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FOIA Update: Justice Department Testimony on S. 1940

FOIA Update
Vol. XIII, No. 2

Justice Department Testimony on S. 1940

[The following is the text of the Department of Justice's written testimony before the the Senate Judiciary Committee's Subcommittee on Technology and the Law, at the Subcommittee's hearing on S. 1940, the "Electronic Freedom of Information Improvement Act of 1991," held on April 30, 1992.]

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here this morning to address the subject matter of S. 1940, the "Electronic Freedom of Information Improvement Act of 1991," introduced jointly by the Chairman and Ranking Minority Member of this Subcommittee. As you know, the Department of Justice works to encourage uniform compliance with the Freedom of Information Act ("FOIA") by all federal agencies, in accordance with 5 U.S.C. § 552(e), through its Office of Information and Privacy, which is now part of the Department's new Office of Policy and Communications.

The Department of Justice is concerned about the important FOIA issues that are addressed in S. 1940 and it appreciates this opportunity today to discuss them with the Subcommittee. While the Department cannot support this proposed legislation in its present form, it looks forward to working cooperatively with the Subcommittee on these issues toward their successful resolution. Most particularly, the Department agrees that legislative consideration of "electronic record" issues arising under the FOIA is a highly worthwhile step at this time.

"Electronic Record" FOIA Issues -- Background

By way of background, it should be observed that the "electronic record" issues that have emerged under the Freedom of Information Act in recent years are FOIA issues of exceptional complexity and controversy.(1) This is in large part due to the fact that the language of the Act does not directly speak to such matters as automated databases or computer programs. In enacting the FOIA a quarter-century ago, Congress could barely envision an "electronic" environment for the operation of the Act, let alone specify the contours of an agency's disclosure obligations within it. Yet departments and agencies throughout the federal government are now operating "electronically," increasingly so, and there is a corresponding need for further development of this important area of policy and law.

In recognition of this, the Department of Justice in 1989 undertook to compile baseline information regarding how federal agencies view the subject of "electronic records," and the issues surrounding them, under the Freedom of Information Act as it now stands. The Department surveyed federal departments and agencies to identify all existing agency positions or practices on the major "electronic record" FOIA issues as commonly discussed and it asked them to set forth, from each agency's own individual perspective, the particular factual circumstances and policy considerations underlying all such issues of concern to them. In short, the Department's survey sought to gather as much administrative information as possible on "electronic record" FOIA issues, in order to establish a necessary foundation for policy development by either the executive or the legislative branch.

In responding to this survey, a total of 70 federal departments and agencies furnished much information regarding their perspectives on "electronic record" FOIA issues. They demonstrated by their responses that federal agencies are not monolithic in their views of such matters, but that they do share many concerns about the potential administration of the FOIA in an "electronic" environment -- concerns deeply rooted in the practicalities of administering the Act with limited and increasingly scarce resources.

The Department has prepared a comprehensive report on the subject of "electronic record" FOIA issues, which contains extensive background discussions of these issues and narrative summaries of federal agency views and concerns regarding them.(2) The Department's "Electronic Record" Report presents a wide range of federal agency views on these matters, including agency willingness to accommodate FOIA requesters regarding "electronic records" routinely or on a case-by-case basis as a matter of administrative discretion under existing law. Together with the individual agency survey responses,(3) this report should serve as a valuable foundation and reference point for the Subcommittee's consideration of this primary aspect of S. 1940.

Against this backdrop, I would like to discuss specific "electronic record" FOIA issues and S. 1940's corresponding provisions.

Computer Programming for FOIA Purposes

Perhaps the most difficult and far-reaching of "electronic record" FOIA issues is whether an agency should be required to create or modify computer programs for the purpose of responding to a FOIA request. As the Department's "Electronic Record" Report discusses at some length,(4) the replacement of paper records with automated, "electronic" databases raises inevitable questions about the lengths to which agencies may be required to go in searching for and producing requested information according to the particular data configurations specified by FOIA requesters.

