THE AMERICAN UNIVERSITY LAW REVIEW VOLUME 25

FALL 1975

NUMBER 1

SYMPOSIUM ON THE 1974 AMENDMENTS TO THE FREEDOM OF INFORMATION ACT

NEW OPPORTUNITIES FOR OPEN GOVERNMENT: THE 1974 AMENDMENTS TO THE FREEDOM OF INFORMATION ACT AND THE FEDERAL ADVISORY COMMITEE ACT* RALPH NADER**

The new amendments to the Freedom of Information Act (FOIA)' are only enabling. They will once again test whether the rule of law can overcome the rule of power. Any student of the regulatory process can observe how regulatory procedures are circumvented or overridden by the daily attrition of de facto power in any agency or department. Such circumvention has greatly limited the effectiveness of the original Freedom of Information Act. We see over and over again how an agency, if it does not wish to observe congressionally mandated administrative procedures, will back up on its processes or extend them around the flank of the procedures in order to circumvent them, and, in effect, nullify them. The new amendments, which will be discussed in detail in the following articles, provide a second attempt to ensure that these power overrides do not succeed. One solution, of course, is to increase the incentive for bringing lawsuits. As far as lawyers around the country are concerned, that incentive is the prospect of obtaining attorneys' fees under the new amendments when requesters sub* Copyright Center for Study of Responsive Law, Freedom of Information Clearinghouse. ** A.B., 1955, Princeton University; J.D., 1958, Harvard Law School; Managing Trustee of the Center for the Study of Responsive Law, Washington, D.C. 1. 5 U.S.C.A. § 552 (Supp. 1, 1975), amending 5 U.S.C. § 552 (1970).

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stantially prevail.2 Another solution is to include disincentives for conduct detrimental to the public. Thus, Congress has provided for the first time a statutory provision requiring sanctions, albeit very mild ones, for arbitrary withholding. These sanctions are to be imposed on egregiously offending officials by the Civil Service Commission.3 Professor Robert Vaughn, drawing on his extensive studies of civil servant accountability, offers some predictions as to how the Civil Service Commission will implement its new responsibilities under this amendment. His second article also underscores the revolutionary nature of this seemingly innocuous sanction provision by reviewing the vast body of law that has grown up to immunize government officials from accountability. As the 1974 amendments were being developed, considerable attention was devoted to making the Act more useful to the public in general and to the press in particular4 One of the problems that the first Act confronted was that, as a unique federal law which was to be enforced by the citizenry, it relied on a constituency of potential litigants among the media. But for a variety of reasons, the press has not litigated very much. One reason is that daily deadlines often make requested information less important a day or a week after the time it was needed. A second is a reluctance on the part of reporters and publishers to offend the close relationships that sometimes arise between a full-time reporter and a particular agency. A third is an idiosyncrasy best explained by illustration. Three years ago, the New York Times was proud to say that it never sued anybody. Why that should be a matter of pride certainly escapes some lawyers, yet it was the underlying explanation as to why the Times has always preferred negotiation to litigation in its effort to obtain information under the FOIA. While the National Newspaper Association and the American Society of Newspaper Editors did mount a vigorous campaign to override the President's veto of the amendments, this fact does not guarantee an increase in litigation by their members. 2. Id. § 552(a)(4)(E), amending 5 U.S.C. § 552 (a)(4) (1970). 3. Id. § 552(a)(4)(F), amending 5 U.S.C. § 552 (a)(4) (1970). 4. See generally HOUSE COMM. ON GOVERNMENT OPERATIONS, ADMINISTRATION OF THE FREEDOM OF INFORMATION ACT, H.R. REP. No. 1419, 92d Cong., 2d Sess. (1972);

Hearings on H.R. 5425 and H.R. 4960 Before the Foreign Operationsand Government Information Subcomm. of the House Comm. on Government Operations, 93d Cong., 1st Sess. (1973); Hearings on S. 850, et al., Before the Subcomm. on Inter-

governmental Relations of the Senate Comm. on Government Operations, the Subcomm. on Administrative Practice and Procedure,and the Subcomm. on Separation of Powersof the Senate Comm. on the Judiciary,93d Cong., 1st Sess., vols. 1, 2 (1973).

