HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS HOUSE OF REPRESENTATIVES NINETY-THIRD CONGRESS FIRST SESSION ON H.R. 5425 TO AMEND SECTION 552 OF TITLE 5, UNITED STATES CODE, KNOWN AS THE FREEDOM OF INFORMATION

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• Collection: General CIA Records
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• Sequence Number: 1
• Publication Date: May 16, 1973
• Content Type: REPORT

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THE FREEDOM OF INFORMATION ACT
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
NINETY-THIRD CONGRESS
FIRST SESSION
ON
H.R. 5425
TO AMEND SECTION 552 OF TITLE 5, UNITED STATES CODE,
KNOWN AS THE FREEDOM OF INFORMATION ACT
AND
H.R. 4960
TO AMEND SECTION 552 OF TITLE 5 OF THE UNITED STATES
CODE TO LIMIT EXEMPTIONS TO DISCLOSURE OF INFOR-
MATION, TO ESTABLISH A FREEDOM OF INFORMATION
COMMISSION, AND TO FURTHER AMEND THE FREEDOM OF
INFORMATION ACT
MAY 2, 7, 8, 10, AND 16, 1973
Printed for the use of the Committee on Government Operations
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HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
NINETY-THIRD CONGRESS
FIRST SESSION
ON
H.R. 5425
TO AMEND SECTION 552 OF TITLE 5, UNITED STATES CODE,
KNOWN AS THE FREEDOM OF INFORMATION ACT
AND
H.R. 4960
TO AMEND SECTION 552 OF TITLE 5 OF THE UNITED STATES
CODE TO LIMIT EXEMPTIONS TO DISCLOSURE OF INFOR-
MATION, TO ESTABLISH A FREEDOM OF INFORMATION
COMMISSION, AND TO FURTHER AMEND THE FREEDOM OF
INFORMATION ACT
MAY 2, 7, 8, 10, AND 16, 1973
Printed for the use of the Committee on Government Operations
U.S. GOVERNMENT PRINTING OFFICE
96-5760 WASHINGTON : 1973
For sale by the Superintendent of Documents,
U.S. Government Printing Office, Washington, D.C. 20402
Price $2.35 Domestic postpaid or $2 GPO Bookstore
Stock Number 5270-01889
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COMMITTEE ON GOVERNMENT OPERATIONS
CHET HOLM:OLD, California, Chairman
JACK BROOKS, Texas
L. H. FOUNTAIN, North Carolina
ROBERT E. JONES, Alabama
JOHN E. MOSS, California
DANTE B. FASCELL, Florida
HENRY S. REUSS, Wisconsin
TORBERT H. MACDONALD, Massachunetts
WILLIAM S. MOORHEAD, Pennsylvania
WM. J. RANDALL, Missouri
BENJAMIN S. ROSENTHAL, New York
JIM WRIGHP, Texas
FERNAND J. ST GERMAIN, Rhode Island
JOHN C. CU LVER, Iowa
FLOYD V. HICKS, Washington
DON FUQUA., Florida
JOHN CONYERS, JR., Michigan
BILL ALEXANDER, Arkansas
BELLA S. ABU, New York
HAROLD D. DONOHUE, Massachusetts
JAMES V. WANTON, Ohio
LEO J. RYAN, California
FRANK HORTON, New York
JOHN N. ERLENBOltN, Illinois
JOHN W. WYDLER, New York
cLARENCE J. BROWN, Ohio
GUY VANDER JAGT, Michigan
GILBERT GUDE, Ma ryland
PAUL N. McCLOSKEY, JR., California
JOHN H. BUCHANAN, JR., Alabama
SAM STEIGER, Ariz 3na
GARRY BROWN, Michigan
CHARLES THONE, Nebraska
RICHARD W. MALLARY, Vermont
STANFORD E. PARRIS, Virginia
RALPH S. REGULA, Ohio
ANDREW J. HINSHAW, California
ALAN STEELMAN, l'OXIFtS
JOEL PRITCHARD, Washington
ROBERT P. HANRAEIAN, Illinois
HERBERT LOBACR, Staff Director
ELMER W. HEI,IDERSON, General Counsel
MILES Q. :10MN EY, Counsel-Adirvinistrator
J. P. CARLION, Minority Counsel
WILLIAM H. COP EN RP VER, Minority Professional Staff
FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE
WILLIAM S. MOOR AD Pennsylvania, Chairman
JOHN E. MOSS, California JOHN N. ERLENBORN, Illinois
TORBERT B. MACDONALD, Massachuaetts PAUL N. McCLOSKEY, JR., California
JIM WRIGHT, Texas
BILL ALEXANDER, Arkansas
BELLA S. A:BZUG, New York
JAMES V. STANTON, Ohio
GILBERT GUDE, Maryland
CHARLES THONE, Nebraska
RALPH S. REGULA, Ohio
EX OFFICIO
CHET HOLIFIELD, California FRANK HORTON, New York
WILLIAM G. PHILLIPS, Staff Director
NORMAN G. CORNISH, Deputy Staff Director
HAROLD F. WHITTIN ITON, Professional Staff Member
L. JAME: KRONFELD, COURSei
MARIA M. .DorY, Clerk
ALMEDA J. HARLEY, e cr et aril
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CONTENTS
Hearings held on? Page
May 2 1
May 7 75
May 8 97
May 10 231
May 16 309
The texts of H.R. 5425 and H.R. 4960 3
Statement of?
Black, Creed, editor of the Philadelphia Inquirer, Philadelphia, Pa 45
Brucker, Herbert, Windsor, Vt 43
Buzhardt, J. Fred, General Counsel, Department of Defense; accom-
panied by Jerry W. Friedheim, Assistant Secretary of Defense__ - 193
Dixon, Robert G., Jr., Assistant Attorney General, Office of Legal
Counsel, Department of Justice; accompanied by Robert Saloschin,
Office of Legal Counsel 101
Franck, Thomas M., director, Center for International Studies, New
York University, and professor of law 178
Hanrahan, Hon. Robert P., a Representative in Congress from the
State of Illinois 90
Horton, Hon. Frank, a Representative in Congress from the State
of New York 76
Koop, Theodore, Radio-Television News Directors Association 327
Lampson, E. W., president, Ohio Newspaper Association; accom-
panied by Ted Serrill, executive vice president, National News-
paper Association 232
Miller, John T., Jr., chairman, section of administrative law, Ameri-
can Bar Association; accompanied by Richard Noland 310
Mink, Hon. Patsy T., a Representative in Congress from the State of
Hawaii 81
Mollenhoff, Clark, Washington bureau chief, Des Moines Register 40
Plesser, Ronald, Center for the Study of Responsive Law 333
Scalia, Antonin, Chairman, Administrative Conference of the United
States; accompanied by Richard K. Berg, Executive Secretary_ 274
Shattuck, John, staff counsel, American Civil Liberties Union 252
Sheldon, Courtney R., chairman, Freedom of Information Committee,
Sigma Delta Chi 238
Smyser, Richard, editor, the Oak Ridger, Oak Ridge, Tenn 47
Wiggins, J. R., publisher, Ellsworth-American, Ellsworth, Maine_ 37
Letters, statements, etc., submitted for the record by?
Brucker, Herbert, Windsor, Vt., statement 44-45
Buzhardt, J. Fred, General Counsel, Department of Defense:
Information regarding court cases 221
Statutory recommendation regarding classified information re-
ceived by Members of Congress 225
Dixon, Robert G. Jr., Assistant Attorney General, Office of Legal
Counsel, Depart:ment of Justice:
Response to additional subcommittee questions by the Depart-
ment of Justice 166-175
Statement 102-145
Erlenborn, Hon. John N., a Representative in Congress from the
State of Illinois 27
Franck, Thomas M., director, Center for International Studies, New
York University, and professor of law, statement 184-189
Hanrahan Hon. Robert P., a Representative in Congress from the
State of Illinois:
Amendments to H.R. 4960 offered by Mr. Hanrahan 92-93
Table of agency fees for the production of documents 92
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Letters, statements, etc., submitted for the record by?Continued
Lampson, E. W., president, Ohio Newspaper Association: Statement Page
of National Newspaper Association 233-235
McCloskey, Paul N. jr., a Representative in Congress from the State
of California: Sundry correspondence relative to the heraings
Miller, John T., Jr., chairman, section of administrative law, American
Bar Association, statement 3 L3-318
Mollenhoff, Clark, Washington bureau chief, Des Moines Register:
Excerpts from speech before the Houston Rotary Club meeting,
June 11,1970 52-54
Moorhead, Hon. William S., a Representative in Congress from the
State of Pennsylvania, and chairman, Foreign Operations and
Government Information Subcommittee:
Excerpts from testimony of witnesses at earlier subcommittee
hearings on freedom of information 69-70
Exchange of correspondence between President Nixon and Robert
G. Fichenberg, chairman, Freedom of Information Committee,
ASNE, re governmental information policies 98-101
Sundry material relative to the hearings 25-37
Text of section 2954 cf tit:e 5 of the United States Code 225
Plesser, Ronald, Center for the Study of Responsive Law, statement_ 344-349
Scalia, Antonin, Chairman, Administrative Conference of the United
States, statement 274-282
Shattuck, John, staff counsel, American Civil Liberties Union, state-
ment 259-271
APPENDIX
Additional correspondence and other material relative to the hearings__ __ 355
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THE FREEDOM OF INFORMATION ACT.
WEDNESDAY, MAY 2, 1973
HOUSE OF REPRESENTATIVES,
FOREIGN OPERATIONS AND
GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington,D.C.
The subcommittee met, pursuant to recess, at 10 :05 a.m. in room
2154, Rayburn House Office Building, Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present: Representatives William S. Moorhead, Bill Alexander,
Bella S. Abzug James V. Stanton, John N. Erlenborn, Paul N. Mc-
Closkey, Jr., Gilbert Gude Charles Thone, and Ralph S. Regula.
Also present: William G. Phillips, staff director; Norman G. Corn-
ish, deputy staff director; Harold F. Whittington, professional staff
member; L. James Kronfeld, counsel; and William H. Copenhaver,
minority professional staff, Committee on Government Operations.
MT. MOORHEAD. The subcommittee will come to order.
I might open these hearings with the words "once upon a time," for
to some Members of Congress and to some members of the press it
was the dim and distant past when representatives of both groups first
got together to consider the status of the people's right to know the
facts of government.
It was less than 18 years ago when this subcommittee held its first
hearings. It was less than 7 years ago when Congress passed the Federal
Government's first freedom of information law. That certainly is
not a dim and distant past as time is measured by the calendar, but
it seems a long time ago because there has been a great increase in the
flow of Government information.
Nearly 200 court cases under the freedom of information law, and
thousands of other cases when the law has been used to break down
Government secrecy without going to court, have made the difference.
But the difference between the high wall of secrecy 18 years ago and
the lower wall today is not nearly enough of a difference.
In the first place, we are nowhere near the goal of a fully informed
public in a democratic society which was the hope of those who started
the freedom of information fight. In the second place, the freedom of
information law did not become the weapon the free press needed to
fight against secrecy. We may have fallen short of our goal of open
government largely because the weapon was inadequate to accomplish
the job we planned.
The press has made little use of the law that they had a large share
in creating. Part of the blame must be shouldered by the press, itself.
(1)
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A large share of the blame lies with the administrators of the free-
dom of information law. Not one executive branch agency, not one
Government official testified in favor of the bill during the subcom-
mittee's hearings prior to its passage in 1966.
And we in Congress must share the blame. The freedom of informa-
tion law was the product of legislative compromise and, therefore, it
is not the perfect instrument that the representatives of the free and
responsible press sought.
That is why this subcommittee has called those representatives back
again.
One of the questions we want to direct to you gentlemen is whether
the need for public access to Government information is as pressing
today as it was in 1955.
Our witnesses are a very distinguished panel:
J. R. Wiggins, former editor Df the Washington Post; former presi-
dent of the American Society of Newspaper Editors; a participant in
this subcommittee's very first llearings in November 1955. He is now
the publisher of the Ellsworth- American in Ellsworth, Maine, and he
is highly regarded as an historian and an author.
Clark Mollenholf also participated in the subcommittee's first hear-
ings and, :L sometimes think, a'most every other herring the subcom-
mittee has held so far. He is by far the most outspoken opponent of
government secrecy. He is now the head of the Der Moines Register-
Tribune bureau in Washington. He has won almost every journalism
prize available. He has written numerous books and :has served in the
White House early in the Nixon administration?long before Water-
gate.
Herbert Brucker first appeared before this subcommittee formally
in March 1963, but his personal advice and his books and articles had
long provided guidance. He WEIS then editor of the Hartford Courant
and president of the American Society of Newspaper Editors. He has
been a journalism educator on the east and west coasts and has recently
published another book on information and democracy.
Creed Black accompanied Herb Brucker in 1963, and he appeared
before this subcommittee again in 1965, testifying on the freedom of
information bill as a representative of the A_merican Society of News-
paper Editors. He has been edtor of a number of newspapers, served
in the Department of Health, Education, and Welfare, and is now
editor of the Philadelphia Imp: irer.
Richard. Smyser testified in March 1965, on the bill which became
the freedom of information law. He was speaking for the Freedom of
Information Committee of the Associated Press Managing Editors?
and is now a vice president---end was then, as now, editor of the Oak
Ridger, Oak Ridge, Tenn, HE, too, has advised the subcommittee at
other times, particularly on ti e problem of anonyi nous news sources.
Today, we will be discussing with these experts the broad problems
of free information in a free society. The next 2 weeks we will be
discussing the narrow details of legislation to help solve these broad
problems.
[The bils, H.R. 5425 and H.R. 4960, follow:]
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93D CONGRESS H. R. 5425
1ST SESSION
IN THE HOUSE OF REPRESENTATIVES
MARCH 8, 1973
Mr. MOORHEAD Of Pennsylvania (for himself, Ms. Auzuu, Mr. ALEXANDER, Mr,
BADILLO, Mr. BURTON, Mr. CLAY, Mr. CONYERS, Mr. COTTER, Mr. DRINAN,
Mr. ECKHARDT, Mr. EDWARDS of California, Mr. WILLIAM D. FORD, Mr.
FRASER, Mr. FUQUA, Mr. GUDE, Mr. HARRINGTON, Mr. HECIILER Of West
Virginia, Mr. HOWARD, Mr. KOCII, Mr. LEGGETT, Mr. MCCLOSKEY, Mr. MOSS,
Mr. OBEY, Mr. REES, and Mr. REID) introduced the following bill; which
was referred to the Committee on Government Operations
A BILL
To amend section 552 of title 5, United States Code, known as
the Freedom of Information Act.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. (a) The fourth sentence of section 552 (a)
4 (2) of title 5, United States Code, is amended by striking out
5 "and make available for public inspection and copying" and
6 inserting in lieu thereof ", promptly publish, and distribute
7 (by sale or otherwise) copies of".
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(b) Section 552 (a) (3) of title 5, United States Code,
2 is -amended by striking out "on request for identifiable rec-
3 ords made in accordance with published rulis stating the
4 time, place, fees, to the extent authorized by statute, and
5 procedure to be follower," and inserting in lieu thereof the
(; following; "upon any request for records which (A) reason-
7 Aly describes such records, and (B) is made in accordance
with published rules stating the time, place, fees, to the
9 extent authorized by statute, and procedures to be followed,".
10 (c) Section 552 (a) of title 5, United States Code, is
11 amended by adding at the end thereof the following new
12 paragraph:
"(5) Each agency, upon any request for records made
14 under paragraph (1) , (2) , or (3) of this subsection, shall--
15 " (A) determire within ten days (excepting Satur-
days, Sundays, and legal public holidays) after the re-
17 ceipt of any such request whether to comply with such
request and shall immediately notify the person making
such request of such deteimination and the .reasons there-
for;
21. "(B) in the case of a determination not to comply
22 with any such request, immediately notify the person
23 making such request that such person has a period of
24 twenty days (excepting Saturdays, Sundays, and legal
25 public holidays) , teginning on the date of receipt of
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1 such notification, within which to appeal such determina-
2 tion to such agency; and
3 "(C) make a determination with respect to such
4 appeal within twenty days (excepting Saturdays, Sun-
5 days, and legal public holidays) after the receipt of
6 such appeal.
7 Any person making a request to an agency for records under
8 paragraph (1) , (2) , or (3) of this subsection shall be
9 deemed to have exhausted his administrative remedies with
10 respect to such request if the agency fails to comply with
11 subparagraph (A) or subparagraph (C) of this paragraph.
12 Upon any determination by an agency to comply with a re-
13 quest for records, such records shall be made available as
14 soon as practicable to such person making such request."
15 (d) (1) The third sentence of section 552 (a) (3) of
16 title 5, United States Code, is amended by inserting immedi-
17 ately after "the court shall determine the matter de novo"
18 the following: "including by examination of the contents of
19 any agency records in camera to determine if such records or
20 any part thereof shall be withheld under any of the cxemp-
21 tions set forth in subsection (b) and the burden is on the
22 agency to sustain its action."
23 (2) Section 552 (a) (3) of title 5, United States Code,
24 is amended by inserting the following new sentence immcdi-
25 ately after the third sentence thereof: "In the case of any
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1 agency records which the agency claims are within the
2 purview of subsection (b) (1) , such in camera investigation
3 by the court shall be of the contents of such records in order
4 to determine if such records, or any part thereof, cannot be
5 disclosed because such disclosure would be harmful to the
t; national defense or foreign policy of the United States."
7 (e) Section 552 (a) (3) of title 5, United States Code, is
S amended by adding at he end thereof the following new
sertence: "Notwithstanding any other provision of law, the
10 United States or an officer or agency thereof shall serve an
1 answer to any complaint made under this paragraph within
12 twenty days after the: service upon the United States attorney
13 of the pleading in which such complaint is me.de. The court
14 rotoy assess against the United States reasonable attorney fees
15 and other litigation costs reasonably incurred in any case
16 under this section in which the United States or an officer or
17 agency thereof, as litigant, has not prevailed."
18 SEC. 2. (a) Section 552 (b) (2) of title 5, United States
1.9 Code, is amended by inserting "internal personnel" immedi-
20 ately before "practices", and by inserting "and the disclosure,
21 of which would unduly impede the functioning of such
22 agency" inunediatebr he'ore the semicolon at the end thereof.,
(h) Section 552 (b) (4) of title 5, United States Code?
al is amended by inserting "obtained from a person which are
25 irivileged or confidential" immediately after "trade secrets",
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1 and by striking out "and" the second time that it appears
2 therein and by inserting in lieu thereof "which is".
3 (c) Section 552 (b) (6) of title 5, United States Code,
4 is amended by striking out "files" both times that it appears
5 therein and inserting in lieu thereof "records".
6 (d) Section 552 (b) (7) of title 5, -United States Code,
7 is amended to read as follows:
8 "(7) investigatory records compiled for any specific
9 law enforcement purpose the disclosure of which is not in
10 the public.interest, except to the extent that-
11 "(A) any such investigatory records are avail-
12 able by law to a party other than an agency, or
13 "(B) any such investigatory records are-
14 "(i) scientific tests, reports, or data,
15 "(ii) inspection reports of any agency
16 which relate to health, safety, environmental
17 protection, or
18 " (iii) records which serve as a basis for
19 any public policy statement made by any agency
20 or officer or employee of the United States or
21 which serve as a basis for rulemaking by any
22 agency;".
SEC. 3. Section 552 (c) of title 5, United States Code,
24 is amended to read as follows:
25 "(c) (1) This section does not authorize withholding
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of information or limit tile availability of records to the pub-
2 lie, except as specifically stated in this section.
:3 "(2) (A) Notwithstanding subsection (b) , any agency
4 shall furnish any informition or records to Congress or any
5 committee of Congress promptly upon writ:en request to
t; Hie head of such agency by the Speaker of the House of
7 Representatives, the President of the Senate, or the chair-
tann of any such committee, as the case may be.
0 "(B) For purposes of this paragraph, the term 'com-
p) mittee of Congress' means any committee of the Senate or
11 House of Representatives or any subcommittee of any such
12 committee or any joint 3omnfittee of Congress or any sub-
13 committee of any such joint committee."
14 SEC. 4. Section 552 of title 5, United S:ates Code, is
15 atnended by adding at ;he end thereof the following new
M subsection:
17 (d) Each agency shall, on or before March 1 of each
18 calendar year, submi.t a report to the Committee on Gov-
19 ertnnent Operations of the House of Representatives and
20 the Committee on Government Operations of the Senate
21 which shall include--
22 "(1) the number of requests for records made to
23 such agency under '.tibsetition (a) ;
24 "(2) the nuimbpr of determinations made by such
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agency not to comply with any such request, and
2 the reasons for each such determination;
3 "(3) the nuMber of appeals made by persons under
4 subsection (a) (5) (B) ;
5 "(4) the number of days taken by such agency to
6 make any determination regarding any request for rec-
7 ords and regarding any appeal;
8 "(5) the number of complaints made under sub-
9 section (a) (3) ;
10 "(0) a copy of any rule made by such agency
11 regarding this section; and
12 "(7) such other information as will indicate efforts
13 ?to administer fully this section;
14 during the preceding calendar year."
15 SEC. 5. The amendments made by this Act shall take
16 effect on the ninetieth day after the date of enactment of
17 this Act.
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!)3r. CONGRESS
1.E.T SCASION
H. R. 4960
IN THE HOUSE OF REPRESENTATIVES
F TBRITARY 28, 1973
Mr. illowrox (for himszif, Mr. Ep,tiornomq, Mr. GrUDE, Mr. HANUAIIAN, Mr.
MCCT.OAKEY, Mr. MOORIMAD or Pennsylvania, Mr. PRrICHAIM, Mr. RECTILA,
and Mr. TdoNE) introduced the. following bill; which was referred to he
Committee on Government Operations
A BILL
To amend section 552 of )itle 5 of the United States Code to
limit exemptions to diielosure of informatior., to establish a
Freedom of Information Commission, and to further amend
the Freedom of Information Act.
11 Be it enacted by the Senate and House of Representa-
2 tioes of the United Statts of America in Congress assembled,
3 TITLE I?LIMITING FREEDOM OF INIFORMATION
4 ACT EXEMPTIONS
5 Sm. 101. Section 552 (a) of title 5 of the United
6 States Code (the Freedom of Information Act) is amended
7 hy adding; at the end th..reof the following new paragraph:
"(5) In any proceeling pending before a district court
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1 of the -United States under this section in which an agency
2 has refused to furnish records to the complainant on the
3 grounds that such records are exempted from being made
4 available under subsection (b) of this section, the court shall
5 examine in camera such records, including records classified
6 under statute or Executive order, to determine if they are
7 being improperly withheld. In carrying out its responsibili-
ties herein, the court may require the assistance of the Free-
9 dom of Information Commission."
10 SEC. 102. Paragraph (3) of section 552 (a) of title
5, United States Code, is amended by adding immediately
12 after the first sentence the following new sentence: "Where
13 records containing both portions that are required to be
14 made available under this subsection and portions that may be
15 withheld under subsection (b) , an agency shall make the
16 required portions available unless (A) a serious distortion of
17 meaning would result if the required portions were read
18 separately from the exempt portions, or (B) the required
19 portions are so inextricably intertwined with the exempt
20 portions that disclosure of the required portions would
21 seriously jeopardize the integrity of the exempt portions."
22 SEC. 103. The following paragraphs of section 552 (b)
23 of title 5, United States Code, are amended to read as
24. follows:
25 (a) "(4) trade secrets and commercial or financial
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1. information which the agency has obtained from a person
2 under a statute specifically conferring an express grant of
:; confidentiality to the extent the agency receiving the infor-
mation confers confidentiality under an express written
5 pledge."
t; (b) "(5) interagency or intraagency memorandums
'1 or letters which contain recommendations, opinions, and
advice supportive of policymaking processes."
(c) "(7) investigatory records complied for law en-
10 purposes, but only to the extent that the produc-
11. of such records would constitute (A) a genuine risk to
12 enforcement proceedings, (B) a clearly unwarranted lava-
i: sion of personal privacy, or (c) a threat to life."
TITLE II?FREEDOM OF INFORMATION
15 COMMISSION
t; EST A BLISHMENT
117 SEc. 201. There is established a commission to he
known as the Freedom of Information Commission (here-
inaf fer referred to as the "Commission") .
20 SEC. 202. The Commission shall be composed of seven
21 members as follows :
22 (a) two appointed by the Speaker of the House of
23 Representatives, both of whom shall not be of the same
political party ;
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1 (b) two appointed by the President pro tempore of
2 the Senate, both of whom shall not be of the same
3 political party; and
4 (c) three appointed by the President, of whom not
5 more than two shall be of the same political party.
6 A vacancy in the Commission shall be filled in the manner
7 in which the original appointment was made.
8 SEC. 203. Of the members first appointed?
?9 (a) one appointed by the Speaker of the House of
10 Representatives, one appointed by the President pro
tempore of the Senate, and one appointed by the Pres-
12 ident shall be appointed for a term of five years;
13 (b) one appointed by the Speaker of the House of
14 Representatives, one appointed by the President pro
15 tempore of the Senate, and one appointed by the Pres-
16 ident shall be appointed for a term of three years; and
17 (a) one appointed by the President shall be up-
18 pointed for a term of one year.
19 Sic. 204. Successors to members first appointed shall
20 be appointed for a term of five years, except that any indi-
21 vidual appointed to fill a vacancy shall be appointed only for
22 the unexpired term of his predecessors. No member may
23 serve more than one term, but a member may serve until his
24 successor has been appointed and qualified.
96-576 0 - 73 -- 2
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5
3. SEc. 205. No member of the Commis:44m shall actively
2 engage in any business, vocation, or employment other than
3 that of serving as a member of the Commission.
4 SEC. 2013. Four members of the Connoission shall con-
5 Ktititte a quorum.
6 SW. 207. The Chairman and Vice Chairman of Elie
7 Commission. shall be vied ed from the membership by the
8 members of the. Commissioi for a term of two years.
9 Sm. 208. The Commission shall meet at the call of the
10 Chairman or a majority of the members.
11 SEC. 209. Members of the Commission shall be respon-
12 slide for maintaining the confidentiality of material in their
13 custody, and all security procedures prescA)ed by law and
Executive order shall be followed in the safeguarding of
15 classified material.
1.6 SEc. 210. Section 5215 of title 5, United States Code, is
17 amended by adding at the end thereof the following new
t8 paragraph:
" (95) Members, Freedom of Information Com-
mission."
21. Ste. 211. The Commission shall appoint an Executive
22 -.Director who shall be hired by the Commissior;. Section 53111
2:3 of title 5, United States Code, is amended by adding at the
21- end thereof the following new paragraph:
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ii "(131) Executive Director, Freedom of Informa-
2 tion Commission."
3 PoWEIRS
4 SEC. 212. The Commission is authorized to?
(a) appoint such personnel as may be necessary
6 subject to the provisions of title 5, United States Code,
7 governing appointments in the competitive service, and
shall be paid in accordance with the provisions of chapter
9 51 and subchapter III of chapter 53 of such title relating
10 to classification and General Schedule pay rates;
11 (b ) prescribe such rules and regulations as may be
12 necessary to effectuate the provisions of this title;
1.3 (c) hold hearings, administer oaths, take testimony,
14 receive evidence, require persons to appear and to furnish
15 information, and it and act at such times and places
16 as is deemed advisable, to the extent that such actions
17 are relevant to its duties;
18 ((1) employ experts and consultants in accordance
19 with section 3109 of title 5, United States Code, and
20 compensate individuals so employed for each day (in-
21 eluding travehime) at rates not in excess of the maxi-
22 math rate of pay for grade GS-18 as provided in section
23 5332 of title 5, United States Code, and while such
24 experts and consultants are so serving away from their
25 homes or regular place of business, to pay such em-
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ployees travel expenses and per diem in lieu of subsist-
ence at rates authorized by section 5703 of title 5, United
States Code, for persons in Government service em-
ployed intermittently;
5 (e) use the -United States mils in tlie some manner
and upon the some conditions as other g encies; and
(f) adopt an. official seal which shall be judicially
8 noticed.
9 SEC. 213. (a) The Commission shall have the power
to to issue subpenas requiring the attendance and testimony of
Ft witnesses and the production of any evidence that relates to
12 any matter under investigation by the Conanission. Such
t; attendance of witnesses and the production of such evidence
may be required from any place within the United States ,it
1.;) any designated place of hearing within the -United States
-P; (b) If a person issued a subpena under subsection (a)
li reiuses to obey such subpena or is guilty of contumacy, any
court of the United States within the judicial district within
I ) which the hearing is conducted or within the judicial dis-
24} trict within which such person is found or resides or transacts
21 business may (upon application by the Commission) order
22 such person to appear before the Commission to produce evi-
23 denve or to give testimony touching the matter under inves-
21 Any failure to obey such order of the court may be
25 punished by such court as a contempt thereof.
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8
(c) The subpenas of the Commission shall be served in
2 the manner provided for subpenas by a United States district
3 court under the Federal Rules of Civil Procedure for the
4 United States district courts.
5 (d) All process of any court to which application may
6 be made under this section may be served in the judicial
7 district wherein the person required to be served resides or
8 may be found.
9 SE?. 214. Upon request made 'by the Commission, each
10 Federal agency is authorized and directed to allow access to
11 and furnish to the Commission all information, documents
12 (including those classified under law or Executive order) ,
13 data, and statistics in the agency's possession which the Com-
m mission may determine to be necessary for the performance
15 of its duties.
16 SEC. 215. The Commission shall transmit to the Congress
17 and the President an annual report not later than March 30
18 of each year, covering the previous calendar year, and such
19 other reports as it deems advisable regarding its activities and
20 containing such recommendations for legislation or other
21 governmental action as the Commission determines to be
22 appropriate.
23 SEC. 216. The Commission shall make available for pub-
24
lie inspection at reasonable times in its office a record of its
25 proceedings and hearings, except that the Commission shall
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8
1 (c) The subpenas of the Commission shall be served in
2 the manner provided for subpenas by a -United States district
3 court under the Federal Rules of Civil Procedure for the
4 United States district courts.
5 (d) All process of any court to which application may
6 be made under this section may be served in the judicial
7 district wherein the person required to be served resides or
8 may be found.
9 SEC. 214. Upon request made by the Commission, each
10 Federal agency is authorized and directed to allow access to
11 and furnish to the Commission all information, documents
12 (including those classified under law or Executive order) ,
13 data, and statistics in the agency's possession which the Com-
m mission may determine to be necessary for the performance
15 of its duties.
