FREEDOM OF INFORMATION HON. JOHN E. MOSS OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES MONDAY, APRIL 30, 1973

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000500120002-6
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• Document Creation Date: December 9, 2016
• Document Release Date: August 16, 2001
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• Publication Date: April 30, 1973
• Content Type: OPEN

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EXCERPT FROM JOURNAL
OFFICE OF LEGISLATIVE COUNSEL
1 6 MAR 1973
13. (Internal Use Only - LLM) Called Bill White, Legislative
Reference Service, Office of Management and B t, and learned that they
had not undertaken any action on H. R. 4960 or S. 114 , pertaining to freedom
of information. I told White that we were quite concerned with the ramifi-
cations of the legislation and he promised to keep our interests in mind.
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cropping in the Atlantic, halfway between
the main island of Puerto Rico and the Vir-
gin Islands. Less than three by seven miles,
this municipality of Puerto Rico is blessed
with perfect weather, abundant wildlife, and
pink and white sand. Over the last thousand
years, currents and geography conspired to
produce some of the finest coral formations
in the entire world just off Culebra's coast.
Culebra's northwest peninsula serves as
the target for offshore naval shelling; keys
off Culebra's west coast are bombarded in
air-to-ground operations. Two towns, Dewey
and Clark, are within two to three miles of
the targets. Some families live even closer.
The Navy asserts it protects Culebra's en-
vironment because its maneuvers keep man's
despoilment to a minimum. Oulebrans don't
accept the premise that continuous bombing
and shelling is a necessary price of preserva-
tion, and they challenge the Navy's record as
protector.
Approaching Culebra by plane, one is
struck by its beauty. Blue-green waters
spread from shore. Dark swathes cut through
a remarkably transparent sea, signaling
enormous beds of coral below. Lagoons and
lush green mountains, dotted with thous?t,nds
of soaring birds, complete the picture ?ran
idyllic natural wonderland. But as the plane
circles closer, the Navy's contribution come?
into view. Amid nesting sooty terns and some
rare and endangered species of birds, includ-
ing the nearly extinct Bahamian pintail, lie
target tanks and ga,ping craters?the pock-
marked scars of naval shelling.
Culebrans experience constant anxiety. The
Navy boasts of its safety record: Only one
civilian killed, another child disfigured while
playing with a dud, and nine Navy personnel
killed when their observation post on Cule-
bra was mistaken for the target. But, sporadi-
cally, shells have landed throughout the
community. One hit a cistern less than 50
yards from the Town Hall in Dewey. A De-
fense Department report concluded that the
gross error rate at Culebra is "unduly high
. . . where there are nonparticipants within
the weapons' delivery range." The Navy officer
in charge of World War H training at Cule-
bra observed: "It is a miracle that more Cule-
brans have not been killed."
Besides posing a continuing threat to an
entire community, Navy shelling and bomb-
ing destroyed irreplaceable coral and fish, as
well as birds in great numbers. Even though
President Theodore Roosevelt set aside Cu-
lebra's keys as a National Fish and Wildlife
Refuge in 1909, he authorized the use of these
Islands for "naval . . . purposes."
Surrounding Culebra are some of the oldest
living corals in the world, still in a state of
climatic growth. They are breathtaking, as
the rich marine life they nurture. Nay&
training has taken its toll on both.
Culebra suffered an ecological disasyr in
1970. The Navy, carrying out orders o rid
Culebran waters of more than 30 fears of
accumulated duds, stacked all shel1 it could
find on one of the most magni cent coral
reefs in the entire Caribbean an then began
detonating this ordnance.
After several smaller exp sions destroyed
considerable coral and m sacred thousands
of fish, angy Culebrans c mplained to Rafael
Hernandez Colon, theiyEenate President and
now Governor of Ftierto Rico. He secured
local counsel who, dient to federal court in
San Juan on behalf of the Calebrans, seeking
a temporary restraining order pending com-
pletion of ai environmental-impact state-
ment by the Navy as required by the Na-
tional Enyfronmental Policy Act,
When Hie matter came before Federal
Judgeliram Cancio on bec. 7, 1970, the U.S.
attorn y representing the Navy persuaded
the Judge that his client would not conduct
further explosions pending full review by the
court and, consequently, that there was no
immediate threat of irreparable harm.
At the very moment the Navy's counsel
was giving these assurances?and unknown
to him?a Navy demolition team pulled the
pin for another ordnance-removal operation
on Culebra's coral. When the Judge learned
of the explosions, he immediately issued a
temporary restraining order. For Culebra it
was unfortunately late. A Navy study con-
ceded that this explosion "left a crater 15
feet deep and 100 feet in diameter."
ALTERNATIVES STUDIED
In October, 1970, President Nixon signed
a law directing the Secretary of Defense to
study all possible training alternatives to
Culebra. Three months later, Navy Secretary
John Chafes signed a "peace treaty" agree-
ing to reduce activities on Culebra and to
seek an alternative site.
When the congressionally directed study
was published in April, 1971, showing that
Culebra could be replaced, Secretary of De-
fense Melvin R. Laird promised the Puerto
Ricans that he would transfer all Navy oper-
ations away from Culebra by no later than
June, 1975. Pending release of a second con-
gressionally mandated study that sought
more detailed information on alternatives
to Culebra, Secretary Laird reaffirmed h
commitment in a Nov. 4, 1972, telegram
then Governor Luis Ferre. This was de
public in Puerto Rico.
But on Dec. 27, 1971, Mr. Laird aruptly
reversed himself and announced tat Navy
shqing at Culebra would cont' e indefi-
ni ly and at least until 1985. He laimed his
reversal was based on a secret /Navy study.
SUITABLE SITES FOU
At the time it was assumed hat this study
found 11.0 suitable alternative to Culebra and
that this information came to the Secretary
after his 'November telegiam to the Gover-
nor. When? this study ,'as declassified last
month, hoWever, Culebrans learned it con-
cluded that a number of uninhabited island
alternatives Were "suitable for conduct of
all of the reqnire,d types of naval gunfire
and aircraft-weeptms exercises," and that at
least one uninlAbited site was admittedly
superior to Cniebra for Navy training. The
study was dated Odt. 16, 1972?several weeks
before Mr. Laird reaffirmed his commitment
to terminate Navy shelling at Culebra.
The Ctilebrans and 'Puerto Rico returned
to Congress in their pul.suit of the promised
peace.iten. Howard H. Baker Jr. (R) of Ten-
nerzt and Hubert H. Hunaphrey (D) of Min-
ne ta introduced S. 156, to terminate
air Navy operations at Culebra by no later
than July 1, 1975, by ending`Navy funds for
/such operations beyond this".clate. Thirty-
three Senators now cosponsor'. S. 156. And
during his confirmation hearinlKs, the new
Secretary of Defense, Elliot L. te.kchardson,
agreed to review Mr. Laird's reverse ,
DETERMINATION VOICED
All four men elected Governor of 'puerto
Rico throughout its history, representing
three political parties, and the Mayor of
Culebra, strongly endorsed S. 156. Shortly be-
fore taking office, Puerto Rico's newly elected
Governor, Rafael Hernandez Colon, reacted
to Secretary Laird's reversal with unbowed
determination:
"So now it is up to the United States Con-
gress to make a decision. My intention and
that of the people of Puerto Rico is to stop
the Navy from its arbitrary use of Culebra
as a target-practice range. We'll persist in
that position."
Culebra and all Puerto Rico continue to
hope that Congress or Secretary Richardson
or President Nixon will make good on the
promise of the United States Government to
end the shelling, but the legislative and po-
litical process is slow. In the meantime,
shells and bombs continue to fall on Culebra.
DEDICATION TO MAYOR BRADLEY
D. NASH
HON. GILBERT GUDE
OF MARYLAND
IN THE HOUSE OF REPRESENTATIVES
Monday, April 30, 1973
Mr. G'UDE. Mr. Speaker, on April 14,
1973, the people of Harpers Ferry, W. Va.,
gathered to honor their mayor, Bradley
D. Nash. A newly constructed flagpole
with the America flag waving at its mast
was dedicated to e mayor in recognition
of the devote service he has given the
people of Ha ers Ferry.
I was ho red to have the opportunity
to share
this ceremony at Harpers
Ferry, *where history, mountains and
rive flow together in majestic beauty.
A I would like to call the attention of
y colleagues to the generous gift Mayor
Nash made to the National Park Service
and to the people of America. Mayor
Nash donated funds for the Park Service
to sponsor an annual conference on the
environment to be held at Harpers Ferry.
Truly, Mayor Nash's gift is a reflection
of his public awareness and service.
