ML20003F349
| ML20003F349 | |
| Person / Time | |
|---|---|
| Issue date: | 09/23/1980 |
| From: | Donoghue D NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Cornell E NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19284C410 | List: |
| References | |
| FOIA-81-13 NUDOCS 8104200645 | |
| Download: ML20003F349 (9) | |
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4h UNITED STATES NUCLEAR REGULATORY COMMISSION 3, f.Q (v'd,WW) /
WA$mNGTON, D. C. 20555
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SEP 2 31980 MEMORANDUM FOR:
E. Kevin Cornell, Deputy Executive Director for Operations FROM:
Daniel J. Dongchue, Director Office of Administration
SUBJECT:
NRC'S DOCUMENT CONTROL SYSTEM: 0ADM EVALUATION OF USEFULNESS
Reference:
Memo, Cornell to Multiple Addressees, "NRC's Document Control System," dated September 9, 1980.
We are responding to your request for an evaluation of the NRC's Document Control System (DCS) as you requested: first by giving you my own personal views on the DCS, and secondly, by answering your four (4) questions in the order they were asked.
First, my own views of the DCS are that it has been an administrative asset alm:st from the beginning of the time the contract was let on June 2, 1978.
As you may know, the NRC had set up a semiautomated system (called DACS-Document Accession and Control System) to try to control the documents that were being sent to the FDR.
Before DACS the PDR staff (and all the over-time help they could get) had to spend long hours manually typing lists Of the documents they received daily (about 50 :ocuments/ day in 1977) before the documents could be filed. Similarly, the various file rooms withi. the NRC kect manually-produced legs, noting the various availabilities of documents.
When TERA came to the NRC in 1978, more than 1500 manually-produced logs esre maintained routinely. Those mentioned above were the largest and most time-consuming to maintain. Now, the large-volume logs have been automated. But that is not what I see as the greatest benefit to the Commission as a whole.
Before we were automated, there was no document control. Distribution was controlled t: the extent possible, bFi the agency was still in its infancy, underg:ing numerous changes. The volume of paper was increasing rapidly (for example, the volume increased about 245 between 1977 and 1978) and few mechanisms were in place to ensure an orderly crocessing of paper handling in an agency that has the larcest paper volume per capita of any in the Federal Government.
To make conditiens more demanding, very few administrative cer:ennel and functions had been retained when the old AEC was split into NRC and ERDA (in 1975) and, c mparatively few were allowed to be hired in the first couple of years after the NRC was formed. TERA not only took over the DACS functions, but also assumed the pr: duction of the substitute for the power Reactor Docket Informatinn, a title list and subject index of documents made pubiicly avaiiatie.
Inis nac 8104200 M 5
O D been generated for the AEC's Director of Regulation by the Technical Infomation Divisir We have estimated that the first two years of the contract paid for itself from assuming these two functions, alone. This does not account for the production of microfiche from the documents. Also, the icpact of something as visible as the accident at TMI-2 would have been unthinkable, had we not had an automated system with which to respond. There is no way we could have responded as we did to the demands for documents and information that were the aftershocks of TMI-2, i.e., the various committees, Conrnissions, study groups, etc. We might note that none of the reports prepared by these various groups have criticized the NRC's documentation and response to them or to the public. This cannot be said for the aftermath of Brown's Ferry. For your infomation we are enclosing a write uo from the Department of Justice discussing our response to FOIA's.
Little of this would have been pessible without the System.
While the ultimate System is, and has been, designed and is being implenented as a fundamentally scientific and technical infomation (STI) system, the first two years have been abscrbed by administrat ve functions. Aside from TMI-2 and i
aftemath, a number of administrative cetails and functions had to be established from scratch so that a good STI system would have the pr00er foundations.
The Technical Information portiens were scheduled to begin ab:ut March 1950.
In fact, they were begin about July so that mu:5 of the time we lost with TMI-2 and the f:llow on (fr = abcut Acril 1979 througn March 1950) has been essentially made up through overtime an: mu:n extra effort on the oar: of TIDC and TERA cersennel. Our estimates are that TMI and resultant engoing efforts have already cost us about eight months on our original schedule for imolementing the technical information portion of the contract. We are making uo the setback as fast as possible.
On balance, I have, personally, been quite satisfied with the performance and resconsiveness of the System and the TERA staff. They and the TIDC staff had the foresight to build a good deal of flexibility with the System which has allowed NRC to absorb the effe:ts of a major shock.
To answer your specific questions:
1.
The above remarks should indicate that I am most satisfied with the CCS cver the last ceuole of years.
I look forward to the things that can be a:::: lished to aid the technical staff members if the System is given the slightest chance.
2.
Our cost savings have been comouted on the basis of extracolating 1977 flows to the current level and assuming a steady increase from the 50 documents / day to the ?DR in 1977 to the current document flows of 1000 documents / day going into the System. Of the 9000 documents / day that the NRC either receives or sends, abcut
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3-1 one thousand (1000) of these are processed through the System, because: a) the System serves as our official agency archival listing for all record material, and b) the documents sent to the PDR are processed through the System to provide i
control for the PDR. An average of about 650 documents / day go to the PDR/LPDR and are catalogued into the System. When we have folded in all record document floves, we expect the processing load to increase to ab:ut 15Fdocuments/ day.