16 SEG. 215. The Commission shall transmit to the Congress
17 and the President an annual report not later than March 30
is of each year, covering the previous calendar year, and such
19 other reports as it deems advisable regarding its activities and
20 containing such recommendations for legislation or other
21 governmental action as the Commission determines to be
22 appropriate.
23 SEC. 216. The Commission shall make available for pub-
24 lie inspection at reasonable times in its office a record of its
25 proceedings and hearings, except that the Commission shall
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19
10
1 Federal agency has its principal place of business, or the
2 private party resides.
3 DUTIES
4 SEC. 219. The Commission shall initiate an investigatiOn
5 requested by a court of the United States, the Congress of the
6 United States, a committee of the Congress, the Comptroller
7 General of the United States, or a Federal agency concerning
8 any allegation that information in the possession of a Federal
9 agency is being improperly withheld under section 552 of
10 title 5, United States Code.
11 SEC. 220. The Commission shall initiate, upon the vote
12 of at least three of its members, an investigation requested
13 by a private citizen concerning allegations that information is
14 being improperly withheld by a Federal agency under section
15 552 of title 5, United States Code.
16 SEC. 221. The Commission shall act expeditiously in re-
17 sponse to any request initiated under section 2 L9 or 220 and
18 shall report its findings within thirty days of receipt of a
19 request, except in ease of unusual circumstances where fair-
20 ries s and ,accuracy require a reasonable delay.
21 SEC. 222. A determination by the Commission that a
22 Federal agency has improperly withheld records requested of
23 it shall be prima facie evidence against such agency in any
24 action or proceeding brought by any party against such
25 agency under section 552 of title 5, United States Code, or
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11
in, enforcement of a slibpena issued by Congress, a commit-
tee of Congress, the Comptroller General., or a Federal
agency.
SEC. 223. For the purposes of this tL1e, the term 'Fed-
5 era] agency" means any agency, depariment, corporation,
independent establishment, or other entity in the executive
7 bra nch.
See. 224. There are authorized to he appropriated such
9 sums as are necessary to carry out the provisions of this
19 title.
11. SEC. 225. The Cormnission shall commence operations
12 sixty days after enactment of this title.
TITLE ITI?IMPROVING THE ADMINISTRATION
1,1: OF THE FREEDOM OF INFORMATION ACT
15 Sec. 301. The phrase "has jurisdiction to enjoin" in
u; the second sentence of section 552 (a) (3) of title 5, United
17 States Code, is amended to read "shall enjoin".
18
Si. 302. Section 552 (a) (3) of title 5, United States
19 Code, is amended by adding, at the end thereof the follow ng
20 new sentence: "The court shall award reasumble attorneys'
21 fees and court costs to the eomplainant if ii issues any such
92 injunction or order against the agency."
23 SEC. 203. Section 552 (a) of title 5, [In fed States Code,
24 is amended by adding at the end thereof the following new
25 pftragraph:
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12
1 " (G) (A) Each agency, upon a request for records made
2 under paragraph (1 ) , (2) , or (3) of this subsection, shall
3 either comply with or deny the request within ten days
4 (excepting Saturdays, Sundays, and legal public holidays)
5 of its request unless additional time is required for one of
6 the following reasons:
7 " (i) the requested records are stored in whole or
8 part at other locations than the office having charge of
9 the records requested;
10 "(ii) the request requires the collection of a sub-
11 stantial number of specified records;
12 "(iii) the request is couched in categorical terms
13 and requires an extensive search for the records respon-
14 sive to it;
15 "(iv) the requested records have not been located
16 in the course of a routine search and additional efforts are
17 being made to locate them; and
18 "(v) the requested records require examination and
19 evaluation by personnel having the necessary compo-
20 tence and discretion to determine if they are: (I)
21 exempt from disclosure under the Freedom of Informa-
22 tion Act, and (II) should be withheld as a matter of
23 sound policy, or revealed only with appropriate
24, deletions.
25 "(B) When additional time is required for one of the
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above reasons, the agency should acknowledge the request in
wilting within the ten-day period and should include a brief
notation of the reason for the delay and an indication of the
,t date on which the records would be made available or a
5 denial would be forthcoming.
" (C) An extended deadline adopted for ole of the reap
7 sons set forth above shall not exceed an additional twenty
8 days (excepting Saturdays, Sundays, and legal public holi-
9 days) beyond the original ten-day period, except that in cases
10 involving novel or complicated issues, the head of the agency
11 personally may authorize an extended period of delay not
12 exceeding thirty days upon informing the party requesting
13 the records hrwriting the reasons for the additional delay and
14 the date upon which a response shall be forthcoming.
15 " (Ti) If an agency does not dispose of a request within
16 the ten-day period, or within an extended deadline period as
17 authorized above, the requesting party may petition the
18 ofiicer handling appeals from denials of records for action on
lg the request without additional delay.
20 "(E) Final action of an appeal shall be taken within
21 twenty days (excepting Saturdays, Sundays, and public
22 legal holidays) from the date of filing the appeal, except that
23 iI mses involving novel or Complicated issues, the head of an
24 agency personally may authorize an extended period of delay
25 not exceeding thirty days upon informing the party request-
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1 lug the records in writing the reason for the delay and the
2 date upon which the appeal will be decided.
3 " (F) Denials of initial requests and appeals shall be in
4 writing and shall set forth the exemption relied upon, how it
5 applies to the records mit-Acid, and the reasons for asserting
6 it.
"(0-) Any person making a request to an agency for
8 records under paragraphs (1) , (2), or (3) of this subsec-
9 tion shall be deemed to have exhausted his administrative
10 remedies with respect to such a request if the agency fails
11 to comply with .subparagraphs (A) , (B), (C) , (E), or,
12 (F) of this paragraph.
13 "(H) Upon any determination by an agency to corn-
14 ply with a request for records, such records shall be made
15 available as soon as practicable to the person making the
16 request."
17 SEC. 304. Section 552 of title 5, United States Code, is
18 amended by adding at the end thereof the following new
19 subsection:
20 "(d) Each agency shall, on or before March 1 of each
21 year, submit a report covering the preceding calendar year
22 to the Committee on Government Operations of the House
23 of Representatives and the Committee on the Judiciary of
24 the Senate which shall include?
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15
"(I) 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 determination;
"(3) the number of appeals made by persons under
7 subsection (a) (6) (D) ;
8 "(4) the Lumber of days taken by such agency to
9 make any determination regarding any request for
it) records and regarding any appeal;
t "(5) the number of complaints made under subsec-
, tion (a) (3) ;
"(6) a copy of any rule or regulaion made by such
11 agency regarding this section; and
"(7) the total amount of fees, the average fee, mid
1(i the maximum and minimum fees collected for making
records available under this section."
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Mr. MOORHEAD. I have asked President Nixon to designate an ad-
ministration spokesman to help us work out those details, for he has
expressed his personal commitment to "the principle of a fully in-
formed public in our open and democratic society." In a letter to the
American Society of Newspaper Editors, just before the 1972 election,
President Nixon commented on the "many constructive recommenda-
tions" which came out of the subcommittee's hearings on the freedom
of information law. And he offered support of legislative revisions to
improve the administration of the law.
This is the spirit of nonpartisan cooperation which has motivated
the members of this subcommitteee over the years and which has
motivated so many members of the press whose professional life is a
commitment to public knowledge. In this spirit we can solve the legis-
lative and administrative problems which have made the freedom of
information law a less useful weapon for the free press than had been
hoped. And with these improvements, I am confident that the editors
and reporters can solve their own problems of how to use the sharpened
weapon.
That is not my complete statement; you will have trouble believing
that. But, without objection, I would like to have the full statement
made a part of the record.
Mr. Thone, if you or Mr. Copenhaver, have any opening statement
to submit, we would be pleased to receive it.
Mr. THONE. I just want to acknowledge the fact that Congressman
Erlenborn is marking up the minimum wage legislation so he will not
be here for the entire hearing this morning; but he will try to stop by.
Mr. MOORHEAD. I understand that he has an opening statement,
which, without objection, will be made a part of the record at this
point, along with other material relative to the hearings.
[The material follows:]
PREPARED STATEMENT OF IION. WILLIAM S. MOORHEAD, A REPRESENTATIVE IN CON-
GRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, FOREIGN OPERATIONS
AND GOVERNMENT INFORMATION SUBCOMMITTEE
I might open these hearings with the words "once upon a time", for to some
Members of Congress and to some members of the press it was the dim and distant
past when representatives of both groups first got together to consider the status
of the people's right to know the facts of government.
It was less than 18 years ago when this subcommittee held its first hearings. It
was less than seven years ago when Congress passed the Federal Government's
first Freedom of Information Law. That certainly is not the dim and distant past
as time is measured by the calendar, but it seems a long time ago because there
has been a great increase in the flow of government information.
Nearly 200 court cases under the Freedom of Information Law, and thousands
of other cases when the law has been used to break down government secrecy
without going to court, have made the difference. But the difference between the
high wall of secrecy 18 years ago and the lower wall today is not nearly enough
of a difference.
In the first place, we are nowhere near the goal of a fully-informed public in
a democratic society which was the hope of those who started the freedom of
information fight. In the second place, the Freedom of Information Law did not
become the weapon the free press needed to fight against secrecy. We may have
fallen short of our goal of open government largely because the weapons was
inadequate to accomplish the job we planned.
That is what the Foreign Operations and Government Information Subcom-
mittee discovered after 41 days of hearings with 141 witnesses last Congress, dis-
cussing the administration of the Freedom of Information Law. We found that
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bureaucratic foot dragging--five years of it in Democratic and Republican ad-
ministrations?made the law a dull weapon in the hands of reporters and
editors.
The press has made little use of the law that they had a large share in
creating. Part of the blame must be shouldered by the press, itself. MO few
reporters and editors know how to use the Freedom of Inf3rmation Law and the
agency regulations implementing It; too many are slaves to the pressures of
tomorrow's deadlines and will not take the time to use he law to force open
government secrets.
A large share of the blame lies with the administratcrs of the Freedom of
Information Law. Not one Executive Branch agency, not one government official
testified in favor of the bill during the Subcommittee's hearings prior to its
passage in 1966. When it was passed over their opposition, they reluctantly
administered the letter and ignored the spirit of the law.
And we in Congress must share the blame. The Freedom of Information Law
was the product of legislative compromise and, therefore, it is not the perfect
instrument that the representatives of the free and res3onsible press sought.
That is why this subcommittee has called those represent ttives back again.
We want your advice on the current status of the peowe's right to know. We
want your advice on the amendments to the Freedom of Information Law which
we have developed to make it a better weapon for the press to use in the fight for
the people's right to know.
In the letter inviting you to participate in an informal discussion with the
Subcommittee, I asked to consider-
-Whether the need for public access to government information is as press-
ing today as it was in 1955;
?Whether there is easier access to government information today, and
?What Congress might do to increase the flow of information.
The men we have asked to discuss these questions with the Subcommittee
certainly are highly qualified by virtue of their past?and their present?com-
mitment to the people's right to know. They are:
J. R. Wiggins, former editor of the 'Washington Post; former president of the
American Society of Newspaper Editors; a participant in this subcommittee's
very first hearings in November, 1935. He is now the publisher of the Ellsworth-
American in Ellsworth, Maine, and he is highly regarded as an historian and
an author.
Clark Mollenhoff also participated in the Subcommittee's first hearings and,
I sometimes think, almost every other hearing the Subommittee has had, for
he is by far the most outspoken opponent of government secrecy. He is n.ow the
head of the Des Moines Register-Tribune bureau in Washington. He has won
almost every journalism prize available. He has written numerous books and has
served in the White House early in the Nixon Administration?long before
Watergate.
Herbert Brucker first appeared before this subcommittee formally in March,
1963, but hi :3 personal advice and his books and articles had long provided guid-
ance. He was then editor of the Hartford Courant and president of the American
Society of Newspaper Editors. He has been a journalism educator on the East
and West Coasts and has recently published another book on information and
democracy.
Creed Black accompanied Herb Brucker in 1963, and he appeared before this
subcommittee again in 1965, testifying on the Freedom of Information bill as a
representative of the American Society of Newspaper Editors. He has been editor
of a number of newspapers, served in the Department of Health, Education, and
Welfare, and is now editor of the Philadelphia Inquirer.
Richard Smyser testified in March, 1965, on the bill which became the Freedom
of Informaton Law. He was speaking for the Freedom of information Committee
of the Associated Press Managing Editors (and is now a Vice President) and was
then--as now?editor of The Oak Ridger, Oak Ridge, Tennessee. He, too, has
advised the Subcommittee at other times, particularly on the problem of anony-
mous news sources.
Today, we will be discussing with these experts the broad problems of free
information. in a free society. The next two weeks we will be discussing the
narrow details of legislation to help solve those broad problems.
I have asked President Nixon to designate an administration spokesman to
help us work out those details, for he has expressed his personal commitment
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to "the principle of a fully informed public in our open and democratic society."
In a letter to the American Society of Newspaper Editors just before the 1972 elec-
tion, President Nixon commented on the "many constructive recommendations"
which came out of this subcommittee's hearings on the Freedom of Information
Law. And he offered support of legislative revisions to improve the administra-
tion of the law.
This is the spirit of non-partisan cooperation which has motivated the Mem-
bers of this subcommittee over the years, and which has motivated so many
members of the press whose professional life is a commitment to public knowl-
edge. In this spirit we can solve the legislative and administrative problems which
have made the Freedom of Information Law a less useful weapon for the free
press than had been hoped. And with these improvements, I am confident that
the editors and reporters can solve their own problems of how to use the sharp-
ened weapon.
PREPARED STATEMENT OF HON. JOHN N. ERLENBORN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Chairman, the initiation of hearings today to amend the Freedom of
Information Act complements the hearings recently held on Executive Privilege
and the forthcoming report on security classification.
The subject of all three is information and information?if current, accurate
and pertinent?is that which keeps government honest, alert and responsive to
the need of the people.
All governments, under all administrations, are inclined toward making avail-
able information favorable to them and withholding information of an em-
barrassing nature. These hearings?and the legislation considered herein?must
not be looked upon in a partisan manner or as an attack upon the incumbent
officials. The fact is that the reluctance to make information public appears to
have increased as the size of government has increased. This, of course, com-
pounds the problem of Members of Congress and the private citizen because
their need to know increases as the complexity of government and society
increases.
To check and reverse this dangerous trend, I have drafted legislation (co-
sponsored by many other Members) to restrict the Executive Branch's use of
Executive Privilege thereby enhancing Congress' right to know. This has already
been the subject of hearings. The subcommittee will soon consider a report calling
for legislation restricting the amount of information that can be classified.
That subject must be fully explored in the future. Today, we begin hearings on
legislation co-authored by Congressman Horton and me (together with many
other Members) to expand the public's right to receive information by amending
the Freedom of Information Act.
The POI Act was signed into law about 7 years ago. Almost revolutionary in
form, it established a charter of informational freedom in behalf of the public
by providing that the duty lies with the Government to make information avail-
able to the public unless it falls into certain limited categories of exemption.
Failure to comply makes an agency subject to judicial process.
While limitations upon freedom must always be questioned, the exemptions
to the POT Act were necessary to safeguard essential government secrets, in-
vestigations and internal processes while protecting personal privacy and trade
secrets.
During the 92nd Congress, this subcommittee conducted lengthy oversight
hearings of the Act. While some may disagree with me, I believe those hearings
revealed that compliance with the Act was far more successful than many
would have predicted at the time of its enactment. We must keep in perspective
that this legislation attempted at one blow to reverse a bureaucratic state of
being. The large amount of information freed compared to the relatively limited
number of complaints lodged against the Act's wrongful administration shows
generally a favorable balance.
Yet, mistakes and errors have been committed. In particular, the hearings
disclosed that certain of the exemptions were too broad or provided too great a
leeway for misinterpretation. Also, many agencies administered provisions of
the Act in too negative and restrictive a manner. Other defects included: agen-
cies' failure to recognize their burden of proof if information is withheld, delays
in responding to requests, charging excessive fees, and failure to establish clear
channels of authority for administering the law.
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Out of the hearings grew the recognized need, therefore, to amend the Act to
correct those deficiencies which cannot reasonably be adjusted by remedial re-
form put into effect by the agencies themselves. H.R. 4960?co-authored by Con-
gressman Horton and me?is designed to provide these corrections. Legislation
proposed by Chairman Moorhead would accomplish many of the same purposes.
The first major provision of H.R. 4960 is designed to overturn the Supreme
Court decision earlier this year in EPA v. Mink wherein the court held, in effect,
that a lower court may not question a Federal agency's security classification
of information and is not required to question an agency's withholding of in-
formation relating to alleged internal procedures.
The decision in this case should not stand. In the instance of security classifi-
cation, as developed in hearings last year, an extremely large amount of in-
formation classified by the Government does not deserve to be classified and
can be made public without harm to national security. To overcome this defect,
H.R. 4960 directs the courts when deciding whether requested information should
be made public to examine the information, including classified data, and to
order such information to be made public which is being improperly withheld.
Regarding the other category of information dealt with by the Mink decision?
internal proceedings--H.R. 4960 amends exemption 5 of the FOI Act in order
that only internal memos and letters may be withheld from the public if
they contain recommendations, opinions or advice supportive of policymaking
processes. The main purpose for maintaining internal communications in con-
fidence is to protect the policymaking processes by assuring that individuals may
render opinions, advice or recommendations without fear or being embarrassed
or questioned hostilely elsewhere. This I seek to safeguard in the legislation.
Nothing else do I believe should be so exempted, whereas, under existing law,
this exemption is widely misused by agencies in withholding requested infor-
mation.
Coupled with the above provisio:ns in the proposed legislation is authority for
the courts to make available those parts of a document?classified, internal com-
munications, or otherwise?which do not meet the exemption requirements. This
is designed to overcome a practice by some agencies to corn ingle information in
order to bring all of it under the umbrella of an exemption.
H.R. 4960 amends two other major exemptions of the FOE Act in an effort to
close loopholes made apparent in the subcommittee's hearings last year.
One amends exemption 4 on trade secrets so that only those documents con-
taining alleged trade secrets may be withheld which are authorized to be held
confidential by another statute and which the agency has received under a:a ex-
press grant of confidentiality. This amendment serves two purposes. First, it does
not turn the POI Act into a vehicle for conferring a trade secret exemption, as
the present language of that statute has been interpreted to do in some eases.
Second, it makes certain that an agency does not thoughtlessly or inadvertently
confer a trade secret exemption merely through the receipt of informatior,. In-
stead, such may only come about through a positive grant of trade secret status-
The other involves an amendment to exemption 7, relating to investigatory
records compiled for law enforcement purposes. Under the existing FOI Act, this
exemption has been given an unduly broad interpretation, exempting records from
the public even though a particular investigation is no longer active or the release
of information relating thereto could in no way constitute a threat to the investi-
gation. H.R. 4960 seeks to narrow this exemption so that only those records will
be exempted which, if made public, would constitute a genuine risk to enforce-
ment proceedings, a clearly unwarranted invasion of personal privacy, or a
threat to life.
An additional provision of importance in H.R. 4960 prescribes limited time
periods in NV hieh an agency must respond to a request by an individual for
information. Generally, a request must be responded to within 10 days. Only in
five specific situations?spelled out in the bill?may an additional 20 days be
allowed, except where novel or complicated issues are involved when an addi-
tional 30 days are allowed. Appeals within an agency also must be resolved within
20 days except in novel or complicated cases when an adeltional 30 days are
allowed.
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I recognize that a case can be made for more stringent time requirements. Yet,
I believe that too great stringency may be unreasonable and even self-defeating
in those instances when an agency has difficulty locating the information or in
gathering it together. A little more leeway, I submit, may in the long run provide
greater amounts of information more expeditiously.
Enactment of legislation has little meaning, frequently, if the means does
not exist to enforce it effectively. Such has been the case under the POI Act
because the need to enforce the Act's provisions in court has frequently proven
too confusing, costly and time-consuming. In addition, especially in the area of
classified information but also in the areas of trade secrets, investigatory files,
and internal communications, I suspect courts may be reluctant or at a dis-
advantage in deciding issues on their merits because they lack expertise of the
subject matter.
To overcome this, H.R. 4960 creates a 7-member Freedom of Information Com-
mission which, upon request of a court, Congress, the General Accounting Office,
or a member of the public (if 3 members of the Commission concur), is authorized
and directed to investigate whether an agency has improperly refused to make
information available. The Commission is not itself authorized to order informa-
tion made available. Only a court may do that as in the case under existing law.
But, the bill makes a Commission finding prima facie evidence?meaning that
the Government must assume the burden of proof that the withholding was legal.
From the court's standpoint, creation of the Commission will provide a source
for reviewing large amounts of information of a technical nature, thereby
relieving the court of this burden. From the standpoint of Congress, the public
and the GAO, a Commission of this type can gave large amounts of money and
time. The Commission must act expeditiously and with a minimum of procedural
redtape. This means that the requesting party and a government agency will get a
fast, unbiased decision on the status of information under the FOI Act.
While the Commission lacks authority to order information to be made avail-
able, knowledge by an agency that an adverse finding will be treated as prima
facie evidence against it by a court should generally tilt the scales toward
making the information public. Equally compelling may be the fact that H.R.
4960 authorizes a court to confer attorney's fees and court costs in favor of a
requesting party if information has been improperly withheld, while the Com-
mission is authorized to levy against an agency costs and attorneys fees for
improperly withholding information at the agency level.
In closing, may I express my pleasure at your early scheduling of these hear-
ings, Mr. Chairman. This is clearly a bipartisan matter, as Members of all
persuasion have joined in co-sponsoring our respective bills. In that spirit, I
know we can choose what is best in your bill, what is best in my bill, and together
we can report out legislation which will greatly benefit the public's need for a
freer flow of information.
BILLS IDENTICAL TO H.R. 5425 AND THEIR COSPONSORS
H.R. 5426?Mr. Reuss, Mr. Rosenthal, Mr. Roybal, Mr. Thompson of New
Jersey, Mr. Phone.
H.R. 5873?Mr. Matsunaga.
H.R. 6261?Mrs. Mink, Mr. Adams, Mr. Bingham, Mr. Brademas, Mr. Brown
of California, Mrs. Chisholm, Mr. Dellums, Mr. Green of Pennsylvania, Mr.
Hawkins, Ms. Holtzman, Mr. Mazzoli, Mr. Seiberling, Mr. Stokes, Mr. Van Deer-
lin.
H.R. 6792?Mrs. Burke of California, Mr. Rangel, Mrs. Schroeder.
BILLS IDENTICAL TO 11.11. 4960 AND THEIR COSPONSORS
H.R. 7472?Mr. Anderson of Illinois, Mr. Fascell, Mr. Fauntroy, Mr. Hansen
of Idaho, Mr. Heinz, Mr. Parris, Mr. Riegle, Mr. Rooney of Pennsylvania, Mr.
Ruppe, Mr. Thompson of New Jersey.
H.R. 7709?Mr. Cohen, Mr. Coughlin, Mr. Esch, Mr. Mallary, Mr. Mitchell
of Maryland, Mr. Owens, Mr. Price of Illinois, Mr. Stark.
II.R. 8085?Mr. Cleveland.
H.R. 8399?Mr. Rinaldo.
96 575 73 3
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[From the Congressional Record of March 8,1978]
IVIOORHEAD INTRODUCES LEGISLATION To STRENGTHEN. TILE FREEDOM OF
INFORMATION ACT (5 U.S.C. 552)
The SPEAKER pro tempore. Under a previous order cf the House, the gentle-
man from Pennsylvania (Mr. MOORHEA D) is recognized for 5 minutes.
Mr. Moonrmam of Pennsylvania. Mr. Speaker, I am leslay introducing a bill.
the "Freedom of Information Amendments of 1973." It is cosponsored by many of
our House colleagues on both sides of the aisle, and is also being introduced to-
day in I he other body by the distinguished Senator from Maine (Mr. Musim),
also with bipartisan cosponsorship.
The bill contains a series of amendments to the Freedom of Information Act
(5 U.S.C. 552) designed to strergthen the operation of the act, to broaden the
public's right to know, and 1:0 plug loopholes which secrecy-minded bureaucrats
have found in the present law. The measure is based upon weeks of hearings last
year by the Foreign Operations and Government Information Subcommittee and
on the una.nintous report adopted last September by the House Government Op-
erations Committee entitled "Administration of the Freedom of Information
Act"?House Report 92-1419.
Mr. Speaker, the legislative history of the act, which became effective. on July
4, 1.967. clearly sets forth the rights of all Americans to know what the Federal
Government is doing in their name--subject only to nine specific exemptions. The
law was the result of some 11 years of investigations, studies, and hearings by
our subcommittee under the dedicated leadership of the gentleman from Califor-
nia (Mr. Moss), who presently serves as ranking Democratic member on our
subcommittee. But our investigations an.d hearings last year on the operation of
the act during the past 5 years showed that in too many instances the Federal
bureaucracy has been able to sta71, distort, and otherwise thwart efforts of many
citizens to obtain information (:)-,7 documents to which they are clearly entitled
under the Freedom of Information Act.
Our unanimous report recommended a number of administrative reforms by
Federal rgencies to attack some of the deficiencies in the administration of the
act. Our follow-up efforts to implement these recommendations have resulted in
pledges from virtually all of the Federal agencies that they will implement our
administrative reform proposals. In this connection, I placed into the RECORD
last monrii the text of the new Department of Justice regulations which incor-
porate most of these recommendations. I urge other Federal agencies to follow
the leadership of the Justice Department. RECORD, February 20,1973, page E894-7.
However., we concluded that many of the barriers to the free flow of information
that Congress intended to remove when it passed the Freedom of Information
Act in 196E5 can only be over2ome by legislation that will clarify, strengthen, and
improve existing language in the act. That is what tie bill introduced today
seeks to accomplish.
Mr. Speaker, because of the wide interest in the proposed amendments to the
act, I will describe each of them briefly:
AME NOM ENTS TO SECTION P12 (A)
Agencies would be required to "publish and distribute" their opinions made in
the adjudication of cases, policy statements and inter2retations adopted, and
administrative staff manuals and instructions to staff that affect the public.
rather than merely making their. "available for public inspection and copying,"
as provided in the present law.
Agenelis would be required to respond to requests for records which "reason-
ably describes such records." This language is substituted for the term "iden-
tifiable records," which we discovered was used by the bureaucracy in canny cases
to avoid making information available.
Agencies would be required to respond to requests ender the aet within 10
days?excepting Saturdays, Sundays, and legal public holidays?after receipt
of lime request and within 20 days?wil h the same exceptions?on administrative
appeals following denials to the requesting party. These time periods are the
result of a 1971 study and recommendations on improv ng the operation of the
act as adopted by the Administrative Conference of the United States and would
provide n positive mechanism to correct one of the most glaring deficiencies un-
covered during our hearings---that of agency stalling and foot-dragging tactics to
avoid public disclosure.
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The Government could be required by the courts to pay "reasonable attorney
es and other litigation costs" of citizens who successfully litigate cases under
,fe act. This amendment is directed toward another major deficiency of the
resent law revealed during our hearings?the high costs to the average citizen
then attempts to obtain records under provisions of the act are frustrated
y arbitrary or capricious acts of the bureaucracy or by foot-dragging tactics.
;itch assessment would be at the option of the court and has been successfully
Lsed in numerous civil rights cases in past years.
Agencies would be required to file answers and other responsive motions to
itizens' suits under the act within 20 days after receipt. Under normal rules
f Federal civil procedure, the Government is given 60 days to file such
sponses, although the private citizen has only 20 days to respond to Govern-
eat motions; this amendment would plug a major loophole used by the Govern-
ent and revealed in our hearings, involving cases where repeated filing of
laying metions by the Government stalled court consideration of Freedom
f Information Act cases for as long as 140 days. Such stalling tactics make
mockery of the law and often make the information, if finally made available
the citizen, virtually useless to him.
New provisions proposed to section 552(a) would clarify the original intent
i! Congress in connection with the interpretation of the "de novo" requirements
laced on the courts in their consideration of cases under the act. Such amend-
tent is made necessary by the Supreme Court's decision in the case of Mink
. EPA, (410 U.S. ?) decided on January 22, 1973, when the Court held that
iidges may not examine in camera documents in dispute where the Govern-
lent claims secrecy by virtue of exemption 552 (b) (1), dealing with the national
cefense or foreign policy, and are not required to exercise such in camera judg-
lent in cases involving exemption 552(b) (5), dealing with interagency or
ntraagency memorandums. The amendments make it clear that Congress
9tended and still intends that "de novo" as used in the law means that since
,he burden of proof for withholding is on the Government, courts must examine
agency records in camera to determine if such records as requested by the
plaintiff in a suit under the act, or any part thereof, should be withheld under
any of the nine permissive exemptions of 552(b). It also makes it clear in cases
where exemption 552 (=a) (1) is claimed by the agency, the Court must examine
Such classified records to see if they are a proper exercise of such Executive
lrder classification authority and that disclosure of the information requested
vould actually ?be "harmful to the national defense or foreign policy of the
United States."
AMENDMENTS TO SECTION 552 (5)
Permissive exemption (b) (2) would be amended to require disclosure of
nformation about an agency's internal personnel rules and internal personnel
practices, so long as such disclosure would not "unduly impede the functioning
of such agency."
Permissive exemption (b) (4) would be amended to modify the exemption
for trade secrets by requiring that such types of information be truly privi-
leged and confidential, as is already provided in the case of commercial or
financial information under this exemption.
Permissive exemption (b) (6) would be amended to limit its application
to medical and personnel "records," instead of "files" as in the present law ;
this would close another loophole in the act whereby releasable information
is often commingled with other types of information in a single "file," and
therefore withheld.
Permissive exemption (b) (7) would also be amended to substitute the word
"records" for "files" as in (b) (6), for the same reason?to curb agency com-
mingling of information to avoid public disclosure. The amendment would also
narrow the exemption to require that such records be compiled for a "specific
law enforcement purpose, the disclosure of which is not in the public interest."
It also enumerates certain categories of information that cannot be withheld
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 an agency, officer, or employee of the
United States, or which serve as a basis for rulemaking by an agency.