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The requirement that investigative reporters rely on the leak or the manila envelope without a return address may make for exciting dramatic reporting, but it does not help to verify the information; and it does not, of course, help to insure that the information is released early, perhaps before a crisis matures. That is why it is not sufficient to assume that if information is important enough it will get out. When it gets out is what is crucial. There is such a thing as when is truth, as well as what is truth. The new time limits,5 as well as broadened access to information which was previously shielded under secret 6 and investigative 7 stamps, should increase media use of the Act as reporters and editors accustom themselves to the use of a new journalistic tool. The procedural aspects of the recent amendments were not based solely on theory, but also rested on a great deal of experience. 8 In this respect, losses in court under the Act proved quite useful in delineating the kind of malfeasance or misfeasance that escaped the disclosure requirements of the original FOIA.9 Anyone who denies that persons in the government are creative should examine the pattern of circumvention of the FOIA. Unfortunately, some agencies, in their rules governing the administration of the Act under the 1974 amendments, have again exhibited this creativity in attempts to slide around the new requirements. For example, the Justice Department is trying to lengthen the 10-working-day limit for response to an initial request by ruling that if search and copy fees are expected to exceed $25, the agency will inform the requester of the anticipated fees and the request will be deemed received only after the requester agrees to pay.1 Some other agencies seem to be following that misguided precedent. 1 This must be seen as an attempt to evade the congressional decision that a requester has a right to a determination of availability within 10 working days. Similarly, the Food and Drug Administration has flouted congressional intent with respect to fee waivers by requiring a statement of 5. 5 U.S.C.A. § 552(a)(6) (Supp. 1, 1975), amending 5 U.S.C. § 552(a) (1970). 6. Id. § 552(b)(1), amending 5 U.S.C. § 552 (b)(1) (1970). 7. Id. § 552(b)(7), amending 5 U.S.C. § 552 (b)(7) (1970). 8. See note 4 supra. 9. Environmental Protection Agency v. Mink, 410 U.S. 73 (1973) (classified information); Center for National Policy Review v. Weinberger, 502 F.2d 370, (D.C. Cir. 1974) (investigatory files). For a listing of additional cases see 502 F.2d at 372 n.1. 10. 28 C.F.R. § 16.9(c) (1974). 11. E.g., Energy Research and Development Administration, 20 C.F.R. § 709.12(i); Department of Labor, 29 C.F.R. § 70.47(c); Department of the Interior, 43 C.F.R. § 2.14(c)(3); Department of State, 22 C.F.R. § 6.14(c).

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financial status from requesters seeking a waiver,' 2 rather than by determining whether the waiver is "in the public interest because furnishing the information can be considered as primarily benefiting the general public.' 3 Although fees should generally be waived for indigents, the imposition of an indigency requirement as a waiver prerequisite has no statutory basis." Other agencies have imposed outrageously and unjustifiably high search and copying fees. The Department of Transportation imposes an automatic and arbitrary search charge of $2.00 for each record requested. 5 If these and other yet-to-be-encountered attempts to frustrate the amendments are to be overcome, there must be both a broader litigative use by aggrieved citizens and organizations and a more vigorous congressional oversight of agency performance than we have witnessed in the past. In addition to important procedural changes in the Act, Congress in the new amendments also reversed restrictive court rulings on the national security and investigatory files exemption.' 6 As Morton Halperin makes clear, the right to obtain judicial review of whether the Executive branch is following its own rules regarding classification of the information is a modest, but important, step forward in widening public access to government information and in providing a check on the runaway use of the confidential, secret, and top secret stamps. Congress has also required that in order for the Executive to withhold either criminal or civil investigatory records, it must show that certain specified harms would flow from disclosure of such records. Larry Ellsworth writes of the questions and problems that can be anticipated in applying these standards. Just as the Freedom of Information Act is designed to create public access to government records, the Federal Advisory Committee Act (FACA)' 7 is designed to create public access to the vast and powerful network of government advisory committees - institutions which have compiled a staggering record of abusive private influence in public affairs. 8 FACA is an admittedly weak piece of legislation and executive branch compliance with the Act's minimal 12. 21 C.F.R. § 4.43(c)(1). 13. 2 U.S.C. § 552(a)(4)(A), (Supp. 1, 1975), amending 5 U.S.C. § 552 (a)(4) (1970). 14. Compare S. REP. No. 854, 93d Cong., 2d Sess. 12 (1974), with H.R. REP. No. 1380, 93d Cong., 2d Sess. 225 (1974). 15. 49 C.F.R. § 7.95(a). 16. Compare note 2 with note 10 supra. 17. 5 U.S.C. App. I, (Supp. IR, 1973). 18. See, e.g., H.R. REP. No. 1017, 92d Cong., 2d Sess. 6 (1972). See generally

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requirements has been even more feeble. Barbara Tuerkheimer, drawing on her experience with the Freedom of Information Clearinghouse's advisory committee monitoring project, describes FACA's quiet existence imposed by bureaucratic misuse. Indeed, FACA is in even more desperate need of strengthening amendments than was the FOIA, and one hopes that the current Congress will respond to this need along the lines of the suggestions propounded by Ms. Tuerkheimer. The following articles anticipate the administration of the FOIA under the recent amendments, point out needed initiatives with respect to FACA, and highlight necessary added protections for federal officials and employees who dare to tell the truth. An aggressive public and press may yet establish a base of experience within a short period of time which will establish whether the amendments will indeed work. If they do not, it is fair to predict on the basis of Congress' recently increased oversight and retuning of the 1966 Act, that the FOIA and its cognate areas will become, like the Social Security Act, subject to periodic refinements and amendments in succeeding years. Hearingson S. 1637, et al., Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Government Operations, 92d Cong., 1st Sess., pts. 1, 2 (1971).