptions. In the case of records implicating the vital interests protected in these exemptions, those interests are preserved by withholding the records from FOIA disclosure. Thus, the FOIA expressly contemplates that a "public interest" is sometimes served by maintaining the confidentiality of agency records, in order to protect our personal privacy, for example, or to preserve the effectiveness of law enforcement investigations.

A second "public interest" is the public's interest in a smoothly operating and efficient Federal Government. Whatever disagreements there may be over particular functions of the government, there presumably is a "public interest" in maintaining the effectiveness of government operations, i.e., ensuring that a government agency is able to perform the public mission for which it was created. Certainly, to the extent that government agency operations and activities are affected -- or sometimes disrupted -- by the FOIA, the "public interest" is necessarily affected. Of course, in many cases where the Act requires such intrusions, the value of requested information being made available to the public may weigh in favor of such an accommodation. However, as I will discuss in this testimony, there are too many situations in which that is not the case.

A third "public interest" necessarily inherent in the Freedom of Information Act is the public interest in using scarce taxpayer resources in a responsible and productive manner. This means that it is proper for the taxpayer to underwrite the cost of administering the Act only when the public directly benefits from its use. Especially in these times of budgetary restraints, the setting of such a priority for the expenditure of taxpayer funds is a matter of basic fiscal responsibility.

However, several categories of FOIA users -- for example, those who have no intent or desire to benefit the public with the information they receive -- have been able to take inappropriate advantage of its structure to serve their own private interests at the taxpayer's expense and often to the detriment of more deserving requesters who are forced to wait in line behind them before their requests are processed. Surely, far beyond the simple dollar numbers, the greater cost -- some would say waste -- is in the siphoning off of the public servant's time and attention from matters of legitimate public interest to the service of purely private concerns. Who would say that a prisoner seeking revenge, a company anxious to obtain a competitor's data, or even an individual who is merely curious about some esoteric topic should be given virtually unlimited license to monopolize government time and resources for purely private usages?

It is this public interest that was at the heart of then-University of Chicago Law Professor (now-United States Supreme Court Justice) Antonin Scalia's criticism of the Freedom of Information Act as "the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost Benefit Analysis Ignored." Justice Scalia surveyed some of the Act's more glaring inequities and weaknesses before concluding:

They are foolish extravagances only because we do not have an unlimited amount of federal money to spend, an unlimited number of agency employees to assign, an unlimited number of judges to hear and decide cases. We must, alas, set some priorities -- and unless the world is mad the usual Freedom of Information Act request should not be high on the list.

His rather colorful rhetoric notwithstanding, Justice Scalia's thesis, with which I agree, is actually quite simple: Though intended to enable the public to learn more about their government, the reality is that the FOIA too often has been transformed into a vehicle serving purely private interests, to the detriment of its intended public interest.

Today, a typical FOIA scenario is not, as envisioned by the Congress, the journalist who seeks information about the development of public policy which he will shortly publish for the edification of the electorate. Rather, it is the corporate lawyer seeking business secrets of a client's competitors; the felon attempting to learn who it was who informed against him; the drug trafficker trying to evade the law; the foreign requester seeking a benefit that our citizens cannot obtain from his country; or the private litigant who, constrained by discovery limitations, turns to the FOIA to give him what a trial court will not. And as if these uses do not diverge enough from the Act's original purpose, it is the public -- the intended beneficiary of the whole scheme -- who bears nearly the entire financial burden of honoring those requests while often reaping virtually none of the benefits from them.

The 1986 FOIA amendments partially accommodated this concern by providing for the assessment of review charges for the processing of requests made for commercial purposes, while at the same time granting special fee consideration to journalists, scholars and those others who seek information primarily to inform the electorate. . . .

Removing unintended subsidies for commercial requesters was manifestly a good idea. But it seems to me that other groups just as easily identifiable -- prisoners, litigants attempting to supplement civil or criminal discovery, and foreign entities -- continue to receive disproportionate benefits of the FOIA though they also are unlikely to benefit the general public with the fruits of their requests. The benefits of the FOIA should be more carefully tailored to prefer those whose requests further the laudable goal of drawing the public closer to the workings of its government for the purpose of improving its quality.


