Bits, Bytes and the Right to Know: How the Electronic Freedom of Information Act
Holds the Key to Public Access to a Wealth of Useful Government Databases
 
 
 
 
 
 
By Martin E. Halstuk
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Submitted to the Law Division,
Annual Convention of the Association of Education
in Journalism and Mass Communication,
Baltimore, MD
August 1998
 
 
Martin E. Halstuk
Ph.D. candidate
University of Florida
College of Journalism
and Communications
2000 Weimer Hall
P.O. Box 118400
Gainesville, FL 32611-8400
E-mail: [log in to unmask]
Phone (352) 336-9343
 
(Abstract)
 
Bits, Bytes and the Right to Know: How the Electronic Freedom of Information Act
Holds the Key to Public Access
to a Wealth of Useful Government Databases
 
     The Electronic Freedom of Information Act (EFOIA) became law on October 2,
1996.
     The EFOIA's electronic provisions are tremendously important to the future
of public access to government-held information in the electronic age.
     The purpose of this paper is to focus on one of the EFOIA's key electronic
provisions, Section 3, which states that all records compiled by federal
agencies -- even those recorded and stored in electronic formats -- are subject
to the Act's policy of full disclosure. The implications of this provision need
to be examined for several reasons pertaining to important issues of access,
federal information dissemination and economics.
     First, the federal government is increasingly involved in the gathering,
storage and manipulation of information in electronic form and digital formats,
including the creation of databases. Second, both profit-making and nonprofit
organizations request government-held information for a variety of uses,
including dissemination to other users. Third, government information stored
electronically is potentially far more valuable than the equivalent data on
paper because information in electronic formats can be used and manipulated
faster, easier and at less cost. This paper concludes that EFOIA Section 3 has
the potential of providing public access to a wealth of useful government
databases at nominal costs.
 
 
 
 
 
 
 
 
 
Bits, Bytes and the Right to Know: How the Electronic Freedom of Information Act
Holds the Key to Public Access to a Wealth of Useful Government Databases
 
 
 
 
 
 
By Martin E. Halstuk
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Submitted to the Law Division,
Annual Convention of the Association of Education
in Journalism and Mass Communication,
Baltimore, MD
August 1998
 
 
Martin E. Halstuk
Ph.D. candidate
University of Florida
College of Journalism
and Communications
2000 Weimer Hall
P.O. Box 118400
Gainesville, FL 32611-8400
E-mail: [log in to unmask]
Phone (352) 336-9343
 
 
 
 
Bits, Bytes and the Right to Know: How the Electronic Freedom of Information Act
Holds the Key to Public Access
to a Wealth of Useful Government Databases
 
By Martin E. Halstuk
 
 
 
 
 
 
Introduction
 
 
     After five years of congressional hearings, floor debates and
compromises,[1] the Electronic Freedom of Information Act Amendments (EFOIA)[2]
became law on October 2, 1996.[3] Congress enacted the EFOIA, which amended the
Freedom of Information Act of 1966 (FOIA),[4] for two principal reasons. First,
Congress wanted to clarify that the federal disclosure statute applied equally
to agency records maintained in electronic formats as well as to paper
formats.[5] Second, Congress wanted to make a number of administrative and
procedural changes to help ease serious delays and backlogs in government
responses to FOIA requests.[6] In June 1996, for example, the FBI had a
4-year-backlog in responding to FOIA requests.[7]
     The purpose of this paper is to shed light on the goals and implications of
one of the EFOIA's key electronic provisions, Section 3.[8] According to a 1996
House report[9] that accompanied the legislation, one of this section's purposes
was to explicitly reject a 1976 definition of "agency records" used by the U.S.
Court of Appeals for the Ninth Circuit in SDC Development Corp. v. Mathews.[10]
In SDC v. Mathews, the Ninth Circuit held that a widely used medical database
compiled and stored in a computer data bank by a federal agency did not qualify
as an "agency record" for the purposes of the FOIA.[11]
     The implications of this provision need to be examined for several reasons
pertaining to important issues of access, federal information dissemination and
economics. First, the federal government is increasingly involved in the
gathering, storage and manipulation of information in electronic form and
digital formats, including the creation of databases.[12] Second, both
profit-making and nonprofit organizations request government-held information
for a variety of uses, including dissemination to other users.[13] Third,
government information stored electronically is potentially far more valuable
than the equivalent data on paper because information in electronic formats can
be used and manipulated faster, easier and at less cost.[14] In sum, the EFOIA's
electronic provisions are tremendously important to the future of public access
to government-held information in the electronic age.[15] If effective, this
statute can help keep the government from restricting access to electronically
recorded information and also undercut efforts to establish information
monopolies.[16] As the Department of Justice observed, "no development in the
history of the Act has held as much potential for shaping [the FOIA's] contours,
even the very future of its implementation, as that of new technology."[17]
     The general research question this paper tries to answer is: What are the
implications of EFOIA Section 3, the  electronic provision that Congress crafted
to reject the ruling in SDC v. Mathews? Two important corollary queries flow
from this broad central question. First, does EFOIA Section 3 prevent the
government from selling -- or at least recovering its costs of producing --
databases compiled by federal agencies? Second, what is the practical effect of
EFOIA Section 3 in light of the 1989 U.S. Supreme Court decision in U.S. Dept.
of Justice v. Reporters Committee for Freedom of the Press?[18] There seems to
be a conflict between the congressional intent behind Section 3[19] and the
Supreme Court's seminal ruling in Reporters Committee.[20] The House report
accompanying the EFOIA said information an agency has created and is directly
disseminating remains subject to the FOIA in any of its forms or formats.[21]
But according to the Reporters Committee opinion, public access to government
information under the FOIA is limited to only "official information that sheds
light on an agency's performance of its statutory duties."[22]
        To gain some insight into these questions, this paper will discuss the
background of the Freedom of Information Act in Part I. Part II will outline the
EFOIA in general, and Part III will examine Section 3 and analyze SDC v.
Mathews. Part IV will discuss the economic implications of EFOIA Section 3.
Finally, Part V will explore the implications of the Reporters Committee
decision.
 
Part I: The Freedom of Information Act
 
     An understanding of the FOIA's legislative history and historic roots is
important because the statute's broad policy of full disclosure[23] is the
foundation on which the EFOIA is built. In addition, the Act's legislative
history is especially relevant to later parts of this analysis.
     Passed by Congress in 1966 and subsequently amended in significant
respects,[24] the FOIA creates a judicially enforceable policy that favors a
general philosophy of full disclosure.[25] The Act applies to "records" held by
"agencies" within the executive branch of the federal government,[26] including
the Executive Office of the President and independent regulatory agencies such
as the Federal Communications Commission, the Environmental Protection Agency
and the Securities and Exchange Commission.[27] The FOIA makes agency records
available to the public[28] upon request and places the burden of justifying
nondisclosure on the government.[29] The FOIA does not include records
maintained by state or local governments, by the courts, by Congress or by
private citizens.[30]
     The statute is potentially one of the most valuable tools of inquiry
available to journalists and others who want to know what the federal government
is doing.[31] For instance, in the months preceding the October 1996 enactment
of the EFOIA,  records released under the statute revealed FAA actions against
Valujet before the May 11, 1996, crash into the Everglades that killed all
aboard; the unsafe lead content of tap water in Washington, D.C.; the U.S.
government's treatment of South Vietnamese commandos who fought in a
CIA-sponsored army in the early 1960s; and the types of tax cases that the IRS
recommends for criminal prosecution.[32]
        In crafting the Freedom of Information Act, Congress recognized it is crucial
for citizens in a democracy to have access to government information in order to
make informed decisions.[33] The FOIA prevents politicians and bureaucrats from
being the exclusive judges of what the public can know. Congress also recognized
that there are rightful reasons to keep some information secret. A 1965 Senate
report, which accompanied the original Freedom of Information Act, declared that
the public's statutory "right to know"[34] must be balanced against the
government's need to keep some information confidential.[35] For this reason,
Congress created nine exemptions, under which federal agencies may refuse to
disclose information.[36]
     Congress amended the FOIA four times since the law was enacted, in 1974,
1976, 1986 and 1996. A discussion of the amendments that preceded the Electronic
Freedom of Information Act Amendments of 1996[37] is relevant to this discussion
because the amendments -- especially those approved in 1974 and 1976 -- evinced
Congress' intent for the FOIA to represent a broad policy of full disclosure.
The FOIA's legislative intent is important to this analysis because the Act's
scope and purpose became significant issues in SDC Development Corp. v.
Mathews[38] and U.S. Dept. of Justice v. Reporters Committee for Freedom of the
Press,[39] which are examined in Parts III, IV and V.
     Congress amended the FOIA in 1974 with the intention to strengthen the
statute because there was a general reluctance by agencies to comply with the
law's policy of full disclosure.[40] Federal agencies had been interpreting the
exemptions broadly to justify withholding documents, and officials often used
various ploys to discourage use of the FOIA, including high fees for copying
documents, long delays and claims that they could not find the documents
requested.[41] In great part, this state of affairs was the result of sometimes
vague or even poor draftsmanship of the FOIA.[42]
     The 1974 amendments required agencies to respond to information requests
within 10 days or face a lawsuit,[43] and directed each agency to issue FOIA fee
regulations for the recovery of only the direct costs of search and
duplication.[44] A key revision authorized federal judges to conduct in camera
review of classified information in order to confirm that the requested
materials actually fell within the guidelines of Exemption 1, the national
security exemption.[45] Congress revised Exemption 1 in direct response to a
1973 Supreme Court decision in EPA v. Mink.[46]  In deciding Mink, the Supreme
Court interpreted Exemption 1 broadly and held that classified documents were
exempt from judicial review.[47] Congress acted to override the Mink decision
because legislators believed the Court's ruling conflicted with the general
philosophy of full disclosure evinced in FOIA.[48]
        In 1976, Congress amended the FOIA for the second time because legislators
wanted to clarify Exemption 3. This exemption provided that the FOIA did not
apply to information clearly exempted by other laws previously passed by
Congress.[49] Legislators revised Exemption 3 to override a 1975 Supreme Court
ruling with which Congress did not agree.[50] In Administrator, FAA v.
Robertson,[51] the Court held that the FAA administrator possessed wide
discretion to withhold requested government records.[52] Congress disagreed with
the Court's broad construction of Exemption 3.[53] Legislators said the Supreme
Court decision allowed an agency administrator "carte blanche to withhold any
information he pleases."[54] Consequently, Congress revised Exemption 3 to
create guidelines that strictly limit an agency executive's discretion to
withhold information from the public.[55] This change is significant because, by
expressly limiting agency discretion for withholding, the amendment reflected a
congressional FOIA policy that favors disclosure.[56]
        Congress revised the FOIA for the third time in 1986 when  legislators amended
the Act by passing the Freedom of Information Reform Act of 1986.[57] The
amendment provided broader exemption protection for law enforcement information
and added new exclusions for law enforcement records under Exemption 7, FOIA's
law enforcement exception.[58] More pertinent to this analysis, the 1986
amendment also created new provisions concerning fees and fee waivers.[59] Under
these guidelines, fees recover only a small portion of the costs of responding
to requests, thus making information economically accessible.[60]
        The FOIA's amendments are in keeping with Congress' intent that the Act
represents a broad policy of full disclosure, limited only by the nine
exemptions,[61] which must be narrowly construed.[62] The public policy behind
the FOIA was echoed by President Johnson when he signed the FOIA into law on
July 4, 1966:
     This legislation springs from one of our most essential principles: A
     democracy works best when the people have all the information that the
     security of the nation permits.  No one should be able to pull the curtain
of
     secrecy around decisions which can be revealed without injury to the public
     interest.[63]
 
