U.S. GOVERNMENT INFORMATION POLICIES AND
PRACTICES— ADMINISTRATION AND OPERATION OF
THE FREEDOM OF INFORMATION ACT
(PART 4)
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
NINETY-SECOND CONGRESS
SECOND SESSION
UAHCH 6, 7. 10, 14, AND 17, 1972
Printed for the use of the Committee ou Governmeot Operations
U.S. GOVERNMENT PRINTING OFFICE
76-253-0 WASHINGTON : 1972
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $1.50
COMMITTEE ON GOVERNMENT OPERATIONS
CHET HOLIFIELD, California, Chairman
JACK BROOKS, Texas FLORENCE P. DWYER, New Jersey
L. H. FOUNTAIN, North Carolina OGDEN R. REID, New York
ROBERT E. JONES, Alabama FRANK HORTON, New York
EDWARD A. GARMATZ, Maryland JOHN N. ERLENBORN, Illinois
JOHN E. MOSS, California JOHN W. WYDLER, New York
DANTE B. FASCELL, Florida CLARENCE J. BROWN, Ohio
HENRY S. REUSS, Wisconsin GUY VANDER JAGT, Michigan
JOHN S. MONAGAN, Connecticut GILBERT GUDE, Maryland
TORBERT H. MACDONALD, Massachusetts PAUL N. McCLOSKEY, Jr., CaUfornia
WILLIAM S. MOORHEAD, Pennsylvania JOHN H. BUCHANAN, Jb., Alabama
CORNELIUS E. GALLAGHER, New Jersey SAM STEIGER, Arizona
WM. J. RANDALL, Missouri GARRY BROWN, Michigan
BENJAMIN S. ROSENTHAL, New York BARRY M. GOLDWATER, Jr., California
JIM WRIGHT, Texas CHARLES THONE, Nebraska
FERNAND J. ST GERMAIN, Rhode Island H. JOHN HEINZ III, Pennsylvania
JOHN C. CULVER, Iowa RICHARD W. MALLARY, Vermont
FLOYD V. HICKS, Washington
GEORGE W. COLLINS, Illinois
DON FUQUA, Florida
JOHN CONYERS, JR., Michigan
BILL ALEXANDER, Arkansas
BELLA S. ABZUG, New York
Herbert Roback, Staff Director
Christine Ray Davis, Staff Administrator
James A. Lanigan, General Counsel
Miles Q. Romney, Associate General Counsel
J. P. Carlson, Minority Counsel
William H. Copenhaver, Minority Professional Staff
Foreign Operations and Government Information Subcommittee
WILLIAM S. MOORHEAD, Pennsylvania, Chairman
JOHN E. MOSS, California OGDEN R. REID, New York
TORBERT H. MACDONALD, Massachusetts FRANK HORTON, New York
JIM WRIGHT, Texas JOHN N. ERLENBORN, Illinois
JOHN CONYERS, Jr., Michigan PAUL N. McCLOSKEY, Jr., California
BILL ALEXANDER, Arkansas
EX OFFICIO
CHET HOLIFIELD, California FLORENCE P. DWYER, New Jersey
William G. Phillips, Staff Director
Norman G. Cornish, Deputy Staff Director
Harold F. Whittington, Staff Consultant
Martha M. Doty, Clerk
Mary E. Blanton, Secretary
(H)
CONTENTS
Page
Part 1 1-275
Part 2 277-778
Part 3 779-1003
Part 4 1005-
Hearings held on —
March 6 1005
March 7 1063
March 10 1173
March 14 ... 1217
March 17 1277
Statement of —
Cramton, Roger C, Chairman, Administrative Conference of the
United States; accompanied by John F. Cushman, Executive
Director 1219
Erickson, Ralph E., Assistant Attorney General, Office of Legal
Counsel, Department of Justice; accompanied b}' Robert Saloschin,
attorney, Office of Legal Counsel 1175
Gottlieb, Bertram, Transportation Institute 1268
Hagerty, James C, former Press Secretary to President Eisenhower.. 1009
Hunter, J. Stewart, former Associate Director of Information for
Public Services, Department of Health, Education, and Welfare 1018
Lewis, Harold R., former Director of Information, Department of
Agriculture 1016
McGhee, Roy, reporter, United Press International, Washington
Bureau 1287
Mondello, Anthony L., General Counsel, U.S. Civil Service Com-
mission 1151
Parson, David, chairman. Committee on Government Information,
Federal Bar Association 1155
Reedy, George, former Press Secretary to President Johnson 1012
Robertson, Reuben B., Ill, attorney. Center for the Study of
Responsive Law 1251
Schuck, Peter H., Esq., Center for the Study of Responsive Law 1260
Seigenthaler, John, editor, Nashville Tennessean 1302
Sinclair, Ward, Washington Bureau, Louisville Courier- Journal 1279
Steele, James B., urban affairs writer, Philadelphia Inquirer 1294
Straus, R. Peter, publisher, Straus Editor's Report; accompanied by
Christopher Sherman 1284
Sylvester, Arthur, former Assistant Secretary for Public Affairs,
Department of Defense 1014
Wellford, Harrison, Center for the Study of Responsive Law 1253
Wolf, Richard, on behalf of Georgetown University Law Center's
Institute for Public Interest Representation 1064
Wozencraft, Frank M., attorney, Houston, Tex 1068
Letters, statements, etc., submitted for the record by —
Cramton, Roger C, Chairman, Administrative Conference of the
United States:
Statement with appendix A attachment 1225-1231
Table of agency fees for the production of documents 1245
Erickson, Ralph E., Assistant Attorney General, Office of Legal
Counsel, Department of Justice:
Department of Justice answers to subcommittee questions.. 1201-1205
Information furnished by the Civil Division of the Department
of Justice on the extent to which the Division's attorneys
assist the U.S. attorneys in conducting freedom of information
litigation 1197
(III)
IV
Letters, statements, etc., submitted for the record by — Continued
Erickson, Ralph E. — Continued
List of agencies which have had consultations with the Depart-
ment of Justice Freedom of Information Committee, Decern- Page
berS, 1969 through March 1, 1972, table 1181
Statement 1208-1215
Horton, Hon. Frank, a Representative in Congress from the State of
New York: Article from the January- February 1972 issue of Case
and Comment entitled "The Public's Right To Know" 1031-1044
McGhee, Roy, United Press International, Washington Bureau:
Additional material and correspondence relative to the hearings. 1291-1293
Moorhead, Hon. William S., a Representative in Congress from the
State of Pennsylvania, and chairman, Foreign Operations and Gov-
ernment Information Subcommittee:
Accompanying statements of Chairman Moorhead and studies
from the Library of Congress relative to the hearings 1332-1345
Letter, dated March 6, 1972, from George P. Shultz, Director,
Office of Management and Budget, re request for a witness who
is familiar with the work of an interagency committee, etc. 1231-1232
Recommendation 24: Principles and Guidelines for Implementa-
tion of the Freedom of Information Act 1232-1235
Press releases relative to the hearings 1021-1024
Parson, David, chairman, Committee on Government Information,
Federal Bar Association: Proposals with regard to amendments to
the Freedom of Information Act 1156
Schuck, Peter H., Esq., Center for the Study of Responsive Law,
statement 1 265-1268
Seigenthaler, John, editor, Nashville Tennessean:
Copy of an FHA appraisal report 1308
Illustrations showing repair work of certain homes 1302-1305
Sinclair, Ward, Washington Bureau, Louisville Courier-Journal:
Letter, with enclosure, dated September 10, 1971, from Mitchell
Melich, Solicitor, U.S. Department of the Interior, re Treleaven
report 1313-1314
Steele, James B., urban affairs writer, Philadelphia Inquirer: Sundry
correspondence between the Philadelphia Inquirer and HUD,
re FHA mortgage programs, etc 1298-1302
Straus, R. Peter, publisher, Straus Editor's Report:
Exchange of letters, dated June 18 and July 10, 1971, between
Christopher Sherman, assistant editor, Straus Editor's Report,
and John M. Torbet, Executive Director, Federal Communica-
tions Commission, re permission to examine a list of 10,900
names 1286-1287
Straus Editor's Report — The exclusive weekly letter for news
media executives — November 29, 1969 1319-1321
Wellford, Harrison, Center for the Study of Responsive Law, state-
ment before Senate Subcommittee on Separation of Powers, August
4, 1971 1255-1260
Wozencraft, Frank M., attorney, Houston, Tex.:
Article from the March 1968 issue of Administrative Law Review
entitled "The Freedom of Information Act — The First 36
Days" 1134-1150
Department of Justice publication of June 1967 entitled "At-
torney General's Memorandum on the Public Information
Section of the Administrative Procedure Act' ' 1 079-1 131
Memorandum, dated December 8, 1969, to General Counsels of
all Federal departments and agencies, from U.S. Department
of Justice, re coordination of certain administrative matters
under the Freedom of Information Act, 5 U.S.C. 552 1132-1133
U.S. GOVERNMENT INFORMATION POLICIES AND PRAC-
TICES—ADMINISTRATION AND OPERATION OF THE
FREEDOM OF INFORMATION ACT
(Part 4)
MONDAY, MARCH 6, 1972
House of Representatives,
Foreign Operations and
Government Information Subcommittee
OF THE Committee on Government Operations,
Washington^ D.C.
The subcommittee met, pursuant to notice, at 10 : 05 a.m., in room
2154, Rayburn House Office Building, Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present : Representatives William S. Moorhead, Jim Wright, Ogden
R. Reid, and Frank Horton.
Staff members present : William G. Phillips, staff director ; Norman
G. Cornish, deputy staff director; and William H. Cophenhaver,
minority professional staff, Committee on Government Operations.
Mr. Moorhead. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
Today's discussion with a group of experts in government informa-
tion continues a series of hearings on one of the most important prob-
lems facing our democratic society.
Call it "government secrecy," "news management," the "credibility
gap," or "truth in government," it is a problem which has been with
us since our form of government was established. It is a political
problem, but it is not a partisan problem.
All administrations, w^hether Whig or Federalist, Republican or
Democrat, have faced the problem; no administration, no President,
no Congress has solved it. In fact, the problem of informing all of the
people who are an integral part of the democratic process has become
more and more important in recent years — has grown to alarming
proportions, particularly since World War II.
We started our current series of hearings last summer in connection
with the publication of the so-called Pentagon papers. These hearings
also dealt with the need to maintain a free press as guaranteed by
the first amendment to our Constitution, prerogatives of the legisla-
tive branch in obtaining information from the executive in order to
fulfill our constitutional responsibilities, and the increasing dangers
of erosion of public confidence in government because of restrictions
by the executive on the free flow of information.
(1005)
1006
We will continue the series of hearino:s on the Federal Government's
information plans and policies with a study of how well one attempt
to insure the people's ri^ht to know is working. We will take a careful
look at the operation of the Federal Government's first Freedom of
Information Act — an act which became section 552 of title 5 of the
United States Code on July 4, 1967. The Freedom of Information Act
was based on 11 yeai-s of studies and investigations by this subcom-
mittee. It was not designed to solve all Government information prob-
lems, but it was passed by the Congress to help correct a growing at-
titude that Government business is none of the public's business.
We plan to find out whether the executive branch of the Federal
Government is following the letter — and the spirit — of the Freedom
of Information Act. And we plan to suggest legislative solutions to
any shortcomings we uncover.
The study of the overall operations of the Freedom of Information
Act will be followed by hearings on one special section of the act
which permits executive agencies to hide Government information in
the name of national defense or foreign policy — the system for classi-
fving Government documents as "Top Secret," "Secret," or "Con-
fidential."
We will then look into the particular problems — and the particular
needs — the Congress has in gathering from the executive branch in-
formation which the legislative branch must have to conduct its part
of the business of Government.
We will look at the special information problems posed by the hun-
dreds of Government advisory groups who hold thousands of official
meetings, often behind closed doors with no public or congressional
knowledge of decisions made or deals discussed.
We will also hold hearings on a number of bills on information
matters which have been referred to this subcommittee.
Today, we open this current series of hearings with a unique oppor-
tunity. This is the firet chance the public — ^and the Congress — has had
to gain a historical overview of the public information practices of
those who govern our democratic society.
We hope to lift the lid, however slightly, of the White House and
the executive departments to find out how the Government information
system works — and how it should work. Again, I emphasize that this
is not a partisan effort. We seek a historical view, not a political view.
Thus, we have asked top information experts from past administra-
tions— backed up by men who served for many yeare in civil service
information jobs — ^to share their knowledge and their ideas with us.
We had hoped that Mr. Herbert Klein, the first Government-wide
Direx?tor of Communications, would join the other experts in this dis-
cussion. He declined to testify on the ground that membere of the
President's immediate staff do not appear before congressional com-
mittees.
Nevertheless, I look forward with pleasure to the insights which the
public and tlie Congress will gain from today's discussion of Govern-
ment information problems in our democratic society. We are honored
to have with us Mr. James C. Hagerty, former Press Secretary to
President Eisenhower; Mr. George Reedy, former Press Secretary
to President Johnson ; Mr. Harold R. Lewis, former Director of In-
formation, Department of Agriculture ; Mr. Arthur Sylvester, former
1007
Assistant Secretary for Public Affairs, Department of Defense ; and
Mr. J. Stewart Hunter, former Associate Director of Information for
Public Services, Department of Health, Education, and Welfare.
Mr. Pierre Salinger, former Press Secretary to President Kennedy,
was scheduled to testify, but he is involved in a certain campaign in
New Hampshire and could not be with us today.
Mr.Keid?
Mr. Reid. Thank you, Mr. Chairman. I, too, would like to welcome
the distinguished panel we have here today and to say how important I
believe their testimony is to the freedom of information that is essen-
tial to our Government. James Madison said 200 years ago, "a popular
government without popular information or the means of acquiring it,
is but a prolog to a farce or a tragedy or perhaps both."
Wlien we began the first phase of these hearings last June, the time
of the "Pentagon Papers" case, I said we were facing a crisis of treason
in government. That crisis is still with us today, and, hopefully, we can
deal not only with the question of strengthening the Freedom of In-
formation Act, the procedures by which material is classified or de-
classified in the executive, and the need for congressional oversight
thereon, but equally, I hope that we will take a look at the broad ques-
tion of executive privilege, because in recent years there has been an
accrual of power by the Presidency at the expense of the Congress,
with the Congress increasingly unable to get certain kinds of informa-
tion central to its legislative and constitutional responsibilities. And
here I would make a distinction between staff papers and tactical
decisions of the Executive, distinguish that from the broad question of
providing information that is absolutely central to policy and judg-
ment the Congress must make in appropriating funding.
In any event, to the extent that we can strengthen first amendment
rights, the whole question of freedom of information and accountabil-
ity of the Executive to the American people, I think, you, gentlemen,
will render a service, and I am particularly, in a very strongly bi-
partisan sense, glad to welcome you here this morning.
Mr. MooRHEAD. Thank you, Mr. Reid.
Mr. Wright?
Mr. Wright. Thank you very much, Mr. Chairman. It is a pleasure,
of course, to welcome such a distinguished group of witnesses. I am
particularly happy to be on hand to welcome my own personal friend,
George Reedy, and I will look forward to the testimony.
Of course, there is not any subject more central to the question of
democracy than that of freedom of information, and I suppose that
this has been true since the day that Thomas Jefferson waged his
unremitting battle to open up the corridors of government to the
trust of the public. It has always been central to American democracy.
And I have discovered and observed that we in the House have had
no terrible, traumatic troubles since we opened up our vote count on
recorded votes. The obvious fact is that the public has the right to
know how the Members of the House voted. I think it has some salu-
tary' effects and, indeed, it has increased the Member voting by some-
thing like 80 percent, and, in addition to that, it has increased the
niunber of votes taken on individual amendments on the floor of the
House.
1008
As we move forward bit by bit toward a more open country, a more
enlightened electorate, I think we can fairly trust people, and I am
pleased that these hearings are being conducted, Mr. Chairman. I
sure look f or^vard to the testimony we will be receiving.
Mr. Moorhead. Thank you, Mr. Wright.
Mr. Horton?
Mr. Horton. Mr. Chairman, and members of the committee, I, too,
want to welcome this distinguished panel at the opening of these
vei-y important hearings which are going to continue for some 25 to
30 days on a subject which I think is one of the most important sub-
jects that we could have before us, because it touches the very founda-
tions of our society.
The basis of our form of government rests on an informed citizenry,
participating in decisionmaking. People — and especially their elected
representatives — must have available as much information as possible
in order to make wise decisions. Without an ability to choose, no one
can be secure in his home or nation; no one can be assured that his
resources are being spent wisely ; no one can have any confidence that
the world of tomorrow will present a compatible environment or even
be around.
Periodically, Congress lias attempted to confront the paper wall,
which shields off the free flow of information, by exposing improper
actions, threatening reprisal, or enacting legislation. Since the begin-
ning of our Eepublic, it has wrestled with Presidents over the subject
of executive privilege. Under the past three Presidents letters of assur-
ance have been exacted by our subcommittee, promising that informa-
tion would be withheld from Congress only under the strictest limita-
tions. Yet, the Congress continues to be frustrated in its efforts to
obtain needed information, as subsequent hearings will disclose.
In 1966, after a decade of supporting hearings, the Government
Operations Committee enacted the Freedom of Information Act
designed to restrict the Executive's right to withhold information
from the public. Yet, as these hearings will show, the law has fre-
quently been honored more in the breach.
Increasingly, in recent years, as our Nation has become mixed in
foreign wars and drained economically, Congress and the public have
attempted to break through the security classifiwition barriers. Yet,
as hearings before this subcommittee revealed last fall, at least two-
thirds of the 20 million documents now held under security classifi-
cation could be made public without endangering national security.
Yet, in spite of this known fact, information dating back to the past
century remains classified along with current newspaper articles and
information being circulated widely through commercial and for-
eign sources. It is incredible.
While GoAernment is restraining the dissemination of information
essential to the Congress' ability to legislate and to the public's right
to be infoi-med, it is engaged in the gathering and dissemination of
information which invades personal privacy and undermines the
social fabric. Wiretapjiing and eavesdropping, army spying, and the
creation of computerized data banks are among those activities which
have contributed to these conditions. Especially worrisome in this
category is an activity of Government which I recently uncovered,
namely, the sale to commercial firms, political candidates, and others
1009
of computerized mailing lists of names of citizens compiled by Govern-
ment agencies from those legally required to submit information to
or otherwise transact business with such agencies. Upon hearmg of
this, I introduced H.R. 8903 which now has over 65 cosponsors and
which is scheduled for consideration in a later phase of these hearings.
Mr. Chairman, the time has come for Congress to face the issue
squarely and resolutely. The information which we develop m these
hearings will enable us to overcome the wall of secrecy and the in-
vasion of privacy which now pervades our society.
It is readily apparent that a balance must be provided between the
people's right to know, the need for government to maintain certain
confidences, and the individual's right to be secure in his person. There
is also the need for the communication media to report responsibly. As
these hearings progress, I hope we maintain this balance in the ex-
ploration of possible solutions. In so doing, however, I believe it es-
sential that we keep before us the clear mandates of the Constitution
which command the protection of individual rights of privacy and
which places upon the Congress the responsibility to make all laws
necessary and proper for the proper conduct of public affairs.
Thank you, Mr. Chairman.
Mr. MooRHEAD. Thank you, Mr. Horton. And as you have said, we
will have hearings on the subject of your very important bill.
Gentlemen, as is our custom as an investigatory committee, we ask
the witnesses to rise and be sworn.
Do you solemnly swear that the testimony you are about to give this
subcommittee, will be the truth, the whole truth, and nothing but the
truth, so help you God '?
Mr. Hagerty. I do.
Mr. Reedy. I do.
Mr. Lewis. I do.
Mr. Sylvester. I do.
Mr. Hunter. I do. . .
Mr. MooRHEAD. Because the Congress is very much interested m
seniority, I suppose that we should start with the witness that has the
greatest seniority. We will first hear from you, Mr. Hagerty.
STATEMENT OF JAMES C. HAGERTY, FORMER PRESS SECRETARY
TO PRESIDENT EISENHOWER
Mr. Hagerty. Mr. Chairman, and members of the committee, I am
vice president of American Broadcasting Co., Inc., but as I understand
it, Mr. Chairman, your invitation to participate in this hearing was
related more to the years when I had the privilege of serving as press
Secretary to President Eisenhower during his two terms in that office.
Consequently, I shall speak from a government service point of view
and, bearing in mind your request to limit opening remarks, I shall
make some general observations and a few suggestions concerning the
complicated and controversial problem of the dissemination of govern-
ment information to the public. Then, of course, I shall be happy to
try to answer any questions you may have on the subject.
At the outset, I think it is pertinent to the discussion to point out that
the proper dissemination of government information to the news media
1010
and to the public is by no means a new problem. It has been a fairly
constant issue, in varyin<z: decrees, between government, the news
media and the citizens of our Nation almost since our founding days.
From time to time in our country's history it has resulted in public
distrust of the credibility of government. It has also raised questions
as to the responsibility and integrity of a free press. It has never been
definitively solved and I am not sure it ever can be.
But hearings like this, I do believe, can be helpful and infonnative.
Personally, I have always believed that government information pro-
cedures, like government itself, should be studied and reviewed peri-
odically so that, if necessaiy, changes and modifications in policies
and practices can be made to try to meet changing conditions and
times. It camiot remain static, for the simple reason that govenmient
and public attitudes do not remain static.
I think it really comes down in principle and in practice to a matter
of understanding and balance between the Government and its citi-
zens. Admittedly that understanding and balance is difficult of constant
attainment and sometimes it does get out of kilter, either uninten-
tionally or deliberately. Yet, as the 1966 report from the House Com-
mittee on Government Operations recommending passage of the Free-
dom of Information Act declared at that time, the goal should be
the achievement of "a workable balance between the right of the
people to know and the need of the Government to keep information
in confidence to the extent necessary without permitting indiscrimi-
nate secrecy."
And, the report added, "the right of the individual to be able to
find out how his Government is operating can be just as impoi-tant to
him as his right to privacy and his right to confide in his Government."
Now, I don't think that any reasonable private citizen nor any indi-
vidual in government service can deny such a goal as a necessary
objective. But its practical achievement, it seems to me, lies in the
key words "workable balance" and "without indiscriminate secrecy."
For no one can also fail to realize — as indeed the Freedom of Infor-
mation Act does in its nine exemptions — tliat Government must con-
duct part of its operations privately if it is successfully to fonnulate
its policies and reach its final decision in both foreign and domestic
atfaii-s. But once those final decisions are made, again with the excep-
tion of the exemptions voted in the act, they should become a matter
of public record and knowledge without question, without bureau-
cratic delay or subterfuge.
As far as the implementation of the act since its passage in 1967
is concerned, I am not in a position to cite chapter and verse of
instances where legitimate information required mider the law has
been hard to get, was unavailable or was refused. I am sure there are
many instances of that and I am sure that othei-s who will appear
before these hearings will be more infonned on such developments.
But, as one who has worked in government in a rather sensitive
position, I would like to conclude these brief remarks with a few
pei-sonal observations on one aspect of government activities that may
lie close to the heait of the problem we are discussing. It is tlie classi-
fication system used throughout the Government. I, personally, have
always had certain reservations about some of the strange ways it
functions.
1011
While such a classification system is essential to the operation of
government, particularly in the fields of national security and rela-
tionships with other governments as well as in the development of
internal policies and programs, I firmly believe it could and should
be improved and modernized. Indeed, as I understand it, the present
administration, on orders from the President, is presently reviewmg
the system and will no doubt make some changes in procedure. They
are long overdue, believe me.
For the system as I knew it — and I have no reason to believe it has
changed to any degree since I left the Government — was an anti-
quated one, dating from World War I and added to during World
War II and since then. It was often subjected to abuse and used with
widespread regularity as a matter of rote, or imagined protection
from error or even as a means of impressing other agencies, depart-
ments, or individuals in government of a singular point of view of
a particular agency or department. All too often, classification also
seemed to depend either on the whim or the play-it-safe attitude of
government personnel who were merely following the old Washington
adage: "If in doubt, classify it." And so it went in upward progres-
sion, from one stamp-happy Government office to another, from "For
Official Use Only" to "ConfTdential" to "Secret" to "Top Secret" to
"For Eyes Only."
As a matter of fact, more than a few times when I was Press Secre-
tary I would receive reports or papers from Government sources that I
was scheduled to release publicly at my next press conference that were
literally covered with classified stamps, including the highest ratings.
I would then actually have to take these papers to the President and
have him declassify them on the spot. And, believe me, the only thing
that was "Top Secret" about that was what he would say when he was
talking to me and had to go through such nonsense.
Now, I am not urging that the classification system be aborted. Far
from it. It is essential to the operation of any government. But I do
believe that the system should be thoroughly reviewed and studied, as
I understand it is at present. Based on my own experience, I would
like to make the following recommendations to this committee con-
cerning the system :
1. 1 would hope each department or agency of the Government should
have a classification clearinghouse which would have the sole authority
to determine whether any of its papers or actions should be classified.
Such an organization should be staffed by rather high-level Govern-
ment personnel. This would tend, at least, to eliminate the haphazard
classification action by Government personnel who happen to have a
set of classification stamps handy. It would certainly be helpful also
if such stamps were not available to personnel under a certain grade
level — maybe at least GS-14 or GS-15 to start with.
2. It might be worth considering whether the Freedom of Informa-
tion Act should be amended to provide for a required periodic review
of all classified material by either an independent and quasi-judicial
board or commission, or by a special staff of the National Security
Council, or by a similar board or staff within each department and
agency reporting directly to the Cabinet officer or agency head.
1012
Such a board or staff would be authorized to determine periodically
whether existing docimients, or portions of them that do not endanger
national security, should be removed from classified listings. It would
be a gigantic and awesome job at first, and it would take a long time
to go through the present classified documents. For example, as I
understand it from GSA. at the present time, there are some 150 million
pages of papers from World War II that are classified, 20 million of
which are classified by joint action of the United States and the United
Kingdom. For Korea, tliere are about 75 million pages of docmnents
classified. That is a lot of nonsense. I just do not understand why you
cannot start a review of these things and see what can be made public,
and then bring them up to date. It is a tough job, but if it could be
started, I think you would have the result of eliminating some of the
present problems relating to Government infonnation. It would be a
start.
Mr. Chairman and members of the committee, that concludes my
prepared remarks and, as I said, I would be happy later to attempt
to answer any questions you may have on this subject. Thank you
again for your kind invitation to participate in these hearings today.
Mr. MooRHEAD. Thank you, Mr. Hagerty, for your excellent state-
ment. We will hear tlie statements of all of the witnesses, and then the
subcommittee will propound to all of the witnesses.
AVe would like next to hear from Mr. George Reedy.
Mr. Reedy?
STATEMENT OF GEORGE REEDY, FORMER PRESS SECRETARY TO
PRESIDENT JOHNSON
Mr. Reedy. Thank you, Mr. Chairman. My name is George Reedy
and I am a fellow of the Woodrow Wilson International Center for
Scholars, and dean designate of the College of Journalism, Marquette
University.
I merely wish to make a few general remarks at the outset and then,
of coui-se, be available for the questions that come later.
I understand you gentlemen have some 30 days of hearings ahead
of you, and I have no doubt tliat during those 30 days you are going to
be able to construct a genuine chamber of horrors. But, I think there
are a few general principles governing this whole question of access to
information, and of freedom of information, that are very important
to keep in mind.
First of all, there are really two problems involved here. One is the
problem of access to information : the other is the problem of knowing
that the information is there. I think that the latter has become one of
the principal problems of government. Mr. Hagerty has just cited the
example of 150 million pieces of classified paper that are still hanging
over from World War II. Now, the thought that that leaves in my mind
is if there are 150 million classified pieces of paper, how many pieces
of paper are there hanging over from World War II and all of the
years since then which have not been classified, but for all practical
purposes, might as well be simply because nobody knows they exist,
and nobody knows how to get at them ?
This has become a considerably greater problem in the last few
years, because the character of the White House staff has changed and
1013
in the changing of the character of that staff, what you now have is a
situation where many pieces of paper can be brought into the White
House staff that formerly remained in the executive agencies.
For the executive agencies the newspaper corps over a period of
many decades has developed techniques which sooner or later will un-
earth the kind of information that is necessary for them to proceed
about their profession. My friend, Arthur Sylvester, has had a great
deal of experience with these techniques and they are quite effective.
But, with the White House staff you have a somewhat different sit-
uation. At one time, the White House staff was a relatively small group
of people. They consisted of personal advisers to the President, and
were covered by executive privilege which was exercised, in my judg-
ment, in an extremely legitimate form. I do not think that you should
be able to pry loose from a President personal matters he does not want
to have prieci loose. But, even if you should be authorized to do it, there
is simply no way of getting at it. I do not care what law you write, or
what you put through the Congress, or how many safeguards you set
up, the President heads another branch of the Government, and to
really try to pry loose from the President his thoughts, and the per-
sonal advice that comes to him, I think, would come close to precipitat-
ing a congressional crisis. But with the proliferation of Wliite House
staff members we are at a point where we are getting a shift of oper-
ating agencies into the White House itself.
I do not know what the size of the White House staff is today, and
I doubt if it would be possible to find out without appointing a very
large commission to go through the place, and make a head count.
But I do know that in some testimony before the Senate Foreign
Relations Committee, it has been estimated that the current National
Security Council staff is more than three times the size of the Secu-
rity Council staff that was there when I was in the White House, and
I thought that was too big. I know that the press staff, if you add to-
gether both Mr. Klein and Mr. Ziegler, is at least three times the size
of the staff that I had, and while I had plenty of problems, very great
problems, they were never really staff problems. There is a rather
good rule in the White House which is if any one part of the White
House increases by a certain amount, the rest are going to rise to it.
What this means, is that you are beginning to get a tremendous
amount of the actual operation of the Government centered in the
White House itself where it is covered by executive privilege.
I think from the standpoint of freedom of information, or rather
access to information— freedom of information is something else-
one of the principal problems that has to be faced is the fact that new
agencies are being created in the White House, agencies where m-
formation is gathered, collected, and used in a manner that formerly
characterized agencies like the Defense Department, State Depart-
ment, Labor Department, et cetera. These agencies have a certain vul-
nerability to the press, which I think is a highly healthy vulnerability.
Somewhere along the line, we have to take a very careful look at this
fundamental problem of the new forms of organizations that are aris-
ing, of the new White House staffs that are really no longer personal
advisers to the President and who, from a realistic standpoint, should
not be considered in that category, but who are housed within the
1014
Wliite House confines and therefore are fairly invulnerable to the
press.
I would like to make one other general statement and, that is, that
I think freedom of the press and access to information is from a
philosophical standpoint just about where it has always been. You
have freedom of the press because the press is wiriin<:: to fight for
it and because usually in fighting for freedom of the press, they have
been able to pick up some allies. You have access to information be-
cause the press has always been capable of probing around for areas
of vulnerability. We have had a free press for a couple of hundred
years now, and over that pei'iod of time newsmen have learned many
techniques. As long as you do not set off one part of the Government,
which is relatively invulnerable, the press one way or another will
succeed in prying loose the information that the public needs.
I think that you gentlemen performed a very valuable service when
you passed the Freedom of Information Act. I am not quite certain
that you are going to get a large number of cases under it, or that you
are going to get a lot of information out of it. But frequently the
value of legislation consists in the fact that it exists and that every
government official knows that the press has an ultimate weapon
against him if he becomes a little bit too tight, too tough in with-
holding information. This means he will be considerably more candid.
But, you would still have to get back to the other ([uestion of what
good is the weapon, if information can be placed into areas that can-
not lie reached by the normal processes. I am not a lawyer and I do
not come here with specific recommendations because I think this is
a legal question. But, I believe if I were in your position, gentlemen,
this is the principal thing I would look at. 'What can be done about
these huge, sprawling bureaucracies, these new agencies that are being
set up within the White House itself ?
Thank you, gentlemen.
Mr. MooRHEAD. Thank you very much, Mr. Reedy, for that extremely
helpful statement.
We would like now to hear from Mr. Arthur Sylvester, a former
Assistant Secretary for Public Affairs, Department of Defense. Mr.
Sylvester ?
STATEMENT OF ARTHUR SYLVESTER, FORMER ASSISTANT SECRE-
TARY FOR PUBLIC AFFAIRS, DEPARTMENT OF DEFENSE
Mr. Sylvester. Tliank you, Mr. Chairman. I do not have a prepared
statement. I come here as a civilian. It is the first time in a good num-
ber of years that I liave appeared before a congressional hearing as a
civilian instead of a government official. It is a pleasant feeling to
enjoy the freedom of a civilian again.
I come to you after 37 years in the news business, 15 on the execu-
tive side, and 6 years in the Defense Department with responsibility
for its many public information programs.
I would make one or two observations before opening myself up to
any questions you may have. I assume that all of us start Avith the idea
that a govenimeiit information program must be factual and truthful
throughout.
1015
However, if I say that thesis is relative at times, it is because when
the Government speaks it does not always speak only to its own people.
It speaks to several audiences. It speaks to its own people, it speaks
to its friends, it speaks to the neutrals, and it speaks to its enemies. Was
the administration truthful or not truthful when spokesmen stated that
Mr. Henry Kissincrer, the President's adviser on international security
atfairs had suffered a stomach upset while on a Far Eastern trip while
actually he had stopped off to China to make arrangements for Mr.
Nixon's visit there? The explanation was not factually correct but I
think it was justified in view of what was developing. Moreover, the
President was going to report the fact to the people when something
very important was finally arranged.
I think of the situation at the turn of the 18th century in our country.
There were ever so many religious sects and they all had their wonder-
ful preachers; they all had camp meetings in the wilderness, in the
forests of the then west, which would be western Kentucky. Among
them were two groups, the truthful Baptists and the lying Baptists.
Now, the truthful Baptists tell the story of a minister who had five
children. The Indians captured him and four of the children. The fifth
was hidden nearby. The Indians demanded of him whether the four
constituted his whole family. And he looked them in the eye and said,
yes, they did. The truthful Baptists held he had no right to spare
the fifth child and they consigned him to hell fire and damnation. But
the lying Baptists, of whom I am one, believed that he did exactly
right, and if necessaiy, should do it again.
It is with that proviso, I think one must judge government infor-
mation. We should also remember that all men put their best foot
forward. We all justify ourselves, and when men become government
officials, I do not think that changes them.
I would like to question a phrase which I saw only once in the re-
port. Mostly the report referred to and talked about freedom of access
to information, which I think is the basic thing, not the so-called
peoples' right to know. This phrase, if you look at it, is meaningless.
There is no expression of the peoples' right to know in the Constitution,
and there is no provision for the people to exercise it. The press has
used it to identify themselves as the source of the peoples' right to
know. But ask yourself, what happens if there is a strike and the
strike closes down the papers in a city for 2 or 3 months? ^^Hiere did
my right to know go? The danger, I think, is that people will get the
idea that they have a right to know and that this right must be exer-
cised through the media. In time, your successors will be passing a law
which will set up a national commission of some sort to enforce that
right to know by stepping in, by directing papers.
The first amendment protects the right to publish, but it also pro-
tects the right not to publish. I, as a newspaper man, do not control
your mind only by what I tell you. I do it by what I do not tell you.
This is a very valuable right for all media, which I think they are
jeopardizing with their emphasis on the peoples' right to know. Free-
dom of access to government information for everybody, as your
report states, is the goal.
I would like to make two suggestions. One is a dangerous one and
I probably should make it just as I am leaving, so I will make it
1016
second. The first one is tliat as you go along you consider the feasibility
of requiring each agency to identify a single person as responsible for
the release of information, someone on whom you can put your finger
for the responsibility of getting the news out. I think this will tend
to reduce buckpassing. At the same time, I think you should give
considerations to the \)evi\ of the leak of information that is properly
classified. .V government cannot long endure under those conditions.
Finally, and I say this after very good relations over 6 years with
this committee, I do think that the congressional committees can set
an example themselves. You can increase access to information by
opening up some of your meetings and by making available how you
vote. After all, you are doing the Government's and the peoples' busi-
ness, and it seems to me that the people have a right to access to the
legislative branch, as well as to the others.
Thank you, Mr. Chairman.
IVIr. MooRHEAD. Thank you, Mr. Sylvester, and the welcome mat is
still out for you, despite those remarks. I expect they will be repeated
by future witnesses.
We would like now to hear from ISIr. Harold E. Lewis, former
Director of Information, of the Department of Agriculture.
Mr. Lewis?
STATEMENT OF HAROLD R. LEWIS, FORMER DIRECTOR OF
INFORMATION, DEPARTMENT OF AGRICULTURE
IVIr. Lewis. JNIr. Chairman, members of the committee, I left the
Government a little less than a year ago after nearly 35 years in the
information business, and my comments are being given as a private
citizen. But they are based on considerable experience with Govern-
ment freedom-of-information matters, and I hope that they will be
of some practical value to the committee.
Being out of the Government gives one a new perspective of the
news. You are able to observe it more critically, and you are im-
pressed— in fact, sometimes appalled — at the diversity of complex
national and international issues that daily confront the U.S. public.
As a professional separated for the first time from official sources,
you begin to wonder how the layman is able to sift out what is per-
sonally most meaningful to him, and how good an understanding
he can have of go\ernmental proposals and actions.
So, from the standpoint of making information freely available,
the freedom of information law, I felt, was a real milestone in the
long history of sensitive relationships centered on the peoples' "right
to know" versus the need Govermnent has felt to withhold informa-
tion for national security or other reasons.
For a government information officer, a strategic part of whose job
was to keep information moving, the new law had distinct advantages
in its policy direction for disclosure, and in the provisions that put the
burden of proof for withholding on the Government and which gave
citizens the right to seek legal action against withholding. Particularly
in the early phases of the law's application, these measures brought
about a more positive attitude toward disclosure among adminis-
trative and other officials, and they strengthened the hands of those
responsible for release of information.
1017
Against these pluses from the law have been difficulties in its ad-
ministration that in my opinion have to a considerable degree frus-
trated its purposes. Such difficulties have stemmed in part from
the law's flexibility, in part from organizational steps taken to imple-
ment, it, and to some extent from attitudes of government officials re-
garding program administration relationships with nongovernment
people.
Fii^t, in retrospect, arrangements for administering the law can
have real influence on how effectively it can be applied. For ex-
ample, in a widespread department such as Agriculture with many
constituent units, an agency-by-agency system for handling FOI re-
quests and appeals without designated strong central review- and
direction can create weaknesses. Without such central authority, it is
difficult to effect speedy and consistent fulfillment of both requests for
information under the law and to appeals resulting from refusals.
The situation can be further complicated when the appeal officials—
those who make the agency decisions — are administrative heads by
virtue of their positions in the organization.
Typically, three types of officials would be involved in considering an
FOI request or appeal — ^an administrator, a legal counselor, and an
information officer. The information officer's role would chiefly be that
of adviser, not decisionmaker. He would have to resort to persuasion
rather than clearcut decision, and persuasion rarely carries the weight
of authority.
As a result, some FOI decisions could be made without adequate re-
gard for implications of withholding action. A central point of review,
with specific authority beyond that usually provided department
staff officers, would obviate many FOI difficulties and provide for
continuous review and education.
Because the freedom of information law is broad and general, it is
of course necessary to work under it on a .guideline basis — rather than
under specific provisions that in a more absolute way would point to
specific courses of action. This naturally leaves a great deal open to in-
terpretation.
The nine exemptions are a case in point, important as they are ni
setting policy directions. Because they are permissive, people who lean
toward withholding can often see them in that light rather t:han as a
means of disclosure. In appraising the exemptions from the informa-
tion point of view — especially during the earliest days of the law's
existence — it actually was necessary to clarify that they made it pos-
sible, not necessary, to withhold information.
Related to disclosure considerations under the exemptions can be
concerns about relationships with business in the conduct of gov-
ernment programs. Government officials can sometimes develop well-
intentioned but proprietary attitudes toward the programs they ad-
minister. This can lead to fears that disclosure of certain types of in-
formation, for example, might result later in the inability to obtain
needed cooperation from business representatives. Again as an ex-
ample, claims that information was received in confidence can create
problems. Confidentiality is to be honored under prescribed condi-
tions. But— except where legal restrictions exist— you can avoid its
being used as a shield against disclosure through procedures that
give advance notice of intended release of submitted information.
76-253 O - 72 - pt. 4-2
1018
Also, it has been my observation that most of the indicated fears
seem to be unfounded, that once the initial reaction to disclosure
is experienced, business between government and industry proceeds
quite normally.
Finally, I would like to make three suggestions for strengthening
FOI activities and goals :
1. That the Congress strongly reiterate the intent and purpose of
the freedom of information law in view of experience under it since
July 4, 1967. This would help rekindle an awareness that the law is
hereto stay and should be administered positively.
2. That the Congress arrange a review of executive mechanisms set
up to administer the law, Avith the goal that those less encum-
bered than others with program responsibility and relationships be
brought more authoritively into the decisionmaking process.
3. That provisions of the law — especially the exemptions — be re-
viewed in light of executive agency experience to ascertain whether
some provisions need clarification or definition by Congress to assure
that they are used effectively to support the law's thrust for disclo-
sure.
Few laws are absolute or self-administering. The sound judgment
and good intent of many people toward the welfare of the public are
needed to make such a measure as the freedom of information law
work effectively. Because acts of our Government touch the lives of
all our people so comprehensively today, people need to be informed
about where their greatest welfare lies. Direction from the Congress
to strengthen administration of the freedom of infonnation law is
key to meeting this great need of the U.S. public.
Thank you, Mr. Chairman.
Mr. MooRiiEAD. Thank you very- much, Mr. Lewis.
We now would like to hear from Mr. J. Stewart Hunter, former
Associate Director of Infonnation for Public Services, Department of
Health, Education, and Welfare.
Mr. Hunter?
STATEMENT OF J. STEWART HUNTER, FORMER ASSOCIATE DIREC-
TOR OF INFORMATION FOR PUBLIC SERVICES, DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE
Mr. HuxTER. Among the witnesses called by this committee in 1966
were the heads of the major Government departments and independent
agencies. Almost to a man. they testified that the proposed Freedom
of Information Act was "i-estrictive", "potentially severe and disrup-
tive." "not in the public interest" or, at mildest "unnecessary."
I doui)t that one department liead could be found today who would
not applaud the law's existence and pledge allegiajic© to it. Tlie com-
parison is not invidious, for to l^e in favor of the "public's right to
iviiow" is to be against sin and in favor of general righteousness.
After 414 yeai-s of operation, what is the real state of affairs? Is
information really and more readily available under the fict?
In a recent Washington Post article, a case was cited of a professor
of history who, while working on his doctorate, applied to the National
Archives for its files on pollution. He was told that he could not use
an}i:hing stamped "Bureau of Investigation."
1019
"The period I was interested in was the first decade of the Twentieth
Century," the professor wrote. "I feel ridiculous even suggesting that
the Nation's security could be threatened by seventy years passed, but
apparently somebody does."
In the spring issue of the Texas Law Review, in an article entitled
"The Games Bureaucrats Play ; Hide and Seek Under the Freedom of
Information Act," Mrs. Joan Katz of Mr. Ealph Nader's Center for
Resix)nsive Law says :
[The Act] has not fulfilled its advocates most modest aspirations * * *. The
ambiguities and deficiencies of [the statute] will be remedied, if at all, only by
the passage of new and improved legislation.
These are harsh judgments. After 4i;4 years as one of the act's prin-
cipal administrators in HEW, my own opinion is that the truth, as it
usually does, lies somewhere in between. I believe that the law's general
effect has been salutary- and has worked in the public interest. I believe,
however, that there are faults in the act and in its administration in the
executive branch which are indeed grievous and need correction. These
hearings are most welcome, for there has been world enough and time
to make a proper assessment of the act.
We can beigin, I believe, with the premise that no government can
exist which is totally open. It is equally true that representative gov-
ernment cannot possibly exist in a closed society. People's right to
know is, in fact, less important than their need to know if they are
to reach reasoned decisions for social action. Tliis has been my con-
sistent view as a government information officer and it is what gives
the Government information function meaning and substance.
Recognizing the relative nature of things, let me review briefly our
experience at HEW. First, the statistics. The Department's report to
you last summer, Mr. Chairman, on 4 years' experience, showed 368
formal requests under the Freedom of Information Act. Of these,
258 were granted, 16 granted in part, 77 denied, and 17 in process. I
should point out that these represented formal requests. A great many
more were settled informally — and usually affirmatively — by tele-
phone, in conference, or by a simple reminder that administrative
whim no longer serves as an excuse for refusing access to information.
Moreover — and this is an important jDoint — the 258 which were granted
would have been denied except for the act and that would have been
the end of the matter. Knowledge of the act's existence has brought
about, in fact, a slow, sea change in attitudes withm HEW and, I dare
say, in other parts of government, from an impulse to deny, toward a
disposition to reveal information. Critics maintain that if this is so,
the change is too slow — and I would agree. But a change in attitude
exists and that is progress.
It is of some interest to note the exemptions provided under the law
which were the basis of HEW denials: 11 involved trade secrets; nine
interagency memos ; seven personnel files ; and four investigative files
compiled for law enforcement purposes. The balance were a combina-
tion of several or scattered among other exemptions.
When you are dealing, as this committee will be, with freedom of
information and with the design of freeing more of it, the "whys" of
denial are the really im|:)ortant factors. Were we correct in those we
made in HEW? With the aid of excellent advice from HEW's Gen-
eral Counsel's office, I am reasonably certain that the decisions were
1020
teclmically sound under the law and the Department's public infor-
mation regulation. With the luxury of lengthening perspective, I am
less certain that we were always ethically on firm gi'ound in every case.
Congressman Jolm Moss was kind enough to praise HEW publicly
a year or so ago for our handling of the Freedom of Information Act.
Such success as we had — and it is certainly qualified — can be attrib-
uted to several factors: First, we took the law seriously and
approached its administration affirmatively ; second, we restricted au-
thority to deny to a very few people — m fact, just four officials here
in Washington which is obviously the principal point of information,
thus promoting reasonable consistency of viewpoint; and third, we
tried to judge each case ad hoc, thus avoiding that iron of precedence
v\-hich is so often the last refuge of bureaucracy.
As time wore on, however, it became increasingly clear that no
matter how affirmative the approach or how scrupulous the intent
to remain positive, it was impossible to live up to the full spirit of
the law or our own expectations for it.
From the standpoint of HEW, there are, in my judgment, several
principal reasons :
1. The exceptions provided in the law itself, as Prof. Kenneth Gulp
Davis of the University of Chicago pointed out in the summer of 1967,
are too broad, too loose, and too difficult to interpret. These faults were
carried over in HEW's public information regulation and in other
agencies. As the exemptions now stand, almost any administrator can,
if he puts his mind to it, find refuge in them. To be sure, administrative
remedy for appeal exists and the road to the courts is open but few
have the patience, the time or the resources to follow this route.
2. The timelag between an applicant's request and action by a
government agency has proved to be far too long and the absence of a
specified time sequence frustrates the law. I am sorry to say that
certain agencies of HEW, notably the Food and Drug Administra-
tion, have lamentable records. The Administrative Conference of the
United States, representatives of which are to appear before this com-
mittee, has proposed 20 days for an initial denial and, as I recall it,
30 on appeal. I believe this is reasonable and workable.
3. In HEW — and possibly in other agencies — clear conflict exists
between earlier legislation and the Freedom of Information Act. For
example section 1106 of the Social Security Act, as later amended,
authorizes denial of information on virtually every operation of that
agency. This authority was blanketed in HEW's public information
regulation, as was similar restrictive legislation dealing with the
Food and Drug Administration. It has placed severe inhibitions on
the successful administration of the Freedom of Information Act. The
original intent of the Social Security Act amendment was to protect
the earnings records of those enrolled — a perfectly laudable objec-
tive. But section 1106 as it now stands squarely contradicts the Freedom
of Information Act. As long as it exists, it will constitute a barrier
to obtaining information on that agency's operations.
Perhaps this committee might consider querying all Government
agencies to determine to what degree similar legislation may be ham-
pering the flow of information.
You will, Mr. Chairman and members of the committee, be receiv-
ing many more suggestions for strengthening the act. As a member
1021
of the executive branch and as a government information officer, I
welcomed this legislation when it was enacted. I have been puzzled, if
I may say so, at the apathy of some of my colleagues in public infor-
mation who should, in conscience and as a practical matter, have be-
come its vigorous champions. They and the members of the press
should give you their enthusiastic approbation and support.
I welcome, as they should, this reappraisal which you are now under-
taking, as being necessary, timely, and very much in the public inter-
est.
Woodrow Wilson once wrote : "No man has ever seen a Government.
I lived in the Government of the United States for many years and I
never saw the Government of the United States."
The engine of government is, indeed, formidable and surely none
of us may ever comprehend it all. By exposing as many of its moving
parts to the public view as possible, we are nonetheless materially ad-
vancing knowledge about government. This is essential in our kind of
society. In so doing we contribute to the vitality and the endurance
of the Government of the United States and to our democratic faith.
Thank you, Mr. Chairman, and members of this committee for this
opportunity to participate in these important hearings.
Mr. MooRHEAD. Thank you, Mr. Hunter, and I thank all of the wit-
nesses.
First, I would like to ask unanimous consent to include as part of
the record the text of our press release announcing the hearings, the
schedule of witnesses and the other matters dealing with the hearings.
Without objection, that will be made a pait of the record.
(The press releases follow:)
News Release of Committee on Government Opeeations, January 24, 1972
Representative Chet Holifield. Democrat, California, chairman of the House
Government Operations Committee, and Representative William S. Moorhead,
Democrat, Pennsylvania, chairman of the Foreign Operations and Government
Information Subcommittee, today announced plans for hearings on the economy
and efficiency of operations under the Freedom of Information Act (5 U.S.C. 552) .
The detailed review of the administration of the act is scheduled to begin early
in March.
The information law, the product of 11 years of subcommittee hearings,
studies, and reports, was enacted in 1966 and became effective throughout the
executive branch on July 4, 1967. The subcommittee hearings will be the first
comprehensive review of how effective the new law has been in achieving its
objective to broaden the public's "right to know" about the activities of the
Federal Government.
The hearings will examine the executive branch handling of the Freedom of
Information Act on a selected case basis to illustrate actual experiences of
individual citizens, corporations, journalists, law firms, and others, Moorhead
said. The subcommittee will also review case law based on court interpretations
of various exemptions contained in the act and will pinpoint those Federal
agencies with the "best" and "worst" performance records as shown in a sub-
committee analysis of case-by-case denials of information.
Other phases of the extended hearings will cover such subjects as public in-
formation aspects of the Government's security classification system, congres-
sional access to executive branch information, public access to meetings of Fed-
eral agencies, and on several bills referred to the subcommittee that would
amend the Freedom of Information Act.
Moorhead said that both governmental and outside witnesses will be invited
to testify on various aspects of the law's operation. Some sessions will be panel
discussions by Government information experts and by representatives of the
1022
media. A list of witnesses wtio will be testifying at the subcommittee hearings
will be announced at a later date.
Members of the subcommittee, in addition to Moorhead are: Representatives
John E. Moss, Democrat, California ; Torbert H. Macdonald, Democrat, Massa-
chusetts; Jim Wright, Democrat, Texas; John Conyers, Jr., Democrat, Michi-
gan; Bill Alexander, Democrat, Arkansas; Ogden R. Reid. Republican, New
York ; Frank Horton. Republican. New York ; John N. Erlenborn, Republican, Illi-
nois ; and Paul McCloskey. Jr., Republican. California, Ex officio members are
Representatives Ohet Holifield, Democrat, California, and Florence P. Dwyer,
Republican, New Jersey.
News Release of Committee on Government Operations
(March 2, 1972)
Representative Ohet Holifield, D.-Calif., chairman of the House Government
Operations Committee, and Rep. William S. Moorhead, D-Pa., chairman of the
Foreign Operations and Government Information Subcommittee, today announced
that hearings on the administration and effectiveness of the freedom of informa-
tion law (5 U.S.C. 552) will begin at 10 a.m., Monday, March 6, in room 2154,
Rayburn House Office Building. The hearings will be open for live radio and
television coverage. The tentative list of witnesses for the first 2 weeks of
hearings is attached.
Expert witnesses at the opening day's hearing will testify on basic Govern-
ment information policies as they affect the public's "right to know." They
include Presidential press secretaries from the past three administrations —
James C. Hagerty (Eisenhower) ; Pierre Salinger (Kennedy) ; and George Reedy
(Johnson). Other experts include departmental public information specialists —
Arthur Sylvester, former Assistant Secretary for Public Affairs. Department
of Defense; J. Stewart Hunter, former Associate Director of Information for
Public Services, Department of Health, Education, and Welfare; and Harold
R. Lewis, former Director of Information. Department of Agriculture.
A group of legal experts on the Freedom of Information Act will testify on
Tuesday, March 7. Former Associate Justice of the Supreme Court Arthur J.
Goldberg will be the witne.ss on Thursday, March 9. Assistant Attorney General
Erickson from the Justice Department's Office of Legal Counsel will be heard
on Friday, March 10.
The hearings are expected to continue on this and other aspects of the law
through Jime. Lists of other witnesses and subject areas to be covered will be
released in the coming weeks. Later hearings will include problems involving the
law's exemption affecting security classification and national defense secrets
and the problems of congressional access to information from the executive
branch, including workable limitations on so-called Executive privilege. The
hearings will also explore public access to meetings of various Executive agency
"advisory groups," which involve policymaking decisions.
In June, the subcommittee will hold hearings on two measures to amend the
freedom of information law)— H.R. 8903 (Horton, R-N.Y.) and companion
bills that would prohibit the .sale by Federal agencies of mail lists for com-
mercial purposes and H.R. 854 (Koch. D-N.Y. ) and companion bills that would
require Federal agencies maintaining files or records on individuals to apprise
them of such records, with certain exceptions affecting national security or
law enforcement records.
Moorhead said that witnesses will include Members of Congress, Government
officials, and outside organizations having direct experience in the operation of
the freedom of information law. Some of the sessions will be panel discussions
of legal experts, historians, representatives of the news media, and otheri* who
have u.sed the law to obtain information from the Federal Government, either
by administrative decision or by court action. The hearings will also review
case law based on court interpretations of various exemptions contained in the
law and pinpoint those Federal agencies with the "best" and "worst" per-
formance records as shown by an analysis of case-by-ease denials of information.
Members of the subcommittee, in addition to Moorhead, are Reps. John E.
Moss, D-Calif. ; Torbert H. Macdonald, D-Ma.ss. ; Jim Wright, D-Tex. ; John
Conyers, Jr., D-Mich. ; Bill Alexander, D-Ark. ; Ogden R. Reid, R-N.Y. ; Frank
1023
Horton, R-N.Y. ; John N. Erlenbom, R-Ill. ; and Paul N. McOloskey, Jr., R-Calif.
Ex officio members are Reps. Chet Holifield, D-Calif., and Florence P. Dwyer,
R-N.J.
Tentative Witness Schedule (Partial Listing)
hearings on u.s. government information policies and practices — adminis-
tration and operation of the freedom of information act
Monday, March 6, 10 a.m., room 2154, Rayhurn
A panel of Government information experts consisting of:
Mr. James C. Hagerty, former press secretary to President Eisenhower,
Mr. Pierre Salinger, former press secretary to President Kennedy.
Mr. George Reedy, former press secretary to President Johnson.
Mr. Harold R. Lewis, former Director of Information, Department of Agri-
culture.
Mr. Arthur Sylvester, former Assistant Secretary for Public Affairs, Depart-
ment of Defense.
Mr. J. Stewart Hunter, former Associate Director of Information for Public
Services, Department of Health, Education, and Welfare.
Tuesday, March 7, 10 a.m., room 2154, Rayhum
A panel of legal experts on the Freedom of Information Act consisting of :
Mr. Frank Wozencraft, attorney, Houston, Tex.
Mr. Anthony L. Mondello, General Counsel, U.S. Civil Service Commission.
Mr. Richard B. Wolf, deputy director. Institute for Public Interest Representa-
tion, Georgetown University Law Center.
Mr. David Parson, chairman. Committee on Government Information, Federal
Bar Association.
Thursday, March 9, 10 a.m., room 2247, Raybum
Mr. Arthur J. Goldberg, former Supreme Court Justice, former Secretary of
Labor, and U.S. Ambassador to the United Nations.
Friday, March 10, 10 a.m., room 2154, Rayhum
Mr. Ralph E. Erickson, Assistant Attorney General (Office of the Legal Coun-
sel), Department of Justice, accompanied by Mr. Robert Saloschin, attorney.
Office of the Legal Counsel.
Tuesday, March I4, 10 a.m., room 2203, Rayburn
Mr. Roger C. Cramton, Chairman, Administrative Conference of the United
States, accompanied by —
Mr. John F. Cushman, Executive Director, Administrative Conference.
A witness to be designated by the Office of Management and Budget.
A panel of indi\"iduals having experience in the administrative workings of
the Freedom of Information Act consisting of :
Mr. Reuben Robertson, attorney ;
Mr. Harrison Wellford and Mr. Peter Schuek, Center for the Study of Respon-
sive Law ;
Mr. Bertram Gottlieb, Transportation Institute.
Friday, March 17, 10 a.m., room 2203, Rayhum
A panel of the news media having experience in the use of the Freedom of
Information Act consisting of:
Mr. Ward Sinclair. Washington bureau. Louisville Courier-Journal ;
Mr. R. Peter Straus, publisher, Straus Editor's Reix)rt ;
Mr. Roy McGhee, reporter. United Press International, Washington bureau ;
Mr. Donald L. Barlett, reporter, Philadelphia Inquirer; and
Mr. John Seigenthaler, editor, Nashville Tenncssean.
(This partial list will be supplemented to include witnesses for other hear-
ings to be held prior to the Easter recess on March 20, 24, 27, and 28.)
1024
News Release of Committee on Government Operations, March 6, 1972
The Foreign Operations and Government Information Subcommittee of the
House Committee on Government Oi>erations today launched a new series of
hearings into information policies and practices of the Federal Government
with testimony from a group of ex-presidential press secretaries and depart-
mental public information oflBcials.
Subcommittee Chaimiar William S. Moorhead, D-Pa.. cited in his prepared
opening statement congressional concern over "the increasing dangers of erosion
of public confidence in Government because of restrictions by the Executive on
the free flow of information."
He said that "the problem of informing all of the people who are an integral
part of the democratic process has become more and more imix)rtant in recent
years and has grown to alarming proportions, particularly since World War II."
"Call it Government secrecy, news management, the credibility gap, or truth
in Government, it is a problem which has been with us since our form of Gov-
ernment was established. It is a political problem, but it is not a partisan prob-
lem."
Former presidential press secretaries James C. Hagerty (Eisenhower), Pierre
Salinger (Kennedy), and George Reedy (Johnson) were scheduled to appear
in a panel discussion of the basic problems of information and the internal busi-
ness of Government ver.sus the public "right to know" with former public in-
formation officers Harold R. I-^wis (Agriculture), Arthur Sylvester (Defense),
and J. Stewart Hunter (HEW).
The initial portion of the hearings will center on the administration and
effectiveness of the Freedom of Information Law, passed by Congress in 1966
after more than 11 years of studies and investigations by the subcommittee,
then headed by Representative John E. Moss. D-Calif.
"We plan to find out whether the executive branch of the Federal Govern-
ment is following the letter — and the spirit— of the Freedom of Information
Act," Moorhead stated, "and we plan to suggest legislative solutions to any
shortcomings we uncover."
Early in May, the subcommittee will concentrate its attention on the portion
of the Freedom of Information law which permits executive agencies to hide
Government information in the name of national defense or foreign policy —
the system for classifying Government documents as "top secret." "secret," or
"confidential." Exten.sive hearings were held by the subcommittee on classifica-
tion procedures last summer in connection with its review of questions arising
from the so-called "Pentagon papers" controversy.
Moorhead said that other portions of the hearings would deal with the par-
ticular needs and problems of Congress in obtaining information from the
executive branch which is required to carry out its constitutional resiwnsibili-
ties. Also on the hearing agenda for June is an investigation of .special informa-
tion problems posed by "hundreds of Government 'advisory groups' who hold
thousands of official meetings, often behind closed doors with no public or con-
gressional knowledge of decisions made or deals discussed."
Chairman of the parent Government Oiierations Committee is Representative
Chet Holifield, D-Calif. Other members of the Foreign Operations and Govern-
ment Information Subcommittee are : Representatives John E. Moss. D-Calif. ;
Torbert H. Macdonald, D-Mass. : Jim Wright. D-Tex. : John Conyers, Jr., D-
Mich. ; Bill Alexander, D-Ark. : Ogden R. Reid. R-X.Y. : Frank Horton, R-N.Y. ;
John N. Erlenborn, R-Ill. ; and Paul N. McCloskey, Jr., R-Calif.
Mr. Moorhead. Xow, with the agreement of the members of the sub-
committee, I woukl like to siio:^est we i)roceed under the r)-minute rule
for the first round of questionino;', and tlien under the 10-minute rule
thereafter. And I would ask the staff to notify everybody, starting with
the chairman, when the 5 minutes have expired.
Mr. Ha<rerty, I was amused by your description of having to go to
President Eisenhower to get papers declassified that you wanted to
release. You have had the same trouble with the bureaucratic machin-
ery, that sometimes f rusti-ates us in the Congress, I gather.
Mr. Hagerty. Quite often, Mr. Chainnan.
1025
Mr. MooRHEAD. And if President Eisenhower said this is now still
top secret, that is because of the President's ability to use strong lan-
guage when he did not want to reveal to this subcommittee; is that
correct ?
Mr. Hagerty. Let us say that was between he and I.
Mr. MooRHEAD. Mr. Eeedy, did you have any similar experiences?
Did you have to get papers declassified by the President himself that
you thought should be revealed to the public ?
Mr. Reedy. No, not many papers. The principal problem in the
White House, of course, is that what the press really wants to know
are the intentions of the President, and information comes out of the
White House according to the desire of the President to release his
intentions or not to release his intentions. I think that Mr. Hagerty
served in the White House when there was a greater adherence to
the staff and command system. He operated in an atmosphere where
papers, I believe, carried more weight and more authority. In the
White House I served in, formal papers were far less significant.
What really counted were the discussions and the desires and the
intentions of the persons. You see, this is one of your greatest prob-
lems. We can get bogged down a little bit too much here in thinking
that this is a question only of data. Really data are only a small part
of it. What really matters is intention, and that is a very difficult thing
to force out in the open. You can never really pry loose a man's
intentions.
Mr. MooRHEAD. The next question I would like to direct primarily
to Mr. Hagerty and Mr. Reedy, but I would welcome comments from
the other witnesses. Since Presidential press secretaries are constantly
exposed to questions from the press, my question is, Shouldn't they
also be permitted to appear before congressional committees, and, if
so, what ground rules should be adopted to protect their legitimate
confidential communications between the President and his press
secretary ?
Mr. Hagerty. Here you get into, Mr. Chainnan, this whole problem
of executive privilege. As far as I was concerned I w^as a staff' officer
to the President. I did my best to help the news media when I could,
but I was working as a confidential staff* officer to the President.
One of the things that in any discussion like this, I think you have
to bring up — and my argument with some of my friends in the news
media— is that you cannot compiare Presidents or the way they oper-
ated, unless you compare the decade in which they operated. The
1950's were entirely different from the 1960's, and the 1960's bear little
resemblance to the 19T(Vs, and the 1970's are going to bear little re-
semblance to the 1980's. During the time that Mr. Eisenhower was in
office, it was a relatively quiet period of time. Korea was settled in
the first 9 months of his administration. The only time that our troops
were used in a foreign exercise was Lebanon. There at the request of
the president of that country, we sent in 25,000 troops, all of which
was made public from the time they landed until the thing was
cleared up. Internally in the United States, you know, it was a different
ball game than it is now. Our States were solvent, our cities were
relatively solvent. The greatest civil rights confrontation in the years
that I was in the Government was Little Rock. Well, Little Rock was
1026
a tea party compared to Watts and Newark and what is happening
in our society at the present time.
Mr. iMooRHEAD. Well, what is the difference between your being
subjected to questions by the press and being subjected to questions
which a congressional committee asks?
Mr. Hagerty. I had, and I am sure that George and other press
secretaries had, the complete knowledge of both the secret operations
of the Government, as far as programs and policies were concerned.
There would be many instances where I do not think that I could
have testified, and would have had to say, "I am terribly sorry, sir,
I can't answer that question publicly." Now, this is what worries me.
This is what concerns me, and it would not be attempting to shield
things from you. It would just be that the information I had was of
a secret nature, and mitil the President decided that it should be
public, I could not decide on my own that it would be public.
Mr. Reedy. I would like to make still another distinction, Mr. Chair-
man. We have an example of a very grave problem here which is why
I have raised this whole problem of the White House staff. I do not
think that you will ever be able to subpena a press secretar}^ or to
bring him l3efore the committee for the simple reason that it would
be the same thing as bringing the President before the committee.
I camiot conceive of a press secretai-y that does not have a personal
relationship with the President. Wien the press secretary is answering
questions for the press, he is answering them for the President.
Now, the problem that I am raising is that this basic relationsliip,
which I think is legitimate, has now become a huge blanket. It is not
just a question of one administration by the way. This is a trend that
started a long time ago, and is increasing, I think. You have a major
problem when you have such huge "Wliite House staffs that are in\nil-
nerable to press questions and congressional questions. But, if you are
going to get to any point where you say that any assistant who
genuinely has a personal relationship with the President can be
brought before congressional committees, you encounter the constitu-
tional question of your capacity to bring the President before com-
mittees.
Mr. MooRiiEAD. Thank you, Mr. Reedy. My time has expired.
Mr. Reid ?
Mr. Reid. Thank you. Mr. Chairman.
I would like to address a question to Mr. Reedy and Mr. Hagerty
if I may, but preface it with a proposition and one or two comments.
Fir-st, I think that today the press is under the most serious attack
in its history. Now, this may be perhaps more a question of accident
than design, but the exercise of prior resti-aint on the riglit to publish,
which I believe should be removed from the reacli of the Executive,
the improper subpenaing of reporters, notes and the beginning of the
use of the licensing power to threaten to control content of radio and
TV in contravention, in my judgment, of the applicability of the first
amendment rights, are clearly warning signals.
Mr. Reedy has talked about access and the knowledge of what we
feel as being two elements of the problem, and I would like to ask you
two questions. One, would either or both of you, favor a mechanism of
oversight on classification, an ovei-siglit over declassification with this
mechanism, which I think probably would be a congressional media-
1027
nism with the Senate and the House having the riglit to declassify and
make public that which was improperly classified 'i
And the second question that I would like to ask deals with execu-
tive privilege, which I think is really the fundamental question here
today. Mr. Reedy has talked about the danger of a congressional or a
constitutional crisis. I am planning to introduce legislation shortly,
with bipartisan support, that would require the executive to provide
information to a congressional committee when I'equested. and if there
is a failure to do so there would be an automatic cutoff of funds Avithin
30 days, and the Comptroller General would be required not to counter-
sign Treasury warrants. And if the executive persisted in spending
these funds, the executive would be subject to sanction.
Now, the distinction here is not on the confidentiality of staff in the
White House or tactical decisions or advice given to the President,
but it relates to the question of benchmark policy decisions, where
when the Congress is asked to act or is required to exercise first. And
here I would make a distinction between telling the Congress that
we are tilting towards Pakistan, which I think the Congress is entitled
to know, and private communications with an ambassador or Chief of
State. But, unless the Congress gets fundamental information, and
there are several instances, the Gulf of Tonkin being one, where
fundamental information was not available to Congress which would
have related to the congressional decision. And I think there has to
be some kind of an accommodation. It may have to be determined
in the courts.
But, would you, Mr. Reedy, comment first on a classification mech-
anism, and, second, some way of reaching the question of executive
privilege through accommodation, particularly, in the light of the
shift of many agencies into the White House, and the blanket you
now talk about ?
Mr. Reedy. Well, in answer to your first question, Mr. Reid, I would
definitely favor some sort of legislative oversight over the whole
classification process. The thing has become a monster. Jim talks about
the 150 million pieces of paper. Don't forget that is out only of World
War II. It represents only a small part of the papers available in the
Government. I do not believe, however, that oversight would get to
the fundamentals of the problems you are raising. I agree with you
that the press is under heavy attack, and there are very grave dangers.
I think these things are largely in our society. There are many forces
at work over which you gentlemen have no control and no jurisdiction
and about which you can do nothing. But, nevertheless, I think it
would be good and useful to have declassification because I believe
it would be a reassuring thing to the public. If you were to declassify
150 million pieces of paper in one swoop, I do not know what the
press would do with it, but at least the papers would be available
for inspection.
Your second question bothers me. I believe, and again I am not
speaking as a lawyer but as a student of government, that you would
have a great deal of difficulty encroaching on the prerogatives of the
executive. I have a rather strong feeling that if you went that far
with the law that you would get one of those "Mr. Marshall has made
his law, now let him enforce it" propositions later, depending on how
far you pushed it.
1028
But, secondly, let us even assume that you would do it, or could. I
think you would do one healthy thing, I think you would eliminate
the amount of paper in the Government. There would be a greater
amount of informal conversation, and fewer memorandums. I think
we ha^•e far too much paper floating around today. We are being
drowned in a sea of paper.
But, nevertheless, even if you could do it I think that all you would
get, then, would be memorandums that were extremely sterile. I do not
think this would advance the cause of freedom of information or ac-
cess to information.
Mr. Reid. The chairman has kindly suggested that Mr. Hagerty have
a chance to respond, even though we have run a little over the 5 minutes.
And I again would make a distinction, one between fundamental
benchmark policy, going to war, questions of that kind, or major
changes, to which tTie Congress should be entitled to have some in-
formation, from necessary staff work that should remain confidential.
Mr. Hagerty. "Well, I think I have made my position quite clear
on classification. I think something ought to be done about it, both
by the executive branch and by the Congress. And I think that more
thought, more study on this, and re^•iew of this can lead to modifica-
tions and changes in that system.
Mr. Reid. ^Viid that would include the right to declassify and make
public that which was improperly classified in the interest of the right
to know ?
Mr. Hagerty. I would have to see what the words are and how you
would work it out. I cannot say "Yes."
Mr. Reid. You do not exclude that, though ?
Mr. Hagerty. I would not exclude it, but I think it has to be in rela-
tionship with the Congress and the executive branch of the Govern-
ment, and I do not know how you are going to work that out at the
present time.
But, by and large, I Avould be leaning in favor of something like
that.
Mr. Reid. Yes.
Mr. Hagerty. On the executive side, however, this is another ques-
tion. There were many times, and I can only talk about my own time
in the Government, there were many times in internal discussions, even
with the President of the United States where I, as a staff officer, would
deliberately take a different point of view, even if I did not believe it,
because nobody else had raised it.
You have to be in a position where you give your boss all sides of the
question. Now, if I were to raise something like this in an internal staff
meeting with the President, and then be called upon to testify on what
I said on something that I did not really believe in the first place, I
think then you screw up the whole intimate working relationship with
a President. And I am now talking only of the White House, between
a President and his staff.
I would agree with George that during the 1950's our staff was an
awful lot smaller than the present staff. The problems were smaller.
But, you cannot, you cannot dioke off through legislation or any
way else the intemal discussions within, we will say, the Wliite House,
where people are deliberately taking another point of view to get that
point of view to the President, so that he has all sides of the question.
1029
We are staff officers of tlie President, we are not like members of the
Ca^binet or assistant members of the Cabinet. We are appointed and
serve at the pleasure of the President, period.
We are not confirmed, we are not nominated. That is a different
situation. But, I would think that it would be most difficult and, in
fact, impossible to have staff officers up testifying.
Mr. Reid. Thank you, Mr. Hagerty.
Mr. MooRHEAD. Mr. Wright.
Mr. Wright. Thank you, Mr. Chairman. I know that two or three of
the witnesses have made specific recommendations for changes in the
Freedom of Information Act. And Mr. Hunter, for example, made
two that interest me.
I believe you suggest, Mr. Hunter, that the time lag between an ap-
plicant's request for inforaiation and action on that request is en-
tirely too long, and you quoted the Administrative Conference as rec-
oimnending a 20-day period for response to an initial request, and a
30-day period for response on an appeal. Do you think that should
be written into the law ?
Mr. Hunter. I would be inclined to favor it because we are all famil-
iar with the possibility inherent in the law for delay, and I have seen
this in operation in HEW and other parts of the Government in which
a request finally died as a result of longevity in process.
And I am sorry to say so, but some of them in HEW we acted on
with reasonable speed, but we are also, as administrator of an act
of this sort, at the mercy of others, and not infrequently at the mercy
of people who do not want to reveal the information that has been
requested.
And you could use the law as a delay indeterminately. I believe it
would be very useful to write it into the legislation.
Mr. Wright. Thank you. One other question, Mr. Hunter:
You make reference to the fact that section 1106 of the Social Se-
curity Act, coming as it does under the exemption of the Freedom of
Information Act, which exempts disclosure exempted by other stat-
utes, authorizes denial of information on virtually every operation of
your agency. Would you be inclined to favor an amendment which
would limit that to the very understandable matter which you said the
act initially was intended to exempt — ^that is, earnings, and the records
of people enrolled in the social security system ?
Mr. Hunter. I think as a first step I do not know how prevalent this
is. I can only speak for HEW, but by blanketing in early legislation
we have had problems with the Public Health Service in terms of leg-
islation that was contradictory, and internally it was supposed to re-
vise this because these were internal relations, and there were discus-
sions within the Department still going on with Commissioner Ball, a
very able man, about revision of this particular section of the law,
to make it more responsive.
I think that what might be very useful in this instance is to look into
1106, to examine it carefully.
And I would also suggest to the committee that you have a look at
other Government agencies to see whether that is happening there.
Mr. Wright. Thank you.
Mr. Reedy and Mr. Hagerty, I have a little problem with the sug-
gestion advanced by our colleague, Mr. Reid, to the effect that we
should require all administrative agencies to give any information
1030
asked by Congress under penalty of losing their authorization, or their
capacity to sj^end money. I think we must begin with the recognition
that there are ceitam items of infoiTnation which in the public inter-
est must be held rather securely.
I am afraid we might get into a little difficulty there if Members of
Congress would follow the path of becoming their own declassification
agencies and reading the classified documents into the record.
If we had that many declassification agents, we probably would not
have any classification at all.
But what Mr. Hagerty said in the beginning is quite true, I think,
that what we strive for is balance, and this has been a historic prob-
lem of a free society.
There was a man named Heraclitus who said that the problem of
organized society is to combine that degree of liberty without which
law would be tyranny with tliat degree of law without which liberty
would be license. Mr. Sylvester, I think, mentioned the need to keep
secret the whereabouts of Henry Kissinger on at least one occasion. I
can see that. I wonder, though, if officially we do not have too many
cover stories for things we well could simply acknowledge. I am think-
ing, Jim, about a thing that occurred when you were at the White
House — the Jj-2 incident. I think it embarrassed us a little when the
Russians shot the fellow down and we denied that he was there, and
the President later had to identify that as a "cover story."
I remember the words, even. It made me feel a little squirmish.
Mr. Hagerty. It made us feel a little squirmish, too.
Mr. Wright. It probably did. Wliy wouldn't it have been better for
him to say, "Yes. Yes, we were flying over there to see what you fellows
were doing. We have advocated an open skies policy. We advocated it
at the United Nations, and we have made that public, and you fellows
ought to fly over here."
Mr. Hagerty. I cannot talk about it too much. I voluntarily signed
a little paper taking an oath not to review certain things when I left
that office. And, you know, hindsight is a wonderful thing. We move
too fast.
But, the other side knew there were overflights, and I would think
that looking at it now, that your suggestion was probably very good
or would have been good. But, when you are right in the middle of
it, it's difi^erent. If anything, we move too fast.
Mr. Wright. What a comfort it is, Mr. Hagerty, to know that I have
made those same mistakes.
Mr. Hagerty. But in the world we live in there are overt and there
are covert activities of our Grovernment, and I would hope that they
would continue for our own persional knowledge and safety. But on
that one, if anything, it was too fast. And there you were with egg
on your face and good egg, but it happened, and I would not be sur-
prised if in the future something like this might happen again.
Mr. Wright. Thank you, Mr. Chairman.
Mr. MooRHEAD. Thank you.
Before yielding to the gentleman from New York I would like to
say that Congressman Horton has written an excellent article in the
Januarv-FebiTiary issue of Case and Comment entitled "The Public's
Right To Know."
And without objection I would like to have that made a part of the
record at this point.
(The article follows:)
1031
The Public's Right to Know
by Hon. Frank Horton
The recent publication of the Penta-
gon papers, detailing U. S. involvement
in Vietnam, and the dispute over the
editing of the CBS program. "The Sell-
ing of the Pentagon," have focused na-
tional attention on the inevitable con-
flict in a democracy: the government's
need for secrecy to protect the national
interest, the public's right to know about
the workings of its government and the
media's responsibility to report the news.
The basis of our form of government
rests on an informed citizenry, participat-
ing in decision-making. This principle
assumes that the people must have avail-
able as much information as possible in
order to make wise choices.
Yet, there is an undeniable need for
government to withhold some informa-
tion from the public if such information
would be advantageous to hostile nations
or seriously damaging to the national
interest.
The media have a duty and a respon-
sibility to inform the public in a fair
and accurate way about the workings of
the government.
Because of the nature of the respon-
sibilities and obligations of the public,
government and media in the democrat-
ic process, conflicts inevitably occur —
the publication of the Pentagon Papers
and the CBS program, "The Selling of
the Pentagon," are the most recent ex-
amples.
Propelled by these concerns, the For-
eign Operations and Government Infor-
mation Subcommittee of which I am a
member, has held hearings on the entire
question of the "public's right to know."
It is this area that the Subcommittee was
authorized to investigate and protect
when it was created in 1955.
As a result of my years as a mem-
January-February, 1972
ber of this Subcommittee, and because
the question of the "public's right to
know" is vital to the survival of our
democracy, I have undertaken a major
study of this entire area.
The findings of this study are in-
cluded in this article.
This article examines the entire ques-
tion of secrecy, security and the clas-
sification and declassification of gov-
ernment information. This includes an
analysis of Executive Order 10501,
which outlines the conditions under
which information may be classified and
declassified, as well as Executive Priv-
ilege, which circumscribes the kind of
executive branch data that may prop-
erly be withheld from Congress.
The Freedom of Information Act of
1967, which was passed in 1966 to pro-
vide the public with as complete access
as possible to public records and to pre-
vent government agencies from unjus-
tifiably withholding information, is also
examined as a key element of the pub-
lic's right to know.
The question of truth in media news
reporting will also be looked at. The
media are protected from Congressional
restraints by the First Amendment, which
says "Congress shall make no law
abridging freedom of speech or of the
press."
EXECUTIVE ORDER 10501— Au-
thority for Federal Secrecy?
Presidential Order 10501 sets out the
rules and regulations determining which
government agencies may classify in-
formation as secret, which officials may
decide that information must be with-
held from public view, how material is
to be classified, for how long it may be
kept secret, and what procedures must
1032
Hon. Frank Norton,
U. S. Representative
from the 36th Con-
gressional District of
New York, serves on
the Government Op-
erations, Small Busi-
ness, and District of
Columbia Commit-
tees of the House.
He received his B.A.
from Louisiana State University and his
LL.B. from the Cornell Law School.
This article was written especially for
Case & Comment.
be used to declassify material which no
longer is sensitive and which is no longer
properly hidden from the public.
This far-reaching Presidential Order
was first issued in November, 1953, and
has been amended at least six times since
then. The Order is entitled "Safeguard-
ing Official Information in the Interest
of the Defense of the United States."
As presently written, it authorizes the
heads of 34 different Federal agencies,
departments, commissions and offices to
delegate to their subordinates the power
to classify defense-related information
in one of three categories of secrecy:
Top Secret, Secret or Confidential. In
addition, the heads of twelve more agen-
cies are permitted to classify material
but are not authorized to delegate clas-
sification powers to others in their agen-
cies.
Executive Order 10501, which oc-
cupies 14 printed pages, begins as fol-
lows:
WHEREAS it is essential that the
citizens of the United States be informed
concerning the activities of their govern-
ment; and
WHEREAS the interests of national
defense require the preservation of the
ability of the United States to protect
and defend itself against all hostile or
destructive action by covert or overt
means, including espionage as well as
military action; and
WHEREAS it is essential that certain
official information affecting the national
defense be protected uniformly against
unauthorized disclosure;
NOW, THEREFORE, by virtue of
the authority vested in me by the Con-
stitution and statutes, and as President
of the United States, and deeming such
action necessary in the best interests of
the national security, it is hereby ordered
as follows. . .
The Executive Order goes into great
detail about what kinds of material may
be classified, and what procedures for
distribution, protection and declassifica-
tion of such material should be used.
For example, in setting out the appro-
priate use of the Top Secret classifica-
tion the Order states:
". . . The Top Secret classifica-
tion shall be applied only to that
information or material the defense
aspect of which is paramount, and the
unauthorized disclosure of which
could result in exceptionally grave
damage to the Nation such as leading
to a definite break in diplomatic re-
lations affecting the defense of the
United States, an armed attack
against the United States or its allies,
a war, or the compromise of military
or defense plans, or intelligence op-
erations, or scientific or technological
developments vital to the national de-
fense."
The Order is replete with warnings
and statements to the effect that over-
classification of material should be
avoided, but it goes into even more de-
tail as to the need to avoid underclas-
sifying material, particularly material
which, while not Top Secret or Secret
in and of itself, is connected with in-
formation or material which is legit-
imately Top Secret or Secret.
Also, the Order specifies a procedure,
to operate within each agency, as well
as between and among several agencies,
for declassification of material. But it
is clear that the authority to declassify
is far more restricted in several ways
than the authority to classify. On bal-
Case & Comment
1033
ance, more emphasis is given in Execu-
tive Order 10501 to protection of clas-
sified material than to declassification of
information that is no longer sensitive.
This has resulted in much overclas-
sification of information and a tremen-
dous backlog, numbering in millions of
documents, of material which, while
properly kept secret initially, should
have been declassified years ago.
20 Million Secrets
The main point that emerged from the
hearings of my Subcommittee on Foreign
Operations and Government Information
on the Pentagon Papers and on this
Executive Order was that there were as
many as 20 million classified documents
within the Federal structure.
One witness before the Subcommittee,
William G. Florence, a recently retired
Air Force civilian security classification
official, told us that he felt 99i per cent
of the 20 million documents could now
be made public without compromising
national defense.
While experts disagree as to the exact
number, it is safe to say that at least
two-thirds of these Top Secret, Secret or
Confidential documents should have
been made public long ago, since their
sensitivity to national security has ex-
pired. These documents range from an
absurd "Secret" classification of al-
ready-published newspaper articles, to
proper Top Secret stamps on current
troop deployment plans.
Despite several amendments to Exec-
utive Order 10501 since it was issued
in 1953, which have been designed to
avoid overclassification of information,
the situation is still serious, and the pub-
lic's right to know is being ignored in
too many instances. One amendment
properly reduced the number of Federal
agencies empowered to classify material.
Until January, 1961, such agencies as
the Migratory Bird Conservation Com-
mission and the Indian Arts and Crafts
Board had authority to classify docu-
ments as military secrets. Other amend-
January-February, 1972
ments reduced the number of classifica-
tion categories from four to three and
stipulated time limits for "downgrading"
of classified material from Top Secret,
to Secret, to Confidential and finally, to
public information.
Despite these efforts, the classifica-
tion system remains jammed with over-
classified material. Witnesses before
our Subcommittee said the problem was
that there appears to be an unlimited
number of people within the government
with the power to classify, but a lower
priority and fewer people are assigned
to the declassification of outdated docu-
ments.
In some ways, this is understandable.
With limited staff' and resources, an agen-
cy would put a higher priority on pro-
tecting current material that is truly sen-
sitive, than on digging into its files to
make public outdated troop plans for
World War II or the Korean War.
The weight of the Executive Order,
and the stiff penalties provided under
the Espionage Act for disclosure of
classified material serve to impede un-
warranted disclosure of classified mate-
rial. But the same factors also impede
legitimate declassification of non-sensi-
tive material. Government workers,
while they have little cause to hesitate
in classifying or even over-classifying a
document, are reluctant to take respon-
sibility for declassifying information
about which they have even the slightest
doubt.
President Nixon has recently asked
Congress to fund 100 additional people
whose job it will be to declassify thou-
sands of World War II documents which
have remained secret only because no
one wanted to spend the time or money
needed to declassify them. This is an
important step forward, and it is the
first time in many years that the public's
right to know has received this kind of
Presidential priority. However, the ad-
dition of 100 people does not solve the
overall problem.
76-253 O - 72 - pt. 4-3
1034
To help insure the public's right to
know and to untangle the web of secrecy
which has grown up behind Executive
Order 10501, I am proposing several
steps to help guarantee that the people
and the Congress have access to in-
formation that is not truly sensitive.
Proposals to Untangle the Secrecy Back-
log
My analysis is that there has been
no government plot to delude, or deceive
the public. On the contrary, the lack of
attention to declassifying outdated docu-
ments, including much of the contents
of the Pentagon Papers, has been a re-
sult of low or no priority placed on
carrying out the tedious job of review-
ing each document and clearing it for
public release.
To untangle this web of secrecy, I am
proposing several steps to guarantee that
the people can get access to information
as soon as it is prudent and possible
to release it without compromising our
security or our defense posture.
I propose the following changes in
Federal procedures and priorities both
within and outside the scope of Execu-
tive Order 10501:
l.Each agency empowered under
10501 to classify information
should be asked to include in its
budget requests to Congress for
fiscal 1973 funds sufficient to prop-
erly staff, within the office of the
agency head, an Office of Informa-
tion Declassification. This staff
should be sufficient to complete the
task of sifting through classified
documents and declassifying out-
dated documents so that the declas-
sification process is brought com-
pletely up to date by the end of
fiscal year 1974. Of course, prior-
ity information of public interest
that is no longer sensitive should
be declassified first, leaving more
routine documents for processing
toward the end of this two year
period.
The Offices of Information De-
classification in each agency should
remain sufficiently staffed after
July 1, 1974 to maintain a current
declassification program. Some
agencies may require only one or
two people to complete this task,
while agencies which have exten-
sive classification of material may
require substantially more. The
Office of Management and Budget
should be under Presidential direc-
tive to give priority treatment to
these budget requests in their an-
nual review of individual agency
budgets.
2. Executive Order 10501 should be
amended to provide that each clas-
sified document, in addition to be-
ing stamped with its appropriate
level of secrecy, should also be
marked to show:
a. the office and official responsible
for classifying the document;
b. the earliest time the document
would be eligible for "down-
grading" to a lower level of
secrecy, and for declassification;
and
c. the off.ces or officials authorized
to review the classification of the
document and to declassify it.
3. That each Office of Information
Declassification established under
the first proposal report annually
to the House and Senate Com-
mittees on Government Operations,
and that these reports shall include:
a. the number of documents cur-
rently in the possession of the
Federal agency which are clas-
sified Top Secret, Secret and
Confidential;
b. the number and general descrip-
tion of documents declassified
or downgraded in the past twelve
months;
c. the estimated "classification
backlog" of the agency, that is,
the number of classified docu-
Case & Comment
1035
merits which have not been re-
viewed for declassification, but
which have passed the date of
eligibility for review;
d. an estimate as to what steps or
funds may be required for the
agency to bring its declassifica-
tion procedures up to date.
I believe that these steps which I have
recommended to the President and the
Government Operations Committees,
will insure that the public's right to ac-
cess to government information will not,
either deliberately or inadvertently be
relegated to last priority (as has been
the case under Executive Order 10501)
in the Federal government's effort to pro-
tect information that is truly sensitive
to national security.
Executive Privilege
There is no question that there is a
current crisis of confidence and of in-
formation existing among many seg-
ments of American society. You can
say that we are today beset with several
"credibility gaps" in America.
The first of these credibility gaps is
between government and the public at
large. "Are we getting the straight story
from Washington?" "Everything worth
knowing is secret!" These are typical
comments of American citizens con-
cerned about the truthfulness and relia-
bility of government.
In addition to the serious secrecy
backlog, there are other gaps of credi-
bility.
A lesser-known, but equally serious
informational gap has developed within
the Federal government itself, in the
very delicate but important relationship
between Congress and the President.
Under the doctrine of separation of
powers, among the three branches of the
Federal government, the President is not
responsible to the Congress and the Con-
gress is not responsible to the President.
Both are co-equal branches of govern-
ment. However, in order for the gov-
Januai\ -February, 1972
ernment to function, it is necessary that
a high degree of trust and cooperation
be developed between Congress and the
President, and it is also necessary that
neither branch act to obstruct the prop-
er functioning of the other.
Recently, the information gap be-
tween Congress and the President
reached the proportions of a small pub-
lic crisis. This was highlighted when it
was learned that the Senate Foreign Re-
lations Committee, which normally has
full access to classified material, had
requested a copy of the "Pentagon
Papers" three times from the Adminis-
tration, and each time the Administra-
tion refused, citing the doctrine of Ex-
ecutive Privilege. The Papers were
finally released only after parts of them
were published in the press.
The term "executive privilege" is most
commonly used to refer to a situation
where the Executive Branch of the gov-
ernment refuses to divulge information
requested by the Congress. Others, in-
cluding Senator Sam J. Ervin, Chairman
of the Senate Judiciary Subcommittee on
Separation of Powers, use the term to
mean "the withholding of information of
any kind by the Executive Branch from
any persons, be they Members of Con-
gress, or members of the taxpaying pub-
lic."
At issue in the question of Executive
Privilege and its use to keep informa-
tion from Congress and the people are
conflicting principles. First is the pow-
er of the President to withhold informa-
tion, the disclosure of which he feels
would impede the performance of his
constitutional responsibilities. Second
is the power of the legislative branch
to obtain information in order to legis-
late wisely and effectively; and third
is the basic right of the taxpaying public
to know what its government is doing.
The dispute over the use of Executive
Privilege is just one aspect of the over-
all debate going on in our government
over the increasing concentration of
1036
power in the Executive, and the lessen-
ing of power of the Congress. In for-
eign policy, I have addressed the prob-
lem of Congress abandoning its constitu-
tional powers over war and peace to
the Executive — to the point where Con-
gress has all but lost its role in the deci-
sion to wage war, or to engage American
troops abroad. Part of this erosion of
legislative power is a direct result of the
fact that the Executive has more infor-
mation at its disposal than the legisla-
ture.
Where the Congress is uninformed, it
obviously cannot be expected to act in a
timely and responsive manner. Where
certain kinds of information are held ex-
clusively by the Executive, that branch
of government is in a strong position to
determine, by itself, how that informa-
tion will be used. This is why the ques-
tion of Executive Privilege, and its use
and abuse, is crucial to the effective and
constitutional operation of our govern-
ment.
Congress Has a Right to Know
Since the Administration of President
George Washington, the desire of the
President to keep certain information
from Congress because he feels it would
compromise his office and his responsi-
bility, and the desire of Congress to be
told all have resulted in conflict. When
asked by the House of Representatives
to produce information on the St. Clair
expedition, President Washington replied
that:
". . . The House . . . might
call for papers generally . . . The
Executive might communicate such
papers as the public good would per-
mit and ought to refuse those, the
disclosure of which would injure the
public Neither the com-
mittee nor the House had a right to
call on the Head of a Department,
who and whose papers were under
the President alone; but that the com-
mittee should instruct their chair-
man to move the House to address the
President."
Despite George Washington's con-
tentions above, all of the requested docu-
ments were subsequently turned over to
the Congress. However, his words be-
gan the idea that inherent in the Pres-
ident's authority was the power to with-
hold information if, in his discretion,
it would compromise his duty, under
Article 2. Section 3 of the Constitution
to see that the "laws are faithfully exe-
cuted." Because courts have held that
the "President alone and unaided could
not execute the laws," but requires, "the
assistance of subordinates" the alleged
authority to withhold information, or to
exercise this "Executive Privilege" has
thereby been extended to the entire
Executive branch.
While there is no express language
in the Constitution permitting Execu-
tive Privilege, its development has come
about partly because the Congress has
failed to assert its own power in the face
of Presidential claims of the inherent
power to withhold information.
Thus, each succeeding President has
set the policy for his Administration by
telling the Congress how he will interpret
and follow the doctrine of Executive
Privilege, instead of the Congress laying
down guidelines for how the doctrine
should be used, if at all.
President Kennedy was the first Pres-
ident to seek to end the practice of
delegating Executive Privilege to other
officials within his Administration. Each
recent President, at the start of his term,
has written a letter to the Chairman of
the Government Information Subcom-
mittee of the Government Operations
Committee stating his policy with regard
to Executive Privilege. President Ken-
nedy's letter stated:
this Administration has
gone to great lengths to achieve full
operation with the Congress in mak-
ing available to it all appropriate
documents, correspondence and infor-
mation. That is the basic policy of
Case & Comment
1037
this Administration, and it will con-
tinue to be so. Executive privilege
can be invoked only by the President
and will not be used without specific
Presidential approval."
Thus, in the Kennedy Administration,
no Cabinet officer or other official could
withhold information requested by Con-
gress without the personal and express
consent of the President regarding that
information. President Johnson and
President Nixon have followed this
laudable precedent.
In addition. President Nixon has set
up an elaborate procedure which Execu-
tive branch officials must follow before
the doctrine can be invoked. The agen-
cy or department head concerned must
consult with the Attorney General as to
his desire to withhold information from
Congress. If the Attorney General re-
fuses, the information must be supplied.
If the Attorney General agrees, he just
then refers the matter to the Counsel to
the President, who must then consult
with the President and obtain his final
judgment as to whether Executive Priv-
ilege should be invoked.
Despite these limitations in the use
of the doctrine, there are m.any who feel
that any refusal of information is incon-
sistent with the Freedom of Information
Act of 1966. which prohibits the with-
holding of any information from the
Congress by the Executive. Current
controversy over foreign policy issues
has prompted suggestions that Congress
finally take the initiative and clearly
define by statutes how Executive Priv-
ilege may or may not be used.
Military .Assistance Plans
Presidents, over the years, have felt
it necessary to protect "staff papers" and
internal information which is exchanged
during the decision-making process from
public and Congressional scrutiny. The
contention is that the Executive Branch,
while it must be made to defend and
justify its decisions once they are for-
mulated, should not be required to have
Congress looking over its shoulder in
conference room discussions, where dif-
fering views and options are discussed
by Executive officials and where deci-
sions are reached.
Under this contention, Presidents have
historically refused requests for mem-
bars of their personal staff to appear
to testify before Congressional Commit-
tees, on the theory that this would be
inordinate interference with the inner
workings of the President's personal
office and staff. I do not disagree with
the need to protect the policymaking
process and the staff discussions and
memoranda which make up this process.
There is increasing concern, however,
that so much of the power of government
is becoming concentrated in the Execu-
tive, and particularly in the White House
staff itself, that there is a greater need
for Congress to be informed of the at-
titudes and decisions of officials who
are close to the President.
This concern is particularly strong in
the field of foreign affairs. Under this
Administration and in the past few, a
great deal of foreign policy power has
been lodged in the White House, in addi-
tion to the State Department. Despite
the great influence of Henry Kissinger
and his staff in foreign policy decisions,
however, the Congress and its Com-
mittees have been denied the right to
question Dr. Kissinger even in closed
sessions, because he is a member of the
White House staff.
Concern over refusal to provide Con-
gress with access to certain information
erupted into a confrontation recently
when the Senate Foreign Relations Com-
mittee threatened to cut off funds for the
Foreign Military Assistance programs
unless the Defense Department produced
its tentative five-year plan for military
assistance to countries abroad or, in the
alternative, unless the President himself
asserted the right of Executive Privilege
over this information. The contention
of this Committee was that it could
not be expected to legislate wisely unless
Case & Comment
1038
it had access to the Administration's
plans for these programs over the next
five years.
The crisis was averted when the
President, for the first time in his Ad-
ministration, formally asserted the right
of Executive Privilege, stating that re-
lease of this information to the Com-
mittee would infringe on the proper
exercise of executive powers. Because
of the importance of military assistance
policies, especially in light of the Viet-
nam experience, where a military assist-
ance program grew into a major, decade-
long war, I feel strongly that Congress
should have access to information which
reflects the Administration's best judg-
ment and plans for future assistance.
Without this kind of information. Con-
gress cannot exercise its best judgment,
and if Congress does act without it, we
take yet another step toward giving up
Congressional war powers to the Execu-
tive.
Legislative Steps to Limit Executive
Privilege
A number of proposals have been
made for dealing with the question of
Executive Privilege through permanent
legislation. The strongest bill has been
proposed by Senator Fulbright. His
measure. S-1 125, would require that any
administration official called to appear
before a Committee of Congress must,
in fact, personally appear, even if he
intends to assert that the information
sought by that Committee is covered
under executive privilege. If the wit-
ness does assert executive privilege over
all or part of the information sought
from him, he would be required by
S-1 125 to present a letter personally
signed by the President which asserts
the privilege of withholding the informa-
tion.
There are others who feel that execu-
tive privilege, since it is not specifically
covered anywhere in law or in the Con-
stitution, should be thrown out altogeth-
er, and that the Executive should never
January-Febiuiiiy, 1972
be permitted to withhold information
from Congress, no matter how tentative-
ly misleading the documents sought may
be.
While this sounds like maximum pro-
tection of the public's right to know, I
think before such a drastic step were
taken. Congress would have to show
responsibility in the protection of infor-
mation which, if disclosed publicly, could
severely endanger our national interests
or security.
My view is that the separation of
powers, and the relationship between
Congress and the President does justify
a very carefully limited doctrine of ex-
ecutive privilege. In the past, the deci-
sion as to how to use and interpret the
doctrine has been left to each President.
I feel that the current practice of limiting
executive privilege to the President
alone, and prohibiting lower level execu-
tive branch officials from asserting it
without specific Presidential approval
should be written into law.
Also, I feel that since greater and
greater power has evolved to the White
House stafT in recent administrations,
executive privilege should not be auto-
matically applied to every request by
Congress to interrogate members of the
President's staflf. Congress as the elect-
ed representatives must have access to all
information held by the Executive which
has a true and direct bearing on the
ability of Congress to wisely and fully
exercise its Constitutional powers.
Thus, I would support legislation to
limit the exercise of executive privilege
by law to accomplish these safeguards
of the public's right to know, and the
Congress' right to be fully informed of
what the Executive is doing and think-
ing.
The Freedom of Information Act
On July 4, 1966, President Lyndon B.
Johnson signed Public Law 89-487, the
Freedom of Information Act.
This new law, developed after twelve
years of work by the House Subcom-
1039
mittee on Foreign Operations and Gov-
ernment Information, was passed to pro-
vide the public with as complete access
as possible to public records and pro-
ceedings, and to prevent government
agencies from unjustifiably withholding
information. While Executive Order
10501, discussed earlier, concerns the
withholding of information which is
classified, or essential to national secu-
rity, the Freedom of Information Act
deals with non-classified information
which should rightly be open to public
scrutiny. The Act covers agency deci-
sions and proceedings, records, staff
manuals, regulations and documents
leading to the issuance of regulations
and a host of other material.
The Freedom of Information Act was
adopted to revise and improve the pub-
lic information section (section 3) of the
Administrative Procedure Act of 1946.
Government agencies, it was found, were
using this section of law to withhold,
rather than to make public, information
under their control.
The intent of the new law is that dis-
closure be the rule, not the exception;
that all individuals have equal rights of
access to government information; that
the burden be on the government agency
to show why a document should be
withheld, rather than force the individ-
ual requesting access to information to
show why it should be disclosed. The
old procedure, as set forth in Section 3
of the Administrative Procedure Act,
had placed the burden on the public
rather than on the government.
A very crucial provision in the Free-
dom of Information Act gives individuals
who are refused information the right
to seek injunctive relief in the Federal
Courts.
The Act provides for nine exceptions
to automatic disclosure, and included
under the exceptions are those docu-
ments required by Executive Order to be
kept secret in the interest of national
defense or foreign policy. Additional
exceptions are: matters related solely
to the internal personnel rules and prac-
tices of an agency; interagency or intra-
agency memorandums or letters which
would not be available by law to a party
other than an agency in litigation with
the agency; personnel and medical files
and similar files the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy; investiga-
tory files compiled for law enforcement
purposes except to the extent available
by law to a party other than an agency;
reports on financial institutions regulated
or supervised by the Federal govern-
ment; and geological and geophysical
data, including maps, concerning wells.
Periodic reviews of the Freedom of
Information Act since 1967 by Congress
and the media have found that while the
law is working better than its predeces-
sor, there are still serious deficiencies,
many of which are the same deficiencies
which existed under Section 3 of the
Administrative Procedure Act.
The Act is not self-enforcing. It needs
strong executive support and initiative
to carry out its full intent, and it re-
quires the willingness and ability of the
media and the public to seek court deci-
sions to enforce freedom of information
in specific cases.
Problems Under the New Law
On July 20th of this year, four years
after the effective date of the Freedom
of Information Act, the Washington Post
carried an article by Morton Mintz
which pointed up some very serious
problems with the Freedom of Informa-
tion Act, problems which bar the public
from viewing much of the workings of
its government.
According to Mintz" article, a graduate
student complained to his Senator (Lee
Metcalf of Montana): "At the National
Archives I was advised that 1 could
not use anything that was stamped
'Bureau of Investigation.' " The student,
who is working on a Ph.D. thesis in
history, stated he was interested in in-
formation covering the first decade of
Case & Comment
1040
the twentieth century and that he felt
"ridiculous even suggesting that the na-
tion's security could be threatened by
information seventy years past, but ap-
parently somebody does." The files to
which this man sought access concerned
pollution in the United States in the early
1900's.
Mintz also reported the hopeful side
of government information. In a court
case where the Department of Labor
cited the Freedom of Information Act as
authorization to keep secret certain in-
formation about job safety inspections
and violations, a Federal District Judge
ruled that the Secretary must provide
the information to the public. In a
similar case, the Agriculture Department
was routinely preventing public access
to records it kept on meat and poultry
products which it suspected of being
adulterated or unwholesome. It cited
the Freedom of Information Act as
exempting the material from public dis-
closure as an "investigatory file." Both
the Federal District Court and the Court
of Appeals ruled against the Department
and for public disclosure.
These are two important examples in
which the 1967 law has been effective in
freeing access to information to the
public which was withheld by the gov-
ernment before Congress gave individual
citizens the right to challenge Federal
agency secrecy in the courts.
There are other examples, however,
which point up serious deficiencies in the
Freedom of Information Act. The Food
and Drug Administration has frequent-
ly refused to make available transcripts
or other public access: to proceedings
where firms are told to show cause why
they should not be prosecuted for Food
and Drug Act violations. Several Fed-
eral Advisory Committees and Advisory
Councils have also sought to keep their
deliberations and meetings closeted from
public view.
The law also has flaws in the other
direction. Some of the exemptions from
disclosure provided for in the Act arc
Januaiy-Fehiuarw 1972
too narrow and too ambiguous, in ad-
dition to those which are too broad.
One well-known example is the inade-
quate protection in the law for legitimate
individual rights of privacy. \
Last year, 1 learned from a constituent
who was required to register with the
Treasury Department as a gun collector
under the Gun Control Act of 1968, that
his name, and 140,000 other names of
gun collectors and dealers were being
sold indiscriminately. The computer-
ized mailing lists, sold by the Treasury,
were being used by commercial firms
seeking to sell firearms to persons on
the list, to political candidates seeking
support for their legislative stands against
gun control, and to anyone else who
could produce $140.00, or one tenth
of a cent per name, to buy the list. I
surveyed over 50 Federal agencies to
learn what policy they followed under
the Freedom of Information Act where
mailing lists were concerned.
The results were astounding. Some
said the Act forced them to make all
mailing lists available to everyone; oth-
ers cited provisions of the same law
which they interpreted as prohibiting the
distribution of any mailing lists; others
had no policy at all. As a result of my
survey and the confusion over construc-
tion of the Act, I introduced a bill,
H.R. 8903, to protect individual privacy
from indiscriminate use and sale of Fed-
eral mailing lists. There are over 65
cosponsors of my bill, which has been
referred to the Foreign Operations and
Government Information Subcommittee,
on which 1 serve. The chairman of the
Subcommittee has assured me thorough
hearings will be held. Hopefully, this
aspect of the Act can be clarified and
individual rights of privacy protected. /
Congress, because it is the national
legislature, is not subject to the Freedom
of Information Act. No federal agency
may cite the provisions of the act as jus-
tification for withholding any informa-
tion from Congress. It is important that
Congress have completely free access to
1041
federally-held information, except for
that which is withheld under a carefully
defined and applied doctrine of Execu-
tive Privilege.
Recently, an attempt was made on the
floor of Congress to distort this Con-
gressional exemption from the act, and
to, by reference, extend this exemption
to a new Consumer Protection Agency,
which would be created under a bill
which has been passed by the House of
Representatives. Congressman Chet
Holifield, Chairman of the House Com-
mittee on Government Operations, and
I handled the Consumer Protection Act,
H.R. 10835, on the House floor. Both
the Chairman and I opposed an
amendment which would have permitted
the new agency to probe into the files of
other federal agencies containing infor-
mation covered by the Freedom of In-
formation Act. The amendment, known
as the Moorhead amendment, sought to
accomplish this by directing the new
agency to conduct these investigations
for the purpose of reporting the results
to the Congress. Since the information
would not be classified, by including it
in a report to Congress, it would, there-
fore, become part of a public document.
By this vote, legitimate trade secrets and
other information protected under the
act would be made public. The amend-
ment was soundly defeated 160 to 218,
but it serves as an illustration of the
need to protect the concept of the Free-
dom of Information Act both from those
who seek to use it to over-protect non-
sensitive information from the public,
and those who seek to eliminate any and
all informational controls, even those
which protect security information, indi-
vidual privacy, trade-secrets of private
industry and the like.
Amendments Needed Now
There is clearly a need to take a fresh
look at the Freedom of Information Act,
and to comb through its detailed pro-
visions in light of four years of experi-
ence with this new law.
Case & Comment
1042
The Freedom of Information Act is a
major attempt by Congress to create an
enforceable right for the public to see
the records of government agencies. It
is an important step towards this goal,
but experience under the Act has shown
that the present language falls short of
fully attaining public access to govern-
ment information.
The basic approach of the Act is very
sound. It makes all records presump-
tively available for public inspection,
with the Federal agencies bearing the full
burden of justifying any withholding of
information. This is certainly better
than forcing the individual to show some
special hardship in order to rebut a
statutory presumption of secrecy or non-
availability. The Act creates nine spe-
cific areas of exemption from public dis-
closure. This is a better way of deal-
ing with the necessity for keeping some
information secret than trying to pro-
vide for blanket areas where secrecy is
justified.
Still, administrative and judicial ex-
perience with this law have shown that
its nine provisions exempting disclosure
of certain kinds of information are in
need of significant redrafting and im-
provement. In order for the Freedom
of Information Act to be meaningful,
any exemptions must be very sharply
drawn. The current nine exemptions
are an improvement over the two which
were provided in the law before 1967,
but they are still too vague to guarantee
any real "right to know."
For example, the Act uses general
terms like "confidential" and makes no
attempt to define them. It contains two
provisions for protecting privacy without
pointing out any relationship between
the two. The exemption covering "trade
secrets and financial information" is
poorly written and can be interpreted far
too broadly. The last two exemptions
in the present law seem somewhat super-
fluous, since their subject matter is cov-
ered under other exemptions.
Of course, some ambiguity in any
January -Fehruaiy, 1972
new statute is understandable, and it is
probable that four years ago, many of
the problems that have developed under
this law were not foreseeable. Now,
however, the problems have been sharply
focused over four years of experience.
The vagueness of parts of the statute
has enabled many agencies to issue reg-
ulations permitting secrecy which take
full advantage of a number of serious
loopholes. While there is frequently
some justification in the history of the
law to support these strained interpreta-
tions, some of these agency regulations
clearly go against the spirit of the law —
the presumption in favor of public disclo-
sure and against secrecy in government.
It is true that some agency regulations
providing for the withholding of infor-
mation cite the wrong exemption under
the Freedom of Information Act, and
that at least some of the information
could rightly be withheld under one of
the other exemptions — but some agen-
cies use this technique to insure non-
disclosure by placing their records under
as many of the nine exemptions as pos-
sible.
I certainly will support efforts to re-
draft parts of the bill, to tighten up the
language of its nine exemptions to bring
them closer to the realities of disclosure
and secrecy which four years of experi-
ence under the present law have exposed.
I also will work to provide more
meaningful protection of legitimate in-
dividual privacy under the law, at the
same time that we seek to breathe new
life and new meaning into its protection
of the public's "right to know."
The News Media
No matter how successful wc are at
eliminating needless government secrecy
and untrue or misleading official pro-
nouncements, the public must, in the
final analysis, depend upon the vast news
media as the only source of all informa-
tion about what is happening both in and
out of government.
Any discussion of the quality or re-
1043
liability of the news media, including
newspapers, magazines, radio, television
and other news sources, must begin with
the very strongest endorsement of the
Constitutional guarantee of freedom of
the press. It is often tempting and jus-
tifiable to criticize those who report and
comment on the news.
Charges of inaccurate and biased re-
porting are rampant, and, considering
the vast number of pages of newsprint
and hours of broadcast news that are
presented to the American public each
day, these charges are inevitable. It
would be highly dangerous, however, to
suggest that the way to improve news
reporting in America is to subject the
media to public or government regula-
tion.
I would dismiss any and all sugges-
tions that the Federal government seek
to improve news accuracy or eliminate
the bias of certain media by placing them
under regulatory rules and policies. Any
such regulation probably would be a
violation of the First Amendment in any
event.
Once the necessity of preserving a
free press is established, however, it must
be emphasized that in any democratic
society, it is crucial that the media be
both free and responsible. Earlier this
year, a Committee of Congress cited the
CBS television network for contempt of
Congress for its refusal to produce edited
films and interviews used in preparation
of the controversial documentary, "Sell-
ing of the Pentagon."
It was charged that the network, or
at least those responsible for this pro-
duction, had deliberately failed to report
facts which would have cast legitimate
doubt about the conclusions reached in
the broadcast. Similar charges of in-
accurate and incomplete reporting were
raised against another documentary
about the slaughtering of polar bears
and other arctic mammals.
I voted against citing CBS for con-
tempt of Congress, because I thought it
would set a dangerous precedent of gov-
ernment reprisals against the free press.
Newspapers and magazines and other
printed media are, of course, subject to
no federal regulation, other than taxes,
labor standards, postage rates and other
federal laws which do not affect the con-
tent or policies of these publications.
The broadcast media, while it is subject
to licensing by the Federal Communica-
tions Commission for use of the air-
waves, which are in the public domain,
is not subject to censorship or other
regulation which would place news
broadcasts and editorials under any fed-
eral control. Because the media in this
country should never be made subject
to censorship or strict regulation of the
content of presentation, it is vitally im-
portant that the media accept the respon-
sibility which accompanies freedom of
expression.
The news media have a tremendous
and immediate impact on public opinion
in America. This gives newspapers and
radio and television stations and net-
works a major say in the decisions and
operations of government. If their pow-
er is responsibly exercised, it can provide
a very necessary and beneficial safeguard
for the people of this democracy. If the
facts which they present to the American
people are accurate and complete, and
fairly presented, the result will be a well-
informed public — a public which is well-
equipped to make the right choices, and
to form intelligent opinions about gov-
ernment decisions and government lead-
ers. If, on the other hand, the media use
this tremendous power over public opin-
ion in an irresponsible way, the results
can be disastrous. If news presentations
are incomplete or inaccurate, or if they
are continually presented in a way that
is clearly biased and opinionated, the
public will not only be poorly informed,
it will be misinformed. A misinformed
public, or a public which is needlessly
aroused by misinformation is alien to
the principles of democratic government
— where the judgment of the people
(Continued on pg. 18)
Case & Comment
1044
(Continued from pg. 16)
must be the final reservoir of political
power. If that judgment is poor judg-
ment, based on misinformation, the
democracy will flounder.
A simple example, stated from the
standpoint of a member of Congress, may
be useful to illustrate this point. Often,
the television networks present documen-
taries on troubling public problems. Im-
mediately after a television or magazine
expose on a major problem like hunger,
the military, inhumane treatment of
animals or other emotionally-charged
subjects, a Congressman's mailbox is
filled with constituent letters and tele-
grams, inquiring about the need for fed-
eral actions or legislation to correct the
problem. This is the way a representa-
tive democracy should work. But if
the media program or article contained
inaccurate or slanted information, and
if it confused opinion with fact, either
inadvertently or deliberately, there is
virtually no way to repair the damage
of misinformation. It is impossible for
government or anyone else to compete
with th^ media in terms of getting facts
across to the public. Of course, it should
not be necessary to compete with the
media, if they do their job as responsible
and reliable sources of information on all
subjects.
In order for the media to accept this
serious responsibility, it must police
itself. It must set internal policies to
assure that every possible effort is made
to present the truth — the whole truth —
to the American public. It must, where
necessary, bend over backwards to as-
sure that the listening, viewing and read-
ing public can distinguish between re-
ported facts about current events and the
personal opinions of reporters and
broadcasters.
Some Congressmen have offered a bill
to require that broadcast media clearly
label those portions of news programs
and documentaries which are really
commentary or fiction, so they can be
more easily separated from actual facts.
My inclination is to oppose doing this
by federal legislation, but I would strong-
ly favor greater attention by media or-
ganizations to assure that all news
presentations are responsible, accurate,
fair and full reports to the public about
the events of our complex world.
Conclusion
Our founding fathers recognized the
need for a free and uncensored press, a
press free to communicate and comment
on the affairs of government. They in-
corporated this principle into the First
Amendment when they wrote, "Congress
shall make no law abridging freedom of
press. . ."'
It is imperative that government, the
press and the public work to uphold this
Amendment and to maintain the free
flow of information, for this is the very
foundation of our democratic form of
government.
The criticisms I have offered here of
Executive Order 10501, which governs
oflicial secrecy, of the currently applied
doctrine of Executive Privilege, of the
Freedom of Information Act of 1966,
and of media reporting, are offered in
this spirit. Support from the legal com-
munity for the proposals I have made
for improving all of these aspects of
the flow of information to the people,
would contribute greatly to the stimula-
tion of public concern of these issues —
concern which must be evident before
Congress, the Executive and the media
will take the necessary steps to insure
and protect the public's right to know.
Case & Comment
1045
Mr. HoRTON. Thank you, Mr. Chairman, and I appreciate your put-
ting that in the record. It does have some recommendations that I
make in these various areas and I am glad that it will be in the record
so that the Members and those who will be reading these printed
records can have those recommendations before them.
Mr. Reedy and Mr. Hagerty, when does there come a time when
information which has been exchanged between the President and
those people that are working with him in a staff relationship should
become public knowledge, or do you feel that it never should become
the public's knowledge ?
Mr. Hagerty. No, I think that you have to divide Presidential ac-
tions between foreign and domestic. I think that domestically once a
final Presidential decision has been made on any problem, it should
be made public immediately. But while it is being developed, while it
is being developed within the various departments and agencies, and
until he makes that final decision, I think that there you can just say :
"I have nothing to say."
If you are talking to a press secretary, he would have to say, "I just
have nothing to say."
But, once a decision is made by the President, I think it should be
automatically released.
On foreign affairs or national security it is a little different, is it
not ? There are many times when that cannot be made public at the
present time. I think eventually it should, and I think eventually it
does.
Mr. HoRTON. Mr. Eeedy ?
Mr. Reedy. I think you have asked a question. Congressman, to
which there is no good answer. You see, the problem here is the pecu-
liarly personal nature of the President's job. This is a highly unusual
thing, you know, and the President, in a sense, is the White House, and
the assistants that have a personal relationship with him are exten-
sions of the President.
Now, I, myself, have a philosophy that all information should be
made available almost immediately, but that is really not answering
the question. That is merely an expression of personal philosophy and
does not govern others.
The facts are that the President is going to determine for himself the
circumstances under which such information will be released. He is in
a constitutional position where you really cannot touch him except
through an adversary process by "^ the Congress — an adversary process
that I do not think you could bring into the courts for a decision.
I do not think you can set up any form or standard dialogue be-
tween the President and his personal assistants should be made public
at a certain point.
Mr. HoRTOx. Well, it seems to me there are different areas that are
involved. You are talking basically in this area about the executive
privilege.
Mr. Reedy. Right.
Mr. HoRTOx. Now, a staff pei-son, such as yourself, who was a con-
fidant of the President, is perhaps to be treated differently from some-
one who is in one of the executive agencies and who is not in that con-
fidential relationship.
Mr. Reedy. Right. I agree.
1046
Mr. HoRTOx. I recognize that executive privilege does extend to
these other persons, but I believe there is a will and intent to tighten
up on executive privilege and I think a greater willingness to make in-
formation available,
I think under President Nixon, his letter of intent, makes it clear
that he intends to be at least as tough as his predecessor in claiming
executi\e privilege, and I am sure the next President will be at least
as diligent as present and past incumbents.
So, it seems to me that there is a difference as to who is involved in
the executive prixilege. Now, did you have any comment on that?
;Mr. Reedy, Yes, I think you also have to be very cautious not to get
confused between form and substance, I think about the best we can
do, and I really think it should be required by law, is to withhold ex-
ecutive privilege except in instances where it is stated individually,
by the President, in writing, and quite possibly certified by some of
the other officers, I know roughly speaking that has been the informal
agreement over the years, but it is an agreement that really has never
been fully tested.