We expect to be at this level by June 1931.
j Based on these data and assumptions, we estimate that the System replaced functions that we would have had to pay about 58 million for during the two years that the contract has been operational. One division within the Office of Administration has already been able to realize a manpower avoidance of at least five people, i
Additienally, we have been able to maintain services in at least two 0ADM Divisions witn fewer people. Therefore, we feel the System has contributed measurably to the efficiency of the OADM already and will centinue to do so.
3.
We assume by your cuestion that you mean that all automated services would I
be terminated and that we (HRC and 0ADM) would be forced to revert to pre-1976 methods to handle a volume of paper that has increased by about four fold.
Tc OADM, as well as the NRC, this would esan that ea:h office would be required to utili:e about 25-30 positions te suco:r: distribution control, maintain mailing lists, and sear:h/re:rieve cecuments necessary for the ongoing day-to-day a::ivities of the varicus offices. Similarly, it is very likely that each cffice w uld pr:bably be recuired t: add personnel to handle FOIA recuests, or that the werk Of each Office would almost s:co while all personnel retrieved documents.
1 Finally, the NRC's mandate to anncunce documents tha; are available to the :ublic w:uld be seriously icosired, and, as noted ab ve, w uld most likely be a manual i
- ycing operation to procuce legs for the PDR. The current delivery and document c:ntrol that is provided to the PDR would step. Delivery and marking would return i
to its old methods of being determined by individuals with no screening. A i
secondary, but by no means insignificant, effe:t would be to cause the bill for the GPO print orders to go up because a mu:h larger volume of material would Or:bably be placed in the Federal Register (FR), by the staff.
(The cost of l
including an announcement in the FR has risen from n: thing (50) in FY 79 to 3372 per, age now).
There are numer:us other effects that would result frc terminating the DCS;
- cwever listing the separately would take much time. The overall effect w:uld be d:
Mally reduced services to the public and effectively cutting off all suoper:., the program and staff offices. For 0ADM, alone, a number of differen:
Divister.s~ sould be recuired to contract for help. Much of that assistance would be duplicative frc= Divisien-to-Divisicn. For example, the document listing needed by tne LPDR 3 ranch in the Division of Rules and Records is a subset of the so-called chronological listing needed by the Records Services Branch cf TIDO.
However, without a cc:puter to sort lists and generate special reports, each
4.
list must be made up manually for each separate Branch; or the list could be typed once, copied and cut-and-pasted. Either way it is tremendously manpower intensive. The volume and type of records keep this from being a trivial task in terms of dollars, alone.
4 There are several things that could be done by the System to make it even more useful to the OADM staff than it is now.
In an effort to keep the overall costs down as much as possible, the number of 24X microfiche for ongoing daily document flows has been stopped. This means that the LPDR Branch must rely on NTIS to produce the 24X fiche so NRC can send copies to the LPDR's around the country, introducing a wait line that is greater than we would prefer. Although TERA does do special reports at 0ADM request, we try t'o keep tham at a minimum, thus introducing a restraint factor that we would not normally employ.
From a contract management point of view, we (NRC) cannot make the fullest use of the System without additional video terminals. We have tried to "make do" with digital terminals and 48X microfiche files for the staff to try to reduce the amount of pacer. Hcwever, the maintenance of these files is more labor-intensive than we would like.
For example, it is new recuiring about 1.75 mandays/ week to maintain about 20 tub files. While we think that this mancower c:ulc be better utili:ed by allowing the remote distribution of page images (via video distribution), it is now necessary to orovide this support to the staff. As tne number of tub files increase so will the manpower required for maintenance. Simply ruplacing the hard copy with microfiche does not resolve the access and retrievability problems for the staff or public.
fN lAuf Daniel J. Donoghue, Director
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Office of Administration cc: S. Ccnver, OMPA w
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terpreted broadly to include pre-In 1974 Congress amended FOIA fiscal year 1974 and 5100.000 for I
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to strengthen public ac:ess to gov-each of the su::eeding five fis:al
- ) No search fees w ould be enm.eg; ern: ant information. The legislative y ears."
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$ Cepres of all released docu-history shows tnat the cost et this en-In early 1979 the Office of Infor-i ments would be made publie!v assil, hanced a::ess was thought to be rei-mation Law and Poli:3 survey ed fed-l ab e as soon as possible in'NRC's arisely small. The Senate Committee eral agen:ies on their 1978 costs and l
Fueli: Document Rooms in both on the Judiciary determined that "the gams in administering FOIA. A tab-l Washin: ton. D.C., and Hamsourg, total maximum projected cost of ulation of the resp:nses shows FOIA Pennsyliania; S 2543 Sould be 540.000 per y ear."
costs in 197S of an esumated 547.8 W A computerized indes, with and the House Committee on Gov-million. consicerably in excess of the fre:uent updates, would be availaole ernment Operations determ:ned that Congressional cost estimates of fise i
fer em 2::ess to all re: cased co:u. " additional costs that may be re-years cather. Well oser 50 per:ent of I
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i NRC's COMPUTERIZED INDEX FOIA UPDATE One er ihe ker acitr, which FOIA Counselor r
helped in processinF the voluminous P'ubiished quarterly by the Office of quantity of rec rds involved in the Information Law and Policy, U.S.