        The Supreme Court has also articulated Congress' intent for the FOIA to
represent a broad policy favoring disclosure. In a 1976 opinion written by
Justice William J. Brennan in U.S. Dept. of the Air Force v. Rose,[64] the Court
said the FOIA's legislative history makes it "crystal clear" that the
congressional objective for the Act was to "pierce the veil of administrative
secrecy and to open agency action to the light of public scrutiny."[65] The
Court further declared that the FOIA's statutory language and legislative
history indicate that the statute was "broadly conceived"[66] and its nine
exemptions must be narrowly construed.[67] Justice Brennan wrote that these
"limited exemptions do not obscure the basic policy that disclosure, not
secrecy, is the dominant objective of the act."[68]
        The legislative history of the FOIA, the 1974 and 1976 amendments, and case law
clearly evince a Congressional intent favoring disclosure and construing the
statute's exemptions narrowly. Passage of the EFOIA amendments of 1996 clearly
showed that Congress wanted to maintain the broad policy of full disclosure, by
clarifying that the statute applies to electronic records -- a requirement that
Congress had not before explicitly stated.[69]
 
 
 
 
 
Part II: The Electronic Freedom of Information Act
 
     When President Johnson signed the FOIA into law, the statute made no
mention of electronically recorded or stored information because government
records were primarily produced on paper.[70] In 1955, when congressional
hearings began laying the foundation for the FOIA, the federal government had 45
computers.[71] Ten years later, when the Senate passed its version of the FOIA,
the computer inventory for the federal government was 1,826.[72] The number
jumped to 5,277 by 1970.[73] By 1994, the federal government used 25,250 small
computers (costing $10,000 to $100,000 each); 8,500 medium computers (costing
$100,000 to $1 million each); and 890 large computers (more than $1 million
each).[74] Other estimates for the number of computers used by the federal
government run even higher.[75]
     Against this backdrop of rapid computerization combined with the reluctance
of agencies to apply the FOIA to electronic information,[76] as in the case of
SDC Development Corp. v. Mathews,[77] Congress enacted The Electronic Freedom of
Information Act Amendments of 1996.[78] The amendments were the culmination of
years of efforts by Senator Patrick Leahy and his supporters[79] to update the
FOIA because public access to electronic information had become a problem.[80]
Beginning in the mid-1970s, some agencies rejected FOIA requests for records in
electronic form, arguing that the information did not qualify for disclosure
under the Act.[81] The problem was underscored in some instances when federal
courts ruled against FOIA requesters in disputes with agencies that withheld
information that was recorded or stored electronically.[82]
     The 1996 amendments establish that the rules for public access under the
FOIA apply equally to electronic records and paper records,[83] and a search
request for electronic records using software is to be treated the same as a
paper search.[84] The law states that a "record" which is subject to the FOIA
comprises information maintained by an agency in any format, including an
electronic format.[85] Under the EFOIA, agencies must make reasonable efforts
(1) to provide a record "in any form or format requested by the person if the
record is readily reproducible by the agency in that form or format,"[86] and
(2) to maintain records "in forms or formats that are reproducible" so that
requests for the information can be honored.[87] The law also mandates that when
agency officials redact parts of an electronic record because the information is
determined to fall within one of the nine exemptions, they must note the
location and the extent of any deletions made on the electronic record.[88]
 
Part III: EFOIA Section 3 and SDC v. Mathews
 
     In all, the Electronic Freedom of Information Act comprises 12
sections,[89] 10 of which pertain directly or indirectly to electronic access or
dissemination issues.[90] EFOIA Sections 7 and 8 concern administrative and
procedural changes that deal with delays in processing FOIA requests and
backlogs, and are beyond the scope of this analysis.[91] Section 3,[92]  the
focus of this research project, clarifies the terms "agency" and "record," and
expressly states that agency records maintained in electronic format are
controlled by the requirements of the FOIA in the same way as paper records.[93]
The section states that the FOIA is amended as follows:
     (f) For purposes of this section, the term --
          (1) "agency" as defined in   551(1) of this title
          includes any executive department, military
        department, Government corporation, Government
        controlled corporation, or other establishment in
        the executive branch of the Government (including
        the Executive Office of the President), or an
        independent regulatory agency; and
        (2) "record" and any other term used in this section
        in reference to information includes any information
        that would be an agency record subject to the
        requirements of this section when maintained by an
          agency in any format, including an electronic format.[94]
 
     There are several reasons why Section 3 is significant: First, it provides
for the first time a FOIA definition for the term "record," which the statute
had never explained before.[95] The Freedom of Information Act defined the term
"agency," but it did not define either "record" or "agency record." And still,
the term "agency record" is not defined in the FOIA or any of its
amendments.[96] Second, the section makes clear that the term "record" applies
to information in any format, including electronic formats.[97] A 1996 House
report that accompanied the EFOIA[98] illuminates the congressional intent
behind another of Section 3's purposes -- to explicitly reject a 1976 definition
of "agency records" used by the U.S. Court of Appeals for the Ninth Circuit in
SDC Development Corp. v. Mathews.[99]
     In SDC v. Mathews, the Ninth Circuit held that a widely used medical
database, compiled and stored in a computer data bank by the National Library of
Medicine, did not qualify as an "agency record" for the purposes of the
FOIA.[100] Because the terms "record" and "agency record" were not defined in
the FOIA, the Ninth Circuit decided to draw its definition of "agency records"
from a portion of the Records Disposal Act that deals with library
materials.[101] The Ninth Circuit reasoned that a definition keyed to library
materials was appropriate because the requested information was compiled by the
National Library of Medicine.[102]
     But according to the EFOIA House report, the Ninth Circuit's holding was
inconsistent with the general policy of full disclosure expressed in the
FOIA.[103] The House report said the Ninth Circuit used the library material
exclusion in the Records Disposal Act "as an excuse to place these records
beyond the reach" of the FOIA.[104] The EFOIA, the House report said, now "makes
clear, contrary to SDC v. Mathews, that information an agency has created and is
directly or indirectly disseminating remains subject to the FOIA in any of its
forms or formats."[105]
     SDC v. Mathews, a complex case and one of the earliest cases in computer
access litigation under the FOIA,[106] serves as an illustration of how the
ability to control and manipulate information in electronic formats makes
electronically stored information more desirable and potentially far more
valuable than equivalent data on paper.[107] But compiling data, incorporating
it into a software delivery system and maintaining it can be costly, which is
the issue that prompted the FOIA access request in SDC v Mathews.[108]
     In this case, SDC Development Corp., a private, commercial user of
biomedical and research information, made a FOIA request to obtain a database of
the Medical Literature Analysis and Retrieval System (MEDLARS) for $500 -- the
nominal cost of reproduction.[109] The MEDLARS database was created by the
National Library of Medicine (NLM), a federal agency[110] established by
Congress in 1956 as a division of the U.S. Department of Health, Education and
Welfare.[111] The MEDLARS family of databases -- a computerized system for
storing, indexing and retrieving medical bibliographical data -- is an important
and basic resource that is widely used in the biomedical and research
communities.[112]
     At the time, public access to the MEDLARS tapes was available online
through MEDLINE,[113] the National Library of Medicine's online database system.
But MEDLINE users were required to pay an hourly rate of $8 to $15 per hour for
access to the MEDLARS tapes, depending on time of day; the higher rate applies
to prime use hours.[114] Additionally, the computer tapes were available on an
annual subscription basis for $50,000 through the National Technical Information
Service,[115] a clearinghouse for the collection of scientific, technical and
engineering information for dissemination to industry, business, government and
the general public.[116]
     The public also could have access to a printed version of the requested
database, called Index Medicus, for the nominal cost of reproduction.[117]
However, a printed listing is not as useful to or convenient for users of the
information as a database could be.[118] For example, the user would have to
incur the expense of rekeying the text into a computer, building the indices and
creating computerized search capability. Furthermore, a printed text is not
updated as quickly or as easily as its computerized counterpart, which can be
continually updated. In other words, information in electronic formats is more
valuable than the same data on paper because information users can manipulate
the electronic information more efficiently.[119]
     SDC brought suit in the U.S. District Court for the Central District of
California after the government refused to release the MEDLARS database for
nominal reproduction costs. The district court entered a summary judgment in
favor of the government.[120] On appeal, the Ninth Circuit affirmed the district
court decision, holding that the requested database did not qualify as an
"agency record" under the FOIA.[121]
     SDC's argument for access consisted of what the Ninth Circuit described as
a "simple syllogism":[122] The FOIA requires reproduction, at a nominal cost,
for all agency records not falling within one of the listed exemptions. The
MEDLARS tapes were agency records, not specifically exempted. Therefore, the
tapes must be reproduced at nominal cost.[123] Under the FOIA's fee structure,
access fees essentially cover only the cost of search and reproduction.[124]
     The Ninth Circuit, however, rejected SDC's premise that the MEDLARS tapes
were agency records. The appellate court's analysis, written for the three-judge
panel by then-Circuit Judge Anthony M. Kennedy, began by noting that the terms
"record" and "agency records" are not specifically defined by the statute.[125]
The Ninth Circuit turned to the FOIA's legislative history for guidance on how
to clarify these terms, and concluded that Congress intended for the statute's
disclosure provisions to apply primarily to information concerning the
"structure, operation, and decision-making procedure" of federal agencies.[126]
     The Ninth Circuit then examined the MEDLARS tapes to determine if they fell
within the aforementioned description of information that qualified for
disclosure, and made three findings. First, the court said there was a
difference between the information in the MEDLARS tapes and the software system
that delivers the information.[127] The court said the agency was not trying to
protect its information; the agency simply wanted to protect its software
delivery system, which "constitutes a highly valuable commodity."[128] The
appellate court concluded that the agency was not contravening the legislative
intent of the FOIA because the agency did not seek to "mask its processes or
functions from public scrutiny. . . . [I]ts principal mission is the orderly
dissemination of material it has collected. The agency is seeking to protect not
its information, but rather its system for delivering that information."[129]
     The software system's value led to the court's second finding: There was an
economic issue behind disclosure.[130] The court said that by allowing any
requester to gain access to the system at a nominal charge, the information
gathering and dissemination function of the agency would be substantially
impaired.[131] The impairment would result because the National Library of
Medicine had entered into agreements under which universities and foreign
governments can have the tapes at no cost in exchange for services such as
cataloguing, indexing and abstracting of medical publications to update the
database.[132] Thus, the Ninth Circuit held, contractual relations with these
organizations, designed to increase the agency's ability to acquire and catalog
medical information, "would be destroyed if the tapes could be obtained
essentially for free."[133] The court found that releasing the database at a
nominal fee to the general public and private sector would undermine the
system's commercial value, depriving the agency of income to defray the $10
million cost of developing and continually updating the system.[134] In other
words, users would not pay the market rate for commercial access to the MEDLARS
tapes if they could obtain the tapes for a nominal FOIA fee.
     Third, the court made a distinction between the types of records that
Congress intended to make available through the FOIA and the MEDLARS tapes. The
court held that the MEDLARS tapes did not fall within any of the categories of
information that Congress intended the FOIA to control, namely, information that
that "directly reflect[ed] the structure, operation, or decision-making
functions" of federal agencies.[135] Instead, the court reasoned that the
MEDLARS tapes qualified as library reference materials because the tapes were
compiled by the National Library of Medicine.[136] Furthermore, under the
National Library of Medicine Act,[137]  the Department of Health, Education and
Welfare has wide discretion in setting charges for the use of library
materials.[138] Therefore, the court of appeals concluded, the National Library
of Medicine was not obligated to provide the MEDLARS database for the nominal
cost of duplication.[139]
     Congress, however, explicitly rejected the Ninth Circuit's rationale in
EFOIA Section 3.[140] The House report accompanying the EFOIA said Section 3
nullifies SDC v. Mathews because the law clarifies that any information an
agency has created and is directly or indirectly disseminating remains subject
to the FOIA in any forms or formats.[141] Indeed, Section 3 may open the door
for both commercial and non-profit FOIA users to gain access to a wide variety
of useful electronically stored information, such as value-added computerized
data, for nominal costs. But Section 3 also raises some important questions. For
example, does EFOIA Section 3 prevent the government from selling -- or at least
recovering reasonable costs of producing -- databases compiled by federal
agencies at a substantial expense to the public?
 