I think it has to be forced. It is one I would rather see in the law.
Now, I do not believe the Presidents would exercise the right of ex-
ecutive privilege very frivolously if they had to do it in writing each
time. If they would do it frivolously, I do not think there is really
anything you gentlemen can do about it, but I have a feeling that there
should be some such legal requirement, and that the only way you can
get a workable answer to it is to set up a legal requirement and start
testing it and see how it works out.
You know, on this whole question of access to information or free-
dom of information, you can very easily get yourself lost by assuming
that certain Avords or certain forms have a real meaning.
For instance, my friend, Arthur Sylvester, thinks all congressional
committees should be open — that there should be no secret sessions.
Well, I have no particular objection to that except I worked up here
on the Hill as a staff assistant for very many years, I know very well
what would happen. You would have caucuses before the open ses-
sion at which you would mark up bills. Similarly, if you had a law that
required the National Security Council meetings to be open, I really
do not think that would bother a President in the slightest.
He would have open meetings of the National Security Council, but
first invite some of the people in for lunch before the meeting. There
is a certain limit beyond which you cannot push this question of pry-
ing loose information, no matter what law you pass.
Some way will always be found of withholding that information
which Government administrators think should be withheld for the
good of the people.
Mr, HoRTON. I am in accord also with the rest of your testimony
that more and more the functions of Government are being trans-
ferred to the White House, and we have been concerned about this.
For example, in another subcommittee of the Government Opera-
tions Committee where we have been working with regard to reorga-
nization, this has been one of the things that we have been concerned
about, the fact tliat most of the decisions are being made in the White
House,
1047
You indicated in the thrust of what you had to say that the White
House staff liad grown. In other words, I assume that what you
meant to say was that you could justify exceptions for the press sec-
retary and those in a similar capacity but now that the staff is grow-
ing, and this sort of thing, it becomes more difficult.
Mr. Reedy. That is correct.
Mr. HoRTON. Do you feel that there is a point at which the line
should be drawn ? I mean, is it easy to say the press secretary should
be protected, but should there be a line drawn some place past the
press secretary ?
Mr. Reedy. The line that has to be drawn is where the relationship
is genuinely a pei-sonal relationship. This is why I believe that the
only way you can get it is to place the President in a position where
he must exert this question of executive privilege individually and in
writing.
I do not know how you can define by law which man does have a
personal relationship and which man does not have a personal relation-
ship. It is obvious on the face of it that very few of the White House
assistants have a personal relationship, but the real determination has
to be made by the President himself. That is why I think that if you
required him to state that relationsliip individually, on each individual
situation, you might get a handle on it. This is a very serious problem,
Congressman. You are absolutely correct.
What we are doing is transferring all of the staff level, that is, all of
the important staff and all of the important functioning of the Gov-
ernment into one new, huge super agency that is relatively invulnerable
to Congress and newspaper attack.
Mr. HoRTON. Thank you. My 5 minutes are up.
Mr. Moorhead. Thank you, Mr. Horton.
Without objection, then, we will proceed im'der the 10-minute rule
for another round of questions.
Mr. Reedy, I want to follow up on Mr. Horton's questioning. As you
know, first President Kennedy and then President Jolinson, and then
President Nixon exchanged lettere with the former chairman of this
committee (Mr. Moss of California) setting forth the assertion that
executive privilege would be personally invoked by the President, and
in writing.
Is it your testimony that you believe that this agreement in some
form should be put into statutory language so that future Presidents
would be bound by it when they would not be bound under the existing
exchange of memoranda ^
Mr. Reedy. Yes, I do feel it should be put into statutory language.
The difficulty with a written agreement is that it lulls people to sleep,
whereas if you actually had a statute on the books, sooner or later some-
one would test it. I know of no situation in which this principle of
agreement has been tested. I know that some committee chainnen or
some group of men, if there was a statute would say, "Now, let us see
if this works,'- and they would try it.
If I could think of another definition which would differentiate for
me the assistants, with the i^ersonal relationshii^s, and the huge mass of
people that really belong in the Defense Department, or the State De-
partment, or Labor, or HEW, I would be in favor of that distinction.
1048
But, that is the only handle I can see for it, Mr. Chairman.
Mr. MooRHEAD. Thank you. Now, the problem of "backgrounders"
and "deep backgrounders'- have received a lot of attention lately to the
extent that some newspapers decided that they would refuse to partic-
ipate in backgi'ounders where they cannot name the official who has
given out the information.
From your experience, both in and out of Government, all of the
panelists, is there a value of backgrounders or is this a practice that
you cannot legislate out of existence, one that you should, or one that
you should discourage? Or is it a valuable tool that should be
encouraged ?
]Mr. Reedy. It is primarily a problem for the press, Mr. Chairman.
There is, in my judgment, an extremely narrow field in which the back-
ground definitely serves a legitimate purpose.
I am talking about the formal type of backgrounders, a meeting that
takes place in this city, and is basically a creature of World War II
where you did have delicate information which the Government
wanted to have out but for diplomatic reasons could not put out under
official auspices.
Now, that is a very, very limited range. What has happened since
then is that the thing has proliferated and has become almost a fad, and
as a fad I believe it is rather harmful to the Government itself. You
know, things do run in fads in this city. People do not necessarily do
things because of carefully calculated reasons, and there are many
Goverimient administrators that I believe are attracted to the back-
grounder the same way that they might be attracted to the latest de-
odorant, or the latest in fashion or dress, or something of that nature.
But, I do not think there is anything you gentlemen can do about it. I
think the press for the time being should get very hardnosed about it.
They can stop it. Over a period of time I think we will establish an
equilibrium and that the backgrounders will be used then for a legiti-
mate purpose.
Mr. MooRHEAD. Mr. Sylvester.
Mr. Sylvester. I think, Mr. Chairman, there is a distinction be-
tween the backgrounder organized and initiated by Government to get
across a point of view, and a backgi'ounder initiated by a newsman with
the head of a department and a selected group. If they are sophisticated
enough it is a very, very valuable thing on the basis of my own ex-
perience here in Washington from 1944 to 1961.
The British who are magnificent at this, have a sophisticated group
to work with. They go into an international meeting where everybody
agrees nothing will be said. But the British, and even more so, the
French, will murder the United States in the sense that they tell their
story before ours is told, and it may be to our disadvantage. The Ger-
mans were also doing that and still are.
Mr. MooRiiEAU. Mr. Ilagerty ?
Mr. Hagerty. I do not know what they mean by deep background.
This is a tei-m that has been invented since I left the Government. They
have other phrases, too.
But, I do think that backgrounding forthe news media, many times
at their reciuest, is very helpful to tiiem, not necessarily for the story of
the day, but if tliis liappens, this is the background of what is going to
be developing during the evolution of a problem or an action.
1049
I had no trouble, really, when I was down here with this, with the
newsman. And I never had, in the course of the 8 years I was down
here, anybody break a confidence, which is another question. But this
deep back^-ound and particularly what is done in the WHiite House
pressroom with tape recorders, now, is ridiculous. Everybody knows
who is giving the backgrounders. I really think that it is greatly
overdone at the present time and I cannot understand, also, why the
news media doesn't object. Well, indeed, they are taking various stands
on this now.
However, under the way the news media and the Government works,
if an individual goes into that backgrounder, I think he is bound by
the rules of that backgrounder and cannot change the rules in the
middle of the ball game. This is another problem from the joress point
of view, or the news media point of view. I found when I was hei^
that it was very helpful to the news media to have infrequent back-
grounders. It is certainly very helpful, and I think George and Arthur
would agree with this, particularly if your President is overseas where
you have a backgrounder with the American newsmen that are
with him.
The other countries, many of them, when I was there, they didn't
have backgrounders. They just put it out, even though there was an
agreement not to. And you have to, for your country, for your news
media, keep them informed the best you can, and many times you do it
with backgrounders and you are not quoted.
But, this new thing of deep background, and other things I do not
understand. I don't think anybody else does, either.
Mr. MooRHEAD. Do you gentlemen believe that there is certain infor-
mation which cannot be made generally public but which should be
made available to Membere of the Congress who have to establish poli-
cies and legislation for the United States.
Mr. Hagerty. Yes; I think very much so, and this is one of the
things that we have not touched on.
And again, I can only speak for the President that I worked for,
but during the 8 years that I was with President Eisenhower, he had
regular meetings with the congressional leadership on both sides.
Usually it averaged about once a month, where the leaders of the Con-
gress would come down, and they would just sit and discuss these
matters.
Again, this was the way he happened to work. It was based not
only on respect for the Congress, but as you gentlemen know, ISIr.
Sam Rayburn, and Mr. Lyndon Johnson, who were the Speaker and
majority leader, were personal friends as well as INIembers of the
Congress.
And as I say, about once a month, pretty regularly, the leadership
of the Congress came down and discussed these matters. I think a
President should do it a lot more and then, of course, there are other
committees, Foreign Affairs Committees, and Military Affairs Com-
mittees, where the Government does go in and informs the members
of those committees, not necessarily the full membership of the
Senate or the House, where they keep those committees involved
informed on a private or secret basis in many instances, of the affairs
of the Government.
76-253 O - 72 - pt. 4
1050
So, I think at least the President I worked for made a very conscious
effort to keep the Congress and its leadership informed of what he
was thinking and what he was going to do.
Mr. MooRHEAD. ]VIr. Sylvester?
Mr. Sylvester. Mr. Chairman, the interesting point, I think, is that
Mr. Hagerty worked for a military officer who supposedly is one of
the worst sources of information, whereas we have had three suc-
cessive Presidents from the Congress and you gentlemen say that
things are in a pretty bad way. It would seem to suggest that some-
thing happens to them after they leave this wonderful Hill and go
down into the valley. They have an entire change of attitude.
Instead of taking the views that you do, they are causing, appar-
ently, the troubles that you are discussing here. Is there some relation-
ship? Does that happen to people from here?
Mr. ]\IooRHEAD. I do not think any of us have ever gone down to
the valley, and that is one of the reasons I had hoped to have Mr.
Salinger here, who at least had experience on Capitol Hill, so that
we would see what the situation would be.
Let me ask 3'ou: How valuable is the press conference, and how
much of it is actually managed ahead of time, with planted questions
and already prepared answers, and how often should they be held?
Mr. Reedy. In the first place, I do not think you can get into any
question of how often they should be held. The President is always
going to determine that, and I do not think there is any way in the
world that you can comj)el him to hold it four times a month, or
two times a month, or six time a year. The press just will have to chip
away if he is not holding enough of them.
As far as the management of the conference is concerned, I do
not intend to speak for any administration, other than my own, but
I think from time to time efforts are made to manage them delib-
erately and I think they usually wind up in a fiasco. You know,
planted questions look like planted questions.
But I think that there is a form of management that comes out of
the format itself. This has nothing to do with any conscious plan or
any conscious design. If you are in television, that means you are
limited to 80 minutes because the television time slots are there. The
end of 30 minutes that is the end of the press conference.
You have about 350 to 450 people at a conference. That means there
is no chance for followup questions because every reporter in the room
has a question he just has to ask. ITnder those circumstances, I think
the President has a tremendous advantage over the press.
I dou])t whether very mucli comes out of a press conference that
would not come out of a formal release.
But, I think the real value of a Presidential press conference, and
this I think is tremendous, is that it gives the American people an
opportunity to see how their President reacts under questioning, and
this really is in one sense more important than the information.
After all, information is something that changes from day to day.
What people really want to know is what kind of a President have
they got, and how does he react under pressure ? For that reason I
think that a press conference serves a very valuable purpose, but not
from an information standpoint.
1051
Mr. Hagerty. I would be inclined to disagree slightly with my
friend George on this, and again speaking only for the President I
worked for. He felt, and I know his staff felt that the press confer-
ences were very valuable to the President, and that they should be held
with fairly decent regularity.
It did two things. It permitted the President to give his points of
view, philosophy, actions, thoughts on the major questions of any
given week.
But, it also gave him and his staff a pretty good cross section of the
questions which were being asked by the press which were concerning
the American people throughout the country. The only thing that we
struggled Avith for the 8 years was the lack of followup questions.
But, I blame that on the news media and not on the President. There
were many times when he would be discussing a major problem and
the next question on the floor, rather than continuing that question,
would ask about the price of beans in Ohio. That was not the Presi-
dent's fault. He was there, willing and able to discuss these matters.
And if they are not followed up by other questions, I do not see how
you can blame it on the President. I think some of the onus has to be
on the newsmen for not following up these questions when they do not
think the answer is fully given by the President, or they have ques-
tions that they would like to follow up.
And, we hoped many times that there would be followup questions.
We also hoped many times that the important questions of the day
would be asked at the press conference which the President was pre-
pared to answer, but which were not asked by the news media.
Mr. MooRHEAD. Thank you.
Mr. Reid.
Mr. REm. Thank you, Mr. Chairman.
Mr. Reedy and Mr. Hagerty, I would like to have you address your
attention a little bit to the premise relative to executive privilege.
Both John Moss and I, as coauthors of the Freedom of Information
Act, never believed that there was necessarily an implicit or inherent
power of executive privilege. At least we have never believed it was
sweeping 'and all encompassing.
By that we have felt that we are dealing here with coordinated
branches of the Government, that the Founding Fathers never in-
tended for our country to have a man, one-man government, but an
equal balance, if you will, between the legislative, judicial, and
executive.
Now, the Constitution is fairly clear, I think, that the Congress
shall have power to lay and collect taxes, duties, et cetera, to declare
war, to make all laws which shall be necessary and proper for carrying
into execution the foregoing powers.
That is to say, there are certain rights under the Constitution given
to the Congress, and I do not believe, even though you might maintain
that there is an executive power of privileges, that it reaches to the
point where the executive has the right to deny information to the
Congress that is central to the Congress' constitutional and legislative
purposes. You have both, I think, addressed youreelf to the position
of the assistant to the President, and the Staff member, and the con-
fidential relationships between those individuals and the President,
1052
or to internal memos that are central or, indeed, I mentioned telegrams
from Ambassadoi-s and Chief of State. But, do you believe that the
right of the executive privilege, if you believe that it is a sweeping
right, extends to the point where the executive can withhold from
Congress information that is absolutely central to a clear legislative
congressional purpose ?
And I wish you could comment on the premise, how you think this
matter can be addressed. I recognize that you have to get an accom-
modation and a balance. But, I do not think that we can continue with
an imbalance where almost to a man the members of the Senate and
many in the House believe that information is central to decisions on
Vietnam, as one case, where definitely it was withheld, infonnation
that was absolutely crucial to a sound congressional judgment.
Mr. Reedy. Congressman, the problem is, in a very strict key word —
the word "right.-' We usually, I think, use the word a little bit too
loosely, without recognizing that it has a number of meanings.
There are legal rights, the right to a trial by jury, the right to habeas
corpus, and that sort of thing, and those are ai3So]ute rights, and they
are absolute because they are enforceable.
But, "right" in another sense means what can be done and what can
not be done. We do not live under a military system by which the Chief
Executive is picked by the legislative body. Our system is that we
have a separate constituency for the man in tlie White House, a separate
constituency for the men on the Hill. They may be the same people, but
they vote different ways.
I would prefer a system where the Chief Executive was fully,
absolutely accountable to the Congress. I think that this separation,
this absoluteness has caused some very major difficulties in our whole
society, and I think it is leading to many of the situations that you
described. But, we also have to deal with what we have. Whether the
Constitution does or does not recognize executive privilege, it has set
the President up in a position where you cannot subpena him and bring
him before your committees, and j^ou cannot secure papers he will not
give you.
Consequently, I think you have got to somehow get at the thing by
trying to differentiate between his personal assistants, because if you
do not get him you are not going to get them, I don't care what laws you
pass.
So, you have to differentiate somehow between the personal assist-
ants and the personal papers, and the problem is this struggling
mass
Mr. Reid. If T may interject, what I am dealin<r with is a benchmark
policy decision, central to congressional responsibilities. I am not talk-
ing about peripheral decisions, or tactics or internal staff work or con-
fidential material. But, would you maintain that the Executive has the
right to deny the Congress, and leave aside the form of transmittal,
information that is central to the Congress clear responsibilities?
Mr. Reedy. When you ask the question in that form. Congressman,
of course he does not have the right to deny Congress information,
subject to its ability
Mr. Reid. T^t me ask a second question.
Mr. Reedy. But, tlie form in which you are asking the question.
Congressman, does not quite accord with the reality of the relation-
ship between the Congress and the President.
1053
Mr. Eeid. Well, I can tell you the reality, and we have had a study
made by GAO which shows a whole series of cases where either in-
formation has been withheld on the grounds of executive privilege, or
on the ground that it was not proper to forward it, or there have been
interminable delays, and some of this information has been clearly
central to the legislative function of the Congress.
Let me go to another ground. Do you believe, Mr. Hagerty, that the
Government should have a right to prior restraint to the right to
publish ?
Mr. Reedy. Definitely not.
Mr. Reid. I am glad to hear you say that. Is that your judgment?
Mr. Hagerty. It certainly is, sir.
Mr. Reid. Do you believe there should be acknowledgment of news-
men's privilege which would basically protect the supenaing of re-
porters' notes except under the most serious consequences ?
Mr. Reedy. Yes, sir.
Mr. Reh). Do you agree with that ?
Mr. Hagerty. I agree very much in principle. I am not sure you
can write legislation. Now, I am talking from my own company's point
of view. We would refuse to give out takes on material we do not use
on the air or our reporters' notebooks or anything else, and we will
maintain that position.
But, in principle I agree with you.
Mr. Reid. Let me put the question another way : Do you not believe
that first amendment rights are clearly applied equally to radio and
TV media as they do to the printed media ?
Mr. Hagerty. Oh, yes ; indeed.
Mr. Reid. To me there is no distinction, and I think the action of
the House in trying to deal with Mr. Stanton was a very iniproper
intrusion of first amendment rights that should be protecting the
media that you have the honor to represent.
Let me ask you one final question on this : Are you concerned about
the tendency to use the licensing power by the appropriate agency to
intrude into questions of content ? The instant matter, of course, was
whether a radio station and the TV networks should use certain songs
that had drug lyrics. I was concerned about that because they seemed
to be reaching to confront not the questions of the fairness doctrine
or the geographic distribution of the various radio stations.
Mr. Hagerty. I think it should be discussed on that very specific
question. Our radio stations, on their own initiative, do not use some
of these songs that had a lot of drug exhortation in them. But, we
did it ourselves. I certainly think it should be discussed publicly with
Members of the Congress. And, indeed, we did discuss it with quite
a few Members. . .
Mr. Reid. Well, like the Federal Communications Commission say-
ing they do not like something as distinguished from something gen-
erally accepted as the fairness doctrine and the broad public interest.
But, to go beyond that into another area as to prescribe certain kmds of
programing.
Mr. Hagerty. Well, Mr. Reid, you know that there is a long answer
that I could make on these thiuirs, but it boils down to this : That on
license renewals, the FCC makes the final decisions on whether we get
our license renewed or not, and we have to base that license renewal on
1054
the conduct of our station, as it has operated in the public interest,
and evei'^'thing else.
And I think all of us in the business are quite aware of this, and take
actions ourselves within our own stations.
Mr. Reid. Yes, I understand. Could I ask just one other question,
and I thank the chairman for his indulgence. I think you have accurate-
ly and articulately, if I may say so, described the problem of access to
the White House, and to classified material, and knowing what in-
formation there is. And as you are well aware, I do not think there has
been an administration in town in recent years which has not upon oc-
casion leaked top secret material which when it was placed in a favor-
able light generally raised no objections, but if similar material got
leaked that put it in an unfavorable light — in other words, a double
standard.
What do you believe is the fairest way to work out an accommoda-
tion that I think the Nation deserves and requires between in essence
the White House and the Congress, so that there is an appropriate
flow of information, because quite clearly there is a major shift of
agencies into the White House. You cannot query Mr. Kissinger, and I
am not suggesting that you should.
But, there are matters that now are determined there that you cannot
get but once could, from the State Department. How would you agree
about what to do on that problem ?
Mr. Reedy. I think that somewhere some legal intelligence has to
be devoted to making a distinction between those members of the White
House staff that can be called before congressional committees and those
that cannot.
The only course I have thought of so far is forcing the President to
exercise executive privilege in w^riting on separate occasions. But quite
possibly ingenious legal minds can design some others that will be far
more effective.
The problem lies in the distinction. Congressman, and it is a terribly
difficult one.
Mr. Reit). Let me ask the distinction a little differently. Leave aside
the individual. Does the Congress have a right to a full, fair and ac-
curate briefing, in secret, if that is required about national security
on the Gulf of Tonkin, for example, before that resolution is enacted?
Mr. Reedy. Yes; I think from a moral standpoint there is no ques-
tion about it. "Wliat worries me is the practical way in which you can
get at it.
Mr. Reid. I am talking about the exchange of information, not the
individual who should clo it, but whether the Congress should be in a
position of having to enact in this case a fundamental policy decision
wiiich was subsequently questioned.
Mr. Reedy. I understand, Congressman, and my response is that I
think Congress had a moral right, and I think it would be helpful for
the state of the body politic if the Congress not only had the moral
right but had the capacity to compel it.
My problem is : How do you compel it?
Mr. Reid. Thank you.
Tliank you, Mr. Chairman.
Mr. MooRirEAD. Mr. Horton.
Mr. HoRTOx. Mr. Chairman, I only have one or two questions.
1055
]Mr. Sylvester, in your position in DOD, did you encounter situa-
tions where you found information that you made public that was
not accurate information ?
iNIr. Sylvester. Was not accurate ?
Mr. HoRTOx. Right.
Mr. Sylvester. I can think of one which I learned about afterward.
Mr. Hortox. What did you do ?
Mr. Sylvester. The instance I am talking about
Mr. HoRTON. I was not talking about an incident. You can tell it if
you like.
Mr. Sylvester. Yes, I have found cases. It went, for instance, to the
question of the number of pereons who were killed in Vietnam. It
seemed to me fundamental that that record should be complete in all
categories. When I got into it, it was not quite as simple as I thought.
There was the question of men taking off from carriers for an attack
on the mainland who went into the drink. Were they casualties of
the Vietnam war or were they not ?
I discovered that the Navy did not consider them war deaths. But
I felt very strongly and knew from experiences that I had had that
the Department of Defense could not tell their parent that they were
not victims of the Vietnam war. They would not be there if it were
not for the war. Eventually we did have those deaths included in the
casualty lists.
Now,"^ you asked for an example, and that is the one that comes
quickly to mind. But it was not the result of evil intention. It was a
result of the system of reporting and classification whether you died on
the battlefield, or whether you actually died over a target, or whatnot.
ISIr. HoRTON. What about the cost of the war and budget deficits?
Mr. Syl\t:ster. I have never been impressed by any figures on
budget, about the cost of anything. I think they are highly relative,
and they are always less than they turn out to be. I would never have
believed any of the figures that have been given out, not because they
were given out viciously, maliciously, as bad figures.
I did not know, and very few people, if any, knew- because you
got into a hea\^ discussion of what you included in the cost of the
war.
Mr. HoRTON. From your experience, do you feel that there has been
a lack of information made available to the Congress and to the public
with regard to the cost of the war — and budget deficits.
Mr. Sylvester. Your question was : Do I feel there was a lack of
information available on the cost of the war?
Mr. HoRTON. Well, the question that I have is do you feel that there
was an inadequate reporting to the Congress and to the public?
Now, there are two different things. One is to the public and one
is to the Congress, and especially to the Congress in the light of the
questions that Mr. Reid was just asking. Do you feel that there was
inadequate information made available to the Congress and to the
public with regard to the cost of the war so that the Congress did not
have all of the information available upon which to make judgments
and decisions?
Mr. Sylvester. Well, I assmne your questions must be addressed
to the Appropriations Committee.
1056
Mr. HoRTON. No, no. I am asking with regard to the Department
of Defense and the type of infonnation you gave. I mean, you had
this infonnation available if you wanted to get it.
Mr. SYL^T.STER. At this date I can say I wish I had all of that
infonnation, but I do not believe anybody did.
Mr. HoRTOX. Why didn't you have it?
Mr. Syl^tster, Well, that would take us into a completely differ-
ent hearing, but the basic reason is that there were so many costs which
were arguable with the Department, whether they were costs of the
war.
Mr. HoRTON. Shouldn't the public have a right to know about what
went in to make up these costs? The point I am getting at is there
seems to be a lot of ambiguity about cost and where it comes from,
and you camiot always g&t that type of infonnation from the
executive.
Now, should there not be some way that the Congress can get that
type of infonnation so it can make its own judgment, if you will?
Mr. Syl\tester. I would certainly think that the Congress would
have both the responsibility to get it and the right to get it. I find
that ill tiying to find out what the costs are in a corporation statement
can be very misleading and vague, so when you get into something
like the Vietnam war I would start out with the theory and the basic
suspicion that the costs were going to be from what you judged them
or A, B, and C, judged them.
But, basically if you are asking me if the Congress had the right
to find out what the costs are, I would say that the Congress has the
right to get it, and to find out. A lot of the questions that the Con-
gressmen ask are not very well put, or very well backgrounded, and
I realize it is hard work to be a Congressman.
I cannot imagine, as a newsman, sending someone to this commit-
tee to get a story that I could not get myself.
Mr. HoRTON. One of the problems I think we have in the Congress,
and I want to mention it here now, one of the problems in the Congress
is that we have very inadequate staff, even on committees. We just have
a handful of people. The Department of Defense, the President's Of-
fice, the executive agencies have literally thousands of people, the
most up-to-date information available, the most up-to-date equip-
ment available, and everything else, at their disposal.
And we are severely handicapped in obtaining essential informa-
tion. That is why I feel it is so important for the Congress to not have
any obstacles in its way to get the type of information that I am ask-
ing about here, and that the othoi- Members have referred to, because
we just do not have the numters of people, the sources available or
the techniques or the modern equipment to get that type of informa-
tion. And literally you are sitting with a group of Congressmen who
are doing what they can, individually, to try to get all of this mass
of information.
Now, if we could have the availability, it would make a lot of dif-
ference and, of course, when you have to fight to get the type of in-
formation, it is a problem.
For example, it is a question of who you can ask. Mr. Hagerty
stated a moment ago that he wished at some time that they had asked
questions because the President was prepared to answer.
1057
Well, a lot of times the Congressmen do not ask just the exact ques-
tion with the exact language in it, and so the executive is able to hedge,
if you will, or get around direct answering of that question.
That is one reason why there is the contest between the executive
and the legislative to get that type of information upon which we
can make good decisions. And that is why we are trying to find out
how we can obtain it.
Now, have you got any ideas about how we can go about getting that
type of information?
Mr. Sylvester. I would say, one, I have not got any ideas. I
think one of the difficulties you have is the division between the major
party in Congress and the man in the "Wliite House. I think it com-
plicates the problem. I was amazed at the time I was in Government
at the tremendous capacity of your staff, small as they are. Maybe
they do a better job than the staff at the White House because they do
it more intensively, and they investigate well, and they are pretty
well informed, and they really penetrate you.
It has been my own observation about congressional committees,
when the word gets around that you are going to investigate some-
thing in an executive department, then everybody really has a most
unhappy time.
If you really want to cause trouble, if you really just want to pass
the word around that you are going to look into it
Mr. HoRTON. Then the material really starts going underground,
then.
Mr. Sylvester. You also have all sorts of people down in the De-
partment of Defense that have this information, and whether they
are working for Defense or for you is always a question. But, seri-
ously, you have a tremendous power, and I was always amazed at
how worried, particularly career people, were at the idea of a con-
gressional investigation, and I always felt that was great.
Mr. HoRTox. Mr. Chairman, I would just like to say that I think
we have had some outstanding testimony from each one of these gen-
tlemen. It has been a very diversified type of testimony, involving
many different areas : Freedom of Information Act matters, the public
right to know, and many others. It has been an effective presentation.
We could go on asking questions for the rest of the day, but I do
want to take this opportunity to commend each one of the participants
on this panel for the information they have presented on this very
important question.
Mr. MooRiiEAD. Thank you very much, Mr. Horton. I agree with
you. I think this is one of the first times in my experience with the
Congress where we have had people who could discuss the relation-
ship between the executive and the Congress, and particularly with
the experience of service in the White House and service at the de-
partment level, and it is a subject that has never been resolved under
our Constitution and probably never will be. But, I think that viewing
it and discussing it in this fashion, with no partisan motives, is a
very helpful thing.
I have a few questions on the operation of the Freedom of Informa-
tion Act, which I should like to submit, particularly to Mr. Hunter
and Mr. I^wis and Mr. Sylvester. Mr. Lewis suggested in his tes-
timony that those less encumbered than others with program respon-
1058
sibilities and relationships be brought more authoritatively into the
decisionmaking process of whether to reveal information. Do you thmk
that the primary responsibility for the decision to release niforma-
tion should be on the part of the public information officer m the
various departments and agencies ?
Mr. Lewis. Mr. Chairman, I very definitely feel that this is where
the greatest measure of responsibility should be. It has always seemed
to me a bit incongruous for the people who are directly involved in, or
who have a direct responsibility for the administration of progranis, to
also have major responsibility for making FOI decisions. Such a situa-
tion can embrace many factors, including requests for information that
may be embarrassing at times, or which may have an effect on a group
being worked with outside Government, for example. Without an un-
biased approach you cannot always get, in my estimation, a well-bal-
anced picture of what is involved in the information request and how
best it should be handled.
Information people are by the nature of their training and in the
performance of their job, more sensitive, I think, to the general needs
of the public than are technical and administrative people.
They work every day with the media people, and know better the
impact of what is going to happen, either good or bad, based on how an
information situation develops.
Public information people, at least the ones I worked with, were
sympathetic toward the law and its goals. I had a general overall au-
thority for the coordination and direction of information in the De-
partment, and that was related to the work of the agency information
people. I worked with them very closely on this matter, educationally
and otherwise, to support the law.
But, I think it is fair to say that since you are working for the boss,
you have got some handicaps, without adequate decisionmaking au-
thority.
Mr. MooRHEAD. Mr. Hunter, do you agree or disagree ?
Mr. Hunter. I agree with Harold. We made tlie decision fairly early
in HEAV that the principal responsibility for the administration of
this act would lie witli public information people, on the basis that
Harold has mentioned.
Their experience in dealing with the media, their general sympathy
with the idea of getting information out of their agency and to the
public, made the choice inevitable.
And I think the other thing we did is we restricted denial authority
to a vBiy few people. I think when it is diffused, the larger the diffu-
sion that you make within the agency, the less likely you are to find
a ]a.w operating the way it should. If you specify denial authority
and give it to someone, put someone on the s^wt to make the decisions,
then you have a chance to advance the law more effectively.
I think if we had success in HEW, it is attributable, as I indicated
in my statement, to these factors. I had the primary authority for the
Department, overall, for the administration of the act, and worked
closely, of course, with members of your committee in doing so. Legal
counsel is essential, of course, and I was fortunate in having excellent
advice.
Mr. MooRHEAD. Mr. Sylvester, do you agree with that, and partic-
ularly whether you think there should be centralization within a de-
1059
partment of responsibility for administering the Freedom of Informa-
tion Act, and generally getting inf onnation out to the public ?
Mr. Sylvester. On that simple question, yes^ very much so. However,
I think we are overlooking an important element, and that is that in-
formation is a rather innocuous word in itself.
But it has a tremendous djaiamic political effe<3t, or may have, not
because it is right or wrong, but just because it is, and since there is a
political government, and every 4 years the head of that government is
going to offer his stewardship to the people for approval — information
has an impact on those people and it will be used this year with that
knowledge.
Mr. MooRHEAD. Well, we have got the proposition now that there
should be centralization within the departments and agencies of the
public information function, and I would like to ask Mr. Reedy and
Mr. Hagerty, should there be governmental centralization and coor-
dination of information within the White House ?
Mr. Reedy. No.
Mr. HLagerty. No.
Mr. MooRHEAD. Is there any danger in that ?
Mr. Hagerty. It just does not work. Now, of course, on the majoi
problems, issues, questions from the White House to the various depart-
ments, 3'es. Then I stayed very closely in touch with my opposite mem-
bers in State and Defense. But, to try to coordinate the various branches
of the Federal Government on what they are putting out, forget it.
You just cannot do it, and I was responsible, George was responsible
for these statements, announcements, actions from the President, and
you have to assume that in the major problems the other departments
are reflecting that, too.
But, to try to coordinate them on a daily basis, it just could not pos-
sibly be done.
Mr. Reedy. I would like to just add something to that, Mr. Chair-
man. Obviously, any "White House press secretary with any sense is
going to keep in touch at least with the principal information officers
of the Government. But, if you were ever to establish as a principle
that information would be coordinated in the White House, I think you
could forget freedom of information and access to information, and
everything else. The way the public really does get a break is that
the Government is so huge that frequently the left hand does not know
what the right hand is doing, and that is the way the public learns
something from time to time.
I think that is the worst thing you could do, is to require such a co-
ordination.
Mr. MooRHEAD. Mr. Hunter.
Mr. Hunter. I would like to make sure the distinction is made. I
was talking in this instance of authority under the Freedom of In-
formation Act. From my own experience in Government I certainly
would agree with Mr. Hagerty and Mr. Reedy that there is an im-
possibility of complete coordination. It is difficult enough within our
own department. My reference was made simply to the authority
under the Freedom of Information Act.
Mr. MooRHEAD. I think the record is pretty clear on that.
Would you gentlemen be willing to answer questions in writing
by members of the committee, which we might submit to you ?
1060
:Mr. Sylvester. Yes, Mr. Chairman. May I just say that I disagree
with these gentlemen? Actually I did not work with or under Mr.
Hagerty, so I cannot speak about him.
I had a very happy relationship with Mr. Keedy and under Presi-
dent Kennedy, and actually you do have to have a coordinated system,
you do have to know what each department is going to put out. Not
every little piece, but there are things that go on in the White House,
and programs and plans that the President has underway which can
be very badly damaged or put askew if I at Defense or somebody in
State releases some given information at a time that louses everybody
up.
When I was in the Defense Department we were expected to give
the ^¥[ute House in advance a list of the main things that we were
going to put out in the week ahead. I do not see how you can operate
a government without that, and I think this new job Mr. Klein has as
Director of Communications — I do not know how it works or how
he can w-ork it outside the White House — is basically Avliat the Govern-
ment needs. It is very important to have a coherent system so when
this Government speaks it speaks with one voice, responsibly, so the
people can then hold it accountable.
And if everybody is yakking, then nobody is responsible.
Mr. Reedy." I want to make the additional comment that what Mr.
Svlvester is talking about is no different from what I said. Obviously,
if the White House Secretary has any sense, he is going to keep m
touch with Mr. Sylvester and the rest" of them. What I would object
to is a policy or rule of law, because once you get one of those things,
you are going to start down the road. Just leave the people alone with
that one, and you will get enough coordination without having to enact
a policy or law.
Mr. "Hagerty. And I thought I covered that, too, on what I said. In
the major problems, of course, we stayed in touch with the depart-
ments and the different people in the public relations field. But, not
on the usual daily releases that the departments are turning out by the
barrel.
]\rr. Moorhead. Yes.
Mr. Lewis. I generally sup]wrt what Mr. Reedy and Mr. Hagerty
indicated about this. On the basis of our experience, if you had a
sensitive or important matter and did not get it over there, why you
could hear about it and should, of course.
But I think that the coordinating function at the "^^Hiite House
has two dimensions. One is the political, and the other is concerned
with the "career phase" of information. How successful such an oper-
ation is in terms of what goes out to the people and how well it holds
their confidence, is dependent on how you weld the two together or
kee)) them apart, and that's very difficult.
Mr. Moorhead. Well, gentlemen, it is the second call of the quorum.
I want to thank all of you very much.
I think this has been a fra,nk exchange between the executive or
former executive and the Congress, which should be encouraged, and
in the future I think we have learned a little bit about the internal
oi)ei-ations, but partifularly the AMiite House and the departments,
and this will be of help to the committee in its further deliberations.
1061
I should like to announce that tomorrow at the hearings we have
scheduled a panel of legal experts on the Freedom of Information Act :
Mr. Frank Wozencraft, attorney from Houston, Tex.
Mr. Anthony L. Mondello, General Counsel to the U.S. Civil Service
Commission.
Mr. Richard B. Wolf, deputy director. Institute for Public Interest
Representation at Georgetown University Law Center, and Mr. David
Parson, chairman of the Committee on Government Information of
the Federal Bar Association.
I should also like to announce that former Justice Arthur Goldberg's
appearance scheduled for Thursday had to be postponed to a later date.
The subcommittee now stands adjourned until tomorrow morning
at 10 o'clock.
Thank you, gentlemen.
(Whereupon, at 12 :80 p.m., the hearing was recessed, to reconvene at
10 a.m., Tuesday, March 7, 1972.)
U.S. GOVERNMENT INFORMATION POLICIES AND PRAC-
TICES—ADMINISTRATION AND OPERATION OF THE
FREEDOM OF INFORMATION ACT
(Part 4)
TUESDAY, MARCH 7, 1972
House of Representatives,
Foreign Operations and
Government Information SuBCOMMirrEE
OF THE Committee on Government Operations,
Washington^ D.G.
The subcommittee met, pursuant to recess, at 10 :20 a.m., in room
2154, Raybum House Office Building, Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present: Representatives William S. Moorhead, Bill Alexander,
Ogden R. Reid, and Frank Horton.
Staff members present : William G. Phillips, staff director ; Norman
G. Cornish, deputy staff director; and William H. Copenhaver,
minority professional staff. Committee on Government Operations.
Mr. Moorhead. The Subcommittee on Foreign Operations and
Government Information will please come to order.
For the second day in the current series of hearings on the status of
the people's right to know the facts of government, the Foreign Op-
erations and Government Information Subcommittee has called upon
la^vyers who have given careful thought to problems involved in the
Freedom of Information Act.
Yesterday I announced that former Justice Goldberg was originally
scheduled to appear before the subcommittee on March 9 and. had
requested to have his hearing postponed. It is now scheduled for
March 21 at 10 a.m., in room 2247.
The subcommittee also has called upon specially qualified research
experts at the Library of Congress to prepare background material for
this hearing. The American Law Division of the Library's Congres-
sional Research Service has digested the significant court decisions of
the past 4 years under the Freedom of Information Act, comparing
those decisions to a memorandum which the Department of Justice
prepared to explain the act when it became effective on July 4, 1967.
A comparison of the Department of Justice memorandum to 4
years of case law interpreting the Freedom of Information Act in-
dicates that the memorandum is out of date.
The Department of Justice memorandum, issued June 1967, was
designed as a working basis for all of the other agencies of the execu-
tive branch of the Federal (xovernment to set up regulations imple-
(1063)
1064
mentuig the Freedom of Information Act. It was a starting point,
and definitive interpretations of the provisions of the act were to await
court nilings.
We have those court nilings — more than 100 cases, with one-third of
Iheni ruling on significant issues — but the Department of Justice has
not revised its memorandum to reflect the case law.
The courts have moved toward a definition of how "identifiable" a
public record must be to fall under the Freedom of Infonnation Act.
The courts have touched upon the "fee" which agencies may charge for
finding and copying public records. But the Department of Justice
has not revised its memorandum on these subjects.
The case law has narroAved the interpretation of "personnel rules"
which may be a basis for withholding public records, but the Depart-
ment of Justice memorandum has not reflected the narrower inter-
pretation. The courts have unanimously rejected the Government's
argimients that all confidential and financial information need not be
made public, yet the Department of Justice memorandum still permits
any kind of confidential infonnation to be A\athheld from the public.
And the memorandum's interpretation of "investigatory files" and of
"internal memoranda" does not adequately reflect the current court
decisions.
We plan to discuss this problem later in the week with representa-
tives of the Department of Justice. Today, we hope to get some addi-
tional background on the problem from lawyers with special knowl-
edge in the field.
They are Mr. Frank Wozencraft, of the Texas bar, a former Assist-
ant Attorney General who participated directly in the drafting of the
1967 Department of Justice memorandum; Mr. Anthony Mondello,
formerly of the Department of Justice and at present the General
Counsel of the Civil Service Commission ; Mr. David Parson, chairman
of the Government Information Committee of the Federal Bar As-
sociation, and Mr. Richard Wolf of the Institute for Public Interest
Eepresentation of the Georgetown University Law Center.
We had intended to hear the witnesses in that order, but m view of
the fact that some of the members are not yet present and only Mr.
Wolf has a written statement, I have suggested — and ha\-e gotten the
approval of the other witnesse^that we start with Mr. Wolf so that
as the members arrive they will have a written statement to review.
I ask you, Mr. Wolf, to start off the witnesses' presentations.
Mr. Wolf. Thank you, Mr. Chairman.
STATEMENT OF RICHARD WOLF, ON BEHALF OF GEORGETOWN
UNIVERSITY LAW CENTER'S INSTITUTE FOR PUBLIC INTEREST
REPRESENTATION
Mr. Wolf. On behalf of Georgeto\Am Univei-sity Law Center's In-
stitute for Public Interest Representation, I appreciate the opportu-
nity to present to the Congress some of our concerns with the opera-
tions of the Freedom of Information Act.
I describe my remarks as expressing "concern" with the act because
our experience indicates that the response of Federal agencies and
departments to the a<-t lias often been one of resistance and delay.
Instead of prompt and inexi^ensive disclosure of information, agen-
1065
cies have sought refuge in the act's exemptions. Agencies have often
taken months to respond to specific requests for information — if they
have responded at all. And where potentially difficult questions of dis-
closure arise, the agency often has not sought to informally resolve
the request with the pei-son seeking the data, but has, forced the matter
into a posture so inflexible that only the courts can settle the contro-
versy. If the Federal bureaucracy does not quickly change its attitude
and "perform within the spirit of the act, the statute will become, I
think — unfortunately — only a litigating lawyer's dream : Two levels
of agency determination, a U.S. district court opinion, and a U.S.
court of ap})eals review.
I would like to emphasize in these remarks, and perhaps expand
upon them a little bit later, some of the problems in delays and costs
in compelling disclosure. These problems also very importantly re-
flect upon an individual's ability to make our increasing'ly complex
Goverimient work for him.
Will a person seek information from his Government if he knows
it will mean bearing the cost of a court suit and probable appeal
before he gets it ? Will a reluctant agency be able to drain all utility
from a request by a lengthy delay in responding to the request, fol-
lowed by many months of litigation ? I think these questions are as
important as detennining what material is exempt from disclosure
and what must be released.
The problem of cost and delay is most acute for the pereon without
means who desires material or infonnation from the Federal Govern-
ment. It also atfects and drains the funds of what has come to be
called "the public interest" law firm or organization whose purpose
is to raise issues of broad public significance. Often, these individuals
and groups require data which is in the hands of the Federal bureauc-
racy, in order to adequately explore such questions. But, met with as-
sertions by the agency that the material either can't be found or won't
be released, the energies of such groups are directed principally to
obtaining that material and, after this arduous battle is over, only
then to the underlying issues which the material may shed light on.
Often this is too late to do much about those issues.
In the last 5 years, administrative law has undergone vast and
fundamental changes. The question of "standing" — determining who
may challenge agency action or inaction — has been expanded to include
almost an}^ person who can show that he is or will likely be affected
by the agency's activities. Coupled with this development in admin-
istrative law is the fact that the issues which Federal agencies and
departments are required to resolve are becoming increasingly com-
plex. And I think it is accurate to predict that the Supreme Gourt and
the U.S. courts of appeals will increasingly defer to the final agency
decision in developing which I have called this new administrative
law. Because of these factors, it is critical that agencies be exposed to
the reasoned ideas and criticisms which an informed public can bring
to the administrative process. But, lengthy delay and high costs in
obtaining information is likely to make public participation mean-
ingless.
I would like to give some examples and include one additional
comment on one of the frustrations that our institute and other groups
have encountered in the past few months.
76-253 O - 72 - pt. 4-5
1066
Some examples from our institute's work will illustrate the problems.
"We are trying to learn from one Federal department whether one of
its well-publicized programs actually is in operation and, if so, what
the i)olicy directives are for those charged with its administration.
Many millions of dollars are at issue and the program affects a large
number of people. The program — if it does exist — should be scrutinized
by the public and by the groups which the program aims to assist. Al-
though the request we have made does not seem to us to raise difficult
problems of law — Does the program exist ? Are there guidelines for its
operation ? — we have waited so far almost 2 months for even a written
answer from a high official in tliat department. As a result, we do
not know whether the so-called secret law exists or, perhaps worse, that
the i3rogram for some reason will not even be implemented.
A second example is our request of a different Federal department
for certain data which the department might reasonably contend
should not be disclosed. In addition to honoring the specific request of
our client, resolving the issue will also clarify the problem for the
department. However, in this case, it took an operating division of the
department 3 montlis to formally deny our initial request, and it has
been another 3 months during which our required internal agency ap-
peal has been pending. In other words, for 6 months we could not get
an answer from the department in response to our request, let alone
having it resolve the matter.
Finally, another example illustrates an agency which, though reluc-
tant to give us information, in fact, finally gave us information, but
the way in which it was disclosed created an additional problem. In
this instance, we requested a list of persons who were eligible for cer-
tain Federal benefits. The agency had not notified these persons of
their statutory rights which were required to be asserted by a given
date. After threat of a Freedom of Information Act suit, the agency
provided us with the names, but required us to furnish the steno-
graphic resources and some of the stationery if the potential bene-
ficiaries were to be reached in time.
I suspect, Mr. Chairman, all of these examples represent the prevail-
ing philosophy of most of the Federal bureaucracy, and, if the act is to
mean anything, this attitude must be changed.
I would like to briefly touch upon the time factor in the proposed
amendment which I suggest be considered by the committee. Section
(a) (3) should be amended by inserting the following after the phrase
in the act "shall make the records promptly available to any person;" :
The agency shall respond to the request within 10 days after receipt thereof,
stating the manner by which the information will be provided to the person
and the cost, if any, for such information. If the agency refuses or is unable to
promptly provide the information or record requested, it shall state in detail its
reason therefor. Within 15 days of receipt by the agency of a written appeal by
a person denied in whole or in part any information requested in accordance with
this paragraph, the agency shall determine whether the requested information, or
any part thereof, was properly denied and shall state in detail the reasons for its
determination. The information shall be provided no later than 10 days after
the agency's acknowledgment of its availability, imless otherwise objected to in
accordance with this paragraph.
Upon reflection of this language last night, I would criticize my
own proposed amendment and say that in certain instances the time
I ha\'e suggested is too long. It might be, for example, that certain
1067
agencies would not require an internal appeal, agencies small enough
so that its public information officer or an appropriately designated
lawyer can give answers right away which would be the end of the
request as far as that agency was concerned. There would be no internal
agency appeal. If you did not get your requested information, you
would then be free to go to the courts without further agency review.
This might avoid an adjudicatoi*y period which is likely to be the case
under my proposed amendment.
]\fy view of the problem of costs can briefly be summarized. I think
that part of the business of a democratic government is dispensing
information to the public quickly and cheaply. There is no reason why
the person requesting information should have to pay for copies. In
many instances today, agencies already supply without charge a copy
of most documents w^hich are requested of it. I think, at least for one
copy, the expense of duplication should be borne by the agency and
not by the person requesting it. With respect to the accumulation of
"identifiable data,'' the issue is somewhat different, and I can under-
stand the problems there. I would suggest that, at least where this
material is easily obtainable, no charge be made. Wliere the data must
be culled from many records, a charge might be required to deter the
frivolous or malicious, but this should be a minimal amount.
I will conclude wuth a recommendation to amend one of the present
exemptions. Exemption (4) should be changed to read: "trade secrets,
and confidential commercial information obtained from a person,
where the disclosure of such information would place a person at a
clearly unwarranted commercial disadvantage."
This phrasing, I think, will protect businesses from unfair competi-
tive pressures. It will open to public scrutiny many of the activities
which large businesses are engaged in and help the public determine
if it is getting its money's worth with respect to the contracts and
preferences generated by the Federal Government which businesses
often enjoy. There is no reason to retain the obscure and complex
phrasing as exemption (4) is presently written.
So far the act has received relatively little examination by the courts,
despite the hundred or so cases that have thus far appeared. My count
indicates that the Federal courts of appeals have decided only 17
cases. Nine of these have occurred, as might be expected, in the District
of Columbia circuit. We are seeing some trends developing in this
circuit. But the Supreme Court,, except for yesterday's announcement,
has yet to pass on any of the complex issues of privacy and disclosure
which are raised in the act. Some of these difficult problems are perhaps
better left to careful judicial development, and this w^ill certainly
occur.
However, Congress and this committee can strengthen the clear
mandate of the act by eliminating some of the confusing language and
speeding up the process of disclosure, as I have noted. Congress should
also require agencies to submit, at a minimum, annual reports to tliis
committee and to the public relating the amount of requests for in-
formation under the act made to the agency, the type of information
requested, the agency's responses, and the time taken to disseminate
the material. In these w^ays the act may encourage effective public
scrutiny of the law which 'is made and administered daily by Federal
agencies. If this occurs, the act will have fulfilled its promise.
1068
Mr. MooRiiEAD. Thank you very much, Mr. Wolf.
Now, oif the record a minute.
(Discussion off the record.)
Mr. MooRHEAD. We will now call on Mr. Frank Wozencraft to make
his presentation.
STATEMENT OF FRANK M. WOZENCRAFT, ATTORNEY,
HOUSTON, TEX.
Mr. W0ZENCR.VFT. Thank you, Mr. Chairman, and members of the
committee.
It is an honor to be invited here today to comment upon the Freedom
of Information Act.
It has been almost 6 years since this committee voted favorably in
the House, in the form previously adopted by the Senate, the bill that
became the Freedom of Information Act w^hen it was signed by Presi-
dent Johnson on July 4, 1966.
As the chairman commented earlier, it was one of my earliest mis-
sions as a newly appointed Assistant Attorney G'eneral in charge of the
Office of Legal Counsel, to supervise for the Attorney General prepara-
tions of his memorandum for the executive agencies and departments
concerning the act which was published in June 1967, shortly before
the act went into effect 1 year after its enactment.
Preparation of this memorandum was a major item of concern for
the Office of Legal Counsel. A good many people in that office partic-
ipated in it, including, toward the latter stages, Mr. Mondello, Gen-
eral Counsel of the Civil Service Commission, who is here today. And
we went through a very full-fledged effort to make this memorandum
as complete as we could, based on the knowledge we had at the time.
Before coming to the memorandum itself, let me comment a little
on the act itself, if I may.
Since returning to private practice in 1969, I have had less occasion
to follow in detail how the act has been applied and how the courts
have interpreted it. However, my interest in the act has continued, and
I have had some contact with it as the vice chairman of the Adminis-
trative Conference of the ITnited States until February 1971; and,
presently, as a meml)er of the Council of the Administrative Law Sec-
tion of the American Bar Administration. I have also had occasion to
invoke the act as a lawyer in private practice, and I am, therefore,
pleased to say that I have seen it work.
The views I express today, which are personal and should not be
attributed to any of these organizations I have mentioned, thus reflect
experience with the act from both sides of the street.
When the act was first passed, the reactions ranged from jubilation
that now all Government information would be public to dire pre-
dictions that exposing Government processes and files to the public
limelight would destroy effective government. Both were extreme.
Tlie first reaction overlooked that by the nine exemptions written
into the act Congress had clearly intended to protect some kind of
Government information from [)ublic scrutiny. The second seemed to
fear that our democracy was too fragile to withstand the gaze of the
public it existed to serve. Yet, as the Attorney General stated in the
1069
foreword to his memorandum, "Nothing so diminishes democracy as
secrecy. Self-government, the maximum participation of the citizenry
in affairs of state, is meaningful only with an informed public."
Now, after almost 5 years under the act, those who expected it to
strip away the veils of Government secrecy feel cheated; and those
who predicted disaster grumblingly insist that although the pillars
of the Republic have not crumbled the act has been an expensive and
troublesome nuisance and they wish it would go away.
Since I shared neither set of expectations, I share neither view^ to-
day. I have been disappointed that the act has not yet had more im-
pact, but I am far from disheartened. The drafting of the act leaves
much to be desired, and its implementation far more. Nevertheless,
viewed objectively and disregarding excessive fears or expectations,
the act remains a*^ waterehed event in the history of Government, un-
precedented, as far as I know, by any other nation.
The act was a watershed event, because it reversed the philosophy
of releasing Government information. Previously, the Government
would witlihold the document unless it was persuaded that there was
a valid reason to disclose it. Now, it must release the document, un-
less it can establish a valid reason to Avithhold it. That was, and is,
and should be, a cause for jubilation in itself, even though its prom-
ise has yet to be entirely fulfilled.
It takes a long time for streams to travel from the watei-shed to
the ocean. It takes a long time to achieve, with any degree of complete-
ness, so drastic a reversal of the approach of Government employees
toward the release of information that they have been carefully taught
to guard.
As Mr. Wolf commented earlier, this philosophy has not yet worked
its way all the way down through the Federal Government. It would
be unusual as well as remarkably fortunate if it had. But it is work-
ing its way down, and from the opportunities that I have had to deal
with the act since leaving the Government, I have found that it has
made a difference. The act has facilitated this change of philosophy,
even though it has not achieved it completely, and I have never seen
an act that could reverse a philosophy by enactment alone. It has
facilitated this change through three basic elements.
First, and most important, it has shifted the burden of proof to the
Govermnent, which must establish the applicability of one of the
act's nine exemptions before a document can be Avithheld.
Second, it has ordered that this inforaiation be made available not
just to the chosen few but to any member of the public.
Third, it provided for judicial review if a document is wntlilield,
through a suit for injunction in a Federal district court with the
burden of proof resting upon the Government.
It has always been clear, despite these useful statutory provisions,
that if the act resulted only in disclosure of documents upon court
orders its benefits would be meager indeed. You just cannot get that
many cases into court.
The important need was for the spirit of the act to be honored
throughout the Government. President Johnson stressed this in sigii-
ing the act, urging "a constructive approach to the wording and spirit
and legislative histoiy of this measure." In his signing statement, he
instructed every official in his administration "to make information
1070
available to the fullest extent, consistent with individual privacy and
the national interest."
The Attorney General's memorandum calls for the same spirit. It
reminded the agencies that the act's exemptions were permissive rather
than mandatory, and stressed that "In some instances, the public in-
terest may be best served by disclosing, to the extent permitted by
other laws, documents which they would be authorized to withhold
under the exemptions." This admonition was particularly important
because a close analysis of the act, as we found in working on the
Attorney General's memorandum, showed that several provisions
were far from clear. I do not have a copy of the chairman's opening
statement, but I believe that there was a comment in it that the mem-
orandum had not been amended since its issuance in 1967, and that is
certainly correct as far as I know, although my contact with such
matters has been considerably less since January of 1969.
I do believe that there have been memorandums that have emanated
from the Office of Legal Counsel that have submitted supplementary
instructions to the agencies and departments, and I am familiar with
one such memorandum in December of 1969. It was issued by the then
Assistant Attorney Greneral "William Rehiiquist,
I would also like to point out, though, that in the memorandum it-
self, it was clearly recognized by the Department of Justice that this
could only be a guideline, looking forward, and an express statement
was placed in the foreword t-o the memorandum that while this mem-
orandum represented a conscientious effort to correlate the text of the
act with the legislative history, some of the statutory provisions allow
for more than one interpretation and definitive answers may have to
await court rulings.
I believe that this committee will find that those rulings, as they
have come down, have been the subject of considerable attention by
the Office of Legal Counsel in the Federal Government, although,
again, I cannot pretend to be familiar with exactly the means in which
these decisions have been communicated to and how much attention
they have received in the various agencies. However, the memorandum
itself allowed room for precisely that kind of evolutionary process as
these questions reached the courts. We recognized its importance then,
and nothing that has happened since has led me to feel that it has been
any less important.
When we began preparing the memorandum, we first, of course, care-
fully reviewed the wording of the act. We turned to the legislative his-
tory, particularly the committee reports. We still came up with ques-
tions on what the Congress had intended on a good many important
areas. We got together with the General Counsels of various depart-
ments and agencies and asked them for their views, and we checked
their testimony before this committee and the Senate committee earlier.
And, then, we turned to the staff of this subcommittee and the staff
of the Senate Subcommittee on Administrative Practices and Proce-
dures, from which the act, in the form in wliich it was eventually
enacted, had emerged.
Wliile we recognized, as I mentioned earlier, that definitive answers
might have to await court rulings, we had a law that the agencies and
departments had to start administering then. We could not wait around
for court rulings to decide how it should be administered, and so what
1071
we provided in these guidelines was our best effort at that moment in
time and space in figuring out just exactly what was meant. And I can
assure this committee that rarely, in my experience, has any clearance
and investigatory process in the preparation of any Government docu-
ment been more comprehensive.
We worked very closely with the staff of both this subcommittee and
the Senate subcommittee, and the final version of the memorandum
was cleared with the members of the staffs of those committees.
Recognizing the concern of the press and the leading role it had
played in fostering adoption of the act, we also discussed the memo-
randum, before its publication, with representatives of the American
Society of Newspaper Editors, the American Newspaper Publishers
Association, and the Magazine Publishers Association, and other press
organizations. We also sent preliminary copies to the National Associ-
ation of Broadcasters and the Sigma Delta Chi. They made several
suggestions about the memorandmn, and we adopted many of these
suggestions.
On the whole, however, they seemed quite gratified with the De-
partment's constructive approach toward this important legislation.
And I cannot remember of any instance in which a concern expressed
by any representative of one of these press organizations or of the
House and Senate subcommittees remained unsatisfied. That does not
mean all of their thoughts were adopted, but I believe we made our
best efforts, at least, to meet the objection if not precisely in the way
they would have suggested in the first place. But the point got
achieved, and it seems to me that this is evidenced by the reaction in
the press and in the Congress when the memorandum was released.
In that period we also met with bar association groups. There was
a very valuable institute held by the American Bar Association in
Apriri967, in which I participated, along with a good many Govern-
ment officials. Prof. Kenneth Culp Davis was a member of the panel,
and Congressman Ogden Reid of this committee was also a member
of the panel. We found that most useful in focusing on the problems
of statutory interpretation that were posed through the act.
Through conferences and speaking with government groups and
bar groups and the Federal Bar Association, we sought to explain
the memorandum and encourage compliance with the act.
We even called a meeting of the public information officers of the
various departments and agencies and urged them to see to it that the
spirit of this act was fully implemented throughout the Government.
When we were asked in the Office of Legal Counsel by other agencies
about particular documents, it was on a review kind of basis, because
we had no authority to tell them what to do with their documents. But
we were always happy to discuss the questions with them. And when
we were asked about a document, we would counter with the question
of whether there was really a good reason why the document should
not be disclosed. Did it come within one of the nine exemptions of
the act and, if so, which one? Even if it did come under an exemption,
was the public interest on balance best served by withholding the
document or by disclosing it ?
It is surprising how often the answers came out in favor of
disclosure.
1072
I remember one specific instance when the Under Secretary 6i a
Cabinet department telephoned to ask me about a particular document
which his staff recommended withholding and which they believed
came within one of the exemptions. It was requested by a national
news magazine. I reviewed the document with him by phone, and I
asked him whether he really thought that there was any reason why
he had to withhold the document. Obviously, he had been troubled
about the recommendation of his associates or he would not have tele-
phoned me in the first place, and, as a result of our discussion, the
document was released.
Xow, that is the kind of thing that would never hit the press or
public attention in any way, and there is no reason why it should. It
was simply the case of the act not only being complied with but one
in which the spirit of the act was being used to go beyond what per-
haps might have been withheld under an exemption. It resulted in its
disclosure.
Xow, in the almost 5 years since it has been launched, how has the
act worked ?
"Well, it would be ostrich-like to assert that the act is being fully,
much less joyfully, implemented throughout the Federal Government.
In these hearings, you will doubtless learn of instances where officials
have acted as if they hardly recognize the existence of the act at all,
while others undoui3tedly have sought to hide behind inapplicable
exemptions or unreasonable delays of the kind Mr. Wolf mentioned.
I have encountered a couple of them myself. Yet the act is there. I am
convinced that it has made a healthy difference, even though not yet
as great as I would have hoped.
But, on one occasion in private practice, I invoked the act on behalf
of my client in an executive department where my initial request was
refused by the bureau chief. I appealed to the solicitor of the depart-
ment, the appropriate appellate channel, and my appeal was granted.
The bureau, which was very concerned about releasing the documents,
was required within the department itself to release them. There was
no occasion to go to the courts, as I was entirely prepared to do if
necessary.
In other instances, reminding officials of the requirements of the act
has facilitated working out a reasonable solution to a problem that
could not have been resolved without the act, without the knowledge
that sitting back there behind this process was a court with the right
to review the action of the agency. It is almost impossible to measure
how many documents have been made because of the act. Only when
they are not made available does the matter get public attention.
Most of the attention that the act has received in the courts and the
press has understandably i-evolved around the disclosure of documents.
But that is only one of three major areas covered by the act. From the
standpoint of government, two otlier areas are equally important and
much too neglected. Ihey are also tlie most difficult to implement.
The two areas I refer to both involve what is called the "hidden
law.*' The first section of the act, 5 U.S.C. 552 (a) (1), requires agencies
to publish in the Federal Register "substantive rules of general appli-
cability" and "statements of general i)olicy or interpretations of gen-
eral applical)ility formulated and adopted by the agency." Subsection
(a) (2) requires that final opinions and statements of policy not pub-
1073
lished in the Federal Register be made available for public inspection
and copying.
The nrst of these provisions provides that no person shall be ad-
versely affected by rules not so published.
The second provides that no unpublished opinion shall be "relied
on, used or cited as precedent by an agency against a party" unless it
has been indexed and made available or unless the party has had actual
notice.
Mr. Chairman, these provisions go to the heart of good government,
the question of whether this is a government of laws or just of men.
Not surprisingly, some officials feel that publishing guidelines and in-
dexing precedents, hamper their free exercise of discretion. It does,
and it should. If discretion is completely unfettered, we become simply
a government of men. Law loses its significance. Only those who work
consistently with the agencies can learn their written or unpublished
rules. Not even lawyers in general practice, much less the press or the
public, can find out about these until it is often too late. This is an area
to which I hope this committee will direct specific and detailed atten-
tion. It is an area where a great deal needs to be done. The provisions
of the act are there. It is very difficult to implement, and I am most
hopeful that this committee can assist in causing it to be better im-
plemented.
Admittedly, it is difficult and expensive to collect all of the policies
of agencies. The unwritten policy has to be reviewed before it can be
published. It is expensive to index all of these precedents. You have
to burrow into the file drawers and find out which ones you are using
are precedential. The 1966 act provided that index requirements are
only applicable to precedents after the effective date of July 4, 1967.
The Office of Legal Counsel encouraged the agencies, however, to
collect all of the precedents and make them available in reading rooms
where the public could have ready access to them.
The act does require publication, it requires indexing of these prece-
dents in it, since 1967. It is good law, it is good government, to make
that happen.
Mr. HoRTON. Mr. Wozencraft?
Mr. Wozencraft. Yes, sir.
Mr. HoRTON. Could I interrupt you to ask you to spell out the imple-
mentation that you feel that the Congress should pursue, to make it
more effective ?
Mr. Wozencraft. Yes, sir. I will come to that part of it later, but
let me anticipate that now.
As I mentioned, it is very expensive to publish guidelines and index
precedents. It takes a lot of manpower and resources. It is not just a
matter of waving a magic wand. The budgets of these agencies have
led them to feel the pinch pretty severely. I actually talked to the
chairman of one agency about this problem, while I was acting chair-
man of the Administrative Conference in late 1970. He told me that
he simply could not afford to spare the manpower and the money that
it would take to do it. One of m;^ suggestions is that this committee
and the Congress encourage line items in budget appropriations to be
devoted to compliance with the Freedom of Information Act. This
would take away the most prevalent excuse for failure to comply with
the act and would enable the agency to be held more strictly account-
1074
able. As it is, I can imderstand the reluctance of the chairman that feels
liis substantive mission would suffer if he undertakes this mission. At
the same time, I am very disappointed that the Freedom of Informa-
tion Act seems to loom so low on his particular hierarchy of statutory
responsibilities, because he is compelled to obey that law^ as much as
the law that governs his own particular agency.
I might add that this particular chairman is no longer with the
Government, but I believe that his successor is moving very forcefully
in the direction of fuller compliance wdth the act. I do believe that the
budgetary problem is a key to this particular difficulty.
I might also point out that while the act presently provides for
filing fees which, in some cases, may be considered exorbitant, they
nevertheless do not enrich these agencies. That money all goes into
the regular U.S. Treasury and it does not come back to the agencies
through increased appropriations.
So, whenever they have to process a request for a docmnent that
takes a lot of time, they are just out that much money and that much
manpower or whatever it takes to satisfy the request.
That would be one suggestion.
My second suggestion would be in the oversight of the substantive
committees in particular — and perhaps this committee can be useful
in encouraging that oversight and perhaps you can in the hearings
that are forthcoming elicit useful information in these areas. I would
hope that each chairman when he comes before a committee, be it this
committee or his substantive committee, would be asked : "What have
you done to see to it that all of the general jx>licies and guidelines in
your agency are published ? "
I would be vei*y interested in their explanations. I am sure that most
agency heads are anxious to comply with these requirements of the act.
These are practical problems.
Frankly, they benefit from this publication as much as anybody else.
There are instances, undoubtedly, w^hen lower echelon officials, or
somebody who is below their visibility level at least, are saying "We
have a policy against something." And how easy it is for that official,
when the Freedom of Information Act is mentioned and he is asked
why that policy — if it is a policy — is not published, to say "Well, we
don't exactly have a policy against what you propose. Let us just say
that we would regard it with extreme disfavor."
As a practical matter, such disfavor can be fatal to the member of
the public dependent on that officiaFs action. I believe that a great deal
better government can result from the implementation of this par-
ticular provision, which is presently in the act, throughout the Gov-
ernment.
The Attorney General's memorandum has called for that, and I am
confident that the overwhelming majority of those in the Government
would like to see it done. But it is not easy to do without the money to
do it. It is one thing to say "We have a policy," and it is another thing
to write it out and get it in shape and expose it to the world in the
Federal Register. That is where the time-consuming work comes in.
How fi-equently do serious problems occur that never reach the
courts or receive public attention ?
This is very difficult to document.
1075
The freedom of information section of the administrative law
section of the American Bar Association undertook last year to survey
among practicing lawyers of instances in which they had encountered
violations of the act. The response was surprisingly meager. There is
room for surmise that this resulted not from an absence of violations
but from some lawyei-s being too busy to answer the questionnaires and
others, knowing that they must deal with agencies in the future, being
unwilling to bell the cat. The results of this survey, I understand, have
been made available to the staff of this committee.
As a council member of the administrative law section, charged
with liaison with this conmiittee, let me add here that I am certain
this committee would welcome any opportunity to cooperate with this
subcommittee and the Congress in any way that it possibly can. As you
may know, the American Bar Association speaks officially only with
one voice, and I am. not that voice. I am speaking for Frank Wozen-
craft, and not for the American Bar Association. But I do know, of
my own knowledge, of the eagerness of these gentlemen to be helpful
to the Congress in any way that they can.
If the implementation of the act is still far from being adequate,
how can it be improved ?
Essentially, this is a grassroots problem that should be attacked in
each agency, and those agencies can be encouraged to attack it through
the means t just mentioned to Mr. Horton — for example, through ques-
tions upon substantive hearings and at this hearing and at appropria-
tions hearings.
There is room, of course, for general coordination, and yesterday
there were some questions addressed to the panel about whether there
should be some overall Government censoi-ship or general authority.
The answers were that there should not be but that there should be
some coordination. I certainly feel there should be no information
czar who has the power to choke off information that an agency would
like to release. I think it works much better in the particular agency
where they have knowledge of the particular records.
On the other hand, from what I know of the work of the Office, of
Legal Counsel, recently — and, again, it is no longer first hand — I know
they have a committee set up there that is intended to provide advice
to agencies and coordinate general policies to be sure that one agency
does not withhold a document that should really be released. Of course,
the agencies have to come to the Department of Justice before that
happens, but that committee then has a chance to put in a few words.
And, in some instances where the Department of Justice represents
the agency in litigation, there is room for discussion with the agency
about what can be properly defended in court.
Moreover, the Administrative Conference of the United States,
from whose chairman you will hear next week, has initiated some very
useful recommendations aimed at improving compliances among the
various agencies. I am somewhat familiar with these because they
were initiated while I was vice chairman of the Conference. But, here
again, the Conference has no enforcement authority. It has to rely
upon the willing cooperation of the agencies, and I am certain that
the Conference — you can learn more about this from Chairman Cnim-
ton next week — will welcome congressional assistance in that respect.
1076
And this brings me to what I consider the most promising means
of fostering compliance — congressional oversight. The hearings that
this subcommittee began yesterday will give you an opportunity to ex-
plore from a variety of standpoints the most critical areas. You have
unparalleled access to the operating heads of the departments and
agencies. You have unparalleled access to the media in publicizing
what you find. You have the continuing opportunity to ask for and
obtain explanations w^hen violations of the act are asserted. And you
will, undoubtedly, address you reel ves at the conclusion of these hear-
ings to the question of whether the act should be amended — with far
more information than any of us have at the moment.
When the act was first adopted, the areas of uncertainty were so
great that we would have welcomed clarifying amendments if nothing
else. In the years since the act has gone into effect, the courts have re-
solved some of these uncertainties and administrative practice has set
a pattern for dealing with others. But even an amendment that clarifies
existing uncertainties may create new uncertainties until it is construed
by the courts.
I am inclined to think that more important gains can be achieved
by congressional oversight, although I do not negate the possible
benefits of statutory amendments. I simply suggest that these amend-
ments, if there are to be amendments, should be carefully drafted to
avoid creating new uncertainties.
If the act is to be amended, I would urge attention to three areas
in particular. One of these I have already mentioned in response to
the question that Mr. Horton asked, that I believe it would be useful
to amend the act to provide that fees for producing documents go not
to the Treasury but to the agency that has the expense of producing
the documents.
Second, I believe that it would be very important to provide for
stronger enforcement of these hidden-law prohibitions I discussed
earlier. As the act reads now^, just judicial review under subsection
(a)(3) seems limited to production of identifiable records. Only if a
person is adversely affected by an unpublished policy or is subjected
to an unpublished precedent would the courts have an opportunity to
review agency action under subsection (a) (1) or subsection (a) (2).
I am aware that one court ruling, in an action under (a)(3), has dicta
to the effect that injunctive relief may also be availa^ble as to (a) (1)
and (a) (2). If so, great, I am delighted. I would feel a lot happier
though, as a lawyer, in having the provisions of the act itself and
having a considerable doubt about the accuracy of those — even though
I certainly agree w^ith their aim, I would feel unhappy if the injunctive
remedy were expressed to the extent of subsection (1) and sub-
section (2).
The third area of amendment is the most sensitive of all and that,
of couree, is the area of the coverage of these exemptions. It would,
indeed, be helpful if some of these were drafted more precisely. In-
dividual privacy in national security cannot be protected if every
document in the possession of the Grovcrnment must, automatically be
revealed to anyone who seeks it ; yet, each exemption is a restriction
on the public's right to know. The balance is difficult to strike and
even more difficult to phrase in statutory language.
1077
Some exemptions may run themselves to abuse because they are so
broad, even though their underlying concepts are sound.
On the other hand, there is room for concern that exemption 6, which
precludes disclosure of personal and medical files only if it should
constitute a clearly unwarranted invasion of personal privacy, is too
narrowly drawn. Should not an invasion of personal privacy be a sub-
ject of concern even if it is not "clearly unwarranted invasion of per-
sonal privacy?"
And should not exemption 4 more clearly protect the right of a citi-
zen to confide in his Government, as in the case of alleged unfair labor
practice, without the fear of economic or other reprisals through which
such disclosure might lead ? This would be not cured entirely, I am
afraid, by the amendment that Mr. Wolf suggested earlier. But I join
him in the thought that exemption 4 can stand a great deal of addi-
tional attention. And, frankly, no section gave us more difficulty in
preparing the memorandum than that section. We ended up on page
34 of our memorandum saying that it seems obvious — let me read the
exemption for the record to get a little view here of what I am talking
about.
It reads :
The provisions of the act shall not he applicaMe to matters that are * * *
(4) trade secrets and commercial or financial iniformation obtained from any
person and privileged or confidential.
Mr. HoRTON. Is it "any person" or "a person?"
Mr. WozENCRAFT. "Any person and privileged or confidential."
Gentlemen, we found this very difficult from the standpoint of
grammar as well as substance, and this is a question on which we
directly question the staffs of both subcommittees, and we came out —
excuse me. Mr. Mondello points out to me that the original statute
was "any" but in the recodification process, the reoodifiers of the Con-
gress have an extreme dislike of the word "any" and they changed it
to "a." And, so, that change was made in the recodification, not by this
committee and not, I am sure, with any intent to make a substantive
change, but in the recodified law which was enacted and, therefore,
does supersede the original act. It is "a pereon." The rest of the sub-
section remains equally obscure, and what we have met up with is the
statement that it seemed obvious to us, from both talking with the
subcommittee stafi^ and reviewing the committee reports, that Congress
neither intended to exempt all commercial and financial information
on the one hand, nor to require disclosure of all other privileged or
confidential information on the other.
We close with the aberration that agencies s'hould seek to follow the
congressional intent as expressed in the committee reports.
Fortunately, the courts interpreting these exemptions have exercised
their interpretative authority and their equitable discretion to protect
these rights. It is my personal view that the courts, as a constitutional
matter, as in Heck v. Bowles^ do have this equitable discretion no
matter what the act says, and, yet, a recent decision in the Court of
Appeals for the District of Columbia reaches the contrary conclusion.
There is now a direct conflict between the Second Circuit and the Court
of Appeals for the District of Columbia on this question. It is one of
those that, as we indicated in our memorandum, is simply going to
1078
have to be resolved by the courts. And I must say that this is another
example of the fact' that there is no substitute for clear statutory
language.
One thought more. The Freedom of Information Act is aimed di-
rectly at the executive branch and the independent agencies. It does
not purport to touch any other branch of the Government, yet the
public's right to know is equally important in all branches. I would
hope that this committee would find some opportunity to explore the
extent to which information is sufficiently available to the public in
other branches as well as the executive branch.
Mr. Chairman, I have great hopes that the kinds of hearings you
have scheduled will produce the kinds of facts on which the miple-
mentation of this important act can be evaluated. You, undoubtedly,
will hear conflicting viewpoints expressed vigorously and, often, there
may be merit in directly opposed positions as to the disclosure of Gov-
ernment information and, as this committee knows from other hear-
ings, this includes areas where valid policy goals conflict and must be
balanced or reconciled. By exploring this area, this subcommittee is
performing a truly valualjle service. You are entitled to the apprecia-
tion of the American people for focusing attention upon the importance
of the people's right to know in detail the activities of their
Government.
Thank you.
Mr. MooRHEAD. Thank you, Mr. Wozencraft, and particularly for
those closing remarks. The subcommittee appreciates that.
Mr. Wozencraft has referred quite a good deal to the Attorney Gen-
eral's memorandum and the supplemental memorandum of December
1969. 1 think they should be a matter of the record, and, without objec-
tion, it is so ordered.
(The memorandums referred to follow :)
1079
ATTORNEY GENERAL'S MEMORANDUM
ON THE
PUBLIC INFORMATION SECTION
OF THE
ADMINISTRATIVE PROCEDURE ACT
A MEMORANDUM FOR THE
EXECUTIVE DEPARTMENTS AND AGENCIES
CONCERNING SECTION 3 OF THE
ADMINISTRATIVE PROCEDURE ACT
AS REVISED EFFECTIVE JULY 4, 1967
UNITED STATES DEPARTMENT OF JUSTICE
Ramsey Clark, Attorney General
June 1967
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price 25 cents
1080
O
STATEMENT BY PRESIDENT JOHNSON
UPON SIGNING PUBLIC LAW
89-487 ON JULY 4, 1%6
The measure I sign today, S. 1160, revises section 3 of the Admin-
istrative Procedure Act to provide guidelines for the public avail-
ability of the re^^ords of Federal departments and agenci&s.
This legislation springs fi-om one of our most essential i)rinciples:
a democracy works best when the people have all the information that
the security of the Nation }>ennits. No one should be able to pull cur-
tains of seci-ecy around decisions which can be revealed without injury
to the public interest.
At the same time, the welfare of the Nation or the rights of indi-
viduals may require that some documents not be made available. As
long as threats to peace exist, for example, there must l)e military
secrets. A citizen must be able in confidence to complain to his Govern-
ment and to provide information, just as he is — and shoidd be — free
to confide in the press without fear of reprisal or of being required to
reveal or discuss his sources.
Fairness to individuals also requires that information acciimulated
in personnel files be pro^tected from disclosure. Officials within Govern-
ment must be able to communicate with one another fully and frankly
without publicity. They cannot operate effectively if required to dis-
close information prematurely or to make public investigative files
and internal instructions that guide them in arriving at their decisions.
I know that the sponsors of this bill recognize these important in-
terests and intend to provide for both the need of the public for access
to infomiation and the need of Government to protect, certain cate-
gories of information. Both are vital to the welfare of our people.
Moreover, this bill in no way impairs the President's power under
our Constitution to provide for confidentiality when the national in-
terest so requires. There are some who have expressed concern that the
language of this bill will be construed in such a way as to impair
GoveiTiment operations. I do not share this concern.
I have always l>elieved that freedom of information is so vital that
only the national se^-urity, not the desire of public officials or private
citizens, should determine when it must be restricted.
I am hopeful that the needs I have mentioned can be ser\'ed by a
constructive approach to the wording and spirit and legislative history
of this measure. I am instnicting every official in this administration
to cooj^rate to this end and to make information available to the
full extent consistent with individual privacy and with the national
interest.
I signed this measure with a deep sense of pride that the United
States is an open society in which the people's right to know is
cherished and guarded.
O
1081
FOREWORD
If government is to be truly of, by, and for the people, the people
must know in detail the activities of government. Nothing so dimin-
ishes democracy as secrecy. Self-government, the maximum participa-
tion of the citizenry in affairs of state, is meaningful only with an in-
formed public. How can we govern ourselves if we know not how we
govern? Never was it more important than in our times of mass
society, when government affects each individual in so many ways,
that the right of the people to know the actions of their government
be secure.
Beginning July 4, a most appropriate day, every executive agency,
by direction of the Congress, shall meet in spirit as well as practice
the obligations of the Public Information Act of 1966. President John-
son has instructed every official of the executive branch to cooperate
fully in achieving the public's right to know.
Public Law 89-487 is the product of prolonged deliberation. It re-
flects the balancing of competing principles within our democratic
order. It is not a mere recodification of existing practices in records
management and in providing individual access to Government docu-
ments. Nor is it a mere statement of objectives or an expression of
intent.
Rather this statute imposes on the executive branch an affirmative
obligation to adopt new standards and practices for publication and
availability of information. It leaves no doubt that disclosure is a
transcendent goal, yielding only to such compelling considerations as
those provided for in the exemptions of the act.
This memorandum is intended to assist every agency to fulfill this
obligation, and to develop common and constructive methods of im-
plementation.
No review of an area as diverse and intricate as this one can antici-
pate all possible points of strain or difficulty. This is particularly true
when vital and deeply lield commitments in our democratic system,
such as privacy and the right to know, inevitably impinge one against
another. Law is not wholly self-explanatory or self-executing. Its
efficacy is heavily dependent on the sound judgment and faithful
execution of those who direct and administer our agencies of
Government.
It is the President's conviction, shared by those who participated
in its formulation and passage, that this act is not an unreasonable
encumbrance. If intelligent and purposeful action is taken, it can
serve the highest ideals of a free society as well as the goals of a
well-administered government.
This law was initiated by Congress and signed by the President with
several key concerns :
— that disclosure be the general rule, not the exception ;
pt. 4
1082
IV FOREWORD •
— that all individuals have equal rights of access ;
— that tlie burden be on the Government to justify the witliholding
of a document, not on the person wlio requests it;
— that individuals improperly denied access to documents have a
right to se«k injunctive relief in tlie courts;
— that there be a change in Government policy und attitude.
It is import^int therefore that each agency of Government use this
opportunity for critical self-analysis and close review. Indeed this law
can have positive and beneficial influence on administration itself — in
better records management ; in seeking the adoption of better methods
of search, retrieval, and copying; and in making sure that documentary
classification is not stretched beyond the limits of demonstrable need.
At the same time, this law gives assurance to the individual citizen
that his private rights will not be violated. The individual deals with
the Govenunent in a number of protected relationships wliich could
be destroyed if the right to know were not modulated by principles of
confidentiality and privacy. Such materials as tax reports, medical
and pei-sonuel files, and trade secr-ets must remain outside the zone of
accessibility.
This memorandum represents a conscientious eflfort to correlate the
text of the act with its relevant legislative history. Some of the statu-
tory provisions allow room for more than one interpretation, and de-
finitive answers may have to await court rulings. However, the
Department of Justice believes this memorandum provides a sound
working basis for all agencies and is thoroughly consonant with the in-
tent of Congress. Each agency, of course, must determine for itself the
applicability of the general principles expressed in this memorandum
to the particular records in its custody.
This law can demonstrate anew the ability of our branches of Gov-
ernment, working together, to vitalize the basic principles of our de-
mocracy. It is a balanced approach to one of those principles. As the
President stressed in signing the law :
"* * * a democracy works best when the people have all the
information that the sex-urity of the Nation permits. No one should
be able to pull curtains of secrecy around decisions which can be
revealed without injury t-o the public interest * * *, i signed
this measure with a deep sense of pride that the United States is
uu open society in which the people's right to know is cherished
and guarded."
This memorandum is offered in the hope that it will assist the agen-
cies in developing a uniform and constructive implementation of Public
Law 89^87 in line with its spirit and purpose and the President's
instructions.
Ramsey Clark,
Attorney General^
Jwm 1967.
1083
TABLE OF CONTENTS
Page
Statement by President Johnson upon signing bill ii
Foreword m
Special notice concerning codification vi
The Public Information Section of the Administrative Procedure Act 1
Structure of the revised section 3 3
The introductory clause 4
Agencies subject to the act 4
Elimination of previous general exceptions 4
Subsection (a) — Publication in the Federal Register 4
Substitution of exemptions for the previous exceptions 5
(A) Descriptions of agency organization 7
(B) Methods of operation 7
General course and method 8
Formal and informal procedures available 9
(C) Procedural information 9
R les of procedure 9
Forms 9
(D) Substantive rules, policies, and interpretations 10
(E) Amendments H
Force and effect of unpublished materials.. 11
Incorporation by reference 12
Standard of what is ' 'reasonably available' ' 12
Sufficiency of reference 13
Subsection (b) — Public availability of opinions, orders, policies, interpreta-
tions, manuals, and instructions 13
Agencj' rules governing availability 14
Inclusion of materials not subject to the requirements 14
(A) Final opinions and orders 15
(B) Statements of policy and interpretations which are not pub-
lished in the Federal Register 16
(C) Manuals and instructions 16
Limitation to administrative materials 16
Limitation to materials which "affect the public" 17
Exception of materials offered for sale 18
Deletion of identifying details 18
Explanation of "justification for the deletion" 19
Public index 20
Actual notice 22
Subsection (c) — Other agency records 23
Agency records to which subsection (c) applies 23
Meaning of the term "identifiable" 24
Agency rules implementing subsection (c) 24
Copies 25
Fees 25
Judicial review under subsection (c) 27
Subsection (d) — Voting records of agency members 29
Subsection (e) — Exemptions 29
( 1) National defense and foreign policy 30
(2) Internal procedures 30
(3) Statutory exemption 31
(4) Information given in confidence 32
(5) Internal communications 34
(6) Protection of privacy 36
(7) Investigations 37
(8) Information concerning financial institutions 38
(9) Information concerning wells 39
Subsection (f) — Limitation of exemptions 39
Subsection (g) — Definition of "private party" 39
Subsection (h)— Effective date 40
Appendix A — Comparative texts: Public Law 89-487 and Public Law
90-23 41
Appendix B — Table of comparative structures: Public Law 89-487 and
Public Law 90-23 --- 46
1084
SPECIAL NOTICE CONCERNING
CODIFICATION
As this memorandum went to press, Public Law 90-23 had
just been enacted. Tliat law amends section 552 of title 5, United
States Code, to codify the provisions of Public Law 89-487.
While the codification does not make substantive changes from
Public Law 89^87, it makes about 100 changes in language,
captioning, structure, and organization designed to conform
the text to the other provisions of title 5 as codified in 1966.
Since all agencies must publish regulations under the new
law by July 4, 1967, no attempt has been made to adapt this
memorandum to the codified text. Such adaptation also seems
inadvisable for other important reasons. A principal function
of this memorandum is the correlation of the text of Public Law
89-487 with its relevant legislative history. The text of that
legislative history is replete with references to phraseology and
subsection designations in the act which are changed in the codi-
fication. Moreover, for almost a year the act has been discussed
by those dealing with it by reference to the terms of its original
enactment. Use of this memorandum by those who are charged
with preparing and applying agency regulations would be ham-
pered by shifting to the new phraseology and subsection desig-
nations in this memorandum.
Therefore, since the relevant committee reports make clear
that the codification does not change the meaning of the
originally enacted text, this memorandum will refer to the law
in terms of the original text of Public Law 89^87. See S. Kept.
No. 248, 90th Cong., 1st Sess., p. 3; H. Kept. No. 125, 90th
Cong., 1st Sess., p. 1. Appendix A sets forth the full text of
Public Law 90-23 in parallel column with the full text of Public
Law 89-487. Appendix B in tabular form shows the relationsliip
of their respective subsections.
1085
THE PUBLIC INFORMATION SECTION OF THE
ADMINISTRATIVE PROCEDURE ACT
On July 4, 1966, President Johnson signed Public Law 89-487,
■which amends section 3, the "public information"' section of the Admin-
istrative Procedure Act (the "APA") .^ The amendment, which becomes
effective on July 4, 1967, provides for making information available
to members of the public unless it comes within specific categories of
matters which are exempt from public disclosure. Agency decisions to
withhold identifiable records requested imder subsection (c) of the new
law are subject tx> judicial review.
As the legislative history of the revised section 3 shows, dissatis-
faction with the former section centered on the fact that it was not a
general public information law and did not provide for public access to
official records generally. That section, of course, was not a "public
information" statute despite its title. It permitted withholding of
agency records if secrecy was required either in the public interest or
for good cause found. It was an integral part of the APA, and it
required disclosure only to persons properly and directly concerned
with the subject matter of the inquiry.
The revised section 3, on the other hand, is clearly intended to be a
"public information" statute. The overriding emphasis of its legisla-
tive history is that information maintained by the executive branch
should become more available to the public. At the same time it
recognizes that records which cannot be disclosed without impairing
rights of privacy or important operations of the Government must be
])rotected from disclosure.
The report of the Senate Committee on the Judiciary (S. Rept. No.
813, 89th Cong., 1st Sess., p. 3)^ describes the need for delicate bal-
ancing of these competing interests as follows :
"At the same time that a broad philosophy of 'freedom of in-
formation' is enacted into law, it is necessary to protect certain
equally important rights of privacy with respect to certain infor-
mation in Government files, such as medical and personnel records.
1 Public Law 89-487, 80 Stat. 250, revises 5 U.S.C. 552, formerly section
Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. 1002 (1964 Ed.).
= For the sake of brevity, the following citations are hereafter used :
"8. Rept, 88th Cong." for S. Rept. 1219, 88th Cong., 2d Sess.
"S. Rept., 89th Cong." for S. Rept. 813, 89th Cong., 1st Sess.
"H. Rept." for H. Rept. 1497, 89th Cong., 2d Sess.
1086
2 PUBLIC INFORMATION SECTION
It is also necessary for the very operation of our Government to
allow it to keep confidential certain material, such as the investi-
gatory files of the Federal Bureau of Investigation.
"It is not an easy task to balance the opposing interests, but it
is not an impossible one either. It is not necessary to conclude
that to protect one of the interests, the other must, of necessity,
either be abrogated or substantially subordinated. Success lies
in providing a workable fomiula which encompasses, balances,
and protects all interests, yet places emphasis on the fullest re-
sponsible disclosure."
The Congress was aware that the decision to withhold or disclose
particular records cannot be controlled by any detailed classification of
all official records, but has to be effected through countless ad hoc judg-
ments of agency officials, each intimately familiar with the particular
segments of official records committed to his responsibility. Those exec-
utive judgments must still be made, for Congress did not attempt to
])rovide in the revised section a complete, self -executing verbal for-
mula which might automatically determine all public information
questions. Indeed, the staggering variety of Government records makes
such a formula unattainable. The revised section, instead, establishes
in subsection (e) nine general categories of records which are exempt
from disclosure. These categories provide the framework within which
executive judgment is to be exercised in deciding which official records
must be withheld.
Upon signing Public Law 89-487 the President stated :
"I know that the sponosors of this bill recognize these important
interests and intend to provide for both the need of the public for
access to information and the need of Government to protect cer-
tain categories of information. Both are vital to the welfare of
our people. Moreover, this bill in no way impairs the President's
power under our Constitution to provide for confidentiality when
the national interest so requires. There are some who have ex-
pressed concern that the language of this bill will be construed
in such a way as to impair Government operations. I do not share
this concern.
"I have always believed that freedom of information is so vital
that only the national security, not the desire of public officials
or private citizens, should determine when it must be restricted.
I am hopeful that the needs I have mentioned can be served
by a constructive approach to the wording and spirit and legisla-
tive history of this measure. I am instructing every official in this
administration to cooperate to this end and to make information
available to the full extent consistent with individual privacy and
with the national interest.''
This is the spirit in which agency officials are expected to construe
and ai)ply the limitations of subsections (a) and (b) and the nine
exemptions of subsection (e). Agencies should also keep in mind that
in some instances the public interest may best be served by disclosing.
1087
GENERAL
to the extent permitted by other laws, documents which they would
be authorized to withhold under the exemptions.
Prior to July 4, 1967, every agency should issue rules in which it
describes, to the extent feasible, which of its records are within the
requirements of the statute, where they may be inspected, the proce-
dures to be followed in requesting access, the opportunities for admin-
istrative appeal, the fees to be charged, the stage at which records
involved in matters in process are to be available, and whatever other
considerations may be involved in achieving the statutory objectives.
STRUCTURE OF THE REVISED SECTION 3
The revised section 3 consists of a general introductory clause dis-
cussed below, followed by eight subsections, (a) through (h). Each
of the first four subsections, (a) through (d), establishes specific re-
quirements for the publication or disclosure of different kinds of docu-
ments or information. Subsection (a) lists only those materials which
must be published in the Federal Register. Subsections (b) and (d)
describe materials which must be made available for public inspection
or copying. Subsection (c) concerns requests for "identifiable records"
which must be made available upon the request of any person. Each
of the first three subsections contains its own sanction for
noncompliance.
Subsections (a) and (b) contain, within the description of the
materials to which they apply, explicit limitations upon what must be
published or made available. For example, subsection (b) (C), which
requires staff manuals and instructions to staff to be made available, is
limited to "administrative*' manuals and instructions, and to those
which "affect any member of the public.""
Subsection (e) declares that none of the provisions of section 3 shall
be applicable to nine listed categories of matters. In its original form,
the bill (S. 1160) provided exemptions in each subsection, designed to
apply only to that subsection. The Senate subcommittee found that
such approach resulted in inconsistencies. After considerable effort, to
tailor the standards established by the exemptions to the particular
subsection to which they were to apply, the subcommittee decided to
consolidate all of the exemptions in subsection (e), including in the
earlier subsections the several limitations referred to above to meet the
special needs of the requirements of each of those subsections.
Thus the exemptions of subsection (e) apply across the board and
govern all of the materials described in subsections (a), (b), (c), and
(d). Accordingly, materials which are exempted under subsection (e)
need not either be published in the Federal Register or made available
upon request or otherwise. It is important to bear this in mind in con-
sidering the discussion which follows.
1088
4 PUBLIC INFORMATION SECTION
THE INTRODUCTORY CLAUSE
"Sec. 3. Every agency shall make available to the public the follow-
ing information :"
Agencies Subject to thd Act
By its first two words, tlie introductory clause of the enactment
makes it clear at the outset that its requirements are to apply to every
department, board, commission, division, or other organizational unit
in the executive branch. This results from the definition of the term
"afrency" in section 2(a) of the APA as "each authority of the Gov-
ernment of the Ignited States, whether or not it is within or subject
to review by another agency,"" excluding Congress, the courts, and the
governments of the territories and possessions and of the District of
Columbia.
Elimination of Previous General Exceptions
The introductory language of the previous section H established two
general exceptions from all of its requirements. That language was as
follows: "Except to the extent that there is involvetl (1) any function
of the United States requiring secrecy in the public interest or (2)
any matter relating solely to the internal management of an
agency * * *."'
The revision begins instead with an affirmative direction to all agen-
cies to make official information available to tlie public, thus pro-
claiming at the outset "a general philosophy of full agency dis-
closure" (S. Kept., 89th Cong., 3), and establishing the fundamental
character of the revision as a "disclosure statute" rather than a "with-
holding statute'' ( S. Kept., 89th Cong., 5) .
SUBSECTION (a)— PUBLICATION IN THE FEDERAL
REGISTER
"(a) PUBLICATION IN THE FEDERAL REGISTER.— Every agency
shall separately state and currently publish in the Federal Register for
the guidance of the public * * *."
Subsection (a) concerns only materials which must be published in
the Federal Register. Its general objective is to enable the public
"readily to gain access to the information necessary to deal effectively
and upon equal footing with the Federal agencies." (S. Kept., 88th
Cong., 3.)
1089
SUBSECTION (a) — PUBLICATION
The report of the Senate committee, together with the Senate
hearings on the bill, indicate that there were "few complaints about
omission from the Federal Register of necessary official material." The
comments received concerning Federal Register publication indicated
"more on the side of too much publication rather than too little."
(S. Rept., 89th Cong., 6.) Accordingly, the revised subsection contains
provisions which permit incorporation by reference in the Federal
Register of material "which is reasonably available" elsewhere, and
avoid the necessity for "the publication of lengthy forms." It also in-
corporates "a number of minor changes which attempt to make it more
clear that the purpose of inclusion of material in the Federal Register
is to guide the public in determining where and by whom decisions are
made, as well as where they may secure information and make
submittals and requests." (S. Rept., 88th Cong., 11.)
The two principal changes in subsection (a) result from (1) the
elimination of the previous general exceptions, and (2) the tightening
of the sanction for failure to publish materials required to be pub-
lished. In addition to the provision that no one shall be required to
resort to materials which the agency has failed to publish, the revised
subsection provides that no person shall be "adversely affected" by
such materials, unless he has actual notice hereof.
Substitution of Exemptigns for the Previous Exceptions
The previous subsection (a), like the other subse<jtions of tht
previous section 3, was subject to the two general exceptions for "(1)
any function of the United States requiring secrecy in the public
interest" and "(2) any matter relating solely to the internal manage^
ment of an agency." Further, it required the publication of only those
statements of general policy and interpretations which were "adopted
by the agency for the guidance of the public."
The revision eliminates these exceptions and relies upon the exemp-
tions set forth in subsection (e) to distinguish the items listed in
subsection (a) which should be published from those which should
not. The words "for the guidance of the public", which still appear
in tlie subsection, now explain the i>urpose of Federal Roister pub-
lication of all material covered by subsection (a).
The considerations involved in determining what documents should
be published in the Federal Register for the guidance of the public
imder subsection (a) obviously are very different from the judgments
required in determining whether a particular record appropriately
can be disclosed to a person who requests access to it under subsection
(c). In meeting the requirements of subsection (a), the problem gen-
1090
6 PUBLIC INFORMATION SECTION
erally is to select, from a variety of information that anyone may see,
material which is useful for the guidance of the public and there-
fore should be published. Under subsection (c), on the other hand,
the question is to determine whether disclosure will injure a public
or private interest intended to be protected under the act.
The difficulties inherent in applying the subsection (e) exemptions to
all of the various judgments required under subsections (a), (b), (c),
and (d) not only necessitate commonsense constructions of the ex-
emptions; they also increase the necessity for determining precisely
what is to be included within each of the items listed in each of those
subsections. For example, unless the limitations spelled out in sub-
section (a) are sensibly constinjed and applied, concern about the
"tightenexl sanction*" against nonpublication could lead to publica-
tion of many documents whicli are of no interest to the public and
only serve to aggravate the problem of "too much publication."
In the case of a few agencies, national defense considerations may
preclude substantial compliance with any of the requirements of sub-
section (a). In other cases, foreign policy considerations may limit
the extent to which an agency is able to comply with the subsec-
tion (a) requirements. If in such cases classification under Executive
Order 10501 or statutory or other authority does not afford an exemp-
tion from the requirements of this subsection, the agency should seek
appropriate exemption by Executive order under subsection (e)(1).
The second exemption in subsection (e), for matters "related solely
to the internal personnel rules and practices of any agency," is sim-
ilarly important in applying the requirements of subsection (a). Its
derivation from the previous internal management exception makes it
clear that it is intended to relieve from the Federal Register publica-
tion requirements all matters of personnel administration. Such mat-
ters include personnel policies, interpretations respecting personnel
questions, personnel administration forms and procedures, statements
of the course and method by which pereonnel management functions
are performed, regulations or general orders concerning the conduct
of military personnel, and all other internal matters of personnel ad-
ministration which do not involve the general public. The Senate re-
port cites as examples "rules as to personnel's use of parking facilities
or regulation of lunch hours, statements of policy as to sick leave, and
the like." (S. Kept., 89th Cong., 8.)
However, it is apparent from the legislative history of exemption
(2) that it is intended to relieve from the re(]uirements of the revi-
sion— and therefore from the publication requirements of subsection
(a) — much more than internal documents relating to matters of per-
sonnel administration. Congressman Gallagher explained on the
1091
SUBSECTION (a) — PUBLICATION 7
House floor that exemption (2) is intended to protect from disclosure
such documents as income tax auditors' manuals. (11"2 Con<r. Rec.
13026, June 20, 1966). Similarly, the House report explains that al-
though this exemption "would not cover all 'matters of internal
management' * * *," it would exempt from public disclosure such
matters as "operating rules, guidelines, and manuals of procedure for
Government investigators or examiners." (H. Kept., 10.)
Thus, in discussing each of the major reciuirements of subsection
(a), it is imix)rtant to keep in mind the possible applications of each
of the subsection (e) exemptions, {is well as the limitations spelled out
in subsection (a) itself.
(A) DESCRrpTioNS OF Agency Organization
"Every agency shall separately state and currently publish in the
Federal Register for the guidance of the public (A) descriptions of its
central and field organization and the established places at which, the
officers from whom, and the methods whereby, the public may secure
information, make submittals or requests, or obtain decisions;"
The previous section 3(a) (1) required that every agency separately
state and currently publish in the Federal Register descriptions of its
central and field organization "including delegations by the agency of
final authority," and descriptions of where the public can obtain in-
formation. The revision deletes the requirement that such delegations
be published, leaving to each agency discretion to determine what
delegations it should include in its descriptions of agency organization.
The only other changes in the provision add the words "the officers
from whom" and the words "or obtain decisions'" to the requirement
that the public be advised as to where to obtain information. In gen-
eral, the amendments embodied in the revision of section 3(a) (A)
should result in little, if any, change from previous practice.
The Office of the Federal Register suggests that publication of orga-
nizational information in the United States Government Organiza-
tion Manual should not be regarded as a substitute for, but merely a
useful supplement to, the requirement to "currently publish" such in-
formation in the Federal Register.
(B) Methods of Operation
"Every agency shall separately state and currently publish in the
Federal Register for the guidance of the public * * * (B) statements
of the general course and method by which its functions are channeled
and determined, including the nature and requirements of all formal
and informal procedures available;"
This language is almost unchanged from the previous section 3 and
apparently is intended to effect little change in present practice con-
1092
8 PUBLIC INFORMATION SECTION
cerning the publication of statements of the general course and method
by which agency functions are performed. Although the revision substi-
tutes the exceptions in subsection (e) for the previous general excep-
tions to section 8, nothing in either the Senate or House reports on S.
1160 or the explanations offered on the House floor suggests any change
in the functions to which this publication requirement is to apply. The
reports explain that the purpose of these provisions is ''to guide the
public in detennining where and by whom decisions are made, as well as
where they may secure information and make submittals and requests."
(S. Rept., 89th Cong., 6 ; H. Kept., 7.) These provisions are intended to
make available useful information concerning agency functions which
are of concern to the public.
While exemption (2) in subsection (e) excludes matters of personnel
administration and operating instructions, guidlinee, manuals, and
other materials which are for the use of agency staff only, it does
not exclude all matters of internal management. (H. Rept., 10.) With
respect to the "course and method" by which internal management
functions are "channeled and determined," the criterion for publica-
tion is whether the particular "course and method" is of concern to
the public. For example, procurement and other public contract func-
tions and, in some cases, surplus property disposal functions are
matters in which members of the public have an interest, whereas
information concerning other proprietary fimctions usually would not
be useful to the public. To the extent that internal management
functions are of substantial interest to the public, agencies should
describe in the Federal Register the methods they employ in perform-
ing those functions. Of course, functions such as adjudication, licens-
ing, nilemaking, and loan, grant, and benefit functions, are within
the publication requirement of section 3(a) (B), except as they may
be exempted under subsection (e) .
General course and method. — The subsection requires agencies to
disclose, in general terms designed to be realistically informative to
the public, the manner in which matters for which it is responsible
are initiated, processed, channeled, and determined. In the case of
functions exercised so seldom that it is not practicable to prescribe a
definite routine, the published information should be as complete as
may be feasible, identifying at least the title of the official who has
responsibility for such matters and the office to which inquiries may
be directed. The provision does not require an agency to "freeze" its
procedures, or to invent procedures where it has no reason to establish
any fixed procedure. However, any change in published statements of
course and*method should be announced in the Federal Register to
assure that the public is currently informed.
1093
SUBSECTION (a) — PUBLICATION
Formal andinformal procedures available. — Particularly in light of
the re\ised provision governing the effect of failure to publish required
materials in the Federal Register, agencies should reexamine their
present published statements as to the nature and requirements of all
formal and informal procedures to iissure that their published mate-
rials fully apprise members of the public of their rights and oppor-
tunities. For example, if an agency provides opportimity to any mem-
ber of the public for an informal conference on a matter within its
jurisdiction, the fact that the practice exists should be stated in the
Federal Register with a view both to serving the convenience of the
public and facilitating the agency's oi>erations. Such procedures exist
widely and are known to the specialized practitioner. The general pub-
lic should be informed as to their availability and how and where to
take advantage of them.
(C) Procedural, Information
"Every agency shall separately state and currently publish in the
Federal Register for the guidance of the public * * * (C) rules of
procedure, descriptions of forms available or the places at which forms
may be obtained, and instructions as to the scope and contents of all
papers, reports, or examinations;"
Rules of procedure. — Although the previous section 3 made no refer-
ence to "rules of procedure,*' such rules had to be published in the Fed-
eral Register because that section provided that no person was to be
required to resort to procedure which was not published. The new re-
quirement that "rules of procedure"' be published is therefore merely
a restatement of the previous requirement. However, both the Senate
and House committees found instances in which agencies had not
issued necessary rules of practice and procedure, had not published
rules which had been issued, and had not kept published rules up to
date. Such deficiencies should be remedied.
Foi^m-s. — To meet the problem of "too much publication," the revi-
sion relaxes somewhat the requirement concerning the publication of
forms, giving the agencies broad discretion to determine what consti-
tutes appropriate publication. Whereas the previous section 3(a) (2)
required agencies to publish in the Federal Register statements of the
"nature and requirements" of forms, the revised provision only re-
quires publication of either "descriptions of forms available" or "the
places at which forms may be obtained." The change is intended "to
eliminate the need of publishing lengthy forms." (S. Rept., 80th
Cong., 6.) However, it will usually be useful to the public to publish
an up-to-date list of forms showing the heading, the number (if any)
and the date of the most recent version, in addition to the place where
1094
10 PUBLIC INFORMATION SECTION
the forms may be obtained. The subsection, of course, does not require
the creation of special forms for every type of relief which might be
sought.
Section 3(a) (C) concerns only rules, forms, instructions, etc., which
are to be used by the public. It does not require publication in the
Federal Register of internal management forms and similar materials.
(D) Substantive Rules, Policies, and Interpretations
"Every agency shall separately state and currently publish in the
Federal Register for the guidance of the public * * * (D) substantive
rules of general applicability adopted as authorized by law, and state-
ments of general policy or interpretations of general applicability
formulated and adopted by the agency;"
Section 3(a) (D) involves three changes. First, it applies only to
substantive rules and interpretations "of general applicability." Sec-
ond, it deletes the phrase "but not rules addressed to and served upon
named i>ersons in accordance with law." Third, it deletes the phrase
"for the guidance of the public", which now appetirs at the beginning
of subsection (a) . Deletion of the latter plirase at this |X)int is designed
to require agencies to disclose general policies whicli should be known
to the public, whether or not they are adopted for public guidance.
The first two changes are intended to be formal only. Ordinarily
an agency would not adopt a rule or interpretation for publication in
the Federal Register unless it is "of general applicability," which
would exclude rules addressed to and served upon named persons.
Thus, an agency is not required under subsection (a) to publish in
the Federal Register the rules, policies and interpretations formulated
and adopted in its published decisions. Instead, this "case law" is to
be "made available under subsection (b)." (H. Rept., 7.)
Consistent with the puq>ose of all of subsection (a) to enable the
public "to find out where and by whom decisions are made in each
Federal agency and how to make submittals or requests" (H. Rept.,
7), rules, [xjlicy statements, and interpretations as to matters which
do not concern the general public are to be omitted from the Federal
Register. For example, agency rules governing the use of employee
parking facilities and agency policy relative to sick leave are out-
side the requirements.
To the extent that rules, policy statements, and interpretations
must be kept secret in the interest of the national defense or foreign
policy but are not required to be withheld by Executive order or other
authority, agencies should {iccommodate to the statutory plan by
seeking an appropriate exemption by Executive order in accordance
with subsection (e)(1).
1095
SUBSECTION (a) — PUBLICATION 11
Although the Senate committee expressed the view that rules of
particular applicability "such as rates" have no place in the Federal
Register (S. Rept., 88th Cong., 4), there is no requirement that all
rate schedules be omitted. Frequently, rates are collected by a single
utility, but are paid by and therefore may be of interest to a broad
spectrum of the public. In some instances an agency may find it
desirable to publish such rates in the Federal Register even in the
absence of any requirement.
(E) Amendments
"Every agency shall separately state and currently publish in the
Federal Register for the guidance of the public * * *(E) every amend-
ment, revision, or repeal of the foregoing."
"The new clause (E) is an obvious change, added for the sake
of completeness and clarity." (S. Rept., 89th Cong., 6.)
Force and Effect of Unpublished Materials
"Except to the extent that a person has actual and timely notice of
the terms thereof, no person shall in any manner be required to resort
to, or be adversely affected by any matter required to be published in
the Federal Register and not so published."
The previous subsection 3(a), like the revision, required publica-
tion in the Federal Register of substantive rules, statements of policy,
and interpretations, in addition to information concerning agency
organization and procedures. However, the previous provisions relat-
ing to failure to publish required materials applied only to materials
concerning organization and procedure. It provided that no person
shall be required "to resort to organization or procedure" not published
in the Federal Register. Notwithstanding its finding that complaints
with respect to Federal Register publication "have been more on
the side of too much publication rather than too little'' (S. Rept.,
88th Cong., 11), the Senate committee decided that the revision
should afford "added incentive for agencies to publish the necessary
details about their official activities." Accordingly it added the pro-
vision that no person shall be "adversely affected" by any matter
required to be published in the Federal Register and not so published.
In its report in the 88th Congress, the Senate committee explained
with respect to this change that the "new sanction explicitly states that
those matters required to be published and not so published shall be of
no force or effect and cannot change or affect in any way a person's
rights." (S. Rept., 88th Cong., 12.) Of course, not all rules, policy
statements, and interpretations issued by Federal agencies impose
burdens. The Senate committee, apparently acknowledging this fact,
decided after issuing its report in the 88th Congress, that the "new
1096
12 PUBLIC INFORMATION SECTION
sanction" should apply only to matters which impose an obligation
upon persons affected, and not to matters which benefit such persons.
Since the provision did not, in fact, "explicitly'' state that unpub-
lished materials are to be "of no force or effect," no change in the pro-
vision was necessary to reflect the committee's revised intention. All
that was needed was a change in the explanation in the Senate commit-
tee report. Accordingly, the Senate committee report issued in the
89th Congress and tiie House report omit any reference to the "force
and effect" of unpublished materials and explain only that no person
shall be "adversely affected" by such matters. (S. Kept., 89th Cong.,
6; H. Kept., 7.)
From the revised explanation it is evident that the new provision
enlarges upon the corresponding provision of the original section 3.
It applies not only to organization and procedure, but also to the other
items within the publication requirements of subsection (a) — substan-
tive rules, statements of policy, and interpretations. However, the new
sanction operates only to relieve persons of obligations imposed in
materials not published, and not to deny them benefits.
In any case, actual and timely notice cures the defect of nonpublica-
tion, and "a person having actual notice is equally bound" as a person
having constructive notice by Federal Register publication. "Cer-
tainly actual notice should be equally as effective as constructive
notice." (S. Kept., 88th Cong., 4.)
Incorporation by Reference
"For purposes of this subsection, matter which is reasonably avail-
able to the class of persons affected thereby shall be deemed published
in the Federal Register when incorporated by reference therein with
the approval of the Director of the Federal Register,"
In its report the Senate committee found that there are "many agen-
cies whose activities are thoroughly analyzed and publicized in pro-
fessional or specialized services, such as Commerce Clearing House,
West publications, etc. It would seem advantageous to avoid the repe-
tition of much of this material in the Federal Register when it can be
incorporated by reference and is readily available to interested mem-
bers of the public. This is one way in which the Federal Register can
be kept down to a manageable size." (S. Rept., 88th Cong., 4.)
It should be noted, however, that incorporation by reference is not
a substitute for actual publication in the Federal Register except to
the extent permitted by the Director of the Federal Register. See rules
of the Director, 32 F.R. 7899, June 1, 1967, 1 C.F.R. Part 20.
St<indard of irh/it is ^^re(UHonahly avaUaWeP — To meet this test the
material incorporated must be set forth substantially in its entirety
in the public or private publication and not merely summarized or
1097
SUBSECTION (b) — AVAILABILITY 13
printed as a synopsis. Also, if the publication to be incorporated is a
private publication, it should be readily available to the class of per-
sons affected thereby, and not be difficult for them to locate.
Sufficiency of reference. — For purposes of this provision, the Senate
report, explains that the term "incorporation by reference" contem-
plates "(1) uniformity of indexing, (2) clarity that incorporation by
reference is intended, (3) precision in description of the substitute
publication, (4) availability of the incorporated material to the pub-
lic, and, most important, (5) that private interests are protected by
completeness, accuracy, and ease in handling." The provision is not
intended to permit the incorporation of materials the "location and
scope" of which are familiar to "only a few persons having a special
working knowledge of an agency's activities." (S. Kept., 88th
Cong., 5.)
SUBSECTION (b)— PUBLIC AVAILABILITY OF OPINIONS,
ORDERS, POLICIES, INTERPRETATIONS, MANUALS,
AND INSTRUCTIONS
"(b) AGENCY OPINIONS AND ORDERS.— Every agency shall, in
accordance with published rules, make available for public inspection
and copying * * *."
In the previous section 3, subsection (b) related only to "final opin-
ions or orders in the adjudication of cases." Although the heading of
the revised subsection (b) is "Agency opinions and orders," it enlarges
the scope of the subsection by adding "those statements of policy and
interpretations which have been adopted by the agency and are not
published in the Federal Register" and "administrative staff manuals
and instructions to staff that affect any member of the public."
The extended coverage of the subsection is explained in the House
report as follows :
"In addition to the orders and opinions required to be made
public by the present law, subsection (b) of S. 1160 would require
agencies to make available statements of policy, interpretations,
staff manuals, and instructions that affect any member of the pub-
lic. This material is the end product of Federal administration.
It has the force and effect of law in most cases * * *.
"As the Federal Government has extended its activities to solve
the Nation's expanding problems — and particularly in the 20
years since the Administrative Procedure Act was established —
the bureaucracy has developed its own form of case law. This law
is embodied in thousands of orders, opinions, statements, and
instructions issued by hundreds of agencies. This is the material
which would be made available under subsection (b) of S. 1160."
(H. Rept., 7.)
76-253 O - 72 - pt. 4-7
1098
14 PUBLIC rNTFORMATION SECTION
Agency Rules Governing Avail.ability
All of the materials to which subsection (b) applies are of the kinds
which would ordinarily be available in a public reading room if one
is provided by the agency. Some agencies may find the operation of
one or more such facilities the easiest and most practicable way of
complying with the requirements of subsection (b). Others may find
different means of making materials available more satisfactory.
Every agency is required by the subsection to publish rules which
should deal, at least, with (1) access to the items listed in the subsec-
tion, (2) deletion of identifying details, as provided in the subsection,
(3) the availability of copies, and (4) the maintenance of a current
index. Charges should not be made for the normal use of reading rooms
or other similar facilities for examination of information of the type
required by subsection (b) to be made available for public inspection.
Charges should be made, however, to recover the costs of any search
of records or of duplicating, reproducing, certifying, or authenticating
copies of all documents, whether the documents are located in the read-
ing room or in storage warehouses. (S. Rept., 88th Cong., 6.)
The only charges in connection with materials on file in reading
rooms and similar facilities should be the actual cost of duplicating or
copying materials where copies are requested. "Subsection (b) requires
that Federal agency records which are available for public inspection
also must be available for copying, since the right to inspect records
is of little value without the right to copy them for future reference.
Presumably, the copying process would be without expense to the
Government since the law (5 U.S.C. 140) already directs Federal
agencies to charge a fee for any direct or indirect services such as pro-
viding reports and documents." (H. Rept., 8.)
Inclusion of Materials Not Subject to the Requirements
The basic purpose of subsection (b) is "to afford the private citizen
the essential information to enable him to deal effectively and knowl-
edgeably with the Federal agencies." (S. Rept., 88th Cong., 12.) Yet
the subsection does not require access to or the indexing of all of the
materials which may be useful to further this purpose. Statements
of policy and agency interpretations which are published in the
Federal Register pursuant to the requirements of subsection (a) are
specifically exempt from the requirements of subsection (b), includ-
ing the indexing requirement of tlie latter subsection. In establishing
procedures and facilities for making subsection (b) materials avail-
able, however, agencies should keep in mind the basic purposes of the
subsection and include whatever materials may provide "essential in-
1099
SUBSECTION (b) — AVAILABILITY 15
formation." A reading room, for inst<ance, will be more useful if it pro-
vides ready reference to all rules and policy statements which have
been published in the Federal Register.
(A) Final Opinions and Orders
"(b) AGENCY OPINIONS AND ORDERS.— Every agency shall, in
accordance with published rules, make available for public inspection
and copying (A) all final opinions (including concurring and dissenting
opinions) and all orders made in the adjudication of cases * * *."
The term "order" is defined in section 2(d) of the APA as the
whole or a part of the final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in any matter other
than rulemaking. Thus the term includes every final action of an
agency except the issuance of a rule.
Neither the previous section 3 nor the revised section contemplates
the public availability of every "order," as the word is thus defined.
The expression "orders made in the adjudication of cases" is intended
to limit the requirement to orders which are issued as part of the
final disposition of an adjudicative proceeding.
The sanction applicable to subsection (b) is set forth in its last
sentence :
"No final order, opinion, statement of policy, interpretation, or
staff manual or instruction that affects any member of the public
may be relied upon, used or cited as precedent by an agency
against any private party unless it has been indexed and either
made available or published as provided by this subsection or
unless that private party shall have actual and timely notice of
the terms thereof."
The scope of this sanction seems to limit the effective reach of
subsection (b) to those orders which may have precedential effect.
Other orders, of course, may be requested under subsection (c). How-
ever, keeping all such orders available in reading rooms, even when
they have no precedential value, often would be impracticable and
would serve no useful purpose. It should also be noted that subsection
(b) expressly provides that it shall not apply to any opinion or order
which is "promptly published and copies offered for sale." This is
to afford the agency "an alternative means of making these materials
available through publication." (S. Rept., BOth Cong., 7.)
The term "opinions" relates only to those issued with and in ex-
planation of "orders made in the adjudication of cases." The words
"concurring and dissenting opinions" were added to the previous re-
quirement "to insure that, if one or more agency members dissent or
concur, the public and the part/ies should have access to these views
and ideas." (S. Rept., 89th Cong., 7.)
1100
16 PUBLIC INFORMATION SECTION
(B) Statements of Policy and Interpretations Which Are Not
Published in the Federal Register
"Every agency shall * * * make available for public inspection and
copying * * * (B) those statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal
Register * * ♦."
Whereas subsection (a) requires publication in the Federal Register
of statements of general policy or interpretations of general applica-
bility, subsection (b) covers statements and interpretations which are
not of general applicability, but which the agency may rely upon as
precedents. The policy statements and interpretations included with-
in this provision are only those which have been adopted by the agency
itself, or by a responsible official to whom the agency has delega^ted
authority to issue such policy statements and interpretations. The pro-
vision in subsection (b) respecting the deletion of "identifying details"
applies to such matters.