FOIA requests was NRC's computer. What is a FOIA Department of Justice, Room 5259, azed document control system which is perated by a contractor. As soon Request.
Washington, D.C. 20530.
Telephone: 202/633-2674.
as documents were reviewed, they Robert L. Saloschin, Director were f rwarded on a daily basis to the This question has caused much Douglas S. Wood, Deputy Director c ntractor who assigned each one a confusion for years.
Kathryn M. Braeman, Deputy unique number, indexed it, and en-The answer to the question deter-
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Director and Editor tered it into the computerized system. mines whether a given request is one Daily prtntouts were prepared which which obligates an agency or least to FOIA IN CRISIS were eventually compiled into bound consider the requester's rights or (Continuedfrom page 1) volumes listing some 7,000 docu-claim of rights under FOIA. The The NRC's Executive Director for ments which ranged in length from present discussion deals with the Operations also sent a notice to re-one page to several hundred.
question in this sense. And the answer mind all NRC employees to preserve As soon as the documents were in-may often be yes, it is a FO!A re-
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all records concernine TMI. This was dexed, they were forwarded to NRC's quest, even if it is defective under followed bv a second notice request-Public Document Room (PDR), lo-FOIA. If, as discussed below, a re-ing all emp'loyees involved in the ac-cated at 1717 H St., N.W., in quest is defec'ive, the agency's obli-cident to record, for anv subsequent downtown Washington, D.C., and to gation can often be satisfied by in-investigation, their recollections of a PDR in Harrisburg, Pennsylvania, forming the requester of the defect. If the first two davs after the accident.
not far from the TMl site, it is not, however, the agency must FOIA staff sent periodic responses comply with all FOIA processing re-HANDLING TMI REQUESTS to the requesters-one requester re-quirements; i.e., scarch, examination C8 8
M P n 8 -n S 2n 2n8Iy1 an Frasg of accen NRC received its first FOIA re.
them as new categories of records to all non-exempt material within the 9
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were released. Requesters were sent scope of the request.
seven days after the accident. By that copies of the title lists as thev were time, plans for handling FO!A re-printed so they could send mail' orders THE STATUTE sponses were well underway. FOlA for the documents thev wanted.
coordinators in every NRC Ofuce The stature obligates federal agen-Three Mile Island was an acid test eies to respond to "any request for were notified to forward copies of all iMI documents to the FOIA Branch of the Gosernment's FOIA poliev. It records" from 'any ' person." 5
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prosed that, gi$en a strong F' IA U.S.C. !552(a)(3). The only' lim.
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O in the Division of Rules and Records, which is responstele for answering all commitment, a well organized plan of itations in the statute itself are that the FOIA requests. This Branch sent rocedure, a spirit of cooperation request must be one "which (A) rea-some of its own staff to the trailer of-within the agency, and a wi!!ineness sonab!v describes such records and bv responders to waive rigid dead- (B) is "made in accordance with pub-fices hastily insta!!ed on Three Mile Island. There they worked side ey ;jnes-combined wrth the availability lished rules r,tating the time, place, side with the technical staff, making of a sopnisticated technolog"can op-y the fees (if anv), and procedures to be
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Freedom of Information Act followed.
crate effectively in a time of crisis.
(Continued, page 7) nk was d n t e or einals, a began the review for information 8 W',7 3
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FOIA UPDATE Winter 1980
8 us. ocpartment or Justice FOIA UPDATE E
Office of Infomation Law and Policy 8 @es,..
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Policy Discussion: Business Confidentiality After C/ rv hh Although the Supreme Coun issued a lengthy decision in However, the issue'is not this simple, because there are April,1979, on the law surrounding "reserse" FOIA suits other statutes and legal principles which govern release of (see Chrysler Corp. v. Brown. 441 U.S. 281 (1979)), this information besides FOIA. Congress recognized this prin-decision leases sescral en::ial issues unde:ided, making it ciple when it passed FO!A, as shown by FOIA Exemption impossible to provide a comprehensive and cenain state-
- 3. This exemption, in essence, provides that cenain stat-men: of what the law invobed in such "reserse" suits is at utes which prohibit disclosure of information will actually
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present.1n June.1979, the U.S. Depanment of Justice, be read into FO!A itself and may control the agency's a:-
after identifying the unresolved issues, set out its position tion.
on those issues for the guidance of agencies.
This interfa:e of laws is where many of the problems The Offi:e of Information Law and Policy on June 15.
arise in reverse FO!A suits.
1979, and the Civil Division on June 21. 1979, issued In view of these perplexing problems, a suggested pro-separate papers. The following article summarizes those cedure is set fonh below for analyzing and handling FOIA papers and was prepared by Douglas N. Letter Appellate requests for information submitted to the federal govem-Staff, Civil Division, and Daniel Clement, Assistant U.S.
ment by businesses.
