The Proposed Freedom of Information Legislation: Closing The Loopholes and Opening the Files

On May 30, 1974, the Senate passed a bill (S.2543) to amend the Freedom of Information Act so as to provide greater public access to government documents and materials. The bill was reported unanimously out of Senator Kennedy's Subcommittee on Administrative Practice and Procedure and faced little floor opposition. Two amendments were added to the bill on the Senate floor. One would limit the extent to which an exemption for investigatory records could be applied to inhibit disclosure, and the second would permit judges broader power to inspect documents in camera. These two amendments turned some conservative Senators against the bill, including Senator Roman Hruska, the Subcommittee's ranking Republican, but the bill passed 64 to 17. A similar bill passed the House (HR. 12471) on March 14, 1974. It is expected that differences between the House and Senate versions can be resolved with little difficulty. There is a threat of a Presidential veto, especially given the two amendments, but White House intentions have not yet been announced.

The Senate bill is the latest in a series of congressional attempts to provide free access to government papers. In 1966, Congress passed the Freedom of Information Act¹ with the intent of making government documents available to the public except in those cases where such disclosure would be harmful to another important government interest, such as national security. It was designed to correct the deficiencies of § 3 of the Administrative Procedure Act² which was vague and unenforceable and had large exemptions which officials had used to defend their refusals to disclose information. Section 3 had been the first attempt to force disclosure; it broke the ground for further legislation. In and of itself it failed to accomplish those desired ends, and hence the Freedom of Information Act was passed.

The Freedom of Information Act replaced § 3's broad exemption (any material requiring secrecy in the public interest or any material pertinent only to the internal affairs of an agency), with nine specific exemptions set forth as the only grounds available to agency officials for refusing a request for information. Information not falling within one of those exemptions had to be disclosed upon request. Two of the nine exemptions have played a major role in environmental cases. They are "matters that are — [s]pecifically required by Executive order to be kept secret in the interest of national defense or foreign policy," (Exemption 1) and "Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with an agency" (Exemption 5).³ These exemptions have proved to be especially useful to agencies determined to protect information in their possession from public disclosure. Hence they have become specific targets of environmental litigation.

At least five other serious deficiencies in the provisions of the Act, not involving the exemptions to disclosure, have come to light since its enactment, and have plagued those who have sought to use the act. The act specifies that a request must be made for "identifiable records" before it can be responded to. Since a party making a request can rarely identify precisely what it is that is wanted before seeing it, this requirement creates an effective barrier to disclosure. An example occurred in 1970, when Harrison Wellford, then of the Center for Study of Responsive Law, requested reports on certain resticides from the Department of Agriculture. He was turned down on the ground that his request was too broad. He then requested the Department's indexes to assist in identifying the material, but again he was refused, this time on the ground that the indexes were exempt as intra-agency memoranda. He thereupon filed suit under the Freedom of Information Act, only to have his efforts at getting the material blocked by the agency's resort to exemption 5 (intra-agency memoranda). The Court partially accepted the agency's application of this exemption (the decision is not reported), and Mr. Wellford was in the end forced to abandon his efforts to secure disclosure of the reports.⁴

A second major deficiency in the 1966 Act is its failure to impose time limitations on the government's response to requests for information. One government report showed that it took an average of over a month for federal agencies to produce requested information and that this average was increased to about three months when the request was backed by a court order subsequent to an original refusal by the agency.⁵ A case decided before the D.C. District Court exemplifies this problem which affects many requests for information. In October 1971, Peter Schuck, then also of the Center for Study of Responsive Law, tried to obtain information on meat inspection plants from the Department of Agriculture. After two months and several reneged-upon promises, he filed an administrative appeal which was rejected in May, 1972. He then filed suit. Five critical months had elapsed by the [4 ELR 10117] time he was able to file suit.⁶

A third deficiency in the statute is its failure to require that any charges for material disclosed under the Act be reasonable. Some agencies have instituted excessive fee schedules as a means of effectively denying information to the public. The question of what is or is not a "reasonable" charge for providing such information then becomes an issue of judgment for judicial determination; however, the charges are often in the range where they are not flagrant enough to warrant a challenge in court but are significant enough to dissuade a requestor from pursuing the information.

