Justice Department takes aim at FOIA uses
Act’s value to journalists downplayed by officials
The IRE Journal, Columbia, MO. Fall 1981
By Rod Perlmutter, University of Missouri
WASHINGTON. D.C. – Proposals by the Justice Department to broaden exemptions to the Freedom of Information Act are unnecessary and would encourage “insidious” government secrecy, according to media organizations and consumer groups.
The Reagan administration proposals, presented by Assistant Attorney General Jonathan Rose before the Senate Subcommittee on the Constitution, would broaden existing exemptions for business information, law enforcement records and individual privacy; allow agencies to charge more for finding requested information; lengthen the time agencies have to respond; and prohibit the use of the FOIA as a discovery tool in administrative or judicial proceedings.
The administration believes, according to Rose, that “the FOIA is a highly overrated instrument for journalists and that legislation is needed to deal with the “significant confusion on what is covered in this act.”
Rose said critics of attempts to amend the act are operating under a misconception that the “FOIA has been the major source on stories about Watergate and the CIA. In truth, most of the revelations came from internal investigations and by material released by congressional investigations.”
Tonda Rush, project director of the Freedom of Information Service Center, said it is misleading to think that because FOIA requests haven’t always produced first-day stories that it isn’t an effective journalism tool. “Good investigative reporters don’t rely on it entirely, but the kind of information they do get from it will be choked off’ if the administration’s proposals are approved. Rush said a 1980 Congressional Research Service study reported that, between 1971 and 1982, at least 276 news stories resulted from FOIA requests, including several on illegal surveillance and harassment of political groups by the FBI. The real total of stones resulting from the FOIA is undoubtedly higher, she said, because the study counted only stories specifically citing the law as a source.
Rush is particularly upset by proposals granting new rights of secrecy to information submitters, including the exemption of “commercially valuable information” from FOIA requests. Submitters would mark information “commercially valuable.” If that information is requested, the agency would send a notice to the submitter. The submitters would have 10 days to send a written objection.
An agency could not disclose the information over the objection of the submitter unless “the failure to disclose the record would injure an overriding public interest,” If the agency does propose to release the information, the submitter can appeal through the courts.
However, if the agency withholds the information, the requester would not be permitted to appeal on the ground of “overriding public interest.” A court could order disclosure of the information only if it finds the agency’s decision to withhold was “arbitrary or capricious.”
Information would be considered “commercially valuable” if its release “may impair the legitimate competitive, financial or business interests of any person or (impair) the government’s ability to obtain such information.”
Under current law, a submitter has to prove “substantial competitive harm” would result from the release of information. That burden of proof would be scrapped under this proposal.
Under the administration’s definition of “commercially valuable information,” Rush said, “any kind of business information could be exempt,” including data affecting consumers’ health and safety. A story that certain television sets were fire hazards never would have been reported under the administration proposal, because the “commercially valuable information” would have been exempt from FOIA requests, she said.
“The broad exemptions for business in formation are not called for,” said Russell Stevenson Jr., George Washington University National Law Center professor. Stevenson, who submitted recommendations on the FOIA to the U.S. Administrative Conference, said there is “no evidence that the present language (regarding secrecy for business information) hasn’t been working reasonably well.”
In a 1980 “non-systematic study” of business information requests, he found only three or four situations where confidential information may have been disclosed as a result of FOIA requests.
Exemptions for law enforcement information also would be broadened. The administration proposal would exempt “all records or information’ for law enforcement. The law now exempts only “investigatory records compiled for law enforcement.” Records would be exempt if their release would “reveal investigatory information relating to an ongoing investigation or enforcement proceeding.” The law now states the release must “interfere with” a pending investigation.
The proposals would exempt all information that would “tend to” disclose the identity of law enforcement confidential sources. The law now exempts only information that specifically “would . . . disclose the identity of a confidential source.” State, local and foreign governments would be considered “confidential sources” under the proposal. Information relating to investigations of terrorism, organized crime or foreign counterintelligence would be exempt with attorney general approval.
The Justice Department report stated that modifying the availability of investigative records, would “greatly alleviate the administrative burdens that currently can be imposed on agencies by requests concerning ongoing investigations.” FOIA requests require the full- time services of more than 300 employees at the FBI alone, the report said.
New confidential source exemptions are needed, because of potential informants’ fear that FOIA requests will reveal their identities, the report stated. “When viewed in context with other information known to a requester, pieces of information obtained through the act that do not appear revealing on their face may enable a requester to surmise the identity of an informant.”
But, said Jack Landau, director of the Reporters Committee for Freedom of the Press, “The FBI, in 15 years, has never been required by any court in FOI litigation to disclose the identity of a single confidential source.”
