Complaining that antitrust lawyers may be misusing - perhaps abusing - the Freedom of Information Act, the nation's top antitrust official has called for a re-examination of it to see whether it isn't "being used for end not intended by Congress."
Although the Freedom of Information Act was designed primarily to give public interest groups, scholars and the press access to government records and information believed valuable to the public in understanding the operations of government, Donald I. Baker, Assistant Attorney General for Antitrust, told the New York State Bar Association that fewer than a dozen FOIA requests from those groups have come to the Antitrust Division in the past 18 months.
But these has been a "deluge" of requests from antitrust lawyers. "Time and again, defense counsel in government antitrust suits have attempted to use the FOIA to gain access to documents and information in our files that they could not reach using the discovery methods provided for by the Federal Rules of Civil or Criminal Procedure," Baker complained.
He said it appeared that anyone who is considering filing an antitrust suit first comes to the Justice Department with a FOIA request "hoping to comb our files for anything, we know about the contemplated defendant.
"Needless to say, the cost of playing public librarian for this country's would-be antitrust plaintiffs is significant," he said. The division spent nearly $100,000 last year complying with requests, most of which came from other antitrust lawyers. In addition, the fees charged for searching for the documents and copying them go to the Treasury, not back to the division, he noted.
More important than the money is the affect on the division's "internal processes," Baker contended. "We need fact memoranda that candidly evaluate the evidence. We need legal memoranda that are equally candid on close cases" he said.
The way the FOIA is being used threatens the division's investigative effors also, he argued. "Firms that are preparing to assist us voluntarily may suddenly refuse when they realize that the documents and information they provide us may someday be ferreted out by companies with less than friendly motives."