Mr. Speaker, I would .like at this time
to insert into the RECORD the comments
made by the distinguished senior Senator
from West Virginia, annings*Randolph,
at the dedication ceremony:
REMARKS BY SENATOR JENNINGS RANDOLPH
(D.-W. VA.) , CHAIRMAN OF THE COMMITTEE
ON PUBLIC WORKS, U.S. SENATE, AT THE
DEDICATION OF A FLAG STAFF IN HONOR OF
MAYOR BRADLEY D. NASH AT HARPERS FERRY,
W. VA., AT 1100 A.M., ON SATURDAY,
APRIL 14, 1973
The invitation for me to participate in the
ceremony today was a welcome one for sev-
eral reasons. It is a Joy to return to our State,
as spring skips across our mountain tops. As
Helen Marshall said in a verse entitled.
"April", 'There is a feeling of promise in the
Air."
In this instance, I am doubly pleased to be
present because of my love for Harpers Ferry
and the work that goes forward here.
A positive force in the development of this
unique community is the man we honor to-
day. I have known Bradley Nash for a long
time. He is not only the chief elected official
in Harpers Ferry, but he is a leader to whom
people look with confidence.
Bradley combines the traits of intelligence,
enthusiasm, energy and vision. Harpers Ferry
has many historical and scenic assets to rec-
ommend it, but one of its greatest assets
must surely be his Honor the Mayor, and the
other good people who work together to
strengthen this favored land.
My personal association with Harpers Ferry
goes back many years. I am gratified to have
been able to help in securing the recognition
of the Federal government of its prominence
as a historical site.
The history of Harpers Ferry goes deep into
onr Nation's past. Thomas Jefferson, the chief
author of our Declaration of Independence,
came here. George Washington, first President
of (Dui country, came here. General Robert E.
Lee calpe here. Abraham Lincoln came here.
I pause; as I feel we can almost hear their
footsteps.
Harpers Ferry shared a vital role in the de-
velopment of the United States, first as a
frontier outpost and later as an important
point on the trail west. Harpers Ferry is also
remembered for the events that occurred
here Just over a century ago when social and
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CONGRESSIONAL RECORD --Extensions of Remarks April :10, 1973
political questions of that crucial time were
focused in tails community by John Brewn.
Many of tae dilemmas faced not only then
but now can be more fully understood, if not
solved, by a study of the history of this aim
There is, therefore, a historical heritage
here, a heritage that we l'ecognized must be
preserved as an important part of the Ameri-
can past. Harpers Ferry not only has much
-le tell about the maturation of the Ameri-
can nation, but from it we may partly learn
how to cope with contemporary problems.
We owe much to the people within ehe
National Park Service for the skillful, ser si-
tive and enthusiastic masaner in which they
have approached the preservation of Harpers
Ferry.
But Harpers Ferry is not an isolaeed
memorial to the events that took place here
in the past regardless cf the impact they
had on the course of history. Harpers Ferry
today is a living park. It is a historical com-
munity but It is one in which people live
and labor in the 20th Century. It is also a
training center for the National Park Service
personnel who go from here to many parts
of the country. Harpers Ferry also is cen-
trally located in an area of great histcrie
significance and scenic beauty. To the south
and to the West, in our State, are two of our
great national forests. There are also numer-
ous other areas which have played roles in
the development of our country.
Abraham Lincoln said, "we cannot escape
history." Fortunately, Harpers Ferry does not
desire to es iape its past. That past is the
basis for the future of this community; a
future dedicated not min, to teaching our
American heritage, but to providing a place
for America is to escape from the routines
of every-day life.
Hundreds of thousands of work-weary
people will exchange at Harpers Ferry tins
3 ear, their ,tedious tasks for an exhilarating
visit here te refresh their physical bodies
and renew lagging Spirits. Following their
sojourn hese, they will return to their
homes, a hoet of happy travelers with minds
and souls restored.
With the support of the National Park
Service and with the leadership of citizens
like Bradley Nash, we are assured that
Harpers Fen,- has a future filled, with not
only promise, but the realization of a better
ELIMINATING POVERTY BY
REDEFINI flON
HON. CHARLES B. RANGEL
OF NEW PORK
IN THE HOUSE OF REPRESENTATIVES
Monday, April 30, 1973
Mr. RANGFai. Mr. Speaker, the Nixon
administra Lion is presently involved in
an effort 10 eliminate poverty, not by
attacking its root causes, but by merely
changing its definition.
Apparently, the present definition of
what constrtutes poverty will be modified
by including in a faintly's total annual
income all the noncash benefits they
receive, such as food stamps, medicaid,
and so forth.
By doing this, millions of people will
suddenly te pushed above the income
level now t.sed to define poverty--$4,137
a year fpr it family of four.
The advantages that would be gained
from this :oocedure are fairly obvio.us.
The Nixon administration would like to
be able to produce figures that demon-
strate that the number of poor peopl
in this country has dropped to a recor
low during the last 4 years.
The fallacy involved in defining
poverty in this manner is pointed out in
the following editorial that appeared in
the Washington Evening Star. If non-
cash income is going to be counted as in-
come for lower income Americans, then
inshould also be counted for middle- and
upr er-class Americans as well. If this was
done, the administration would find the
res-nits to be quite embarrassing.
Poverty cannot be eliminated by redef-
inition?it can only be hidden by statis-
ticE to serve the interests of the Nixon
adt Ministration.
1 'he editorial follows:
JUGGLING POVEETt FIGURES
The federal definition of poverty, and the
dollar statistics accompanying that defini-
te:to, have never really been satisfactory. For
one thing, they depend en rather arbitrary
lines of deinarcanion. Today's official pov-
erty definition applies to a family of four,
not living on a farm, wiih an annual cash
income of less than $4,137. It invites the
question: Is the family with a $4,138 income
not poor?
More is Involved that than. As the Sixties
progressed with sustained prosperity, the
number of people classed as in poverty de-
clined substanttally, from nearly 40 million
to 1.5 million. The decline might have been
more dramatic, because the Sixties also saw
the creation of a maze of federal subsidies
for the poor, from food stamps and medicaid
to manpower training and housing assist-
ance. But these are non-cash subsidies, the
Census Bureau only counts cash income in
add .ng up the poor.
N 3W the word is out that the Nixon ad-
ministration, through an interagency team,
is quietly examining ways to recompute the
ince me figures used to define poverty. No
douet the recomputations will include non-
casl income, vrita the result that several
million more people will magically disappear
from the poverty category.
Besides making everybody feel good at the
White House, this analytical departure makes
a certain amount of sense. As shown by a re-
cent Congressional study of welfare dis-
parities, there are plenty ,ef families getting
abont $3,000 in cash each year and the equiv-
alert of several thousand dollars more in
multiple non-cash benefli :3. It seems strange
to count these families as poor while exempt-
ing a $4,500 a year family that doesn't qaul-
ify or other programs.
Bit there is another side to all this. As
pointed out by Mollie Orshansky, HEW s re-
douetable expert on the statistics of pov-
erty, we have a huge riddle and upper-
middle class in this country, many of whom
benefit enormously from non-cash income.
Stait with the expense account. Move on to
company-paid health insurance, pension
premiums, vacaticns and continuing-educa-
tion plans. And then to ccinmodity discounts
marl. employees enjOy, and all the on-base
privileges and subsidies handed to the mili-
tary.
To be consistent, the Census Bureau would
have to count non-cash income for all Amer-
tears. If it were ever done, it might well
show an even wider gap than now appears to
exist between America's high, middle and
low-income groups. And that wouldn't make
the White House happy at all.
FREEDOM OF INFORMATION
HON. JOHN E. MOSS
OF CALIFOR NIA
THE HOUSE OF REPRESENTATIVES
Monday, April 30, 1973
Mr. MOSS. Mr. Spes cer, on April 12,
our colleague the gentleman from Penn-
sylvania (Mr. MOORHEAD) testified before
a joint hearing by three Senate subcom-
mittees on needed amendments to the
Freedom of information Act.
I commend the remarks to all Mem-
bers of the House of Representatives
and urge that they give unanimous sup-
port to this effort to irnpg?ove one of the
most important laws of thi United States.
The text of the testimony follows:
FREEDOM OF INEDR MAT/ON
(Statement of the Hon. Weal .am S. Moorhead,
Chairman, Foreign Operations and Govern-
ment Information Subcernmittee of the
House of Representatives Before the Sub-
committee of Adrninistrae ive Practice and
Procedure of the Senate committee on the
Judiciary Jointly with the Subcommittee
on Separation of Powers of the Senate
Committee on the Judiciary and the Sub-
committee on Intergovero nental Relations
of the Senate Committee on Government
Operations in support ei 3. 1142 and 11.R.
5425 to Amend the Free-nom of Information
Act)
Mr. Chairman, I greatly appreciate the op-
portunity to testify at this joint meeting of
these important subcommittees today on a
subject which is central to the basic concept
of democracy. At no time in recent years has
the problem of government secrecy so per-
vaded our political process. the tug-and-pull
between the Executive and Legislative
branches which is built into our system serves
a useful function if normal checks and bal-
ances are operational and unirapaired.
