23 May 1998
Source:
http://www.citizen.org/litigation/foic/speech.htm
Excerpt on "Glomar response" for relevance to recent court decision in Payne v. National Security Agency to review NSA declaration in camera.
Another agency practice that has lead to excessive government secrecy in our country is the so-called "Glomar" response -- that is, when an agency refuses to even confirm or deny the existence or nonexistence of records. The courts have allowed agencies to provide a Glomar response when the agency demonstrates that disclosing the fact of a record's existence or nonexistence itself reveals information that a FOIA exemption seeks to protect. . . .
In a few cases -- most often those involving national security -- the court has conducted an in camera review (that is, the court reviews the documents in private). While we prefer to have the agency make a detailed public record explaining its rationale for withholding so that we can respond, an agency may complain in national security cases that it can not give a more detailed explanation without revealing classified information. In those situations, when we fail to get a more detailed explanation, we support in camera review so that the court may independently review whether the government's justification is valid. We have also sought in camera review when we question whether the agency has made a good faith effort to release all segregable portions of a document. While in camera review is sometimes appropriate, we oppose the submission of in camera affidavits because it gives the government a chance to make arguments that we cannot respond to. In those case where a court accepts an in camera affidavit over our objections, we ask for a redacted version of the affidavit.
Since the adoption of the United States Freedom of Information Act
(FOIA) more than 30 years ago, millions of Americans -- including scholars,
journalists, and private citizens -- have made use of the law to monitor
the government's activities and to hold the government accountable for its
actions. By giving the public an enforceable right of access to government
information, the FOIA has enabled American citizens to be informed of the
government's actions and to participate more effectively in the public debate
that is vital to a strong and vibrant democracy. No nation that shields the
workings of its government from the governed can rightly call itself a democracy.
In the thirty years since its adoption, the FOIA has become interwoven
into the fabric of American life. Citizen advocacy groups like mine use the
FOIA almost daily -- to learn about serious adverse effects of drugs, of
the chemicals that are present at hazardous waste sites, and of nuclear power
plant accidents and mishaps. Our efforts to organize and lobby on health
and safety issues and to serve as a government watchdog fundamentally depend
upon our ability to obtain access to government information.
Let me give you just a few examples of information obtained through
FOIA over the years:
* Documents about the MK-ULTRA program, in which
the Central Intelligence Agency (CIA) illegally conducted mind- control
experiments on unwitting human subjects;
* Agriculture Department inspection reports of meat
packing facilities;
* Reports showing that contrary to Forest Service
claims, the agency was spraying herbicides in the national forests;
* EPA report showing that despite President Reagan's
claims to the contrary, acid rain causes serious environmental harm.
And, just last month, under pressure from a FOIA lawsuit, the CIA
broke a 50-year vow of silence to confirm for the first time that federal
spending on intelligence matters at all agencies totaled $26.6 billion last
year. The disclosure broke a tradition born when the CIA was established
in 1947 of keeping the budget secret, and will allow the public to participate
in the Congressional debate about how their tax dollars will be spent.
FOIA's phenomenal successes can be traced to four fundamental aspects
of the law. First, the FOIA creates a presumption in favor of public
access to all government information and against government secrecy.
The law presumes that all government records -- even electronic records,
films or tapes -- are available to the public and puts the burden on the
government to demonstrate that any particular piece of information falls
outside the presumption.
Second, the law clearly defines the categories of information
that can be withheld from the public, and thus it places strict limits on
the government's discretion to keep information secret. The presumption of
public access can only be overcome if the information falls within nine narrowly
drawn exemptions, whichprotect such matters as privacy, national security,
law enforcement proceedings, and trade secrets. And, if part of a document
falls within an exemption, the agency may withhold only that portion; it
must still release the remainder of the document.
Third, judicial review is available to ensure government agencies
comply with the law. As might be expected, agencies sometimes try to withhold
information to hide embarrassing actions or to limit public debate on
controversial issues. When this occurs, the requester may go to court. This
right to judicial review gives the law its teeth. The court will make an
independent determination of whether the requested information falls within
the particular withholding criteria of FOIA. In making this determination,
the courts do not give deference to the agency's judgment, and do not even
need to rely on the government's description of the material. Instead, the
court may review the information, or a sample of it, in private in order
to determine for itself whether the information should be disclosed or withheld
under the terms of FOIA.