Aecy, Offic: of the U.S. Attorney, Los Angeles, California, in consulta: ion with Douglas S. Wood, Deputy Director, and Rocen L. Saloschin. Dire: tor. Office of In-formation Law and Policy.
Basic Steps fOr Agency Processing Of TO RELEASE OR TO WITHHOLD?
FOIA Requests fOr DiscIOsure Of Reserse Freed m of Infe=ation A:: GO!A) lawsuits hf0Ntion GeneratM 'ov Private ame after a person requests infomation centained in :ne re:ords of a gosemmen: agency which the submitter of that Business Sources infctmanon does no: want released. The su mitter goes to court to bio:k an anti:ipated release by the agency. Al-Agency at::meys and administrators reviewing FO!A though :he Supreme Coun held in Chrysler inat there is reques:s for disclosure of informa: ion submitted to the no:hing in FOIA which authonzes a person :o file a reverse gosernment by p-ivate business sources ("submitters")
FOIA sui: the Ccun held ma: review by the couns was should consider tne fe!! ewing basi: procedures:
asailab!e under Se : ion 10 of de Adminis:ra:ise Procedure A:t. 5 U.S.C. !70 cr. seg. (1976). Wha:es er the techr.i.
STEP ONE: ANALYZE FOIA EXEMPTIONS cal le;al basis for such a suit, the popular phrase " reverse AND THE TRADE SECRETS ACT rO!A suit centinues in use to desenbe su:h legal a:tions.
Typt: ally, reurse FOIA suits are filed by business cor-When a FOIA recuest for information obtained from a poranons to blo:( release of information regarding their submitter is received, the first inquiry concerns FOIA it-ow n business affa: s. These suits have often invobed equal self. The arenev rnus: determine if Inv FO1 A exemption empic> ment oppor: unity information which executtse or-applies to :he rebuested informa: ion. Us'ually in the res erse ders recuire gosernment contra: tors to rile. Requesters FOIA context only exemptions 3,4. and 6'need be exam-seek :nts informa: ion in order to anah:e enforcement bs
"*a the Department of Labor's Office c'f Federal ContraE:
Comp!iance of the exe:utive orders requinn; equal oppor-Exemption Four tunines for emp!oyment with govemment contractors for minonties and women. The contractors who submit the The most likely exemp: ion is Exemption 4, which s:ates infomation ha.e sought to block release of much of this that the acenev mav withhold eenain commercial informa-data because the) contend that it reveals confidential de-non. This' exer'nption has generally been interpreted chicGy tails con:eming nett operations and personnel which they to cover prisately generated ornmercial information whose wish to keep from their competitors.
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release ts likely to :ause substantial compe:i:ive harm. The The Supreme Coun in Chrysler confirmed again that leading case on Exemption 4 is National Parks and Con-exemptions in the FOIA are permissise rather than man-sceration Assn. v. Morton, 498 F. 2d 765 (D.C. Cir.
d : cry. D.erefore, one might con:!ude that the choice sim-1974). Dc:iding whemer business information 6ts this de-p!y rests wim an agen:y wheder or not to release exempt senption is sometimes not simple, and no easy formulas da:a. If material is not mthin any FOIA exemption, its re-hase been deseloped for the debatable cases. See Chapters
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lease is required by the Act. If material is within a FOIA Iv and IX of "A Shen Guide to the Freedom of Infoma-exemp: ion. FOIA would allow the agency either to with-tion A:t" published with the March.1979. Edition, of the ho d it or to disre;ard the exemption and release the mate-Freedom of fnformation Case List. for a funher discussion nal.
of Exemption 4 Winter 1960 FOIA UPDATE 3
The Trade Secrets Act Ex:mptio2 Three if requested material is outside Exemption 4, the next There are numerous other statutes governing disclosure, question is'whether it falls within another statute read into which are possible Exemption 3 statutes, but they generally FOIA through Exemption 3. Information submitters hase apply only to panicular agencies. These too must be contended that the Trade Secrets Act is an Exemption 3 examined by an agency with such a statute.
statute while the Justice Department position is to the con-
- trary, Exemption Six Funhermore, agencies should review the records to see if there might be information which would be a "clearlv The submitters of information have brought " reverse" unwarranted invasion of personal privacy." Exemption 6 suits to stop agencies from releasing information which does not apply if the injury to the individual is counterbal-they contend falls within the Trade Secrets Act (18 U.S.C.
anced bv a public interest favoring disclosure. (See Chap-
$1903), a enminal statute. They argue that this act is an ter IV o'f "A Shon Guide to the Freedom of In'ormation
" Exemption 3 statute," which would prevent disclosure of Act," at pages 11-12.)
any information in the Government's possession which re-If material is outside all FOIA exemptions, FOIA re-veals details about their businesses and operations. The quires release. In such cases the Trade Secrets Act is no Supreme Coun expressly left this question, as well as other problem, because it only prohibits unauthorized disclo-imponant qu'estions, unde:ided in Chrysler. The problem sures, and FOIA itself provides the necessary authonza-with the Trade Secrets Act is that by its very broad word-tion.
ing, it would cover, if given a literal reading, almost every con:eivable piece of commercial information in govern.
ment hands. For example, the government could not le-STEP TWO: GIVE NOTICE TO SUBMITTER gally disclose that General Motors is in the automobile business.