No matter what political party is in con-
trol, the free flow of information necessary
in a democratic society is not an issue of po-
litical partisanship. Administrations have
historically abused their rower to control
public and Congressional access to the facts
of government. Administrations of both
parties have claimed some form of an "execu-
tive privilege" to hide information. The con-
flict Is not on partisan political grounds but
on Constitutional grounds between the leg-
islative and executive branches of govern-
znent. An indication of ale is the fact that
eight Republican members of our committee
have cosponsored legislation to limit or re-
strict the use of "executive privilege."
But this administration ;las reversed the
trend away from the most. blatant abuses of
-executive privilege". This administration
has turned our system of government back-
ward, back down the path which leads to
an all powerful political leader?call him
president, dictator or king?who arrogates
unto himself the right to know and against
the elected representatives of the people
whether in a Parliament or a Congress.
A recent Congressional Research Service
study made for the House Foreign Operations
and Government Information Subcommittee
points out that the growth -of the claim of
"executive privilege" to hale the facts of
government really began In 1954 during the
Eisenhower Administratlo I I would like to
submit a copy of this study for your record.
Congressman John' E. nless, the former
chairman of my subcommittee, was respon-
sible for convincing three presidents to limtit
the use of "executive privileee" to a personal
claim of power, and the claim was used
sparingly against the Congress by Presidents
Kennedy and Johnson.
The CRS study reveals thr.t President Nix-
on has, thus far, set an all-time recoad
in utilizing the dubious doctrine of "ex-
ecutive privilege". It also shows that, deapite
his written assurance to our subcommittee
Its April, 1969 that he would adopt the same
Kennedy-Johnson grounclro ieS limiting its
use, such rules have been violated by Ad-
ministration subordinates a. least 15 times.
I have always felt that, while the Execu-
tive has no inherent right to withhold any-
thing from the Congress. a spirit of comity
and recognition of the need for certain con-
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fidences and privacy between the branches
has led the Congress to recognize privileged
communications between the President and
his closest advisors. This is the way it should
be but only if this spirit of cooperation is
not abused by either branch.
Unfortunately, the present Administration
has built a stone wall between itself and
. the Congress. This wall, much like the one
in Berlin, has grown stone by stone until
on March 12, 1973, Mr. Nixon capped it off
with an amazing "blanket privilege" proc-
lamation, extending to the entire Executive
branch. As I understand the new _theory, it
applies to all past, present, and future White
House aides who might be summoned to
testify before Congressional committees.
Thus, if a President wanted to keep secret
the number of roses in the White House
garden in the interests of national security,
under the Nixon claim, he could invoke the
privilege on behalf of his close "personal
advisor", the White House gardener, and,
according to a Justice Department witness
before my subcommittee, this decision would
not be subject to review by Congress or
court. Such White House policies and claims
are as ridiculous as their claims that "Execu-
tive privilege" is an historical doctrine that
dates back 200 years.
Mr. Chairman, before turning to a dis-
cussion of freedom of information matters,
I must comment on the amazingly arrogant
performance by the Attorney General before
this panel on Tuesday and on his exposition
of the Administration's doctrine of the "di-
vine right" of the Presidency. I submit that
this is a doctrine of monarchial origin at
best, or at worst, a totalitarian dogma
espoused by "banana-Republic" dictator-
ships.
Our system of govern:ment places the ulti-
mate power in the hands of the people. Con-
gress is the people's representative in the
exercise of that power for the public good.
All of us have been elected by our constitu-
encies and have taken an oath to carry out
that solemn obligation. Unless they have
changed the law school curriculum since my
day, ours is still a government of laws, not
men. I never thought the day would come
when any Attorney General of the United
States could have the audacity to proclaim
that, in effect, Congress had no power to
order any employee of the Executive branch
to appear and testify before Congress if the
President?in his almighty wisdom?barred
such testimony.
Only two persons?the President and Vice
President?of the millions who make up the
vast bureaucracy of the Executive branch of
our govermnent are elected by the people of
the United States. At that, they are elected
indirectly through the Electoral College sys-
tem and only once every four years. All
'other Executive branch officials are appoint-
lye?the result of Congressional action in
the establishment and funding of Federal
programs which they administer. This in-
cludes the countless number of faceless,
politically-appointed bureaucrats as well as
the faceless civil servants who exercise life-
and-death power in administering Federal
programs under authority delegated to the
Executive by the Congress. They have al-
ways been and must always be responsible
to Congress because they are the creatures
of Congress?not the Executive. They are the
servants of the people and the people's Rep-
resentative?not their masters.
The Attorney General was the Administra-
tion spokesman chosen to assert the "di-
vine right" of the Presidency. As we all
recall, it was not too many months ago that
many in this body raised serious questions
during the hearings on his nomination con-
cerning his qualifications for the office. It is
ironic, in view of the sweeping claims he has
enunciated here, that it was only after the
President "permitted" his assistant, Mr. Peter
Flanigan, to appear before the Judiciary
Committee to discuss the Administration's
handling of the rrr anti-trust case that the
log-jam was broken and the Attorney Gen-
eral's nomination was finally cleared for floor
action. If the "divine right" doctrine had
been in effect last year, it might be that
someone else might be warming the seat of
the Attorney General's chair today.
As the chairman of an investigating sub-
committee of the House Government Opera-
tions Committee, I submit that it is abso-
lutely essential for the Congress to have full
access to all information and all Executive
branch employees if we are to be able to per-
form our vital role as a "watch-dog" (with
teeth) to make certain that the Representa-
tives of the people are able to carry out our
oversight duties as well as to perform our
legislative functions required under the Con-
stitution.
While the thrust of these hearings is the
right of Congress to receive information from
the Executive, I am most pleased that this
panel is also considering the public's "right
to know" what its government is doing. In
this regard, I wish to now turn to a discus-
sion of S. 1142 and H.R. 5425, amendments
to the Freedom of Information Act, which
I have sponsored in the House with some 42
other Members of both parties and which the
chairmen of these three Senate subcommit-
tees and other distinguished Senators are
sponsoring over here.
Just above seven years ago, the Congress
passed the Freedom of Information Act. In
many ways this is an historic piece of legis-
lation, because for the first time it was legally
recognized that Government information is
public information available to everybody
without the need to show a special interest
or need to know. This was a unique legis-
lative proposition which, as far as I know,
is not yet recognized anywhere else in the
Western world. It is my understanding that
Canada, Australia, and some Western Euro-
pean countries are now closely studying our
Freedom of Information Act.
While the Freedom of Information Act
presumed the public availability of all gov-
ernment information, it also recognized that
some information must necessarily be with-
held from the general public because its re-
lease could truly damage the national
defense or foreign policy, or because release
of the information could compromise indi-
vidual privacy, abridge a property right, in-
hibit a law enforcement investigation, or
seriously impede the orderly functioning of
a government agency. In order to provide
the fullest possible access to public records,
however, the Congress clearly put the burden
on the government to prove the necessity
for withholding a document and clearly in-
dicated that an exemption from public
release of a document was permissive and
not mandatory.
Some five years after the effective date of
this act, the House Foreign Operations and
Government Information Subcommittee held
comprehensive investigatory hearings on the
administration of the Freedom of Informa-
tion Act. Our fourteen days of hearings and
other investigative work showed conclusively
that the administration of the Freedom of
Information Act by the Executive branch
fell seriously below the standard expected
by the public and the Congress. The major
problem areas fell into the following cate-
gories:
(1) the Executives's refusal to supply in-
formation by use of the exemptions in the
Act was the rule rather than the exception;
(2) long delays in responding to requests
often made the information useless once
provided;
(3) delaying tactics during litigation ex-
tended both the time and the costs to the
individual citizen beyond reason; and
(4) lack of technical compliance with the
requirements of the Act, as interpreted by
the agency, often led to a refusal to supply
requested information.
In sum, Mr. Chairman, the Congress man-
dated that the Government supply all re-
quested information to the public except
within certain limited areas of permissive
exemption. The Executive branch has gen-
erally rejected this basic mandate and, in-
stead, has relied in large part on bureaucra-
tic subterfuge to defeat the purposes of the
Act.
I should state, however, that the picture is
not all black, The Government Operations
report of last September (H. Rept. 92-1419),
based on our hearings, recommended a num-
ber of remedial administrative reforms. I am
pleased to note that many agencies have al-
ready adopted some of them. However, ad-
ministrative reforms within the agencies are
not enough. Experience with the Freedom of
Information Act shows the need for substan-
tive amendments to the Act itself to
strengthen and clarify its provisions. They
are contained in the legislation now before
the subcommittee.
SECTION-BY-SECTION ANALYSIS OF S. 1142 AND
H.R. 5425
Mr. Chairman, let me now turn to a dis-
cussion of the major provisions of this meas-
ure?S. 1142 and H.R. 5425.