Part IV: Economic Implications of EFOIA Section 3
 
     Critics argue that congressional rejection of SDC v. Mathews, in
particular, and efforts to widen the FOIA's applicability to computerized
information, generally, may have far-reaching and undesirable implications for
federal agencies because of the FOIA's liberal fee structure.[142] Under the
FOIA fee guidelines established in the 1986 amendments, fees recover only a
small portion of the costs of responding to requests.[143] In 1992, for example,
government-wide costs for FOIA were reported at $108 million whereas fees
amounted to $8 million.[144]
     Fee schedules are established by each agency according to standards set by
the Office of Management and Budget.[145] The statute provided that commercial
requesters can be required to pay "reasonable standard charges" at most for only
the direct costs of search, duplication or review.[146] Fees are limited to such
charges for only document duplication if the records are not sought for
commercial use, and the request is from an education or noncommercial scientific
institution whose purpose is scholarly or scientific research, or a
representative of the news media.[147] And when review costs are assessed, only
the direct costs incurred during the initial examination of a document may be
recovered.[148] Review costs may not include any expenses incurred in resolving
issues of law or policy that may be raised in the course of processing a
request.[149] Charges can be waived or reduced below the fees established for
noncommercial users if disclosure would be in the public interest "because it is
likely to contribute significantly to public understanding of the operations or
activities" of the government.[150]
        As a result of Congress' decision to override SDC v Mathews, agencies that
compile value-added data can suffer adverse economic consequences, argued
attorney David MacDonald.[151] By permitting "indiscriminate access" to
value-added proprietary databases under the FOIA fee structure, he asserted,
agencies are prevented from recovering reasonable costs from private parties who
benefit commercially from access to the information.[152]
     MacDonald contended that the Ninth Circuit decision in SDC v. Mathews was
correct in making an important distinction between proprietary information
systems and agency records reachable under the FOIA.[153] In his view, the
distinction protected value-added information contained in the databases such as
MEDLARS from access under the FOIA fee structure.[154] By overriding the Ninth
Circuit decision, Congress established that all electronic records would be
subject to disclosure, including information libraries and other value-added
data.[155] Consequently, agencies that produce value-added information may find
it difficult to protect their substantial investments, and this is a reasonable
concern.[156]
     The expense of building and maintaining some databases can run into the
millions of dollars. It cost the National Library of Medicine $10 million to
create the MEDLARS family of databases in 1976.[157] The technology of that time
was rudimentary and relatively costly compared to the technology emerging today.
To illustrate this point, compare the cost and capability of a personal computer
today with a personal computer built 10 or even five years ago. Still, the new
technology remains very expensive, as it enables government to embark on highly
complex projects to produce value-added data that were not imagined by most
people a quarter of a century ago. For example, a single municipal geographic
information system (GIS) can cost $8 million to complete,[158] and this price
tag is modest compared to what it can cost to create and maintain the kinds of
databases used by federal agencies.
        Extending FOIA access to the growing number of computerized records in general
would increase agency costs exponentially,[159] according to Professor Fred H.
Cate and his colleagues. Cate argued that the FOIA already has been extended
"far beyond its original purpose" by requesters, agencies, litigants and
courts.[160] The vast majority of FOIA requesters do not seek information about
government activities, he said, but rather want information about business
competitors, opposing parties in litigation and the activities of other
non-governmental entities.[161]
     Cate said that extending the applicability of the FOIA violates the purpose
for which the Act was created and also costs taxpayers billions of dollars
responding to requests "seeking no information 'about what the government is up
to.'"[162] The costs associated with "this misuse of the FOIA increase as more
requesters use the Act to discover information about non-governmental activities
and as the volume of agency records subject to the FOIA expands," Cate and his
colleagues said.[163] "Those costs threaten to increase exponentially, however,
if the FOIA is applied to the increasing number of computerized agency
records."[164]
     The burgeoning use of the federal disclosure statute, which Professor Cate
said prompted his concerns,[165] is well documented. The FOIA's expanded use
since its enactment in 1966 is reflected in its costs of operation. FOIA
operations cost $108 million in 1992,[166] representing an increase of about $17
million over the previous year.[167] By comparison, the FOIA's government-wide
costs in 1966 were $50,000.[168] Even allowing for inflation during this
26-year-period, the increase in FOIA costs is substantial.
     Patricia M. Wald, Circuit Judge for the U.S. Court of Appeals for the
District of Columbia, observed in 1984 that "like all freedoms, the FOIA turned
out to have its price, financially and otherwise, and some costs proved to be
more unexpected than others."[169] Judge Wald explained that within a decade
after the FOIA was enacted, businesses figured out they could use the FOIA to
get information about competitors, and lawyers found they could often extract
facts faster through FOIA requests than through civil discovery.[170] The FOIA
became a "mini-industry," she wrote, providing information mainly to businesses
or their lawyers.[171] She cited a General Accounting Office survey that showed
only one out of every 20 FOIA requests was made by a journalist, a scholar or an
author.[172]
     But MacDonald, Cate and other critics[173] may be tolling warning bells
prematurely. Under current law, the test for FOIA applicability arguably would
already exclude many of the materials that critics fear would be subject to
disclosure. This test was established in a seminal 1989 Supreme Court case, U.S.
Dept. of Justice v. Reporters Committee for Freedom of the Press.[174] Reporters
Committee is a most important ruling because it stands for the Supreme Court's
current interpretation of the FOIA's central purpose.[175]
 
     Part V: U.S. Dept. of Justice v. Reporters Committee
 
        The Supreme Court held unanimously in Reporters Committee that federal agencies
can withhold computerized FBI compilations of "rap sheets" on private citizens
even though the information might be available in public records available in
local or state offices.[176]  In an opinion written by Justice John Paul
Stevens, the Court ruled that the disclosure of compilations of an individual's
criminal records is an unwarranted invasion of privacy under Exemption 7(C), the
FOIA law enforcement exception, when the request does not seek official
information that directly reveals government operations or activities.[177]
        The decision ended an 11-year effort by CBS reporter Robert Schakne and the
Reporters Committee for the Freedom of the Press to obtain the FBI's rap sheet
-- a record of arrests, indictments, convictions or acquittals -- on reputed
crime figure Charles Medico.[178]  Schakne was investigating Medico because
Medico's company allegedly received defense contracts in exchange for political
contributions to a corrupt Pennsylvania Congressman, Daniel J. Flood.[179]  The
Pennsylvania Crime Commission had identified Medico Industries as a legitimate
business dominated by organized-crime figures.[180] The FBI provided Schakne
with information on three of Charles Medico's brothers, who were deceased, but
the agency refused to release the requested information on Charles Medico, who
was still living.[181] Schakne brought suit in U.S. District Court for the
District of Columbia, and the district court granted the FBI's motion for
summary judgment, holding that the information was protected under FOIA
Exemption 7(C)[182] and disclosure would be an unwarranted invasion of Charles
Medico's privacy.[183]  The D.C. Circuit reversed, concluding that the
government cannot claim a privacy interest in FBI-compiled records that would be
available to the public if sought from the individual law enforcement
agencies.[184]
     But the Supreme Court reversed the D.C. Circuit and permitted the FBI to
withhold the information. The Court said it reached its outcome by balancing the
individual's right of privacy against the public interest in disclosure.[185]
The Court held that the public interest to be balanced against the privacy
interest is that of disclosing only information that directly reveals the
operations or activities of the government.[186]
     Justice Stevens wrote that FOIA's "central purpose is to ensure that the
government's activities be opened to the sharp eye of public scrutiny, not that
information about private citizens that happens to be in the warehouse of the
government be so disclosed."[187] The Court concluded that disclosure of a
computerized compilation of an individual's criminal records, which do not
directly reveal governmental operations or performance, is an unwarranted
invasion of privacy because the information falls "outside the ambit of the
public interest that the FOIA was enacted to serve."[188]  In the Court's view,
in other words, the rap sheets did not directly reveal information about how
government operates and, therefore, could be withheld.[189] The information
would "tell us nothing directly about the character of the Congressman's
behavior," Justice Stevens wrote.[190] "Nor would it tell us anything about the
conduct of the Department of Defense in awarding one or more contracts to the
Medico Company." [191]
        Justice Stevens made a particular point to note that the request was for
computerized information and that computerization of personal information poses
a special potential threat to privacy.[192] The Court acknowledged that Medico's
criminal history of arrests, indictments and convictions are public records,
which might be acquired after a search of courthouse files and records of local
law enforcement agencies that investigated and prosecuted him.[193] But Justice
Stevens emphasized that Schakne sought a computerized compilation of all of this
information, and the privacy interest in a rap sheet is substantial.[194] "The
substantial character of that interest is affected by the fact that in today's
society the computer can accumulate and store information that would have
otherwise surely been forgotten long before a person attains the age of 80, when
the FBI's rap sheets are discarded."[195] Justice Stevens said there is a "vast
difference between the public records that might be found after a diligent
search of courthouse files, county archives and local police stations throughout
the country and a computerized summary located in a single clearinghouse of
information."[196]
        The Reporters Committee majority position was criticized, however, in a
concurring opinion by Justice Harry A. Blackmun, joined by Justice Brennan.
Justice Blackmun argued that the Court opinion exempting all rap-sheet
information from the FOIA's disclosure requirements was overbroad in light of
Exemption 7(C)'s plain language, legislative history and case law.[197]  He
characterized the Court majority's "bright-line rule" as not basically
sound.[198] To illustrate his point, Justice Blackmun presented a hypothetical
situation in which a rap sheet disclosed a congressional candidate's conviction
of tax fraud before he ran for office.[199]  The FBI's disclosure of that
information could not reasonably be expected to constitute an invasion of
personal privacy, much less an unwarranted invasion, because the candidate gave
up any interest in preventing disclosure of this information when he chose to
run for office, Justice Blackmun said.[200] "I would not adopt the Court's
bright-line approach but would leave the door open for the disclosure of
rap-sheet information in some circumstances," he concluded.[201]
     The Reporters Committee ruling has major significance because its holding
stands for the Supreme Court's current interpretation of the FOIA's purpose --
to provide public access only to official information that directly reveals
governmental operations or activities.[202] This ruling represents a much
narrower interpretation of the FOIA's scope than the Court found in U.S. Dept.
of the Air Force v. Rose[203] in 1976. The Rose Court said the FOIA's
legislative history clearly shows that Congress intended for the "broadly
conceived" Act to permit access to official information and open agency action
to public scrutiny.[204] Justice Brennan emphasized in Rose that the exemptions
are limited, must be narrowly construed,[205] and do not obscure the fact that
disclosure is the FOIA's dominant objective.[206]
     The Reporters Committee opinion set forth the principle that the "statutory
purpose" of the FOIA is to disclose only official information that "sheds light
on an agency's performance."[207] By so holding, the Court established a
"conduct test" as a threshold question that lower courts must answer even before
determining whether requested information might fall within one of the nine
exemptions.[208]
     An analysis of the Court's reasoning in Reporters Committee shows that its
conduct test derives from a two-step process. First, the Court established that
the FOIA's basic policy of disclosure "focuses on the citizens' right to be
informed about 'what their government is up to.'"[209] Second, the Court equated
the public's need to know "what their government is up to" with a need to
evaluate government performance:
     Official information that sheds light on an agency's performance of its
     statutory duties falls squarely within that statutory purpose. That
purpose,
     however, is not fostered by disclosure of information about private
citizens
     that is accumulated in various government files but that reveals little or
     nothing about an agency's own conduct. In this case -- and presumably in
the
     typical case in which one private citizen is seeking information about
another
     -- the requester does not intend to discover anything about the conduct of
the
     agency that has possession of the requested records. Indeed, response to
this
     request would not shed light on the conduct of any Governmental agency or
     official."[210] (Italics added.)
 