The Act ensures that filing a lawsuit is convenient for requesters
by allowing the suit to be filed in one of three places -- where he or she
lives, in Washington, D.C., or where the records are maintained. Moreover,
if a requester has to file a lawsuit in order to obtain information that
should have been disclosed in the first place, a court may order the government
to pay the requester's attorney's fees and litigation costs. Indeed, my office's
annual budget relies in part on attorney's fee awards forour work in FOIA
cases.
Fourth, what ultimately makes FOIA successful is its simplicity
and accessibility to the public. Under FOIA, anyone can make a request for
information. A person making a request does not have to show any particular
need for the information, nor does the requester even have to be a U.S. citizen
or resident. The only requirement for the request is that it must "reasonably
describe" the records sought. Specific documents need not be identified;
the requester may instead ask for any information pertaining to a particular
subject.
In the early days of FOIA, agencies routinely violated its provisions
and subjected requesters to exorbitant fees and interminable delays. In 1974,
in the wake of the Watergate scandal and cover-up, Congress amended FOIA
to remove the financial barriers and to set time limits to address the delay
problems.
Under the 1974 amendments and a subsequent one in 1986, we now have
a tiered fee structure designed to enable ordinary citizens to use FOIA without
incurring a heavy financial burden. First, fees are divided into three types:
copying costs, search costs (locating the responsive information) and review
costs (reviewing information to determine whether it is exempt from disclosure).
On the one hand, commercial requesters -- the majority of FOIA users -- are
charged all three types of fees. On the other hand, non-commercial requesters,
like individual citizens and public interest organizations, are entitled
to the first 2 hours of search time and the first 100 pages of copying for
free, and are not charged at allfor review time. Journalists, scholars, and
scientists are charged only copying costs and get the first 100 pages free.
And of great significance for groups like mine is the public interest fee
waiver; FOIA requires agencies to waive all fees for requests that seek
information that will increase public understanding of government operations
or activities. The fee and fee waiver provisions are intended to promote
the democratic uses of FOIA, and are designed to prevent an agency from charging
fees as a means of keeping information out of the public's hands.
The 1974 amendments also sought to address the most common complaint
about FOIA -- the government's long delays in responding to requests. Thus,
in 1974, Congress established time limits within which the government is
obligated to respond to requests: 10 working days to respond to initial requests,
and 20 working days to respond to administrative appeals. Unfortunately,
these limits are more often honored in the breach, so that for example, the
worst offender -- the Federal Bureau of Investigation -- routinely takes
two to ten years to process a FOIA request, most of which come from prison
inmates. Many agencies do comply with the time limits, but still, 30 years
after FOIA was enacted, the biggest complaint I hear repeatedly from requesters
is about the delay in receiving a response.
The delays are, in large part, due to the widespread use of FOIA by
the public. About 600,000 people file FOIA requests every year, and agencies
like the FBI have a large backlog of requests. To address the significant
delay problem and to take advantage ofthe unique opportunities offered by
the Internet and emerging electronic technologies, Congress passed the Electronic
Freedom of Information Act Amendments (EFOIA) in 1996.
In passing EFOIA, Congress emphasized the important role FOIA has
played in disclosing waste, fraud, abuse and wrongdoing in the U.S. Government,
and stressed FOIA's role in the identification of unsafe consumer products,
harmful drugs, and serious health hazards. Recognizing the increase in the
government's use of computers to store publicly valuable information, EFOIA
requires agencies to use this new technology to enhance public access to
government information through a number of provisions. First, the EFOIA settles,
once and for all, what many courts had already determined -- that government
records in electronic format, like e- mail messages and databases, are subject
to FOIA. Second, the new law allows the public to request records in a particular
electronic format and requires agencies to search electronically to identify
and retrieve requested information. While EFOIA does not require agencies
to accept FOIA requests through e-mail, a few agencies are now beginning
to accept FOIA requests made through e-mail. Third, EFOIA requires agencies
to make certain types of records (agency opinions and interpretations, staff
manuals and instructions to staff that affect the public) available on-line.