Where a FOIA requester seeks to have an agency database searched according to the same data characteristics as those used by the agency for purposes of its own information retrieval, no such question arises. In such a case, the agency is able to employ its existing database system, including its existing data-retrieval programs, to satisfy the request. Where this is not the case, however, and the requested database search would require the agency to do more than what it ordinarily does to retrieve data for its own purposes -- to undertake "new programming," as agencies most commonly regard it -- extremely difficult questions can arise.(5)

As the Department's "Electronic Record" Report shows, federal agencies overall are greatly concerned about this "electronic record" FOIA issue and about the potential expansion of their FOIA obligations through automation. To be sure, agencies are mindful of their obligation to make maximum public disclosure of the records that they use to conduct government business. Requiring the reconfiguration of database information, however -- especially along lines other than those useful to ordinary agency functioning -- is a wholly different matter.(6)

Agency concerns on this issue are based not merely upon their particular policy views of the fundamental nature of FOIA disclosure. Rather, as is summarized in the Department's "Electronic Record" Report, they are grounded primarily in underlying administrative considerations of practicality and cost.(7) Foremost among these is the concern that scarce agency computer resources, both systems and personnel, may be consumed by increasingly sophisticated FOIA demands (motivated by commercial interests or otherwise) that are unrelated to basic agency mission performance.

Indeed, it is the sheer open-endedness of potential FOIA obligations in this regard that is perhaps of greatest concern to federal agencies. It is one thing to say that agencies should attempt to accommodate FOIA requesters, by some workable standard, in searching for "electronic" records. It is quite another to require agencies to take whatever steps might be deemed reasonably necessary, regardless of administrative cost, to comply with a FOIA requester's data-retrieval preferences.(8)

The provisions of S. 1940 address this complex "electronic record" FOIA issue in a very simple way. Section 7 of the bill would simply define the term "search" under the Act as something which "includes a manual or automated examination to locate records."(9) Such a provision would appear to dispose of this issue by establishing the very open-ended general search requirement that federal agencies are most concerned about in the "electronic" realm. As such, it is a matter of great concern.(10) Accordingly, the Department urges the Subcommittee to give careful consideration to the practical administrative concerns of federal agencies in formulating a workable resolution of this difficult issue.

Format of Disclosure

Another "electronic record" FOIA issue pertains to the format in which records or information must be disclosed upon request under the Act. Though this FOIA issue is not strictly an "electronic" one in that it can arise among more conventional forms of records,(11) it is potentially most acute within an "electronic" environment -- where a record's form or format (and ultimate format compatibility) can be highly significant.

This issue has two distinct aspects. First, there is the situation in which an agency already maintains a record or information in multiple forms -- i.e., in more than one different form or format. In such a situation, especially if it involves "electronic" information, a FOIA requester might for good reason prefer one format of the information over another. An agency, for its part, might have good reason to prefer making any FOIA disclosure of such information in another existing format, perhaps as a matter of efficient administrative routine. The issue in such a situation is, which preference should prevail?

As the Department's "Electronic Record" Report describes, most federal agencies are of the view that the choice among existing alternative forms of FOIA access should be a matter reserved to sound agency discretion.(12) This view is based not only upon the limited FOIA case law addressing this issue todate,(13) but also upon underlying considerations of administrative burden and cost. Especially in the "electronic" realm, many agencies are concerned about the potential use and diversion of their limited resources through specialized FOIA requests -- administrative costs that can never be recovered by an agency.(14)

Without a doubt, though, the administrative costs of making a FOIA disclosure in one form rather than another would be far greater in the second of the two situations in which this issue can arise -- where the information does not yet even exist in the particular form or format preferred by the FOIA requester. Few if any FOIA requesters have ever insisted that an agency go so far as to create a new record counterpart to a single existing record, nor is there any basis in existing law to suggest that an agency should be required to do so. While the Department's "Electronic Record" Report shows some agency willingness to accommodate FOIA requesters' choices among existing record counterparts, it would be quite another matter for agencies to satisfy requester preferences through entirely new processes of record conversion or creation.(15)

S. 1940 includes provisions on both of these aspects of this "electronic record" FOIA issue. Section 4 of the bill, under the heading, "Honoring Format Requests," would require agencies to honor any FOIA requester's preference among existing forms of agency records, without exception. In a further provision, S.1940 would additionally require agencies to undertake to convert requested records or information to a FOIA requester's preferred "electronic form," wherever an agency could "reasonably" do so.(16) This latter proposed provision is most objectionable to federal agencies and the Department urges that this "electronic record" FOIA issue, too, be examined and reconsidered by the Subcommittee.