     In other words, although federal agencies collect vast amounts of
information on virtually every facet of society, compiled at a tremendous
expense to the public, the public is entitled to gain access to only a limited
class of information as prescribed by the Court's narrowly drawn "core purpose"
of the Freedom of Information Act.[211] The Court's narrow interpretation of the
FOIA's purpose seemingly ignores the public interest value of a wealth of
government-held information that does not reveal government operations or
conduct. Such information includes census data, economic data and public health
and safety information, ranging from commercial aircraft maintenance records
from the FAA to the results of clinical trials on over-the-counter drugs from
the FDA.
     As a result of the Court's narrow interpretation of the FOIA's central
purpose, dire warnings about EFOIA Section 3's implications are largely
overstated. Under the Reporters Committee conduct test, it seems unlikely that
types of information like the data in the MEDLARS tapes would qualify for
disclosure. As the Supreme Court plainly said in a 1997 ruling that relied on
Reporters Committee as precedent: "[T]he only relevant public interest in the
FOIA balancing analysis" is "the extent to which disclosure of the information
'sheds light on an agency's performance of its statutory duties' or otherwise
lets citizens know 'what their government is up to.'"[212]
 
Discussion
 
     Congress intended for EFOIA Section 3[213] to provide access to federal
agency databases containing the kinds of public interest information found in
the MEDLARS tapes.[214] Meanwhile, however, the decision in U.S. Dept. of
Justice v. Reporters Committee for Freedom of the Press[215] still stands for
the proposition that the scope of the FOIA is limited[216] and would exclude
precisely the kind of information contained in the MEDLARS tapes. Under the
Court's central purpose doctrine,[217] the tapes would not directly reveal
government operations or activities and thus flunk the conduct test.[218]
     Consequently, the future implications of Section 3 remain elusive even
though the MEDLINE/MEDLARS question has been settled. The National Library of
Medicine made both services available to the public free of charge on the
Internet as of June 26, 1997.[219] MEDLINE users now can gain access to the
online terminal service on the World Wide Web.[220] In addition to MEDLINE, the
National Library of Medicine is also making the MEDLARS databases available
online.[221]
     Although the MEDLINE/MEDLARS question is resolved, the much larger issue it
represented from the outset remains unsettled: Does SDC Development Corp. v.
Mathews[222] conflict with Reporters Committee,[223] and if so, to what effect?
Congress made it clear that Section 3 overrode SDC v. Mathews, but did Congress
realize that in overcoming that case, EFOIA Section 3 collided with Reporters
Committee? Perhaps some in Congress intended Section 3 to be an attack on
Reporters Committee, but the evidence is inclusive.
     Some members of the Senate, at least, were fully cognizant of the Reporters
Committee ruling's profound consequences on the scope of the FOIA.[224] The
record shows that the Senate Committee on the Judiciary reached a consensus in
1995 that the Reporters Committee decision conflicted with the FOIA's general
philosophy of full disclosure.[225] This view was articulated in a Senate report
that accompanied a 1995 precursor to the House-sponsored EFOIA of 1996 -- The
Electronic Freedom of Information Improvement Act of 1995, which was a Senate
bill introduced by Senator Leahy.[226] The Senate report directly addressed the
Supreme Court's central purpose doctrine, and concluded in strongly worded terms
that the Court construed the purpose of the FOIA too narrowly in Reporters
Committee.[227]
     The purpose of the FOIA is not limited to making agency records and
     information available to the public only in cases where such material would
     shed light on the activities and operations of Government. Effort by the
     courts to articulate a 'core purpose' for which information should be
released
     imposes a limitation on the FOIA which Congress did not intend and which
     cannot be found in its language, and distorts the broader import of the Act
in
     effectuating Government openness.[228]
 
     Leahy's bill was unanimously approved by the Committee on the Judiciary on
April 25, 1996,[229] but congressional action on the Senate proposal ended
there. After negotiations with the House, Leahy's Senate bill was revised and
reintroduced as House bill H.R. 3802 on July 12, 1996.[230] Three months later,
that bill was signed into law as the Electronic Freedom of Information Act
Amendments of 1996 (EFOIA).[231] However, the House report accompanying the
legislation failed to contain any language criticizing the Reporters Committee
decision.
     This omission of such clarifying language allows Reporters Committee to
trump EFOIA Section 3 because there is nothing in the statutory language of
Section 3 to override Reporters Committee. The new FOIA language contained in
Section 3 offers a definition of "record": The term "record" and "any other term
used in this section in reference to information includes any information that
would be an agency record subject to the requirements of this section when
maintained by an agency in any format, including an electronic format."[232] The
attack on SDC v. Mathews is not in the statute's language. Rather, it is stated
in the EFOIA House report that discussed the congressional intent behind Section
3 and makes no mention of Reporters Committee.[233]
     As a result, the Reporters Committee ruling represents a serious threat to
the future of public access to information held by federal agencies. There
already is a long line of lower court FOIA cases that have relied on the
Reporters Committee central purpose test.[234] Until recently, the lower courts
have used the central purpose analysis only in FOIA cases involving privacy
Exemptions 6 or 7 (C).[235] But Christopher P. Beall, writing in the Duke Law
Journal, has pointed out that several courts recently have broadened the central
purpose doctrine's scope by incorporating it in the analyses of FOIA cases "that
had little to do with these traditional privacy exemptions."[236]
     Such a trend might find support among FOIA critics such as MacDonald, Cate
and other commentators mentioned in this analysis. Indeed, Cate and his
colleagues wrote that in order to achieve the FOIA's intended purpose, the
Court's central purpose test "should be the touchstone for disclosure."[237]
They urged further that the central purpose test should be expanded "beyond
Exemptions 7(C) and 6, and beyond FOIA exemptions altogether."[238]
     For access advocates, however, a broad application of the central purpose
test by the courts might be viewed as a disturbing trend that could further
constrict the ambit of the FOIA's statutory purpose as evinced in its plain
language and legislative history. This analysis strongly suggests that Section 3
does not solve the problem posed by Reporters Committee -- namely, that the
Court's interpretation of the FOIA's purpose was narrowly drawn and contravened
the statute's legislative intent.
 
Conclusion
 
     It is poor public policy for Congress to allow the conflict between the
FOIA and the 1989 Reporters Committee ruling to remain unresolved for so many
years -- nearly a decade has elapsed since the Court handed down its FOIA core
purpose ruling. In Section 3, Congress seemed to advance public access rights by
making "all information that an agency has created and is directly or indirectly
disseminating subject to the FOIA in any of its forms or formats."[239] But the
Reporters Committee ruling, on the other hand, established that the "statutory
purpose" of the FOIA is to disclose only official information that "sheds light
on an agency's performance."[240] This conflict, which can be likened to driving
a car with one foot on the gas pedal and one foot on the brake, needs to be
resolved.
     There is ample precedent for Congress to override the  Supreme Court's
ruling in order to settle this conflict. As noted earlier in this analysis,
Congress in 1974 revised Exemption 1, the national security exemption, in direct
response to a 1973 Supreme Court decision in EPA v. Mink.[241] And in 1976,
Congress amended the FOIA to clarify Exemption 3 in the aftermath of a 1975
Supreme Court decision, Administrator, FAA v. Robertson.[242]
     An FOIA amendment aimed at overriding Reporters Committee would not only
serve the nation's democratic interests in open government, but also would be in
keeping with the spirit of the Freedom of Information Act as originally
envisioned by Congress when it first crafted the Act in 1965. In introducing the
legislation that would lead to the FOIA, Senator Edward V. Long quoted James
Madison who declared:
     A popular Government, without popular information, or
     the means of acquiring it, is but a Prologue to a Farce
     or a Tragedy; or perhaps both. Knowledge will forever govern ignorance:
     And a people who mean to be their own Governors, must arm themselves with
the
     power which knowledge gives."[243]
 
 
 
 
 
 
 
 
 
 
Bibliography
 
 
 
Government Codes, Statutes, Reports
 
Administrative Procedure Act of 1946, 5 U.S.C.   1002.
 