Section 1 (a) provides that agencies must
take the affirmative action of publishing and
distributing their opinions made in the ad-
judication of cases, their policy statements
and interpretations adopted, and the admin-
istrative staff manuals and instructions
which are available to the public. The pres-
ent requirement that this information be
made available for inspection and copying
has not been adequate inducement to most
agencies to actually make this information
available in useful form.
Section 1(b) provides that agencies will
be required to respond to requests for rec-
ords which "reasonably describes such rec-
ords." This substitutes for the present term
"Identifiable records" which some agencies
have interpreted as requiring specific iden-
tification by title or file number?generally
unavailable to the person making the re-
quest. I feel that any request describing the
material in a manner that a government
official familiar with the area could under-
stand is sufficient criteria for identification
purposes.
Section 1(c) provides for a specific time
period for agency action on freedom of in-
formation requests, The present act con-
tains no such time limits for the government
to respond, The hearings showed that many
requests went unanswered for periods of
thirty days to six months. This new section
will require the agency to respond to orig-
inal requests within 10 working days and ap-
peals of denials within 20 working days.
These time periods are based on portions of
Recommendation No. 24, issued by the Ad-
ministrative Conference of the United States
after a study of the Act in 1971. Under our
proposed new section the agency is not re-
quired to actually forward the information
within the ten-day period, for we recognize
that in many cases the requested informa-
tion may legitimately take more time to ob-
tain from regional offices. However, the
agency will be required to respond within
ten days?either by making the information
available or indicating whether or not the
information will be made available as of a
certain date; if the determination is that it
cannot be provided, the agency response
must state the specific reasons. Adminis-
trative appeals must be acted upon within
the twenty-day limit. Two agencies, the De-
partments of Health, Education, and Welfare
and Justice, have already amended their
regulations to require responses within the
ten-day period, as recommended. I feel that
other agencies will not be burdened by such
a statutory requirement.
Section 1 (d) clarifies the present require-
ment that the District courts examine con-
tested information de novo, by requiring that
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in at/ case's the de novo examination include
an examination of the content of the records
in camera to determine if the records must
be withheld under the exemption or exemp-
tions claimed by the agency. A second re-
quirement specifically directed to the pres-
ent sectien 552 (b) (1) of the Act directs the
courts to look into the contents of docu-
ments considered exempt for reasons of na-
tional derense or foreign policy in order to
determine if the contested documents
eshould, I.n fact, be withheld under this
exemption. This new section is made neces-
sary by the Supreme Court decision in EPA
v. Mink (410 U.S. decided on Janu-
ary 22, 1973. In this case the Court held
that judges may not examine in camera
classified documents and thus exempt under
section 552 (b) (1) and need not, at their
discretion, examine the contents of docu-
ments cis-lined exempt under section 552
(b)(5)?
The import of this decision is to allow
the government to claim, merely by affidavit,
that certain material is exempt from the
public. This would electively destroy the
Judicial oversight so necessary to the ade-
quate functioning of the Freedom cf In-
formation. Act. Original sponsors oe the
freedom of information legislation have al-
ways felt that the de novo requirement in
the Act required a true examination of the
records by the courts. This amendment will
clearly spell out that original Congressional
intent and requirement.
It has been argued 'list this requirement
might put an excessive burden on the courts
if they are forced to examine each contested
document. I do not think this is the case.
Duringlive years of litigation under the Act,
the District courts have evidenced no prob-
lems in examining the contested documents
claimed exempt by Federal agencies under
sections 552(b) (2) through (9). While there
has been a reluctance to examine in camera
those documents classified for alleged "na-
tional security" reasons, I do not feel that
the requirement of judicial examination will
place any unnecessary burden on the courts.
As many of us in the Congress realize, the
security classification system is a nightmare
of inconsistency, over-classification and over-
protection of many documents which, if made
available to the public, would only expose
official incompetence rather than official se-
crets. If the Freedom of Information Act is
to achieve, its desperately needed level of ef-
fectiveness, the judgments of the Federal
agencies must be subject to meaningful over-
sight both by Congress and the courts.
Section 1(e) deals with foot-dragging by
Federal agencies in freedom of information
litigation. The probleni.s encountered by ad-
ministrative delays in response to reduests
has been compounded by delaying tactics
during litigation. Under the Federal Rules of
Civil Procedure the government is allowed
60 days to respond to complaints. However,
a study made for our hearings of cases filed in
the U.S. District Court for the District of
Columbia showed that, in 20 out of 31 cases,
the first :responsive motion by the govern-
ment was not filed even within the 6)-day
limitation, one case taking 137 days fcr the
government to respond. Theoretically, the
government should be able to respond to a
complaint in very short time, for it should be
assumed that if the administrative appeal
denial SVCS properly made, the defendant
agency had already fully researched the law
and developed a sound case for the denial.
Under a 1969 memorandum of the Attorney
General, all administrative denials which
could result in litigation, in the opinion
of the agency, must be discussed witn the
Office of Legal Counsel of the Department of
Justice--prior to issuing the final denial.
Thus, both the agency and the Department
of Justice should be ready to defend an
action by the time the administrative proc-
ess is completed. For this reason, this leg-
i-aation would require the government to
respond to complaints within 20 days?the
same time allotted pri vete parties under the
Federal Rules of Civil Procedure. The amend-
ment would also allow the courts to award
costs and attorneys' fees to successful pil-
e ate litigants. One of the bars to litigation
under the Act is the high cost of carrying
through a Federal court suit. There is ample
precedent in civil rights cases for the award
cf costs and fees to prevailing parties, and
I feel that this authority in the hands of
tne court would clearly be in the public
i Merest.
As I have previously stated, Mr. Chairman,
the tactics often employed to defeat the
Purposes of the Freedom of Information Act
include delay, unreasonable fees, and un-
reasonable identification requirements under
subsection (a) of the present act as well
as overly restrictive and often incorrect in-
terpretations of the exemption provisions in
subsection (b) of the Act.
We are hopeful that the amendments to
subsection (a) of the Act will correct most
of the procedural abuses. The amendments
to subsection (b) which I will now discuss
are designed to clarify the original intent
of the Act by limiting, as much as possible,
the types of information which can properly
be withheld by Federal agencies.
ANALYSIS OS' SECTION 2
Section 2(a) of S. 1142 & H.R. 5425 amends
present subsection (b) (2) by clarifying the
original intent of Congress that only internal
personnel rules and internal personnel prac-
tices are exempt from mandatory disclosure.
Some agencies have interpreted the current
language as exempting internal personnel
rules and all agency practices. A new provi-
sion has also been added which further re-
sericts the scope of the exemption by exempt-
ing only those internal personnel rules and
Internal personnel practices, the disclosure
of which would "unduly impede the func-
tioning of such agency.- This additional lan-
guage will further restrict the types of in-
formation that can be claimed by an agency
a;' being exempt from disclosure.
Section 2(b) of the bill amends present
subsection (b) (4) by clarifying the present
vague language in the Act. Under the pro-
posed new language, the exemption would
apply only to trade secrets which are "privi-
leged and confilential" and financial infor-
mation which is "privileged and confiden-
tial." The present section in the Act has been
interpreted by the Department of Justice to
exempt information which may be consid-
ered trade secrets, confidential financial in-
formation, other types of nonconfidential
financial information, and other information
neither confidential nor financial but which
was obtained from a person and considered
'emivileged."
Section 2(c) of the bill amends present
section (b) (6) by limiting its application to
n-.edical and personnel "records" instead of
"ales" as in the present Act. This will close
another loophole we have noted In our
studies whereby releaeeable information is
often co-mingled with confidential informa-
tion in a single "file" and therefore all in-
formation contained iri that "file" has been
withheld.
Section 2 (d) of the measure amends pre-
sent section (b) (7) of the Act by substitut-
ing "records" for "files" as in the prior
amendment. The new section would also nar-
row the exemption to require that such re-
cords be compiled for a "specific law enforce-
ment purpose, the disclosure of which is
not in the public interest." It also enumer-
a_es certain categories of information that
cannot be withheld under this exemption
such as scientific reports, test, or data; in-
spection report; relating to health, safety
per environmental protection, or records serv-
ing as a basis for a public policy statement
of an agency, officer or .employee of the Unit-
ed States, or which serve at a basis for rule-
making by an agency.
The present investigatory file exemption.
is often used as a "catch-all" exemption by
some Federal agencies to exempt informa-
tion which may otherwise be available for
public inspection, but which is held within
a "file" considered to be investigatory. The
neve language will protect that information
necessary to be kept confidential for legiti-
mate investigatory purposes, while requir-
ing the release of that information which,
in iteslf. has no investieatory statue other
than its inclusion within a so-called in-
vestigatory file.