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If the agency plans to grant the FOIA request, either be-cause the information is considered non-exempt or because the acenev wishes to disclose as a matter of discretion even The Justice Depanment position is that the Act does not thouc'h th'e material is considered exempt, it is essential as mean what its actual wording might indicate, partly be.
a ma'tter of fairness and sound practice that the submitter cause of se unreasonable conclusions that would follow be notified and civen an opponunity to file objections and and panly be:ause (ne Act w as created from three narrowly arguments, and'to seek pnor judicial review to bio k the werded statutes in 1945. Under rules governing the proper disclosure.
inte pretation of statutes enacted as pan of the revision of f-the :nminal code (Title IS) in 1945, su:h statutes are only FOIA does not require agen:ies to gise notice to sub-(
as broad as their predecessor statutes. Defining de pre: se mitters that a FOIA request has been receised which seeks N
scope of the Trade Secrets Act has become quite complex, disclosure of information provided to the govemment by but the Justi:e Depanment view is that equal employrnent the submitter. However, many agencies have promulgated opportunity information is not the type of cata covered by administrative regulations requiring that prompt notice be the Act's predecessors. It would be best for agen:y counsel given to submitters when the agency receives FOIA re-to check with the Department of Justice if any other types quests seeking dis:!csure of submitter-generated informa-of documents are involved.
tion. Esen those agencies which have not promulgated such regulations should give timely notice to submitters of a FOIA request which may jeopardize the submitter's Thus, the Justice Depanment position is that the Trade interests. Such notice should normally contain at least the Secrets Act is too "o canic" and ill defined to qualify as f Ilow ng:
an Exemption 3 statute. espe,:ially since Congress nar-(1) a detailed desenprion of those documents within the rowed Exemption 3 in 1976. In addition, the Trade Secrets scope of the FOIA request:
Act does not " require" non-disclosure, as one prong of Exemptien 3 demands. Instead, the Trade Secrets Act only (2) the date on which the agency desires to make its de-prohibits disclosures not " authorized by law." If the Jus-termination whether or not to dis:!cse all or ponions ti:e Depriment is correct, and thus far most couns have of the requested info,rmation; acreed, then the Trade Secrets Act is not to be read into the FOIA through Exemption 3.
(3) a request that the submitter provide the agency with any written objection to disclosure, in the form of a detailed identification of each portion of the re-quested information which the submitter would have On Nosember 30.1979, the Eighth Circuit Coun of Ap-the acency withhold, together with specific explana-peals held that the Trade Secrets Act is not a third exemp-tions'of ail factors weiching in favor of withholding:
tion statute. The coun said that the Trade Secrets Act only and prohibits dis:losures "not authorized by law." The coun outlined the sequence of analysis that an agen:y should (4) a request that the submitter provide a sworn state-follow. Sec. General Dynamics Corp. v. Marshall 57 ment indicating whether or not any ponion of the re.
(.
F.2d 1:11 (Sth Cir.197S), rev'd. and remanded 441 U.S.
cuested information has, to the knowledge of the
(
919, on reman'd, F.2d No. 77-1192 (Sth Cir.
s'ubmitter, been revealed to any person not employed 1979).
by the submitter or to any other agency.
4 FOIA CPDATE )
inter 1980
STEP THREE: CONSIDER TIME LIMITS STEP SIX: PREPARE CERTIFIED ADMINISTRATIVE RECORD Of course, ageno communications with both submitters and requesters in th'ese situations must be conducted with For litigation the agency needs to prepare a cenified ad-due regard for FOIA's time limits, including negotiated ministratise record with all correspondence and other and statutory extensions of these limits. Where necessary, necessary documents to assist the Depanment of Justice in seek additional time from the requester within which to re, defending agency decisions to disclose privately generated spond to the FOIA request.
information.
Since the agency must act on the FOIA request within Since the Supreme Court in Chrysler decided that re-ten working days, absent " unusual circumstances," the verse FOIA lawsuits may be brought only pursuant to the agency should seek from the requester appropriate addj.
Administrative Procedure Act, and that de novo review is tional time within which to respond to the FOIA requ::t "0'dinarily not necessary," it is vital for the agency to (See Chapter VI of "A Short Guide to the Freedom of In-m.mtain all documents necessary for the preparation of a formation Act," referred to abose, and the discussion of 'enified administrative record which will constitute the time limits in Appendix !!! B of the Attorney General's sole evidence admissible in any lawsuit challenging the Blue Book on the 1971 FOIA Amendments.)
agency's decision to disclose submitter generated informa.
tion. At a minimum, copies of the following documents should be in:Iuded as part of the cenified administrative STEP _FOUR: DOCUMENT AGENCY CONSIDERATION record:
. the FOIA request; The agency should review applicable administrative reg.
