Mar 15, 1976
Honorable Edward M. Kennedy, Chairman
Subcommittee on Administrative Practice
and Procedure
Committee on the Judiciary
Dirksen Senate Office Building, Room 3214
Washington, D.C. 20510Dear Chairman Kennedy:
This constitutes the Report of the Department of Justice to Congress covering Freedom of Information Act operations during calendar year 1975. At Tab A are the data required by the Act of every agency, in the format requested in your letter of July 1, 1975. At Tab B are the additional data required to be submitted by the Attorney General concerning cases arising under the Act and the efforts undertaken by the Department of Justice to encourage agency compliance with the Act throughout the Government.
In reviewing all of the data submitted herewith, I must state that much of it is disturbing to me and others interested and involved in F.O.I.A. matters. The receipt of over 30,000 requests for access, a number far in excess of what anyone had anticipated, has transformed this into a major area of Departmental operations. Over 120,000 manhours are reported as having been expended, the majority by attorneys and supervisors, and these constitute only a partial accounting for the total personnel effort within the Department. These figures demonstrate the adverse impact on this Department's ability to carry out its traditional substantive missions during the past year. Moreover, the figures for the first two months of 1976 offer no indication that the tide is ebbing. Through March 5, for example, the Federal Bureau of Investigation has received in excess of 2,500 new requests for access to its records.
One of the provisions in the amendments to the Act that certainly has not worked out as anyone intended is the imposition of very short time limits for the processing of requests. I fully understand and accept the desire of Congress to demonstrate the importance it attached to the reasonably expeditious processing of requests for access to records. In my opinion, however, any time limit that does not take into consideration the number and complexity of the records within the scope of the individual request is both unrealistic and wholly unworkable. Requesters have tended to word their requests as broadly as possible in an understandable effort to ensure that they encompass all records in which an individual has an interest. There is no effective mechanism under the Freedom of Information Act for requiring a requester to cooperate with the Department in an attempt to aid us in locating records of particular interest with a minimum expenditure of our personnel resources, although some requesters have done so willingly. Under these circumstances, once the flood of requests developed, it almost immediately became impossible to comply with the time limits in many of the components of the Department. The unfulfilled expectations of the requesters were then reflected in innumerable letters, telephone calls, complaints to Members of Congress, etc., responding to which served only to slow down even further the processing of the requests themselves. It is the large number of requests, however, encompassing thousands and tens of thousands of pages --some, at least, among the most sensitive in the files of the Department -- that has tended, more than any other single factor, to slow down the processing of the far greater number of requests involving much smaller quantities of records. This entire area of time limits, viewed in the light of the total number of requests we have received and the significant fraction thereof involving large quantities of records, is one to which I hope your Subcommittee will give serious attention in the near future.
The results of our inability to comply with the letter of the Act as to time limits have been exacerbated by our efforts to comply fully with its spirit. At all times during my tenure as Deputy Attorney General, I have attempted to effect the maximum possible, responsible disclosure of records. It is clear that the Department of Justice is in fact releasing a considerable quantity of technically exempt material. My own view, as you know, is that an exemption is nothing more than a lawful excuse to withhold a record. I stress that access should not be denied unless some reason for doing so exists in terms of the present vital interests of the Department. My insistence on conformity with this policy, however, is an important factor contributing to the backlog within the Appeals Unit. In addition to reviewing withheld materials to ascertain whether they are or are not exempt from mandatory release under the Act, its personnel must also review the exempt materials with a view towards a possible discretionary release, either by the component itself in the form of a supplemental release, or at my direction in the final action on the appeal. To be absolutely candid, it would be far easier for this Department to follow a practice of merely releasing that which is not exempt and withholding that which is. Certainly we could process our appeals more expeditiously. Revisions in the letter of the Act could have a great impact throughout the Executive Branch in terms of encouraging an attitude more favorably inclined towards releasing records, rather than seeking to withhold them.
There is one additional serious problem I desire to bring to your specific attention. That is the situation created by those cases in which we are sued before the administrative review process has been completed. Altough the number of such cases is not particularly great, this unfortunate provision in the Act usually results in the individual who has sued receiving preferential consideration over the far greater number of other (usually prior) requesters and appellants who choose not to file suit, or who cannot do so. Congress has directed the courts, absent "exceptional circumstances" (5 U.S.C. 552(a)(6)(C)), to give these cases precedence on the docket and to expedite them "in every way." 5 U.S.C. 552(a)(4)(D). Several cases in which courts have sought to carry out this Congressional intent have involved tremendous quantities of records; others have involved closely related, ongoing criminal investigations, so that the records have been not only voluminous, but also extremely sensitive. Over the objections of this Department, rigorous time schedules for the processing of the records in these cases have been imposed by the courts involved, to the principal detriment of the several thousand other requesters and hundreds of administrative appellants who must then wait even longer for action on their requests than would otherwise be the case. In my judgment, this result is grossly unfair in most instances. Absent some wholly arbitrary refusal to expedite a particular request or appeal when exceptional circumstances exist, each individual should be required to wait his or her turn in line. The law as presently written places the burden on the Government to prove that a case should not receive preferential, expedited treatment. This imbalance should be corrected, in fairness to other requesters and to eliminate an unnecessary contribution to the congestion of court dockets in the Federal Judicial System.
Within this Department, there have been instances in which individual cases were expedited administratively for cause. Such instances have been rare, however, which is as I believe it should be. No one anticipated the flood of requests and appeals following the effective date of the amendments to the Act. This Department's allocation of resources (currently, for example, approximately 175 in the F.B.I.'s Freedom of Information and Privacy Section -- including 25 Special Agents -- and 25 more in my own Appeals Unit) has been extremely generous. Relief could easily be granted in this area, with such issues as the allocation of resources and speed of processing being viewed as matters for Congressional, not Judicial, oversight. As it is now, we must take our personnel off cases on which they are already working, simply because some other individual or group with the inclination and resources to file suit refuses to wait in line. I strongly suggest that, in accordance with your letter of July 1, 1975, this provision of the Act should be considered by your Subcommittee for revision. As a minimum, the individual who chooses to file suit before the administrative process has been completed in his case should face a heavy burden of showing that truly exceptional circumstances exist that require expedited consideration of his request or administrative appeal and that the agency has refused to grant a specific request to do so.
There are, of course, many other problems, some of them quite serious, presented by the Act in its present form. I hope that these will also receive sympathetic consideration from your Subcommittee in the near future. Some of would be at least partially resolved by a critical reexamination of the many substantive and procedural inconsistencies between the Freedom of Information Act and the access provisions of the Privacy Act of 1974. I would welcome the opportunity, both personally and through our respective staffs, to explore these matters with you more fully in the near future.
In conclusion, although I am not completely satisfied with the results we have achieved to date, it is my firm, overall judgment that the Department of Justice has performed well in this area during the past year under extremely arduous conditions. It remains my hope that cooperation between the Legislative and Executive Branches will result in the necessary and reasonable reformulation of the Act which would permit a substantial portion of the personnel now working this area to return to the traditional substantive missions of the Department of Justice while continuing to meet the principal goals of the Freedom of Information Act.
Sincerely,
Harold R. Tyler, Jr.
Deputy Attorney General
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