Subsection (c) of the present Act would
also be strengthened by language in S. 1142
and Ha. 5425. The present section merely
states that "... This section is not authority
to withhold information from Congress." Ad-
ditional language has been added in these
amendments to clarify the position that
Congress, upon written request to an agency,
be furnished all information or records by
the Executive that is necessary for Congress
to carry out its functions.
Finally, a new subsection (d) would be
added to the present Act. Section 4 of the
bill establishes a mechanism for Congres-
sional oversight of the Freedom of Informa-
tion Act by requiring annual reports front
each agency on their record of administra-
tion of the Act, requiring the submission of
certain types of statistical data, changes in
regulations, and other information by Fed-
eral agencies that will indicate the quality
of administration of their information pro-
grams. s
Mr. Chairman, I am convinced that these
amendments can help reverse the dangerous
trend toward "closed government" that
threatens our free press. our free society.
and the efficient operation of hundreds of
important programs enacted and funded by
Congress. It will help restore the confidence
of the American people in their government
and its elected leadership by removing the
veil of unnecessary secrecy that shrouds vast
amounts of government policy and action.
We must eliminate, to the maximum ex-
tent possible, government preoccupation with
secrecy because it cripples the degree of par-
ticipation of our citizens in governmental
affairs that is so essential under our polit-
ical system. Government secrecy is the
enemy of democracy. Secrecy subverts, and
will eventually destroy any representative
system.
The enactment of this legislation in this
Congress will make it far more difficult for
the Federal bureaucrat to withhold vital in-
formation from the Congress and the public.
NEWSMEN, NOT GOVERNME
LIFTED THE WATERGATE
HON. FRANK THOMPSON, JR.
OF NEW .JSASEY
IN THE HOUSE OF REPRESENTATIVES
Monday, April 30, 1973
Mr. THOMPSON of New Jersey. Mr.
Speaker, we have all been astonished and
dismayed at that series of events which
have collectively become to be known
as the Watergate scandal. I have re-
frained from making any public com-
mentary on these events in the knowl-
edge that the facts are being brought
to light by some of the most distinguished
investigative reporting we have witnessed
In modern times.
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March 8, 1973 CONGRESSIONAL RECORD ? SENA S 4155
Act takes effect, any department or agency
(or officer thereof in his official capacity) is
a party to a suit involving functions trans-
ferred to the Justice Department, then such
suit shall be continued by the Justice De-
partment. -No cause of action, and no suit,
action, or other proceeding, by or against the
Treasury Department and the State Depart-
ment (or officer thereof in his official ca-
pacity) functions of which are transferred by
this Act shall abate by reason of the enact-
ment of this Act. Causes of actions, suits, ac-
tions, or other proceedings may be asserted
by or against the United States or the Justice
Department as May be appropriate and, in
any litigation pending when this Act takes
effect, the court may at any time, on its own
motion or that of any -party, enter an order
which will give effect to the provisions of this
paragraph.
(d) Such further measures and disposi-
tions as the Director of the Office of Man-
agement and Budget shall deem to be neces-
sary in order to effectuate the transfers pro-
vided in this section shall be carried out in
such manner as he may direct and by such
agencies as he shall designate.
-By Mr. SPARKMAN (for himself
and Mr. TOWER) (by request) :
S. 1139. A bill to amend the Urban
Mass Transportation Act of 1964. Refer-
red to the Committee on Banking, Hous-
ing and Urban Affairs.
Mr. SPARKMAN. Mr. President, I in-
troduce for myself and Senator TOWER
(by request) a bill to amend the Urban
Mass Transportation Act of 1964.
This bill is recommended to the Con-
gress by the Secretary of the Depart-
ment of Transportation.
The proposed bill would make several
significant changes in the 1964 act. They
are designed to provide greater resources
for and flexibility in the administration
of the Federal program of assistance to
mass transportation systems serving the
urban areas of the nation and will en-
able us to aid localities in a more respon-
sive manner. These proposed amend-
ments would not change the basic sub-
stance or direction of the Federal urban
mass transportation program.
Section 1 of the bill states that it may
be cited as the "Urban Mass Transporta-
tion Amendments of i973." ?
Section 2 of the bill increases from
two-thirds to 70 percent of the maximum
share of the cost of an urban mass tran-
sit capital improvement project which
the Federal Government is authorized
to contribute. This change will serve to
equalize the Federal share of project
costs available for both highway and
transit projects.
,Section 3 of the bill would amend sec-
tion 4 of the 1964 Act to increase the
, amount authorized for obligation for
urban mass transportation improvement
projects from $3.1 billion to $6.1 billion.
This request for an increase of $3 billion
is designed to fulfill the purpose stated
In section 4(d) of the 1964 Act of assur-
ing program continuity and orderly de-
velopment of new projects by providing
at least $10 billion for urban mass trans-
portation over a 12-year period. Early
availability of this authority is essen-
tial in order that localities can under-
take the long and. difficult process of
planning, developing, and financing ma-
jor urban mass transportation improve-
ment projects with confidence that they
will be able to obtain a binding Federal
commitment when they are actually
ready to commence the projects.
Section 4 of the bill would amend sec-
tion 9 of the 1964 act to increase from
two-thirds to 70 percent the share of the
cost of technical study grant projects
which the Federal Government is au-
thorized to contribute. Section 4 would
also amend section 9 to clarify the au-
thority to undertake projects for the
evaluation of completed projects as a
part of the technical sutdy activity.
Section 5 of the bill would amend sec-
tion 10 of the 1964 act to remove several
restrictions which undesirably limit the
manner in which funds available to as-
sist in improving the skills of persons
employed in managerial positions in the
transit industry may be distributed. The
new flexibility which the bill would per-
mit would enable the Department to al-
locate grants to those areas where the
need for training is greatest.
Section 6 of the bill would amend the
1964 act to delete provisions which no
longer have any significant operative
effect and would renumber several re-
maining sections in order to clean up
the act.
By Mr. SPARKMAN (for himself
and Mr. Towsa) :
S. 1140. A bill to prohibit the making
of clad strip from which slugs can be cut
for use in coin operated machines and
to prohibit misrepresentation as to proof
and uncirculated coins. Referred to the
Committee on Banking, Housing and
Urban Affairs.
Mr. SPARKMAN. Mr. President, for
myself and for Senator TOWER, I send to
the desk a bill to prohibit the making
of clad strip from which slugs can be
cut for use in coin operated machines
and to prohibit misrepresentation as to
proof and uncirculated coins. This legis-
lation has been recommended to us by
the Secretary of the Treasury. In gen-
eral the purpose of the proposed legis-
lation is to: first, prohibit, except under
the authority of the Secretary of the
Treasury, the importation, manufacture,
possession, sale or use of clad strip from
which slugs can be cut susceptible of use
in coin operated machines, and second,
prohibit falsely representing that pack-
ages of U.S. coins are proof coin or mint
sets prepared by a U.S. Mint.
By Mr. SPARKMAN (for himself
and Mr. TOWER) :
S. 1141. A bill to provide a new coin-
age design and date emblematic of the
bicentennial of the American Revolution
for dollars and half-dollars. Referred to
the Committee on Banking, Housing and
Urban Affairs.
Mr. SPARKMAN. Mr. President, I send
to the desk for myself and Mr. TOWER a
bill to provide a new coinage design and
date emblematic of the bicentennial of
the American Revolution for dollars and
- half-dollars. This bill is recommended to
the Congress by the administration. In
general the administration believes it
would be highly appropriate and desir-
able o recognize the bicentennial of the
birth of the United States on its coinage.
The proposed legislation is designed to
accomplish that purpose.
By Mr. MUSKIE (for himself, Mr.
BIBLE, Mr. CHILES, Mr. EAGLE-
TON, Mr. GRAVEL, Mr. HART, Mr.
HUGHES, Mr. HUMPHREY, Mr.
JAVITS, Mr. KENNEDY, Mr. MET-
CALF, Mr. MONDALE, Mr. PERCY,
and Mr. RIBICOFF)
A bill to amend section 552
of 4141* ,.United States Code, known as
the "Freedom of Information Act." Re-
ferred jointly, by unanimous consent, to
the Committee on the Judiciary and the
Committee on Government Operations.
FREEDOM OF INFORMATION ACT
Mr. MUSKIE. Mr. President, I intro-
duce today a bill to amend the Freedom
of Information Act of 1967 and ask
unanimous consent that it be referred to
the Committee on the Judiciary and the
Committee on Government Operations.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. MUSKIE. Mr. President, these
amendments which are cosponsored by
13 Senators from both sides of the aisle
respond to a call many of us have heard
for full implementation of the people's
right to know the way in which they are
governed. This bill, the result of intensive
investigation in the 92d Congress by
Representative WILLIAM MOORHEAD'S
Subcommittee on Foreign Operations
and Government Information, is a major
contribution to answering that demand.