The fourth deficiency is that using the courts to enforce the Freedom of Information Act is, especially for private individuals, an expensive and time-consuming process. Under the 1966 act, if one's request is turned down by an agency, the only recourse is to secure an attorney and pursue the issue through the courts. For some individuals and groups, the expense and bother work to discourage pursuit of the case.

The fifth deficiency compounds the problem. Little if any cost is imposed upon the official who turns down the request. Most federal agencies have legal staffs and therefore the expense of one case is relatively marginal. Moreover, the expense does not fall upon the official but on the government in general. The result is that transaction costs can be extremely high for individuals seeking documents and extremely low for the official who refuses to turn them over. Given this imbalance, an official who does not want to turn over information knows it is unlikely that he will be sued, and that even if he is sued and loses, the burden placed upon him will merely be that of producing the documents. While it is true officials may have to expend time and, possibly in major cases, face a hostile press coverage, and while some agencies have been relatively cooperative, on balance it is probably safer for an official to refuse disclosure in borderline cases.

These deficiencies, although brought to the attention of Congress, were not soon corrected. What actually led to serious consideration of remedial legislation were court cases involving exemptions 1 and 5 under the Act. The leading case considering these exemptions is Environmental Protection Agency v. Mink,⁷ which considered whether Congresswoman Mink was entitled to documents concerning the proposed nuclear test off Amchitka Island. The Supreme Court, in overruling the U.S. Circuit Court of Appeals for the District of Columbia, discussed both exemptions and held that the nine documents in question need not be disclosed under the Act. Justice White, writing for the Court, interpreted the Freedom of Information Act to mean that of the nine documents in question, six that were alleged to fall within exemption 1 because of their classification as secret documents were exempt even from in camera judicial inspection, as well as from public disclosure. Justice White went on to consider the relevance of exemption 5 (exempting intra-agency material not available to a party in litigation with the agency) to the other three documents. EPA described these documents as intra-agency memoranda concerning policy considerations only, not factual matters, and as such covered byexemption 5. He concluded that although exemption 5, unlike exemption 1, did not prohibit in camera judicial inspection of documents, neither did it require such inspection, as the Court of Appeals had asserted. In modifying the lower court's remand order, Justice White allowed EPA to avoid in camera judicial inspection by proving through affidavits and testimony that the material was not factual in nature.

Justices Brennan and Marshall entered a partial dissent, arguing that neither of the exemptions in question preclude in camera judicial inspection of requested government documents. Both urged such inspection as proper means of judicial determination of the appropriate extent of disclosure.

Justice Douglas dissented vehemently, asserting that "the much advertised FOIA is well on its way to becoming a shambles" if documents can be immunized from in camera inspection merely by stamping them "Secret." Given the majority's opinion, Douglas' characterization of the effectiveness of the act has a substantial degree of validity.

Yet a more insightful view came from a concurrence by Justice Stewart. He contended that while the barring of in camera inspection was unfortunate, it was not the Court, but Congress which established an exemption so sweeping that it decreed "blind acceptance to Executive fiat."

In response to the opinion in Mink and to the report of the House Committee on Government Operations (Moorehead Committee),⁸ the Senate Subcommittee on Administrative Practice and Procedure began hearings in April 1973 to consider remedial changes to the Freedom of Information Act. The bill reported out by the committee (S.2543) and the House Bill (H.R. 12471) reflect a determined effort to deal with the major deficiences of the 1966 Act.

First, the new legislation replaces the provision in the 1966 Act that required that a request be for "identifiable records" with the language that a request must only "reasonably describe" the records desired. Also, the legislation provides that indexes be kept up to date and available to the public.

Time delays are also summarily dealt with by establishing a ten-day limit for the government to respond to an initial request and a twenty-day limit for response to an appeal. Moreover, the time allowed the government to respond to a complaint filed in court under the new act [4 ELR 10118] has been reduced from sixty to forty days. Exceptional circumstances may entitle the court to grant further time, but the legislation, if enacted, should speed the disclosure process and prevent unnecessary delays.

The problem of excessive fees for locating and copying documents is solved by requiring the Office of Management and Budget to establish a uniform fee scale which compensates for direct costs only and does not allow for charges beyond real costs. These charges may be lowered or waived by an agency, but they may not be raised.