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Another example of a commercial use of the FOIA for purposes not in the public interest is the recently decided case of Tax Analysts, Inc. v. Department of Justice. There, a commercial tax reporting service requested copies, on a weekly basis, of all federal district court tax opinions from the Department's Tax Division, because the company did not want to expend the resources to go to the various district courts around the country to acquire a copy of the opinions, as did its competitor tax services. The District of Columbia Circuit rejected the Department's defenses, though it did admit that securing "already publicly available material for a commercial publication is certainly not a commonly perceived purpose of the FOIA." While the Court acknowledged that the Department could charge its statutory fees for search and duplication (which for search fees alone were estimated to be nearly $75,000 per year), it suggested that the agency could minimize this cost by creating a special file whereby a copy of each tax opinion would be deposited and held for the company as it arrived at the Justice Department's Tax Division.

In this case, the FOIA serves only to save one company the expense required of its competitors to compile publicly available sources for inclusion in its publication, with much of its direct costs being shouldered by the American taxpayers.

This case, further, has disturbing implications for all federal agencies, with the potential for imposing massive financial and administrative burdens on federal agencies to serve as public "storehouses" of information. For example, the Department of Justice could be required to establish a "national court library" whose holdings would be subject to the FOIA. Similarly, the Environmental Protection Agency could be required to establish a specialized library of all court cases relating to our natural resources. Mr. Chairman, the Congress created the National Archives, the Library of Congress, and the federal depository library system for such purposes. Other federal agencies should not be pressed into service as libraries for materials publicly available elsewhere.

These kinds of experiences show the FOIA to be imposing significant costs, both in budgetary outlays and in its dysfunctional impact upon agency effectiveness. The direct costs of federal agency compliance with the FOIA to process the nearly 350,000 requests for records received each year through the administrative appeal stage now exceed $70 million. Some commentators have even estimated that the real cost of the FOIA may be as high as $250 million annually. The demands of FOIA processing also siphon valuable personnel resources away from the agencies' primary missions. Litigation of cases arising from the denial of FOIA requests further burdens the agencies as well as the federal courts, prompting this incredulous reaction from one district court judge:

It is amazing that a rational society tolerates the expense, the waste of resources, the potential injury to its own security which [the Freedom of Information Act] process necessarily entails.

Unfortunately, specific figures are impossible to establish because of disparate agency accounting and statistical methods. Time and resources spent on FOIA matters by agency staff who are not part of an agency FOIA unit often are not identified specifically as a FOIA expense. In many cases the professional FOIA staff must consult with non-FOIA staff personnel, i.e., senior agency executives, contracting officers, program or area specialists, in order to determine the applicability of various exemptions. Thus, agency personnel who either created or worked on a document may have to review that document during both the initial request and administrative appeal stages, as well as possibly during any subsequent litigation. Similarly, agency personnel may be required to review documents created by predecessors. These review efforts require intensive professional staff time, all at the expense of the staffers' primary duties. Most agencies have no means of allocating these costs to the FOIA portions of their budgets, assuming that such a portion even exists. Nor is there a way to quantify the loss of efficiency of agency staff distracted by FOIA duties from accomplishing primary agency functions.

While the Department does not routinely compile data by requester category, the requests from those who do not benefit the public with the fruits of their requests -- the prisoners, the foreign parties, the commercial requesters and those seeking to shortcut established civil and criminal discovery procedures -- constitute a large proportion, probably approaching one half, of our total requests. These requesters threaten the balance of interests at the heart of the Freedom of Information Act. The public subsidizes the processing of their requests, but itself reaps no gain from their disclosures and, indeed, may suffer significant detriment from such disclosures. Equally as important, those requesters who are likely to benefit the public with the information disclosed -- the journalists, historians, public interest groups and concerned citizens -- have to wait in line while the requests of the unintended beneficiaries, which have overloaded the administrative system, are satisfied.