. the acency's notice to the submitter; ulations and statutes providing for disclosure or witholding
- the submitter's objections to disclosure; of agency records. It should consider whatever objections e any comments by the requester on the submitter's ar-the submitter may provide the agency, it would also be guments; desirable to gise the requester a similar opportunity to
- the final agency decision; and comment on the submitter's arguments. The agency should
- the requested records marked to indicate those portions determine whether it desires to exercise, where applicable, which the agency decided to disclose. (This last item of the discretion to disclose information cosereo by FOIA administrative record mav be filed in court under seal.)
exemptions. It should prepare a written agency determina-In makine all of the a'bose determinations, it is vital to
~
tion identifying those ponions of the requested records create an adequate administrative record of the agency's which it intends to disclose.
work on the recuest and on the submitter's obie:tions.
^
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The agency should identify all legal standards in deter-There has been great difficulty in the past in having agency mining whether or not FOIA exempnens apply. In addition disclosure decisions affirmed bs the courts because the the a;en:) shcald ncimally an::ulate reasons for dis:re-couns hae insisted on the agenty's ability to document its nonary dis:!csure. Su:h a statement is espe:ially imponant consideration of the arcuments for and acamst disclosure, when the agency decides in its discretion to release mate-and to expia:n adequate'ly the bases of agen:y a: tion.
rial considered to be exempt but whi:5 the agency de: ides While there is some dispute about the scope of judi:ial to release because of other factors-which it should review in a reverse :ase, the Justice Department has taken identify-that counterbalance the justification for with-the position that courts should not decide reserse FOIA holding.
cases by a trial type pro:edure, with a fresh "staning from Even if an agency finds that material is outside all FOIA scrat:h" coun decision on the fa:ts and issues that pre-exemptions (in:!uding any possible Exemption 3 statutes),
sumably were before the agency. Instead the couns should and therefore must be released, it should nevertheless review agency decisions by the standards of the Adminis-make hypothetical findings conceming a discretionary re-trative Procedure Act solelv on the basis of the atency ree-I lease where a "rescrse" suit can be anticipated. In other ord of its a: tion and shouid decide only the limited ques-
~
words, the agency should consider in appropnate situations tion of whether the agency de:ision was arbitrary, carn-whether, esen if the records were to be deemed exempt, it cious or otherwise not in a:cordance with law. To achiese I
would nonetheiess release them as a matter of discretion this result, it is necessary that the admmistrative record l
for public interest reasons. This action is recommended so supporting the agency's action show that the agency that a preposed release may be defended in court as a adecuately considered all issues and reached a reasonable proper exercise of dis:retion even if the coun later over-decision whi:n can withstand judicial scrutiny.
tums the mney decision regarding the FOIA exempnens.
Although building' a complete agency record may tax agency resources in the short run, in the 'ong run such a re: rd should conserve agency resources. First, the agency STEP FIVE: ALLOW SUBMITTER TO SEEK COURT REVIEW should not later be burdened with establishing how it reached such a de:ision through requests for discovery, nor The agency should provide the submitter r:asonsole op-should it later hase to supply expen witnesses in coun.
portunity to seek judicial relief pnor to actual disclosure as Second, with a complete agency record, the couns will be l
set fonh in the written agen:y de:ision.
less likely to use a de novo review standard and will in-l If the agency determines it will release matter over the stead apply the normal standard of review of agency ac-submitter's obje:tions. the submitter should be given five tions. Third, such a complete record of agency action or ten days notice of the determinatien, before the re:ords should speed the process of judicial review without the I,(
are actually released to the requester, so that the submitter delay encountered in the coun's remanding to the agency can file a "res erse' suit to obtain a court review of his to maic a more complete record of its reasons for its a:-
objections.
tions and its application of the law.
Winter 1950 FOIA UPDATE 5
DISCRETION TO RELEASE FOIA Legislative Update As noted pbove, esen if material ts within a FO!A Business Records exemption, it may be released as a matter of discretion.
absent some legal prohibition against release outside of Concem over agency handling of business information FO!A. For example, it would clearly not be an abuse of has also been a subjeEt of interest on Ca:itol Hill. The discretion to release material oser the submitter's obje:- House of Representatises Government Information and In-tions where there is some identifiable public interest in the dividual Rights Subcommittee of the Committee on Gov-release that counter balances the risk of injury to the sub-ernment Operations held hearings before the Chrysler case mitter, such as, a public interest in health Safety, eco-was decided. On Julv 20, 1978, thev issued Report No.
nomic welfare, integrity of govemment. et:. Thus, to make 95-1382. entitled FREEDOM OF 15 FORMATION ACT a discrenonary release of protectible business information. REQUESTS FOR BUSINESS DATA AND REVERSE-the agency must balan:e the interests for and against re-FOIA LAWSCITS. Be:ause of the comprehensneness of lease.
this repon, agencies may wish to review it and the sub-On the other hand, a diseretionary disclosure which vio-committee's suggested procedures.
lates the Trade' Secrets Act would be an abuse of dis:re-Additionally, agen:y personnel may wish to review the tion. Hence, before su:n a dis:retionary release of com-proposed new legislative requirements for disputes in.
meretal data may be made, the agency must either find that volving both requesters and submitters in H.R. 5S61, a bill the information is not within the scope of the Trade Se:rets introduced on November 9.1979 by Hon. Richardson Pre-Act or that disclosure is authorized by law.
yet, who chair; the gosernment information subcommittee.