Status of Computer Software

A relatively simpler "electronic record" FOIA issue (at least, as a threshold matter) is presented regarding the status of computer software under the Act. As is discussed in the Department's "Electronic Record" Report, there exists a threshold legal issue as to whether computer software is generally of such character that it can constitute a "record" subject to the FOIA to begin with.(17)

Some federal agencies (but by no means a majority of them) regard items of computer software as mere "tools" used in the manipulation of data, somewhat akin to items of hardware, rather than as vessels of information in and of themselves.(18) On the other hand, as the Department's "Electronic Record" Report indicates, most agencies seem to recognize the "informational" content of many software items (which can vary from one item to the next) and generally regard computer software as a "record" in character on that basis.(19)

S. 1940 would clearly resolve this "electronic record" FOIA issue by defining the term "record" under the Act explicitly to include "computer programs, machine readable materials, . . . or other documentary materials, regardless of physical form or characteristics."(20) The Department suggests that such a legislative step should not be taken without first considering the views and particular concerns of the federal agencies that regard computer software otherwise. Most significantly, there exists an unavoidably troubling interplay between this issue and the first "electronic record" FOIA issue discussed: To the extent that a FOIA requester could require an agency to undertake computer-programming efforts for FOIA-search purposes, that requester could thereby seek the creation (and then disclosure) of valuable software. In other words, a FOIA requester's ability to compel specified programming under S. 1940 could be tantamount to compelling made-to-order agency software production.

In sum, these "electronic record" FOIA issues, perhaps as much as any other issue to come before this Subcommittee, warrant careful attention and deliberation.(21) The Department of Justice is firmly committed to seeking resolution of these exceptional FOIA issues only in close coordination with all interested parties, including representatives of the FOIA-requester community as well as concerned federal agencies.(22) The Department's "electronic record" survey and report were foundation steps in this process, and the Department regards the introduction of S. 1940 as a very important next step.(23) Especially given the potentially far-reaching significance of such remedial FOIA legislation, all practical implications of its provisions should be taken into consideration.

I would like to turn briefly now to the remaining provisionsof S. 1940, which relate almost entirely to the difficult matters of time limits and administrative backlogs under the Act.(24)

Time Limit Issues

A no less daunting subject under the Freedom of Information Act is the longstanding problem of the Act's time limits. When Congress amended the FOIA in 1974, it established a flat ten-working-day time deadline (20 working days, in some instances) for agency responses to FOIA requests. It did so based upon the belief, held at that time, that the expected nature and volume of FOIA use would allow federal agencies to universally meet such deadlines. For a number of reasons, however, those expectations have proven to have been unfounded. Simply put, the FOIA's time limits are unrealistic as a general rule.

The reality of the situation is that not all federal agencies are able to regularly comply with the strict time limits of the Act. Certainly, some federal agencies may be able to do so without exception; others may be able to do so ordinarily, though not in all cases. But many federal agencies, especially those required to meet large-volume FOIA demands or demands for particularly sensitive records, are unable to comply with the statute's 10- or 20-day response deadlines for their FOIA requests -- and they maintain FOIA backlogs exceeding those lengths of time. This has long been so.

The reasons for this seem to be multiple and largely intractable. First and foremost is the fact that federal agencies have primary missions that often are highly demanding of resources that might otherwise be available for purposes of FOIA administration. When there is only so much funding in an agency's budget to go around, often times less than expected, an agency's administrative activities usually operate at adisadvantage.(25) Generally speaking, the stringency of budgetary constraints makes it increasingly difficult for federal agencies, particularly the larger agencies, to administer the FOIA with the timeliness envisioned by Congress in 1974.

Beyond that, both the complexity and magnitude of the FOIA requests received by some federal agencies render strict compliance with the Act's existing time limits a practical impossibility for them in any event. Agencies can be required under the FOIA to process extremely sensitive types of records -- such as those containing law enforcement information, classified information, or confidential business data -- on a detailed, line-by-line basis.(26) Properly expending highly labor-intensive efforts on such a FOIA request can easily require more than ten working days, even apart from any backlog of FOIA requests that an agency might have to begin with.(27) In many situations, some amount of "delay" (as gauged rigidly by the Act's current deadlines) is simply unavoidable.

What this causes, of course, is an unremitting tension between the FOIA's clear statutory command and the practicalities of its implementation. It certainly is not good public policy to have a statutory requirement that is honored so often in the breach -- especially in a statute that is, after all, designed for use by the general public. Any member of the public who reads the Act's text and compares it to the timing of an agency's response to his FOIA request might find a glaring discrepancy between the two, leading to loss of confidence in government and in the rule of law. Make no mistake: Such a situation frustrates agency FOIA officers as well as FOIA requesters.