The House report (H. Rept., 7) emphasizes, however, that under the
new language of section 3(b) (B), "an agency may not be required to
make available for public inspection and copying any advisory in-
terpretation on a specific set of facts which is requested by and ad-
dressed to a particular person, provided that such interpretation is
not cited or relied upon by any officer or employee of the agency as
a precedent in the disposition of other cases.'' (H. Rept., 7.)
(C) Manuals and Instructions
"Every agency shall * * * make available for public inspection and
copying * * * (C) administrative staff manuals and instructions to staff
that afifect any member of the public * * *."
Standards established in agency staff manuals and similar instruc-
tions to staff often may be, for all practical purposes, as determinative
of matters within the agency's responsibility as other subsection (b)
materials which have the force and effect of law. In accordance with
the basic purpose of subsection (b), "to afford the private citizen the
essential information to enable him to deal effectively and knowledge-
ably with the Federal agencies" (S. Rept., 88th Cong., 12), subsection
3(b) (C) requires the public availability of "administrative" staff man-
uals and instructions to staff if they "affect any member of the public."
The exemptions of subsection (e) apply.
Limitation to '"'•admiinistrative'' materials. — The hearings in both
the Senate and House refer to a number of instances in which agency
manuals and similar materials contain confidential instructions to
agency staff which must be protected from disclosure if they are to
1101
SUBSECTION (b) — AVAILABILITY 17
serve the purpose for which they are intended. For example, agency
instructions to contracting officers governing the outer limits of what
they may concede on behalf of the Government in negotiating a
contract cannot be disclosed to private contractors without rendering
fair negotiation virtually impossible. Similar problems exist in con-
nection with instructions to agency personnel as to ( 1 ) the selection of
samples in making "spot investigations," (2) standards governing the
examination of banks, the selection of cases for prosecution, or the
incidence of "surprise audits,*' and (3) the degree of violation of a
regulatory requirement which an agency aa-iII permit before it under-
takes remedial action.
Congressional recognition of these goals is shown by the limitation
of section 3 (b) (C) to what the draftsmen have designated "administra-
tive*' manuals and instructions as distinguished from those which
contain confidential instructions. The Senate report (S. Kept., 89tli
Cong., 2) states that "The limitation * * * to administrative matters
* * * protects the traditional confidential nature of instructions to
Government personnel prosecuting violations of law in court, while
permitting a public examination of the basis for administrative ac-
tion." The House report (at pp. 7-8) explains that "an agency may
not be required to make available those portions of its staff manuals
and instructions which set forth criteria or guidelines for the staff
in auditing or inspection procedures, or in the selection or liandling
of cases, sucli as operational tactics, allowable tolerances, or criteria
for defense, prosecution, or settlement of cases.'*
All agencies should reexamine all manuals, handbooks, and similar
instructions to staff which have been used only internally, to ascer-
tain whether they include standards and instructions which neces-
sarily cannot be disclosed to the public. After any confidential stand-
ards and instructions are deleted, documents containing "essential
information" of the kind sought to be made available to the public by
section 3(b) (C) should be included in the public index and made
available for public inspection and copying, or published and offered
for sale, unless they come within one of the exemptions of subsection
Limitation to materials which '^affect the ]>ublic''\ — Consistent with
the general purpose of subsection (b), section 3(b) (C) is not intended
to apply to materials which do not concern the public. For example,
manuals on property or fiscal accounting, vehicle maintenance, person-
nel administration, and most other "proprietary" functions of agen-
cies which do not affect the public would be excluded from the require-
ment of subsection 3(b) (C).
1102
18 public information section
Exception of Materials Offered For Sale
"Every agency shall, in accordance with published rules, make avail-
able for public inspection and copying » * * unless such materials are
promptly published and copies oflfered for sale."
To provide agencies with "an alternative means of making these
materials available" (S. Kept., 89th Cong., 7), materials listed in
clauses (A), (B),and (C) of subsection (b) which are "promptly pub-
lished and copies offered for sale" are not subject to the requirement
that they be included in a public reading room or otherwise be made
available for public inspection and copying. This should not be con-
strued to exclude materials offered for sale from the indexing require-
ment set forth later in subsection (b). As with materials published in
the Federal Register, if a reading room is maintained, it would be
helpful to the public if a copy of materials published and offered for
sale were made available for examination in such a room. Of course,
there would be no requirement to reproduce such materials since copies
could be purchased.
Deletiox of Identifying Details
'To the extent required to prevent a clearly unwarranted invasion of
personal privacy, an agency may delete identifying details when it
makes available or publishes an opinion, statement of policy, interpreta-
tion, or staff manual or instruction : Provided, That in every case the
justification for the deletion must be fully explained in writing."
Throughout their consideration of S. 1160, the Senate and House
committees were acutely aware of the need, in enacting any public
records statute, to avoid any public disclosure of information which
might result in an unwarranted invasion of privacy. At the same time,
the public may need access to the statement of principles and stand-
ards, and the rationale and explanation of agency policy, set forth in
agency decisions which determine private rights and obligations.
Accordingly, subsection (b) contains a special provision designed
to make these matters available to the public but authorizing the dele-
tion of "identifying details" in particular cases where disclosure of
these details would result in an invasion of the privacy of the parties
or other persons concerned. This special provision, as it relates to sec-
tion 3(b) (A), makes a distinction between "opinions" and "orders,"
since it refers to the former and not the latter. The provision appar-
ently contemplates that a statement of principles and reasoning may
be set forth in an "opinion" issued with an order, and that the "order"
itself is merely a summary statement of the agency's final action in
the adjudication of a case. If disclosure of an order in a case file would
constitute a clearly unwarranted invasion of personal privacy, the
1103
SUBSECTION (b) — AVAILABILITY 19
order is exempt under subsection (e) (6) from any requirement of
section 3 and need not be disclosed or indexed. However, if the agency
issues an "opinion" which states any principle or policy of precedential
significance, the agency in publishing the opinion or making it avail-
able may delete "identifying details'' to the extent necessary to prevent
a clearly imwarranted invasion of personal privacy, with a full ex-
planation in writing of the "justification" for the deletions.
The purpose of the mechanism thus embodied in the revision is ex-
plained as follows in the Senate and House reports:
"The authority to delete identifying details after written justi-
fication is necessary in order to be able to balance the public's
right to know with the private citizen's right to be secure in his
personal affairs which have no bearing or effect on the general
public. For example, it may be pertinent to know that unseason-
ably harsh weather has caused an increase in public relief costs;
but it is not necessary that the identity of any person so affected
be made public." (S. Kept., 89th Cong., 7.)
"The public has a need to know, for example, the details of an
agency opinion or statement of policy on an income tax matter,
but there is no need to identify the individuals involved in a tax
matter if the identification has no bearing or effect on the general
public." (H. Kept., 8.)
The reference to income tax matters in the House report shows
that this provision is intended to protect privacy in a person's busi-
ness affairs as well as in medical or family matters. In this connection,
the applicable definition of "person," which is found in section 2(b)
of the Administrative Procedure Act, includes corporations and
other organizations as well as individuals. In the context of this sec-
tion, the reasons for deleting identifying details would seem as ap-
plicable to corporations as to individuals.
Explunat'wn of '■'■justification, for the deht ion."— ^^Written justi-
fication for deletion of identifying details is to be placed as preamble''
to dociunents from which such details are deleted. (S. Kept., 89th
Cong., 7.) "Without such ex;planation, the public availability of the
document, with all identifying details deleted, might present more
questions than it answers.
Obviously, the explanation should not defeat the purposes of the
deletion by raising inferences which may be even more injurious than
the invasion of privacy which the provision avoids. Agencies must
exercise careful judgments to assure that they furnish as much infor-
mation as they can without violating the spirit or defeating the pur-
pose of the provision.
1104
20 PUBLIC INFORMATION SECTION
There are agencies with large numbers of cases involving matters
which, if disclosed, would invade personal privacy. As a matter of
administrative feasibility, it may be necessary for such agencies to
specify fully in the rules they issue to implement subsection (b) the
usual reasons for deletions, and to cite these rules in the "preamble"
to each opinion or group of opinions as the justification for the dele-
tion, instead of attempting to set forth a complete explanation in
each one of the opinions they make available.
Public Index
"Every agency also shall maintain and make available for public
inspection and copying a current index providing identifying informa-
tion for the public as to any matter which is issued, adopted, or promul-
gated after the effective date of this Act and which is required by this
subsection to be made available or published. No final order, opinion,
statement of policy, interpretation, or staff manual or instruction that
affects any member of the public may be relied upon, used or cited as
precedent by an agency against any private party unless it has been
indexed and either made available or published as provided by this
subsection or unless that private party shall have actual and timely
notice of the terms thereof."
The House report explains that the provision requiring the main-
tenance of a current public index of materials within subsection (b) is
designed to "help bring order out of the confusion of agency orders,
opinions, policy statements, interpretations, manuals, and instructions
by requiring each agency to maintain for public inspection an index
of all the documents having precedential significance * * *." (H. Rept.,
8.)
The public index requirement is limited to items required to be made
available by subsection (b). This excludes, for example, statements of
policy and interpretations published in the Federal Register, since the
Federal Register index is deemed sufficient as to them. In some cases,
agencies may find it useful to include such materials in their public in-
dex in the interests of making it complete and comprehensive, even
though such indexing is not required. The limitation also excludes
from the requirement items exempted by subsection (e) and items out-
side the limits of subsection (b), such as administrative staff instruc-
tions which do not afi'ect the public. The criterion as to what constitutes
"identifying information," within the meaning of this provision, "is
that any competent practitioner who exercises diligence may familiar-
ize himself with the materials through use of the index." (S. Rept., 88th
Gong., 6.)
Because "considerations of time and expense cause this indexing
requirement to be made prospective in application only" (S. Rept.,
1105
SUBSECTION (b) — AVAILABILITY 21
89t.h Cong., 7 ; H. Kept., 8) , agencies may, at any time, cite as precedent
an opinion, order, policy statement, interpretation, manual, or instruc-
tion adopted by the agency prior to July 4, 1967, the effective date of
the requirement, irrespective of whether it is listed in the agency's
public index. However, agencies should be mindful of the underlying
purpose of the indexing requirement. For instance, agencies which
do not maintain such an index at the present time may find it helpful
to compile and make available an index of the major precedents now
relied upon, even though they are outside the requirement.
Careful and continuing attention will be required to distinguish
"documents having precedential significance" (H. Kept., 8) — the only
ones required to be included in the index — from the great mass of
materials which have no such significance and which would only
clutter the index and detract from its usefulness. Of course, this does
]iot mean that an agency is not free to include nonprecedential material
where it considers such inclusion helpful.
To illustrate the nature of the index contemplated by this require-
ment, both the Senate and the House reports point out that many
agencies already maintain public indexing systems which are ade-
quate within the meaning of this requirement. (H. Rept., 8.) "Such
indexes satisfy the requirements of this bill insofar as they achieve
the purpose of the indexing requirement. No other special or new
indexing will be necessary for such agencies." (S. R«pt., 89th Cong., 7.)
Both the Senate and House reports (S. Rept., 89th Cong., 7; H.
Rept., 8) cite the present indexing system of the Interstate Commerce
Commission as a system which satisfies the requirements of this pro-
vision. Decisions of that agency are reported in several sets of reports,
each of which deals with a substantial segment of the Commission's
jurisdiction. Railroad and water carrier cases, for example, are
printed in the series entitled "Interstate Commerce Commission Re-
ports," now some 328 volumes. Decisions arising under its more re-
cently granted jurisdiction over motor carriers are published in a
separate set, now more than 100 volumes, entitled "Interstate Com-
merce Commission Reports, Motor Carrier Cases." Each of these sets
contains in each volume an alphabetical subject-matter index which
furnishes citations to page numbers in that volume only.
In addition, the Commission publishes a series entitled "Interstate
Commerce Acts Annotated" (20-odd volumes) which is a compre-
hensive index digest patterned generally after the United States Code
Annotated. It covers all of the Interstate Commerce Act and related
acts administered by the Commission, as well as other acts which affect
the Commission, for example, selected sections of title 28, United
States Code, relating to appeals.
1106
22 PUBLIC INFORMATION SECTION
It is important to note that the indexing system of the Interstate
Commerce Commission, although very comprehensive, is selective and
does not attempt to list all final opinions and orders made in the ad-
judication of cases. It includes only those opinions which are con-
sidered by the Commission to be potentially significant as precedents.
Its use as a model therefore accords with the explanation in the House
report (H. Rept., 7) that the indexing requirement of subsection (b)
is to include all documents "having precedential significance," and
with the explanation in the Senate report (S. Rept., 89th Cong., 7)
that orders, opinions, etc., which are not properly indexed and made
available to the public may not be relied upon or cited "as precedent"
by any agency.
Actual Notice
Failure to index a document or to publish or make it available does
not preclude using it as precedent against any party who has "actual
and timely notice of the terms thereof." As assurance against defects in
publication and indexing, some agencies may find it desirable to sup-
plement their compliance with the index requirement by establishing
procedures whereby all regulated interests are given actual notice of the
terms of materials which may be used against them, through the use of
mailing lists or otherwise. The same idea, of course, may be applied on
a limited basis. If it is impracticable to afford actual notice to all
interested parties subject to a particular policy or interpretation, it may
be desirable to serve a copy upon those parties most interested. If such
practice is adopted, it should be used in addition to rather than in lieu
of the required publication and indexing, since the essential purpose of
the subsection is to make available to the public the "end product"
materials of the administrative process. (H. Rept., 7.)
Whereas the provision of the original section 3 relating to the effect
of failure to make matters available under subsection (b) provided
only that opinions and orders not made available for public inspection
were not to be "cited as precedents," the corresponding language in
the revision is that materials not thus available are not to be "relied
upon, used or cited as precedent" against any private party who has
not had actual notice of the terms thereof. The legislative history con-
tains no explanation of the difference between the new provision and
that which it replaces. The additional words may have been inserted
merely for emphasis, or to preclude an agency, in making a final de-
cision, from relying upon a precedent which has not been made public.
1107
SUBSECTION (c) — IDENTIFIABLE RECORDS 23
SUBSECTION (c)— OTHER AGENCY RECORDS
"(c) AGENCY RECORDS.— Except with respect to the records made
available pursuant to subsections (a) and (b), every agency shall, upon
request for identifiable records made in accordance with published
rules stating the time, place, fees to the extent authorized by statute
and procedure to be followed, make such records promptly available to
any person."
Agency Records to Which Subsection (c) Applies
The "Except" clause with which the provision begins is intended
"to emphasize that the agency records made available by subsections
(a) and (b) are not covered by subsection (c) which deals with other
agency records." (S. Kept., 89th Cong., 2). Whereas subsections (a)
and (b) require the publication or general availability of the materials
described in those subsections, the "only records which must be made
available" under subsection (c) "are those for which a request has been
made." (Ibid.)
The term "records" is not defined in the act. However, in connection
with the treatment of official records by the National Archives, Con-
gress defines the term in the act of July 7, 1943, sec. 1, 57 Stat. 380,
44 U.S.C. ( 1964 Ed. ) 366 as follows :
"* * * the word 'records' includes all books, papers, maps, photo-
graphs, or other documentary materials, regardless of physical
form or characteristics, made or received by any agency of the
United States Government in pursuance of Federal law or in
connection with the transaction of public business and preserved
or appropriate for preservation by that agency or its legitimate
successor as evidence of tlie organization, functions, policies, de-
cisions, procedures, operations, or other activities of the Govern-
ment or because of the informational value of data contained
therein. Library and museum material made or acquired and pre-
served solely for reference or exhibition purposes, extra copies of
documents preserved only for convenience of reference, and stocks
of publications and of processed documents are not included
within the definition of the word 'records' as used in this Act."
It is evident from the emphasis in the legislative history of Public
Law 89^87 upon the concept that availability shall include the right
to a copy, that the term "records" in subsection (c) does not include
objects or articles such as structures, furniture, paintings, sculpture,
three-dimension models, vehicles, equipment, etc., whatever their
historical value or value "as evidence." It is equally clear that the
definition is not limited to historical documents, but includes contem-
poraneous documents as well.
Subsection (c) refers, of course, only to records in being and in the
possession or control of an agency. The requirement of this subsection
1108
24 PUBLIC INFORMATION SECTION
imposes no obligation to compile oi- procure a record in response to a
request. This is evidenced by the fact that the term "information" in
the bill, as introduced, was changed by the Senate to "identifiable
records" and by the legislative history of that change. (S. Kept., 89th
Cong., 2.)
Most requests will probably be directed to records Avhich are the
exclusive concern of the agency of which the request is made. Where
a record is requested which is of concern to more than one agency, the
request should be referred to the agency whose interest in the record
is paramount, and that agency should make the decision to disclose
or withhold after consultation with the other interested agencies.
Where a record requested from an agency is the exclusive concern of
another agency, the request should be referred to that other agency.
Every effort should be made to avoid encumbering the applicant's
path with procedural obstacles when these essentially internal Gov-
ernment problems arise. Agencies generally should treat a referred
request as if it had been filed at the outset with the agency to which
the matter is ultimately referred.
Meaning of the Term "Identifiable"
A member of the public who requests a record must provide a rea-
sonably specific description of the particular record sought. As the
Senate report states, the "records must be identifiable by the person
requesting them, i.e., a reasonable description enabling the Govern-
ment employee to locate the requested records. This requirement of
identification is not to be used as a method of withholding records."
(S. Rept., 89th Cong., 8.)
The requirement is thus not intended to impose upon agencies an
obligation to undertake to identify for someone who requests records
the particular materials he wants where a reasonable description is
not afforded. The burden of identification is with the member of the
public who requests a record, and it seems clear that Congress did not
intend to authorize "fishing expeditions." Agencies should keep in
mind, however, "that the standards of identification applicable to the
discovery of records in court proceedings" are "appropriate guide-
lines," and that their superior knowledge of the contents of their files
should be used to further the philosophy of the act by facilitating,
rather than hindering, the handling of requests for records. See S.
Kept., 89th Cong., 2.
Agency Rules Implementing Subsection (c)
Because of the summary nature of the disclosure requirement of
subsection (c) , the abbreviated form in which the exemptions of sub-
1109
SUBSECTION (c) — IDENTIFIABLE RECORDS 25
section (e) are stated, and the technique of providing a single set of
exemptions applicable to all of the publication and disclosure require-
ments instead of tailoring separate exemptions to fit each requirement,
it is apparent that extensive implementation by agency rules will be
necessary.
In addition to the rules required under subsections (a) and (b),
every agency should promulgate rules which will establish, for agency
jiersonnel and the public alike, standards governing the availability
under subsection (c) of types of records in the agency's possession.
The guidelines of .the statute afford little more than a framework.
They should be implemented by agency rules which are clear and work-
able. The rules should prescribe the procedures to be employed in mak-
ing records available, the time when they shall be available, the
charges therefor, and the procedures involved.
Copies
A substantial problem in the practical application of subsection (c)
is the physical problem of producing records, upon request, which are
not available in a public reading room or similar facility. A copy of a
requested record should be made available as promptly as is reasonable
under the particular circumstances. Where an agency's contract with a
reporting service requires that copies of transcripts be sold only by
the service, the copy in the possession of the agency should be made
available for inspection. If a copy of the transcript is requested, the
agency may refer the applicant to the reporting service.
Techniques of records retrieval and copying are advancing rapidly.
Appropriate procedures and adequate equipment may contribute as
much to successful compliance with subsection (c) as thoughtful and
intelligent implementation of the statutory standards in the agency's
rules. Therefore, all agencies should carefully plan and equip to meet
the i^roblems of physically producing requested records.
Fees
The provision authorizing agencies to require payment of a fee with
each request for records under subsection (c) makes it clear that the
services performed by all agencies under the act are to be self-sustaining
in accordance with the Government's policy on user charges. Congres-
sional intent on this point is further evident in the legislative history
of this act. See H. Kept., 8, 9.
The law (5 U.S.C. [1964 Ed.] 140) referred to in the House Keport
as directing Federal agencies "to charge a fee for any direct or indirect
services such as providing reports and documents" provides the statu-
1110
26 PUBLIC INFORMATION SECTION
tory foundation of the user charges program. This user charges statute
begins with the following statement of purpose :
"It is the sense of the Congress that any work, service publica-
tion, report, document, benefit, privilege, authority, use, franchise,
license, permit, certificate, registration, or similar thing of value
or utility performed, furnished, provided, granted, prepared, or
issued by any Federal agency (including wholly owned Govern-
ment corporations as defined in the Government Corporation Con-
trol Act of 1945) to or for any person (including groups, associa-
tions, organizations, partnerships, corporations, or businesses),
except those engaged in the transaction of official business
of the Government, shall be self-sustaining to the full extent
possible, * * *.•'
The statute further authorizes the head of each agency to establish
any fee, price, or charge which he determines to be "fair and equitable
taking into consideration direct and indirect cost to the Government,
value to the recipient, public policy or interest served, and other per-
tinent facts * * *."
Guidance in carrying out the user charges policy is contained in
Bureau of the Budget Circular No. A-25, "User Charges." This
circular provides that "where a service (or privilege) provides special
benefits to an identifiable recipient above and beyond those which
accrue to the public at large, a charge should be imposed to recover the
full cost to the Federal Government of rendering that service." The
circular prescribes general guidelines to be used in (1) determining
the costs to be recovered, (2) establishing appropriate fees, and (3)
providing for the disposition of receipts from the collection of fees
and charges.
It is evident from the provisions of the user charges statute, the
Bureau of the Budget circular, and the legislative history of the act
that the enactment does not contemplate that agencies shall spend
time searching records and producing for examination everything a
member of the public requests under subsection (c) and then charge
him only for reproducing the copies he decides to buy. Instead, an
appropriate fee should be required for searching as distinguished from
a fee for copying. Such fees should include indirect costs, such as the
cost to the agency of the services of the Government employee who
searches for, reproduces, certifies, or authenticates in some manner
copies of requested documents. Extensive searches should not be
undertaken until the applicant has paid (or has provided sufficient
assurance that he will pay) whatever fee is determined to be
appropriate.
By charging reasonable fees which compensate the Government for
the cost of performing such special services, the agency will comply
with the congressional intent to recover costs. Charging fees may also
nil
SUBSECTION (c) — IDENTIFIABLE .REOORDS 27
discourage frivolous requests, especially for large quantities of records
the production of which would uselessly occupy agency personnel to
the detriment of the proper perfomiance of other agency functions
as well as its service in filling legitimate requests for records.
Judicial Review Under Subsection (c)
"Upon complaint, the district court of the United States in the dis-
trict in which the complainant resides, or has his principal place of
business, or in which the agency records are situated shall have juris-
diction to enjoin the agency from the withholding of agency records and
to order the production of any agency records improperly withheld from
the complainant. In such cases the court shall determine the matter de
novo and the burden shall be upon the agency to sustain its action. In
the event of noncompliance with the court's order, the district court
may punish the responsible oflScers for contempt. Except as to those
causes which the court deems of greater importance, proceedings before
the district court as authorized by this subsection shall take precedence
on the docket over all other causes and shall be assigned for hearing
and trial at the earliest practicable date and expedited in every way."
Any person from whom an agency has withheld a record after prop-
er request under subsection (c) may file a complaint in the appro-
priate United States district court. The agency then has the burden
to justify the withholding, which it can satisfy by showing that the
record comes within one of the nine exemi>tions in subsection (e).
"VYliile it is not the purpose of this memorandum to discuss the
jurisdiction of the district courts or the procedures in such cases, it
should be noted that most cases arising under subsection (c) will be
handled by the General Litigation Section of the Civil Division of
the Department of Justice. In those cases, upon receipt of a copy of the
summons and complaint served upon the Attorney General and noti-
fication of its filing by the United States Attorney (see Rule 4,
Federal Rules of Civil Procedure), the General Litigation Section
will request the agency to furnish a litigation report.
Since subsection (c) provides that these cases should be given
a priority on the court docket, the agency should similarly accord
priority to the submission of its reix>rt. in order that a timely response
to the complaint may be filed, thus avoiding the necessity of request-
ing extensions of time.
Some agencies are authorized to conduct their own litigation. Where
its authority permits, the agency may decide to handle its own cases
under this act. In view of the general litigation responsibility which
the Department of Justice has for all other departments and agen-
cies in the executive branch, it is important that agencies handling
their own litigation under this act keep the Department of Justice
currently informed of their progress and forward to the Civil Division
copies of significant documents which are filed in such cases.
1112
28 PUBLIC INFORMATION SECTION
The House report aptly describes the district court proceeding under
subsection (c) as follows (H. Kept., 9) :
"The proceedings are to be de novo so that the court can con-
sider the propriety of the witliholding instead of being restricted
to judicial sanctioning of agency discretion. The court will have
authority whenever it considers such action equitable and appro-
priate to enjoin the agency from withholding its records and to
order the production of agency records improperly withlield. The
burden of proof is placed upon the agency which is the only party
able to justify the withholding. A private citizen camiot be asked
to prove that an agency has withheld information improperly
because he will not know the reasons for the agency action."
The injunction is an equitable remedy. As the above language recog-
nizes, in a trial de novo under subsection (c) the district court is free
to exercise the traditional discretion of a court of equity in determining
whether or not the relief sought by the plaintiff should be granted.
In making such determination the court can be expected to weigh the
customary considerations as to whether an injunction or similar relief
is equitable and appropriate, including the purposes and needs of the
plaintiff, the burdens involved, and the importance to the public
interest of the Government's reason for nondisclosure. See Hecht Co.
V. Boioles, 321 U.S. 321 (1944) ; United St-ates v. Reynolds, 345 U.S. 1
(1953) ; 2 Pomeroy's Equity Jurisprudence §§ 397-404 (Symons 5th
ed. 1941).
It should also be noted that district court review is designed to follow
final action at the agency head level. The House report states that "if a
request for information is denied by an agency subordinate the person
making the request is entitled to prompt review by the head of the
agency." (H. Kept., 9.) In reviewing this action, the district court is
granted "jurisdiction to enjoin the agency from the withholding of
agency records and to order the production of any agency records im-
properly withheld from the complainant." Jurisdiction of a suit against
agency officers, as distinguished from the agency itself, is not explicitly
granted. The subsection also provides that "in the event of noncom-
pliance with the court's order, the district court may punish the
responsible officers for contempt."
These provisions seem to assume the usual two-step procedure fol-
lowed by courts of equity in contempt proceedings for violation of
court orders. Following the statutory plan, the district court would
presumably issue an order directed to the agency, which, under the
language of the statute, is the only party defendant. In the event of
noncompliance with the order — which would presumably have been
served upon the head of the agency or whomever he delegated to
make the final agency decision — the court would probably issue an
1113
SUBSECTION (d) VOTING RECORDS 29
order to show cause directed to the responsible officer, which he would
then have opportunity to answer. Subordinate officials who are not
responsible for final agency action have a duty to follow the instructions
of the agency head or his delegate and are probably not subject to the
contempt provision. See Touhy v. Ragen, 340 U.S. 462 ( 1951 ) .
SUBSECTION (d)— VOTING RECORDS OF AGENCY
MEMBERS
"(d) AGENCY PROCEEDINGS.— Every agency having more than
one member shall keep a record of the final votes of each member in
every agency proceeding and such record shall be available for public
inspection."
This subsection applies, of course, only to the votes of members
of boards, commissions, etc., and not to agencies headed by a single
administrator. Originally, the provision required that a public record
be kept of all votes by agency members. After study, the Senate com-
mitteie concluded that there might be ''considerable disadvantage" in
the disclosure of "preliminary votes." (S. Kept. 88th Cong., 7.) There-
fore, the provision was revised to apply only to "final votes of multi-
headed agencies in any regulatory or adjudicative' proceeding." (H.
Rept., 9.) Again, the exemptions of subsection (e) apply as well to
this siibsection as to the other subsections.
SUBSECTION (e)— EXEMPTIONS
"(e) EXEMPTIONS.— The provisions of this section shall not be
applicable to matters that are * * *."
"We have noted above that subsection (e) , containing the exemptions,
applies to all of the various publication and disclosure requirements
of the new section 3. Adoption of this sti-victure, rather than the
tailoring of specific exemptions to each of the disclosure requirements
contained in subsections (a), (b), (c), and (d), inevitably creates
some problems of interpretation. An appropriate exemption from
the Federal Register publication requirements of subsection (a) is
not necessarily an appropriate reason for keeping secret a record re-
quested under subsection (c). Exemption (2), for example, which re-
lieves from all of the requirements of the act "matters that are * * *
related solely to the internal personnel rules and practices of any
agency," obviously is an appropriate exemption from the require-
ments of subsection (a) governing publication in the Federal Register.
However, in the case of a request for access to a particular document
under subsection (c), a strict, literal application of the language of
exemption (2) frequently might produce incongruous results, shield-
76-253 O - VZ - pt. 4
1114
30 PUBLIC INFORMATION SECTION
ing from disclosure matters with respect to which there can be no
possible reason for secrecy, such as blank forms used by Government
employees in applying for leave.
It is obvious from a reading of subsection (e) that the exemptions
must be construed in such manner as to provide a set of "workable
standards," achieving the desired balance which is the basic statutory
objective.
(1) National Defense and Foreign Policy
'The provisions of this section shall not be applicable to matters that
are (1) specifically required by Executive order to be kept secret in the
interest of the national defense or foreign policy;"
In a statement on the House floor when S. 1160 was presented for
consideration. Congressman Dole expressed the view that the "bill
gives full recognition to the fact that the President must at times act
in secret in the exercise of his constitutional duties * * *." (112 Cong.
Rec. 13022, June 20, 1966.) With respect to the same problem, Chair-
man Moss presented the bill as one which is "not intended to impinge
upon the appropriate power of the Executive * * *." (112 Cong. Rec.
13008, June 20, 1966.)
To the extent that agencies determine that matters within their re-
sponsibility must be kept secret in the interest of the national defense
or foreign policy, and are not required to be withheld by Executive
order or other authority, they should seek appropriate exemption by
Executive order, to come within the language of subsection (e) ( 1) . The
reference in the House report to Executive Order 10501 indicates that
no great degree of specificity is contemplated in identifying matters
subject to this exemption. However, in the interest of providing for the
public as much information as possible, an Executive order prepared
for the signature of the President in this area should define as precisely
as is feasible the categories of matters to be exempted.
(2) Internal Procedures
'The provisions of this section shall not be applicable to matters
that are * * * (2) related solely to the internal personnel rules and
practices of any agency;"
The House report explains that the words "personnel rules and
practices" in subsection (e) are meant to relate to those matters which
are for the guidance of agency personnel only, including internal rules
and practices which cannot be disclosed to the public without substan-
tial prejudice to the effective performance of a significant agency
function. The examples cited in the House report (H. Rept., 10) are
"operating rules, guidelines, and manuals of procedure for Govern-
1115
SUBSECTION (e)^ — EXEMPTIONS 31
ment investigators or examiners." An agency cannot bargain effec-
tively for the acquisition of lands or services or the disposition of
surplus facilities if its instructions to its negotiators and its offers to
prospective sellers or buyers are not kept confidential. Similarly, an
agency must keep secret the circumstances under which it will conduct
unannounced inspections or spot audits of supervised transactions to
determine compliance with regulatory requirements. The moment
such operations become predictable, their usefulness is destroyed.
As the examples cited in the House report indicate, the exemption
in subsection (e) (2) is designed to permit the withholding of agency
records relating to management operations to the extent that the
proper performance of necessary agency functions requires such with-
holding. However, as the House report states, at page 10, "this ex-
emption would not cover all 'matters of internal management' such as
employee relations and working conditions and routine administrative
procedures which are withheld under the present law." It follows that
the exemption should not be invoked to authorize any denial of infor-
mation relating to management operations when there is no strong rea-
son for withholding. For example, the examining, investigative, per-
sonnel management, and appellate functions of the Civil Service
Commission relate solely to the internal personnel rules and practices of
the Government and, as such, are covered by the exclusion in subsec-
tion (e) (2). However, the Commission now publishes all its regula-
tions in the Federal Eegister, and its instructions are available to the
public through the Federal Persomiel Manual, which may be pur-
chased at the U.S. Government Printing Office. This is an example of
the exercise of the principle that the exemption, even though it may
be literally applicable, should be invoked only when actually necessary.
(3) Statutory Exemption
'The provisions of this section shall not be applicable to matters that
are * * * (3) specifically exempted from disclosure by statute;"
Explaining exemption (3) the House report, at page 10, notes that
there are "nearly 100 statutes or parts of statutes which restrict public
access to specific Government records. These would not be modified
by the public records provisions of S. 1160."
The reference to "nearly 100 statutes" apparently was inserted in
the House report in reliance upon a survey conducted by the Adminis-
trative Conference of the United States in 1962. This survey con-
cluded that there were somewhat less than 100 statutory provisions
which specifically exempt from disclosure, prohibit disclosure except
as authorized by law, provide for disclosure only as authorized by law,
or otherwise protect from disclosure. The reference therefore indi-
cates an intention to preserve whatever protection is afforded under
1116
32 PUBLIC INFORMATION SECTION
other statutes, whatever their terms. For examples of the variety of
statement of such provisions compare 18 U.S.C. 1905 ; 26 U.S.C. 6103;
42 U.S.C. 2000e-8, 2161-2166; 43 U.S.C. 1398; 44 U.S.C. 397; and
50 U.S.C. 403g. For a general, but not exhaustive, compilation of
relevant statutory provisions, see Federal Statutes on the Availability
of Information, Committee Print, House Committee on Government
Operations, 86th Congress, Second Session, March 1960.
(4) Information Given in Confidence
"The provisions of this section shall not be applicable to matters that
are * * * (4) trade secrets and commercial or financial information
obtained from any person and privileged or confidential;"
The scope of this exemption is particularly difficult to determine.
The terms used are general and undefined. Moreover, the sentence
structure makes it susceptible of several readings, none of which is
entirely satisfactory. The exemption can be read, for example, as
covering three kinds of matters: i.e., "matters that are * * * [a]
trade secrets and [b] commercial or financial information obtained
from any person and [c] privileged or confidential." (bracketed ini-
tials added). Alternatively, clause [c] can be read as modifying
clause [b]. Or, from a strictly grammatical standpoint, it could even be
argued that all three clauses have to be satisfied for the exemption to
apply. In view of the uncertain meaning of the statutory language, a
detailed review of the legislative history of the provision is important.
Exemption (4) first appeared in the bill (S. 1666) following full
committee consideration by the Senate Committee on the Judiciary
in the second session of the 88th Congress. It then provided for the
exemption of "trade secrets and other information obtained from the
public and customarily privileged or confidential." The Senate report
explained the addition of exemption (4) as follows:
"This exception is necessary to protect the confidentiality of infor-
mation which is obtained by the Government through question-
naires or other inquiries, but which would customarily not be re-
leased to the public by the person from whom it was obtained.
This would include business sales statistics, inventories, customer
lists, and manufacturing processes. It would also include informa-
tion customarily subject to the doctor-patient, la\\'yer-client, and
other such privileges." (S. Kept., 88th Cong., 6).
When S. 1160 was introduced in the 89th Congress, exemption (4)
differed in two respects from the previous version. The words "com-
mercial or financial" had been substituted for the word "other," and the
word "customarily" had been deleted.
While the first of these two changes could be read as narrowing the
exemption, a comparison of the Senate reports in the 88th and 89th
1117
SUBSECTION (e) — EXEMPTIONS 33
Congress indicates, rather, that it was intended to make sure that
commercial and financial data submitted with loan applications would
come within the exemption. The description of exemption 4 at page 9
of the Senate report in the 89th Ck>ngress is the same as that quoted
above from the report, in the 88th Congress, except that reference to
the ''lender-borrower privilege" is inserted and the following sentence
is added : ''Specifically it would include any commercial, technical, and
financial data, submitted by an applicant or a borrower to a lending
agency in connection with any loan application or loan."
The Senate report in the 89th Congress thus treats the change as
expanding rather than contracting the coverage of the exemption, since
it not only adds the above language, but also continues to refer to the
doctor-patient and lawyer-client privileges, which certainly are not
"commercial or financial," and all the other material referred to as
exempt in the previous report.
Deletion of the word "customarily" apparently had a different basis.
While at first glance the reach of "privileged" might be considered ex-
tended by removal of the modifying word "customarily," the change
also serves a narrowing function by negating the possibility of a priv-
ilege created simply by agency custom. The word "customarily" is still
used in the report, but with examples of the kinds of privileges which
are protected by the exemption.
The House report on this exemption generally parallels the Senate
language with several additions, including such matters as disclosures
or negotiation positions in labor-management mediations, and scien-
tific or manufacturing processes or developments. The report states at
page 10 :
"This exemption would assure the confidentiality of informa-
tion obtained by the Government through questionnaires or
through material submitted and disclosures made in procedures
such as the mediation of labor-management controversies. It ex-
empts such material if it would not customarily be made public
by the person from whom it was obtained by the Government. The
exemption would include business sales statistics, inventories, cus-
tomer lists, scientific or manufacturing processes or developments,
and negotiation positions or requirements in the case of labor-
management mediations. It would include information customar-
ily subject to the doctor-patient, lawyer-client, or lender-borrower
privileges such as technical or financial data submitted by an ap-
plicant to a Government lending or loan guarantee agency. It
would also include information which is given to an agency in
confidence, since a citizen must be able to confide in his Govern-
ment. Moreover, where the Government has obligated itself in
good faith not to disclose documents or information which it
receives, it should be able to honor such obligations."
1118
34 PUBLIC INFORMATION SECTION
The last two sentences, in particular, underline the protection af-
forded by this exemption to information given to the Government in
confidence, whether or not involving commerce or finance.
It seems obvious from these committee reports that Congress neither
intended to exempt all commercial and financial information on the
one hand, nor to require disclosure of all other privileged or confiden-
tial information on the other. Agencies should seek to follow the con-
gressional intention as expressed in the committee reports.
In view of the specific statements in both the Senate and House
reports that technical data submitted by an applicant for a loan would
be covered, and the House report's inclusion of "scientific or manufac-
turing processes or developments," it seems reasonable to construe this
exemption as covering technical or scientific data or other Information
submitted in or with an application for a research grant or in or with
a report while research is in progress. Lists of applicants, however,
would not necessarily be covered.
In view of the statements in both committee reports that the exemp-
tion covers material which would customarily not be released to the
public by the person from whom the Government obtained it, there
may be instances when agencies will find it appropriate to consult with
the person who provided the information before deciding whether
the exemption applies.
One change was made in exemption (4) by the Senate committee in*
the 89th Congress: the phrase "information obtained from the public"
was amended by substituting the words "any person" for "the public."
It seems clear that applicability of this exemption should not depend
upon whether the agency obtains the information from the public at
large, from a particular person, or from within the agency. The Treas-
ury Department, for instance, must be able to withhold the secret
formulae developed by its personnel for inks and paper used in making
currency.
An important consideration should be noted as to formulae, designs,
drawings, research data, etc., which, although set forth on pieces of
paper, are significant not as records but as items of valuable property.
These may have been developed by or for the Government at great
expense. There is no indication anywhere in the consideration of this
legislation that the Congress intended, by subsection (c) , to give away
such property to every citizen or alien who is willing to pay the price
of making a copy. Where similar property in private hands would be
held in confidence, such property in the hands of the United States
should be covered under exemption (e) (4).
(5) Internal Communications
'^he provisions of this section shall not be applicable to matters that
are * * * (5) inter-agency or intra-agency memorandums or letters
1119
SUBSECTION (e) — EXEMPTIONS 35
which would not be available by law to a private party in litigation with
the agency;"
The problems sought to be met by this exemption are principally
the problem of prejudicing the usefulness of staff documents by in-
hibiting internal communication, and the problem of premature dis-
closure. The House report explains the exemption as follows :
"Agency witnesses argued that a full and frank exchange of opin-
ions would be impossible if all internal communications were
made public. They contended, and with merit, that advice from
staff assistants and the exchange of ideas among agency person-
nel would not be completely frank if they were forced to 'operate
in a fishbowl.' Moreover, a Government agency cannot always
operate effectively if it is required to disclose documents or infor-
mation which it has received or generated before it completes the
process of awarding a contract or issuing an order, decision or
regulation. This clause is intended to exempt from disclosure this
and other information and records wherever necessary without, at
the same time, permitting indiscriminate administrative secrecy.
S. 1160 exempts from disclosure material 'which would not be
available by law to a private party in litigation with the agency.'
Thus, any internal memorandums which would routinely be dis-
closed to a private party through the discovery process in litiga-
tion with the agency would be available to the general public."
(H. Rept., 10.)
Accordingly, any internal memorandum which would "routinely
be disclosed to a private party through the discovery process in litiga-
tion with the agency" is intended by the clause in exemption (5) to
be "available to the general public" (H. Rept., 10) unless protected
by some other exemption. Conversely, internal communications which
would not routinely be available to a party to litigation with the
agency, such as internal drafts, memoranda between officials or agen-
cies, opinions and interpretations prepared by agency staff personnel
or consultants for the use of the agency, and records of the delibera-
tions of the agency or staff groups, remain exempt so that free ex-
change of ideas will not be inhibited. As the President stated upon
signing the new law, "officials within Government must be able to
communicate with one another fully and frankly without publicity".
The importance of this concept has been recognized by the courts.
See Carl Zeiss Stiftung v. V.E.B. Carl Zeiss Jena, 40 F.R.D. 318 (D.C.,
D.C., 1966), affirmed for the reasons stated in the district court opin-
ion—F. 2d— (D.C. Cir. May 8, 1967).
In addition to its explanation of exemption (5) quoted above, the
House report in its general discussion of the bill's provisions states:
"* * * in some instances the premature disclosure of agency
plans that are undergoing development and are likely to be revised
before they are presented, particularly plans relating to expendi-
tures, could have adverse effects upon both public and private
1120
36 PUBLIC INFORMATION SECTION
interests. Indeed, there may be plans which, even though finalized,
cannot be made freely available in advance of the effective date
without damage to such interests. There may be legitimate reasons
for nondisclosure * * * in such cases.*' (H. Kept., 5-6.)
The above quotations make it clear that the Congress did not intend
to require the production of such documents where premature disclosure
would harm the authorized and appropriate purpose for which they
are being used.
(6) Protection of Privacy
"The provisions of this section shall not be applicable to matters that
are * * * (6) personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;"
The Senate committee (S. Rept., 88th Cong., 7) explains this
exemption as follows:
"In an effort to indicate the types of records which should not be
generally available to the public, the bill lists personnel and medi-
cal files. Since it would be impossible to name all such files, the ex-
ception contains the wording 'and similar records the disclosure
of which would constitute a clearly unwarranted invasion of
personal privacy'."
The House report is to the same effect :
"Such agencies as the Veterans' Admininstration, Department of
Health, Education, and Welfare, Selective Service, and Bureau
of Prisons have great quantities of files containing intimate details
about millions of citizens. Confidentiality of these records has
been maintained by agency regulation but without statutory au-
thority. A general exemption for the category of information is
much more practical than separate statutes protecting each type
of personal record. The limitation of a 'clearly unwarranted in-
vasion of personal privacy' provides a proper balance between
the prote<;tion of an individual's right of privacy and the preser-
vation of the public's right to Government information by exclud-
ing those kinds of files the disclosure of which might harm the
individual. The exemption is also intended to cover detailed gov-
ernment records on an individual which can be identified as
applying to that individual * * *.'' (H. Rept., 11.)
It is apparent that the exemption is intended to exclude from the
disclosure requirements all personnel and medical files, and all pri-
vate or personal information contained in other files which, if disclosed
to the public, would amount to a clearly unwarranted invasion of the
privacy of any person, including members of the family of the per-
son to whom the information pertains. As was explained on page
19 above, the applicable definition of "person," which is found in
section 2(b) of the Administrative Procedure Act, would include cor-
1121
SUBSECTION (e) — EXEMPTIONS 37
porations and other organizations as well as individuals. The kinds
of files referred to in tliis exemption, however, would normally in-
volve the privacy of individuals rather than of business orp;anizations.
Another possible area of invasion of privacy would be the furnish-
ing of detailed information concerning Goveniment employees or
others. The House report (p. 6) notes that the Civil Service Commis-
sion has ruled that ''the names, position titles, grades, salaries, and
duty stations of Federal employees are public information." It seems
reasonable to assume that the Congress regarded with approval the
Cominission iiiling, which in a letter of March 17, 1966 addressed to
the heads of Departments and agencies gives examples of the circum-
stances imder which such information should be made available, and
establishes guidelines to govern the discretion to disclose such infor-
mation concerning Government employees. (See Cong. Rec, March 21,
1966, pp. A 1598-1599.) To assure the privacy sought to be protected
by exemption (6), similar guidelines should apply to requests con-
cerning lists of persons who are not Government employees. It should
be noted that the Commission ruling refeiTed to above does not author-
ize the release of employees* home addresses, "\^^lether such addresses
are protected by this exemption would depend upon the context in
which they are sought.
(7) Investigations
'The provisions of this section shall not be applicable to matters that
are * * * (7) investigatory files compiled for law enforcement pur-
poses except to the extent available by law to a private party;"
The House report emphasizes that the term "law enforcement" is
used in exemption (7) in its broadest sense, to include the enforcement
not only of criminal statutes, but rather of "all kinds of laws, labor
and securities laws as well as criminal laws." (H. Kept., 11.) Thus, the
files compiled from investigation by Government agents into charges
of unfair labor practices would be exempt as investigatory files com-
piled for the purpose of enforcing the labor laws. Similarly, a file
compiled by the Immigration and Naturalization Service in the investi-
gation of an application by an alien for adjustment of status, or one
compiled by the Securities and Exchange Commission concerning vio-
lation of securities regulations, would be exempt as investigatory files
compiled for the purpose of enforcing the immigration and securities
laws respectively.
Frequently the investigations which are made reflect violations of
law or circumstances requiring redress by administrative proceedings
or litigation. The House report makes clear that in such cases the
additional "files prepared in connection with related Government liti-
1122
38 PUBLIC INFORMATION SECTION
gation and adjudicative proceedings" are included within the exemp-
tion. (H. Kept., 11.)
It should be noted that the language "except to the extent available
by law to a private party" is very different from the phrase, "which
would not be available by law to a private party in litigation with
the agency," used in exemption (5). The effect of exemption (5) is to
make available to the general public those internal documents from
agency files which are routinely available to litigants, unless some
other exemption bars disclosure. The effect of the language in exemp-
tion (7), on the other hand, seems to be to confirm the availability to
litigants of documents from investigatory files to the extent to which
Congress and the courts have made them available to such litigants.
For example, litigants who meet the burdens of the Jencks statute
(18 U.S.C 3500) may obtain prior statements given to an FBI agent
or an SEC investigator by a witness who is testifying in a pending
case; but since such statements might contain information unfairly
damaging to the litigant or other persons, the new law, like the
Jencks statute, does not permit the statement to be made available to
the public. In addition, the House report makes clear that litigants
are not to obtain special benefits from this provision, stating that
"S. 1160 is not intended to give a private party indirectly any earlier
or greater access to investigatory files than he would have directly
in such litigation or proceedings." (H. Rept., 11.)
(8) Information Concerning Financial Institutions
"The provisions of this section shall not be applicable to matters
that are * * * (8) contained in or related to examination, operating,
or condition reports prepared by, on behalf of, or for the use of any
agency responsible for the regulation or supervision of financial insti-
tuitions;"
The meaning and purpose of this exemption are obvious. It is "de-
signed to insure the security and integrity of financial institutions, for
the sentitive details collected by Gov^ernment agenc'ies which regulate
these institutions could, if indiscriminately disclosed, cause great
harm." (H. Rept., 11.)
An earlier version of exemption (4) protected trade secrets, but
made no mention of financial information and would not have pro-
tected information developed by agency investigators and examiners,
ius distinguished from information "obtained from the public." Ex-
emption (4) as enacted, however, covers commercial and financial
information as set forth at pp. 32-34 above. Exemption (8) em-
phasizes the intention of the revision to protect information relating to
financial institutions which may be prepared for or used by any agency
responsible for the regulation or supervision of such institutions.
1123
SUBSECTION (f) LIMITATION 39
(9) Information Concerning Wells
"The provisions of this section shall not be applicable to matters that
are * * * (9) geological and geophysical information and data (includ-
ing maps) concernings wells."
The House report explains that "this category was added after wit-
nesses testified that treological maps based on explorations by private
oil companies Avere not covered by the 'trade secrets' provisions of pres-
ent laws. Details of oil and gas findings must be filed with Federal
agencies by companies which want to lease Government-owned land.
Current regulations of the Bureau of Land Management prohibit
disclosure of these details only if the disclosure 'would be prejudicial
to the interests of the Government" (43 CFR, pt. 2). Witnesses con-
tended that disclosure of the seismic reports and other exploratory
findings of oil companies would give speculators an unfair advantage
over the companies which spent millions of dollars in exploration."
(H. Kept., 11.)
It should be noted that, although the information involved in exemp-
tion (9) might not be a "trade secret*" within the meaning of the earlier
version of exemption (4), it w^ould seem to constitute commercial and
financial information covered by the present exemption (4), as
described at pp. 32-34 above. The addition of exemption (9) is helpful
in explaining the intention of the statute with respect to such
information.
SUBSECTION (f)— LIMITATION OF EXEMPTIONS
"(f) LIMITATION OF EXEMPTIONS.— Nothing in this section
authorizes withholding of information or limiting the availability of
records to the public except as specifically stated in this section, nor
shall this section be authority to withhold information from Congress."
The House report explains that "the purpose of this subsection is
to make clear beyond doubt that all the materials of [the executive
branch] are to be available to the public unless specifically exempt
from disclosure by the provisions of subsection (e) or limitations
spelled out in earlier subsections. And subsection (f) restates the fact
that a law controlling public access to Government information has
absolutely no effect upon congressional access to information." (H.
Kept., 11.)
SUBSECTION (g)— DEFINITION OF "PRIVATE PARTY"
"(g) PRIVATE PARTY.— As used in this section, 'private party'
means any party other than an agency."
The word "party" is already defined by the APA as including "a
person or agency named or admitted as a party, or properly seeking
and entitled as of right to be admitted as a party, in an agency pro-
1124
40 PUBLIC LNFORMATION SECTION
ceeding." The term "agency proceeding," in turn is defined as any
agency process involving rulemaking, adjudication, or licensing. See
5U.S.C.551(3) and (12).
SUBSECTON (h)— EFFECTIVE DATE
"(h) EFFECTIVE DATE.— This amendment shall become effective
one year following the date of the enactment of this Act."
The date of enactment of Public Law 89-487 was July 4, 1966.
The effective date of the act, therefore, is July 4, 1967. By that date
agencies should already have published their rules and procedures
implementing the new statute, and these rules and procedures should
then become effective.
1125
APPENDIX A COMPARATIVE TEXTS
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_o
U S GOVERNMENT PRINTING OFFICE 1967 0 — 264-800
1132
U.S. Department of Justice,
Washington, B.C., December 8, 1969.
Memokandum to General Counsels of All Federal Departments and Agencies
Be Coordination of Certain Administrative Matters Under the Freedom
OP Information Act, 5 U.S.C. 552
The Freedom of Information Act, providing for compulsory disclosure of
agency records not exempted by the act, confers administrative responsibility
on each agency and makes the agency's final decisions subject to judicial review.
The Department of Justice conducts litigation in defense of agency determina-
tions under the act and furnishes certain advisory and other services i>ertaining
to freedom of information problems. In general, the Department's litigation
functions in this area are conducted by the Civil Division, and the advisory
and other functions are conducted by the OflBce of Legal Counsel.
In discharging these functions, the Department has noted several develop-
ments which we believe warrant your attention. First, the Government in
recent months has lost cases in court which involved a number of the exemptions
contained in the act. Consumers Union v. Veterans Administration, 301 F. Supp.
796 (S.D.X.Y. July 10, 1969) (involving exemptions 2, 3, 4 and 5) ; General
Services Administration v. Benson, 415 F. 2d 878 (9th Cir. Aug. 26, 1969)
(exemptions 4 and 5). Second, there has been considerable variation in agency
practices with respect to consulting the Department on freedom of information
controversies before the agency takes final action which may result in the filing
of suit against the agency. Third, there are particular problem areas under the
act which are common to a number of agencies, where an exchange of views may
be beneficial.
The implications of the judicial decisions cited above, as well as other cases,
are under continuing review in the Department. However, enough review has
already been accomplished to ix)int to two conclusions: (1) Although the legal
basis for denying a particular request under the act may seem quite strong to
an agency at the time it elects finally to refuse access to the requested records,
the justification may appear considerably less strong when later viewed, in the
context of adversary litigation, from the detached perspective of a court and
from the standpoint of the broad public policy of the act; (2) an agency denial
leading to litigation and a possible adverse judicial decision may well have
effects going beyond the oi^erations and programs of the agency involved, insofar
as it creates a precedent affecting other departments and agencies in the execu-
tive branch.
In view of the foregoing, it seems manifestly desirable that, in most instances,
litigation should be avoided if reasonably practicable where the Government's
prospects for success are subject to serious question. This can often best be
done if, before a final agency rejection of a request has committed both sides to
conflicting positions, the matter is given a timely and careful review, in terms
of litigation risks, govemmentwide implications, and the policy of the act, as
well as the agency's own interests. To facilitate review of the nature just
described, we need your cooperation. To improve cooperation on our part, we
have just established an informal committee of representatives of the Civil
Division and of the Office of Legal Counsel.^ The functions of this committee
will be to assist in such review and help assure closer coordination in our work.
We request that in the future you consult this Department before your agency
issues a final denial of a request under the Freedom of Information Act if there
is any substantial possibility that such denial might lead to a court decision
adversely affecting the Government. Such consultation will serve the review
function discussed above, and in some instances may also enable us to assist
you in reaching a dispo.sition of the matter reasonably satisfactory both to your
agency and to the person making the request. The requested consultation may
be undertaken formally or informally as you prefer, and ordinarily should be
directed initially to the Office of Legal Counsel rather than to the Civil Division.
As regards the third development under the act noted near the beginning of
this memorandum — the emergence of certain problem areas common to several
^ Thp mpinbprs of this committee as of now are : Jeffrey F. Axelrad, Civil Division,
extension ."^.SOO ; Robert V. Zener. Civil Division, extension ,S3.54 : Steven P. Lockman, Ofl5ce
of Legal Counsel, extension 203S ; and Robert L. Saloschln, Office of Legal Counsel, exten-
sion 2674 ; chairman. Deputy Assistant Attorney General Thomas E. Kauper, Office of
Legal Counsel, extension 2051, will be chairman ex officio.
1133
agencies on which exchange of view and experience may be mutually beneficial —
there is one such area warranting mention at this time. This area consists of
various questions as to the availability of information on the testing of manu-
factured and other products (including such items of information as the identity
of the maker or supplier, brand names, models, generic descriptions, test cri-
teria, test procedures, test results, comparative ratings, limitations pertaining to
products or characteristics not tested, et cetera ) . If the activities of your agency
involve testing or information pertaining thereto, we would welcome any state-
ments of experience, policies or views which you may care to provide. Such
statements may prove useful to other agencies engaged in similar activities and
to this Department in representing or counseling such agencies.
It is our hope that through the consultation and review procedures outlined
above and through exchanges of exi)erience and views on problems of common
interest, positive benefits will accrue to indlAnidual agencies, the Government
as a whole, and the public.
Please feel free to call us if you have questions' ahout the foregoing.
William H. REHNQinsTi
Assistant Attorney Ge^ieral, Office of Legal Counsel.
William D. Ruckelshaus,
Assistant Attorney General, Civil Division.
Mr. MooRiiEAD. In addition, Mr. Wozencraft lias made a speech en-
titled "The Freedom of Information Act— The First 36 days," which
was printed in the Administration Law Review of March 1968.
Without objection, I think this should be a part of the record also.
(The material referred to follows :)
1134
ADMINISTRATIVE LAW SECTK
AMERICAN BAR ASSOCIATION
VOLUME 20 NO. 2 (MARCH, 1968)
1135
ADMINISTRATIVE LAW
Officers
Chairman. Kichahu H. KEATlNct. 158 S. Si.rinc St.. Los Aneol.~. Calif. 90013
Chairman. Fled. Be> C. Fi5HER. IVrpcliial Buildinp, Washineton. D. C. 20001
Secrtlary. Pail S. Qvin}<. 1616 H St., N.W., Washingtcn. D. C. 20005
„ „ . Council
Ex officio
The Officcis, Section Delegate, anj—
RocEH SrooNEH Bahbett. Chairman. Diiision uf Sinle .4dminislrariie Law. Prudential Plaza. Chicago,
III. 60601
lloii Hr I,. \l.( vHn. /./-; H.nnng ll,,„,m,in. \\a-liiii;;l"ii llMt'.. W j-liin|;l..ii. 1). C. 2(10(1.-.
For term ending 1968
Hohard C. .'Vndebson. 1710 H St.. N.W.. Washincton. D. C. 20006
Milton C. Denbo, 1341 New Hampshire .^ve.. N.W.. Washington, D. C. 20036
JOH.N F. DoNELAN. Washington Bldg., Washington. D. C. 20005
Herman Tocker. 2712 Navarre Drive, Washington, D. C. 20015
For term ending 1969
Charles D. Ablard, 1620 K St.. N.W.. Washington. D. C. 20006
Milton M. Carrow, 1 E. 44th St.. New York. N. Y. 10017
(.Iil-MVN IIasf.~, Kill); Hl.lt:., W.nsliinnlon. 1). C. 2(1(116
Franklin M. Schiltz. 888 17th St., N.W.. Washington, D. C. 20006
For term ending 1970
Dan .M. Bvbd, Jb.. Springs Mills. Fort Mill. South Carolina 29715
Walteb Cellhobn. 435 W. 116lh St.. New York. N. Y. 10027
John T. Milleb, Jb.. 1001 Connecticut Ave.. N.W., Washington. D. C. 20006
CoBNELiLS B. Kennedy. 888 17th St.. N.W.. Washington. D. C. 20006
Section Delegate to House of Delegates
Fbederic L. KlBCIS. Scourilv Life Bldg.. Denver. Colo. 80202 (1968)*
Board of Coirrnois Liaison: Clajience A. Davis, Stuart Bldg., Lincoln, Neb. 68508
RocEB Spooner Barrett, Chairman. Prudential Plaza. Chicago. 111. 60601
D. Fbed McMullen. lice-Chairman. Box 391. Tallahassee. Fla. 32302
Benedict T. Mancano. Vice-Chairman. 112 State St., Albany. N. Y. 12207
Cornelus J. Peck, f ice-Chairman. I'niv. of Washington. Seattle, Wash. 9810S
Dan M. Btro. Jr.. Council Director, Springs .Mills, Fort Mill, S. C. 29715
Division or State Administrative Law:
♦.Note Year shown in parentheses indicates expiration of term.
General Committees
Administrative Law Kehevv : Daniel J. Baiiiu. Edilor-in-Chief. Indiana Univ. School ol Law. Indianapolis.
Ind. 46204; Winston .Mills Fi~k. Assuciale Editor-in-Chief. Pitzer Hall. The Claremont Colleges.
Clarenionl. Calif. 91711
Hoard of Editors:
Frederick Da> is. Lniv. of Mi>»ouii School uf Law. Columbia. Mo. 65201; .Margadelte M. Demet. 324
E. Wisconsin Ave.. Milwaukee. Wis. 53202; John L. Fitzgerald. Southern Methodist Univ. School
of Law. Dallas. Texas 75222; Ralph F. Fuchs. 1410 E. University St.. Bloomington. Ind. 47401;
C. Roger Nelson. Brawncr Bldg.. Washington. D. C. 20006; Victor G. Rosenblum, Northwestern
Univ., E%anston, III. 60201; William F. Schulz. lniv. of Pittsburgh Law School. Pittsburgh. Pa. 15213
Council Director: Ben C. Fisher. Perpetual Bldg.. Washington. D. C. 20004
LlAE-ON (■.MMIIItl. ON CoUK Ol l-H.KIHC VllMIMMMATUt pBOClUIKt:: (.1.1-111,10 flail. ■.-, CVl.lirm.,,1. Hill;: HMt-.
Washington. D. C. 20036: Ri.hard B. Berryman, 1521 New Hampshire Ave.. N.W.. Washington.
D. C. 200.36; Ben C. Fisher. Perpetual Bl.lg.. Washington. D. C. 20004; Cornelius B. Kennedy.
H8H I7ll. -1.. \.\\.. \\.i-liiii;;l..|i. II. C. JOOIIh: K,,l,.il 1.. \I.C...1%. W.i-lunglon lil.lg.. W a-liii.i;l..i..
D. C. 20003: John T Miller. Jr.. 1001 Connecli.iit Ave. N.W.. Washington. D. C. 20036; Frank C.
.Newman. Univ. of Calif. .rnia School (.f Law, Berkelev, Calif. 94720; Paul S. Quinn. 1616 H St..
N.W.. W,i-liiii;;l,.ii. II (.. JIIIKK.: Han.!. I I.. H.i-.II. lOOII Kii-I \al'l I'aiik lll.lg.. Allaiila. Ca. .!ll.tli:i :
Ashlev Sellers. 1625 K St.. N.W.. Washington. D. C. 20006; Ex Ufficio: Richard H. Keatinge. 458
S. Spring St.. Los Angeles. Calif. 90013; Frederic L. Kirgis. Security Life Bldg.. Denver. Colo. 80202
Administrative Conference: Hernar.l A. Foster. Jr.. Chairman. 725 loth St.. N.W.. Washington. D. C.
.(111115: H.ii.il.l I.. 1(„— II. tir,.( h.iirman. 1(100 Fust Nat'l Hank Hl.lg.. Allanla. (i.i. :i(l.;(l.( : Ki.hai.l H.
K,.liii:;.. (.un.il l)i'.;l,„. 1.58 >. Spiin;; >t.. I...- Aug. -I.-. C.llil. 901111: J..lni \l. I.vniiam, I'ir,--
lh,.,,m,r,. S88-I7lli >(.. \.tt.. W .i-liiiigl..ii. D. C. 20(1(11.
Administrative Practice: Donal.l C. Beelar. Chairman. W.irl.l Center Bl.lg.. Washington. D. C. 20006;
James R. Stnner. rice-Chnirman. C.lorado Bldg.. Washington. D. C. 20005; Walter Cellhorn. Council
Director. 435 W. 116th St.. New York. N. Y. 10027
ADMINISTRATIVE PROCESS: B..hert N. Kharas.h. Chairman. 1824 R St.. N.W., Washington. D. C. 20009;
Carroll I.. Gilliam. li.e-Chairman. 1153 15tli St.. N.W.. Washington. D. C. 20005; Joel E. Hoffman.
Vice-chairman. 1225 19tli St.. N.W.. Washington. D. C. 20036; Harold E. Mesirow. Vice-chairman.
1625 K St.. N.Vl.. tta-liiiigl..ii. 1). C. 20(106: Fi.inklin \l. .S.hultz. Council Director. 888 17tli St.,
N.W.. Wa-hinglon. D. C. 20006
AcENcr Adjldication : Ki.har.l S. Maunr. Chairman. Delta Airlines. Atlanta Airport. Allanla. Ca.
30320; J. Patten Alishire. Vice-chairman. 1625 I St.. N.W.. Wa-hington. D. C. 20006; Robert R.
Cray. Vice-Chairman. 1001 Conn.-, licut Ave.. N.W.. Washingt..n. D. C. 20036; Charles D. Ablard.
Council Director. 1029 K St.. N.W.. Washington. D. C. 20006
ACENCY Rate Makin..: William C. Hart. Chairman. 1625 E%e Si.. N.W.. Washington. I). C. 20006; Harold
J. Chen. I ice-Ch;i,man. 195 Broadwav. New York. N. Y. 10007; Dickson Loos. Vice-Chairman.
888 I7lh St.. N.W.. Washington. D. C. 200O6; Howar.l C. Anderson. Council Director. 1710 H St..
N.W.. Washington. D. C. 20006
AcENCY Rule Making: Ernesl W Jennes, Chairman. Union Trust Bldg.. Washington, D. C. 20005; R. Rus.
sell Eagan. Vice-Chair man. W..rl.l Center Bhig.. Washingt..n. D. C. 20006; Quinn O'Connell. Vice-
Chairman. 1527 New Hampshire Ave.. N.W.. Washington. 1). C. 20036; Milton C. Denbo. Council
Director. 1,141 New Hampshire Ave.. N.W.. Washington. D. C. 20036
Hearing Examiners: John T. Miller. Jr.. Chairman. 1001 Connecticut Avenue. N.W. Washington. D. C.
20036: J..hn Prv..r Furman. »'ice.C/i,ii>m,i/i. 1521 New Hampshire Avenue. N.W.. Washinglnn. D. C.
20036; John T. Miller. Jr.. Council Director. 1001 C.nn.clicut Ave.. N.W.. Washington. D. C. 20036
JlDlclAL Review: Lc. A. Huar.l. Chairman. 19850 Via Fxcuela. Saratoga. California 95070; William War-
ficl.l Ross. Vice-Chairman. 1225 19lh Street. N.W .. WashingL.n. D. C. 200,36; John F. Donelan.
Council Director. Washington Bl.lg.. Washington. D. C. 20005
Public Information: Thc.dore Skv. Chairman. Ring Bl.lg.. Washington. D. C. 20036; Ja.k L. Lahr. Vice-
Chairman. Federal Bar Bl.lg.. Washington. D. C. 20006; Chisman Hanes. Council Director. Ring
ni.lg.. Washington. D. C. 20035
Uniform Rules of Practice and Pbocedire : Albert S. Abel. Chairman. Univ. of Toronto. Faculty of Law.
Toronto 5. Canada; Robert S. M..", Vice-Chairman. B15 15th St.. N.W.. Washington. D. C. 20005:
Ravmon.l J. Turner. Vice-Chairman. 621 17th St.. Denver. Colo. 80202; Cornelius B. Kennedv.
Council Director. 888 17th St.. N.W.. Washington. D. C. 20006
1136
These remarks were delivered before a session of the Administrative Law
Section on August 9, 1967 in Honolulu, Hawaii. Mr. Wozencraft, Assistant
Attorney General of the United States, has charge of the Office of Legal
Counsel which assumed responsibility in drafting agency guidelines for com-
pliance with the important Freedom of Information Act. The informal re-
marks of Mr. Wozencraft carry forward his discussion which appeared in the
last issue of the Review. — The Editors.
THE FREEDOM OF INFORMATION ACT—
THE FIRST 36 DAYS
Frank M. Wozencraft
When Bob McCarty and I discussed the title of this topic, I agreed
to the present title for two reasons. First, it is obvious that I couldn't
prepare a text in advance if I was going to speak on something current.
Second, my colleague Tony Mondello was speaking at the Federal Bar
Association on July 28th in San Francisco just twenty-four days after
the Act became effective. Now that it is thirty-six days old, we can claim
50% more experience with the Act.
The really surprising thing is that during these past twelve days we
have had the first court decision under the Freedom of Information Act,
which I will turn to shortly. First I want to acknowledge that we have
an audience of afficionados who know at least as much about this Act
as I do, because everything that I know is already in the Attorney
General's Memorandum on the Act.
For those of you who have not yet been initiated into the delights of
construing the Freedom of Information Act, let me summarize that there
are three main things this Act accomplishes, all of which are basic
changes in the law as it is today. The first is that under this Act any
person has standing to seek a document, regardless of whether he is
properly and directly concerned with the document, as is required under
the present Administrative Procedure Act's section 3.
The second is that the burden is on the government to justify with-
holding a requested record, and not on the requester to show why he
needs the document. The government can usually support this burden
only if the document comes within one of the nine exemptions which
are set forth in subsection (b) of the Act.
The third basic change is that there is now judicial review, if the
document is withheld, through a suit for injunction that can be brought
in a Federal District Court, with the burden of proof resting upon the
1137
government. Obviously, this is a basic change in the philosophy that has
been in effect on government information. It has always been a basic
approach that you withhold a document unless you have good reason
to disclose it. Under this law, the philosophy will be to disclose a docu-
ment unless you have good reason to withhold it. Any lawyer, familiar
with the significance of burden of proof, knows what an important
change this really is. Any lawyer also knows that with the potentiality
of court review at the end of the road, things happen a lot better some-
times than if there were no such potentiality.
That is a very brief summary of what the basic changes are all about.
As I said, I will assume that most of you have at least as much knowl-
edge of the Act as I do. For those who don't, the Section has been kind
enough to make available to all of you here, copies of the Memorandum
of the Attorney General on this Public Information Section.
This manual was prepared by the Office of Legal Counsel, but it is
the Attorney General's Memorandum. It speaks for the Department of
Justice. I suppose at this point, as Bud Fensterwald did yesterday, I
should assert a disclaimer. When I get beyond the basic explanation I
just made, or beyond what the Memorandum says, I am really speaking
only for myself. I do have a few thoughts that I would like to share with
you, but please don't hold them against the Attorney General.
In the excitement and emphasis on disclosure of documents and ju-
dicial review, I think it is important not to forget the quieter but equally
important consequences of sections (a)(1) and (a)(2) of the Act. The
first requires publication in the Federal Register of organizational data
and rules, and the second requires agencies to make precedential mate-
rial available to the public. Each subsection has its own sanction. The
first of these provides that no rule that is not published in the Federal
Register, if it has general applicability, shall adversely affect a member
of the public. The second one provides that no order, opinion, statement
of policy or interpretation will be used as a precedent against a party
unless it has been indexed and made available or published as provided
in (a)(2), or unless the party had actual and timely notice of it.
My reference to (a)(1) and (a)(2) may seem confusing, since we
do not use those designations in the text of the Attorney General's
Memorandum. There is an explanation, however.
You will remember that this new law, Public Law 89-487, was ini-
tially enacted in 1966 to be effective on July 4, 1967, and that it was
not codified when the rest of the APA was codified in 1966. It took a
special act. Public Law 90-23, to codify the text of Public Law 89-487
into what is now designated at 5 U.S.C. 552.
1138
In the Memorandum which we prepared we stayed with the old num-
bers of Public Law 89-487 because it facilitated one of the major pur-
poses of the Memorandum, which was to correlate the statutory history
with the text of the Act. The committee reports which constitute much
of that history refer to the subsection designations and phraseology of
Public Law 89-487 which were changed in the codification process. The
codifiers noted, however, that codification was not intended to affect
the substance of the Act. So I think we are safe in assuming that any
changes are changes of style and not of substance. At least that is what
the codifiers intended.
It took a great deal of work to prepare this Memorandum, because,
as all of you who have reviewed this law carefully know, there are many
ambiguities in this statute. It is very difficult to construe. In many spots
it is hard to tell exactly what was intended.
We have done our very best to go back into the committee reports —
in fact, we even talked with some of the members of the staff who had
a hand in drafting parts of this Act — to try to find out what Congress
had in mind. I hope that this Memorandum faithfully reflects the Con-
gressional intent in this area. Sometimes there may appear to be some
difference between the intent as it appears in the committee reports, and
what would be the normal grammatical construction of some of the
language. We have done our best to consider both in this Memorandum.
If it leaves a lot of questions unanswered, as it certainly does, that is
because a lot of questions are not answerable. They have to be con-
sidered in the context of specific fact situations. Sometimes, perhaps,
courts will have to determine what they mean — but we have done the
best we could.
The preparation of regulations under the Act was another difficult
job, and a lot harder than we anticipated when we started drafting. Each
department, of course, issues its own regulations, and we have not re-
viewed the regulations of all the other departments. When we drafted
our own regulations we tried to be very careful not to block off the really
great flow of information which is handed out by the Department of
Justice, day after day, free of charge. Under this statute the agencies are
encouraged to assess a reasonable user charge when they turn things
loose. Well, we could see what would happen if when you lawyers write
in for a copy of the brief in a case, we would insist on a charge of 25
cents per page.
Also, we were worried about having cautious people in the field de-
cide they had better not turn anything loose without checking with the
1139
Department in Washington. And yet, if you have ninety-eight U.S. dis-
trict attorneys treating the same document in different ways, you have
some real problems. We tried to solve this by providing that any official
request under this Act does carry a charge and will be reviewed in
Washington. But everybody from the field can go ahead and release
what they have been releasing as a routine matter, free of charge. We
hope that these provisions will not be used to make information less
available, but indeed will make it more available.
Now the regulations are on the books, and I think most of the agen-
cies have furnished reading rooms or areas where you can find their
precedents — the opinions that they are going to be relying upon in their
proceedings. The Act does not require that any of the materials made
available by subsection (a)(2), but issued before its effective date, be
indexed or put on the shelves; but we have encouraged all of the agen-
cies to make their major precedents, even those issued before the Act
became effective, available in their reading rooms. The whole idea of
this Act is to make information more accessible to the American people,
and that is exactly what we are urging the agencies to do.
But as I said a little earlier, I think much more important than the
precise changes in the wording of the law, is the change of approach —
the change in attitude in Government. I hope it will accelerate as it
percolates throughout the government and will become an accepted
view of the way agencies should operate in their dealings with the
people, who in the final analysis are the government.
We have already seen some beneficial results from this. People from
the agencies still call us every once in a while for consultation, even
though we really completed our work on the Act when we came out
with the Memorandum. In the Office of Legal Counsel we are office
lawyers. Our job is to assist the Attorney General in his role as legal
adviser to the President and the Executive Branch. If a lawsuit comes
up, it is the Civil Division of the Department of Justice, or the lawyers
of the particular agencies, who will handle it. But we are sometimes
consulted on the Act and obtain information on what the agencies are
doing. When we are, we usually raise the question of whether there is
really a good reason why the document being discussed should not be
disclosed. Does it come within one of the nine exemptions of the Act?
If so, which one? Even if it does come under the nine exemptions — is
the public interest, on balance, best served by withholding the document,
or by disclosing it? It is surprising how otfen the answer comes out in
favor of disclosure.
1140
This is the thought process that we are trying to encourage. There are
documents where the public interest is much better served by withhold-
ing. These exemptions so indicate, and they are there for good reasons.
You just can't run a government when you turn everything loose, not
only to any citizen, but to any alien who comes and asks for it. We have
to keep that in mmd when we interpret these exemptions.
I am sure that all of you are interested in hearing from the men who
have been keeping accounts. There have been many requests. There
has been a lot of mumbling and grumbling about how the burden on the
Government would become intolerable. Well, it has been pretty intoler-
able getting ready for July 4th, I will say that. Those of you who are
with the agencies know how intolerable it has been. But I think we can
all agree that while there has been some good steady business, there
hasn't been the great surge that some alarmists feared. There are some
cases that might have become lawsuits concerning documents that the
agencies were convinced were under the exemptions. But the exemp-
tions were not invoked because the agencies decided that it really didn't
hurt to release the documents anyway.
However, there are three lawsuits that have actually been filed. One
was filed by Shell Oil Co. against Secretary Udall in the Colorado Dis-
trict Court. This involves the validation of land patents in a proceeding
of the Department of the Interior. I understand that the Civil Division
of the Department of Justice is defending that case. Even if I knew
about it I couldn't comment on pending litigation; but since I don't know
about it, that is no problem.
The second case was filed in the District of Columbia by a private
practitioner against Secretary McNamara, seeking copies of the Defense
Contract Audit Manual. The manual is comprised of two volumes. One
part is public and the other part is confidential. The Department of
Defense labelled the first volume "Confidential" and placed the second
volume "on the record." They might have been smarter to number the
volumes the other way around.
But without going into the merits of that case, because I'm not really
familiar with it, let me move into the third case which has resulted, as I
mentioned earlier, in the first court decison under this Act. That is the
case of Barceloneta Shoe Corporation v. Compton and the National
Labor Relations Board. This case was decided just about as far from
here as you can get and still be in a U. S. District Court, the District of
Puerto Rico. It involves an NLRB proceeding where there were unfair
labor practice charges brought against the Barceloneta Shoe Corpora-
tion, and a hearing was set to begin on August 1st. On July 20th, in
1141
came the Barceloneta lawyers saying, "Let me have your files, your
affidavits, all your investigatory statements." When NLRB said, "No,"
they said, "Well, we need them under the Freedom of Information Act."
The NLRB then said, "They exempt under exemptions 4 and 7,. you
haven't exhausted your administrative remedies, and also this isn't a
case where the court ought to exercise its equitable discretion to grant
an injunction." The answer was filed on July 26th. It was amended —
and on July 28th there was an argument on the motion. The court de-
cided the case on July 31st. It ruled that it need not reach the jurisdic-
tional question of exhaustion of administrative remedies, because, on
the merits, it was very clear that these documents should not be dis-
closed to the plaintiffs. It held them exempt under exemption 7 as part
of an investigatory file and also exempt under exemption 4 as a state-
ment which had been given in confidence to the NLRB. The Court
found no grounds for exercising its inherent equity powers because it
v.as very clear that if you did release these kinds of records, the dis-
closures would adversely affect the whole process of enforcing the Na-
tional Labor Relations Act.
The opinion is very interesting. It quotes our Memorandum at con-
siderable length on the applicability of exemption 7, particularly page
38 of the Memorandum. In considering exemption 4, it pays no attention
to "commercial or financial" which you remember was one of the great
questions in that particular exemption, i.e., whether it should be read
in the disjunctive, conjunctive, or whatever. And it asserts very flatly
that the Government is entitled to honor the confidence of people giving
information in confidence.
I feel that this conclusion is very important to the helpful administra-
tion of this whole Act. If people get too worried about what is going to
happen in the courtroom at the end of the road, they are going to with-
hold information that otherwise they would freely give to the Govern-
ment. I think the Government's ability to honor a confidence legitimately
entered into is certainly most important, and obviously we are pleased
with this decision.
One swallow does not make a summer — one decision does not make
a conclusive judicial doctrine of interpretation of this whole Act. There
will be more cases. There will be more problems. But the Barceloneta
case, I think, is an early and felicitous vindication of the approach that
we tried to take on this in the Department of Justice — the common sense
approach. Look at the facts. Look at the equities. Don't permit prema-
ture disclosure. Honor the commitment of confidentiality but don't let
the Government get away with any nonsense. If there are documents
1142
that can be disclosed without harm to the public interest, then go ahead
and disclose them.
So much for the first 36 days. There may be a lot of problems brew-
ing which we will hear about on the 37th. But basically, as I said be-
fore, the job of OLC in this area has now been completed. We hope we
have at least set things on the right track. The actual implementation of
this statute is going to depend on what the agencies themselves do with
it. I have been very impressed with the conscientious effort of the general
counsels of these agencies to see to it that their agencies understand the
law and abide by not only the letter, but also the spirit of the law, as
they were asked to do by the President when he signed this bill, and as
the Attorney General again urged them to do in the foreword to our
Memorandum.
Every question under the Act involves a matter of judgment. There
are few open and shut cases. I talked with my office this morning to
learn if any more suits have been filed, or if I could make any more hot-
off-the-griddle information available to you. Marty Richman, my First
Assistant, said that every question he has had to answer in this area since
we left has been a close one. This is the p>oint where judgment comes in.
I hope we have had enough experience to have fairly good judgment in
this area from now on. And I think that the important thing is to re-
member, as the Attorney General says in the Foreword, that under this
new statute, "disclosure is a transcendent goal yielding only to such
compelling considerations as those provided for in the exemptions of
the Act."
I would like now to make one final comment that is related not to
the Freedom of Information Act, but to my experiences of working with
the Act and the other efforts in which I have had the privilege of deal-
ing with the counsels for the agencies and representatives of the Bar,
the press, and the Congress. This is a very fine and dedicated group of
people, and I mean that sincerely about the p>eople in each of these
areas. We have dedicated public servants in government, and I have
been delighted with the high caliber, competence and character that I
found there when I came from private practice. The Bar is dedicated to
the advancement of the public good. The press is dedicated to getting
information out to the people, where they can really evaluate it. The
Congress is dedicated to getting the best laws on the books.
Now, all these people look at problems from different angles. They
have different slants on it. They bring different experiences to bear on
the problem — and they are going to come out with different answers.
These are honest answers based on earnest, considered differences of
1143
opinion. Nobody has a monopoly on the truth. The truth is somewhere
in between — and hopefully evolves from the meeting and merging and
abrasions of the contact between these various groups. This has been
the history of our government. It is also the history, I think, of a con-
structive working relationship between the Bar and lawyers in govern-
ment. Working on Bar committees in Texas, revising the corporation
laws and the securities laws, I learned the hard way that there are a lot
of views that have to be taken into consideration, and that usually, when
you do take them all into consideration, the best product emerges.
Last year in Montreal, I had the privilege of telling this Section of
my personal conviction, based on my experience in private practice and
in government, that great things can happen when the Bar and the gov-
ernment work together — not always in agreement, but honoring the
sincerity and high motives of every person involved, the genuine desire
of people to do what is, after all, the job that all of us have — to serve
the best interests of the American people. That is the approach that we
in the Department of Justice have tried to take in working on this
Memorandum on the Freedom of Information Act. I know it is the
approach that the Bar takes, and we welcome the opportunity of work-
ing with you. Thank you. (Applause)
MR. McCARTY: Frank Wozencraft, we thank you very much. Those
of you who were at our Institute on Federal Agency Practice last April
heard him there on this subject. In fact it was sort of a sneak preview
on this statute, and the work his office was involved in at that time. We
have now been brought up totally to date for at least the first thirty-six
days, and Frank has come a long way to do this for us. We are indeed
grateful to you. Thank you again. (Applause)
I know Mr. Wozencraft would be glad to entertain any questions
you may have for him. Yes Sir?
PAUL BLAKE: I am Colonel Paul Blake from San Francisco. I
would like to ask whether Frank feels this new Act has any application
to the production of documents in ordinary civil litigation? Are the docu-
ments protected from production under this Act — does it automatically
protect civil cases?
MR. WOZENCRAFT: As we indicated in our memoradum, I don't
think Congress really was thinking in terms of litigation when it enacted
this statute — and I find that the court in this Barceloneta case has the
same idea. The gist of it is — I take it — that this should not be regarded
as a law having great relevance in the field of other litigation. It pro-
duces its own litigation. But so far as other litigation is concerned, there
is a statement in the House Committee Report that this law was not
1144
intended to give litigants any earlier or greater access to information
than they would have under the rules and procedures in courts.
MR. DECKER: I wonder if I might ask a question. I am Bob Decker,
one of the former general counsels for the Department of Defense. In
looking at number five, memorandums or letters which would not be
available by law to another party. This seems to be a backhanded way —
I know it wasn't done by the Attorney General, but by Congress — of
protecting what seems to me vital and is brought out somewhat in the
comments, and that is the process of decision by major government
agencies or governmental officials. The Moss committee, for instance,
was trying very hard in the old days — ^to dig up a report of a meeting
that was held by a large number of our greatest scientists in the coun-
try— as to whether we should get a sputnik up before Russia. We had
committed ourselves to get the Vanguard up. This was an advancement
for the nations of the world in geophysical knowledge. Von Braun came
and said, "Look, I can get a sputnik up before Russia. They are going
to send it up on September so and so, the 100th anniversary of the birth
of their greatest scientist. And I can get it up by putting two of mine
together and bingo! It will go up first, and we will get the prestige of it."
The Secretary of Defense, Charlie Wilson, was advised not to do that,
because it would be a defection from our undertaking about carrying
through the Vanguard, and who would worry who got the first one up.
(laughter)
Leonard will remember that we were all startled at the Pentagon that
it didn't go up on the 100th anniversary of the birthday which was
September 14th. They missed it by a whole month. But the Moss com-
mittee, time after time, tried to get the memorandum of who voted
how — on this committee of experts. Well, the process of their making
any executive decision will be hopeless if he is exposed to the risk of
saying that he decided against such and such an expert. And the expert
will not give his advice, if thereafter he is going to be pilloried for
having given the wrong advice.
MR. WOZENCRAFT: Mr. Decker, I couldn't agree with you more.
I think that is, obviously, one of the basic causes of concern within
the government about this Act and its possible interpretation. And the
Congress, I think, made it clear in the committee reports that it intended
to take care of the problem with exemption number 5. The House
report, for instance, which we quoted on page 35, says that "agency
witnesses argued that a full and frank exchange of opinion would be
impossible if all internal communications were made public. They con-
tended, and with merit, that advice from staff assistants and the ex-
1145
change of ideas among agency personnel would not be completely frank
if they were forced to 'operate in a fish bowl.' " And there is more of
the same.
One thing I think I should point out, is that this law does not apply
to information given to Congress. The committee chairmen of Congress
feel perfectly free to go ahead and request information from the
agencies without regard to this Act.
MR. CLARENCE HART: I am from Saint Paul, Minnesota. The
view was expressed yesterday by the Chairman of a very important
administrative Board, unofficially, of course, that in his view this Act
would not be enforced by the administrative agencies. That the District
Court was the medium of enforcement and that the administrative
Boards would not act to implement it. Is that a proper reflection of how
this would be enforced?
VOICE: What agency was that? (Laughter)
MR. HART: The biggest one. I think if you reflect on that you
will find it is one that handles more matters of this type than any
other — but that is immaterial.
MR. WOZENCRAFT: Well, regardless of the source, it is very hard
for me to comment on a statement by someone who is a government
official, without seeing the statement and knowing the official. So let
me just say, that as far as I am concerned — and as far as the Depart-
ment of Justice is concerned — and as far as all of the agencies I have
talked with are concerned, the agencies know that they are intended
to comply with and implement this law. Now, there are going to be
questions that will reach the courts. There are going to be questions
where the agencies and the private people seeking the information will
disagree as to the meaning of the law. When you talk about enforce-
ment— probably yes, that comes from the court. But implementation
comes from the agencies and that is the important thing, because if
nothing gets turned loose except what a court orders turned loose, you
will not have very much information.
MR. McCARTY: Ladies and gentlemen. I don't want to over-impose
on Mr. Wozencraft — he will entertain two more questions.
MR. PETTIT: I am Walter Pettit from San Francisco. Mr. Wozen-
craft, you said it was not the intent of the Congress to give earlier or
greater rights to litigants in Federal courts. I assume that is provided
by the Federal Rules of Civil Procedure. Would you comment on
whether or not you feel that this Act gives litigants before admin-
istrative boards any greater rights than they would otherwise have in
76-253 O - 72 - pt. 4-10
1146
view of the rather limited rights given to discovery before many of
these boards.
MR. WOZENCRAFT; I think that is a question that obviously is
going to have to be worked out in different contexts and in different
agencies, depending on the kinds of documents that are sought. But
basically speaking, this Barceloneta case, for instance, is an example of
an administrative proceeding — of an unfair labor practice charge be-
fore the NLRB — wherein the court has held that it would not give
earlier or greater access to these documents than would be available in
that administrative proceeding. Now these are documents which were
exempt under two of the exemptions. If the documents had not been
exempt under any of the exemptions then you might have a very
different situation. So, again, I think we have to look at the actual
facts of the particular case. I am sorry to have to seem so particularized
on this. If there is a general rule in this area, it is that — in the words
of the old economics principle — "the one certainty in life is that it all
depends.'" (Laughter)
MR. KEA TINGE: I forgot to ask this question at the Institute in
April and I know it will be of interest to all those working in the
securities field. As you will remember, we had a heated debate in April
about the applicability of the new Act to the issuance of so-called
"no action" letters under the Securities Act of 1933. As an old secur-
ities expert, Frank, could you express your views about the applicability
of the new Act to the release of SEC "no action" letters, or at least to
the release of the principles pursuant to which the "no action" letters
are issued.
MR. WOZENCRAFT: Well, Dick, I am certain I can't give you any
more definitive answer to that than Manny Cohen gave to you in April
— and I think you and I agree that that wasn't entirely definitive.
(Laughter) I do feel this, that under subsection (a)(2), it is very clear
that no decision can be used as a precedent against an individual unless
it has been made available.
Again, from what Maimy said, and also from what I have heard
since, they are planning to publish extracts of summaries of the more
important provisions of their "no action" letters. To me this seems like
a very sensible way to handle the problem because, usually, the request
for a "no action" letter is a soul-baring process. A company comes in
and says, "Look, SEC, we are going to tell you all. This is the whole
works. Now you look at this and tell us if, on the basis of these facts,
you can let us proceed as we plan or not. Is this okay, or will you take
action against us if we do it?" The SEC considers it at great length, and
1147
if it decides that it is okay, it comes out with a "no action" letter. Then
the agency carefully says, "Now look, this is no precedent. We feel we
may not want you to do this again under different facts. Our letter is
limited to these particular facts." And that is right. If you made them
give you a general principle that would be applicable across the board,
it would take you about six more months to get the "no action" letter,
and you would only get about one third as many. So I think that the
right and ability of a private practitioner to give confidential informa-
tion to the SEC should definitely be protected. I feel equally strongly
that where an SEC doctrine is involved — where they do have principles
that are going to be applied — then those, certainly, should be made
available to the general practitioner, either through statements of policy
or, where they are developed through "no action" letters, in summaries
of the legal principles or policy formulations that they have adopted
through the kind of digest or summary they are talking about.
MR. McCARTY: Mr. Wozencraft, thanks very much again. I am
sure that we can continue this for quite some time, but I think we
have leaned on you long enough. Perhaps some of you having other
questions may be able to beard Frank after this is over. There is one
final question that several have asked about. There is considerable inter-
est in this Barceloneta Shoe Corporation case — if you could give us
specifics on where that decision can be located, I think everybody wDl
appreciate it.
MR. WOZENCRAFT: Yes, it is the Barceloneta Shoe Corporation
and Crowley its agent, but I think Barceloneta will do it — versus
Raymond J. Compton, individually, and as regional director of the
Regional Office of the National Labor Relations Board. It will probably
be carried as the Barceloneta Shoe Corporation versus Compton. It is
Civil Action Number 505-67, United States District Court, in the
District of Puerto Rico, July 31, 1967.
*****
Frank M. Wozencraft is Assistant Attorney General in charge of the
Office of Legal Counsel. This Office assists the Attorney General in
his capacity as legal adviser to the President and the Cabinet, preparing
the formal opinions of the Attorney General and counseling on legal
matters with the White House and the various government agencies.
One of its subsections is the Office of Administrative Procedure. The
Attorney General's Memorandum on the Freedom of Information Act
was drafted by the Office of Legal Counsel.
Mr. Wozencraft graduated summa cum laude from Williams College
in 1946, after rising from private to captain in the U. S. Army in
1148
World War II. He graduated from Yale Law School in 1949, serving
as editor-in-chief of the Yale Law School Journal, and then spent a
year as law clerk to Supreme Court Justice Hugo L. Black. From 1950
until he was confirmed as Assistant Attorney General in April 1966,
he practiced law in Houston, Texas, with the firm of Baker, Botts,
Shepherd and Coates. He has also been appointed by President John-
son as a member of the Commission on Political Activity of Govern-
ment Employees and of the National Advisory Panel on Insurance.
While practicing in Houston, he served as Chairman of the Corpora-
tion, Banking and Business Law Section and of the Committee on
Securities Laws of the State Bar of Texas.
1149
Special Committees
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Administrative Committees
AcencvSectio.n Liaison : Patricia H. Collins Chairman. Dcpt. of Justice, Wa-hinBton. D. C. 20025
Liaison Representative.^:
Department of Agriculture— Charles W. Bucy, WashinRlon, D. C. 20250
Atomic Enerpv Commission— Sidney C. Kingslev. Washinclon, D C. 20545
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Department of Commerce-James L. Parris, Washington, D. C. 20230
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Post Office Department— Dean A. Murville, Washington, D. C. 20260
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n.-paitui.-iit ..f rran-i...rlali..n J..hn E. Koh-un. tt ,i-hiiigl..n. I). C. J0590
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Ben C. Fisher. Perpetual Building. Washington, D. C. 20004
Anmai. Mfftim. Phii.ai.e. a: Thomas C. Mrrkcr. Cluiirmnn. I'a.kai.l Hl.ii:.. Philadelphia, Pa. 19102;
Kohcil 1.. M.Cailv. V,ri--Ch,iirm,m. tt asliington Hhlg.. Washington. 1). C. 20005; Richard H.
Keatinge, Council Director. 458 S. Spring St., Los Angeles, Calif. 90013
Association -Section Liaison: Whitney R. Harris. Chairman. 2 Glen Creek Lane, St. Louis, Mo. 63124;
M.ir..lil 1.. liu-.cU. y in- -Choir man. 4000 FiiX N.il'l BaoV: Hl.lg.. Alhinla. Ca. .miOS; Ben C. Fisher.
Council Director, Perpetual Bldg., Washington, D. C. 20004
Budget and Finance: Charles Effinger Smoot. Chairman. First Nat'I Bank of Washington. Washington,
D. C. 20006; Carlile Bolton Smith. yice-Chairman. 3007 O""" St.. N W.. Washington. D. C. 20007;
Herman Tockcr. Council Director. 2712 Navarre Dr., Washington, D. C. 20015
Legislative Acrivny: William H. Allen. Chairman, Union Trust Bldg., Washington, D. C. 20005: Peler J.
Nickles, Vice-chairman. Union Trust Bldg., Washington, D. C. 20005; Paul S. Quinn, CouncU
Director. 1616 H St.. N.W.. Washington. D. C. 20006
Management: Ben C. Fisher. Chairman. Perpetual Bldg., Washington, D. C. 20004
MEMBCRsiiir: James R. Stoner. Chairman, Colorado Bldg., Washington, D. C. 20005; Theodore D. Taube-
neck, yice-Chairman. Koppern Bldg.. Pittsburgh, Pa. 15219; Richard H. Keatinge. CouncU Director.
458 South Spring St., Los Angeles, Calif. 90013
Nominating: William Warfield Ross, Chairman. 1225 19lh St., N.W.. Washington, D. C. 20036; John L,
Fitzgerald. S..ulhetn Methodist Univ.. School of Law, Dallas. Texas 75222; Ashley Sellers. 1625 K
St.. N.W., Washington, D. C. 20006
1151
Mr. MooRHEAD. Gentlemen, before we call on the next witness, it is
the custom of this subcommittee to administer the oath to witnesses
and I would like to do that retroactively and prospectively at this time.
Would you please rise ? . -, ■^^
Do you solemnly swear that the testimony you have given and will
give to this subcommittee will be the truth, the whole truth, and noth-
ing but the truth, so help you God ?
Mr. Wolf. I do.
Mr. Parson. I do.
Mr. WozENCRAFT. I do.
Mr. MoxDELLO. I do. x t»«- j n
Mr. MooRHEAD. Our next witness will be Mr. Anthony L. Mondello,
General Counsel of the U.S. Civil Service Commission.
Mr. Mondello ?
STATEMENT OF ANTHONY L. MONDELLO, GENERAL COUNSEL, U.S.
CIVIL SERVICE COMMISSION
Mr. Mondello. Thank vou, Mr. Chairman. I appreciate the oppor-
tunity to say very little, which is all I intend to say here. I appreciate
the opportunity to be here to be of whatever assistance I can.
In view of my own part in respect to the xlttomey General's niemo-
randum, I would like to say just a few words about my role with the
Freedom of Information Act in the Civil Service Commission today.
In a good many areas of my functioning I find that many are willing
to say or at least to suspect about the executive branch that if they
know of one little thing that went wrong or one big thing that went
wrong in one agency, that it is bound to occur all over in thousands of
cases, and I regard the statement by Mr. Wolf, at page 5 of his state-
ment, where he savs, "I suspect all of these examples represent the pre-
vailing philosophy of most of the Federal bureaucracy and must be
changed" as simplv reflective of this attitude.
Now, that statement of Mr. Wolf's and the similar attitude of a lot
of people is not an accurate reflection of what is going on in the agency
I work in, in the Civil Service Commission, and I suggest that the
committee not accept that as their own judgment unless and until you
develop an actual factual support of a substantial sort that indicates
that is true someplace. I think there is far more disclosure today than
there ever has been before. I think that mood is growing. I think it
started with the passage of the act, and I suggest what resistance you
discover now by the people in the executive branch who appear un-
willing to disclose documents is something akin to what I will find
and you will find in the Zeiss case which is cited at page 35 of the At-
torney General's memorandum. And in Zeiss, I was then in charge of
the daily operations of the Office of Alien Property in the Department
of Justice, the agency which actually had possession of the documents
that one of two private litigating parties were seeking to obtain from
us. I had heard from counsel from the side that wanted the documents,
and we turned over very many documents. I have refreshed my recol-
lection this morning and learned in Judge Robinson's opinion that by
the time we had gotten to the litigation we had given up 4.500 docu-
ments and had retained 49 documents. I think I personally passed on
all of those documents that any member of my staff felt at the time
1152
should have not been released. I think initially there were several hun-
dred, and I went through them all, and finally we went to litigation
on 49. And I think that that is what is going on now.
By the way, wo fought about that, and we won in the Zeiss case.
We "won our "judgment as to the imavailability of the documents, and
it was sustained by the district court, and that decision was upheld on
appeal.
But I think people who see resistance in Govei-nmont officials now
mistake what it is. The resistance certainly is plain, but I think it begins
to occur at a completely different stage than normally it would have
occurred before passage of the act. I think agencies are giving much
more ; I tliink the act has been very effective ; I think the resistance
is now setting in at a later point on the course, but resistance will
always be unwelcome and, as Mr. Wozencraft has informed you, there
always are going to be situations where nothing short of a court reso-
lution is going to make much sense. The provisions of the act, as you
know, i^urport in very few general statements to take care of the liter-
ally billions of documents the Government houses. To me, it is kind
of "marvelous that the act has been as effective as it has, in spite of this
almost hopelessly general language.
In the Civil Service Commission, after the act was passed and even
prior to the time I joined the Commission which occurred in April
1968, they actually sat down — and they did this too after I got there —
and decided, without anybody pushing us, just what documents
formerly withheld should," because of the passage of the act, be made
available.
We sent a list of such documents to the Senate committee which
had requested whether we could generate that kind of information, and
we found that we could.
But more important to me was what happened to the attitudes of
the bureau and office officials in the Commission who sat down with
us and heard from me, and from the foreword of this memorandum
what the new attitude about the disclosure of documentation had to
be in the Federal Government.
What it means to me is when they went on to their daily duties they
had in mind a new idea of what had to be disclosed. And by the way,
when we prepared the memorandum we noticed that the Civil Service
Commission, with which I was not totally familiar at that time, had
a very good record about having material that was technically ex-
empted by the second or the fifth or sixth provisions of the exemptions
of the act, yet making it all public, including it in their regulations
and including it in their instructional statements which are essentially
written to personnel officers all over the Government but which are
available, for sale, through the Superintendent of Documents to any-
body who wants to see them. We thought that was a good view of how
that act should be treated, and we said so in the memorandum.
I later went to work for the Commission.
I cannot believe, in view of chance conversations I have had over the
course of all of the 4 years I have been at the Commission with per-
sonnel in the General Counsel's office of other Government agencies —
I do not believe that other agencies are paying any less attention to
1153
the Freedom of Information Act than we do in the Civil Service
Commission or than I did in the Department of Justice.
I would like to support an additional item that Mr. Horton and Mr.
Wozencraft were discussing, the item of cost. My predecessor, as Gen-
eral Counsel at the Civil Service Commission, Leo Pellerzi, knew that
we alone in the Commission had all of the decisions that had been
made under the Hatch Act, and that troubled him and he did want to
publish them. He did make them available, so if anybody came in they
could see them.
But that obviously was not enough. When a Federal employee who
had allegedly violated the Hatch Act would go to a lawyer in Seattle
and say "would you defend it?", it would be difficult for the lawyer
to know whether his client had been treated well or badly because he
would not have the decisions available. After I became General
Counsel and I was acquainted with the problem, I tried to get money
put aside so that we could do something about it. We did. We put out a
four-volume work, complete with topical index, and we published in
two of those volumes all of the cases ever decided since 1940, State
cases, and all of the Federal cases decided since 1886, and they are now
out for all the world to see; they are in every major libraiy in the
country, and we did something about it. That cost my budget about
$35,000 to $45,000, and it was hard money to find.
We have a similar kind of a problem with respect to the appeal cases.
As you probably know, in most adverse actions in the Federal Govern-
ment the agencies first handle each case and then appeal is made to the
Commission. We have been asked many times to report our decisions
on those cases. We have not yet made them public, and the difficulty is
that there is a good deal of private information about employees in
those cases, and what we have to do is to go through them and delete
all of the identifying details so that the result of the case is perfectly
plain and everybody can see it and deal with it.
But on the two occasions when I noticed we established a project to
get that done, the personnel who were supposed to do the work would
be diverted because we have had such a monumental caseload increase
in the Board of Appeals and Eeview that it became a question of
allocating lean resources — v>e were either going to turn out more cases
so that employees' cases would not wait overlong, or we would not
have any cases to report. So, these matters represent attention that
we cannot afford to spend in the Commission, either with regard to
these appellate cases or with regard to our more principal function of
controlling the records that are maintained on all Federal employees.
We do not maintain them all; the agencies have custody of most of
them, but we do have a monitoring, leadership responsibility about
what is maintained ajid how it is kept and what is allowed out to the
public. We have regulations on the books about that, and none of the
people who asked us for information have yet come in and told us
that our regulations are jxjor. Currently, there is a tendency toAvard
computer use for gathering information with greater efficiency. In
dealing with private information— there are so very many people
that have raised alarm. There are some who are fearful we may com-
mit monumental invasions of privacy if we are not extremely careful
1154
on how we treat this. So, we are kind of caught between two fires, those
who would have us divulge almost everything and those who are
terribly ajixious that we not commit invasions of privacy. Although
1 think it has been effective until now — I am not sure just how pro-
tectiA-e the clearly unwarranted invasion of privacy test, as stated in
the sixth exemption, would be if the matter were pressed. But I know
of no invasions that Ave think have been clearly unwarranted which
Ave have had to make or Avhich the courts have had us make.
Beyond that, the Commission has had, as we haA^e reported to the
committee, some 23 cases Avhere Ave have turned people doAvn for in-
fonnation or documentation that Avas requested from us. They have
not filed administrative appeals, although I do knoAV of final deci-
sions in our Conmiission Avhich Avere made by the executive director
of the Commission. And I knoAv there have been cases processed so
that the ultimate letter of denial Avent on his signature to an individual
Avho had requested the document.
Mr. HoRTON. Mr. Chairman, may I interrupt the Avitness to ask a
question ?
Mr. MooRHEAD. Certainly.
Mr. HoRTON. You talk about making information available and
computer lists — and, of course, you do have lists of people in your
agency. I have a bill Avhich is the subject of a later hearing, and I
Avonder if you could comment as to Avhether or not your agency does
sell or make available lists of the names and addresses of people that
are on file in your agency ?
Mr. MoNDELLO. No, sir ; Ave do not ; and Ave think it Avould be bad
practice and really inconsistent Avith Avhat the theory of invasion of
privacy is. We are very leery in giving out home addresses, for ex-
ample.
Mr. HoRTON. Do you make names available ?
Mr. MoNDELLO. Yes, the name, grade, title and duty station of every
employee is public information and so declared in our regulations.
Mr. HoRTON. But you do not give the addresses ?
Mr. MoxDELLO. No, sir, Ave Avould not do that, except on occasions
when we are served Avith a subpena or subsequent to indictment Avhen
the police are looking for somebody and they bring to us the official
papers AA'hich indicate that a court Avould like for us to divulge the
address, in Avhich case Ave Avill do so. But, ordinarily, Ave will not do
it.
Our regulations also prohibit the practice of making lists available
for commercial or political solicitation. We do, after all, have the
Hatch Act for enforcement, and political solicitation to us is as bad as
commercial solicitation appears to be to other agencies. But Ave have
not fui-nished mailing lists, for a fee or not, to anyone that I know
about. We have turned doAvn requests for them.
I think that is all I really feel I need to say, and I will be available
for questioning, Mr. Chairman.
Mr. MooRiiEAD. Thank you, Mr. Mondello.
We Avould like noAv to hear from Mr. David Parson, Chairman of
the Committee on Government Information of the Federal Bar As-
sociation.
Mr. Parson ?
1155
STATEMENT OF DAVID PARSON, CHAIRMAN, COMMITTEE ON
GOVERNMENT INFORMATION, FEDERAL BAR ASSOCIATION
Mr. Parson. I am honored to testify here today. I am an attorney in
Chicago, 111. During 1962-65 I was an attorney with the Federal
Govermnent in Washington. I have been chairman of the Federal
Bar Association's Government Information Committee for several
years.
Although I have been asked to appear as representative of the Fed-
eral Bar Association, my remarks do not necessarily represent the
association. The association has acted in many positive ways to ex-
plain to Government attorneys legislative matters and to spur on legis-
lation on certain matters. For example, the Committee on Government
Information has devoted time and effort to an explanation of the
matter of individual privacy versus various social needs, the Federal
data bank, freedom of information, etc. In that connection, for ex-
ample, back in 1966 we spent much time with our Government lawyers
and with staff' committees on the proposed Freedom of Information
Act. At our 1967 annual convention we had over 200 Federal lawyers
hear a frank and free discussion of the freedom of information bill,
at which the Honorable Anthony Mondello explained the Attorney
General's memorandmn; and we had background on the Public In-
formation Act and the Administrative Procedure Act given by a pri-
vate attorney ; and a representative of HEW, Allison Wilcox giving
the agency view of Government information and privacy. Continuing
over the years, we have done the same thing. In our opinion, this ex-
posure to the act by hundreds of Government employed lawyers —
whose job it is to administer the act — has helped to make the act
viable and responsive.
From my experience in private and government law practice, I
think that the Federal lawyer does recognize that whatever agency
or congressional committee is his immediate employer, his ultimate
employer is the people themselves. But having chosen to be a civil
servant and therefore depending on continued Federal service for his
psychological as well as his economic well-being, the Federal lawyer
does not and cannot be expected to countermand his immediate em-
ployer beyond suggesting a judicial interpretation of the Freedom of
Information Act. If the act is truly to result in the public's right to
know, there must be open to inspection those corridors of power of
both the executive and the Congress. Information is power, and the
use of information must, of necessity, be in the hands of the governing
bodies, the executive and the Congress.
But the public must have available to it, as a matter of right, the
information itself so that it can make its own judgment as to whether
the use of that information has been responsible and judicious.
I have several proposals with regard to amendments to the act,
but those, I believe, Mr. Chairman, will come up in the course of
your questions.
Mr. MooRHEAD. If you would like to submit them for the record —
we want to be sure that we have all of your proposals in the transcript.
Mr. Parson. Well, if I may go ahead then, I would like to.
1156
Mr. MooRiiEAD. I mean, if you haA^e them in written form, they
can be incorporated in the record.
Mr. Parsox. In written form, yes, Mr. Chairman.
Mr. MooRHEAD. Without objection, that will be received.
Mr. Parson. Thank you.
(The proposals follow:)
The author of an article in 48 Texas Law Review at page 1261 (1970) dis-
cusses the 4th exemption dealing witli "Privileged or Confidential Information."
Like Professor Kenneth Gulp Davis in his article in 34 University of Chicago
Law Review at page 761, she argues persuasively that the 4th exemption should
be restricted to commercial and financial information which is privileged or
confidential, and that an objective test by the courts should determine which,
if any, such information should be held to be confidential. The courts are not
uniform in their decisions ; and this should be clarified by legislative action.
With regard to the 5th exemption, i.e. inter-agency or intra-agency memoranda,
the author argues that public policy of the Act demands disclosure of memo-
randa dealing with fact or policy once the decision, order or regulation has
been issued. Although Congressman Moss in the committee reports stated
"I don't think it po.ssible at this time to go that far in drafting language", the
time would now appear appropriate to do so by carrying out the basic intention
of the Act to make more visible the inner workings of the Government.
The 7th exemption protects disclosure of "investigatory files compiled for law
enforcement purposes." First, legislative action should make clear that "law
enforcement purposes" relate to regulatory as well as judicial enforcement
proceedings. Second, once an investigation has ceased and adjudication, or the
realistic prospects thereof have ended, investigatory files should be open to
the public. Third, an investigatory file, during pendency of liti,gation, or its
realistic prospect, should not be deemed to include informer's information, but
only the informer's identity ; should not be deemed to include facts and other
material, the disclosure of which will not hamper or harm the Government's
case. In other words, the intent of the Act to disclose information, even though
ostensibly protected by an exemption, should be carried out.
Mr. Moorhead. Does that complete your statement ?
Mr. Parson. It does, indeed. Thank you, sir.
Mr. Moorhead. We will proceed, under the 5-minute rule.
Mr. Reid. There are not too many of us here today.
Mr. Moorhead. Mr. Mondello, while your testimony is fresh in
our memory, you spoke very favorably of the record of the Civil
Service Commission on the implementation of the Freedom of In-
formation Act. Yet, in our questionnaire of last Au^st when we had
asked the Commission for the number of requests for information
that had been made under the act, it was clear that, unlike most
agencies, your commission does not keep any central record of re-
quests for information received.
Mr. Mondello. AVe do now, sir. We gave you a record of 23 cases,
I think, and by going through all of our correspondence files we es-
tablished this.
Mr. Moorhead. But, because you do not keep a record of requests
that have been turned down at the lower levels, we do not really know
how many requests were made that were turned down by the Com-
mission. Is that not correct ?
Mr. MoNDELix). We do not really know if tliere were any, that is,
requests that Avere turned down. We do know that a great many re-
quests are made and information has just been willingly given. So, I
do not know how to reach back with a capacity to generate that, but
there has never been any documentation.
1157
Mr. MooRHEAD. But, if we ask in the future, your recordkeeping
will be such that you will be able to tell us how many requests have
been granted, and how many have been turned down ?
Mr. MoNDELLo. If it is not true, it will be true starting tomorrow.
I can assure you of that.
Some of the information you really want to know is whatever re-
quests are made and you do not care if they are made in writing, and
it gets to be — I do not know how many times. I do not know how much
time anyone should spend at counting up requests that are made, that
are just granted off the cuff. I would have to divert our time to that but,
you know, we could do it, I suppose.
We have regional offices throughout the country and area offices,
some 65 of them. We have a good deal of information, and we do give
a good deal of it out on request. We even set up a new telephone
system so that people can make a free telephone call to us and get
information.
Now, you know, every time anybody asks us — there are literally
millions of those requests made of us in the regions, and I cannot>—
I would not want to set up an arbitrary procedure. May I deal with
the committee staff on this ?
Mr. MooRHEAD. I think that would be a good thing. We would like
to be able to establish which agencies were complying with the act
and which agencies were reluctant to do so. Based on your records,
it is difficult to tell whether the Civil Service Commission is really
living up to the spirit of the act, or not. That is the point I am trying
to make.
The other point is, the custom of the Civil Service Commission to
hold hearings of appeals of employees in private, that is your custom,
is it not, even if the employee requests an open hearing ?
Mr. MoNDELLo. That issue is currently before the courts. In fact, it
has been submitted, after argument, to the Court of Appeals in the
District of Columbia, in connection with the Fitzgerald case. The short
answer is "Yes"'. Most of the hearings we held in adverse action cases
presently are because the matters talked about in those hearings with
respect to possible witnesses, and the principal party, do involve pri-
vate matters.
We have constantly, through the years, held these hearings not open
to the public. The question of whether we should do so when an in-
dividual does not wish his or her hearing to be closed is a more dif-
ficult problem than on the surface appears. That has been argued, on
its merits, now, to the Court of Appeals, and I would rather await
the outcome of that. I do not think I should talk about it.
Mr. MooRHEAD. I would like to ask all of you gentlemen if you could
discuss the respective roles of the general counsel, of public informa-
tion officers, and of administrators in the implementation of the law.
I am particularly interested in your comments on my thought that
initially the responsibility should be the public information officer,
and only if he decides to turn down a request for information should it
be necessary to bring in counsel.
Mr. Wozencraft, do you have any thoughts on that?
Mr. WozEXCRAFT. I believe usually, Mr. Chairman, if the request
comes from the newspaper or other media source, it would go to the
1158
public information officer. If, on the other hand, it comes from a lawyer
dealing with a particular branch of an agency, it would go directly
from him to that agency branch. It is not the kind of matter that the
public information officer would have any occasion to be familiar with.
There would just be one more step if they had to bring him in. I do
believe that the ultimate apj^eal is very well vested either in the gen-
eral counsel or in someone like the Under Secretary, who will be rely-
ing upon the general counsel because the lawyers have a lot better idea
of what is going to happen to them in the court proceedings, if they do
not produce the documents.
I think that is a salutary effect in terms of releasing more documents.
I do believe that a resi^onsible departmental official, preferably a Pres-
idential appointee, confirmed by the Senate, should be the ultimate
authority within the agency. And I agree that there should be just one
appellate step within the agency to avoid too many tiers and layers.
Mr. Wolf. If I might comment on that, I think possibly, Mr. Chair-
man, that our image of the public information officer has been one in
general of someone who does not seriously think in ways of some of the
alternatives which I would submit could possibly be worked out if the
right individual were in that position to make him the first and last
repository of the request.
If he really does feel, and he is a responsible, sophisticated person,
and is aware of the agency problems, he will call up the general coun-
sel. But, I do not think it necessarily has to be that way.
Ideally the agency should be able to respond right away, and the
public information officer should be a supergrade employee, and have
the confidence of the chairman, as Mr. Wozencraft suggested, and the
agency — and this will make the agency more responsive, I think.
Mr. Wozencraft. If I may make one further comment. I did not
mean to imply that only lawyers should be charged with releasing docu-
ments. As I said earlier, I think the public information officer can be
very useful in a great many situations, but a lot of times his problem is
also to have a great consciousness of the image of the agency. Some-
times if the image of the agency might be tarnished a little bit by the
document , he may be much more inclined to withhold it rather than
release it.
And my thought of having a general counsel in at the appellate level
is in case that does happen, to let us have someone else to whom an ap-
peal can be directed.
Mr. MoNDFXLO. In the commission on such matters I get in on the
appellate mattere, too, and furnish legal counsel, and finally until a
decision is reached in this area, I think we should keep lawyers on the
scene all of the time because I think the lawyers in Government have
been very helpful in persuading these operating officials who, you know,
for 20 years perhaps ran an office, owned the files, so to speak, and have
l)©en turning down everybody under the former section 3. It has been
legal counsel, I think, who has been very insti-umental in letting thejn
realize that day is gone, and the great benefits of the act seen in the
past 4 years, I think, are a direct result of that kind of working out
with lawyers with the threat that we are going to lose it in court, and
you make the agency head resist, and nothing could be more devastating
than when the Deirartment of Justice connnittee says to somebody that
it is indefensible and we will not take it to court. We will not defend it,
1159
and I think that is the end of the road right there, and there are law-
yers who do that, too.
Mr. MooRiiEAD. Mr. Reid.
Mr. Reh). Thank you, Mr. Chairman, I particularly would like to
welcome Mr. Wozencraft, Mr. Mondello, Mr. Wolf, and Mr. Parson,
and thank them for coming this morning. And I think their testimony
has been articulate and very A^aluable. I would esi>ex:ially like to say a
warm word of greeting to a friend of long standing, Frank Wozencraft,
and to salute him for the work that he did when he was in the Justice
Department to ti-y and strengthen the clarifications, if not the substance
of the act. And it is a particular pleasure to see him here this morning.
Mr. WozEXCRAFT. Thank you, sir.
Mr. Reid. Let me, Frank, ask you a couple of quick questions, and
then a fairly tough one, if I may.
Firet, would you concur that an amendment to the Freedom of In-
formation bill should reduce the provision now applicable under the
Administrative Procedure Act in the Federal Rules of Civil Procedure
which permits the Government at this point to take 60 days to apply
to a shorter period such as 30 days ?
Mr. Wozencraft. Mr. Reid, 1 think this is really part of the whole
judicial remedy and structure. I do not really believe I am sufficiently
familiar with litigating in such a situation to give a very^ informed
judgment on it. Obviously you do have to move fast on a lot of these
requests, or they do not do any good, and in many instances where
that is the case the courts have shortened the tune available for reply.
Perhaps that is a better answer than an across-the-board limit that
might result in less satisfactory dealings w^ith questions that are not
all that rush and are extremely intricate. I certainly agree with you
that prompt attention is necessaiy.
Mr. Reid. Well, the reason I mention it is, as you know, John Moss
and I proceeded under the act relative to the Pentagon papere. By the
time the matter finally got before the court for decision, of course,
most of the documents had been declassified, and to some degree part
of the questions were moot. And my impression is that we should speed
it up.
Let me go directly, however, to that particular case, and to the
question of executive privilege, a relationship that perhaps should
exist between tighter definitions, executive privilege, and what hap-
pened in the case of the Pentagon papers. This was Reid and Moss
V. Laird, and the plaintiff had asked the court to personally exam-
ine the four volumes of Pentagon papers.
This was in order to determine whether they wei-e properly classi-
fied, and thus properly withheld under the security classification
exemption in the Freedom of Information Act. And the court ulti-
mately declined to review the documents and accepted the Department
of Defense affidavit that the docmnents were properly classified.
Four reasons were advanced by the court, Judge (resell. One, the
court has no expertise in national security matters.
Two, the court finds ex parte and in camera proceedings distasteful
and does not like to remove the proceedings from the adversary
process.
Third, the act does not require the court to examine secret docu-
ments ; and
1160
Fourth, if such procedure were required, courts would spend all of
their time having to review classified documents.
Let me take this in stages with you, if I may. First, one of the ques-
tions here is what does the exemption actually refer to when we say
specifically required by Executive order to be kept secret in the in-
terest of national defense or foreign policy.