If exempt documeets are outside statutory prohibitions su:h as the Trade Secrets Act a discretionary disclosure may be made, subject to the balan:ing standard noted above. In general there is likely to be an identifiable pub-lie interest in releasing information to assist citizens in maintaining federally re:ocnized interests, e.g.
those in-Note Concemine Prosecutions Under solunc civil r:ghts, censin health and safetv interests, aIthough the interest in release may or m'ay not out-18 U.S.C. @l903, theTrade Secrets Act e::.
wei:b the iniurv to the subenter. If exempt do:uments fall w:Sn :he shop'e of the Trade Secrets A::, er some other After the Supreme Coun.s 1979 decisien in the Cn,evsler s:atu:e presenung disclosure, then a release would consa-0as. the Assistant Anomey General of tne Criminal Disi-tu:e an acuse of cisereuen and is prohibi:ed, unless the sian ssued a new section 9-:.025 of the Lnited States At-
"au:henzed by law ' provision of :he Trade Secrets A:: is temys Manual. He gw se: tion after no:ing the confu-sansfie: because the egen:v c:'ers:es under a statute (e.g.,
sie, about reieases encer r,OIA cf matenal eat arguaQ 4
U.S.C. }l30$(ao whiE. either :tself autnerizes re; ease could fall wnhin m m amng at IS U.S.C.11905 s:a:es er mee:s tre ' nexus' test enun:iated bs the Supreme "i: is the policy of tne Cnmina! Division not to prose:ute Coert in Chrvsler. See St. Marv's Hospital. Inc.
v.
gnemment empi yees f r a u lau n f IS L.S.C.11905 Cahfano. 46f F. Supp. 315 (S.D.' Fia.1979) aff'd sub if the release of informanon in question were made in a 5 ** I*i t h I* * '* **= P ?
- ith th' Y* A ** *I l* I*'* *
- I nom St Mais Mcsp:tal. Inc. v. Harris. 604 F.2d 407 (5th Cir.1979). See a!so. St. Joseph's Hospnal Health tion Act and the appropriate applica::le regulations.
Center v. Blue Cross of Central N.Y.. et al.
F.
More ver all C.S. Attomeys are nnstructed not to initiate Supp.
(N.D. N.Y.1979) 79-CV-416, decided July an action under 1S U.S.C. $1905 without prior consulta-11.1979, aff'd F.2d (2nd Cir.1979), No, tion with the Publ:: Integnty See: ion of the Cnminal Divi-79-6140, de::ded Nos. 26, 1979. These " nexus" statutes sion.
are ones which eudence a Concressional intention to per-rnit an agency to draft disclosare regulations. An agency wht:h has su:h a ' nexus sta:ute, and which has promul-gated a sslid regula: ion under it, may release data in spite of Trade Secrets Act prohibitions, but agency counse SIGNIFICANT NEW DECISIONS shculd : nsult the Justice Depanment first before making a
~6-'sion en this grou l
Forsham v. Harris. Sec'y. of H.E. W.
45 L.W. 4:3 (Mar. 3,1980) (" agency records").
Kissinger v. Reporters Comm: nee.18 L.W. 42:3 (Mar. 3.
SUMMARY
1950) ("2mproperly withheld" as limiting jurisdi: tion in FOIA suits).
Thus, in handling a FOIA request with "reserse" impli-Founding Church of Scientology, Etc. v. Bell, 603 F.2d cations, the agency must find whether the information is 945 (D.C. Cir.1979). ((b)(1). (b)(3), (b)(5), Vaughn unhin an FOIA exemp ion; if not, it mus: be releasei s:a:ement).
Esen if it is within an esemp: ion the agency should con-Church of Scientology v. U.S. Army. 607 F.2d 1282 (9th sider whether a discrenonary release should be made in the C:r.1979). ((b)(1), (b)(6), (b)(7). in camera review).
publi interest. If so. the agency should : hen consider Hasden v. National Sec. Agey. 605 F.2d 1381 (D.C. Cir.
whether such a release is permissible in light of the Trade 1979). (b)(1).
Se:n:s Act, other :pplicabie s:a:utes, and all reles ant fa:- Indian !aw Resource Ctr. v. Department of fnterior, 477 F.Supp.1."4 (D. D.C.1979). ((b)(4) " privileged").
- ors.
o FOIA CPDATE r
r 1950 2
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1 ic$,$$$,#
Approaching the Bench: Affidavits
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THE SPIRIT OF FOIA The single most important assign-appropriate person at the agency.
ment in defendin; a FO!A lawsuit is Tnus, "Telhng the Agency's Story" he spirit of FOIA requires that preparation of an agency affidavit. An fully may require affidavits from sev-a agencies give consideration under aff davit is a document which con-eral people.