Freedom of Information Act, 5 U.S.C.   552(a) (1994).
 
Freedom of Information Act Source Book: Legislative Materials, Cases, Articles,
Subcommittee on Administrative Practice and Procedure of the Committee on the
Judiciary, U.S. Senate, 93rd Cong., 2nd Sess. (1974).
 
Electronic Freedom of Information Act, Pub. L. 104-231, 110 Stat. 3048,    1-12
(1996)(codified as amended in various sections of 5 U.S.C.   552).
 
Electronic Freedom of Information Amendments of 1996, House of Representatives
Report 104-795, 104th Cong., 2d Sess., Sept. 17, 1996.
 
Electronic Freedom of Information Improvement Act of 1995, Senate Report
104-272, 104th Cong. 2d Sess., May 15, 1996.
 
The Electronic Freedom of Information Improvement Act, Hearing Report, Hearing
Before the Subcommittee on Technology and the Law of the Committee on the
Judiciary, U.S. Senate, on S. 1940, 102nd Cong., 2d Sess., Serial No. J-102-61,
April 30, 1992, U.S. Government Printing Office, 1993.
 
Creative Ways of Using and Disseminating Federal Information: Hearings Before
the Government Information, Justice and Agriculture Subcommittee of the House
committee on Government Operations, 102d Cong., 1st & 2d Sess. (1992).
 
Dept. of Justice, Report on "Electronic Record" FOIA Issues, 11 FOIA Update No.
1 (Winter 1990).
 
Management of Federal Information Resources Notice,   7a, 59 Fed. Reg. 37,906,
37,910 (1994)(Circular A-130).
 
Senate Report No. 1940, 102nd Cong., 2nd Sess. (1992).
 
House Report No. 1497, 89th Cong., 2nd Sess. (1966).
 
Senate Report No. 813, 89th Cong., 1st Sess. (1965).
 
 
Principal Cases
 
Department of Defense v. Federal Labor Relations Authority (FLRA), 114 S.Ct.
1006 (1994).
 
Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749 (1989).
 
U.S. Dept. of the Air Force v. Rose, 425 U.S. 352 (1976).
SDC Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976).
Administrator, FAA v. Robertson, 422 U.S. 255 (1975).
EPA v. Mink, 410 U.S. 73 (1973).
 
Books
 
Allan Robert Adler, ed., Litigation Under the Federal Open Government Laws,
American Civil Liberties Union Foundation (1995).
 
Kent Cooper, The Right to Know, Farrar, Straus and Cudahy (1956).
 
Harold L. Cross, The People's Right to Know, Columbia University Press (1953).
 
Justin D. Franklin and Robert F. Bouchard, Freedom of Information and Privacy
Acts, Thomson Legal Publishing, Inc. (1996).
 
James T. O'Reilly, Federal Information Disclosure:  Procedures, Forms and the
Law, Shepard's/McGraw-Hill, Inc. (1994).
 
Henry H. Perritt, Jr., Law and the Information Superhighway, Wiley Law
Publications (1996).
 
 
Journals and Periodicals
 
Christopher P. Beall, Note: "The Exaltation of Privacy Doctrines Over Public
Information Law," 45 Duke Law Journal 1249 (April 1996).
 
Matthew D. Bunker, Sigman L. Splichal, Bill F. Chamberlin and Linda M. Perry,
"Applying Legal Doctrine to Emerging Technology," 20 Florida State University
Law Review 543 (1993).
 
Fred H. Cate, D. Annette Fields and James K. McBain, "The Right to Privacy and
the Public's Right to Know: The 'Central Purpose' of the Freedom of Information
Act," 46 Administrative Law Review 41 (1994).
 
Robert M. Gellman, "Twin Evils: Government Copyright and Copyright-like Controls
Over Government Information," 45 Syracuse Law Review 999 (1995).
 
Harry A. Hammitt, "Freedom of Information Goes Electronic," Government
Technology (January 1997).
 
David MacDonald, Notes and Comments: "The Electronic Freedom of Information Act
Amendments," 23 Rutgers Computer & Technology Law Journal 357 (1997).
 
Jeffrey Norgle, Comment: "Revising the Freedom of Information Act for the
Information Age: The Electronic Freedom of Information Act," 14 John Marshall
Journal of Computer and Information Law 817 (Summer 1996).
 
Henry H. Perritt, Jr., "Unbundling Value in Electronic Information Products:
Intellectual Property Protection for Machine Readable Interfaces," 20 Rutgers
Computer & Technology Law Journal 415 (1994).
 
Eric J. Sinrod, "Freedom of Information Act Response Deadlines: Bridging the Gap
Between Legislative Intent and Economic Reality," 43 American University Law
Review 325 (1994).
 
Leo T. Sorokin, "The Computerization of Government Information: Does It
Circumvent Public Access Under the Freedom of Information Act and the Depository
Library Program," 24 Columbia Journal of Law and Social Problems 267 (1990).
 
George B. Turbow, "Protecting Informational Privacy in the Information Society,"
10 Northern Illinois Law Review 521 (1990).
 
Patricia M. Wald, "The Freedom of Information Act: A Short Case Study in the
Perils and Paybacks of Legislating Democratic Values," 33 Emory Law Journal 649
(1984).
 
 
Newspapers
 
Sheryl Gay Stolberg, "Now, Prescribing Just What the Patient Ordered," New York
Times, Aug. 10, 1997.
 
Peter Gorner, "Health Consumers Get Web Break: U.S. Allows Free, Open Internet
Access to Medical Library," Chicago Tribune, June 29, 1997.
 
Laura Kiernan, "Flood Is Placed on Year's Probation," Washington Post A8, Feb.
27, 1980.
 
Internet
National Library of Medicine <http://www.nlm.nih.gov>
[1]
 In 1991 Sen. Patrick Leahy introduced the Electronic Freedom of Information
Improvement Act. See Senate Hearing Before the Subcommittee on Technology and
the Law of the Committee on the Judiciary. See S. Rep. No. 1940, 102nd Cong.,
2nd Sess. (1992); See also H.R. Rep. No. 795, 104th Cong. 2nd Sess. 14 (1996).
[2]
 See Pub. L. No. 104-231, 110 Stat. 3048, __ 1-12 (1996)(codified as amended in
various sections of 5 U.S.C. _ 552).
[3]
 On September 20, 1996, Congress presented the Electronic Freedom of Information
Act Amendments to President Clinton for his signature. He signed the bill into
law on October 2, 1996.
[4]
 See 5 U.S.C. _ 552 (1994).
[5]
 See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 11.
 
[6]  See Id. at 13-14.
[7]
 See Id. at 16, citing statement of U.S. Rep. Steven Horn at a hearing on
federal information policy before the Subcommittee on Government Management,
Information and Technology of the Committee on Government Reform and Oversight,
June 13, 1996.
[8]
 See Pub. L. 104-231, 110 Stat. 3048, 3049, _ 3 (1996)(codified as amended in
subsection (f) of 5 U.S.C. _ 552). Section 3 is entitled Application of
Requirements to Electronic Format Information. The EFOIA comprises 12 sections
in all, 10 of which directly or indirectly address issues pertaining to the
recording, storage and disclosure of electronic records. See Id. __ 1-6 and __
9-12. Sections 7 and 8 concern administrative and procedural changes that deal
with delays in processing FOIA requests and backlogs. See Id. __ 7, 8 (codified
as amended in subsection (a)(6) of 5 U.S.C. 552). These two sections are beyond
the scope of this analysis.
 
[9]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20.
[10]
 542 F.2d 1116 (9th Cir. 1976). The appellant, F. David Mathews, was Secretary
of Health, Education and Welfare.
[11]
 Id. at 1120-21.
[12]
 See Management of Federal Information Resources Notice, _ 7a, 59 Fed. Reg.
37,906, 37,910 (1994)(Circular A-130). See Matthew D. Bunker, Sigman L.
Splichal, Bill F. Chamberlin and Linda M. Perry, Applying Legal Doctrine to
Emerging Technology, 20 Fla. St. U. L. Rev. 543, 559-60, 1993.
 
[13]  See generally Creative Ways of Using and Disseminating Federal
Information: Hearings Before the Government Information, Justice and Agriculture
Subcommittee of the House committee on Government Operations, 102d Cong., 1st &
2d Sess. (1992).
[14]
 See Robert M. Gellman, Twin Evils: Government Copyright and Copyright-like
Controls Over Government Information, 45 Syracuse L. Rev. 999, 1003, 1036
(1995); Henry H. Perritt, Jr., Unbundling Value in Electronic Information
Products: Intellectual Property Protection for Machine Readable Interfaces, 20
Rutgers Computer & Tech. L.J. 415, 418-22 (1994); Leo T. Sorokin, The
Computerization of Government Information: Does It Circumvent Public Access
Under the Freedom of Information Act and the Depository Library Program? 24
Colum. J.L. & Soc. Probs. 267, 277 (1991).
[15]
 See FOIA Update, Vol. XI, No. 2, at 3, Spring/Summer 1990.
[16]
 Law Professor Henry H. Perritt Jr. wrote that the Freedom of Information Act is
an "instrument of the diversity principle. It undercuts efforts to establish
information monopolies because it grants private sector redisseminators an
entitlement to public information notwithstanding agency efforts to block access
in order to support exclusive distribution arrangements." Henry H. Perritt, Jr.,
Law and the Information Superhighway 477 (1996).
[17]
 See supra note 15.
[18]
 See 489 U.S. 749 (1989).
 
[19]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20 (1996).
[20]
 See 489 U.S. at 772-74 (holding that the disclosure of computerized FBI
compilations of an individual's criminal records is an unwarranted invasion of
privacy under FOIA Exemption 7(C) when the request does not seek official
information that directly sheds light on an agency's performance of its
statutory duties.)
[21]
 See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20.
[22]
 489 U.S. at 773.
 
[23]  See U.S. Dept. of the Air Force v. Rose, 425 U.S. 352, 361 (1976); EPA v.
Mink, 410 U.S. 73, 80 (1973).
 
[24]  Congress revised the FOIA in 1974, 1976 and 1986 before it enacted the
electronic amendments in 1996. These earlier amendments will be discussed later
in this analysis.
[25]
 See S. Rep. 813, 89th Cong., 1st Sess. (1965), reprinted in Freedom of
Information Act Source Book: Legislative Materials, Cases, Articles 38, (1974)
[hereinafter The FOIA Source Book]. The FOIA Source Book of the Subcommittee on
Administrative Practice and Procedure of the Committee on the Judiciary, U.S.
Senate, is a primary source for the legislative history of the FOIA. See also
425 U.S. at 361. But see U.S. Dept. of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 774-75 (1989)(holding that the "core
purpose" of the FOIA is to disclose only those records that directly shed light
on the operations of government.)
[26]
 See 5 U.S.C. _ 552(f) (1994).
 
[27]  See Id.
 