If you look at the Executive order in question, 10501, top secret
classification is very strict, and yet no one has interpreted it in that
fashion. Now, it explicitly says the top secret classification shall be
applied only to that information or material, the defense aspects of
which are paramount, and the unauthorized disclosure of which could
result in exceptionally grave damage to the Nation, such as leading
to definite breaks in diplomatic relations affecting the defense of the
United States, and armed attack against the United States or its allies,
a war or compromise of military defense plans, or intelligence opera-
tions, and then it gets a little weaker, or scientific or technological
developments vital to the Nation's defense.
Basically, if you read that sentence, on its face it is really talking
about exceptionally grave damage, and it is really saying something
like World War III. Well, quite obviously, the intent of the Executive
order has been grossly violated because almost everybody or anything,
w^hat the Secretary has for breakfast, is classified top secret.
So, I think that definition needs to be drastically tightened so that,
in fact, we are talking about top secret.
And second, I think we should put an end to all of these extralegal
classifications which are prohibited by the Executive order, and techni-
cally, as you know, secret, top secret, and confidential are the only
ones that are supposed to be used in the Executive order, and it
says no other designation shall be used to classify defense information.
And yet, with impunity there are a whole series of additional
classifications and access classifications which, in effect sets up and
triggers a whole new series of procedures of access.
So, I think that it is obvious, but what I would like to ask you more
precisely is when we get into an area where clearly a Government
agency in this case has improperly withheld certain information, and
we have had, incidentally, at the outset of this suit testimony from the
State Department that 80 to 90 percent of these documents should
never have been classified in the first place, and how do we get the
courts to make a judgment ?
They said that they did not want to hide behind, in essence, the
certification of the Department of Defense. There has to be a remedy
here of some kind. Would you care to comment on that?
Mr. WozENCRAFT. Well, Mr. Reid, that veiy question will be before
the Supreme Court in the case of Hnviromnental Protection Agency
V. Pasty Mink, where certiorari was granted yesterday. I have
a hunch their answer will be considerably more enlightening and per-
suasive than any I w^ould give. I do feel we must be careful always
Mr. Reid. I do not know whether it may be more enlightening, but
it may be somewhat more persuasive.
Mr. WozEXCRAFT. I am sure that it will be more persuasive. I do feel
that your point on having tlie separate classifications is an exceedingly
valid one. I liave a very low threshold of tolerance for the number of
subclassifications which appear, and it reminds me of one I remember
1161
that crops up all over the place, ''administratively confidential." I
iruess that means not to show it to anybody that should not see it, but
it certainly has no validity or import in terms of any legal right.
Mv. Eeid. Well, in that context, how would you deal with a right
that I think perhaps should be in existence, the right of discovery ?
We had testimony yesterday from George Reedy and others pointing
out that the Congress, for example, does not have access to informa-
tion so that it does not know what to ask for.
And equally, if the Executive is misbehaving, they do not broadcast
it, and they are not accountable, whereas they do broadcast, by a dou-
ble standard, things that put them in a good light. There is some de-
velopment of this right of discovery in environmental law. Do you see
some way that this could be applied here ?
INIr. WozExcRAFT. ]Mr. Reid, I think that what is needed here is a
statute dealing with discovery as part of the Administrative Proce-
dure Act. This has been recommended by the Administrative Con-
ference of the United States. A recommendation to the same general
effect is also presently being considered by the administrative law
section of the American bar.
The absence of discovery as to Government agency processes is a real
lack, and ought to be filled. I believe it should be filled by an act de-
voted to it, rather than attempting to adapt this particular act which
has a verj^ different purpose. This act is, after all, intended to make
information available to any person. There is nothing under this act
available for a litigant, for instance, that is not also available to his
competitor.
Under a discovery statute you can use a rifle instead of a shotgun,
and it would seem to me that that is the appropriate way to approach
it.
Mr. Reid. Let me ask another question on the subject of executive
privilege. We have testimony from a number of people, including
former Justice Goldberg, a number of editors, reporters, and the like.
The more I listen to their testimony, the more I am convinced that the
right of executive privilege is not an all-pervasive one.
;Mr. Rehnquist, now on the Supreme Court, when he testified, talked
about an implicit or inherent right of executive privilege. John Moss
and I have never been convinced that it was that broad, and it seems
to me on the premise that the Constitution did not intend that we have
one-man government, but rather coordinated branches of Government,
and if that he, so does the executive, in your judgment, have the right
to withhold, and leave aside the fonn for the moment, the right to
withhold from Congress information and facts central to a congres-
sional, constitutional legislative decision?
One of the examples that comes to mind is tliat the Congress was
denied information on the Gulf of Tonkin at the time it was asked
to act. I am not talking here about confidential staff papers, or meet-
ings between chiefs of state, or ambassadors' telegrams, or thmgs of
that sort.
I am talking about benchmark policy decisions, central to, for ex-
ample, a finding responsibly under the Constitution by the Congress.
And here do you think executive privilege is to preclude that kind of
information going to the Congress ?
76-253— 72— pt. 4 11
1162
Mr. WozEXCRAFT. Mr. Reid, first let me point out that we are talk-
ino; now about sometliino; quite different from the Freedom of Infor-
mation Act, which woukl not deal with executive privilege, since
executive privileo-e itself is a question of constitutional basis rather
than a statutory basis.
Ml', llr.w. ^VeU, I am not sure we are talking about two different
things, because one way we can perhaps reach or remove some of the
executive privilege from the Executive is through the Freedom of
Information Act. That is a parliamentary as well as a constitutional
question.
Mr. WozEX CRAFT. Well, to the extent that the executive privilege
exists, it is a creature of the Constitution, and to the extent it is a
ci-eature of the Constitution. I think there is serious question about
the extent to which it can be affected by a statute.
Xow, let me quickly pass on, though, to what T regard as a very
practical approach that everybody has to take. The Executive and
the Congress have to take such an'ai)pi-oach in this area of executive
privilege itself. The Constitution did set up three separate branches.
It is not the parliamentary system, whether or not it should be. This
has led to some of the most important and frustrating problems of the
Government.
We were called upon to deal with it in the Office of Legal Counsel
occasionally, and the Congress has had lengthy hearings on that
subject for some years, and nobody has found any definitive answers.
At the same time, that does not mean that everybody has been floun-
dering meanwhile, because the Congress has a very real set of weapons,
and it Imows very well how to use these weapons in terms of congres-
sional oversight.
It also uses them in terms of appropriations.
It uses them in terms of confii-mations of presidential appointments,
and where it finds that the Executive is seeking to retreat behind
a veil it would like to tear away, it has very real powers with which
to tear away that veil.
Conversely, it nnist be acknowledged that the Executive has very
real powers\mder article II of the Constitution. The two branches
have gotten together pretty much on the basis of comity and on the
need of each branch for the other to work with it if this country is
to fujiction well.
Tliere may l)e a better answer than that. I have not yet found it.
Ml'. IvKii). Tx't me take it one step further. Senator Fulbright has
introduced a i)ill in the Senate, and T am by way of introducing one in
the House, the etTect of which would be that if a committee of the 0)ii-
gress required of an agency the ])i'o(lu('ti(m of infonnation central to
a legislative purpose, and then this information is withheld, and if
there is a certification that all information that is relevant has not been
supi^lied, then the funds are cut off' within 30 days.
The Comptroller General is directed not to sign warrants to the
Treasury, and criminal sanctions are brought to l)ear on the Executive
should any siu-h funds be spent. Xow. quite obviously, if one ever got
such a bill through the Congress^I do not visualize it happening to-
morrow— the mattei' would end up in the courts.
And what we ai'e trying to seek here, obviously, witliout a total con-
fi'ontation, is an accommodation. But, T tliink it useful to discuss the
1163
premise lu'ie, and my })i'emise is that the Executive doos not have an
exhaustive riaht to deny information to Cono-ress that is central to a
constitutional purpose of the Congress, and I would be quite surprised,
if it ever got to the courts, if the courts would hold that there was an
exhaustive right. In fact, the Reynolds case, I think to the extent that
it is germane, indicated that it was not a broad, inherent, explicit right
that was lodged with the President, but if there was such a right of
judgment, it lay with the courts.
3Ir. "W'ozENCKAFT. Well, Mr. Eeid, I think your lii'st suggestion of
iMidgetary ivstrictions and limitations is likely to jjrove devastatingly
ett'ective if it is adopted without any of the other sanctions you sug-
gested. It may never need to reach the courts. Indeed, traditionally the
conflicts between the Executive and the Congress have not reached the
courts. They have much more frequently been worked out by jockey-
ing back and forth for some solution to which each side will grudg-
ingly agree, because each side possesses real weapons, and each side
needs the other.
Your mention of the seeking of an accommodation is where I would
hope that the ultimate answer would lie.
Mr. REro. I agree Avith you, but the fact is that the White House
today is increasingly moving within its umbrella. 0MB antipoverty
etl'orts, and it is even alleged that there is some aspects of the State
Department that have been transferred. Be that as it may, it is getting
harder and harder for the Congress to reach it, and when suddenly the
wall of executive privilege goes up on the grounds these are all per-
sonal advisers to the President, or some other reason, then the Congress
increasingly is either imal)le to find out what is going on. participate
in the decision, or act properly within its constitutional mandate.
And. therefore, I think this particular problem is a central one if
the Congress is not to be merely an appendage on the White House.
Thank you very much.
Mr. WozEXCRAFT. Thank you, sir.
Mr. ]MooRHEAD. Thank you.
Mr. Paksox. Mr. Chairman, may I just make one comment to Con-
gressman Reidi'
Mr. Reid. Yes, sir.
Mr. Parsox. One of the men I think you could choose is Phil
Kurland.
Mr. Reid. One of the very best, if I may say so.
Mr. Parsox. On the occasion when he testified last year before this
committee, when asked to testify on the subject of executive privilege,
he said. "T respectfully refer you to Congressman Reid for greater
expertise in this matter."
Mr. WozExcRAFT. I might add. Congressman, that the work of you
and Mr. Moss in such matters as calling attention to each President
your thought that only the President, himself, should invoke this
privilege, I thiid<: has been most helpful.
]Mr. Reu). Thank you.
( Discussion otf the record. )
Mr. MooRiiEAD. Mr. Wolf has suggested that copies, at least single
copies of Government documents be furnished free to the person who
requests them.
Do any of the other witnesses liave any thoughts on that matter?
1164
Mr. MoNDELLO. We do it. We do it now, if it is not troublesome to
us. We do pass out enou<:^h of our own information that we want
people to know. If somebody requests a document, and we make a copy
on the Xerox machine, it would cost us more to compute the cost than to
just give it to them. So we just give it to them, and a good deal of this
is going on.
I do not know who is being stingy about it. What I have just said
is subject to the case of a person who wants 700 documents, in which
case you do have to charge something, and there is an Office of
Management and Budget circular on how you compute the cost so that
3'ou do not overcharge.
But, you do not get the benefit of what costs you have expended.
Mr. WozENcrvAFT, Mr. Chairman, I might add to that that when
the act was first goin^ into effect we were concerned at the Depart-
ment of Justice that somehow or other these fees might dry up the flow
of information which was already being provided free of charge.
We instructed the U.S. attorney's offices throughout the United
States for instance to continue to make available free-of -charge copies
of briefs and other documents that they had been making available.
At some point added cost does become a burden, and somebody
has to bear it. Perhaps it should be the taxpayer. In that case it should
be in a line item in the budget so tliat we do not frustrate the acti^-ities
of the agency to deal with its other substantive functions. At least
agencies should receive the fees, as I mentioned earlier, that come from
any sort of payment should be paid into them, and if it is to be free,
then some source of funds must be made available to the agency with
which to make these copies available.
Mr. MooRHEAD. Did you have any thought, INIr. Parson ?
Mr. Parson. Mr. Chairman, as to whether a legal counsel or a public
information officer should direct these activities, I had the pleasure
of serving under Edward E. IMurrow at USIA. At USIA and across
the board in small agencies, the people I have talked to, I think we dis-
covered the same thing. When tlie director of an agency, the head of the
agency, has as his basic tenet the distribution and availability of in-
formation, then it follows tliat everybody or most ever3^body in the
agency will follow his policy: therefore, it does not become a problem
for the lawyer, and it does not become a problem for the public in-
formation officer. It is only when the head of the agency does not set
that policy of distribution of information that it then becomes a prob-
lem of whether we are charging too little or too much, whether one
person or another has to make that final determination of what will
be distributed.
So, I think the crux of the matter is, as I have also seen it in prac-
tice, is that once the lieads of tlic agencies are aware of the need for
the public to have this information, any information, information
which does not violate the right of privacy and national security, then
all of the other problems really melt away.
Mr. MooRHEAD. About court costs and the plaintiff who has been
denied infonnation by some Government bureaucrat. There has been
a discouragement of trying to use the courts, as the act provides. There
is also the expense of bi'inging suit. Wliat do you think, Mr. Wolf,
about whether the Government, if it loses a case, should pay the court
costs of the plaintiff ?
1165
Mr. Wolf. I think that is not something tliat should be opposed,
yh: Chairman, but I do not think it would get at the root causes of
the faikire to disclose. I can see that, and I think that would be a help-
ful addition to the act. It would have a slight deterrent effect, but
I think what Mr. Parson said is the key.
If the agency had adopted the philosophy of disclosure, then all is
well and good, but I do not think that too much reliance should be
placed upon the recovery of the cost, court costs.
I think it does help, possibly, the indigent or the individual who
is just faced with this rather "lengthy court suit. But, I think court
costs at the end of the line are not really going to encourage him to
come forward and make that request if he knows that he is going
to have a lengthy delay. I think it is helpful.
Mr. WozENCiLvrT. Mr, Chairman, I would like to add that it seems
to me that we are really talking here about is how we are going to spend
the taxpayers' money. There are certain numbers of dollars, and un-
fortunately that number is not infinite, that can be used for the en-
forcement'of that act. Is that money better used in counsel fees, or is
it better used in making funds available, for instance, for the correla-
tion and the publication of guidelines and the precedents and making
available free copies of material ?
Mr. CoRNisii. Mr. Chairman, I wonder if I might inject a question at
this point?
Mr. MooRHEAD. Mr. Cornish.
i\Ir. Cornish. It is on the cost issue. If I am not mistaken, Mr. Wo-
zencraft, and Mr. Mondello, I think you suggested that the cost and
search fees ought to go to the agency involved instead of the Treasury.
]Mr. WozENCRAFT. Yes, sir.
Mr. Cornish. Would that not possibly encourage the imposition of
more and higher fees? Is there not an irresistible temptation to get
something in return for the services provided, even if it means going
to the filmg cabinet, pulling out a piece of paper and saying, "Here,
that will cost you a dollar ? "
Mr. WozENCRAFT. That might be a human temptation, Mr. Cornish.
I believe there are ways to resist it, however. For instance, that might
l^e one item that is sul)iect to the price freeze, or at least to phase II,
and perhaps if phase II ends and it becomes a problem, I believe that
this committee could institute its own phase III, asking the various
agencies why they had seen fit to raise the rates.
]\Ir. Cornish. Well, we are trying to institute, as a matter of fact, a
phase. I do not know what numl^er it is, but the Cost of Living Council
right now, in regard to their information on piicing apparently has
some problems.
Mr. WozENCRAFT. Eveu the policemen need policing sometimes.
Mr. Cornish. Thank you, Mr. Chairman.
Mr. MooRHEAD. ]\Ir. "Wozencraft. last summer in the Washington
Post there was a case involving the Pentagon papers and the Govern-
ment submitted an affidavit describing the classification method used
under Executive Order 10501, stating that it is sometimes necessarv to
classify a document in which there is no page contained therein which
would be subject to classification. It is called compilation classification.
Do you think that such a document would legally be withheld under
the exemptions under the Freedom of Information Act?
1166
]\Ir. WozKxcRAFT. AVcll, Mv. Cluiirmaii, this again would depend
upon the facts of tlie particular case, and I nuist confess that I am not
familiar with the facts.
I did notice in the court of appeals opinion in the Mhik case that doc-
uments that were part of the file there that were not themselves classi-
fied were released eventually, even though they had not been in the
first instance, and were made available. That seemed to me like a very
healthy a])proach toward declassification,
]Mi-. MooRHEAD. Thank you. ]\lr. Wozencraf t.
Mr. Cornish, did you have another question ?
Mr. Cornish. Xo.
Mr. MooRHEAD. ]\Ir. Phillips.
Mv. Philltps. This is directed to INIr. Wozencraft and INIr. ISIon-
dello. ]Mr. Chairman. AVere there any attempts in the Office of Legal
Counsel when you were there to review drafts of proposed afi-ency
regulations implementing the Freedom of Information Act prior to
their publication in the Federal Eegister? I am talking about in the
first few months after the Attorney General's memorandum was
issued, and prior to the time when regulations were actually pro-
mulgated?
INIr. INIoNDELLO. Yes. I was the person who reviewed them. I cannot
say I reviewed all agency regulations. I reviewed all I could reach,
and all I could get the agencies to send me in advance, and I hope
that I was instrumental in seeing that these were decent regulations
when they wei'e ultimately issued. ^Yhat T would normally do is that
I would ixot o]ie and read it, and then I was, of course, well versed in
the legislative histoiw. and what the contents of the Attorney Gen-
eral's memo were likelv to be.
]\Iost of the regulations were written between the period we got out
the memo and July 4, 1967, the effective date of the act. A good many
came out by July 4th. and some of them, as you remember, were late.
I would call the person in charge of writing them and typically he
was in the General Counsel's Office, and if T saw things that people
like Jack ^Nlatteson and Jim Lanigan would not like in the regulations,
I would tell them al)out it.
I used them as a kind of a club. Sometimes you did not have to use
any kind of club. If I simply raised the question myself it was enough
to cause deletion or modification.
I remember there was one situation, in one agencv where there was
nothing I could do to get them to change. T guess that happened on a
number of occasions, because they had. themselves, discussed what-
ever the policy matter was thoroughly and decided that this was the
wav their regulation was going to be.
Well, it was not my function to direct, but it Avas no trouble for us
to do what T have described. T would make notations on the regulations
for the puri)ose of getting ready for a long phone call, and these an-
notated copies ai-e some place in the Department of Justice files, and
if they ever l^ecame important we could get them out, I guess.
!Mr. WozExcRAFT. Again, it is important to i-emember that the role
of the Office of Legal Counsel is simjJy advisorv, and we had no au-
thoritv to get any ageiicv to send us anvthing. Fi-equentlv. while not
wanting to k-^'cp the regulations away from us, necessarily, they still
11G7
were defilin<i- with a deadline and had to rush their re^idations into
the Federal Iveo-istei- without o-ottino; a review first.
And I do not think that all of the failures to send things to us
resulted from a desire to avoid us. althouiih I woidd not say in all
oases that was true.
Mr. Phillips. But your role was as adviser, then
]Mr. WOZENCRAFT. Yes.
Mr. Phillips. There was cooperation within the executive hranch
on the word i no- of the details of the regulation to make sure that they
were in compliance with the intent of the Attorney General's memo-
landum and the intent of Congress ?
Mr, MoxDELLO. Yes, sir.
]Mr. WozENCRAFT. AVe did our hest to achieve that. I would say that
it was maybe not entirely achieved successfully. On the matter of fees
we had no authority whatever. People can set whatever rate they want,
and that just was not a legal question.
Mr. Phillips. AVas there any thought given early in the game to
di-afting a model regulation that could be proposed to the various
agencies, or were they pretty much given their own head in dealing
with their own unique types of problems ?
Mr. MoxDELLO. Well that was the difficulty. There were things I
did not know, for example, about HEW, about the kinds of documents
they had. whether they should or should not be made available, and
I could not be very helpful to them, and a model set of regulations would
not have helped them very much.
It would not have helped them any more than the memorandum
did, and as a matter of fact, the memorandum had been in several
different stages of draft and was sent out to everybody so they could
comment, because sometimes we found agencies telling us that we had
done something grievous that would just distort their programs ter-
ribly, and we listened to them all, and we tried to accommodate what
we could with what the act said.
In the process, of course, they knew what our ideas were that were
coming out in the book in the earlier draft, and so they had good
steering, or at least as effective as we could provide on what it was that
should^go in the regulations. And in effect the language here in the
Attorney General's memo — although it is in narrative form, and in
some length— was something very handy to a person writing regula-
tions because it does indicate where the policy is clear and where it is
unclear, and sometimes it is very important to know that.
^[r. Phillips. 'Wlien the memorandum was written, was thei-e any
thought given to periodically updating it as case law developed ?
Mr. AYozExcRAFT. I do not believe so, because we expected that the
case law would itself be an updating. We expected the agencies to keep
track of the cases. We made clear in the memorandum that as the case
law developed, the agencies would be expected to follow it, and be-
lieve me, the amount of effort and time that went into this one product
was enouoh to make us all heave an exhausted sigh when it was over.
Mr. :\[oxnELLO. I know I had in mind at the time that Ave knew
that the Attorney General's memorandum on the Administrative
Procedure Act, itself, which came out in 1046. had been very hel])ful to
the acencies because it was the Attorney General's committee that
1168
started the whole ball rolling, and they worked on the legislation very
closely, and they distilled out all of their information in that memo,
and it is considered a prized document to own now, since it is very hard
to find one and it is out of print.
;Mr. WozExcuAFT. It was never even re\dsed.
Mr. Phillips. The memorandum is out of print now, as a matter of
fact.
Tlie reason I asked the question, INIr. Chairman, is that later in the
hearings I hope we are going to develop in testimony the fact that
in many instances specific agencies have not been following the case
law, even when it has affected their own agency in other Freedom of
Information ca-ses. This is why I thought that it might have been
helpful if this 1967 memorandum could have been updated, perhaps
on an annual basis so that there would be no excuse for agencies not
to be knowledgeable about cases that had been decided by the courts
that affected cases in which they were currently dealing.
:Mr. WozEXCRAFT. When I left the Government in 1969, there had
at that point been very few cases, and it is only really recently that
the case law has begun to develop. As we know, yesterday the first case
has reached the Supreme Court.
I might point out, though, that in various bar association meet-
ings there has been continuing attention given to this problem that
would bring it to the attention of the agencies, often through the
Federal Bar Association which has held regional meetings and had
programs at its annual meetings. And the American Bar Association
in August of 1970. at its annual meeting in St. Louis, had a panel
on the Freedom of Information Act and the agencies that is published
in the 1971 issue of the Administrative Law Review. So the bar asso-
ciations have been dealing Avith these things as they come along.
The matter has continued to receive attention, although it has not
resulted in amendments to the original memorandum.
Mr. Phillips. Those panels have been xary helpful, and I have
noticed in reading the articles that you refer to that, many general
counsels from agencies were participating, as well as those who were
in the audience.
But, I submit that this is not a substitute for formal action on the
part of the Department of Justice to make sure that the machinery of
government is kept fully apprised of the court developments that affect
the Freedom of Information Act.
]\rr. MooRHEAD. Mr. Cornish.
Mr. Cornish. Thank you, Mr. Chairman.
Mr. Wozencraft, I have been kicking around here for about 7 years,
and I have just come in contact with a strange new animal which is
called a "gratuitous" Government document. Have you ever heard
that terminology^ used in relation to a Government document?
]\rr. WozEXCRAFT. No, sir; I did not stay around that long.
INIr. CoRNTSii. Well, it was defined for me, and let me give yon the
definition of a "gratuitous" Government document. It is one whicli is
kept by an agency, which it is not required to keep: that is. it is kept
for the convenience of some of the internal working groups, or bureau-
crats within the ajrencv.
Is it your opinion that a "gratuitous" Government document should
be made available to the public, just as much as any other Government
1169
document required to be kept by either law or regulation within the
agency ?
Mr. WozENCRAFT. Well, without knowing more about what kinds of
documents really are gratuitous, I would see no distinction between
them and any other kind of document.
Mr. Cornish. I agree with you. Thank you very much.
Mr. Wolf. If I could comment just very briefly on that, I would
certainly endorse what Mr. Wozencraft said.
But, I think that this kind of document that you refer to often
comes up in an agency which is developing policy but has not formally
promulgated it.
They put a proposed regulation in the Federal Register, and a year
later it may be the regulation comes out in the second printing, but in
that time there is a lot of interim policy decisions being made on the
basis of "tentatively drafted" documents, documents that may or may
not be formally adopted. These documents should be fully disclosed
because they are affecting people, obviously, daily, and they should not
f al 1 under the interagency memorandum exceptions.
Mr. Cornish. Well, so that there will not be any misunderstanding
about it, I will identify the type of document that it is.
It is a numerical summation of the action taken by an appeals board
or panel of the Selective Service System.
Mr. Wozencraft. It sounds like any other document to me.
Mr. Cornish. Thank you.
yir. Kronfeld. I have just one question.
Mr. MooRHEAD. Mr. Kronfeld.
]Mr. Kronfeld. Thank you. The Department of Justice, for a number
of years now has had an informal committee which reviews and accepts
queries from the executive departments about the availability of docu-
ments. The Department generally advises whether this docimient
should be released, whether the DeiDartment feels they could defend it
if it became a matter for litigation.
Now, do any of you gentlemen feel that this committee should be
formalized with periodic reports made to the agencies, reports which
would be the kinds of information they gave out, which may be a sub-
stitute for rewriting of the 1967 memorandum, and add some additional
information for the agencies which are not keeping up on the periodic
basis with the case law as it comes down ?
Mr. Wozencraft. Mr. Kronfeld, without being completely familiar
witli how that committee is operating, I think your idea of supple-
mental submissions by the committee is a very good one. There are. I am
sure, emerging attitudes that they will see, and that could usefully
be disseminated to the other agencies and departments.
I believe they would still be advisory but they could still be very
useful. I think.
Mr. MooRHiiAD. Mr. Copenhaver has a question.
Mr. Copenhaver. Did you want to answer ?
Mr. Mondfxlo. No.
Mr. Copenhaver. I have one brief question : There has been some
suggestion that because of the burden that may be placed upon the
oouks in handling a large number of appeals from denials of requests
for infoiTnation, and also the burden placed on individuals who re-
1170
quest information to have to go tliroiigh the legal procedures and the
court costs, there should he estahlished some kind of quasi-independent
advisory hoard, perliaps organized along the lines of the Civil Rights
Connnission, wliich could he responsihle for entei-taining quests or peti-
tions to review denials of information or classification.-, of documents.
Senator Mnskie's hill has a provision along these lines. Would you
gentlemen care to comment ahout the desirability of establishing such
a review board which could perhaps act more quickly in an appeal,
more informally, less costly ?
Mr. WozENCRAiT. Mr. Copenhaver, without having had any oppor-
tunity to evaluate the full proposals, I would fear that such a group
might simply Ijecome anotlier layer of appeal, and that it would not
have any direct knowledge of the various agencies.
It also would cost money to establish it and to staif it, and it might
be a very good thing. I do not want to say out of hand that it would not.
On the other hand, I would hope that the present informal proce-
dures in the Department of Justice could do essentially the same job.
I think sometimes you get farther in informal procedures, just as in
the Congress once in a while an informal visit can produce Ijetter re-
sults than a formal confrontation. Perhaps the same thing is true in
this freedom of information area.
There are a. lot of instances that I am familiar with, as Mr. Mondello
commented earlier, where the Department of Justice simply does not
have an opportunity to be familiar with the problems of these various
agencies. Tliere have been cases where we have felt that the agency
was wrong, but where the agency has been very sure that it was right,
and was prepared to go to court to prove it.
And sometimes they have been right, and other times they have been
wrong, and the courts have told them so. I have a considerable amount
of confidence in the ability of our judiciary to be sensible on this whole
matter. I like the idea of some sort of judicial discretion to look at the
facts of the situation, simply because no overall statutory wording
that I have ever been able to come up with is so perfect that it can
balance conflicting valid interests and objectives in each instance. I
rather think that the courts are a pretty good forum for that.
Mr. CoPENiiAVER. Before I ask Mr. Parson and the others to com-
ment, do you recall the Re'td-Moss case where Judge Gesell in essence
said that he did not have the time or did not desire to go behind the
security classification and review the documents because of the burden
of time and other factoi-s. That is one reason for pronqiting the sug-
gestion of the alternative to the court.
Courts of course, are authorized to appoint masters. "Would this
be an alternative pi-ocedure in cases where there is a need to review a
large number of documents of a complicated nature I "Would you think
that this is a possibility ?
Mr. WozEXCRAFT. it certainly would be a possibility, Mr. Copen-
haver. I do not really Imow how hea^^ a burden this has been on the
courts. I know in the earlier stages, one of the dire predictions was that
the courts would be swamped. I do not think that in-ediction has proven
to be true, and if it ever becomes true, then certainly other methods of
1171
liandling tliis situation must be developed. I believe that the biggest
time lag is not in the court decisions, as much as in the agencies them-
selves and in their appellate procedures, and that is where I would like
to see things speeded up, without saying the other would not be useful
as well.
Mr. Parsox. To me, with a history of looking at tlie various freedom
of information provisions, and looking at the history of invasion of
privacy which has occurred, and particularly in the area of the com-
})uter law, tliis certainly smacks to me of the creation of a new censor-
ship kind of board.
"With regard to the masters, as such, we in Chicago have had a his-
tory of wealthy masters, and 1 suppose we are attuned to the fact that
the courts tliemselves can more readily dispose, whether it be in
camera, or otherwise, of these issues, and do it well and do it fast.
But, again I get back, I always get back to the fact that if in the first
instance we can impress the head of an agency for the need to make in-
formation free, then everything flows from that point.
Mr. ]MoxDErxo. If I may offer one additional comment, I think there
is a danger in setting up a ncAv agency charged with the responsibility
to take on the Freedom of Information .Vet burden of the executive
branch. I think you get f artlier faster with following Mr. Parson's view
or my own. that if you impress on an agency head or his general coun-
sel, or PIG, that this act has got to be enforced, you are going to
get a lot further a lot faster than if you set up another level of appeal
before you get to court.
If we believe in it, then we can make it work.
Mr. Wolf. I would strongly agi'ee with everything that has been
said against creating another board, that the responsibility should be
on the agency itself. I would also connnent just briefly on what Mr.
Wozencraft. was suggesting about equitable consideration by a judge
who is assessing some of these matters.
Right now there is a split; that is, the court of appeals in the
District of Columbia has said only where the phrase "clearly unwar-
ranted invasion of privacy'' is involved do you get into the equitable
balancing process. I think that is a good idea.
However. I would add the "clearly unwarranted'' phrase possibly
to exemption 1 to suggest that a judge should be into this balancing
process even in tlie niost sensitive national security questions. I would
not add the "clearly unwarranted"' phrase to every one of the exemp-
tions to it and thereby make it all a balancing matter, but I would add
it possibly to Xo. 1. As suggested in my earlier testimony, otlier docu-
ments requested should be given without the court balancing factors
which Congress has already considered.
^h'. CoPEXHAVER. Woul'd you agree that there seems to be some dis-
pute in the law as to whether the couit should go behind a security
classification against an alleged claim of an exemption mider Xo. 1
exemption of the FOI law and that we could spell this out in legis-
lation ? AVould you agree that we intend the couit to go behind the
allegation and into wliether it meets the prescribed definition of
classification ?
1172
Mr. WoLT. You are talking about tlie basic problem of executive
privilege.
Mr. CoPExiiAVER. Xo. 1 exemption.
Mr. Wolf, I think yes; the courts can. and I think constitutional
lawyers far better versed than I would support the position of the
judiciary reviewing the dimensions of executive privilege.
Mr. CoPEXiiAMjR. Thank you, Mr. Chairman.
Mr. MooRHEAD. Thank j^ou very much, gentlemen, for your coopera-
tion, your helpful testimony, and your suggestions to us.
Wo appreciate it a great deal.
"\Anien the subcommittee adjourns today, it will adjourn to meet on
Friday, March 10, at 10 a.m., in this room, where we will hear from
witnesses from the Department of Justice.
The committee is now adjourned.
(^^^llereupon', at 12 :35 p.m., the hearing was recessed, to reconvene
at 10 a.m., Friday, March 10, 1972.)
U.S. GOVERNMENT INFORMATION POLICIES AND PRAC-
TICES—ADMINISTRATION AND OPERATION OF THE
FREEDOM OF INFORMATION ACT
(Part 4)
FRIDAY, MARCH 10, 1972
House of Representatives,
Foreign Operations and
go\'ernment information subcommittee
OF THE Committee on Government Opeil\tions,
Washington, B.C.
The subcommittee met, pursuant to recess, at 10:10 a.m., in room
2154, Rayburn House Office Building, Hon. William S. Moorhearl
(chairman of the subcommittee) presiding.
Present : Representatives William S. Moorhead and John Conyers.
Jr.
Staff members present : William G. Phillips, staff director; Norman
G. Cornish, deputy staff director; and William H. Copenhaver, mi-
nority professional staff, Committee on Government Operations.
]\Ir. Moorhead. The Connnitt^e on Foreign Operations and Govern-
ment Information will please come to order.
We are fortunate to have at our hearing today officials from the De-
partment of Justice wlio are among the Federal Government's top ex-
perts on control of information. I am confident that they can shed some
light on two aspects of a problem which this subcommittee has been
studying intensively since last summer.
One problem is the administration of the Federal Government's first
Freedom of Information Act which established policies for public dis-
closure of information about the Government's day-to-day activities.
The other problem is the system for classifying and controlling in-
formation which has a direct effect on national defense and foreign
policy.
Last week in a discussion of this problem on the floor of the House of
Representatives, I warned that the White House was about to issue
a new directive, Executive Order 11G52, on the handling of classified
information. I urged the administration not to try to head off legisla-
tive action in this field by any premature action. But on Wednesday,
March 8, the President issued his new Executive order entitled "'Classi-
fication and Declassification of National Security' Information and Ma-
terial'' fortunately delaying the effective date of his order until June 1,
1972.
The President's public statement accompanying this new Executive
order is an excellent one in many respects, emphasizing past abuses of
(1173)
1174
tlie classification system and promising an Executive order that would
end tliem.
The staff of the subcommittee and I have a■i^■en preliminary study of
the Executive order itself and it appeai-s to us that the Executive order
itself does not live up to the laudable goals contained in the President's
statement.
The order is a \ery restrictixc document.
It ajipears to be an order written by classifiers, for classifiers.
For example, examination of the order shows that it effectively pre-
vents the automatic disclosure of a "top secret" document for 10 years
and a "secret" document for 8 years.
Xow what does that mean? It could mean simply this: A President
could safely stay in office for his full two coustitutional terms, totaling
8 years, and at the same tiuie make it possible for his Vice President
or another of his party supporters to succeed him without the public
knowing of the full details of major defense or foreign policy errors
his administration had committed. In other words, the same political
party could control the Presidency for 12 years when, perhaps, the
l)ul)]ic would throw it out of office if only the facts Avere known.
This is l)ut one of the prol)lems which are a])i)arent in the President's
highly publicized new secrecy ])rogram. Beginning today — and con-
tinuing through the coming weeks — we will look into these problems
carefully.
And we also will look at the parallel problem of the control of th.e
routine facts of Government operations. The Department of Justice
has interpreted sections of the Freedom of Information Act, not only
as it applies to the Department's own })ublic records, but also as it ap-
l)lies to the public records of all other Government agencies.
Four years ago when the Freedom of Information Act spelled out
the law — and the sj^irit — governing the people's right to know the
facts of government, the Department of Justice issued a guideline
meuiorandum explaining to all other agencies how they should ad-
minister the act. Two years ago the Department issued another memo-
randum, setting up its own Freedom of Information Committee to ad-
vise other agencies on how to handle court cases which had been filed
under the act.
There have been well over 100 cases filed so far. Many of them have
])rovided important interpretations of the Freedom of Information
Act. The courts, for instance, have uniformly rejected GoA-ernment
arguments that all ])ublic records containing privileged financial in-
formation must be kept secret. And they have generally rejected Gov-
ernment arginnents that so-called internal memorandums must be kept
from public knowledge.
But there has Ix^en no move toward updating the I)e])artment of
Justice's basic memoi-andum on the act. And tliere has been no attempt
to cii-culate throughout the Government the advisory oj)inions of the
Department's own Freedom of Information Gommittee.
^ravl)e today we can find out why. And maybe, today, we can discuss
procedures which will im|)i'o\e ])ublic access to basic Government
information.
Mr. Erickson, we are happy to have you with us. In accordance wi*^h
the custom of our subcommittee, would you and your associate, if he
is to testify, rise and take the oath.
1175
Do YOU soicnmly swear that the testimony you are about to give
this subconuuitteewill be tlie truth, the wliole truth, and nothing but
the truth, so help you (t(xI ^
Mr. P^KicKsox. I do.
]Mr. Salosciiix. I do.
STATEMENT OF RALPH E. ERICKSON, ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUS-
TICE: ACCOMPANIED BY ROBERT SALOSCHIN, ATTORNEY, OFFICE
OF LEGAL COUNSEL
:\lr. MooRiiEAD. We are pleased to have you, Mr. Erickson, and if you
will introduce your associate, and I hope that you can agree that
you will summarize portions of your testimony so that there will be
more time available for discussion with the subconunittee members.
Mr. Erickson. ]Mr. (liairman and members of the connnittee, I
would first like to introduce my associate, Robert Saloschin, who is
the chairman of our Freedom of Information Committee within the
Department of Justice. lie is here with me this morning.
I will, in recognition of the length of the prepared statement that
we have submitted, attemi)t to sununarize or delete portions which I
think are i-ather self-evident and do not need reemphasis at this point
in time. As I go through the statement, I will attempt to identify the
areas where we are deleting so that you may follow.
Mr. MooRHEAD. That would be "helpful, but your whole statement
will be made a part of the record because it is a comprehensive record
that should be part of the hearings of this subcommittee.
Mr. Erickson. Thank you. I would like to have it made a part of the
record.
(Seep. 1-208.)
Mr. Erickson. Mr. Chairman, we appreciate the opportunity to
appear before your committee and to tell you something about the
work of the Department of Justice Avith respect to the Freedom of In-
formation Act. Let me start by saying that we are continually striving
to improve our eli'orts in this'important field of law and government,
but v.e also feel that on tlie whole we are doing a reasonable job at
the present, considering the magnitude and complexity of the chal-
lenges which face us.
Your committee has asked us for infornuition on two dillerent as-
pects of the Justice Department's work in this field. First, you have
indicated an interest in the administrative procedures employed by
our Department when processing requests for access to our own records
under the Freedom of Information Act. Second, you have requested an
exi^lanation of the I)ei)artnient 's role in providing legal services to
other executive branch agencies concei'uing freedom of information
requests for their records.
I am not at this point going to go into our pi'esent regulations, which
I think are readily available. I will skip over to the bottom of page
4- of our statement.
Statistically speaking, the Department has received approximately
535 formal requests for access to our records under the Freedom of
Information Act, from July 4. 10G7. through July 7, 1071. Approxi-
1176
mately To percent of those requests were directed to the Immigration
and Naturalization Service and the Bureau of Prisons.
At first glance, the total number of requests received by our De-
partment may appear to be unusually small when compared to the
number which we understand other agencies have received. The dis-
])arity may be explained in part by the varying methods which dif-
ferent agencies may employ in determining whether a request is to
be considered as one under the Freedom of Information Act. Our
regulations provide that all information that was made available to
the public before the act was passed shall continue to be made avail-
able. Generally, only requests for material which might fall within
one of the act's nine exemptions are likely to be treated as Freedom
of Information Act requests. Thus, even though a person may request
access to Department documents, and specifically refer to the Freedom
of Information Act in his request, we continue to make records avail-
able that were available previously without counting the request as a
freedom of information request. Apparently other agencies may in-
clude such requests within their freedom of information statistics, or
they may even include all requests for information whether or not
there would be any question under the act.
Our statistics also show that access to the requested records was
irranted in whole or part in 224 of the cases, and that access was denied
in the remaining 311. Our denial rate of approximatelv 60 percent may
appear disproportionately high when compared with other agencies.
However, we do not consider our rate to be disproportionate for a
number of reasons.
First, as we just explained, many of the requests where the record
was released were requests that involved information of a kind made
available before the act was passed, and these requests are generally
not considered as freedom of information requests. The omission of
this substantial category of granted requests naturally has a substan-
tial effect on the statistical balance.
Second, because of our law enforcement responsibilities, the Depart-
ment must compile and maintain many investigatory files. Some of the
freedom of information requests we receive seek material contained
in these files. Information of that nature is expressly exempt from dis-
closure under the act, and a discretionarj?- release of such material is
not often considered warranted.
Finally, our statistics revenl that 247 requests were refused pursuant
to the "invasion of privacy" exemption. The vast majority of those
cases concern the Immigration and Naturalization Service. These are
cases in which requests are mndc for the names and addresses of aliens,
often bv finance and collection agencies, sometimes bv alleged friends
or relatives. It is felt that such disclosures would often constitute "a
clenrly unwarranted invasion of personal privacy". However, even
where such requests for personal information are denied, the alien is
usuallv notified that a request has been made. The alien can then vol-
untarily make contact with the requester.
My next several paragra]^hs relate to the procedure in the event
that there is an appeal from the official denial and here again, I think
that is adequately covered in the statement. I will go over to the bot-
tom of page 9.
1177
Before leavinof the subject of the Department's administrative proc-
essing of requests for its own recoi-ds. I would like to emphasize that
the review and recommendation procedures which I have described
involve the personal attention of high level and well qualified person-
nel. In other words, our handling of these matters is by no means a
perfunctory process.
This might be a good point — after having discussed our processing
of requests for our own departmental records and before turning to
our functions in assisting other agencies in processing requests for
theirs — to say something about our litigation work. The Civil Division
of our Department handles the litigation for most Government agen-
cies when suit is filed luider the Freedom of Information Act. A status
report indicated that as of January 1, 1972, the Civil Division had
46 freedom of information suits pending in some stage of litigation.
This represents a slight increase over the 41 cases pending a year
earlier. Only three of the 46 currently pending cases involved suits
brought against the Justice Department for its own records, two of
them seeking FBI files on the Kennedy assassination. The remainder
of the 46 cases w^ere brought against a broad cross section of other
Government agencies. It should be pointed out that since there are a
few Government agencies which handle their own litigation, there
may be slightly more cases pending than the 46 listed in the Civil
Division's report.^
It is estimated that the Government's position is sustained in
roughly 50 percent of the cases which are litigated nationwide, al-
though the Government has very little success in the Court of Ap-
])eals for the District of Columbia circuit. The issues most frequently
litigated, naturally, are the exemptions permitting the Government
to withhold access to requested records. A survey of 32 reported
court cases involving the Freedom of Information Act (through 330
F. Supp. and 499 F. 2d) indicates that the exemptions most fre-
quently at issue in litigation are exemption 4 (relating to certain kinds
of information given ^o the Government in confidence) — eight cases;
exemption 5 (internal Government communications)- — 14 cases; and
exemption 7 (investigatory files compiled for law enforcement pur-
poses)— nine cases. Other exemptions which were at issue somewhat
less frequently include exemption 1 (relating to certain national de-
fense and foreign policy materials) ; exemption 2 (relating to in-
ternal procedures) ; exemption 3, an exemption based on other stat-
utes; and exemption 6, which is designed to protect personal pri-
vacy in medical, personnel, and other files.
The Department's efforts to minimize the amount of litigation
against all Government agencies in this field, and to minimize the
need for requesters to file" suits, were among the reasons which led
to the formation of our Freedom of Information Committee, which
I will discuss in the next part of my statement.
Let me turn now to describe our role when the records of otlier
agencies are sought under the act. In such cases, our functions are
limited by the decentralized administration of the act, as prescribed
by Congress, in requiring each agency to act on requests for its own
» It has been roughly estimated that a total of about 200 freedom of Information suits
have been filed since the act was passed. Those no longer pending have been decided,
settled, or dropped.
76-253 — 72— pt. 4 12
1178
records. In otluM' woitIs, we 2;enerally liave no authority to compel
another ao-ency to comply with a re([uest for its records. Subject to
this limitation, the functions of the Justice Department in freedom
of information matters are counselino;, coordinating-, and represent-
ing other ao-encies in court. Within the capacity of our small staff
and the ])ressure of other work, we are tryino- to ])ei'form these func-
tions as best we can.
In describino- oui' counselino- and related work. I will first outline
^ery briefly the history of our efforts which led to the creation of
our Freedom of Information Conunittee. Then I will discuss the work
of the Connnittee : How it functions, the amount of its workload, the
kinds of records involved, the sources of the requests for access to
them, the pattern of the Committee's reactions or advice, and finally
an estimate of its effect on the administration of the act.
During the year after the act was passed and before it went into
effect in July 1967, the Office of Legal Counsel prepared the Attorney
General's memorandum on the act — the familiar 47-page blue booklet
dated June 1967 — ^to assist other agencies in applying the act, and we
also handled many requests for assistance or advice from agencies or
formulating their own regulations under the act. These major tasks
were performed Aery largely by ]\Ir. Wozencraft, Mr. Mondello, and
Mr. Maxson, all of whom left the Department some years ago. There
followed an interim period of roughly 2 years, 1968 and 1969, in which
we began to be increasingly concerned that some agencies might be
engaging in dubious or unwarranted denials of requests under the act,
leading to litigation burdensome l)oth to the requester and to the
Govermuent. This feeling crystallized after the July 10, 1969, decision
in the famous hearing aids case.'
The impression was sharpened that same summer after ^-arious in-
formal i-equests for assistance and advice reached us from agencies that
were receiving the attentions of Mr. Nader and his associates. The
situation was discussed by this office with the Civil Division, Avhich as
I indicated, handles litigation under the act. On December S, 1969, the
Department sent a memoi-andum to the general counsels of all agencies
over the signatures of Mr. Rehnquist and Mr. Euckleshaus, at that
time the heads of the Office of Legal Cimnsel and of the Civil Division.
The memoi'audum asked the agencies to consult the Denartment l)efoi-e
issuing a final denial under the act if thei'e is any substantial possi-
bility of litigation adversely affectiiig the GoAernment. The memoran-
dum also created a Justice Department Freedom of Information
(^ommittee of five lawyers, three in this office and two in the Civil
Division, to provide these consultations.
Since ci-i^ation of the Committee 27 montlis ago, the counseling and
coordination functions of the Justice Department in fivedom of in-
formation matters have been larirelv coextensive with the work of this
-Consumers f'liio)! v. Vrierans' A<lmi}iistriition, ;!01 F. Sii)ii>. "'.(0 (S.D. X.Y. lOfiO).
••ippcMl (lisniisscrl as moot. 4:!r. F. 2(1 I'M'," (2 Cir. lilTl). In this cnsp the VA flnniiHj a
rpqiK'st for rpcords of Govprnment tpsts on poniniprcial liparlng aids that wpi'p lipinj; pon-
sirtprpil for VA propnrpnipnt. Aftpr a dpclsion ajrainst thp VA In thp dlstript conrt as to
part of thp records sought, which was appealed by the plaintiff in order to ol)tain the rest
of the records, the VA turned over all the records, and the appeal was dismissed as moot.
1179
(^)inmittee. An interestino- report on the Comiuittee's woik dni-in<r its
first 8 months was made "by its Chairman, Kobert Saloschin, who is
with me today, at a symposium of the American Bar Association's
administrative law section. This symposium was published in the
March 1!>71 Administrative Law Keview, and we will be glad to pro-
vide you with a copy of it.''
Mr. ]MooRHEAD. IVe would like to i-eceive tluit copy for the com-
mittee files.
Mr. Ericksox. Mr. Chairiiuui, we will note that and we will see
that you get it.
(The report is in the subconnnittee's tile.)
Mr. EiucKsoN. One of the statements in Mr. Saloscliin's repoi-t war-
rants repeating- today, namely that the Connnittee in its work aims
for a mininuim of formality and a maximum of speed.
Through March 1, 11)7:2", just about a week ago. we estimate that
other agencies of the Government have contacted the Committee be-
tween 4()() and 500 times on matters directly or indirectly related to its
work. This estimate is necessarily a rough one, because these contacts
are almost invariably by a telephone call, usually to the chairman, and
some calls may represent related contacts on the same matter, or may
cover several matters, or may prove to have little relation to Commit-
tee work. Xevertheless, these numerous contacts must be screened to
see if they warrant a Connnittee consultation, or can be dis])osed of
without taking the Connnittee's tiuie. The estimated 400 to 500 con-
tacts which 1 mentioned have led to approximately 1'20 committee con-
sultations. A consultation is generally held when tlie agency lias
reached the point of tentatively deciding to issue a final denial of
access to its records under the act. The rate of consultations seems to
l)e accelerating, and is estimated to be running now at roughly between
75 and 100 a year.
These 120 consultations have involved about 30 different agencies, or
a, somewhat larger number if constituent agencies within a large de-
partment are counted separately. An approximate numerical break-
down of the total number of consultations among the various agen-
cies is being prepared for your- information.
Consultation procedures are usually quite simple. About 80 percent
of consultations are conducted by a face-to-face meeting of the Com-
mittee with representatives of the agency. Agencies usually send a
lawyer and one or two operating ofiicials to a consultation, although the
representation may vary from just one person to several and occasion-
ally includes both the general counsel and the head of the agency.
Typically the Committee is represented by at least three and usually
four of its membei-s. All five members are of course notified of every
meeting, and souietiuies all five attend.
■'Two of the roiiiniittpp ineinbors listpcl in the symposium rpport, niid in tlic Opc. S. l!)f.O.
i;ipmor;nKliim. Robert Zpiipf of tlip Civil Division" and Stcvp Locknian of (MA\ have siiu-p
Ipft tliP Dppartinpnt anfl hnvp !)PPn rpiilaced on the Conimittpc by Walter Fleischer of
Civil and Frederioka Paff of OLC. Since I came to tlip Departnipnt last autumn. I have
served as tlip px officio chairman of the Committee. The Chairman. Mr. Saloschin. is an
experienced lawyer in our office who befran working on tliese matters some months before
tile Committee was estalilished.
1180
Speed is a major goal in all the Committee's work, and it is usually
obtained. A meeting usually occurs within less than a week of the
phone contact which led to it, and some are held the very next day.
Sometimes papers that will be discussed at the meeting are shown
to Committee members beforehand.*
The meetings vary in length from about 30 minutes on simple mat-
ters to 2 hours or more on complex ones. Xo minutes are kept, although
any participant is free to take his own notes. The agencies usually
get the Committee's reaction immediately, from the discussion during
the course of the meeting, although in some cases there may be fiu'-
ther telephone calls or other contacts after a meeting. As for the re-
maining 20 percent or so of Committee consultations which do not in-
volve a face-to-face meetmg with agency representatives, the usual
procedure is that papers from the agency are circulated to the Com-
mittee members, who read them and give their comments to the chair-
man, and if no further discussion is needed, the chairman gives the
agency the committee's collective reaction by telephone.
Now that I have described the committee machinery, a few words
about the grist that goes through the committee's mill. As you can
imagine, tlie various types of agency records involved in committee
consultations cover a very broad spectrum; the same is true of the
sources of the requests for access. Let me refer first to the records,
then to the sources of the requests.
It is almost impossible to describe the range of records covered by
120 consultations; indeed, a single consultation may sometimes involve
thousands of records of several types. Moreover, a gi'eat da;\l of cor-
respondence, discussion, search, and analysis may be required just to
detennine what is the nature of the records which may iDe within the
ambit of the request. This is especially likely to be true of requests
that are less specific and more categorical in their tenns. Neverthe-
less, within these limitations, and with considerable trepidation about
the value or accuracy of summary descriptions, here are some illus-
trative samples: we have a list in the next three pages of my prepared
statement of 37 illustrative samples of the types of requests that we
have had. Rather than go through all of these examples, I am going
to pass over to a point approximately one-third down page 22 of the
statement.
]Mr. CoRNisir. jNlr. Chairman?
]Mr. MooRiiEAD. Yes, Mr. Comish.
Mr. CoRxisii. May I interject at that point ? Mr. Erickson has said
that his office is preparing an approximate numerical breakdown of
the total number of consultations among the various agencies for our
information. I wonder if that might be included in the record at the
appropriate point.
Mr. ]MooRHEAD. I think that is a good idea. Without objection it will
be placed in the record.
(The material follows :)
« One member of the Committee follows the practice of examining only papers other than
the records In dispute.
1181
List of agencies ivhich have had consultations with the Department of Justice
Freedom of Information Committee, December 8, 1969 through March 1, 1972
(Note: The infonnation on this list is approximate, but may he considered as
substantially accurate)
Xumher of
List of Agencies consultations
Agriculture Department (includinj? ASCS, C. & M.S., CEA, Forest Service,
Packers and Stockyard Administration, Food and Nutrition SerA'ice) — IT
Atomic Energy Commission "i
Civil Aeronautics Board 3
Commerce Department 2
Commission on Civil Rights 1
Department of Defense (including Air Force, Navy, Army) 22
Department of Ti'ansportation (including FAA) 0
Environmental Protection Agency 1
Federal Power Commission 1
Federal Trade Commission 3
General Services Administration 2
Health, Education, and Welfare, Department of (including Medicaid, FDA,
NIMH, OE) ''
Home Loan Bank Board 2
Housing and Urban Development, Department of 5
Interior Department 6
Interstate Commerce Commission 1
Labor Department 2
National Aeronautics and Space Administration 4
National Labor Relations Board 1
National Science Foundation 1
OflBce of Economic Opportunity 2
Postal Service-
Renegotiation Board 3
Selective Service System 2
Small Business Administration 1
State Department (including AID) 8
Treasury Department (including Customs) T
Veterans' Administration 2
Miscellaneous, joint or pending 2
Total 120
The above list represents only consultations ; it does not include an indeter-
minable but considerably larger number of agency contacts with the chairman
or another member of the committee which did not result in a consultation but
which may have involved preliminary guidance.
Mr. Erickson. We would like to have that included in the record,
and we will supply it for that purpose.
Continuing, then, and commencing on page 22.
The descriptions of records I have just given you or described to
vou mav seem a bit overAvhelming, and they are necessarily superficial.
They do little more than suggest what the records themselves may
contain, how they were made, and how they are used. Yet all of these
factors— the contents, origin, and use of the records— may be important
in trving to decide whether they are exempted from compulsory dis-
closure under the act, and also in deciding whether, even if so exempt,
they should nevertheless be released, as a matter of policy or discre-
tion. The latter decision, of course, is one for the agency, but the com-
mittee will sometimes suggest to an agency that difficult decisions about
the exempt status of records may become unnecessar}'- if there is a dis-
cretionaiT release.
1182
I iindcrstiind there is also some interest in the kinds of sources of
the requests that reach the Committee. AYe have only an incomplete
picture of the kinds of sources of the requests that reach the commit-
tee; for instance, we may not alv.ays know whether the requester is a
laAvyer, or if he is we may not know whom he represents, and even if
we know who his principal is, we may not know tlie nature of the
latter's interest. Such matters, of course, need not he disclosed by a
requestei- under the act.
Within these limitations, and allowino; for some overlapping of cate-
gories of requesters, the sources of the requests which led to the V20
committee consultants have apparently included the following:
And hei-e again I tliink we have a rather extensive list which I will
just incorporate by reference and have that made a part of the record,
if I may, and go over to the midpoint of page 24.
Wluit has been the pattei-n of the Committee's reactions to the cases
which the agencies have brought to it ? Here again, there are so many
complexities, qualifications, and micertainties that an attempt to sum-
marize these reactions with any precision would probably be mislead-
ing if not impossible. But broadly speaking, our estimate of our own
experience is that the connnittee's reactions in its 120-odd consulta-
tions can be grouped into the following general pattern : In about 40
instances, or about one-third of the consultations, the committee's reac-
tion has been that the records the agency was planning to withhold
were clearly or very probably exempt from compulsory disclosure and
would be so held in case of litigation. Such a reaction, like most of the
Committee's reactions, is usually i-eached only after both an analytical
and a judgmental appraisal of the controversy and its circumstances.
Even when denials seem clearly authorized, the committee may work
in the direction of greater disclosure, as by reminding the agency that
an exemption is only an option to deny, not a directive to do so. The
Committee also will occasionally suggest revisions in the proposed
letter of final denial, explaining more clearly the reasons for the action.
As a further conunent about these clearly-exempt cases, the agency
may have decided before consulting the Committee to give the re-
quester much of what he wants, thus hel]3ing to narrow the issues and
perhaps strengthening the case for denial of the remainder.
In a second one-third of our consultations, the committee's reaction
has been that some or all of the records that the agency was planning
to Avithhold must l)e regarded as not exempt or pro])ably not exempt
and should be released. This second group of about 40 instances breaks
down further into aljout 15 cases where the records in dispute seemed
essentially mixed — some probably exempt and some not — and about
25 cases where the Conunittee told the agenc}^ that the records in
dispute must be released or that the case for withholding them was
A-ery weak, although sometimes with the exception of a small amount
of material, wliich miffht ])e withholdable because of recency, names
or identifyino- details, or othei- reasons.
The remaining third of the consultations consists chiefly of in-
betweon cases, those in which the dominant note in the Conunittee's
reaction, after reviewing the various factois ]iro and con. was doubt
or uncertainty. Tliis gi'on]). however, also included a few instances in
Avhich the Committee's pj-incipal reaction Avas to suggest an alternative
solution or a ))ractical accommodation of the dispute. The doubtful
1183
cases often involve situations in wliicli the Coininittee felt the airency
Inicl sound le^al oiounds for the proposed denial, l)ut that ne\ertheless
tliere would be considerable risk of defeat in case of litigation. Also
included in this uncertain group are situations where an analysis of
the tei-nis of the law seems to point one way but the facts, viewed in
the lioht of current ideas of public policy, seem to point the other.
I should add that such elements of uncertainty may also be present,
although in lesser degree, in the more numerous cases where the com-
mitteedefinitely feels that the records in question are, or are not,
exempt.
To what extent do the agencies consult tlie counnittee as they were
asked to do in the Department's lOGO memorandum, and to what ex-
tiMit do they follow its advice ^ AAHiile Ave do not have fixed procedures
tlesigned to check up on th.ese two points, our experience indicates a
good degree of agency respect for our eft'orts.
We believe that, by and large, the agencies generally do get in touch
Avith us when they have situations covered by the 1069 memorandum.
Indeed, as the estimated iOO to 500 agency contacts Avith the committee
(hat 1 mentioned earlier Avould indicate, they also get in touch with
us on freedom of information problems that may technically be outside
the terms of the 1969 memorandum, such as cases at an initial stage,
ctises Avhere they have not yet tentatively decided to deny, situations
Avhere requests for access are only anticipated, and similar situations.
These contacts, even Avhen they do not lead to consultations, are never-
theless a significant adjunct to the Committee's main Avork, because the
chainnan can often give some preliminary guidance immediately or
after discussion AA'ith one or more member of the committee, and that
may solve the problem. The steady floAv of these agency contacts or
inquiries reinforces our belief that most agencies are generally faith-
ful to our request in the 1969 memorandum.
We realize, of course, that there may be some variation among agen-
cies in consulting us, and even A^ariation Avithin a given agency from
time to time. If there are lapses, they may be clue to factors like per-
sonnel turnover, oversight, or other reasons, such as for example an
agency feeling that there is no need to consult in a situation Avliich
seems to them clearly identical to those previously discussed.
As to Avhether agencies that have consulted us follow our advice,
it is our definite impression that they generally tend to do so. Here
again Ave do not have any i-outine procedure for checking up on
AA-hether our advice is folloAvecl. Yet there are many times Avhen the
remarks of agency representatives during a committee consultation,
or our subsequent contacts with the agency, leaA'^e little doubt that the
agency Avill make available records Avhich Ave haA'e told them Avculd
proljably be held not exempt. It is also quite likely that they Avill deny
access Avhen Ave have told tliem they Avere legally free to do so, because
they Avere tentatively planning to deny access Avlien they consulted us.
However, in that substantial minority of cases in Avliich the commit-
tee's final reaction Avas uncertainty, it Avould be hard to measure
Avhether the agency folloAved our advice, although aa'c believe a re-
action of uncertainty has some influence in the dii'ection of disclosure.
On this whole question of folloAving our advice, howeA'er. I must point
out that it is just advice, not an ordei-. that those who attend the com-
1184
mittee consultations are not necessarily the agency decisionmakers,
and that Congress in the act left the administrative decision up to
each agency with respect to requests for its own records.
In conclusion, we at Justice are working with you in Congress as
participants, within our own branch of Government, in the task of
trying to insure the success of the Freedom of Information Act. The
act is an epochal step in democratic government. Our experience indi-
cates that that act is working, but that much additional effort, experi-
ence, good judgment, and good will may be needed to keep it working
and to improve its operations. You may be assured the Department
of Justice will continue to give its best "efforts toward a fair, reason-
able and effective administration of the act.
That concludes mv prepared statement this morning.
Mr. :Moorhead. Thank you very much, Mr. Erickson. We appreci-
ate your abbreviating your remarks. I think the list of the examples
is important, but I thiiik it most important that they be in the record
and not necessarily important that we read them today.
On page 25 of your testimony you make a statement which I think
should be repeated, and that is that under the Freedom of Informa-
tion Act, an exemption is only an option to deny, not a directive to do
so. I repeat that because I think that many of the agencies have not
irotten that message. We really believe that even if a particular docu-
ment legally can be kept from the public, that there may be many,
many instances wherein the administration of government and democ-
racy the choice should be to release the document, even though it may
be technically under an exemption. I take it that you agree with that
position ?
Mr. Ericksox. Yes, yes. I might, in that context, just describe
briefly what the procedure is in the Department of Justice. You will
recall that I referred to the statistics, the overall requests we record
in the Department, which may very well be low in comparison to
other agencies. Our normal procedure in the Department is to go
throuirh three steps.
The first, the materials that have ahvays been macle, always been
made available, are made available, without consideration of the Free-
dom of Information Act. In that category we are talking about
speeches, releases, this type of information which is readily disclosed
;ind distributed. There is no question under the Freedom of Informa-
tion Act as far as we are concerned, and they are freely distributed.
Our next step in the ]>rocess is to ascertain if the document requested
is wliat we would call a problem docmnent. Is it likely to be harmful to
anybody, the Department or the individual, and if we come to a det_er-
minatio'n that it is not, with respect to the Freedom of Information
Act, it will be released.
Finally, we get to the hard core cases, if you will, in which we feel
tliat there is a question, and then, of course, we will go to the Freedom
of Information Act and the exemptions, and it is at that point we
start callinji thorn freedom of information requests.
y\r. MooPviiEAD. 'Mr. Erickson, are you familiar with the recent Ex-
ecutive order on the subject of classification and declassification?
'SW. Ertcksox. Yes I am, not intimately familiar with it, but I am
certainly familiar witli it.
1185
Mr. ^looRHEAD. Was there any input from the Freedom of Informa-
tion Committee on the drafting of this classification order?
]\Ir. Ericksox. No, there was not. There was no input from the
Freedom of Information Committee. I was personally involved as a
Justice Department representative, however, so to that extent, there
would have been.
]\Ir. ]MooRHEAD. Under the Executive order, the duty of interpreta-
tion is assigned to the Justice Department, is it not ?
^Mr. Ericksox. Yes it is. The Attorney General has that responsibil-
ity under section TC, I believe it is.
]\Ir. MooRHEAD. I notice in the Executive order, in the third para-
graph, it refers to exemptions under section 552(B)(1) of title 5,
which is the Freedom of Information Act, and it says "wrongful dis-
closure of such information or material is recognized in the Federal
Criminal Code as providing a basis for prosecution."
"\"\liat is the meaning of the word ''wrongful" there ?
]Mr. Ericksox. Wrongful in that context, to me, would mean dis-
closure of a classified document to one who is not entitled to receive it.
]\Ir. MooRiiEAD. Therefore, you would say that disclosure of such
information would not require intent to harm the United States?
]Mr. Ericksox. I would refer you to the particular statutes involved,
and I was just giving you my Broad interpretation of what wrongful
would mean. I would have to relate that to the criminal statutes in-
volved, both in title 18, and there is a statute in title 50 also which
would cover this situation. I am sure that is the reference.
]Mr. ]MooRHEAD. So that "wrongful" in this context would be wrong-
ful as defined in the criminal statutes, not as defined in the Executive
order, is that correct ?
Mr. Ericksox. That would be my understanding.
]Mr. MooRHEAD. Because an Executive order camiot create a criminal
offense, is that not correct ?
^Ir. Ericksox. Yes, sir.
Mr. ]\IooRHEAD. So that this Executive order just as the previous
10501 does not in and of itself create a law. a violation of which is a
criminal offense ?
^Iv. Ericksox. That is correct.
]\Ir. ]\IooRiiEAD. I think that that is important, because as you said
before, the exemptions under the Freedom of Information Act are not
directives, but are merely permissive. Therefore, if we construe this
paragraph to make these disclosures of exempt items a violation, we
are really misconstruing what you so ably testified were options rather
than directions. This uncertainty which is created, that is. that mere
disclosure of classified information, without the required intent under
the criminal laws, is not in and of itself a criminal violation. It leads
me to ask you, since you have studied this matter, do you think that
in the United States there should be something akin to the Official
Secrets Act which the British have?
Mr. Ericksox, Well, the British Official Secrets Act is certainly one
aspect that has received a great deal of notoriety or attention, and it
seems to me that that is on one end of the spectrimi when you are
considering what proscriptions or prohibitions should be enacted. The
other end would be to perhaps leave the laws as they presently exist.
1186
unci I do not know what the eventual result will be, or if there will
be any chano-e. I have certain miso-ivino-s about the l^ritisli Official
Secrets Act/if it were to be applied to this, in this particular setting.
Mr. Z^IooRiiEAD. One final question, before I yield to :Mr. Conyers.
In section 1 of the Executive order, you use the woi-ds "national de-
fense or foreipi relations," and then parenthetically say, here and
after collectixclv determine "national security." In the freedom of
information law, the words of section rr2'2(h) (1) are "national de-
fense or foi'ciun policy." Was there any reason for changing those
words after you rely on the Freedom of Information law for statutory
authoritv in the third paragraph of the order ?
Mr. Ericksox. I am not, I am not aware of any reason for that
A'ariation.
]\Ir. iSIooRHEAD. Thank yon, ]\Ir. Erickson.
Mr. Convers.
Mr. Conyers. Thank you, Mr. Chairman. I too Avant to jom m
thanking vou for a very 'adequate statement. The main point that I
would iTke to raise concerns the fact that al)Out 50 percent of the cases
litigated do not sustain the Government's position. If that is so, that
seems like a rather ]>oor value average. That is to say that there may
be a great number of other cases that are not brought because of the
fact that the person or group cannot afford an attorney. I am begin-
ning to think that if half of the time we are wrong in construing the
provisions of this act, that perhaps we need to examine it a lot more
carefully than we have in the past. Would you not think that a 50-
percent loss rate of litigated cases suggests that some of the agencies
may be construing portions of this Freedom of Information Act too
severelv ^
Mr. Ericksox. Well, that statistic. I Avoidd pomt out first, is an
approximation. Second, it is a nationwide statistic, and we have
found that certain courts have held against the Government much
more so than others; namely, those right here in the District of
Columliia.
Mr. CoxYERS. Of course, they would be more experienced with
these kinds of cases than most other courts, would they not?
:Mr. Ericksox. Well, there are not that many cases that have been
decided, so I would doubt there is any great experience or volume of
expertise in the District at this time. I still think we are learning
a lot under this act. It is not as good a record certainly as some would
like to see to the point where, if the Government takes the case to
court, they should win it.
On the" other hand, tliere are a lot of unsettled areas, and as I say,
Ave have diverse opinions, in one district or one circuit, compared to
Avhnt Ave have here. I believe Ave are going through a ])rocess of trying
to decide really Avhat the laAv is. The statute is inq)recise in some
resDects. I think AA-e all realize that.
I am not suggesting a number of chanjres in it liecause I think in
any statute yon draft you haA^e this problem. And I think it is an
evolvino- process.
I Avould point out that avc have yet to get to the Supreme Court
on any freedom of information case, and my ansAver to your concern
about the so-f-allo*! 50 to 50 value aA-erage is one of some concern, but
I am not serionslv alarmed bv it because Ave do hnvo a neAV act. and
11S7
we have varying: interpretations of it, and tliis is the way th.at we
do o-et the proper auidelines.
Mr. CoNYEiw. Would you agree witli tlie suggestion tliat here in
the District of Columbia' the circuits would have more experience in
handling cases of this matter because there are so many cases involving
the U.S. (xovernment brought here '.
y^x. Eru'ksox. Weil, there certainly are more cases brought here
than any other circuit in the country.
Mr. CoxYKRS. At the same time we are involved in the Government,
at some considerable cost, litigating these kinds of cases. Is there any
way you can estimate what the costs of Government litigation under
this act have run'^
Mr. Erickson. I am sorry, I would have no idea.
]\rr. CoxYERS. Or any kind of an average cost per case?
Mr. Ericksox. 1 certainly personally have no idea. We might at-
tem])t to develop somethino-, Init it would be verv difficult.
:\rr. CoxYERs. Well, if — ^
Mr. Ericksox. I think that sort of statistics which relate to the pres-
ent cost, of litigation aspects of the administering of the act would
be quite difficult, much less
]\rr. Coxyers. ISIr. Erickson, have you determined whether there are
any loopholes or any parts of the act that you would bring to our at-
tention for reconsideration?
]\Ir. Ericksox. As I mentioned earlier, I have no proposals for
amending or changing the act. If we are going through the process of
liaving some intei-pretation, or receiving some interpretations from the
court. I think it is almost premature at this time to propose specific
amendments.
]\[r. Cox-^YERS. Do you think the act is working %
]Mr. Ericksox^. Yes.
Mr. Coxi-ERS. Do you think more information is being made avail-
able to the American public as a result of its enactment I
]Mr. Ericksox. Oh. clearly so.
]Mr. Coxyers. What happens to the ordinary citizen who cannot
aff'ord a lawyer, who is not the representative of a corporation, or in-
stitution I What recourse does he or she have under this act \ A lady
in my district who is writing a book about some of the first black citi-
zens who were taken into Naval Academy or West Point is having
trouble getting access to the records.
I am sure it was before this act was written into law, and she could
not aff'oi'd an attorney. And I think we complained, and I am not even
sure she ever really received the information.
But, in a sense, we still leave out Joe Citizen who may be nialdng a
rather routine infjuiry. And if he knew that if he could aft'cu'd a law-
yer that he would have a 50-percent chance of pi'ol:)ab]y winning, at
least around Washingion, D.C., it might be argued that he is not get-
ting as much information as we would get under the act.
What are your observations on that point ?
Mr. Ericksox^. Well, my ])ersonal experience within the Department
of Justice would indicate that your constituent would have received
rather favorable treatment.
First, the expense involved under our regulations is i-ather insignifi-
cant, and I have — I asked this specific question of those who handled
1188
our requests initiall}^ : Has anyone ever been denied information by
reason of failure to pay a fee ?
And the answer I got back was no. I am speaking about the Depart-
ment of Justice.
Mr. CoxYERS. A fee that would be based on what ?
Mr. Ericksox. Pardon me?
Mr. CoNYERS. A^-liat kind of fee are you referring to ?
]Mr. Ericksox. There is a $3 initial fee that should come with re-
quests under our regulations. Above that, there is a cost for copying.
Second, I think I can fairly state that we do not divide down, divide
out requests made by lawyers and those by private citizens or indi-
viduals. In fact, most of our requests do come from individuals, and
sometimes we have trouble deciding, or great difficulty deciding what
they want or what they are after. It just so happens in the Office of
Legal Counsel we get a great deal of requests generally which either
come to the Department or are forwarded by Members of Congress
for this sort of information, which we treat as nonfreedom of in-
formation requests for the most part.
]\Ir. Coxyers. I said that w^as my last question, but I just want to
ask this final postscript. AYhen you said that no one has ever been
turned down for not being able to pay that $3 fee, does that mean
that people who were not able to pav it were able to get the informa-
tion ?
]Mr. Ericksox. I asked that spex?ific question yesterday, and the an-
swer I got was that no one has ever been tui-ned down for that reason.
Mr. Coxyers. Well, that could mean that no one has ever tried to
get the inf oiTnation without paying a fee.
]Mr. Ericksox". Pardon me ?
Mr. Coxyers. I said : Could that not mean that no one has ever tried
to get the information without paymg the fee ?
Mr. Ericksox. I did not ask that question. I am assuming there
are cases where people just do not understand the procedures, a citizen
writing a letter in longhand, a longhand letter and asking for some-
thing, I mean. I have seen these come across my desk many times and
we answer tliem routinely. We could treat it as a freedom of informa-
tion matter, but we do not.
]\Ir. Coxyers. And your presumption is that they would get that
information even though they had not paid the fee ?
Mr. Ertcksox". We would not claim it in the freedom of information
request, but we Avould give it to them if we could locate it and
have it.
Mr. Cox'YERS. I see. Thank you very much.
]Mr. ]MooRHEAD. Following up on ]\Ir. Conyers' question. ]Mr. Erick-
son, I understand there is a committee chaired by the Depaitment
of Justice, and including the Office of Management and Budget, and
GSA, to consider the proljlem resulting from the lack of uniformity
in agency fees. Is my understanding correct ?
INIr. Ericksox*. I'es.
]Mr. ]\IooRHEAn. "\Miat, if anything, has this committee recommended
about fees?
Mr. Ericksox. I pei-sonally have not participated in that committee.
I cannot answer that. Perliaps Mr. Saloschin can.
Mr. Mooriiead. ^Mr. Saloschin.
1189
]Mr. Saloschin. In general, the committee feels that there are two
areas where the agencies should be encouraged to review their fee
regulations.
One is in the area of copying fees, and it was the feeling of the
committee that many of the agencies — well, some of the agencies — may
have copying fees which are too high, largely because they were
written prior to the act going into elfect in July of 1967.
And since that time copying technology has advanced considerably,
and these fees should be reviewed. It is a particular problem when
someone wants a copy of a lengthy document, and these fees can be
burdensome. That was one conclusion that the committee reached.
Another conclusion that the committee reached was that at the time
the act was passed, it was not realized, the problem was not faced up
to that requests might be made for records where the request does not
specifically indicate what the desired records are in a manner in which
someone reading the request can go to a file room or a file cabinet and
find those records. The problem of the so-called categorical request,
and the question of who has the burden of identifying the records,
this was gone into in the Bristol-Myers case. Now, in some instances,
and I think there is one that w^as cited in Mr. Erickson's testimony in
our own Department, literally thousands of dollars of costs can be
absorbed by the Government, and no fee can be charged for this other
than a nominal copying fee.
And these requests may come from defense contractors, or any
source, of course, and therefore there was some feeling in the com-
mittee that the agencies should review the regidations so as to put
themselves in a position to recoup at least a portion of the cost to the
taxpayer of processing the unusually costl}' or burdensome request.
Mr. ISIooRHEAD. Has this committee taken action to do anything, or
is this just a recommendation that is floating around in the air?
Mr. Saloschix. I believe that the Office of Management and Budget
has made available or indicated it would make available to your com-
mittee a report which responds to your question more specifically than
I can at the moment, from my recollection. I believe the report was
dated sometime last November.
Mr. MooRHEAD. Mr. Erickson, you have indicated the actions of the
Freedom of Information Committee vis-a-vis requests to other agen-
cies. Does the committee play a part in internal requests to the Depart-
ment of Justice, and if so, what part does it play ?
Mr. Ericksox. The Committee, as such, does not. The Office of Legal
Counsel advises the Attorney General on appeals within the Depart-
ment. It would initially come in to an individual that handles freedom
of information matters, and if there is an appeal, an administrative
appeal from that decision, it would go to the Attorney General, and we
would advise the Attorney General at that point. The Office of Legal
Counsel will, the Committee will not.
Mr. MooRHEAD. "VMiat is the basis for the recommendation to other
agencies by the Committee? Does the Committee consider case law?
Mr. Ericksox. Well, we certainly — the theory — we certainly follow
up the initial concept set forth in the 1969 memorandum that we will
collect as much information as we can. We gain a certain expertise by
advising and consulting with other agencies, and we follow the cases
as closely as we can. We attempt to be an expert in the area.
1190
Mr. ]MooRiiKAi). "Would it not be advisable to rewrite and bring- up to
date the Attoi-ney General's memorandum and establish a procedure
for onooing- distribution of advisory opinions as new case law is
developed?
Mr. Ekicksox. When I first became involved in freedom of informa-
tion matter I looked at that book and I said, ''My God, this tliinir
should be broug-ht up to date."
Since that time I have come to recognize that it may not be quite that
easy to bring it uj) to date, because we do have a number of. I think,
rather important questions to be answered, and maybe answered in
the foreseeable future. I think it is something that should be brought
up to date at some point in time. I am not sure that this is the exact
time. I would certainly prefer to have some pronouncement by the
Supreme Court l)efore we do this.
But, I do think it is — it would be helpful, and it is something that
should be done in due course.
Mr. MooRiiEAD. Have you thought of any other method of keeping
the various agencies up to date on developments in the law. such as
seminars with public information offices, or lawyers charged with this
duty in the various agencies ?
Mr. Ericksox. It is one of the questions. I feel something should be,
something should be done. I have not formulated, really, any plan
as to how it might be done. I mentioned the increase in our consulta-
tions, and it seems to me that that, in and of itself, serves to inform
and keep other agencies advised.
But, I certainly would not be averse to some more concentrated ef-
fort, more expansive effort to keep other agencies advised, because I
think the law is evolving, is developing, and certainly it would be a
help.
Mr. MooRHEAD. Does your committee advise the General Counsel of
the various agencies when a significant decision under the act is made I
Mr. Ericksox. We have developed no automatic procedures for do-
ing so. but that certainly would be one of the alternatives to be con-
sidered.
Mr. MooRiiEAD. You have referred in your statement to the large
number of recjuests which fall under the seventh exception, investiga-
tory files. What is your definition of an investigatory file? Is it one
that is oi)en, on whicli action or prosecution may be intended? Does
it include closed investigatoiy files?
Mr. Ericksox. Well, that is certainly going to vary with the sub-
stance of the matter, or the agency invohed. I am aware that there is a
certain authority that the seventh exemption ceases, if you will, once
the file has been Closed. We do not consider that a final position.
I think there is authority to the contrary, and that is one of the open
questions which I would expect the courts would be deciding in the
foreseeable future.
Mr. MdOKiiKAi). In hearings last fall before another subcommittee of
this full committee — the Natural Resources Subcommittee — Assistant
Attorney General Kashiwa stated that it is. "A long standing depart-
mental rule that when a congressional committee recjuests informa-
tion concerning an open case, it should be informed that the file can-
not be made available until the case is completed."
They cited the Justice Department rule 116-56.
1191
First, does the Department of Justice still contend, in tlie lioht
of the spirit of the P'reedoni of Information Act. and the pronounce-
ments of Presidents Kennedy. Johnson, and Nixon, reoardino- the
application of its executive privilege, and the clearly demonstrated
necessity for Cono-ress to be fully apprised of departmental actions,
especially in view of the recent disclosures involvino; the Antitrust
Division', that prohibitions against publicity concerning cases in liti-
gation or under negotiation, as embodied in rule, apply to informa-
tion requested by congressional committees?
Mr. P^HicKsox. That is currently the position of the Department.
Mr. ]MooRHEAD. And does the Department of Justice still contend,
as it did in the aforementioned hearings, that the general prohibitions
against ex parte discussion of litigation as contained in the American
Bar Association's Code of Professional Responsibility applies to re-
quests by congressional committees for information or negotiations?
Mr, Ericksox. Yes.
Mr. MooRHEAD. Are you familiar with the recommendations of the
administi-ative conference that initial decisions on the requests for
information under the act be made within 20 days, and that decision
on appeals be made within oO days ?
]\Ir. Ericksox. Yes ; yes, sir.
Mr. MooRHEAD. Do you favor those recommendations ?
Mr. Ericksox. AVe are certainly — I cannot answer that categorically.
We are looking into this in the context of our own regulations. Some-
thing should be done to put it in a time frame.
I think this is one of the criticisms that has been voiced. I do not
know if a particular time limitation or the time limitations should
apply. I have the impression that even though they (Administra-
tive Conference recommendations) do use specific time periods, that
there are several exceptions which may not make them as effective as
they appear. But certainly it is in order to have something reason-
ably s]5ecific in that regard, that a requestor may do to receive action.
We have a practical problem in that regard in terms of how they
respond to this request. It is a manpower request as nmch as — I mean
it is a manpower factor as much as anything when you have com-
plicated requests or extensive requests. It is verj' difficult, sometimes,
to i-espond quickly, but we recognize it as a concern, as a problem,
and we have time limitations for ap])eals and this sort of thing, but
nothing for response to the initial request, at this time.
]Mr. ^NlooRiiEAD. Yon would agree with me that infoi-mation in some
instances is very fragile, a commodity which spoils rapidly or becomes
useless rapidly ?
]Mr. P^RiC'KSOX'. That is another ingredient or another factor.
Mr. MooRHEAD. According to the information furnished the sub-
committee by your Department, the Department of Justice, it takes^ —
on the average — about 65 days, which is considerably longer than that
time reconnnended l)y the Administrative Conference.
Mr. Ericksox. Yes. that is — I think that is certainly longer than
suggested by the Administrative (\)nference. I think theie ari' \arying
reasons why that can occur. I have alluded to many of those before.
Many times the recjuest is not j)i-ecisely to the point where we can
readily locate the material, and it requires a further inquiry as to what
a person is after.
1192
IMaiiY. many of these requests come in from people who are not too
well advised as to what thev are looking for. They have a general idea
of M-hat they ai'c after, and it is very, very hard to determine exactly
what thev are asking for.
Mr. ]\iooRHEAD. When you reported to ns on actions withm the
Department of Justice, talking about appeals being sustained, and some
modiiied, what do von mean by modified?
:Mr. Erickson. Well, the appeal is going to come about in the event
of a denial so in that context the modification means either that part
of the information denied will be supplied or all of it will be supplied.
Mr. ]MooKiiEAD. Thank you.
Mr. Convers. did you have any further questions ?
Mr. CoNYERS. I wanted to pursue this requirement of a $3 fee in your
form. A\Tiere did that notion of requiring a $3 fee derive from ? It is not
in the Freedom of Information Act, itself.
Mr. Ericksox. Well. I will defer to Mr. Saloschin on that.
Mr. Saloschix. Well, that regulation— that regulation was written
before I. personally, became involved in freedom of information
matters.
My own — I have been in the Department a long time, but my own
involvement in freedom of information questions in my personal work
dates from approximately May of 1969, and this $3 fee regulation was
written before then.
But, in answer to your second question as to what the basis for that
is in the act, in 5 United States Code, section 552, subsection (a) No. 3,
which is perhaps the heart of the Freedom of Information Act, at least
for this purpose, the statutory language states that each agency, on
request for identifiable records may, in accordance with published
rules state, and here I pause, the time, place, and fees to the extent
authorized by statute. And there is a statute generally referred to as
the user charge statute which this refers to, and that is the basis for it.
that is the basis for the fee.
Mr. Coxyers. That is in addition to the copying fees, the cost of
reproduction ?
]\Ir. Saloschix. That is a flat fee. if you read the regulations, which
applies to all requests. As Mr. Erickson indicated, many times a re-
quest for infoi-mation may come in by a citizen letter or over the tele-
phone, and that fee is — no effort is made to collect the fee.
ISIr. Ericksox. That is a flat initial fee ?
Mr. Saloschix. That is a flat initial fee.
Mr. CoxYERS. Now, does anyone charge $3 besides the Justice De-
pai-tment ? Do you know of any others ?
Mr. Saix>sciiix. I do not knoAv but on the other hand, I am not famil-
iar in detail with all of the many department and age'ncy regulations
on fees.
Mr. CoxYERS. Well, it is my underetanding that this is rarely done in
other agencies.
Mr. Sai^schix. I do not dispute that and cannot. In fact, that is
my impression.
Mr. CoxYERs. So that even if this fee is not strictly sought, the fact
that there would be a form requiring payment of the fee would operate
1193
to inhibit questions coming from citizens who might not be corpora-
tions, or media, or law firm types ?
INIr. Erickson. Well, here again I would just revert to what I said
before, that I am not aware of any instance where the lack of this fee
lias been a factor in determining whether or not the information would
be supplied.
INIr. CoNYERS. Right. Well, that is true, but it still has a tremendous
inhibiting effect. Maybe we do not know how many people did not
Avrite in because the form said send in $3, and it did not say anything
about it being discretionar3\
Mr. Erickson. I will have to speculate with you here, but I would
certainly venture that the person who is — who does not have the $3
fee, or who is not going to pay the $3 fee is not very likely to be aware
of the regulations and the expense or cost.
Mr. CoNYERS. Well, they would be aware of it on the request form
that they sent. They would become aware of it then even if they did
not know about the statute or any of the details that we might be dis-
cussing, wouldn't they ?
That would be the only way they could get the information, if they
fill out the form, and the form said $3, please.
^Ir. Erickson. In many of these requests, they come in just by
letter, asking for certain information, and if it comes in with the form,
without the $3, it is usually going to come from someone who has —
is not fully informed about the requirement other than with respect
to the form.
And here again no denial has been made on that basis.
Mr. CoxYERS. Well, in view of the fact that you have only had 535
requests, and excluding corporate activities. Government agencies
and firms, labor unions. Congress, media, we have 169 falling into the
category of other. I suppose that is where John Q. Citizen falls into
''other." That would suggest that there is not a lot of money being
collected on these, and that it might be more in the spirit of the act
if there were no fee at all. I have been taking a long time to get to
that suggestion. I think it is out on the table. What would happen to
the Department of Justice if they did not even have a requirement for
the $3 fee?
Mr. Erickson. Well, perhaps I should have started this discussion
by acknowledging rather quickly that we are considering complete
revision of our regulations and the fee structure.
Mr. CoNYERS. And this is included in part of the revision?
Mr. Erickson. Yes.
Mr. CoNYERS. I am very delighted to hear that.
Mr. Erickson. In view of your concern, we will certainly consider
that particular aspect.
Mr. CoNYERS. And my interest does not stem from any of these
other types of requests except for the "other" category. I want to make
that very clear.
Mr. Erickson. Pardon me ?
Mr. CoNYERS. ]\Iy interest on this subject does not extend to any of
the other types of requestors except the "other", the 169 people that
76-253— 72— pt. 4 13
1194
might just be constituents, might be ordinary citizens, unfamiliar with
the kind of regulations that we have discussed here today.
Mr. Erickson. I might add that we have several each week, it seems,
requests that are forwarded by Congressmen on behalf of their con-
stituents, and we just respond directly.
Mr. CoNTERS. Thank you again.
Mr. MooRHEAD. Mr. Phillips.
Mr. Phillips. Thank you, Mr. Chairman.
Mr. Erickson, you referred in your testimony to the December 8,
1969, memorandmn to general counsels of all Federal departments
and agencies regarding coordination of certain administrative matters
under the Freedom of Information Act. This memorandum has been
put into the record at our hearings last Tuesday.
Can you tell me, prior to the issuance of this memorandum, were
there any other attempts by the Office of Legal Counsel to coordinate
among the general counsels or public information officers the proper
implementation of the act, or was this the first instance where there
was a coordinated effort to achieve this purpose ?
Mr. Erickson. Well, I would respond first by saying that the prep-
aration of the Attorney General's memorandum was one rather major
effort in this line, and needless to say, the Attorney General
Mr. Philklps. Besides that, were there any such steps taken in the
interim period since the issuance of the Attorney General's memoran-
dum in December of 1969?
Mr. Erickson. I am not aware of any. Maybe Mr. Saloschin is.
Mr. Saloschin. No.
Mr. Phillips. Perhaps the issuance of even informal memoranda ?
Mr. Saloschin. No; no effort was actually launched or mounted,
but steps were considered and reviewed, and they were not taken be-
cause they did not seem to be practical. One such step was an effort to
develop a questionnaire to improve our own awareness of what was
going on in other agencies, and a considerable amount of manhours
went into this project, but it was abandoned because it was not con-
sidered feasible for us to distribute it.
Mr, Phillips. Of course, this was during that interim period of
approximately 21/^ years before the Freedom of Information Com-
mittee was formally established. Was it the custom for a General
Counsel of an agency to consult with you over the phone as to the
advice you might be able to give on whether or not a certain request
for information in his agency might be made available mider the act?
Mr. Saloschin. I can only give you second-hand information in
response to that because, as I mentioned to Congressman Conyers,
my own involvement in this area did not commence until May of 1969.
But, it is my impression that occasionally informal inquiries came in
from around the Government and were handled by various people in
the office, most of whom are no longer there.
Mr. Phillips. Moving to another area, Mr. Ericl^on, last Tuesday
your distinguished predecessor, Mr. Frank Wozencraft was one of
our witnesses.
We discussed what the role should be in the administration of the
act at the departmental or agency level. Could you comment on the
question that we raised with him, as to what should be the proper role
1195
between the General Counsel of the agency, the public information
officer to whom the request is probably made originally, and perhaps
an administrative secretaiy or some other middle echelon Government
official who is involved in the administration of the act?
Do you feel that it would work better, for example, if it were
handled entirely by general counsel or by public information officers,
or as a combination ; is a combination best, based on your experience
on the kinds of appeals you have to mediate?
jNIr, Erickson. I would feel rather clearly that if the inquiry were
to come into the public mf ormation officer, that the public information
officer should liandle it to the extent that he can.
If he rmis into a situation where he feels that it is something that
he should not disclose, or cannot disclose, for some reason, he certainly
should consult the general counsel. I would not expect that all of these
things would be formalized within the general counsel's office. That,
to me, is overlegalizing it, if you will.
]Mr. Phillips, Well, there are two conflicting philosophies here.
Some public information officers say that if the decisions were up to
them there would be a great deal more information made available
to the public.
On the other hand, many general comisels say, off the record, that
if the public information officers had their way the law would be
violated every day.
Mr, Erickson. Well, I am assuming that we have a responsible pub-
lic information officer that is going to be aware of the concerns, the in-
terests of the Department, and the interest of the public, and the in-
dividual that may be involved in the disclosure which could be harmful
to the person about whom the disclosure is being made.
And at that point in time we would expect a responsible public in-
formation officer to check with his general coimsel.
Mr. Phillips. One last area of questioning, Mr. Chairman.
To what extent has the Civil Division of the Justice Department
developed expertise in defending suits for the Government under the
Freedom of Information Act ?
Mr. Erickson. Well, the handling of the freedom of information
cases is localized, if you will, with the Department.
Mr. Phillips. With U.S. district attorneys in the districts where
suits are brought ?
Mr. Erickson. This is within the Department itself. We do have a
particular expertise. Wlien you get to the various U.S. attorney's
offices, I am not aware of any particular
Mr. Phillips, Suppose the suit were filed in the ninth circuit, say
in the Federal district court in Seattle, Would the Government's case
normally be handled by the U,S, district attorney in Seattle, or would
the Justice Department send one of their stable of experts out to Seattle
to assist, or perhaps handle the case ?
Mr. Erickson. Mr, Saloschin ?
Mr, Saloschin. I am going to have to try to respond on the basis
of my general impression and experience, I would say that in most
instances that case would be handled by the U.S. attorney's staff out
in the judicial district where the case is pending. But, with advice and
1196
assistance from the departmental staff in "Washington. That is my be-
lief. That would be true in most instances, I would think.
Mr. Phillips. I was referring to a specific case in Seattle, Long v.
Internal Revenue Service. It is my understanding that the major
work on that particular case for the Government was done by an at-
torney from the Department of Justice, who was sent on several occa-
sions to the various hearings that were held in that court in Seattle.
Is this an unusual case, or is this the pattern ? This is a very specialized
area of the law and I would be very much surprised if there were not
a group of Government attorneys in the Justice Department who had
a very intensive understanding and expertise in this particular area.
Could 5'ou look into that, perhaps, with some of your colleagues in
the Civil Division, and supply for the record some comprehensive re-
sponse, because I think it is important.
"What bothers me is the two hats that the Justice Department wears
in these kinds of cases. On the one hand tlie Office of Legal Counsel,
and you two gentlemen are doing your best, I am sure, to carry out
the intent of Congress in administering this law, at the administrative
or appeal level in as many cases as possible.
And on the other hand, another arm of the Justice Department is
perhaps developing a great deal of talent and expertise in trying to
keep information hidden from the American people. I am just
wondering how these two conflicting missions can be reconciled.
Mr. Ericksox. "Well, I would point out that we do have on the
Freedom of Information Committee two lawyers from the Civil
Division, one who is in the General Litigation Section, and another
who is in the Appellate Section. Both of these are verv familiar with
the freedom of information cases. The extent to which they get out
into the field or the region, so to speak, in the U.S. attorneys' offices, I
cannot really respond to that, other than I know they are generally
aware of what has transpired.
Mr. Phillips. I^Ir. Chairman, as I suggested earlier, could we include
in the record at this point some response from the Civil Division as to
the extent to which attorneys from "Washington, from the Justice
Department, are sent out in the field to assist in the defense of Free-
dom of Information Act cases, in assisting U.S. attorneys?
]Mr. MooRiiEAD. Can you supply that for the record ?
Mr. Erickson. Perhaps you would want to direct that to the type of
service, or the type of assistance that they do offer.
Mr. Pmu^ips. Yes.
INIr. Ertckson. If you limit it to just the physical appearance, it
would be difficult,
Mr. Phillips. If it is advisory, how many cases, and if the attorney
from the Justice Department in "Washington actually handles the
case, or assists in handling the case with the local U.S. district at-
torney. I think some statistics should be supplied us along this line
and would be very interesting, indeed.
Mr. MooRHEAD. Can you supply that, Mr. Erickson ?
Mr. Erickson. "We would be pleased to do that. I do not know that
they will be statistics so much, as a general practice.
1197
Mr. Phillips. If we could have it for the last 2 fiscal yeai-s. That
probably would be enough because I doubt if the practice has de-
veloped much more recent!}^ than that.
(The material follows :)
Information Furnished by the Civil Division of the Department of Justice
ON THE Extent to Which the Division's Attorneys Assist U.S. Attorneys
IN Conducting Freedom of Information Litigation
1. Information on the conduct of cases in district courts :
(ff) As of March 1, 1972, there were 48 ca.ses filed under 5 U.S.C. 552 that
were being handled by or under the control of the Civil Division. Of these 48
cases, 12 were being handled directly in all respects by Civil Division attorneys.
In two additional cases, briefs were prepared by Civil Division attorneys and
filed although the oral argument was left to the U.S. attorney's office.
(h) The factors which determine whether a case is handled by the U.S. attor-
ney's office or directly by the Civil Division include (1) whether the issue iS'
novel or has been previously litigated; (2) the probable importance of the issue;
and (3) the work load of the U.S. attorneys' offices and of the Civil Division.
(c) The kinds of assistance given to U.S. attorneys on cases which they
handle include in most cases transmittal of a detailed discussion of the legal
arguments in support of the Government's position after obtaining and review-
ing the agency's report. In addition, all paper of substance filed in Information-
Act litigation is sent to and reviewed in the Civil Division with frequent trans-
mittal of suggests for conduct of the litigation to the U.S. attorneys' offices.
id) The Divi.sion has no reason to think that the statistics set foi-th in (aY
above vary greatly from the past practice. Thus, these statistics can be taken
as more or less representative of the relative roles of the Department's local and'
he-id(iuarters lawyers throughout the history of this type of litigation.
2. Information on the conduct of cases in courts of appeal : Almost all Free-
dom of Information litigation at the appellate level which falls within the Civil'
Division's supervisory authority has thus far lieen conducted by Civil Division'
attorneys ; there has thus far been one exception to this within tlie recollection'
of the Division's appellate staff. The staff also reports that about three or four-
appellate cases have been handled by attorneys with regulatory agencies whichi
conduct their own litigation (e.g., NLRB and SEC). One appellate ca.se. involv-
ing Internal Revenue Service records, has been handled by the Tax Division..
"When the basic issues arising under the act have been more clearly settled in-
appellate litigation, it is possible that more such appeals will be assigned to the
U.S. attorneys' offices.
While it is not reasonably practicable to .segregate the information presented
al>ove by fiscal year so as to show it for each of the past 2 fiscal years, the above
information may be taken as indicating the general division of professional
lal)or between the Civil Division and U.S. Attorneys during the last 2 fiscal
years.
Mr. MooRHEAD. IMr. Cornish.
Mr. CoRXTSTT. Thank you., Mr. Chairman.
Mr. Erickson. you mentioned in your tostimonv tliat vou have a very
sm;ill statf. How iaroe is that staff ?
^h\ Ericksox. "We have 18 lawyers.
Mr. CoRxiSTT. Ei'fhteen lawyers? PTow many of these lawver.-s work
on freedom of information matters? Is it b}^ assignment? I uiean,
or do you liave specific people to do this ?
Mr. Ertcksox. The Committee members, the Freedom of Informa-
tion Committee members are the ones that Avould be working on
fi-eedom of information matters. There are three of tho.se. now. This
is; not their exclusive assio-ument, however.
1198
Mr. Cornish. How many lawyers do you have working on executive
privilege matters ?
Mr. Ericksox. Oh, my, we have people who have an expertise in
executive privilege, but no one full time. I would say we have two
peojjle in the office who are knowledgeable, quite knowledgeable about
•executive privilege matters.
Mr. Cornish. So, it is almost about the same number, then ?
Mr. Erickson. Well, there is really no way to compare. It cannot be
compared in this context simply because the executive privilege takes
up far, far less time than the freedom of information time.
For example. I would guess that Mr. Saloschin is spending roughly
75 percent of his time on freedom of information matters. There
certainly is no one in the office spending anywhere near that time on
executive privilege.
ISIr. Cornish. I see. Now, one of the major responsibilities of your
office is to counsel the various agencies on the Freedom of Information
Act. and the possible cases that might be brought: is that correct ?
Mr. Erickson. Yes.
Mr. Cornish. What agency or office of the U.S. Government coun-
sels the public on the Freedom of Information Act?
Mr. Erickson. Well, I am really aware of no agency that counsels
the public, other than to the extent that I suppose that we do this.
Mv. Cornish. Let us take a hypothetical example of a person who
is having an esj^ecially difficult time with a recalcitrant agency from
the inception of his mformation request. Can he come to you, or
your office, and I do not mean to you personally. l:>ut your office for
advice on these matters ?
Mr. Erickson. No, we have no procedure for that.
Mr. Cornish. So, he cannot
Mr. Erickson. But that does not mean that we have not had request-
ers come in the office. Mr. Saloschin has spent a fair amount of time
with people who have come in and asked for information.
Mr. Cornish. Has that information been provided ?
Mr. Erickson. No.
Mr. Saloschin. Provide •
Mr. Erickson. The question was : Has that information been pro-
vided? No, we have not — I am sorry, are you referring to provided
here? The information may be provided, at the consultation, to the
requester.
Mr. Cornish. During your testimony you pointed out that you often
explain or try to emphasize to these agencies that exemptions in the
Freedom of Information Act are not mandatory but permissive, and
that in certain instances it might be in the public interest, even though
a piece of information falls under one of the exemptions, to make it
pub! ic. Is that correct ?
Mr. Erickson. Yes.
Mr. Cornish. I was also interested in some of the criteria you men-
tioned fittincf into tliis rlocisionmakiniGf ]irocess. and you said that one
of the factors was whether it would "harm the agency." I wonder if
you could explain what you meant by that?
Mr. Erickson. Well, that is one oi the — I think I used that as one
of the initial determinations vou would make as to whether or not
1199
you are even concerned about whether it be released. There may be a
discretionary release if we have no reason for not releasing it.
Now, by harm to the agency I would say that falls generally into
the category of disclosing information prematurely, let us say in the
course of an investigation. I think that would be the prime example.
Nothing specific comes to mind at this point in time, but if you are
talking about an investigation or enforcement proceeding, or some-
thing of this type, and it would interfere with your orderly perform-
ance of your functions.
Mr. Cornish. You would not include in that category, or would
you, the embarrassment of the head of the agency, or matters of that
sort?
Mr. Ericksox. I would say yes and no to that. Yes in the sense that
as a practical matter I think that is something where the first flag
is raised, but when it reaches our committee or we are discussing that
sort of thing, certainly it is our fimction to eliminate that sort of a
consideration from whether or not the information is going to be
disclosed.
jSIr. Cornish. But, would you not agree that that is not a justifiable
factor to take into consideration in whether one of the exemptions is
utilized or not ?
Mr. Erickson. Correct, I find no basis in the exemptions for that.
Mr. Cornish. At one point you mentioned the Immigration and
Naturalization Service. You stated that there were certain invasion
of privacy aspects to a number of those cases. Does the Department
ever assist foreign governments or foreign legal firms in locating a
person who might be the heir to an estate overseas, and that ^rt of
thing?
Mr. Erickson. I cannot answer that. I am not familiar with that
procedure.
]Mr. Cornish. Would the Justice Department refuse to disclose the
location of a naturalized American citizen if he was the beneficiary
of an estate overseas?
]Mr. Erickson. I am not familiar with the INS. Mr. Saloschin may
be. If he is, he may respond.
Mr. Saloschin. I am not familiar with the specific practice, but
from the information they have furnished us in handling analogous
inquiries, my surmise would be that in the situation you described, the
Immigration Service, if it did have the information as to the where-
abouts of a naturalized American, would advise him that he had an
inquiry or a contact from some source which repoi-ted that he was
an heir who had inherited money from some foreign estate, or some-
thing of that sort, and then leave it up to him to assert his claim or his
rights. Tliat is what I would assume they would probably do.
Mr. Cornish. Well, I would hope so, because it might help our bal-
ance of payments situation, for one thins:. But. I am interested in the
language in your statement, and you just brought it up again.
"However, even where such requests for personal infonnation are
denied, the alien is usually notified that a request is made."
Now, my fascination is with the word "usually." Is there some rea-
son why it is usually, and not always ?
1200
Mr, Saloschin. Again, I have to speculate, but there might be a
situation where the ^ien in question, where his address is known to
the service but wliere he might be, shall we say, in a mental institu-
tion or something of that sort. I really do not know.
Mr. Erickson. These are generalizations that we have from the Im-
migration and Naturalization Service, and I do not think speculation
is really going to help us here that much. This is the general format
which they have said they follow, and I think that is as much as we
can reasonably respond,
Mr. Cornish. I would like to revert back to my previous question
before I got into the question of estates and these exemptions, and their
being permissive, and not mandatory.
Can you foresee a situation where there might be information cov-
ered under the exemptions which possibly would cause harm to the
agency in the sense of embarrassment or whatever it might be, but
would be of benefit to the public ?
Mr. Erickson. Nothing si)ecific comes to mind. I just do not have
anything in mind.
Mr. Cornish. Well, this fits in rather precisely with the President's
very excellent statement in regard to the Executive order just released,
and he makes quite a point of the mistakes by bureaucrats, and he
would hope that hiding these could be avoided under the new Executive
order.
Mr. Erickson. That certainly was one of the strong points he made,
that he would not tolerate that use of the classification system.
Mr. Cornish. That is why I make such a point of this, and I am
belaboring it.
But, that was the point and the thrust of my question, to make ab-
solutely certain that in the advice that you give to the agencies, that
the exemptions are permissive and not mandatory. Do you also make
it clear to them that you are not talking about the personal embarrass-
ment or the hiding of mistakes which might have been committed, in
which the public would benefit by knowing ?
Do you think that would be a reasonable responsibility on the part
of the Department of Justice ?
jNIr. Erickson. Oh, yes, No doubt about it.
Mr. Cornish. Thank you.
Mr. MooRiiEAD. Mr. Conyers.
Mr. Conyers. INIight I ask if there has been or might be any con-
sideration of reviewing whether the Government should pay the costs
of a court action if they have lost a freedom of information case after
denying the individual the information that was requested? There are
several areas in the law where this sort of thing occurs, some civil
lights actions
Mv. Erickson. Yes, I was going to say particularly with civil rights
actions.
Mr. Conyers, Would that be a possible subject to be considered in
your review of the Justice regulations on this matter ?
Mr. Erickson. We certainly have not considered that to date. T ac-
cept your suggestion, and it is something that we certainly can consider.
Mr. CoNYEits. Very good.
;Mr. MooRHEAD. Mr. Copenhaver.
1201
Mr. CcPEXiiAVER. I Iia\e just one genei'al question, Mr. Ciiairmiin,
and I will not take the time of the'connniitee to go into extended
questioning.
]\Ir. Erickson, I have a number of questions vrhich I shall ask the
chairman privileae to submit to you for jouv response in writmg.
Mi: ]\IooKiiEADTMr. Erickson, will you attempt to answer questions
submitted to vou by the subcommittee in Avriting i
Mr. Erickson. Yes. I would like to know the general information
format or the general impoit of Mr. Copenhaver's questions.
(The questions and answers thereto follow :)
Responses to 15 Questions to the Department of Justice on Freedom of
Information Matters
(Note: Those questions were trausmitted by the Subcommittee on March 24,
IDTi:. to Assistant Attorney General Baiph E. Erickson, Office of Legal Counsel,
DeiJartmeut of Justice, wlio had testified before the Subcommittee on March 10,
1972.)
Question 1. If the Department denies a request for information, does it inform
the requester of his rights of appeal within the Department and to the courts?
Ansicer. Generally, our letters of denial have not contained such information.
However, the foiTns furnished for public use in requesting records contain cita-
tions to the regulations which in turn contain citations to the Act. The regula-
tions and the Act together set forth both administrative and judicial apijeal
rights.
Question 2. What procedures does the Department folloiv concerning avoiding
the contamination of files, i.e., maintaining files so that current investigatory
material, trade secrets, or classified information is segregated from information
that can be made availaUe to the public?
Ansicer. In general, the Department of Justice does not have any special pro-
cedures either for the "contamination" or for the "decontamination" of the files.
( It is assumed those terms respectively mean the intentional mixing together and
tlie intentional separating apart of materials that are available to the public and
those that are not, for the respective purpose of frustrating or of facilitating
such availability.) Except with respect to classified docimients which are re-
(luired to be kept separate from other records for the purposes of greater se-
curity of storage and of limiting access to duly authorized employees — and which
constitute in the aggregate only a minor part of this Department's records— our
records are generally grouped in ways that will facilitate their use by Justice
Department personnel in carrying out particular work assignments, and are not
grouped in ways designed to help either in exhibiting them to or in concealing
them from other persons. Our work, after all, is the primary purpose for which
our records are maintained. Accordingly, the organization and grouping of our
records has evolved in ways that have been found to support the Department's
overall responsibilities in such areas as litigation, law enforcement, legal serv-
ices, and so forth. In other words, documents, records, and files of the Department
will generally be organized and stored according to particular cases in litigation,
I)articular investigations, particular legislative proposals, particular requests for
advice or comments, particular organizational units, subjects, names, or periods
of time, or some combination or subdivision of such features which, on the basis
of experience or judgment, will best facilitate the assembly, review, and retrieval
of the matter contained therein by departmental personnel in their woi-k
It would be highly impracticable and burdensome to rearrange records that
have long been grouped and maintained according to their pertinence to partic-
ular matters and their utility for established working procedures in order either
to inject or to eliminate matter which is, or is not, available to the public.
Question 3. Does the Department, as a general policy, permit public access to
files of investigations that have been closed? What is the Departmenrs policy
c'DU-crninf/ the closing of .^vch files as soon as possible? What procedures have
been established to assure compliance with this policy?
1202
Ansiver. As to the first part of this question, the answer is no, regardless what
is meant by a file that is "closed." The investigative files of this Department-
including those which may be characterized by various persons as "closed" in
one sense or another — are voluminous. They contain great masses of unevaluated
information the release of which would be injurious to innocent persons. In
addition, the law enforcement needs of the United States make it vital to protect
investigatory techniques and to maintain the continued trust of the public that
investigative information may safely be given to the Department, without fear
of its release if the particular file should for some reason later be termed "closed".
As to the second part of the question, the Department's overall policies for the
performance of its functions include a general policy of performing its work, in-
cluding investigative work, expeditiously ; this may tend to "close" files. As to the
third part of tile question, there is no special procedure to assure compliance with
this policy of expediting our work, apart from the normal range of supervisory
and management activities, which include ongoing review of workload and ©f
utilization of available manpower.
Question 4. Does the Department continue to interpret Exemption No. 7 of the
P.O. I. Act as permitting only litigants to have access to investigatory files?
Ansicer. The Department's interpretation of the 7th exemption is not accu-
rately described in the question. Our interpretation is basically set forth in the
Attorney General's Memorandum of June 1967 on the Act, at pp. 37-38. The
question seems to imply that in the Department's view (a) litigants have gen-
eral access to investigatory files, and (b) access by others is not permitted. As
the discussion on p. 38 of the Memorandum shows, litigants are entitled only to
limited access to such files.
Question 5. To what extent does the Department follow up on advice given
another agency in order to determine ivhat action was taken?
Answer. This question was answered in large part in the prepared statement
to the subcommittee of Assistant Attorney General Ralph E. Erickson on
March 10, 1972 at pp. 27, 29-30, which indicated the basis of our belief that our
advice is usually followed, and also discussed some of the problems that would
be anticipated if there were more rigid follow-up procedures on this point. It may
be added, however, that we currently plan to give active consideration to pos-
sible administrative changes in this area.
Question 6. To what extent does the Department contact agencies which have
not sought the Department's advice hut which have become involved in F.O.I,
litigation in order to determine if litigation could have "been avoided or can be
under like circumstances in the future?
Ansiver. When the Civil Division learns of the filing of a new Freedom of In-
formation suit, this event can be expected to come to the attention of a Civil
Division attorney who is a member of the Department's Freedom of Information
Committee. If it appears to this attorney that the agency being sued may have
failed to consult the Committee in accordance with established procedures before
issuing a final denial of the plaintiff's request, the attorney follows the practice
of notifying the chairman of the Committee. The chairman will then telephone
the agency and, unless it appears that the suit is premature or that the agency
is likely to make the records available, the result will probably be a consultation
with the Committee within a very few days. Such instances, however, have been
quite rare. One of the main objectives of these and other Committee consulta-
tions is to avoid unnecessary litigation in the case at hand and in like circum-
stances in the future.
Question 7. How does the Department now advise other agencies uAth regard
to the interpretation of "identifiable records" contained in section 552(a) (3)
of the F.O.I. Act? Is the burden still placed upon the requester? If so, what is
the degree of the present burden?
Ansicer. The Department believes that the guidance set forth on page 24 of the
Attorney General's Memorandum under "Meaning of the Term 'Identifiable' " is
basically sound, if fairly applied, and that the requirement that a requester pro-
vide a "reasonably specific description" or a "reasonable description" of what
he wants is in accordance both with the law and with common sense.
What is reasonable, of course, depends on the circumstances. If the requester's
desire is fairly plain but his knowledge is so limited that he cannot make his
request very specific, and if he cannot reasonably be expected to acquire the
1203
knowledge needed to do so except from the agency, while at the same time the
agency has grounds for believing that with some effort it could succeed in prob-
ably identifying the records that he seeks, the agency should, normally, cooper-
ate in some way. It may either attempt to identify the records or, if a costly
search is likely to be involved, it may communicate with the requester informing
him of the anticipated costs and, to the extent feasible, offering to assist him in
reformulating or refining his request in more manageable or readily identifiable
terms.
Question S. Present any recommendations which the Department itself sup-
ports or has received from other agencies concerning amendments to the F.O.I.
Act, the Attorney General's Memo, or other departmental interpretation of that
Act.
Ansivei: Xo recommendations for such amendments have been received or are
supported by the Department at this time. (We do, of course, receive informal
requests for current guidance on questions involving the interpretation of the
Act, but these expressions do not in our view constitute recommendations for
amendments to the Department's interpretation of the Act.)
Question 9. Has the Department explored the recordkeeping operations of other
agencies to determine whether they can he arranged in an improved manner in
order to make more information available to the public more rapidly?
Answer. Xo, since 5 U.S.C. 552 does not impose any such duty on the Depart-
ment. The Department has no authority in this respect. However, we have
occasionally in the course of a consultation suggested than an agency might
explore the possibility of improving its administration of the Act by changing
its records management practices.
Question 10. Cite any instances in tvhich the Department has encountered other
agencies charging too high fees and actions hy the Department to have them
reduced. What is the Department's policy at present regarding the charging
of fees?
Answer. We have not encountered such instances or taken such actions, nor
does the Department have authority to take such actions. This does not mean
that we are not generally aware, as indicated in our answers to subcommittee
questions on March 10th, that there may be problems concerning fees. As to the
second part of the question, we are considering revising our own fees. Pending
a possible revision of our fees, we will continue to administer our fee regulations
in a manner that reflects fair consideration of the interests of the requester,
including requesters who may be unable to pay.
Question 11. How does the Department currently interpret Exemption So. .J
of the F.O.I. Act? Is the phrase ''privileged and confidential" interpreted to
modify ''trade secrets and commercial and financial information" or to con-
stitute a separate category of exemption? Does the exemption only apply to the
information obtained from the public or also to that obtained from other
agencies?
Answer. The Department interprets the 4th exemption essentially as appears
in the Attorney General's Memorandum at pp. 32-34. The phrase "privileged ;uul
confidential" must, in view of the wording and the legislative history as dis-
cussed in those pages, be interpreted both to modify the prior language and
to constitute a separate category. If the phrase does not modify the prior language,
all commercial and financial information would be exempt, an obviously incor-
rect interpretation. If the phrase is read as not representing a separate category,
then among other consequences the clear language of both the Senate and House
committee reports must be disregarded, for both expressly state that the 4h
exemption covers matter sub.iect to, e.g., the "doctor-patient" privilege, and
such matter is obviously neither commercial nor financial.
The Department in advising other agencies has encountered types of situa-
tions which illustrate the public need for our interpretation on this point. For
example, from time to time various agencies embark upon fact-finding inquiries
into fires, accidents, or other casualties which occurred in their facilities or
activities. The purpose of such investigations is not to jmnish or otherwise
combat actual or suspected violations of law — there may be no violation
in the worst disaster — but simply to discover all the causative facts in order
to devise precautions or procedures to minimize the future risk of similar
1204
iiiishiips or to minimixe the probable losses of life, limb and property. To improve
the chances for eliciting all information which might help to this end, witnesses
must be assured that a frank and complete statement, including not only
definite observations but also impression, suspicions, and theories, will not result
in injury to the witness, either directly or by causing loss or embarrassment to his
supervisor, his peers, his employer or other persons or gi-oups to which he may
rebite. There is no basis in the Act for affording the comprehensive assurance
needed to obtain the effective asistance of such witnesses unless the 4th exemp-
tion is properly interpreted. This is equally true where the witness is a serviceman
or government employee who is part of an agency as where the witness is from
outside the government. It is, of course, no solution to give assurances to obtiiin
needed information and then to dishonor the assurances.
Question 12. How does the Department cnrrenthj interpret Exemption No. 2 of
the F.O.I. Aet?
Answer. We interpret this exemption essentially as discussed in the Attorney
General's Memorandum at pp. 30-31.
Question 13. Under wh<tt authority under the F.O.I. Act can information he
withheld under a claim of executive privilege?
Anstcer. The withholding of information on the basis of executive privilege
does not rest upon any authority granted by the Act but rather represents an
exercise of power derived from the Constitution and which is controlled by the
President as the head of the Executive Branch. The Act itself states (5 U.S.C.
552 (c)) that it is not authority for withholding information from Congress.
Executive privilege is, of course, exercised with restraint, since under the doc-
trine of separation of powers each of the three branches of the government must
not only preserve its own independence but most respect the functions of the
other two.
Question 1.'/. Hoiv does the Department cnrrevtlji interpret the F.O.I. Act con-
eernintj the application of jiidieiul r-eview authority to sections 552 ia) (1) and
ia)i2)f
Answer. Except to the extent hereinafter noted, we do not believe that the
direct judicial review provision in subsection (a) (3) of the Act applies to sub-
sections (a)(1) and (a)(2). We believe the structure as well as the wording
of the Act support this view.
Subsections (a)(1) and (a)(2) of the Act taken together deal with a very
small fraction of the aggregate mass of agency records: each imposes duties be-
yond making records available: and each contains its own separately stated
sanctions, not Including a lawsuit, against a failure to comply with its own
mandate. The statutory language on judicial review is contained in (a) (3), and
it .speaks only of the enforcement of the duty imposed in (a) (3) ; the court
is authorized to forbid an agency from "withholding agency records". Never-
theless, under the wording of (a) (3) itself, an existing agency record of the
character described in (a) (1) or in (a) (2) but which has not been made available
becomes, in addition, a record within the coverage of (a) (3) and thus may be
requested, be the subject of litigation, and be ordered to be produced under
(a)(3).
Question 15. In testimony before the Natural Resources Subcommittee of the
Committee on Government Operations la.<it year, the Department of Justice
stated that under its internal rule 116-56. the total denial of ex parte discussion
of cases under litiyation applies to Conffressional committee requests. It is
understandable that public discussion of litifjation or vecfotiations should be
iliseourafjed. Hotrerer, interested committees of Conf/ress .'should be kept apprised
of such cases where important and far reaching public issues are being decided.
It is also the opinirm of the Chairman of this subcommittee that the American
Par Association, sanctions against ex parte discussion of matters in litigation
irould not apply to a request by a Congressional commiffrr rrhen the committee
guaranteed the eonfidrntiality of the mutter at is.'iue. Please supply to this
subcommittee a detailed explanation of the Department of Justice position on
Jiule 116-56.
