FOIA Update: FOIA Reform Legislation Enacted

FOIA Update
Vol. VII, No. 4
1986

FOIA Reform Legislation Enacted

In a relatively sudden development after years of legislative deliberation, Congress passed major FOIA reform legislation shortly before adjourning in October.

Entitled the "Freedom of Information Reform Act of 1986," the legislation amends the FOIA to provide broader exemption protection for law enforcement information, plus new law enforcement record exclusions, and also creates a new fee and fee waiver structure. Signed into law by the President on October 27 as part of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, its law enforcement provisions became effective immediately, but its fee provisions will not become effective until next spring.

The FOIA Reform Act of 1986 contains all of the modifications to the FOlA's law enforcement exemption (Exemption 7) that had been sought by the Department of Justice over the years, including a significant lessening of the exemption's overall harm standard. In this regard, it is almost identical to that part of S. 774 -- the FOIA reform bill that passed the Senate, but not the House, in the previous Congress.

The Act's new record exclusion provisions extend beyond any regular exemption protection by permitting agencies, under certain special circumstances, to treat existing records as not subject to the FOIA at all. Located in new subsection (c) of the statute, these exclusions apply only in specifically described situations -- involving ongoing proceedings, informant protection, or terrorism or foreign intelligence matters -- in which exemption protection alone would not always be adequate.

Additionally, the Reform Act revises the FOIA's fee and fee waiver provisions to establish a multi-tiered structure for the assessment of FOIA fees. For the first time, it will allow agencies to charge the costs of actual document review, wherever requests are made for commercial purposes. All requesters will be subject to the more standard FOIA fees according to the categories in which they fall, with requesters still entitled to seek a complete waiver of fees under a revised general fee waiver standard.

Passage of this amendment package culminates years of effort by the Department of Justice to obtain legislative relief from the FOIA for federal law enforcement agencies. These efforts were spearheaded by Senator Orrin Hatch (R. Utah), Chairman of the Senate Judiciary Committee's Subcommittee on the Constitution, with the bipartisan assistance of Senators Patrick Leahy (D. Vt.) and Dennis DeConcini (D. Ariz.) of that subcommittee.

Despite extensive evidence showing the need for greater law enforcement record protection, including repeated testimony by FBI Director William H. Webster, however, it was not possible to move such FOIA reform legislation through the counterpart subcomrnittee in the House of Representatives. In fact, as time passed, a "counter-reform" effort was launched by those who sought to make the FOlA's requirements more stringent in many ways.

As the 99th Congress drew to a close, though, the prospective enactment of omnibus anti-drug legislation presented a rare opportunity for achieving related FOIA reform. Seizing this opportunity, Senator Hatch injected into the anti-drug bill the law enforcement provisions of the FOIA reform bill (S. 774) which previously had passed the Senate. This triggered intensive FOIA reform deliberations by congressional negotiators and other interested parties as the legislative session neared adjournment.

What emerged was a legislative package that comprehensively addressed the need for law enforcement FOIA reform without unduly burdening federal agencies with the many procedural requirements that opponents of FOIA reform had sought. Remarked Assistant Attorney General Stephen J. Markman upon the conclusion of this process: "We are quite pleased to have been able to obtain, through the leadership of Senator Hatch and others, such a valuable amendment package at this time. The strength of its much-needed law enforcement reforms will make whatever fee adjustments it requires entirely worthwhile."

Highlights of the Reform Act's changes and additions to the FOIA are as follows:

Exemption 7

• The threshold language of Exemption 7 is broadened to encompass both "records or information compiled for law enforcement purposes," a formulation which also drops the former requirement that the records be "investigatory" in character.

• The exemption's harm standard is considerably lessened, from "would" to "could reasonably be expected to," under Exemption 7(A) (protecting ongoing proceedings), Exemption 7(C) (personal privacy), Exemption 7(D) (law enforcement sources) and Exemption 7(F) (physical safety).

• Exemption 7(D) is reworded to expressly provide a greater range of source protection.

• Exemption 7(E) is expanded to cover prosecutorial techniques and law enforcement guidelines.

• Exemption 7(F) is broadened to extend its protection to any individual.