Most significantly, agencies must make records that have been, or are likely
to be, requested by several people available on-line. Agencies are just now
beginning to comply with this new requirement, but, for example, the FBI
has already placed on theWeb (http:\\www.fbi.gov) records of popular interest,
like the FBI's files related to Elvis Presley, Amelia Earhard, Jackie Robinson,
Project Blue Book (a UFO study), and Klaus Barbie. Now that these files are
publicly available on the Internet, a person who wants information on one
of these popular subjects no longer has to file a FOIA request. This speeds
up access for requesters and helps the government at the same time because
it diverts potential requests for previously-released records from FOIA-
processing altogether.
Another important mechanism to reduce delays and enhance access
for the public is EFOIA's requirement that agencies develop indexes of all
the agency's major information systems with a description of each system,
and eventually make these indexes available on-line. These indexes will enable
the public to better describe the records they seek, and speed up the ability
of the agency to search for and identify the requested records.
At the same time that FOIA has been an overall success in expanding
public access to government information, the Act has certain weaknesses.
First, as I've just discussed, is the problem of delays. I am hopeful that
EFOIA and continued Congressional oversight will speed up the FOIA process
and significantly reduce delays in the future.
A second problem area -- and one not addressed by Congress in EFOIA
-- is that agencies have used broad or vague terms in an exemption to expand
secrecy beyond the purpose the exemption ismeant to serve. Unfortunately,
at times, the courts have upheld the government's broad interpretations and
withholding decisions. For example, a significant loss for our
office and for those who support broad access to government information was
the Critical Mass Energy Project v. NRC decision in 1992. In Critical
Mass, we sought access to analytical safety reports about nuclear power
plants submitted to the Nuclear Regulatory Commission (NRC) by a non-profit
organization created by the nuclear industry after the accident at Three
Mile Island. Although the reports were circulated widely within the industry,
they were not available to the public. Thus, Critical Mass dealt with
FOIA's exemption for access to trade secret and confidential commercial
information; the exemption applies to information that is submitted to the
government by outside entities, not to information generated by the government.
In Critical Mass, the court distinguished between information that
is voluntarily submitted to the government and information that must be submitted
to the government either because of regulatory requirements or as a condition
for a government benefit. If submission of information is mandatory, that
information will be disclosed to the public unless the disclosure would cause
substantial competitive harm to the company. However, Critical Mass
allows the government to withhold information that was voluntarily submitted
so long as the submitter can show that it does not customarily release the
information to the public. In practice, this allows a company that submits
information voluntarily to prevent any of its information from being
disclosedto the public. After all, a company is not likely to customarily
release information that reflects badly on its products or that is embarrassing,
even if the release would not cause it competitive harm. Indeed, those were
exactly the type of documents at issue in the Critical Mass case --
because all of the nuclear power industry already had access to the reports
at issue, no claim of competitive harm could be made; instead, the industry
did not want the public to have access to reports evaluating the operations
of nuclear plants because it reflected unfavorably on the industry.
The Critical Mass decision has the potential to be quite expansive
in its impact because it could lead to government agencies and industry
conspiring to keep information from the public by agreeing to the voluntary
submission of information that the agency has the power to compel. This is
of particular concern whenever the public is interested in industry information
submitted to any law enforcement agency with subpoena power. For example,
imagine the following scenario:
The Federal Trade Commission (FTC) is investigating false
advertising by the breakfast cereal industry and issues a broad subpoena
for pricing information. In response, the industry lawyers object to the
subpoena as invalid or overbroad, but offer to provide the material "voluntarily"
subject to a strict confidentiality order. The FTC is likely to accept the
offer so that the agency can obtain the documents right away, rather than
having to fight for several months about the subpoena's validity.
