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FOIA Update: FOIA Oversight Hearing Held

FOIA Update
Vol. IX, No. 3

FOIA Oversight Hearing Held

Agency administration of the FOIA was the subject of a congressional oversight hearing this summer, which focused primarily on implementation of the Freedom of Information Reform Act of 1986.

On August 2, the Senate Judiciary Committee's Subcommittee on Technology and the Law, which holds jurisdiction over FOIA matters in the Senate, conducted a half-day FOIA oversight hearing that was presided over by Subcommittee Chairman Patrick Leahy (D. Vt.).

The principal witness before the Subcommittee was Assistant Attorney General for Legal Policy Stephen J. Markman, who presented detailed testimony at the outset of the hearing on behalf of the Department of Justice and federal Executive Branch agencies generally. He was followed by a panel of users of the Act and by a panel of three other agency representatives.

Justice Department Testimony

Assistant Attorney General Markman submitted an extensive written statement to the Subcommittee that formed the basis of his testimony. This statement, more than ninety pages in length, reviewed both the background and the substance of the 1986 FOIA amendments. Against that backdrop, it then described in detail the Justice Department's efforts to implement both the law enforcement and the fee and fee waiver provisions of that FOIA reform legislation.

Additionally, Assistant Attorney General Markman's statement set forth several policy perspectives on the administration of the Act, based upon the theme that the FOIA's objective is to achieve the best possible balance of several inherently conflicting interests. In this regard, he addressed some of the difficulties that are posed to the Act's administration by certain "unintended" users: prisoners, business requesters, private-party litigants, and non-U.S. citizens.

The Justice Department's written testimony also contained a comprehensive description of the numerous activities by which the Department has guided the FOIA's governmentwide administration in recent years, principally through the Office of Information and Privacy, in such areas as training, counseling and FOIA guidance publications. (Excerpts from this written statement appear in the center pages of this issue of FOIA Update.)

After presenting his testimony, Assistant Attorney General Markman responded to questions from Chairman Leahy about the Department's administration of the Act and its most recent governmentwide implementation efforts, particularly regarding the fee waiver provision of the 1986 FOIA amendments. He defended his April 1987 fee waiver policy guidance memorandum and explained that the varying legislative history statements underlying the amendments could not be regarded as altering the plain meaning of the statutory language actually enacted, a conclusion with which Chairman Leahy was not prepared to agree.

Chairman Leahy likewise stated his disagreement with the definition of "educational institution" employed by the Office of Management and Budget and other agencies under the fee-limitation provisions of the amended Act. Assistant Attorney General Markman noted that that issue had already proceeded to litigation, in the case of National Security Archive v. Department of Defense, Civil No. 86-3454 (D.D.C. June 16, 1988) (appeal pending), where the government's position was upheld.

Other Witnesses

The Subcommittee next heard from three frequent requesters of information under the FOIA, who voiced their dissatisfaction with various aspects of its administration. As members of the journalistic community, they were particularly concerned with issues of fees, search fee limitations, and general fee waivers under the Act and with the way in which their requests have been treated under the 1986 FOIA amendments. One of them, an editor of a newspaper in Chairman Leahy's home state of Vermont, complained that the Central Intelligence Agency had inexplicably denied him "news media" status under the amended Act.

Finally, the hearing concluded with relatively brief statements made on behalf of three other federal agencies -- the Departments of State and Health and Human Services and the Central Intelligence Agency -- whose representatives were invited to respond to particular questions posed by Chairman Leahy. They all agreed that it is best to attempt to resolve disputes with requesters administratively wherever possible. In that vein, the CIA witness suggested that the Vermont journalist's fee dispute would be particularly appropriate for resolution on administrative appeal.

Noteworthy in its absence at the hearing was the Office of Management and Budget, which under the 1986 FOIA amendments now holds governmentwide policy responsibility for implementation of the new fee and fee-limitation provisions. The Subcommittee chose not to invite any representative of OMB's Office of Information and Regulatory Affairs, to which that policy responsibility has been delegated, to address such matters.

Extensive Survey Efforts

One controversy surrounding the hearing arose in the weeks prior to it when the Subcommittee decided to conduct an extensive survey of agency FOIA activity not long before the hearing was to be held.

Early in July, several dozen federal agencies received a detailed questionnaire from the Subcommittee -- by which it sought the compilation of many different categories of statistics pertaining to the processing of FOIA requests during calendar year 1987, as well as individual agency answers to other related questions, for the purpose of facilitating the upcoming hearing.

The Subcommittee's questionnaire sought, for example, detailed breakdowns of all processed FOIA requests according to such characteristics as the requester's status under the Act's new fee provisions. While the questionnaire thus focused on the implementation of the fee provisions of the 1986 FOIA amendments, it did not take into account the fact that at most agencies such implementation actually did not occur until the effective dates of their respective new FOIA regulations relatively late in the calendar year.

Moreover, in most instances, the gathering of the particular information sought by the Subcommittee was not possible without a laborious special agency review of all FOIA requests processed in 1987, file by file, in order to create statistical compilations not ordinarily created by agencies for either their internal administrative purposes or their annual FOIA reports to Congress.

Agencies did their best to comply with the Subcommittee's information requests as well as reasonably possible given these limitations and the extraordinary time constraints presented. Some agencies, particularly the smaller ones, even were able to comply with the information requests by the July 21 deadline that the Subcommittee specified.

The larger federal agencies, on the other hand, found themselves unable to compile the detailed information requested without considerable expenditures of agency time and effort -- which necessarily meant a heavy diversion of resources from the business of attending to pending FOIA requests in the first place. Particularly at agencies with large-volume FOIA operations spread out over many field installations, this unprecedented statistic-compilation request threatened to consume inordinate amounts of agency resources that would otherwise be applied to meet existing FOIA-processing demands.

At the Department of Justice, for example, it was estimated that full compliance would require the investment of more than five thousand hours of agency resources at a total of 159 FOIA offices nationwide. Another agency with a very large volume of FOIA activity, the Department of Health and Human Services, responded to the questionnaire on a partial sample basis, but even that relatively limited enterprise was calculated by HHS to have consumed several hundred employee-hours and to have added nearly a full week to the length of its existing FOIA backlog.

Future Legislative Activity

It was not made clear at the hearing exactly what if any use will be made of the agency responses that the Subcommittee receives, no matter what their level of detail. Many agencies negotiated with the Subcommittee to provide something less than the full amount of statistical detail sought in the questionnaire, often according to a different timetable than originally specified. Such efforts to achieve reasonable compliance with the Subcommittee's data needs still continue at some agencies, such as the Department of Justice.

Regardless of the end product of the Subcommittee's data-collection efforts, however, it seems clear that no new FOIA legislation is in prospect at this time. At the oversight hearing's conclusion, Chairman Leahy gave no indication that any particular further legislative step is contemplated during the remaining days of the current session of Congress.

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Updated August 13, 2014