Ansirer. As noted above, the P^reedom of Information Act does not provide
authority for withholding information from Congress. The departmental order
is not, of course, based on the Act. It is based in part on 5 U.S.C. 301 empowering
the heads of Executive departments to prescribe regulations regarding the cus-
1205
tody and use of departmental records and in part on the basic dnty of the
Executive brunch, including the Department of Justice, to assure that our laws
are faithfully executed. Since information concerning a case that is or may be
in litigation is collected and used by the Executive branch of the Government
to aid in the duty laid upon the President "to take care that the laws be faith-
fully exec-uted," and since extrajudicial disclosure of information of that nature
would not be consistent with the Department's litigating, law enforcement, and
other duly assigned responsibilities, it is the po.sition of this Department, as
reflected in D..T. Urder ll(>-.30, that requests including those from a Congressional
committee for such information, apart from a description of the status of the
case, should usually not be granted.
In this connection it is our belief that the premature disclosure of a ijending
case unjustifiably interferes with the Executive branch's litigative responsibili-
ties both in law enforcement and in other proceeding's. Counsel for a defendant
or other adver.se party could have no greater help than to know how much or
how little information the Government has, what witnesses or sources of in-
formation it can rely upon, or its plan for establishing its case. Nothing can be
more inherentlv prejudicial than to require a prosecutor to tip his hand. And if
the disclosure is prejudicial to the adverse party, a judgment for the government
may be vacated on the ground that the adverse party did not have a fair trial.
To "the extent that the adverse party may be entitled to advance information
from the Government, it can be obtained under the discovery rules, subject to
proper judicial review and control.
^Moreover, disclosure before a Congressional committee, in addition to prejudic-
ing the Government's chances of prevailing in the litigation, may subject the
disclosing attorney to professional criticism for violation of professional ethics
or to po.ssible sanctions such as citation for contempt of court. Disciplinary Rule
7-107 of the American Bar Association's Code of Professional Responsibility,
which substantially carries over Canon 20 of the former Canons of Legal Ethics,
generally prohibits an attorney from making any extrajudicial .statements, other
than reference to a matter of public record, relating to the litigation. This Rule
is applicable to attorneys of the Department of .Justice. See A.B.A. Opinions
on Professional Ethics. No. 199 (ir>40). Recently, the Department promulgated
regulations which substantially incorporate the principles embodied in DR
7-107. 28 C.F.R. 50.2 et seq.
It is true that under subsection "I" of DR 7-107, the rule is not binding in
those situations in which an attorney is participating in the proceedings of
legislative, administrative, or other investigative bodies. However, the reason
for this exception is apparently to accommodate the needs of these types of
proceedings, not to permit a destruction of the main part of the rule by the
device of communicating all the information to a legislative or other such body.
It is our view that the policy sought to be accomplished by DR 7-107 is entitletl
to respectful consideration even when its terms may not be controlling. In this
view, the rule should be read and interpreted as a whole, with a balancing of
the advantages and disadvantages of disclosures, even where the rule itself
would not prohibit disclosure. Accordingly, Order 11G-.56 represents a recognition
of the ethical responsibilities of an advocate not to make extrajudicial state-
ments relating to a pending case and as such it formulates a policy consistent
with the general policy and tenor of DR 7-107.
As to the suggestion that your subcommittee will keep this information con-
fidential, we have no doubt that this pledge would be given in good faith, and that
every known consideration would be weighed before making any such material
public. However, we believe a policy cannot be made anew because of personal
confidence of the Attorney General in the integrity and gocxl faith of a particular
committee chairman. We cannot be put in the position of discriminating between
committees or attempting to judge between them, and their individual members,
each of whom has access to information once placed in the hands of the committee.
Mr. CoPENiiAVER. The basic gist of my questions follow aloiiir the line
that the Department of Justice has been, in essence, made the legal
ach'iser for the Government in the area of freedom of information.
And your committee, which you discussed, is the one which other agen-
cies call upon for assistance in responding to requests for information.
And although you only serve in an advisory capacity, there is no
question that your advice has a great deal of influence. With that in
1206
mind, ^liat has disturbed me in your tostimony here today, as well as
in the Attorney General's rnomorandnni of 1967. when matched against
the court cases, is that there are a number of inconsistencies which exist
between the advice being rendered b}^ the Justice Department and the
interpretation of the law and congressional intent by the courts. Gen-
erally, the Justice Department has been more restrictive and caution-
ary in its interpretation of the law, which may have contributed to the
public being denied information they were entitled to.
My primaiy interest is in learning what you intend to do as you
review your position on tliis matter and examine your future role in
order to develop a more positive thrust in the interpretation of the
law :
Do you have any conmient on that at this time ?
Mr. Erickson. Well, are 3'ou suggesting that we update the 1967
memorandimi ?
Mr. CoPEXHAVER. Well, it is broader than that. I do not think the
Government should have an office which is the ultimate central con-
trol of administering the law. It would be very dangerous, and I am
trying to walk a middle line. But, since the Justice Department has
been established in this role, and you do serve as a consulant and other
agencies do come to you, I am concerned with the negative and overly
conservative attitude which Justice does seem to display in this area.
If I interpret the existing situation correctly, you do not even attempt
to maintain an eifective followup of the agencies which come to you
seeking your advice in order to detennine the disposition of the mat-
ter which you have ad\"ised them on. You do not appear to review and
survey the agencies that do not come to you regularly to see if their
actions are under appeal in the courts to an excessive extent. If you
took a more positive attitude in light of the court decisions which are
opening the law up in most areas, I think that we would find even
more information l">eing made available, less restrictions on informa-
tion, and less court suits.
And, of course, as Mr. Conyers has pointed out, the 50-50 ratio of
court losses by Justice is pretty bad, when I think the Justice Depart-
ment's overall batting average is in the neighborhood of 80 or 90
percent.
In the area of what is identifiable information under the Freedom
of Information Act or in areas having to do with the burden of proof,
or in areas as to what is to be maintained in confidence, or what is to be
an internal dociunent, or what is to constitute an investigatory fol-
lowup, the interpretation by the Justice Department is too restrictive
which is leading to an undue withholding of information.
So I would hope — this is not a speech I am making, but I would
hope that you would reconsider your role and see if you can, in review-
ing your operations, revise your memo and your procedures to really
develop a greater spirit of enforcement of the act.
Mr. Erickson. Well, I will just give a brief response, if I may. I
do not believe that our attitude is as negative as you might think. I
do not believe that to be the case. We are reviewing our own regula-
tions. Certainly consideration is being given and will be given to re-
vising the 1967 memorandum.
With respect to the historical and statistical information that you
are suggesting that we develop, we have, of course, the normal prob-
1207
lems of manpower and the capability of doing this. I think we are
doing a great deal now. I think the effort in the office is expanding,
and it may very well be that we are going to have to have more people
to do this sort of a f miction.
I think that is one of the limitations we have, but it is certainly well
witliin the many of the considerations and possibilities. We are look-
ing at that, and will look at it.
One final comment with respect to the questions you are submitting.
We certainly will be pleased to respond to them. Not having seen
them, however, I obviously have to have somewhat of a caveat, in
that if for some reason we cannot respond, well, I would want to
feel free not to respond.
Mr, CoPENHAVER. I would hope that you would not cite one of the
exemptions to the FOIA.
Mr. MooRHEAD. I had hoped to terminate by noon, but I yield to
]\f r. Phillips and then Mr. Cornish.
Mr. Phillips. Two very brief questions, Mr. Chairman. We have
been discussing the role of the freedom of information committee in
advising other agencies in matters relating to the act. Could you
describe what role tlie committee plays witliin the Department of
Justice? Is it a focal point of requests, or does it act pretty much
the same way as it does with other agencies ?
Mr. Erickson. I guess the latter is probably the better answer to
it, in that we act more or less informally as counsel.
Mr. Phillips. Do you work with your own public information
people in Justice ?
Mr. Erickson. Counsel, rather as the committee, and we wiU have
informal discussions, perhaps, with people in the Civil Division.
But, our primary function is outside of the Department. The prime
functions within the Department are to pass on appeals which are
presented to the Attorney General.
Mr. Phillips. Is it a formal sort of committee, as such, a structure,
or does it consist of Mr. Saloschin and the attorneys that are as-
signed—the attorneys that you have mentioned earlier? Do they serve
as a panel of experts, or is it a committee structured in the normal
sense ?
Mr. Erickson. Yes ; there is a committee.
Mr. Phillips. And it meets and keeps minutes ?
]Mr. Erickson. No ; it does not keep minutes. It meets upon call of
the Chair or any member, and it meets principally to consider requests
from other agencies for consultation in connection with a proposed
denial.
Mr. Phillips. Do you keep a transcript of the proceedings ?
Mr. Erickson. No ; we do not.
Mr. Phillips. There is no formality to it then ?
Mr. Erickson. No.
Mr. Phillips. That is probably the only committee I could think
of that would not keep such records. I asked because we are, in another
part of our hearings, going to be examining the role of these types of
committees, advisory committees, interagency committees, and so
forth, and to what extent they come under the act, itself.
One last question : In the response that you provided to the subcom-
mittee in our questionnaire last August, there were a number of denials
1208
of ini'oniKition requests hy credit reporting companies. I think most
all of tlieni were under exemption (b) (6) of the act. I am a little puz-
zled as to why the Retail Credit Co., for example, would ask
tlie Justice Department for information. What type of information
were they looking for ?
Mr. Erickson. I think Mr. Saloschin is particularly qualified to
respond.
Mr. PiiiLLirs. There Mere perhaps 10 or 12 cases invohing that
company and other companies. Were these FBI reports tliey were
looking for^
Mr. Salosciiix. My impression is, and I am not absolutely certain
of this, but I am fairly confident that these were etiorts to find the
addresses, home addresses of aliens for collection or credit purposes.
Mr. Phillips. So this would involve the Immigration and Natural-
ization Service?
Mr. Saloschin. Yes.
JNIr. Phillips. It is kind of strange because that company is hired
by many Government agencies to do investigative work for the Fed-
eral Government, and it just seemed like the cart was getting before
the horse.
I yield now to ]Mr. Cornish.
Mr. CoPiNisH. Thank you.
Now, Mr. Erickson, would you agree that under the Freedom of
Information Act that an American citizen has the right to know and
is not required to establish a need to kno\Y (
Mr. EmcKSON. Yes; it is certainly classified as — strike the word
''classified", referred to as the right to know law,
Mr. Cornish. I wish you would advise some of our Government agen-
cies of that fact, because they still have not gotten the message.
Mr. Erickson. We do occasionally — I mean not occasionally, very
often, advise them.
Mr. MooRHEAD. Mr. Erickson and Mr. Saloschin, we thank you very
much for your testimony and your patience with us. I think you have
been of great help, and I hope we will continue to work together in the
future to improve not only the language, but the administration of the
Freedom of Information Act.
When the committee adjourns, it will adjourn to meet on Tuesday
next, March 14, at 10 a.m., in room 2203 of the Rayburn Building, at
which time we will hear witnesses from the Administrative Conference
of the United States and a panel of individuals having experience
in the administrative M'orkings of the Free<:lom of Information Act.
Mr. Erickson. I just M'ant to say thank you, Mr. Chairman, and
members of the committee.
Mr. MooRiiEAD. The Subconnnittee on Foreign Operations and Gov-
ernment Information is adjourned.
(Mr. Erickson's prepared statement follows:)
Pkkpared Statement of Ralph E. Erickson, Assistant Attorney Geneuai.,
Office of Legal Counsel, Department of Justice
Mr. Chairman, we appreciate the opportunity to appear before your commit-
tee, and to tell you something about the work of the Department of .Justice with
respect to the Freedom of Information Act. Let me start by sayins that we arc
continually striving to improve our efforts in this important liekl of law and
government, but we also feel that on the whole we are doing a reasonable job at
1209
the present, considering tlie magnitude and complexity of tlie cliallenges which
face us. i 4! ii
Your committee has asked us for information on two dilferent asi>ects ot the
Justice Department's work in this field. First, you have indicated an interest
in the administrative procedures employed by our Department when processing
requests for access to our own records under the Freedom of Inf.irmation Act.
Second, you have requested an explanation of the Department's role in providing
legal services to other executive branch agencies concerning freedom of informa-
tion requests for their records.
Turning to vour first inquiry, our present regulations establish the procedures
for making and processing requests for access to Justice De[)artment records.^
These reaiilatiojis provide that requests shall be made on a fomi supplied by the
Department. Use of such a form often enables the Department to identify and
locate the requested materials much more quickly. However, failure to submit
a request on the prescribed form is not regarded as a bar to b.aving the re<iupst
reviewed, and such a failure normally does not delay the processing of a request
if the requester has otherwise provided information needed to process it.
Regardless of the fonn, the request may be sent directly to tJie Office of the
Deputy Attornev General, or to any office, bureau, division, or other unit of the
Department. In the latter case, the other unit will generally forward the request
to the Deputy Attorney General, unless the material requested is of a kind that
is customarily furnished without regard to the procedures under the regulations.
The request, when so forwarded, may or may not be accompanied by the records
sought, but there will usually be a reconmiendation for release or for denial of
access. Tliis recommendation is reviewed in the Office of the Deputy Attorney
General, who then sends a response to the requester granting or denying the
request or reporting that the Department does not have the records covered by
the i-equest.
A very similar procedure is followed for processing requests that were sent
directly to the Deputy. These requests are reviewed for completeness to deter-
mine if the record sought is identifiable. The Deputy Attorney General then for-
wards the request to the head of the appropriate unit of the Department for
review and recommendation. Usually, that unit is asked to draft a response to the
request. The proposed response is reviewed in the Deputy's Office, and the
requester is notified by the Deputy of the Department's action on the request.
One exception to the procedures I have just outlined occurs when requests are
made directly to the Immigration and Naturalization Service for its records. By
regulation (8 CFR ia3.10(b)), tlie Immigration and Xaturaliz/ation Service is
authorized to grant requests for specified kinds of records without forwarding
such requests to the Deputy Attorney General. However, when the Immigration
and Naturalization Service proposes to deny a request, the case must be reviewed
and acted upon by the Deputy, as previously explained.
Our regulations also authorize the collection of fees. Charges are prescribed
for .seai-ching for and copying records, or for monitoring the requester's ex-
amination of the materials sought. The charges are computed by the office that
initially reviews the request. However, it should be noted that the failure to
]iay the fee is not necessarily a bar to access. The Department does not collect
fees in an amount that would equal the time and effort expended in searching for
records, monitoring examinations of materials, and providing copies of records.
In one recent instance, the cost to the Government to process a request was esti-
mated as well in excess of .$.^.000 but only about $ir)0 was collected.
Statistically .speaking, the Department has received approximately oHTi formal
j-eqtiests for access to our records under the Freedom of Information Act. from
July 4, 1967 through July 7, 1971. Approximately 75 i)ercent of tho.se requests
were directed to the Immigration and Naturalization Service and the Bureau
of Prisons.
At first glance, the total number of requests received by our Department may
api>ear to be unusually small when compared to the number which we under-
stand other agencies have received. The disparity may be explained in part by the
varying methods which different agencies may employ in determining whether
a request is to be considered as one under the Freedom of Information Act.
Our regulations provide that all information that was made available to the
public before the act was passed shall continue to be made available. Generally,
only requests for material which might fall within one of the act's nine exemp-
1 28 CFR Part 16.
76-253— 72— pt. 4 14
1210
tions are likely to be treated as Freedom of Information Aet requests. Thus,
even though a person may request access to Department documents, and spe-
cifically refer to the Freedom of Information Act in his request, we continue
to make records available that were available previously without counting the
request as a freedom of information request. Apparently, other agencies may
include such requests within their freedom of information statistics, or they may
even include all requests for information whether or not there would be any
question under the act.
Our statistics also show that access to the requested records was granted in
whole or part in 224 of the cases, and that access was denied in the remaining
311. Our denial rate of approximately 60 percent may appear disproportionately
high when compared with other agencies. However, we do not consider our rate
to be disproportionate for a number of reasons.
First, as just explained, many of the requests where the record was released
were requests that involved information of a kind made available before the act
wa.s passed, and these requests are generally not considered as freedom of in-
formation requests. The omission of this substantial category of granted requests
naturally has a substantial effect on the statistical balance.
Second, because of our law enforcement responsibilities, the Department must
compile and maintain many investigatory files. Some of the freedom of informa-
tion requests we receive seek material contained in these files. Information of
that nature is expressly exempt from disclosure under the act, and a discretion-
ary release of such material is not often considered warranted.
Finally, our statistics reveal that 247 requests were refused pursuant to the
"invasion of privacy" exemption. The vast majority of those cases concern the
Immigration and Naturalization Service. These are cases in which requests are
made for the names and addresses of aliens, often by finance and collection agen-
cies, .sometimes by alleged friends or relatives. It is felt that such disclosures
would often constitute "a clearly unwarranted invasion of personal privacy."
However, even where such requests for personal information are denied, the
alien is usually notified that a request has been made. The alien can then volun-
tarily make contact vrith the requester.
Normally the case is closed once the Deputy Attorney General grants a request
and the records are made available. However, where a request for information
is denied in full or in part by the Deputy Attorney General, the regulations (28
CFR 16.7(c)) permit the filing of a written appeal with the Attorney Gen-
eral within 30 days of the date of the initial decision. Of the 535 formal requests
received through July 7, 1971. appeals were filed in 14 cases.
Upon receipt of an appeal, the case file is obtained from the Deputy Attorney
General's Office and is forwarded to my office, the Office of Legal Counsel, for
review. Sometimes this review can become an extensive process. It generally
involves careful legal analysis, and it may require the unraveling of a lengthy
and obscure appeal letter. In addition, it may involve initiatives by us, seeking
the cooperation of other parts of the Department in providing, for example, a
reexamination of voluminous records covered by a request, and apparently of
an exempt nature, to see if some of them can nevertheless be made available to
the requester as a matter of administrative discretion or policy.
Upon completion of our review, our Office sends a recommendation to the At-
torney General for sustaining, reversing, or modifying the Deputy's initial de-
cision. The Attorney General's decision is final. Out of the 14 appeals just men-
tioned, the denial by the Deputy was modified by the Attorney General in 4 cases ;
the Deputy's action was sustained in six cases, in one of which the appeal was
unsuccessful because the records were nonexistent; and four cases were still
pending on appeal at the date of the survey, three of which have since been
resolved.
Before leaving the subject of the Department's administrative processing of
requests for its own records, I would like to emphasize that the review and rec-
ommendation procedures which I have described involve the personal attention
of high level and well qualified pei'.sonnel. In other words, our handling of these
matters is by no means a perfunctory process.
This might be a good point — after having discussed our processing of requests
for our own departmental records and before turning to our functions in assist-
ing other agenc-ies in processing requests for theirs — to say something about our
litigation work. The Civil Division of our Department handles the litigation for
most Government agencies when suit is filed \inder the Freedom of Information
Act. A status report indicated that as of January 1, 1972, the Civil Division had
1211
46 Freedom of luforniatiou suits pending in some stage of litigation. This rep-
resents a slight increase over the 41 cases pending a year earlier. Only three of the
4t) currently pending cases involved suits brought against the Justice Department
for its own records, two of them seeking FBI tiles on the Kennedy assassination.
The remainder of the 4(5 cases were brought against a broad cross-section of other
Government agencies. It should be pointed out that since there are a few Govern-
ment agencies which handle their own litigation, there may^ be slightly more
cases pending than the 46 listed in the Civil Division's report."
It is estimated that the Government's position is sustained in roughly 50
percent of the cases which are litigated nationwide, although the Government
has very little success in the court of appeals for the District of Columbia cir-
cuit. The issues most frequently litigated, naturally, are the exemptions per-
mitting the Government to withhold access to requested records. A surs-ey
uf 32 reported court cases involving the Freedom of Information Act (through
330 F. Supp. and 499 F. 2d) indicates that the exemptions most frequently at
issue in litigation are exemption 4 (relating to certain kinds of information
given to the Government in contidence) — 8 cases; exemption 5 (internal Govern-
ment communications) — 14 cases; and exemption 7 (investigatory files compiled
for law enforcement purposes) — 9 cases. Other exemptions which were at issue
somewhat less frequently include exemption 1 (relating to certain national
defense and foreign policy materials) ; exemption 2 (relating to internal pro-
ceilures) ; exemption 3, an exemption based on other statutes; and exemption
6. which is designed to protect personal privacy in medical, personnel, and
other files.
The Department's efforts to minimize the amount of litigation against all
Government agencies in this field, and to minimize the need for requesters to
file suits, were among the reasons which led to the formation of our Freedom
of Information Committee, which I will discuss in the next part of my statement.
Let me turn now to describe our role when the records of other agencies are
sought vmder the Act. In such cases, our functions are limited by the decentral-
ized administration of the act, as prescribed by Congress, in requiring "each
agency" to act on requests for its own records. In other words, we generally
have no authority to compel another agency to comply with a reque.st for its
records. Subject to this limitation, the functions of the Justice Department
in freedom of information matters are counseling, coordinating, and represent-
ing other agencies in court. Within the capacity of our small staff and the pres-
sure of other work, we are trying to perform these functions as best we can.
In describing our counseling and related work, I will first outline very briefly
the history of our efforts which led to the creation of our Freedom of Information
Committee. Then I will discuss the work of the committee: how it functions,
the amount of its workload, the kinds of records involved, the sources of the re-
quests for access to them, the pattern of the committee's reactions or advice, and
finally an estimate of its effect on the administration on the act.
During the year after the act was passed and before it went into effect in
July 1967, the Office of Legal Counsel prepared the Attorney General's memoran-
dum on the act — the familiar 47-page blue booklet dated June 1967 — to assist
other agencies in applying the act, and we also handled many requests for
assistance or advice from agencies on formulating their own regulations under
the act. These major tasks were performed very largley by Mr. Wozencraft, Mr.
Mondello, and Mr. Maxson, all of whom left the Department some years ago.
There followed an interim period of roughly 2 years, 1968 and 1969, in which we
began to be increasingly concerned that some agencies might be engaging in
dubious or unwarranted denials of requests under the act, leading to litigation
burdensome both to the requester and to the Government. This feeling crystallized
after the July 10, 1969, decision in the famous hearings aids case.^
The impression was sharpened that same summer after various informal re-
quests for assistance and advice reached us from agencies that were receiving the
attentions of Mr. Nader and his associates. The situation was discussed by this
2 It has been roughly estimated that a total of about 200 freedom of information suits
have been filed since the act was passed. Those no longer pending have been decided,
settled, or dropped.
'i Consumers Union v. Veterans' Admin isiration, 301 F. Supp. 706 (S.D.N.Y. 1969),
appeal dismissed as moot, 4.30 F. 2d I'SS?. (2 Cir. 1071). In this case flic VA denied a request
for records of Government tests on commercial hearing aids that were being considered
for VA procurement. After a decision against the VA in the district court as to part of
the records sought, which was appealed by the plaintiff in order to obtain the rest of the
records, the VA turned over all the records, and the appeal was dismissed as moot.
1212
Office with the Civil Division, which as I iiulicated handles litigation under the
act. On December S, 1969. the Department sent a memorandum to the general
counsels of all agencies over the signatures of ilr. Rehnquist and Mr. Ruckles-
haus, at that time the heads of the Office of Legal Counsel and of the Civil
Division. The memorandum asked the agencies to consult the Department before
issuing a final denial under the act if there is any substantial possilnlity of litiga-
tion adversely affecting the Government. The memorandum also created a .Justice
Department Freedom of Information Committee of five lawyers, three in this
Office and two in the Civil Division, to provide these consultations.
Since creation of the committee 27 months ago, the counseling and coordina-
tion functions of the Justice Department in freedtmi <tf information matters
have been largely coextensive with the work of this committee. An interesting
report on the committee's work during its first S months was made by its cliair-
man, Robert Saloschin, who is with me today, at a symposium of the American
Bar As.sociation's administrative law section. This symposium was published
in the March 1971 Administrative Law Review, and we will be glad to provide
you with a copy of it.* One of the statements in Mr. Saloschiu's x'eport warrants
repeating today, namely, that the committee in its work aims for a minimum of
formality and a maximum of speed.
Through March 1, 1972, just about a week ago, we estimate that other agencies
of the Government have contacted the committee lietween 400 and 500 times on
matters directly or indirectly related to its work. This estimate is necessarily a
rough one, because these contacts are almost invariably by a telepiioiu' call,
usually to the chainnan, and some calls may represent related contacts on the
same matter, or may cover several matters, or may prove to have little relation
to committee work. Nevertheless, these numerous contacts must be screened to
see if they wan-ant a committee consultation, or can be disposed of without tak-
ing the committee's time. The estimated 400 to 500 contacts which I mentioned
have led to approximately 120 committee consultations. A consultation is gen-
erally held when the agency has reached the point of tentatively deciding to issue
a final denial of access to its records under the act. The rate of consultations
seems to be accelerating, and is estimated to be running now at roughly between
75 and 100 a year at the present time.
These 120 con.sultations have involved about 30 different agencies, or a some-
what larger niunber if constituent agencies within a large department are
counted separately. An approximate numerical breakdown of the total number
of consultations among the various agencies is being prepared for your informa-
tion.
Consultation procedures are usually quite simple. About 80 percent of all con-
sultations are conducted by a face-to-face meeting of the committee with repre-
sentatives of the agency. Agencies usually send a lawyer and one or two operat-
ing officials to a consultation, although the representation may vary from just
one person to several and occasionally includes both the general coun.sel and the
head of tlie agency. Typically the committee is represented by at least three and
usually four of its members. All five members are of course notified of every
meeting, and sometimes all five attend.
Speed is a major goal in all the committee's work, and it is usually obtained.
A meeting usually occurs within less than a week of the phone contact which
led to it. and some are held the very next day. Sometimes papers tJiat will be
discussed at the meeting are shown to committee members beforehand.^ Tlie
meetings vary in length from about 30 minutes on simple matters to 2 hours or
more on complex ones. No minutes are kept, although any participant is free to
take his own notes. The agencies usually get the committee's reaction immedi-
ately, from the discussion during the course of the meeting, although in some
cases there may be further telephone calls or other contacts after a meeting.
As for the remaining 20 percent or so of committee con.sultations which do not
involve a face-to-face meeting with agency representatives, the usual procedure
is tliat papers from the agency are circulated to the committee members, who
* Two of the ponimittfp member.s listed in the symposium report, and in the Dec. S, 1969,
memorandum. Robert Zener of the Civil Division and Steven Lockman of OLC, have since
left the Departnient and have been replaced on the committee by Walter Fleischer of
Civil and Fredericka Paff of OLC. Since I came to the Uepartmenit last autumn. I have
served as the ex officio chairman of the committee. Thp chairman. Mr. Salo.schin, is an
e.VDerienced lawyer in our office who began working on tliese matters some months before
the committee was established.
^ One member of the committee follows the practice of examining only papers other than
the records In dispute.
1213
read thejii and sivo their comments to the chairman, and if no further discussion
is needed the chairman gives the agency the committee's collective reaction by
telephone.
Now that I have described the committee machinery, a few words about the
grist that goes through tl\e committee's mill. As you can imagine, the various
types of agency records involved in committee consultations cover a very broad
.spectrum ; the same is true of the sources of the requests for access. Let me refer
first to the records, then to the sources of the requests.
It is almost impossible to describe the range of records covered by 120 consul-
tations; indeed, a single consultation may sometimes involve thousands of rec-
ords of several types. ]Moreover. a great deal of correspondence, discussion,
search, and analysis may be required just to determine what is the nature of tlie
records which may be within the ambit of the request. This is especially likely to
be true of reiiuests that are less specific and more categorical in their terms.
Nevertheless, within these limitations, and with considerable trepidation about
tlie value or accuracy of summary descriptions, here are some illustrative
samples :
Cost and income studies of producers in a commodity subsidy program; regu-
latory food inspection records: records of a defunct l>roker ; a list of growers
of a certain fruit; applicatiims to participate in regulated l)usine.'<s activities:
records of private commodity sales : various aircraft accident i-eport documents ;
<iertain welfare benefit records: records of tests or repair experience on various
goods including appliances, medications, foods, transportation equipment, and
toys ; records pertaining to the development and regulation of energy facilities
and resources; records of complaints or inve.stigations of po.ssible fraud or
(ither wrongdoing by servicemen, civil servants, government contractors, con-
tractors' employees, and others; records of the home addresses or take-home
pay of government and of private industry personnel: abandoned applications
for parents; internal government staff communications of all kinds; individual
respon.ses to questionnaires about personal motives for career changes; various
types of records of goverinnental investigations for factfinding and other pur-
poses after casualties involving government activities: instructions or guidance
to government negotiators, auditors or other agents; records about plans for
the pnssil)le closing or opening of military or other government facilities; cor-
porate information in sujiport of claims or contract proposals to the govern-
ment together with agency evaluations of them : applications for scientific or
other research grants together with evaluations of their probable merits; eco-
nomic forecasts and property appraisals: agency communications with foreign
government ofiicials and with State goverament officials; reports of panels
.•ippointed to decide whether an employee should be examined by a psychia-
trist; liack.ground reports and recommendations about applicants for positions:
^■arious records of advisory groups or of inter^-iew programs that were desisrned
to develop or collect facts, or opinions in order to improve air siafety
regulati(»n or some other Federal program ; records of performance by con-
tractors: records in civil rights matters; i-ecords of inquiries by an agency
into the efi^ciency of one of its own units: reviews of a State's operations in a
ioint Federal-State program; records of Indian tril)es: studies of economic con-
centration in certain industries; preliminary records for planning a reduction
of atrency personnel; market surveys; leave records of government employees
holding second jobs; records of private participations in goveniment-insured
loans ; correspondence between former Presidents and foreign leaders ; records
of activities under the antidumpins: law; and inquiries from importers about
the dutiabilitv of certain foreign ]n-oducts.
The descriptions of records I have just given you or described to you may
seem a bit overwhelming, but they are necessarily superficial. They do little
more than suggest what the records themselves may contain, how they were
made, and how they are used. Yet. all of these factors— the contents, origin,
iud use of the records — may be important in trying to decide whether tbev
Tire exempted from compulsory di.srilosure under the act, and also in decidinrr
whether, even if so exempt, they should nevertheless l>e relea.sed. as a matter of
policy or discretion. The latter decision, of course, is one of the asrency. but
the committee will sometimes suggest to an agency thar difficult decisions about
the exempt status of records may become unnecessary if there is a discretionary
release
I understand there i.s also some interest in the kinds of sources of the reqnest.s
that reach the committee. We have only an incomplete picture of the kind-^ of
1214
sources of the requests that reach the committee; for instance, we may not
always know whether the requester is a lawyer, or if he is we may not know
whom he represents, and even if we know who his principal is, we may not know
the nature of the latter's interest. Such matters, of course, need not be dis-
closed by a requester under the act.
Within these limitations, and allowing for some overlapping of categories
of requesters, the sources of the requests which led to the 120 committee consul-
tations have apparently included the following : about 17 from business firms,
including defense contractors, unsuccessful bidders, and regulated companies ;
about 17 from various "public interest" groups such as those of Mr. Nader ;
about 15 from Government employees, servicemen, or unions ; about 14 from
newspapers, reporters, or other media sources ; about 10 from scholars or writers :
about 10 from litigants in unrelated civil cases such as accident damage suits ;
about eight from "cause" groups such as peace, civil rights, etc. ; four from trade
associations : four from present or former legislators ; four from persons who
were the subjects of the law enforcement records which they requested : and
the rest generally from lawyers and other citizens about whose interests we
have no information whatsoever.
What has been the pattern of the committee's reactions to the cases which
the agencies have brought to it? Here again, there are so many complexities,
qualifications, and uncertainties that' an attempt to summarize these reactions
with any precision would probably be misleading if not impossible. But broadly
speaking, our estimate of our own experience is that the committee's reactions
in its 120-odd consultations can be grouped into the following general pattern :
In about 40 instances, or about one-third of the consultations, the committee's
reaction has been that the records the agency was planning to withhold were
clearly or very probably exempt from compulsory disclosure and would be so
held in ca.se of litigation. Such a reaction, like most of the committee's reactions,
is usually reached only after both an analytical and a judgmental appraisal of
the controversy and its circumstances. Even when denials seem clearly author-
ized, the committee may work in the direction of greater disclosure, as by
reminding the agency that an exemption is only an option to deny, not a direc-
tive to do so. The committee also will occasionally suggest revisions in the
proposed letter of final denial, explaining more clearly the reasons for the
action. As a further comment about these clearly exempt cases, the agency
may have decided before consulting the committee to give the requester much
of what he wants, thus helping to narrow the issues and perhaps strengthening
the c-ase for denial of the remainder.
In a second one-third of our consultations, the committee's reaction has been
that some or all of the records that the agency was planning to \^'ithhold must
be regarded as not exempt or probably not exempt and should be released. This
second group of about 40 instances breaks down further into about 15 cases
where the records in dispute seemed essentially mixed — some probably exempt
and some not — and about 25 cases where the committee told the agency that
the records in dispute must be released or that the case for withholding them
was very weak, although sometimes with the exception of a small amount of
material which might be withholdable because of recency, names or identifying
details, or other reasons.
The remaining third of the consultations consists chiefly of inbetween cases,
those in which the dominant note in the committee's reaction, after reviewing
the various factors pro and con, was doubt or uncertainty. This group, how-
ever, also included a few instances in which tlie committee's principal reaction
was to suggest an alternative solution or a practical accommodation of the
dispute. The doubtful cases often involve situations in which the committee
felt the agency had sound legal grounds for the propose<l denial. ))ut that never-
theless there would be con.siderable risk of defeat in case of litigation. Also
included in this uncertain group are situations where an analysis of the terms
of the law seems to point one way but the facts, viewed in the light of current
ideas of public policy, seem to point the other. I should add that such elements
of uncertainty may also be present, although in lesser degree, in the more
numerous cases where the committee definitely feels that rhe records in ques-
tion are. or are not, exempt.
To what extent do the agencies consult the committee as they were asked to do
in the Department's 1069 memorandum, and to what extent do they follow its
advice? While we do not have fixed procedures designed to check up on these
1215
two points, our experience indicates a good degree of agency respect for our
efforts.
"We believe that, by and large, the agencies generally do get in touch with us
when they have situations covered by the 1969 memorandum. Indeed, as the
estimated 400 to 500 agency contacts mth the committee that I mentioned ear-
lier would indicate, they also get in touch with us on freedom of information
problems that may technically be outside the terms of the 1909 memorandum,
such as cases at an initial stage, oases where they have not yet tentatively de-
cided to deny, situations where requests for access are only anticipated, and
similar situations. These contacts, even when they do not lead to consultations,
are nevertheless a significant adjunct to the committee's main work, because
the cliairman can often give some preliminary guidance immediately, or after
discussion with one or more members of the committee, and that may solve
the problem. The steady flow of these agency contacts or inquiries reinforces
our belief that most agencies are generally faithful to our request in the 1969
memorandum.
We realize, of course, that there may be some variation among agencies in
consulting us, and even variation within a given agency from time to time. If
there are lapses, they may be due to factors like personnel turnover, oversight,
or other reasons, such as for example an agency feeling that there is no need
to consult in a situation which seems to them clearly identical to those previ-
ously discussed.
As to whether agencies that have consulted us follow our advice, it is our
definite impression that they generally tend to do so. Here again we do not
have any routine procedure for checking up on whether our advice is followed.
Yet there are many times when the remarks of agency representatives during
a committee consultation, or our subsequent contacts with the agency, leave little
doubt that the agency will make available records which we have told them
would probably be held not exempt. It is also quite likely that they will deny
access when we have told them they were legally free to do so, because they were
tentatively planning to deny access when they consulted us. However, in that
substantial minority of cases in which the committee's final reaction was un-
certainty, it would be hard to measure whether the agency followed our advice,
although we believe a reaction of uncertainty has some influence in the direc-
tion of disclosure. On tJiis whole question of following our advice, however, I
must point out that it is just advice, not an order, that those who attend the
committee consultations are not necessarily the agency decisionmakers, and
that Congress in the act left the administrative decision up to each agency with
respect to requests for its own records.
In conclusion, we at Justice are working with you in Congress as participants,
within our own branch of Government, in the task of trying to insure the success
of the Freedom of Information Act The act is an epochal step in democratic
government. Our exi)erience indicates that the act is working, but that much
additional effort, experience, good judgment, and good will may be needed to
keep it working and to improve its operations. You may be assured the Depart-
ment of Justice will continue to give its best efforts toward a fair, reasonable
and effective administration of the act.
(Wliereiipon, at 12 :05 p.m., the hearing was recessed, to reconvene
at 10 a.m., Tuesday, March 14, 1972.)
U.S. GOVERNMENT INFORMATION POLICIES AND PRAC-
TICES—ADMINISTRATION AND OPERATION OF THE
FREEDOM OF INFORMATION ACT
(Part 4)
TUESDAY, MARCH 14, 1972
House of REPRESEXTATmES,
Foreign Operatioxs ax'd
goverxmext ixformatiox subcom-aiittee
OF THE Committee ox Goverxmext Operatioxs.
Washington, D.C.
The subcommittee met, pursuant to recess, at 10:15 a.m., in room
2203, Rayburn House Office Buildino-, Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present : Representatives William S. Moorhead, John N. Erlenborn.
and Paul N. INIcCloskey, Jr.
Staff members present: William G. Phillips, staff director: Norman
G. Cornish, deputy staff' director: and William H. Copenhaver,
minority professional staff'. Committee on Govermnent Operations.
INIr. Moorhead. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
In our fourth day of the current series of hearings on the status of
the American people's right to know the facts about their Govern-
ment's business, we intend to explore one of the more vexing problems
coming out of the operation of the Freedom of Information Act. This
is the problem of the fees charged by agencies for the searching and
copying of records requested by the public. The Freedom of Informa-
tion Act in subsection (a) (3) specifically authorizes the establish-
ment of user fees as a means of recouping the cost of providing the
requested information.
At this time, all agencies affected by the act have established a fee
schedule. The most striking overall impression gained from an over-
view of these schedules is their lack of uniformity. The fees charged
to the public for copying of documents ranges from a low of 5 cents
per page to a high of $1 per page. ]Most agencies charge a fee of from
$3 to $5 per hour for the time involved in searching for the requested
information, and many agencies assess a fee of from $3 to $5 for the
certification of requested records.
The subcommittee has also found that the incidence of charges
levied under the published fee schedules are similarly erratic. In one
instance an executive department has alleged that information for
which a search fee of up to $20,000 could have been chargecl was fur-
nished for only the cost of copying. In other cases, it appears that
(1217)
1218
departments have estimated fees of up to $100,000 for the compilation
of available information. The conclusion is that the departments in
question were using the fee schedule as a means of effectively denying
the information to the party making the request.
Although the authority to impose fees was designed to offset the
cost of the Government for the provision of requested information, it
is questionable whether this intent is effectively being carried out. One
regulatory agency did a statistical study of this problem. About 34,000
items for which a fee could have been charged were handled during the
fiscal year in question. The fees collected would have amounted to
about $17,000. However, some 11,000 bills would have been mailed to
collect these fees. Since it costs this agency $1.60 to send out a bill,
the cost of billing would have been about $17,600 — or about $600 more
than the amomit they could have collected. At last word, the agency
is still pondering the problem.
Many agencies have circumvented the copying cost problem by
leasing copying facilities to private companies who charge the public
for the services. The charges — which obviously include a profit margin
for the company — are also a matter of concern to this subcommittee.
Today, we will hear testimony from a number of witnesses who
have detailed knowledge of and experience with this problem.
Our first witness is the Honorable Roger C. Cramton, Chairman
of the Administrative Conference of the United States. Appearing
with Mr. Cramton is Mr. Jolui F. Cushman, Executive Director of
the Administrative Conference. The Administrative Conference of the
United States is an advisory body charged with developing improve-
ments in the legal and administrative procedures of the various Federal
agencies and departments.
In 1971 the Conference promulgated recommendation No. 24 en-
titled "Uniform Implementation of the Freedom of Infonnation Act."
This recommendation, coupled with a detailed study of the problems
inlierent in the operation of the act, was forwarded to all agencies.
Chairman Cramton will address himself to the results of this and
other related recommendations this morning.
I would like to add at this time that the subcommittee is most grate-
ful for the assistance provided in the preparation for these hearings
by the Administrative Conference through its Executive Director,
Mr. Cushman.
Also to appear before the subcommittee this morning are Mr. Reuben
Robertson, an attorney who is intimately familiar with executive
department activities in the information field ; Mr. Harrison Wellford
and Mr. Peter Schuck, both from the Center for the Study of Re-
sponsive Law.
^h\ Wellford and ]Mr. Schuck have been litigants under the Freedom
of Information Act and ha\'e had extensive experience with bureau-
cratic delay and. evasion by departments unwilling to provide informa-
tion to the public.
Mr. Bertram Gottlieb of the Transportation Institute also will tes-
tify this morning.
I will now call on Mr. Cramton to answer the question of today: to
fee or not to fee.
^Nlr. Cramton.
1219
STATEMENT OF ROGER C. CRAMTON, CHAIRMAN, ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES; ACCOMPANIED BY
JOHN F. CUSHMAN, EXECUTIVE DIRECTOR
Mr. Cramtox. Mr. Chairman, I am delig^hted to appear at a hear-
ing at which such vital matters as those spelled out Ijy the chairman in
his opening statement are under consideration.
The Administrative Conference has been devoting a great deal of
effort and activity to the Freedom of Information Act and its imple-
mentation and to other problems of citizen participation in and public
knowledge of, governmental activities that are closely related to the
administration and effectiveness of the Freedom of Information Act.
I would like to start, by outlining briefly some of these other activities
of the Conference before turning to a more detailed discussion of
recommendation No. 24.
The right of the public to know about the activities of its Govern-
ment and to \ia,ve the opportunity to participate in a meaningful way
in j)roceedings which establis^h major policies are matters wliich are
at the core of a number of significant Conference recommendations.
This subcommittee is familiar with recommendation 16 of the Con-
ference which urges elimination of the exemption from the rulemaking
provisions of the Administrative Procedure Act of proceedings which
relate to "public property, loans, grants, benefits, or contracts." The
Conference, concluding that many actions falling within the exemption
involved matters of great public interest and concern, called for legis-
lation to repeal the exemption and also for agencies voluntarily to
utilize public notice and comment before promulgating rides of this
character. Experience thus far justifies the Conference's prediction
that broadened public participation in such important matters as the
use and disposition of i)ublic lands would lead to more informed gov-
ernmental rulemaking.
I am pleased to report that recommendation 16 has received wide
acceptance by the agencies most directly affected. In this endeavor, our
efforts at implementation were substantially aided by tlie inquiries
this sul)committee sent requesting a report on what steps agencies had
taken to comply. Virtually all rulemaking involving public property,
loans, grants, and benefits is now open to public notice and comrnent;
only with respect to public contra^^ts does the older practice continue.
More recently the Conference dealt broadly with the question of
public participation in formal administrative proceedings. It recom-
mended that agencies should encourage and assist the participation of
groups that otherwise would be inadequately represented. In addition,
each agency was asked to adopt procedures which minimize the cost
of public participation by such steps as making transcripts available
at a minimal cost of reproduction. Perhaps in questioning we can
explore that important matter more fully. It is a matter on which
the assistance of this subcommittee in pressing agencies for compli-
ance would be of great benefit.
The National Environmental Policy Act of 1969, of course, has been
a strong force in the same direction of citizen participation and open
government. The act, as you know, requires Federal agencies, when
engaged in major actions that will substantially affect the environ-
1220
ment, to draft, circulate, and receive comments on environmental im-
pact statements. This procedure has had the effect of opening formerly
secret areas of governmental decisiomnaking to public notice and
connnent. The recent newspaper discussion of the underground test-
ing on Amchitka Island is merely one example of an important public
decision which for the first time has been opened to public scrutiny
by the requirements of XEPA.
It is my view that miderlying that statute is a similar objective to
that underlying the Freedom of Information Act. The two work in
the same direction and reinforce each other. They dovetail, in effect,
as pait of the quest for broadened public participation in and knowl-
edge of Government.
The conference's concern for broadened public participation in the
administrative process has extended to the question of representation
for otherwise inadequately represented groujis. An early conference
recommendation (Xo. 5) dealt wdth the need for more adequate repre-
sentation of poor people in agency rulemaking.
I have subsequently' worked with congressional committees, includ-
ing subcommittees of the Committee on Government Operations, in the
development of proposals to establish a new Federal agency to advo-
cate the interests of consumers in proceedings before other Federal
agencies.
Our interest in public information practices has also extended to the
improvement of Government publications. I do not have to tell this
subcommittee that the Federal Register, although of great use to
lawyers and specialists as an official record, is not of great helpfulness
to citizens and laymen in terms of keeping track of what the Govern-
ment is doing. Most of the population does not even know the Federal
Register exists, to say nothing about meaningfully using it.
In order to bring into the forefront the vast amount of useful in-
fonnation which the Federal Register contains, the Administrative
Conference recommended the publication of a consumer bulletin. Such
a bulletin is now published by the Office of Consumer Affairs. It has a
wide circulation and provides timely information in laj-nuxns language
about a great many matters of general public interest pending before
( jovernment agencies.
Finally, let me mention in passing the Conference's contiiniing con-
cern with related problems such as : (1) broad discovery rules in agency
proceedings; (2) the need for agencies to articulate their rules and
policies in deciding cases or in midertaking any action; and (-j) the
need for paring down the degree and scope of discretion that exists in
many parts of the informal administrative process.
Three recently completed studies of the Conference which deal with
specific functions of Government that are part of this informal admin-
istrative process fall into the third category. One deals with the "no
action" letter procedures of the Securities and Exchange Commission;
another deals with the practices of the Renegotiation Board; and a
third deals with change-of-status applications l^efore the Innnigration,
and Naturalization Service. A number of other studies are now pend-
ing which deal with important aspects of the informal administrative
process.
The Freedom of Information Act was a major landmark in tlie citi-
zen's "right to know" about Government. It shifted the burden of
1221
proof to the Government to establish the applicability of one of the act's
nine exemptions before a docnnient could 1)e withhelcl from any mem-
ber of tlie public. Wliile the agencies did not revise their information
policies 180 degrees overnight, tlie act has worked a substantial change
in the attitudes and i)ractices of nearly eveiy Fedei^al agency. I have
the impression, that I think can be supported, that information is now
more widely and easily available than it was prior to the act's effec-
tiveness in 1967. In short, I think the Information Act can be viewed
as one of the success stories of modern government in an era in which
the credibility of government and lack of success of many governmen-
tal measures are foremost on people's minds.
Despite the substantial progress, however, uncertainties and prob-
lems remain in abundance. Neither the act nor its judicial gloss make it
entirely clear what information falls within the broadly worded
exemptions. Agencies and reviewing courts alike have had difficulty
in dealing with an enactment that purports to take no accomit of the
citizen's reasons for requesting information and the use that he plans
to make of it. Complaints continue to abound of foot dragging and
unnecessary redtape on the part of some agencies in making informa-
tion available that the statute clearly contemplates should be made
available.
In this context, it was the view of the Conference that we could make
an impact on implementation of the act by reviewing one of the most
recently available tests of an agency's general intent to comply with
the act by evaluating the regulations that an agency publishes in the
Federal Register which sets forth the means by which it purports
to comply with the act. For the purpose of this study, we had the
benefit of the services of a qualified academic consultant. Prof. Don-
ald A. Giannella of the Villanova Law School. Professor Giannella,
on the basis of a very large-scale study of existing agency practices,
rules and actions took the position that the procedures by wliicli Gov-
ernment carries out the act's requirements are important, and that
further effort to handle information requests quickly, efficiently, and
adequately was needed. Also, he concluded that to explain what the
Go\'ernment does in dealing with information requests is extremely
important.
Kecommendation 24, adopted in May 1971, is in three parts. Part
A sets forth five general principles that agencies should conform to in
handling requests for information.
These are :
( 1 ) a restrictive interpretation of the exemptions authorizing non-
disclosure ;
(2) full assistance and timely action on public requests for infor-
mation ;
(3) disclosure to the fullest extent possible of all but exempt parts
of documents;
(4) specification of reasons when requests for information are de-
nied, together with a statement as to how the denial may be ap-
pealed and to whom ; and, finally,
(5) minimum fees for providing information, which should be
waived when it is in the public interest to do so.
Part B of the recommendation states that each agency should
adopt procedural rules to effectuate the above principles and sets
1222
forth detailed guidelines as a model of the kinds of procedures that
are appropriate for this purpose.
Part C calls upon each agency to establish a fair and equitable fee
schedule relating to the provision of information. It further pro-
poses that a committee of representatives from the Office of Manage-
ment and Budget, the Department of Justice, and the General Serv-
ices Administration should establish criteria for determining what
are fair and equitable fees.
Recommendation 24 was conmiunicated to all Federal agencies.
They were asked to consider it seriously. They were also asked to re-
spond to us by a given date as to the extent to which they had taken
action pursuant to it and what further plans they had for such ac-
tion. We have now received comments from all but a handful of Fed-
eral agencies.
LooKing first to the five general principles of the recommendation,
the record of compliance revealed by these agency responses is good.
This assumes, of course, that compliance means a statement of inten-
tion to adhere to these jDrinciples in practice as distinguished from
merely having them publicly stated in regulations. On this basis, we
have rated about 25 agencies as in substantial compliance with the
policies of the recommendation, and 11 agencies in partial agreement,
with further study underway.
Turning to compliance with the major specific proposals of the
guidelines, the record becomes more checkered. The regulations of the
(xeneral Services Administration were relied upon heavily in drafting
the guidelines, and, therefore, they are veiy good. Many other agencies
have good rules, even though they differ in some respects from the
model rules proposed by the Conference, or are silent in some respects.
The Civil Aeronautics Board revised its rules in 1971 to bring them
into full compliance with the Conference's recommendations. This is
the only agency to date to have taken this step. We are thus faced
with the situation where most agencies agree with the principles of
the recommendation, but many have not reduced them to specific rules.
In testing the extent of compliance we look particularly for the
following :
(1) Is an information office or official adequately identified?
(2) Must requests be made on a special form?
(3) Are there rules requiring prompt handling of requests, state-
ments of reasons for denials, and procedures for appeals ?
(4) What provision, if any, is made for charging for information?
And,
( 5 ) Are these fees reasonable ?
In general, agency rules are good in identifying an office where the
public may go or write for information. In this connection, I would
point out that the descriptive information about the agencies now
contained in the U.S. Government Organization Manual in a special
box is of considerable help in this connection.
Very few agencies require an application for information to be
submitted on a special form. Even those that normally require a form
state that they waive it in most instances where the request is readily
identifiable and readily identifies the information sought.
On the other hand, very few agencies have specific rules requiring
that agencies respond to requests for information within a given time.
1223
Ten days was suggested as the norm in the Conference's model rule.
Many agencies state that requests are handled promptly, but there is
no detailed data that we are aware of that reveals the relative prompt-
ness of various agencies in handling information requests. I would
hope that that piece of data would be filled out either by the work of
this committee or by a further study of the Administrative Conference.
Similarly, very few agencies' rules provide for giving reasons for
the denial of a request for information. The practice in many agencies
is to cite the exemption relied on but without giving an}' explanation
as to why the requested information falls within it.
Most agency rules state the oflSce or officer to which an internal
agency appeal may be taken. The time, again, in which the appeal
must be taken, however, is rarely stated, nor is the time for response.
The fhial part of recommendation 24 deals with the matter dealt
with in Chairman Moorhead's opening statement, the appropriate fees
to be charged for the provision of information. As noted earlier, the
guidelines suggested that this was a matter in which an interagency
committee composed of representatives from 0MB, Justice and GSA
should establish uniform criteria for determining fair and equitable
fee schedules.
The Office of Legal Counsel took the initiative in calling a meeting
of this interagency committee last summer. The interagency commit-
tee reached several conclusions :
(1) Fee schedules for routine reproduction or photocopying of
documents are often too high ;
(2) Charges for time spent in routine search or in monitoring re-
production should be at a clerical rate ;
(3) Considerable flexibility is necessary with respect to fees for
nonroutine compilations and reproductions of files where searches may
require use of professional, operating, or management pei-sonnel. This
last problem is particularly acute because to charge actual costs would
often result in a prohibitively high fee, thus frustrating the primary
intent of the Freedom of Information Act.
The agency responses to our requests for information on fee sched-
ules, and a review of some of the applicable provisions in the Code
of Federal Regulations, reveal the following :
Almost every agency has a rule which calls for charging fees.
Again, almost everj^ agency has a rule permitting the waiver of
any charge in appropriate cases and most make no charge where costs
would be $1 or less. It should be observed that an immense amoimt of
material is furnished upon request, either orally or in writing, with-
out any charge at aU. ^ J. I JT
Several agencies have a mandatory mmunum charge for handlmg
information requests whether any documents are provided or not.
But mandatory fees are often not charged even when ai)plicable.
Chairman Moorhead gave a good example of one mstance m which
a mandatory charge was not made, and the reason why it was not
made was that it would cost more to collect it than the amount involved
in collecting it. . ^ * • i* ~>
Copying charges vary widely, from 5 cents per page at Agriculture
to perhaps as Mgh as $1 per page at the Selective Service System.
A charge of 25 cents per page is most common.
1224
Clerical research charges vary widely, from a low of $3 per hour at
the Veterans' Administration to as much as $7 per hour at the Re-
neirotiation Board.
The question of fees is important and complex. A simple request by
an individual for information that is readily available in a prepack-
aged form should normally be handled without charge as a part of
tile agency's general duties. When an agency is proceeding against an
individual, and his defense requires the assembling of information in
the agency's files, the work should be done at the agency's expense,
especially'if the person is indigent or of limited resources. On the otl^er
hand. Government should not be expected to assemble material for
private or commercial use without charging the requester the full cost
of the eifort.. Thus, for example, a commercial mailer who desires to
assemble a mailing list from Government files or to obtain other in-
formation which has commercial value should, in my view, reimburse
the agency for the clerical and professional services involved in re-
producing the information.
These few examples do not begin to deal with the immense variety
of situations which are characteristic of the real world, but in my view
they make the point. In the last analysis, a fair and rational system of
providing information to the public must take into account the charac-
ter of the information requested and its value to the person who re-
quests it. And this is particularly true with respect to the assessment
of fees.
It is my hope that the illumination of agency practices provided by
this hearing will encourage more Federal agencies to adopt the proce-
dures proposed in the guidelines portion of recommendation 24. Em-
phasis should also be given to reducing the charges made by many
agencies for reproduction of material. While a search fee may some-
times be appropriate, there is no justification for photocopying fees in
excess of 10 cents per page.
As a final general observation, I am persuaded that the conference
approach, aided by legislation oversight such as that provided by this
subcommittee, is a^ most effective means of achieving compliance with
the Freedom of Information Act. The experience of the Conference
in considering specific freedom-of-information problems, such as the
"no-action" lett-er procedures of the SEC or the "change-of-status"
procedures of the INS, indicates that meaningful compliance with the
act's requirements sometimes calls for a delicate balancing of compet-
ing and often equally compelling policies.
I am not now speaking of compliance with the strict letter of the
law. That will come in due course. I am talking about persuading
agencies to go the extra step, to release that which arguably may fall
Avithin the fringes of one of the exemptions but which would, by dis-
closure, be in the public interest.
What is needed is the development of a climate of opinion in which
agencies regard the information they collect or require as public prop-
oi-ty. But attitudes cannot be mandated ; they can only be molded. The
Conference has the oppoitunity to work cooperatively with the agen-
cies to achieve this objective. We will make every effort to use this
opi)oi-tunity wiselj''.
Thank you.
Mr. MooRHEAD. Thank you, Mr, Cramton.
1225
I notice that you have appended to your statement appendix A,
"Information Concerning the Administrative Conference of the
United States." I think that should be made a part of the record, and,
without objection, it will be made a part of the record.
(Mr. Cramton's statement, with appendix A attached thereto, fol-
lows:)
Prepared Statement of Roger C. Cramton, Chairman, Administrative
Conference of the United States
'Sir. Chairman and members of the subcommittee, I appreciate tlie invitation
to api)ear and testify in the hearings before this subcommittee on tlie admin-
istration and operation of the Freedom of Information Act. This is a subject of
tlie utmost importance and one to which the Administrative Conference of the
United States is devoting sul)stantial time and attention.
As you know, the Administrative Conference of the United States — a i»frma-
nenr, independent Federal agency which began functioning in early 1908 — is
engaged in the improvement of the procedures of all Federal departments and
agencies. The objective of the conference is to assist agencies in the more effec-
tive performance of their functions while providing greater fairness and expedi-
tion to participants and lower costs to taxpayers. The 86-member conference has
a special expertise on questions of administrative law and procedure. A brief
description of the Administrative Conference and some of its current activities is
contained in an appendix to this statement.
I appear today in my capacity as the official .spokesman for the Administra-
tive Conference of the United States, since the Conference has taken a number of
formal actions which bear on the availability of information to the public. As to
matters on which the Conference has not acted, I will be expressing my i^ersonal
views.
I plan to devote the major part of my remarks today to Conference recom-
mendation 24 — Principles and Guidelines for Implementation of the Freedom
of Information Act. However, by way of background, I should first like to
describe briefly a few closely related studies because they bring into focus the
extraordinary range of matters which are relevant to any thorough discussion
of Government information practices and policies.
The right of the public to know about the activities of its Government and to
have the opportunity to participate in a meaningful way in proceedings which
establish major policies are matters which are at the core of a number of signif-
icant Conference recommendations. This subcommittee is familiar with recom-
mendation 16 of the Conference which urges eliuunatlon of the exemption from
the rulemaking provisions of the Administrative Procedure Act of proceedings
which relate to '•public property, loans, grants, benefits or contracts." The Con-
ference, concluding that many actions falling within the exemption Involved mat-
ters of great public interest and concern, called for legi.slation to repeal the ex-
emption ^ and also for agencies voluntarily to utilize public notlce-and-comment
procedure before promulgating rules of this character. Experience thus far
justifies the Conferences' prediction that broadened public participation in such
"important matters as the use and disposition of public lands would lead to more
informed Governmental rulemaking.
I am pleased to report that recommendation 16 has received wide acceptance
by the agencies most directly affected. In this endeavor our efforts at implemen-
tation were substantially aided by the inquiries this subcommittee sent request-
ing a report on what steps agencies had taken to comply. Virtually all rulemaking
involving public property, loans, grants and benefits is now open to public
notice and conunent ; only with respect to public contracts does the older practice
continue.
More recently the Conference recommended that in proceedings where decisions
are preceded by notice and an opportunity to participate, each agency should
i-leurly indicate that persons whose interest or views are relevant and not other-
wise represented should be allowed to participate (recommendation 28). In this
connection, agencies should adopt procedures to minimize the cost of pulilic par-
ticipation by such steps as making transcripts available at minimal or simple
reproduction costs.
» S. 141.3. 92d Cong., first sess. (1971).
70-2.5.3— 72— i)t. 4 1.")
1226
The National Environmental Policy Act of 1969, of course, has been a strong
force in the same direction of citizen participation and open government. The
act, in addition to requiring all Federal agencies to consider environmental
values in their decisionmaliing, requires the drafting, circulation, and receipt
of comments on an environmental impact statement with respect to any major
Federal action that may significantly effect the environment. The environmental
impact statement procedure has had the effect of opening formerly secret areas
of governmental decisionmaking to public notice and comment. It has provided
strong reinforcement for the similar objectives of the Freedom of Information
Act. It is only fitting that having testified last week in a Senate hearing which
was exploring the administration and effectiveness of NEPA." I should he similar-
ly engaged this week with respect to the Information Act. Both are landmarks in
the quest for broader public participation in and knowledge of government.
The Conference's concern for broadened public participation in the admin-
istration process has extended to the question of representation for otherwise
inadequately represented groups. In 1968. a Conference recommendation was
addressed to the adequacy of representation of the poor in agency rulemakings
affecting their interests (recommendation ."5). I have sul>sequently worked
with congressional committees and testified in both Houses in support of pro-
posals to establish a new Federal agency to advocate the interests of consumers
in proceedings before other Federal agencies.^
Our interest in public information practices has also extended to Government
publications. As you know, tlie Federal Register rarely serves as "actual"
notice of agency action, as distinguished from constriictive or legal notice.
Except for lawyers, lobbyists, and public interest groups, most people do not
even know that the Federal Register exists or for what puri)ose. In order to bring
into the forefront the vast amount of useful information it contains, we recom-
mended the publication of a consumer bulletin (recommendation 4). Such a
bulletin is now published by the Office of Consiuners Affairs, Executive Office of
the President. The iml)lication has a wide circulation and provides timely infor-
mation in layman's language about a great many matters of general public
interest that are ))ending before Government agencies.^
Finally, I would like to note that we have called upon agencies to adopt broad
discovery rules (recommendation 21) and to articulate agency policies (recom-
mendation 25). "We have been particularly concerned about the lack of published
precedents, rules and regulations, particularly in the area of informal proceed-
ings or discretionary justice. Here I refer to recommendations addressed to spe-
cific functions such as "no-action" letter procedures of the SEC, the practices
of the Renegotiation Board, and change-of-status applications l)efore the Im-
migration and Naturalization Service (recommendations 19, 22. and 27).
As you can see from this very sui>erflcial description of some of our recom-
mendations, the work of the Administrative Conference in seeking to improve
administrative procediires touches almost constantly on freedom of infonnation
questions.
With this brief background, let me now turn to recommendation 24.
The Freedom of Information Act was a major landmark in the citizen's right
to know about Government. It shifted the burden of proof to the Government to
establish the api)licability of one of the act's nine exemptions before a document
could be withheld from any member of the i)ublic. A^liile the agencies did not
revise their information policies ISO degrees overnight, the act has worked a sub-
stantial change in the attitudes and practices of nearly every agency. There is a
general imiu-ession that information is more widely and easily available than it
was prior to the act's effectiveness in 1967. In short, the act is a success story in
the |)ossibility of orderly change of bureaucratic organizations.
But despite the substantial progress, uncertainties and problems remain in
abundance. Neither the act nor its judicial gloss make it entirely clear what
information falls within the broadly worded exemptions. Agencies and reviewing
= Statonipnt of Rojror C. Cminton Iieforo tlie Committep on Intorior and Insul.Tr Affairs
anfl the Committee on Public Works, U.S. Senate, Mar. 7, 1972.
■' HearinRS on H.R. 14, 15, Ifi and H.R. 3809. Subcommittee on Tjegislation and Military
Operations, House Committee on Government Operations, May 6, 1971 ; S. 1177 and H.R.
Ids:;,"). Siilicomniittee on Execntivp Reorsranization ami Government Research. Committee
on Government Operations, U.S. Senate, Nov. 4 and 5, 1971.
* Other relevant recommendations in this area include jiroposed changes in the U.S.
Government Orfranizatioii Manual to mak'' it a more informative document and in the
Code of Federal Regiilations to improve its indexing and statutory reference materials.
(Recommendations 2, 3, and 12.)
1227
courts alike have had difficulty in dealing with an enactment that purports to
take no account of the citizen's i-easous for requesting information and the use
that he plans to make of it. Complaints continue to abound of foot-dnigsiing
and necessary redtape on the part of some agencies in making information
available that the statute clearly contemplates should be made available. Thus
it was the view of the Conference that one most visible test of an agency's intent
to comply wtih the act would be through an evaluation of the regulations it
publishes in the Federal Register which set forth the "descriptions of its central
and field organization and the established places at which * * *, and the methods
whereby, the public may obtain information, make submittals or requests, or
obtain decisions." ( ."> U.S.C. 052(2) (1) (A) ).'
An excellent study, which formed the basis for the Conference recommendation
on this subject, was prepared for the Conference by Prof. Donald A. Giannella,
I'rofessor of Law. Villanova Law School.' He stated the objective of his study as
follows :
"The ideal goal of a free and open informati(m policy which underlies tlu' act
requires all information requests to be treated ecjiwlly. The judicial remedy
written into the act will not assure this goal as a practical matter. Agency
iwlicies, regulations and practices will be more important in realizing it. The
guidelines proposed are derived from this basic policy goal with an eye to the
practicalities of agency oi>erations. Although they are tailored to me^t certain
problems that have arisen under the act. they are primai-ily put forward as an
attempt to develop reasonable and ))ractical procedures for agencies to adopt
to implement the Freedom of Ijifonnation Act."
Recommendation 24, adopted in May 1971, after spirited debate, is in three
parts. Fart A sets forth five general principles that agencies should conform
to in handling requests for information. These are :
(1) a restrictive interpretation of the exemptions authorizing nondis-
closure :
(2) full assistance and timely action on public requests for information:
(3) disclosure to the fullest extent possible of all but exempt parts of
documents ;
(4) specification of reasons when recpiests for information are denied,
together with a statement as to how the denial may be appealed : and
(5) minimum fees for providing information, which should be waived
when in the public interest.
Part B of the recommendation states that each agency should adopt pro-
cedural rules to effectuate the above principles and sets forth detailed guide-
lines as a model of the kinds of procedures that are api)ropriate for this purpose.
Part C calls ui)on each agency to establish a fair and equitable fee schedule
relating to the provision of information. It further proposes that a conunittee
of representatives from the Office of Management and Budget, the Department
of Justice, and the General Services Adnunistration should establish criteria for
determining what are fair and equitable fees.
The substance of this recommendation was discussed with a large number
of agencies while it was in the process of formulation. It should i)e emphasized
that the guidelines in part B were the form in which the recommendation was
originally proposed and circulated. These specific proposals, concurred in by
the Office of Legal Counsel, Department of Justice, were found acceptable to
most of the agencies. The Assembly cast them in the form of guidelines in the
lielief that the Conference should not propose detailed rules; but retained them
as a model with which agencies should compare their own procedures.
The heads of all agencies that are members of the Conference received the
official recommendation in May 1971. Follow-up letters were sent in December
1971 to those who had not responded or who have had the matter under study.
An additional 20 agencies have also been asked to comment. In late January
1972, we furnishe<l the staff of the subcommittee with co^pies of the responses
i-eeeived as of that time, and we will be pleased to see that your file is kept
current in the future. As of today, most of the agencies having significant public
information responsibilities have commented on the recommendation.
'■The ConfprencP in 1969 mjide a study of the Indexiiif,' reciniicnu'iits of the art. ."> T'.S.C.
."i."'.'>(a) (2; However, the stiulv did not result in any reconini"ndation since the statute
wa's then quite new, there was" wide disparity in interpreting the index requirements and
fost and manjiower seemed to he overridini: eonsiderntions in the publication of indexes.
" ".\sency Procedures Implinientins the Frni'dom of Information Act: -V Proposal for
Uniform Regulations," 23 .\dmin. L. Kev. 217-70.
1228
Lf)()kiiig first to the five general principles of the recommendation, the record
of compliance is good. This assumes that compliance means statements of
intentions to adhere to these i»rinciples in practice as distinguished from having
them ])uhlicly stated in regulations. On this basis we have rated about 25 agencies
as in substantial compliance with the policies of the recommendation and 11
agencies in partial agreement, with fui'ther studies underway. A number of
agencies have yet to respond.
Turning to com[)liance with the major specific proposals of the guidelines, the
I'ecord becomes much more checkered. The regulations of the General Services
Administration were relied upon heavily in drafting the guidelines and thei'efore
arc very good. Many other agencies have gocxl rules even though they differ
in some respects from the model rules prf)posed by the Conference or are silent
in some lespects. The Civil Aeronautics Board revised its rules, effective Novem-
l)er 27. 1!)71 to bring them into full compliance with the recommendation.' But
this is the only agency to date to have taken this step. We are thus faced with
a situation where most agencies agree with the principles of the recommendation
but many have not reduced them to specific rules.
In testing the extent of compliance we look particularly for the following : (1)
Is an information oflice or official adequately identified? (2) Must requests be
made on a special form? (3) Are there rules requiring prompt handling of re-
quests, statements of reasons for denials and procedures for appeals? (4)
What provision, if any, is made for charging for information? (5) Are the fees
reasonable?
In general, agency rules are good in identifying an office (or offices) where the
public may go or write for information. In this connection, I would point out
that the descriptive information about the agencies contained in the U.S.
Government Organization Manual now identifies in a special box the office (or
offices) where further information can be secured. This was an important aspect
of recommendation 2 that has been fully implemented.
Very few agencies i-equire an application for information to be submitted on
a special form. Even those that normally require a form state that they waive
it in most instances where the request I'eadily identifies the information sought.
Very few agencies have specific rules requiring that agencies respond to re-
quests for information within a given time (10 days was suggested as the norm
in the Conference model rule). Many agencies state that requests are handled
'■promptly," but there is no detailed data indicating the relative promptness
of various agencies in handling information requests.
Very few agency rules provide for giving reasons for the denial of a request
for information. The practice in many agencies is to cite the exemption relied
on. but without giving any explanation as to why the requested information falls
witliin it. The Office of Legal Counsel of the Department of Justice is to be
commended for the role it has assumed whereby agencies encountering diflScult
questions of interpretation of the exemptions to the act are encouraged to seek
its advice. Cases referred probably involve only the surface of the iceberg, but
they are likely to become most useful as a volume of precedential rulings is
developed.
Most agency rules state the office or oflicer to which an internal agency appeal
may be taken. Tlie time in which the appeal must be taken, however, is rarely
stated, nor is the time for response.
Some agency rules provide for making precedential rulings public, some
agencies do it as a matter of good practice, but on the whole it is not clear
that agencies are complying with the guidelines, much less the indexing re-
quirements of the act in this regard.
The final part of the recommendation deals with appropriate fees to be
charged for the provision of information. As noted earlier, the guidelines sug-
gested that this was a matter in which a committee composed of representa-
tives from OMB, Justice and GSA should establish uniform criteria for deter-
mining fair and equitable fee schedules. The OflSce of Legal Counsel took the
initiative in calling a meeting on this subject last summer.
The interagency committee reached several conclusions : First, fee schedules
for routine reproduction or photocopying of documents are often too high. Second,
charges for time spent in routine search or in monitoring reproduction should
14 CFR Part 10, Section 310.
1220
be at a clerical rate. Third, considerable flexibility is necessary with respect to
fees for nonroutine compilations and reproductions of files where searches may
require use of professional, operating, or management personnel. This last
problem is particularly acute because to charge actual costs would often result in
a prohibitory high fee, thus frustrating the primary intent of the Freedom of
Information Act.
The agency responses to our requests for Information on fee schedules and
a review of some of the applicable provisions in the Code of Federal Regulations
reveal the following :
Almost every agency has a rule which calls for charging fees.
Alm()st every agency )ias a rule permitting the waiver of any charge in ap-
propriate cases and most make no charge where costs would be $1 or less. It should
be observed that an immense amount of material is furnished upon request,
either orally or in writing, without any charge at all.
Several agencies have a mandatory minimum charge for handling informa-
tion requests whether any documents are provided or not. But mandatory fees
are often not charged even when applicable.
Copying charges vary widely — from 5 cents per page at Agriculture to perhaps
as high as $1 per page at the Selective Service System, A charge of 25 cents per
page is most common.^
Clerical research charges vary widely — from a low of $3 per hour at the Vete-
rans' Administration to as much as $7 per hour at the Renegotiation Board.
The question of fees is important and complex. A simple request by an individ-
ual for information that is readily available in a prepackaged form should
normally be handled without charge as a part of the agency's general duties.
When an agency is proceeding against an individual, and his defense requires
the assembly of information in the agency's files, the work should be done at the
agency's expense, especially if the person is indigent or of limited resources. On
the other hand, Government should not be expected to assemble material for
private or commercial use without charging the requester the full cost of the
effort. Thus, for example, a commercial mailer who desires to assemble a mail-
ing list from Government files or to obtain other information which has com-
mercial value, should reimburse the agency for the clerical and professional
services involved in producing the information. In the last analysis, a fair and
rational system of providing information to the public must take into account
the character of the information requested and its value to the person who re-
quested it.
It is my hoi)e that the illumination of agency pi-actices provided by this hear-
ing will encourage more Federal agencies to adopt the procedures proposed in
the guidelines portion of recommendation 24. Emphasis should also be given to
reducing the charges made by many agencies for reproduction of material. While
a search fee may sometimes be appropriate, there is no justification for photo-
copying fees in excess of 10 cents i)er page.
As a final, general observation. I am persuaded that the Conference approach,,
aided by legislative oversight such as that provided by this subcommittee, is a
most effective means of achieving compliance with the Freedom of Information
Act. The experience of the Conference in considering specific freedom-of-infor-
mation problems, such as the "no action letter" procedures of the SEC or the
"change-of-status" procedures of the INS, indicates that meaningful compliance
with the act's requirements sometimes calls for a delicate balancing of com-
peting and often equally compelling policies. I am not now .speaking of com-
pliance with the strict letter of the law. That will come in due course. I am
talking about persuading agencies to go the extra stei) — to release that which
arguably may fall within the fringes of one of the exemptions.
What is needed is the development of a climate of opinion in which agencies
regard the information they collect or acquire as public pror>erty. But attitudes
cannot be mandated; they can only be molded. The Conference has the op-
portunity to work cooi>eratively with the agencies to achieve this objective. AVe
will make every effort to use this authority wisely.
Thank you.
" Some ajjenev rules provide for charging a "reasonable fee" In undefined circumstances.
Others have specific charges for special documents, photostatic copies, certified true
copies, etc.
1230
Appendix A. — Information Concerning the Administration Conference
OF THE United States — March 1972
The Administrative Conference of the United States, a permanent, independent
Federal agency, is engaged in the improvement of the procedures of Federal
departments and agencies. The objective of the Conference is to assist agencies
in the more effective performance of their functions while providing greater
fairness and exi)edition to participants and lower costs to taxpayers.
The Administrative Conference Act ('> U.S.C. §§ 571-7fi) provides that the
Administrative Conference shall consisit of not more than 91 nor less than 75
members, of whom not more than 36 may be apix)inted from the private sector.
The Chairman is appointed by the President for a 5-year term, with Senate
contirmatiou : he is the only member who serves on a full-time, compensated
basis. All other members, including the members of the council of the Conference,
the governing board appointed by the President, contribute their services with-
out compensation. In addition, the Conference is authorized to employ experts
and consultants to research and report on particular subjects.
Since its activation in January 1968, the Admini.^trative Conference has
adopted 31 formal recommendations for improved procedures, some calling for
legislation and the remainder calling for action on the part of the affected
agencies. A numl>er of additional recommendations will be considered at a forth-
coming plenary session in June 1972. INIany of the present recommendations
have been implemented, and others are in the process of implementation. In
addition, the conference study of an issue has led in several instances to im-
mediate acceptance of procedural improvements by affected agencies, without
the necessity of a formal recommendation.
Recent recommendations deal with such important subjects as :
Compliance by Federal agencies with the Freedom of Information Act.
Broadened public particii^tion in Federal administrative proceedings.
I'niform procedures for the award of grants-in-aid. and compliance by grantees
with conditions included in Federal grants-in-aid.
Exercise of discretion by the Immigration and Naturalization Service in
change-of-status cases.
Procedures of the Food and Drug Administration for the formulation of food
and drug standards.
Ten standing committees of the conference and the staff of the chairman's
office, with the assistance of approximately 30 highly qualified academic con-
sultants, are engaged in a wide variety of studies at the present time.
Current studies include the following :
FCC i)rocedures for comparative broadcast licensing.
The administration and coverage of the Federal Tort Claims Act.
Devices for improved handling of citizen complaints against Federal jid-
ministrative action.
The role of the chairman in independent regulatory agencies.
Admission and release procedures of the Veterans' Administration with
resi)e(t to mental patients.
Department of the Interior procedures with respect to the leasing of Indian
lands.
Procedures for exi>editing complex and protracted administrative ca.ses.
Th(> handling of disability benefit claims by the Social Security Administra-
tion and by other Federal agencies which administer disability programs.
Sununary administrative action pending formal administrative adjudication.
Prosecutorial discretion in the enforcement of Federal regulatory crimes.
The use of trial-type hearings to develop rules of general applicability.
Conflict-of-interest problems in dealing with natural resources of Indian
tril)es.
Money jtenalties as an administrative sanction.
IM-ocedures of the Federal Parole Board for the grant and revocation of
parole.
Informal handling of timber rights by the Departnumt of the Interior and
of grazing rights by the Department of Agriculture.
liicensing procedures of Federal lianking regulatory agencies.
Tlie use of trial-type hearings in atomic energy licensing and regulation.
Handling of environmental issues in the licensing of power plants.
Procedures and policies of the U.S. Forest Service.
Regulatory procedures of the Department of Agriculture involving crop allot-
ments and acreage quotas.
1231
Procedures available to losiug bidders for Government contracts.
Procedures for the ueyotiation, settlement, and susi)ensiou of itrotested rate
filings.
Procedures for the development and use of statuturily reciuired slatements of
environmental effect.
The use of imblicity as an administrative sanction.
Handling by Federal agencies of incompetents' funds.
Advice to the public from Federal admini.strative agencies.
Preinduction judicial review of Selective Service system determinations.
"Adver.se action" procedures for the discipline or removal of Federal em-
ployees.
Remedies for the resolution of property disputes between tlie I'nited States
and private persons.
A number of significant proposals have been made f(U' the amendment and
updating of the Administrative Procedure Act, wliich has now been in effe<-t for
25 years. The AdminLstrative Conference will <levote a substantial ixu-tion of
its efforts in 1U72-73 to a systematic evaluation and review of proposed amend-
ments of the APA. Systematic attention is also being given on a continuing
basis to the development of minimum procedural standards applicable to the
informal administrative proces.s — the important but less vLsible activities of
government which significantly affect millions of Americans each year.
The offices of the Administrative Conference of the Unite<;l States are located
at 720 Jackson Place NW., Washington, D.C. 20506. The chairman Ls Koger C.
Cramtou, formerly professor of law, University of ^Michigan.
Mr. ^NIooRiJEAD. You have also referred to the meetinos v\ith the
Office of Manatrement and Budget and the Office of Le<ral Counsel,
Department of Justice. I have a letter from O^IB dated March (> on
the oreneral subject, and, without objection, that will be made a part
of the record.
(The letter referred to follows:)
Executive Office of the President,
Office of Management and Budget,
Washington. D.C. March 6, 1972.
Hon. William S. Mooehead,
Chainnan. Foreign Operations and Government Information Subcommittee, Com-
mittee On Government Operations, House of Representatives, Washing-
ton, D.C.
Dear Mr. Chairmax : This is in reply to your letter of February 15, 1972.
requesting that we designate a witness — someime familiar with the work of an
interagency committee which grew out of a recommendation of the Administrative
Conference of the United States regarding the Freedom of Information Act — to
testify in hearings before your subcommittee on March 14.
As your letter indicates, the Administrative Conference issued its Recommen-
dation No. 24, entitled "Principles and Guidelines for Implementation of the Free-
dom of Information Act," in the spring of 1971. The Conference's Recommendation
No. 24 was in three parts, as follows :
A. General Principles. This part requested that agencies conform to a set
of five listed general principles in handling requests for information.
B. Guidelines for Handling of Information Request. This part requested
that each agency adopt procedural rules to effectuate the principles stated in
part A. and set forth five pages of detailed giiidelines to serve as a model
of the kinds of procedures which would effectuate the principles stated in
part A.
C. Fees for the Provision of Information. This part requested each agency
to establish fair and equitable fee schedules for providing information. It
recommended that a committee be established, composed of represeiitiitives
of the Office of Management and Budget, the Department of .lustice. and the
General Services Administration, to determine a fair and equitable fee
schedule. It was also recommended that the committee review agency fees to
determine whether they complied with four criteria which were set forth in
the recommendation.
Thereafter, OMB joined with Justice and GSA to establish a committee, as
recommended in part C of the Conference's KecommendatioTi No. 24. The com-
mittee concluded that fees charged by agencies vrere lacking in uniformity and
1232
in some cases appeared to be excessive, and recommended that these matters be
brought to agency attention. Action to give effect to this recommendation of
the interagency committee is now in process, and I will be pleased to make a
further report when that action is completed.
The interagency committee was not concerned with respon.ses made by the
agencies to parts A and B of the Administrative Conference's Recommenda-
tion No. 24. Neither as a member of the committee, nor independently, has the
Office of Management and Budget received or reviewed the responses of agencies
to the substantive recommendation contained in parts A and B. Consequently, we
have no knowledge as to what steps are being taken or contemplated to imple-
ment (parts A and B of) the Conference's recommendations and we would have
nothing to contribute to the forthcoming hearings of your subcommittee on the
effectiveness of the Freedom of Information Act.
With a letter of September 2, 1971. we supplied detailed answers to the
subcommittee's questionnaire regarding our own operations under the Freedom
of Information Act, together with extensive supporting materials. That letter
was supplemented by our two letters of September 3. 1972. responding to fur-
ther inquiries from your subcommittee regarding the questionnaire.
I regret that we have no information regarding agency compliance with the
recommendations of the Administrative Conference, except such as pertains to
the Office of Management and Budget. Our response with respect to OMB was
made in September 1971. and we understand a copy has been made available to
you by the Conference. We shall, of course, be glad to furnish any further in-
formation the subcommittee may desire with respect to our ov.n operations
under the Freedom of Information Act.
Sincerely.
( Signed ) George P. Sht'ltz.
Director.
Mr, MooRHEAD. In addition, you have referred extensively to recom-
mendation Xo. 24, ''The Principles and Guidelines for Implementation
of the Freedom of Information Act," Without objection, that vill also
be made a part of the record at this point.
(Recommendation Xo, 24 referred to above follows :)
Recommendation 24: Principles and Guidelines for Implementation of the
Freedom op Information Act
The Freedom of Information Act, 5 U.S.C, § 552, expresses important policies
with respect to the availability to the public of records of Federal agencies. To
achieve free access to and prompt production of identifiable Government records
in accordance with the terms and policies of the act. each agency* should conform
to the statutory iKilicy encouraging disclosure, adopt procedural regulations for
the expeditious handling of infonnation requests, and review the fees charged
for providing information.
recommendation
A. General principlCH
Agencies should conform to the following principles in handling requests for
information :
1. Each agency should resolve questions under the Freedom of Information
Act with a view to providing the utmost information. The exemptions author-
izing nondisclosure should be interpreted restrictively.
2. Each agency should make certain that its rules provide the fullest assist-
ance to inquiries, including information relating to where requests may be
filed. It should provide the most tiniely i)ossiiile action on requests for
information,
3. When requested information is partially exempt from disclosure the
agency should, to the fullest extent po.ssible, supply that portion of the infor-
mation which is not exempt.
4. If it is necessary for an agency to deny a request, the denial should be
]>roniptly made and the agency should spe<'ify the reason for the denial.
I'rocedures for review of denials within the agency should be specified and
any such review should be promptly made.
♦The term "aKency" as iisprl liprciri denote.^ an atreney, pxpcutive dftpartment. or a
sppr.ratp administration or burpaii within a departmpnt which has adopted its own
administrative structure for handling requests for records.
1233
5. Fees for the provision of information should be held to the minimum
consistent with the reimbursement of the cost of providing the information.
Provision should be made for waiver of fees when this is in the public interest.
B. Guidelines for handling of information request
Each agency should adopt procedural rules to effectuate the principles stated in
part A. To assist in this task the following guidelines are set forth as a model of
the kinds of procedures that are appropriate and would accomplish this purpose.
1. Agency assistance in making request for records. — Each agency should publish
a directory designating names or titles and addresses of the particular officer and
employees in its Washington office and in its various regional and field offices
to whom requests for information and records should be sent. Appropriate means
should be used to make the directory available to members of the public who would
be interested in requesting information or records.
Each agency should direct one or more members of its staff to take primary
responsibility for assisting the public in framing requests for identifiable records
containing the information that they seek. The names or titles and addresses of
these staff members should be included in the public directory referred to above.
2. Form of request. —
a. Xo standard form. — No agency should require the use of standard forms
for making requests. Any written request that identifies a record sufficiently
for the purpose of finding it should be acceptable. A standard form may be
offered as an optional aid.
b. Categorical requests.' —
i. Requests calling for all records falling within a reasonably specific
category should be regarded as conforming to the statutory requirement
of 'identifiable records" if the agency would be reasonably able to deter-
mine which particular records come within the request and to search
for and collect them without unduly burdening or interfering with agency
operations because of the staff time consumed or the resulting disruption
of files.
ii. If any agency responds to a categorical request by stating that com-
pliance would unduly burden or interfere with its operations, it should
do so in writing, specifying the reasons why and the extent to which
compliance would burden or interfere with agency operations. In the
case of such a response the agency should extend to the requester an op-
portunity to confer with it in an attempt to reduce the request to
manageable proportions by reformulation and by outlining an orderly
procedure for the production of documents.
.3. Partial disclosure of exempt records and files. — Where a requested file or
record contains exempt information that the agency wishes to maintain confiden-
tial, it should offer to make available the file or a copy of the record with ap-
propriate deletions if this can be done without revealing the exempt information.
4. Titne for reply to request. — Every agency should either comply with or deny
a request for records within 10 working days of its receipt unless additional time
is required for one of the following reasons :
a. The requested records are stored in whole or part at other locations than
the office having charge of the records requested.
b. The request requires the collection of a substantial number of specified
records.
c. The request is couched in categorical terms and requires an extensive
search for the records responsive to it.
d. The requested records have not been located in the course of a routine
search and additional efforts are being made to locate them.
e. The requested records require examination and evaluation by personnel
having the necessary competence and discretion to determine if they are :
(a) exempt from disclosure under the Freedom of Information Act and (b)
should be withheld as a matter of sound policy, or revealed only with ap-
propriate deletions.
When additional time is required for one of the above reasons, the agency
should acknowledge the request in writing within the 10-day period and should
include a brief notation of the reason for the delay and an indicatioji of the date
on which the records would be made availal)le or a denial would be forthcoming.
The 10-day time period specified above should begin to run on the day that
the request is received at that office of the agency having charge of the records.
When a request is received at an office not having charge of the records, it should
promptly forward the request to the proper office and notify the requester of the
action taken.
1234
If an agency does not reply to or acknowledge a request within the 10-day
i.eriod tlie requester may petition the officer handling appeals from denials of
reoo.-(ls for a})propriate action on the request. If an agency does not act on
a request within an extended deadline adopted for one of the reasons set forth
aboye the requester may petition the officer handling appeals from deuia s ot
records fc.r action in the request wiliiout additional delay. If any agency adopts
an unreasonably long extended deadline for one of the reasons set forth aboye.
the retiuester may petition the officer handling ai)peals from denials of records
for action on the request within a reasonable period of time from acknowledgment.
An extended deadline adopted for one of the reasons set forth aboye would
be considered reasonable in all cases if it does not exceed 10 additional work-
ing davs An agency may adopt an extended deadline in excess of the 10 addi-
tional workins days (that is a deadline in excess of 20 working days from the
time of initial receipt of the request) where special circumstances would rea-
sonably warrant the more extended deadline and they are stated in the written
notice of the extension.
5. Initial denials of requests. —
a. Form of denial. — A reply denying a written request for a record should
be in writing and should include :
(i) A reference to the specific exemption under the Freedom of
Information Act authorizing the withholding of the record and a brief
explanation of how the exemption applies to the record withheld.
<ii) An outline of an appeal procedure within the agency and of the
ultimate ayailability of .iudicial re\iew in either the district in which
the requester resides or has a principal place of business, or in which
the agency records are situated.
If the requester indicates to the agency that he wishes to haye a brief
written statement of the reasons why the exempt record is being witliheld as a
matter of discretion where neither a statute nor an executive order requires
denial, he will be giyen such a statement.
b. Colleetion of denials.— \ copy of all denial letters and all written
statements explaining why exempt records haye been withheld should lie
collected in a single central-office file.
c. Denials: proteetion of prirney. — "^Hiere the identity of a requester, or
other identifying details related to a request, would constitute an un-
warranted inVasion of i>ersonal privacy if made generally available, as in
the case of a request to examine one's own medical files, the agency should
delete identifying details from copies of the request and written responses
to it that are made available to requesting members of the public.
6. Intra-aqency appeals. —
a. Desifjnation of officer for appeals. — Each agency should publicly desig-
nate an officer to whom a requester can take an appeal from a denial of
records.
h. Time for action on appeals. — There should be only one level of intra-
asency appeal. Final action should be taken within 20 working days from
the time of filing the ap{>eal. Where novel and very complicated questions
have been raised, the agency may extend the time for final action for a
reasonable period beyond 20 working days uiion notifying the requester of
the reasons for the extended deadline and the date on which a final respon.se
will be forthcoming.
c. Actirm on appeals. — The grant or denial of an appeal .should be in writ-
ing and set fortli the exemption relied on. how it applies to the record with-
held, and the rea.sons for as.serting it. Copies of both grants and denials
on aopeal should lie collected in one file open to the jmblic and should be
indexed according to the exemptions asserted and. to the extent feasible,
according to the type of records requested.
d. Xeeessifji for prompt action on petitionx eomplaininri of delay. — Where
a i)etition to an appeals officer complaining of an agency's failure to respond
to a rcHiuest or to meet an extended deadline for responding to a request
does not elicit an api)ronr)ate response within 10 days, the requester may
treat his request as denied and file an appeal. Where a petition to an ap-
)>eals officer comnlaiiiing of the agency's imposition of an unreasonably long
deadline to consider as.sertion of an exemi)tion does not bring about a prop-
erly revised deadline, the requester may treat his request as denied after
a rea.sonable neriod of time lias elajised from his initial request and he may
then file an appeal.
1235
C. Fees for the provision of information
Each agency should establish a fair and equitable fee schedule relatinj; to the
provision of information. To assist the asencies in this endeavor, a committee
comiK)sed of representatives from the Office of Management and Budget, the De-
partment of Justice, and the General Services Administration, should establish
uniform criteria for determining a fair and equitable fee schedule relating to
requests for records that would take into account, pursuant to 31 I'.S.C 4N:^a
(19(J4). the costs incurred by the agency, the value received by the re(iuester and
the i)ublic intei'est in making the information freely and generally availalile. The
Committee should also review agency fees to determine if they comply with the
enunciated criteria. These criteria might include the following:
1. Fees for copying documents. — In view of the public interest in making
Govermnent information freely available, the fee charged for reproducing
documents in written, typewritten, printed or other form that p«»nnits copy-
ing by duplicating processes, should be uniform and not exceinl the going
commercial rate, even where such a charge would not cover all costs in-
curred by particular agencies.
2. A"o fee for routine search. — In view of the public interest in making
(jovernment-held information freely available, no charge should be made for
the search time and other incidental costs involved in the routine handling
of a request foi- a specific document.
3. 'So fee for screening out exempt records. — As a rule, no charge should
1)0 made for the time involved in examining and evaluating records for the
pr.rpitse of determining whether they are exempt from disclosure under the
Freedom of Information Act and should be withheld as a matter of sound
policy. Where a broad reipiest requires qualified agency personnel to devote a
sulistiintial amount of time to screening out exempt records and considei-ing-
whether they should be made available, the agency in its discretion may
include in its fee a charge for the time so consumed. An important factor in
exercising this discretion and determining the fee should be whether the
intended use of the requested records will Ih» of general public interest and
l>enefit or whether it will be of primary value to the requester.
Mr. ]MooRHEAD, Mr. Cramton, on paoe IT of your statement I no-
tice you mention the subject of assembling mailing lists from Gov-
ernment files for commercial mailers.
>V"e have before this .subcommittee a bill introduced bj- Congress-
man Plorton which would prohibit the giving or selling of lists of
names and addresses from Government files for commercial uses. Are
you familiar with that legislation I
Mr. ruA]NrTOX. Only marginally so. I have heard of it, but I have
not studied it.
^Ir. MooRiiEAD. Have you studied it sufficiently that you can give
an exi)ression of your opinion, whether you would favor this kind of
legislation or oppose it ^
]Mr, Cramtox. I guess my personal position would be in favor of
the general principle, while being somewhat cautious or skeptical as
to whether it is possible to achieve it. There are all sorts of lists and
data in Govermnent files. It may be difficult to ascertain whether or
not the person's recjuest is for the connnercial ])urpose of assembling a
mailiuir list. These are many kinds of lists of one type or another that
the Government has. and which seem to me private people might legit-
imately avail themselves of. Thus. 1 view it as a question of policy for
this committee, in which you ought to canvass the serious prohlems
and conflicting policies and make a judgment.
Mr. ^looRiiEAD. Thank you, ]Mr. Cramton.
I notice on page 3 that you state that oidy with respect to public
contracts does the older practice contimie. Why is there resistance on
the part of making public contracts ?
1236
:\ri-. Cramtok. Part of it is the fact that when the Conference recom-
mcnchition was made the Government Procurement Commission had
just been set up and was making elaborate studies of the whole Gov-
ernment contract field. And one of the questions that it had on its
agenda was the procedures to be followed in rulemaking in the Gov-
ernment contract area. So the agencies that were involved in Govern-
ment contracts in a big way, particularly the Department of Defense
and GSA, took the position that they wanted to await the results of the
Procurement Commission study. I am told that that study is expected
to be completed f airlv soon now.
The second reason' is that the sheer bulk of the Government procure-
ment regulations were thought to raise a question as to whether pub-
lication in the Federal Register, with opportunity for comment, would
be useful or desirable. The Administrative Conference wants to re-
consider the question, both in the light of the Procurement Commis-
sion report, and also in the light of a proposal that the American Bar
Association is lufiking to amend the .Vdministrative Procedure Act to
eliminate the public contract language.
In other words, the agencies have made what they think are com-
pelling arguments for delay and reconsideration of that issue. I per-
sonally am somewhat skeptical of their arguments, but I think that
the matter needs to be fully canvassed in the light of the Procurement
Commission report.
Mr. MooRHEAD. Let me see if I understand your position. On page
8 you state that the Confei-ence calls for- legislation to repeal the ex-
emption, but vou have substantial compliance in some areas, and rea-
sons for delay in enacting legislation in other areas, so at the present
time would you say that for' the moment legislation is not being re-
quested bv the Conference ?
]\Ir. Cramton. Xo. We have requested the legislation and continue to
think that it is a good idea. It has not gotten off the ground in terms of
popular support for it, but we still push it. We are taking the position,
however, that we are willing to T-econsider the public contracts question
if tlie Government Procurement Commission comes up with some good
arguments to the contrary. We do not have closed minds on the ques-
tion, so that, wliile we continue to favor the enactment of S. 1413, which
would amend the Administrative Procedure Act to eliminate these
exemptions.
The Conference has also initiated a larger studv to consider some
of the other exem])tions to the rulemaking provisions of tlie APA.
For example, rules that have very broad effects on the 3 million Amer-
icans who are employed by the Federal Government are also exempt
from APA's requirements and are not included in the earlier Con-
fen>nce actions. It is mv perj-onal view tliat. if the Civil Sprvice Coni-
mission is goinjx to make a general rule that affects 8 million Ameri-
cans employed by the Federal Government, they, their trade associa-
tions, and the general public ought to have [>ublic notice and an op-
poi-tunity to comment before those rules l)ecome final. Tluis, we are
not only reconsidering the contracts question, we are going further and
considering all of the exemptions to the APA rulemaking provisions.
yU-. MooRTTKAD. Mr'. Cramtou, on page 8 of your statenient you said
that ''Agencies and reviewing courts alike have had difficulty in deal-
ing witli an enactment that purports to take no account of the citizen's
1237
reasons for reqiiestino- inforniation ami the use that lie phms to i.iake
of it."
Are you suggestiiiii; that the Freedom of Information law be
chan^-ed in any respect, to take that situation into account ? . .
Mr. Cramtox. If one could figure out a formula for doinu" it, it
would be desirable. The practical fact is that eveiy agency official takes
into account who the requestor is, why he wants the information, and
what he is goino: to use it for. And this is particularly true if the in-
formation is sensitive, may adversely reflect on some jirivate person,
might be used to seriously embarrass the agency and the like. Of course,
there are good reasons *^and there are bad reasons. The language of
the exemption that speaks solely in terms of ''clearly unwarranted
invasion of privacy,-' for example, does not liegin to reflect the shad-
ings of the actual cases.
Let me give you an example. Two lal)or law scholars wanted to
study the election process of the NLRB. The XLRB has taken the
position that the actual records of how employees voted in representa-
tion elections ought to be kept confidential because employer intimida-
tion and all sorts of possible misuse was involved. The scholars, how-
ever, promised not to make the information public. They were inter-
ested only in studying the details so that they could inform the XLRB,
the public, and Congress about the process itself.
The Court of Appeals of the District of Columbia decided that in
view of the use which they were going to make of the information,
that the NLRB should make the information available. It seems to me
that that decision really does take into account the nature of the per-
son, the constraints or conditions under which he uses the information,
and whv he wants it.
I think all of us in making information available take those factors
into account. To the extent that the act excludes them from considera-
tion it is unrealistic.
Now, if vou asked me if I had a statutory proposal to spell out in
what circumstances and for what kind of interests information ought
to be available — such as scholars always get what they want, and the
public interest laws firms either do or do not — I have no formula. I
do not know if one could be designed.
]\Ir. ^looRiiEAD. It may be that if members of the subcommittee agree
with your position we could applaud the decision of that court in our
report thereby giving you some inducement.
Mr. Cramtox. Of course, the proposed statute dealing with mailing
lists, already mentioned, really involves the same point. It declares
that in that situation the reason the person wants the information, the
use he plans to make of it, is a relevant criterion.
It is with respect to fees, it seems to me. that the value that the in-
formation has to private individuals, and the uses they plan to make of
it, can properly be taken into account by Govermneiit. Thus, if a cor-
poration goes to the Department of Commerce and wants it to assemble
material from census data that is of very considerable commercial
value to the corporation, the corpor-ation ought to pay the clerical and
professional costs of assembling that information. This does not uiean
that Commerce should not provide the information. Perhaps it should
do so to the extent that workloads permit and after more urgent re-
1238
quests are met. But while Government ought to provide the informa-
tion, it slioukl in this situation charge the cost of supplying it to the
coi-i)oration. In other situations, the Government ought to provide in-
formation alx)ut wliat it is doing without any cost at all to the citizen
who wants to know about his Government's activities.
Ml-. ^fooRHEAD. Thank you, Mr, Cramton.
T yield to Mr. ^NlcCloskey at this time.
^Iv. McCloskey. Thank you.
Mi-. Gramton, did you have any opinion on exemption No. 5, inter-
agency or intra-agency memorandums or letters which should not be
available by law except to parties that are involved in litigation with
the oiiginating agency?
Mr. Ckamtox. Well, it is somewhat odd to make the rights of t:he
general public turn on the rights of the person who is litigating with
an agency. I would say that the right of a person who is being pro-
ceeded against by the'Gorernment-^ — and Government is prosecuting
him perhaps to take away his license, or livelihood, or deport him
from the country, or the like — ^ought to be in a somewhat more favored
position than a' casual bystander or a curious onlooker or a person
who wants information for commercial purposes. But that is the policy
that Congress has expressed, and what we have been talking about:
a policy of equating the rights of everybody who requests information
without regard to the person's reason for wanting it.
I am not sure what the provision means, because there is a great deal
of uncertainty about what ])arties in litiiration are entitled to in terms
of discovery of matei'ial in the agency files. There has been enormous
litigation of that question in the Federal Trade Commission alone,
and in other agencies, where the question is less litigated, there is even
more uncertainty about what a person who is a party, a proceeding is
entitled to.
My conclusion is this exemption has the same defect as the other
exemptions; that is, it is a very broad and ambiguous one which is not
very certain in meaning.
Ml-. McCloskey. Well, in the matters covered in your testimony,
let us just take, for example, the time for an agency to respond to !i
request, the fee charges, and the distinction l)etv\ieen the fee you might
charge a commercial corporation for voluminous information and the
distinction you might make between a 510(c) No. o or (c) No. 4 or-
ganization that wanted the same information.
Does not the variety, the breadth, and the type of information de-
sired, the time to compile it by the agency involved, almost preclude
us from adopting any statutory standard I'ule as to the time in which
the information must be returned? We use the word "promptly" here.
Could any law go any fuither than the word "promptly"?
Mr. CuAMTON. Or if the law did, if it contained a 10-day response
rule, it would have to contain some exemptions for agencies that are
very far flung, or where the infonnation is not easily available. For
example, someone may make a request to the Department of the
Treasury, and it may involve a matter in which the file is kept in
Anchorage, Alaska. In order to find out if the Anchorage office has
the in formation, or what it is, the Government has to make a number
of internal communications.
123^'
I think you are right in saying that a great deal of flexibility, dis-
cretion, and good judgment is ine\ital)ly going to he required in the
administration of the act by Government officials. We cannot put it in a
Procrustean mold. The Conference said to the agencies that in general
they should respond to an information request in 10 days; and, if they
cannot do it in 10 days, they should at least inform the citizen why they
camiot do it in 10 days. If the agency cannot find the information, if
it does not have sufficient manpower, if it is checking with the Office of
Legal Counsel at the Department of Justice to see whether the infor-
mation is exempt from disclosure, the agency at least can tell the
person why it cannot give him what he wants right now.
Mr. ^IcTloskey. Have you looked at all at the concept of the om-
budsman in this connection ?
Mv. Cramton. Yes; we have. There have been a number of sugges-
tions from time to time that the Administrative Conference constitute
itself as a sort of ombudsman and otfer to receive citizen complaints
against the Federal Government, and handle them and review them,
and so on. We have taken the position that to do that without either
explicit congressional authorization or appropriate funding by the
Appropriations Connnittee would be unwise.
But the Conference has devoted a great deal of study and attention
to the handling of citizen complaints, and plans to do more. We are
embarking on a very substantial comparatiA'e study of the procedures
by which agencies of the Federal Government handle citizens' com-
plaints : How long does it take them ? At what level in the agency is
the complaint handled? What resources are devoted to competent
handling^ Does review of the complaint lead to a change in result?
Mr. McCloskey. My question goes just to this, the present remedy
for denial of a citizen's request for information is through the Federal
courts, and there has been a growing consideration of the whole con-
cept as to whether Government has grown so complex, so vast and
comprehensive, and so intangible, and I might say even to Congress,
as to make some of these executive agencies seem fairly impenetrable.
Would there be any merit, or have you made any study of setting up
an ombudsman to represent the citizen in his search for information ?
]Mr. Cramtox. I think it would be a difficult area for an ombudsman
to get in until the citizen has exhausted the available remedies. The
available remedy, of course, is not only the opportunity to file a court
suit and get a judicial interpretation of whether the requested informa-
tion falls within one of the exemptions. There is the further possibility
that the Office of Legal Counsel at the Department of Justice can play
a unifying role in creating precedent and good governmental policy.
The Office has done this to a degree, and it may be that that role could
be expanded by conferring u[)on the Department of Justice some ex-
plicit regulatory authority to interpret the Freedom of Information
Act.
Since the Department of Justice will have to defend a Federal
agency if a suit is brought, many agencies refer the hai-d. trouble
cases to the Office of Legal Counsel of the Department of Justice for
advice. There is a small staff in that office that spends a great deal of
time on freedom of information problems. Since the Office gets a wide
variety of Information Act problems from all over the Federal Gov-
1240
ernment, it tends to liave a broader view or perspective than any
individual afrency.
Mr. McCloskey. But, they are located here in Washington.
Mr. Cr.\mton. That is right.
Mr. McCloskey. Well, I think every Congressman has this problem,
and I suppose we get 10 letters a month, or maybe 50 letters a month
from constituents who say that they have run into arrogance, or abuse
and denial of information by some Federal agencies back in the Dis-
trict. For example they would like the FHA or the Corps of Engi-
neers to explain something or give them certain records and these
agencies vary in responsiveness to the citizens.
The Congressmen, individually then, perform somewhat of an om-
budsman position today in the search for information. One goal in
considering how we tighten up the Freedom of Information Act is
to alleviate this citizen despair, dismay, and anguish with a Govern-
ment which seems to him abusive, or self -protective. Might not the
ombudsman concept that has been adopted in some foreign countries
be preferable to the current situation ? There could be a legal office
in the city of "Washington, D.C., and then we have 435 individual
Congressmen, plus a varying set of circumstances across the T'nited
States, which makes it almost impossible to apply given law or given
requirements to any specific agencies, the ombudsman might be the
appropriate alternative.
Mr. Cramtox. Yes; T think that it would. Statutory creation of
some kind of new instrumentality, however, would be required. There
are two bills pending in the Congress now that purport to deal with
this question.
One is a bill that Congressman Reuss has introduced at various
rimes which would build up the congressional casehandling of citizen
com))laints. It would create an office of constituent assistance, I
tliink it is called, which would handle complaints uniformly, expedi-
tiously and professionally for those Congressmen who wanted to
refer citizen-complaint letters to it.
The other proposal, sponsored by Senator Javits. would create
in a limited area a new and experimental ombudsman institution
Avhich would handle whatever citizen complaints fell within its juris-
diction,
I think you are right in suggesting that the Freedom of Informa-
tion Act raises the kind of questions which, if we did have an ombuds-
man institution in the Ignited States, it would devote a lot of time
and energy to.
Mr. McCloskey. Well, let me go to one final point, and that is this
question of executive privilege, and this is with reference to the ex-
emption Xo. 5. interagency or intra-agency memoranda. Last spring,
we received the testimony of then Assistant Attorney General William
Rehnquist before this subcommittee in which he allejred that executive
privilege really applied to any advice given within the executive
branch by one official to another who might not give candid advice
if he knew that it was going to be made available to the pulilic.
And. of course, the broad interpretation of Mr. Rehnquist's comment
at that time, with this exemption 5 in here, would mean that an}- time
a Government official gave an opinion to another Government official,
that would automatically be, or could be claimed as an exemption. Do
1241
you have any recommendation on executi\o privilege as defined in that
manner ?
Mr. CR.VMTON. No ; I do not. I think it is a very complicated question.
At one extreme there is the constitutional issue of how much the Presi-
dent, as a separate branch of one of the tliree branches of the Federal
Government, is innnune f I'om efforts that )ni<j:ht be viewed as interfer-
ing witli the (executive operation. The President's executive privilege,
however, surely is much more limited than the broad view that any
memorandum lietween an official of the General Services Administra-
tion and one of the Office of Management and Budget — or of one execu-
tive department and one of another executive department — is not sub-
ject to disclosure because it is privileged under the Constitution.
There is a broad range of material on which Congress clearly can
establish an infonnation policy. It is a policy question for Congress.
You do not want to go too far in forcing officials to write down every-
thing, or in forcing them to write it down with such care that they are
not very candid or frank in what they say because they anticipate that
somebody will be looking at it and trying to make adversary^ use of it.
Mr. McClosket. Such as Mrs. Beard's alleged memorandum?
Mr. Cramtox. That is right. There will be consequences on Govern-
ment recordkeeping, affecting the efficiency of Government and the
type of information that is kept in writing, if you go too far in requir-
ing disclosure. And there is a little bit of a question as to what extent
Government officials have a certain degree of privacy within their own
offices.
Mr. McCloskey. Let me put a specific question to you on this point
to see if I can get a specific answer with reference to an example. Under
the exceptions of subpai-agraph (b) the section does not apply to mat-
ters that are specifically required by Executive order to be kept secret
in the interest of national defense or foreign policy. I do not think any
of us would have any objection to advice given to the President or
interagency memos related to foreign policy or national defense, but
we had an' example over the last several years where the Executive
received the so-called Garwin report on the SST, not a matter con-
nected with foreign policy or national defense, and when this commit-
tee requested it under the law, section 2954 of the United States Code,
our request was denied.
The seven of us who were applying for the information asked the
Executive, and we got the response back that this Garwin report was an
internal Government document and not to be released to the Congress
of the United States. Presumably that would apply under section 5
here. Is there any need for section 5 ? Can you conceive of any inter-
office memorandum, outside of the field of national defense or foreign
policy, that need be kept secret?
Mr. Cramton. I do not have, really. I think, sufficient knowledge
or judgment on the question. I am disinclined to express a view on
what I think is a question of substantive policy and not one of admin-
istrative procedure.
Mr. McClosket. Well, certainly when you get a report on an SST,
and the executive comes to the "Congress and asks us to vote $400
million to keep the SST going, but declines to give us a report that
the executive has paid for, certainly that is an example you can com-
76-253 — 72 — pt. 4 16
1242
mont on. Either it is rightly or wrongly withheld from ns. What is
your opinion?
Mr. Cr.\mtox. I do not have an opinion. I have not studied the
details. Other than some newspaper references. I do not know what
the material sought was, nor what the basis for not revealing it was.
The competing arguments are plain. Citizens ought to know impor-
tant things that the Government is doing or thinking of doing. On the
other hand, there are opposing policies. Officials of Government have
got to be able to try out ideas, to assemble information without run-
ning the risk that they are going to always be cross-examined about
their thought process or about the alternatives that they considered
and rejected. There is a question about the efficient conduct of Govei'n-
ment, and these are issues on which the Committee on Government
Operations, it seems to me. is in a far better position to state national
policy and arrive at conclusions than I am as an untutored lawyer.
Mr. McCloskey. Well, what is your opinion as chairman of the Ad-
ministrative Conference of the United States, this goes to the heart
of the real problem before us. does it not ?
Mr. Cr^^mtox. It goes to the substantive balance of conflicting poli-
cies which relate to the concern for official privacy and for internal
governmental efficiency. My reference to privacy is to the sphere of
privacy that employees and officials have in their work.
Mr. McCloskey. But. this is the point I want to make to you. Let
us take the SST. for example, or any other project that the Govern-
ment might propose that is solely within the domestic field.
Mr. Cramton. Take Judge Mehrige's decision on school busing down
in Eichmond. Presumably a law clerk prepared memoranda for him
and sketched out alternatives, and so on. The decision is of great pub-
lic importance. Should the law clerk's memos be revealed, and, if so.
to what extent?
Mr. McCloskey. Well, what is vour feeling on tliat ? What do vou
think?
Mr. Cramton. I think not. T think it would destroy or interfere with
the intellectual process that judges are supposed to go through, and
thus interfere with their independence. And T think the same is true
with some official 1)ehavior. If policies of this kind are wise for the
executive branch, should they not be applicable to other institutions
of Government? If they are. why shouldn't they be applied to the
courts or to the Congress itself ?
Consider the information available to the public by this com-
mittee and its members. Are there certain kinds of information which.
if thev had to be recorded or made available to people who wanted
to look at them, would to some extent interfere with your carrying
out your duties? As you know, the range and variety of information
requests is endless. It is a difficult job to strike a balance between the
right to know on the one hand and efficient, effective conduct of
Government programs on the other. I do not know where that balance
is or should be struck, on all of these matters.
^\v. McCloskey. You have drawn the parallel to the judicial process
whei-e tlie judge goes through the weighing of different factors, and
finally reaches his opinion, but setting aside the judicial process
(|uestion. we are concerned here with both the public's right to know
1243
and of our right to get at the facts as they may be for our legishitive
responsibilities.
But, the real question I want to put to you is whether in the proc-
esses of the executive branches of Government, in matters aside from
the peculiar problems of the executive branch in handling foreign
policy and defense, do you conceive in the domestic area — take the
SST, building the Three Sisters Bridge, or any otlier public project
in the domestic field, that these reports in their final form which go
to the executive should not be made available both to the public and
to the Congress^
Mr. Cramton. Executive agencies are required in ail of these actions
to make a great many documents publicly available. In the SST and
the Three Sisters Bridge situations the more specific requirements
of the National Environmental Policy Act require some pretty elab-
orate publication and circulation of information, consideration of
public comments, and the like.
How much further should we go? And how can you define the
category of memoranda that you want to reach ? With respect to the
particular report, the Garwin report in connection with the SST, I
have only a very limited familiarity. But what about a whole series
of memoranda by people in the Department of Transportation that
dealt with various aspects of the question? What about information
on phone conversations ( Where are you going to draw the line, and
what language is going to permit you to draw the line? Do you not
ultimately on these questions, like tlie fee question, have to rely on some
agency's flexibility and judgment?
Mr. McCloskey. Mr. Cramton, I am asking you specifically about
section 5 of the exemptions, and if you use Mr. Rehnquist's definition
and the interagency memorandum as an exemption, then you can
exempt everything that passes from one part of the Government to
another, can you not?
Mr. Cramton. I think that is too broad a brush.
Mr. McCloskey. Do you have any specific recommendations?
Mr. Cramtox. Xo, just as with respect to the internal agency mem-
oranda. I do not have a specific suggestion as to how you could tailor
it down. I think there is a great problem how you narrow it down. On
the privacy exemption, I guess I would remove the words "clearly un-
warranted.'' In that respect maybe the statute might be broadened a
little l)it. I think that anything that constitutes an invasion of privacy
of an individual outside Government, perhaps the agency should be
allowed to not nuike the information available.
Mr. McCloskey. So, you would broaden No. 6 by taking out "clearly
unwarranted" and you have no recommendation on subsection 5 (
Mr. Cramton. That is right. In fact, my general impression is that
the complexity and the difficulty of amending the act at this time
makes it probably desirable to let 'the court decisions struggle along for
a few more years and get a common-law accumulation of precedents.
That may produce a very intelligible and sensible pattern. I agree that
there is some cost in waiting for judicial clarification : there are some
people who do not get information in the meantime who should. But
unless vou have a fairlv clear idea of how vou are going to tackle these
1244
impoi-tant exeinptions, it may be better just to leave things as they
are for the time being.
Mr. McCloskey. Thank you. I have no further questions.
Mr. MooRHEAD. Mr. Cramton, would you state for the record the
Conference's recommendation for the 10 and 20-day tune period for
action bv agencies ?
Mr. Cr.\mton. The guidelines portion of the recommendation
(part B) states in paragraph 4(a) that the agency should respond to
the request within 10 days or give a reason wliy tliey cannot respond
within 10 days :
"Every agency should either comply with or deny a request for rec-
ords within 10 working days."
That is not 10 calendar days, but "10 working days after its receipt
unless additional time is required for one of the following reasons."
And then some reasons are spelled out that in practice seem to be
sound reasons why the agency might need more time. And then it goes
on and says :
When additional time is required for one of these five reasons, the agency
should acknowledge the request in writing within the 10-day period and should
include a brief notation of the reason for the delay and an indication of the
date on which the records would be made available or denial would be
forthcoming.
And the 10-day period runs from the receipt of the request by the
agency.
Mr.' MooRiiEAD. Thank you. I think that is sufficient, Mr. Cramton.
On page 10, you state that several agencies have mandatory minimum
charges for handling requests, whether any documents are provided or
not. You mean tliat some agencies can deny a request for information
and still make a charge for it ?
Mr. Cramton. That is right. ]\Ir. Cushman has a chart that sum-
marizes the agencv rules on fees. Perhaps he could give you an example.
Mr. CusHMAX.'l believe the Department of Commerce charges a $2
fee, irrespective of whether any information is, in fact, produced. In
other words, just for tlie handling of the request. I believe in some
situations this is also true of the Department of Justice.
^Ir. Cramtox. There would be general authority under the agency
rule to waive the fee, but on its face it purports 'to be a mandatory
fee that is applicable to all requests, whether or not information is
forthcoming.
Mr. MooRHEAD. Mr. Cushman, that chart would be helpful as a part
of our record. Could you submit it ?
Mr. CrsHMAN. It is a working paper. We are still in the process, sir,
of evaluating comments Avhich are still coming in. I had hoped to
furnish to Mr. Phillips all of this information before your record
closed.
Mr. MooRiiEAD. Fine. That will be fine.
Mr. CusmiAN. The chart is part of our continuing study in this area,
but at this particular moment it is not complete.
Mr. Cramtox. We would be pleased to revise it, to get it typed —
it is now in pencil form — and to submit it for inclusion in the record.
(The material follows :)
1245
TABLE OF AGENCY FEES FOR THE PRODUCTION OF DOCUMENTS i
Cost per page
Agency CFR citation Minimum charge photocopy Clerical search
AEC 10CFR,pt.9 51; $2.50 (search)... $0.25 $5 per hour.
CAB 14CFR,pt.389 $1 $0.35
Department of Agriculture. .__ 7 CFR, pt. 1 $1; $1 (search). $0.05 $4 per hour.
Department of Commerce 15 CFR, pt. 4 $2 (nonrefundable); $0.25 $5 per hour.
$2.50 (search).
Department of Defense 32 CFR, pt. 286a $1.50; $2.50 $0.25 $5 per hour.
(search).
Department of Health, Edu- 45 CFR, pt. 5 Published sepa-
cation, and Welfare. rately by oper-
ating agencies.
Department of Housing and 24 CFR, pt. 15 $1 (none if less) $0.25 $5 per hour (1st hr.
Urban Development. no charge).
Department of Interior 43 CFR, pt. 2 IRules are not
specific]
Department of Justice 28 CFR, pt. 16 $3 (nonrefundable).. $0.50 1st page; $0.25 $1 per U hr.; 1st
additional. '4 hr. no charge.
Department of Labor 29 CFR, pt. 70 None $0.30 $1 per ,U hr.; 1st K
hr. no charge.
Department of State 22 CFR, pt. 6 $3.50(nonrefund- $0.40 $3.50 per hour.
able).
Department of 49CFR,pt.7 $3 $0.50 $3 per hr. (or actual
Transportation. cost, if more).
Treasury 31 CFR,pt. 1 2 2 (search) $0.10 $3.50 per hour.
EEOC. 29CFR,§1610 None $0.25 $3.60 per hour;
$0.90 per H hour.