We are the best-informed of nations
and the worst-informed. Americans in
1973 have access to more data, statistics,
studies and opinions than the citizens of
any other democracy, including their
own, have ever had before. In theory, our
people have available to them all the
information they need to make wise and
intelligent choices on public policy.
In practice, however, the flow of vital
information from the governors to the
governed is controlled and restricted by
considerations that are alien to our con-
cept of open democracy. The Executive
asserts the power to withhold from the
people and from the Congress some or
all of the expert advice it receives and
acts on. A President or his spokesman can
make public those facts which best sup-
port a decision he has already made and
can conceal arguments for alternatives
he has rejected.
One branch of the Armed Forces can
keep its research secret from the others,
putting its competitive drive for appro-
priations ahead of the public interest in
efficiency. Officials in charge of regulat-
ing prices or communications or pollu-
tion or consumer safety can be subjected
to secret influences whose power to affect
decision is increased by their ability to
operate behind closed doors and to lock
their advice into closed files.
Arguments made in private may be
persuasive. They may even be correct.
But where the public interest is at stake,
argument must be open so that it can be
rebutted. To be enforceable in a society
built on trust, decisions must be reached
in a manner that permits all those con-
cerned to have equal access to the
decisionmakers.
These amendments go far to remove
obstructions which many Federal agen-
cies have put in the way of those citizens
who seek to know. They provide that
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S 4156 CONGRESSIONAL RECORD SENATE March 8, 1973
judges shall question the reasons a 3serted
by an executive agency for claiming the
privilege of secrecy for its records and
shall e:Kainine the records themselves to
see how reasonable each claim is. They
affirm the right of Congress to have
access to the information on which the
Executive deliberates and acts.
I am proud to bring this 'legislation
before the Senate at the same Arne it
goes before the other body. Together
we can examine the problems which have
arisen in implementing the sound pur-
pose of the Freedom of Information Act
and can. work to strengthen that purpose
and our democracy.
Mr. President, I ask unanimous con-
sent that an analysis of these amend-
ments and the text of the bill be printed
in the CONGRESSIONAL RECORD at this
point. ?
Theie being no objection, the analysis
and bill were ordered to be printed in
the RECORD, as follows:
ANALYSIS OF AMENDMENTS TO THE FREEDOM
OF 1NFORMATIMN ACT OF 1967
Amendments to Section 552(a)--
(1) agencies would be required to "pub-
lish anti distribute" their opinions made in
the adjudication of cases, policy statements
and interpretations adopted, and adminis-
trative staff manuals .and instructions to
staff that affect the public, rather than mere-
ly making them "available for public in-
spection and copying," as provided in the
present law.
(2) agencies would be required to .respond
to requests for records which "reasonably
describes such records." This language is
substituted for the term "identifiable rec-
ords," which has been used by the bureauc-
racy in many cases to avoid making infor-
mation available.
(3) agencies would be required to respond
to requests under the Act within 1.0 days
(excepting Saturdaes. Sundays, and legal
public holidays) after receipt of the request
and within 20 days (with the same excep-
tions) o:n administrative appeals following
denials to the requesting party. These time
periods are the result of a 1971 study and
recommendations on improving the opera-
tion of the Act as adopted by the Adminis-
trative Conference of the United States and
would provide a poe,tive mechanism to cor-
rect ore of the most glaring deficiencies
uncovered during oversight hearings--that
of agency stalling and foot-dragging tactics
to avoid public disclosure.
(4) the Government could be required by
the courts to pay "reasonable attorney fees
and other litigation costs" Of citizens who
successeully litigate cases under tee Act.
This amendment is directed toward another
major deficiency of the present law revealed
during the hearings?the high coste to the
average citizen when attempts to obtain
records under provisems of the Act are frus-
trated 'iv arbitrary or capricious acte of the
bureaucracy or by foot-dragging tacti "IS.. Such
assessment would be at the option of the
court and has been successfully used in
numerous civil rights cases in past years.
(5) agencies wond be required to file
answers; and other responsive motions to
citizen;.' suits under the Act within 20 days
after receipt. Under normal rules of Federal
civil procedure, the Government is Oven 60
days to file such responses, although the pri-
vate cibizen has only 20 days to respond to
Governance t motions; this amendment
would plug a major loophole used by the
Government and revealed in the hearings,
involving cases where repeated filing of de-
laying motions by the Government stalled
court consideration of Freedom of Informa-
tion Act cases for as Long as 140 days. Such
stalling tactics make a mockery of the law
and often make the information, if finally
made available to the citizen, virtually 'use-
less to him.
(6) now provision: proposed to Section
552(a) would clarify the original intent of
Congress in connectien with the interpreta-
tion of the "de novo" requirements placed on
the courts in their consideration of cases
under the Act. Such amendment is made
necessary by the Supreme Court's decision
In the case of Mink V. EPA, (410 U.S. ?)
decided on January 22, 1973, when the Court
held that judges may not examine in camera
documents in dispute where the Government
claims secrecy by virtue of exemption 552(b)
(1), dealing with the national defense or
foreign policy, and are not required to ex-
ercise such in camera judgment in cases in-
volving exemption 552(b) (5), dealing with
Inter-agency or intra-agency memorandums.
The amendments mate it clear that Corgress
intended and still Intends that "de novo" as
used in the law means that since the burden
of proof for withholding is on the Govern-
ment, courts must examine agency records
in. camera to determine if such records as
requested by the pleintiff in a suit under
the Act, or any part thereof, should be with-
held under any of the nine permissive ex-
emptions of 552(b). l:b also makes it clear in
cases where exemptioa 552(b) (1) is claimed
by the agency, the court must examine such
classified records to see if they are a proper
exercise of such Executive Order classifica-
tion authority and ithat disclosure of the
Information requested would actually be
"harmful to the national defense or foreign
policy of the United States."
Amendments to Section 552(b)?
(1) permissive exemption (b) (2) would
be amended to require disclosure of infor-
mation about an agency's internal person-
nel rules and internal personnel practices,
so long as such disC.osure would not "un-
duly impede the functioning of such agency."
(2) permissive exemption (b) (4) would
be amended to modify the exemption for
trade secrets by requiring that such types
of information be truly privileged and con-
fidential, as is already provided in the case
of commercial or financial information un-
der this exemption.
(3) permissive exemption (b) (6) would
be amended to limit its application to medi-
cal personnel "recorc's," instead of "files" as
In the present law; this would close another
loophole in the Act whereby releasealree in-
formation is often commingled with other
types of information in a single "file", and
therefore withheld.
(4) permissive exemption (b) (7) would
also be amended to sebstitute the word "rec-
ords" for "files" as in (b) (6), for the same
reason?to curb agency commingling of in-
formation to avoid public disclosure. The
amendment would also narrow the exemp-
tion to require that such records be com-
piled for a "specific low enforcement purpose,
the disclosure of which is not in the public
Interest." It also eel amerates certain cate-
gories of information that cannot be with-
held under this exemption such as scientific
tests, reports, or data, inspection reports
relating to health, safety, or environmental
protection, or records serving as a basis for
a public policy statement of any agency,
officer, or employee of the United States,
or which serve as a basis for rule-making by
an agency.
Amendment to Seciion 552 (c)?
(1) the amendment proposed to Section
(c)clarifies the position that Congress, upon
written request to all agency, be furtished
all information or records by the Executive
that is necessary for Congress to carry out
Its functions. Language in the present law
merely states that the Freedom of Informa-
tion Act does not authorize "withholding of
Information from Congress."
New Section 552(d)?
(1) establishes a mechanism for Congres-
sional oversight by requiring annual reports
from each agency on their record of admin-
istration of the Act, requiring certain record
of administration of the Act, requiring cer-
tain types of statistical data, changes in
their regulations, and similar types of in-
formation.
S. 1142
Re it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled,
SECTION 1. (a) The fourth sentence of see-
tion 252(a) (2) of title 5. United states Code,
is amended by striking out "and snake avail-
able for public inspection and copying" and
Inserting in lieu thereof ", promptly publish,
and distribute (by sale or otherwise) copies
of".
(b) Section 552(a) (3) of title 5, United
States Code, is amended by striking out "on
request for identifiable records made in ac-
cordance with published rules stating the
time, place, fees, to the extent authorized by
statute, and procedure to be followed," and
inserting in lieu thereof the following:
"upon any request for records which (A)
reasonably describes such records, and (B) is
made in accordance with published rules
stating the time, place, fees, to the extent
authorized by statute, and procedures to be
followed,".
(C) Section 552(a) of title 5, United States
Code, is amended by adding at the end
thereof the following new paragraph:
"(5) Each agency, neon any request for
records made under paragraph (1), (2), or
(3) of this subsection, shall?