In addition, the new bill carefully attempts to eradicate the imbalance between the high costs imposed upon a party challenging an agency refusal to disclose material and negligible costs imposed upon the official who refuses it. First, in order to lower the risk to plaintiffs unjustly losing a strong case, the bill establishes venue for Freedom of Information Act cases in the District of Columbia. It was the Subcommittee's opinion that this court has developed an expertise both on freedom of information questions and in the more general realm of government documents and requirements of secrecy. It was felt that this expertise would increase the probability of fair disposition of actions brought under the Act. Second, the Act provides criteria by which a court may reasonably assess and award attorney fees to a plaintiff where the plaintiff is successful. This effectively removes a large barrier to the institution of suits under the 1966 Act.

These provisions do not provide a direct incentive to officials who are reluctant to turn over material but have no good reason for not doing so. Realizing this, the bill authorizes disciplinary action, including suspension from the job, in those cases where an official withholds information without a reasonable legal basis. In discussing this provision, Senator Kennedy stated:⁹

"The only mechanism for enforcing the mandates of the Freedom of Information Act has been for individuals to go to court for an injunction, on a case-by-case basis, with great cost and delay. This is an expensive approach. The sanction is intended to encourage administrators responsible for carrying out the Freedom of Information Act to make sure that their actions faithfully carry out the terms of the law."

Senator Kennedy went on to cite three occasions when this provision might apply: (1) when the official ignores procedent and forces an unnecessary court case, (2) when the official fails to acquaint himself with the law and refuses material accordingly, and (3) when the official is clearly basing his refusal on nothing more than obstinacy.

The most difficult problems with the 1966 Act center around the exemptions. Congress realized that maximizing disclosure may impinge upon national security interests and that where the latter were real they should take precedence over the former. However, under the vague provisions of § 3 of the Administrative Procedure Act and to a lesser extent under the more specific provisions of the 1966 Freedom of Information Act the national security exemption was abused. The new legislation attempts to avoid this abuse by establishing specific criteria to determine which information should be withheld and which should be subject to in camera inspection on a case-by-case basis to determine if the material does, in fact, fall within the exemption.The legislation requires the courts to inspect documents de novo, when necessary, to see if they were properly withheld from disclosure and if so whether portions may be severed from non-disclosable sections and then disclosed without loss of meaning. As a result of these additions, no claim of confidentiality is immune from judicial scrutiny, and no document or portion thereof which does not require secrecy may be kept secret merely because of its connection to one which does require secrecy. Finally, an examining court is specifically given the discretionary right to examine any and all documents in camera. The new statute in effect would reverse the rule of EPA v. Mink on the question of Exemption 1.

The granting of power to conduct in camera review of all classified documents should reduce the likelihood that the exemptions will be abused so as to limit disclosure of information. For environmentalists, this means that a potential barrier to informaton on such diffuse issues as weather modification, military activity, atomic energy, and pesticides would be reduced by establishing the availability of a form of judicial review which removes the possibility of material being flatly denied.

Beyond this, the provisions which discourage officials from forcing a case to court (particularly the job-suspension provisions) as well as the provisions relating to allowable response time may be crucial changes for environmentalists. In the past, the major problem confronting public interest groups has not been winning a court case but rather in securing access to information without undue delay, and without recourse to prolonged legal action. The provisions in the new legislation should mean that more disputes will be resolved out of court. They should insure that in most instances officials will consider gravely the impact of delaying or of outright refusing to disclose requested material. It may take a few court cases before the new provisions, if enacted, are taken seriously by officials, but then hopefully most requests for information will be granted with the ease and alacrity that is necessary if interested parties are to be assured consistent access to the information they need to participate effectively in the governmental process.

1. 5 U.S.C. § 552.

2. 5 U.S.C. § 1002.

3. 5 U.S.C. § 552 B (1) (5).

4. Committee on Government Operations, Administration of the Freedom of Information Act, September 20, 1972, p. 21-22.

5. Id., p. 24.

6. Id.

7. 3 ELR 20057.

8. Committee on Government Operations, supra.

9. 120 Cong. Rec. S 9314.