For these reasons, Mr. Chairman, our policy perspective is that the Act's proper balance of interests in some respects is askew. The FOIA's original purpose -- that of informing the public about the activities of the Federal Government in order to better inform the electorate -- is increasingly being crowded out by other uses that do not serve the public interest. With the single recent exception of commercial requesters, the taxpayers are required to shoulder the bulk of the costs expended in providing these individualized user services. These considerations, of which federal agencies on a daily basis are only too painfully aware, necessarily shape this Administration's perspective on the Freedom of Information Act. Such considerations ought to be taken into account, Mr. Chairman, in any assessment of the Act's overall cost and effectiveness. A balanced consideration of the Freedom of Information Act requires that the multiplicity of "public interests" be considered. The undeniable public interest in the disclosure of records for government oversight must be balanced against the equally legitimate public interests in preserving the confidentiality of certain records, in maintaining the efficient operation of government, in promoting fiscal responsibility, in protecting the integrity of the law enforcement process, and in minimizing the employment of the FOIA in a way which serves only private interests.

II. LEGISLATIVE REFORM EFFORTS

Indeed, since the outset, the major challenge presented under the Freedom of Information Act has been to achieve a proper balance between the important public policy interests that are counterpoised within it -- to best accommodate and reconcile these necessarily conflicting interests in both statutory terms and sound implementation policy.

A. Historical Background

The effort to strive for this balance began with the Freedom of Information Act's enactment in 1966. In enacting the FOIA, the Congress established an unprecedented mechanism for public access to the records of the Federal Executive Branch, completely reversing the pre-existing legal presumption under Section 2 of the Administrative Procedure Act that federal agency records would not be made publicly available unless good cause for their disclosure was shown. Under the FOIA, for the first time, any member of the public -- "any person" -- could request access to any federal agency record, without having to state a reason for seeking such disclosure.


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As a result of the 1974 FOIA amendments -- which became effective in 1975 and were widely publicized as "opening up" many agency files -- the volume of activity under the Act increased enormously, at both the administrative and the litigation levels. During the ensuing years, federal agencies struggled with the ever-increasing demands that were placed upon them to process voluminous amounts of their records, both old and new, for requested public disclosure. This was particularly so at agencies holding law enforcement responsibilities, where the volume of FOIA requests literally skyrocketed overnight; at the FBI, for example, the annual number of FOIA requests received jumped from 447 to 13,875 within one year, an increase of more than 3,000 percent. Most requests required the laborious making of specific harm determinations -- page by page and line by line -- under Exemption 7's demanding new structure.


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In 1981, at the beginning of this Administration, under the leadership of former Assistant Attorney General for Legal Policy Jonathan C. Rose, the Department made it a high priority to continue these FOIA reform efforts and to bring them to fruition. The 1980 package of FOIA amendment proposals served as a firm foundation for these renewed efforts. The Department also again surveyed a wide range of other agencies to ensure that its amendment proposals would reflect their most recent experience in administering the 1974 amendments.


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It was not until almost the end of the 99th Congress, during congressional consideration of the Anti-Drug Abuse Act of 1986, that it became possible to achieve any measure of legislative FOIA reform. And then, because these FOIA reform amendments were adopted by the Congress as a floor amendment to the omnibus anti-drug legislation near the close of a legislative session, they were enacted without the contemporaneous preparation of committee reports or equivalent statements of legislative consensus that ordinarily would accompany such legislation.

B. Enactment of the 1986 FOIA Amendments

The Freedom of Information Reform Act of 1986, enacted as §§ 1801-1804 of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, 3207-48 (Oct. 27, 1986), was the culmination of these longstanding FOIA reform efforts. While it was not possible to achieve the complete breadth of FOIA reform that had earlier been unanimously approved by the Senate, the 1986 FOIA amendments nevertheless constituted a major reform of the Act, counterbalancing much of the troubling effects of the 1974 FOIA amendments, particularly regarding the protection of law enforcement information.