"(A) determine within ten days (excepting
Saturdays, Sundays, and legal public holi-
days) after the receipt of any such request
whether to comply with such request and
shall immediately notify the person making
such request of such determination and the
reasons therefor;
"(B) in the case of a determination not to
comply with any such request, immediately
notify the person making such request that
such person has a period of twenty days (ex-
cepting Saturdays, Sundays, and legal public
holidays), beginning on the date of receipt
of such notification, within which to appeal
such determination to such agency; and
"(C) make a determination with respect
to such appeal within twenty days (excepting
Saturdays, Sundays, arid legal public holi-
days) after the receipt of such appeal.
Any person making a request to an agency
for records under paragraph (1), (2), or (3)
of this subsection shall be deemed to have
exhausted his administrative remedies with
respect to such request if the agency fails to
comply with subparagraph (A) or subpara-
graph (C) of this paragraph. Upon any de-
termination by an agency to comply with a
request for records, such records shall be
made available as soon as practicable to such
person making such request."
(d) (1) The third sentence of Section 552
(a) (3) of title 5, United States Code, is
amended by inserting immediately after "tile
court shall determine the matter de novo"
the following: "including by examination of
the contents of any agency records in camera
to determine if such records or any part
thereof shall be withheld under any of the
exemptions set forth in subsection (b) and
the burden is on the agency to sustain Its
action."
(2) Section 552(a) (3) of title 5, United
States Code, is amended by inserting the
following new sentence immediately after
the third sentence thereof: "In the case of
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any agency records which the agency claims
are within the purview of subsection (b)
(1) , such in camera investigation by the
court shall be of the contents of such rec-
ords in order to determine if such records,
or any part thereof, cannot be disclosed be-
cause such disclosure would be harmful to
the national defense or foreign policy of
the United States."
(e) Section 552(a) (3) of title 5, United
States Code, is amended by adding at the
end thereof the following new sentence:
"Notwithstanding any other provision of
law, the United States or an officer or agen-
cy thereof shall serve an answer to any
complaint made under this paragraph with-
in twenty days after the service upon the
United States attorney of the pleading in
which such complaint is made. The court
may assess against the United States rea-
sonable attorney fees and other litigation
costs reasonably incurred in any case under
this section in which the United States or
an officer or agency thereof, as litigant, has
not prevailed."
SEC. 2. (a) Section 552(b) (2) of title 5,
United States Code, is amended by inserting
"internal personnel" immediately before
"practices", and by inserting "and the dis-
closure of which would unduly impede the
functioning of such agency" immediately
before the semicolon at the end thereof.
(b) Section 552(b) (4) of title 5, United
States Code, is amended by inserting "ob-
tained from a person which are privileged
or confidential" immediately after "trade se-
crets", and by striking out "and" the sec-
ond time that It appears therein and by
inserting in lieu thereof "which is".
(c) Section 552(b) (6) of title 5, United
States Code, is amended by striking out
"files" both times that it appears therein
and inserting in lieu thereof "records".
(d) Section 552(b) (7) of title 5, United
States Code, is amended to read as follows:
"(7) investigatory records compiled for
any specific law enforcement purpose the
disclosure of which is not in the public in-
terest, except to the extent that?
"(A) any such investigatory records are
available by law to a party other than an
agency, or
"(B) any such investigatory records are?
"(i) scientific tests, reports, or data,
"(ii) inspection reports of any agency
which relate to health, safety, environmen-
tal protection, or '
"(iii) records which serve as a basis for
any public policy statement made by any
agency or officer or employee of the United
States or which serve as a basis for rule-
Making by any agency;".
SEC. 3. Section 552(c) of title 5, United
States Code, is amended to read as follows:
"(c) (1) This section does not authorize
Withholding of information or limit the
availability of records to the public, except
as specifically stated in this section.
"(2) (A) Notwithstanding subsection (b),
any agency shall furnish any information
or records to Congress or any committee of
Congress promptly upon written request to
the head of such agency by the Speaker of
the House of Representatives, the President
of the Senate, or the chairman of any such
committee as the case may be.
"(B) For purposes of this paragraph, the
term 'committee of Congress' means any
committee of the Senate or House of Repre-
sentatives or any subcommittee of any such
committee or any joint committee of Con-
gress or any subcommittee of any such joint
committee."
SEC. 4. Section 552 of title 5, United States
Code, is amended by adding at the end
thereof the following new subsection:
"(d) 'traeh agency shall, on or before
March 1 of each calendar year, submit a re-
port to the Committee on Government Oper-
ations of the House of Representatives and
the Committee on Government Operations
of the Senate which shall include?
"(1) the number of requests for records
made to such agency under subsection (a);
"(2) the number of determinations made
by such agency not to comply with any such
request, and the reasons for each such de-
termination;
"(3) the number of appeals made by per-
sons under subsection (a) (5) (B) ;
"(4) the number of days taken by such
agency to make any determination regard-
ing any request for records and regarding
any appeal;
"(5) the number of complaints made un-
der subsection (a) (3);
"(6) a copy of any rule made by such
agency regarding this section; and
"(7) such other information as will indi-
cate efforts to administer fully this Section;
during the preceding calendar year."
SEC. 5. The amendments made by this Act
shall take effect on the 90th day after the
date of enactment of this Act.
Mr. KENNEDY. Mr. President, James
Madison once wrote:
Knowledge will forever govern ignorance,
and a people who mean to be their own
governors, must arm themselves with the
power knowledge gives. A popular govern-
ment without popular information or the
means of acquiring it, is but a prologue to
a farce or a tragedy or perhaps both.
These words were quoted upon intro-
duction and reporting of what is now
the Freedom of Information Act, legis-
lation intended to provide the citizenry
with the "means of acquiring" informa-
tion from its government.
Congress' overriding concern in pass-
ing the Freedom of Information Act?
FOIA?was that disclosure of informa-
tion be the general rule, not the
exception. The act reversed previous law
and practice in that it provided that all
persons have equal rights of access and
that the burden be placed on govern-
ment to justify refusal to disclose infor-
mation, not the person requesting it.
Finally, the act allowed persons wrong-
fully denied access to documents the
right to seek injunctive relief in the
courts.
After almost 6 years of operation, the
FOIA has not fulfilled Congress' objec-
tives or aspirations. Bureaucrats who
simply feel more comfortable laboring
behind closed doors and officials who de-
sire to cover up inefficiency, ineffective-
ness, laziness, and even corruption have
joined to frustrate the intent and cir-
cumvent the mandates of the act. Vague
or ambiguous exemptions have been
stretched to shield disclosure of even
the most innocuous documents, while
delays and runarounds are employed to
dampen the ardor of public inquirers.
Clearly the time has come for a new
look and update of the FOIA. The
amendments developed from extensive
hearings in a House Government Opera-
tions Subcommittee during the last Con-
gress provide an excellent starting point
to initiate this revision. I am pleased to
join with Senator MIJSKIE and others
today in introducing these amendments.
The original FOIA was developed from
extensive hearings and deliberations by
the Senate Subcommittee on Adminis-
trative Practice and Procedure, which I
now chair. Because the amendments be-
ing introduced here cover not only areas
presently included in the FOIA, but also
matters relating to disclosure of previ-
ously classified materials and to access
by Congress to documents in agency
files, a joint referral has been arranged
to both the Judiciary and the Govern-
ment Operations Committees. I will look
forward to coordinating the efforts of
my subcommittee wih those of Senators
MusiciE and ERVIN, so that we might de-
velop unified positions with regard to
the important problems addressed by
these amendments.
By Mr. HUMPHREY:
S. 1143. A bill entitled the "Social Secu-
rity and Medicare Reform Act of 1973."
Referred to the Committee on Finance.
SOCIAL SECURITY AND MEDICARE REFORM ACT
OF 1973
Mr. HUMPHREY. Mr. President, I am
today introducing the Social Security
and Medicare Reform Act of 1973. This
legislation is designed to accomplish one
prime objective: bring fairness to the
social security and medicare systems.
Title I of this legislation would reduce
and eventually eliminate the supplemen-
tary medical insurance deductible. Pres-
ently, this deductible requires a medi-
care patient to pay the first $60 of the
hospital bill.
The Nixon administration has re-
cently proposed that the $60 payment be
increased to $85. I am opposed to such
an increase. The Nixon administration's
proposal would place an almost unbear-
able financial strain on the elderly?
generally those persons without sufficient
resources to pay the cost.
Under my legislation, the deductible
would be gradually reduced and elimi-
nated over a 5-year period. This legisla-
tion would recognize that the United
States has a public commitment to good
health care for its elderly?without de-
pleting their resources or forcing them
to pay extra for quality medical care.
Title II of my legislation eliminates
the payment of the premium under the
supplemental medical insurance pro-
gram.