Farm Credit Administration... 12 CFR §604 [Rules are not
specific. 1
FCC 47 CFR.pf. 0§441... [New rules under
consideration.)
Federal Maritime Commis- 45 CFR, pt. 503 None $0.30 $4.50 per hour;
sion. 3^ hour no charge.
FPC 18CFR,pt. 1 [Available at Ofhce of
Public information.)
FRB 12CFR,pt.261 None $0.10 $5 per hour.
FTC 12 CFR pt. 4 None $0.30 Reasonable fee
v^here applicable.
GAO.. .. . 4CFR,pt.81.. $3 $0.25 Notstated.
GSA 41 CFR, pt. 105-60... [Rules are not
specific.)
ICC .. 49 CRF, pt. 1002 $1 $0.25 $3 per hour.
NASA 14 CFR, pt. 1206 None $0.07.... $1 '4' hour; 1st ^
hour no charge.
NLRB 29 CFR, pt. 102 [Rules are not specific]
OEO .- 45 CFR, pt. 1005 None $0.10 maximum
Railroad Retirement Board... 20 CFR, pts. 200, 262. [Rules are not specific.)
Renegotiation Board 32 CFR, pt. 1480 $2... $0.25 $4 per hour; isi
hi hour no charge.
SEC 17 CFR, pt. 200 [Rules are not specific]
SSS 32 CFR, sec. 1606.57 $1 (includes search).
SBA 13 CFR, pt. 102 $0.25 $2 minimum.
U.S. Commission on Civil 45 CFR, pt. 704 $1 $0.10 $5.32 per hour.
Rights.
USIA. 22 CFR, pt. 503 None $0.40 $5 per hour.
VA 38 CFR, sec. 1.527... None.. $0.25 $3 per hour; 1st
Pi hour no charge.
' This table was prepared as a working paper in connection with administrative conference efforts to implement recom-
mendation 24. It is not a complete list of agencies having rules on the subject, the extracted material is highly abbreviated
and it does not take into account actual agency practices to waive charges in many circumstances.
Mr. MooRiiEAD. Thank you.
On page 10 you describe "Recommendation 24," and the first gen-
eral principle you say is a restrictive interpretation of the exemptions
authorizing nondisclosure. Would that apply, or how would it apply
to the first exemption involving national defense and foreign policy?
Mr. Cramton, It would apply to all of them. The language '"Na-
tional defense and foreign policy'' can be given a very latituciinarian
interpietation, or it can be given a narrow one. Take dumping deter-
minations or countervailing duty matters before the Bureau of Cus-
toms and the U.S. Tariff Commission. In a sense those are part of
1246
foroiffn policy, but really they are requests by domestic manufacturers
that initiate a proceeclins: in ^vhich Conarress has required that these
aijencies make certain determinations. My view is that there is a
legitimate interest on the part of the general public in those matters,
even though they are related to foreign affairs, as lots of things are.
The SST program, for example, could have been related to foreign
affairs, and there was some argument on grounds that foreign ex-
change, or our leadership in the free world as the producers of com-
mercial airlines, was involved.
If vou are in an ambiguous area, one ought to not strain to put
something within the national defense or foreign affairs category.
It really ought to be squarely in there. Take, for example, decisions
made by the post exchange people about what commodities they ai-e
going to carry in post exchanges, or tests that have been run on ap-
pliances and products that are for sale in post exchanges. I would not
view that information as falling within exemption 1, and yet the
most latitudinarian possil)le interpretation would say yes. it is mili-
tary', it is the post exchange and it occurs on a military base and it is
national defense. T think that is too broad.
So, we urge a very restrictive interpretation.
]Mr. ]MooRiiEAD. It says "specifically required by Executive order to
be kept secret."
IVfr. Craimton. Right.
Mr. ArooRHEAP- Are these dumping matters classified?
Mr. Cramtox. No ; no.
!Mr. INIooRHEAD. Well, then, they would not he. certainly, subject to
the exemption?
Mr. Craivttox. T am certain that countpi'vailing duty matters are
secret and information on them is exceedingly difficult to get. if not
imoossible at the present time.
Mr. MooRHEAD. You say they are classified secret?
Mr. Craiviton. T think not. Only that as a practical matter the infor-
mation is exceedin.<ily difficult to get.
'Sir. ]\fooRHK\D. It would seem to me. taking the first exemption and
your first principle, that is a restrictive interpretation of the exem]")-
tions authorizing nondisclosure. Reading those to<rether. an agency
which has a document bearing a classification label that has been re-
quested, that document should be reread to determine whether or not
it really could be declassified at that particular time
"Mr. Cra]mton. T think that is right.
Mr. MooRHEAD Ccontinuing). And not just sav. well, it has a classi-
fication stamp on it. and it cannot l)e made available.
^Fr. Craimtox. I think that is right.
'Sir. ]VrooRHEAD. Did a'ou have a question. IMr. Phillips?
Mt-. Pttitxtps. Yes. sir. Mr. Chairman.
Getting back to this question of interairency memorandums that Mr.
McCloskey raised a moment ago, the subconunittee has had prepared
for it an analysis of the court cases that affect the nine exemptions un-
der the act. I think we should point out that in six out of the 10 cases
that have been decided by the courts involving interagency memoran-
dums, the courts have held for the public aud airainst the Government's
position. I would likf to quote just briefly fi-om this study, which later
Avill be made a pait of the record of these hearings, on this point :
1247
The exemption protecting interagency and intraagoncy memorandums or let-
ters was intended to encourage tlie free exchange of ideas during the process of
deliberation and policymaking. It has been held to protect internal conimunica-
tions consisting of advice, recommendations, opinions, and other material re-
flecting deliberative or policymaking proces.ses. But, not purely factual or
investigatory reports.
And in the case of Soucie v. DavUh which involved the SST and the
report of the Garwin Committee, the court paid, in this part of their
opinion :
Factual information may be protected only if it is intriciitely intertwined with
policymaking processes. Thus, for example, the exemption might include a
factual report prepared in response to specific questions of an Executive officer
because it.s disclosure would expose deliberative processes to undue public scru-
tiny. But, courts must beware of the inevitable temptation of a (iovernment
litigant to give this exemption an expansive interpretation in relation to the
particular records at is.sue.
I think perliaps that will help clarify a little bit what the court?
have drawn as a guideline in this exemption (b)(5) area.
Mr. Cramton. One of my reasons, if 1 might add a comment, for
recommending that court decisions ought to be left alone for a while
on the basic substantive questions is a belief that the judges, in fact,
will be quite receptive to the policies that underlie the Freedom of
Information Act. The trend of decisions is likely to be one, over time,
that takes this restricted interpretation of the exemptions that the
Administrative Conference urged agencies to take in their recom-
mendation.
If you can come up with good language that clarifies the exemptions
without causing more harm and confusion than you want. fine. But, if
you camiot draft such language, you can leave things the way they
are now, wdiich means that a fairly receptive judicial reception is likely
to be given to the freedom of information policies.
]Mr. Phillips. I just have one other question, ]Mr. Chairman.
Could you comment briefly on the extent of compliance by execu-
tive agencies on the indexing requirements under 552 (a) ?
]Mr. Cramtox. I would say that there has not been a great deal of
compliance. The problem, as viewed by the agencies, is one of a lack
of resources and money. It just apparently is not the kind of issue on
which an Appropriations Committee will enlarge an agency's re-
sources. It takes a lot of time and energy to prepare a good index, and
it takes some pretty good people. It is not just a totally clerical kind
of operation. If an index is to be useful, it has to be prepared, and the
concepts and categories have to be prepared by intelligent minds. Most
agencies just have not had the resources to dcA'ote to it.
"Agencies have made a priority determination that an index is less
important than other activities that they have to deal with. In suni-
mary, the record of compliance on indexing is not very good, and it is
unlikely to get better until additional funding, specifically for the
preparation of indices, is made.
]Mr. Phillips. The point I am trying to make is this is such a crucial
area in terms of public access because of the requirements of an '"identi-
fiable record." If an individual who goes into an agency that does not
have an adequate indexing procedure, or perhaps no indexing proce-
dure, it is going to make it that much more difficult for him to identify
properly the record that he is after, and make it easier for the agency to
1248
deny his request. When Congress framed the Freedom of Information
Act it had in mind a proper indexing procedure so that the individual
wouhl not run into this roadblock, as is often the case, of not being
able to define a particular record.
So, it is crucial to the overall thrust and the intent of Congress
when it wrote the act.
Mr. Cramtox. Some agencies provide a great deal of assistance in
finding particular items, largely through the trained personnel of
librarians in the libraries and information rooms that many of the
agencies have. I know this has been experienced by membei"s of my
staff who have gone to agencies and did not know quite what they
were looking for. Many times they have gotten just extraordinarily
friendly assistance and help in locating the relevant materials. And
this is from employees who have no int-erest one way or another except
to be helpful to requests that they receive.
I would not paint the situation as a totally black picture. The prepa-
ration of indices seems to be a matter which agencies find losing out in
the priorities for their resources. It would be helpful if we had more
and better indices.
Mr. Phillips. I am talking about that information that is sensitive,
which perhaps there is a predisposition to withhold anyway. This pro-
vides an additional cloak under which it can be hidden. The fact that
there is not an adequate index that identifies that bit of information
being sought provides that cloak.
Mv. MooRiiEAD. Off the record.
(Discussion off the record.)
Mr. ]MooRHEAD. jVIr. Erlenbom.
Mr. Erlenborn. I have no questions at this time, Mr. Chairman.
Mr. MooRHEAD. Mr. Cornish ?
Mr. Cornish. Yes ; thank you, jNIr. Chairman.
Mr. Cramton, I would like to return to this question of inquiring into
the reasons or the motivations of the requester for information. Did I
understand you to say that you felt that one of the circumstances in-
volved might be the possible embarrassment of the agency?
Mr. Cr-vmtox. Not a legitimate one, but one which some agency per-
sonnel will sometimes take into account. They should not. I was trying
to reflect the realities of the world as we know it, and not necessarily
the ideal world that we would like to live in.
Mr. Cornish. Well, just to make the record clear, you are not sug-
gesting that this is a legitimate cause to deny information?
Mr. CiLVMTON. Xo; ideally the agency should be the most responsive
to the "knight in white armor" who shows up representing a public
interest group, whether it is environmental oi- consumer or whatnot,
who wants information wliich will expose the wrongdoings of the
agency. I just take it as a practical matter that the reception that that
peisoii receives is likely to be somewhat less favorable. At least more
care will be given in terms of passing on the request.
Mr. Cornish. You made the point that in your view that when in-
formation which has commercial value is provided, corporations or
wliatever it might be should be reimbursing the agency for the costs
involved. Let us assume just for tlie sake of discussion that such in-
formation might have great connnercial value, and would result in
1249
considerable business for that company, Avhich in turn would be re-
flected in rather large tax revenues to the Federal Government, which
would not be otherwise obtainable by that company.
In other words, what I am suooesting here is that perhaps hi some
cases the access to the information makes it possible for a business
endeavor to bring to the U.S. Treasury quite a consideral)le amount
of revenue.
Mr, Cramtox. I can certainly conceive of that situation occurring.
In that situation, of course, the commercial interests will have no ob-
jection to the payment of a fee which is based upon the professional
services re(|uired to produce it.
We are talking about information wliich has great value. If the
(lovernment were oi)erating as a prudent l^usinessman, it would auction
valuable information oti' to the highest bidder. It does not do that.
The only charge (xovernment will make or should make will be a
very modest charge that reflects the actual professional and clerical
time expended in assembling the information. That charge is going
to be much less than the real value of the information.
You will not deter requests for information that has commercial
value by imposing a modest charge. You merely prevent the general
taxpayer from assisting in giving a windfall to a private person. I see
no reason why a windfall should be given to the corporation that gets
the Government, at the (xovernmeufs own expense, to collect informa-
tion with which the corporation can ])roduce revenue.
Mr. CoRNisii. The receipt of the taxes might wholly absorb the cost
of providing such information, would it not ?
Mr. Cramton. Why shouldn't it far more than absorb the total cost?
Mr. Cornish. I think it could; and is it not true tliat many agencies
of Government now, such as the Commerce Department, and other
agencies, compile large amounts of information which they put into
the form of public documents which are used for commercial pur-
poses ?
Mr. Cramtox. There are some arguments in terms of governmental
economy that ought to be reflected in these discussions. Some Federal
agencies engage In widespread public information and propaganda
activities on the part of the Federal agencies. Others perform services
that benefit only very narrow interest groups and which do not have
beneficial effects on the general public. To wdiat extent should taxpay-
ers' funds be spent on agencies sending out tons of material to casual
requesters or to commercial requesters ?
One of my boys once sent a postcard to the Federal agency, which
shall remain nameless, asking about its activities and received at least
100 pounds of elaborate printed material over the coui"se of succeediiig
months. While I was pleased that the Go\ernment Avas so responsive
to his inquin\ it seemed to me that the i-esponse was somewhat exces-
sive in terms of the Federal Treasury. Perhaps the major reason that
the agency was so responsive is that' it was interested in engaging in
propaganda and public relations, and generally promoting its image
before the general public.
There are some arguments foi- efficiency and economy in Goxeiii-
ment, and I do not think those ought to 'be neglected in the zeal to
make evervthing available.
1250
]Mr. Cornish. Now on another matter — are you contending, at all,
that Federal officers have a privacy of a special kind which is in
addition to their own personal privacy ?
]Mr. Cramtox. No, surely no real privilege. It is just a question of
policy as to whether or not you want to make available every em-
ployee's memorandum, and whether that would interfere with the
eri'ective functioning of a particular office. I think it would be destruc-
tive if a judge's law clerk's memorandums, containing argmnents and
summaries and drafts prepared for the judge, were made available. I
think that would be harmful to the exercise of the judicial function,
because if that were done routinely it would force law clerks to be
much more careful about what they say. They could not respond to
judge's requests in the same candid, open, efficient manner.
Thei-e may be comparable i)olicies that ought to be taken into ac-
count in terms of the operation of an administrator's office. He ought
to be able to get private views from subordinates. He ought to be able
to get memorandums from members of his staff without worrying
that each memorandum is going to be publicly available.
Where you draw the line between these compelling, competing poli-
cies, I do not know. I leave that to the subcommittee.
Mr. CoRxiSH. Well, I would just comment that this may be private
advice, but it does involve the public business. Do you not think that
we sliould know what goes into Government decisions as well as the
d(>cisions themselves? How else can you test the validity of some of
those decisions ?
jNIr. Cramtox. Because you require that the end product spell out
the reasons and be persuasive, and, if it is not, it may be attacked on
the merits. Agency decisions are subject to judicial review, and they
will be set aside if they are arbitrary or capricious, or if they do not
rest on substantial evidence in the record upon which they were made.
And Congress can always come along and change any of these
decisions.
Mr. CoRxiSH. But oftentimes they have to take these decisions or
reports on their face, without knowing the eleinents which went into
them, and I think this is an im])ortant consideration.
Mr. Cramtox. It is my view that the persuasiveness of a report is
enlarged if it takes into' account the arguments the other way. So, I
think a good administrator, when he is engaging in something that he
knows is controversial, will be candid in his final decision or report in
terms of revcniling the negati\e arguments, and then rebutting them
and resi)onding to them and indicating why he thinks they are out-
weio-hed. That is surely true in terms of drafting a good environmen-
tal impact statement. Even if the administrator decides that the other
relevant policies outweigh environmental values, if he is going to do
liis job, he has to be candid about facing up to the arguments the other
way. We should require him to do that, at least by making a negative
judgment about what he does.
Mr. CoRXTsii. Well, you would not limit this accountability just
simply to the man who puts the final siguatui-e on the document or re-
port or whatever it might be. would you ? Do you not believe that his
subordinates also have a public accountability ?
Ml'. Cramtox'. Yes: depending on what functions have been dele-
gated to them; and what decisionmaking process you are talking
about : and what kind of information is sought.
1251
I tliiiiJc there are so many variables and the piohU-nis are so complex,
that I am reluctant to make a sweeping generalization other than that
I do not think any sweeping generalization is likely to be very useful.
Mr. CoRxiSH. Well, I just personally fhid it difficult to understand
tlie point that subordinates should not be able to defend theii' j)ositions.
as well as their superior's. This really escapes me, and I really do not
think the issue of privacy as such enters into it. But, that is a per-
sonal comment.
How do you feel about making public the amount of subsidies paid
to farmers"? Do you think those ought to be made public Icnowledge?
Mr. Cr.\mton. I would think so.
Mr. C'oRxiSH. You do not have any problems there ?
Mr. ('R.VMTOX. In fact, I think they may be required by law to be
made available, now, in terms that they are actions of the
Mr. CoRxisii. Well, the privacy question, you know, has been
brought into it. What about the names and the addresses, or the sala-
ries of iniblic officials I
Mr. Cramton. That is all spelled in statutes and in appropriations
material, and I think it is part of the public domain.
Mr. CoRxiSH. You do not have any trouble with that ?
Mr. Cramtox. No.
Mr. CoRxiSH. Thank you, Mr. Chairman.
^Ir. MooRHEAD. Thank you, Mr. Cramton and Mr. Cusluiian.
The subcommittee will now hear from Mr. Eeuben Robei-tson. at-
torney at law: Mr. Harrison Wellford and Mr. Peter Schuck of the
Center for the Studv of Kes]ionsive Law. and Mi-. Bertram Gottlieb of
the Transportation Institute.
Gentlemen, you notice the time. I hope that we can be brief, so that
the subcommittee will have an opportunity to exchange ideas with
you.
We will hear fii'st from Mr. Reuben Robertson.
STATEMENT OF REUBEN B. ROBEETSON III, ATTORNEY. CENTER
FOR THE STUDY OF RESPONSIVE LAW
Mr. RoBERTSox. Mr. Chairman, I am Reuben Robertson and, for the
record, I am also associated with and a consultant to the Center for
the Study of Responsive Law. I would say that between the three of
us here who are associated with the center, we have probably had as
much direct adversary experience, both administratively and in litiga-
tion, with the agencies under the Freedom of Information Act as any
group.
I personally have been involved in three lawsuits that wei-e neces-
sitated against agencies when they wrongfully withheld information
from me and students working with me
Mr. Wellford has been involved in three lawsuits, and Mr. Schuck
is presently preparing several lawsuits. We are all ])reparing more, be-
cause of the difficulties we have experienced.
The ]ioint that I would like to stress, by way of introduction, is that
the real problem of the Freedom of Information Act today, in my
opinion, is much less the ambiguity of the statute, which has l-)een
talked about bv a lot of coinmentatoi's. than tlie intentional violation of
the clear provisions of this law by the Government agencies. We have
1252
had quite a bit of experience with particuhir agencies and officials who
have a practice of holding out information, and playing a waiting
game with citizens who are asking for information, until they either
go awrt V or tile suit.
The filing of any suit, of course, entails obtaining legal counsel, it
involves the expenses of legal costs and fees, and a great deal of time
and delay. Most people, I think, when they are confronted with this
kind of an approach do tend to go away. "Often we have found that
just the filing of a suit is enough to get the Government to release the
information. This is one area that very much needs to be addressed
by the committee.
One thing that is needed is to explore possible sanctions against the
agencies, or against the particular officials involved, for wrongful
withholding of information. One suggestion that you might want to
consider is that the agency involved should pay the planititi"s costs
and attorney's fees if the litigation should prove to have been necessi-
tated by wrongful withholding on the agency's part. That is one aspect
of the problem of costs, and 1 would also like to address several other
areas.
I do not have any prepared statement, so I am perfectly willing to
respond to any questions as we go along.
Mr. MgCloskey. Would the chairman yield (
Mr. MooRHEAD. Yes.
Mr. McCloskey. Did you have any statutoiy precedent where the
Government is assessed attorney's fees or costs?
Mr. CoPENHAVER. The civil rights statute.
Mr. Phillips. Some civil riglits cases in the Civil Kights Act.
Mr. McCloskey. Under the Civil Rights Act 'i
Mr. Erlexborn. Would the gentleman yield ?
A similar provision is in the recently passed Equal Employment
Opportunity Commission amendments.
Mr. Robertson. Generally, of course, as you point out, the rule is
that the Government does not pay the plaintiff's costs and never pays
the attorneys' fees except with special statutory provision.
Besides the cost of litigation and the cost of counsel, the matter of
search fees have been a matter of some discussion before this commit-
tee. My own view is that the search fee should be eliminated entirely,
because it is essentially inconsistent with the basic provision of the
Freedom of Information Act that the Government should properly
index and file and maintain its records.
The only reason that a search fee would be necessary is that there
is no index in the agency of what information is available and where
it is located. Very few, if any, agencies have gone to any kind of auto-
matic data processing. Very few have comprehensive resources where
you can go and find out what is available, and how you can get it, and
who you are supposed to ask.
One particular incident, Avhich demonstrates the intentional harass-
ment aspect, occurred when one of the students working under me in a
study of air safety asked an official at the Federal Aviation Adminis-
tration for the names of the 26 inspectors who reported directly to
him. He was charged a search fee for that information. That is typical
of what can hai)peu.
1253
Mr. MooRHEAD. Why don't we hear from the other witnesses? Mr.
Harrison Wellf ord and ISIr. Peter Schuck.
Mr. Erlenborn. Mr. Chairman, would you yield for a question at
this point ?
Mr. ]MooRHEAD. Surely.
Mr. Erlenborn. Would you differentiate in your recommendations
for search foes between a member of the general public asking for a
search and a commercial organization asking for a search?
Mr. RoBERTsox. Well. I think
Mr. Erlenborn. For commercially valuable material?
Mr. Robertson. Yes, essentially thei-e should not be a problem of
extensive search costs, because there should be one place you could go
in the agency and find oiit what information is there that you need,
and then make a simple request for it.
We should not have a process of people going through files, and
spending hundreds and hundreds of hours. Certainly a corporation or
a commercial organization that wants to come in and have a special
study made, or a special computer printout run, or something to that
effect, certainlv the costs of that kind of job should be assessed. But,
my suggestion is that search fees are being used as a barrier rather
than on the basis of a legitimate reimbursement aspect.
STATEMENT OF HARRISON WELLFORD, CENTER FOR THE STUDY
OF RESPONSIVE LAW
INIr. Wellford. Let me add one point in response to your question.
I think that there probably is reason for a distinction between say
costs for companies seeking commercial information that will help
them economically, and a case that I was involved in just last week
where a scientist who is teaching at the University of Georgia requested
information on a particular pesticide that he was interested in, and
was asked to give some assurance that he could pay at least a fee of
$100 before they would go to the trouble of making the search.
Now, I think there ought to be a provision for waiver in hardship
cases where the individual seeking the information clearly does not
have the means to pay a large sum.
I certainly agree with Mr. Robertson that if the information were
organized with access by the public to the information as a primary
goal, then there would liot be as much time required to find this data-
Let me give, if I may. one case history of our involvement, which
touches on a number of points already made this morning. Almost 3
years ago, we went to the Department of Agriculture to seek safety data
on a varietv of pesticides. The data was basically the various research
reports and experiments which tended to support a company's claim
that a pesticide was safe if used as directed.
Our motive was to get more outside scientists, particularly univer-
sity scientists involved in weighing the benefits and risks of pesticides.
Tlie first response we got from the Department of Agriculture ^^^s
that our request was not specific enough ; that is, the records were not
clearly identified. Tlierefore, we asked to see the indexes that USDA
maint"ained which would allow us to specifically identify this material.
1254
USDA said, they were sorry, but that the indexes they maintained
were intra-agency memoranda and, therefore, they could not make
these indexes available to us.
So. it was a eatcli-22 situation. We weie tokl our request was not
specific, and we were not given access to the indexes which woukl have
allowed us to make our request specific.
So, we went to court and we sued them on that point. And Judge
June Greene in the U.S. District Court for the District of Columbia
made the following findings:
"First that it is a violation of the act to withhold from the public
the means for requesting specific records."
"It is a violation of the act to withhold documents on the ground
that parts are exem])t and parts are not exempt."
This ruling curbs the TSDA's use of its contamination tactic, which
I will explain in a few minutes.
After we got this I'uling we went back ovei- to the Department to
look at the data, at least to look at the indexes that had been made
available to us. I want to I'ead briefly to you a record of the conversa-
tion that we had over thei'e when we went to see these records that we
had won as the result of the suit.
After we looked at the files, at these indexes, we found that the I'ec-
ords we wanted were in individual pesticide foldei-s called jackets. We
were talking to an official of the Pesticides Eegulation Division.
Our (juestion was : "Do you have any records of nonfarm pesticides ?"
We were trying to look into the amount of pesticides used around
the home.
We answered : "No, such information is contained only in the jacket,
tliat is, the folders on individual pesticides."'
Then the official asked : "Why do you want to know all of this ^ What
do you want to do with it ?"
Then, we responded : "I want to know about what safety criteria
certain pesticides have that have been registered."
"But why do you want to know that ?" they asked.
We responded : "Because I am interested in the infonnation that is
supposed to be. public. I would like to see tlie jackets for cei'tain
pesticides."
The Pesticides Regulation Division official responded:
"You do not seem to understand certain public information is really
confidential."
This is the replv : "But I thought confidential information was kept
in sealed envelopes in the jackets."
The response: "The envelopes are not sealed: but they can be easily
i-emoved, can they not ? "
"You do not seem to understand, the jackets contain comi)any cor-
resjwndence which might refer to confidential information. It would
be too much work for our stall' to read tlii'ough all of the corresi)on(l-
ence to remove references to confidential information."
Now, this is an example of contamination tactics that I am talking
about, where they intermix and connningle exempt and nonexempt in-
formation in the same file.
Now. the responses here might have had some justification except we
i-equ(>sted this infoi'iiiation 2 years before and thei'e was plenty of time
to reoi'ganize their filing systems so they would not have this com-
mingling problem.
1255
P>iit tliey liad not done sinythin^- about it.
So, we Anally said : "If we cannot see tlie jackets on individual i)esti-
cides, Avtlio can T'
The response came back : "Representatives of the manufacturers and
anyone else who Dr. Hays approves."
Dr. Hays at that time was the Director of the Pesticides Regulation
Section, and we asked who should Dr. Hays approve, and the answei'
came back : "That is up to him.'"
Well, at that time, I think that episode really does describe the sort
of philosophy with which that particular agency of the Federal
Government approached the public's right to know.
The final straw was wdien USDA stated that if the information were
made available, it would cost $91,840 to ])repare the registration files
for public viewing. At that point we decided to try to find other means
to get the information.
The second point I want to touch on briefly is the use of the investi-
gatory file exemption. We have tried to get information on enforce-
ment activities both on pesticides and on meat. Decisions by the dis-
trict court and the court of appeals help clarify exactly how this
particular exemption should be applied. Judge Xorthrup in deciding
Well ford v. Hardin in the district court, noted that the investigatory
file exemption under the Freedom of Information Act was not in-
tended to exempt all Government information about private enter-
prise and stated that the possible embarrassment to firms who had
violated, in this case, meat laws, was not a justifica,tion for this
exemption. Judge Xorthrup found the exemption was intended only
to prevent persons against whom the Government was enforcing the
law from obtaining an advance look at the Government's case, and
that it did not apply when firms which were the subject of Govern-
ment action had already received letters of warning or had their
products detained. This is important, because very often, when you
try to look into any kind of enforcement activities you will find that
all records pertaining to enforcement, even if it involves a case which
has been closed for 10 years, are still withheld from you on the
gromid that it fits within'this exemption of the Freedom of Informa-
tion Act.
Now, I think if these court decisions are sympathetically applied
by the agencies, we will have an easier time of it in the future. In
sunmiaiy, the specificity requirement, the arbitrary charging of fees,
the contamination or commingling teclmiques, and, finally, the inves-
tigatory file exemption are the areas where we have had the greatest
problem in getting information from the Government. At this point,
I would like to insert in the record a copy of my testimony before the
Senate Subcommittee on Separation of Powers on August 4, 1971.
(The statement follows:)
Prepar?:d Statement of Harrison Weli.ford. Center for Tufe Study of
Responsi\t] Law
Mr. Chairman. I appreciate the inyitation to give my views on governmental
i^ecrecy before this committee. Tliis committee has performed a great public
service in highlighting the patterns of secrecy which have often prevented the
Congress and the public from exercising responsibly their constitutional powers.
Because so much attention has been devoted recently to denial of information
about national defense and foreign policy, it is often overlooked that secrecy
seems to be endemic to all bureaucracies. It matters little whether the agency is
1256
concealing the latest move in Southeast Asia or the fat content of a hotdog. If
an oflicial feels the information may be embarrassing, the result is the same:
stultifying practices of evasion, delay, and arbitrary and discriminatory denials
in defiance of the Freedom of Information Act.
In the last 2 years the Nader task forces directed by the Center for Study
of Responsive Law have challenged the barriers to the citizen's right to know
in nearly 30 Federal agencies and found them formidable. We have found little
justitication for the "deep sense of pride" that President Johnson spoke of w^hen,
on July 4, 1966, he signed the Freedom of Information Act in the belief "that the
United States is an open society in which the people's right to know is cherished
and guarded."
In its contacts with Federal officials, the task force tried to convey information
about unrepresented constituencies. It also tried to free the officials of the
erroneous information which convinced them that problems did not exist. Charles
Frankel. in his memoir of his service in the State Department, gives a rationale
for this strategy :
I used to imagine when the Government took actions I found inexplicable,
that it had information I didn't have. But after I had served in the Govern-
ment for some months, I found that the issue was more complex : often the
Government does know something that people on the outside don't but it's
something that isn't so. . . After a while I came to suspect that I might not
be dealing with hard facts but rather with a world created out of hunch,
hope, and collective illusion.
Our investigators, therefore, had two tasks : To get the facts and to try to free
regulatory officials from the collective illusions which sometimes develop in
bureaucracies too long insulated from public scrutiny. Neither task was easy.
In Washington's regulatory agencies, information, especially timely informa-
tion, is the currency of power. The fact is illustrated in the reply of a leading
Washington lawyer when asked how he prevailed on behalf of his clients : "I get
my information a few hours ahead of the rest." The industry lobbyist derives
his influence from his superior intelligence apparatus. From routine visits to an
agency and leaks from carefully cultivated contacts, he anticipates agency action
and turns it to his advantage. By contrast, most citizens learn about an agency's
plans only at their public stage, when a decision or proposal is announced in
the Federal Register or to the press. At this point, the opportimity for influence
by the public is often very limited. It is at the stage of inner council discussions
of draft reports and interim choices by an agency's lower echelons that the real
decisions are often made.
Federal regulatory agencies enjoy great discretionary power over the programs
they administer. For example, the Federal Insecticide. Fungicide and Rodenticide
Act which directs pesticide control officials is basically a blueprint which sketches
the agency's structure and states its goals. It leaves individual officials a wide
freedom of choice in applying these goals to concrete cases. Under the agency's
legal structure, they can go one way or another : they can delay registration
of a pesticide by requesting additional tests for safety or accept the company's
safety assurances without scrutiny ; they can apply the effectiveness criteria
narrowly (the pesticide need only show that it kills the target insect) or broadly
(the pesticide in killing the target insect, must not kill so many beneficial insects
that it reduces yield) ; they can decide which portion of the law to enforce or not
to enforce : they can decide to recall a dangeroiis pesticide immediately or allow
a comiiany to sell all products already in marketing channels if it promises not
to i>roduce any more.
These facts, the bureaucrat's freedom to choose and the value of inside infor-
mation in helping outsiders influence that choice, are the cornerstones of the
lobbyists' profession in Washington. For the special interests which form an
agency's regulatory constituency, information gathering has become a science.
The stakes are high. If a lobbyist learns of impending administrative action
against his client, he can give him time to prepare for the change or he may
be able to arrange that the action is not taken at all. If he succeeds, often only
he. his client, and a small number of bureaucrats know that the action was ever
considered in the first place. Access also tells him which official is friendly and
which is not. and guides him in pressing for the ouster of officials judged unsym-
pathetic or unreasonable.
As a result of pres.sure from regulated interest, many agencies have developed
an information policy with a double standard — one for citizens and one for .spe-
cial interest groups. In the Department of Agriculture, the chemical and meat
industries are treated in accordance with the principle that, "with certain
1257
exceptions, the records of the Department are freely available for public inspec-
tion." For the average citizen, however, the principle is turned on its he:i(l. and
officials guard information with all the hauteur of a citizen above suspicion. As
Dr. Georgf Irvini;-, AdLuinistrator of tlie Ai-ricultural Kcseanh Service, candidly
states: '-Tlie information in our Hies ... is prepared for use by Government per-
sonnel ... It is not made available to any person outside the Government, except
for the few documents specified. . ."
The double standard reflects the pattern of preferential access which lobby-
ists, trade associations, and corporations have established over the years. The
impact of its superior access to information has been described by Nicholas John-
son, who as Administrator of the Maritime Adininistrarii)n and later as Commis-
sioner of the FCC, has matched wits with Washington's most entrenched sub-
governments :
On those rare occasions when proconsumer action is proposed in an agency,
the subgovernment moves into block it. With its superior intelligence-gather-
ing apparatus, leaks and regular agency watching, members of the sul)-
government can anticipate potential agency action that is either adverse
to their iiiferests. or that can be turned to their advnntiige. Calls are made,
visits are arranged, studies are done and released, Congressmen are made
til he interested, the full page ads appear. Who is surprised any longer to
have a lobbyist come to his office to di.scuss the contents of a staff document
the commissioners have not yet seen — or that is supposedly under confiden-
tial consideration? This is how things work in Washington — the point is that
the public has no one to represent their interests in this swamp.
The relationship between free access to information and responsible govern-
ment is very direct. Excessive and discriminatory secrecy by Federal agencies
seriouslv blocks the citizens understanding and ability to participate in govern-
ment. It was with these truths in mind that Congress passed the Freedom of
Information Act (FOIA) in 1966. According to a 1967 Attorney General's memo-
randum. Congress intended that "disclosure be the general rule, not the ex-
ception, and that individuals have equal rights of access; that the burden be on
the Government to justify the withholding of a document, not on the per.son who
requests it ; that individuals improperly denied access to documents have a right
to seek injunctive relief in the courts, that there be a change in Government
policv and attitude."
The FOIA has not lived up to this broad promise. One problem is that the act
expects of puidic officials an obedience to the unenforceable. If a public officer
ignores the act. the citizen must engage the agency in court, the only recourse
afforded by the act. Those who can afford legal challenge are those special inter-
ests who "need the FOIA least of all. Examination of court records establish
this point. In the first 2 years of FOIA. 40 cases were brought under the act.
Thirty-seven of these involved corporations or private parties seeking informa-
tion for some private claim or benefit. Only three cases involved a demand by
the public at larse for information. Most surprising of all. no member of the
media, which should be the prime beneficiary of the FOIA. had initiated a .single
court action under the act. In practice, therefore, the attitudes of agency per-
sonnel determined whether FOIA was to be a pathway or roadbkK-k for citizen
access.
The broad discretion in the act has allowed each agency to create its own
"common law" in interpreting it. In doing so. they have developed a maze of
confusing and contradictory regulations. Information which is claimed to be
exempt from disclo.sure in one agency is freely given in another (for example,
records of advisory council meetings — USDA— no. National Highway Safety
Bureau — yes). In some agencies all requests must be in writing and all inter-
views cleared in advance, and strict records of all interviews required ; in others
information is freely given over the phone in an informal way.
By any standard, the Consumer and Marketing Service is one of the Federal
Govemnient's most fearful and defensive bureaucracies. Many officials, from
assistant administrators down to inspectors on the line, regard visits from con-
stmier representatives as a trial of nerves which may jeoi)ardize their careers
if a superior judges they had said the wrong thing. The anxiety creates a double
standard which prejudices consumer inquiry. Top administrators dine informally
with Aled Davies aiid other meat lobbyists but inteiwiews by Nader's Raiders are
often grimly formal affairs with every qtiestion and answer jotted down care-
fully by hovering aides. Any C. & M.S. official of any cajiacity must make a
detailed report to his sujierior of any contact with a raider. Other consumer
representatives report similar treatment.
76-2.5.3— 72— pt. 4 17
1258
Tlie need for an informed and effective consumer presence in the Department
has been best desoritnid by Rodney Leonard, often a target for consumer wrath
when he was Administrator of the Consumer and Marketing Service:
I discovered during my service in the Department of Agriculture that
many officials :uid employees of the Department seek to minimize the
information made available to the public in order to shield their decisions
and actions from questioning, and frequently to cover up mistakes and mis-
judgments in the administration of public programs. In a very real sense,
the Administrator lacks information and analysis . . . which are not clothed
in the self-interest of agency bureaucracy.
Prof. Kenneth Culp Davis, after surveying the patterns of official secrecy
in the regulatoi-y agencies, concluded :
The goal should be to close the gap between what the agency and its
stuff know about its laws and policy and what an outsider can know. The
gap can probably never be completely closed but the effort should always
continue.
In USDA, as the incidents above demonstrate, the gap is very wide and no effort
is being made to close it.
The Freedom of Information Act was little help against the capricious secrecy
of PRD"s director, Harry Hays. Hays and his superiors in the Agricultural Re-
search Service treated the exemptions from disclosure permitted by the act
as if they were taffy in a taffy pull. Listed below are their most common evasion
tactics :
1. The contamination technique. PRD takes items of unclassified material that
may prove embarrassing and combines them with several items of classified
information. Result: The whole sum is classified. PRD claimed that pesticide
formulas were so intermixed T\ith the safety data which must be filed by pesti-
cide makers that the entire registration file must be closed. Independent scien-
tists are, therefore, not permitted to judge the adequacy of the safety claims a
manufacturer makes for his pesticide.
2. Trade secrets. The formula of a pesticide, where it gives a company a
competitive advantage, is properly exempt under the act. PRD, however, applies
the exemption to virtually all information which a company does not want
disclosed. Correspondence between PRD and pesticide makers was denied because
it might contain references to trade secrets. In fact, much of the information
classified as trade secrets, including many pesticide formulas, is common knowl-
edge within the industry. The only group not familiar with it is the public.
3. Specificity. A tyiMcal tactic of many agencies is to delay replying to an
information request for several weeks, then state that the request was not
specific enough. UDSA. for example, waited 4 months after we initially appealed
Hays' refusals to tell the task force that its request was too general, in spite of
the fact that it requested the Shell "No Pest Strip" file by its actual serial
number. Because USDA will not make available its file indices, the requests had
to be somewhat general.
4. Search fees. Even if the agency concedes that information is public, it may
impose arbitrarily high fees for collecting it. USDA stated that it would cost
$91,840 and take 1.6 years to prepare its registration files for public view.
5. Investigation files. A common tactic is for an agency to open a file involving
the investigation of violations of a Federal law or regulation and then conceal
all information about a firm or product by dropping it into the file.
6. The working paper. Here information is withheld from the public but not
insiders on the grounds that information is incomplete or in preliminary form.
The President's Science Advisory Committee used this tactic with their report
on 2.4..5-T. A draft of the report was finished in August 1970, and released, with
a few changes, in May 1071. Industry defenders of 2.4.5-T made reference to
the report for over 8 months l)efore it was made available to the public.
The task force eventually challenged USDA's denials in Federal court. In
Wellford v. nardin, U.S.D.C, D.C. Civil No. 740-70 (Aug. 5, 1970), Judge June
Creene of the T'.S. Di.strict Court of the District of Columbia found that the
Department had circumvented the Freedom of Information Act in making
secrecy the rule rather than the exception and held :
(1) It is a violation of the act to withhold from the piiblic the means for re-
questing specific records (i.e. the indexes to the registration and enforcement
files) when lack of specificity is given as the reason for refusing to grant an
information request ;
1259
(2) It is a violation of the act to withhold documents on the grounds that
parts are exempt and parts are nonexempt. This ruling curbs USDA's use of
the "contamination" tactic.
On December 19. 1909, the Nader Task Force sued under the Freedom of
Information Act to force the Consumer and Marketing Service to release data
which would inform the public about consumer protection programs in USDA.
The suit' asked the U.S. District Court for the District of Maryland to order
the Consumer and Marketing Service to release the following data :
1. The results of USDA analyses of hotdog ingredients by brand name;
2. The letters of warning sent by the Department to intrastate meat and
poultry processors suspected of sending nonfederally inspected meat across
State lines ;
3. The name of each meat and/or poultry slaughterer or processor who
had meat detained by C. & M.S. since January 1. 19G5, the reason for the
detention, and the ultimate disposition of the product ;
4. The minutes of the National Food Inspection Advisory Committee;
5. Copies of the biweekly reports of the Director of the Slaughter Inspec-
tion Division to the Administrator of the Consumer and Marketing Service.
The purpose of this suit was to put some teeth in the heretofore empty jaws
of the Freedom of Information Act. The information requested above was denied
by USDA for the following reasons : (1) Results of Government analysis of hot-
dog ingredients were said to be trade secrets which might harm the market
position of hotdog companies ; (2) the letters of warning and the detention data
were considered to be investigatory files which might jeopardize USDA's pros-
ecution of a meat violation; (3) the biweekly reports were said to be intra-
departmental memorandums as were the minutes of the National Food Inspec-
tion Advisory Committee.
USDA conceded the first point and made public its quarterly analyses of brand
name sausage products, one of the few times the Federal Government has given
the consumer access to data from its testing of consumer products. On June
26. 1970. Judge Northrup of the U.S. District Court in Baltimore, gave USDA's
policy of secrecy a stunning defeat on its other denials. He ordered that the let-
ters of warning and information on the detention of meat and poultry products
to be made available to the Nader group. The decision marked the first time that
the Department has been forced by a Federal court to disclose such informa-
tion to the public. Disclosure of the letters of warning will reveal how much
nonfederally inspected meat is crossing State lines, which States it is coming
from and winch companies are shipping it.
The information on detained meat is the first time the Department has been
forced to reveal the brand names of various meat and poultry products found
in violation of Federal meat laws. Judge Northrup noted that the investiga-
tory file exemption under the Freedom of Information Act was not intended
to exempt all Government information about private enterprise, and stated that
the possible embarrassment of the firms which had violated meat laws was not
a justification for this exemption. Judge Northrup found that the exemption
was intended only to prevent persons against whom the Government was enforc-
ing the law from'obtaining an advance look at the Government's case. It did not
apply when firms which were the subject of Government action had already
received letters of warning or had their products detained.
The Department of Justice appealed and on May 25. 1971, Judge John D.
Butzner of the U.S. Court of Appeals for the fourth circuit affirmed the dis-
trict court decision. In doing so Judge Butzner broke new ground in securing
the public's right to information on meatpackers who violate Federal meat and
poultry laws. The case of Wellford v. Hardin - marks the first time that a Fed-
eral agencv has been forced to reveal such data about enforcement activities
against brand name meat products. It is also the fir.st time a court has awarded
a decision under the Freedom of Information Act to an individual consumer.
The court decided that the FOIA's investigatory files exemption did not apply
to letters of warning and administrative detention information. Because the
contents of such records are already known by the companies who were warned
or whose products were detained, publication would not reveal any USDA secret
investigative techniques.
1 The suit was filed under the Federal Freedom of Information Act by James J. Hanks, Jr.,
a Baltimore attorney representing the Nader sroup.
a TTeH/ord V. i/arrfjn, — F. Supp. — (4th dr., 1971).
1260
Judge Bufzner held that the Freedom of iDformation Act was designed not
to increase administrative efficiency but to guarantee tlie public's right to know
how Government is discharging its duty to protect the public interest.
This decision is a major breakthrough in helping the consumer to make
informed jiidgments as to meat and poultry quality. In addition, it imposes
a healthy discipline for the USDA through the continuing threat of public
accountability.
Rodney Leonard, a former Administrator of the Consumer and Marketing
Service, sees release of this information as having a double benefit. First, it
allows the consumer to evaluate for himself the services of the Consumer and
Marketing Service's consumer protection program. Disclosures of the letters of
warning, for example, put USDA officials on notice that no improper efforts
to protect industry would be tolerated. In addition, disclosure encourages obe-
dience to the meat laws. The packers will he much more likely to clean up
their own operations if they knew their letters of warning were going to be
made pul)lic. Armed with this information, the consumer can avoid the chronic
violators of Federal inswction laws and make the marketplace an effective
regulator of meat and poultry quality.
The Department of Justice has recently asked for a 45-day period to decide
whether to appeal the decision in WeUford v. Hardin to the Supreme Court.
These cases are a step toward freer information in the regulatory agencies
but a small step only. Despite the act's stipulation that such cases ai'e to take
precedence on the court's calendars, they may take 6 months or more to come
to a decision. Then there is always the possibility of appeal. If public participa-
tion in agency decisionmaking is to increase, there must be immediate changes
in the implementation of the Freedom of Infoi-mation Act :
(1) Each agency should reply to a request for information within 7 working
days. If more time is needed, a notice should be sent to the requester informing
him of the date when the information will be available, and the reason for the
delay.
(2) If information is denied, the denial should state the exemption being
claimed, why it is applicable in this case, and an outline of appeal procedures
available.
(3) A central file of aU denials and the reasons for them should be main-
tained for public inspection.
(4) Agencies should organize filing systems so that exempt and nonexempt
information can be easily segregated on request.
(.">) Each agency should estaldish a one-step appeal procedure vdth final
action within 10 days of the filing of the appeal.
(6) Specific procedures should be developed for taking corrective action when
Federal officials resort to harassment techniques or other actions contrary to
the act,
(7) Congress is not exercising effective oversight over the way the act is
being observed in the agencies. There have been no congressional hearings since
the act was passed.
Mr. MooRHEAD. Tliank you.
]\rr. Sell nek?
Mr. ScHUCK. Thank you, Mr. Chairman.
STATEMENT OF PETER H. SCHUCK, ESQ,. CENTER FOR THE STUDY
OF RESPONSIVE LAW
IMr. ScTiucK. I mifrht prefaoe my remarks by sayino; that T have l>een
with the center a relatively short time as compared with Mr. Robert-
son and Mr. "Wellford. Jndonn^ from their experiences, I have observed
that as time has passed, the activities of the agencies in joruarding their
information have become proo:re.ssively less crude and more refined.
But the efficacy of their attempts to gnard their infonnation has re-
mained undiluted, and, so, when I discuss the cases that I will present,
you will note that the agencies' activities have an air of plausibility
about tliem but when closely examined, they are revealed as the same
old tactics in new dress.
1261
Before attempting to discuss my experience with the act, it is well
to mention tlie act's merits :
First, the act and its legislative history put the Congress and the
President on record as strong advocates of full disclosure to the public
of the way in which the public's work is conducted. This virtue would
be strengthened if Congress would extend the reach of the act to its
own activities and if the President would vigorously discipline execu-
tive agencies and officials who subvert the i)rincii)les of the act.
Second, the act shifts the burden of justihcation to him who would
deny the public access to information. The official is obliged to find
an exemption in which to cloak his claim of secrecy. This has led to
some remarkably tortured readings of the act bv secretive and defen-
sive bureaucrats. And it has led to a welcome, if all too frequent, comic
relief in the quest for public participation in Government. But it has
also undoubtedly promoted the release of some infonnation that might
otherwise have been withheld.
Whv, then has the act failed ?
A brief discussion of a few case studies will perhaps make the dis-
cussion a bit less abstract.
The first case reflects common tactics of bureaucratic subversion of
the act. It might be called the -'Fob-him-ofi-with-a-meaningless-smn-
mary" stratagem or the "Delay-mitil-the-information-becomes-stale"
routme. In early October 1971, 1 received information that the Missouri
meat inspection program was in very bad shape, notwithstanding the
fact that after having applied for and received a one-year extension, it
had finally been certified by USDA mider the Wholesome Meat Act of
1967 as "at least equal to'' Federal standards. Last August, L SDA
required Missouri to conduct a survey of all of its meat processing
plants. As a result of the survey in this "'equal-to" state, 146 out of 484
plants were shut down by the authorities for noncompliance. About 15
or so never reopened. In September, USDA conducted its own random
survey of 30 jNIissouri plants. Ten percent of the plants surveyed
achieved a score of less than 70 and many more scored just above 70.
According to USDA's own regulations governing certification of State
programs, all plants surveyed must score 70 or above for certification to
be granted. Nevertheless, this State was recertified as "ec(ual to" Fed-
eral standards shortly thereafter.
I have been engaged since mid-October in a vain effort to gain access
to three categories of information: (1) Compliance surveys conducted
by USDA with respect to the meat inspection programs of ^Missouri,
Nebraska and several other States: (2) USDA's correspondence with
State officials concernino- their findings; and (3) the surveys required
by USDA to be conducted by these States and submitted to USDA as
part of its compliance review program.
By mid-December, USDA had reneged on several oral promises to
produce the information. It did supply a document entitled "Eeview
Analyses of the Missouri State Meat Inspection System." This docu-
ment is, to be most charitable, USDA's summary of the survey report.
IMore accurately, the only information furnished concerning condi-
tions in the plants is one page of unanalyzed scores for unidentified
plants, and one-half page of extremely general descriptions of condi-
tions in four exempt plants. This document was essentially useless
to a citizen seeking to analyze the nature and quality of the Missouri
1262
program and USDA's certification standards. Even less information
was supplied on Nebraska, and none lias been forthcoming on the
other States.
I then filed the appropriate administrative appeals under the Free-
dom of Information Act. On March 2, I received a final denial from
G. E. Grange, Acting Administrator of the Consumer and Marketing
Service. Mr. Grange asserted that USDA "does not have surveys con-
ducted by said States nor have any such surveys been submitted to the
Department." One wonders how USDA can insure that certified States
are and remain in fact equal to Federal standards if USDA does not
even require the States to submit to USDA a copy of compliance sur-
veys conducted at USD A's instance ?
Mr. Grange then denied access to the other information citing the
"investigatorv^ file compiled for law enforcement purposes" exemption
and the "intra-agency memoi-anda" exemption. Yet the case of WeJl-
ford V. Hardin and other Freedom of Information Act court decisions
make it perfectly clear that these exemptions are not applicable to
this type of information. ]Moreover, we are informed that the Depart-
ment of Justice has informally reviewed USDA's position on my in-
formation request and has strongly urged USDA to make the in-
formation public.
Mr. Grange concluded his denial thus :
It is my determination that disclosure of the requested information would be
damaging to cooperative State and Federal efforts and would reduce the use-
fulness of the review procedures as a tool in maintaining compliance and carrying
out the provisions of the (act). Furthermore, the surveys in question were
performed some time ago, and the status of the plants named therein has changed.
I might add that I requested the information about 2 weeks after
the surveys were made.
Therefore, disclosure of this data would, in my view, constitute an tmwarranted
invasion of privacy. I must, therefore, deny your request for information.
I have not been alone in my unsuccessful efforts to irain access to
this information. INIissouri Senator Donald Manford has made the
same request to USDA. As chairman of the Senate Ap])ropriations
Committee, Senator Manford feels a particular responsibility to
evaluate the quality of the IVIissouri meat inspection program and its
conformity with Federal standards. Yet USDA and the Missouri
Department of Agriculture have both rejected his request. Similarly,
KYTY in Springfield, Mo., has met with the same obstruction by
USDA, thus hobbling the station's efforts to inform ]Missouri citizens
about their own program. The ]\Iissouri Senate yesterday considered
the subpenaing of these surveys from Missouri officials. I am not
sure what the outcome of that was.
The second case demonstrates the use of the "It's-exempt-because-it's-
embarrassing" approach to circumventing the act. One of the great
tragedies of American politics has been the contribution by the Exten-
sion Service and other USDA agencies to the perpetuation of racial
discrimination and poverty in manv of our States. Seeking to deter-
mine the civil rights record of the USDA in recent years, I requested
in Xovember 1971. access to (1) all audita aiid investigative reports
or other studies conducted by USDA's Office of Inspector General
concerning the compliance bv anv USDA agencv and anv recipients
of USDA assistance, with the Civil Eights Act of 1964; and (2) all
1263
audits and investigative reports or other studies in the possession of
USDA concerning such compliance conducted by State or local gov-
ernments. My request was denied, with no reason being given other
than that ''the Freedom of Information Act and our regulations
exempt OIG reports from mandatory disclosure," and that I would
have to request the reports of State and local governments to USDA
from those governments themselves. An administrative appeal is still
pending. No statutory exemption has been cited to justify this denial.
Nor is there any such exemption applicable to this type of final report
of a preexisting state of facts. The information was denied because
those audits ancl investigations are profoundly embarrassing to USDA
and because the act offers no incentive to a public official to comply with
the act, particularly under circumstances in which the nature of the re-
quested information gives him a strong incentive not to comply.
The third case demonstrates the "Sue-us-again"' tactic of avoiding
the act. In the sunnner of 1969, my associate, Mr. Harrison Well ford,
requested and was denied access to USDA's files of (1) warning let-
ters to meat and poultry processors suspected of violating Federal meat
laws, and (2) data on administrative detentions of meat and poultry
products. After an expensive 2-year legal battle (over $6,000 in billable
legal services), Mr, "Wellford — and the public — established in the
courts what Congress clearly established in the act — the right to inspect
such information.
In an effort to study and analyze the ways in which USDA does
and does not enforce the meat and poultry laws against processors and
packers on behalf of consumers, I sent a Georgetown Law School
student, ]Mr. Micliael Mass, to USDA to study the back-up files which
alone supply the details concerning how USDA disposed of the cases
mentioned, without details, in the now-public warning letters and de-
tention logs. USDA refused to permit public access to this information.
According to Mr. Mass, Mr. L. L. Gast, Director of Compliance and
Evaluation for the Consumer and Marketing Service, stated that con-
sumers would have to undertake another prolonged lawsuit in order
to win access to this information. I then made a formal request for
this data, which was denied as were my subsequent administrative
appeals.
The reasoning of the 'Wellford v. Hardin decision, which was di-
rected at the warning letter and detention records, clearly extends as
well to the detailed disposition data in the case files which underlie
those records, yet the information remains secret. We shall lie put to the
expense of having to sue USDA once again to obtain this data.
The Department of Transportation is evidently a skillful practi-
tioner of the "Now-it"s-public-now-it"s-private" gambit. A Nader study
group analyzing the Federal Government's use of consultants requested
access to a study performed for DOT by the Sperry Rand Corp., a
major beneficiary of Government research contracts. The Sperry study
had developed factual information on the management of the DOT
research and develo])ment program.
DOT denied the requests, stating that "Although the reports were
prepared for us by non-Government experts, we regard them as intra-
agency memorandums." But just in case anyone should point out tliat
this was a rather novel iuteri)retation of the term "infra-agency,'' DOT
was prepared with another justification for denial. Tlie Sperry re-
1264
ports, DOT contended, "consist of recommendations, proposals, ad-
vice, and opinions, and contain little or no factual information," and
•were, therefore, exempt under DOT reg-ulations. Yet the proposal
upon which the contract to Sperry "was awarded, called for the devel-
opment, testino^, and evaluation of factual information, and Sperry
vras paid for reporting such information to DOT. If Speri'y properly
performed its coiitract, this infonnation must be disclosed under the
act. If Sperry did not properly perform it, why was it paid by DOT?
In general, there are two ways in which the act can be strengthened.
First, the exemptions can be defined more precisely and narrowly.
This approach is difficult and may create more problems than it
solves by leading to overspecificity. A second, preferable approach is
to build into the act sufficient incentives for bureaucratic compliance
so that the act will become to a significant extent self -enforcing.
I suggest the following reforms would help to make the act self-
enforcing :
First. The agency should be required to give an affirmative or a
negative response to a formal request within a specified period of
time, say 20 days. If the response is affirmative, the requested informa-
tion must be supplied "promptly""- — as provided in the existing act. If
the res])onse is negative, the requester would be immediately informed
in writing, with the agency sending a copy of its letter of denial to
a "Freedom of Information" unit, established in an independent con-
sumer agency or other body outside the existing agencies.
Second. Within a specified period of time, say 20 days, from the
receipt of the letter of denial, the freedom of information unit
would rule on the validity of the denial under the act and inform
both the requester and the agency of this ruling. Within a specified
period of time, say 10 days, the agency would have to inform the
requester of its acquiescence or nonacquiescence in this ruling. If
the agency acquiesced, the information would have to be supplied
"promptly." If the agency did not acquiesce, or if the requester was
dissatisfied with the unit's ruling, the requester would then be en-
titled to sue immediately in a Federal district court. Since the vast
majority of information requests are routine and fall into fairly well-
established categories, the freedom of information unit could be a
very small and progi-essively routinized operation whose rulings would
over time create a consistent and integrated body of freedom of infor-
mation law.
Third. If the requester is obliged to sue in order to obtain the
requested information, and is successful, he should be entitled by
statute to recover reasonable counsel fees fi^om the agency which de-
nied his request. If the court rules that the agency's denial of the
inforniation was frivolous or willful, the requester should be entitled
to recovei- punitive damages from the agency in an amount established
by statute. These provisions would not only place the financial burden
of a wrongful denial of infoi-mation on the agency, where it belongs.
but would also provide the agency and its officials with a realistic and
palpable incentive to comply with the pi^ovisions of the act.
Fourth. The act should be amended to include information in the
possession of Congress, and should be clarified to remove any doubt
that the work of consultants and other Government contracts is sub-
1265
ject to the act, unless an exemption is otherwise applicable to the
information request.
Thank you.
]Mr. MooRHEAD. Thank you, Mr. Schuck.
(Mr. Schuck's prepared statement follows :)
PuEPARED Statemext OF Peter H. Schuck, Esq., Center for the Study of
Responsive Law
Gentlemen, my name is Peter Schnck. I am an attorney and a consultant
to the Center for Study of Responsive Law, Ralph Nader's research and study
group here in Washington.
I wish to thank the suhcommittee for inviting me to testify at these hearings
on the Freedom of Information Act. The subcommittee is to be commended for
its initiative in taking the first systematic look at the way in which the Free-
dom of Information Act has actually operated in the almost 5 years since its
enactment. For those of us whose daily activities include the monitoring of the
policies and decisions of the Federal agencies, the act was hailed as a mile-
stone in the legal development of a democratic society, a charter of pluralistic
political life.
Our high hopes have met with keen disappointment. The noble intent of
Congress in enacting the act has foundered on the rocks of bureaucratic self-
interest and secrecy. A statute which should have facilitated public participa-
tion in the public's work, has instead engendered endless litigation. "What is
more important, the act has produced relatively little information of conse-
quence to citizens concerned about agency policies.
Before attempting to discuss my experience with the act, it is well to mention
the act's merits. First, the act and its legislative history put the Congress and the
President on record as strong advocates of full disclosure to the public of the
way in which the public's work is conducted. This virtue would be strengthened
if Congress would extend the reach of the act to its own activities and if the
President would vigorously discipline executive agencies and officials who sub-
vert the principles of the act. Second, the act shifts the burden of justification
to him who would deny the pul)lic access to information. The official is obliged
to find an exemption in which to cloak his claim of secrecy. This has led to some
remarkably tortured readings of the act by secretive and defensive bureaucrats.
And it has led to a welcome, if all too frequent, comic relief in the quest for
public participation in government. But it has also undoubtedl.v prompted the
release of some information that might otherwise have been withheld.
Why. then has the act failed? A brief description of a few ease studies will
perhaps make the discussion a bit less abstract.
The first case refiects common tactics of bureaucratic subversion of the act.
It might be called the "Fob-him-off-with-a-meaningless-suramar.v" stratagem or
the "Delay-until-the-information-becomes-stale" routine. In early October 1971,
I received infonnation that the Missouri meat inspection program was in very
bad shape, notwithstanding the fact that after having applied for and received
a 1-year extension, it had finally been certified by USDA under the Wholesome
Meat Act of 1967 at "at least equal to" Federal standards. Last August. IJSDA
required ^lissouri to conduct a sun-ey of all of its meat pi'ocessing plants. As a
result of the survey in this "equal" to" State. 146 out of 484 plants were shut
down by the authorities for noncompliance. About 15 or so never reopened. In
September, USDA conducted its own random survey of 30 Missouri plants. Ten
percent of the plants surveyed achieved a score of less than 70 and many more
scoi'ed .Inst altove 70. According to USDA's own regulations governing certifica-
tion of State programs, all plants surveyed must score 70 or above for certification
to be granted. Xevertheless, this State was recertified as "equal to" Federal stand-
ards shortly thereafter.
I have been engaged since mid-October in a vain effort to gain success to three
categories of information: (1) Compliance surveys conducted ])y T'SDA with
respect to the meat insjiection programs of ilissouri, Nebraska, and ."several other
States: (2) USDA's correspondence witli State ofilcials concerning their findings;
and (S) the surveys required by T'SDA to be conducted by these States and .sub-
mitted to USDA as part of its compliance review program.
1266
By mid-December, USDA had reneged on several oral promises to produce the
information. It did supply a document entitled "Review Analyses of the Missouri
State Meat Inspection System". This document is. to be very charitable, USDA's
"summary" of the survey report. More accurately, the only information furnished
concerning conditions in the plants is one page of unanalyzed scores for uniden-
tified plants, and one-half page of extremely general descriptions of conditions
in four exempt plants. This document was essentially useless to a citizen seeking
to analyze the nature and quality of the Missouri program and USDA's certifica-
tion standards. Even less information was supplied on Nebraska, and none has
been forthcoming on the other States.
I then filed the appropriate administrative appeals under the Freedom of
Information Act. On March 2. I received a final denial from G. R. Grange, Acting
Administrator of the Consumer and Marketing Service. Mr. Grange asserted that
USDA "does not have surveys conducted by said States nor have any .such surveys
been sulmiitted to the Department." One wonders how USDA can insure that
"certified" States are and remain in fact "equal to" Federal standards if USDA
does not even require the States to submit to USDA a copy of compliance surveys
conducted at USDA's instance.
Mr. Grange then denied access to the other information, citing the "investi-
gatory file compiled for law enforcement purposes" exemption and the intra-
agency memorandum exemption. Yet. the case of Wellford v. Htirftin and other
Freedom of Information Act court decisions make it perfectly clear that these
exemptions are not applicable to this tyiie of information. Moreover, we are in-
formed that the Department of Justice has informally reviewed USDA's position
on my information request and has strongly urged USDA to make the information
public.
Mr. Grange concluded his denial thus :
"It is my determination that disclosure of the requested information would
be damaging to cooperative State and Federal efforts and would reduce the use-
fulness of the review procedures as a tool in maintaining compliance and carry-
ing out the provisions of the (act). Furthermore, the surveys in question were
performed some time ago. and the status of the plants named therein has
changed. Therefore, disclosure of this data would, in my view, constitute an
unwarranted invasion of privacy. I must, therefore, deny your request for
information."
I have not been alone in my unsuccessful efforts to gain access to this in-
formation. Missouri Senator Donald Alanford has made the same request to
USDA. As chairman of the Senate Appropriations Committee. Senator ]Manford
feels a particular responsibility to evaluate the quality of the Missouri meat
inspection program and its conformity with Federal standards. Yet. T'SDA and
the Missouri Department of Agriculture have both rejected his request. Similarly,
KYTY in Springfield. Mo., has met with the same obstruction by USDA. thus
hobbling the station's efforts to inforai Missouri citizens about their own pro-
gram. The Missouri Senate yesterday considered the subpena of these surveys
from Missouri officials.
The second case demonstrates the use of the "Its-exempt-because-it's-erabar-
rassing" approach to circumventing the act. One of the great tragedies of Amer-
ican politics has been the contribution by the Extension Service and other
USDA agencies to the perpetuation of racial discrimination and poverty in many
of our States. Seeking to determine the civil rights record of the USDA in
recent years. I requested in Xovenil>er 1071. access to (1) all audits and investi-
gative rei)orts or other studies conducted by USDA's Office of Inspector General
concerning the compliance by any T^SDA agency and any recipients of USDA
assistance, with the Civil Rights Act of 1904: and (2) all audits and investi-
gative reports or other studies in the possession of T^SDA concerning such com-
pliance conducted by State or local governments. My request was denied, with
no reason being given otber than that "the Freedom of Information Act and our
regulations exempt OTG reports from mandatory disclosure." and that I would
have to request the royiorts of State and local governments to T'SDA from those
governments themselves. An administrative appeal is still pending. No statutory
exemption has been cited to justify this denial. Nor is anv such exemption
applicable to this type of final report on a pre-existing state of facts. The in-
formation was denied because those audits and investigations are profoundly
erabarrassin? to T'SDA and be<>ause the ar-t offers no inr>entive to a public offieial
to comply with the act. particularly under circumstances in which the nature
of the requested information gives him a strong incentive not to comply.
1267
The third case demonstrates the "Sue-us-again" tactic of avoiding the act.
In the summer of I'JtJ'J, mv associate. Mr. Harrison Wellford, requested and wa.s
denied access to USDA's files of (1) warning letters to meat and poultry proces-
sors suspected of violating Federal meat laws, and (2) data on administrative
detentions of meat and poultry products. After an expensive 2-year legal battle
(over $6,000 in billable legal services), Mr. AVellford— and the public— established
in the courts what Congress clearly established in the act— the right to inspect
such information. o,-r. . ^ ^ ^ 4-
In an effort to study and analyze the ways in which L SDA does and does not
enforce the meat and poultry laws against processors and packers on behalf
of consumers, I sent a Georgetown Law School student, Mr. Michael Mass, to
USDA to study the backup tiles which alone supply the details concerning how
USDA disposed of the case mentioned, without details, in the now-public warn-
ing letters and detention logs. USDA refused to permit public access to this
information. According to Mass, Mr. L. L. Gast, Director of Compliance and
Evaluation for the Consumer and Marketing Service, stated that consumers would
have to undertake another prolonged lawsuit in order to win access to this
information. I then made a formal request for this data, which was denied
as were mv subsequent administrative appeals.
The reasoning of the Wellford v. Hardin decision, which was directed at the
warning letter and detention records clearly extends as well to the detailed dis-
position data in the case files which underlie those records, yet the information
remains secret. We shall be put to the expense of having to sue USDA once
again to obtain this data.
The Departm.ent of Transportation is evidently a sldllful practitioner of the
"Now-it's-public-now-ifs-private" gambit. A Nader study group analyzing the
Federal Government's use of consultants requested access to a study performed
for DOT by the Sperry Rand Corp.. a major beneficiary of government research
contracts. The Sperry' study had developed factual information on the manage-
ment of the DOT research and development program.
DOT denied the requests, stating that "Although the reports were prepared
for us by nongovernment experts, we regard them as intra-agency memorandums."
But just in case anyone should point out that this was a rather novel interpreta-
tion of the term "intraagency", DOT was prepared with another justification for
denial. Tlie Sperry reports, DOT contended. "con.sist of recommendations, pro-
posals, advice, and opinions, and contain little or no factual information", and
were therefore exempt under DOT regulations. Yet the proposal upon which
the contract to Sperry was awarded, called for the development, testing, and
evaluation of factual information, and Sperry was paid for reporting such in-
formation to DOT. If Sperry properly performed its contract, this information
must be disclosed under the act. If Sperry did not properly perform it, why was it
paid by DOT? . ^ ^^
In general, there are two ways in which the act can be strengthened. First, the
exemptions can be defined more precisely and narrowly. This approach is diffi-
cult and mav create more problems than it solves by leading to overspecificity. A
second, preferable approach is to build into the act sufficient incentives for
bureaucratic compliance so that the act will become to a significant extent self-
enforcing.
I suggest the following reforms would help to make the act self-enforcing :
1. The agencv should be required to give an affirmative or a negative response to
a formal request within a specified period of time, say 20 days. If the response is
affirmative, the requested information must be supplied "i)romptly" (as provided
in the existing act). If the response is negative, the requestor would be immedi-
atelv informed in writing, with the agency sending a copy of its letter of denial
to a" freedom of information unit, established in an independent consumer agency
or other bodv outside the existing agencies. ^ ^ , ^^
2. Within a specified period of time, say 20 days, from the receipt of the letter
of denial, the freedom of information unit would rule on the validity of the
denial under the act and inform both the requestor and the agency of this ruling.
Within a specified period of time, say 10 days, the agency would have to inform
the requestor of its acquiescence or nonacquiescence in this ruling. If the agency
acquiesced, the information would have to be supplied "promptly." If the agency
did not acquiesce, or if the requestor was dissatisfied with tlip unit's ruling, the
requestor would then be entitled to sue immediately in a Federal district court.
Since the vast majoritv of information requests are routine and fall into fairly
well-established categories, the freedom of information unit could be a very small
126S
and progressively routinized operation whose rulings would over time create a
consistent and integrated body of freedom of information law.
3. If tlie requestor is obliged to sue in order to obtain the requested informa-
tion, and is successful, he should he entitled by statute to recover reasonable coun-
sel fees from the agency which denied his request. If the court rules that the
agency's denial of the information was frivolous or willful, the requestor should
he entitle<l to recover punitive damages from the agency in an amount established
by statute. These provisions would not only place the financial burden of a wrong-
ful denial of information on the agency, where it belongs, but would also provide
the agency and its officials with a realistic and palpable incentive to comply with
the provisions of the act.
4. The act should be amended to include information in the possession of Con-
gress, and should be clarified to remove any doubt that the work of consultants
and other government contractors is subject to the act, unless an exemption is
otherwise applicable to the information request.
The success of a pluralistic politics depends to an enormous extent upon the
systematic continuous contribution to the policymaking process by all citizens
affected by governmental decisions. This citizen input requires the fullest access
to the information upon which public decisions are made, and sliould be re-
garded by public oflBcials not as a burden, not as a meddlesome intrusion, but
rather as a welcome opportunity to ennoble their performance of the public's
work. By enacting the Freedom of Information Act, Congress affirmed this prin-
ciple. It is now time to keep faith with that principle and make of it — and the
act — a reality.
Mr. MooRHEAD. Mr. Gottlieb.
STATEMENT OF BEETRAM GOTTLIEB. TEANSPOETATION INSTITUTE
Mr. Gottlieb. Thank you, Mr. Chairman.
I do not have a prepared statement with me.
I "wa.s asked to testify at this liearinof because of one experience
which I had v\ith the ]\raritime Administration in 1969.
In 1968, during the presidential campaign, now President Nixon, in
a statement released in Seattle, came out with his maritime program,
the program that he indicated that if he were elected he would rec-
ommend to the Congress.
It became known after President Nixon was elected and after he
took office, that a recommendation would be brought forth to the
Congress, and with that in mind as Eesearch Director of the Trans-
portation Institute, I decided to look into some of the aspects of the
previous maritime h^gislation so that we would be in a position to rec-
ommend new legislation or to analyze recommendations of the Presi-
dent or others to the Congress. One of the areas that we wanted to
look into was the whole area of subsidy for the American merchant
marine, how it worked and whether it was a worthwhile program,
and what changes might be made in new subsidy programs to make
a new ]\ferchant ^Marine Act more viable in preserving and improving
the chaotic position of the American merchant marine.
An event occurred along about ^lay, I guess it was, of 1969 which
put some pressure on finding out this information at a more rapid
pace than we liad anticipated. I sent one of the young men who Avorks
for me to tiie Maritime Administration with what I had considered
a very simple request, and that was to get information on two ships
which had been purchased from the Government by the Farrell Co.
under the Sliip Sales Act of 1946. This was the act which enabled the
Government to sell, to l)oth domestic and foreign ship operators, ships
built dur-ing the World "War II buildup at prices much le.ss than the
costs to the American taxpayer.
1269
The request that I made at that time Avas rather simple.
I wanted to know how much money liad been paid in subsidies each
year, by voyage, for two vessels. The young man came back to me and
reported that the information office at the Maritime Administration
had told him that that infonnation was not available.
I then called up the agency and was referred to a Mr. James Dawson,
who at that time was Secretary of both the Maritime Subsidy Board
and the Maritime Administration, and he told me that that informa-
tion was not available.
I discussed it with him at some length over the telephone, and
since he indicated to me he really did not understand what I wanted,
I sent him a letter — in which I specified the information I was re-
questing. I received an answer back from Mr. Dawson saying that
I had not followed the proper procedures and that I should file fonn
CD-3244, which is a form that the Department of Commerce uses
for people askmg for information. I filed that form with a $2 fee.
At the same time I received some excellent assistance from a former
staff member of this committee, Mr. jNIatteson. I had met JMr. Matteson
when Congressman Moss was chairman of the subcommittee investi-
gating the use of lie detectors in Government, and I was quite inter-
ested in that subject at the time. And. so, I guess my experience would
be rather atypical, because very early in my requests for my infor-
mation I received significant help from a staff member of this sub-
committee who called the JNIaritime Administration and expressed
his opinion that the Freedom of Information Act covered the records
I was asking for.
However, I did submit my request on the proper form and the
request was turned down. The reason given for turning it down was
that the information was not available in keeping with 5 U.S.C.
section B— i-8-5, I searched the United States Code for the citation
which had been given me and could not find it in that form. But I
did find it in a slightly different form, and I sent a letter to Mr. Dawson
in which I told him that I had checked over his citations and that I
found little value there, and I gave him my reasons for requesting
a redetermination.
He had cited the various sections of 5 U.S.C. 552(b) (4) (5) and (8).
I pointed out that the requested information on operatuig differ-
ential subsidies was for the period of December 22, 1948, to Septem-
ber 28, 1960, and the reason for those specific dates were — those were
the dates during which two ships had received subsidy payments.
I pointed out that certainly the Farrell Lines which operated these
vessels could not be put to any competitive disadvantage in 1969 for
disclosure of information at least 9 years old.
I also pointed out to him that the ^Maritime Administration pub-
lished and mailed, and made available to the public the total oper-
ating subsidy paid to the various subsidized Imes, including Farrell,
and that the request which he refused simply requested the amount
of the subsidy paid two of Farrell's vessels over an approximate
12-year period.
And third, that the ^Maritime Administration makes available to
the public a significant amount of other information. For example,
it gives the information on the date vessels were purchased by com-
panies from the Government, the original construction cost of the
1270
U.S. taxpayers of those vessels, the price paid by Farrell, or by any
other company for the vessels, and the date that the vessels were
disposed of by these companies, and how they were disposed of, and
the nature of the disposition.
Sometimes they were scrapped, sometimes they were sold forei<rn,
sometimes they were traded into the Reserve Fleet and so on. The
aniomit of credit received by these companies for the vessels if they
were traded back to the United States was also available.
And then I went on to sugorest to him that if I had interpreted his
citation properlv, that item 4 refers to trade secrets and commercial
or financial information obtained from persons in privileged or con-
fidential ways, and I indicated that item 4 did not fit my request in
anv wav. since I had requested information on the amount of subsidy
payment paid by the I^.S. Government for the vessels operations.
i had not requested any of the cost information the operator had
sul)mitted to the agency in order to get a subsidy payment or any of
the other operating information. I simply asked for the amount of
subsidy paid to the operator. I indicated that I did not request any
inter- or intra-agency memorandums of letters, and I indicated that
item 8 refers to information contained in operating or condition reports
prepared by or on behalf of or for the use of an agency, and the in-
formation i requested for subsidy payments did not fit that, either.
And I finally pointed out that operating differential subsidies are
paid from public funds under a program estal)lished by public law,
and that I thought the public was entitled to know how those funds
were expended, and I asked for a redetermination of the opinion.
After that I sent copies of my communications, and I was in constant
contact with Congressman John E. Moss, and also Jack INIatteson of
the staff. Congressman Moss wrote a letter to Mr. Dawson saying that
he felt that the act covered this type of information, and Mr. ISIat-
teson was in constant contact with the Maritime Administration.
And after about a 3-week period mv application was favorably
act'^d upon by the Maritime Administration.
This did not end it. I sent one of my people over, and he worked
through some old Maritime Administration documents, and I got
the information on those two vessels. Then I expanded my request
and paid another $2 fee. I asked for the information on all of the
sliips that had l)een purchased by American operators from the U.S.
Government under the Ship Sales Act of 1946. I originally was turned
down on that because they said my request was too broad. I got the
names of all of the ships, and submittecl them to the agency.
I might add that when I say I did it, that I have a reasonably
good-sized and well-equipped st:iff. with a good office and the facilities
to do those kinds of things, wliich I suspect most people do not have.
Finally, however, they did agree to give it to us. They sent us a
letter which said the only way they could give us the information
was to have the people work overtime and Saturdays and Sundays,
and that it would cost me a minimum of $8 an hour, and that they
anticipated it would be a mininnun of $12,000. I felt that was slightly
high, since money had been paid to these companies and somebody
must have had some justification, ^lavbe I was naive in assuming
this, but I did assume that somebody had some records upon which
1271
they paid these subsidies and, therefore, those records should be
available.
Well, I decided aaainst payinc: the $12,000 and I hired some stu-
dents from Georo-e Washington University, part time, and after some
considerable dickering with the ISIaritime Administration I received
permission to have them go into the agency and do the work.
Now, I did this because these same students L had used in a previous
effort at the U.S. Coast Guard, and I had received a letter from an of-
ficial of the Coast Guard saying that these young men had come in, had
conducted themselves in an'exe^mplary manner, and had not interfered
with the work of the Coast Guard, and that it had been a pleasure to
work Avith them, and so on.
When I was told that doing this would interfere with the operations
of the Maritime Administration, I presented this letter and secured
tentative approval that would let us start and then see what happened.
Well, we did dig it out. I think the main reason for the refusals of
my request was not the desire of the agency to withhold information.
It would have embarrassed the agency if I had made my information
public. The records were in horrible shape. They were all over the
country, they were incomplete in many cases.
Records of particular voyages were missing. The Subsidy Board has
a practice of i)aying a partial amount at the submission of certain rec-
ords, and the full amount on the submission of more complete records.
Sometimes one or the other of those records were missing.
So, finally we did put together the information we needed. I do not
want to leave it there, because a significant change has taken place in
the Maritime Administration since 1969. Mr. Andrew Gibson, at about
that time, became JNIaritime Administrator, and is now Assistant Sec-
retary of Commerce for ^Maritime Alfairs. He brought about a signifi-
cant change in the attitudes of the people in the Maritime Administra-
tion.
I stress this because I am not expert in the writing of laws, but I do
feel insofar as this particular law is concerned, that more important
than the words that might be in the act is the willingness of the people
in the bureaucracy to conform voluntarily to the act.
And in this particular case there has been a dramatic reversal in the
Maritime Administration. Prior to Mr. Gibson's taking over, the ex-
periences that I have just illustrated were not unusual experiences. AVe
were constantlv frustrated in seeking even the most el(Muentary infor-
mation from MARAD. We felt that the purpose of the Maritime Ad-
ministration was to see the demise of the American merchant marine
and prevent anybody from getting any information on the operations
of the agency which in any way might help us save the American
merchant marine.
Since then, as I have indicated, since Mr. Gibson has become the
Administrator and the Assistant Secretary, there has been a dramatic
reversal. There is almost nothing that I can tliink of that in the last 2
years or more that we have requested of the Maritime Administration,
that it not only has furnished us, but gone out of its way to see to it
that the information we received was in a useful form. MARAD has
Avorked very closely with us and others in the industry, to help us.
1272
They have sought from us advice as to how the records could be
better kept, so they could be useful to people who are workmg within
the industry on both management and labor side. They have really
been what I as a citizen would say is all that I could hope for from
a department of the U.S. Govermnent.
Today our experience with the Maritime Administration is noth-
ing but excellent.
Mr. MooRHEAD. Gentlemen, it occurs to me that certain allegations
against individuals and departments have been made, and we may
want to call these people up to testify and we would administer the
oath to them.
I think to make this testimony stand up equally, I would like to
administer the oath to all of you, if you are agreeable.
Would you rise and raise your right hand ? Do you solemnly swear
that the testimony you have given and will give to this subcommittee
has been the truth and will be the truth, the whole truth, and nothing
but the truth, so help you God ?
Mr. EoBERTSON. I do.
Mr. Wellford. I do.
Mr. ScHUCK. I do.
Mr. Gottlieb. I do.
Mr. MooRHEAD. Mr. Gottlieb, what was the cost of the investigation
of your students compared to the $12,000 quoted you by the Maritime
Administration ?
Mr. Gottlieb. Unfortunately I cannot give you a specific amount
because the young men that I had working on this were all students
at the George "Washington University, and worked for me part time.
They not only worked on this project but they worked on other projects
concurrently. I can only tell you that as their supervisor in this endeav-
or I would suspect that the total cost came to significantly less than
the cost given to me as a minimum of $12,000. But, I do not think the
$12,000 fee requested of me was an excessive amount, considering the
way the records were at that particular moment in time. The records
were just in bad shape. They are not in that kind of shape any more.
You know, it takes a little time after someone like Mr. Gibson comes
into an agency, and makes significant changes. It takes time for that
to trickle down in the agency so that the career people below him
who have been used to working in a certain way for a long period of
time finally begin to work in a different way. And I do not think
they really believed that Mr. Gibson meant what he said in his commit-
ment to the furthering of the industry, and doing a good job for
the United States at the same time.
But now. as I have indicated, it has changed a great deal. But, I
do not have any specific records on the cost.
Mr. JNTooRHEAD. Mr. Wellford, T think vou quoted a conversation
that you had with an official of the Pesticide Regulations Division.
Mr. Wellford. Yes.
'SU\ AfooRiTEAo. Wiat was the name of that individual?
IVIr. Wellford. His name was Mr. Bussey.
Mv. ^fooRHEAD. Can vou give the full name?
Mr. Weij.ford. IVfr. Bussev was chief of the filing operations for the
Pesticide Reg-ulations Di^asion, when this incident took place in 1970.
1273
Mr. MooRHEAD. Was tliis a transcript of your conversation or
]SIr. Wellford. Xo. These are the notes that my people took cUirino^
tlie conversation. "We were not allowed to take a tape recorder with
ns when we went into the Division.
Mr. ]MooRHEAD. Well, those are the bells. I will just ask one more
question at this time.
Do I understand that there is general agreement, with the possi-
ble exception of ]Mr. Schuck, that the main difficulty with the Free-
dom of Infoi'mation Act is the attitude of the people with whom you
are dealing, not with the law, itself ?
I believe that was your testimony, Mr. Eobertson, that it was not
the ambiguity of the law. but the attitude of the people?
Mr. Robertson. Mr. Chairman, tlie two are clearly interrelated
because Ave have a law which is essentially not self -enforcing, and we
need to build in some sanctions. I think that our testimony woidd be
agreement on this point, that the attitude is all important. But the
attitude is also a product of not having any sanction that may be
applied in case the attitude is not the kind that Congress expects.
Air. MooRHEAD. Thank you.
Mr. McCloskey.
Mr. McCloskey, Can I ask you, just as a matter of practice in filing
these lawsuits, with precedents on the calendar, how long does it
take you from the time of filing your complaint to get the case adjudi-
cated under this situation in the District of Columbia?
Mr, Wellford. Well, let me see, I think we began the case against
the Meat Inspection Division in December of 1969, as I remember.
]Mr, ]\IcCloskey. "Wliat I am trying to get at, are you looking at
60 days, or 6 months, or 9 months? What is the passage of time?
Mr. Schuck. Just tlie litigation ?
Mr. McCloskey. From the time of filing your complaint in the
precedent calendar, what do you get ?
j\Ir. Wellford. We first made our request in July of 1969. We went
through a lot of delays and appeals and so forth until we finally got a
final denial from the Department, We then filed our complaint in
December of 1969. At that time we were given part of the information
we asked for. as soon as we filed the complaint.
The final opinion on the Government's appeal from the district court
decision came down in ]May 1971, just about 2 years after we made our
initial request for the information.
Mr. McCloskey. As I understand the collective experience of you
gentlemen, you have all had two or three suits of this kind, and what
would you give me as the average time between filing a complaint and
the district court judgment ?
]SIr. Rop>ERTSOx. I would say that a good average would be a year.
That would be an average. A\4iile the act calls for an expedited proc-
essing of a case brought under the Freedom of Information Act, often
does not result in being the way these cases are handled in the courts
expedited unless there is some special request for expedition made.
And second, that the Government under this act still has, like under
most other litigation has, 60 days to answer the complaint. It seems to
me that in freedom of information cases the Government ought to be
76-253 — 72 — pt. 4 18
1274
answering the complaint within 10 days. I haA'e had the experience of
the Government also not answering even within the 60-day period. It
may be 3 or 4 months before the Government actually answers the
complaint.
Mr. JNIcClosket. Let me go back to your specific recommendations.
Do I understand that the consensus of the four of you is that it would
tighten up this problem of bureaucratic noncompliance or reluctance
to comply, if you were able to assess against his agency attorney's fees
and costs ? Is that correct ?
Mr. Robertson. That is right.
ISIr. McClosket. Xow, would you see any objection if we were to
add such a section to the law about the frivolous, the willful, or delib-
erate denial of information, that if the person requesting information
were to do so for purposes of harassment, or be unreasonable, or frivo-
lous, that similar penalties be assessed against the individual for the
Government ?
Mr. RoBERTsox. Because the law does not require any particular
motivation
Mr. JNIcCloskey. I appreciate that. The problem the agencies are
going to give back to us. and I have had this problem, and I have seen
it as a private attorney, is that there are certain individuals out in the
public at large who will take advantage of this kind of a position, and
will ask for records that are voluminous, and bv their nature would
have no practical significance to anybody except to this individual.
Balanced against the public's right to know, would it not be appro-
priate if we put such a provision in the law to make it cut both ways,
attorney's fees and costs to be assessed on the other side ?
Mr. Wellford. I think there is one balancing factor already pres-
ent : it costs a lot of money to go to the trouble to sue and, as you know,
that is what forecloses most people from going beyond that final denial.
Mr. McCloskey. That used to be true, but we have a lot of young
public service lawyers now tliat are willing to undertake litigation.
Mr. Wellford. We have a few.
Mr. McCloskey. Don't you gentlemen meet that category in cer-
tain respects?
Mr. RoBERTSOx. I think you will find that public interest lawyers
are not willing to take on frivolous suits, either. The priorities are very
tight for lawyei-s in the public interest area and if something is really-
requested for harassment or for other frivolous purposes, I think that
the mere expense of having^ to go to court is going to prevent that kind
of abuse from being a continuing problem.
I have a lot of problems M-ith the Government's costs of litigation,
in a case where any citizen is asking for information, being assessed
against the citizen, because that would be a strong disincentive to ask
or to prosecute an appeal.
Mr. "Wellford. That is not what you are asking is it? Are you say-
ing that if the citizen sues and he loses, and the court finds that liis
suit was motivated by capricious, vindictive reasons, that the expenses
of the Government in defending this suit should be assessed against
him ? Is that the proposal, basically ?
Mr. McCloskey. I am talking about the frivolous appeal which cuts
both ways under the current law. I know that either the plaintiff and/
or the defendant who files a frivolous appeal is hit with the same as-
1275
sessment of attorney's fees and costs, although possibly it is not used
very often.
Mr. Wellford. Speaking as an individual, it would not bother me if
your proposals were enacted.
Mr. ScHucK. I agree ; I think in addition that the proposal I made
for an independent evaluation of the claim, at any early point before
it goes to trial by this so-called freedom of information unit, would
I think head off a lot of frivolous pursuits of these kinds of claims.
In addition, it would give the Government agency some indication
of what an objective judge is likely to rule in the future, so that it
would be much more likely upon a ruling by this unit that the original
position was in violation"^ of the law, and I think it would be much
more likely to comply rather than go to court.
]Mr. ^SIgCloskey. I have no further questions.
Mr. MooRHEAD. Mr. Phillips ?
Mr. Phillips. Do you think, Mr. Schuck, with regard to this inde-
pendent agency to which you would refer these kinds of denials, could
that service be properly j)erformed by the Office of Legal Counsel or
are you talking about a separate entity that would be above, or coin-
cidental to OLC ?
Mr. Schuck. I think it is absolutely essential that this particular
unit be placed outside of any particular line agency. In the case of
certain requests, the incentives are so great on the part of the bureau-
crat to maintain the secrecy of this information that that incentive
invariably spills over into the Legal Counsel office.
I think wliat you want is a set of lawyers outside of the agencies,
perhaps in the Consumer Protection Agency.
Mr. Phillips. How about the General Accounting Office?
Mr. Schuck. I would not think that the location of it is of great
consequence, so long as it is independent, and I think that this unit
could be very, very small, and as I say, I imagine about 95 percent of
the requests are strictly routine and could be disposed of in 5 mmutes.
And for the others' which require some kind of dialog between
the unit and the agency that, of course, would take more time, but
I think few cases would be sufficiently involved to require a great deal
of resources.
:Mr. Go^rTLiEB. May I comment on that? I do not want to disagree
with the gentlemen at this table. This is the first time that I have met
them, and most of the things they have said sound very good to me. I
am not an expert in the kind of work they are doing, but I would
hate to see the Members of Congress give up this ombudsman role to
some other agency. I just do not think that another agency would
have the kind, if I might use the word, of clout that Congressman
Moss had in helping me get the information I wanted, and if you con-
sider setting up any agency I would hope that you would not use that
to stop people like' me from using the good offices of the Congress to
see to it that the agencies live up to the laws of the Congress.
Mr. Phillips. Of course, the General Accounting Office, being an
arm of the Congress, could perhaps perform this function.
Mr. Gottlieb. Well, I have been involved with an opinion of the
Comptroller General involving the Department of Health, Educa-
tion, and Welfare, and its desire to close the public health serA'ico
1276
hospitals, and the Comptroller General has ruled that they cannot
do it, and yet they are going right ahead and doing it.
So, I have a little bit of concern for the power of the Comptroller
General m this area.
Mr. MooRHEAD. Thank you very much, gentlemen, for presenting to
us your horror stories, as I would describe them, and for your sug-
gestions for legislative improvements, and the like. We have to adjourn
the subcommittee because of a vote over on the floor of the House.
The subcommittee will adjourn to meet on Friday, March 17, at which
time we will have a panel of news media persons having experience
in the use of the Freedom of Information Act.
Thank you very much.
(Whereupon, at 12:40 p.m., the hearing was recessed, to reconvene
at 10 a.m., Friday, March 17, 1972.)
U.S. G0\ ERN3IENT INFORMATION POLICIES AND PRAC-
TICES—ADMINISTRATION AND OPERATION OF THE
FREEDOM OF INFORMATION ACT
(Part 4)
FRIDAY, MARCH 17, 1972
House of Representati\tes,
Foreign Operations axd
Government Information Subcommittee
OF the Committee on Go\t:rnment Operations,
Washington, D.C.
The subcommittee met, pursuant to recess, at 10 a.m., in room 2203,
Eayburn House Office Building, Hon. William S. Moorliead (cliair-
man of the subcommittee) presiding.
Present : Representatives William S. Moorhead, John E. Moss, and
John N. Erlenborn.
Staff members present : William G. Phillips, staff director; Norman
G. Cornish, deputy staff director: and William H. Copenhaver,
minoritv professional staff. Committee on Government Operations.
Mr. Moorhead. The Subcommittee on Foreign Operations and Gov-
ernment Information will be in order.
This morning we resume hearings by the House Foreign Opera-
tions and Government Information Subcommittee into the adminis-
tration and effectiveness of the Freedom of Information Act. The act,
passed by Congress some 6 years ago. was designed to make the public
business of government the people's business, insofar as possible under
our democratic system of government. In these hearings we are en-
deavoring to find out if the law is being carried out by the executive
bureaucracy as Congress intended.
Is it increasing the flow of news ?
Are the press and the public getting more information about their
Government — its mistakes as well as its positive achievements?
Or are Government news censors finding new ways to circumvent
the law?
For the past 2 weeks we have been examining these questions. Thus
far, we have heard testimony from top Government information ex-
perts, former Presidential press secretaries, and from a distinguished
panel of legal experts on the Fi-eedom of Information Act. We liave
heard from the Justice Department officials who administer the law
and from the chairman of the Administrative Conference of the
United States. We have taken testimony from a number of witnesses
(1277)
127S
from public interest groups who have taken the Government to court
to obtain information.
TodaV: we are pleased to have a panel of news editors and reporters
who have had extensive experience in use of the Freedom of Infor-
mation Act to obtain information. One of the great mysteries about the
ax3t is why it is not more widely used by the press. "\"\lien the legisla-
tion v.-as being considered 6 years ago, most of us thought that the
public media would be one of the major champions and beneficiaries
of this new weapon against the secrecy-minded Govermnent news cen-
sor. Various organizations representing the news media were among
the stanchest supporters of the work of this subcommittee and of the
freedom of information legislation.
Yet, after more than 4 years of operation, only a handful of news-
papers or other public media have actualh' invoked the provisions of
the act to the limit by going into the Federal courts to fight for their
first amendment rights. This does not mean that many newsmen do
not make some use of the law to obtain infonnation. Our investigations
have shown that in many cases a newsman's threat to go to court often
forces a nervous Government bureaucrat to make information avail-
able to him.
The witnesses today from the news media are the exceptions— they
are those who have used the act effectively — as to the general rule of
their colleagues, who have not bothered.
I hope that they will address themselves to some of the reasons, from
their experience, why the freedom of infonnation law is not more
utilized as a news tool. The subcommittee is well aware from our in-
vestigations that the problem of news deadlines is paramount and
that bureaucratic delays for weeks or months in responding to a news-
man's request for infonnation is an effective denial of that informa-
tion. "We are considering amendments to the law that would put a
reasonable time limit on a final response by a Government agency to
a request for information — perhaps 5 or 10 working days. AVliile this
is not a perfect solution, it would perhaps take some of the premium
out of bureaucratic stalling tactics.
The subcommittee will welcome any suggestions you may have for
amendments to improve the operation of the act. We commend you for
your diligence in making effective use of the freedom of information
law and welcome you this morning.
Our witness panel consists of :
yir. Ward Sinclair, Washington Bureau, Louisville Courier-
Journal :
^Ir. E. Peter Straus, publisher. Straus Editor's Eeport.
Mr. Roy McGhee, reporter. United Press International, Washing-
ton Bureau;
]N[r. James B. Steele, urban affairs writer, Philadelphia Inquirer;
and
Mr. John Seigenthaler, editor. Xashville Tennessean.
Gentlemen, we would like to administer the oath to the witnesses.
Would you please rise ?
Do you solemnly swear that the testimony you are about to gi^'e
this sul)Committee will be the truth, the whole truth, and nothing but
the truth, so help you God ?
Mr. Sinclair. J do.
1279
]\Ir. Straus. I do.
Mr. McGhee. I do.
Mr. Steele. 1 do.
Mr. Seigentiialer. I do.
Mr, ]\IooRHEAD. Be seated, grentlemen. We ceitaiidy welcome you
to the subcommittee. We look forward with great anticipation to your
testimony.
We will hear all of the witnesses first and then exchanjoe questions
and answers with the subcommittee. We will stait with ^h\ Ward
Sinclair of the Louisville Courier-Jounial.
STATEMENT OF WARD SINCLAIR, WASHINGTON BUREAU,
LOUISVILLE COURIER-JOURNAL
Mr. SixcLAiR. ]\fr. Chairman, members of the snbconnnittee, my
name is Ward Sinclair, I am a member of the Washinoton news staff
of the Louis\'ille Courier-Journal and the Louisville Times^, the news-
papers of principal circulation in Kentucky and southern Indiana, I
have been an employee of the Louisville papers for 8 years, the last
•i of which have been in the Washington bureau, ]My assignment here
involves coverage of the activities of Congress and the Federal Gov-
ernment as they relate to the States of Kentucky and Indiana.
I thank you for offering me the opportunity to appear here this
morning. It is understatement, I think, to say that the hearings you
are conducting are of vital importance to the public. As the role of
Government in our everyda}^ lives increases, so grows the need for
tJie public to be more clearly informed about the activities and the
decisionmaking processes of that Government. Yet, as perhaps j^ou
may ascertain from some of the examples I will mention this morning,
a news re])orter*s best etforts are sometimes thwarted, in spite of and
not infrequently because of the Freedom of Information Act of 1967.
By way of beginning, it might be well for the subcommittee to
consider some of the peculiar aspects of Washington news gathering
by reporters representinir ncws])apers hundreds and thousands of miles
away from the home office. JNIany of us, such as myself, work rather
independently of our editors. We have our assignments and our editors
usually let us determine what is and what is not news of interest to
our regions. Our contacts with the home office sometimes are frequent,
sometimes infrequent. "Wlien the question of imavailability of infor-
mation arises in a reporter-Federal agency confrontation, it is most
often the reporter himself who must make the instant judgment about
pursuing his quest. He can either accept an official's rejection of his
request for information, or he can attempt to achieve his goal through
other sources. Or he can invoke the Freedom of Information Act and
attempt to bluster his way past the recalcitrant official. ISIost of us,
not being lawyers and not being terribly conversant with the act,
do not get very far, unless we are unusually persistent.
Still another factor — time and the pressure of deadlines — militates
against the newsman in his efforts to ferret information out of the
Federal bureaucracy. The Washington newsman often flits, if that is
the right word, from one subject to another, Todav he is at the Senate,
tomorrow at the House, next week at the Interior Department and
so on. Events do not wait for him. If he is stalled or deterred in his
1280
efforts to collect information on one subject, there is always a fresh,
new — and perhaps more easily covered — subject awaiting him, some-
times forced upon him by the pressure of time and events. Thus, the
Government official who delays, fails to respond promptly, or passes
the buck plays a far stronger hand than the reporter who, perforce,
must move on to other things.
This morning I would like to relate to you some of my own per-
sonal experiences, so perhaps the subconunittee could get a better idea
of the mechanical problems that a daily news reporter faces in
gathering information.
Lest the subcommittee think that the Department of the Interior
is mj^ particular whipping boy, I should say that the bulk of my re-
cent experience happens to be with the Interior Department as a
result of my newspapers' interest in coal mine health and safety. To
be charitable about it, the Department's administration of the law
has been controversial. Goal operators, labor leaders, safety reformers.
Congressmen, and newspapers, none of whose interests necessarily
are the same, all have been critical of the Department. Because of the
recurrent controversies, it has been in the political and bureaucratic
interest of the Department to provide as little informational fuel as
possible for the feeding of more fires. And like many agencies of the
executive branch, the Interior Department's information-disclosure
policies tend not to be guided by those information officers who are
truly committed to the notion that the public has a right to know.
Eatiier, they are determined by lawyers and political appointees who
place some other considerations ahead of public disclosure of their
scale of values.
I think that the most ironic and far-fetched example of what I am
talking about is this incident : Early last year it became known that
Harry Treleaven, a public relations man who played a key role in the
1968 Republican presidential campaign, had been hired as a consultant
to study information programs of the Department. The man who hired
Treleaven, in one of his early official acts as Interior Secretary, was
Eogers C. B. ^lorton. the former Congressman and GOP National
chairman. His study concluded, Treleaven then embarked on a new
enterprise. He prepared a costly proposal to mount a massive media
campaign to educate coal miners on the questionable proposition that
they and not the mine owners were responsible for their safety. The
Department was prepared to grant a contract without bids, without
considering other proposals, to a Nashville, Tenn., public relations
agency chosen by Treleaven and which had agreed to share the profits
with Treleaven. After wide publicity in coal-State newspapers and
after pressures from some Members of Congress, who charged con-
flict of interest and illegal contractual procedures, the Department
dropped tlie Treleaven project.
But in the moantimo, the Department was quietly implementing the
recommendations made by Treleaven in his consultant's report — beef-
ing up its pul)lic information staff to get across a lietter departmental
image, even though President Nixon had ordered a Government-wide
cutback on such activities. As best as I can tell. Interior's information
staff has approximately doubled in the past year.
On August 5 of last year I made a telephone request to Robert Kelly,
Information Chief, to see a copy of the Treleaven report, as it had come
1281
to be called. Kelly talked with departmental lawyers, then reported
back to me that tlie report was considered an "internal document." ex-
empted from disclosure by the Information Act. He suofrested, how-
ever, that I could further plead my case for disclosure by writino; to
Mitchell Melich, the Interior Solicitor. I did so on August 6. I aro^ied
m my letter that the law did not exclude consultants' reports. A month
went by and finally, on September 10, I g-ot a reply from Melich. He
reiterated that the report was an "internal document." exempt from
disclosure under terms of the Attorney General's memorandum inter-
pretino; the act. ]Mr. Melich also aro-ued that disclosure of the docu-
ment, which contaijied names of some information personnel and a
critique of their work, would be an undue embarrassment to the per-
sons concerned.
Shortly after Melich's formal reply arrived on my desk, columnist
Jack Anderson acquired a copy of the Treleaven report and disclosed
its contents, without namino; names. I. too. acquirecl a copy of the re-
port and ao-ain approached Melich. this time by telephone. I asked him,
in liirht of the Anderson disclosure, if he would now consent to mak-
ing the document public. He again declined. I then told him that I had
the docmnent and was concerned not with the names it named, but
rather with its content. Would he officially release the document, even
a sanitized version, with the names removed? He said such a sanitiza-
tion would require too much time and that in any case he would not
release the report.
Subsequently, on Xovember 2, I appealed to Secretary ^Morton in a
two-page letter. I related my problem to him and I repeated my offer
to accept a sanitized vei-sion. One month later, on December 1, I re-
ceived a replv from Under Secretary William T. Pecora. He said he
had revieAved Mr. Melich's September 10 explanation and fully agreed
with his decision.
My point in providing such detail on this one example is this : Partly
because of my inability to pui-sue my request on a day-to-day basis and
partlv because of the Department's i-month delay in answei-ing each of
my letters, the Department was able to put me off from August until
December, a period of 4 months, hiding all the while behind the In-
formation Act. In the end, even though I had a copy of the report
and even though Jack Anderson had ]^ublished its contents, the De-
partment's answer remained the same — it would not disclose.
As an aftair of state tlie Treleaven report, which cost the taxpayer
$11,000 and which will have an eflVct on what and how the taxpayer
ultimately learns about his Interior Dejiartment. does not i;ank very
high. The Department's lawyers were able to correctlv surmise that it
was not a document absolutely essential to my work and they cor-
rectly ffuessed that it was not an issue that a Kentucky newspaper was
likely to go to court over. The Treleaven report remains buried at the
Department.
More briefly, here are two othei- exam]^les of the Department s atti-
tude toward disclosure of nublic iuformation :
1. In Februaiw, 1071, the Department formally named a coal mine
safety research advison- committee, which was authorized by the 1069
Mine Safety Act. The act specifically stated that members of the com-
mittee must be knowledgeable in the field of mine safety research and
that a majority of them could have no economic interest in the coal
industry.
1282
Althouofh the Department made no announcement of its selections,
the Courier- Journal disclosed that at least seven of the 16 panelists
had no knowledefe of mining research. The only apparent qualifications
of four of the seven vrere that they were active in Republican politics
at the local level. Naturally, the appointments became controversial.
The Department assured reporters that tlie majority of the panel mem-
bers satisfied the no-conflict requirement of the law. But on February
11, when I made a formal request for information about the IMembers
financial holdinjrs. I was turned down flatly, on the grounds that the
Freedom of Information Act provides confidentiality for such per-
sonal data. The dilemma was clear : There was serious reason to ques-
tion the legality of the panel, but the public was obliged to accept the
Department's dubious assurances that all was proper.
2. Again in early 1971, the Bureau of Mines' procedures for assess-
ing penalties against mine safety violators became highly controver-
sial. Small operators complained that they were being treated un-
fairly; large operators complained that proposed penalties were op-
pressive. Safety reformers contended that the Bureau was dragging
its feet. In March. I asked the Bureau for permission to view its rec-
ords relating to fines against individual mines. One of the assessment
officers, JNIitchell Sabagh, informed me that this was not public in-
formation, even though the 1969 Mine Safety Act leaves no doubt
about the matter, at least as I read it. I appealed to the Bureau's pub-
lic information officer, who relayed my request up the line. Again I was
refused. Finally, after an exchange of letters. I was given a formal re-
fusal. Then, with the prodding of this subcommittee's staff, the De-
partment reversed itself. I was allowed to review part — only part — of
the records I sought. But on the orders of Edward D. Failor, a polit-
ical functionary who oversees the assessment program, I was pro-
hibited from talking directly to the principal assessment officer. The
result was ludicrous. The Bureau's chief information officer hovered
at my elbow as I went through a time-consuming review of the records.
As I asked questions about individual cases, he relayed them to the
assessment officer who was standing nearby. The assessment officer
would answer my questions through the information officer; I would
duly record his answers, and move on to the next case.
INIy conclusions, published on April 18, were that there were serious
inconsistencies in the Bureau's application of its penalty system. Con-
trary to its own public statements, the Bureau appeared to be ignoring
the mandates of the 1969 safety law. A General Accounting Office in-
vestigation later confirmed those views and today, as the result of a
suit filed in Federal Court by complaining mine operators, the future
of the Bureau's entire penalty program is threatened. It is now under-
standable why the Bureau was so reluctant to have a reporter going
through the records.
I could cite other lesser examples of foot-dragging on the part of
Interior Department and Bureau of ]Mines officials to disclose informa-
tion that by most definitions falls into the category of public informa-
tion. The point remains tlie same: Unless they are confronted with
more stringent guidelines than now exist and unless an information-
hunfrry public is ffiven more tools for quicker remedial action, officials
of the executive branch will continue to be able to exercise an unrea-
sonable control over the flow of information.
1283
I think also that if the trend toward roirionalization of the middle
levels of the Federal bureaucracy continues, the public and the news
media are going to face an increasingly difficult task in obtaining vital
information. For example, a Washington-based Kentucky newsman
formerly able to keep close tabs on the activities of his region's Office
of Economic Opportunity programs, because they were handled here,
now must try to do the same task by long-distance telephone to the
regional office at Atlanta, Ga.
As the subcommittee discusses possible changes in the Freedom of
Information Act, I would suggest that these points be considered :
1. The establishment of an independent watchdog committee whose
sole purpose would be to aid the public and the news media in seeing
that there is the quickest and fullest disclosure of information by
govei'umental agencies.
2. The possible creation, in the executive agencies, of an office whose
duty would be to respond promptly to disputed requests for infonna-
tion and whose job it would be to see that good-faith responses are
given to the public. Somehow it must be made clear that there is a
difference between public information and public relations. Too often
honest and skilled Government information officers are placed in a
position of having to gloss over or withhold data that would tarnish
the image of their agencies.
3. Formulation of the principle that the public has the right to an
immediate yes-or-no answer to requests for information so that the
next step in the disclosure procedure can be quickly initiated before
the pressing need for that informatioji becomes dissipated.
4. That some remedy be devised, short of the costly access to the
courts now provided by the law, to assure that appropriate pressures
can be brought on the official or agency who declines to disclose. This,
perhaps, could be a function of the watchdog committee I mentioned
in poi]it 1. The committee could be authorized to initiate legal action,
if necessary, in behalf of the citizen who has neither the resources nor
the knowledge to take such a step on his own.
5. The often-cited Attorney General's memorandum which inter-
prets the Freedom of Information Act may be due for revision and
simplification. This subcommittee has the wherewithal to see that
such a revision is carried out, in keeping with the spirit of the act and
any amendments that might result from the current deliberations.
I am not sure that this falls within this subcommittee's province,
but I think I would be remiss if I did not mention that agency attitudes
often are influenced by the examples set by the Congress, which last
year held HT percent of its committee meetings in secret. A typical
example is the recent decision of the House to discontinue the practice
of making available House payroll records every month. These records
clearl}' are records of public interest, and, by inspecting them every
month, newsmen came across information bearing lieaA'ily on the pub-
lic interest. Xow the payroll information will be available in booklet
form every 6 months. The periodic publication of a payroll book seems
destined to create an artificial news event that conceivably could cause
more misunderstanding and unpleasantness than the authors of this
idea envisioned.
Thank j'ou for your attention.
1284
'Mr. ^MooRHEAD. Thank yon, Mr. Sinclair.
Tiie subcommittee will now hear from Mr. R. Peter Straus of the
Straus Editor's Report.
STATEMENT OF R. PETER STRAUS, PUBLISHER. STRAUS EDITOR'S
REPORT; ACCOMPANIED BY CHRISTOPHER SHERMAN
]Mr. Straus. Thank you. ]\Ir. Chairman, very much. I would like to
speak briefly about a problem of information that we at Editor's Re-
port know exists but we have not been able to obtain from the FCC.
I am appearing before this subcommittee as publisher of Straus Edi-
tor's Report, a newsletter for media executives, and I am accompanied
by Mr. Christopher Sherman.
Tliere are two other facts I think I sliould in fairness mention in
terms of my own qualification for the discussions that are going to
ensue. I happen also to be president of radio station WMCA in Xew
York City, whicli is a radio station licensed by the FCC. and indeed it
is at this moment that Xew York radio stations are up for renewal
of their 3-year lice^ise — all of the Xew York stations.
I have also served with an executive agency of the Government, with
the Agency for International Development, having been Assistant Ad-
ministrator for Africa, some years ago.
"With that brief introduction I would just like to say I think this list,
which can only be described as a "blacklist." of more than 10.000
Americans should at the very least be the subject of information for
those Americans, that they should not be on what is effectively a black-
list without their knowledge. In my view, there is no more sinister
weapon of any bureaucracy, private or governmental, than the secret
blacklist. It is the club that the totalitarian state waves over a popula-
tion it wishes to live with fear rather than with peace of mind.
It is frequently the lock that bars the door to free access to vital
information.
It is often the wall standing between the individual and the pursuit
of his chosen profession.
And many times it is the permanent black mark that has been mi-
justly stamped on an individual's record.
In my view, there is no room in a free society for the bureaucrat
who can place someone's name on a blacklist without the need to
justify the act to anyone else.
There is no i-oom in a free society for the civil servant who can use
the blacklist as a convenient shortcut substitute for careful thought
or analysis.
Such actions merely serve to erect further barriers between the sys-
tem and those who are governed by it. And one of the cornerstones
of a democracy is the closeness and trust that must exist between the
Government and the governed.
I will be delighted to answer anv questions, but I would like to save
the subcommittee's time by saying simply the list does exist. In an
exchange between Mr. Sherman and Jack Torbet, Executive Director
of the FCC
Mr. MooRTTKAD. Mr. Straus. I think this statement about a black-
list is so important that I think you had better tell the subcommittee.
]Mr. Stratjs. Very good : Mr. Chairman, let me back up, if I may.
1285
In a speech by Senator Sam Ervin, Jr., on :sray 20, 1971, following
upon the Senator's questionnaire to various executive agencies, a speech
before a computer conference of tlie American Federation of Informa-
tion Processing Societies, Senator Ervin devoted a significant piece of
his address on the dangers of computerized information banks to a
discussion of this list. That was, to my knowledge, the first time that
it had been mentioned or acknowledged in public. There had been some
discussion before that it might exist but I do not think anybody had
any demonstration of it.
If I may, I will read several paragraphs :
For instance, a response to the subcommittee questionnaire was recently sent
in by the Federal Communications Commis^sion. It shows that the FCC uses com-
puters to aid it in keeping track of political broadcast time, in monitoring and
assigning spectrums, and even in helping it make prompt checks on people who
apply for licenses.
They told the subcommittee that they maintain a check list which now has
about 10,900 names. This checklist, in the form of a computer printout, is cir-
culated to the various bureaus within the Commission. It contains the names and
addresses of organizations and individuals whose qualifications are believed to re-
quire close examination in the event they apply for a license. A name may be
put on the list by Commission personnel for a variety of reasons, such as a re-
fusal to pay an outstanding forfeiture, unlicensed operation, license suspension,
the issuance of a bad check to the Commission or stopping payment on a fee
check after failing a Commission examination.
In addition, this FCC list incorporates the names and addresses of individuals
and organizations appearing in several lists prepared by the Department of
Justice, other Government agencies, and Congressional committees. For example,
the list contains information from the "FBI withhold list," —
That is in quotes —
Which contains the names of individuals or organizations which are allegedly
subversive, and from the Department of Justice's "Organized Crime and Racket-
eering List," which contains the names of individuals who are or have been sub-
ject to investigation in connection with activities identified with organized crime.
Also included in the list are names obtained from other Government sources such
as the IRS, CIA, and the House Committee on Internal Security.
That is the relevant quote from Senator Ervin's speech of last year.
Upon knowledge of that we inquired fir.st informally of the FCC to
see if we miirht inspect this list of some 10,000 names and our informal
approach was denied. We then in the form of a letter from :Mr. Sher-
man on June 18, addressed to Jack Torbet, Executive Director of the
FCC, specifically asked to consult the list.
Perhaps I should then read the reply which is reasonably short, Mr.
Chairman, dated July 18, I believe, ISth or 19th. I cannot quite be
sure of the stamp :
By letter of June 18, 1971. you have requested permission to examine a list
of 10,900 names, in form of computer printout, of individuals and organizations
whose qualifications might be suspect if they applied for license. You indicate
that the printout was referred to in a report in "Broadcasting" (Closed Circuit,
p. 7. June 14, 1971). You state that your "interest in seeing the list is to inform
our readers of the basis on which names are added to the list." For the reasons
set forth below, the list as well as any supporting data are maintained on a
confidential basis and the request, therefore, is denied.
An examination of the list would not provide you with the information you spe-
cifically request, since the list does not set forth the reasons the names appear.
Any supporting data concerning the- reason for listing is kept in confidential
files separate and apart from the list of names to which you refer. The computer
printout is merely an administrative convenience used to associate any par-
ticular application with a name on the list.
With respect to the reasons for placing names on the list, the following will
indicate the criteria used : bad check charges as a result of payment for either
1286
licenses or operator examinations : unlicensed operations ; suspension of licenses,
or reports by the Coast Guard or others with respect to operators.
Under sections 308(b) and 309(a) of the Communications Act of 1934, as
amended. 47 U.S.C. §§30S(b) and 309(a), the Commission is responsible for
examining the "* * * citizenship character, and financial, technical, and other
qualifications" of individual applicants or licenses : and no license can be isrranted.
modified, or renewed without an aflarmative determination by the Commission
that the public interest would thereby be served. In the course of our processing
of applications, we receive information of many different kinds from many
different sources including other (rovernment agencies and it has been pul^lic
knowledge for some time that this kind of information is maintained at the
Commission although we have discontinued the questionnaire practice which
was the subject at issue in the following cases.
Moreover, as you know, the Public Information Act, 5 U.S.C. § 552, does not
provide that all confidential information must be made available to the public
upon request and it specifically exempts several categories of information from
required disclosure.
Viewed in this character and since much of the information is furnished by
other Government agencies, we can find no basis in the pul)lic interest for permit-
ting public inspection of this list.
And it is signed John Torbet, FCC.
Mr. MooRHEAD. Would you be willing to make copies of those records
available for the record ?
Mr. Straus. Yes : of course.
Mr. ^looRHEAD. Without objection, that will be included in the rec-
ord at this point.
(The information follows :)
Straus Editor's Report.
Washington, B.C., June 18, 1971.
Jack Torbet,
Executive Director.
Federal Communications Commission,
"Washington, D.C.
Dear Mr. Torbet: According to a report in "Broadcasting" (Closed Circuit,
p. 7, June 14, 1971), the Commission maintains a list of 10,900 names, in form
of computer printout, of individuals and organizations whose qualifications might
be susi)ect if they applied for license. As a journalist covering broadcasting. I
asked Mr. Daniel Ohlbaum. deputy general counsel, if I could inspect the list
if it existed. He confirmed that the list did exist, but that it was not genei-ally
available for public inspection, and that a request to see it should be directed to
your oflice.
Our interest in seeing the list is to inform Qur readers of the bases on which
names are added to the list. It is of interest to those who are licensees or ap-
plicants for what reasons they would be subject to special scrutiny. Speculation
of the Commission's reasoning runs for convictions of fraud and gTievous mis-
dealings with the Commission to allegedly subversive political activity and party
convictions.
I hope you will be able to assist me in explicating this matter for our readers.
Respectfully,
Christopher Sherman,
Assistant Editor.
Federal Communications Commission,
Washington, D.C, July 10, 1971.
Mr. Christopher Sherman,
Assistant Editor.
Sitraus Editor's Report,
Washington, D.C.
Dear Mr, Sherman : By letter of June 18, 1971, you have requested permission
to examine a list of 10.900 names, in form of computer printout, of individuals
and organizations whose qiialifications might be suspect if they applied for
licen-se. You indicate that the printout was referred to in a report in "Broad-
casting (Closed Circuit, p. 7, June 14, 1971). You state that your "interest in
1287
seeing the list is to inform our readers of the basis on which names are added
to the list" For the reasons set forth below, the list as well as any supporting
data are maintained on a contideutial basis and the request therefore is denied.
An examination of the list would not provide you with the information you
specifically request, since the list does not set forth the reasons the names
appear. Any supporting data concerning the reason for listing is kept in con-
fidential hies separate and apart from the list of names to which you refer. The
computer printout is merely an administrative convenience used to associate any
particular application with a name on the list.
With respect to the reasons for placing names on the list, the following will
indicate the criteria used: bad check cliarges as a result of payment for either
licenses or operator examinations ; unlicensed operations ; suspension of licenses,
or reports by the Coast Guard or others with resi^ect to operators.
Under sections 308(b) and 309(a) of the Communications Act of 19;34, as
amended. 47 U.S.C. §§30S(b) and 309(a). the Commission is responsible for
examining the "* * * citizenship, character, and hnancial. technical and other
qualifications'" of individual applicants or licensees ; and no license can be granted,
modified or renewed without an aflirmative determination by the Commission
that the public interest would thereby be served. In the course of our processing
of applications, we receive information of many different kinds from many dif-
ferent sources including other Government agencies and it has been public
knowledge for some time that this kind of information is maintained at the
Commission although we have discontinued the questionnaire practice which
was the subject at issue in the following cases. For judicial recognition of the
Commission's statutory authority to inquire into the character qualifications of
applicants, see generally Borrow v. FCC, 285 F. 2d 666 (D.C. Cir. 1960), cert,
den. 364 U.S. 892 (1960) : Cronan v. FCC, 28.5 F. 2d 288 (D.C. Cir. 1960). cert den.
