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April 30, 1973
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Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 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. Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 April 30, 1973APProtWORROIMMO1PMDCIARAWNACOMPACM9120002-6 2g3 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 Approved For Release 2001/08/20 : CIA-RDP75B00380R000500120002-6 E 2704 Approved For Release 2001/08/20 ? .1A-RDP751300380R0005001200C:2e":6S 4i 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 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- '*/^ rved Fo elease 2001/08/20 : CIA-RDP75600380R000500120002-6 a/ Aprii 30, 1973 APPCRYWRTAORWORIMIgg -:-CARQUABcringgP000120002-6 E 2705 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 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 E 2706 ApprovedcmmigwAyolipem-Rofgagl000llowomysoo02-6A pry 30, 7973 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. Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 d)3 a C-;- Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 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 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 s eseolir Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 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 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 March 8,1973 CONGRESSIONAL RECORD ?SENATE S 4157 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 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6 S 4153 CONGRESSIONAL RECORD -- SENATE March 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) 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 Approved For Release 2001/08/20 : CIA-RDP75600380R000500120002-6