[28]  5 U.S.C. _ 552(a).
[29]
 See Id. _ 552(a)(4)(B)(b). See also NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 234, 236 (1977); EPA v. Mink, 410 U.S. 73, 79, 87 (1973).
[30]
 See Justin D. Franklin and Robert F. Bouchard, Guidebook to the Freedom of
Information Act 1-24, _ 1.03, Mar. 1998.
 
[31]  See 142 Cong. Rec. S10715 (daily ed. Sept. 17, 1996)(statement of Sen.
Leahy).
[32]
 See Id.
[33]
 H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in The FOIA Source
Book, supra note 25, at 33. "A democratic society requires an informed,
intelligent electorate, and the intelligence of the electorate varies as the
quantity and quality of its information varies. ... [The FOIA] provides the
necessary machinery to assure the availability of Government information
necessary to an informed electorate." Id.
 
[34]  The term "right to know" has been attributed to a 1945 speech by Kent
Cooper, then Executive Director of the Associated Press. He is also the author
of The Right to Know (1956).
[35]
 "At the same time that a broad philosophy of `freedom of information' is
enacted into law, it is necessary to protect certain equally important rights of
privacy with respect to certain information in Government files, such as medical
and personnel records. It is also necessary for the very operation of our
Government to allow it to keep confidential certain material, such as the
investigatory files of the Federal Bureau of Investigation." S. Rep.  No. 813,
89th Cong., 1st Sess. (1965), reprinted in The FOIA Source Book, supra note 25,
at 38.
 
[36]  See 5 U.S.C. __ 552(b)(1-9). Briefly stated, the FOIA does not apply to
matters that fall under the categories of (1)classified information and national
security, (2) internal agency personnel information, (3) information exempted by
other Congressional statutes, (4) trade secrets and other confidential business
information, (5) agency memoranda, (6) disclosures that invade personal privacy,
(7) law enforcement investigation records, (8) reports from regulated financial
institutions and (9) geological and geophysical information.
 
[37]  See Pub. L. No. 104-231, 110 Stat. 3048, __ 1-12 (1996)(codified as
amended in various sections of 5 U.S.C. _ 552).
[38]
 See 542 F.2d 1116 (9th Cir. 1976).
[39]
 See 489 U.S. 749 (1989).
[40]
 In a critique of the FOIA, then University of Chicago Law Professor Antonin
Scalia characterized the 1966 version of the Act as a "relatively toothless
beast, sometimes kicked about shamelessly by the agencies." Antonin Scalia, The
Freedom of Information Act Has No Clothes, in Regulation, March/April, 1982, at
15.
[41]
 See Allan Robert Adler, Litigation Under the Federal Open Government
Laws 8 (1995).
 
[42]  Criticism of the Act ranged from the subtle -- "hardly
. . . the apogee of legislative draftsmanship" -- to the blunt
-- "primitive and ineffective." James T. O'Reilly, Federal Information
Disclosure -- Procedures, Forms and the Law 3-2 (1994).
 
[43]  See 5 U.S.C. _ 552(a)(6)(A)(i).
 
[44]  See H.R. Rep. No. 1380, 93d Cong., 2d Sess. 7 (1974).
 
[45]  See 5 U.S.C. _ 552(b)(1)(B).
 
[46]  See 410 U.S. 73 (1973).
[47]
 See Id. at 84.
[48]
 See H.R. Rep. No. 1380, 93d Cong., 2d Sess. 11-12 and S. Rep. No. 1200, 93d
Cong. 2d Sess. 12 (1974).
 
[49]  See 5 U.S.C. _ 552(b)(3).
[50]
 See Administrator, FAA v. Robertson, 422 U.S. 255 (1975).
[51]
 See Id.
[52]
 See Id. at 266-67.
[53]
 In a House subcommittee report accompanying the proposed amendment, Congress
specifically stated that the Supreme Court "misconceived the intent of Exemption
3." H.R. Rep. No. 880, 94th Cong., 2nd Sess. pt. 1, 23 (1976), reprinted in 1976
U.S. Code Cong. & Ad. News 2204-05. See Sims v. CIA (Sims I), 642 F.2d 562, 567
(1980).
[54]
 H.R. Rep. No. 880, 94th Cong., 2nd Sess. pt. 1, 23 (1976), reprinted in  1976
U.S. Code Cong. & Ad. News 2204-05.
 
[55]  See Id.
[56]
 See Id.
[57]
 See 5 U.S.C. _ 552(b)(7)(1986).
[58]
 See Id.
[59]
 See Id. __ 552(a)(4)(A)(i-vii). The FOIA fee structure will be discussed in
Part IV of this analysis.
[60]
 See Id.
[61]
 See Id. __ 552(b)(1-9). See supra note 36.
 
[62]  See U.S. Dept. of the Air Force v. Rose, 425 U.S. at 361.
 
[63]  See Statement by the President Upon Signing Bill Revising Public
Information Provisions of the Administrative Procedure Act, Weekly Comp. Pres.
Doc. 895 (July 4, 1966).
[64]
 425 U.S. 352.
[65]
 Id. at 361 (quoting Rose v. U.S. Dept. of the Air Force, 495 F.2d. 261, 263
(1974)).
[66]
 Id. (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)).
 
[67]  See 495 F.2d. at 263.
[68]
 Id.
[69]
 See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 11 (1996).
 
[70]  See Informing the Nation: Federal Information Dissemination in an
Electronic Age 207, Office of Technology Assessment, OTA-CIT-396, U.S.
Government Printing Office, October 1988.
 
[71]  S. Rep. 272, 104th Cong., 2d Sess. 8 (1996).
[72]
 Id.
[73]
 Id.
[74]
 Id.
 
[75]  See Bunker & Splichal, supra note 12, at 559-60, citing General Servs.
Admin., Federal Equipment Data Center, Automatic Data Processing Equipment in
the U.S. Government (Apr. 1990).
[76]
 Attorney and FOIA authority Allan Robert Adler testified that "conflict,
uncertainty and reluctance on the part of many federal agencies in applying the
FOIA to electronic records warranted the development and application of uniform
administrative policies and practices." Federal Information Policy: Hearings
Before the Subcomm. On Government Reform and Oversight on Government Management,
Information and Technology, 1996 WL 10828665 (statement of Allan Robert Adler).
See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 12, 20-21 (1996). See also, e.g.,
Dismukes v. Dept. of the Interior, 603 F.Supp. 760 (D.D.C. 1984)(holding that an
agency has no obligation to comply with a FOIA requester's electronic-format
preference); SDC Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir.
1976)(holding that a requested biomedical and research database did not qualify
as an "agency record" under the FOIA.)
 
[77]  See 542 F.2d 1116.
[78]
 See Pub. L. No. 104-231, 110 Stat. 3048, __ 1-12 (1996)(codified as amended in
various sections of 5 U.S.C. _ 552).
 
[79]  Support for passage of the EFOIA came from a variety of library, press,
civil liberties, consumer and research groups.
[80] 142 Cong. Rec. S10715 (daily ed. Sept. 17, 1996)(statement of Sen. Leahy).
 
 See supra note 1. Congress acknowledged as early as 1974 that maintenance of
federal agency records in computerized formats could potentially alter the
calculus of information disclosure requirements under the FOIA. See S. Rep. No.
854, 93rd Cong., 2d Sess. 12 (1974). The report said that "[w]ith respect to
agency records maintained in computerized form, the term 'search' would include
services functionally analogous to searches for records that are maintained in
conventional form. Difficulties may sometimes be encountered in drawing clear
distinctions between searches and other services involved in extracting
requested information from computerized record systems. Nonetheless, the [Senate
Committee on the Judiciary] believes it desirable to encourage agencies to
process requests for computerized information even if doing so involves
performing services which the agencies are not required to provide--for example,
using its computer to identify records." Id. Congress also recognized the
problems of access to electronically recorded government-held information in
1985 hearings before a subcommittee of the House Committee on Government
Operations. The hearings were reported under the title Electronic Collection and
Dissemination of Information by Federal Agencies, 99th Cong., 1st Sess. (1985).
[81]
 See Dismukes v. Dept. of the Interior, 603 F.Supp. 760 (D.D.C. 1984); SDC
Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976).
 
[82]  See Id.
 
[83]  See Pub. L. 104-231, 110 Stat. 3048, 3049, _ 3 (1996)(codified as amended
in subsection (f) of 5 U.S.C. _ 552).
[84]
 See Id. _ 4, amending _ 552(a)(2).
[85]
 See Id. _ 3(2), amending _ 552(f).
[86]
 Id. _ 5(B), amending _ 552(a)(3).
 
[87]  Id.
[88]
 See Id. _ 9, amending _ 552(a).
 
[89]  See Pub. L. 104-231, 110 Stat. 3048, __ 1-12(1996)(codified as amended in
various sections of 5 U.S.C. _ 552).
[90]
 See Id. __ 1-6 and __ 9-12.
 
[91]  The EFOIA's administrative and procedural provisions are beyond the scope
of this analysis. Briefly stated, the key provisions pertain to:
     Multitrack processing: The EFOIA authorizes agencies to establish
multi-track processing systems for requests, based on the amount of time the
agency requires to provide the information and the timeliness needs of the
requester. See Pub. L. 104-231, _ 7, amending _ 552(a)(6)(D) of 5 U.S.C.
     Expedited Processing: The expedited-processing provision gives priority to
two categories of requesters. The first category comprises those who would face
significant harm if they fail to obtain information in a timely manner,
including an imminent threat to life or physical safety. The second category
applies to requesters "primarily engaged in the dissemination of information to
the public, and involving compelling urgency to inform the public." See Id. _ 8,
amending _ 552(a)(6)(E) of 5 U.S.C. Although this category does not specifically
mention the terms "press" or "news media," it was created in response to
requests from news media representatives and their supporters during EFOIA
hearings. The requests came from hearings witnesses such as Byron York, reporter
for The American Spectator, and Eileen Welsom, on behalf of the Society of
Professional Journalists, the American Society of Newspaper Editors, and the
Newspaper Association of America. See H.R. Rep. No. 795, 104th Cong. 2nd Sess.
17 (1996). For example, Jane E. Kirtley, Executive Director of The Reporters
Committee for Freedom of the Press, suggested in testimony that agencies should
speed access requests from the media "whenever records are requested that would
enlighten the public on matters where public concern is strong." Id.
     Deadlines: The EFOIA extends the deadline to 20 work days for an agency to
determine whether it will comply with an information request. Previously,
agencies needed to respond within 10 work days. See Pub. L. 104-231, _ 8,
amending _ 552 (a)(6)(A)(I) of 5 U.S.C.
     Agency Backlogs: The 1996 amendment reinforces the requirement that
agencies must respond to requests on time. Under the EFOIA, agencies can no
longer delay responses to FOIA requests by citing "exceptional circumstances"
simply because the delay results from a predictable agency workload. Id. _ 7,
amending _ 552 (a)(6)(C) of 5 U.S.C.
 