Unfortunately, the FTC's decision in this scenario not only determines how
the agency will spend its time and resources on the investigation, but because
of the Critical Mass standard, also means that the public is prevented
from having access to the material the agency receives -- information that
is potentially of significant public interest. Indeed, in the Critical
Mass case itself, the NRC had ample statutory authority to compel the
production of the information sought, but had not done so.
The research and advocacy efforts of my own organization have not
been impacted by the Critical Mass standard as much as we feared because
much of the industry-submitted information we seek is "required" to be submitted
to the agency and therefore does not qualify for the broader protection afforded
to "voluntary" submissions. For example, our organization often uses the
FOIA to seek safety and effectiveness data submitted to the Food and Drug
Administration (FDA) for drugs and medical devices, or to obtain information
submitted by the auto industry to the National Highway Traffic Safety
Administration. This data is required to be submitted under our country's
extensive regulatory reporting scheme, and so falls outside of the Critical
Mass decision and may be released unless the company shows substantial
competitive harm. Indeed, the FDA routinely releases a wide variety of documents,
including study protocols and adverse reaction reports, once a drug is approved
for sale in the United States in order to allow the public to scrutinize
the basis for FDA decisions. Similarly, the U.S. environmental laws require
industries to provide detailed dataon their toxic emissions into the environment,
and that information is publicly available. Thus, the harmful impacts of
Critical Mass on public access are somewhat minimized by virtue of
the significant reporting requirements established by Congress and by the
regulations of our nation's health and safety agencies. The Critical
Mass standard would be much more dangerous in a society with a less-developed
regulatory structure.
Another agency practice that has lead to excessive
government secrecy in our country is the so-called "Glomar" response -- that
is, when an agency refuses to even confirm or deny the existence or nonexistence
of records. The courts have allowed agencies to provide a Glomar response
when the agency demonstrates that disclosing the fact of a record's existence
or nonexistence itself reveals information that a FOIA exemption seeks to
protect. For example, the CIA invoked the Glomar response in answer to a
FOIA request seeking:
All information on attempts by the U.S., U.K., and other
western countries to infiltrate intelligence agents and potential guerrillas
into Albania during the period between the end of World War II and the death
of Stalin.
Given the specificity of the request, the Court found that "an answer as
to whether the files existed would be tantamount to declaring whether the
mission occurred," and therefore, would harm national security. Similarly,
glomarization has been upheld in the law enforcement context because simply
revealing that an individualhas been investigated for criminal activity is
likely to be an invasion of privacy.
While there are times when a Glomar response is appropriate, some
agencies abuse the practice. For example, our office recently challenged
the CIA's categorical rule of refusing to disclose the existence of records
whenever someone files a FOIA request seeking information on any foreign
national. We represented a journalist working on a biography of Morris "Two-Gun"
Cohen, a Canadian citizen who was an aide-de-camp to Sun Yat-sen in the 1920s.
Although our client had successfully used FOIA to obtain files about Cohen
from the Department of State and the FBI and the records were decades old,
the CIA refused to disclose whether they had any responsive records. The
CIA did not point to any harm from the response to this particular FOIA request
but instead relied on justifying the agency's categorical rule. Unfortunately,
the court upheld the CIA's rote application of the Glomar doctrine in that
case.
However, in the same year that we lost the case involving the CIA's
use of the Glomar response, another FOIA requester won a similar challenge
to the doctrine when the court rejected a law enforcement agency's categorical
rule to provide a Glomar response whenever someone asked for records related
to an individual. In that case, The Nation magazine asked the Customs
Service for records related to Presidential candidate Ross Perot -- not because
Perot had been investigated for criminal activity but because Perot may have
donated money to Customs to aid their drug indictionefforts. The court refused
to allow the agency to give a Glomar response because confirming that some
records existed would not implicate Perot in any criminal activity. Thus,
the courts generally limit the application of the Glomar response to those
few situations involving national security or law enforcement records when
a specific FOIA request is framed in such a way that simply confirming documents
exist reveals information protected by a FOIA exemption.