The 1986 FOIA amendments consist of two distinct parts: the law enforcement amendments, contained in § 1802, which took effect immediately upon enactment on October 27, 1986; and the fee and fee waiver amendments, contained in § 1803, which took effect only after a 180-day waiting period (ending April 25, 1987) and which required the issuance of implementing regulations to be fully effective. See Pub. L. No. 99-570, § 1804(a)-(b) (1986) (not codified).

1. The Law Enforcement Provisions of the 1986 Act

The law enforcement part of the 1986 FOIA amendments provided comprehensive new protection for the records of federal law enforcement agencies. These amendments consist of a series of statutory language modifications made throughout the Act's major law enforcement exemption, Exemption 7, plus three entirely new provisions in a new subsection (c) that establish special exclusions for the records of particularly sensitive law enforcement files.

The revisions to Exemption 7 made by the 1986 FOIA amendments are virtually identical to the law enforcement amendments first approved in the Senate several years earlier. While preserving the basic structure of Exemption 7 established in 1974, these amendments addressed the concerns of law enforcement agencies by correcting its evident shortcomings. Both individually and collectively, they strengthen this critical exemption by broadening its applicability to law enforcement information.


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2. Implementation of the 1986 Law Enforcement Amendments

The Department of Justice has taken a number of steps to implement these law enforcement amendments. As noted above, these amendments became effective on the date of their enactment (October 27, 1986), and also applied to any FOIA request or FOIA lawsuit pending on that date. See Pub. L. No. 99-570, § 1804(a) (not codified).

The Department's Office of Information and Privacy ("OIP") immediately notified all FOIA personnel in the federal government of this legislative development through its government-wide FOIA policy publication, FOIA Update, which described all of the FOIA reform amendments. See FOIA Update, Fall 1986, at 1-2. That issue also included a copy of the Act in its amended form, showing the exact changes made by the 1986 FOIA amendments. See id. at 3-6.

Additionally, OIP specifically contacted the various law enforcement components of the Department of Justice, as well as those of the other major law federal agencies holding law enforcement responsibilities, to ensure that they were alert to the Act's new law enforcement provisions and understood their current applicability. Such contacts were also made through the Justice Department's Civil Division and Executive Office for United States Attorneys -- and with the few major federal regulatory agencies (the SEC, the NLRB, and the EEOC) that defend their own FOIA actions in court -- to ensure that the amendments would properly be taken into consideration in all pending FOIA litigation. In all such contacts, agency personnel were encouraged to bring to the Department's attention any question that might arise about the law enforcement amendments.

The Department also immediately began preparations to hold a special training session for federal law enforcement agencies, which would focus exclusively on the new law enforcement amendments. See FOIA Update, Fall 1986, at 8. The "Special FOIA Seminar for Law Enforcement Agencies" was conducted on February 4, 1987, and was attended by more than 300 representatives from virtually all federal agencies holding law enforcement responsibilities. This unprecedented, full-day session covered all aspects of the law enforcement provisions of the 1986 FOIA amendments, and it also served as a forum for the discussion of law enforcement issues arising under the Act. Particular attention was paid to the Act's new exclusion provisions and to the need for especially careful handling of any possible exclusion situation; all agencies were advised not to apply these new provisions without first consulting the Department's Office of Information and Privacy.

Subsequently, the Justice Department issued the "Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act" (December 1987), its most significant step to guide the implementation of the Act's new law enforcement provisions. This publication is designed to serve as the principal reference guide to the 1986 FOIA amendments, containing all pertinent implementation guidance under a single cover. It continues the longstanding tradition of issuing such Attorney General's memoranda to guide the implementation of the Act and its major amendments. The Attorney General issued such a memorandum upon the FOIA's original enactment and again to guide the implementation of the 1974 FOIA amendments.


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3. The Fee and Fee Waiver Provisions of the 1986 Act

The second part of the 1986 FOIA amendments completely revised the statutory provisions governing the charging of fees to requesters for the expenses incurred by agencies in the handling of their FOIA requests, and the granting of fee waivers for requests found to be made in the public interest.

