25 Mar 1977
Honorable Walter F. Mondale
Vice President of the United States
and President of the Senate
2203 Dirksen Senate Office Building
Washington, D.C. 20015Dear Vice President Mondale:
This constitutes the Report of the Department of Justice to Congress covering Freedom of Information Act (FOIA) operations during calendar year 1976. Tab A covers seven data requirements which each federal agency must submit to Congress. Tab B provides that information which the Attorney General is required to submit concerning cases arising under the Act and Department of Justice efforts to encourage agency compliance with the Act throughout the Government.
In 1975, the Department of Justice received over 30,000 requests for access to its records. This year the total exceeds 51,000 such requests, of which 16,927 were made, or considered to have been made, under the Freedom of Information Act, and 34,784 have been counted as falling under the Privacy Act of 1974. In 1975 approximately 120,000 manhours were spent in handling FOIA and Privacy Act requests. In 1976 the combined total rose to over 607,000 manhours. We continue to be deeply disturbed by the adverse impact that the expenditure of such quantities of our resources is bound to have on the Department's ability to carry out its assigned substantive missions.
The figures provided in the preceding paragraph are, at best, only a rough approximation of our activities under each of these two access statutes. Many individuals refer to both statutes in making their requests; others refer to neither of them. The Department's regulations provide that, as a general rule, requests by individuals for access to records pertaining to themselves are to be processed under the Privacy Act and the regulations implementing that statute. They also provide, however, the records pertaining to individuals that are contained in systems of records that have been exempted from the access provisions of the Privacy Act are to be processed under the standards of the Freedom of Information Act (see 28 C.F.R. 16.57). In almost all instances, the effect of our system is to insure that requesters obtain access to all records and portions thereof that are not exempt from mandatory release under both statutes and inappropriate for release as a matter of agency discretion. An unavoidable consequence of this approach is to make it difficult to categorize requests as falling under one or the other of the two statutes, or both of them, and virtually impossible to allocate processing time and overhead expenses on that basis.
As we testified at the hearings before the House Subcommittee on Civil and Constitutional Rights on September 16, 1976, concerning the compliance of the Federal Bureau of Investigation with the Freedom of Information and Privacy Acts, we are committed to the maximum practicable release of Departmental records, but we cannot accept the proposition that continued expenditures of resources of the magnitude indicated in this report are appropriate when weighed against the other important missions of the Department. We believe that there must be a reasonable reformulation of the access provisions of these laws in light of the peculiar and complex considerations presented by records created and maintained for law enforcement purposes, and we would be pleased to join in a reasoned and constructive mutual effort to identify the principal sources of administrative burden under these statutes with a view to modifying those which provide no comparable public benefit. A substantial ancillary benefit of such an effort should be to make it much more simple to maintain accurate records of costs and activities in this important area of governmental operations.
An additional problem warrants the serious concern of Congress. Although the FOIA was designed so that the public could gain access to government records and information of value in understanding the operations of government, private counsel seem to believe that the FOIA should function as a discovery device. For example, the Antitrust Division has been particularly beset by such counsel when they could not gain access to documents and records using discovery methods provided in the Federal Rules of Civil or Criminal Procedure.
In a recent speech, Assistant Attorney General Donald I. Baker stated:
...Lately it seems that anyone who is considering filing an antitrust suit first comes to the Department of Justice with a Freedom of Information Act request in hand, hoping to require us to comb our files for anything we know about the contemplated defendant. ...the Freedom of Information Act has done its share to increase the complexity, cost and bureaucratic red tape, for all concerned, of a government antitrust investigation.
It is time for taking a fresh look at the way the Freedom of Information Act has been used, and to ask whether the Act isn't being used for ends not intended by Congress.
Mr. Baker's comments, appropriately reformulated, could well have been made by the head of any other litigating component of the Department. Similarly, many individuals under active investigation attempt to use the Act to learn the information that has been accumulated. The fact that we are almost always completely successful in thwarting these efforts -- sometimes, however, at the price of conceding the fact of the ongoing investigation -- does not serve to compensate for the resources expended in doing so.
In an effort to deal more effectively and efficiently with the large number of appeals from initial decisions that are adverse to the requester, in whole or in part, the Department of Justice has separated the administrative and appeals functions relating to the Freedom of Information and Privacy Acts. An Office of Privacy and Information Appeals has been established to process all appeals and to provide ongoing advice in this area to the Deputy Attorney General and guidance to the FOIA control officers of the Departmental components. This Office also provides staff support to the Departmental Review Committee, as it considers whether classified materials warrant continued protection under Executive Order 11652. In addition, a Freedom of Information and Privacy Acts Administrative Unit has been created in the Office of Management and Finance to process initial requests, maintain centralized files, prepare required reports and monitor the administrative compliance of Departmental organizations with the Acts.
There are valid and important societal interests being served by the Freedom of Information Act and the access provisions of the Privacy Act. It continues to be the position of the Department of Justice, however, that these interests could be just as well served at a much lower price in terms of resources.
Sincerely,
Benjamin R. Civiletti
Acting Deputy Attorney General
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