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AMENDMENT TO SECTION 552 (C)
The amendment proposed to section (c) clarifies the position that COngre;
upon written request to an agency, be furnished all information or records
the Executive that is necessary for Congress to carry out its functions. Langua;
in the present law -Merely states that the Freedom of Information Act does n
authorize "withholding of information from Congress."
NEW SECTION 52(D)
Establishes a mechanism for congressional oversight by requiring annn
reports from each agency on their record of administration of the act, requiri;
certain types of statistical data, changes in their regulations, and similar ty)
of information.
Finally Mr. Speaker, the bill provides that these amendments shall take effi
PO days after enactment so as to provide adequate time for the executive agenci
to promulgate necessary changes in their regulations and operational guidelin
Mr. Speaker, the Freedom of Information Act has always enjoyed broad hip
tisan support. Our subcommittee has been forthright in criticizing bureaucra
secrecy during the past four administrations?two Republican and two Den
eratic?when it has infringed on the right of the American people to know wh
their Government is doing in their name.
Our hearings on the administration of the act last year produced much distill
ing- evidence that the vast Federal bureaucracy is withholding great amounts
information from the American people by a variety of loopholes in the nreser
law and other devices. Contrary to general opinion, much of the information heir.
hidden by Government agencies has little to do with hydrogen bombs, weapor
systems, state secrets, or other sensitive types of classified data that requin
safeguarding. We found that a large number of government denials of inform!
Lion requested under the act involved matters connected with the day-to-da;
activities of Federal agencies in their handling of various domestic program
financed out of our tax dollars or to avoid embarrassing bureaucratic mistakes
scandal, ma latiministrati on, or otb or actions directB. contrary to the intent o
I.ongressi and the publie interest.
Ow bill will help reverse the dangerous trend toward "Government behini
:dosed doors" that threatens our free press, our free society, and the efficieri
operation of hundreds of important programs enacted and funded by Conga-ea'
It will help restore the confidence of the American ;nenple in their Governmen
in its elected leadership by removing the veil 01! unnecessary secrecy tha
shrouds vast amounts of Government policy and action.
NN'e must eliminate to the maximum extent possible Government's preaccupa
tine svith secrecy and closed door policy formulation, because it cripples tr
degree of participation of our citizens in governmental affairs that is so essenthr
tHider our political system. Government secrecy is the enemy of democracy.
Secrecy subverts, and will eventually destroy, any representative system?ins
Is IT is necessary to maintain a totalitarian dictatorshM.
The enactment of legislation in this Congress to strengthen the Freedom a.
Information Act to make it more difficult for the Federal bureaucrat to withhold
vital information from the Congress and the public is of paramount importance.
The bipartisan nature of this effort is shown by the fact that members of both
parties in both the House and the Senate are cosponsoring this bill. Bipartisan
work has been responsible for the investigations, hearings, and the unanimous
Government Operations Committee report issued last year. Last week, the gentle-
man from New York (Mr. Howrots-), ranking minority member of the full com-
mittee, and the gentleman from Illinois (Mr. ERIENDalN), ranking minority mem-
; ier 07 our subcommittee, introduced H.R. 4960, a separate bill to strengthen the
Freeewn of Information Act. I was most pleased to cosponsor their bill also to
demonstrate the truly biipartisan approach that our committee follows in this
are:I. Both have been diligent over the years in fulfilling their commitment to the
bri ec;;ples of the act.
Speaker. hearings will be scheduled on these bills to make needed amend-
ments to the act following the Easter congressional recess. T invite other Members
who share our concern far strengthening the Freedom of Information Act to join
as cosponsors or to testify during our hearings. I am confident that our com-
mittee will succeed in reporting a workable and meaningful bipartisan bill to the
;Elonse that all Members can enthusiastically support.
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? PUBLIC LAW 90-23, 90TII CONGREBSjI,IL 5357,J:VNE 5, 1967
AN ACT
c. amend section 552. Of title 5, United ?States COde, to 'Codify 'the provisions Of
Public Law 80-487
Be it enadted by the Senate and House Representatives of the United States
r America in 'Congress assembled, That section 552 of title 5, United States Code;
amended to read :
? 552. Public information; agency rules, orders, records, and proceedings
"(a) Each agency shall make available to the public. information as follows ;
"(1) Each agency shall separately state and currently publish in the Federal
?gister for the guidance of the public?
"(A) descriptions of its central and field organization and the established
aces at which, the employees (and in the case of a uniformed service, the Mem-
rs) from whom, and the methods whereby, the public may obtain informa-
m, make submittals or requests, or obtain decisions;
"(B) statements of the general course and method by which its functions are
aanneled and determined, including the nature and requirements of all formal
ad informal procedures available;
"(C) rules of procedure, descriptions of forms available or the places at
rhich forms may be obtained, and instructions as to the scope and contents of all
apers, reports, or examinations;
"(D) substantive rules of general applicability adopted as authorized by law,
tnd statements of general policy or interpretations of general applicability
ormulated and adopted by the agency; and
"(E) each amendment, revision, or repeal of the foregoing.
ixcept to the extent that a person has actual and timely notice of the terms
:hereof, a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter reasonably available to the
class of persons affected thereby is deemed published in the Federal Register when
incorporated by reference therein with the approval of the Director of the Federal
Register.
"(2) Each agency, in accordance with published rules, shall make available for
public inspection and copying?
'(A) final opinions, including concurring and dissenting opinions as well as
orders, made in the adjudication of cases;
" (B ) those statements of policy and interpretations which have been adopted
by the agency and are not published in the Federal Register; and
"(C) administrative staff manuals and instructions to staff that affect a
member of the public;
unless the materials are promptly published and copies offered for sale. To the
extent required to prevent a clearly unwarranted invasion of personal privacy,
an agency may delete identifying details when it makes available or publishes
an opinion, statement of policy, interpretation, or staff manual or instruction.
However, in each case the justification for the deletion shall be explained fully
in writing. Each agency also shall maintain and make available for public in-
spection and copying a current index providing identifying information for the
public as to any matter issued, adopted, or promulgated after July 4, 1967, and
required by this paragraph to be made available or published. A final order,
()pillion, statement of policy, interpretation, or staff manual or instruction that
affects a member of the public may be relied on, used, or cited as precedent by
any agency against a party other than an agency only if?
"(i) it has been indexed and either made available or published as provided by
this paragraph; or
"(ii) the party has actual and timely notice of the terms thereof.
"(3) Except with respect to the records made available under paragraphs (1)
and (2) of this subsection, each agency, on request for identifiable records made
in accordance with published rules stating the time, place, fees to the extent au-
thorized by statute, and procedure to be followed, shall make the records promptly
available to any person. On complaint, the district court of the United States
in the district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, has jurisdiction to enjoin
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the agency from withholding agency records and to order the production
any agency records improperly withheld from the complainant. In such a case ti
court shall determine the matter de novo and the burden is on the agency to su
tam n its action. In the event, of noncompliance with the order of the court, th
district court may punish for c ontempt the responsible employee, and in ti'
case of a uniformed service, the responsible member. Except as to causes th
court considers of greater importance, proceedings before the district court, a
authorized by this paragraph, take precedence on the docket over all other cause
and shall be assigned for hearing and trial at the earliest practicable date am
expedited in every .way.
"(4) Each agency having more than one member shall maintain and mak
available for public inspection a?.ecord of the final votes of each member in eves
ageney proceeding. -
"(b) This section does not apply to matters that are--
1) specifically required by Executive order to be kept secret in the interes
of national defense or foreign policy;
" ( 2) related solely to the internal personnel rules and practices of an agenc
" (3) specifically exempted from disclosure by statute;
" ( 4) trade secrets and commercial or financial information obtained from
person a ad privileged or confidential;
" ( 5) inter-agency or intra-agency memorandums or letters which would not b
available by law to a party other than an agency in litigation with the agency
" (6) personnel and medical files and similar files the disclosure of which wouli
constitute a clearly unwarranted invasion of personal privacy;
"(7) inveStigatory files compled for law enforcement purposes except to th
extent available by law to a party other than an agency;
(8) contained in or related to examination, operating, or condition report
prepared by, on behalf of, or for the use of an agency responsible for the regula.
Hon or supervision Of financial institutions; or
(9) geological and geophysical information and data, including maps, con-
cerning wells.
( This section does not authorize withholding of information or limit the
availability of records to the prblic, except as specifically stated in this section.
This section is not authority to withhold. Information from Congress."
SEc. 2. The analysis of chapter 5 of title 5, United States Code, is amended by
striking out:
"552. Publication of information, rules, opinions, orders, and public records."
and inserting in place thereof:
"552. Public information; agency rules, opinions, orders, records, and pro-
ceedings."
SEe. a The Act of July 4, 1966 (Public Law 89-487, .ii() Stat. 250), is repealed.
SEC. 4. This Act shall be effective July 4, 1967, or c n the date of enactment, .
whichever is later. ?
Approved June 5, 1967.
L3GISLATIVE HISTORY
House .Report No. 125 (Comm. on the Judiciary).
Senate Report No. 248 (Comm. on the Judiciary).
Congressional Record, Vol. 113 (1907) :
A.pr. 3: Considered and passed House.
May :19: Considered and passed Senate, amended.
May 25: House agreed to Senate amendments.
[]'rom the Corwresgiortal Record of April 30, 1973]
IIKARINGA ANNOUNCED 11Y FOREIGN OPERATIONS AND GOVERNMENT INFORMATION
SUBCOMMITTEE ON LEGISLATION To STRENGIITEN THE FREEDOM OF INFORMATION
ACT
(Mr. MOORHEAD of Pennsylvania asked and was given permission to extend
renmarks at this point in the RECORD and to include extraneous matter.)
Mr. MOORHEAD of Pennsylvania. Mr. Speaker, I call to the attention of our
colleagues the scheduling of hearings by the Foreign Operations and Government
information Subcommittee on bills to strengthen the Freedom of Information
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Act of (5 U.S.C. 552). These measures?H.R. 5425 and H.R. 4960?are sponsored
by myself and the gentleman from New York (Mr. HORTON) and are cosponsored
by several score of our colleagues in the House. They are designed to improve the
administration of the act and to plug numerous loopholes discovered during the
subcommittee's investigative hearings last year and discussed in detail in the
unanimous Government Operations Committee report based on these hearings
(H. Rept. 92-1419).
The legislative hearings will begin on Wednesday, May 2, at 10 a.m. in room
2154, Rayburn House Office Building, and will continue through Thursday,
May 16. The first day of hearings will consist of a panel of distinguished mem-
bers of the news media, all of whom testified many years ago at hearings of the
subcommittee on freedom of information matters when the gentleman from
California (Mr. Moss) was its chairman. They include:
Mr. J. R. Wiggins, former editor of the Washington Post and former president
of the American Society of Newspaper Editors. He is presently publisher of the
Ellsworth American, Ellsworth, Maine;
Mr. Clark Mollenhoff, Washington Bureau Chief of the Des Moines Register-
Tribune and former special assistant to President Nixon until 1970;
Mr. Herbert Brucker, former editor of the Hartford Courant and a former
president of the American Society of Newspaper Editors;
Mr. Creed Black, now editor of the Philadelphia Inquirer, who most recently
served as HEW's Assistant Secretary for Legislation; and
Mr. Richard Smyser, editor of the Oak Ridger, Oak Ridge, Tenn. and a vice
president of the Associated Press Managing Editors.
Members of Congress will be heard on Monday, May 7, beginning at 10 a.m. in
room 2203, Rayburn House Office Building. Those? wishing to testify should con-
tact the subcommittee office?Extension 5-3741 by Thursday, May 3. The hearing
record will be open for statements until Friday, May 25.
Witnesses from the Justice and Defense Departments and from the Administra-
tive Conference of the United States will be heard on Tuesday, May 8, beginning
at 10 a.m. in room 2154, Rayburn House Office Building.
Outside organizations and individual witnesses will be heard on Thursday,
May 10, beginning at 10 a.m. in room 2154, and on Wednesday, May 16, beginning
at 10 a.m., Rayburn House Office Building, in room 2247, Rayburn House Office
Building.
Mr. Speaker, the subcommittee began its inquiries into the "people's right to
know" back in 1955. Eleven years later, Congress enacted the Nation's first Free-
dom of Information Act (5 U.S.C. 552), which was intended to provide the widest
possible citizen access to information and records of the Federal Government?
subject only to nine limited areas of exemption that could be claimed by Gov-
ernment officials in denying requested information.
Since the law took effect on July 4, 1967, there have been nearly 200 free-
dom of information court cases and many thousands of other cases when the
law has been successfully used to obtain information or records from Federal
agencies without going to court. But vast numbers of examples of unnecessary
Government secrecy still remain entrenched within the Federal bureaucracy.
Thus, we are nowhere near the goal of a fully-informed public in a democratic
society which was the hope of those who launched the freedom of information
fight almost two decades ago.
Moreover, the law did not become the weapon the free press needed to fight
against Government secrecy. We may have fallen short of our goal of open
Government largely because the statutory weapon was inadequate to do the
job. One of the major conclusions reached after some 41 days of the sub-
committee's investigative hearings during the last Congress, at which more
than 140 witnesses testified, was that bureaucratic foot dragging-5 years of it in
both Democratic and Republic administrations?made the law a dull weapon
In the hands of reporters and editors.
The press has made little use of the law that they had a large part in help-
ing to enact. Too few reporters and editors know how to use the freedom of
information law and the agency regulations implementing it.
A large share of the blame lies with the administrators of the law. Not one
executive branch witness testified in favor of the bill during the subcommit-
tee's hearings prior to its passage in 1966. When it was enacted over their opposi-
tion, they reluctantly administered the letter, but ignored the spirit of the
In w.
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Congress must also share part of the blame. The law was the product of
legislative compromise and therefore, is not a perfect instrument that is 'fully
usable by representatives of the free and responsible press and the pttblic.
Legislation to be considered at our May hearings is designed to clarify, strength-
en, and to thus make the Freedom of Information Act a much more effective tool
in prying loose the tightly held secrets of the Federal Lureancracy?very often
kept from the public to hide waste, inefficiency, scandal, or to protect the po-
litical careers of individual Government officials.
Mr. Speaker, I am confident that the broad bipartisan support for strength-
ening amendments to the Freedom of Information Act that exists within our
committee will result in favorable House action on the bill which emerges from
these hearings. I solicit the support and assistance of all Members in this
effort.
HOUSE FOREIGN OPERATIONS AND
GWERNMENT INFORMATION SUBCOMMITTEE,
Washington, D.C., April 13, 1973.
Hon. RICRARD M. NIXON,
President of the United states,
The White House, Waskington, D. C.
DEAR MR. PRESIDENT: I know you are concerned about the flow of information
from the government to the people, for you stated your position on the issue dur-
ing the 1968 Presidential campaign and again during last year's campaign. And
last year you commented specifically on the many constructive recommendations
for improvements in the Freedom of Information Act made in a Congressional
report (H. Rept. 92-1419) following extensive hearings by the Foreign Opera-
tions and Government Information Subcommittee.
Those recommendations have been translated into legislative proposals, and the
Subcommittee plans hearings on the proposals next month. The legislation (H.R.
5425 and H.R. 4960) has been sent to all Executive Branch agencies for comment.
In view of the emphasis you have given this important subject, I am confident
you will want the legislation to have top-level consideration. Executive Branch
witnesses are scheduled to testify on May 8 and 10, 1973. and I am sure you will
want the Administration's position clearly and effectively set forth.
I am asking, therefore, that yoq designate the knowledgeable Administration
spokesman to testify at the opening of the hearings on May 8th. The Subcommit-
tee will contact additional departmental witnesses, as necessary, to discuss tech-
nical questions in later testimony.
I hope that this designation of the Administration spokesman will be made as
soon as possible so that the Subcommittee can confirm arrangements for the leg-
islative hearings.
With best regards,
Sincerely,
WILLIAM S. MOORHEAD, Chairman.
Tink; WHITE Hous:,
Washirgton, April 17, 1973.
HOD. WILTAAM S. MOORHEAD,
House of Representatives, Washington, It. C.
DisAg Mn.. CHAIRMAN: I wish to acknowledge and thank you for your April 13
letter to the President asking that an Administration spokesman testify on May 8
at the opening of hearings on H.R. 5425 and H.R. 4960.
You may be assured your letter will he called to the attention of the President
and the appropriate members of the staff. You will hear further as s.00n as
possible.
With warm regards,
Sincerely,
MOHARD K. Cooic,
Deputy Assistant to the President.
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37
EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., April 24, 1973.
Hon. WILLIAM S MOORHEAD,
Chairman, Foreign Operations and Government Information Subcommittee,
Committee on Government Operations, U.S. House of Representatives,
Washington, D.C.
DEAR MR. CUAIRMAN : In further response to your letter to the President of
April 13, 1973, the Attorney General has been .requested to provide an appropriate
spokesman to present the Administration's position on H.R. 5425 and 1I.R.:4960
at the upcoming hearings of your Subcommittee.
Representatives of the Department of Justice will be in touch with your staff
in the immediate future to provide ?the name of the individual designated to
present such testimony and to work out the details of his appearance.
The opportunity to present the Administration's position on this important
subject is greatly appreciated, and you may be sure that these legislative pro-
posals will continue to receive the careful consideration they deserve.
Sincerely,
STANLEY EBNER, General Counsel.
Mr. MOORHEAD. Would you gentlemen come forward, please? We
will gtart the hearings now.
We should also recognize the distinguished gentleman from Califor-
nia., Mr. McCloskey. Our colleague from Arkansas (Mr. Alexander) is
in the wings. Before we get started, Ms. Abzu?o? also curie by.
Do you have any opening comments about the enactment of the
Freedom of Information Law ?
Mr. TVIcaosKEY. I do not think so. I look forward to the testimony.
Mr. MoortunAn. We are now very pleased to hear from you, Mr. Wig-
gins. Then we will hear from the other witnesses. Then the subcom-
mittee members would like to pose questions.
,Do you have any comments before we start, Ms. Abzug?
MS. ABZUG. No.
STATEMENT OF I. R. WIGGINS, PUBLISHER, ELLSWORTH-
AMERICAN, ELLSWORTH, MAINE
'Mr.WIGGINS. Mr. Chairman, members of the committee, lam sure
you will not think it inappropriate if I commence by paying tribute
to those who launched this congressional effort in 1955, John Moss and
his colleague Dante Fascell, who is on this committee; and particularly
to the late Harold Cross, who was counsel for the American SoCiety of
Newspaper Editors, and I suppose appropriately regarded as the real
father of congressional effort in this field; James Pope who was active
in the hearings and who is very active in this.
I remember very well when the committee launched its work with
a survey that Mr. Moss conducted of the practices in the Government
agencies at that time which has a bearing on what you described
as the attitude of the bureaucracy toward the Freedom of Information.
Act. We discovered then that an early bar that was being cited fre-
quently is amendment 5, U.S.C. 22, the old Government housekeeping
statute, which was being used by many bureaucrats as authority for
withholding information.
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38
That overcome, the committee moved on to the Freedom of Informa-
tion Act, amendments of which are now present before this committee.
I think that it is due this committee to say that throughout the. years
in addition to producing legislation, the Freedom of Information Act
and the amendment 5, USA). 22, this committee functioned frequently
as a sort of ombudsman,. as a place to which newspapermen and other
citizens- denied information by Government could come with their
complaints.
I think that not the least of its contributions to the facilitating
of information about Government was its constant job to prod and
encourage Government agencies to be more forthcoming about their
in formation.
At the time that these hearings commenced, it was realized that the
difficulties in getting information about the Federal Government have
been enormously increased, not necessarily by the deliberate purpose
of persons in the executive branches of the Government but by the
changing character of the Government itself, under which activities
hitherto undertaken by the legislative branch, which is relatively
open, by the delegation of powers which have been more and more
exercised by the executive branch, which is traditionally operated in
a I ass accessible way.
In addition to that there is no doubt that we still suffer as we
suffered?it was apparent in 1955?from the habit of secrecy induced
by the anxiety about the security of the Nation, and that shadow has
lingered over every subsequent administration, and I suppose it will be
a long time dissipating if it ever can be dissipated, because of the
nature . of world society as it makes people more deferential towa rd
secrecy in Government operations when the securiety of the Nation is in-
yoked as a reason for it. It becomes difficult sometimes to separate its
security as a real reason, from security as an excuse.
I note that you are addressing the opinions of those who are back
here after 18 years to testify as to whether the public access to Govern-
ment information is as pressing a need today as it was in 1955. I
should say from everything I know that it certainly is.
In the kind of world in which we now live it is even more important.
than it ever has been before for the people to be fully informed.
There was a time in the history of this country and the history of the
world when an electoral error or a legislative failure or a citizen break-
down might produce a malfunction in Government for an interval, and
you could rely upon the country surviving, but in a thermonuclear
world there is some question as to whether a democratic system peri-
odically at the mercy of a transient electorate really is going to have as
good an opportunity to second guess its mistakes.
A tragic. mischance in the Democratic system might have conse-
quences infinitely more serious than they would have had 50 or 100
years ago.
And, of course, it has been clear from the beginning of the found-
ing of this Government that access to information was an essen-
tial element of a democratic society constituted as ours is, and every
President in the early years made frequent witness to the importance
of this.
George Washington very wisely said that concealment itself is a
form of deceit. He emphasized the necessity of disclosure. And Thomas
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lefferson.spoke numerous times on it and .said one thing which I think
s often overlooked by persons in Government and that is when he
aid, "It is by all means the duty of Government to give out infor-
nation so that it may be thrown back to the Government in the various
i!orms in which public ingenuity may throw it."
The lath Justice Robert Jackson has referred to this as the "inspector
;eneral law of the press."
We are frequently inclined to think of the press as beim,' adver-
ary situation related to the executive department of the being
lut it can be a useful agent and assistant to the executive department
the Federal Government in calling to their attention failures and
shortcomings in this system of government which may have escaped
he attention of official bodies, and which, if the Govermnent is quick
nd alert to utilize this enormous volunteer fact-gathering inspector
;eneral, can make great use of the press as an institution for checking
)n the Government itself.
You ask in your letter whether there is easier access to Government
nformation today or not, and I think that is a matter of which more
active practitioners in the profession than I are are better informed.
But I should say that we are engaged, I think, in a race between the
expanding size and complications of Government and the progress
that this legislative committee can make in opening up the avenues to
information.
. And, even if you make a great deal of progress absolutely in getting
more and more information out of the Government, the growing
complexity of the Government and the increasing difficulty of the
problems with which it deals, and the sheer size of the bureaucracy
imposes a necessity of constantly keeping at this project.
I would like to revert for just a moment to the point you made
about the fact that newspapers themselves had not conspicuously
utilized the provisions of the Freedom of Information Act. While I
think it is regrettable, newspapers?generally, I believe, as Harold
Cross frequently remarked?are far too reluctant to litigate matters
of this kind and frequently do not press in the law courts on the issues
that they ought to press for access to Government.
While this is a defect, I think it would be a mistake to assume that
because the newspapers have not frequently used it that the law has
not served a very important function.
One of the reasons, of course, why newspapers do not use this is the
time element, and I notice that some of your amendments are addressed
to this. It takes a period of weeks or months to get information, so
newspapers are less inclined to use the apparatus than they woulol be
if they could get it within a more limited time.
But, whether they formally use the act by initiating litigation or
not, the presence of the law accomplishes a great purpose by making
available to those who do wish to use it, citizens and press alike, a
legal means of getting at information in Government.
I would like to say in passing that this struggle from 1955 on has
been marked by a wish of the media, so far as I have knowledge of it
and one frequently adverted to, to obtain the legal means of acquiring
information about the Government. The foundation of this effort has
been an effort to gain through legislation and through law and by
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normal process of government a better information for the general
public about the processes of their own Government.
1 have looked at some of the amendments- that I have seen narrow-
ing the exception; I- think that it is a very difficult thing to contrive,
as it was in the beginning, statutory exemptions from the application
of the act that either do not go too far or that do not go far enough.
1 appreciate the difficulties with which the committee is confronted
in this area.
I think I would: like to close by saying that I think the continuing
work of this committee, the ongoing work of this committee, is at
important as any other particular piece of legislation that they produce
in any partieular, session of Congress, and I think it would he much
too hopeful to expect that this committee, or the Senate committee, ok
Congress as a whole,, can completely eliminate' ambiguities in tilt'
governmental structure that relate to the right of :the public, the right
of the people, to have an access to information.
The exorcise of these rights in the long run depends in great part on
the continuing interest of Congress, on the continuing energy ,Of the
presS itself, and upon the unending scrutiny by the legislative branch
of the practices of the executive branch. Without, that ongoing work,'
any particular piece of legislation is going to fail to meet your ulti-
mate goal of widening- the public's source of information about their
own Government.
Thank you, Mr, Chairman.
r. Moorn rEAn. Thank you, Mr. Wiggins. I can understand why
my distinguished predecessor as chairman (Mr. Moss) called upon
you al; the. 1 irst hearings on freedom of information legislation.
The subcommittee Would now like, to hear from someone I believe
might possibly be: Characterized as the "designated pinch hitter" for
the subcommittee, Mr. Clark Mollenhoff.
STATEMENT OF 'CLARK IVIOUENHOFF, WASHINGTON BUREAU
CHIEF, DES MOINES REGISTER
Mr. MOLLENTIOFF. Thank you, Mr. Chairman.
I do not know when I. have been before a committee under better
eirennistanoes. With the Watergate affair, the Nikon administration
lets proved everything that I warned about back in 1955, and it seems
doomed, to provide more dramatic examples as the days go by.
I knight say that executive privilege, which I stressed at that par-
fi cid al7 period of time, was the problem then, and thanks to the Presi-
dent, John Dean, and Mr. Kleindiest, we have had a very dramatic
demonstration of how evil this kind of doctrine can be. The whole
tragedy of Watergate is obsession with secrecy on the part of Mr.
Haldeman and Mr. Ehrlichman. It has destroyed -ft number of young
subordinates at the White House during that period of time.
Whatever happens to Ehrlichman and Haldeman at this stage, they
well deserve it. They were the leaders.
What happened to some of the other young men--Magruder, Hugh
Sloan, and miscellaneous others---is the real tragedy. I do not feel that
those people would have knowingly done anything wrong. But they
were caught within the power of Mr. Haldeman and Mr. Ehrlichman
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and would have done anything they were, asked .witheutquestion. This
was their downfall.
No, what we had in this Watergate matter .was an atmosphere of
total secrecy over the White Muse. I. tried to work against this when
/I was over there as Special Counsel to the Presided: In a few cases
I actually overruled the Justice Department...and. provided material
for thiscommittee, among others.
There was a foreign aid matter in Vietnam on: which Congressman
Moss was interested in obtaining records. The AID Agency used
executive privilege to bar him from doing so. The Justice Department
Oacked the AID Agency and the State Department. But on a Saturday
overruled them and gave Congressman Moss the records.
I might say that that caused some -little ? consternation in Mr.
I'ditchell's shop. When ho asked me for an explanation, I gave him an.
extended explication which went into all. the . reasons and the law
behind the matter. I concluded it with a very effective quote from
!Richard Nixon on this - subject, made before the House, April 22,
.19.48. I would like to quote that for the record here because it. so
!dramatically stands out against what Mr.: Mitchell. has been doing
?recently.
- On April 22,194S Representative Nixon said:
I say that this proposition cannot stand from a Constitutional standpoint or
on the basis of the merits for this very good reason. It. would mean the Pres-
ident could have arbitrarily issued an executive order in the Bennett-Meyers
Case, the Teapot Dome Case or any other case denying this Congress of the
United States information it needed to conduct an investigation of the Execu-
tive Department, and the Congress would have had no right to question his
decision.
That is precisely what Mr. Nixon was doing in January, February,
and early March. He was laying down the flat rule that he would
not permit his Counsel or other White House staff members to ''no
before either the Judiciary Committee or at that time the Senate Se-
led Committee headed by Senator Ervin. That was a policy doomed
to failure from the outset, and it is amazing to me that Mr. Nixon_
did net realize how untenable it was.
The events that unfolded involved Mr. Dean in some aspects of the
crimes. I think it is ironic that John Dean (who is drawing up Mr.
Nixon's statement on executive privilege which includes not only
present Government employees, but past employees) was one of those
involved in the cases. It is now apparent that the policies he was
setting forth there, with Mr. Nixon's knowledge or not, have covered
up his crime, and I think that that points out precisely what we have
in mind- here.
Now; it would have also covered up both crimes (and I use those
terms advisedly, because the overt acts that have been admitted by
Mr. Mitchell at this stage do constitute prima facie evidence of crime,
obstruction of justice,- and failure to avoid criminal acts) and he as the
chief law enforcement officer in the Nation was in a position to know of
people on the Committee to Reelect the President who were going to
commit or were contemplating crimes of a very serious nature, and lie
did nothing about it.
Senator Curtis made reference to this yesterday in a most forthright
manner. He commented that John Mitchell had a responsibility not
only not to have approved it, but to have specifically directed the
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42
imlividnals who mentioned it, that he would take action against it if
took place and direct them not. to do it.
With regard to executiye privilege, there was also the Matter o?
Ernest Fitzgerald, an Air Force cost analyst, who was fired after hay
ing given testimony relative to the billion dollar overruns on the C---5A
program. This committee is quite familiar with the details of that case.
In that instance, the Air Force tried to use executive privilege te
avoid giving testimony before a Civil Service Commission hearing
Fitzgerald had charged that they had covered up or were covering
perjury, falsification of records, and a smear job. Now, I had sono
familiarity with that from my term of duty in_ the White House. Dr
Air Force made an effort to impose an executive privilege on me, whict
declined. I declined on the grounds that I had not believed in the
executive privilege. When Mr. Nixon hired me, he was aware of thi
and, in fact, I believed that he was opposed to executive privilege a
that particular stage.
1 had read his statements in connection with the House hearings, 4
connection with the tax scandal hearings in the Senate, and I believed
that he too saw the evil of secrecy, the fact that the President frequent-
ly is caught by being the last to know about crimes in his own house-
hold.
I think that what has transpired in the last few months has demon-
Ara ted. very clearly that the President did not know what was going
on in his own household.
At least we can hope that he has acted on those statements.
With regard to the freedom of information laws, I think these are
good laws, and I do realize that there has been maladministration of
these laws through the nen mal tendencies of bureaucrats to hide every-
thing.
The press has not been aggressive enough in following through on
this?and I might say that the committees of Congress have not been.
In those instances where there has been a followthrough, it has been
possible in most cases to break through and get the facts.