The Department of Justice is not sanguine about this chronic problem, nor should any federal agency be. It has reminded all federal agencies of the importance of their resources to the Act's sound administration and that they are expected to devote as much of their resources as possible to their FOIA operations; it also urges agencies to maximize their delivery of FOIA services through the most effective and efficient use of all resources available.(28) More than a decade ago, in a forerunner to what ultimately became the 1986 FOIA Amendments, the Department proposed an extensive remedial revision of the Act's time limit provisions, much of which was approved unanimously by the Senate Judiciary Committee.(29) Regrettably, that subject of possible FOIA reform languished thereafter and the problem has persisted eversince.

The provisions of S. 1940 would be no solution to this problem. They do not at all recognize the basic resource limitations and budgetary constraints that contribute to chronictime-limit noncompliance, let alone rectify or even alleviate such underlying causes of the problem.(30) Nor do they allow for the enormous differences between large- and small-volume FOIA requests, or between requests for ordinary versus extraordinarily sensitive types of records. Rather, they seem to proceed from the dubious premise that federa agencies surely have the wherewithal to comply with the Act's strict time limits, if only they could be penalized (at public expense) into so doing.(31)

The Department certainly agrees that the gap between statutory ideal and administrative actuality ought to be closed in this regard, or at least narrowed to more tolerable limits. It is difficult to imagine, however, that a viable solution to this long-term dilemma lies in the inflexibly punitive provisions of S. 1940(32) -- especially in the complete absence of (and therefore absent any carefully calibrated combination with) some realistic adjustment of the Act's time limits themselves. The Department stands willing to further explore this major area of possible FOIA reform together with the Subcommittee, either as part of or apart from further legislative consideration of "electronic record" FOIA issues, at the Subcommittee's preference.


In conclusion, I would like to emphasize the Department of Justice's continuing commitment to the full and proper administration of the Freedom of Information Act throughout the executive branch, and to its refinement where necessary to meet changing circumstances over time. Perhaps more than any other new circumstance in the 25-year history of the FOIA, the emergence and worldwide proliferation of "electronic records" present challenging issues that call for a refined new view ofthe Act.

The Department is committed to working cooperatively with the Subcommittee in seeking successful solutions to such FOIA challenges. From a pure policy-guidance standpoint, its primary goals are to achieve clarity and uniformity in the Act's administration -- "'workable' rules," as the United States Supreme Court repeatedly has phrased it.(33) To further assess the workability and practical impact of the provisions of S. 1940 --most particularly its proposed resolutions of "electronic record" FOIA issues -- the Subcommittee should also hear directly from many of the federal agencies that are greatly concerned about these matters.

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


1. A basic point about which there should be no controversy is that a record is no less subject to the FOIA merely because it is stored on magnetic tape rather than in conventional paper form. This is regarded as a well-settled principle of FOIA law. See, e.g., "Justice Department Guide to the Freedom of Information Act," published in Freedom of Information Case List (Sept. 1991), at 403 & n.63.

2. See "Department of Justice Report on 'Electronic Record' Issues under the Freedom of Information Act" (Oct. 1990) [hereinafter Department's "Electronic Record" Report] (attached).

3. The Department has furnished copies of these agency survey responses to the Subcommittee for its reference.

4. See Department's "Electronic Record" Report at 11-21.

5. This issue is of course complicated by the range of effort and activity that can be involved in computer "programming." See Department's "Electronic Record" Report at 17 & n.15. The Department is unaware of any precise, universally applicable definition of that term, yet it is the term by which this issue is most commonly expressed both within and outside of federal agencies. See, e.g., 44 Admin. L. Rev. 189, 195 (1992).

6. See Department's "Electronic Record" Report at 18 n.17 (pointing out that guarding against any diminishment of FOIA access through agency automation is different from requiring actual enhancement of access).

7. See Department's "Electronic Record" Report at 21-26.

8. The scant FOIA case law on this issue imposes no such obligation upon agencies under existing law. See Department's "Electronic Record" Report at 18-19; see also id. at 12 n.14, 25-26 & n.20.

9. A companion provision of the bill, one defining the term "record" for the first time under the Act, would encompass within it all "electronic information . . . regardless of physical form or characteristics." S. 1940, Sec. 7.

10. Closely related to this "electronic record" FOIA issue is the issue of an agency's obligation to undertake computer programming for purposes of "processing" (redacting sensitive information from) records in electronic form. See Department's "Electronic Record" Report at 27-31. This issue appears to be addressed in Section 6 of S. 1940, albeit obliquely, under the heading of "Computer Redaction." As a matter of "computer redaction," it is an issue of comparatively less concern. See Department's "Electronic Record" Report at 31-34; see also id. at 29 n.23. It is unclear whether this provision is intended to apply to the conventional, "paper-processing" realm.