[92]  See Pub. L. 104-231, 110 Stat. 3048, 3049, _ 3 (1996)(codified as amended
in subsection (f) of 5 U.S.C. _ 552).
[93]
 See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 19.
[94]
 Pub. L. 104-231, 110 Stat. 3048, 3049, _ 3.
 
[95]  See Id.
[96]
 In 1989, 10 years after the Ninth Circuit decided SDC Development Corp. v.
Mathews, a Supreme Court case clarified the meaning of the term "agency record"
under the FOIA. In Department of Justice v. Tax Analysts, 492 U.S. 136 (1989),
the Court noted that two requirements must be met for materials to qualify as
"agency records." First, an agency must "either create or obtain" the material.
Id. at 144 (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)). Second, the
agency must be in control of the materials at the time the FOIA request is made.
Id. at 145 (citing Kissinger v. Reporters Committee for Freedom of the Press,
445 U.S. 136, 157 (1980)).
 
[97]  See Pub. L. 104-231, 110 Stat. 3048, 3049, _ 3.
[98]
 See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20.
[99]
 542 F.2d 1116 (1976).
[100]
 Id. at 1120-21.
[101]
 Id. at 1120, n. 8, citing 44 U.S.C. __ 2901, 3301.
[102]
 See Id.
[103]
 See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20.
 
[104]  Id.
[105]
 Id.
[106]
 See, e.g., Dismukes v. Dept. of the Interior, 603 F.Supp. 760 (D.D.C. 1984);
Yeager v. Drug Enforcement Administration, 678 F.2d 315 (D.C. Cir. 1982);
Forsham v. Harris, 445 U.S. 169 (1980); Long v. Internal Revenue Service, 596
F.2d 362 (9th Cir. 1979).
[107]
 See Perritt, supra note 14; See also Gellman, supra note 14.
 
[108]  See 542 F.2d at 1118.
[109]
 See Id.
[110]
 See 42 U.S.C. _ 286(a).
[111]
 See Id. _ 275. The Department later became the Department of Health and Human
Services.
 
[112]  The MEDLARS database contains citations and abstracts of 2 million
biomedical research articles from about 3,000 medical and scientific journals.
See Id. at 1117.
[113]
 See 542 F.2d at 1117, n. 1.
[114]
 See Id. In 1976, when the Ninth Circuit heard the case, about 350 institutions
subscribed to the MEDLINE online service. Id.
 
[115]  See Id. at 1117-18.
 
[116]  See The Technical Information Act, 15 U.S.C. __ 1151-57. The database is
updated annually, which is why subscribers must renew each year at the full
subscription fee of $50,000 if they want to stay current. At oral arguments
before the Ninth Circuit, the government said that no individual or institution
had as yet paid $50,000 for the tapes. Instead, the NLM had entered into
agreements under which universities and foreign government can have the tapes in
exchange for services such as cataloguing, indexing and abstracting of medical
publications to update the database. See 542 F.2d at 1118.
[117]
 See Id. at 1117.
[118]
 See Perritt, supra note 14; See also Gellman, supra note 14.
[119]
 See Bunker & Splichal, supra note 12, at 560-61.
[120]
 See 542 F.2d at 1118.
[121]
 Id. at 1120-21.
 
[122]  Id. at 1118.
 
[123]  See Id.
[124]
 See 5 U.S.C __ 552(a)(4)(A)(i-vii).
[125]
 542 F.2d at 1118. See also supra note 96.
 
[126]  542 F.2d at 1119. The Ninth Circuit cited H. Rep. No. 1497, 89th Cong.,
2d Sess. 5-6 (1966) as "particularly enlightening." Id. at n. 7. The sections in
the House report cited in the SDC v. Mathews opinion outlined a history of
disclosure abuses by federal agencies in the years before the FOIA was enacted.
From 1946 until the FOIA was signed into law in 1966, federal disclosure
policies were controlled by The Administrative Procedure Act. See 5 U.S.C. _
1002. However, the Ninth Circuit opinion does not specify exactly what language
in the report the court relied on as "particularly enlightening." It is
significant to note also that the Ninth Circuit's interpretation of
Congressional intent for the FOIA's purpose is substantially similar to the U.S.
Supreme Court's interpretation of the Act's "core purpose" as articulated in a
case decided 13 years later: U.S. Dept. of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 774-75 (1989). The Reporters Committee
decision will be discussed in detail later in this analysis.
 
[127]  See 542 F.2d at 1120.
[128]
 Id.
[129]
 Id.
[130]
 See Id.
[131]
 See Id.
[132]
 See Id. at 1118.
[133]
 Id. at 1120.
[134]
 See Id.
[135]
 Id.
[136]
 See Id.
[137]
 See 42 U.S.C. _ 275 (1976).
[138]
 See Id. _ 276(c). "The Secretary is authorized, after obtaining the advice and
recommendations of the Board [of Regents] . . . , to prescribe rules under which
the Library will provide copies of its publications or materials, or will make
available its facilities for research or its bibliographic, reference, or other
services, to public and private agencies and organizations, institutions, and
individuals. Such rules may provide for making available such publications,
materials, facilities, or services (1) without charge as a public service, or
(2) upon a loan, exchange, or charge basis, or (3) in appropriate circumstances,
under contract arrangements made with a public or other nonprofit agency,
organization, or institution." Id.
[139]
 See 542 F.2d at 1121.
 
[140]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20 (1996).
 
[141]  See Id.
[142]
 See David MacDonald, The Electronic Freedom of Information Act Amendments: A
Minor Upgrade to Public Access Law, 23 Rutgers Computer & Tech. L.J. 357 (1997);
Fred H. Cate, D. Annette Fields, James K. McBain, The Right to Privacy and the
Public's Right to Know: The "Central Purpose" of the Freedom of Information Act,
46 Admin. L. Rev. 41 (1994).
 
[143]  See 5 U.S.C. __ 552(a)(4)(A)(i-vii).
[144]
 See Michael Moss, Public Eye: Federal Service Gets Wider Use by Sleuths, Snoops
and Senators, Wall Street Journal, Jan. 3, 1995, at A1.
 
[145]  See 5 U.S.C. _ 552(a)(4)(A)(i). See also Office of Management and Budget,
Freedom of Information Act Fees, 52 Fed. Reg. 10012 (March 27, 1987).
[146]
 5 U.S.C. _ 552(a)(4)(A)(ii)(I).
[147]
 See Id. _ 552(a)(4)(A)(ii)(II).
 
[148]  See Id. _ 552(a)(4)(A)(iv).
[149]
 See Id.
[150]
 Id. _ 552(a)(4)(A)(iii).
[151]
 See MacDonald, supra note 142, at 379.
[152]
 Id. at 387.
[153]
 See Id. at 373.
[154]
 See Id.
[155]
 See Id.
 
[156]  See Id. at 380.
 
[157]  See SDC Development Corp. v. Mathews, 542 F.2d at 1120.
[158]
 See Gary H. Anthes and Mindy Blodgett, States Eye Online Revenues,
Computerworld, August 19, 1996, at 26. The subject of this article was an $8
million geographic information system produced by the city of Phoenix.
[159]
 See Cate, supra note 142, at 66.
[160]
 Id. at 65.
[161]
 See Id.
[162]
 Id. at 65 (quoting U.S. Dept. of Justice v. Reporters Committee for Freedom of
the Press, 489 U.S. 749, 772 (1989)). Cate quotes the often cited remark --
"what the government is up to" -- to allude to the Reporters Committee opinion,
which supports Cate's point of view and which will be discussed in detail in
Part V of this analysis. But actually, this remark derives from a passage in an
article written by historian Henry Steele Commager for The New York Review of
Books, Oct. 5, 1972, at 7. See infra note 209.
[163]
 See Cate, supra note 142, at 66. Cate and his co-authors cited a 1982 article
by Antonin Scalia, in which Scalia described the FOIA as "the Taj Mahal of the
Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit
Analysis Ignored." See Scalia, supra note 40, at 15.
 
[164]  See Cate, supra note 142, at 66.
 
[165]  See Id. at 49-51.
 
[166]  See Moss, supra note 144. See also Eric J. Sinrod, Freedom of Information
Act Response Deadlines: Bridging the Gap Between Legislative Intent and Economic
Reality, 43 Am. U. L. Rev. 325, 334 (1994).
[167]
 See Sinrod, supra note 166.
[168]
 Edward C. Schmults, U.S. Deputy Attorney General, FOI Act Classic Example of
Law That Needs Improving, reprinted in Freedom of Information Act: Hearings on
S. 587, S. 1235, S. 1247, S. 1730, and S. 1751. Before the Subcomm. on the
Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 880
(1981).
[169]
 Patricia M. Wald, The Freedom of Information Act: A Short Case Study in the
Perils and Paybacks of Legislating Democratic Values, 33 Emory L.J. 649, 664-65
(1984).
[170]
 See Id. at 665.
[171]
 Id.
[172]
 Id., citing 1 1981 Senate Hearings 159, 161 (testimony of Jonathan Rose,
Executive Summary, Oversight of the Administration of the Federal Freedom of
Information Act.)
[173]
 See George B. Turbow, Protecting Informational Privacy in the Information
Society, 10 N. Ill. U. L. Rev. 521 (1990)(supporting the Supreme Court decision
in U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489
U.S. 749 (1989)). In Reporters Committee, the Court presented the "core purpose"
doctrine that limits disclosure of private information under the FOIA. Id. at
774-75.
 