Once again, with the increased cost in
the medical insurance premiums, the el-
derly have been forced to pay even more
for getting sick. Almost every year, there
Is an incerase in the medical insurance
premium. Last year, the Congress en-
acted a provision that would increase
the premium as the cost of living in-
creases. It seems that our Government
wants to play a cruel hoax on the elderly.
On one hand, the elderly receive a cost
of living increase in social security bene-
fits; on the other, the cost of their medi-
cal insurance is also increased.
I think it is time to call a halt. It is
time to be financing more of this cost
from general revenues?not asking the
elderly, most of whom have fixed in-
comes, to bear the burden of inflation.
Title III of the legislation would be-
gin a system of one-third general reve-
nue financing for the social security sys-
tem. This amendment changes the fi-
nancing mechanisms of social security
from the present excessively regressive
payroll tax to a method that is at least
more equitable, and also maintains the
actuarial integrity of the trust fund. It
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means that one-third of total cost of
social security would come from gen-
eral funds of the Government_ It means
that the tax burden on low-income and
moderate income families will be re-
duced.
At one time, it made sense to finance
social security benefits entirely from the
payroll tax. But lately, with the welcome
expansion of benef ts, the social security
payroll tax has become extremely bur-
densome.
In the Nixon administration'a pro-
posed fiscal year 1974 budget, 2L cents
of every tax dollar collected by the Fed-
eral Government will come from social
security payroll taxes, while only 14 cents
will come from corporate sources. Under
the changes enacted last year, the rate of
payroll taxes is 5.5 percent?paid by the
employer and employee?for a combined
tax of 11 percent on individual income
up to $A0,800. The 1972 social security tax
maximum payment of $468 will increase
to $594 for 1973 and $660 in 1971. Ten
years ago, this same tax was $174,
Under a system of one-third general
revenue financing, both the rate and the
amount of tax would be cut for the aver-
age payroll taxpayer by more than $150_
General revenue financing at the level
I have proposed will not come overnight.
It could be phased in over a, period of
years or it could apply to the first $100
or $200 of payroll eaxes. How it is done
is not the crucial joint. That it is done
is what is crucial.
We amply must reduce the payroll tax
burden on the average working f
Title IV of the legislation would elimi-
nate the earnings limitations for social
security retirement benefits, During the
last Congress, the amount of money that
social security :recipient could earn
without a reduction in his benefits was
increased from $1,680 to $2,100 If a
social security recipient earns more than
$2,100, his social security benefits are re-
duced by $1 for every dollar earned over
the $2,l.00 limit.
Eliminating the earnings limitation
would encourage senior citizens to con-
tinue to work if they are able to do so.
That should be the policy of our Govern-
ment.
To my mind, there is no reason why a
person should be denied the opportunity
to work: or be penalized for working: be-
cause of age.
Finally, title V of the legislation would
provide that individuals who are entitled
to receive widow's or widower's benefits
would receive 100 percent of such bene-
fits.
This title is directed toward a particu-
lar problem enacted by last year's social
security amendments. In that legislation,
a provision was added that only widows
would receive 100 percent of theia hus-
band's benefits.
Unfortunately, many of us fele that
the direction of that provision was to
provide that all widows, upon becoming
eligible at age 62, would receive 100 per-
cent of their husband's benefits. This,
howeven was not the case. An eligibility
age lirrilt of 65 was added?allowing only
certain widows to receive 100 percent of
benefits.
I have received literally hundreds of
letters and phone calls from disappointed
widows who expected to receive 100 per-
cent of benefits but found their hopes
reversed.
Under title V of this bill, widows who
began drawing benefits at age 62 would
be entitled to the full 100 percent of their
husband's rightful benefit.
Mr. President, I believe that my bill is
dedicated to pure and simple equity. It
clearly draws the line as to who should
pay and how much for retirement and
medical benefits. It does not attempt to
place dollar barriers between the patient
and adequate health care. It does not
attempt to strain the pocketbook of the
average payroll taxpayer.
This legislation attacks head on the
proposals of the Nixon administration to
force the poor and the elderly to pay
more for their medical care. It attacks
head on the proposition that when Fed-
eral income taxes are not raised there is,
in effect, no tax increase?even though
you and I know, Mr. President, that when
payroll taxes go up, that is the most un-
fair form of tax.
And it attacks head on the inequities
built into the social security retirement
system through artificially limiting pro-
ductivity of our citizens or promisine the
widows of social security beneficiaries
something they will not get.
I believe that these amendments are
necessary. I have submitted other amend-
ments; for example, an amendment
which provides that with the increase of
20 percent in. social security benefits the
other benefits that were previously added
to social security would not be with-
drawn or reduced. Last year we saw a
20 percent increase in social security,
only to find that many a person on social
security had his or her rent increased
and other benefits reduced. Food stamps
were taken away from them. In many in-
stances, the increase resulted in a loss of
income or income benefits that are re-
lated to income.
That is unfair. It is unkind. It was not
intended; and that kind of administra-
tive policy must be corrected by legisla-
tion.
I have previously introduced such leg-
islation. Last year my distinguished sen-
or colleague (Mr. MmaramE) and I pre-
sented such a bill to the Senate. It was
passed here overwhelmingly, but it was
dropped in conference. Simple, plain jus-
tice and equity reooire that when you
increase the social security benefits, you
do not rob the people of other benefits at
the same time; but that is exactly what
:las been going on.
So, Mr. President, I believe that these
amendments are not only necessary but
lust. They provide the elderly a more
realistic opportunity to enjoy life. and ob-
iaM the health care that they need. And
they offer the working man relief from
'Ms crushing payroll tax burden.
I send the bill to the desk, Mr. Presi-
dent, for appropriate reference, and ask
ananimous consent that the full text of
the bill be printed in the RECORD with
my remarks.
There being no objection, the bill was
ordered to be printed in the RECOaD,
follows:
S. 1143
Be it enacted by the Senate and House of
Representatives of lho United States of
America in Congress as3embled.
TITLE 1
REDUCTIONS IN, AND EVEN TUAL ELIMIT,TATTnN OW,
THE SUPPLEMENTARE MEDICAL INS/MANCE
DEDUCTIBLE
SEC. 101. (a) (1) Effecd.ve January 1, 1974,
section 1833(b) of the Social Security Act is
amended by striking out "shall be reduced by
a deductible of $60" and Inserting in lieu
thereof "shall be reduced by a deductible of
$50".
(2) Effective January 1, 1975, section 1833
(b) of such Act is amended by striking out
"shall be reduced by e deductible of $50"
and inserting in lieu thereof "shall be re-
duced by a deductible of $40".
(3) Effective January 1, 1976, section 1833
(b) of such Act is amended by striking out
"shall be reduced by a deductible of $40"
and inserting in lieu thereof "shall be re-
duced by a deductible of $30".
(4) Effective January 1, 1977, section 1833
(b) of such Act is amended by striking out
"shall be reduced by a deductible of $30"
and inserting in lieu thereof "shall be re-
duced by a deductible of $15".
(5) Effective January 1, 1978, section 1833
(b) of such Act is repealed.
(b) (1) Section 1835 c) of such Act is
amended by striking out "but only if such
charges for such service:: do not exceed $60"
and inserting in lieu thereof "but only if
such charges for such services do not exceed
the supplementary medical insurance deduc-
tible (if any) which is in effect for the calen-
dviadrycar in which such services are pro-
ed(2) The amendment made by paragraph
(1) shall take effect January 1, 1972.
TITLE II
'AUTOMATIC COVERAGE (WITHOUT PAN MEET OF
PREMIUM) UNDER SUEPLEMENTAL MED/CAL
INSURANCE PROGRAM
"Sac, 201. (a) Section 1831 of the Social
Security Act is further amended to read as
follows:
" 'Sac. 1831. There is hereby established an
insurance program to provide medical insur-
ance benefits in accordance with the provi-
sions of this part for aged and disabled
individuals who elect to enroll in such pro-
gram or who are entitled to hospital insur-
ance benefits under the program established
by part A. The costs of the insurance program
established by this part shall be financed
from funds appropriated by the Federal Gov-
ernment, and the beneats under such pro-
gram shall be paid from the Federal Supple-
mentary Medical Insurance Trust Fund.'
"(b) Section 1836 of such Act is further
amended by striking out 'is eligible to enroll
in the insurance program' and inserting in
lieu thereof 'is covered under the insurance
program'.
"(c) Section 1837(a) is amended to read
as follows:
"'SEC. 1837. (a) (1) Any individual who for
the month of July 1973, or any succeeding
month, is covered by the hospital insurance
program established by part A shall also be
covered by the insurance program established
by this part for each month for which he is
covered by such program.
" ' (2) Any individual who is not covered
by the program established by this part for
the month of July 1972, or any succeeding
month, by reason of the provisions of sub-
section (a), shall, if he is eligible under sec-
tion 1836 for coverage in the program estab-
lished by this part, secure coverage by
enrolling therefor in such manner and within
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