Indeed, experienced FOIA requesters are often able to escape glomarization
by the way they frame their FOIA request: Instead of referring to particular
individuals, the request refers to events the individual was involved in.
Thus, for example, instead of asking for records related to Morris "Two-Gun"
Cohen, a historian could file a FOIA request for all records related to
particular events Cohen was involved in, drawing upon information revealed
in the documents from other government agencies. Even if the CIA redacts
the name of the individuals from the files (names the historian already knows),
the historian has access to documents that may provide new and interesting
information.
Both because of court limitations on the doctrine and because many
FOIA requesters have learned to design their FOIA requests to escape
glomarization, I have had little experience challenging agency glomar responses.
In virtually all of the cases I have been involved with, the agency acknowledges
it has the records, but refuses to disclose them. In the vast majority of
these cases, the court reviews the agency's withholding decisions based on
a Vaughn Index (an Index which provides a summary of the information
withheld and the government's rationale for the withholding) and on the legal
arguments made by the agency and by our office on behalf of the FOIA requester.
In a few cases -- most often those involving national security -- the court
has conducted an in camera review (that is, the court reviews
the documents in private). While we prefer to have the agency make a detailed
public record explaining its rationale for withholding so that we can respond,
an agency may complain in national security cases that it can not give a
more detailed explanation without revealing classified information. In those
situations, when we fail to get a more detailed explanation, we support
in camera review so that the court may independently review
whether the government's justification is valid. We have also sought
in camera review when we question whether the agency has made
a good faith effort to release all segregable portions of a document. While
in camera review is sometimes appropriate, we oppose the submission
of in camera affidavits because it gives the government a chance
to make arguments that we cannot respond to. In those case where a court
accepts an in camera affidavit over our objections, we ask
for a redacted version of the affidavit.
In my experience, glomarization is not a significant problem in the
United States because the courts have limited its application and required
the agencies to submit detailed affidavits explaining why glomarization is
necessary. However, extension of the doctrine to additional circumstances
-- either in the nationalsecurity area or beyond, to confidential commercial
information for example -- poses a real danger to public access. Glomarization
creates a huge loophole to FOIA by allowing the government to refuse to even
tell the public what records it has in its files.
In the United States, we continue our efforts to eliminate government
secrecy beyond the FOIA context. For example, Congress recently established
the Commission on Protecting and Reducing Government Secrecy to investigate
the workings of secrecy in the United States government. The non-partisan
Commission finished its two year investigation and released its report in
March criticizing existing government practices that keep too much information
confidential but fail to protect secrets critical to national security. According
to the Commission, "the classification system is used too often to deny the
public an understanding of the policymaking process, rather than for the
necessary protection of intelligence activities and other highly sensitive
matters." The report stressed the benefits of reducing government secrecy:
Greater openness permits more public understanding of
the Government's actions and also makes it more possible for the government
to respond to criticism and justify those actions. It makes free exchanges
of scientific information possible and encourages discoveries that foster
economic growth. In addition, by allowing for a fuller understanding of the
past, it provides opportunities to learn lessons from what has gone before
-- making it easier to resolve issues concerning theGovernment's past actions
and helping prepare for the future.
The Commission made several recommendations in order to put some check on
the government's unrestrained discretion to create secrets and to establish
an effective mode of declassification. Currently, classification and
declassification is governed by presidential executive order and has been
for nearly fifty years. The Commission recommended that Congress set forth
the principles for what may be declared secret in statute. Such legislation
has been introduced in both houses of Congress as the Government Secrecy
Act, but is not expected to become law anytime soon. Even if it were enacted,
it would not impact the public's right of access under FOIA to unclassified
information; it would simply determine what information is appropriately
withheld for national security reasons.
In conclusion, the Freedom of Information Act has revolutionized public
access to information in the United States.
At the same time, however, more must be done in our country to improve the
FOIA process, make government records more accessible to the public, and
to reduce government secrecy. I hope that here in Japan, you will be able
to learn from our experiences -- to adopt what has been successful and to
improve upon the weaknesses in our law. I congratulate you on your efforts
to open up government action to public scrutiny and wish you the best.
Thank you.