11. See Department's "Electronic Record" Report at 34.

12. See Department's "Electronic Record" Report at 37-40.

13. See Department's "Electronic Record" Report at 36 & n.26 (citing Dismukes v. Department of the Interior, 603 F.Supp. 760, 761-63 (D.D.C. 1984)); see also Coalition for Alternatives in Nutrition & Healthcare v. FDA, Civil No. 90-1025, slip op. at 3 (D.D.C. Jan. 4, 1991).

14. See Department's "Electronic Record" Report at 38 n.28 (citing Office of Management and Budget Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10011, 10019 (Mar. 27, 1987)).

15. See Department's "Electronic Record" Report at 38-39. Such a concern generally should not be present where requesters seek only to have agencies "print out" nonexempt information from existing databases; assuming ready agency capability to do so and no disagreement over costs, agencies should be willing to provide such database "printouts" (on paper or perhaps on computer disk) upon request. See id. at 36 n.25.

16. This provision of S. 1940 reads in full: "An agency shall make reasonable efforts to provide records in an electronic form requested by any person, even where such records are not usually maintained in such form." S. 1940, Sec. 4. The bill provides no indication of what a "reasonable effort" in such a situation might be -- other than that one of the bill's stated purposes is to "maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government," S. 1940, Sec. 2(b)(4), a purpose that transcends the fundamental purpose of the FOIA as it now stands. See also S. 1940, Sec. 2(a)(6) (finding that "Government agencies should use new technology to enhance public access to information").

17. See Department's "Electronic Record" Report at 40-42.

18. See Department's "Electronic Record" Report at 46-48. Some of these agencies, as well as others, appear to hold concerns relating more to the sensitivity (and thus ultimate disclosability) of many software items -- particularly regarding the protection of proprietary interests and computer security. See id. at 46, 48-50. Such concerns, the Department has pointed out, are distinct from the basic question of computer software's "record" status under the FOIA. See id. at 42-44. Moreover, such proprietary and security interests, where implicated in particular items of computer software, may be accommodated within the structure of the FOIA, through further policy development. See id. at 43-46; see also, e.g., FOIA Update, Summer 1989, at 3-4 (discussing basis for protecting sensitive computer-security information under FOIA Exemption 2); FOIA Update, Winter 1985, at 3-4 (discussing basis for protecting "intrinsic" proprietary interests under FOIA Exemption 4).

19. See Department's "Electronic Record" Report at 46-47. Additionally, there is the fact that some software items are so uniquely interrelated with their accompanying databases that FOIA disclosure of the database information might be meaningless without production of the software as well. See id. at 43 n.33.

20. S. 1940, Sec. 7. That S. 1940's proposed definition of "record" would encompass items of computer software is made clear by its use of the term "computer programs" and related terminology. What is not so clear is exactly which items might be encompassed by some of the other terms employed. It is uncertain, for example, whether this definition's use of the term "digitized" would have the effect of extending the Act to even such an item as "voice mail." Any such uncertainty deserves especially close attention. As much as defining the term "record" under the FOIA may be seen both as long overdue and as most essential within the "electronic" realm, it is a step worthy of full deliberation.

21. Additional "electronic record" provisions contained in Section 3 of S. 1940, regarding items routinely to be published by agencies under 5 U.S.C. § 552(a)(1), are of secondary significance but their workability and potential impact should be examined as well. Likewise with the similar provision of Section 13 regarding agency use of the FOIA's third exemption, 5 U.S.C. § 552(b)(3), which relates more to the substantive provisions of S. 1939, a companion bill to S. 1940.

22. See Department's "Electronic Record" Report at 50; see also FOIA Update, Spring/Summer 1990, at 1.

23. See FOIA Update, Fall 1991, at 1-2.

24. One other, miscellaneous provision of S. 1940 also presents grounds for concern. A provision in Section 5 ofthe bill would require agencies to specify, for any FOIA request denied under the Act, "the total number of denied records and pages considered by the agency to have been responsive to the request." S. 1940, Sec. 5(e). Notwithstanding the soundness of providing such a specification wherever practicable under the Act as a matter of general administrative practice, this provision as presently drafted would be incompatible with the need to protect sensitive abstract facts surrounding requested records in exceptional situations -- such as where an agency can neither confirm nor deny the existence of responsive records without causing the very harm intended to be prevented by an applicable FOIA exemption. See, e.g., Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act (Dec. 1987) at 26 (describing "Glomarization" principle); see also FOIA Update, Spring 1986, at 2 (discussing application of "Glomarization" in privacy-protection context); FOIA Update, Winter 1986, at 3-4 (same).