First, the amendments established an entirely new statutory fee structure, in subsection (a)(4)(A) of the Act, which now governs the making of fee determinations. Under this new fee structure, agencies not only can charge requesters for the costs of searching for and duplicating requested records, as under previous law, they also can charge certain requesters for the costs of reviewing the records for purposes of making disclosure determinations. This new structure, however, distinguishes among three basic classes of FOIA requesters and limits the fees that can be assessed against them accordingly.


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In addition to these basic fee and fee-limitation provisions, the 1986 FOIA amendments also revised the Act's statutory standard governing the general waiver or reduction of fees on the basis of the "public interest" -- commonly referred to by the term "fee waiver." All FOIA requesters are entitled to seek such a general waiver of the fees applicable to them, on the basis that the agency's disclosure of the particular records sought, to that requester, would be "in the public interest."

This revised statutory "public interest" standard now more specifically defines that term than did the previous law: It provides for the waiver or reduction of fees wherever it is determined that disclosure "is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester."

Finally, as a procedural matter, the 1986 FOIA amendments for the first time required that all federal agencies promulgate individual agency regulations setting forth both specific schedules of FOIA fees and also their procedures and standards for making fee waiver determinations. Each agency's fee schedule must conform to uniform fee guidelines promulgated by the Office of Management and Budget ("OMB"). Thus, the amendments shifted to OMB the government-wide FOIA guidance responsibility regarding matters of FOIA fees, without affecting the Department of Justice's policy responsibility regarding FOIA fee waivers as well as all other issues arising under the FOIA.

4. Implementation of the Revised Fee Provisions

The implementation of the new fee provisions of the 1986 FOIA amendments proceeded in multiple steps, first at OMB and then at the individual agencies. Before long, the 180-day implementation period for these amendments proved to be highly unrealistic. Under the amendments, the preparation of each agency's implementing regulations had to await the issuance of the uniform fee guidelines by OMB. OMB's Office of Information and Regulatory Affairs moved as expeditiously as possible to prepare such government-wide fee guidelines and publish them for the required public notice and comment but, because of the complexity of this process, and that of the subject matter involved, OMB's Uniform Freedom of Information Act Fee Schedule and Guidelines were not published until March 27, 1987 (52 Fed. Reg. 10011). That was only 30 days before the end of the statutory 180-day implementation period, so federal agencies were unable to prepare their new fee regulations and have them in place in time. Each set of individual agency regulations had to proceed through the same notice-and-comment process, which required that they could not take effect until 30 days after publication in final form.

This process took most federal agencies well beyond the effective date of the fee amendments, leaving them in an extraordinary "interim period" between that date and the date upon which their regulations took final effect, and the Department of Justice assisted OMB and other agencies regarding the novel concerns that were presented. Consistent with the Act's specific implementation provision for fee matters, the Department afforded all FOIA requesters the maximum benefits of both the old and the new fee provisions during this "interim period." Further, on behalf of OMB, the Department formally communicated this same implementation policy to all federal agencies through FOIA Update (Winter/Spring 1987, at 1-2), together with a descriptive discussion of other implementation issues.


5. Implementation of the New Fee Waiver Standard

At the same time, the Department of Justice also issued revised fee waiver policy guidance concerning the standards for the granting of fee waivers under the 1986 FOIA amendments. Those amendments specifically required federal agencies for the first time to adopt provisions addressing the subject of fee waivers, both substantively and procedurally, in their individual FOIA fee regulations. As with all of its policy guidance in other areas . . . the Department prepared its revised fee waiver guidance in furtherance of its statutory responsibility to provide government-wide policy guidance and to assist all federal agencies in their implementation of the FOIA.

This guidance memorandum, entitled "New Fee Waiver Policy Guidance," was distributed to the heads of all federal agencies on April 2, 1987, as well as to all federal agency FOIA personnel through the Department's FOIA Update publication (Winter/Spring 1987, at 3-10).