I have had a number of instances where agencies were using the
exception on personnel records to bar the press?me specifically?from
records, on standard background about people that might be published
in "Who's Who" or any biographical sheet that was put out by the
agency. Such things as where they went to school, when they were born,
where they had worked. These were denied me by both the poverty
program and by the AID agency, and I made a fuss about it.
Unfortunately in the first instance the Ci ?Til Service Commission
ba eked the agency, which is typical of what the Civil Service Commis-
sion has done. There is no more outrageous agency in this city from the
standpoint of coverup than the Civil Service Commission. I might say
flat this was dramatized in connection with the Fitzgerald hearings,
where Chairman Hampton or the general counsel approved Herman
Staiman's ruling that the hearings should be closed because it was
somehow easier to get the truth when you did not have the press and
the public around.
bought that that particular type of thinking had gone out in the
dark ages, but it was still around, and Bob Hampton was even, arguing
it with a straight face for a period of months. More recently, Knee
he was slapped down by Judge William Bryant of the U.S. district
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court and then by a unanimous district court or circuit court of appeals
decision, he has been of a different view. ?
But this does not take away the fact that he Was going to impose
a closed hearing on Mr. Fitzgerald when what Mr. Fitzgerald wanted
was an open hearing so he might expose the shenanigans that the Air
Force had used in getting rid of him.
In that instance the grounds used for firing him was a RIF, an
abolition of the job. That was the subterfuge for disposing of a man
who had done something to displease his superiors. I became knowl-
edgeable about some aspects of the kinds of smears that they were
doing to Fitzgerald.
There were contentions that he was a security risk which they could
not back. There were contentions that he had conflicts of interest, which
they could not back, and these came to my attention at the White
House. And when the chips were down, I finally went before the Civil
Service Commission and willingly gave up my executive privilege and
testified for them.
With regard to the freedom of information laws, I agree with Russ
Wiggins that the oversight functions of the committee of Congress
represent the greatest strength that there is, and I think that recent
developments demonstrate that Congress is really our total hope in
keeping a bigger and bigger executive branch under control. We cannot
expect the people in the White House to want to disclose those things
that are at odds with their programs, that which they want to sell the
American people. We must depend upon the force of Congress, and
that force can be aided by an aggressive press.
And on that point let me say that the Post has done an absolutely
magnificent job on the Watergate. I think they have demonstrated
very dramatically why we do not need any shield laws. As you know
I am opposed to shield laws for the very same reason that I am op-
posed to executive privilege.
A shield law, when you )get right down to it, would give every mem-
ber of the press an executive privilege, the same thing we are fighting
in the Watergate matter. If that is not a dramatic example that needs
no embellishment, I cannot find one.
Mr. MOORHEAD. Mr. Mollenhoff, I felt that spear going through from
the front to the back and then out the other way.
Mr. MOLLENHOPP. I am willing to say that your intentions are (rood.
Mr. MOORHEAD. That is the only person that is attempting to claim
executive privilege, in the Fitzgerald case not even claiming it in the
way the proponents of executive privilege claimed it. That is sheer
a ffrontery.
The subcommittee would now like to hear from Herbert Brucker. He
appeared before the subcommittee back in 1963. We look forward to
hearing your thoughts in regard to the Freedom of Information issues
today, Ur. Brucker.
STATEMENT OF HERBERT BRUCKER, WINDSOR, VT.
Mr. BRUCKER. Thank you, Mr. Chairman and members of the com-
mittee. I would like to address myself to the first of the questions that
you have asked us to discuss: whether the need for public access to
Government information is as pressing today as it was in 1955.
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I do not think that any of us would have a question that the ;Inswer
to that is "Yes." Toward that end I have prepared a brief written
statement that I brought along. If I may, I -would like to leave it as
part of your record, but not take the time to read it.
Mr. MoonnEAn. Without objection, the full statement will be made
part of the record.
[Mr. Brucker's prepared statement follows:]
PREPARED STATEMENT OF HERBERT BRUCKER, 'WINDSOR, VT.
The concern of your Committee with strengthening the Freedom of Informa-
tion Act is in one sense a technical matter of insuring public access to informa-
tion about govermnent. But it seems to me chiefly significant as part of the end-
less political, struggle of the governed with their governors. The issue is not just
freedom ().-J information, but this: Who shall hold ultimate power?the govern-
ment, or the people'?
We often quote, but in practice more often forget, the fundamental principles
once put in few words by James Madison;
"Nothing could be more irrational than to give the peorde power, and to with-
hold from them information without which power is abused. A. people who mean
to be their own governors must arm themselves. with power which knowledge
gives. A popular government without popular information or the means of ac-
quiring it is but a prologue to farce or a tragedy or perhaps both."
In recent years the increasing complexity of society has prompted Congress to
insure popular information by legislation, especially through the Freedom of
Information Act. Those of us who have spent our lives in this field are happy
to see your committee now strengthening this Act, in light of experience under it.
Congress has not only taken positive steps to insure freedom of information,
it has also consistently refused. to take the opposite course of violating the First
Amendment by making laws abridging freedom of the press. Today, however,
YOU are asked to make such a law.
I refer to the proposed revision of the Federal criminal code, S. 1400. I am
sure the committee is familiar with this bill, sections 1121-1125 of which are
frightening in the breadth and sweep of information they would make secret,
apparently beyond hope of redress. I trust Congress will again refuse to go along.
What is troublesome is the fact that since World War Il both the executive and
judicial departments have moved into the vacuum Congress has deliberately left,
as required by the First Amendment. It seems to me that both the other depart-
ments are now making what are in effect laws abridging freedom of the press.
And public acceptance of what they have done has given those actions the force
of law.
As I understand it the classification of information?making it an official
secret?is based on no law whatever. It is based instead on President Truman's
Executive Order 10290 of 1951, and subsequent executive orders. But as the
late Harold L. Cross, a recognized legal authority on freedom of information,
wrote in his The People's Right to Know [Columbia University Press, 1953,
p. 2071:
"The regulations prescribed by the Order do not directly affect relations
between government and private citizens and are not binding upon the general
public."
Nevertheless the public now accepts classification as law, so much so that it
considers an Ellsberg to have broken the law by making classified information
public.
The executive has not been alone in giving the force of law to abridgements
of freedom of the press. The courts. historically the ultimate defenders of civil
liberties, are now themselves making law abridging freedom of the press.
'Thus it seems to me that. by agreeing to hear the Pentagon papers cases,
the Supreme Court abridged freedom of the press. By not refusing to bear
the cases the Court in fact for a time kept the New York Times, the Washington
Post, and others from publishing 'what they believed they ought in the public
interest to publish. If that was not the prior restraint supposedly unthinkable
since Blackstone in the 18th century, what was it?
In the end of course the Court did permit publication, on the ground that
in seeking to enjoin publication government had not met "the heavy borden"
of justifying prior restraint. But was that not a way of saying that, in the
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future, there might be times when. the government might enforce prior restraint
permanently?
Not only that but even some of the concurring opinions among the nine
the justices wrote seemed to assume, as did the dissenting minority, that gov-
ernment information belongs not to "We, the people" but to government. At
one point, for example, Chief Justice Burger wrote:
"To me it is hardly believable that a newspaper long regarded as a great
institution in American life would fail to perform one of the basic and simple
duties of every citizen with respect to the discovery of possession of stolen
property or secret government documents. That duty, I had thought?perhaps
naively?was to report forthwith, to responsible public officers. This duty rests
on taxi drivers, Justices and the New York Times."
To me this statement takes it for granted that there is no gray area here.
If the government says information is secret then it must remain secret?even
though without it the public is powerless. Under this assumptiOn, leaking
information that the government does not want leaked is simple theft. That
means theft not only of the physical books, the Pentagon papers themselves,
but also the information they contain.
To me it is not that simple. The question remains: who owns the news?
especially the news of government? If the government owns it, then the Ameri-
can people will no longer have that "information without which power is abused."
Mr. BRUCKER. Well, I think one thing that makes this broader claim
entirely pertinent is the specific information in the Freedom of Infor-
mation Act itself is important and the fact that the public, on behalf
of whom the newspapers fight for freedom of information the general
public seems to take it for granted that the burden is on the newspaper
and the other media rather than on the Government. In other words, to
think that, yes, it is right that the Government have secrets. This
is something I think is very difficult to combat through legislation or
any other way; but I think it is the most important thing.
On the question of whether there is easier access to Government
information today, again I would have to plead ignorance there being
no longer a newspaper editor. But I can simply express my delight
in the first place that we have this Freedom of Information Act, which
came up from nowhere and that now you are tightening it.
I would like to endorse the proposed amendments along the lines
of changing 'phraseology and that certain records should be made
available, published, immediately. I think that is very much the right
idea.
And as to what Congress can do to increase, the flow of information,
I would simply say keep it up. I think it is wonderful that you are
here. Thank you.
Mr. Mooumin. Thank you very much, Mr. Brucker. We appreciate
not only your oral testimony, but also your excellent written statement
as well.
The subcommittee would now like to hear from Mr. Creed Black,
who is editor of the Philadelphia Inquirer. I think it is appropriate
to describe your paper's successful case on the FHA apptaisais, but
carry on in your own way, and, if you want to touch on it, fine.
STATEMENT OF CREED BLACK, EDITOR OF THE PHILADELPHIA
INQUIRER, PHILADELPHIA, PA.
Mr. BLACK. I would like to refer to that, Mr. Chairman, but I
would first like to second the general sentiments expressed by Mr.
Wiggins in his eloquent opening statement here, and then I would
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48
I want to agree with him also on the fact that this committee- is ter-
ribly important, too. We -talk constantly in -a particular editors' group
with which I am active?the Associated Press of Managing Editors?
about our freedom of information work; how -we seem to do the same
things, perhaps, year after year and yet the unquestionable need for us
to do the same things year after year. I think that same standard ap-
plies to this eommittee. We certainly need this committee. -
I want to agree with Mr. Mollenhoff on Watergate. I think?and this
is not an original thought of mine?that it is certainly very, very clear
that, while the deed itself was bad, the eoverup that followed has over-
shadowed it as something that we regret very, very much happening.
,And it is just too bad that, as he said, the obsession with secrecy has
brought down so many possibly otherwise fine men.
T. want to agree with Mr. Black on the need to open up the processes
of Congress as well as the processes of the administrative branch of
the Government. T want to agree with the general tenor of Mr. Bruck-
er's statement, most of all, perhaps, with his brevity?and I will try
to emulate that.
As far as the use of the existing bill is concerned, I have talked with
a good many of my editors?they are out at the Shoreham this week.
The theme that runs through their answers to the question io]! "Why
ha,ve not we used it more?" is; that it takes too much time. You get lost
in the process. It is also too expensive; you need to hire legal counsel.
There is another theme, however; that despite these imperfections
and despite our minimal use of it?the law?so far, the fact that the law
is there is important. It has put out some fires before they have gotten
too big. So, by all means, while, we have found imperfections with the
law, while, we agree that we should use it more, we certainly think that
the, law?the action of 196B?was still very important.
We also think that, maybe, we as newspapermeii should pay a little
bit more attention to some of the others who have used the, law?used
it, perhans, more effectively than we have?particularly the legal pro-
fession. We should look at the ways that they have used it.
In 1966 when I testified, there were, two themes I tried to emphasize.
One was that the Government .was big and getting bigger and, there-
fore, the need for access to information was big and getting bigger
also. I think this is still valid. The other primary point, was that this
law might be looked at by Government people as really of more assist-
ance to them than it is to the press and the publie, as it is a device by
which more information about their processes will become better un-
derstood by the pith] ic and, therefore, more likely to be accepted.
I would like to go further back than 1966. I would like to go back
to 1952 and the meeting of the American Society of Newspaper Edi-
tors here in Washington---then at the Statler-Hilton. I had an assign-
ment this summer to reread the proceedings of this particular meetino-
as part of a history project for ASNE. T was really astounded, at the
eloquence on freedom of information that came out of that meeting.
T was also rather mortified that so many of the things that I thought
were being said for the first time, in 1972 really had been said?and
in malty respects better?way back in 1952.
Orie. point was made during those (1952) proceedings very effec-
tively by a man named Harold Cross, who was a special counsel to
ASNE which had hired him to help them with freedom. of informa-
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tion activities. He emphasized that while it is important that we record
Congress' "ayes" and "nays," and that we record the decisions of the
administrative branch, more important than this is that we record the
Government in the process. We need to interpret better, report more
extensively and make the public feel more a part of the processes of
government. I think that that is still terribly important.
Now, really, when I think about the question of information,: it just
becomes so terribly simple to me. The more I am in this business, the
more convinced I become?the more a sort of fervor I develop?for
the simple fact that if people are given information they will react
intelligently, much more intelligently than most of us give them
credefor. When they are not given information we get the opposite
reaction.
Relative to the Watergate, I would like to raise this question: If
the President, perhaps, had held regular press conferences, as most
of the Presidents prior to him have done; if there had been this addi-
tional exposure by him, this regular exposure ? Granted all of the
shortcomings, all of the imperfections and all of the circus atmos-
phere, we newspapermen, as well as perhaps, you Congressmen,
dis-
like about press conferences, they sail are the way by which the Presi-
dent is exposed, not only in a situation where he gives information,
but one where he gets information as well from the mere fact:of this
exposure.
I would just like to, ask you all to consider whether if he had been
more aruessible to the press?regularly over a period of months,
years?and particularly the last 9 or 10 months?might circumstances.
of Watergate be different ?
I would like to go even a little further than that and suggest that
while I do not want to get us into an argument about the Vietnam war,
we probably all agree that it could have been a more positive experi-
ence for the country than it was.
So again, I would raise the question: If there had been, not just more
information about that war in the process, but, perhaps, a better job
by us as newspapermen in reporting that information, interpreting it,
maybe the course of that war might have been a little more positive
that it turned out to be.
Now, in rereading my own testimony (in 1966) I alternately gagged
and applauded. One statement. that I made in 1966 and which I stand
by today, is this: "Trust the people with the truth, and they will
seldom betray your trust. Mistrust them, deny them the truth, and you
will reap what you sow."
But really, somebody in 1952 said it much better than that?and
this again is from the proceedings of the American Society of News-
paper Editors. It was actually said by James Pope of Louisville, and
he was quoting the then mayor of Milwaukee, a man of the name of
Frank P. Zigen. I have no idea where he is now, but in one sentence
he pretty much said it : "The degree to which we have eliminated
secrecy is the measure of our civilization." Thank you.
Mr. MOORHEAD. That's a very eloquent closing note, Mr. Smyser.
First, I want to commend the panel. The five of you here are all
in the business of dealing in words, and you did it in less than 1 hour
and 5 minutes. I hope that I and my colleagues will emulate your
excellent example.
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50
Mr. Srayser, some of your thoughts about information and. intelli-
gence of the people reminded me of something said by one of my po-
litical heroes, the late Speaker Sam Rayburn. lie said, "Never under-
estimate the intelligence of the people, but never overestimate the
amount of information they have." In other words, give them the in-
formation, and they'll make an intelligent decision; and I think this
is what the thrust of your testimony has been.
All of you have given us so much food for thought that we almost
suffer from indigestion; but I thought I'd just pick up some of the
things that you said and emphasize them. I think that Mr. Wiggins
remarked that this subcommittee is sort of an "ombudsman" for news-
papermen and the 'public generally for getting information. I think
that generally would stand repeating for the people generally, almost
especially to the newspaper industry, because we'll never be able to
write a law that's so clear that it won't need some. active enforcement.
You also said that the press acts as an "inspector general" of the
Government. I'd like to think that the Congress also does that job, or
should do it to the maximum extent possible.
The recurring theme, has come from the panel that the mere ex-
istence of the freedom of information law is a (rood thing. And I think
it was also brought out that after a lawsuit had been brought, the re-
action of the agency on the next request for information was much
better.
Let nie urge upon you that you continue to use the legal remedies
of the act, even though it costs money, and even though the procedures
are somewhat ponderous, as they will continue to be, no matter how we
amend the law. If you win in court a few times, IS think it would be
very beneficial, even if it costs a little bit of money to do so.
Whilee we have already held other hearings on "executive 'Privilege"
bills, we. always like to hear Mr. Mollenhoff speak so eloquently on that
subject, because under the doctrine advocated by someone who is no
longer the Attorney General, Mr. Mollenhoff appeared before a sub-
committee and gave his views; on legislation dealing with the abuses
of executive power. The exercise of the "Inspector General" function
of the Congress, to use Mr. Wiggins' description, becomes more and
more important as the Government? particularly the executive branch,
gets bigger and bigger. I would have to say to you gentlemen that, in
my opinion, there has been less than adequate control by the Congress
over the activities of the executive during the past; 10 or 15 years.
To get to the technical part here, I would like to ask Mr. Brucker
about the concept of the burden of proof. The Congress intended to
put the burden of proof on the Government agencies when they were
going to withhold information, rather than the other way around. And
yet, I take it from your testimony that you felt that at least the con-
cept of the newspaper industry was that the burden of proof was not
sufficiently on the, Government. You felt that you had to persuade
them.
Am I correct, Mr. Brucker?
Mr. BRUCKER. I don't quite recognize that as wAat I said.
Mr. MoemlEnn. Well, I would like some clarification.
Mr. BRUCKER. I don't think I?I may have misspoken and said that,
but I don't think so. One thing along that line that I think I said. was
that the public tends to accept that Government secrecy is good; and
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that was the problem, because the whole thing is supposedly in the
interests of the public. And I certainly agree that if they have infor-
illation, they will tend to do the right thing.
But certainly, I have seen through the years recently a feeling
that the .newspapers or television is too nosey, and you'd better let
the Government alone. And that is a matter of some concern.
Mr. MOORHEAD. Thank you, Mr. Brucker.
Mr. Alexander?
Mr. ALEXANDER. Thank you, Mr. Chairman.
I'd like to thank these gentlemen this morning for their presenta-
tion. I have respected the press for many many years; and I've gotten
recently to appreciate it even more. I'd like to say to those of you who
are here and for the record that, but for a persistent press, in my
judgment, the Watergate scandal would still be covered by the cloak of
executive privilege.
I appreciate what you have done to help this Government and help
this country deal with the facts and truth about that matter and other
matters that need to be brought to light, and to the public.
I recall that in a previous hearing with Mr. Mollenhoff, which was
interrupted by one of the frequent fire drills that we have around here,
beginning at around noon. During that hearing I asked, based upon
your experience, what remedies you would recommend, as a practical
matter, that Congress should think of or contemplate legislation about,
that would assist the day-to-day gathering of information for
Congress.
We have a problem here, as you know, getting the agencies to re-
spond. It appears to be the general rule that we run into, especially
with some of the agencies, you wait 2 days and then the Congressman
will forget about it. And, of course, we have staff assistants, and we
try to overcome this problem, but it is a problem.
Now, Mr. Black referred to the possibility of establishing an ap-
peals procedure. I'd like to ask both of you, if I might, would you
contemplate the possibility of an extension of maybe the Comptroller
General's Office, or a branch of Congress possibly, even the jurisdiction
of the Library of Congress, that could in some way facilitate the
gathering of information from the standpoint of congressional
inquiries?
Mr. BLACK. Well, I have not, as I said in my testimony, really
thought this through. The idea was one that Mr. Hoyt advanced, and
I am not sure about the procedure. I remember recently receiving in
my office a thick file from the?I don't know whether it was the Comp-
troller General, or whether it was the General .Accounting Office; I
believe it was GAO?that said that it, too, has difficulty in getting
information.
So I think that any appeals mechanism of this kind would almost
have to be de novo and have something that could, obviously, work
quickly, because the only purpose of this would be to save time. Other-
wise, I think if you get it mixed up in any other large bureaucracy,
you could end up consuming more time than you could ever hopefully
save.
Mr. ALEXANDER. Well, I know in most cases, if I stop whatever
else I'm doing and do nothing else but, become an investigator, I can,
under most circumstances, obtain the information that I want. But
this is very time consuming.
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This, of course, is a burden to our people we represent in our offices;
and they need this assistance, somewhat.
Mr. Mou,E*noFF. I was Presidential ombudsman, so to speak, and
had this kind of a function within the White House. Before I left the
White House, I made a speech down in Houston, Tex., where I laid
out a Presidential ombudsman role that would fulfill this. It would
be a statutory thing.
I realized after that stage, approximately 11 months in, the job,
that you had to have access to the President. You had to have that writ-
ten into the law, and you had to have independence.
And I believe very sincerely that an ombudsman with about a dozen
accountant investigators could keep this Government ,on the track for
Congress, for the public, and for the press.
Mr. ALEXANDER. Mr. Mollenhoff, may I interrupt?
You are not recommending that we turn this function over to the
executive branch? ? ?
Mr. MoLonviToTT. No. I saw that my role in the White Ii011.80 was
hampered because of the lack of access Thad to the President, due to
Haldeman's iron control. And he did not really appreciate the s?eech,
because in several of the recommendations I made as to Cabinet rank;
there would be no question about the ombudsman's authority to obtain
records and reports. Looking for a man, of , great experience, stature,
and impeccable integrity, I mentioned JolanWilli ams as the type of
man who should have that job. He was then at the b.-ink of goinoi, out of
the Senate and retiring. Job tenure, to insure the ombudsman's total
dependence, a law was a requirement for the job tenure.
Other necessities included direct access to the President at all times,
an initial staff of 12 to 20 lawyers and accountants with years of ex-
perience on investigations of Government operations, and public re-
ports to the President, to the Senate, and the House (that would be
made simultaneously so that there couldn't be any coverup of what the
ombudsman wanted to report).
His job would be devoid of any partisan political authority or re-
sponsibility. The only power of the ombudsman would be the power
of persuasion by the facts and the conclusions in his reports (that
would be issued either every 3 months, every 6 months, or every year
and i,vith provision for special reports from time to time when there
was a soecial need for a kick of some kind).
-
M. MoommAn. Could you provide us a copy of that speech for the
record ?
Mr. MOLLENHOFF. Yes.
Mr. MOORTI EAD. Then it will be made part of the record.
[The information referred to follows:]
EXCERPTS FROM SPEECH BY CLAEK 11 MOLLENTTOFF, SPECT4J, COTJNSEL TO THE
PRISIDENT. BEFORE THE HOUSSON ROTARY CLUB MEETING, JUNE 11, 1970
* * i,k_rrn,trant boreaueracy is the greatest obstacle today to proper functioning
of ti govrnment and has created a sense of frustration from the lowest student
up to the presidency. The sense of frustration, dramatized by some of the Student
protests, is also present among businessmen, city, county, and state political
lenders. Senators and Congressmen and federal government officials.
A properly organized and staffed ombudsman office can make the federal gov-
ernment more responsive to the thoughtful complaints of the public and more
responsive to the will of the President.
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My experience as your pteSidential ombudsman coupled with more than 25
year of experience investigating government mismanagement and corruption
at all levels has convinced me that a properly structured and staffed ombudsman
office can be the answer to many of our most serious problems. It would provide:
1. A place for citizens to lodge their complaints against arbitrary bureaucratic
actions with the hope of having the grievances examined carefully.
? 2. It would provide the mechanism for thoughtful depth examination of com-
plaints and would force the production of records dealing with government opera-
tions and decisions.
3. It would provide a means of separating legitimate complaints from frivolous
complaints and would provide periodic publication of the findings of fact and
conclusion. Reports published on a semi-annual or annual basis would force gov-
ernment agencies to give greater attention to the necessity of justifying decisions
to an independent body and for correcting decisions that are erroneous.
The ombudsman office could be created by the President within the White
House or it could be established by law independent of the White House. Essen-
tial to the proper functioning of this office are the following:
1. Cabinet rank so there can be no question about the ombudsman authority
to obtain records and reports.
2. A man of great experience, stature, and impeccable integrity.
3. Job tenure so that there can be no doubt about the ombudsman's total in-
dependence (a law would be required for job tenure).
4. Direct access to the President at all times.
5. An initial staff of 12 to 20 lawyers and accountants with years of experience
on investigations of government operations either with congressional committees
or with govermnent agencies, or both.
6. Public reports made to the President and the Senate and the House on an
annual or semi-annual basis with provisions for special reports.
7. This job should be devoid of any partisan political authority or responsibility.
The key to the successful operation of the federal ombudsman office is the selec-
tion of an ombudsman to head this new structure. This must be a man of great
experience in the investigation of government who is recognized by the public
for his great stature and his impeccable integrity. Senator John J. Williams, Re-
publican of Delaware, is the only man who comes to mind immediately as having
the full credentials necessary to do this job. He will be retiring from the United
States Senate at the end of 1970. His conduct as a member of the United States
Senate over a period of twenty-four years is recognized by Democrats and Re-
publicans, liberals and conservatives as having been in the highest tradition of
public service.
I believe that the establishment of an ombudsman office, headed by Senator
John Williams, would do more than any other single act to restore faith in the
federal government.
Expensive reorganizations and realignments of government activities have been
usually only a slight reshuffle of the same old bureaucratic cliques. John Williams
and a small effective staff could break up the old bureaucratic patterns and re-
store integrity and fair play in many areas where it has been missing for years.
OMBUDSMAN
Many indictments and convictions followed the exposure of corruption in the
Truman Administration. Revelations of conflict of interest in several high offices
in the Eisenhower Administration resulted in a rash of resignations and a few
indictments. There were indictments and conflicts arising out of scandals in the
Kennedy Administration.
I have no doubt that the Nixon Administration will be plagued from time to
time with similar problems. We had one major first test in connection with Major
General Carl Turner. It was possible to demonstrate the advantage of swift non-
partisan action in connection with the Turner matter. We were able to learn of
serious problems involving Major General Carl Turner, who had been appointed
last March as the Chief United States Marshal. His resignation was obtained
within a matter of a few hours after the Administration became aware that he
was not worthy of his position. The hearings before the Senate Permanent In-
vestigating Subcommittee demonstrated dramatically that it was important that
we came to grips with that issue and removed the man who failed to meet the
standards required by this Administration.
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The plibIic was understanding because the Administration took action against
an appointee of the Administration at the first point at which it was clear that
General Turner did not meet the Administration's standard. When Turner was
appointed in March, there was no reason to believe he was other than an expe-
riencod career military investigator. There was no record of arrests or ,convic-
tions to mar his record.
Tho mistake of appointing Carl Turner was the mistake any Administration
could make and there was public understanding of this and no editorial criticism.
I hope that the swift corrective action in the Turner cake will set the tone for
this Administration.
I hope that the Nixon Administration will always be able to find the true facts
at all early stage and brush away the excuses and rationalizations that: are so
frequently brought forward to cloud the issue.
I was named presidential ombudsman because President Nixon wanted some-
one in the White House who would be mainly concerned with the problems of in-
efficiency, mismanagement, and corruption in the federal government. The juris-
diction was to be roughly that; of a government operations committee of the
Sena' e or House.
It is not a role that has cartled any direct responsibilities in the political
area or in the program policy areas. It stresses government operations.
It has been an effort to establish a mechanism outside the normal chain of
command for the administration of government programs for independent fact
finding on problem areas that will take advantage of the whole range of govern-
ment sources, plus a wide range of sources outside of the federal government.
The President and others ;.n his administration have 'been familiar wfAlt "De-
spoilers of Democracy" and "The Pe:ntagon" which were nonideological and
nonpartisan case studies on the problems of dealing with inefficiency, misman-
agement and corruption in a wide range of government agencies. The President
want ed that approach.
Many of our Presidents have been embarrassed by commenting upon govern-
ment problems before they were apprised of the full facts on cases involving
inefficiency, mismanagement, and corruption in their adrlinistrations. President
Truman made errors in his comMents and explanations on problems involving
the Reeonstruction Finance Corporation, the Internal Revenue Service, and some
other agencies. This made it appear that he was condoning questionable activity.
President Eisenhower made similar mistakes in press conference eonitherits
on the Dixon Yates case, and in connection with the Adams-Goldfine matter.
President Kennedy made similar mistakes in commenting at press conferences
on the Billie Sol Estes case, on the TFX case, and on other matters.
All suffered some major embarrassment because they relied uPori DIN: normal
administrative chain of command At a late date they found that men with a
stake in the case, from a standpeint of official responsibility or tt'S nreStfit of in-
volvement in questionable activity, had given thein inaccurate inforihation.
President Nixon, who had extended experience in dealing with congressional
investigations, has realized the hazard of dealing with information that comes
through the bureaucratic chain of command. Ile has wanted to keep the possibility
of error n own to a minimum.
Serious errors in dealing with the problems of mismanagement or ccrruption
can do irreparable harm to an administration from a standpoint of its credibility
on international or domestic matters, and in its dealings -with members of the
Senate and House.
The marry grave problems--domestic and foreign, that must be dealt with today
create conditions that make it particularly important that there be a mechanism
to protect the President fro ii the errors that can arise from overreliance upon
the bureaucratic chain of command.
It is important to establish an effective government-wide follow-through on
Past problem areas, and to set the tone for what the Prestident expects of his
owe adin inistrati on.
The ombudsman program I suggest could bring some much needed idealism to
the American Democracy. It could bring some of the idealism that I found in a
few of my early teachers, an idealism that I tried to catch in poetry a few years
ago.
I think it is equally applicable to men in government men in the communica-
tions business, and to others today as we contemplate the Job of teaching and
inspiring the young of this nation.
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55
Mr. MOLLENHOFF. I have the speech here. I'm proud of every bit of
that speech, as I am proud of my testimony here a number of years ago
on executive privilege.
Mr. MOORHEAD. Mr. McCloskey.
Mr. McCifosKEy. Thank you, Mr. Chairman.
Gentlemen, I'd like to speak to your comments and your thinking
on the problem that has become of growing importance as these hear-
ings have continued.
The Freedom of Information Act, in subSection 5, exempts inter-
agency, or intra-agency, memoranda or letters which would not be
available by law to a party other than in litigation with the agency.
We have had both Deputy Attorney General William Rehnquist and
Deputy Atorney General Mary Lawton come before us and state
the position that this interagency memoranda meant under this law
that any communication within the Government -from one person to
another, one agency to another, was exempt not only from disclosure
to the public, as the law provides, but exempt from disclosure to Con-
gress and the Supreme Court case so held.
And we seem to have assumed in the evolution of the relationship
between the branches, over the last two decades at least, that the ex-
ecutive is entitled, for means of the efficiency of the conduct of its
affairs, to keep in secret memoranda, opinions, and judgments rendered
back and forth in the executive branch.