366 U.S. 904 (1961) : Blumenthal v. FCC, 318 F. 2d 276 (D.C. Cir. 1963) ; and
Iloivite V. U.S. and FCC, 390 F. 2d 589 (3d Cir. 1968) .
Moreover, as you know\ the Public Information Act. 5 U.S.C. § 552. does not
provide that all confidential information must be made available to the public
upon request and it si>ecifically exempts several categories of information from
required disclosure.
Viewed in this character and since much of the information is furnished by
other Government agencies, we can find no basis in the public interest for per-
mitting public inspection of this list.
Sincerely yours,
John M. Tobbet,
Executive Director.
]VIr. MooRHEAD, Thank you, Mr. Straus.
The subcommittee would now like to hear from Mr. Roy McGhee,
ITnited Press International, Washington Bureau.
STATEMENT OF ROY McGHEE, REPORTER, UNITED PRESS
INTERNATIONAL, WASHINGTON BUREAU
Mr. ]McGhee. Gentlemen of the subcommittee, I cover the U.S. Sen-
ate. First. I would like to congratulate the committee for holding these
hearings. "Within the last couple of yeare the Congress as a whole has
moved markedlj^ in making more information available to reporters
who cover the Capitol. I refer to the Reorganization Act, passed a year
ago and the Freedom of Information Act itself, and the moves by the
House of Representatives a year or so ago to have recorded teller votes.
Nevertheless, as Mr. Sinclair pointed out, a real problem still con-
fronting tlie congressional reporter is the matter of executive sessions.
I must say that it is not nearly as important to a reporter covering the
Capitol as it is to one assigned to the executive branch. As you are
aware, the political structure and nature of the Congress frequently
enables a reporter to get information that is either advantageous to one
side or anotlier on most questions. However, that is not really an ideal
way to get it and frequent!}' it is colored. It places an added responsi-
1288
bility on the reporter to make a judfiiiient, which frequently he is
unabk' to do.
I have been a reporter for more than 20 years for United Press and
covered Government at all levels. The wire service reporter really does
not face — as a general rule does not face — the same problems as the
newspaper reporter, a reporter that works strictly for one newspaper
or majrazine reporter. Wire services are essentialh^ in some areas a
transmission sei-vice, but in Washington, and in the great news centers
of the world, the wire service repoi'ter also does a source reporting job
that is perhaps more vital than the reporter covering for just one paper
because his responsibility, as readily seen, is much wider.
I have had some experience, not with lawsuits in the Freedom of
Information Act. but in citing it in trying to get information, not
from the Congress, but from the Pentagon. I would like to relate the
details of one incident, a minor storj^ reallj', but one illustration of
what reporters run into daily,
I had a chance conversation with a gentleman. He told me that in
the Pentagon tliere was a slush fund, in his words, used by admirals
and generals for their own private purposes, that the money was col-
lected from gifts by civilian employei'S in the Pentagon and in the
military, and then disbursed for such things as the health needs of
wives or special parties and things like that.
I could not believe it. I did not believe it. But I thought, well, I will
check on it.
So I called up the Pentagon. I called the Pulilic Information Office,
and asked if there were any private funds in existence in the Pentagon
to which employees contributed or to which the Government con-
tributed. And I Avas told. yes. there was such a fund. It is collected by
the Defense Concessions Committee. So I asked what does the com-
mittee do? A"\niere does it get its money? How does it disburse it?
I was told the funds are collected from rents and from concessions,
machines, the cigarette machines, profits of that kind, and then dis-
tributed among the various agencies in the Pentagon.
Wlien I began to ask questions about the details of the collections,
however, how the money was distributed and for what purpose and
who got it, I ran into the "it is none of your business" stuff. So I took
this to the General Counsel of the Defense Department. I got this tip
originally in the spring of 1970 and it was October before I was able
to write a story about it.
I must say. though, that I was not full time on this assignment. As
a matter of fact, it was not even an assignment at all. It was something
I was doing as a labor of love.
Well, I had learned that the main source of the money, over a mil-
lion dollars a year, came from the rental and gross receipts levied on
the shopping mall businesses in the Pentagon. T inquired of the GSA
what would happen to this money in other departments of the Govern-
ment and invariably it is turned back to the Treasury. In the case of
the Defense Department, it was turned over to something called the
Defense Concessions Committee. I wanted to know how much the busi-
nesses were paying in rents or in gross receipts. It seemed to me that
this was an essential fact in the story, how much money each of these
businesses was jiaving. The money that should have gone into the
General Treasury was going into such things as bridge parties, temiis
1289
tournaments, hunt clubs, all sorts of things, recreational activities for
the employees in the Pentagon.
The General Counsel at that time was James J. Kearney. When I
finally got to him he said it was his opinion that these were nonappro-
priated funds and it was none of my business or anybody else's how
they were spent. I pointed out to him that in other public buildings,
according to the GSA, the rents were collected and turned back to the
Treasury.
Well, part of the rents and part of the gross receipts from these
businesses in the Pentagon are turned back to the Treasury but at that
time the — I have forgotten the figures precisely but the general rates
for such space in the suburbs was about $5 an hour. This was in 1970
when I w^as working on this story. But these stores over there were
only paying $2.72 a foot. Very profitable and very concentrated market
area there.
Mr. MooRHR<\D. One point. You said $5 an hour.
Mr. McGhee. I meant $5 a foot. I am thinking about my own pay
[laughter]. $5 a square foot.
They did teU me what they were getting on the square foot rental
because part of this money they did have to turn back into the
Treasury, but in addition to that they get a percentage of the gross
receipts of the business. This they would not tell me. And they said
that this was proprietary information that was — w^ell, it might be
used by a competitor for a disadvantage to the company, this sort
of thing.
So, I told Mr. Kearney that I did not see it that way. It appeared to
me that all this was coming from public space owned by everybody
and that if there were revenues either paid on a square foot basis or
on a gross receipts basis, it appeared to me they ought to be turned
in to the Treasury, and I requested — I put in a formal request then
for the precise amounts that each company w^as paying. He turned me
down, as I said. So, I finally wrote the story and pointed out that I
was turned down for this information and could not get it.
I went to Senator Proxmire, who at that time was conducting hear-
ings in the — I have really forgotten, I have covered so much up
here — I tliink it was the C-5 investigation, but I am not sure. It could
have been another. I told him the problem I was having and asked
him if he would a^ the GAO to look into this and if they could get the
information.
One of his men made a call to the GAO and got a call back and a
GAO spokesman said they had been up and down this ladder 50
times and they could not get information on nonappropriated funds.
So I wrote that in the copy, too.
That is where that instance stands. I have not pursued it further.
I do not have time. My company did not file a lawsuit to get the in-
formation. As I say, we are essentially a transmission service. We
transmit millions of stories a day round the world and one is — a story
of this nature obviously has to'^take its place in the overall scheme.
One of my colleagues who covers the House of Representatives, Mr.
Daniel Rapoport, has also had problems with the Defense Depart-
ment. He wrote to Mr. Daniel Z. Henkin in January of tliis year with
a specific request and specific lists for information on transportation
supplied to Members of Congress. He was denied the information,
76-253 O— 72— pt. 4—19
1290
first by Mr. William E. Odom, who is a special assistant in the Public
Affairs Division of the Department of Defense, I will read two para-
graphs of the reply :
The Department of Defense support of Members and employees of Congress —
support is provided in accordance with this legislation, questions concerning
travel performed by Members of Congress should be directed to standing com-
mittees which authorize such travel or to individual members. Any appeal you
may wish to make of this response should! be directed to the General Counsel of
the Department.
Mr. Rapoport then appealed to the General Counsel, got back essen-
tially the same information, that this was a congressional matter and
not for the Department, that he would have to take it up here in Con-
gress. It is readily seen, with 535 Members of Congress, we do not know
where you gentlemen go. Obviously the information is collected in the
Pentagon some place and obviously it should be made public. There is
nothing sinister here. It is just a simple matter that some of the Mem-
bers of Congress obviously do not want their constituents to know
where they are, where they are going.
Anyway, that is our assumption.
Mr. Rapoport has not — he has invoked the Freedom of Informa-
tion Act but has not filed suit under it. I would suggest that perhaps
the Budget and Accounting Act should be looked into in this matter
of the GAO's authority to audit the records of nonappropriated funds.
It seems to me that that is a serious flaw. And in your own hearings
Mr. Moss. We can respond there. I think it is custom and not law.
Mr. MooRHEAD. Mr. Moss has a comment.
Mr. Moss. My recollection of the accounting law of 1921 is that it
leaves the Comptroller General to acquire the information. This com-
mittee went over this issue in relation to the shopping arcade in the
Pentagon in the late 1950's, so they are just going back and resuming
old bad habits. If they are now denying this information because we
brought about its release I question that that is nonappropriated. This
appears to be purely a slush fund that is not contemplated by any law
as you explain it. I think we ought to acquire from DOD the legal basis
for their fund and for their claim that it is privileged. The specific
statutory citation.
Mr. McGhee. There is a
Mr. Moss. It is not privileged under the Information Act.
Mr. McGhee. I did not think so. There is a retired colonel that runs
this fund over there.
Mr. Moss. Most of those are oj^erated by retired colonels. [Laughter.]
Mr. McGhee. His name is Ralph A. Glatt. His title is executive
secretary of the Defense Concessions Committee. After repeated phone
calls he sent me an order signed by the Secretary of Defense, I believe
in 1956 setting up this fund — it is kind of an ad hoc organization —
under which tliis order authorizes this committee to collect this money
and disburse it. It is a very interesting procedure they go through.
Each year
Mr. Moss. In elective office it is called kickback.
Mr. McGhee. AVell, there is an association in six areas of the Penta-
gon : the Army, Navy, Air Force, the Defense Intelligence Agency, the
Office of the Secretary of Defense, and the Office of the Joint Chiefs.
Now, the employees of one of these organizations in each of these
offices — they are separate organizations — they file a budget with the
1291
Defense Concessions Committee each year and the Defense Concessions
Committee then apparently makes an estimate of liow much money
they are going to get from various concessions in the Pentagon and
then doles it out to these various committees, various organizations.
That is the Avay the money is collected. I mean, that is the way it is
disbureed.
I have some figures here you ma}- be interested in. Last year — this
would have been 1969 because I wrote this story in 1970 — the commit-
tee collected $887,000. It returned $179,000, $176,000 to the GSA for
rental space at a rate of $2.72 per square foot. Total receipts in 1968
were $901,248. Now, the GSA told me, when I was reporting this story,
that comparable space should return to the Government $4.50 per
square foot. This contract that the GSA had with the Defense Depart-
ment had not been revised since 1962. They were still going on a 1962
rate in 1970. The concession also returned to the Treasury's receipt
account $225,406. This left revenues of $488,099, which if received from
rental of any other Federal building space would also be returned to
the Treasury, but they were not.
Mr. MooKHEAD. Mr. McGhee, you have been referring to your story
on the wire service and also correspondence. Can you make copies of
those available for inclusion in the record ?
Mr. McGhee. I would be happy to. I am only sorry the space we
have to keep files in the press galleries is fairly limited. I am not com-
plaining. I had a file this thick and I threw it away maybe 3 or 4
months ago.
Mr. MooRHEAD. I am sorry you had to reveal that fact. Without ob-
jection, then, the documents will be made part of the record.
(The information referred to follows :)
Concessions
The Defense Department is collecting close to $1 million a year from private
businesses operating in the Pentagon, but turns only a fraction of the revenues
back to the Treasury.
It diverts almost half the money to a Defense concession committee. This
committee, in turn, uses more than $2.50,000 a year to finance such acti\-ities as
social clubs, dinner dances, and tennis tournaments for Pentagon employees.
The arrangement is unique in the Federal Government.
Rental receipts from all other commercial concessions in Federal buildings
must be deposited in the miscellaneous receipts account of the Treasury, accord-
ing to the General Services Administration (GSA).
Moreover, the Pentagon receipts and di.sbursals are not subject to any congres-
sional audit, despite attempts of the General Accounting Office (GAO) to inspect
the books.
Upon inquiry by UPI, however, Col. Ralph A. Glatt. (Ret.), executive secre-
tary of the Defense concessions committee, on orders from the Assistant Secre-
tary of Defense for Administration, made some figures available for recent
years.
The committee was set up in 1958 under a directive from the then Deputy
Secretary of Defense, Donald A. Quarles. The directive authorized the committee
to lease space on the Pentagon mall to concessionaires and to run cafeterias in
the Pentagon.
Last year the committee collected $885,681. It returned $179,176 to the GSA
for the rental space, at a rate of $2.72 per square foot. The total receipts in
1968 were $901,248 and $917,042 in 1967.
GSA told UPI the $2.72 rate v^-as set in 1962. It said comparable space in other
Federal buildings produced a return to the Government of between .$4.50 per
square foot in the suburbs, or $5 downtown.
The concessions committee also returned to the Treasury's miscellaneous
receipts account $225,406.
1292
This left revenues of $481,099 in 1969, wliicli if received from rental of any
other Federal building space would also have gone to the Treasury to the benefit
of all taxpayers.
Where did this money go?
Again, the Defense Department has refused to give a detailed account to the
GAO. But again, Glatt supplied some gross figures to UPI. He said $263,555
was divided among six Pentagon agencies for recreation to and welfare activ-
ities. He said the money was divided according to the number of employes in
each agency. He gave no breakdown, but as of December 31, 1969, there were
13,498 military and 13,984 civilians working in the building.
The Army got the biggest chunk of the money, $96,300. The Defense Communi-
cations Agency fund got $6,950, the smallest allocation. Other agencies and their
share : Office of Secretary of Defense and the Joint Chiefs of Staff $43,921 ; Navy
$39,552; Air Force $65,295, and the Defense Intelligence Agency $11,637.
All the agencies use the money to support such employe activities as bowling
leagues, rod and gun clubs, annual dances and dinners and softball teams and
tennis tournaments. One agency makes interest free loans to distressed employes
and at least two finance influenza innoculations and glaucoma tests.
The concessions committee refused to tell UPI how much revenue it got from
each of the 20 concessionaires doing business on the Pentagon mall. James J.
Kearney, general counsel for the Department, said such information was "pro-
prietary" in nature and therefore confidential. He did say, however, that in some
cases the concessionaires paid the committee on the basis of the space occupied,
and in some cases a gro.ss percentage of revenues.
The concessionaires include a major department store, a -drug store and a
newsstand.
January 6, 1972.
Mr. Daniel Z. Henkin,
Assistant Secretary of Defense {Public Affairs),
The Pentagon,
Washington, D.C.
Dear Mr. Henkin : Under 5 USC 552 I request the following identified infor-
mation : A complete list of members of Congress and employes of Congress for
whom the Defense Department provided travel during the first half of Fiscal
Year 1972— from July 1, 1971 to Dec. 31, 1971.
In accordance with the recommendation of the Administrative Conference of
the United States this answer should be forthcoming from you within 10 working
days.
About Dec. 28, 1971 I submitted, through UPI's Pentagon correspondent, War-
ren Nelson, a written request for similar information. On Dec. 30, 1971 the Direc-
torate of Defense Information issued the following reply :
"Any question concerning travel performed by members of Congress should be
directed to the standing committees which authorize such travel or to individual
members."
This response is unsatisfactory. The only means by which I can be assured of
obtaining an accurate and complete list of Congressional travel is to acquire
that information from the department of government which furnishes that travel
and which maintains files on it.
Sincerely yours,
Daniel Rapoport,
United Press International.
Assistant Secretary of Defense,
Washington, D.C January 20, 1912.
Mr. Daniel Rapoport,
United Press Correspondent, Press Gallei-y, U.S. House of Representatives, Wash-
ington, D.C.
Dear Mr. Rapoport : This is in response to your letter of January 6 in which
you request a list of members of Congress and employees of Congress for whom
the Defense Department provided travel during the first half of Fiscal Year
1972.
Department of Defense support of members and employees of Congress travel-
ing on official business of Congress is authorized by Public Law 207, 83rd Con-
1293
gress. Support is provided in accordance with this legislation. Questions con-
cerning travel performed by members of Congress should be directed to the
standing committees which authorize such travel or to individual members.
Any apipeal you may ^vish to make of this response should be directed to the
General Counsel of the Department of Defense, who acts on behalf of the Secre-
tary of Defense in such Freedom of Information Act matters.
Sincerely,
William E. Odom, Special Assistant.
United Press International,
Washington, B.C., February 15, 1972.
Mr. J. Fred Buzhardt,
General Counsel,
Department of Defense,
The Pentagon.
Dear Mr. Buzhardt : In accordance with the last paragraph of the attached
letter, I am writing to appeal Mr. Odom's refusal to provide me with Congres-
sional travel data held by the Department.
I am advised by counsel that there is nothing in the Freedom of Information
Act which requires me to exhaust all administrative remedies before insti-
tuting litigation to gain access to public records. Indeed, the law's insistence on
early court consideration of FOI cases would argue against the need to contest
an issue at the agency level. However, as an act of courtesy I am complying with
this step in the Department's procedure. In this same spirit I trust that you will
reply promptly.
Sincerely,
Daniel Rapopobt.
General Counsel of the Department of Defense,
Washington, D.C., March 2, 1972.
Mr. Daniel Rapoport,
United Press International,
National Press Building,
Washington, D.C.
Dear Mr. Rapoport : I am responding to your letter of February 15. 1972, in
which you appealed the refusal of January 20, 1972, by the Office of the Assistant
Secretary of Defense (Public Affairs), to provide you with a complete list of
members of Congress and employees of Congress for whom the Department of
Defense provided transportation during the first half of Fiscal Year 1972, that is,
July 1, 1971, through December 31, 1971.
I am advised by the Assistant to the Secretary of Defense (Legislative Affairs)
that no identifiable record in the possession of the Department of Defense con-
tains the information vou seek. Consequently, it cannot be provided, and the
Freedom of Information Act (5 USC 552(a) (3)) has no application. This con-
clusion is supported on page 23 of the Attorney General's Memorandum on the
Public Information Section of the Administrative Procedure Act by the fol-
lowing explanation :
"Subsection (c) [5 USC 552(a) (3)] refers, of course, only to records in being
and the possession or control of an agency. The requirement of this subsection
imposes no obligation to compile or procure a record in response to a request. This
is evidenced by the fact that the term 'information' in the bill, as introduced, was
changed by the Senate to 'identifiable records' and by the legislative history of
that change. ( S. Rept, 89th Cong.. 2. ) " , ^^ x^ /oo
A similar provision is set forth in DoD Directive 54(X). 7, paragraph VII.D. (32
CFR286. 7(d)). , . ^^ ^^
Under Public Law 207, 83d Congress, all Congressional travel is subject to the
control and regulation of Congress and its Committees. Accordingly, the letter
from the Office of the Assistant Secretary of Defense (Public Affairs) appropri-
ately suggested that you direct your question to the standing committees of
Congress, which authorize such travel or to individual members of Congress.
This is consistent with the guidance in Paragraph VII.E. of DoD Directive
5400. 7 (32 CFR 286. 7(e)).
I regret that we are unable to be of assistance to you in this matter.
Sincerely yours, _ _
J. Fred Buzhardt.
1294
Mr. MooRHEAD. The subcommittee would now like to hear from Mr.
James B. Steele, urban affairs writer, Philadelphia Inquirer.
STATEMENT OF JAMES B. STEELE, URBAN AFFAIRS WRITER,
PHILADELPHIA INQUIRER
Mr. Steele. Mr. Chairman, members of the committee and staff, my
name is James B. Steele. I am the urban affairs writer for the Philadel-
phia Inquirer. Another Inquirer reporter, Mr. Donald L. Barlett,
and myself have been investigating the operations of the Philadelphia
Federal Housing Administration office since June 1971 and in the
course of that investigation we found that speculators on quite a mas-
sive scale in Philadelphia have bought nmdown houses with serious
defects, made cosmetic repairs for the most part and sold them at
inflated prices to poor families, all with the approval of FHA, which
insured the houses as being essentially defect-free.
Wliat I would like to do at the committee's pleasure is briefly de-
scribe the steps we have gone through in t^rms of our disagreement
with the Government over what type of information was available to
us in this study and then also to briefly recount some of the arguments
they have made as a basis for denying us that information.
Our essential argument is over whether or not the names of FHA
staff and fee appraisers are public information. Fee appraisers, for
purposes of the record, are private real estate brokers who appraise
property for FHA for a fee. Staff appraisers are Federal employees,
of course.
We first made a request for FHA staff and fee ajDpraisers in August
1971 to the area office of HUD in Philadelphia. The reason for this
was part of our continuing investigation of FHA programs in Phila-
delphia. It was to see who had appraised certain houses turned up in
the course of our investigation. The number was into the hundreds at
the time. Defective work had been performed and the houses began
to fall apart shortly after low income people moved in. The importance
of this is — that the low-income programs enacted by Congress in the
1960's starting in 1961, which got a great boost in 1968 through sec-
tion 235 and through the section 223E special risk emergency fimds,
permitting FHA to insure houses in a lot of previously forbidden
areas of central cities, were clearly going awry in Philadelphia. The
foreclosure rate between 1967 and 1971 in Philadelphia on FHA-in-
sured houses was greater in that 4-year period than in the previous
33 years of FHA's existence in Philadelphia. One of the conclusions
we reached was essentially that the insurance of these substandard
houses was clearly part of the reason for that soaring rate.
At any rate, to get back to the freedom-of-information question,
we asked for the names of appraisers who set the values on these houses.
This was turned down by the area office of FHA. A similar question
was asked of the Washington office and we were told something to
the effect that HUD must ])rotect the appraisers from things that
might be said about them. Then a formal request was made on Au-
gust 30, 1971, under the Federal Freedom of Information Act by
John McMullan, the executive editor of the Inquirer, to Theodore
Robb, HUD's regional administrator. On September 1, Mr. Eobb
agreed to release the names of appraisers and the fee appraisers who
1295
were on the Philadelphia office's approved list, but he refused to
link them to any particular properties.
Obviously the failure to say who appraised specific properties only
gave the names Mr. Robb released a certain marginal value. In deny-
ing us the information we sought, Mr. Robb claimed the information
was exempt under the act as part of interagency memorandum and
also as part of investigatory files. Wliere they got the investigatory
files idea was that a Federal grand jury was then in session in Phila-
delphia and that the information we sought was contained in something
like 23,000 file binders covering every house sold under these low-
income programs in Philadelphia in recent years and that information
was then before the Federal grand jury looking into abuses in FHA.
Thus George Romney could not give what he did not have, we were
told.
As is customary in a situation like this, we formally appealed to
Mr. Romney and on November 11, Mr. Romney denied the request. In
a four-page letter, he asked us to blame him for any slipups that might
have been made by FHA, but don't blame the appraisers. He said it
was not relevant to criticize an employee of HUD. He wrote :
No enterprise, public or private, can expect its employees to contribute as
openly and honestly to the formulation of its policy if those employees believe
that their opinions (such as appraisals) are to be subject to public "second-
guessing."
The key word in that passage is the word "policy". As you gentle-
men know so well, the interagency memorandum exemption refers
to policymaking and deliberative issues that may go on inside a de-
partment. Anyway, HUD was attempting to say that the name of the
appraiser alone was in one way or another part of the policymakmg
decision of the Department. .
The Inquirer then filed suit in the U.S. District Court m Phila-
delphia under the Federal Freedom of Information Act seeking to
force the Government to disclose this information. On December 21,
oral arguments were taken and one of the things that was clear in the
arguments and briefs that were filed in the intervening time was that
this was not just a Philadelphia issue. Much of the same language
that Secretary Romney had used in his letter denying us the request
also showed up in the 'lengthy briefs the Government filed as to why
this information could not be made public.
Finally, as I believe many of you may know now, just a week ago
yesterday a Federal judge ^in Philadelphia ruled in our favor, dis-
missing the Government's arguments on virtually all counts in an 11-
page opinion. I will come back to what has happened in the mter-
vening 7 days in a minute. .
The thing that I think is one of the mpst interesting things about
this case from our standpoint were some of the arguments the Gov-
ernment resorted to as to why the name of an appraiser of a specific
house was secret and why it could not be made public. As I explained
earlier on the interagency memorandum exemption, they considered
the appraiser's name part of the policymaking decisions of HUD. I
also explained the investigatory exemption they claimed in \aew of the
fact that the Federal grand jury was looking at this. Beyond that,
the whole case was characterized by some extraordinaiy legal foot-
work which I would suspect was never seen in a court of law. Let me
cite a few of these because I think they are rather extraordinary.
1296
During the oral arguments in the case, the assistant U.S. attorney
who was representing the (jovernment suggested that the Inquirer
had sued the wrong party. And again he said George Komney could
not give what he did not have. The names of the appraisers were then
in file binders before a Federal grand jury. It was our position that
our request for those file binders was made even before the grand
jury's, for one thing.
Second, the Government also made the point that Federal employees
have a constitutional right to privacy and releasing the names would
violate that.
Further, they kept asking, in their brief, why the Inquirer wanted
the names. They stated at one point that Government compliance
would merely help the Inquirer sell more newspapers. They further
reiterated many times that the appraisers' names were of no impor-
tance to the public after HUD adopted their recommendations.
I think this is an example of how far afield they went in some of
their arguments. Better than anything I could say, I'll just read a few
paragraphs from their briefs that will give you a better understanding
of their position.
An example of the kind of language they used, again not dealing
with either the question of interagency memorandum or investigatory
files stated : "This court is entitled to know why plaintiff persists in
pursuing its demand for this information." A couple of pages later
they came back to that point and said :
One can only speculate how the plaintiff might employ its knowledge of the
names of the appraisers requested, but in view of the widespread puhlicity which
plaintiff has given to this matter, it is fair to assume that at best the appraisers'
personal privacy would be invaded. At worst they would be subjected to direct
public criticism and castigation by the plaintiff, who is ill-equipped to make
sound judgments concerning the quality of the appraisal reports, or the profes-
sional competence of the appraisers. Inasmuch as the obvious injuries which
disclosure of the names of the appraisers would cause to the defendants and to
the appraisers individually far outweigh any benefits which such disclosure
might confer upon anyone else, disclosure should not be required.
Mr. Moss. I think this is about as outrageous a thing as I have heard
and I might say again : names of personnel, their availability, that was
one of the first cases ever studied by the Information Committee when
it was created 17 years ago. But, an appraisal is not a private judg-
ment; it is a professional judgment through which the applicant
for the loan or the insurance pays a fee and it becomes the binding
determination as to the amount of loan which can be made against the
property. It is an essential ingredient in determining valuation. In
fact, it is the key ingredient in determining valuation.
FHA charges the applicants for a loan, a fee for an appraisal. Most
appraisers, appraisers in many jurisdictions, are licensed, and they
lay their professional judgment on the line. They can be licensed as
appraisers or they are brokere.
I happen to be a licensed real estate broker in the State of California.
If I make an appraisal I fully expect that I must stake my profes-
sional reputation on its validity and it has l)ecn examined. I know of
no privacy there. Whether thefellow works for the Government as a
professional and the Government keeps the fee or whether the fee is
paid to a contract appraiser, it makes no difference. By no stretch of the
imagination would it be investigatory because he rendered a final
1297
complete judgment. Certainly it is not interagency, nor is it internal
within the agency because it is made available to the applicant for
the loan or the loan guarantee.
I think it is a perfect example of the outrageous attitude, and I want
to make it very clear, they are not peculiar to this administration or
to that department or agency. They seem to be sort of a highly con-
tagious attitude within the bureaucracy which grows ever more
ominous in its desire to control what we know, think, and do.
Mr. MooRHEAD. You may proceed, Mr. Steele.
Mr. Steele. AVe heartily concur. Those are many of our feeling
throughout the whole case. One other thing they sought to bring m
within their brief which I think was even more irrelevant than the
ones I mentioned before, they attempted to say their investigations
now in progress, referring to the grand jury investigation, could well
be thwarted by making available the information requested :
With respect to persons who are guilty or incompetent, the disclosure of the
information sought to the media might well create an atmosphere in which an
accused could not receive a fair trial and due process of law as guaranteed by
the Constitution. It might create obstacles to successful prosecution by alerting
certain persons to take steps to cover up their unlawful acts. Also it might render
it more difficult to obtain unbiased jurors, in view of the publicity attendant
upon disclosure.
I think the best thing to say about this brief of the Government
was said by Judge Lord when he ruled last Thursday :
We have reviewed at too great a length the contentions of the Government,
and find in none of them justification for the withholding of the material
sought, and therefore will enter the following order.
So, he certainly agrees with you, Congressman Moss.
On the two points of interagency memorandums and investigatory
files, I think it might be well to incorporate in the record just briefly
what the court said. On the interagency memorandums, the judge re-
jected the Government's argimient — he said the exemption related
only to internally related cases designed to assist the policymaking
and the deliberative process of Government.
On investigatory files, he had this to say:
The defendants have relied upon many cases which have held the grand
jury's deliberations to be inviolate, and the minutes of their proceedings to
be immune from discovery. That is not the .situation pre.sently before us. We
are asked to release to plaintiffs only the names and addresses of the appraisers —
information which was in no way protected before it was inserted into file
binders presently being reviewed by the grand jury.
The intent of Congress in passing the act was to permit the public to know.
What the Government would have us do here i.s preclude the public from know-
ing the names and addresses of fee appraisers because they have been in-
cluded, after the fact, in binders now before a grand jury. No request has been
made to insi^ect minutes of the grand jury's proceedings. No attempt has been
made to interview members of the incjuiring panel.
One final thing the judge said was :
The thrust of the Government's case, taking its philosophical direction from
the correspondence of Secretary Romney and the Inquirer, is that constitutional
guarantees with respect to the press are applicable only in cases of prior
restraint. While we agree that this is not the classic case of attempted prior
restraint, we find that even if it were, the cases are not limited in their remedial
effect to them.
1298
And they cite the case of Near v, Minnesota^ 283 U.S. 697, 716 ; 1931.
The following, I think, was in many ways the meat of his decisions :
We are confronted here by alleged improprieties by public oflBcials or private
citizens paid with public funds, and if the misdeeds were perpetrated, the public
has a right to know about them.
While this is not the classic case of prior restraint, it approaches — it comes to
court bearing a heavy presumption against its constitutional validity.
The defendants carry a heavy burden of showing the public such a restraint.
That is when it goes on to say the Government failed to prove that
point.
Just in conclusion, where we stand now, 9 days after the judge's
decision — also, by the way, after the decision came down, Secretary
Romney announced to us that he did not intend to ask the Justice
Department to appeal this decision and he said he intended to ask the
Justice Department to turn over to us the names we sought. We have
since made requests both to the U.S. attorney's office in Philadelphia
and to the area office of HUD for the names. We are still waiting and,
in fact, on Tuesday or Wednesday our attorneys returned to court
for an additional order to compel HUD to release the information.
I haven't heard anything today. There may well be something
happening on that at this very moment. The U.S. attorney's office
also told us they had sent the opinion to Washington for review as
to whether it would be appealed.
Thank you very much.
Mr. MooRHEAD. The statement by Mr. Romney — about no appeal —
was that oral or written?
Mr. Steele. This was a statement phoned to us by his press aide.
Mr. ]MooRHEAD. Can you supply for the record the copies of the
correspondence between the Inquirer and HUD?
]Mr. Steele. Yes; I would be happy to.
Mr. IMooRHEAD. I think that would be helpful for the record.
AVithout objection that w^ll be printed in the record.
(The material referred to follows:)
[Exhibit "A"]
August 30, 1971.
Mr. Theodore R. Robb,
Regional Administrator,
U.S. Department of Housing and Urban Development,
Philadelphia, Pa.
Deak Mr. Robb : In connection with our discussion earlier today of Federal
Housing Administration (FHA) mortgage programs, I would like to make the
following requests for information :
1. The names and addresses of all fee appraisers employed by FHA since
January 1, 1969.
2. The names and addresses of all staff appraisers employed by FHA
since January 1, 1969.
3. The names and addresses of those persons who appraised specific prop-
erties for FHA mortgage insurance. (A list of the properties will be fur-
nished later.)
4. The official status and present job titles of David Lang and Thomas J.
Gallagher, and any other FHA officials who have been reassigned, or who
have retired, in the last 6 months. (We also would like to make arrange-
ments to interview Mr. Lang and Mr. Gallaglier. )
The Inquirer, through this letter, is making formal demand for this material
under the provisions of the Freedom of Information Act, which provides that
such information is a matter of public record.
These requests should not in any way be interpreted to limit our right to
obtain additional information about FHA operations at a later date.
Sincerely,
John McMullan.
1299
[Exhibit -B']
Department of Housing and Urban Development,
Philadelphia, Pa., September 1, 1971.
Mr. John McMullan,
Executive Editor,
The Philadelphia Inquirer,
Philadelphia, Pa.
Dear Mr. McMullan : I acknowledge receipt of your letter of August 30, 1971.
As you are probably aware, I stated at a press conference on August 26, 1971,
that I had ordered a full Investigation to determine the facts in view of allega-
tions of faults, inequities, and profiteering in housing under section 221(d) (2)
FHA mortgages in Philadelphia. At the same time it was announced that, among
other actions, the fee appraisers employed by the Philadelphia FHA Insuring
OflBce were being suspended. I emphasized then and I do so now, however, that
their suspension was not to be construed as being indicative of my belief that
all or any of the appraisers are guilty of any wrongdoing.
I have heretofore declined to make the names of these appraisers available
to members of your staff because of my strong desire to safeguard them from
any unfavorable and unwarranted inferences of wrongdoing in view of the
investigation. Upon receipt of your request, however, I have reconsidered and
enclose herewith the names and addresses of the fee appraisers employed by
the Philadelphia Insuring Office from January 1, 1969, and the names of the
staff appraisers during that same period. It should be understood, however, that
the fact of the disclosure does not permit an inference on your part or on the
part of your newspaijer that I believe that the people on these lists are guilty
of any wrongdoing and such an inference being drawn, in my opinion, would be
grossly unfair to the appraisers.
I will not comply with your request enumerated No. 3 since the information
requested is exempt from disclosure under the Public Information Act (Freedom
of Information Act) as intra -agency memorandum and as matter that is part
of investigatory files.
With respect to your fourth item of requested information, please be advised
that, of this date, Mr. Thomas J. Gallagher's official title is that of Director,
Philadelphia Insuring Office. The Department of Housing and Urban Develop-
ment, however, is undergoing a reorganization and Mr. Gallagher, like some
other personnel, have been temporarily reassigned pending a permanent assign-
ment consistent with the new organizational structure. Accordingly, Mr. Gal-
lagher was temporarily assigned as a Special Assistant in the Office of the As-
sistant Regional Administrator for FHA. He has not physically assumed those
duties, however, because he has been on annual leave since June 13, 1971.
Mr. Lang's current position is that of Chief Appraiser in the Valuation Sec-
tion, Underwriting Division, of the Philadelphia FHA Insuring Office. Under
the reorganized structure he is to be the Chief Appraiser, in the Valuation Sec-
tion Single Family Oi>erations Branch.
I am unable to comply with your request for information about other FHA
officials since it is far too broad and too imprecise to ascertain what FHA em-
ployees or classes of employees is the subject of your request. There are, in the
course of any given months, reassignments and resignations at all levels of the
FHA personnel ranks. A more particularized request, however, will be given
prompt consideration by me.
Finally with regard to your other requests, I must point out that the Freedom
of Information Act requires an agency, upon request, to make available iden-
tifiable records. Producing information through interviews with agency em-
ployees is not wthin the purview of the act. Moreover, I do not regard it as
my obligation to arrange such interviews. If Messers. Gallagher and Lang are
agreeable to being inter^^ewed by you or members of your staff. I shall inter-
pose no objection provided that any such interviews do not interfere witli their
performance of their official duties.
Because of your reliance on the Freetlom of Information Act, I have enclosed
a copy of this Department's implementing procedures for your guidance.
Sincerely,
Theodore R. Robb, Regional Administrator.
1300
[Exhibit "D"]
September 24, 1971.
Re appraisers for FHA mortgage insurance.
Theodore R. Robb,
Regional Admimstrator,
U.S. Department of Housing and Urban Development,
Philadelphia, Pa.
Dear Mr. Robb : This oflBce represents Philadelphia Newspapers, Inc.. pub-
lisher of the Philadelphia Inquirer. I am writing to you with respect to the re-
quest of the Philadelphia Inquirer, formalized by letter of August 30, 1971, for
information which you denied by letter of September 1. 1971.
Paragraph 3 of Mr. McMuUan's letter requested the names and addresses of
tho.se persons who appraised specific properties for FHA mortgage insurance.
A list of the specific properties as to which the names of the appraisers is re-
quested is enclosed herewith.
You denied request No. 3 on the ground that the information was exempt
from disclosure as "intraagency memoranda and as matter that is part of in-
vestigatory files." Based upon our review of the applicable law, we re.si)ectfully
submit that this recpiest does not fall within the exemptions you cited.
We ask that you promptly reconsider your determination as to this item
and furnish the names and addresses of the appraisers for the properties on the
enclosed list.
Will you please contact us early next week so that we will know whether we
must file our petition for review pursuant to 24 C.F.R. section 15.61.
I look f orw'ard to your prompt and favorable reply.
Sincerely yours,
David H. Marion.
[Esliibit "E"]
Department of Housing and Urban Development,
Philadelphia, Pa., September 28, 1911.
Subject : Appraisers for FHA mortgage insurance.
David H. Marion, Esq.
Harold E. Kohn, P.A.,
Attorneys at Late,
Philadelphia, Pa.
Dear Mb. Marion : I have received and reviewed your letter of September 24,
1971, and find no basis for modifying my previous denial of your client's request.
My denial of September 1, as you know, may be administratively reviewed by
the Secretary in accordance with section 15.61 of the Department's regulations,
an additional copy of which I am enclosing for your convenience.
Sincerely,
Theodore R. Robb, Regional Administrator.
Enclosure.
The Secretary of Housing and Urban Development,
Washington, D.C., November 11, 1971.
Mr. John McMullan,
Executive Editor,
The Philadelphia Inquirer,
Philadelphia, Pa.
David H. Marion, Esq.
Philadelphia, Pa.
Gentlemen : This is in response to the editorial in the Philadelphia Inquirer
on October 22, 1971, which accused this Department and me of trying to cover
up a scandal because we have decided not to give the press tlie names of people
who appraisetl certain specified properties for HI^D. This also responds to a
request by Mr. Marion on behalf of the publisher of the Philadelphia Inquirer
to reconsider that decision.
Let me begin by i)ointing out that in similar circumstances a U.S. district
court has already ruled that HUD need not name an appraiser who ap-
prai.ses a .si)ecific pie<'e of i)roperty. In its opinion the court stated, "[SJince no
possible puriiose would hv .served by relea.sing the identity of the appraiser and
based on equitable considerations, the court decrees that the identity of the
appraiser be withheld." (Tennessean Newspapers, Inc. v Federal Housing Ad-
ministration, decided in July 1971 by the U.S. District Court for the Middle
1301
District of Tennessee). That court's decision confirms to me the legitimacy and
correctness of my position.
The appraisals which concern the Inquirer, though prepared in the first in-
stance by individuals, were adopted by HUD and became actions of HUD. There-
fore, if any appraisals are wrong, it is appropriate to criticize HUD and HUD's
executives, including me, but it is neither relevant nor appropriate to criticize
the individuals who made them. Before appraisals are adopted by HUD, many
are reviewed and may be changed by others within HUD, such as a review ap-
praiser or the chief appraiser. The chief appraiser is administratively responsi-
ble for every appraisal made by those working under him which is adopted by
HUD. Similarly, HUT>'s area office director and ultimately I are statutorily
responsible for every appraisal.
The decision not to name individuals who made specific appraisals is not a
coverup of HUD's actions. The names of those individuals who had some part in
making an appraisal, accepting it, and acting on it are not related to the fact that
HUD has adopted it. The press does not need to know those names in order to
criticize HUD's actions.
Appraisals at HUD are analogous to information in a newspaper story which
is printed without identifying the person who supplied the news or wrote the
story. If the story is wrong, people should not demand to know who supplied the
information, who wrote the article or who selected it for inclusion in the paper.
It is the newspaper's story, and if the story is wrong, the newspaper is responsi-
ble and the newspaper should be criticized. Similarly, the appraisals which con-
cern the Inquirer are HUD's appraisals.
Not only do you not need the specific names you request in order to pursue
your investigations of HUD ; I am convinced that publication of these names
would be a disservice to the public. No enterprise, public or private, can expect
its employees to contribute as openly and honestly to the formulation of its
policy if those employees believe that their opinions (such as appraisals) are to
be customarily subjected to public second-guessing.
As you know, the new regional administrator in Philadelphia, Theodore R.
Robb, and the area director, William B. Patterson, have instituted thorough in-
vestigations into these matters. Should those investigations reveal imlawful con-
duct or inexcusable incompetence, we will act with appropriate vigor to root
out the problem.
Turning to the formal request submitted to me by Mr. Marion on behalf of the
publisher of The Philadelphia Inquirer asking me to review the refusal by
Theodore Robb to name appraisers of certain, listed properties, I have carefully
examined and considered that request. On the basis of that examination and
consideration, the provisions of the Freedom of Information Act (5 U.S.C. 552),
and the Public Information regulations of this Department. I affirm the decision
of Mr. Robb to withhold this specific information. I concur in Mr. Robb's findings
of September 1 that the information denied to the Inquirer is subject to (among
others) exemptions (b) (5) and (b) (7) of the Freedom of Information Act, per-
taining to intra-agency memoranda and matter that is part of investigatory files.
Investigations now in progress could well be inhibited by making available the
information requested.
Let me put to rest any assertion that this decision is contrary to that of the
Supreme Court with respect to the so-called "Pentagon Papers." In that case, the
issue was prior restraint of publication of documents already in the possession
of certain newspapers. In this case, I am declining to give you information which
Congress has decided need not under the Constitution, and should not, as a mat-
ter of sound public policy, be subject to publication. _^ ^ ^
The editorial of October 22, in addition to criticizing this Department and
me also criticized the Department of Justice for seeking to keep the press from
publishing information in a civil action involving this Department. Although
I do not undertake to .s-ix^ak for the DeiKirtment of Justic-e, I understand that it^
interest in keeping some information from the press at this time is motivated
by the desire that press coverage of this matter should not create an atmosphere
in which defendants in criminal trials cannot receive a fair trial.
Finally let me sav that, to the extent the Philadelphia Inquirer has disclosed
serious problems in the operation of our programs, we are grateful for the public
service rendered bv vour newspai^er. This is wrtainly in the finest tradition ot
a free press At the same time, I c^annot believe that you would not understand
the serious and lasting damage that would be done to the proper operation of a
Government Department if the head of that Department were to shift responsi-
1302
bility for its actions to his subordinates by furnishing their names to the public
press.
I trust that, if you see fit to disagree in print with my views, you will show
your customary fairness by also publishing in full their expression in this letter.
Sincerely,
(S) George Romney
George Romney.
Mr. MooRHEAD. The subconimitte© would now like to hear from
John Seigenthaler, editor of the Nashville Tennessean.
STATEMENT OF JOHN SEIGENTHALER, EDITOR, NASHVILLE
TENNESSEAN
Mr, Seigenthaler. Thank you, Mr. Chairman and members of the
committee. It is a pleasure to be here this morning. I think it is rea-
sonably clear from what has been said by my friends from the press
who testified already that there is a general disregard of the meaning
of the act all through the Federal bureaucracy, and it begins in
Washington and it stretches at least as far as Nashville, Tenn.
Our own peculiar problem currently relates, as the Philadelphia
case does, to FHA appraisers in the Department of Housing and
Urban Development. Our own investigation and our own story which
led to our challenge of the right of that Department to withhold the
names of an appraiser came about in this way.
Just about a year ago a man who is a realtor in Nashville came to
our office on behalf of a friend of his. He said that this man is blind,
his wife is blind, and he works as a mechanic in the State's garage. His
wife works in the Tennessee School for the Blind. And, he said, he has
a blind daughter and three minor children. And he said he has been
mistreated by the Federal Government. The FHA had appraised his
house at $10,800, and some subsequent appraisals had been made and
it appeared to us, as a result of these subsequent appraisals, that the
house is worth something in the neighborhood of $4,000.
We took some pictures which might be of interest to the committee.
I think what Mr. Steele said about synthetic repairs shows up quite
clearly.
(The illustrations follow :)
1303
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1305
Mr. Seigenthaler. Now, the man had been in the house approxi-
mately a year — I will just pass these pictures on to the committee for
possible interest at any rate. After looking at the house it did appear
to us Mr. James had been mistreated and perhaps even swindled.
A reporter interviewed him and he said that he had been to the FHA
three times, that his attorney who was really the attorney for the Blind
Service Section of the State Department of Public Welfare, had made
inquiries at FHA and FHA had told him that his original appraisal
was not available to him, that he couldn't have it, that it was in Wash-
ington buried in some files.
We wrote some initial stories and ran those photographs and then
began to go to the office of the FHA there, and make demands verbally
for the appraisal. We were refused several times and finally, after
writing repeatedly that we had been refused, we were told if we had
a reporter up in Knoxville, some 200 miles away, on a given day — I
think the date was April 6, and this was some months after we had
initiated the stories, created some interest in Mr. James' plight — we
were told if he would go to Knoxville that the appraisal would be
made available to us. A reporter did go there and was then told that
the Department had changed its mind and that the appraisal report
would not be made available.
We then, after filing written notice, and written request was denied,
we filed a suit under the Freedom of Information Act.
A hearing was set within 2 weeks by the Federal district judge. The
Department came in on that day, and incidentally, the U.S. district
76-253 O — 72 — pt. 4 20
1306
attorney represented the Department in this case, which I found to
be
Mr. MooRHEAD. The hearing was set within 2 weeks after you had
filed?
Mr. Seigenthaler. Yes, it was. The court- moved quickly and the
court also moved by entering an order directing that no records per-
taining to this matter be removed or destroyed and things looked very
good at that point.
We went in, as I say. The Department of Justice was representing
HUD and T found that disturbing and said so during the testimony;
it occurred to mo that, if a swindle indeed occurred, it might be in the
U.S. district attorney's — the U.S. district attorney might be in a crimi-
nal prosecution on the other side — but he contended that was a face-
tious statement on my part. It was not.
But, at any rate, we came in for a hearing and the Department
maintained that under the Federal Rules of Civil Procedure they were
entitled to 60 days to answer, and they took that 60 days, during which
time Mr. James continued to suffer, still somewhat cold and wet and
the rain was coming in, the wind was blowing through the cracks in
the house. He stopped paying his rent.
Finally, after 60 days there was a hearing and testimony was taken.
Mr. James testified. Our reporter testified. I testified, and a representa-
tive of HUD, a Mr. Milton J. Francis, a Director of the Appraising
and Mortgage Division, Assistant Secretary of Housing and Mortgage
Credit for the Department of Housing and Urban Development,
Washington, D.C., who came down to Nashville to tell why they
couldn't let us have that appraisal.
He said, in effect — and the language is very similar to what you have
already heard from Mr. Steele, in the answer of the Department to
the request in Philadelphia — he said simply that if mistakes were
made by appraisers, that these mistakes were made by the Department
and it should be the Department that was held to blame for these
errors.
He said that they were in the process of handling — perhaps if I could
just read that part of the answer which I think really represents the
feeling of the bureaucracy about the Freedom of Information Act and
what it really is and w^hether they really consider it relevant to any-
thing they are doing or anj^hing we are doing.
He says :
The principal reason is that the appraiser who works for the Federal Housing
Administration is an employee of the Federal Housing Administration who
operates under legal authority. Our Department is entirely desegregated, decen-
tralized, and each field oflBce has its own ground rules of operation pretty
much with respect to certain quality matters, the kinds of properties, the kinds
of locations they will go into. He is operating as an employee of the agency,
of his superiors.
The real concern we have is that we appraise in the neighborhood of close
to a million properties a year. Each appraiser is responsible for appraising
at least, if they are average properties, at least four properties a day. He
must operate, therefore, in a certain way ; otherwise we would bog down
and we don't produce and as a result i)eople don't get housing because I can't
put a person in a house without an appraisal first. You can't assure a loan.
Every time he makes an appraisal and makes a mistake, if he does in fact
make a mistake, he is subject to public censor rather than to the censor of
his employer — they used the word censor. At least perhaps the stenographer
made an error. It is to make him — this will make him overly cautious, that
1307
they have a tendency to undervalue the pi-operties to be on the safe side
when the purpose of the appraisal is to find as close as you can the market
value, and secondly, to make requirements far in excess of what the prop-
erty really needs and therefore to make such requirements which would
make the price of the housing, because people would have to do so much
to it before it would qualify under our standards and under his interpre-
tation.
Mr. MooRHEAD. I wonder if you could suspend and pick up — Mr.
Moss and Mr. Erlenborn both have to leave. I thought if they had some
questions
Mr. Seigenthaler. I really think, Congressman, tliat i-eally— the
result of the hearing was that the Federal district judge— well, let me
say at the firet instance v^hen we went into court., they asked for 60
days. He told them to give us a copy of the appraisal report without
the name of the appraiser on it.
Mr. MooRHEAD. The court ordered that?
Mr. Seigenthaler. The court ordered that initially and they gave us
one. I don't have the original of that but I would like to make a copy
part of the record— it was illegible, totally and completely illegible.
We ran it in tlie newspaper. The only thing I have is a Xerox of the
newspaper story, but it was illegible.
(The imaterial follows:)
1308
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FHA Caf/s Own Copy 'Illegible'
This IS the first page of an almost illegible copy of the appraisal report on the
Nashville home of Hugh James released yesterday by the Federal Housing Admini-
stration. The second page is almost as difficult to read and did not include the ap-
praiser's name or supporting documents. George Cregson, Nashville FHA super-
visor, signed a document stating: "copy received is in large part illegible."
1309
Mr, Seigexthaler. Subsequently we came back and the judge re-
quired them to give us a legible copy, but he ruled that it would not
be necessary for them to furnish us with the name of the appraiser.
I might just read one sentence from his opinion. He said : "However,
since no possible purpose would be served by releasing the identity of
the appraiser, and based on equitable considerations, the Court decrees
that the identity of the appraiser be withheld.''
He found that tilie appraisal report was, in fact, a document, a public
document, and that we were entitled to that but he I'uled tlhat the
agency should be allowed to censor and delete from it the name of the
appraiser and that is what we ultimately got. We appealed to the
Sixth Circuit Court of Appeals in Cincinnati and that case was argued
about 3 weeks ago and. of course, it is in the lap of the gods, or the
bosom of the courts, or somewhere.
I wish that we liad the good fortune that they had in Philadelphia,
a judge w*ho obviously recognized meaning and intent, the full impact
of the Freedom of Information Act.
INIy own conclusion is tlhat throughout the bureauci-acy there is no
real understanding of what the Freedom of Information Act is sup-
posed to mean. I think they look upon it as a hindrance to efficient
government operation. But I think, as those pictures will demonstrate,
quite often it is used to cover up inefficiency, and clearly in tihe case
of Pliiladelphia, much worse.
Thank you very much, Mr. Chairman.
Mr. MooRHEAD. Thank you, Mr. Seigenthaler, Thank all of you.
I am going to yield to my colleagues who have to leave, but before
I do, particularly with respect to the testimony of the last two wit-
nesses, I would say that as a member of the Housing Subcommittee I
was familiar with the section 235 programs. AYe did have an investi-
gation of these programs. Mr. Romney is a very fine man, but he re-
fused to recognize there was any problem there. When we did bring
to his attention a number of cases all across the country, not just in
Philadelphia or Tennessee, he stopped the program for what we called
"the existing housing programs'' opposed to the new, and really
rehabilitative programs.
It is clear that in some cases it was just incompetence on the part
of appraisers who weren't used to dealing with inner-city slum situ-
ations, but in other cases there is certainly evidence that indicated
collusion between real estate speculators, brokers, and the appraisers.
Obviously, if you had to have the names of the appraisers and the
real estate brokers to show a pattern of possible misconduct, the with-
holding of those names, it seems to me, clearly hampered any rational
investigation.
Mr. Seigenthaler. Again, I just say this is a ludicrous attitude of
the Department of Housing; that idea that the U.S. Department of
Justice, could in some sense prosecute this entire Department. I
think there are people within that Department who are making
mistakes, for whatever reason, and the idea that was offered both
in Philadelphia and in Nashville is that the Department made the
mistake and therefore the Department should be held at fault.
Finally, I might just say the Department is not monolithic. It is
human and I have another picture. This is the home they provided
Mr. James under the section 235 program which is worth about $20,000.
1310
He is quite happy in it. I talked to him last night. He is delighted
with the situation.
I don't want to be completely unfair to the Department. They have
done something for him. I don't know what they have done with
that house that he was in before. They own it now. The deed was
passed back to them, but the point to make, I think it is a good one.
I think that Mr. Romney and others in Government simply don't
understand -what the Freedom of Information Act is really all about.
Mr. MooRHEAD. Thank you.
OflF the record.
(Discussion off the record.)
Mr. MooRHEAD. I yield to Mr. Erlenborn.
Mr. Erlenborn. Thank you, Mr. Chairman.
I w on't take but a few minutes. I do have to leave because I have
another appointment. I want to thank the members of the panel.
One suggestion was made, I think by Mr. Sinclair — several sug-
gestions were made as to what this committee might do, what Con-
gress might do. One that I noted in particular was appointment of
a watchdog committee. I think that was your first point, on page 8.
The establishment of an independent watchdog committee.
Did you intend that to be a congressional committee or an executive-
level committee?
Mr. Sinclair. I have to admit I really haven't thought it through,
but I think if there were such a committee it should be free both
of Congress and the executive branch. I mean, independent in the
fullest sense, at least as independent as it could be around here.
Mr. Erlenborn. That is one of the problems I think we face so
often today, creating a new consumer protection agency or other
things that the people want the Government to create, and somehow
or other create it outside the Government. It is rather a difficult thing
to do.
Mr. Sinclair. Well, my second point also was that a parallel sort,
of board — a sort of body, might exist in each — in the Department of
the Interior, for instance.
Mr. Erlenborn. I think this subcommittee really is intending to
perform that function, is ready and willing and able to perform that
function. Those who have problems with the Freedom of Informa-
tion Act are free to come to this committee, have come, and have
received the help of the committee staff and members. It occurs to me
that it might be a good idea if the committee would make this more
widely known and possibly — and, I know, throw this out as a sugges-
tion : once a month have public hearings on current disputes and prob-
lems with the operation of the Freedom of Information Act.
Mr. Sinclair. I wouldn't quarrel with that at all. As a matter of
fact, the subcommittee staff has been — they might quarrel with it —
the subcommittee staff has been very generous in helping me with my
dealings with the Interior Department and they have been partially
successful and partially unsuccessful.
Mr. Erlenborn. Often just putting the light of publicity on these
questions may help resolve them quicker than going through the courts.
That is why I make the suggestion of the problems experienced in this
area
1311
Mr. Seigenthaler. I think there will be enough problems across
the country to have a line outside the door.
Mr. Phillips. Would the gentleman yield at this point? I can
say within the last 10 days since these hearings have begun and news
stories began to appear around the country, we have received over 20
letters from people who have information problems. Most of them
state in great detail in their letters exactly what those problems are all
about. They could keep us busy for 6 months just tracking down the
details of those 20 cases. Some are extremely complicated. I am sure
we will have many more today, and tomorrow, and next week.
Mr. Erlenborn. Well, it may be a job that is beyond the capability
of the subcommittee. Apparently that is what you are suggesting. We
don't have the staff or the
Mr. Phillips. I wish we did.
Mr. Erlenborn. I think it is something that the subcommittee ought
to consider.
I notice on page 6 — first, I should make this observation and ask for
your response. I presume that the freedom of information problem with
the executive branch and the legislative branch of our Government is
a nonpartisan problem experienced in both administrations. Would you
all agree ?
Mr. McGhee. Certainly.
Mr. Sinclair. I would agree.
Mr. Erlenborn. The act has been in effect for 4 years or more. I
imagine that you could find examples prior to 1969 of difficulties with
the acquisition of information from the executive branch.
Mr. Sinclair. No question about it. I know the coal mine safety is
one of our pet interests, as well. There is no sense of partisanship m
what I said this morning.
Mr. Erlenborn. I just wanted that point to be made since we have
been making reference, and I think for good reason, to current cases. I
wanted to have it understood that it is a longstanding problem.
Mr. Moss. Would the gentleman yield ?
Mr. MooRHEAD. I think the gentleman from California and I would
both stipulate to that.
Mr. Moss. The first case I studied I believe was a withholding under
the second administration of President Washington.
Mr. Erlenborn. I didn't realize the gentleman went back that
far.
Mr. MooRHEAD. That is a lot of seniority. [Laughter.]
Mr. McGhee. Colonels are nonpartisan.
Mr. Erlenborn. On page 6 of your statement, Mr. Sinclair, you made
reference to Mr. Edward D. Failor. You say he is a political function-
ary. I wonder what GS rating that is. How do you define that ]ob?
Mr. Sinclair. I don't know his GS rating. I know his functions are
sufficiently important at the Bureau of Mines that he makes a salary
equal to that of his boss, the Director of the Bureau.
Mr. Erlenborn. Does that have reference to m^iybe a schedule C or
A or some other classification? I was just wondering how you define
a political functionary. .
Mr. S1NCL.VIR. What I mean to say there is that he is a person ^yhose
credentials for his position, as far as I can tell, are entirely political
credentials and his knowledge of coal mining is about as scant as mine.
1312
Mr. Erlenborn. Mr. Straus, I was quite interested in your statement
in particular where you say Ave should not be able to tolerate, and I am
paraphrasing, the existence of secret blacklists. Is it the existence of
the list that you object to or its secrecy?
Mr. StRiVus. The latter. Congressman, and I think you })oint up some-
thing on which my statement is not wholly clear.
Mr. ERLENBORisr. It was not clear to me and that is why I thought I
should question it.
Mr. Straus. It seems to me perfectly obvious that any organization,
let alone an organization the size of the U.S. Government, will require
lists of people from time to time. Indeed, during my tenure at AID
we often had use for such lists circulating around in terms of potential
organizations for contracts to be let, and so on. I think the issue is, and
the issue at AID was, when I was there: Do you allow these people
who, for one reason or another, find themselves placed — are placed on
that list, do you make some systematic effort to inform them of that
fact? The secrecy of the blacklist is the problem, not that they are
occasionally necessary, such lists are necessary administratively, but I
don't think you put 10,000 Americans on a list who are proscribed
without letting them know it. That is the issue.
Mr. Erlenborn. I am happy for that clarification because with that
clarification I can thoroughly agree with you. I think Congress has
made it clear that in the field of credit reporting, for example, an in-
dividual has a right to know and to challenge a bad credit rating ren-
dered against him. The existence of a list is valid, however, and if we
have a fellow who has given a bad check to the Government to pay
his license fee, that ought to be known when he reapplies for the license;
or if he has been an illegal operator, if he has violated the restrictions
on his license, or requir-ements — that ought to be known. Of course,
most of these are public hearings in the license renewal situation, but
the existence of the list, the knowledge that these people at least ought
to be closely questioned as to their activities, I don't find that
objectionable.
Secrecy, the fact that persons don't have the opportunity to know
that they are on the blacklist and challenge the basis of the information,
I agree with you, that is bad.
Mr. Moss. In the overwhelming majority of the cases involving the
FCC, on license removals oi- license grantings, there are no hearings,
public or otherwise.
Mr. Straus. That is correct. Congressman. The overwhelming
majority.
Mr. Erlenborn. I would think if a person were challenged as to. a
renewal of his license he would have the right to a public hearing.
Mr. Moss. In certain instances of a broadcaster tliere would be a
hearing, but not always, however.
Mr. Straus. That is correct. But, if I may, Mr. Chairman, I think
to take 1 more minute on the point, the issue here, as I understand it,
in layman's language, is not nearly as far, Congreasman, as the poten-
tial hearing process for a license. What is involved here is a list of
10,000 Americans.
Mr. Moss. Yes ; I can understand that.
Mr. Straus. Ten thousand Americans whose names, if they appear on
an application for a license, require a whole ditfei-ent proceeding which
1313
probably will result in their not getting the license. It is an internal
administrative determination and this list is "vvithout any backup,
simply a list of names, the result of which is anyone on that list, for
whatever reason — a bad check or an alleged misdeed which may not
be true — is prevented from having a fair crack at an FCC license.
Mr. Erlenborx. One last point of clarification and I want to thank
the chairman for yielding to me.
Mr. JMcGhee made reference to the fact that INIembers of Congress
may not want their constituents to know where they are. Do you mean
politically, philosophically, or physically?
Mr. McGhee. I think all three at times, Congressman.
Mr. Erlexborx. Thank you very much.
Mr. MooRHEAD. Mr. Mosk
Mr. Moss. Mr. Sinclair, in the report you had available, the testi-
mony and even the record — ^did you publish it ?
Mr. Sinclair. No; I didn't.
Mr. Moss. Why not? You had nothing to stop you from publish-
ing it.
Mr. Sinclair. That is right. I was trying to make a point really with
the details of the Treleaven report. As far as my readers in Kentucky,
my southern Indiana reader's, I think the interest in that is — this is a
subjective judgment — I think the interest in that is minimal and I
don't pro^•e very much by writing an article about the contents of the
Treleaven report. I pursued this
Mr. Moss. You might ultimately teach the departments and agencies
tliat they can't really keep as much secret as they would like to if you
did publish it.
Mr. Sinclair. That is a good suggestion, but I was so incensed
with the refusal and the attitude of the Department that I pureued
this beyond the ordinary refusal.
Mr. iVIoss. Did they ever cite any statutory basis for the withholding?
Mr. Sinclair. Yes; they did. The Freedom of Information Act and
the section that seemed to them pertinent was quoted to me in a letter
from Mr. Melich which I will be hapf)y to make available.
]\Ir. MooRHEAD. Without objection, that letter may be made a part
of the record.
(The letter referred to follows :)
U.S. Department of the Interior,
Office of the Solicitor,
Washington, D.C., Septemher 10, 1971.
Mr. Ward Sinclair,
The Courier- Journal,
The Louisville Times,
Washington, D.C.
Dear Mr. Sinclair : I have your request of August 6, 1971, for a copy of the
so-called Treleaven report.
The report was prepared by Mr. Harry Treleaven when he served as a consult-
ant to the Secretary of the interior. The report is based on interviews with in-
formation personnel in the Department and the examination of publications,
press releases, films, and other materials produced for distriltution to ihe public.
In addition to other matters, it identifies certain personnel working in the in-
formation offices by name, evaluates their ability, and in some cases comments
on their personal philosophy.
It is our view that the report is an internal communication and as such
is exempt from disclosture by 5 U.S.C. 552(b)(5). Furthermore, insofar
76-253— 72— pt. 4 21
1314
as identified individuals are discussed in the report, release of the information
would constitute an unwarranted invasion of personal privacy.
The Attorney General's memorandum on the "Freedom of Information Act"
indicates that the communication you seek is exempt from the disclosure require-
ment of the act. With respect to such communications, the Attorney General has
said "* * * internal communications which would not routinely be available to
a party to litigation with the agency, such as internal drafts, memorandums
between officials or agencies, opinions and interpretations prepared by agency
staff personnel or consultants for the use of the agency, and records of the
deliberations of the agency or staff groups, remain exempt so that free exchange
of ideas will not be inhibited. As the President stated upon signing the new law,
'officials within the Government must be able to communicate with one another
fully and frankly without publicity'."
In the circumstances, we must decline to make the report available to you.
However, in order that you may be informed as to how the report is described
by the author, I am enclosing a copy of the "Introduction" which was prepared
at the same time as the report.
Sincerely yours,
Mitchell Melich. Solicitor.
Enclosure.
Introduction
This report is based on interviews with senior information personnel in all of
the Bureaus and Offices ; and on an examination of publications, press releases,
films and other materials recently produced by the Department for distribution
to the media and public.
The first section of the report makes some general observations and recom-
mendations, and includes a proposed reorganization of the Department's informa-
tion operation.
In the succeeding sections, the structure and activities of the individual in-
formation offices are described and evaluated.
Mr. Moss. I quite a^ree with you that we have reached a ]X)int in
the operation of the act where it needs to be strene^thened, rnd I mio^ht
add that comes as no surprise, as the act was the product of many,
many compromises to g-et something, as a be^nning, on tlie statute
books and shore up a public right of access to information. It was
clearly an imperfect act, but there were many hours of negotiations
to have anything survive, and the committee at that time felt the
most significant point in the law was the right of access to the courts
on an expedited basis and to have the courts really review the justi-
fication for the withholding, not just keep an agency designation of
a category,
Mr. Sinclair. Basically, that was the answer.
Mr. Moss. But for the court to review and determine what it actually
was and whether it was justified to be withheld. The procedure does
not provide a quick enough decision by the courts. The 60 days for
the Government is far too long. I think the Government in every
instance has taken the full 60 days, haven't they ? Are there instances
where they haven't ?
Mr. Phillips. It varies from department to department.
Mr. Moss. I thought Justice handled most of these on the taking
of the 60 days.
Mr. Seigenthaler. They certainly did in our case.
Mr. Moss. I don't think any independent watchdog committee of
the Congress would Ix^ able to do the job, I think we would have to
have an independent commission, as nearly independent as you can
create it under our form of go\-cmment, somewhat analogous to the
independent regulatory commissions, and it would have to be inde-
pendently staffed with its own legal counsel, its own ability to initiate
1315
actions in couit agninst any departnioi't of the Govornnu'nt. I tlsink
quite clearly sucli a commission coukl not act ai^ainst the Coniiiess
without some amendment to the Constitution, because, of all of the
branches of (Tovernmcnt. o)ily the Congress has a constitutional i-iirht
to secrecy. That is overlooked frequently in discussino- the policies of
tlie difi'erent branches of (government.
Nowhere in the Constitution is the executive branch given the au-
thority to impose secrecy on anythino;, nor are the courts. The Con-
stitution states that the Congress shall keep records of its proceedings,
and it says from time to time that the Congress sliall ])ublish tiieni
except tliose portions which in its judgment require secrecy. To re-
quire tlie Congress to add some sort of amendment to the Constitu-
tion to remove tliis right for the Congress to iriipose a secret label
upon material
Mr. McGhee. Congressman Moss, as a reporter, could I ask a ques-
tion at that point : Has this power ever been delegated from the Con-
gi'ess to the executive?
Mr. ]Moss. No; we could not delegate our constitutional — we have
not delegated our constitutional right ; no. As a matter of fact
Mr. McGnEK. How about Internal Revenue Service regulations?
3Ir. Moss. As the executive expands you almost feel that the Con-
gress operates under the deh'gated i)o\vcrs of the executive because they
determine v>ho gets information and liow much.
Mr. Mc(tiiee. When Congress writes a law that delegates to the
executive agencies the responsibilities and the autliority to make reg-
ulations thereunder, and those regulations inipo.e a secrecy — I am
not a lega; scholar — ■ —
Mr. Moss. AAliere Congress intends privileged information to be
kept from the public it has always said so. It has been rather clear.
When it intended that the agency be joermitted to keep information
from the Congress it has made that point rather clear. In recent years
we have lieen_ jjutting into more and more of the statutes enacted by
the Congress an express provision that any limitation on the avail-
ability of information does not apply to Congress or the appropriate
committees of the Congress.
Now, tliere are certain tj^pes of information where some degree of
protection privilege is necessary. 1 think tliey are far more limited than
those set forth in the information act. As a matter of fact, I don't
really think you can keep much secret in this Government, and far too
often there is a confusion between national security and individual
security. I think probably most of the classified infonnation is clas-
sified to avoid embarrassment, not to protect the security of the Nation.
A numl^er of yeai's ago we had a panel, I think, of four flag officers wh)
concurred in that observation and it was their judgment that over 0 >
percent of th.e classified inforn)ation vras needlessly classiiicd. And,
while I ap]>laud the action taken recently by Pi-esident Nixon on lim-
iting clas-^ification. I don't think it is going to remove the wor.-•^
practitioners from the field, tlie DOT), v.here routinely they try lo
classify everything. If it is a given ofiice that deals with clas.sified in-
formation at a level of "Secret," almost anything that goes in there,
including the dailv calendar, is classified.
Mr. ]\IcGtiee. The phone books.
1316
Mr. Moss. Phone books. Well, we used to get copies of newspaper
clippings that had been clipped from the daily press, put on a piece of
blank paper with "Secret" at the top and bottom, and then filed. And
that was then classified. So that without some sort of independent
agency with full power to force the executive to disclose, I don't
think we are going to cure the problems of excessive secrecy in our
Govermnent.
I see no other means of forcing the disclosure unless the Congress
wants to adopt limitations on each and every appropriation provid-
ing that the funds appropriated cannot be used to maintain any files
or information unavailable to the public, but that is rather an ex-
treme approach because again, we do have areas where I think every-
one would concede that some degree of privilege should be provided
for information.
It certainly doesn't go to appraisal reports, however, nor — well, we
ought to have a clear policy that when a Government study has been
completed and a report filed, that it is public, \\liether they act on it
favorably or unfavorably that represents a final judgment, and I think
we haA-e a right to know the basis for the actions of our servants.
These agencies regard this as proprietary but forget who are proprie-
tors. It is the public, this Nation. We govern ourselves, but I think
that only if we have a real drive by those concerned in Government
and those in the media will we have a chance to bring about the
enactment of the kind of law that will insure availability.
We have seen an example today of judicial timidity in interpreting
the Freedom of Information Act and tliis is a matter wherein any
number of instances the same experience has been demonstrated.
Mr. Seigenthaler. Congressman, on that point, could I just ask
one question? In considering amendments to the act, first of all, in
reading the act it seems to me that the Congress, and you would
know this, that it is intended that the priority be given to demands
for information.
Mr. Moss. Yes ; we pro\aded for an expedited consideration by the
district courts.
Jklr. Seigenthaler. That is right. Now, the court at least m one
case has said the Federal Civil Ilules of Procedure prevail and they
are entitled to 60 days. It would seem to me that some amendment
that might clarify the point that the courts are to move and to give
priority demand
Mr. Moss. I think we ought to convince that the whole procedure is
a period of not more than 20 days.
Mr. Seigenthaler. That would be very helpful.
ISlr. Moss. But it still is not going to provide the information be-
cause much of what you do not get today is not withheld. It just isn't
supplied.
Mr. Seigenthaler. That is right.
Mr. Moss. That is a new kind of privilege, the privilege to smile and
agree and never perform.
Mr. Seigenthaler. Yes; we are well experienced with that.
Mr, Moss. We used to have the housekeeping statutes, section 301
of title V. Everv-one relied on that, but they changed that. Congress
amended it, but now it is through inaction that the greatest amount
of information is withheld. It is not refused. It is difficult to really take
1317
them to court even. They arc always getting together for you. I tliink
the Members of Congress experience a great deal when dealing with
the departments and the agencies.
Mr. Chainnan, I would like to ask specifically some questions but
I have a prior commitment which makes it necessary that I leave now.
I do thank you for recognizing me.
Mr. MooRHEAD. If you want to submit questions in writing, I am
sure the witnesses would be willing to answer such questions.
Mr. ISIcGhee. Yes.
Mr. MooRHEAD. Thank you, :Mr. ;Moss. I found this fascmatmg
testimony about the experiences that you gentlemen have had at a
working level and the handicaps that you face. We have heard before
this committee of almost every technique of withholding infonnation,
but Mr. Seigenthaler's experience of "secrecy through illegibility" is
a new technique we haven't heard of before.
Mr. Straus, your testimony about the blacklist was very interesting
to me. I didn't know that such a list existed.
Mr. Moss, who is on the Commerce Committee, told me that he
didn't know that it existed either. I think the existence of such a
list is very disturbing. Also, if we could concede, as it appears you
do in your answers to questions of Mr. Erlenborn, that there is a
reason for the existence of such a list, we then come to the difficult
balancing act of the rights of the individuals on the list, their right
to privacy, their right not to have the public know that they are on
such a list, balanced with the right of the public to know something
about what the operation of the Federal Communications Commis-
sion is.
Is it your suggestion that anyone who knows or has reason to believe
that his name i's on the list should be able to get information from
the Commission? Is that your solution to this problem of balancing
public and private interests ?
;Mr. Straus. I think that is exactly the solution, Mr. Chairman.
Obviously, while we at Editor's Report asked on behalf of our sub-
scribers for the 10,000 names, and would, I am sure, have been
delighted to have published it, that was a position, but I think it is
not the final position. I think the final position in a republic must
be that the individuals named thereon have a right to know and
challenge, because it seems to me that the major problem here, talking
in terms of the operations of any bureaucracy that I know of, is if yoii
permit bureaucrats the possibility of exercising such a list and deci-
sionmaking on its basis without the necessity of, which you and your
colleagues confront every day, Mr. Chairman, the necessity of talking
head to head with an aggrieved or presumably aggrieved individual,
you are leading to a kind of bureaucratic condemnation which is very,
very dangerous. So, I think the way you protect privacy and at the
same time prevent wrongful inclusion of 10,000 Americans on such a
blacklist is to allow them'the opportunity to inquire.
So, I think mechanically one would have to assume that 200 million
individual Americans would have the individual right to inquire
whether their names were on such a list
Mr. MooRHEAD. Would you go further and impose a duty on the
Commission to sav to Joliii Jones: "Your name has just b(M'n put on
the FCC blacklist?"
1318
}Jr. Straus. Yes, I would, to the last known nmilinof address, or
whatever, some kind of formal notice so that the individual has some
kind of opportunity to reply.
Mr. MooRHEAD. I have been reminded that in June we are ^oing
to have hearini^s on leio:islation related to this problem, a bill intro-
duced by Congressman Koch of New York.
Mr. StRtVus. Yes, sir. I read that only recently. I saw it yesterday,
and as a nonlawyer it looked on target to me.
Mr. MooRHEAD. Thank you. I am sure that Congressman Koch
would be glad to have that remark placed in the record.
^Ir. Straus. An inexpert remark, Mr. Chairman.
Mr. ;MooRiiEAr>. Mr. McGhee, did you testify that the GAO said it
had no jurisdiction to examine into the nonappropriated funds?
Mr. McGhee. No. What I testified to was that an employee of
Senator Proxmire had informed me after I had made a request
through Senator Proxmire's office for possible GAO assistance in
getting this information, and their reply to him was, as relayed to
me, that the GAO had been up and down this ladder with the Pen-
tagon. They had difficulty in getting — they had always had difficulty
in netting information on nonappropriated funds.
Mr. MooRTiEAD. I think this is something that the Government Op-
erations Committee should look into.
ISIr. Steele, in your testimony you said that the Government wanted
to know why the Inquirer wanted these names. It seems to me one
of the great virtues of the Freedom of Information Act is that it
does not require persons seeking information to give a reason for
that seeking of that information. This message has to be stressed to
the various departments and agencies — over and over again.
Gentlemen, in your experience in dealing with the various depart-
ments and agencies, what do you think the proper role of the general
counsel in the department, the administrator of the department, and
the public information officer in the department should be? With
which type of individual have you had the most success, and which
type has given you the most difficulty? I laiow Mr. Sinclair talked
about the Interior Department's information disclosure policies that
tend not to be guided by those information officers who are truly
committed to the notion that the public has a right to know.
Mr. Straus?
Mr. Straus. Mr. Chairman, Editor's Report, something like a
year ago, before the particular case about which I was testifying
today — some time shortly before that we did a rundown of public
information officers of the departments as seen by the journalists go-
ing to see them, insofar as we could interview several dozen journalists
in town and ask them which departments they thought were being
cooperative and which they thought were being noncooperative.
I would be glad to submit that for the record. It is sort of an
overview reading, a sense of feeling of w^hich departments are help-
ful and which are not.
Mr. MooRHEAD. We would appreciate that very much. Without
objection, it will be made a part of the record.
(The document referred to follows :)
1319
Stkaus Editor's Report — The Exclusive Weekly Letter for News Media
Executives — NovEiiBEB 2D, 19G9
Better news covcntgc of the Mack community has so pleased Seattle editors
and broadcasters that they've picked up the financing of a media/citizens council
they deem responsible for the improvement. Two newspapers (Times. I'nst-
Intelligencer) and five stations (KCMS, KING. KIRO. KOMO. KYAC) take part
in the council, which was bankrolled by the Mellett Fund ($2,600) for the first
year. Journalists, black youths and black establishment leaders have met
monthly to probe community attitudes and critique specific stories. One Negro
participant calls the improvement in the newspapers' coverage of the black com-
munity "remarkable" . . . An editor credits his council attendance with having "a
direct effect upon our staff" . . , Several news stories originated in issues dis-
cussed at the sessions.
Elsewhere : The U.S. Justice Department's Community Relations Service has
organized similar seminars involving the media and minority groups in several
cities. Their efforts have led to continuing media-minority discussion in Boston,
Cleveland, and Nashville. For information contact Ben Iiolmann (202-.3S(»-G]22).
The Seattle council's moderator has written a 24-page critique on the first year
of operations that gives valuable "how to" insights. We'll be glad to send you a
copy.
The information oflSces of Cabinet Departments and agencies in Washington
are there to help you put the local angle on a national story. They're not swamped
by the regular beat men, who frequently have their own direct news sources . . .
Most, but not all, of the information staffs will put themselves out for you. Be-
fore you phone, you should knoiv hoic other newsmen rate them — which to go
over, under, around: Agriculture, FTC, Interior, OEO, SEC (all mediocre) . . .
or through : CAB, Commerce, Defense, FCC, Maritime Commission, FPC, HEW,
HUD, ICC, Justice, Labor, Post Office, State, Transportation, Treasury (all gen-
erally good).
There are gradations in both categories. The FPC (386-6102) is exceptionally
good. Interior (343^124) is very poor; there's no access to Sec. Hickel on hard
questions ; and LBJ press office holdovers don't always pull XNith their new
director. Agriculture (388-5247) : Uncoordinated ; long-known for delayed and in-
accurate answers, poorly written handouts ; target of upcoming freedom-of-
information attack by Ralph Nadar . . . Commerce (967-5485) : good, courteous,
prompt answers . . . Defense (697-9312) : daily briefings; good at publicizing
mistakes of previous administration . . . HEW (963^568) : poor coordination;
unwieldy series of subordinate information units . . . HUD (755-0980) : acces-
sible, efficient . . . Justice (737-8200) : Info Chief Jack Landau (ex Nieman fel-
low) mirrors press phobia of his boss Atty. Gen. Mitchell; Landau is slow to
return phone calls and hard to get at unless he's known you before. You'll do
better asking for an aide instead . . . Labor (961-2027) : good all round, although
Nader plans a complaint on freedom-of -information grounds . . . OEO (382-
3966) : has been poor, but there's a new team . . . Post Office (961-7500) : well
organized; helps you get your story . . . State (632-2454) : Robert McCloskey
and Carl Bartch and fair, accessible, wired in to Sec. Rogers, helpful in setting
up appointments . . . Transportation (962-3928) : adequate, but that's all . . .
Treasury (964-2041) : good access to top officials ; a "pro" shop. (Above numbers
all area code 202. )
Another expense for the father of the bride : Paid wedding announcements . . .
have been instituted at the Houston Post and Houston Chronicle. They're the
first major metro dailies to drop news stories on nil weddings and replace them
with paid ads. Both papers had become fed up with the amount of space the
wedding stories were taking. The Post had been running up to fcmr pa;:(^s e:ich
Sunday. The Chronicle was more choosy, but made enemies of these whose wed-
dings weren't written up . . . The ads cost $25 for a two-inch, body-type story
with picture (and up to $165 for two columns by eight inches) in the Chronicle
and $15 for the first inch, $10 for each additional inch in the Post . . . Now. the
Post usually runs just one page of Sunday wedding announcements labeled as ads ;
the Chronicle carries less. Houston society grumbled at first but now seem recon-
ciled to the expense. And readers seem to be adjusting to the inevitable fact that
many weddings simply don't get reported.
Travel reportage can be legitimate news and a real morale builder, if you
have your news staff do the on-location reporting and filming. Reporters and
1320
cameramen have been producing brief travel reports for KCRA-TV (NBC,
Sacramento) since 1961. All 58 news staffers are eligible for assignments, and
the station lets wives go along — at their own expense. The reports (averaging
one country a month) are aired on the noon and evening news shows. They
often can be tied to a country in the news. (The 24-segment series on the USSR
was keyed to the 50th anniversary — 1967 — of the Bolshevili revolution. The
Israel series was aired shortly after the 6-day war) . . . The travel reports are
expensive ($2,000 for Mexico to $40,000 for the USSR), but they are available
for sponsorship. Past sponsors include the morning Sacramento Union and
some foreign car dealer associations. KCRA hopes to recoup more of the costs
through a new effort at syndication. First big customer : Metromedia, which
bought the USSR series for showing on its TV stations.
Watching the Watchdog : The FCC is headed for another grilling in the
courts. And this time the result could be increased legal standing for citizen
challengers as well as possible antitrust guidelines for license renewals. The
case — now before the D.C. Appeals Court (oral argument Dec. 16) — involves
KSL-AM in Salt Lake City, owned by the Mormon Church's Bonneville Inter-
national Stations. A Citizen group complaint attacked KSL's license renewal
in October, 1968, raising issues of media concentration and charging a right-
wing bias in programing.
Besides KSL-AM-FM-TV, Church holdings in Salt Lake include the afternoon
Deseret News, which has a joint operating agreement with the morning Tribune,
as well as the city's major ad agency, bank and department store. Through other
business ties the Church and three key families have extensive interests in
Utah CATV, publishing, radio and television-
Although the FCC renewed KSL's license, soon after the original complaint, by
a vote of 3 to 1 (Cox and Johnson out of town), two Salt Lake residents promptly
filed a petition for reconsideration. The ensuing bureaucratic mish-mash — in
which tapes and letters were lost and a citizen document was rejected because it
wasn't double-spaced — led to the appeals court.
An important issue in the KSL case is the question of who can file normal
petitions before the FCC. Trafiitionally, this right was accorded only to those
who suffer economic injury or electrical interference by the granting of a license.
But court decisions involving WLBT in Jackson, Miss., sanctioned petitions filed
by "pu'bliG interest" groups such as the NAACP and United Church of Christ.
Although a lower court opinion concerning Chicago's WFMT apparently author-
ized similar action on the part of individuals, the FCC ignored the precedent in
its hasty renewal of the KSL license.
Because of FCC bungling, the KSL case provides an opportunity for the court
to engage in rule-making that would affect future FCC actions. A Utah Law
Revieio article has already proposed an additional bench-mark for broadcast
licenses: it would require a positive finding by the Commission that a license
grant or reneical doesn't violate any anti-trust laws.
Stereo sound for standard AM radio is just waiting for the first station to try
It. The newly -perfected equipment (transmitter converter at $18,000) is patented
by Kahn Research Labs Inc. of Long Island (516) 379-8800 . . . The AM stereo
comes out as regular monaural sound on one radio. Two receivers — one tuned
to the left sideband, the other to the right sideband — give stereo. (Kahn says it
also has the patent on an AM stereo receiver that could market for as low as
$30) ... A U.S. station that ivanted to t?-y the system would have to get FCC
approval for the experiment. But at least one foreign broadcaster is set to make
a trial.
If you think "STP" is a gas additive and "roses" are harmless, your coverage
of the drug scene and the flower children is missing something in the translation.
The "Call for Action" project at Denver's KLZ-AM (Time-Life) is using a dic-
tionary of hip talk and drug lingo that w^e'll be glad to send you on request. It's
brutal ("very good, exceptional").
Editors beat a path to the unmarked door of tlie fledgling Dispatch News
Service, which gets credit for breaking tlie Pinkville "massacre" story. Dispatch
now operates as a syndication service for the work of its star, former AP re-
porter Seymour Her.sh, plus eight stringers (mostly students) around the world.
When plans jell, Dispatch hopes to offer 8 to 10 feature .stories monthly to its
subscribers (via Telex), besides giving them first crack at front-page material it
claims to have in preparation. Dispatch sold its Vietnam scoop to newspaper
editors by telephone solicitation. (36 of the 50 managing editors contacted
1321
bought the story.) The service is currently negotiating for market exclusivity
with newspapers around the country. (Call 202-347-2670.) Rates aren't firm yet.
Mr. MooRiiiLrVD. I think I interrupted you, Mr. Sinclair.
Mr. Sinclair. I think I have lost my train of thought.
Mr. MooRHEAD. I was talking about the lawyer, the information
officer and the administrator.
Mr. Sinclair. My particular difficulties have come mainly from law-
yers who, as it turns out, are more or less in a position of being the
ultimate censor. I can appeal to Secretary Morton today, tomorrow
and the next day, and my appeal ends up in the lap of a lawyer who
turned me down in the first place and I get a letter back from the
Secretaiy or Undersecretary, a letter drafted by the lawyer and the
Solicitor's office is where I have had the difficulty.
I think, as I mentioned in my statement, that there are several other
considerations that are put at a higher priority than the public's right
to know, and I think those factors have been at work in my experi-
ences with the Department of Interior.
Mr. McGhee. Mr. Chairman, I might add a word there. Frequently a
difficulty in a press association reporter's work is that he will call and
need some information and he knows to whom he wants to speak and
the secretary of the> gentleman will say, "I am sorry, you will have to
go through the Public Information Office."
Now, we are working maybe on minute-by -minute time. I hate to use
the word "deadline" because it is an outdated word now, but we are
always in a hurry, in any event, so you have to ca.ll back the informa-
tion officer and he says : "Specifically what do you want to know ? I will
see what I can get. ''You tell him what you want to know. He makes a
phone call to the Secretary. Maybe an'hour later you get a call back
and maybe the response immediately suggests another question. This
happens all the time. I know — I understand the way the Government-
works. Its servants can't spend all their time on the telephone talking
to reporters, but it is a real technical problem involved here and par-
ticularly when the public information officers seem to have a sort, of,
well, an assignment to inliibit the passage rather than to speed it up.
I could give ^Mr. Straus some horrible examples.
Mr. MooRHE.\D. Have you noticed— has this always been such with
public information officers that their goal was to inhibit the release
of information?
Mr. McGhee. Not always. On the contrary, in some cases they are
very, very helpful, and there are innumerable experiences where we
are put right through to the prime source and where the information
officer himself will suggest I do this to speed things up. But, I must
say that almost always, in those cases, it is not something that is likely
to embarrass the Department, or not something that the Department
thinks will hurt them.
Mr. Straus. Can I add just one word, Mr. Chairman ? It seems to
me in general terms— I don't know whether my colleagues on the
panel would agree, but bv and large in Government agencies the
public information officers tend to l^e far the more helpful of the two,
the general counsel and the public infonnation officer. But, I think
one has to generalize one step further to say in most of the deimit-
ments, in most of the agencies, the effectiveness, the policymaking
power of the two is very different and the counsel, in fact, wields a
1322
veiy substantial policy voice in that agency or department and the
public information officer seldom does. So, it is a little bit of an
unequal contest that puts one against the other.
yiv. Steele. In answer to yovir question, I think in our specific case
the only thing Ave could say is that the problem really seems to be
institutionalized throughout that agency.
We can't say from what we have seen that public information
officers or lawyers in HUD, for example — that one is more reluctant
than the other to give the information. It seems to be a very institu-
tionalized thing in that Department, to prohibit the release.
One point, if I could make it very briefly, that is related to — that
Mr. Seigenthaler talked about earlier, because I think it is important
to talk about examples that are going on elsewhere. He was mention-
ing a question during his case, the U.S. attorney representing the
department in a civil case, when at sometime then or in the future
they can see where lie might have been involved in a criminal action.
We have really the same thing in Philadelphia. I don't know
directly the answer but it seems to me a serious problem that the U.S.
attorney, who is responsible for the grand jury investigation, looking
into the misdeeds of FHA or real estate speculators and mortgage
dealers in Philadelphia, the same office and same individual is also
responsible for arguing the Government's case, why it can't release
this information to a newspaper which has also had the pressure on to
keep that information going.
It strikes us as a conflict there, too.
Mr. Seigexthalfjr. The point on the information officer, if I could
just make a local newspaper editor's point, is that the movement
toward regionalism in the Federal bureaucracy is creating some
problems. I just heard last week that the information office of the
Department of Labor in Nashville is going to be closed and moved to
the regional office in Atlanta. Well, it is the only information office
for the Department of Labor in the entire State. Chattanooga, Knox-
ville, they all depend on the office. I guess it is no more difficult for
them to go to Atlanta, but it is just going to mean that we are oper-
ating by long-distance telephone and I think tlic result of that is
going to be that more of the reaction that Congressman Moss spoke of
a few minutes ago, smiles and happiness, and "Yes. we will try to get
that up to you next week or next month," or "We don't have it" — we
are dealing with a voice on long-distance telephone.
I think in communities across the country, outside regional head-
nuarters of various departments, it is efoinof to become more and more
difficult as public information officers are withdrawn from local com-
munities. I suspect it is going to be a long time before we get anything
out of the Department of Labor if this office is closed.
I wrote a letter to the Department last week
]Mr. SixcLATR. On the same point I can give another example of the
difficulties it has caused us. Some months ago, last fall, the head of the
Department of HEW's occupational health program went to Ken-
tuck v and talked about some new figures that had been prepared on the
incidence of black lung disease amonir coal miners. This was informa-
tion of great interest to us and he talked specifically about Kentuclr^.
and he had the figures. There was no problem. So, the message was
relayed back to me that it was a subiect that perhaps I would want to
take a look at and do a story on eventually.
1323
At the end of December I called to Rockville, Md., just a few miles
up the pike, to see if I could get the information and 1 was referred to
the HEW office at Morgantown, W. Va., and I called Morgantown. I
was given a name and niunber. I called Morgantown and got the ap-
propriate person who seemed most cooperative and said that she didn't
know that that information would be available immediately, but she
would send it to me within the next week.
I say that was the end of December and I haven't received the in-
formation yet.
This simply illustrates the difficulty of worldng by long-distance
phone, I have got stories I should be working on right at this hour
but there is something to do every day and if I can't get what I need
now, I move on to something else or I am tempted to move on to some-
thing else, and I get back to black lung when I get back to it, when-
ever I have a slowdown.
Mr. Seigexthaler. I think they have learned if they can just put us
off, next week, next month, or maybe next year before you are back
in touch with them
Mr. MooRiiEAD. Mr. Sinclair, there is one thing I can't get through
my head. The Department of Interior obviously knows that Jack An-
derson has a copy of this Treleaven report.
Mr. SiNCLAiR.'Printed in 730 newspapers.
Mr. MooRHEAD. They know you also have a copy of the report. What
possible motivation would there be for them to continue to refuse you
the report itself? It would seem to me that once you have already been
had you ought to give up and recognize the facts.
Mr. Sinclair. I don't follow their rationale, if there is a rationale.
I don't follow it at all. I think it may be a personal matter, too. between
me and certain — I won't use the word "fimctionaries" — at the Interior
Department, certain officials at the Interior Department who prefer not
to see me and there are some who refuse to talk to me, and if I have a
question I have to relay it through an information officer who m.ay or
may not get an answer, and as Mr. McGhee pointed out, an answer to
a question usually leads to another point that really ought to be ex-
plored. As we are dealing with public issues and working through the
third party there just isn't that chance for a free exchange of informa-
tion.
Mr. >,Ioorhead. Thank you.
Mr. Phillips?
]Mr. Phillips. I mi^ht sav that on our hearing schedule the Depart-
ment of Interior wilfbe testifying on the 28th ^3f this montli. so per-
haps we can get the answer to* that question from their witness.
Mr. S1XCL.VIR. They will be under oath. I trust.
Mr. Seigexthaler"! Can I ask : Do you plan to hear from HITD ?
]VIr. Phillips. Yes. On April 14.
Mr. SEiGENTHi\LER, It occurred to me when Mr. Steele said he heard
from Mr. Romnev's office that they are not going to appeal that case,
that it might be that they are making a legal determination that they
are not eoing to appeal that case, but that should we win in the sixth
circuit— thev verv^ well might appeal our case on the grounds that
tlie judjie has given us half a loaf, in that "vou can have the report
but you can't have the appraiser's name." That might be a stronger
case." I am savins : The lawyer makes the policy decision and it may be
1324
a lawyer's decision, not proceeding in Philadelphia, in the hope that
they can get us in the Supreme Court and make a better case. It would
be very interesting to know what their policy is going to be if they
have finally decided as a result of the judge in Philadelphia that they
are going to let the bars down and deal in a forthright manner with
us. That is one thing.
If they are simply picking legal cases to try to try to get the best
arm on the press, that is something else again.
Mr. Phillips. One of our earlier witnesses was Assistant Attorney
General Erickson, who heads the Justice Department's Office of Legal
Counsel. One of the areas of questioning was this coordinating role
which OLC plays in the administration of the Freedom of Informa-
tion Act. I sus]:)ect that a recommendation whether or not either of
the Philadelphia or Nashville FHA cases is going to be appealed
beyond the present level will probably be determined in that office.
This also raises the question on the colloquy that we had with Mr.
Erickson about the dual role of the Department of Justice in adminis-
tering the act, on the one hand, and defending the Government's posi-
tion in denial cases on the other. One of the interesting things we
raised with Mr. Erickson was the role of the local U.S. attorney's
office in defending the Government suits at regional levels in cities
throughout the country, and what role the Justice Department's Civil
Division plays in making available attorneys who are experts in the
Freedom of Information Act to either associate themselves with local
cases or perhaps handle them in their entirety.
We know of one case in Seattle where the Justice Department in
Washington did send an attorney to work with the local U.S. attorney
in defending a Government suit involving the Internal Revenue Serv-
ice. We asked Mr. Erickson to supply for the record the number of
cases in which attorneys have been sent from Washington to assist
U.S. attorneys in these types of cases. We haven't received that infor-
mation yet, but I think it will be extremely interesting in trying to
delineate this two-hat role of the Department of Justice.
On the one hand, they should conscientiously try to uphold the intent
of Congress when it enacted the Freedom of Information Act; their
otlier role is to defend the Government's position in cases which are dia-
metrically opposed. This is one of the real tough areas of these hear-
ings, trying to determine what that role is and what it should be.
Mr. Chairman, I have just one general question to ask all the panel-
ists. Aside from the problems of deadlines and getting information, ca,n
you, in your own opinion, express why more people in the news media
have not used the act more extensively ? There have been some theories
expressed informally that perhaps some reporters are reluctant because
they fear that they "might alienate a source in a department and dry
up "that source as a result. It has been suggested perhaiis some editoi^
would frown upon going into court, the expense involved and so on.
Thore are probablv dozens of other reasons, but I wonder if each of you
could perhaps give a reason or so that you think from your experience,
why more of your colleagues have not taken advantage of the act.
We will start with Mr. Sinclair.
Mr. Sinclair. I have several theories and I run the risk of
Mr. PiTTLLTPS. I know this is a ticklish area but it would be helpful to
the subcommittee.
1325
Mr. Sinclair (contiiming). Of making myself unpopular anumg
editoi-s, but I think one of the problems is that— and I wouldn't cjill it
the first problem in the lack of use of the act — I think one of the prob-
lems that is that there simply aren't enough hard-nosed editors around
the country who are going to insist and push it until they get the infor-
mation that they should be seeking out. ]Maybe they are not seeking out
the kind of information that certain Government officials would like to
witliliold, I say that is not the princii)al factor. 1 think one of the rea-
sons that you don't hear very much about the use of the act is that the
reporters can be sometimes pretty crusty people and when official A
says "You can't have this document," or this information, you go to
official B. You keep going dovN-n the line and maybe by the time you
reach official Y, jow get your document. You get your information.
There are other ways to skin the cat and the examples you have heard
this morning are examples that really don't fit tliat f)icture. We have
exhausted our innovative remedies and couldn't get what we needed,
and so we had to turn to the other tool that was available to us.
Mr. Phillips. Some of our research has shown that in many cases
the threat of using the act or an official request citing the act, and per-
haps even with a notation that a carbon copy of that letter is being sent
to the subcommittee will, in fact, produce the information. It isn't a
guarantee, but it is an additional wedge or additional club that some-
times does work.
Mr. Steele ?
Mr. Steele. I will generally agree with the point that Mr. Sinclair
has made. In terms of our own paper which was purchased — and I
came there — purchased by Knight Newspapei"S about 3 years ago,
there has been no reluctance to use the courts, and this has been, I
think, a conscious effort on the part of a number of people because
of the concern over the amount of information, both secret at the
Federal level and the city and State level in Pennsylvania.
From that one I would like to draw some general conclusions that
that sort of action is going to come more and more from newspapers.
But I must confess that I really don't know that that would be true
on a national basis, you laiow, how much you are going to find that
the case. But, I think there is certainly a growing feeling am.ong a
number of reporters and writers and editors that I work with that
it is kind of important to make these points legally, and that there
is a legal light to this information that is being denied us.
So, in that sense, you know, I think you may see more and more
of this.
]VIr*. Phillips. Mr. Straus, would you have any additional com-
ments ?
Mr. Straus. I think the one just mentioned is veiy key. The In-
quirer might be unusual but by and large in the country I think you
still have to say there is a kind of reluctance and I don't laiow that
I know the roots of that reluctance, that editoi's and journalists have
to resort to the legal process as a source of information.
I don't think that fits very well.
The two reasons that occur to me are : (1) Tliere is a time ingredient
here. I think there is an extensive lack of knowledge of the Freedom
of Information Act in the journalistic commiuiity in the United States
today and despite what we in the media can do in the way of best
1326
efforts and the gentlemen of the Congress can do, time is one of the
elements. I don't think everybody in every newspaper and every TV
station knows that there is, with all due respect, Mr. Chairman, that
there is a Freedom of Information Act,
Mr. MooRHEAD. I think this is one of the purposes of this series of
hearings.
Mr. Phillips. About 6 weeks ago the chairman of this subcommit-
tee was interviewed by a wire service repoi-ter on what a citizen should
do, what steps should he logically take if he is denied information.
This wire service storv was published in papers all over the country,
and vre know because of the letters that we have received in response
to that interview. People have written and said, "I have followed your
one, two, three, four procedural steps, and I have rim into this road-
block.'' These arc some of the letters that I was referring to earlier
that the subcommittee has received in the last several weeks.
So, maybe there is a growing awareness of what the act is and what
might be done to obtain information under it. And certainly this is
a step in the right direction after four and a half years.
:Mr. Straus. I think there is one other element, if I may, and it
is a little more unsettling, perhaps, and a little more potentially in-
sidious, and that is : there has been a lot of discussion over the last few
years about governmental elTorts to control news. There is another
side of that coin less discussed in the journalistic community, and that
is the general issue of relations between journalists and Government
officials and whether it is one of adversaiy or colleague or bosom
buddy. There is a tendency and has been for a long time, I think,
between many people in the distinguished press community and what
they perceive*^to be their opposite numbers in Government not to "rock
the^boat," not only because their source of information may dry up,
but really more for reasons of personal relationship. It just isn't nice
to do it ; it isn't done in the club. I think that is one of the considera-
tions; the gentlemen around this table are demonstrating that they
don't believe much in that. But a great many of their colleagues do
still.
Mr. Phillips. Do you have any additional comment, Mr. beigen-
thaler?
Mr. Seigenthaler. I would concur, generally, with the whole point
of the attitude. I think there is misunderstanding about the act and
I would even concur in some ways with the idea that the club atmos-
phere does prevail in some parts of the press. I do think, though, that
there are a number of worlving reporters as Ward Sinclair points out,
and as the reporters on this panel demonstrate, that there are a num-
ber of reporters who are constantly working to get information and
are getting information and are using the act. They know about it and
are using the act as a sort of a lever to break it h)ose and you never
really hear about the many cases in which that occurs.
One of the problems is really reaching a point of conflict. I think
that within Government, particularly, tlio information oiUcer does
know about it and he is anxious to avoid conflict if he possibly can, and
so quite often reporters get waltzed around for a day, week, or month,
and inevitably never get the information. They never are able to make
a case with the city editor or with the editor, much less with the legal
counsel of the newspaper, that they are really getting a i-unaround.
1327
So, the conflict never comes into being. Issues never really join.
One other point, and that is a general impression that I have
from talking really with other editoi-s. I suspect that there are not ^'ery
many lawyers in this country who are really w'illing to advise clients
to take a dramatic, even courageous position against the Government
in these mattere. The idea of the Government's right to be secret is
sometliing, I think, that permeates most of society and a good many
of the legal departments. I suspect if you went intothe Justice Depart-
ment, for example, and examined lawyers there about their under-
standing of the Freedom of Information xVct you will be shocked to
find — and I was in the Justice Department myself, I worked there for
a while in the early sixties — you will be shocked to find they don't
even know that it is on the books. It is a delight to me to hear that the
Office of Legal Counsel came in and did know about it and was able to
speak intelligently about it. I don't think most lawyers really under-
stand what the act is all about and would be reluctant to advise their
clients really to take on the Government in such a hazy area as what
is secret and what is not.
Just if I might, I would like to throw this in, an unsolicited criti-
cism. I am deeply concerned, as Mr. Sinclair said earlier that he was,
about the question of executive sessions in the Congress and I think
sooner or later Congress is going to have to come to grips with that
problem as many State legislatures are having to come to grips with
it, and I hope that at some point this comraiftee will help the press
further by confronting that issue and perhaps by taking some steps
that will make access to those hearings a reality.
Mr. Phillips. Certainly this area of the law is one of the newest
and little-known areas. It is a highly specialized field. It might be
compared in some ways to environmental law which is just coming
forth into its own, and I think from our knowledge of attorneys who
will be testifying later in our hearings, there are relatively few who
have had that much experience. "We are fortunate to have as witnesses
next week a group of attorneys who have handled a great number of
cases that have been heard by the courts under the Freedom of In-
formation Act. So, we hope to obtain some ideas from them, as we
have today, in that profession what some of the problems might be.
Mr. MooKHEAD. Mr. McGhee, would j-ou have any comments?
Mr. McGhee. Yes. I think Mr. Straus and Mr. Seigenthaler have
both hit upon a point that there is a club atmosphere among some re-
porters and some news sources. However, I really don't believe that
that is a problem in the field because if a reporter is worth his salt,
once he begins to want information from a friend in the Government
and the friend refuses it, you immediately have an adversary situation.
I would think, too, that nine times out of 10 the reporter is not a friend
of the source — particularly in the vast bureaucracy in the Government.
I may be — I consider myself a personal friend of a number of Sena-
tors and Congressmen. Fortunately, I don't have to deal with those
personal friends very often in my professional relationships witli them.
I hope that I would not let a friendship interfere. But I thinlc more
fundamental than the people — than the reporters and the public for
whom the act was de^signed, to provide access to Government informa-
tion— is the bureaucrat in charge of it. Iff* does not understand the pur-
pose of the act. You can take a reporter who has never heard of the
1328
act and he calls up bureaucrat A and asks him for some information
and he doesn't get it. He knows that there is something wrong funda-
mentally there, particularly if there is no national security involved.
The bureaucrat looks at it differently. He thinks: This is my in-
formation ; this is my bureau's information and it is nobody's else's.
I know I am an honest man. I loiow I am not stealing.
I think this is the attitude that a good many of them have and I
don't know how you solve it. We have got a job, the bureaucrat thinks
we have got to open up your books to the first reporter that calls. I
understand if he thinks it is not practical.
JNIr. Phillips. I would hope one way we would do this is for a new
public official who comes in above a certain level who is going to be
dealing with this problem, that at least he has a briefing. He may need
a little bit of on-the-job training about what the Freedom of Informa-
tion Act means and what the regulation of that particular department
or agency provides. Then he won't be able to plead ignorance when he
is confronted with a situation such as this and handles it in a poor
fashion. At least that should be a minimum to be required administra-
tively in any executive department or agency.
Thank you, Mr. Chairman.
Mr. Mo'oRHEAD. Mr. Cornish.
Mr. Cornish. Thank you, Mr. Chairman. As a former coiTespond-
ent for United Press International, I think this testimony is especially
valuable to have on the record and I am particularly glad to welcome
my old friend and colleague, Roy McGhee, with whom I worked for
a number of years.
I have an observation and it is in the form of fear, perhaps un-
founded, that the ti-ue investigative reporter is becoming a dying breed,
and I have a feeling that he may be simply overwhelmed by the in-
creasing size and complexity of Government and the daily routine
which he must cover on a regular basis that is outside of the investiga-
tive scope of news reporting.
I wonder if the panel has any thoughts on that, whether there has
been any diminution in the investigative reporter's role, whether they
have noticed it.
Mr. McGhee. On the contrary, Mr. Cornish. In the press associa-
tions in recent years, I am sure you are aware of the special investiga-
tive teams that both the UPI and the AP have put in the field, and
their reports have won innumerable prizes. I can recall days when a
press association did no investigative reporting at all. They do pro-
vide a considerable amount of data. I would agree, though, that many
reporters are overwhelmed by the great mass of information that they
are given sometimes in the investigative field.
As an example, I recall several years ago — I never did write a story
about it, I had too much — I was told that there was collusion on a
Bui-eau of Eeclamation dam out in the West someplace. So I went
to the Department of the Interior and asked them for the books, and
they said : "Sure, what do you want to see V-
1329
So, I went down there and tliey liad some documents that would
stretch literally from here to that wall and tliey were as wide — the
sheets were as wide as this table.
Well, I wouldn't — I couldn't make head nor tail of them. An<l I just
flunked. They said, "What else do you want to see V^
You know, I wanted something that I could comprehend. AA'hen you
have information that you can't understand, it is worthless.
Mr. Cornish. I wonder if there are other comments.
jNIr. Seigextiialer. I am inclined to agree. It does seem to me among
reporters that I meet and talk to that there is really an intense interest
in the field of investigative reporting, really a growing interest. I
think the people on lay staff, most of the reporters on my staff consider
themselves to be investigative reporters. Beyond that, it seems to me
that there are new areas such as consumer affairs and the environment,
aside from the traditional areas of swindle, government corruption,
that reporters are interested in getting into ; medical affairs. It seems
to me that there are more reporters in more different areas doing in-
vestigative jobs, maybe a different sort of investigation now, but 1 am
really encouraged as I talk to newspapermen from other parts of the
country as well as my own area, that really there is sort of a renewed
interest in investigative reporting and I would say that there is a
feeling in some areas of management that it is not nice, not ])roper, and
sometimes dangerous. But again, I think that may be limited and
perhaps dwindling. I hope it is.
Mr. Straus. I would say that Mr. Seigenthaler says it just exactly
right. I think that the thesis probably is exactly opposite of what you
say. I hope so. Much more optimistic than what you say.
Mr. CoRxiSH. I am really pleased to hear that even though I still
have doubts. Mr. Seigenthaler, you mentioned that you felt that
more congressional hearings should be open and 1 just want to say per-
sonally that I would agree with that but I wonder also whether the
press and other media are prepared to deal or cover these increased
open hearings and the wider flow of information which would result.
Mr. Sinclair. The answer is to open them up and we will find out.
Mr. Seigenthaler. When I was in the Justice Department there was
a man who covered — well, it was a woman who covered Justice, and
that is a big job. She covered Justice, the Supreme Court and HEW.
She had an impossible task, but I don't really think our ability to
cover it relates to the need to get the committee meetings open.
Just talking about going to court, about 7 or 8 years ago Bill Kovitch,
now with the Xew York Times, was working with us covering the State
legislature and our constitution says that the doors of the legislature
should be open, and they went executive on him and he wouldn't leave,
and they excluded him from the floors of the legislature, and we went
to Federal court and got him back in.
I guess you don't have that clear constitutional mandate to make that
sort of an effort in the Halls of Congress, but I don't really think our
inability because of lack of manpower to do the job relates to the ques-
76-253— 72— pt. 4-
1330
tion of the public as well as the press, to have access to what goes on
in those meetings.
:Mr. Cornish. I would agree to that, but I think it is an important
side issue and I thmk the press ought to be prepared to increase its
manpower.
Mr. Seigenthaler. Or do more pool work, for example, to do a
better job. If you have four people in the Justice Department covering
those same three departments, some of that is overlapping and duplica-
tion. So, competition is necessary, but I think more and more pooling
is going to be necessary for us to do an adequate job.
Mr. Cornish. Having been a loner, I would advise against that,
mvself, but that is an interesting thought. Thank you, Mr. Chairman.
Mr. ]\looRHEAD. Xow that the subject of congressional action and
opening of hearings or meetings has been brought up, even though I
don't think this subcommittee has jurisdiction — it would be the Rules
Committee or the Joint Committee on Reorganization— but, just to get
a clarified point, are you talking about hearings or markup sessions
of the bills, or both ?
Mr. Seigenthaler. I am talking about both, Congressman Moor-
head. I think, ]Mr. Chairman, that there may be some— well, I am par-
ticularly concerned about appropriation hearings, just to be candid
about it. That is the one area that is particularly offensive to me.
Mr. ]MooRHEAD. That is a hearing.
Mr. Seigenthaler, That is right. But, beyond that I am concerned
about any executive session. I must say thai I have difficulty outside
areas of national security — I have difficulty miderstanding the need for
executive sessions.
Mr. MooRHEAD. Congress has faced this problem. Some comniittees
have decided to have open markup sessions. My understanding is that
they have been rather unfortunate in the lemslative product that is
produced as a result. The compromise that Congress reached was to
have executive sessions for markups but to release immediately after
the meeting the votes with the names of those members voting on any
amendments adopted or rejected in the executive session. This opens
up the congressional process, not totally, but trys to balance what is
the public interest — the production of good legislation or merely the
conduct of the markup process in public before the press.
In my judgment all hearings except where national security is in-
volved should be open hearings. In my judgment the legislative prod-
uct is better in markup sessions in executive session, with a total revela-
tion of members' position on votes taken for or against amendments.
This is a compromise that in my judgment produces the best legisla-
tion with the maximum of disclosure to the public.
Mr. Phillips. Could I make one other point on executive sessions
that hasn't been mentioned, Mr. Chairman ?
One of the reasons the rules were changed in the 1950's governing
executive sessions were abuses under the old rules, when an individual
was accused of something in public hearings with no opportunity to
1331
defend himself. The new rule was called the Joe McCarthy rule.
As we all recall, people were called Communists and other things in
open session without an opportunitj' for that person to be apprised that
that was going to happen. One of the reasons the rules were changed in
the mid-1950's was to protect the rights of the individuals. Under cur-
rent House rules, and certainly in the rules of this committee, when
someone is going to be named in a hearing and accused of wrongdoing,
the rules require that the subcommittee or all committees go into
executive session so that that information can be received and kept
in confidence until the individual who has been named has an oppor-
tunity to come and defend himself.
Now, I think that is certainly different from the general rule that we
are talking about, closed hearings and I think that this point should be
made clear. It is not a black and white situation. Some executive ses-
sions are required in order to have fair play for indi\nduals who are
going to be directly affected. Perhaps their whole careers, their whole
lives could be adversely affected. Certainly some of this did go on in the
early lOoOs and the rules were changed because of that terrible
experience.
Mr. Seigenthaler. If I just might respond to that, Mr. Phillips. I
simply agree that an awful lot of people had their names smeared dur-
ing that era. But it would seem to me that that was a problem that
Congress could and can now solve by effective staff work. I don't have
any doubt that Congress has the ability and really does every day
through exhaustive staff work, provide protection to people who are
charged — indeed, as an example, they are, in the U.S. Senate Judi-
ciary Committee hearings going on right now. It occurs to me that
if the staff will make the effort, that people can quickly and appro-
jniately have the opportunity to answer charges made against them
if thev wish to do so. I think that was a terrible era we went through
and l" think that the reaction to that on the part of the Congress was
quite natural, and at the time I might have concurred in that, but it
does seem to me that in the long run whatever is said before a con-
gressional committee by a witness or by a Congressman is— the public
is more benefited by knowing about the business of congressional com-
mittees than by not knowing.
^h\ Phillips. Of course, one of the problems is that you have a pub-
lic witness and he may comply with the committee rules and supply his
statement 24 hours in advance and there is no mention of any individ-
ual in that statement. But, as it sometimes occurs in a colloquy, he can
name a person and accuse him of wrongdoing without any kind of
staff work possible to give that person that opportunity to do some-
tliino; to defend himself. There would be no way to anticipate it.
Mr. Seigenthaler. I agree with that but you make my very point.
That happens now. I could sit here without giving you any advance
]iotification and make that charge against some person at this open
hearing. I don't really think that the cover of secrecy protects anyone
from that.
1332
Mr. Phillips. The only thing the committee can do is to inquire of
the witness if he is going "to name names and make accusations. Now, if
he tells us "no," he is not, and the hearing is goin^ on and then he
changes his mind because of an aggravation or a question that is asked
him and he goes ahead and does it anyway, there is nothing we can do.
We can't expunge the record. It is a difficult situation, I agree. Occa-
sionally it does happen, but if you do know in advance that a witness
is going to make serious allegations against a witness whom he intends
to name, then under the rules we are bound to advise him that that has
to be taken in executive session. It is not a clear-cut case either way, and
certainly there are abuses just as there were abuses in the 1950's. There
are abuses today.
Thank you, sir.
Mr. INIooRHEAD. Thank you, gentlemen.
The subcommittee has received several excellent studies from the
Library of Congress relative to these hearings, and I also am submit-
ting some accompanving statements, which I think should be made a
part of the record and without objection they will be made a part of
the record.
(The material referred to follows :)
Accompanying Statement by Representative William S. Moorhead, Chair-
man, Foreign Operations and Government Information Subcommittee
released for friday, march 17, 197 2
"In 1966 the Congress took the first step toward guaranteeing the people's right
to know what their government is planning and doing. The Freedom of Informa-
tion Act was by no means a failure, nor was it an all-out success, but its short-
comings are due more to resistance on the part of the huge bureaucracy than to
compromises which are inherent in the legislative process which created the law.
"This is apparent from the analysis of the first four years of operation under the
Freedom of Information Act. For every seventeen times citizens used the law to
try to get public records, they were denied the information one time.
'"On the surface, this looks like the government is leaning over backward— at
the rate of 17 to one — to honor the Freedom of Information Act. But the Execu-
tive agencies granted the public access to public information only because they
were pushed over backward — only because the Congress passed a law to require
the Executive Branch to honor the people's right to know. This is obvious when
the figures show that, in spite of the law, nearly 2,200 requests for access to public
records were denied, completely or in part.
"Many government agencies seem to be doing everything possible to ignore the
Freedon\ of Information Act. Some agencies — and the Air Force is the worst
offender — try to make their information operations look good by claiming that
thousands of requests for routine government documents are actually demands for
access under the Freedom of Information Act. Other agencies — for example, the
Civil Service Commission — keep no records and apparently have no interest in
impJementing the law.
"Another indication of the attitude that government business is none of the
public's business is the long time it takes an agency to act on a request for infor-
mation. The major government agencies took an average of 33 days to even respond
to a request for public records under the Freedom of Information Act. And when
the initial decision to withhold information was appealed by someone seeking the
facts, the agencies took an average of 50 days to respond.
"1 am not surprised by the fact that corporations and lawyers representing
private interests appear to be making the most u.se of the Freedom of Information
1333
Act. Those who can afford the expensive and time-consuming process of fighting
for their right to linow, will do so. I hope that the Congress can find a means to
help the average citizen win his battles against the information bureaucracy.
"I am surprised, however, that the reporters, editors and broadcasters whose
job it is to inform the American people have made so little use of the Freedom of
Information Act. They were the major supporters of tho.se in Congress who cre-
ated the law. The free and responsible press is the keystone of an informed, demo-
cratic society and it should be the major user of the law designed to guarantee
the people's right to know."
The Administration of the Freedom of Information Act
On July Fourth, 1966, the Federal Government's first Freedom of Information
Act was signed into law. It became effective one year later, giving the depart-
ments and agencies of the Executive branch time to adopt rules explaining the
procedures to be followed by any person requesting access to public records.
The Freedom of Information Act became section 552 of title 5 of the United
States Code. It was the result of 11 years of investigation by the Foreign Opera-
tions and Government Information Subcommittee of the House Committee on
Government Operations (formerly the Special Subcommittee on Government
Information). It was also based on studies and inve.stigation during most of the
11 years by Subcommittees of the Senate Judiciary Committee.
The new"^ act repealed the so-called Public Information Section of the Admin-
istrative Procedure Act (Section 3) which had permitted Executive branch
agencies to withhold government records "for good cause found" and '"in the
public interest." If no good cause could be found for withholding information,
Section 3 permitted the government to release information selectively to persons
"legitimately and properly concerned."
To explain the proper procedures for granting access to public records under
the new Freedom of Information Act, the Department of Justice prepared a
47 page memorandum for all agencies of the Executive branch. The Attorney Gen-
eral's Memorandum issued in June, 1967 said that the key concerns of the law
are —
That disclosure be the general rule, not the exception ;
That all individuals have equal rights of access :
That the burden be on the Government to justify the withholding of a
document, not on the person who requests it :
That individuals improperly denied access to documents have a right to
seek injunctive relief in the courts;
That there be a change in Government policy and attitude.
After the Freedom of Informntion Act had been in operatiDn four years, the
Foreign Operations and Government Information Subcommittee began a series
of studies and investigations to find out whether the new law was living up to the
hopes of those who had worked for its creation and enactment for 11 years—
and whether the Executive branch was administering the law in the spirit in
which it was enacted, a spirit highlighted by the Attorney General's comments
on the key concerns for the people's right to know the facts of government. The
Subcommittee was mainlv interested in the following sections of the Freedom
of Information Law (5 U.S.C. 552) which spell out the right of access to public
records.