This fee waiver policy guidance provided advice to assist the agencies in incorporating the specific terms of the new statutory standard into their implementing regulations and, in turn, in applying the new standard in the often-difficult day-to-day process of making fee waiver determinations. Like previous such guidance issued by the Department, it focused closely on the exact language of the fee waiver standard enacted by Congress and upon how it should most appropriately be applied by the agencies in deciding specific fee waiver requests.

The guidance identified six individual analytical factors to be considered in making fee determinations, so that those determinations can be made intelligently and even-handedly, on a case-by-case basis, in accordance with the Act's requirements. Each of the factors derives clearly and directly from the language of the revised statutory "public interest" standard, which establishes two basic requirements for the waiver or reduction of fees: first, that the disclosure in question "is likely to contribute significantly to public understanding of the operations or activities of the government," and second, that it "is not primarily in the commercial interest of the requester."


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Consideration of these six analytical factors is plainly required by the terms of the specific statutory standard enacted to govern fee waiver decisionmaking. In setting them forth succinctly in this guidance memorandum -- with elaborated analysis and discussion of relevant case law under each -- the Department has provided sound, detailed guidance that adheres closely to the revised statutory terms and greatly assists all federal agencies in their implementation of this new provision.

I am aware that this guidance memorandum has been the subject of no small amount of dispute, Mr. Chairman, just as the predecessor fee waiver policy guidance issued by the Justice Department under the prior statutory fee waiver standard was likewise controversial in many quarters. To a certain extent, I recognize, this is inevitable: In such a policy area as government information disclosure -- particularly on issues of fees and fee policy, it seems -- there always will exist strongly conflicting interests which yield sharply differing points of view. Yet the controversy that has arisen on this particular subject has sometimes been misplaced.

For example, almost immediately after this guidance memorandum was issued, there were assertions that the Department somehow had improperly "ignored" the "legislative history" of the new fee waiver provision. That simply is not true. While the available legislative history of the 1986 FOIA amendments is limited -- essentially consisting of floor statements placed in the record by individual Members of Congress without any committee deliberation -- it was fully evaluated and taken into consideration by the Department in the preparation of all of its implementation guidance.

However, just as with the law enforcement amendments already discussed, the individual legislative statements made regarding the fee waiver revision were found to be quite conflicting, both among themselves and also, in some cases, with the plain language of the new statutory provision itself. For example, though one such legislative statement suggested that fee waivers should be granted where disclosure could contribute to public understanding in "any meaningful way," the specific language of the statute requires the contribution to be a "significant" one. On this very point, a different legislative statement asserted that the word "significant" should "be given its common force and weight."

Similarly, one legislative statement asserted that "public understanding" would be "enhanced every time that a single citizen uses the FOIA," thereby suggesting that a fee waiver should be granted under the revised standard every time even a single individual gains an understanding of the operations and activities of government through the disclosure sought. This suggestion for blanket fee waivers, however, is at odds with the express terms of the statutory standard, which provides for a fee waiver if the disclosure contributes significantly to the "public interest" in promoting "public" understanding. A conflicting legislative statement urged "that the qualifying word 'public' be applied so as to require a breadth of benefit beyond any particularly narrow interests that might be presented."


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III. OTHER GUIDANCE ACTIVITIES

Apart from the Department of Justice's guidance activities regarding the implementation of the 1986 FOIA amendments, it has for many years engaged in numerous government-wide activities designed to guide the proper interpretation and implementation of the Act overall. For the past seven years, these FOIA guidance responsibilities have been discharged through the Office of Information and Privacy, which is part of the Department's Office of Legal Policy.

OIP was created near the beginning of this Administration to serve as a central location for the handling of the Department's major FOIA responsibilities. Two predecessor offices were merged: the former Office of Privacy and Information Appeals, which primarily held responsibility for adjudicating all administrative appeals from FOIA access denials by Department components; and the former Office of Information Law and Policy, which discharged the Department's government-wide policy guidance responsibilities under the Act.