Mr. MOLEE1\.THOFF. Mr. McCloskey, if you pardon that, I think that's
where the Congress is wrong?their acceptance of the fact that there
is any way the President can keep anything secret for any extended
period of time, other than the decision period. Executive privilege has
no law. There are no court decisions on that subject; and the vague,
flimsy, constitutional argument is without base. Warren Burger has
put together an extensive study on that subject matter.
Mr. McCLosKEY. I appreciate that, Mr. Mollenhofr. I heard the tes-
timony you gave to the subcommittee earlier on that subject. But the
basis even for this debate has been the acceptance that Government,
like business, could not continue to operate efficiently unless the com-
munications between its executives and its management were entitled
to be in confidence.
I have been concerned with this question, as these hearings have
progressed. Is it .perhaps time that we now impose a differatest on
Government than we would on business? Perhaps we should require
that the interagency memoranda he made available to the public and
to the Congress, except in very narrowly defined situations.
We have a growing acceptance, both through Congress and through
the public that perhaps it is time that we state unequivocally in the
law that there is no privilege on the part of the Executive to withhold
any information of any kind from the duly instituted requests of
Congress.
We have the power to hold such information received in Congress
if the Executive demands it. I'm wondering if this is not perhaps the
time and the place for this debate to be considered on the floor, to
proceed on the basis that we now hold Government to a higher test
than we have done until now.
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Mr. Mort,ExttorF. You have this right under the 'Constitution, and
you shouldn't have to reiterate it. It just takes some guts up here and
some deep digging, so that people are absolutely clear on their rights.
You see that the problem--
Mr. MeCLost(Ey. Let me interrupt you. I think in view of tL,e Su-
preme Court decision in the Mink case that there is no longer a right
to claim this prerogative without enacting something in the law. As
the Millie case pointed out, Congress does have the power to enact
the law as explicit as it wishes and I don't think we can just acquiesce
and say that in view of the Mink case we can retrain silent.
We would now have to enact into law some such unequivocal 3t.ate-
inent.
Mr. MOLLENTIOFF. Well, this condition has arisen because committee
people up here, chairman and members of committees, have not realized
their full rights. John Moss and the members of this committee have
been among those who have understood fully.
Mr. MCCLOSREY. You asked for the report here.
Mr. MOIJ,ENTTOPF. Senator Ervin understands this thoroughly and
has done a study in the law. There are too many chairmen up here who
acquiesce., who are engaged in taking less than the truth for soft
touches from the agencies. And it's going to take an abolition of those
practices to get the kind of tough attitude from up here.
yen, if I was running a committee up here, there wouldn't
be any question about making an issue of it.
Mr. MoCrosKET. I understand.
Mr. ilfor,r,Extrovr. If I were on a committee up here--
Mr. McCitosKEy. I understand your position, but let us apply the
point to an argument that was made to me by an Armed. Forces officer
yesterday. He testified as to their required loyalties to their command-
ing officer, in this case the Joint Chiefs of Staff, and that in the debates
that preekled the taking of a position before the Congress by the
Joint Chiefs, a lot of conflicting opinions had been rendered back
and forth on both sides of the issue.
They felt that they could not run the, executive blanch if Congress
had the authority over the Joint Chiefs, or say, on the members., re-
garding the bombing of Cambodia or the bombing of any part of Asia.
Individual members of the Defense Department were then asked for
their individual opinions that had been rendered in the decisionmak-
Mg process.
I'd like to hear the comments of other people on the panel about this
subject. Do you see any difficulty if Congress made it a law that sub-
ordinate employees of the executive branch had to render specific state-
ments of fad and opinion that preceded the ultimate decisionmaking
process?
We have always restrained ourselves, or Congress, from demanding
those facts and opinions if they differ from the final judgment of the
executive branch ; and that is what this part of the law is all about. It
preserves the confidence of the interagency reports on the basis that
the decisionmaker should be entitled to have been handed forth-
right advice from his suborcEnates and he could not get it if that sub-
ordinate was later going to have to tell the truth about his point of
view.
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Could I have some comments from the panel on that specific
example?
Mr. MOORHEAD. I think Mr. Wiggins would like to address that.
Mr. WIGGINS. Mr. Chairman, an effort to define this line that sep-
arates the powers has gone on from the beginning of government.
I think Senator McClay introduced it in the First Congress when he
leveled upon Alexander Hamilton a request for an appearance.
I respect the ingenuity of this committee and Congress, and I am
doubtful myself whether we can utterly remove the ambiguity of the
constitutional provisions separating the powers of the relative branches
of Government by statute.
I think that there is one wholesome lesson to be learned from read-
ing all of the cases of contest between Congress and the President about
executive privilege?and I've examined at length the solution of
ombudsman that my colleague has ventured forth?but I think that
if you go over all of them from the beginning, you will discover that
Congress historically has not been able to compel an executive de-
partment to disclose when it has not wished to do so. But it has gen-
erally been able to make it wish it had. And this is the ultimate power
of Congress, that whatever the separation of powers may be, at least
there are these deferences that one power, department, owes another,
and our constitutionalist views on excessive withholding of informa-
tion. If the Congress persists in its purpose, it usually has been able
to make the executive wish that it had divulged the information to
Congress.
Mr. McCLosKEY. I wish I could share your confidence. I'm afraid
it was the press and Judge Sirica, however, that changed the Execu-
tive's position on the executive privilege. I don't think it was the
Congress.
Mr. MOLLENITOFF. Let me say that I think that there is an obligation
on the part of Congress in these circumstances to stay away from
far-out causes where they do not have the body of public opinion be-
hind them. The weakness of the congressional branch in those cir-
cumstances becomes apparent, because you can't sell it to the public.
You should stay on firm, nonideological grounds. And I think that
the Vietnam war, with all of the problems that it brought up, has
weakened the Congress in this respect. Generally the President could
rally the country behind him on some of his most controversial de-
cisions there, because Mr. McCloskey, you would have been among
those who took some rather far-out positions from time to time, and
would have in that instance weakened the power of the Congress to
appeal to the people. And that's all you can appeal to.
Mr. BLACK. Mr. McCloske3.r, I'd like to speak to your question on the
basis of my experience here in the Department of Health, Education,
and Welfare.
It was my observation then that without the kind of legal action
you're talking about, the people who had serious reservations about
policies being proposed by HEW didn't have great difficulty in com-
municating those to the Hill. I spent a lot of my time up here testify-
ing because that was my job; and. I would frequently encounter people
in our department who were also up here, not testifying but making
their feelings well known.
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The %cella is that I think that anything- of this kind invites a lot
of self-serving. I participated in a number of meetings at HEW, Which
I then read about in the papers the next day; and they didn't sound
like the meetings I had attended.
Those were not public -meetings that I'm talking about. These were
policy meetings. And there are people there who have axes to grind
and hides to save; and I think the Congress should look with some
caution on statements of this kind, that So take exception to a depart-
ment's official policy. It's obvious that anything that comes up here
from any executive department has been preceded by a lot of give-and-
take and differences of opinion.
Mr. MeklosxEx. That is my question. Do you think the Congress
should be able to get these g.ve-and-take comments by directing the
executive branch to provide them, or do you think the executivebranch
should be able to withhold the frank, candid exchange of different
opinions that you would see in ultimate policies?
Mr. BLACK. Well, I agree rcith Mr. Wiggins, both as an editor and
as someone who has spent time in the executive branch, that it's a
terribly fine line to draw; and I think the ambiguity is a problem
that must be left, and it Must be resolved like a lot of other problems
of this kind, on a case-by-case basis.
Mr. Mcenostuy. You would say that the executive branch should
be able to claim the privilege to refuse to divulge to the Congress on a
case-by-case basis, information that is exchanged. Do I understand
your testimony correctly?
Mr. 13LA0K. I think that executive privilege is something that should
be used only in the most extreme circumstances. I think I would say
at the same time that Congress should itself be very cautious in making
the kind of demand that would provoke this sort of confrontation.
It just seems to me that it is: an invitation to some sort of chaos if
every time you take a department or an agency's testimony, you go
behind that to find out how many people disagreed with it and to hear
from those. As one of the members said?I guess Mr. Alexander?it
takes you a long time to get responses from the Executive; and having
been down in the bureaucracy, I can tell you why it does take a long
time. It's a slow-moving operation because everybody has got to get
into the act.
Mr. MoncimrrorF. Let me say that you mentioned--
Mr. MOORHEAD. Mr. Mollen.hoff, please be brief, 'because I want to
yield to Ms. Abzug. The Chair has been operating under a loose 5-
minute rule, but if I don't tighten it up a little bit, we won't be able to
finish before the first quorum call.
Ms. Abzug.
Ms, AI17,1170. What we're considering here are amendments of the
Freedom of Information Act. Isn't there a very sharp conflict in the
issue we're now discussing here in that the very existence of the Free-
dom of Information Act has sort of set up a right of executive. privi-
lege? Also, do you think that the amendments that are being proposed
remedy this problem sufficiently ?
Mr. IVIarixivrroFts. The Freedom of Information Act does not set up
an executive privilege. Th.e executive privilege?and that's the termi-
nology, I think, that the Members of Congress should get well in their
minds and clear on.
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The Freedom of Information Act sets up certain exceptions under
the law. Executive privilege is something that the Presidents have
claimed in recent years as an arbitrary right that they have, regardless
of the law. And that is the all-embracing thing. And Mr. McCloskey
a few moments ago mentioned that they should be able to claim the
privilege. You see, I don't accept that there is any privilege.
Mr. SfeCtosKET. What do you say about the Court decision, and
specifically refer to executive privilege? Do you disregard the Supreme
Court's statement that there is an executive privilege?
Mr. MOLLENHOFF. I think that there is no executive privilege.
Mr. McCLosicEy. What about the 'Supreme Court decision on it?
Mr. MOLLENHOFF. The Court decision on this can be cleared up by
proper handling of the issue here in Congress.
Mr. McCLostiEv. Well let's concede that, but the Supreme Court de-
cisions are the supreme law of the land, are they not?
Mr. MOLLENHOFF. They are the supreme law of the land.
Mr. MCCLOSKEY. Well, then, how do you come off
Mr. MOLLENHOFF. Bad cases make bad laws.
Ms. ABZUG. I'm going to yield to the Representative from Cali-
fornia.
Mr. MOLLENHOFF. We can have this out someplace else.
Mr. MCCLOSKBY. I happen to agree with your conclusion as to the
law, but I don't think we can ignore the Supreme Court.
Air. MOORHEAD. Ms. Abzug, I think Mr. Wiggins would like to make
a comment.
Ms. ABZUG. Please, if you would.
Mr. WIGGINS. I think you raise a very interesting part about any law,
and in freedom of information or relating to this, raises the possi-
bility by describing the access inversely, you limit the access.
I think this statute comes as near as surmounting that difficulty as
a statute can by its declaratory sections, in which it tries to lay down i
the premise that the public is entitled to information per se; n the
absence of the showing of the Government agency, that it isn't en-
titled to it. And so the presumption has frequently prevailed in Gov-
ernment that the applicant has to show cause as to why he should be
given. however, I think that to a degree the act as it's devised has tried
to escape the dilemma by its very terms of what is exempted, creating
a new privilege of withholding. And it's not entirely escaped.
And any time you set up a definition of what the public is entitled
to, you inferentially concede that it isn't entitled to everything. The
law, as the chairman said, is a product of compromise. It's very dif-
ficult to draft that list of exemptions in such a way as to gain the con-
sent of the committee or the consent of Congress. And the list of ex-
emptions go a lot further than many members of the committee wish
to go and any of the newspaper witnesses wish to go.
But I think it has to be considered in its day that it was a great
improvement on the preexisting situation, and that the amendments
that are now proposed further refine the exemptions. And that under
an ideal circumstance, one would probably wish that the exemptions
weren't as broad as they were.
Ms. ABZUG. Well, we are dealing here with another interesting prob-
lem. Many believe that there is no reason not to share with the legis-
lative branch matters which pertain to national security, military
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secrets, or foreign relations, when Congress or a committee deems this
in fort nation necessary.
Members of Congress, who are officials elected by the people, have
more justification for sharing so-called secrets than officials appointed
by the President or his subordinates, especially if they are to iiegislate
wisely.
We are dealing with the statute which, I believe, has a built-in priv-
ilege, and. I'm not sure whether the amendments sufficiently overcome
it. T wonder whether there's any justification for this statute, even as
amended, and whether we don't in fact limit our rights by it.
Mr. MOLLENTIOFF. Let me explain that I think that the Freedom of
Information Act, the basic thing in it that is good under any circum-
stances, it provided a vehicle for getting into court for the rust time,
when you didn't have a financial interest in the information you were
seeking. And that, in and of itself, was a good step forward.
There will always be discussions and disagreements over the pre-
cise terminology of the exceptions. I expect that. I expect also that
there will always be disagreements over the manner in which these
things are interpreted by the various agencies; because they will al-
ways be interpreted by agenity lawyers who will look at the situation
none on the, agency side.
agree with von completely, Ms. Abzug. The Congress should be
theoretically entitled to everything that the executive branch has, be-
cause the Congress set up the executive branches in the first instance.
There are practical problems from the standpoint of national se?-
entity to become involved. There should be in the Congress a vehicle
for obtaining those, and I would not tell the Congress how to do that
pa rticular thing.
It speaking about far out causes. I did not wish to be critical and
say that you were not entitled to the information. I was saying that
you must accept the fact that if you do not have a broad base, your
case is not as good. If you are on the wavelength of Jane Fonda and
people of that stature, then you do not have a case that will appeal to
middle America. Mr. Nixon will always be outolealing you in that
instance; and that's a practical fact of life.
Ms. A.IBZUG. Well, he does have a very good case of that right now.
Mr. Momnistoolin. He doesn't have a very good case with regard to
the present situation, with regard to Vietnam, or to the Watergate.
But he had a good situation, according to the polls, over a period of
3 or 4 years; and he made the most of that.
Ms. ;141.132MG. It's a very interesting point you're raising, Mr. Mollen-
hoff, if you'll forgive me for interrupting. But we know from iaistory
that sometimes Congress and the people are not up to date as to what
has arisen. The war in Vietnam is a sad example of this. And I think
that it was our responsibility to get a lot more information than we
did get about the war in Vietnam, so that we could have more aptly
reflected, indeed, where the public was on this issue, and could have
more effectively represented them.
Mr. MOLLENHOFF. Well, I think that when people are on committees
like this, that you do have a manner of making your point public. I
think that one of the greatest opponents of the administration was in
probably the best strategic position?Senator Fulbright?on the other
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side. I think that he failed totally because he did not have the courage
nor the diligence to do the work to make the points. He has been, I
would say, a lazy chairman of the Senate Foreign Relations Commit-
tee; and he has not followed through on cases involving just basic in-
tegrity in government.
Mr. MOORHEAD. Mr. Thone.
THONE. I have no questions.
Mr. MOORHEAD. Mr. Stanton.
Mr. STANTON. I appreciate your appearing here.
First of all, I'd like to know if you have any idea how many mem-
bers of the electronic media have ever used the Freedom of Informa-
tion Act. No idea?
Mr. MoLLENnoFF. No idea at all.
Mr. STANTON. The reason that I make that point is that I'm con-
cerned about broader issues. The Gallup Poll shows that your in-
dustry is a dying one as far as providing information to the American
public. The American public receives 70 percent of its information
from the electronic media, and approximately 30 percent, according
to the Gallup Poll from your
Mr. MOLLENHOFF. They're the poorer for that.
Mr. STANTON. That may be but that is a fact, or at least that is a
statistical fact. And I think Mr. Smyser might want to raise a point
here.
Mr. S1VIYSER. I simply would say that it is not a statistical fact; that
is, statistics would show precisely the opposite. I can't quote them
now, but I know that they exist. I just have to challenge that.
Mr. STANTON. I think another fact is the diminishing number of
newspapers in American cities. For example, in my community there
used to be five newspapers; today there are two. And frankly, those two
have the same lawyers, an they operate out of the same ballpark and
the same ballgame in such a fashion as you can hardly distinguish
them.
So that as an objective individual I look at them and say how much
information do we get from them?
Mr. MOLLENHOFF. Let me just offer the opinion that that's an irrele-
vant statistic, whether how much you get from television or news-
papers, because in fact the television does very damn little enter-
prise reporting. And most of what they have comes initially from
newspaper digging.
Mr. STANTON. That's just the point I was going to make. The Water-
gate story indicated there was a great deal of pressure put upon the
Washington Post in terms of its licensing other interests in terms of a
television station; and my question for the members of the panel is
should the Government reexamine its role in terms of the electronic
media and the control it holds over it in the light of the pressures and
the fact that the public is getting more and more every day its infor-
mation from the electronic media?
Mr. WIGGINS. Congressman, we don't feel we're dying. I think the
printed media will long survive. But since you solicit a point of view
on this, I would like to concur with some testimony. that I think was
given before. And I think the time has arrived when the electronic
media should be subjected to no scrutiny by the Government, but to
96-576-73-5
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see that they adhere to the wavelengths that have been assigned to
them.
The limitations that have been originally imposed on the media
arose at a time when there. were a limited number of channels, and
modern technology is now making available in any community in this
country probably more channels than can be economically utilized
by those who would like to use. them.
And as soon as that situation came to prevail as a necessity for limit-
ing them, and supervising them, and requiring that they be insur-
ing a public service, it again disappeared.. And as long as the media
is subjected to an examination of its performance periodically by a.
commission that judges the character of its programing, a:ad the
nature of the people who appear on it: and whether or not res serving
the public interest, the electronic media is in a precarious position.
This is my own personal and private view. I speak for no one else.
It offends my sense of freedom from the Government interventEUn.
Mr. MOLLENTIOFF. I'd like to say that I associate myself with those
remarks, because I feel that even with the superficiality and irrespon-
sibility and biases that exist in television, that any Government con-
trol of any aspect of it would be worse.
Mr. SMYSER. I'd just like to elaborate a little bit on the question of
whether or not we are a dying media. There aro all kinds of other
figures that we could cite here, such as total newspaper circulation
figeres. TVs very, very true that newspapers have sort of redefined
their role in about the last 15 or 20 years, and to a large extent because
of the effects of the electronic media.
But there are just all kinds of positive signs in our business. There
is the upsurge of the local newspaper and its importance, its under-
standing of its role better.
I just need to be on the record as saying that I take exception to
your statement that we're a dying media.
Mr. STANTON. Well, I think in terms of what I understand about
the newspaper media., it is My judgment?and of course, it's strictly a
personal opinion?that the newspapers do a less effective job today
than they did 15 years ago when I started in political life. And I say
that because the advertising dollar is more and more going to the
electronic media, and the resources available to newspapers to employ
investigative reporters to do a job is less and less.
And because those resources are less, and because the electronic.
media do not employ investigative reporters in the same sense and
the same purpose that newspapers do, I think we get less effective
coverage of Government.
Mr. BLACK. Well, Mr. Stanton,. may I suggest that we have the
American Newspaper Publishers Association send you some material
on the economic health of our industry. I think that you'll find that
you really have some bad information on some of the statistics.
Mr. STANTON. Well, I would like some information that would show
me that the newspaper industry is a viable, healthy industry; because
I'm not so sure it is.
Mr. BLACK. We'll see that you get it.
Mr. MOLLENITOFF. Let me straighten one thing out on invesfgative
reporters. Being in that field for the last 30 years, I happen to believe
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that there is more active investigative reporting today than there was
20 and 30 years ago, and even than 10 years ago; and that it's being
done in a more responsible, effective manner. And that could be at-
tributed in many respects to places like the American Press Institute
and the seminars that they conduct; Nieman fellowship programs, and
a number of other programs of this type.
Mr. STANTON. Well, let me point out something to you. I do not
want to make a case against the newspapers of the world or appear
antinewspaper, because I am not. But the fact of the matter is that
there are seven Congressmen from northeastern Ohio who are covered
by two major dailies, the Plain Dealer and the Cleveland Press; and
the fact of the matter is that three reporters cover that area for two
major newspapers. And then if one sees one of those reporters, in
terms of legislative branch of the Government, once a week, it's
unusual.
What I am saying is that they do a less effective job in coverage in
terms of input of the Congress itself than they do of the local city
council meetings.
Mr. MOLLENHOFF. Well, from my own standpoint I think that I can
say that there would be a certain responsibility on the part of the
Congressmen to conduct themselves in an effective, newsmaking man-
nor; and that they would be, under those circumstances, covered more
thoroughly.
There are members of our delegation that have very little coverage;
and they shouldn't have. There are others that have a great deal of
coverage, and shouldn't have.
Mr. STANTON. Let me say this, that the ability to get coverage has
never stopped me from getting it. I get very good coverage. I get
coverage that I personally regulate in terms of my press releases. It's
my coverage and my judgment of my image. That doesn't give any
credit to the American newspapermen.
Mr. MOLLENITOFF. Are you doing anything wrong that they're not
catching?
Mr. STANTON. They'll never know it.
Mr. MOLLENHOFF. Let me say?
Mr. STANTON. You'll never know it.
Mr. MOLLENHOFF. I have a staff of three men in our operation here.
Our operation is not to influence the members on ideology or politics;
it's to cover them straight. It's also to cover them tough if they do
anything wrong.
I don't know of anything that any of them are doing wrong right
now, but there have been some in the past?five, one Senator and four
Congressmen?who were eliminated because they were covered too
thoroughly.
Mr. STANTON. Well, I don't want to get into the personalities of it;
and I could just rate you as an exception.
Mr. MOLLENFIOFF. Nor do I want to.
Mr. STANTON. Well, I could just rate you as an exception to a rule;
but I happen to believe that there is less investigative reporting and
less good coverage of the Congress of the United States. And if there
was more in the past, or if there was less in the past, then it was a
truly difficult time in the fifties or around there.
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64
Mr. SKYSER. Mr. Stanton, I think on the matter of investigative
reporting we could answer you with one word, Watergate.
Mr. STANTON. La me say this, that I would agree ? and I would com-
mend the Washington :Post., and particularly Katherine Graham,
because.[ understand fully the application of Executive power on that
matter in terms of what :happened. And I think it's good. I think it's
salutary in terms cif the American system. I think it is a credit that
the American system can even survive this type of thing.
But the fact of the matter is that a Watergate has existed in many,
many other areas of the Government for a long, long time; and. I have
not men the?
Mr. Morzsivraorp. Have you been reading my column?
Mr. STANTON. I do not read you.
Mr. Moriasemorr. I have one column a week, and I can hardly keep
up with the scandals I can document.
Mr. BeAcx. And Mr. Stanton, this is going on all over the canntry.
We :an document this for you.. I've sat on the Pulitzer jury a couple of
times judging the public service area where newspapers all over the
country are conducting very extensive investigations and revealing all
kinds of wrongdoing; and it's happening, I think, in every State.
Mr. STAN-row. I think they are publishing the wrongdoing in many,
many areas; and I think that it's salutory. All I am saying is that I be-
lieve that we have to have a fuller and broader approach in terms of
your industry, but more importantly, we have to have an investigative
approach from the electronic media which would strengthen the posi-
tion of the American public.
Mr. Moeenemonr. We're involved now in an investigation with the
Commodity Exchange Authority. This is a $200 billion Exchange
Authority which controls the boards of trade across the country. It's
an absolutely outrageous scandal situation involving these WO
bil-
lion. and we're having some difficulty getting the Congress interested.
If you want to come aboard, we'd be glad to have you; and we'll send
a copy of our series up to you at any point.
Mr. STANTON. I'd appreciate that.
Thank you.
aloonunen. Next to the members of the panel, I see that Mr.
McCloskey is fidgeting more than anybody except the panel; so to
relieve his blood pressure, I'll let him speak.
Mr. aloCeosacEY. This isn't really a blood pressure item. I'd just like
to a sk three peripheral questions that bear on this.
Now, 'the first, gentlemen' with respect to the health of the news-
paper profession. Do you feel that Congress should subsidize the
posed rates that are now being considered by the committees of the
Con eTess in order to maintain smaller newspapers
Do you feel this is important for Congress to assist in the health of
the tiewspaper profession today?
Mr. Butrciann. I didn't quite hear that. To subsidize?
Mr. VieCnessny. The postal rate question. We have delegated to
the U.S. Postal Service and to some public corporations the control
of postal rates. We are new considering elsewhere the question of
whether or not we should not grant :some subsidy rates , for smaller
newspapers to permit them to survive. I think Mr. Stanton's supposi-
tion is correct. We are hearing from a lot of small print media that
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,they cannot survive with their postal rates, on the basis of the Postal
service.
Mr. MOORHEAD. Mr. Brucker first, and then Mr. Wiggins said he
would like to answer.
Mr. BRUCKER. Well, isn't the remedy for that to go back to the
original conception of the second-class rates? That because of their
importance in public information, newspapers should be delivered as
swiftly as first class, and should be subsidized.
It seems to me that what the Congress ought to do is simply go
back to that. There is no reason why the Post Office Department
has to make money any more than the Defense Department.
Mr. McCnoskEy. Well, that's the question. On freedom of informa-
tion, which is in the jurisdiction of this committee, do you gentlemen
feel that freedom of information in America today and the role of the
newspaper requires the subsidy for a public service?
I think Mr. Stanton is absolutely correct that smaller newspapers,
particularly in the rural areas where we find great middle America
is yet not aware of some of the examples that appear in your column,
Mr. Mollenhoff.
And I think all of you who have done interior work have found
the print media away from New York and away from Washington
much less comprehensive in their coverage of some of these items.
Mr. MOLLENHOFF. Well, if the Congress doesn't realize now what a
mess it made out of things in accepting Red Blount's Postal Serv-
ice Corporation, it should go out tomorrow and turn this whole thing
around. It's been a disaster from the standpoint of financing, from
the standpoint of delivery; and I think it should be investigated ab-
solutely all the way through, and I say turned around even before
the investigation, because the investigation will take too long. And that
would mean coming back to the second-class rate, first-class service
and delivery which Mr. Brucker--
Mr. MCCLOSKEY. Is there any disagreement with that on the panel?
Mr. MOOREUEAD. Mr. Wiggins?
Mr. WIGGINS. Mr. Chairman, I would like to associate myself with
the criticism of the U.S. Postal Service, which Mr. Mollenhoft has
just uttered. I do think that it is a matter that is just not related to a
utiliarian function. It is definitely related to freedom of information
in terms of all the stuff that moves through the mail. And I think the
quasi-public agency has been set up, has embarked upon its own re-
vision of postal philosophy, at war with all of the good Postmaster
Generals from John Wanamaker to James Farley, who operated on
the premise that the nearer you could handle the mail to the point of
origin and to the point of distribution the better it was.
And since the central sorting has been instituted, the bringing of all
the mail into large cities where the problems originally arose, and
then sending it back out again. And all this has been doing is incur
costs which efficiencies of mechanization are going to be overwhelmed.
But back to the central problem of newspaper rates. I think that
many small newspapers are affected by the ability to get into the hands
of their readers their publications; and that if they had to rely on in-
dependent distribution it would put upon them a further burden which
they couldn't bear.
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And I think they're also getting into a very precarious situatiOn,
because, the pileup of lower class matter is involving newspapers,
which are really not being handled in a first class manner, but are being
dealt with as though they were circulars. So that the delivery time of
many local newspapers is incredibly delayed, sometimes up to 3 or 4
weeks after mailing.
And it's a very unfortunate effect upon the usefulness of the point
to the public as a whole.
Mr. McC.:11.,osic.fly. I have another question which relates to something
which Mr. Mollenhoif said, as it relates to Mr. Ziegler. It is a matter
before the committee, and. that is the question that has been ra:ised.
We do have a statutory section that it is a criin.e to lie to a part of
Government for the exchange of information; that. it is a crime for the
member of the press to lie to the congressional committee.
I wonder if we should consider making it a crime for a Govern-
ment. employee to lie or consciously withhold information, or give a
deceptive answer in response to a newspaper report or a question.
Mr. MoLLENHop-F. I think that it would be helpf al if somehow there
would be a, situation created where the Press Secretary at the 'White
House would feel that he Was under oath.
We've had a disastrous situation over there in recent months. We
have had 10 months of falsehoods, with Mr. Ziegler contending that
he could make it all go away by saying it was simply inoperative at
this point,.
I don't know how one goes about this from the standpoint of putting
him under oath every time he comes in there. But I think that as a
public official and as spokesman for the President of the 'United States,
a rather important position, he has been our only avenue of informa-
tion for a period of the last 4 years.
Mr. Mcenosiczy-. Mr. 1Vloilenhoff, I appreciate that situation. We
have, those of us that don't seek misrepresentation from the point of
business, laws of crime and perjury; and I'm wondering if the im-
portance of freedom of information would justify this revision, and
this is a question I don't know the answer to.
I would really welcome the considered judgment of any member of
the panel on whether we have now reached the point where the public
spokesman for Government should be penalized later for relaying
false information which he knows was untruthful at the time.
According to the ordinary rules, the conscious deceit or the conscious
giving of a half statement or a half truth, or making a statement which
he knows is going to be accepted differently is not acceptable. Should
we now impose a criminal penalty on members of government; who
consciously mislead?
Mr. MOLLENTIOM I don't think you could work out the mechanics
of this to cover most situations, because you have the question of proof.
And who can prove that, and who do you believe wl ten a reporter says
that a public official told him something, and he says it's otherwise?
Now, in the Presidential press briefings, though, there could be a
requirement that those be taken, made a public document, and that
the material in them be treated in the same manner as testimony before
a congressional committee -would be.
And I think that that would have a helpful effect.
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Mr. MOORHEAD. Sir, do you swear that you will tell the operative
truth and not the inoperative truth?
Mr. MOLLENHOFF. That's right.
Mr. MOORHEAD. Are there other questions?
Mr. Thone?
Mr. THONE. Only a quick observation. I have followed and admired
Mr. Mollenhoff for a long time; he comes from my part of the country.
But, Clark, I don't believe you really want to swear or anything of the
sort, a Press Secretary. This is your job as a good investigatory re-
porter. You're going to smoke him out as you did here.
Mr. MOLLENHOFF. I want to feel that he feels it. I've not felt in the
past that there was a necessity to do this, but over the period of the
last 10 months, what Mr. Ziegler has been telling over there, has been
the front for all of the falsehoods on Watergate. He has been the only
source, because the President wasn't having press conferences. And
Erlichman and Haldeman were not showing their faces; they were
telling him what to say. And this condition is one where he should feel
some responsibility and some accountability.