25. As all federal agencies attempt to balance their competing priorities, the intense competition for scarce resources both within and among agencies naturally limits the resources available for agency FOIA operations. This can be exacerbated by the fact that FOIA activities are not ordinarily treated as a separate "line item" appropriation category in the federal budget process. See FOIA Update, Winter 1990, at 1.

26. In handling FOIA requests for records containing confidential business data, for example, federal agencies are required not only to review the business records themselves, but also to undertake a process of coordination with the business submitter in accordance with the "submitter notice" provisions of Executive Order 12,600, 3 C.F.R. 235 (1988). See FOIA Update, Summer 1987, at 1-3. In many instances, the time periods required for this "submitter notice" process alone are irreconcilable with the time deadlines of the FOIA.

27. In point of fact, any federal agency will find it utterly impossible to handle a FOIA request within the Act's strict time limits -- regardless of its existing backlog or resource levels -- if the volume of records responsive to that request is exceedingly large. FOIA requests have been known to encompass as many as hundreds of thousands of pages of records. See, e.g., Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 860 (D.C. Cir. 1981) (involving FOIA request for approximately 500,000 pages of investigatory records).

28. See FOIA Update, Winter 1990, at 1-2. This subject has been included as a discussion topic in the Department's FOIA training programs. Also, the Department's newest such training program, entitled the "Freedom of Information Act Administrative Forum," has been designed to serve as a forum for the sharing of successful techniques and strategies of FOIA administration among federal agencies on a regular basis. See FOIA Update, Winter 1992, at 2.

29. See FOIA Update, June 1982, at 1-2 (discussing S. 1730, 97th Cong.); see also FOIA Update, March 1982, at 1-2 (discussing S. 1730, 97th Cong., together with S. 1751, 97th Cong.); FOIA Update, Dec. 1981, at 2 (discussing S. 1751, 97th Cong.). The proposed legislation approved by the Senate Judiciary Committee (and ultimately by the full Senate) would have flexibly provided, among other things, that an agency would not be considered to be in violation of the statute absent a judicial determination to that effect. See FOIA Update, June 1982, at 2; see also FOIA Update, Winter 1984, at 1, 6 (discussing Senate action on S. 774, 98th Cong.); FOIA Update, Summer 1983, at 1-2 (same).

30. As a longstanding general rule, federal agencies are not permitted to retain any of the fees paid by FOIA requesters. See Department's "Electronic Record" Report at 38 & n.28. One provision of S. 1940 would permit any agency found to be in "substantial compliance" with the Act's time limits to retain one-half of all such fees, in order "to offset the costs of complying." S. 1940, Sec. 5(a). Quite apart from the question of whether such amounts could ever meaningfully offset an agency's FOIA expenditures, even marginally so, there is the irony that the agencies receiving them under this provision would likely not be in need of them.

31. The Office of Management and Budget advises that S. 1940 would increase direct spending and that it therefore is subject to the "pay-as-you-go" provisions of the Omnibus Budget Reconciliation Act of 1990, § 252(a), 2 U.S.C.A. § 902(a) (Supp.1992). See also Bowsher v. Synar, 478 U.S. 714, 736 (1986) (addressing issue of role of Comptroller General).

32. Most of the provisions in Section 5 of S. 1940, assembled under the heading of "Delays," are of this nature. One particular provision is different insofar as it would explicitly provide for "expedited access" under the Act and presumably seeks to ensure the making of "expedited access" decisions by agencies in a timely fashion. The Department agrees that, as a matter of good administrative practice, agencies should determine whether to grant such requests for expedition promptly -- consistent with the very nature of those special requests. As presently drafted, however, this provision suffers from considerable ambiguity as to the actual manner of its intended operation (not to mention the administrative difficulty inherent in its bare "compelling need" standard). See S. 1940, Sec. 5(f) (making ambiguous use of term "request").

33. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 779 (1989) (quoting FTC v. Grolier Inc., 462 U.S. 19, 27 (1983)); see also Department of the Air Force v. Rose, 425 U.S. 352, 381-82 (1976).

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