"(3) Except with respect to the records made available under paragraphs
(1) and (2) of this subsection, each agency, on request for identifiable records
made in accordance with published rules stating the time, place, fees to the extent
authorized by statute, and procedure to be followed, shall make the records
promptlv available to any person. On complaint, the district court of the I.^nited
States in the district in which the complainant resides, or has his principal
place of business, or in which the agency records are situated, has jurisdiction
to enjoin the agency from withholding agency records and to order the production
of any agency records improperly withheld from the complainant. In such a
case the court shall determine the matter de novo and the burden is on the
1334
agency to sustain its action. In tlie event of noncompliance with the order of
the court, the district court may punish for contempt the responsible employee,
and in the case of a uniformed service, the responsible member. Except as to
causes the court considers of greater importance, proceedings before the district
court, as authorized by this paragraph, take precedence on the docket over all
other causes and shall be assigned for hearing and trial at the earliest practicable
date and expedited in every way.
"(b) This section does not apply to matters that are —
"(1) specifically required by Executive order to be kept secret in the
interest of the national defense or foreign policy;
"(2) related solely to the internal personnel rules and practices of an
agency ;
"(3) specifically exempted from disclosure by statute;
"(4) trade secrets and commercial or financial information obtained from
a person and privileged or confidential ;
"(5) inter-agency or intra-ageney memorandums or letters which would
not be available by law to a party other than an agency in litigation with
the agency;
"(6) personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy :
"(7) investigatory files compiled for law enforcement purposes except
to the extent available by law to a party other than an agency ;
" (S) contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions ; or
"(9) geological and geophysical information and data, including maps,
concerning wells.
"(c) This section does not authorize withholding of information or limit the
availability of records to the public, except as specifically stated in tJiis section.
Tills section is not authority to withhold information from Congress."
One step in the study and investigation was a series of questionnaires sent to
all agencies of the Executive branch of the Federal Government by Congressman
William S. Moorhead, chairman of the Foreign Operations ar.d Government In-
formation Subcommittee. The Freedom of Information Act. by its terms, does
not apply to the Legislative or Judicial branches. The basic questionnaire cov-
ered the first four years of the Act's operations, from July 4, 1967 through July 4.
1971. The following are the questions :
1. How many formal requests for accevSS to records under 5 U.S.C. 552 has your
agency received between July 4, 1967, and July 4, 1971.
(o) In how many cases was access granted?
(I)) In how many cases was access refused?
(c) In how many cases was access granted in part and refused in part?
id) How many cases are pending?
2. For each of the cases in which access was refused, please provide the fol-
lowing information :
(a) The name and address of the individual or organization presenting
the request for access and the date upon which it was presented ;
(h) The date upon which access was initially refused;
(c) The section of 5 U.S.C. 552(b) (1) through (9) which was the basis
for the refusal :
id) Whether an administrative appeal was filed against the initial refusal
and. if so, the date of the appeal ;
(e) The date of the agency action upon the appeal and the title of the
individual who took the action ;
(/) Whether, before the final refusal, the agency consulted the Depart-
ment of Justice as requested by the Department's memorandum of Decem-
ber 8, 1969, to General Counsels of all agencies.
3. For each of the requests for access to records which has resulted in court
action under 5 U.S.C. 5."2. please provide the following information :
1335
(a) The ease citation and the date court action was initiated ;
(b) A brief description of the agency records requested;
(c) A citation of the section of 5 U.S.C. 552 upon which the agency relied
to refuse access ;
(d) A brief explanation of the current status of the court action.
4. "VMiat legend is used by your agency to identify records which are not clas-
sifiable under Executive Order 10501 but which are not to be made available out-
side the government?
Please list each term and explain its application.
5. How- many officials of your agency are authorized to classify material TOP
SECRET under the terms of Executive Order 10501?
Please identify, by name and title, each individual so authorized.
6. How many officials of your agency are authorized to classify material
Secret under the terms of Executive Order 10501?
7. How many ofiicials of your agency are authorized to classify material Con-
fidential under the terms of Executive Order 10501?
Before the questionnaire was sent formally to all departments and agencies
of the Executive brancli of the Federal government, it was pre-tested by dis-
cussing possible questions with a number of government oflScials who would have
the eventual responsibility of answering the final questionnaire. Included were
some who had participated in hearings while the law was being considered by
Congress and others who had participated in drafting the Attorney General's
Memorandum.
To analyze the questionnaire answers and assist in the research work neces-
sary to help prepare the Foreign Operations and Government Information Sub-
committee members for a series of hearings on United States Government in-
formation policies and practices, a special task force was set up by the Con-
gressional Research Service of the Library of Congress. It included legal experts
from the American Law Division and government experts from the Government
and General Research Division, with the activities coordinated by Samuel J.
Archibald of the University of Missouri Freedom of Information Center, serving
as a consultant to the Congressional Research Service.
The analysis of the questionnaire answers was conducted by Dr. Harold Relyea
and Sharon S. Gressle, analysts is American national government and public ad-
ministration in the Government and General Research Division.
Data Analysis
Nature of the Data
The nature of the data obtained by means of the Subcommittee's questionnaire
must be qualified as to its validity. While the aggregate data provided by the
Executive agencies on the number of information requests and their action upon
the requests suffers no quality limitation, the sample of individual-requestor
cases listed in answers to the questionnaire was biased. Agencies were asked to
identify only those requestors who had been denied, either in whole or in part,
the material they had sought. The usual characterization of a valid measurement
is one which "measures what it purports to measure" or obtains the information
being sought. The identification of those denied information under the provisions
of the Freedom of Information Act (5 U.S.C. 552), was a major purpose of the
que.stionnaire. On the level of measurement of accomplishment, the questionnaire
and the data obtained are valid. Yet data con.sisting only of denial cases may
have a bias. This bias becomes important when certain sociological generaliza-
tions are made within the analysis, such as the proportion of one type of re-
questor vis-a-vis another or averages of time lapses in acting upon requests. It
is not. therefore, valid to generalize from the sample analyzed to the total num-
ber of requestors seeking information under the Freedom of Information Act.
Those denied requests constitute approximately one percent of the total number
of requestors. While this figure is skewed by the large number of requests re-
ported by the Department of the Air Force, the total number of denials reaches
only five percent of the total number of requestors when the Air Force figures
are removed from the computations.
1336
While the percentage of denials appears to be relatively small such statistics
mask the fact that (minus Department of Air Force totals) for approximately
every seventeen requests for information under the provisions of the Freedom
of Information Act, one request is denied. And even this consideration ignores
the qTiality of information requested, the public interest which might have been
served by granting the request, and the basis upon which the public record was
denied. Further, certain agencies have higher ratios of refusal than others —
.some, as will be indicated, denying more requests than they grant. In brief, such
statistics demonstrate problems in the administration of an act which was de-
signed to make disclosure the general rule and not the exception and to promote
equal rights of access for all requestors.
Nature of the Analysis
The focus of the analysis was chiefly upon agencies of the Federal Government
which generally affect the public welfare or which, in the preliminary examina-
tion of returned questionnaires, indicated areas of special interest. While the
overall survey covered some ninety Executive departments and agencies, this
analysis considers selected respondents.
Certain statistical findings in this analysis utilized available data rather than
a total or randomized sample. Averages of lapsed time for action on initial re-
quests or appeals were occasionally computed on less than the total number of
reported cases due to incomplete details on each case. It should, therefore, be
noted that certain totals of individual or category items listed in the major
analytical chart do not coincide with the appropriate number of reported cases.
Quality of Data
Responses to the Subcommittee's questionnaire were generally complete and
detailed for most agencies, but in certain eases the agencies seemed to mis-
understand the questions or they provided otherwise unusable information. The
Department of Defense for example, acknowledged incomplete records to answer
some questions. The Civil Aeronautics Board supplied aggregate information
for fiscal year 1968 only. The Federal Highway Administration and the Federal
Railroad Administration reported they kept no records on Freedom of Infor-
mation Act requests.
In a mimber of instances details were omitted from agency responses. The
number of requests for public records was not provided, for example, by the
Department of the Army, the Department of Health, Education, and Welfare,
the Coast Guard, the Federal Maritime Administration, and the Civil Service
Commission, though those agencies did provide information on individual denials.
Often no initial request dates were supplied for individual cases or no dates
on appeals were given, thus making the computation of time intervals impos-
sible or limited to a few cases. In many responses the titles and citations of
relevant court cases were garbled or missing. The Department of the Army,
the Department of the Navy, the Department of State, and the Securities and
Exchange Commission failed to cite appropriate sections of the Freedom of
Information Act as a basis for refusing information. Freqiiently, the responding
agencies cited court cases which resulted from their refusals to provide mate-
rials but they failed to provide details on the administrative procedure which
preceded judicial action. While the Air Force was way out of line in claiming
to grant 202,714 reque.sts for information imder the Freedom of Information Act
and to deny only 118 requests, some other agencies also appeared to inflate the
figures on requests for information. Tlie Agriculture Department claimed it
granted 10,769 requests for information while denying only 1.37 requests : the
Department of Transportation claimed 13,295 grants and 445 denials and the
Civil Aeronautics Board claimed that 18,261 requests for information were
received and only 33 requests were denied. The grant/denial record of other
agencies seemed to lie in line with their size and activity.
Those agencies which were out of line might have overstated the number of
requests which were granted — counting a request for a routine government
publication, for instance, as a demand for public records under the Freedom
of Information Act — or the variations in numbers of requests cited may be one
1337
more indication that the Freedom of Information Act is lield in miniunuu hish
regard by the agencies responsible for protecting the people's right to know in
a democratic society.
The possibility was considered that agencies might cite many sections of the
Freedom of Information Act as authority to refuse requests for information
initially, but cite fewer and more defensible sections if challenged in court. The
analysis indicates only nine instances where initial citations of authority for
refusal differed from citations in court. Nor was the trend within these cases
unidirectional ; in some instances more sections of the Act were cited at the
court stage than at the initial refusal stage.
Computations were made for the average number of days required for each
agency to respond to initial requests for information and for the average number
of days to respond to appeals of the initial denials. These time spans ranged
from an average of S days (Small Business Administration) to 69 days (Federal
Trade Commission) for responses to initial requests and from 13 days (Depart-
ment of the Air Force) to 127 days (Department of Labor) for responses to
appeals. For those agencies listed in the analytical chart, the average number
of days taken to respond to initial requests was 33 (for 27 agencies) ; the average
number of days to respond to appeals was 50 (for 20 agencies). In terms of
the average time lapse on initial requests for agencies listed in the analytical
chart, 11 agencies exceeded this average; 9 agencies exceeded this average for
time on acting on appeals. The Departments of Health, Education, and Welfare,
Interior, Justice and Renegotiation Board exceeded the total average for both
stages of the administrative process. Statistically, four agencies seem to be in no
hurry to expedite requests for information under the Freedom of Information
Act.
Only two agencies reported that they denied more requests than they granted.
These are the Department of Justice and the Federal Power Commission, but
in the latter case the outcome resulted from a total of only 8 requests. Other
agencies indicated high refusal rates in their responses. These refusals are
usually not overturned to any general extent when appealed within the agencies
or when pressed in court. Of 296 requests which were appealed, 37 were granted
and 196 were denied. Those remaining were granted in part, were pendinic. or
results were unknown. Of 99 court cases which were initiated to obtain infor-
mation denied by the executive agencies, 16 resulted in grants of the material
sought and the remaining cases were either denied or appealed to higher courts.
1338
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1344
AccoMPAXYiXG Statement by Representative "William S. Moobhead,
Chairman . Foreign Operations and Government Information Subcom-
mittee— Released for Sunday, March 19, 1972
"No law is self-enforcing, least of all a law designed to help the citizen in a
contest with the government. Thus, the Freedom of Information Act has a built-
in enforcement tool — the citizen's right to go to court and force the govern-
ment to prove the need to withhold public records.
"The court-enforcement provision has been used effectively during the first
four years the Act has been in operation. In some areas — particularly the pro-
tection of national defense information and the protection of investigatory files —
the courts have been reluctant to order the disclosure of government secrets. In
other areas — particularly the contention that privileged financial information
and internal memoranda must be hidden from the public — the courts have re-
jected government arguments.
"Hopefully, government agencies will consider the trend of court action and
stop u.sing tlie excuses for secrecy which have been rejected by the courts. If
not, it may be necessary for Congress to amend the Freedom of Infoi-mation
Act to limit further the government's claim that routine financial information
and government memoranda are not public records."
The Freedom of Information Act Goes to Court
For 11 years the United States Congress wrestled with the problem of the
people's right to know the facts of government. The result was a Freedom of
Information Act, some 500 words long, which became the law of the land when
it was signed by the President on July 4, 19G6.
But the most imiwrtant of those 500 words were those which stated that any
person can go to court to gain access to government records, and the burden of
proof that secrecy is necessary is upon the goverimient.
To determine how well this segment of the Freedom of Information Act is
working, the Foreign Operations and Government Information Subcommittee
of the U.S. House of Representatives — the Subcommittee which had conducted
the major part of the 11 year investigation into government secrecy — asked the
Congressional Research Service of the Library of Congress to digest the major
court decisions under the Freedom of Information Act.
A digest of significant cases interpreting the Freedom of Information Act
(5 U.S.C. 552) was prepared by Daniel Hill Zafren and Paul Wallace, legisla-
tive attorneys for the American Law Division of the Congressional Research
Service.
A subjective analysis of the digested cases — an attempt to plot the trend of
court interpretation of the Freedom of Information Act— was prepared by
Samuel J. Archibald of the University of Missouri Freedom of Information
Center, working with the Government and General Research Division of the
Congressional Research Service.
Following are the digested cases and the analysis which shows that, when
the court enforcement provisions of the Freedom of Information Act are in-
voked, the courts impose their judgments upon the bureaucracy and the court
judgment leans toward the people's right to know. For instance, the courts have
ruled unanimou.sly against the government's contention that "trade secrets"
cannot be disclosed by the government because corporations would stop co-
operating with government agencies. And a majority of their decisions have re-
jected the government argument that "internal memoranda" must not be
disclosed because disclosure would inhibit free and frank discussions between
government technical experts and their bosses.
But the courts have generally protected "investigatory files compiled for
law enforcement purposes" and they have been wary of second-guessing Execu-
tive decisions about matters that are kept secret "in the interest of national
defense and foreign policy."
Following are the parts of the Freedom of Information Act (5 U.S.C. 552)
pertinent to this study :
"(b) This section does not apply to matters that are —
"(1) specifically required by Executive order to be kept secret in the
interest of the national defense or foreign policy ;
"(2) related solely to the internal personnel rules and practices of an
agency ;
" (3) specifically exempted from disclosure by statute ;
1345
"(4) trade secrets and commercial or financial information obtained from
a person and privileged or confidential ;
"(5) inter-agency or intra -agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with
the agency ;
"(6) personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy ;
"(7) investigatory files compiled for law enforcement purposes except
to the extent available by law to a party other than an agency :
"(8) contained in or related to examination. oi)erating, or condition re-
ports prepared by, on behalf of, or for the use of an agency responsible for
the regulation or supervision of financial institutions : or
"(9) geological and geophysical information and data, including maps,
concerning wells.
"(3) Except with respect to the records made available under paragraphs
(1) and (2) of this subsection, each agency on request for identifiable records
made in accordance with published rules stating the time, place, fees to the
extent authorized by statute, and procedure to be followed, shall make the records
promptly available to any person. On complaint, the district court of the T'nited
States in the district in which the complainant resides, or has his princii)al place
of business, or in which the agency records are situated, has jurisdiction to en-
join the agency from withholding agency records and to order the production
of any agency records improperly withheld from the complainant. In such a case
the court shall determine the matter de novo and the burden is on the agency
to sustain its action. In the event of noncompliance with the order of the court,
the district court may punish for contempt the responsible employee, and in the
case of a uniformed service, the responsible member. Except as to cau.ses the
court con.<iders of greater importance, proceedings before the district court, as
authorized by this paragraph, take precedence on the docket over all other causes
and shall be assigned for hearing and trial at the earliest practicable date and
expedited in every way.
How THE Courts Ha\-e Held
(By Samuel J. Archibald)
Four years ago the nation's first Freedom of Information Law set up a .system
for court review of government secrecy. Has the court enforcement provision
been successful? Are the courts leaning toward public disclosure of government
records ?
The answer to the first que.stion is an emphatic "Yes". There were 112 ca.ses
filed in four years under 5 U.S.C. 552. the Freedom of Information Law which
took effect on July -i, 1967. In those cases decided so far the courts have care-
fully considered all arguments and required the government agencies to prove
that continued .secrecy is neces.sary in nearly every ca.se. As important, however,
is the threat of court action, for a government official who must prove in court
that secrecy is necessary will think twice before refusing a demand for access
to public records.
The question about the trend of judicial decisions requires a carefully qualified
answer. The American Law Division of the Library of Congress has digested
about one-third of the cases filed under 5 I^.S.C. 552, and a subjective analy.sis
based on this digest can provide only an indication of the future trend of court
decisions on the people's right to know. There is not yet enough information
available about court decisions on some sections of 5 U.S.C. 552 even to indicate
a trend.
With this caveat, however, it is possible to conclude that the courts are
rejecting government arguments that public records may be withheld if they
contain privileged or confidential financial or commercial information. And they
are rejecting government arguments that inter-agency memoranda are exempt
from the disclosure requirements of 5 U.S.C. 552. The courts ruled against the
government in all six cases involving the privileged or confidential argument
and they ruled against the government in six of the ten ca.ses involving inter-
agency memoranda. The courts, however, are generally agreeing with the
government's contention that investigatory files compiled for law enforcement
purpo.ses need not be made public. In only one of the seven cases involving in-
vestigatory files did the courts order disclosure.
76-253— 72— pt. 4 23
1346
The analysis of court actions under 5 U.S.C. 552 does not tiike into account
the thousands of other government records which have been made public under
the Freedom of Information Law without going to court. Stacks of goyermiient
documents became available to the public after July 4, 1967 when 5 U.S.C. 552
required all agencies of the Executive Branch of the Federal Government to
index and make public the details of day-to-day operations. In addition to pro-
viding this information about the end product of Federal administration, each
agency was required to adopt clear and workable rules explaining how the
public can get copies of other agency records.
As a result of these new rules many additional government file drawers were
opened but, more important, almost all of the rules permitted an appeal to the
top of the agency to overcome an initial bureaucratic refusal of access to pub-
lic records. Administrative appeals filed in the past four years resulted in the
di-sclosure of many public records. The appeals were effective — or, in many
cases, the initial requests for public records were honored — largely because of
the threat of court action against refusals.
It is obvious that the courts are taking seriously the statutory grant of juris-
diction "to enjoin the agency from withholding agency records and to order the
production of any agency records improi)erly withheld." And the courts are fol-
lowing the statutory directive to put the burden of proof that secrecy is nece.s-
sary on the shoulders of the government agency which withholds public records.
While the courts do not always rule in favor of the person seeking access to
public records, they do exerci.se a judgment which used to be exercised solely by
the secrecy-minded bureaucrats in the executive branch of the Federal Govern-
ment. And the judgment of the courts is much more often on the side of open
government.
Only in the area of national defense and foreign policy have the courts refused
to second guess the executive branch and decide whether secrecy is necessary.
In two cases the courts refused to look at documents which the Defense Depart-
ment claimed to be exempt from disclosure because of national defense. In seven
other cases Federal jxidges, over government objections, decided to study docu-
ments in the privacy of their chambers and determine the validity of the govern-
ment's claim of secrecy, but none of those cases involved so-called defense secrets.
In addition to the national security excuse for government secrecy, the courts
have ruled on five other sections of 5 U.S.C. 552 which permit withholding of
public records. They have leaned heavily toward the .side of secrecy in interpret-
ing one section — the protection of investigatory files. The rules hold that files
compiled for law enforcement can be withheld from the public even if there
is no enforcement proceeding initiated and even if the investigation does not
involve criminal law. A reason advanced for protecting investigatory files is
that tipsters will not cooperate with the investigators if they fear that their
knowledge — and their identity — will become public knowledge.
The courts have rejected government arguments that a section of the Freedom
of Information L:iw protecting trade .secrets and other commercial or financial
information can be broadly applied. They have ruled that the "trade secrets"
argument does not apply to the govermuent agency's own appraisal rei>ort, nor
does it apply to a bare list of names and addresses. And even if some jxirts of a
record are legitimate "trade secrets," the courts have directed the deletion of
identifying details and disclosure of the rest of the record.
The other area in which the courts have leaned toward the public's side in
the controversy over excessive government secrecy involves the cont^ention that
an agency's internal memoranda cannot be disclosed because disclosure would
inhibit full and frank advice from a government technician to his boss. If a
so-called internal memorandum is the basis for an agency's final action, the courts
have ruled, the memorandum becomes a public record. So-called internal memo-
randa can be withheld to prevent disclosure of the mental processes of govern-
ment officers, but even if a memorandum was prepared for the President of the
T'nited States, the court held that factual information in the memorandum must
be disclosed unless it is inextricably intertwined in the policy making process.
There liave been too few court decisions to indicate a trend on other sections
of 5 T'.S.C. 552 which permit withholding of pul)lic records, nor is a clear trend
apparent in court decisions interpreting general sections of the law. On tlie
(|uestion of how specifically a iK'rson must identify the iiublic record recpiested
from a government agency, the courts have ruled that tlie identification require-
ment cannot l>e u.sed as an excuse for witliholding documents, for the means to
identify documents are solely within the control of the agency holding the record.
And the courts have ruled again.st government arguments that —
1347
the infoi-mation sought could be ferreted out by diligent search outside
the government ;
a government unit is not an "agencj-" covered by the law even if it has
substantial independent authority to exercise specitic functions ;
all of a imblie record can be withheld if only part of the document is
exempt from disclosure.
While there have not been enough court decisions interpreting many sections
of the Federal Government's tirst Freedom of Information Law to indicate clear
trends, there Ls one certainty after the tirst four years of the law's existence :
the courts are exercising their responsibility to judge the government's steward-
ship of the people's right to know and their judgment is substantially jigainst
luijustihable secrecy.
COilPARISON OF rKRTIXENT LANGUAGE IN COURT DECISIONS WiTH SECTIONS
OF THE Freedom of Information Act
§ (b) (1) [MATTERS that ARE] SPECIFICALLY REQUIRED BY EXECUTIVE ORDER TO BE
KEPT SECRET IN THE INTEREST OF THE NATIONAL DEFENSE OR FOREIGN POLICY
1. Epstein v. Resor
The jurisdiction of the District Court does not apply to information that falls
within the exemptions .set forth in subsection (b). To hold that the agencies
have the burden of proving their action proper even in areas covered by the
exemptions, would render the exemption provision meaningless.
The court itself must determine whether the circumstances are appropriate
for the claim of privilege, and yet do so without forcing a disclosure of the very
thing the privilege is designed to protect.
2. M OSS/ Reid /Fisher v. Laird
The Act was not designed to open all Government tiles indiscriminately to
public inspection. Obviously, documents involving such matters as military
plans and foreign negotiations are ijeculiarly the tyi)e of documents entitled to
confidentiality. Under the circumstances here presented, no in camera inspection
is necessary.
3. Mink V. EPA
Documents that are now within the umbrella of a secret file but which would
not have been independently clas.sitied as secret are not entitled to the secrecy
exemption of sub-divisions (b) (1) solely by virtue of tJieir association with
separately classified documents.
§ (bj (2) [MATTERS THAT ARE] RELATED SOLELY TO THE INTEaiNAL PERSONNEL RUI-ES
AND PRACTICES OF AN AGENCY
1. Benson v. General Services Administration
None of the information sought related to internal personnel rules and
practices.
2. Consumers Inion v. Veterans Administration
None of the information sought comes within exemption (2).
S. Polymers, Inc. v. NLRB
The House Report interpreted this exception to cover operating rules, guide-
lines and manuals of procedure for government investigators or examiners.
"While the interest of the Board in refusing to i)roduce the information
sought is not clear, its relevance to the instant controversy is even less clear.
We do not hold that under no circumstances would the Board be require<l to
produce the (information) ; but in the context of the instant case we will not
disturb the refusal of the Board to produce (it)."
§ (b)(4) [MATTERS THAT ARE] TRADE SECRETS AND COMMERCIAL OR FINANCIAL
INFORMATION OBTAINED FROM A PERSON AND PRIVILEGED OR CONFIDENTIAL
1. Ackerly v. Ley
Whereas District Court only stated that the documents sought were internal
records based on medical reports secured in confidential capacity, it did not
detail the nature of the documents nor give reference to their exemptions enu-
merated in the Freedom of Information Act.
1348
2. Benson v. General Services Administration
This exemption is meant to protect information that a private individual
wislies to lieep confidential for his own purposes, but reveals to the government
under the express or implied promise by the government that the information
will be kept confidential. The appraisal report on the other hand, is liept con-
fidential by the appraiser on the client's behalf, not on his own behalf, and the
client here is GSA. Thus the exemption does not apply to the appraisal report.
3. Consumer Union, Inc. v. Veterans Administration
None of the information sought comes within exemption (4) .
Jf. Getman v. NLRB
Obviously, a bare list of names and addresses of employees which employers
are required by law to give the Board, without any express promise of con-
fidentiality, and which cannot be fairly characterized as "trade secrets" or
"financial" or "commercial information" is not exempted from disclosure by sub-
section (b) (4).
5. Grumman Aircraft Engineering Corp. v. Renegotiation Board
The statutory history does not indicate that Congress intended to exempt an
entire document merely because it contained some confidential information. On
the contrary, should data which falls within exemption (4) appear in any Board
opinion or order, both the Act and the Board's regulations recognize that the
interests of confidentiality can be protected by striliing identifying details prior
to releasing the document.
6. Soucie V. David
The exemption protecting trade secrets and commercial or financial informa-
tion obtained from a person as privileged or confidential is intended to en-
courage individuals to provide certain kinds of confidential information to the
Government, and it must be read narrowly in accordance with that purpose.
§ (B) (5) [MATTERS THAT ABE] INTEB-AGENCY OB INTRA- AGENCY MEMOBANDUMS OR
LETTERS WHICH WOULD NOT BE AVAILABLE BY LAW TO A PARTY OTHER THAN AN
AGENCY IN LITIGATION WITH THE AGENCY
1. American 3Iail Line, Ltd. v. Gulick
If the Maritime Subsidy Board did not want to expose its staff's memorandum
to public scrutiny it should not have stated piiblicly that its action was based
upon that memorandum, giving no other reasons or basis for its action. When
it chose this course of action '"as a matter of convenience" the memorandum
lost its intra-agency status and became a public record, one which must be dis-
closed to appellants.
2. Benson v. GSA
With respect to paragraph (5) of the Act, the House Report interpreted this
language to say that "any internal memorandum which would routinely be dis-
closed to a private party through the discovery process in litigation with the
agency would be available to the general public."
S. Consumer Union v. Veterans Adm,inistration
None of the information sought conies within exemption (5).
/f. Grumman Aircraft Corp. v. Retiegotiation Board
Congress intended that sec. 522 would make available to the general public
any agency records which would routinely be disclosed to a private party through
the discovery process in litigation with the agency.
5. International Paper Co. v. Federal Power Commission
The appellants' requested discovery must be denied under the fifth exception
of the FIA because it seeks the disclosure of items used in the P^'PC's delibera-
tion processes. To allow disclosure of these documents would interfere with two
important policy considerations on which sec. 552(b) (5) is based: encouraging
full and candid intra-agency discussion ; and shielding from disclosure the mental
processes of executive and admini.strative officers.
6. Mink et al. v. Environmental Protection Administration
It suffices to say that while the exemption protects the decisional processes
of the President, or other policy-making executive officials, it does not prevent
1349
the disclosure of factual information unless it is inextricably intertwined with
policy making processes.
7. Polymers, Inc. v. NLRB
This Guide is said to be an internal advisory document for the use of Board
personnel and plays no significant role in the Board's adjudication of election
disputes. As such it appears to fall within the further exemption sjMJcified in
section (5) as an "intra-agency memorandum".
S. Sonde v. David
The exemption protecting inter-agency and intra-agency memorandums or let-
ters was intended to encourage the free exchange of ideas during the proce.ss of
deliberation ami policy-making. It has been h«4d to protect internal commuiu-
catious consisting of advice, recommendations, opinions, and other material re-
flecting deliberative or policy-making proeesvses, but not [)urely factual or investi-
gatory rei>orts. "Factual infoi-mation may be protected (mly if it is inextricably
intertwined with policy-making process. Thus, for example, the exemption
might include a factual report prepared in respon.se to .specific questions of an
executive officer, because its disclosure would expose his deliberative processes
to undue public scrutiny. But courts must beware of the inevitable temptation
of a government litigant to give this exemption an expansive interpretation in
relation to the particular records at issue."
V. Sterling Drug, Inc. v. Federal Trade Commission
The documents prepared by the Commission staff should not be disclosed
because the probable effect of a decision requiring disclosure of the staff memo-
randa would thus be to inhibit "a full and frank exchange of opinions" at least
in that class of cases where opinions are not, and as practical matter cannot
be. i.ssued.
The memoranda issiied by the Commission should be disclosed. The policy of
promoting the free flow of ideas within the agency does not apply here. These
are not the ideas and theories which go into the making of the law, they are the
law itself, and as such should be made available to the public. Thus, to prevent
the development of secret law within the Conmiission, we must require it to dis-
close orders and interpretations which it actually applies in cases before it
10. Talbott Construction Co. v. United States
If the documents sought by the plaintiff are policy and theory oriented, they
are privileged under section (5). If they contain factual data they are subject
to production.
11. Miller v. Smith
It w^ould inhibit the free expression and interchange of views within the
Coast Guard Commandant's staff if staff memorandums were available to the
public.
§ (B) (6) [MATTERS THAT ABE] PERSONNEL AND MEDICAL FILES AND SIMILAR FILES
THE DISCLOSURE OF WHICH WOULD CONSTITUTE A CLEARLY UNWARRANTED IN-
VASION OF PERSONAL PRIVACY
1. Getmnn v. :NLRB
Although a limited number of employees will suffer an invasion of privacy
in losing their anonymity and in being asked over the telephone if they would
be willing to be interviewed in connection with the voting study, the loss of
privacy resulting from this particular disclosure should be characterized as
relativelv minor. Exemption (6) requires a court dc novo to balance the right
of the i)ublic to be informed: and the statutory language "clearly unwarranted"
instructs the court to tilt the balance in favor of disclosure.
2. Tucliinsky v. Selective Service System.
In view of the violence that has been directed at local board ofl3cers and
members, plaintiff would be entitled to only the names of the local Selective
Service Board officials, but not pensonal information in regard to such things
as their home addresses, occupations, races, dates of appointment, military af-
filiations, and citizenships; such information being available only if the Iwal
board chairman, after consultation with the persons involved, consents and it is
determined that such disclosure would not harm the person and would not be
an unwarranted invasion of that per.son's personal privacy.
1350
§ (B)(7) [MATTERS THAT AKE] INVESTIGATORY FILES COMPILED FOR LAW E.XFOKCE-
MENT PURPOSES EXCEPT TO THE EXTENT AVAILABLE BY LAW TO A PARTY OTHER
THAN AX AGENCY'
1. Bfirccloneta Slioe Corp. v. Compfon
CuniiTPss (lid not inteiul to give private parties charsed with violation of fed-
eral re.iiulator.v statutes any greater right to inspect investigative file material
than has been granted to persons accused of violating federal criminal laws.
If disclosure, as urged li.v Plaintiffs, is allowed, persons interviewed by Board
agents in future investigations will not be as cooperative as they are now if
they know that the information they give to the Board agents would l)e subject
to public disclosure at any time before they have actually testified at a public
Ilea ring.
Defendant (XLRB) has shown a better right to keep its commitment to the
persons giving such confidential statements, than have plaintiffs made for the
disclosure of said documents prior to the hearing.
2. Benson v. Vniteil States
The legislative histoid of this statute indicates that it is not the intent of the
statute to hinder or in any way change the procedures involved in the enforce-
ment of any laws including files prepared in coiniection with related govern-
ment litigation and adjudicative proceedings. The statute is not intended to
give a private party indirectly any earlier or greater access to investigatory
files than he would have directly in such litigation or proceedings.
3. Clement Brothers Company v. National Labor Belations Board
In addition to the connnon sen.se nece.s.sity of prote<'ting the investigatory func-
tion and procedures of the Board, the legislative history of the Act itself makes
it clear that the exemption in question is not limited to criminal law en-
forcement but rather applies to law enforcement activities of all natures.
,}. Cooney v. K»« SJiiphuihtinf/ and Drydoclc Co.
The report by investigators of the Department of Labor was not subject to
ab.solute immunity from disclosure; rather, only those portions repre.'^eiiting
statements of witnesses and deliberations or reconunendations by the federal
official were exempted from disclosure.
5. Cotcles Conimunieations, Ine. r. Department of Jiistiec
A file is no less compiled for law enforcement purposes because after the
compilation it is decided for some reason there will be no enforcement proceed-
ing. There are at least two reasons why investigation files should be kept secret.
The informant may not inform unless he knows that what he says is not avail-
able to private iiersons at their re(piest. but more important in this day of in-
creasing concern over the conflict between the citizen's right to privacy and the
need of the Government to investigate it is unthinkable that rights of privacy
should be jeopardized! further by making investigatory files available to private
l>ersons.
6. Evans v. Departnioit of Transportation
Congress could not possibly have intended that letters about the health of
pilots should be disclosed once an investigation is comp'eted. If this were so,
and disclosure were made, it would soon become a matter of common knowledge
with the n>sult that few individuals, if any. would come forth to embroil tluMu-
selves in controversy or pctssible recrimination by notifying the Federal Aviation
Agecny of something which might justify investigation.
7. Gctman v. :NLRB
Lists of employees eligible to vote in NLRB elections are not files prepared
primarily or even secondarily to prosecute law violators, and even if they ever
were to be used for law enforcement purposes, it is impossible to imagine how
their disclosure could prejudice the Government's case in court.
I (A) (.;) ON COMPLAINT, THE DISTRICT COURT OF THE VMTED STATES IX THE DISTRK T
IN WHICH THE COMPLAINANT RESIDES, OR HAS HIS PRINCIPAL PLACE OF BUSINESS,
OK IN WHICH THE AGENCY RECORDS ARE SITUATED. HAS .TITRISDICTION TO ENJOIN THE
AGENCY FROM WITHHOLDING AGENCY RECORDS AND TO ORDER THE PRODUCTION OF
ANY AGENCY RECORDS IMPROPERLY WITHHELD FROM THE COMPLAINANT. IN SUCH A
CASE THE COURT SHALL DETERMINE THE MATTER DE NOVO AND THE BURDEN IS ON
THE AGENCY TO SUSTAIN ITS ACTION. IN THE EVENT OF NONCOMPLIANCE WITH THE
1351
ORDEK OF THE COURT, THE DISTRICT COrRT MAY PI'MSII FOR CONTEMPT THE RE-
SPONSIBLE EMPLOYEE. AND IN THE CASE OF A UNIFORMED SERVICE, THE RE.SPONSIULE
jrEMBIR. EXCEPT AS TO CAUSES THE COURT CONSIDERS OF GREATER IMPORTANCE. PRO-
CEEDINGS BEFORE THE DISTRICT COURT, AS AUTHORIZED BY THIS PARAGRAPH, TAKE
PRECEDENCE ON THE DOCKET OVER ALL OTHER CAUSES AND SHALL BE ASSIGNED FOR
HEARING AND TRL\L AT THE EARLIEST PRACTICABLE DATE AND EXPEDITED IN EVERY
WAY'
1. Ackcrly v. Ley
After reviewiiifT the documents in camera, the district court rendered sinnniary
jiulgment for the Commissioner of Food and Drugs.
2. Bristol-Myers Co. v. Federal Trade Coinmission
The order of the district court is reversed and remanded, for the district coui-t
failed to examine the disi)Uted documents and exphiin tlie spei'ific justification
for withholding particular items. A bare claim of contideutiality will not im-
munize files of a government agenc.v from .sci-utiu.v.
S. Comiiiiteee for Xuelcar ResiionsibiUty v. Seahorr/
Executive privilege does not prevent Federal district courts from ordering in
camera inspection of documents, except those reflecting militai'.v and diphmiatic
secrets. The court exercises its authority with due deference to the iM)sition of
the executive. It A\ill take into account all proper considerations, including the
importance of maintaining the integrity of executive decision-making processes.
But no exec'Utive official or agency can be given absolute authority to determine
what d<x-uments in his possession may be considered by the coiu-t in its task.
Otherwi.se the head of an exe<'Utive department would have the iK)wer on his
own say-so to cover up all evidence of fraud and corruption when a Federal
court or grand jury was investigating malfeasance in office.
.}. Consumer Union v. Veterans Adminisiration
The rule that will be followed based upon the equity jurisdiction conferred
by the Act is : where agency records are not exempted from disclosure by the
Freedom of Information Act, a court must order their disclosure unless the
agency proves that disclosure will result in significantly greater harm than
good.
o. Cool; v. Willingham
The Freedom of Information Act does not apply to the courts of the United
States. A presentence investigation is made and the report submitted to the
sentencing court pursuant to Rule 32(c) of the Federal Rules of Criminal Proce-
dure. A presentence report is clearly not an agency record and is therefore not
available to the public under the Act.
G. Cowles Communications v. Department of Justice
The government should not be allowed to file an affidavit that a given file is an
investigatory file and by so doing foreclose any other determination of the fact.
Tlius, the government will be required to deliver the file to the court for an
in camera inspection.
7. Epstein v. Resor
The jurisdiction of the district court does not apply to information tliat falls
within the exemptions set fortli in subsection (I)). To hold tliat the agencies have
the burden of proving their action proper even in areas covered by the exemptions,
would I'cnder the exemption provision meaningless.
The court itself must determine whether the circumstances are appropriate for
the claim of privilege, and .vet do so without forcing a disclosure of the very thing
the privilege is designed to protect.
8. Evans v. Department of Transportation
After an in camera inspection of letters about a pilot in the files of tlie Federal
Aviation Agency, the district court granted the defendant's motion for summary
judgment, finding that the material is exempted from disclosure.
9. Ferrell v. Ignatius
The district court obtains jurisdiction under the Act only on complaint of the
party aggrieved. Here, since no complaint was filed and no summons was issued,
no action was conmienced and the court has no jurisdiction to act.
1352
10. Irons V. Schulyer
The court is not required to examine every manuscript decision of tlie past
100 or more years to decide in eacli case if there is trade secret or other material
which should be excluded. The legislative history of the Act indicates that it was
not the intent of Congress to add materially to the burden of overworked courts.
11. Soucie V. David
Congress did not intend to confer on district courts a general power to deny
relief on equitable grounds apart from the exemptions in the Act itself. However,
there may be exceptional circumstances in wiiicli a court could fairly conclude
that Congress intended to leave room for the operation of limited judicial discre-
tion, but there is no such circumstance here.
To expedite the proceedings, the district court can most effectively undertake a
determination whether the Report is protected by any statutory exemption by an
in camera inspection of same. Even if the Government asserts that public dis-
closure would be harmful to the national defense or foreign policy, in camera
inspection may be necessary. In such a case, however, the court need not inspect
the report if tlie Government describes its relevant features sufficiently to satisfy
the court that the claim of privilege is justified.
§ (3) ... EACH AGENCY, ON REQUEST FOB IDENTIFIABLE RECORDS MADE IN ACCORD-
ANCE WITH PUBLISHED RULES . . .
1. Bristol-Myers Co. v. FTC
The statutory requirement that a request for disclosure of government records
specify "identifiable records" calls for a reasonable description enabling a govern-
ment employee to locate the requested records, but it is not to be used as a
method of withholding records.
2. Irons v. Schulyer
The request in the instant case "for all unpublished manuscript decisions" is
not a reasonable request for identifiable records but rather a broad, sweeping,
indiscriminate request for production lacking any specificity. It may be true that
some of these opinions could be made available under the provisions of the Act
if a specific request for an identifiable opinion were made, but a reque.'^t for all is
not specific enough to decide if any particular decision or decisions can be made
available.
3. Shakespeare Co. v. United States
The ruling here sought must be identified with sufficient particularity so that
their extraction from the files may reasonably be made by the employee respon-
sible for them. In other words, something more than a fishing expedition must be
shown.
.}. Wellford v. Hardin
It is a violation of the Freedom of Information Act to withhold from the
public the means for requesting an "identifiable record" when those means are
exclusively within the control of the agency possessing the sought-after records.
§ (A) (3) ... IN ACCORDANCE WITH PUBLISHED RULES STATING THE TIME. PLACE,
FEES TO THE EXTENT AUTHORIZED BY STATUTE . . .
1. Reinoehl v. Hershey
31 U.S.C. 483a authorizes a charge which may equal one dollar per page for
copies or $5 per hour for an employee to monitor the file while the applicant
copies the file, and 5 U.S.C. 552 does not change this result.
GENERAL SECTIONS
1. Ackerly v. Ley
The fact that the information sought under the Freedom of Disclosure Act
might be ferreted out by intuition and diligent search by person seeking the
information is no reason for failure to disclose or refusal to compel disclosure.
2. Barceloneta Shoe Corp v. Compton
In enacting public information section of the Administrative Procedure Act,
Congress did not intend to give private parties charged with violation of federal
regulatory .statutes any greater right to inspect investigative file material tlian
has been granted to persons accused of violating federal criminal laws.
1353
3. Sonde V. David,
Access to a report by the OflSce of Science and Technology was refused on the
contention that the OST is not an "agency" for the punioses of 5 U.S.C. 552. but
rather a part of the Office of the President, and that the report is protected
from compulsory disclosure l)y the doctrine of executive privilege.
The statutory definition of "agency" is not entirely clear, but the Adminis-
trative Procedure Act apparently confers agency status on any administrative
unit with substantial independent authority in the exei-ci.se of specific functions.
By virtue of its independent function of evaluating Federal programs, the OST
must 1)6 regarded as an agency subject to the Admini.'<lative Procedure Act and
5 U.S.C. 552. Therefore, the report is a record of that agency.
Jf. Wellford v. Hardin
It is a violation of 5 U.S.C. 552 to withhold documents on the ground
that parts are exempt and parts nonexempt. lii that event, "suitable deletions"
should be made so as to bare nonexempt portions of the documents and avoid
divulging exempt material.
The Library of Congress — Congressic^al Research Ser\ice
Digest of Significant Cases Reported Under the Freedom of Information Act
(5 U.S.C, Sec. 552)
(By Daniel Hill Zafren, Paul Wallace, Legislative Attorneys, American Law
Division)
Ackerly v. Ley, 420 F. 2d 1336 (D.C. Cir. 10G9) .
Appellant's complaint in the District Court sought equitable relief, in the
form of compelled disclosure of documents, against appellee Commissioner of
Food and Drugs in the United States Department of Health, Education and
Welfare.
The Commissioner gave notice in the Federal Register of a proi)osal on his
l>art to bar from inter-state commerce, as a "banned hazardous substance"
within the purview of the Federal Hazardous Substances Act carbon tetrachloride
and mixtures containing it.
Appellant, by letter sought permission "to review and inspect and/or copy
all of the records" in the pos.session of the Commis.sioner "which relate in any
way to the degree or nature of the hazard" referred to in the Commissioner's
proposal.
After reviewing the documents in camera, the District Court rendered summary
judgment for the Commissioner.
HELD : Vacated and remanded for further consideration.
(1» Whereas District Court only stated that the documents were internal
records l»ased on medical reports secured in confidential capacity, it did not
detail the nature of the documents nor give reference to the exemptions enu-
merated in the Freedom of Information Act.
(2) The fact that the information .sought under the Freedom of Disclosure
Act might be ferreted out by intuition and diligent search by iierson seeking
the information is no reason for failure to disclose or refusal to compel dis-
closure.
(3) The Di-strict Court's ruling was not susceptible of an appellate review
which would generate confidence in either a reversal or an affii-mance.
American Mail Line, Ltd. v. Gtilick, 411 F. 2d 696 (D.C. Cir. 1969).
Action by steamship operators under Freedom of Information Act brought
after the Maritime Subsidy Board for the Department of Conmierce had re-
quired the operators to refund approximately $3,300,000 in subsidy payments.
The plaintiffs contend that in an attempt to formulate a meaningful agree-
ment in their iietition for reconsideration by the Board order, they filed with
the Board an "application to inspect records" and in the alternative a renewed
request for the reasons for a summary of the evidence upon which the Board
based its rulinsr. The Board stated that its ruling was ba.sed upon a 31 ivige
memorandum from which they clipi)ed the last 5 pages and recorded it as its own
findings in the matter and sent to appellants. Upon final refusal to produce the
memorandum in whole, the appellants filed suit in the district court under the
1354
Freedom of Information Act (5 U.S.C. sec. 552). The U.S. District Court for the
District of Columbia granted defendant's motion for summary judgment and
plaintiffs appealed.
Appellants contend that the April 11 decision, transmitted by the letter of
April 12, constituted an order to them and the Act si>ecifically states that the
agency must disclose to any person upon request "all final opinions * * * as well
as orders, made in the adjudication of cases" (5 U.S.C. sec. 552(a) (2) (A)).
Appellees contend that it is exempt from discoveiy because it is an "intra-
agency memorandum (s) * * * which would not be available by law to a party
other than an agency in litigation with the agency" under 5 U.S.C. sec.
552(b)(5).
HELD : Reversed and Remanded.
(1) The appellee failed to meet the burden requiring it to show that its April
ruling did not have immediate operative effect. Appellants were ordered to refund
approximately $.3,300,000 and this order was stayed only pending the Board's
decision on reconsideration. We therefore conclude that the Board's ruling of
April 11 transmitted to appellants by letter of April 12 constitutes a decision
and order within the meaning of 5 U.S.C. sec. 552(a) (2) (A).
(2) We do not feel that appellee should be required to "operate in a fishbowl",
but by the same token we do not feel that appellants should be required to
operate in a darkroom. If the Maritime Subsidy Board did not want to expose
its staff's memorandum to public scrutiny it should not have stated pul)licly in its
April 11 ruling that its action was based upon that memorandum, giving no other
reasons or basis for its action. When it chose this course of action "as a matter
of convenience" the memorandum lost its intra-agency status and became a public
record, one which must be disclosed to appellants. Thus we conclude that the
Board's April 11 ruling clearly falls within the confines of 5 U.S.C. sec. 552(a)
(2) (A) and consequently it must be produced for public inspection.
Barceloneta Shoe Corp. v. Cowpton, 271 F. Supp. 591 (D. Puerto Rico 1967).
Plaintiff filed a complaint pursuant to the Administrative Procedure Act seek-
ing to order defendant to produce Agency (NLRB) records which contained evi-
dence received by them during the course of an investigation involving an alleged
unfair labor practice. Defendant has previously refused such request stating that
it would follow its normal procedures making investigation affidavits and state-
ments of witnesses available to plaintiffs during any hearing before the Agency
but only after the witnesses had testified on direct examination. Defendant con-
tends that refusal is supported by the specific exemptions contained in the
new Act, particularly Sections 3(e) (7) and (4).
HELD : For Defendant ( motion to dismiss granted ) .
(1) In enacting pultlic information section of the Adni. Procedure Act. Con-
gress did not intend to give private parties charged with violation of federal
regulatory statutes any greater right to inspect investigative file material than
has been granted to persons accused of violating federal criminal laws.
(2) If disclosure, as urged by Plaintiffs, is allowed, persons interviewed by
Board agents in future investigations will not l)e as cooperative as they are now
if they know that the information they give to the P.oard agents would be subject
to public disclosure at any time before they have actually testified at a public
hearing.
(3) Defendant (NLRB) has shown a better right to keep its commitment to
the persons giving such confidential statements, than have Plaintiffs made for
the disclosure of said documents prior to the hearing.
Benson v. General Services Administration, 289 F. Supp. 590 (W.D. Wash. 1968),
aff'd 415 F. 2d 878 (9th Cir. 1969).
Acticm under the information act to enjoin the General Services Administration
from withholding certain agency records dealing with a sale of real estate and
negotiations siirrouiHling the sale. Tlie property imrchased by plaintiff's partner-
ship from GSA. and to which the requested information relates, has been resold.
Plaintiff, and other nu^mbers of the partnership as well treated the profits from
the resale as long-term capital gains on their income tax returns. The Internal
Reveiuie Sen-ice is (piestioning this characterization, and the information con-
tained in the requested documents is needed to clarify the nature of the trans-
action.
135.5
GSA argues that the withholding of the records sought was proper because
each one was exempt from disclosure under one or more of three exemptions
described in subsection (b) of the Act. The paragraphs relied upon as making
disclosure inapplicable descril)e matters :
(2) related solely to the internal personnel rules and practices of an
agency ;
(4) trade secrets and commercial or financial information obtained from
a person and privileged or confidential:
(5) inter-agency or iutra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with
the agency.
HELD : For Plaintiff. Affirmed by U.S. Court of Appeals.
(1) With respect to paragraph (2) of the Act, none of the infomiation sought
related to internal liersounel rules and practices.
(2) With respect to paragi'aph (4) of the Act, this exemption is meant to
protect information that a private individual wishes to keep confidential for
his own purix).ses, but i-eveals to the government under the express or implied
promise by the government that the information will be kept confidential. The
appraisal reiwrt on the other hand, is kept confidential by the appraiser on the
c-lient's behalf, not on his own behalf, and the client here is GSA. Thus the
exemption does not apply to the appraisal rei>ort.
(8 I With resi>eet to paragraph (5) of the Act, the House Report interpreted
this language to say that "any int^i-nal memorandum which would routinely lie
disclosed to a private party through the discovery pro<'ess in litigation with the
agency would be available to the general public."
Benson v. United States, 309 F. Supp. 1144 (U. Xeb. lilTO).
This action is filed pursuant to Section 552 of Title 5, United States Code. Plain-
tiff faces the i>ossibility of being discharged from the .Air Force under i>rovi.-ions
of the Air Force Regulations. [AFR 3U-121. Plaintiff siM-cifically requests the U.S.
District Court to enjoin the defendants from withholding from him certain state-
UK'nts which he claims will aid him in preventing his dis<'harge.
It is the government's contention that these statements recpiestetl, which were
the result of an OSI [Office of Special Investigation] investigation and are being
utilized at present by an administrative board reviewing the possibility of i)lain-
tiff's discharge, fall within an exception to sec. .552 which allows a refa'^al to pro-
duce the documents. The exception to which the government refers is sec.
5.52(b) (7) which states "This section [sih\ .552(a) ] does not apply to matters that
ai-e * * * investigatory files compiled for law enforcement purposes except to
the extent available by law to a party other than the agency."
HELD : Complaint disniLssed.
It is the decision of the Court that the government is entitled to withhold the
d(X-uments be<-ause of the exemption previously stated. The legislative history of
this statute indicates that it is not the intent of the statute to hinder or in any
way change the procedures involved in the enforcement of any laws including
"files prepared in connection with related government litigation and adjudicative
proceedings." H.R. Report #1497, 89th Cong., 2d Session, pg. 11.
Quote from case on intent and scope of the Act
"S. 1160 is not intended to give a private party indirectly any earlier or greater
access to investigatory files than he would have directly in such litigation or
proceKlings."
Bristol-Myers Company v. Federal Trade Commission, 283 F. Supp. 745 (D.D.C.
1968). aff'd in part, rev'd in part, 424 F. 2d 935 (D.C. Cir. 1970). cert. den.
400 U.S. 824 (1970).
The Bristol-Myers Company seeks an order compelling the Federal Trade
Commission to produce certain documents relevant to a rulemaking proceeding
initiated by the Commission on the basis of "extensive staff investigation.* * *
accumulated experience and available studies and reports. * * *" The Com-
mission refused to produce the documents, and the District Court dismissed the
complaint, ruling that the material sought did not constitute "identifiable record.s"
who.se production is required by statute, and furthermore that many of the docu-
ments sought fell within the .statutory exemptions for trade secret.s. internal
agency documents, or investigatory files compiled for law enforcement purposes.
1356
HELD : "With regard to production of records under the Freedom of Information
Act, the order of the District Court is reversed and remanded. Other claims
not related to the Act are affirmed.
The District Court failed to examine the disputed documents, and explain the
specific justification for withholding particular items. A bare claim of con-
fidentiality will not immunize files of a government agency from scrutiny.
Quote from case on intent and scope of the Act
"Before 1967, the Administrative Procedure Act contained a Public Informa-
tion Section 'full of loopholes which allowed agencies to deny legitimate informa-
tion to the public' When Congress acted to close those loopholes, it clearly in-
tended to avoid creating new ones."
Clement Brothers Company v. National Labor Relations Board, 282 F. Supp. 540
(X.D. Ga. 1968).
Action brought by employer against the National Labor Relations Board, inter
alia, under the Public Information Section of the Administrative Procedure Act
in an effort to compel the N.L.R.B. to permit the insi>ection and copying of docu-
ments obtained by the Board in its investigation of alleged unfair labor practices
arising out of a representation election.
The pertinent portion of the Freedom of Information Act upon which the
plaintiff relies provides as follows :
"* * * (E)ach agency, on request for identifiable records made in accordance
with published rules * * * shall make the records promptly available to any per-
son. (5 U.S.C. 552(a)(3))."
The above cited general directory is limited in application by several specific
exemptions, one of which states :
"This section does not apply to matters that are * * * investigatory files com-
piled for law enforcement purposes except to the extent available by law to a
party other than an agency. 5 U.S.C. sec. 552(b) (7)."
The plaintiff contends that this exemption is not applicable because it refers
only to law enforcement of a criminal nature.
HELD : Plaintiff's request for an injunction ordering the protection of the
employee statements is denied.
(1 ) In addition to the common sense necessity of protecting the investig*atory
function and procedures of the Board, the legislative history of the Act itself
makes it clear that the exemption in question is not limited solely to criminal
law enforcement but rather applies to law enforcement activities of all natures.
(2) The Court is of the opinion that the plaintiff has placed unwarranted
reliance on the Freedom of Information Act ; the Court cannot accept the plain-
tiff's position that the Act opened for employers the Pandora's box of accessihility
to employee statements given to the Board in furtherance of its investigatory
function.
Committee For Nuclear Responsibility v. Seaborg 3 ERC 1210 (D.C. Cir. 1971).
Action brought by environmental groups to halt the Amchitka Island under-
ground nuclear test. The District Court held that plaintiffs had presented a
cognizable claim, which the courts were obligated to determine, that the Atomic
Energy Commission hnd failed to carry out the mandate of Congress in the
National Environmental Policy Act (NEPA). 42 U.S.C. sees. 4331 et seq. (1970),
to set forth all pertinent environmental effects of the project, and thus to
provide the disclosure which is indispensable to informed appraisal of the
project by the Executive, Congress, and the pul)lic. The government filed a
motion to dismiss the lawsuit and the plaintiffs api)ealed to the Circuit Court
of Appeals. The Circuit Court of Appeals remanded the case to the District
Court so that plaintiffs might present evidence in support of their allegations,
and continue the pretrial discovery that had been imtimely curtailed by the
government's motion to dismiss the lawsuit.
On remand, plaintiffs sought to have the government produce doctmients in
its possession allegedly containing information needed by plaintiffs for sub-
stantiation of their claim. The government resisted and raised a claim of execu-
tive privilege. To resolve the question of privilege, the District Court ordered
the government to submit the documents at issue for personal in camera inspec-
tion by the District Court. The government filed an application for allowance
of an immediate appeal, challenging the order on the grounds that executive
privilege precludes even in camera screening ])y the District Court.
1357
HELD : Affirmed.
Executive privilege does not prevent federal district court from ordering in
camera inspection of documents, except tliose reflecting military and diplomatic
secrets. Tlie court exercises its authority with due deference to the jiosition
of the executive. It will take into account all i)roper considerations, including
the importance of maintaining the integrity of executive decision-making proc-
esses. But no executive othcial or agency can be given absolute authority to
determine what documents in his possession may be c(jnsidered by the court
in its task. Otherwise the head of an executive department would have the
power on his own say-so to cover up all evidence of fraud and conniption when
a federal court or grand jury was investigating malfeasance in office.
Consumer Union of United States. Inc. v. Veterans Administration, 301 F. Supp.
796 (S.D.N.Y. 19G9), appeal dismissed as moot, 39 LW 2419 (1971).
The Veterans Administration (VA) hearing aid testing program was initiated
as a means of evaluating hearing aids for procurement and distribution to vet-
erans. Consumer Union of the United States, Inc. brings this action to compel
the VA to make the raw scores, scoring schemes and quality point scores regard-
ing the testing available to it. The raw scores are objective measures of the
samples performance. The quality point scores represent the ratings for each
sample. In the past, the results of the test and the evaluation based thereon
have been primarily for VA use only, without regard to any other governmental
or private agency.
HELD : Injunction issued enjoining the defendants from withholding records
of the raw scores but information regarding quality r>oint scores should not be
released.
Although neither the raw scores or quality point scores come within exemption
(2) of the Act, matters related solely to the internal jiersonnel rules and prac-
tices of an agency ; exemption (3), matters which are * * * specifically exempted
from disclosure by statute; exemption (4), matters that are * * * trade secrets
and commercial and/or financial information obtained from a person and priv-
ileged or confidential; exemption (5), matters that are * * * inter-agency or
intra-agency memorandums or letters to a party other than an agency in litiga-
tion with the agency, the court is not bound under the Act to automatically order
the disclosure. Therefore, the rule that will be followed based upon the equity
jurisdiction conferred by the Act is : where agency records are not exempted
from disclosure by the Freedom of Information Act, a court must order their
disclosure unless the agency proves that disclosure will result in significantly
greater harm than good. In view thereof, the evidence presented indicates that
the benefits of releasing the raw scores outweigh any harm, but the danger of
the public being misled by releasing the quality point scores and the disruption
of the VA programs that releasing the scoring scheme would cau.se outweighs any
benefits.
Cook V .WiUingham, 400 F. 2d 885 (10th Cir. 1968) .
Action by prisoner against warden of a United States i^enitentiary for a copy
of his presentence rei>ort. District court held that the presentence report is made
for the use of the sentencing court and thereafter remains in the exclusive control
of that court despite any joint utility it may eventually serve.
HELD : Affirmed.
The Freedom of Information Act does not apply to "the courts; of the United
States." A presentence investigation is made and the report submitted to the sen-
tencing court pursuant to Rule 32(c) of the Federal Rules of Criminal Proce-
dure. A presentence report is clearly not an agency record and is therefore not
available to the public under the Act.
Cooney v. Sun Shiphuilding & Drydock Co., 288 F. Supp. 708 (E.D. Pa. 1968).
Civil suit for damages arising out of the accidental death of plaintiffs de-
cendent. an employee of defendant. Sun Shipbuilding and Drydock Company.
The plaintiff seeks by discovery motion to comi)el production of a report of the
accident prepared immediately after its occurrence by investigators represent-
ing the Office of Occupational Safety, Bureau of Labor Standards. U.S. Depart-
ment of Labor. The report is purported to consist of statement of witnesses,
factual findings made by the investigators, and their conelu.sious as to the causes
of the accident.
1358
The witnesses were permitted to testify as to what they personally did and
ohserved while investigating the accident, but only on the strength of their per-
sonal recollection and without the opportunity to refresh their recollection
Jby referring to their written reiwrts.
The government puiports to And justification for withholding the report :
(1) In one of the exemptive provisions of sec. 552(5) (7). This section
[regarding disclosure] shall not be applicable to matters that are * * * (7)
investigatory files compiled for law enforcement purposes, except to the
^'xtent available by law to a private party * * *.
(2) The revised disclosure regulation of the Department of Labor, 29
CFR. sec. 70(3) (g) and
(3) It argues that the plaintiff has failed to make the proper showing
of good cause required to compel production under Rule 45 as well as under
Rule 34 F.R. Civ. P.
(4) The reports are subject to "executive privilege."
HELD:
(1) The plaintiff has not alleged any factual circumstances which make pro-
duction of the investigator's report necessary to the adequate presentation of
liis case.
(2) However, it is appropriate to order that the accident report be available
to the investigators for the purpose of refreshing their recollections if they are
called upon to give further depositions.
(3) The report was not subject to absolute immunity from disclosure; i-ather,
only those portions representing statements of witnesses and deliberations or
recommendations by the federal official were exempted from disclosure. 5 U.S.C.A.
sec. 552(b) (7) ; Fed. Rules Civ. Proc, Rule 45 (d), 28 U.S.C.A.
€oicles Communications, Inc. v. Department of Justice, 325 F. Supp. 726.
(X.D. Cal. 1971).
Action under the Freedom of Information Act to ol)tain records in the office
■of the Director of the Immigration and Naturalization Service relating to one
Salvatore Marino. Tbe Government contends that the files are exempt under the
Act (5 U.S.C. sec. 552(b)(7)) as investigatory files compiled for law enforce-
ment purposes. The plaintiff contends that the exemption does not apply since
there are no proceedings pending against Marino.
HELD :
(1) Investigatory files compiled for law enforcement purposes are protec-ted
liy the Act. ''A file is no less compiled for law enforcement purposes because after
the compilation it is decided for some reason there will be no enforcement pro-
iceedin-g."
(2) There are at least two reasons why investigation files should be kept
secret. "The informant may not inform unless he knows that what he says is
not available to private persons at their request, but more important in this
'day of increasing concern over the conflict between the citizen's right of priva<'y
and the need of the Government to investigate it is unthinkable that rights of
privacy should be jeopardized further by making investigatory files available
to in-ivate persons."
(3) The Government should not be allowed to file an afiidavit that a given
file is an investigatory file and by so doing foreclose any other determination
of the fact. Thus, the Government will be required to deliver the file to the court
for an in camera insi>ection.
Epstein v. Resor, 296 F. Supp. 214 (N.D. Cal. 19G9), aff'd 421 F. 2d 930 (9th Cir.
1970), cert. den. 398 U.S. 965 (1970).
I'laintiff. an historian, brings this action pursuant to section 3 of the Adminis-
trative Procedure Act, 5 U.S.C. sec. 552, to enjoin the Secretary of the Army from
withholding a file described as ''Forcible Repatriation of Displaced Soviet Citi-
zens— ()i)eniti()n Keelhaul." The file has been classified Top Secret since 1948 pur-
suant to the provisi(ms of Executive Order 10501, 3 C.F.R. 484. Plaintiff contends
that the Top Secret classification on the file he seeks, is unwarranted and that
the Court has the power to hold a trial de novo on the merits of this classification.
HELD : Motion to dismiss the complaint denied, and the motion for summary
judgment granted in favor of the defendants. AflSrmed by United States Court
of Appeals. Certiorari denied. 398 U.S. 965.
1359
Section 3 of the Admini.strative Procedure Act, 5 I'.S.C. sec. 552 provides that
the section does not apply to niatlers that are "upecifically required l).v Executive
order to be Ivept secret in the interest of the national defense or foreijin policy."
Tlierefore. the jurisdiction of the District Court does not apply to infurniation
that falls within the exemptions set forth in sub.section (h) of Section 'i. To hold
tliat the agencies have the burden of proving their action proper even in areas
covered by the exemption.s, would render the exemption provision meaningless.
Dictum: The court itself must determine whether the circumst-iinces are ap-
propriate for the claim of privilege, and yet do so without forcing a disclosure of
the very thing the privilege is designed to protect.
EvanH V. Department of Transiportation, 446 F. 2d 821 (5th Cir. 1971).
Action under tlie Freedom of Information Act by a pilot seeking disclosure of
certain letters written by another in 1950 to the Federal Aviation Agency which
describetl his alleged problems of behavior disorder and mental abnormality as
related to his qualifications to fly. The first letter did not identify the pilot. In
response, tJie Agency wrote that the letter would be kept confidential. In re-
six)nse to that, the pilot was identified and details given. After an in camera in-
.speetion of the letters, the Di.strict Court granted the defendant's motion for
summarv judgment, finding that the material is exempted from disclosure by
5 U.S.C. sec. 552(b) (3) and (7) and 49 U.S.C. sec. 1504.
HELD : Affirmed.
(1) The efforts of the Federal Aviation Agency to investigate and take ap-
propriate action as to the mental and physical liealth of pilots would be seri-
ously jeopardized if individuals could not confidentially call facts to the at-
tention of the Agency whicli might affect the safety and lives of millions of
passengers. It was just such situations as this which prompted (.'ongress to
exempt from the terms of the Act "investigatory files compiled for law enforce-
ment purpo.ses"' set forth in 5 U.S.C. sec. 552(b) (7). "We are of the further
opinion that Congress could not po.ssibly liave intended that such letters should
be disclosed once an investigation is completed. If this were so, and disclosure
were made, it would soon become a matter of common knowledge with the i-e.sult
that few individuals, if any, would come fortli to enibrf)il themselves in con-
troversy or possible recrimination by notifying the Federal Aviation Agency of
something which miglit ju.stify investigation."
(2) By virtue of 5 U.S.C. sec. 552(b) (3) matters that are specifically exempted
from disclosure by statute are exempt from the terms of the Freedom of In-
formation Act. 49 U.S.C. sec. 1504 provides that any per-son may make written
objection to tlie public disclosure of information contained in a document filed
pursuant to the Federal aviation program. It further i>rovides that whenever such
objection is made, the board or administrator shall order such information with-
held fi-om public disclosure when, in their judgment, a disclosure of such informa-
tion would adversely affect the interests of such person and is not required in the
interest of the public. Here, assurances of confidentiality were made.
Farrell v. Ignatius, 283 F. Supp. 58 (S.D.N.T. 1968).
Ex parte order obtained requiring the Secretary of the Navy to .show cause why
an order should not be made pursuant to the Freedom of Information Act enjoin-
ing him from withholding a certain aircraft accident report. Cross-motion to dis-
miss the action for lack of jurisdiction because no action has been commencetl
in court.
HELD : Order to show cause vacated.
The District Court obtains jurisdiction under the Act only "on complaint" of
the party aggrieved. Here, since no complaint was filed and no summons was
issued, no action was commenced and the court has no jurisdiction to act.
Getman v. NLRB No. 71-1097 (D.C. Cir. 1971) aff'd.
Two law profe.s.sors undertaking a study of labor representation elections, ap-
plied for and obtained an order from the District Court rwpiiring the NLKB to
provide them with names and addresses of employees eligible to vote in approxi-
mately 35 elections to be designated by them. The Board argued that the Free-
dom of Information Act does not require it to furnish information sought by
appellees because the requested infonnation falls within Exemptions "(4) trade
secrets and commercial or financial information ol)tained from a person and
privileged or confidential" ; "(6) personnel and medical files and similar files the
1360
disclosure of which would constitute a clearly uwarranted invasion of personal
privacy"; and "(7) investigatory files compiled for law enforcement purposes
except to the extent available by law to a party other than an agency."
HELD : Affirmed. The excelsior lists failing to fall within any of the act's
enumei'ated exceptions, and there being no equitable discretion in a district
court to create new exemptions appellees are entitled to disclosure.
Exemption 4 — Obviously, a bare list of names and addresses of employees
which employers are required by law to give the Board, without any express
promise of confidentiality, and which cannot be fairly characterized as "trade
.secrets" or "financial" or "commercial information" is not exempted from dis-
closure by subsection (b) (4) .
Exemption 6 — We find that, although a limited number of employees will suffer
an invasion of privacy in losing their anonymity and in being asked over the
telephone if they would be willing to be interviewed in connection with the voting
study, the loss of privacy resulting from this particular disclosure should be
characterized as relatively minor. Exemption (6) requires a court de novo to
balance the right of the public to be informed ; and the statutory language
"clearly unwarranted" instructs the court to tilt the balance in favor of
disclosure.
Exemption 7 — The excelsior lists are not files prepared primarily or even
secondarily to prosecute law violators, and even if they ever were to be used for
law enforcement purposes, it is impossible to imagine how their disclosure could
prejudice the Government's case in coui't.
Grumman Aircraft Engineering Corp. v. Renegotiation Board, 425 F. 2d 578 (D.C.
Cir. 1970).
This is an appeal to the United States Court of Api>eals from a summary
judgment refusing to order production of documents under the Freedom of
Information Act 5 U.S.C. sec. 552. The issue in the case is the scope of the
statutory exemption for confidential information furnished to a federal ad-
ministrative agency. Appellant, an aerospace contractor, seeks an order com-
pelling the Renegotiation Board to produce (1) the orders and opinions issued
during the years 1962 to 1965, and (2) certain documents relating to Grum-
man's own renegotiations for 1965. The Board contends that the documents
are exempt from disclosure becau.se they contain trade secrets and other confi-
dential information. The U.S. District Court for the District of Columbia granted
the Board's motion for summary judgment, without opinion.
HELD : Reversed and remanded.
5 U.S.C. sec. 552(b)(4) was designed to prevent the unwarranted inva-
sions of personal privacy which might be caused by the Government's indus-
criminate release of confidential information. The statutory history does
not indicate, however, that Congress intended to exempt an entire document
merely because it contained some confidential information (H.R. Rep. No. 1497).
On the contrary, should data which falls within exemption (4) appear in any
board opinion or order, both the Act and the Board's regulations (5 U.S.C. sec.
552(a)(2)) recognize that the interests of confidentiality can be protected by
striking identifying details prior to releasing the document.
Quote from case on intent and scope of the Act
"Congress intended that sec. 522 would make available to the general public
any agency records which would routinely be di.sclosed to a private party through
the discovery process in litigation with the agency."
International Paper Company v. Federal Power Commission, 438 F. 2d 1349 (2d
Cir.1971).
This appeal from a decision of the Federal Power Commission (FPC) claims
that the Commission unlawfully attempted to extend its jurisdiction beyond its
statutory authority ; and that in the performance of its duties, it not only had
violated "the separation of functions" provisions of the Administrative Procedure
Act, 5 U.S.C. sec. 554(d) but also the Freedom of Information Act, 5 U.S.C. sec.
552. Consolidated in the apjieal, is a related court decision from the Southern
District of New York, dismissing the International Paper Company's (Interna-
tional's) separate court action requesting the production of certain Commission
records alleged to have been wrongfully withheld under FIA sec. .5.52(a) (3) which
requires: "(E)ach agency on request for identifiable records made in accordance
with published rules stating the time, place, fees to the extent authorized by
1361
statute, and procedure to be followed shall make the records promptly availal)le
to any person."
International requested in the District Court case that the Commission should
be ordered to disclose all staff memoranda because it claimed the Commission's
action in four other cases favored the legal position taken by International.
The Commission took the position that it had the right to reject this request
pursuant to FIA sec. 552(b)(5), which provides: "This section does not apply
to matters that are — (5) inter-agency or intra -agency memorandums or letters
which would not be available by law to a party other than an agency in litigation
with the agency."
HELD : The Commission's decision and the judgment of the District Court
are affirme<l.
(1) A company which transported its own natural gas. which it had purchased
at proce-ssing plant, through its own pipeline across state lines for its own use,
was engaged in transportation of gas in interstate commerce within the Natural
Gas Act, and was thus properly subject to regulation by the Federal Power
Commission.
(2) The appellants requested discovery must be denied under the fifth excep-
tion of the FIA because it seeks the disclosure of items u.sed in the FPC's deiilier-
ation processes. To allow di.sclo.sure of these documents would interfere with two
important policy considerations on which sec 5i52(b)(5) is based: encouraging
full and candid intra-agency discussion ; and shielding from disclosure the mental
processes of executive and administrative officers.
Irons V. Schuyler, 321 F. Supp. 628 (D.D.C. 1970).
Action to compel patent office to make available "all unpublished manuscript
decisions of the patent office and to require the patent office to maintain and make
available for public inspection and copying a current index of manuscript deci-
sions" citing the authority of the Freedom of Information Act, 5 U.y.C. sec.
5.52(a)(2)(A), 5 U.S.C. sec. .552(a)(3) and 5 U.S.C. sec. .5.52(a)(2).
HELD : Defendant's motion to dismiss granted.
The request in the instant case "for all unpublished manuscript decisions" is
not a reasonable request for identifiable records, but rather a broad, sweeping,
indiscriminate request for production lacking any specificity. It may be true
that some of these opinions could be made available under the provisions of the
Act if a specific request for an identifiable opinion were made, but a request for
all is not specific enough to decide if any particular decision or decisions can
be made available.
Quote from case on intent and scope of the Act
"This court is not required to examine every manuscript decision of the past
100 or more years to decide in each case if thei-e is trade secret or other material
which should be excluded. The legislative history of the Act indicates that it
was not the intent of Congress to add materially to the burden of overworked
courts."
Loi^g V. United States Internal Revenue Service., (AVest Dist. W;ish. ir»71)
No. 9782.
Long filed this complaint pursuant to 5 U.S.C. sec. 552, to compel the production
of all files of the Internal Revenue Service relating to the business activities of
Long and his corporations, and an IRS manual and certain "code books."
Long's sole purpose in seeking IRS files is to obtain under the Freedom of
Information Act. matters relating to current proceedings before the Tax Court.
The IRS filed a motion to dismiss the cause.
HELD :
(1) The defendant's motion is granted with re.«:pect to the request for IRS
files on Long and his affiliated corporations and IRS memoranda and letters.
However, with respect to plaintiff's request to see the manual and code books,
the motion is denied.
(2) Relative to IRS files on Long and the affiliated corporations which he
controls, the statute provides that such "investigatory files" need not be pro-
duced "except to the extent available by law to a party other than an agency".
5 U.S.C, sec. 5-52(b) (7). And as to IRS memoranda and letters, production is not
necessary if they "would not be available by law ..." 5 U.S.C, sec. 552 (It) (5).
76-253— 72— pt. 4 24
1362
(3) The request to see those investigatory liles relating to Long and liis cor-
porate affiliates must be denied for an additional reason. The statute provides
that reiiiiest for information must be "identitiable" 5 I'.S.C. sec. 5.j2(a) (3). Long's
request is much too vague.
( 4 ) If the manual and code books are "instructions to staff that affect a member
of the public" sec. o52(a) (2) (c), and are neither "related solely to the internal
. . . practices of" the IRS (sec. oo^lb) (2) ) nor "intra-agency memorandums"
(.sec. y;j2(b) (o) ), then Long may properly sue to gain acce.ss to them.
Quote from coxe on intent and scope of the Act
". . . The legislative hi.story of this statute indicates that it is not the intent
of the statute to hinder or in any way change the procedures involved in the en-
forcement of any laws including 'tiles prepared in connection with federal gov-
ernment litigation and adjudicative proceedings'."
Miller v. Smith, 292 F. Supp. 55 (S.D.N.Y. 1968).
IMaintiff was charged with negligence in connection with a collision between
two vessels (on one of which plaintiff was acting as pilot) in New York Harbor.
The examiner found that plaintiff" was guilty of negligence and ordered that his
license be suspended for two months. On appeal, the Commandant of the Coast
Guard appointed from his staff three members to hear oral argument for the
plaintiff'. TSvo of the members made and signed a memorandum . . . recom-
mending that the examiner be upheld. The third member made and signed a
memorandum recommending that tlie examiner be reversed. It is these two
memorandums of members of the board which plaintiff demands to see.
HELD :
(1) It seems perfectly clear that the public information section of the Act
does not give plaintiff any right to the memorandums of the board. They are
plainly "intra-agency memorandums" and . . . would not be available in ordinary
litigation.
(2) It would inhibit the free expression and interchange of views within the
commandant's staff if staff memorandiuns were available to the pul)lie.
(3) [The court stated that 5 U.S.C. sec. 552 (b) (5) applied and repeated a state-
ment appearing in part in H.R. No. 1497 (1966) 3 U.S. Cong. & Adm. News, p.
2427) :
"Agency witnesses argued that a full and frank exchange of opinions
would be impossible if all internal communications were made public. They
contended, and with merit, that advice from staff assistants and the ex-
change of ideas among agency personnel would not be completely frank if
they were forced to 'operate in a fishbowl'."
Mink V. EPA 3 ERC 1166 (D.C. Cir. 1971).
This is a suit brought by 33 members of Congress, in both their official and
private capacities, under the Freedom of Information Act, 5 U.S.C. 552 (1970).
to obtain several documents pertaining to an underground nuclear test explosion
which had been scheduled to take place on Amchitka Island, Alaska. The
documents contain information relative to the environmental, national defense,
and foreign relations consequences of the planned test.
As a result of an apparent leakage of certain portions of the report that
suggested some agency disapproval of the test, Representative :Mink asked the
White House for copies of the report. The request was denied and this suit
followed, with 32 other members of Congress joining Representative ]\Iiidv as
plaintiffs. They sought summary judgment to compel disclosure of the requested
documents.
The District Court dismissed the complaint insofar as plaintiffs sought to
maintain their action in their capacity as members of Congress, on the ground
that tliey failed to state a justiciable case by virtue of the Separation of Powers
doctrine. Insofar as plaintiffs proceeded in their private capacity, the District
Court refused to compel disclosure on the grounds that the documents fell within
two of the nine exemptions contained in the FOIA, 5 U.S.C. 552(b) (1) (national
defense and foreign affairs .secrets) and 5 U.S.C. 552(b)(5) (inter-agency
memoranda).
PIELD :
Tlie summary judgment denying all relief to plaintiffs must be reversed, and
the case remanded for further consideration by tlie District Court with respect
to: (a) whether, and to what extent, the file contains documents that are now
13G3
within the umbrella of a secret, file hut which would not have been independently
classified as secret. Such documents are not entitled to the secrecy exemption of
subdivisions (b) (1) solely by virtue of their association with separately classified
documents, (b) similar treatment must be accorded on remand to the Govern-
ment's claim for exemption under subdivision (b)<,'J). It suffices to say that
while the exemption protects the decisional processes of the President, or otlier
policy-making executive officials, it does not prevent the disclosure of factual
information unless it is inextricably intertwined with policymaking processes.
Mo.ss/Rcid/ Fisher v. Laird. (D. D.C. 1971) Civil Action No. VirA-ll.
Two congressmen and the Director of the Freedom of Information Center have
l)rought this action against the Department of Defense and the Secretary seeking
acces to portions of the Pentagon Papers under the Freedom of Information Act.
5 r.S.C. sec. 552.
The government contends that if the papers are disclosed, it could result in
serious damage to the nation by jeopardizing the international relations of the
United States and cause the compromise of intelligence operations vital to the
naional defense and thereby cause exceptionally grave damage to the nation.
There was nothing to suggest that the administrative decision was arbitrary or
capricious.
Plaintiffs nonetheless urge that the court personally review, in camera, the
withheld documents and make its own independent de novo determination.
HELD : Summary judgement granted for defendants.
(1) The Freedom of Information Act exempts from public inspection matters
-specifically required by Executive Order to be kept secret in the interest of the
national defense or foreign policy."
(2) The Act was not designed to open all government files indi.'^criminately to
public inspection. Obviously, documents involving such matters as military plans,
and foreign negotiations are peculiarly the type of documents entitled to
confidentiality.
(3) Under the circumstances here presented, no in camera inspection is
necessary.
Xational Labor Relations Board v. Getman. 404 U.S. 1204. 40 LW 2070 (1071).
Two law professors undertaking a study of labor representation elections,
applied for and obtained an order from the District Court rtniuiring the XI.RB
to provide them with names and addresses of employees eligible to vote in
approximated 35 elections to be designate<l by them. The claim was l)ased on
5 use sec \552(a)(3). The Government filed an application in tlie Supreme
Court for a stav of the order on the gnnind that the order re(iuiring tlie Board
to comply with "the Freetlom of Information Act and deliver the record.s in ques-
tion wou'ld interfere with the representation election procedures under the Na-
tional Labor Relations Act.
HELD: Application denied.
'•The board was created bv Congress and Congress has seen fit to make iden-
tifiable records of the board and other Government agencies available to any
person upon proper request. I find no exception in the Freedom of Information
Act which would authorize the board to refuse promptly to turn over the
requested records." Justice Black.
Polymers, Inc. v. National Labor Relations Board, 414 F. 2d 999 (2d Cir. 1969),
cert. den. 396 U.S. 1010 (1970).
In action involving a petition by an employer to review, and a cros.s-petition
bv the NLRB to enforce, an order of the Board that a union was duly cer-
tified as collective bargaining representative and that the employer's refusal
to bargain with the union constituted an unfair labor practice, one sul)ordinate
question was whether the Board was justified in refusing the company s reiiuest
to inspec-t a Board document entitletl "A Guide to the C(mduct of Elections .
HELD : Under the circumstances of this case the Board was justified in refusing
to produce the Guide.
(1) The Freedom of Information Act requires an agency to make available
"administrative staff manuals and instructions to staff that affect a member
of the public" (5 U.S.C. sec. 552(a) (2) (c) ). However, this provision is .subject
to certain limitations, e.g.. 5 U.S.C. sec. 552(b)(2) excepts from the operation
of the stature matters that are "related solely to the internal personnel rules
1364
anj practices of an agency." The House Report interpreted this exception to
cover oi>erating rules, guidelines and manuals of procedure for government in-
vestigators or examiners.
(2 1 This Guide is said to be an internal advisory document for the use of
Board i)ersonnel and plays no significant role in the Board's adjudication of
election disputes. As such it api>ears to fall within the further exception specified
in 5 U.S.C. sec. 552(b) (5) as an "intra -agency memorandum".
(3) "While the interest of the Board in refusing to produce the Guide is not
clear, its relevance to the instant controversy is even less clear. We do not hold
that under no circumstances would the Board be required to produce the Guide ;
but in the context of the instant case we will not disturb the refusal of the Board
to produce the Guide."
Rcinoehl v. Eershey, 426 F. 2d 815 (9th Cir. 1970) .
Action to have declared invalid a Selective Service System Regulation (32 CFR
sec. 1(500.57). which provides that before indictment or a habeas corpus proceed-
ings, a registrant or his representative may review the file at the draft l)oard
oflice. and receive a copy by paying one dollar p-?r page, or $5.00 per hour for an
employee to monitor the file while the registrant copies the file himself, and to
compel issuance without charge of a copy of the Selective Service file. The district
court dismissed the complaint.
HELD: Affirmed.
31 U.S.C. sec. 4S3a authorizes such a charge and 5 U.S.C. sec. 552 does not
change this result.
Shakespeare Co. v. United States, 389 F. 2d 772 (Ct. CI. 1968), cert. den. 400 U.S.
820 (1970).
In a suit brought by a manufacturer to contest computation of manufacturer's
excise tax, the manufacturer attempted to get copies of all private rulings and
letter rulings issued by the Internal Revenue Service since August, 1954, under
certain provisions of the Internal Revenue Code. On the Government's motion
to quasli, or in the alternative, to modify, the trial commissioner ordered that,
Inter alia, all letter rulings in the precedent file since 1954, classified and digested
under Section 4216(b) (2) of the Code be made available for inspection and copy-
ing. It had been maintained by the Government that it would take ai>i)roximately
2 weeks for a tax law specialist in the Internal Revenue Service to search and
identify the documents in the precedent file. The production of these documents
was the subject of review in the Court of Claims. The plaintiff maintained its
right to the documents by the subpoena and also the Freedom of Information Act.
HELD : Reversed ; Government's motion to quash granted.
(1) A subpoena duces tecum will be granted when a party has sufficiently
identified the documents sought and has shown "good cause" for production. The
rulings here must be identified with sufficient particularity so that their extrac-
tion from the files may reasonably be made by the employee responsible for them.
"In other words, something more than a fishing expedition must be shown."
(2) There is nothing shown in the record here to indicate that the documents
sought are material to the issues.
(3) There is nothing in the Freedom of Information Act which would entitle
this plaintiff to engage in a hunt for something which might aid it in this action.
Even if inspection could be had under the Act. the same rules as to identification
of the particular documents sought should be adhered to.
Skolnick v. Parsons, 397 F. 2d 523 ( 7th Cir. 1968) .
Action under the mandamus provisions of 28 U.S.C. sec. 1361 to compel Presi-
dent's Commission on Law Enforcement and Administration of Justice and one
of its members to release a certain report submitted to them. The Executive
Committee of the District Court dismissed the complaint sua sponte.
HELD : Affirmed.
By virtue of the 1967 Public Information amendment to the Administrative
Procedure Act, the complaint, by interpreting the allegations of suppression of
the report as equivalent to a "request", stated a cause of action justiciable
in the district court. The plaintiff does have standing under this statute because
the records are to be made available "to any person". However, since the Com-
mission terminated before the complaint was filed, the court is without jurisdic-
tion.
1365
Soucic V. Darid, 448 F. 2d 10()7. 2 ERC 1626 (D.C. Cir. li)71).
Action under the Freedom of Information Act to compel the Director of the
Office of Science and Technology (OST) to release to plaintiffs a d(x.'ument,
known as the Garwin Report, which evaluates the Federal Government's program
for development of a supersonic transport aircraft. OST had indicated that it
would not release the Report to members of the public because it was a Presi-
dential document over which the OST had no control and was "in the nature of
inter- and intra-agency memoranda which contained opinions, conclusions and
recommendations prepared for the advice of the President." The District Court
dismissed the complaint stating that the Report is a Presidential document, and
consequently, that the court has neither authority to compel its release nor juris-
diction over a suit to obtain relief. At the hearing the trial judge .stated as the
basis for his ruling that the OST was not an "agency" for the purpos<^s of the
Freedom of Information Act, but rather a part of the Office of the President, and
that the report is protected from compulsory disclosure by the doctrine of execu-
tive privilege.
HELD : Reversed and remanded.
(1) The statutory definition of "agency" is not entirely clear, but the Adminis-
trative Procedure Act apparently confers agency status on any administrative
unit with substantial independent authority in the exercise of specific functions.
By virtue of its independent function of evaluating Federal programs, the OST
must be regarded as an agency subject to the Administrative Procedure Act and
the Freedom of Information Act. Therefore, the report is a record of that
agency.
(2) Congress did not intend to confer on district courts a general power to
deny relief on equitable grounds apart from the exemptions in the Act itself.
However, there may be exceptional circumstances in which a court could fairly
conclude that Congress intended to leave room for the operation of limited
judicial discretion, but there is no such circumstance here.
(3) The exemption protecting inter-agency and intra-agency memorandums
or letters was intended to encourage the free exchange of ideas during the process
of deliberation and policy-making. It has been held to protect internal commu-
nications consisting of ad^-ice. recommendations, opinions, and other material
reflecting deliberative or policy-making processes, but not purely factual or
investigatory reports. "Factual information may be protected only if it is in-
extricably intertwined with policy-making process. Thus, for example, the ex-
emption might include a factual report prepared in response to specific questions
of an executive officer, because its disclosure would expose his deliberative
processes to undtie public scrutiny. But courts must be aware of 'the inevitable
temptation of a government litigant to give [this exemption] an expansive inter-
pretation in relation to the particular records at issue.' "
(4) The exemption protecting trade secrets and commercial or financial in-
formation obtained from a person as privileged or confidential is intended to
encourage individuals to pro\'ide certain kinds of confidential information to the
Government, and it must be read narrowly in accordance with that purpose.
(5) To expedite the proceedings, the district court can most effectively under-
take a determination whether the report is protected by any statutory exemption
by an in camera inspection of same. "Even if the Government asserts that public
disclosure would be harmful to the national defense or foreign policy, i)i camcru
inspe<-tion may be necessary. In stich a case, however, the court need not insp<>ct
the report if the Government describes its relevant features sufficiently to satisfy
the court that the claim of privilege is justified."
Quote from case on intent and scope of the Act
"Congress passed the Freedom of Information Act in response to a persistent
problem of legislators and citizens, the problem of obtaining adequate informa-
tion to evaluate federal programs and formulate wise ])olicies. Congress rec-
ognized that the public cannot make intelligent decisions without such in-
formation, and that governmental institutions become unresponsive to iniblic
needs if knowledge of their activities is denied to the i)eople and their representa-
tives. The touchstone of any proceedings under the Act must be the clear legisla-
tive intent to assure public access to all governmental records whose disclosure
wotild not significantly harm .specific govenmiental interests. The policy of the
Act requires that the disclosure requirement be construed broadly, the exemptions
narrowly.
1366
The public's need for information is especially sjreat in the field of science and
technology, for the growth of specialized scientific knowledge threatens to out-
strip our collective ability to control its effects on our lives."
Sterling Drug Inc. v. Federal Trade Coiumis.sion, 531, ATRR (D-1) (D.C.
Cir. 1971).
Shortly after issuing a complaint charging tliat the acquisition l)y Sterling
Drug of Lehn & Fink violated Section 7 of the Clayton Act, 15 U.S.C. sec. 18
(,1964). the FTC approved without opinion a divestiture plan in another case
calling for the sale of the S.O.S. Company to Miles. In the proceedings before
the Connuission, Sterling has taken the position that the approval of the ^liles-
S.O.S. merger demonstrates that its acquisition of Lehn & Fink did not violate
the Clayton Act. Sterling seeks disclosure of certain documents in order to show
that both mergers involve factors which retpiire application of the same policv
and result. Sterling contends that the documents are subject to disclosure under
tlie Freedom of Information Act, 5 U.S.C. sec. 552. The Commission refused
disclosure on the grounds that the documents fall within the Act's exemptions
for intra-agency memoranda, or confidential financial information.
HELD: Remanded to district coiirt for proceedings consistent with the U.S.
Court of Appeals' opinion.
The court divided the Commission memoranda into three categories stating : (1)
The documents prepared by the Commission staff should not be <lisclosed because
the probable effect of a decision requiring disclosure of the staff memoranda would
thus be to inhibit "a full and frank exchange of oi)inions'' at least in that class?
of cases where opinions are not, and as practical nuitter cannot be, issued. (2)
Since different commissioners may have approved the merger for different
reasons, the two memoranda at issue may provide only the individual Commis-
sioner's reasons for approving the decision, not the reasons of the commission
as a whole. Both memoranda contain comparisons of the Miles-S.O.S. and
Sterling-Lehn & Fink cases, and it may well be that in making their comparison.s
the Commissioners emphasized certain principles underlying the earlier decision
while neglecting others. In sum, it is questionable whether the memoranda pre-
pai-ed by the individual Commisioners accurately reflect the grounds for the
Commissi(m's decision in Miles-S.O.S. (3) The memoranda issued by the Com-
mission should be disclosed. The policy of promoting the free flow of ideas withiu
the agency does not apply here. These are not the ideas and theories which go
into the making of the law, they are the law itself, and as such should be made
available to the public. Thus, to prevent the development of .secret law within
the Commission, we must recpilre it to disclose orders and interpretations which
it actually applies in ca.ses before it. On remand, the District Court judge should
re-examine the memoranda issued by the Conunission to determine whether
they do in fact contain such material. If they do. this material must be made
available to Sterling.
Talbott Construction Co. v. United States, 49 F.R.D. CxS (E.D. Ky. 1909).
In a .suit to recover a tax refund, the plaintiff moved for the production of
certain intra-agency documents of the Internal Revenue Service.
HELD :
"It is clear that if the documents sought by the plaintiff are policy and theory
oriented, they are privileged under 5 U.S.C. 552(b) (5). If they contain factual
(lata they are subject to production. . . . Since the facts upon which the defendant
Itased its decision of not allowing the interest deduction are exclusively in plain-
tiff's control, any difference in opinion would l>e the result of theory or policy
differences. IMaintiff has, therefore, failed to show that the documents are not
privileged under 5 U.S.C. 552(b) (5). If the documents are factual, plaintiff has
failed to show good cause for their production.''
riichinskg v. Selective Service System. 294 F. Supp. S()3 (X.D. 111. 19G9). aff'd
418 F. 2d 155 (7th Cir. 1969).
Action brought in the United States District Court liy a draft counselor under
the Public Information Act against the Illinois State Director of the Selective
Service System to have certain i>ersonnel information as to members of the
Selective Service System and appeal board made available to him. T\\c plaintiff
also desires copies of current Illinois State memoranda on deferments, exemp-
tions, and associated prin-edures.
1367
HELD : As to the State memoranda, the defeiidaiifs motion to dismiss is granted
since the issne was mootetl by the defendant's agreement to iiermit insjiec-
tion and copying provided the plaintiff pay tlie reasonable exi)ense.
In view of the violence that has been directed at I.<K-al Board officers and
members, plaintiff would be entitled to only the names of the local Selective
Service Board officials, but not i>ersonal information in regard t<» snch things as
their home addresses, occupations, i-aces, dates of appointment, military alHlia-
tions. and citizenships, under the Public Information Act : such information being
available only if the local board chairman, after consultation with the persons
involved consents and it is determined that such disclosure woiild not harm the
person and would not be an unwarranted invasion of that i)erson's personal
privacy. However, this aspect of plaintiffs complaint was dismissed because
he had not approitriately exhausted his administrative remedies by re(iuesting
this information from any of the local boards.
Wcllford V. Hardin, 315 F. Supp. 768 (D.D.C. 1970. affd 44 F. 2d 21 (4th
Cir. l'.)71).
Action under the Freedom of Information Act. to enjoin the Secretary of Agri-
culture and other otficials of the Department from withholding certain specified
records from plaintiffs. mend)ers of the i)ul)lic. The records in (luestion are those
maintained by Pesticides Regulation Division of the Agricultural Research
Service, Department of Agriculture (hereafter PRD). Plaintiffs are associated
with the Center for Study of Responsive Law.
PRD's argument that liecause certain information on the documents is
allegedly exempt from public inspection, the entire card is exempt.
HELD : Injunction for plaintiff granted.
(1) It is a violation of the Freedom of Information Act to withhold from the
public the means for requesting an "identifiable record" when those means are
exclusively within the ccmtrol of the agency possessing the sought after records.
(2) It is a violation of the Act to withhold documents on the ground that i)arts
are exempt and parts nonexempt. In that event, "suitable deletions" should be
made so as to bare nonexempt portions of the documents and avoid divulging
exempt material.
Quote from case on intent and scope of the Act
"The Department of Agriculture is admonished that freedom of information i.s
now. by statute, the rule, and secrecy is the exception."
(From Appellate Court) "The Freedom of Information Act was not desigm^d
to increase administrative efficiency, but to guarantee the public's right to know
how the Government is discharging its duty to protect the public interest."'
The Library of Congress — Congressional Research Service
Legislative History of the Public Information Section of the Administrative
Procedure Act — The Freedom of iNFORXtATiON Act (5 U.S.C. Section 552)
(By Daniel Hill Zafren. Legislative Attorney, American Law Division, July 20.
1971)
The Freedom of Information Act. P.L. S9-4S7. SO Stat. 250 (lOfiO. 5 I'.S.C.
section 552 (1970). was signed by President Lyndon B. Johnson on July 4, 1900
and went into effect on July 4. 1907. This is the Federal public records statute
and requires the availability, to any member of the pul)lic. of all of the executive
branch records described in its requirements, except those involving matter.s
which are within nine stated exemptions. At the time of the signing, the President
then stated (in part) :
"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 lie able to pull cnrtains of secrecy around decisions
which can he revealed without injiu-y to the iiublic interest."
This rec(»gnition of the people's right to know what their goverinnent is doing
by having access to government-held information was not new with the enactment
of the Freedom of Information Act. The notion can be traced back to the early
days of our nation. For exami)le. in a letter written l>y James Madison in 1.S22
the following often-cited expression can be fouiul :
1368
"A popular Goveri:nient without popular information, or the means of acquir-
ing it, is but a Prologuo to a Farce or a Tragedy : or, perhaps both. Knowledge
will forever govern ignorance ; And the people who mean to be their own Gov-
ernors, must arm themselves with the power, which knowledge gives." ^
A case has even been made that at the time our Constitution was written the
people's "right to know" was such a fundamental right that it was taken for
granted and not explicitly included therein, and that some express terms in the
Constitution nevertheless can be pointed to as demonstrating an intent to keep
secrecy in government at a minimum and implying a recognition of the people's
right to information about their Government."
The first Congressional attempt to formulate a general statutory plan to aid
in free access occurred in 1946 with the enactment of section three of the Ad-
ministrative Procedure Act.^ It provided :
"Except to the extent that there is involved (1) any function of the United
States requiring secrecy in the public interest or (2) any matter relating solely
to the internal management of an agency —
"(a) Every agency shall separately state and currently puiblish in the
Federal Register (1) descriptions of its central and field organization in-
cluding delegations by the agency of final authority and the established
places at which, and methods whereby, the public may secure information
or make submittals or requests; (2) statements of the general course and
method by which its functions are channeled and determined, including the
nature and requirements of all formal or informal procedures available as
well as forms and insti-uctions as to the scope and content of all papers,
reports, or examinations; and (3) substantive rules adopted as authorized
by law and statements of general policy or interpretations formulated and
adopted by the agency for the guidance of the public, but not rules addressed
to and served upon named persons in accordance with law. No person shall
in any manner be required to resort to organization or procedure not so
IMiblished.
"(b) Every agency shall publish or, in accordance with published rule,
make available to public inspection all final opinions or orders in the ad-
.iudication of cases (except those required for good cause to be held confi-
dential and not cited as precedents) and all rules.
"(c) Save as otherwise required by statute, matters of official record shall
in accordance with published rule be made available to persons properly
and directly concerned except infoi-mation held confidential for good cause
found.
The Congressional intent seems apparent from the report of the House Judi-
ciary Committee :
"The section has been drawn upon the theory that administrative operations
and procedures are public property wliich the general public, rather than a few
specialists or lobbyists, is entitled to know or have ready mean.s of knowing with
definiteness and assurance." ^
The section was to become effective on September 11, 1946. On Jiil.y 15, 1946,
the Department of Justice distributed to all agencies a twelve-page memoran-
dum interpreting this section. In 1947, this memorandum, together with similar
memorandums interpreting other sections of the act, were issued in an Attorney
General's Mamial and declared that the aim of this section was "to assist the
public in dealing with administrative agencies to make their administrative
materials available in precise and current form." ^ Significantly, it noted that
Congress had left up to each agency the decision on what information about the
agency's actions was to be classified as "official records." ®
Soon after the 1946 enactment, it became apparent that, in spite of the clear
intent of the Congress to promote disclosure, some of its provisions were vague
and that it contained disabling loopholes which made the statute, in effect, a
basis for withholding information. Critics pointed to the broad standards of the
section, such as, "[a]ny function . . . requiring secrecy in the public interest,"
1 Lettpr from James Madison to W. T. Barry, Aug. 4, 1S22, in The Complete Madiaon
(Padnvpr etl. l!».".8i at ?.?,7.
- Hennings, .Tr. Conalltutional Law: The People's Right to Know, 4o A. B.A.J. 667 (1959).
3 Junp 11. 1940 ch. ."'.24. Section ?,. 60 Stat. 238.
* H. Rpp. Xo. 7.")2. 79th Cong. 1st Soss. 19S (194.51. See also, S. Rep. No. 7.52, 79th Cong.
1st SPSS. 12 (1945) and 11. R. Rep. No. 1980. 79th Cong.. 2d Sess. il7-lS (1940).
^■Attorney General's Manual on the Administrative Procedure Act (1947) at 17.
0 Id., at 24.
1369
"any matter relating solely to the internal management of an agency" "required
for good cause to be held confidential," "matters of official record," "persons
properly and directly concerned" and "except information held confidential for
good cause found" as leaving the departments and agencies in a position to with-
hold information for any purpose." One commentator has attributed the failure
of the 1946 enactment to two reasons :
"First, the former section three failed to provide a judicial remedy for wrong-
fully withholding information, thus allowing capricious administrative decisions
forbidding disclosure to go unchecked. Second, and more importantly, section
three of the APA imposed several major restrictions on free disclosure. Acting
imder "color of law," an administrator was empowered to withhold information
"requiring secrecy in the public interest ;" when the person seeking disclosure was
not "properly and directly concerned," or where the information was "held con-
fidential for good cause found ;" and when the information sought was related to
the "internal management" of a government agency or department. These four
restrictive and nebulously drafted clauses pi-ovided agencies and departments
with pervasive means of withholding information." *
The Administrative Procedure Act had been in operation less than ten years
when a Hoover Commission task force recommended minor changes in the public
information section. Two bills were introduced in the 84th Congress to carry out
the minimal task force recommendations,® but the bills died without even a
hearing. In the 85th Congress, the first major revision of the public information
provisions was introduced," based on a detailed study by Jacob Scher, North-
western University expert on press law, who was serving as special counsel
to the House Government Information Subcommittee. No action was taken on
these bills, but in 1958 a statute was passed amending the Federal "house-
keeping" statute, which provides that the head of each departnieiir may pn-scribe
regulations not inconsistent with law for governing his department, so as to pro-
vide that the statute does not authorize withholding information or records from
the public." In the 86th and 87th Congresses, a number of versions of these bills
Avere introduced." and although interest was aroused and some hearings held,
none appear to have received serious consideration in either house.
In the 88th Congress, the movement to amend section 8 can be said to have
begun in earnest. On June 4, 1963. two bills were introdu<od in the Senate.
The first of these was S. 1663" which, if it had passed, would have replaced
the entire Administrative Procedure Act. The second bill S. 1666" was identi-
cal to section 3 of S. 1663. and aimed at amending only section 3 of the Act.
The reason for introducing both bills was to focus attention on the need to
make the revision and to expedite action in that regard.^^ Senate hearings were
held on S. 1666 and section 3 of S. 1663 in October. 19(13." To remedy the weak-
ness of existing law. the Senate Report stated the purpose of S. 1666 as : ". . . to
eliminate such phrases, to establish a general philosophy of full agency dis-
closure unless information is exempted under clearly delineated statutory
language and to provide a court procedure by which c'itizens and the press may
'Caron .Tr Federal Procurement and the Freedom of Information Act, 20 Fed. B..T. 271
(1968). Also.see S. Rep. No. 1210. S8th Conp 2d Sess. 10 (lOM). „. ' , r t,
8 Comment, The Freedom of Inform.ation Act: A Critical Review, 38 Geo. Wash. L. Kev.
150 19t— 1.52' (lOfiO)
9S 2.504 S4th Cong.. 1st Sess. (1055) introduced by Senator Wiley, and S. 2341. S4th
Cong'.. 1st Sess. (1955) introduced by Senator McCarthy.
"> H R 7174 85th Cong.. 1st Sess. (1057) Introduced by Representative Moss: S. 2148.
S5th Cong, Is't Sess. (1957) introduced by Senator Hennings : and S. 4004. 85th Cong.. 2d
Sess. (1958) introduced by Senators Ervin and P.iitler.
11 P L S5-(>10 72 Stat 547 (1058), now found at 5 IT.S.C. section ,^01 (10(0).
'= For' example S 186. 8fith Cong.. 1st Sess. (1059) introduced by Senator Hennings
(this bill 'was tlie same as S. 4094. 85th Cong.). S. 1070. SOth Cong.. 1st Sess. (19.59>
introduced bv Senators Ervin and Butler; S. 2780. SOth Cong.. 2d Sess. (1960) introilnced
by Senator Hennings (a revision of S. 186) : S. 1887. S7th Cong.. 1st Sess. (1961) introduced
by Senator Ervin; S. 1567. S7th Cong.. 1st Sess. (1961) introduced by S.-nat..rs Hart.
Long and Proxmire ; S. 1907. 87th Cong.. 1st Sess. (1961) Introducpd by Senator Proxniiro;
S .3410. 87th Cong.. 2d Sess. (1062). introduced by Senators Dirksen and Carroll: and
HR 9026 87th Cong.. 2d Sess. (1962) introduced by Rr>nrescntativo Walter.
"S 166.3 88th Cong., 1st Sess. (106.3) introduced by Senators Dirksen and Long.
"S 1666* 88th Cong. 1st Sess. (1063) introduced by Sf^nator Long and co-sponsored by
Senators Bartlett, Bayh, Boggs, Case, Dirksen, Ervin, Fong, Gruening. Hart. Keating,
Kefauver, Metcalf, Morse, Moss, Nelson Neuberger, Proxmire, Riblcoff, Smathers, Symington,
and Walthers.
1"' 109 Cong Rec. 9958 (106.3) (remarks of Souator Lonir) . . .
^« Henriyifjs on the Administrative Procedure Act Before the Subcommittee on Adminig-
trative Practice and Procedure of the Senate Committee on the Judiciary, SSth Cong., 1st
Sess. (1963).
1370
iht.-iiii inforuiatiuii wnnisfully withheld."" Following the 1963 hearings, se-seral
revision.s were made in S. HHH\. and after additional hearings were condut'ted
in July of 1004.'" the bill underwent further modifications." This revised version
of f>. l<>(i(» was passed by the J^enate on July 28, I'.Hyi,-^' but no action was tal<en
by the Hduse thereon before adjournment. In the SOth Congress, on February
17, ]!)(>."), a further moditied form of S. lOGO was introduced in the .Senate as S.
1100"^ and in the Hou.se of Representatives as H.R. 5012." The House held
liearings on March 30. 31. April 1. 2. and 5. 1965 "^ and the Senate (m May 12.
13. 14, and 15, 1965."' The Senate passed S. 1160, as amended, on Octol)er 13. 1965.'-'
The House of Representatives then passed this bill on June 20, 1966."" The House
Repoi-t on S. 1160 states the purpose of the bill as follows :
Section 3 of the Administrative Procedure Act (5 U.S.C. 1002) recpiires every
executive agency to publish or make available to the public its methods of opera-
tion, public procedures, I'ules, policies, and precedents, and to make available
other "matters of official record" to any person who is properly and directly con-
cerned therewith. These requirements are subject to several broad exceptions
discussed below. The present section 3 is not a general public records law in that
it does not afford to the public at large access to official records generally.
S. 1160 would revise the section to provide a true Federal public records statute
by recpiiring the availability to any member of the puldic, of all of the executive
branch records described in its refpiirements, except those involving matters which
are wirhin nine stated exemptions. It makes the following major changes :
1. It eliminates the "properly and directly concerned" test of who shall have
access to public records, stating that the great majority of records shall be
available to "any person." So that there would be no undue burden on the opera-
tions of Government agencies, reasonable access regulations may be established
and fees for record searches charged as is required by present law.
2. It sets up workable standards for the categories of records which may be
exempt from public disclosure, replacing the vague phrases "good cause found."
"in the public interest," and "internal management" with .specific definitions of
infonnation wliich may be withheld. Some of the specific categories cover infor-
mation neces.sary to protect the national security ; others cover material such
as the Federal Bureau of Investigation files which are not now protected by
law.
3. It gives an aggrieved citizen a remedy by permitting an appeal to a U.S.
district court. The court review procedure would be expected to persuade against
the initial improper withholding and would not add substantially to crowded
court docket-s."'
P.L. 90-23, 81 Stat. 54, was enacted on June 5. 1967 in order to incorporate into
title 5 of the United States Code, without substantive change, the provisions of
P.L. 89-487.^ Technical chaiiges in language were made to conform therewith.
" S. Rep. No. 1219, SSth Cong., 2a Sess. (1904) ; 110 Cong. Rec. 170S9 (1964) (remarks
•of Senator Mansfield) .
^^ Hearings on the Administrative Procedure Act Before the Suhcommittee on Adminis-
trative Practice and Procedure of the Senate Committee on the Judiciary, SSth Cong., 2cl
Sess. (1964).
^' Note, Comments on Proposed Amendments to Section 3 of the Administrative Pro-
cedure Act: The Freedom of Information Bill, 40 Notre Dame L.417, 419 (1963).
2" 110 Cong. Rec. 170S9 (1904).
2' S. 1100. S9th Cong.. 1st Sess. ri90.".) introduced by Senators Long. Anderson, Bartlett,
lia.vh. Boggs. Bnrdick. Case. Dirksen, Ervin, Fong, Hart. Metoalf, Morse, Moss, Nelson,
Neiilierger. Proxmire. Ribicoff Sniathers S.vmington, Tydings. and Yarliorough.
--'H.R. .'')012, S9th Cong., 1st Sess. (196.')) introduced by Representative Mos.s. The follow-
ing identical bills were also Introduced in the House on the same day or earl,y in the session :
H.R. .oOlS. introduced bv Representative Fascell ; H.R. .".014 by Representative Macdonald ;
H.R. .-.Oli) bv Representative Griffin; H.R. .5016 by Representative Reld ; H.R. 5017 by
Representative Rumsfeld; H.R. 501S bv Representative Edmondson ; H.R. 5019 by Rep-
resentative Ashley; H.R. 5020 by Representative McCarthy: H.R. .")021 by Representative
Reid ; H.R. .''>2r^7 "bv Representative Gilibons ; H.R. 5400 by Representative Eeggett : H.R.
5520 bv Representative Schener ; H.R. 55S.'', bv Representative Patten : H.R. 6172 by
Representative Mosher ; II. R. 0739 by Representative Edwards ; H.R. 7010 by Representa-
tive Widnall ; and H.R. 71<'.] bv Kopresentative Erienborn.
-^Hearings on Federal J'liJtlir Records Law Before a Suhcommittee of the House Com-
mittee on Oovernment Operations. SOth Cong., 1st Sess. parts 1 and 2 (1965).
"'^Hearings on Administrative Procedure Act Before the Suhcommittee on Administrative
Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess.
(1965). See S. Rep. No. Sl."^. S9th Cong., 1st Se.ss. (1905).
2'> 111 Cnnjr. Rec. 20S21 (1905).
2« 112 Cong. Rec. I.'IOOI (1900).
=^II.R. Rep. No. 1497. R9th Cong.. 2d Sess. (1966) : 1900 U.S. Code Cong. & Adm. News
241S. 241R-2419. This Report also contains a detailed description of the provisions of
the bill.
-" S. Rep. No. 248. 90th Cong.. 1st Sess. (1967). The complete text of 5 U.S.C. section 552
<1970) is reproduced in the Appendix, infra.
1371
111 June, l!)(;i7. the Attorney (Jcnenil issued a detailed and eimiin-eliensive nienio-
randuin for tlie executive departments and aj^eneies to assist them in fulfillinj?
tlieir obli,i;ation under tlie new Act and to correlate tlie text thereof with its
relevant legislative history.-"^ The Foreword to this document reads, in part, as
follows :
"If government is to be truly of, by, and for the people, the people must know
in detail the activities of government. Nothing so diminishes democracy as
secrecy. Self-government, the maximum participation of the citizenry in affairs
of state, is meaningful only wirli an informed public. How can we govern our-
selves if we know not how we govern V Never was it more important tlian in our
times of mass society, when government alTects each individual in so many ways,
that the right of the people to know the actions of their government be secure.
"Beginning July 4. a most appropriate day. every executive agency, by direction
of the Congress, shall meet in spirit as well a.s practice the obligations of the
I'nblie Information Act of 1!H)G. President Johnson has instructed every official
of the executive branch to cooi>erate fully in achieving the public's right to know.
"rublic Law 89-487 is the product of prolonged deliberation. It reflects the
balancing of competing principles within our democratic order. It is not a mere
recodilication of existing practices in records management and in providing in-
dividual access to Government documents. Nor is it a mere statement of objectives
or an expression of intent.
'•Rather this statute imposes on the executive branch an affirmative obligation
to adopt new standards and practices for publication ;ind availability of infor-
mation. It leaves no doubt that disclosure is a transcendent goal, yielding only
to such compelling considerations as tho.se provided for in the exemptions of
the act.
•'This memorandum is intended to assist every agency to fulfill this obligation,
and to develop common and constructive methods of implementation.
"No review of an area as diver.'^e and intricate as this one can anticipate all
possible points of strain or difficulty. This is particularly true when vital and
deeply held commitments in our democratic system, such as privacy and the right
to know, inevitably impinge one against another. Law is not wholly self-explana-
tory or self-executing. Its efficacy is heavily dependent on the ,^ound judgment
and faithful execution of those who direct and administer our agencies of
Government.
"It is the Pre.sident's conviction, shared by those who participat.ed in its formu-
lation and passage, that this act is not an unreasonable encumbrance. If intelli-
gent and purposeful action is taken, it can serve the highest ideals of a free
society as well as the .goals of a well-adnnnistered goveriunent.
"This law was initiated by Congress and signed by the President with several
key concerns —
that disclosure be the general rvile, not the exception ;
that all individuals have equal rights of access :
that the burden be on the Government to justify the withholding of a
document, not on the person who requests it :
that there be a change in Government policy and attitude."
§ !jr»2. iniblic information ; agency rules, opinions, orders, nn-ords. and
proceedings.
(a) Each agency .shall make available to the public information a.s follows:
(1) Each agency shall separately state and currently publish in the Federal
Register for the guidance of the i)ublic —
f A) descriptions of its central and field organization and the established
places at which, the employ(H>s (and in the case of a uniformtMl service, the
members) from whom, aiid the methods whereby, the public may obtain
information, make submittals or requests, or obtain decisions:
(B) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available:
(C) rules of procedure, descriptions of forms available or the places at
which forms may be obtained, and instructions as to the scoi^e and contents
of all pai>ers, reports, or examinations ;
29Attornov Grnpr.il. TTnitod Statos Department of Jnstifo. Atforne,! General x yp'""-
ratuhim on the Piihlir Information flection of the Adminixtratne Prore>hire Art (.innp l.>fi, ).
KpnrofhifPfl in Appendix E of Foreign Operations and Government Information {iuhrom-
miUee House Committee on Government Operationx. 90th Cong.. 2d Sexx. Freedom of
Information Act (Compilation and Analiisis of Departmental Regulations Implementing
5 U.S.C. 552) 263 (Comm. Print IftGS).
1372
(D) substantive i"u!es of general applicability adopted as authorized by
law, and statements of general policy or interpretations of general appli-
cability formulated and adopted by the agency ; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms
thereof, a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register and not
so published. For the purpose of this paragraph, matter reasonably available to
the class of persons affected thereby is deemed published in the Federal Register
when incorporated by reference therein with the approval of the Director of the
Federal Register.
(2) Each agency, in accordance with published rules, shall make available for
public inspection and copying —
(A) final opinions, including concurring and dissenting opinions, as well
as orders, made in the adjudication of cases ;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register ; and
(C) administrative staff manuals and instructions to staff that affect a
member of the public ;
unless the materials are promptly published and copies offered for sale. To the
extent required to prevent a clearly unwarranted invasion of personal privacy,
an agency may delete identifying details when it makes available or publishes
an opinion, statement of policy, interpretation, or staff manual or instruction.
However, in each case the justification for the deletion shall be explained fully
in writing. Each agency also shall maintain and make available for public in-
spection and copying a current index providing identifying information for the
public as to any matter issued, adopted, or promulgated after July 4. 1967, and
required by this paragraph to be made available or published. A final order,
opinion, statement of policy, interpretation, or staff manual or instruction that
affects a member of the pul)lic may be relied on, used, or cited as precedent by
an agency against a party other than an agency only if —
(i) it has been indexed and either made available or published as provided
by this paragraph ; or
(ii) the party has actual and timely notice of the terms thereof.
(3) Except with respect to the records made available under paragraphs (1)
and (2) of this subsection, each agency, on request for identifiable records made
in accordance with published rules stating the time, place, fees to the extent
authorized by statute, and procedure to be followed, shall make the records
promptly available to any person. On complaint, the district court of the United
States in the district in which the complainant resides, or has his principal place
of business, or in which the agency records are situated, has jurisdiction to enjoin
the agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant. In such a case the
court shall determine the matter de novo and the burden is on the agency to sus-
tain its action. In the event of noncompliance with the order of the court, the dis-
trict court may punish for contempt the responsible employee, and in the case of a
uniformed service, the responsible member. Except as to causes the court con-
siders of greater importance, proceedings before the district court, as authorized
by this paragraph, take precedence on the docket over all other causes and shall
be assigned for hearing and trial at the earliest practicable date and expedited
in every way.
(4) Each aegncy having more than one member shall maintain and make avail-
able for public inspection a record of the final votes of each member in every
agency proceeding.
(b) This section does not apply to matters that are —
(1) specifically required by Executive order to be kept secret in the
Interest of the national defense or foreign policy :
(2) related solely to the internal personnel rules and practices of an
agency ;
(3) specifically exempted from disclosure by statute ;
(4) trade secrets and commercial or financial information obtained from
a person and privileged or confidential ;
(5) inter-agency or intra-agency memorandum or letters which would not
be available by law to a party other than an agency in litigation with the
agency ;
1373
(6) personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy ;
(7) investigatory files compiled for law enforcement purposes except to
the extent available by law to a party other than an agency ;
(8) contained in or related to examination, operating, or condition re-
ports prepared by, on l)ehalf of. or for the use of an agency responsible for
the regulation or supervision of financial institutions ; or
(9) geological and geophysical information and data, including maps,
concerning wells.
(e) This article does not authorize withholding of information or limit the
availability of records to the public, except as specifically stated in this section.
This section is not authority to withhold information from Congress. (Pub. L.
89-554, Sept. 6, 1966, 80 Stat. 363 ; Pub. L. 90-23, § 1, June 5, 1967, 81 Stat. 54. )
Mr. MooRHEAD. I want to thank each and every one of you for help-
ing the subcommittee. We look forward to cooperating with you to try
to make this act more effective and generally educate the executive
branch that when the Congress passed the law, we meant what we said.
We have got to inform people of the assistance the law can provide in
obtaining Government information. I think it can be of help.
The subcommittee will meet next Monday, March 20, at 10 a.m. in
room 2154, when we will hear testimony from a panel of lawyers who
have handled freedom of information cases m the courts.
The subcommittee now stands adjourned.
(Whereupon, at 1 p.m., the subcommittee adjourned, to reconvene at
10 a.m., Monday, March 20, 1972.)
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