The President is trying to shield him in this particular case by say-
ing, well, he was misled like I was. While there is some period of time
where that could apply if you study the record carefully, I don't see
how any thinking person could have been misled at various stages in
some very serious matters.
Mr. THONE. So you're answering my thought, Clark, that you don't
want a Press Secretary, or someone like that, under formal oath?
Mr. MOLLENHOFF. Not under normal circumstances, but I would like
to think of Ron Ziegler as having some greater responsibility than he
has been exhibiting in the last 10 months.
Mr. TIIONE. Well, the hour is late. I would like to visit with you,
it's an intriguing subject, and I think Pete here came up with a viable
suggestion I had not thought of before, and it might have some possi-
bilities. But I don't go along with what you are now suggesting, Clark.
Thank you, Mr. Chairman.
Mr. MOLLENHOFF. I don't seriously say it. I just wanted to give a gig
to Ron.
Mr. MOORHEAD. Any other comments?
Yes, Mr. Brucker.
Mr. BatroxEa. I'd like to add one thing, going back to Mr. Stanton's
question about the differences between electronic and print. I would
certainly like to associate myself with the idea that the electronic can
be just as free as print, particularly because the fact is that it is some-
thing that cannot be done by any of us or by any of you. It is entirely
possible that within the next quarter century there will be no print
media, except that that is printed through the electronic media, which
makes it all the more important that they both be equally free.
Mr. STANTON. I concur on that, because I have seen studies that show
that we will get our daily newspaper through CATV, and then the
printing of the daily newspaper will be there. And that's the reason
that I wanted to indicate that your industry wasn't as healthy.
Perhaps I made an exaggeration, but the fact of the matter is I
think that your industry, as an industry, is going to go out of business.
Mr. BRUCKER. Well, that business will still go on. You've got to read.
It's just a question of how you print it.
001-2
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Mr. STANTON. It will take a different form, but the fact of the mat-
ter is that unless we do something now in terms of the electronic media,
there has never been a major story in the United States that has been
conducted by NBC; or CBS, or ABC in terms of investigation that I
know of where they have done anything like the Watergate,, or any
investigation of Government one can justify as a basis for enlighten-
ing the public. That's the reason I made that report.
Mr. MOORHEAD. The Chair recognizes that Mr. Smyser and Mr. Wig-
gins had some comments to make.
SMYSER. Just brie:Ely I want to agree with what both Mr. Wig-
gins and Mr. Brucker said about the electronic media being free of all
restrictions. I'm all for that.
As far as Mr. Stanton's concern about current investigative report-
ing techniques, I think they are essentially good.
I've tried hard to adopt a philosophy relative to criticism of our
business which is: Listen., but shut up and do your job. I think we are
doing our job. I think we're going to convince you ]n time.
I think one thing we have to remember is we're not so much in the
print media business as we are in the information business. As long as
we concentrate on that, whatever form we take, we'll still be a healthy
industry.
Mr. WIGGINS. Well, Mr. Congressman, I have. that same point to
make. That newspaper enterprise is a business, and you were, talking
about some of its current production levels and some of its current busi-
ness practice. But the essential element in newspaper industry enter-
prise is the news gathering, the editorial department. And no matter
what the vehicle, the apparatus, the paraphernalia by which the gath-
ered information is disseminated to the public, it w11 still be essentially
the same enterprise.
Bat I agree with you on the. point that more and more we may be
relying upon electronic media of one kind and another, and to a degree
or another of the existing statutes are subject to governmental inter-
vention; and it's none too early to eliminate that degree of governmen-
tal supervision which is in my opinion, consistent with the first
amendment.
Mr. STANTON. I think that I he newspaper media recognizes the tran-
sition that I'm talking about; otherwise, Scripps-Howard would not
own about six television stations; The "Washington Post would not own
the electronic properties that it does; and the other major networks
that do house people and others that own the properties that they own.
The point I'm making again?I don't want to continue on this?that
we'd better look further than this limitation that we're talking about
in terms of the Freedom of Information Act.
Mr. MOORHEAD. Gentlemen, I think we've had ?a very good session this
morning with maybe a few loose ends that we missed. So Mr. Phillips,
do you have a question?
Mr. Puintars. Just one brief matter, Mr. Chairman. In prepara-
tions for these hearings, the staff has reviewed previous testimony of
these five distinguished panelists in 1955, in 1963, and in 1965.
Many of the statements that were made in those previous appear-
ances are so relevant to the current hearing, I wonder if it would be
permissible for us to compile a selection of quotations from the pre-
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vious hearings for these printed records and to include them at this
point in the record?
Mr. 1VioomiE4n. That's an excellent idea.
Without objection, so ordered.
[The information referred to follows:]
EXCERPTS FROM TESTIMONY OF WITNESSES AT EARLIER SUBCOMMITTEE HEARTIQGS
ON FREEDOM OE INFORMATION
* * It is a misguided philosophy to assume that either distorting or with-
holding information will do your client good. Inevitably such practices back-
fire. Just tell the people, fully, factually, promptly. Tell them when it is good.
Tell them when it is bad, or at least open the channels of information so that
they may find out for themselves.
Trust the people with the truth and they will seldom betray your trust. Mis-
trust them, deny them the truth, and you will reap what you sow.
Tell the truth yourself before someone else has a chance to step in and mis-
lead and gain credence for their misleading in that you have been negligent,
less than frank. * * *
Richard Smyser, Managing Editor, the Oak Ridger, Oak Ridge, Tennessee;
Chairman, Freedom of Information Committee, Associated Press Managing Edi-
tors Assn.?March 30, 1965.
* * * Our own position is that the Administrative Procedure Act and the other
laws which are on the books have been inadequate in one important respect,
and that is recognizing?writing into law?the public's right to know. The fact
is that in the present situation, as we see it, the burden of responsibility for
public knowledge of government affairs is fundamentally misplaced. It shouldn't
be up to the American public, and the press is simply their representatives, to
fight daily battles just to find out how the ordinary business of their govern-
ment is being conducted. Rather, it should be the responsibility of their em-
ployees, who conduct this business, to tell them. * * *
Creed Black, Managing Editor, Chicago Daily News; Chairman, Freedom of
Information Committee, American Society of Newspaper Editors.?March 30,
1965.
* * * It took the Government of England 200 years to tear down the structure
of secrecy erected in the generations after the invention of printing. It may take
us a long time to break down these barriers to information . . .
The general views of this society on the right of the people to the facts about
Government was stated quite adequately by Lord Acton when he said:
"Everything secret degenerates, even the administration of justice; nothing
Is safe that does not show how it can bear discussion."
For generations, no public figure in America would have dared dissent from
this point of view openly. Now, a great many persons in Government do not
seem to agree with it.
What has brought about this change?
We think it is due to the size of Government; to the emigration of govern-
mental power from publicly operated legislative and judicial agencies to secretly
operated administrative agencies; to the declining faith in the wisdom of the
people which is an aspect of this generation's counterrevolution against free in-
stitutions; to the requirements of national military security which have increased
steadily since World War I. * * *
J. R. Wiggins, Executive Editor, Washington Post & Times Heratd; testifying
for the American Society of Newspaper Editors.?November 7, 1955
* * * There will always be a few political figures who wish to stretch or dis-
tort the law to hide their crimes of mismanagement. There will always be some
bureaucrats who will take the view that the Government agency that pays their
salaries has become their personal property, and is not subject to examination
and criticism by the public, Congress or the press.
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* * * The (proposed) fifth exemption would exempt "intra- or inter-agency
memorandums or letters dealing solely with matters of law or policy." Even if
this is closely restricted in its application, it can be used to hide a great deal of
information dealing with legal opinions and policy. It is often the erratic policy
papers or the cleverly worded legal opinions that this is the key document in
such controversies as the tax scandals, the Dixon-Yates scandal, the stockpiling
scandals, or the Billie Sol Estes scandals. The danger of the broadest: secrecy
flowing from this exception should be apparent to anyone who has examined the
details of these scandals. The argument. that all agency business cannot be carried
on a goldfish bowl" may have some merit from a standpoint of efficiency.
However, it is a short step to the philosophy that secrecy promotes efficiency, and
that therefore secret Government is something that should be promoted. It is
precisely that philosophy that we are trying to end by supporting the pending
legislation. * * *
Clark Mollenhoff, Washington correspondent, Cowles Publications; Vice Chair-
man, Committee for Advancement of Freedom of Information, Sigma Delta
Chi.--March 30, 1865
* * The right of access to the truth about what is being done in the people'S
name and with the people's money is not a right of the press but a right of the cit-
izen. The first amendment's guaranty of freedom of the press was originally a
civil liberty of the individual. And it still is, even if today it takes large news
gathering and publishing or broadcasting organizations to bring the facts to the
citizen.
Moreover, nothing that has happened through the coming of instantaneous
worldwide communications, nuclear weapons, the exploration of space, or any-
thing else has changed this binds mental relationship between citizens, !Govern-
ment? and the news.
This country will continue to remain strongest if its people have constant
access to a maximum of the facts. Incomplete information or deliberately dis-
torted information may be useful in a totalitarian state. The less we have of it
the better our system will work, and the more surely the national interest will be
served.
* *- * Democracy is slow, cumtersome, and often disorderly. But it Is more
enduring and more just than any other form of government precisely because it
speaks not with one voice but with many. There is only one necessity. Those many
voices must be the voices of men who can have access to knowledge of what is
going on. Otherwise they will be but the voices of ignorance.
Herbert Brucker, Editor, Hartford Courant; Vice President, American Society
of Newspaper Editors?March 19,1963.
Mr. BLACK. Mr. Chairman, I hope you'll select only the ones that are
pertinent.
Mr. Pninmps. Yes. The staff will be selective.
Mr. MOORHEAD. I think if the witnesses would like to take a look at
the excerpts before they're made part of the record, it certainly would
be agreeable.
Mr. BLACK. No. I was only joking,- but our readers are not always
that kind.
ME. MOORHEAD. Mr. Alexander?
Mr. ALEXANDER. A point .of inquiry. Do ,the records to which Mr..
Phillips refers contain a compilation of penal laws, criminal laws that
were in effect at that time, that would be the sUbject of criminal law?
I was wondering how many of them would be in effect. I'm just try-
ing to discover if we had your reference label, if it would be easier to
(Yet information now.
Mr. Pnrcups. Yes, we have a compilation of statutes showing access
and nonaccess provisions.
Mr. A/foam-1mm Mr. Cornish?
Mr. Coax-Ism Yes, Mr. Chairman. I find myself in an enviable
position today, because I'm a former correspondent for United
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Press International and even a former employee of the postal system,
as well as being a congressional staffer.
I wonder if you gentlemen would agree with me that most of the
national news which is communicated to the American people today
actually comes through the wires of United Press International and
the Associated Press?
Mr. BLACK. I think that that is less and less true, because I think
we have an increasing number of independent wire services, or supple-
mentary wire services?the Los Angeles Times, the Washington Post,
the New York Times, the Chicago Daily News, and a new one oper-
ated by my own company, Knight Newspapers, Inc.
Mr. CORNISH. Well, these, of course, are the major metropolitan
dailies, but of course it wouldn't apply to many of the smaller daily
newspapers?there probably are thousands of them throughout the
United States?who depend primarily, I think, on the large news serv-
ices for their bulk of national and international news.
Mr. BRUCKER. It's perfectly true that that is going on, but I think
that what Mr. Black was saying is that there is a change coming over
it. There is now in process something called a survey of New England
daily newspapers. I've been a part of that, and I have investigated
the nine dailies that are published in the State of Vermont. And I've
been very much impressed with how much the New York Times sup-
plementary news service flushes out and makes much richer the bread
and butter diet that you get in the Al' newspapers.
Mr. CORNISH. I would agree with that point. The thing that really
troubles me, however?and all of you have made the point, I think,
that you would like to see government open up more to increase the
flow of information to the people, and you have mentioned that the
Congress might do better in this regard. And I would certainly agree
with all those points.
But the thing that really troubles me is that I am not sure that
the news media are really prepared to handle that job, especially
when, for example, the House staff or the Associated Press have re-
porters who are assigned to cover five and six congressional hearings
simultaneously.
Now, as you know, that's an impossibility. And I'm just wonder-
ing how much information the American people should have at their
disposal that they are not getting because of the inability of the press
to adequately cover it.
Mr. SMYSER. You are properly concerned about the diet of news that
small papers like my own get?papers which depend almost exclusively
on the Associated Press. But there is something else happening and
that is an increasing amount of self criticism from within the press
itself?if I may put in a plug for my organization, the Associated
Press Managing .Editors Association. The AP is by no means mono-
lithic. It gets an increasing amount of contribution and criticism from
its member editors, both individually and through the organization
(APME) of which I speak.
And I think the concerns you mentioned are very valid ones, but
think that they are also concerns with which most of us, particularly
on all small newspapers, are quite conscious of.
Mr. BLACK. I'd like to make a couple of observations on that again,
again going back to my own time here in Washington and looking at
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it from the other side of the fence. I would certainly agree that news-
papers are not doing the kind of thorough job that they should; and
I think any editor in America would say he was never satisfied with the
job they were doing.
HEW, for instance is a giant of a department, with napoo people,
250 programs, and an $80 billion budget. The AP had one man there,
and the UP had a man to cover that and two other departments. And
I don't think any other paper had anybody there on a regular basis.
Yet, if they had some big development come along, we would have 100
reporters over there; and then the next day those 100 were somewhere
else.
We are, as editors' critical of pack journalism; and I think that's a
problem he7:.e in Washington. Too many cats are watching one rat hole
while others are going completely unwatched.
But I think it is also true that when you get out from Washington
you find that. the people out in the rest of the country are not quite as
interested i.n all of the details of things that are going on here in
Washington as you gentlemen are as I was when I lived here because
it's your way of life, and there are a lot of things outside of Washing-
ton which :people living outside of Washington are not just as inter-
ested in.
And I did find in my time here that I thought the press, despite these
shortcomings that I mentioned, was doing a good job of sifting out the
important from the unimportant and conveying the. really important
news to the American public.
And on top of that, Mr. Stanton, the press, while certainly not in-
vestigating everything it ought to be, is keeping a lot of people on
investigative work.
Mr. CORNISH. Well, actually I was picking up on one of the points
that Mr. Stanton was making. I happen to be a former reporter for the
Cleveland Plain Dealer. I don't know whether you know that or not.
Mr. STA.NTON. Everyone I know was a former reporter for the
Cleveland Plain Dealer.
Mr. Cm:Num. Well, the point that Mr. Stanton was making was that
there are many subjects and items of news that are of intense interest
to the people who live in Cleveland that are taking place here in Wash-
ington, because this has become the capital of the world, so to speak,
in many, many respects. And certainly in respect to the interests of
northeastern Ohio.
And I gather from the gist or the thrust of his question that he felt
that this wasn't being adequately dealt with, and I'm sure that it
probably would apply to virtually every other area of the country, too.
Mr. STANToN. I would like to know, for example' the Philadelphia
Inquirer, how many reporters does it have assigned to the Pentagon?
Mr. BLACK. Well, I don't think one man is covering the Pentagon for
bureau.
Mr. STANTON. How many does Knight assign to the Pentagon?
Mr. BLACK. We have one man who specializes in defense and for-
eign affairs, James McCartney.
Mr.. STANTON. Well, how could one man cover the Pentagon for your
paper?
Mr. BE,ACK. Well, I don't think One man is covering the Pentagon for
our paper, because we have, in addition to Mr. McCartney, we have
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the wire services, we have the Washington Post, the Los Angeles
Times, the Chicago Daily News. And our own wire service, in turn,
is going to be serving other clients.
But I don't think that we have to depend on our man alone. How
many men did we have covering the Watergate in those early days?
Well, we had everybody who was working on the story for the Wash-
ington Post working for us because we have their wire service. But
even people who do not have the Post wire service papers are getting
the benefit of that coverage.
Mr. STANTON. Well, I think that?what I want to point out is that?
I could go on forever, and I do not want to.
Mr. Chairman, I yield back. We'll continue this some other time,
Mr. Black.
Mr. BLACK. Well, just let me emphasize again, Mr. Stanton, that
we as editors are never satisfied. Neither are our correspondents. The
editors of the Knight Newspapers spent all of yesterday afternoon
with the members of our Washington bureau talking about the Wash-
ington coverage and what we can do to improve it.
And as Russ Wiggins, Herb Brucker, and Dick Smyser will testify,
our industry is probably the greatest in the country for self-flagella-
tion. Every time we come to a convention like this one we are having
here in Washington right now, if we do not keep criticizing ourselves
for 3 days, we invite others in to do it.
So we are certainly?
Mr. STANTON. That is an item in the proper position of your con-
vention.
Mr. MOORHEAD. M. Smyser ?
Mr. SMYSER. I just want to point out that APME has regularly up-
wards of 300 editors involved in what we call our continuing studies
committee. They have two purposes: No. 1, to improve the Associated
Press service; and No. 2, to improve our own industry?our news-
papers?both through improving the AP and just general improve-
ment of our newspaper. These are actively working committees.
Mr. MOORHEAD. Thank you, gentlemen, very much. I think this has
been a healthy interchange. As I said to my colleague from Ohio, I
also wish we had more people looking over the Pentagon.
Thank you, gentlemen. You have been most helpful to the commit-
tee, and we appreciate it very much.
The committee now stands at recess, subject to the call of the Chair.
[Whereupon, at 12:22 p.m., the subcommittee adjourned, to recon-
vene subject to the call of the Chair.]
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THE FREEDOM OF INFORMATION ACT
MONDAY, MAY 7, 1973
HOUSE OF REPRESENTATIVES,
FOREIGN OPERATIONS AND
GOVERNMENT INFORMATION SUBCOMMITTEE
OF .THE COMMITTEE ON GOVERNMENT OPERATIONS'
Washington,D.C.
The subcommittee met, pursuant to recess, at 10:05 a.m. in room
2203, Rayburn House Office Building, Hon. William S. Moorhead
,(chairman of the subcommittee) presiding.
Present: Representatives William S. Moorhead, Bella S. Abzug,
and Frank Horton.
Also present: William G. Phillips, staff director; Norman G. Cor-
nish, deputy staff director; Harold F. Whittington, professional staff
member; L. James Kronfeld, counsel; and William H. Copenhaver,
minority professional staff, Committee on Government Operations.
Mr. MOORHEAD. The Subcommittee on Foreign Operations and
Government Information will please come to order.
This morning we begin the second day of our hearings on legisla-
tion to strengthen and improve the Freedom of Information Act,
At our opening day of hearings last week, we received testimony on
the current status of the public's access to information and the right
to know. Witnesses were a distinguished group of media experts, all
of whom had testified at subcommittee hearings in 1955, 1963, and
1905 on this same subject. Their support and effort during that period
was most helpful in the eventual enactment of the Freedom of In-
formation Act in 1906.
It was likewise stimulating and helpful to have their comments
on the current government information situation. We were pleased
to have their enthusiastic support for pending legislation to further
expand the people's right to know by plugging loopholes and making
other needed improvements in the recent law. ?
Well over 00 of our colleagues in the House and another 20 in the
:Senate have cosponsored the two bills before this subcommittee, H.R.
5425?which is also S. 1142?and H.R. 4960.
This morning we are pleased to have a number of these Members
with us to testify. Other cosponsors have indicated that they will file
statements in support of the legislation.
Our first witness this morning will be our able colleague on the com-
mittee, the gentleman from New York, Mr. Horton, who has served
with us for many years on this subcommittee, and who is now ranking
'minority member of the full committee. Mr. Horton is the principal
_sponsor of H.R. 4960.?
You may proceed, Mr. Horton. We are pleased to have you with us.
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STATEMENT OF HON. FRANK HORTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. HORTON. Mr. Chairman, thank you. I am pleased to be before
this very important Subcommittee of Government Operations.
Mr. ChairMan, I welcoine yOnr scheduling of hearings on H.R. 4960
and H.R. 5425 to amend the Freedom of Information Act. Both H.R.
4960, which I cosponsored with you and several other Members, and
H.R. 5425, which you have authored, are designed to strengthen the
public's right to be informed of their government's activities. Nothing
can be more essential to the safeguarding of our democratic society?
now in the midst of a severe shock.
George Washington stated that secrecy was a form of deceit. How
true those words ring today when executive privilege, security classifi-
cation, executive secrecy, and harassment of newsmen have been
orchestrated to a degree unlmown before in our society in an effort to
conceal wrongdoing from Congress and the public.
Our form of government?in fact the foundations of our society?
rest upon an informed citizenry and their representatives in Congress.
To participate effectively in the decisionmaking process and to main-
tain a watchful eye over those who administer the laws, Congress and
the public require access to information which they believe necessary
and pertinent. This is even more true today than it was 100 or 200
years ago because the management of our society has come to be cen-
tered to an increasing degree in the Federal executive branch. Winit is
worse, perhaps, is that until recently, at least, there has developed an
acceptance in the public and in many Members of Congress that secrecy
in government?not to mention central direction of government?are
good and essential activities.
I hope that this state of mind will now change in light of current
events and that Congress and the public will now exert their rights
fully?as conferred upon them under the Constitution?to obtain all
the information they require.
To this end this subcommittee has held a series of hearings recently
on legislation coauthored by Congressman Erlenborn and myself
which sets necessary and narrow limits on the use of executive privi-
lege. Soon this subcommittee plans to issue a report recommending
changes in the security classification system. And, here today, in these
hearings, we are exploring the means in these hearings to strengthen
the hand of the people to find out what their government is doing.
Some 7 years ago our Government Operations Committee initiated
the Freedom of Information Act. This law provides that all informa-
tion in the possession of Federal agencies shall be made available to
the public except information falling within nine specific categories?
for example, classified data, internal communications, investigatory
files, trade secrets. This constituted an important breakthrough?one
not yet attempted by any other country, if I am not mistaken. In hear-
ings held last Congress which explored the administration of this act,
we were informed that the act has served the public well on many
occasions. Without question, vastly greater amounts of information
are now being made available to the public than occurred prior to the
law's passage. But, the hearings also 'brought to light many problems
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77
and failures in the administration of the act. Among these failings
were:
Serious bureaucratic delays in responding to requests for in-
formation'
Need of individuals to pursue cumbersome and costly legal
remedies;
Inadequate recordkeeping by agencies;
Undue specificity required in identifying records;
Narrow interpretation of the act, thereby excluding greater
amounts of information from disclosure;
Imprecise wording of statutory language, leading to inconsist-
ency in interpretation and a restrictive interpretation of the
act's provisions;
Promulgation of legally questionable regulations; and
Overclassification of millions upon millions of Government
documents.
Following closely on the heels of these findings was the Supreme
Court decision in EPA v. Mink. This decision in my, opinion, sadly
misinterpreted the Freedom of Information :Act and the intent of
Congress in enacting it. Two exemptions incorporated into the act
provide that a Federal agency has the discretion to withhold informa-
tion if it is classified for national security purposes under statute or
Executive order or if it constitutes an internal agency communica-
tion which would not have to be disclosed in a court of law. Overturn-
ing a lower Federal court order upholding a request by 33 Members of
Congress for information in the Government's possession concerning
the Amchitka nuclear test explosion, the Supreme Court held (1) that
the lower court's finding that the exemption could not be used as a
shield for withholding was erroneous and that the Government agen-
cies involved could withhold such information on the basis of the above
two claimed exemptions and (2) that the lower court could not
challenge an agency's classification of documents and was not re-
quired to challenge an allegation that documents were properly with-
held on the basis of the internal communication exemption.
This decision of the court cannot be allowed to stand, nor can we
continue to permit the Freedom of Information Act to be administered
in its present form.
To meet these objections, I have introduced H.R. 4960.
Title I of this bill overturns the Mink decision and directs a Federal
court to look behind an agency's claim of security classification or in-
ternal communication and decide for itself whether a requested docu-
ment meets the narrow requirements of the law regarding exemption
from public disclosure. Moreover, the title seeks to put a stop to the
practice of some agencies which have commingled exempt material
with nonexempt information in order to screen the entire lot from
public view. The courts are authorized to make those portions of a
document public which are not covered by an exemption unless to do
so would seriously distort the meaning or seriously jeopardize the
integrity of the exempt provisions.
Title I also amends three existing exemptions under the Freedom
of Information Act to further narrow their application and to further
clarify their meaning.
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One such amendment would restrict trade secrets and other com-
mercial or financial information to those instances in which some other
law specifically confers an express grant of confidentiality and in
which theagency in receipt of the information specifically confers an
express written pledge of Confidentiality. This amendment is designed
to overcome the practice under the existing exemption to, first, confer
confidentiality on the basis of Freedom of Information Act itself;
second, to exercise the exemption in cases of other types of confidential
or privileged. information; and, third, to extend confidentiality solely
on the basis of a claim for protection made by the supplier of informa-
tion rather than Under an express grant of confidentiality. At this
point, Mr. Chairman, I urge your subcommittee to seek the views of
other witnesses on the ramifications of my proposed amendment on the
protection of trade secrets.
A second amendment narrows the internal communication exemp-
tion which has been widely used to date to withhold information from
the public. The amendment would limit the exemption to internal
memos or letters which contain recommendations, opinions, and advice
supportive of policymaking processes. This is the primary area, I
believe, which such an exemption is designed to protect.
The third, amendment seeks to alter the exemption on investigatory
records compiled for law enforcement purposes. This exemption has
also been widely used to conceal information by extending its cover-
acre to include inactive or closed investigative material, as well as
that which? if revealed, would not hinder effective law enforcement.
The amendment narrows coverage under the exemption of investiga-
tory records to the extent that their production would constitute a
genuine risk to enforcement proceedings, or a clearly unwarranted
invasion of personal privacy, or a threat to life.
Improving the contents of a law without enhancing enforcement
procedures will be of little or no benefit, however. To accomplish the
latter, therefore, title II of H. R. 4960 creates a seven-member Corn-
mission?four members to be appointed by Congress and three
by the President for a term of 5 years?to assist the Federal courts
in determining whether requested information is being properly with-
held by an agency under the Freedom of Information Act. As has
been requested by courts and other authorities, such assistance is
essential because the courts at present lack sufficient time or expertise
in nifiny instances to enforce the act effectively. In addition to the
courts, the bill also authorizes Congress, committees of Congress,
the Comptroller General of the United States, and Federal agencies
to petition the Commission for a review of an agency's denial of in-
formation. An individual citizen may also obtain a review by the
Commission if three members of the Commission agree to such a
review. Authority to enforce the Freedom of Information Act would
remain with the courts and the findings of the Commission would only
be advisory.
However, a Commission finding that an agency has improperly
withheld, information from the public shall constitute prima facie
.evidence before the court that information has been improperly with-
held. This shall have the effect of placing the burden of, proof upon
the agency in the court proceeding to show that its action in refusing
to make information av
ailable is consistent with the law,
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Finally, H.R. 4960 provides in title III for certain additional
aniendments to the Freedom of Information Act which, as a result
of subcommittee hearings last Congress, -Were found to be necessary
if the public is to have access to all the information it is entitled to.
These amendments first, lay down reasonable time limits for an agency
to respond to a request for information; second, authorize a court
to award reasonable attorney's fees and court costs to private parties
who have been found to have been improperly denied information
by a Federal agency; third, direct a court to enjoin an agency's im-
proper withholding of information; and, fourth, require agencies to
file annual reports with the appropriate committees of Congress de-
tailing their administration of the Freedom of Information Act.
Mr. Chairman, almost 7 years ago Congress took a giant step toward
throwing the doors of informational freedom open to the public. Dis-
closure of information was to be the rule, not the exception; the bur-
den of disclosure was to take precedence over the burden of conceal-
ment. Regretfully, these requirements have all too often been ignored
or interpreted too narrowly. The state of our society today and the
need to maintain effective restraints upon a giant Federal bureaucracy
require that more stringent steps be taken. I believe enactment of TT.R.
4960, amending the Freedom of Information Act, together with that
on executive privilege, will go far to correct existing imbalances.
Mr. Chairman, a number of excellent proposals are pending before
this subcommittee. I am confident that with the leadership of this
committee, my colleagues Mr. Moss and Mr. Erlenborn, and indeed
all the members of this subcommittee, a tremendously important piece
of legislation will emerge from these hearings.
Thank you.
Mr. MOORHEAD. I would like to ask, Mr. Horton, whether you think,
in view of recent events whether the climate is right for passage of
legislation of this type in the Congress?
Mr. HORTON. I personally would think so. I think that as a result of
what we have seen, that Members of the Congress would be anxious to
be more specific, and I think we can demonstrate as a result of the
vary comprehensive hearings which you held last year, and which I
attended very faithfully, as you know, that there is need for clarifi-
cation of both of these areas. Speaking specifically about the Free-
dom of Information Act, I think it was a landmark step forward when
we passed that legislation.
But, I think our hearings demonstrated that there has been great
abuse and that there has been an inability of the people to get informa-
tion. And, in fact, the Freedom of Information Act has been used as
an impediment in several instances. I think as a result of our hearings
last year, and what is being done now that the agencies are moving
forward. I got something the other day from one of the Federal
agencies indicating that they were moving forward to make available
more information under the Freedom of Information Act.
But, I think that there are ambiguities under the act at the present
time, which the provisions that I have suggested for amendment can
help overcome. I think that we can make the act more effective in order
to make more information available to the public.
So, I would say "Yes, I would think that the climate and the atmos-
phere would be conducive to action upon a bill such as this."
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New, I realize also that there are different views on this, and so it is
important that we move in areas where we can get good support, be-
cause if everybody has a different view, and nobody can come forward
With something that can be accepted by all of us, then we will just
fall because we do not have sufficient support for the bill. I think that
the legislation we have introduced is an important step forward. I do
net feel that I am bound by any special items, however. For example,
in, the makeup of the Commission,_ I have suggested certain numbers,
but that is not important. It could be more, it could be less. But I do
think something like the Commission is important to interpret some
of this information, and to act as an aid to the courts.
Mr.. MOORHEAD. I am interested in your FOI Commission idea, and
particularly that the majority of the Commission would be appointed
by Congress.
, Mr. Honwoisr. Right.
Mr. MoonnEAD. Is there any precedent that you. relied on for estab-
lishing a commission in that form?
Mr. HORTON. I do not know of any special precedent that we had
for that, although we did have the Procurement Commission, which
I served on, which was handled in a similar way
Mr. MooannAn. But you were appointed by the President, were you
not?