Exclusions

• Under the new "(c)(1)" exclusion, any agency possessing records of an ongoing criminal investigation or proceeding (covered by Exemption 7(A), as amended) can treat them as not subject to the requirements of the FOIA if "disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings." An agency may do so only where it reasonably believes that the subject of the proceeding is not aware of its pendency, and only so long as that circumstance continues, but it can apply this exclusion even where an investigation involves only "a possible violation of criminal law."

• Under the "(c)(2)" exclusion, all criminal law enforcement agencies may likewise exclude informant records to resist targeted efforts by third parties to ferret out informants.

• Under the "(c)(3)" exclusion, the FBI is empowered to exclude records pertaining to foreign intelligence, counterintelligence, or international terrorism whenever the existence of the records is a classified fact.

Fees and Fee Waivers

• Agencies will be able to charge the costs of reviewing documents for the purposes of applying FOIA exemptions, wherever records are sought "for commercial use."

• Agencies will not be able to charge search fees to educational or noncommercial scientific institutions or news media requesters.

• The general fee waiver standard will provide for waivers where disclosure "is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester."

• Noncommercial requesters will be entitled without charge to two hours of search and 100 pages of duplication per request.

• An agency will not be able to require advance payment of a fee unless the requester's prior failure to pay a fee makes such a deposit warranted or unless the fee exceeds $250

• Fee waiver issues will be adjudicated in court according to a de novo standard of review, but the scope of such review will be limited to the administrative record created by the agency.

The Reform Act provides for the immediate applicability of all of its law enforcement provisions, as of October 27, 1986, including to "any requests" and "any civil action pending on such date." Pub. L. No. 99-570, § 1804(a). The new fee and fee waiver provisions, however, do not become effective until 180 days after that date, April 25, 1987. See Pub. L. No. 99-570, § 1804(b). (A copy of the FOIA in its amended form, with interlineations showing the exact changes made, together with the full text of this "effective date" provision, can be found at pages 3-6 of this F0IA Update.)

In accordance with the mandate of the Reform Act, the Office of Management and Budget will promulgate governmentwide guidelines for the assessment of future fees under the FOIA, which should in turn be the basis for new agency fee regulations. The Department of Justice will promulgate new governmentwide guidance addressing the making of fee waiver determinations under the statute's new fee waiver standard that will come into effect on April 25. Additionally, the Department is preparing a governmentwide guidance memorandum on the application of the new law enforcement provisions.

Below is the text of the "signing statement" issued upon President Reagan's signing of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, in which he singled out its FOIA reform provisions for special attention:

As I stated in my remarks at the signing ceremony for this bill, I am pleased to sign the Anti-Drug Abuse Act of 1986.

One other matter concerning the Act is worthy of note. This Act contains several important provisions reforming the Freedom of Information Act (FOIA) that will considerably enhance the ability of Federal law enforcement agencies such as the Federal Bureau of Investigation and the Drug Enforcement Administration to combat drug offenders and other criminals. My Administration has been seeking such reforms since 1981.

These FOIA reforms substantially broaden the law enforcement exemptions in that Act, thereby increasing significantly the authority of Federal agencies to withhold sensitive law enforcement documents in their files. The statutory language changes make clear, for example, that any Federal law enforcement information relating to pending investigations or confidential sources may be withheld if its disclosure could reasonably be expected to cause an identified harm. The Act also includes, for the first time, special exclusions whereby certain law enforcement records would no longer be subject to the requirements of the FOIA under particularly sensitive, specified circumstances.

Additionally, this Act makes several changes with respect to the charging of fees under the FOIA. Agencies will now be able to charge and recover the full costs of processing requests for information under the FOIA, consistent with the Federal user fee concept, in the large number of cases in which FOIA requests are made for "commercial" purposes, a term that has been broadly construed in other contexts of the FOIA. At the same time, the Act will somewhat limit the fees applicable to noncommercial educational or scientific institutions and to bona fide representatives of established news media outlets. It is important that no such special treatment is accorded to organizations engaged in the business of reselling government records or information.

Finally, the bill improves the standard governing the general waiver of FOIA fees, by mandating that such waivers be granted only where it is established that disclosure is in the "public interest" because it is likely to "contribute significantly to public understanding" of the operations or activities of the government. This standard is intended to focus upon benefits to the public at large, rather than upon the interest of a particular segment of the public, and thus clarifies the type of public interest to be advanced.

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The four center pages of this issue contain the full text of the FOIA in its amended form. Also, page two contains the text of the special Presidential Statement issue upon enactment of the law.

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