N FOIA to any request which can rea-tains i. formation relevant to a case Agency lawyers should adequately sonably be interpreted as one for re:- which is sworn to by the agency em-research which employees are most ords.
ployee. The affidavit fulfills much the knowledgeable about the function of On this basis FO!A requests gen-same function as an individual's di.
the documents withheld and the harm erally will fall into one of three bast:
re:t testimony in court: it is evidence claimed if thev are released. It is
'YE*53,.he reque t r is cl
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about the fa:ts demonstratmg that the these fa:ts that are most likely to help
- 1. s se.
early asking government's claims are legally cor-resolve the issues. Is it also necessarv for records and expressly states rect. It is not a presentation of legal to include the chronology of corre'-
that the request is being made arguments or legal conclusions.
spondence con:erning the FOIA re-
.underFOIA:
An affiant may be a high level offi-quest, but these fa:ts are usually not
- 2. The requester is clearly asking cial at the ayency, but often is not, the ones which explain the basis of for records but makes no refer-Where several agency emplovees the agency's defenre.
.cnce to FOIA: and
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could appropriately sign the affid'avit.
The legal arguments and legal con-
- 3. The requester expressly invokes the best afGant is often the person clusions are generally set forth in an FOIA but frames the request as most likely to be a good witness if accompanying memorandum of law.
one for information, and the in-oral deposition is subsequently The affidavits signed by agency per-formation or some of it is con-sought.
sonnel in FOIA cases are usually used tained in existing records.
The litigator responsible fr,r de-to support a motion for surnmary Requests in any of the three fending a suit may de:ide tha. infor-judement under Rule 56 of the Fed.
categories should at least be consid-mation is needed from more '. nan one craiRules of Civil Procedure.
cred under FOIA.
As already noted, (a)(3) does con-tain two limitations. The first, that the A request framed as one for infor-available material, e.g., publi:ations.
request " reasonably" describe the mation rather than records, in addi-whi:h can readily oc granted should records being sought, was added by tion to being technically d efectis e, be handled without excessise em-the 197' Amencments and was in*
may also fali shon of reascnably de-phasis on te:hnical reoutrements, tended to codify the prevailing case 3:n'bing the re:ords which it cou'Id be panicularly where this saEes time and law. This provision means the request interpreted as seeking; but if the re-money for the requester and the must "be sufficient to enable a quest invokes FO!A. it should at least agen ).
professional em;:loyee of de agen:} be considered under FOIA.
who was famshar with the subje:t We should remember that only a nea of 2e request to locate the re:ord AGENCY FOIA RULES small percentage or the population is with a reasonable amount of effort" The second limitation in ta)(3) that famih,ar wnh tne use of the receral H.R. Repr. No.93-876, 93d Cong. the request be "made in a::ordance Register and the Code of, ederal r
Regulations, where the technt:al re-2d Sess. (1974) at 6.
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with published rules is poten-The Attorney General's Memoran-tially more troubline. Most agencies quirements f r mahng FOIA requests dum on the l' 74 Amendments (the hase published rules recuiring that are published. Therefore, agencies 9
" Blue Book"), states (p. 23) that this FO!A requests be (1) mad $ in writint, usually should at least consider re-lancuage means that "it is not enough C) addressed to a specified official or quests that raise questions of rignts that the request provide enough da'ta offi:c, arid (3) expressly identified as under r,OIA esen if the requester has to lo: ate the record; it must enable it a FOlA request. Although all three of not fu3 complied with all these to be located in a manner which does these requirements are reneralls rea-rules. cxcept wnere me requester has not insolse an unreasonable amount sonable and proper, the'last tEo are failed to put the request in unting, of effort" Of course, the amount of chieflv for tne purpose of reducing the chief effe:t of non-compliance effort mas be ve-v extensis e and bur-delavs' in intemal handlint. We con-with these technical requirements is I
densome'without bein " unreason-side'r only (1) to be a' sufficient that the agen:y has a reasonable able" ground for an agen:v's flath refusinc pen d f time to recognize tre re.
Even if an agency determines that a to process a req'uest under F'O!A.
- quest as a FO!A request and to route recuest does not "reasonablv" de-It is neither unreasonable nor in it to the corre:t person for processing.
scr'ibc ine records sought, it still must conflict with the spirit of FOIA for an in these circumstances, the ten consider the request as a FOIA re.
agen:v to require that a request be in w rking-day time hm:t begins when quest, although perhaps a defective writin'g. This does not pla:e an undue the request is re:eised by the proper IUC**I-one. As the Attomey General's Blue burden on the requester. and it re-Book goes on to say, the agency duces confusion as to exactly what In conclusion, no written request "should notify the requester of the records are being sought.
from a person which can reasonably defect. In addition it is recommended Of course, a;encies are free to be interpreted and handled as a re-that. when practicable, the agency process oral requests fcr access to quest for access to existing agency should offer assistance in reformula-records, and this is sometimes done records should be denied or rejected tion of the request to comply with the informally for newsmen and others. unless the agency has first considered Act" In a similar s ein, requests fer clearly it under FOIA.
Winter 1980 FOIA UPDATE 7