Mr. HORTON. No. No. We had the same setup with the Procurement
Commission. We had 12 members. The Comptroller General was a
member by the statute. Then, there were three members appointed by
the Speaker of the House, three by the Vice President, and the remain-
ing five by the President. The Commission worked very effectively I
thought. We are now finished.
Mr. MOORHEAD. So on the Procurement Commission, a majority was
then congressionally appointed? Of the 12, only 5 were Presidentially
appointed? I am counting the Comptroller General as a congressional
appointment.
Mr. Honiox.. Right. Only 5 of the 12 were appointed by the
President.
Mr. MOORHEAD. But in the FOI Commission provided for in H.R.
4960---and I think this is part of the righting of the balance between
the executive and the legislative branches?the majority would be
appointed by Congress
Mr. HomioN. Yes. I think you need some type of commission OY some
type of organization like this. They would be full-time Commissioners
that would work in this field so that they would be expert in this area.
At the present time, there is no source except perhaps in the Congress,
and even as such we do not act as judges on interpreting whether or
not it should or should not be made available. I think we do need some
technique to get questions resolved, and I think that is part of the
problem we have had now with the administration of the Freedom of
Information Act, as I have detected it through the; hearings we have
had.
Mr. MootainAn. As I understand under your bill, persons seeking
information from an agency would have a choice of either going di-
rectly to the court if denied, or first; going to the Commission; is that
right, sir?
Mr. Horerox. Right.
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Mr. MOORHEAD. We do not take away his rights to go directly to the
court?
Mr. HORTON. No. There is no removal of that right. But, the majority
of the people when their requests for information are denied do not
go to court because it costs a lot of money, time, and effort. If we have
a commission, I do not think there would be that impediment. And, I
think we would have more effective administration of the act.
Mr. MOORHEAD. And presumably Members of Congress could also
go to the Commission?
Mr. HORTON. Right.
Mr. MOORHEAD. When there was withholding of information from
Members of Congress by an executive agency?
Mr. HORTON. That would be available, too.
Mr. MOORHEAD. Well, Mr. Horton, I think you have made a tremen-
dous contribution, not only with your legislation, but also by your
strong and forthright statement today. If you would be willing, could
you join us up here as an ex officio tnember ?
Mr. HORTON. Thank you.
Mr. MoominAn, We have a most extraordinary and beautiful witness
following you.
Mrs. Mink, would you come forward? We certainly commend your
efforts and those of your colleagues in the case of EPA v. Mink. I agree
with Mr. Horton's characterization of that decision because it certainly
showed that no matter how frivolous a classification marking applied
by the executive branch might be, the court would not look behind it.
Obviously, I think the Congress should correct this situation with
proposed language in Mr. Horton's legislation or mine.
Do you want to comment, Mr. Horton?
Mr. HORTON. No. I am just glad to welcome you to the subcommittee.
STATEMENT OF HON. PATSY T. MINK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF HAWAII
Mrs. MINK. Thank you very much, Mr. Chairman. I too, regret that
the Supreme Court rendered the decision that they did in the Mink
case, necessitating this legislation. But, I guess in retrospect I can say
that the decision has forced us in a way to review the application of
the Freedom of Information Act, and to narrow it so that it can have
some force and effect in making available information to the public.
So, in that respect I think that the final decision of the Supreme Court,
hopefully will generate enough concern in the Congress to prompt leg-
islation in this area.
I am delighted to have this opportunity to testify regarding the
various bills that are before this subcommittee. I have cosponsored
legislation which the chairman of this subcommittee has offered, and
I believe its adoption, or certainly legislation similar to it, is essential
to the preservation of freedom of information in America.
Unfortunately, the Freedom of Information Act has been placed
under concerted attack by the executive branch of our Government.
The executive has received considerable support from the judicial
branch in this regard. Therefore, if we are to restore the purposes of
the act, it will be necessary for Congress to enact sound and strong
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legislation requiring full disclosure of Government information to the
people of the United States.
When I testified before the subcommittee last year, I favored a ju-
dicial watchdog system for freedom of information. 11Then the execu-
tive refused to disclose information, the matter could be appealed to a
wiirt, I thought. The court would examine the documents in camera
to see whether full or partial disclosure should be required. In this, I
placed my trust in the independence and integrity of the judicial sys-
tem.
Subsequent events however, have brought me to the reluctant con-
clusion that this protection would be inadequate. I believe that Con-
gress itself must grasp the power to require disclosure of Govern-
mental information when the executive and judicial branches will not.
When Congress enacted and the President signed the Freedcm of
Information Act in 1967, its purpose was to require the disclosure of
all Government information to any member of the public. The only
exceptions to the law's disclosure requirement were materials included
in nine exemptions listed in the act.
Of these nine exemptions, the first has proved most vexatious. This
applies to matters that are "specifically required by Executive order
to be kept secret in the interest of the national defense or foreign
policy." The national security exemption, originally intended by Con-
gress to be narrowly construed and implemented, has instead been en-
larged and expanded by the executive branch to encompass virtually
any information the Executive desires to withhold.
Under the slipshod and illicit procedures devised by the Executive
to withhold information under the national defense exemption, an
army of bureaucrats has been allowed to classify and withhold infor-
mation at will. According to newspaper reports of the Ellsberg trial,
the man who originally classified them "Top Secret" acted on his own
authority and judgment. The only training or instruction he ever had
in security matters was watching a movie which had the theme, "Be-
ware of blondes who are excessively friendly?they may be Russian
spies."
In 1971, f12 other Members of Congress and I filed the first Freedom
of Information Act suit ever to reach the U.S. Supreme Court. As
members cif the public, and as lawmakers who had to vote on funds for
a dangerous nuclear test, we sought information on that test prepared
by the Government's environmental agencies which are responsible by
law for informing the public on environmental hazards. The execu-
tive branch opposed us every inch of the way. When the U.S. court of
appeals was audacious enough to insist that the documents be ex-
amined in camera by a lower court to see which ones should be released,
the executive branch sought Supreme Court review of even this threat
of intrusion, on its right to withhold.
On March 6, 172, the Supreme Court agreed to review the appeals
court decision. Two days later the executive branch issued an order
revising its security classification system. Henceforth, documents were
to be separately classified on a paragraph-by-paragraph basis to .facil-
itate declassification in the event it was needed.. This ratified one of the
contentions of my suit, that the documents I sought could not be
classified in their entirety merely by being stapled to a secret document.
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On January 22, 1973, the Supreme Court issued its decree in the
Mink case, which proved to be a disaster or Freedom of Information.
In essence, it upheld everything the Executive had done to withhold
this information from the Congress and the public. The most damag-
ing part of the decision was the nullification of the doctrine of judicial
review. The Court held there was no requirement for an in camera in-
spection of documents to see whether they could be withheld. It said
that the simple statement of the Executive that they were classified
would suffice. Thus there would be no check or guard against arbitrary
Executive efforts to hold back embarrassing or sensitive materials.
The Court's preoccupation with national security secrecy was fur-
ther illustrated_ on February 5, 1973, when the Chief Justice sent to
the Congress 77 proposed new rules for evidence for use in the Federal
courts. One of those rules, No. 509, sought to apply the grossly ex-
panded national defense loophole to bar any such evidence in Fed-
eral courts. Under this proposed rule, any attorney representing the
Government could object to the production of a record on the grounds
that disclosure would be contrary to the public interest. In effect,
this would bar disclosure of all Government documents unless the
private citizen or other plaintiff was able to prove that disclosure was
in the public interest. Fortunately, Congress has deferred the other-
wise automatic implementation of this and other controversial rules
sought by the Court.
I might mention another example of executive efforts to build upon
the new-found secrecy power it has gained through palpably errone-
ous interpretations of the national defense loophole in the act. Last
October, Congress approved legislation declaring that meetings of
the hundreds of Government advisory committees "shall be open to
the public." We provided, however, that this requirement would not
apply to meetings where discussions are held of matters exempted
under the Freedom of Information Act from public disclosure. Pre-
dictably, the Government has seized upon this tiny loophole to close
these open meetings. Apparently, before the administrators will
obey our 1972 law we will have to tighten up the Freedom of Informa-
tion Act.
H.R. 5425 would make these necessary revisions. One change would
amend section 3 to enlarge the right of the public to Federal informa-
tion. Section 3 would also be amended to require all agencies to fur-
nish any information or records to Congress, or any committee or
subcommittee thereof, upon request. This is along the lines of an
existing 1928 statute which requires the production of information
upon the request of any seven members of the Committee on Govern-
ment Operations.
This change is a logical and essential step. But I would go further.
I would urge that if Congress is to become a truly coequal branch of
Government, that we must have equal access to Government informa-
tion. This means the establishment of a principle that Congress has
the right to all information and its declassification or release.
As elected officials each of whom has a constituency of at least half
a million people we have as much right to decide which information
shall be released the public as faceless appointed officials whose only
qualification is that they watched spy movies. Members of Congress
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should be entitled to any executive branch information upon request by
any 10 Members, classified or not. I would only require that Members
be responsible for the safe custody Of this classified information. If
Members Should want to obtain its declassification so as to enable its
release to the. public, I propose a new mechanism for congressional de-
termination of declassification. I propose the appointment of a special
joint committee of the House and Senate. This committee would have
the lawful power to declassify security information. If a Member ob-
tained information and wished to have it declassified, he could refer it
to the committee for a required swift decision. Closed hearings or
consultations with the executive branch could be held by the committee
prior to its decision. The key factor would be that Congress, the elected
representatives of the people, should have this power to declassify.
feel that the appointment of an outside comin ssion or body for
this purpose would be an inadequate remedy. Neither should it be
required that a congressional resolution be passed by the entire mem-
bership i of the House or Senate for release of information. Free ac-
cess to information gathered by our tax dollars is a public right and
elected representatives should have the power to decide this issue.
A. farther point / would like to make on the pending bills is the
provision relating to agency memorandums. The provision, in lines
6 through 8 on page 3 of HR. 4960, changes the exemption to include
materials containing recommendations, opinions, and advice suppor-
tive of policymaking processes I am not sure that this would be an
improvement over the current standard of whether the material would
be available by law to a nonagency litigant. Perhaps the bill's provi-
sion should be refined to refer only to "those portions" of memoran-
dums or letters instead of the entire documents, and the policymaking
process should be only at the agency head level.
H.R. 4960 contains another provision which is well-deserving of con-
sideration for inclusion in legislation you may approve in this field.
H.R. 4960 imposes a mandate that a court "shall enjoin" refusal to re-
lease Government information not exempted from disclosure under'
the act. This is an improvement over the act's current permissive au-
thority to enjoin.
Both bills provide for the payment of attorney's fees and court
costs to be a successful litigant under the act. I feel this should be ex-
tended to costs and fees at any level in which the litigant is upheld by
the court and not only in cases where the final decision is in favor of
the litigant. I believe that certainly in the Mink case our costs should
have been reimbursed by the Government. Where the Supreme Court
remanded the case, I believe that all costs and fees ought to be cov-
ered by the Government. This is a small price to pay for freedom of
information.
In addition, both bills fail to change the existing definition of na-
tional security information exempted from mandatory disclosure. We
should require that any such information be separately classified by its
own Executive order, rather than apply one general order as authority
to classify all documents. Further, the test of whether the material is
secret "in the interest of the national defense or foreign policy" allows
too much leeway for the Executive. We should specify in the exemp-
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tion that only materials whose disclosure would damage current for-
eign policy activities, or reduce the Nation's ability to defend itself
against military attack, would be exempt.
It seems to me that strong limitations against secrecy must be in-
voked by Congress. We have to guard against our inadvertently con-
tributing to the suppression of information from the American peo-
ple and from Congress. I urge this subcommittee to work toward the
highest standards for openness in all aspects of our Government oper-
ations. Secrecy must only be tolerated in cases where release of the in-
formation will seriously jeopardize our national security or endanger
the stability of our foreign relations. Embarrassment of the executive
such as providing internal arguments made against a policy should
never be a reason to keep a report secret. The public should be advised
of all sides of an issue. The Executive must not be characterized as a
propaganda agent of its decisions. Executive policies should be able
to stand the light of full public review. All the facts should be made
available to the public. We cannot rest until our laws are perfected to
safeguard this fundamental principle of a free society.
Thank you.
Mr. MOORHEAD. Thank you, Mrs. Mink. That was an excellent
statement.
You draw a line which is difficult, not only conceptually but po-
litically, between what I will call the Congress right to know, or the
Congress' need to know to carry out our constitutional functions, and
the public's right to know. Is the distinction because there are certain
cases where we are assigned a duty to legislate, let us say, on whether
to provide funds for an underground nuclear blast or not, we need
to know detailed information in order to vote intelligently. Perhaps
the public would not need to know such details, and then might not
have exactly the same rights in such cases?is that correct?
Mrs. MINK. Yes. I believe if you intertwine and interrelate the pub-
lic's right to know with Members of Congress need to know, you will
prejudice the ability of Members of Congress to acquire the informa-
tion which is necessary, and with the speed with which matters come
before us really frustrate our ability to legislate based upon facts. So,
I think that because we are dealing with classified material which ob-
viously will take some time before it can be declassified and released to
the public, and our ability to acquire this information should be, I
think, dealt with separately so that we can legislate intelligently. And
we may, as I suggested, determine that the material should not have
been classified in the first instance, that there is nothing in it that
affects or prejudices in any way our national security or our foreign
policy, and then petition a special committee for its ultimate release.
But, as you and I know, matters come up before the Congress with
such haste, and sometimes we simply do not have the opportunity
to go through a prolonged hearing. In most of these bills you are re-
questing that a decision be made within 30 to 50 days. It still is far
too long to safeguard and protect our right to legislate based upon
facts. So, I think that regrettably these two areas are separate and
should be treated separately in any legislation which you will be rec-
ommending to the House.
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?' Mr. MooithE.An. Well, I can certainly see in the situation in your case
that the environmental report might have been so intertwined with nu-
clear. secrets that the information .should be made available only to
the Congress, because we had to vote yes or no on neeeSsarY funds but
that it should not be declassified and released to the public. I gather
that in the actual case that if you had a staple remover, the pages you
were interested in could have been made available not only to the
Congress, but also to the public generally?
Mrs. MINK. Right. right.
MoomnEAn. It was really a distortion, if ever there was, of
any commonsense rationality.
Ms. Abzug.
Ms. Auz-og. Thank you for your most important testimony. The
sections of the bills that we have before us which would seek to ad-
dress the problems raised in the Mink case .provide for certain pro-
visions of review of the documents in question to determine whether
they are being improperly withheld. Do you feel that they are irsuf-
ficient for meeting the particular problem?
Mrs. MINK. Yes.
Ms. Anzro. Da you think that our trying to cope with these prob-
lems by amendments to the Freedom of Inforrnation Act Will really
get to the root of the problem or do you think that what we really
require is an unraveling of the whole issue including Executive classi-
fication, violations of the intent of the act, and even executive privi-
lege, all of which are intertwined with the problems inherent in the
exemptions we have?
Mrs.. Airs-R.. Well, I think the major problem is that the Congress
has simply abdicated its responsibility to protect the right of the
free 'flow of information to both ourselves and the public. I am of
the opinion that legislation Can correct this, can reassert the checks
and balance concept which I think is implicit in this Whole matter of
freedom of information. And this is why I feel that it is not only
important to protect committees and subcommittees, and the House
and Senate as a body, as receivers of this information, but that every
Member of the House in a sense should be. accorded this privilege of
acquiring the necessary information in order to legislate. If the Exec-
utive, if some lowly agent, a clerk in the executive branch is Oven
the authority and discretion to classify information, and this judg-
ment is to remain unchallengeable by the legislative branch, I think
we have given up our most fundamental responsibility, and that is
to acquire information so that we can legislate intelligently. And that
is really the pursuit that I feel is so important. Of course, once we
do that, Alre free this whole business of secrecy in government and
so, ultimately, by reasserting our rights to information we will also
be, protecting and enlarging the public's right to know because in
being given this information, which we have been denied in the past,
we will be able independently to determine whether it should continue
to be classified or not; and take the necessary steps to insist upon its
declassification and release to the public at large.
MS. ABZUta. Are you proposing a Joint Committee of the House and
Senate which would have sole authority to declassify?
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Mrs. MINK. Not the sole. Legislative authority to declassify. The
Executive, of course would still retain its right to examine its own
classification system. I make no suggestions relative to changes in that.
As a matter of fact, I noted right after our case was filed that the
Executive did undertake some major changes in the whole classifica-
tion process.
Ms. Amu-G. In other words, this joint committee would act on the
classification as it is presented to it?
Mrs. MINK. Yes. I see no reason why the Executive can classify and
declassify, that our legislation should give the courts the right to
make an in camera examination for the purpose of declassifying and
we are the only ones left out. What makes us different so that we are
incapable of protecting the interests of the United States with respect
to the various nine exceptions that are listed in the Freedom of In-
formation Act? I think we are equally capable of making these de-
terminations if not better qualified than any other branch. Certainly
it would not be a self-serving decision as it would be in the instance
of the executive branch. In my litigatien the only reason that they
refused to release the information at the time we needed it was be-
cause they did not want to enlarge the controversy and to give people
who were opposing the test valuable factual information upon which
we could make a much stronger case. All of these materials were
later released with the exception of the AEC report. So, that tells us
how much national security was involved in the basic information.
And it was the only reason we did not proceed with the balance of the
matters under litigation as the Supreme Court suggested; because it
was moot, the material was already out.
MS. ADZ UG. Do you think that there is validity to reviewing the kind
of information that we are theoretically entitled to by statute on re-
quest of, I think it is now, five members of the Committee on Gov-
ernment Operations? The original statute in 1928 that you referred
to,
I believe, said seven.
MTS. MINK. It is seven.
Mr. MOORHEAD. Seven members.
Ms. ABZUG. I see, so it is still seven.
Mrs. MINK. Well, with all due respect to this committee, I do not
feel that there is any reason to limit that right. Why should it be just
this committee? And this is the suggestion that I make, any 10 mem-
bers of the Congress. If you are reluctant to give one member the right
to secure this information, why not make it possible for a group of
members interested in a specific issue to make the same request that
seven members of this committee would have the right to do?.
Ms. ABZUG. You have commented favorably on a number of the
amendments. There are some who have raised the issue with me that
no matter how much we keep amending and reamending the Freedom
f Information Act, we are still continuing a vast array of exemp-
tions which create the bureaucratic capacity to withhold information.
Some people who have discussed it with me, in any case, have indicated
that we have to start fresh. What do you feel about that?
Mrs. MINK. No, I do not think so. I really do not believe that this law
has been utilized. In 7 years our case was the first that got to the
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Supreme Court, so those who take the cynical view that the law is in-
adequate, I really have no comment to say except that the law has not
beenused to the,extent that it might have been. And perhaps if it had
been we would .not have encountered this disastrous decision 7 years
after its enactment. .
MS. ABZUG. The reason that that view is taken is that though the in-
tention of the original act WM to provide access to information, the
exemptions actually created a tightening of restrictions. Some very
fundamental exemptions have been unconscionably misused by the
executive branch of Government to withhold information. Therefore,.
it is very difficult to overcome the built-in concepts that are actually
legislated or created statutorily, and which without the statute would
have operated entirely differently.
Mrs. MINK. I really cannot comment on that, Ms. Abzug.
MS. ABZIOG. Thank you.
Mr. MoonnmAn. Mr. Horton?
Mr. HORTON. Mr. Chairman, I too want to congratulate you, Patsy.
It is an excellent statement on a very important subject.
I do not disagree with your thought with regard to the establish-
ment of a joint committee, but you do not make any statement either
for or against the concept that is in my bill, H.R. 4f.160, which creates a
seven-member commission. Do you have any thoughts about that And
before you comment, just let me say this, that I do not think it is
inconsistent to have both.
Mrs. MINK. No.
Mr. HORTON. Because the commission concept I think is very im-
portant to resolve many of these problems, and especially the problem
that you ran across in the EPA v. Mink case. There has got to be
some convenient way for the courts to review this information. Now,
they do not have the expertise, and it takes a lot of time to get the
expertise necessary to go into these matters. And I think that if you
have something like the commission that acts as an aid to the court it
would help. These people would be full time, as I indicated in my testi-
mony; they would be there to kind of arbitrate, if you will, questions
with regard to whether or not information should be withheld or
should not be withheld. They would act as a vehicle for giving infor-
mation to the courts upon which the court could rely. Perhaps you have
not had a chance to look at it, but maybe you might. take a look at that
as an important ingredient from the executive branch standpoint as
well as from Congress. It seems to me from the hearings that we have
held in the past that we need something like this to pull together this
whole question of interpretation of the Freedom of Information Act.
And think it can be very helpful for court interpretations, too.
Mrs. MINK. My reservation, Mr. Horton, comes from the feel ing
that the establishment of the commission might be setting up another
third barrier for the free flow of information. If the main thrist of
the legislation is to give the courts the responsibility of determining
whether the classification did. in fact, meet the criteria set forth in
the Freedom of Information Act, then I believe that the courts ought
to assume this responsibility. The past track record under the Freedom
of Information Act does not indicate that they are so overburdened
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by this kind oflitigation as to make it impossible for them to make
this decision. And since the commission which your bill creates is only
advisory in nature, in sending its report to the Court, you must have
a lawsuit in order for its findings to be useful in the first place al-
though you do make it prima facie evidence. Without litigation, Mem-
bers of the Congress, committees, the Comptroller General, the public
.at large would have no opportunity to take advantage of the exper-
tise that might be set up in this commission. And certainly if the
commission made a finding against the public, and .against a Member
of Congress seeking information, it would be an intolerable obstacle
to overcome. You have to argue then against the executive branch as
well as the commission in court. So, again, 1 think that the three
branches of Government ought to have devices within themselves to
make these judgments each of which is challengeable by the other.
The defect of remedy in our Mink-EPA case was that had the court
rendered a favorable decision requirinu6 in camera examination, we
would have been denied access to the hearings, and that this would
have been a rather cozy arrangement between the court and the Execu-
tive, or the Executive's agent in deciding exactly what should be re-
leased and what should not. So' even that is not an ideal situation. It
is a very difficult problem, but it seems to me that the setting up of
a commission would further exacerbate the purpose or the goal of
our legislation, which is to make information more readily accessible
to the public and to the Congress.
Mr. HORTON. Thank you. No further questions.
Mr. MOORIIF,AD. Ms. Abzug ?
Ms. AIIZITG. No further questions.
Mr. MOORHEAD. Mrs. Mink, one quick question. On page 4 you say
that any information would require its own Executive order. Do you
mean an Executive order signed by the President for every piece of
paper?
Mrs. MINK. For the matters which are requested by Congress for
release I think there should be an independent decision made by the
Executive, denying it. In our case all we got was a letter from John
Dean saying that the earlier classification had been placed upon the
entire file, and no further review made as to the validity of the Execu-
tive order being placed in the first instance. And in the trial in the
?district court no witness was produced by the executive branch who
actually made the classification.
Mr. MOORHEAD. This subcommittee has also received a number of
negative letters from John W. Dean.
Mrs. MINK. SO, we were stuck there really arguing against a com-
pletely faceless bureaucrat who made this decision which we were con-
tending was misplaced zealousness.
Mr. Mo0n:1-mm). Thank you very much, Mrs. Mink.
Mrs. MINK. Thank you very much.
Mr. MOORHEAD. Your experience has been of great value to the
subcommittee.
The subcommittee would now like to hear from our distinguished
colle,ague, the Honorable Robert P. Hanrahan.
Mr. Hanrahan, would you come forward and proceed as you see fit
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STATEMENT OF HON. ROBERT P. HANRAHAN, A REPRESENTATIVE
IN CONGRESS PROM THE STATE OF ILLINOIS
Mr. HANRAIIAN. Thank you very much, Mr. Chairman.
Ladies and gentlemen, I would like to read this prepared statement
this.morning in regard to the Freedom of Information Act, passed in
1967, which gives the public the right to know wh at its government
does.
Mr. MoortHEAn. Would you like to come forward, Mrs. Mink? We
would be delighted to have you join us.
Mrs. MINK. No. I have to go.
Mr. HANRAHAN. The statement stipulates that every Government
agency, with certain specific exceptions, make records promptly avail-
able to any person on request.
AS this committee learned last year during the hearincrs conducted
on the subject, hundreds of requests for information by public interest
groups and individuals have been refused.
The act guarantees the right of every citizen to know what its gov-
ernment is doing while it protects that information .which is necessary
to run the Government. The legislative intent of the Freedom of In-
formation Act is to make disclosure of information as a general rule,
not the exception, and to place on the Government the burden of jus-
tifying the withholding of a document or information.
It is time that we take a searching look at what is being classified
and why. We need to restrict what; is being classified to a sensible
minimum. H.R. 4960, Mr. Horton's and Mr. Erlenborn's bill, would
accomplish just that by establishing i a Freedom of Information Com-
mission to assist the Federal courts n determining whet her requested
information is being properly withheld by an agency.
I might say, parenthetically, in Congresswoman Min k's testimony,
she said this would set up another bureaucratic agency and further
along in my testimony I will point out that this commission can make
information more accessible to the general public. That is my main
concern here this morning, to make sure that the public has access
to information from Federal agencies.
As I said here, H.R. 4960 would accomplish just that by establishing
a Freedom of Information Commission to assist the Federal courts in
determining whether requested information is being properly with-
held by an agency. This is a sorely needed revision. II; has been difficult
for the courts to enforce the act because of the time and expertise in-
volved in determining what should and should not be made available
to the public,
Presently, the exempt and nonexempt information under the act is
being inadevertently or purposefully commingled, blocking the re-
lease of information sought. That practice has to cease.
The act also needs to be more clear about classification systems. The
three categories suggested in. H.R. 4960 greatly narrow the scope of
which materials are to be withheld.
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Mr. Horton's and Mr. Erlenborn's legislation would strengthen the
Freedom of Information Act to further guarantee the public's right
to know.
There is another area of weakness in the current Freedom of In-
formation Act. Regulations fixing fees for the production and copy-
ing of records vary widely from agency to agency, reflecting the wide
discretion each one has in setting user charges.
In a study published by the Administrative Law Review, it was
found that charges made for copying Government documents differ
widely and that the variation "cannot possibly be explained on the
grounds of differing labor or other costs." Copying charges range
from 10 cents or less in agencies such as the Office of Economic Oppor-
tunity and the Securities and Exchange Commission to 40 cents a page
in the State Department and 50 cents in the Department of Transpor-
tation. The Equal Employment Opportunity Commission, the Atomic
Energy Commission, and several other agencies charge a special fee
of up to $1 for the first page copied.
Although the Freedom of Information Act allows agencies to charge
a "reasonable fee" for record searches' the search fees, like copy costs,
vary from $2.50 an hour, Veterans' Administration, to $8 an hour at
the Post Office.
Agencies have argued that the charges tend to discourage "frivolous
requests" but the spirit and language of the act do not support this
policy of discouragement nor the delays often encountered.
It is for these reasons that I should like to offer an amendment to
H.R. 4960 which would authorize the commission to review fees
charged by the Federal agencies, as well as require?and I repeat re-
quire?the agencies to submit their fee schedules for approval on an
annual basis.
In establishing this fee schedule' the commission shall, to the maxi-
mum extent possible, standardize fees charged by such agencies.
The amendment would also provide the opportunity for any agency
to petition the commission at any time for a review of all or part of
its fee schedule. An individual is also guaranteed the opportunity to
petition the commission for a review of an agency's charges forin-
formation.
I strongly support H.R. 4960 and I urge this committee to give care-
ful consideration to it. Freedom of Information is an issue which is,
now more than ever before, a concern of the American people--one
which requires our immediate attention and action.
I respectfully request that you consider my amendment and sup-
port H.R. 4960.
Thank you very much.
[The attachments to Mr. Hanrahan's statement follow:]
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TABLE OF AGENCY FL:ES FOR THE PRODUCTION OF DOCUMENTS
Agency
CFR citation
Cost per
Minimum charge page phctocopy Clerical search
AEC
CAB
10 CFR, pt. 9_ __ $1; $2.50 (search). )00,25__ . _____ ___ $5 per hr.
14 CFR, pt. 3891 U. 0.05.
Department of Agriculture 7 CFR, pt. 1 $1; $1 (search)_ .25_ $4 per hr.
Department of Commerce 15 CFR, pt. 4 $2 (nonrefunda- $0.25_ $5 per hr.
ble); $2.50
search.
32 CFR, pt. 286a_ $1.50; $2.50 $0.25 $5 per hr.
(search).
45 CFR, pt. 5 (2). (3) (3).
24 CFR, pt. 15 $1, none if less_ _ $025 $5 per hr (1st
hour, no :harge).
(3) (3).
$3 (nonrefunda- $0.50 1st page $1 per A, hr 1st
ble). (.25 additional) 4 Or no charge.
None $0.30.- ______ ___ $1 er1/4' hi; 1st
dr nd aharge.
$3.50 nonrefunda- $0.40 $3.50 per h.".
ble.
$3 $0.50. $3 per hr (or ac-
tualcostif more).
31 CFR, pt. L $2 (search) $0.10. $3.50 per hr.
29 CFR, s 1610 Ncne $0 25 $3 60 per hr, $0.90
- per A hr.
(3).
(a).
$4.50 per hi, M hr
no charge.
(2)
$5 per hr.
Reasonable fee
where applicable.
Not stated.
(3)
$3 per hr.
$1 :1.1 hr (1st 1;
hr no charge).
(3) (3).
Department of Defense
Department of Health, Education, and
Welfare.
Department of Housing and Urban
Development.
Departmerr, of the Interior 43 CFR, pt. 2
Department of Justice 28 CFR, pt. 16
Department of Latm 29 CFR, pt. 70
Department of State. 22 CFR, pt. 6
Department of Transportation 49 CFR, pt. 7
Treasury
EEDC
Farm Credit Administration
12 CFR, S. 604.___ (3) (3)
FCC 47 CFR, pt. 0, (4) (9
s. 441.
Federal Maritime Commission 46 CFR, pt. 503_ None $0.30
FPC 18 CFR, pt. 1 () ()
FRB 12 CFR, pt. 261_ None $0.10_
FTC 12 CFR, pt. 4 None $0.30_
GAO 4 CFR, 13t. 81 $3 $0.25
?GSA 41 CFR, pt. 105 -60_ (3).
ICC 49 CFR, pt. 1002_ $1. V
0.25
NASA. _ 14 CFR, pt. 1236_ None $0.07
NLRB 29 CFR, pt. 102___ (3).