The consolidation of these two offices' functions and resources into OIP -- which is headed by two co-directors and has a combined attorney and paralegal staff of nearly thirty -- greatly strengthened the Department's functioning in this important area. This has been especially so with respect to OIP's ability to engage in government-wide FOIA policy guidance activities, under the supervision of the Assistant Attorney General for Legal Policy.

Over the course of the past several years, OIP has considerably enhanced the Department's capability to provide government-wide FOIA policy advice and guidance through its many publication, training and advisory activities. OIP has been able to achieve this, along with handling its other FOIA responsibilities (including the adjudication of a growing number of initial requests and administrative appeals), with no increase to its staff complement. Both the breadth and depth of these activities have far exceeded all previous such efforts, which has been necessary to meet the increasing demands for high-quality FOIA advice and guidance that have been made upon the Department.

A. FOIA Policy Initiatives

Most significantly, OIP has undertaken to examine a wide range of legal and policy issues arising under the Act, including some critical issues never before addressed, and to formulate cogent policy statements and initiatives for the guidance of all federal agencies. Major policy initiatives have been undertaken in such important areas as the protection of business information, the proper application of the attorney work-product privilege, the protection of sensitive settlement-negotiation data, the interaction of the FOIA and the Copyright Act, the protection of personal privacy interests, and the handling of congressional requests for access to agency records. OIP's policy guidance in these and other subject matter areas has become firmly established in both administrative practice and applicable FOIA case law.

In providing its detailed, written analyses on a range of both substantive and procedural FOIA issues -- all of which are disseminated through its FOIA Update publication -- OIP guides all agencies in their understanding of these issues and promotes their proper and uniform resolution throughout the Federal Government. . . .


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B. FOIA Update

As has been noted, OIP's primary means of disseminating its formal FOIA advice and policy guidance is through FOIA Update, its quarterly policy publication. This publication was initiated by the Department in late 1979 for the general purpose of promoting the proper administration of the Act. Since 1982, OIP has upgraded both the content and scope of FOIA Update and has employed it as a high-quality vehicle for the wide dissemination of policy guidance and FOIA-related information.


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In sum, the Department has greatly improved its government-wide dissemination of FOIA advice and policy guidance in recent years through OIP's development of its FOIA Update publication. Any comparison of this publication since 1982 with its earlier editions will reveal the full measure of that quantitative and qualitative development.

C. Case List and "Justice Department Guide to the FOIA"

A second publication by which OIP disseminates FOIA information and policy guidance is its annual Freedom of Information Case List, which now also includes the "Justice Department Guide to the Freedom of Information Act."

The Case List was begun by the Department many years ago in order to establish a useful compilation of all FOIA decisions of precedential significance, which could be updated annually. The September 1987 edition has grown to include more than 2,700 such FOIA decisions -- each of which is carefully indexed according to specific subject matter topics -- and also contains an indexed list of Privacy Act cases, various other specialized lists of access cases, a comprehensive list of related law review articles, and copies of all of the major federal access statutes. The 1988 version presently is in preparation.

The "Justice Department Guide to the Freedom of Information Act" has come to be perhaps the most vital part of this Case List publication. Originally known as the "Short Guide to the FOIA," it was originated by the Department in the late 1970's as a brief supplement to the Case List that provided a general overview of the Act's basic provisions.

In 1982, OIP prepared a completely new "Short Guide" which more comprehensively discussed the issues arising under the Act with more detailed reference to applicable FOIA case law. Since then, as OIP has expanded and updated this document each year, it has grown to serve as the principal government reference guide to the Act's implementation.

Indeed, what is now known as the "Justice Department Guide to the FOIA" -- because it no longer is at all "short" -- is a highly detailed, 143-page discussion of the Act's major substantive and procedural aspects, presented with extensive references to the evolving FOIA case law that governs the proper interpretation and application of the Act's provisions. It is widely used by federal agency FOIA personnel and also those outside the Federal Government as both an introductory overview of the Act as well as the most detailed, up-to-date analysis of even its finest points. OIP's development of the former "Short Guide" into such a comprehensive FOIA treatise has immeasurably enhanced the understanding and proper application of the FOIA throughout the Federal Government and the entire FOIA community.