Rush said exemptions for investigative records on “terrorism” would have kept secret illegal monitoring and harassment of domestic political organization by the FBI. Stories such as a 1978 Progressive magazine article on how the FBI composed a list of dissidents to be rounded up in case of a national emergency never would have made it to print.
In another category, the proposal would exempt “documents created for the personal convenience of any government employee or official.” According to the department report, this includes diaries, journals, telephone logs, desk calendars and “personal or research notes.”
The most insidious, if not worst, package
Andrew Schwartzman, executive director of the Media Access Project, called this “the most insidious if not the worst aspect of the Reagan package.” His organization currently is helping a newspaper reporter request personal documents, such as personal calendars, of a government official. The calendar will help the reporter chart the day-to-day exploits of the official to better “explore suspicions of improper collusions with private industry,”
Schwartzman said he used the FOIA to find out about an unpublicized meeting between Mark Fowler, chairman of the Federal Communications Commission, and the National Association of Broadcasters’ board of directors. By requesting and receiving Fowler’s personal calendar, Schwartzman learned the meeting was scheduled but unannounced, and was held at the NAB.
“This meeting was not just behind closed doors.” Schwartzman said, “but it was also a case of ‘the mountain going to Mohammed.’ “Under the Reagan proposals, Schwartzman could have been denied the information.
Besides creating new exemptions for information, the proposals would amend FOIA procedures. The administration would perm it longer response times for requests, based on its complexity and the estimated amount of work required to fulfill it.
Requests “which are sufficiently identified and limited” and require less than eight hours of search and review time would trigger the 10- to 20-day limits for responses. For requests requiring more than eight hours of work, the agency would have up to 30 days to decide whether to comply. If the agency needed more time to comply, it would have to tell the requester how much time it needed. The ultimate limit would be one year for processing a request, six months for determining an appeal.
Each agency would be required to provide expedited processing for requests in the public interest. These requests, by news media and nonprofit organizations, would be given priority — replacing the current system of “first in, first out” for requests.
Agencies also could charge more in fees far complying with a request under the proposal. The requester could be charged for “all costs reasonably attributable” to the search for documents, including the cost of analysis. The law now permits agencies to charge only for search and duplication costs. There would be additional fees for “technological information that has a commercial market value and that was generated … by the government at a substantial cost to, the public.” Requests for information that serves a “public interest” would still be eligible for fee waivers under the bill.
The Justice Department report stated the direct cost of compliance was $57 million for 1980 — considerably larger than the 1974 estimates of annual costs between $40,000 and $100.000. Only 4 percent of those costs were recovered from fees to requesters, the report stated. The fee proposal “would ensure that those who would take advantage of the FOIA … for purely personal or commercial purposes are not subsidized at taxpayers’ expense, and would encourage all requesters to make reasonable efforts 10 narrow excessively broad requests.”
Schwartzman said the fee proposal would increase his organization’s costs. Even though the Media Access Project is a non-profit group, it recently had to file four different appeals after agencies refused to give fee waivers for FOIA requests. Underline new standard, “it would be that much harder (to get a fee waiver) and the cost would be that much greater.”
Stevenson, however, said the fee proposal “wasn’t a bad one, providing that the fee waiver provision should be liberally administered.” He said he agreed that commercial users “should pay full freight” For their requests, but added newspapers shouldn’t be considered commercial requesters.
Bo Jones, a Washington Post attorney, said that requests for fee waivers are rarely denied by agencies because the newspaper is considered a “commercial user” of information. The last time that happened was when a reporter wanted information on former Maryland governor Marvin Mandel from the U.S. Parole Commission. Jones said he relented and paid the fee — $2.33.
The administration also has proposed prohibiting use of the FOIA as a discovery device in a judicial or administrative proceeding. Rose testified that “there were people who, once involved in a suit with the government, simply swamped the government attorney with FOIA requests” in an attempt to harass.
But this prohibition would severely harm the public interest, said C. Frederick Ryland, attorney for the Washington law firm Perito, Duerk, Carlson and Pinco. The firm used the FOIA to discover the basis of a Health and Human Services Department inquiry into an alcoholism-treatment program used at the law firm’s client hospitals. The firm discovered that federal officials who opposed the form of treatment attempted to alter the unanimous pro-treatment conclusion of an expert panel “so that (an earlier) biased and flawed report… would not appear to be so blatantly biased.”
Without the FOIA, Ryland said, the firm would have been unable to defend its client’s interests. “By the time we would have gotten the information, it would have been too late to ensure a fair hearing,” he said.
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