Developments Under the Freedom of Information Act—1976

DEVELOPMENTS UNDER THE FREEDOM OF INFORMATION ACT-1976 In 1976, the tenth year since its enactment, the Freedom of Information Act (FOIA) I was the subject of judicial interpretation reflecting both its youth and its maturity.' Several of the statute's provisions received judicial attention for the first time; one was significantly amended. Yet, in many instances, cases went beyond a simple construction of the statute to an attempt to forge a place in the federal administrative structure for the FOIA's policy favoring disclosure of government information. This effort often conflicted with existing demands, such as discovery procedures, the need for confidentiality, and general workload pressures, and these conflicts required that compromises be struck. In some cases, a consensus has been reached; in others, division remains. The issues with which the courts dealt concerned both the Act's 4 affirmative disclosure provisions 3 and its exemptions from disclosure. First, the courts addressed the question of whether there are justifications for agency delay in the release of information required to be disclosed under the Act. Also receiving judicial attention were three of the statute's exemptions, relating to the protection of private personal files, 5 personnel rules 6 and investigatory records. 7 Another exemption, covering information exempted from disclosure by other statutes, 8 was amended by Congress. The courts THE FOLLOWING CITATIONS WILL BE USED IN THIS NOTE: Note, Developments Under the Freedom of Information Act- 1974, 1975 DUKE L.J. 416 [hereinafter cited as FOIA Developments-1974]; Note, Developments Under the Freedom of Information Act- 1975, 1976 DUKE L.J. 366 [hereinafter cited as FOIA Developments-1975]; Note, Protectionfrom Government Disclosure-theReverse-FOIA Suit, 1976 DUKE L.J. 330 [hereinafter cited as Reverse-FOIA Suits]. 1. 5 U.S.C.A. § 552 (West Supp. 1976). 2. For discussion of developments under the FOIA in prior years, see FOJA Developments-1975; FOIA Developments-1974; Comment, Developments Under the Freedom of Information Act-1973, 1974 DUKE L.J. 251; Note, Developments Under the Freedom of Information Act-1972, 1973 DUKE L.J. 178, Note, Developments Under the Freedom of Information Act-1971, 1972 DUKE L.J. 136; Project, Federal Administrative Law Develop- ments-1970, 1971 DUKE L.J. 149, 164; Project, FederalAdministrative Law Developments1969, 1970 DUKE L.J. 67, 72. 3. 5 U.S.C.A. § 552(a) (West Supp. 1976). 4. Id. § 552(b). 5. 5 U.S.C. § 552(b)(6) (1970). 6. Id. § 552(b)(2). 7. 5 U.S.C.A. § 552(b)(7) (West Supp. 1976). 8. 5 U.S.C. § 552(b)(3) (1970), as amended by the Government in the Sunshine Act, Pub. L. No. 94-409 § 5(b), 90 Stat. 1241, 1247 (1976). Vol. 1977:532] FOIA DEVELOPMENTS considered whether there might be limitations on their equitable power to enjoin agency proceedings. Finally, the courts continued the development of a policy regarding the attempted use of the FOIA to block disclosure of information. This Note will describe these developments and assess their probable impact on the future application of the FOIA. I. DELAYS IN DIscLosuRE As a means of promoting the FOIA's basic objective of "fuller and faster release of information," 9 the 1974 amendments provided for the "prompt" disclosure of records by agencies1 ° and established specific time periods within which agencies must respond to requests for records.1 The justification for imposing these requirements, as seen by the House committee considering the amendments, was that "information is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial." 1 2 The speed of agencies in fulfilling the requirements of the FOIA came to the fore as an issue in 1976. Courts were faced with two specific questions: first, whether the strict time requirements for responding to requests could be extended if an agency found it impossible to meet them due to workload pressures, and second, whether an agency could delay the release of non-exempt materials for policy reasons. A. Workload Delays The FOIA requires any agency which receives a request for information pursuant to the Act to determine within ten working days whether it will comply.13 It must immediately notify the person making the request of its 14 decision and, if the request is refused, notify him of his right to appeal. Appeals must be acted upon within twenty working days.15 President Ford objected to these time restraints because of their inflexibility. 16 He proposed 9. H.R. REP. No. 876, 93rd Cong., 2d Sess. 2 (1974). 10. 5 U.S.C.A. § 552(a)(1)-(3) (West Supp. 1976) (originally enacted as Act of Nov. 21, 1974, Pub. L. No. 93-502, 88 Stat. 1561-65). 11. 5 U.S.C.A. § 552(a)(6)(A) (West Supp. 1976). 12. H.R. REP. No. 876, supra note 9, at 6. 13. 5 U.S.C.A. § 552(a)(6)(A)(i) (West Supp. 1976). 14. Id. 15. Id. 16. The amendments eventually were passed over President Ford's veto by a vote of 371 to 31 (32 not voting) in the House of Representatives, 120 CoNG. REC. H10,875 (daily ed. Nov. 20, 1974), and 65 to 27 (8 not voting) in the Senate, 120 CONG. REc. S19,823 (daily ed. Nov. 21, 1974). In a letter to Sen. Edward M. Kennedy, chairman of the Senate conferees considering the FOIA amendments, President Ford stated: I . . .believe that the time limits for agency action'are unnecessarily restrictive in that they fail to recognize valid examples of where providing flexibility in several specific instances would permit more carefully considered decisions in special cases without compromising the principle of timely implementation of the Act. 120 CONG. REC. S17,829 (daily ed. Oct. 1, 1974). DUKE LAW JOURNAL [Vol. 1977:532 two exceptions to the rigid time requirements which were ultimately incorporated into the 1974 amendments: 1 7 (1) in certain specified "unusual circumstances," where the request requires compiling records from field offices, sifting through voluminous records or consulting with another agency, the time limits may be extended by the agency for up to ten additional days;18 and (2) in "exceptional circumstances," where the agency in the exercise of "due diligence" is unable to comply with the time requirements, the court in which the requesting party brings suit to force compliance' 9 may allow the agency additional time.2 0 The question confronting courts in 1976 was whether a flood of FOIA requests, which often delayed responses and in some cases appeared to make the ten- and twentyday time limits hopelessly inadequate, would qualify as an "unusual" or "exceptional" circumstance. Within a span of less than a week, two District of Columbia District Court judges considered the question and reached opposite results. In Hayden v. United States Department of Justice,2 1 it was held that a request by one-time antiwar activist Tom Hayden for all FBI files relating to himself, which the Bureau said would take four years to process, presented an (...truncated)