[174]  See 489 U.S. 749.
[175]
 See Id. at 774.
[176]
 See Id. at 763.
[177]
 See Id. at 773-75.
[178]
 See Id. at 757.
[179]
 See Id. Flood pleaded guilty on Feb. 26, 1980 to conspiracy to violate federal
campaign laws and was placed on probation for a year. He was convicted of
conspiracy to solicit campaign contributions from persons seeking federal
government contracts. The 76-year-old Pennsylvania Democrat had resigned from
the House Jan. 31, 1980. He was tried on charges of bribery, perjury and
conspiracy in 1979. However, that trial, held in U.S. District Court in
Washington, D.C., ended in a mistrial on Feb. 3, 1979, when jurors could not
reach a decision after three days of deliberations. See Laura Kiernan, Flood Is
Placed on Year's Probation, The Washington Post A8, Feb. 27, 1980.
[180]
 See 489 U.S. at 757.
[181]
 See Id. at 757.
[182]
 5 U.S.C. _ 552 (b)7(C). The exemption states that the FOIA does not apply to
matters that are "(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement
records or information (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy. Exemption 7(C) is one of two privacy
exceptions to the FOIA. The other exception, Exemption 6, pertains to "personnel
and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy." Id. _ 552 (b)6.
[183]      Two key differences between the exemptions are evident in their
statutory language. First, Exemption 6 calls for "a clearly unwarranted
invasion" of privacy (italics added). Id. Exemption 7 requires a less strict
standard, asking an agency to show only "an unwarranted invasion of privacy."
Id. _ 552 (b)7(C). Second, Exemption 6 applies to information that, if
disclosed, "would constitute" an invasion of privacy (italics added). Id. _ 552
(b)6. Exemption 7, on the other hand, applies to information the disclosure of
which "could reasonably be expected to constitute" an invasion of privacy
(italics added). Id. _ 552 (b)7(C).
     The difference in language was intentional. The legislative history shows
that Exemption 7(C), as originally proposed by Sen. Gary Hart, also required a
"clearly" unwarranted invasion of personal privacy. See 120 Cong. Rec. 17033
(1974). However, the word "clearly" was dropped by the Conference Committee as a
concession in negotiations with President Ford to get the Act approved. See
Conf. Rep. No. 93-1380, 93d Cong. 2d. 11 (1974). By dropping "clearly," the
Exemption lessened the agency's burden to meet the test. See O'Reilly, supra
note 42, at 17-44. Legislators also agreed to the difference in language between
"would" in Exemption 6, and "could reasonably be expected" in Exemption 7(C) in
order enact the legislation.
     As a result, courts have concluded that Exemption 7(C) allows law
enforcement officers more latitude to withhold records to protect privacy than
is permitted under the stricter standard of Exemption 6. See U.S. Dept. of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755-756
(1989). In addition, Exemption 7(C) means the public interest in disclosure
carries less weight. Id.
     In making a determination in a privacy-interests case under Exemption 7(C),
the courts uses a two-step test. See 5 U.S.C. _ 552(b)7(C) (1994). First, the
documents must have been compiled for law enforcement reasons because this
Exemption pertains only to investigative records.  Second, the government must
prove that the disclosure could "reasonably be expected to constitute an
unwarranted invasion of privacy." Id.
     Likewise, the courts use a similar test in deciding an Exemption 6
privacy-interests case. The courts first must determine if the records falls
within the definition of "personnel," "medical" or "similar" files. Id. _
552(b)6 (1994). Second, the courts must balance the invasion of the individual's
personal privacy against the public benefit that would result from disclosure.
To withhold information, the government must show that the disclosure "would
constitute a clearly unwarranted invasion of privacy." Id. See U.S. Dept. of the
Air Force v. Rose, 425 U.S. 352 (1972).
 
 See U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489
U.S. at 757-59.
[184]
 See Reporters Committee for Freedom of the Press v. U.S. Dept. of Justice, 816
F.2d 730, 740 (1987).
[185]
 See U.S. Dept. of Justice  v. Reporters Committee for Freedom of the Press,
489 U.S. at 772-73 (citing U.S. Dept. of the Air Force v. Rose, 425 U.S. 352,
372 (1976)).
[186]
 See Id.
[187]
 Id. at 774.
[188]
 Id. at 775.
[189]
 See Id. at 774-75.
[190]
 Id. at 774.
[191]
 Id.
[192]
 See Id. at 764, 770-71.
[193]
 See Id. at 764.
[194]
 See Id. at 771.
 
[195]  Id.
 
[196]  Id. at 764.
[197]
 See Id. at 780-81 (Blackmun, J., concurring).
[198]
 Id.
[199]
 See Id.
[200]
 See Id.
[201]
 Id.
[202]
 See Id. at 773-75.
[203]
 See 425 U.S. 352 (1976).
[204]
 Id. at 361 (citing EPA v. Mink, 410 U.S. 73, 80 (1973)).
[205]
 See Id.
[206]
 See Id.
[207]
 U.S. Dept. of Justice  v. Reporters Committee for Freedom of the Press, 489
U.S. at 773.
[208]
 See Id.
[209]
 Id. at 773. The reference to citizens having a right to know "what their
government is up to," comes from an Oct. 5, 1972, article written by historian
Henry Steele Commager in The New York Review of Books. A passage from Commager's
article was quoted by Justice William O. Douglas in his dissent to EPA v. Mink,
410 U.S. 73, 80 (1973). The entire passage bears repeating because the Reporters
Committee opinion quotes the phrase several times. Commager wrote: "The
generation that made the nation thought secrecy in government one of the
instruments of Old World tyranny and committed itself to the principle that a
democracy cannot function unless the people are permitted to know what their
government is up to."
[210]
 489 U.S. at 773.
[211]
 See Id. at 774-75.
[212]
 Bibles v. Oregon Natural Desert Assn., 117 S.Ct. 795, 795 (1997)(quoting U.S.
Dept. of Defense v. FLRA, 114 S.Ct. 1006, 1013 (1994), and U.S. Dept. of Justice
v. Reporters Committee for Freedom of the Press, 489 U.S. at 773). In Oregon
Natural Desert Assn., the Supreme Court held that the Bureau of Land Management
could reject a FOIA request from an Oregon environmental group that sought a
list of names of persons who receive mailings from the BLM on the government's
plans for the future of the Oregon high desert. The Supreme Court also relied on
Reporters Committee as precedent in two earlier FOIA Exemption 6 privacy cases,
U.S. Dept. of Defense v. Federal Labor Relations Authority (FLRA), 114 S. Ct.
1006 (1994)(holding that the release of home addresses of government employees
to union organizers would be a "clearly unwarranted" invasion of privacy); and
U.S. Dept. of State v. Ray, 502 U.S. 164 (1991)(holding that the release of
identifying information about Haitian refugees, who fled to the United States
and were sent back involuntarily to Haiti, could be withheld because disclosure
would constitute a "clearly unwarranted" invasion of privacy).
 
[213]  See Pub. L. 104-231, 110 Stat. 3048, 3049, _ 3 (1996)(codified as amended
in subsection (f) of 5 U.S.C. _ 552)(1996).
 
[214]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20 (1996).
 
[215]  See 489 U.S. 749 (1989).
[216]
 See Id. at 773-75.
 
[217]  See Id. at 774.
[218]
 See Id. at 773.
[219]
 See National Library of Medicine homepage (visited July 7, 1998)
<http://www.nlm.nih.gov>. See also Peter Gorner, Health Consumers Get Web Break:
U.S. Allows Free, Open Internet Access to Medical Library, Chicago Tribune, June
29, 1997; Sheryl Gay Stolberg, Now, Prescribing Just What the Patient Ordered,
New York Times, Aug. 10, 1997.
 
[220]  See Id.
[221]
 In an interview with this author, Sheldon Kotzin, chief of the bibliographic
services division of the National Library of Medicine, said the process of
making the MEDLARS family of databases available for free through MEDLINE began
in August of 1997. The process was still under way at the time of the interview,
April 23, 1998, and was several months from completion, he said.
[222]
 See 542 F.2d 1116 (9th Cir. 1976).
[223]
 See 489 U.S. 749 (1989).
 
[224]  See S. Rep. 272, 104th Cong., 2d Sess. 6 (1996).
[225]
 See Id.
 
[226]  See S. 1090, 104th Cong., 2d Sess. (1996).
 
[227]  See S. Rep. 272, 104th Cong., 2d Sess. 26-27.
 
[228]  Id.
[229]
 See Id. at 6.
 
[230]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 14 (1996).
 
[231]  See Pub. L. No. 104-231, 110 Stat. 3048, __ 1-12 (1996)(codified as
amended in various sections of 5 U.S.C. _ 552).
 
[232]  See Id. _ 3 (1996)(codified as amended in subsection (f) of 5 U.S.C. _
552).
 
[233]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20.
 
[234]  See 489 U.S. at 774-75. See, e.g., Sheet Metal Workers International
Assn., Local 9 v. U.S. Air Force, 63 F.3d 994 (10th Cir, 1995); Sheet Metal
Workers International Assn., Local 19 v. Dept. of Veteran Affairs, No.
CIV.A.95-0935, 1995 WL 552876 (E.D. Pa. Sept. 14, 1995); Manna v. U.S. Dept. of
Justice, 51 F.3d 1158 (3d Cir.), cert. denied, 116 S. Ct. 477 (1995); Exner v.
U.S. Dept. of Justice F. Supp. 240 (D.D.C. 1995); Jones v. FBI, 41 F.3d 238 (6th
Cir. 1994); U.S. Dept. of the Navy v. Federal Labor Relations Authority, 975
F.2d 348 (7th Cir. 1992); Hunt v. FBI, 972 F.2d 286 (9th Cir. 1992); Hale v.
U.S. Dept. of Justice v, 973 F.2d 894 (10th Cir. 1992); Hopkins v. U.S. Dept. of
Housing and Urban Development, 929 F.2d 81 (2nd Cir. 1991); and Schwaner v. U.S.
Dept. of the Air Force, 898 F.2d 793 (D.C. Cir. 1990).
 
[235]  See 5 U.S.C. __ 552(b)6 & (b)7(C).
[236]
 Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public
Information Law, 45 Duke L.J. 1249, 1273 (1996). Beall cites three cases in
which courts have broadened the applicability of the central purpose holding:
See Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995)(per curiam)(holding that
the Executive Residence staff of the White House is not an "agency" under the
FOIA); Baizer v. U.S. Dept. of the Air Force, 887 F. Supp. 225 (N.D. Cal.
1995)(holding that an electronic copy of the Air Forces' computerized database
of Supreme Court opinions should not be considered an "agency record" under the
FOIA); Vazquez-Gonzalez v. Shalala, No. CIV.94-2100 (SEC), 1995 WL 67659 (D.P.R.
Feb. 13, 1995)(dismissing a suit brought by a physician who sought information
about Medicare billing practices; the court held the suit did not advance the
policy considerations of the FOIA because the requested information concerned
the plaintiff's own commercial interests). See Id. at 1273-80.
[237]
 See Cate, supra note 142, at 45.
 
[238]  Id.
 
[239]  See H.R. Rep. No. 795, 104th Cong. 2nd Sess. 20 (1996).
 
[240]  U.S. Dept. of Justice  v. Reporters Committee for Freedom of the Press,
489 U.S. at 773.
[241]
 See 410 U.S. 73 (1973). See also discussion of Mink in Part I of the
accompanying text.
 
[242]  See 422 U.S. 255 (1975). See also discussion of Robertson in Part I of
the accompanying text.
 
[243]  See S. Rep. No. 813, 89th Cong., 1st Sess. 2-3 (1965). Actually, Sen.
Long did not get Madison's quote quite right. The quotation in the accompanying
text is correct. Letter from James Madison to William T. Berry (Aug. 4, 1822),
in 9 The Writings of James Madison, at 103 (Gaillard A. Hunt ed., 1910). Sen.
Long juxtaposed the first and last sentences of the quotation, and that is how
Madison's remarks are printed in the 1965 Senate report. FOIA legislators and
commentaries on the Act often cite Madison's famous quotation to support the
view that public access to government information has historic roots traced to
the Framers.  The philosophy Madison expressed in the quotation certainly can be
interpreted in this regard, but it is important to note that the remark actually
was made in the context of expanding public education. See Paul H. Gates, Jr.
and Bill F. Chamberlin, Madison Misinterpreted: Historical Presentism Skews
Scholarship, 12 American Journalism 38 (1996).