D. FOIA Training Activities

Similarly, OIP has greatly expanded the Department's government-wide FOIA training activities during the past seven years. The careful training of all FOIA personnel throughout the federal government is essential to the Act's proper and uniform administration. Such instruction is particularly crucial due to the relatively high turnover of FOIA duty assignments at most federal agencies -- with new employees often thrust into this area with little relevant experience or preparation -- and the fact that many agency employees necessarily become involved in FOIA matters on a part-time or ancillary-duty basis.

In recognition of this, OIP has instituted a number of measures to increase both the range and depth of the FOIA training that is made available to all agency FOIA personnel. . . .


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E. FOIA Counseling

The final major component of the Department's government-wide FOIA guidance activities is its advice-giving function, which is undertaken primarily through OIP's "FOIA Counselor" service. The Department established the "FOIA Counselor" mechanism many years ago, as a means of encouraging agencies to raise their questions about the Act to the Department for its attention and resolution. Such questions can range from basic informational queries to requests for a dispositive analysis of all legal issues necessarily involved in a specific FOIA determination.

Most such questions take the form of telephone inquiries about pending or contemplated FOIA actions, but often such matters require more extensive consultations. In all instances, it is essential for any agency employee working on a FOIA matter to know that an experienced Justice Department attorney is available to address any question that might arise.

Since 1982, OIP has placed increased emphasis upon this vital service, which has resulted in large increases in the volume of its usage year after year. By promoting it through prominent mention in FOIA Update and in all of its training programs, and through the use of a special, readily remembered "hotline" number (633-FOIA), OIP has steadily increased agency reliance upon its "FOIA Counselor" service. It now receives more than 2,000 such inquiries annually -- a more than two-fold increase over pre-1982 "FOIA Counselor" activity. This service thus has become an integral part of the Act's government-wide implementation.


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IV. CONCLUSION

In conclusion, Mr. Chairman, I would like to say that I very much appreciate this opportunity to set forth the Department of Justice's policy perspectives and accomplishments regarding the Freedom of Information Act. The Department is justifiably proud of its long tradition of government-wide guidance activities in this area -- including its most recent implementation activities under the 1986 FOIA amendments -- and it is particularly proud of the fact that these FOIA guidance activities have been expanded and upgraded considerably during the past seven years of the Administration and through the creation of the Office of Information and Privacy.

While I recognize that there always will be differences of opinion in so volatile a public policy area as government information disclosure, such differences should be placed in perspective and not be portrayed as broader than they actually are. There certainly has been a great deal of public debate and controversy over the particular subject of "public interest" fee waivers under the FOIA -- and, to a somewhat lesser extent, over the making of fee determinations generally -- but even that derives almost entirely from inevitably conflicting public and private interests. Moreover, the undeniable fact remains that there has been little if any basis or occasion for dispute over the wide range of policy initiatives and activities undertaken by the Department in all other FOIA subject matter areas.

It is not always an easy task to achieve a proper balance among the several "public interests" that uniquely coincide -- and often conflict -- under the Freedom of Information Act. Yet we all must continue to pursue that equilibrium. The strong public interest in fostering governmental accountability through the disclosure of records simply cannot be considered in a vacuum. Rather, it is incumbent upon us as government officials to recognize -- and to accommodate -- those other legitimate public interests in protecting sensitive records, promoting governmental efficiency and fiscal responsibility, and minimizing the use of taxpayer subsidies under FOIA for purely private interests.

The administration of the Freedom of Information Act, which promotes valuable citizenship participation in government, is a very important part of our federal system. It has benefited from your efforts, Mr. Chairman, in working towards a balanced approach under the Act. I can assure you that as the Department of Justice continues to work towards achieving this balance, it remains committed to the full and faithful implementation of the Act -- to consistently achieving, in the words of both the Supreme Court and the Senate Judiciary Committee, "the fullest responsible disclosure."

I would be pleased to address any question that you or any other Member of the Subcommittee might have on this subject.

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