0E0 45 CFR, pt. 1035_ None $0.10 maximum ___
Railroad Retirement 13oard 20 CFR, pts. 200, (3) (3) (3).
262.
Renegotiation Board_ 32 CFR, pt. 1430_ $2 _ $0.25_ $4 per hr, (1st 14
fir no charge).
SEC 17 CFR, pt. 2O___ (3) (3)
(a
SSS 32 CFR, sec $1 2
2
1606.57.
SBA 13 CFR, pt. 10/ $0.25_ $2 minimum.
U.S. Commission on Civil Rights 45 CFR, pt, 704_ $1 $0.10------------$5.32 per h.
USIA 22 CFR, pt. 503_ None $0.40 $5 per hr.
VA 38 CFR, sec. 1.527_ None $0.25 $3 per hr (1st A
hr no chrsge).
This table was prepared as a working paper in connection with administrative conference efforts to implement recom-
mendations. It is rot a complete list of agencies having rules on the subject, the extracted material is highly abbreviated
and it does not take into account actual agency practices to waive charges i n many ci rcurrmta noes.
2 Published sepa-alely by operating agencies.
Rules not specific.
4 New rules unde-r consideration.
Available at Office of Public Information.
'2 Includes search,.
AMENDMENT TO H.EL 4960 OFFERED BY MR. H.i.NF.AHAN
On page 11, redesignate sections 223, 224, and 225 as sections 224, 225, and
226, res;pectively, and immediately after line 4, insert the following new section:
Sec. 223. ,:a) Not withstanding title 5 of the Act of August 31, 1951 (Public
Law 82-136; 31 USC 483a), or any other provision of law, on or after the two-
hundred and fortieth day after the Commission commences operations, no Federal
agency may charge any fee to any person with respect to the making available
of records to such person pursuant to sections 552 of title 5, United States Code,
unless such fee is approved by the Commission under subsection (b).
(b) (1) Prior to the two-hundred and fortieth day after it commences opera-
tions, the Commission shall esuablish a fee schedule for each Federal agency
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with respect to fees which such agency may charge to persons requesting records
from such agency pursuant to section 552 of title 5, United States Code. In
establishing such fee schedules for Federal agencies, the Commission shall, to
the maximum extent possible, standardize fees charged by such agencies.
(2) The Commission shall review each fee schedule it establishes under para-
graph (1) on an annual basis.
(c) (1) Within ninety days after the Commission commences its operations,
each Federal agency shall transmit to the Commission a copy of its current fee
schedule with respect to fees it charges persons requesting records pursuant to
section 552 of title 5, United States Code.
(2) Any Federal agency may petition the Commission at any time for a review
of all or any part of its fee schedule established by the Commission under sub-
section (b).
(d) Any individual may petition the Commission at any time for a review of
all or any part of the fee schedule established for any Federal Agency by the
Commission under subsection (b).
Mr. MOORHEAD. Thank you very much, Mr. Hanrahan.
Without objection the balance of your statement will be made a part
of the record?the fee schedules that you have provided and the lan-
guage of the amendment that you have offered.
Your statement will be of great help to the subcommittee. I think
for one thing that perhaps you have helped to solve one of our most
difficult problems?which is difficult to legislate?a fair and reasonable
fee schedule. There may be some justification for different search fees
in one department where the records are more difficult to find than
in another one. One may be completely manual, while another may be
automated, where you just push a button and the information re-
quested could be provided quite inexpensively.
Mr. HANRAHAN. Mr. Chairman, my concern was that the public
is being turned off by these Federal agencies when they call up, or
when they go in person to ask for something. The public is treated by
Federal agencies like the scum of the earth?do not bother me attitude.
Now, we have 2.8 million civil servants, and they are acting more like
masters than civil servants or servants of the people. And I think this
really hits at the heart of that basic issue, because I had experience
working with a Federal agency and I know how they operate. And I
am sure that there are a few agencies that are very efficient, but I think
on the whole most of these agencies are, not responsive to public re-
quests. It is only at the insistence of some Congressman or a Senator
before they do get this information for a particular constituent. And
we live in a very complex society today of growing Government, and I
think that this particular amendment would, and the commission itself
would not be a detriment, as Congresswoman Mink has pointed out.
I think this commission is sorely needed especially to give it some
real teeth so that we could make these Federal agencies a little more
respectful of Congress and more respectful in particular of the public.
Mr. MOORHEAD. Do you see that these fees whether it is the copying
or the search fee, should they be at cost, or close to the cost to the Gov-
ernment of doing it, or should it be below that cost because it is
really rendering a public service? What is the overall philosophy that
we should be directing the commission to follow in setting fees if we
adopt your amendment?
Mr. HANRAHAN. I think it should be one of public service, because
these people do serve as civil servants, and they are helping the public.
And I would hope that it is their philosophy for being a civil serv-
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ant, that they are there to help people. I think that this is the whole
philosophy of whether you are a Congressman, elected official or
appointed official. If you are not there to help people you do not belong
in that position. So, even if it would cost a little more money for the
Government, I think it is profitable for proper communication. But it
is necessary and vital in our society today that we are more con-
cerned about human beings than building buildings. I would much
rather spend this on people and the public in general, even if it does
cost us a little more money, staying within the budget ceiling, of
course, of $268 billion.
Mr. MOORHEAD. We are all agreed on that.
Would you go so far as to say that there should be no fee at all,
that it should be a part of the public service of whatever department
or agency is involved to furnish information to the public?
Mr. H&NTRAHAN. Well, I think that this Commission could properly
do a very thorough job of determining that bees use this would be
within their purview, I think, to make this determination whether
the fee is reasonable or not,, or whether there shoulO be no fee whatso-
ever. I think that the Commission itself should make this determina-
tion. And naturally, you are going to get input from public officials
also on whether there should be a fee involved.
Now, with some of these scientific documents, I can see where this
might cost a great deal of money, but when you see this tremendous
variance here in the index of my testimony on this table of agency
fees for production of documents. At Villanova a law professor who
did a study of these search and copying fees pointed out this tre-
mendous variance from one agency to another. And I think that if we
have to go to the extreme of charging no fee whatsover, I do not
think everyone and his brother is going to conic off the street and
ask for a particular bit of information. I think this is what they
were originally saying, that they were going to get, every Tom, Dick,
and Harry coming off the street and asking for information on a par-
ticular subject.
This is why we are here, to help people, and I do not think we are
going to be faced with that situation. After all, when the applicants
for civil service jobs filled out that application, the 171 form, they
applied for work, and this is what they should be doing.
Mr. MOORHEAD. My own feeling is that we have got to give the Com-
mission some sort of guidance My own choice would be for the low-
est possible fee, even below cost. That would be sufficient to eliminate
frivolous requests.
Mr. Horton?
Mr. HorroN. Mr. Chairman, thank you. I would like to congratulate
Mr. Hanrahan for his very constructive suggestion. I think it is a very
important matter, and it would indicate from his statement and the
material that he has furnished us here that he and his staff have done
a lot of research work on this important problem. And I think it is a
very important contribution to the work of the subcommittee.
I do not have any specific questions but do believe that this is some-
thing that; the subcommittee should take under consideration. I would
hope that something like this recommendation could be included in the
bill. I think you have indicated, Bob, in your conversations with me,
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and also your testimony here today that there is a great deal of variance
in fees and it ought to, as you have indicated, and as the chairman has
indicated, it ought to be made easier for people to get this type of in-
formation. I would tend to agree with the chairman that there ought
to be some type of a fee so that you could discourage persons from mak-
ing frivolous requests. But I do not think the requester ought to pay
the full shot under all circumstances because some of this information
can get to be quite expensive, but taxpayers should not have to pay for
frivolous requests.
Mr. HANRAHAN. No, I would agree on a basic, minimum on the fee
charge.
Mr. HORTON. I would think that it should be a rather reasonable fee,
and not one to necessarily compensate the Government for every penny
that is involved in the production of and furnishing of this type of in-
formation. I think it is a very valuable contribution that you have made
to the subcommittee here, and I know you have done a lot of work on
it personally, and indicated your concern about this at a very early
stage. As a matter of fact, at the time I was introducing the bill.
Mr. MOORHEAD. Would the gentleman yield for just a moment ?
Mr. HORTON. Yes.
Mr. MOORHEAD. We might provide that the Commission could waive
fees in individual cases where there is merit, but where no funds are
available.
Ms. Abzug?
Ms. ABZUG. No questions.
Mr. MoomiEAD. Well, thank you very much, Mr. Hanrahan. This, I
think, has been a most productive discussion that we have had here.
You have stimulated a lot of thinking on the part of the subcommittee
members for which we are deeply grateful.
Mr. HANRAHAN. Thank you. And I welcome the opportunity to ap-
pear here, and hopefully when we convene as a full committee we
may incorporate this amendment as a part of the new revision of the
Freedom of Information Act, because I think that as I have men-
tioned in my testimony, as a new media man just mentioned to me,
is this going to make information more accessible to the public, and
stop these bureaucrats from preventing information from being ac-
cessible, I should say, to a legitimate citizen that is making a legiti-
mate request. And I deeply appreciate your hearing me out this
morning
Thank you.
Mr. MOORHEAD. Thank you.
Mr. PHILLIPS. I would like to make one observation for the record,
Mr. Chairman, if I might, on the question of fees. Of course, this
matter came up in our hearings last year on a number of occasions.
The Administrative Conference of the United States has also looked
at fee schedules of various agencies?the table that you have put in the
record, Mr. Hanrahan. Subsequently last year, the Office of Manage-
ment and Budget was asked both by the subcommittee and the Admin-
istrative Conference to review the fee schedules that were being chargd
by various agencies and departments under the Freedom of Informa-
tion Act, both for copying and searching of records. OMB later issued
a statement to various departments and agencies suggesting that they
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charge the minimum fees necessary to cover costs. That has resulted
in a few cases of some reduction in both copying and search fees.
However, OMB stopped short of doing what the subcommittee had
hoped that they would do; that is, to set some minimum uniformity
of posts among the various departments and agencies for both copying
and searching. The situation is a little bit better now. I think, than
it was 2 years ago, but not very much better. Perhaps the only way
that this can be accomplished is through some mechanism such as you
suggest, or a change of policy on the part of OMB to enforce more
their very lukewarm policy statement that there should be a lower
minimum in each case. Certainly this is, as we have found in our
hearings, a very essential part of the problem.
Mr. HANRAHAN. I know, I would certainly agree with that, Mr.
Phillips, that we definitely establish some type of uniformity or stand-
ardization of these fees. I think that is the guts of this whole issue.
Mr. PHILLIPS. Thank you, Mr. Chairman.
Mr. MOORHEAD. Thank you again, Mr. Hanrahan.
Mr. HAN:RAHAN. Thank you.
Mr. MOORHEAD. The subcommittee will meet again on the freedom
of information legislation tomorrow morning at 10 a.m., in room 2154.
We will have witnesses from the Department of Justice and the De-
partment of Defense and one outside witness.
The subcommittee will now adjourn until 10 o'clock tomorrow.
[Whereupon, at 11 :20 a.m., the subcommittee adjourned, to re-
convene at 10 a.m., Tuesday, May 8, 1973.]
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THE FREEDOM OF INFORMATION ACT
TUESDAY, MAY -8, 1973
HOUSE OF REPRESENTATIVES,
FOREIGN OPERATIONS AND
GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
Washin,qton, D.C.
The subcommittee met, pursuant to recess, at 10:10 a.m. in room
2154, Rayburn House Office Building; Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present: Representatives William S. Moorhead, Bill Alexander,
Bella S. Abzug, James V. Stanton, Paul N. McCloskey, and Gilbert
Gude.
Also present: William G. Phillips, staff director; Norman G. Corn-
ish, deputy staff director; L. James Kronfeld, counsel; and William
H. Copenhaver, minority professional staff, Committee on Govern-
ment Operations.
Mr. MOORHEAD. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
For nearly 20 years this subcommittee has concentrated on one of the
basic problems of our democratic society?the problem of public ac-
cess to Government information. Any society is truly democratic to
the extent that all members of the society participate in its Govern-
ment, and this subcommittee's long-term goal has been to convince the
huge and growing executive branch of the Federal Government that
it is proper?in fact, absolutely necessary?to pull aside the paper
curtain of secrecy between the public and their government.
The 1966 freedom of information law was a giant step in that direc-
tion' but months of hearings with scores of witnesses last year proved
that the executive branch often ignored both the spirit and the letter
of that law. As one result of the House Government Operations Com-
mittee's unanimous report on this subcommittee's hearings, most Fed-
eral agencies agreed to make major changes in their administration of
the freedom of information law.
Another result was a clear recognition that substantial legislation
changes must be made before the law can become the freedom of in-
formation weapon that the public, the press, and the Congress need
in their continuing battle against unnecessary executive secrecy.
I hope that the executive branch will approach this legislative prob-
lem in the same spirit of cooperation in which they are considering
the committee's recommendations to solve administrative problems
under the freedom of information law. I might interject that I think
the Justice Department has done an excellent job in devising regula-
tions in this area. That hope impelled me to ask President Richard M.
(97)
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Nixon to designate the executive branch witness who would present
the Nixon administration position on the legislation before us.
In response to my request, Assistant Attorney General Robert Dixon
was selected to present the a,drninistration's position As head of the
Office of Legal Counsel in the Department of l'ustice, Mr. Dixon is in
an excellent position to help us work out effective legislation, for his
office has been responsible for the guidance of all other agencies in
their handling of the legal problems which have come up during the
nearly 6 years the freedom of information law has been operating.
President Nixon has personally considered the need for improve-
ments in the .freedom of information law and commented on the "many
constructive recommendations" in the committee report, on the law.
Just before last year's election, the President said in a letter to Robert.
Fichenberg of the American Society of Newspaper Editors:
I fully support all efforts designed to improve the administration and execution
of the terms, policies, and objectives of this important statute. If, after careful
consideration, the Department of justice determines that charges in the language
of the act would be advisable, I would support such legislative revisions.
I will insert all this correspondence in the hearing record at the
conclusion of these opening remarks.
The subcommittee opens its hearings today with testimony from
Assistant Attorney General Dixon, the administration representative,
who will explain what careful consideration has been given to legisla-
tion to improve the terms, policies, and objectives of the freedom of
information law.
Later this morning we will hear from Prof. Thomas M. Franck,
director of the Center for International Studies at New York Uni-
versity, who will comment on the flow of information in the field of
national defense and foreign policy. This afternoon, we will hear from
the Department of Defense, represented by General Counsel J. Fred
Buzhardt and Assistant Secretary of Defense Jerry Friedheim.
[The communications between President Nixon and Mr. Robert
Fichenberg follow:]
AMERICAN SOCIETY OF NEWSPAPER EDITORS,
FREEDOM OF INFORMATION COMMITTEE,
Albany, MY., September 14, 1972.
President RIOEEARD M. NIXON,
The White House,
Waaltinaton, D.C.
DEAR MR. PRESIDENT: As a candidate for the most important governmental
job in our democratic society, I know you are committed to the ideal of a fully-
informed public and Congress ar.d I know you have given thought to action which
can make this ideal a reality.
The American Society of Newspaper Editors is deeply concerned abouT the
information problems which face our society and solicits your comments on
some of those problems. Will you please provide answe:!s to the following
questions?
1. Would you support legislation which would permit newsmen to protect the
identity of their sources unless the defendant in a libel suit bases his detense
upon the source of allegedly defamatory information or unless a federal district
court finds clear and convincing evidence that the newsman has information
relevant to a specific law violation, that there is no other means of obtaining the
necessary information and that there is a compelling and overriding national
interest in divulging the information?
2. Would you restrict the use of executive power to withhold information from
the Congress to a presidential prerogative, exercised by the president, personally,
in each specific case?
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3. Would you support legislation granting statutory authority for the system
of classifying information to protect national defense and foreign policy and
providing specific penalties for misuse of the system by either under-protecting
or over-protecting such information?
4. Would you support legislative or administrative improvements in the Free-
dom of Information Act (5 U.S.C. 552) designed to prevent delays in handling
requests for access to public records, to tighten the language on access to public
records reflecting court decisions and to provide for government payment of court
costs and reasonable attorney's fees in cases under the Freedom of Informa-
tion Act which the government loses?
I would appreciate your early reply.
Sincerely,
ROBERT G. FICHENBERG,
Chairman.
THE WHITE HOUSE,
Washington, November 4, 1972.
MT. ROBERT FICHENBERG,
Chairman, Freedom of Information Committee, American Society of Newspaper
Editors, Ktulekerbocker News, Albany, N.Y.
DEAR Ma. FICHENBERG : I wish to thank you for this opportunity to express my
views on questions which the American Society of Newspaper Editors has sub-
mitted in regard to governmental information policies.
Your first question asks about my position on the legislation sponsored by the
Joint Media Committee, which is designed to create a qualified testimonial priv-
ilege for newsmen in the Federal courts. I am aware that many in the news
media are concerned about the Supreme Court's recent holding that newsmen are
not constitutionally protected from being required to appear and testify before
the State and Federal grand juries. In a broader sense, however, I am also im-
pressed that for almost 200 years the press and the government have managed to
maintain a proper balance between the encouragement of a free and vigorous
press and the fair administration of justice, all without the need to resort to
Federal legislation.
In 1970, in response to a growing concern of the news media, the Attorney
General issued "Guidelines for Subpoenas to the News Media". These guidelines
require careful consideration of the individual situation by the Federal prosecu-
tor, extensive negotiation with the newsman and his organization and, if these
fail, a request for issuance of a subpoena only after express authorization by the
Attorney General. The policy expressly established by the guidelines is that the
Department of Justice does not consider the press "an investigative arm of the
government." During the two years in which the guidelines have been in opera-
tion, they have apparently been successful, since requests for subpoenas have
been authorized on only 13 occasions and 11 of these involved newsmen who,
though willing to testify or produce documents, preferred to follow the formal
procedure of the issuance of a subpoena. The Attorney General has authorized
subpoenas in only two instances in which negotiations with newsmen proved
unsuccessful.
Before moving forward with legislation in this field, I would hope the Congress
would face up to the legal difficulties in defining a qualified privilege and the
problems inherent in the administration and exercise of such a privilege. I
would also suggest that the merits of enacting such laws must be carefully
weighed against the dangers inherent in establishing a precedent for Federal
legislation in this sensitive area. For these reasons, while I would not oppose the
legislation sponsored by the Joint Media Committee, I think that the system
established by the Attorney General's guidelines is preferable to Federal legisla-
tion at this time.
If a State does not have similar successful guidelines, I believe it is advan-
tageous to all concerned that a "shield" law be enacted to fill this void. My sup-
port for such a law in the absence of effective guidelines is based upon the
acknowledged need for reporters to shield their sources in most cases. Let me
also reemphasize in this respect my firm commitment to the preservation of the
principle of a free and vigorous press.
Should it ever become apparent that the Federal guidelines fail to maintain
a proper balance between the newsman's privileges and his responsibilities of citi-
zenship, then I would certainly be willing to reconsider my position on the need
for Federal legislation.
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In response to your second question, as to whether I would restrict the use of
executive power to withhold information from the Congress to a prerogative
which must be exercised personally by the President, I call your attention to
my memorandum of March 24, 1969, to the heads of executive departments and
agencies., which imposes this very restriction on the use of this authority. The
memorandum explains that "the policy of this Administration is to comply to
the fullest extent possible with Congressional requests for information." In
furtherance of our policy, this memorandum directs that Executive Privilege
will be invoked only in the most compelling circumstances and after a rigorous
inquiry into the actual need for its exercise, and that there will be no exercise of
the privilege without the President's specific personal approval.
Your third question asks if I would support legislation granting statutory
authority for the system of classifying information to protect national defense
and foreign policy and providing specific penalties for misuse of the system. On
March 8, 1972, as you know, I issued Executive Order 11652, which deals with
classification, downgrading, declassification and safeguarding of national secu-
rity information. This Executive order is the culmination of more than a year of
intensive staff review and represents the first major overhaul in the classifica-
tion system in almost 20 years.
The new order has three purposes: (1) to reduce the amount of information
which is classified and to provide better protection for such information; (2) to
accelerate the schedules for automatic downgrading and declassification of
classified documents; and (3) to establish an Interagency Classification Review
Committee to monitor the implementation of the new Executive order. Under this
new system, the number of persons in the government who may classify docu-
ments has been substantially reduced, including a reduction of 77 percent in those
that may designate documents as top secret. A National Security Council Direc-
tive implementing the order further provides that administrative sanctions shall
be applied for abuse of the classification system. In view of the progressive and
comprehensive procedures established by the order and directive, I see no need
for legislation on this subject at present.
You last question requests my opinion on the advisability of legislative or ad-
ministrative improvements in the Freedom of Information Act which would be
designed to (1) prevent delays in handling requests for access to public records;
(2) tighten the language on access to public records reflecting court decisions
and (8) provide for governmental payment of court costs and reasonable attor-
neys' fees in cases under the Freedom of Information Act in which the govern-
ment does not prevail.
During the live years of its existence, the Freedom of Information Act has
resulted in considerable progress toward the goal of permitting the maximum
public availability of governmental information consistent with the needs of
national security, individual privacy, law enforcement, and the other factors
which the act itself recognizes. I have been a strong supporter of the Freedom
of Information, Act and have directed all members of this administration to ob-
serve and implement the spirit as well as letter of the act. However, because of
the great variety and complexity of governmental records, the act has not always
proved easy to administer.
From the experience of these past five years, it is evident that there are some
problems inherent in the act and in the procedures used for its administration.
Last year, the Administrative Conference of the United States, after a compre-
hensive study of the implementation of the act, presented recommendations for
the correction of certain of these procedural problems, including improvements
designed to prevent delays in handling requests for documents. These proposals
have been under study by the departments and agencies and some have already
been adopted. Additionally, in September the Committee on Government Opera-
tions of the House of Representatives issued a report on the administration of
the Act that also contained many constructive recommendations. The Depart-
ment of Justice is now studying these suggestions as well as considering the best
methods of implementing administrative improvements.
I fully support all efforts designed to improve the administration and execu-
tion of the terms, policies, and objectives of this important statute. If, after care-
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ful consideration, the Department of Justice determines that changes in the
language of the act would be advisable, I would support such legislative revisions.
However, until all efforts to improve the implementation of the act have been
tried, I would be opposed to the award of attorneys' fees at the taxpayers' ex-
pense, since this might encourage the filing of lawsuits in disputes that could
be otherwise resolved without burdening the courts.
Finally, I wish to take this opportunity to reiterate my firm commitment to
the principle of a fully informed public in our open and democratic society. Dur-
ing the past four years, this Administration has given positive emphasis and
taken new initiatives to provide the American people with information concern-
ing their government. We feel that the establishment of the Office of the Director
of Communications for the Executive Branch has significantly enhanced this
effort. In addition, the major reforms in classification procedures and the empha-
sis on successful implementation of the Freedom of Information Act are con-
tributing to achieving our goal of permitting the greatest possible public dis-
closure. You may be sure that if re-elected, I will continue to commit the full
force of my office to meeting this goal.
Sincerely,
Mr. MOORHEAD. Mr. Dixon, you may proceed.
I might say that I have read your testimony, and I am reminded
of the story that when a diplomat says "yes," he means "maybe," and
when he says "maybe" he means "no," and when he says "no," he is
no diplomat. You vary somewhere between "yes" and "maybe" in your
testimony. You qualify as a diplomat but just barely, sir.
STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUS-
TICE; ACCOMPANIED BY ROBERT SALOSCHIN, OFFICE OF LEGAL
COUNSEL
RICHARD NIXON.
Mr. DIXON. Thank you, Mr. Chairman. I am pleased to be here this
morning. I have with me, on my left, Mr. Robert Saloschin from the
Office of Legal Counsel who is our staff member primarily in charge
of administering the Freedom of Information Act for the Department
and for giving advice throughout the Government. I might say that
I have no more dedicated, more competent person on my staff in re-
gards to the very important mission of this act.
Mr. Chairman, I appreciate your opening remarks, and I realize
that our posture here is a little bit like the posture of a husband who
might say to his wife: "Dear, we have been together for a good many
years and we will stay together for a good many years, but, today,
sweetie, I do not like your hairstyle or your general demeanor." But if
that is the case, so be it, and we will do the best we can. We must stay
together and work together in this field.
I will present my statement in a somewhat condensed fashion in
deference to the committee's time. I would appreciate it being printed
in full, although I will condense it as I go through.
Mr. MOORHEAD. Without objection, the full statement will be made
a part of the record.
[Mr. Dixon's prepared statement follows :1
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PREPARED STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPART-
MENT OF JUSTICE
bear Mr. Chairman:
We appreciate the opportunity to appear before your
Committee and discuss H.R. 5425 and H.R. 4960, bills con-
taining several proposed amendments to the Freedom of
Information Act. I will discuss H.R. 5425 both generally
and specifically, then add some comments on H.R. 4960, and
finally offer a few ideas on how we might work together to
advance the general objectives of the Freedom of Informa-
tion Act.
Before discussing the bills, let me emphasize our basic
approach to this subject. The Freedom of Information Act
[applicable to the executive branch but not to the other two
branches] is a basic commitment to the maximum feasible
access by private persons to the inernal details of admin-
istration, with no need to disclose ,the private interest
prompting the request. It is a major effort to open many
aspects of government. It is a real challenge to administer
the Act well, and to accommodate the competing interests
involved. Regarding most requests by scholars we have little
problem. Regarding requests for information given to the
Government Ln confidence, or which involve law enforcement-
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type files, we have more problems.
As to out part in making the Act work, let me reiterate
a statement by my predecessor, Ralph Erickson, when he
appeared before you last year on March 10th to discuss the
work of the Justice Department and of our Freedom of Infor-
mation Committee. He said, "We are continually striving
to improve our efforts in this important field of law and
government, but we also feel that on the whole we are doing
a reasonable job . . . considering the magnitude ?and complexity
of the challenges which face us."
Since then, we have taken several further steps to
improve performance in this field.
These steps were over and above our regular
freedom of information workload of processing
requests, handling litigation, and counselling
other agencies.
(1) We have prepared a 19-page analysis and program
outline for improved administration in this field.
This is set forth in a letter with attachments
sent to you on December 27, 1972. This was
in response to your ten recommendations for
improved administration of the Act, contained
in your landmark report of last September 20th.
(2) We have issued and published in the Federal Register
41
of February 11, 1973 a sweeping revision of our own
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regulations under the Act, to improve and expedite the
processing of requests for justice Department records.
After an adequate test period to see how these new procedures
are working, we plan to encourage other agencies to consider
adopting generally similar changes.
(3) We prepared and conducted a concentrated and
comprehensive seminar on the proper handling of Freedom of
Information requests for over 50 officials from all parts
of the Justice Department,
This was held on March 1, 1973, the day our
revised regulations went into effect, and was
keynol=ed by a message from the Attorney Gen-
eral. As we informed you in our letter of
March 19th, this training program was well
received, and we hope to build on this experi-
ence in helping other agencies to provide
better freedom of information training for
their personnel to the extent our .own resources
permit.
I.
Let me turn to some general comments on H.a. 5425.
We are of course sympathetic to what we take to be the two
main purposes of the bill, namely, to make the Act as clear
as possible, and to make government records even more
quickly and fully available than at present. We recognize
the Act is not perfect. We fear, however, that these
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amendments would introduce new uncertainties, bearing in mind
the incredibly vast and varied aggregations of records
covered by the Act, and the inevitable need for some flexi-
bility and judgment.
We share the concerns of those who feel that the admin-
istration of the Act is not perfect either. Our own con-
siderable experience in screening contemplated denials of
access by other agencies, plus our work in handling appeals
from denials within our own Department, support our belief
that access should sometimes be more speedy and extensive
than some officials are inclined to grant. At the same time,
I should note that the overall government practice is not
nearly as restrictive as it may appear to some critics, that
there are reasonable explanations for much of the restric-
tiveness that does exist, that no agency can operate in a
goldfish bowl very effectively, and that steady progress is
being made toward better access, due in part to the efforts
of your Committee and, we like to believe, of our Depart-
ment as well. Our goal is continued progress in improving
the administration of the Act and responding as speedily
as possible to the increasingly broad and searching requests
for all of the records of the executive branch.
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Despite the laudable general purposes of H.R. 5425, we
are compelled to oppose its provisions strongly. 'Before
discussing them in detail, let me summarize the overall
reasons for our opposition. In our view, with some possible
exceptions, the proposed amendments contained in the bill
(a) would lead to increased costs and administrative burdens
for government agencies without corresponding public benefits,
(b) would create new uncertainties to confuse requesters,
agency officials and the courts, (c) would actually tend to
reduce the flow of information to the public--unnecessarily,
and (d) would undermine personal privacy and the effective
implementation of numerous laws and programs which Congress
over the years has enacted, and which must be faithfully
executed by the executive brar.ch if our system of government
is to serve the nation and its people well.
I will now discuss the specific amendments to the Act
which H.R. 5425 proposes, 1:aking up first Section 1 of the
bill.
1. Secdon 1(a) of H.R. 5425 would amend the indexing
provision in subsection (a)(2) of the Freedom of Information
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'
Act. This provision currently requires that there be
indexes to the several types of material covered in sub-
section (a)(2), which are basically materials that may be
used as precedents for agency action. Under the present
Act these indexes must be available for public inspection
and copying, but the proposed amendment would go further
and compel all agencies to publish and distribute such
indexes.
There may be nothing wrong with this amendment in
theory--some agencies already publish certain indexes--but
in practice and as a government-wide requirement it would
be confusing, costly, and essentially unnecessary.
There is considerable reason for uncertainty
about the actual scope or coverage of the present
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indexing requirement, and this uncertainty would
become a real problem under the amendmenc. There
is seldom a practical problem today unless an
agency or a citizen needs an index which may be
within the meaning of subsection (a)(2) and the
index is not available. But the proposal to compel
publication of all indexes which exist or should
exist under subsection (a)(2) would require the
immediate resolution of these uncertainties and
would often require it in a vacuum, i.e., when
few if any persons are interested in using a par-
ticular index.
Published indexes would rarely be best sellers.
The Immigration Service maintains an index in its
various public reading rooms, and personnel in
charge of those rooms report that members of the
public virtually never use the available indexes.
The considerable expense of preparing for pub-
lication, publishing, and keeping current indexes
that are not oriented co a demonstrated public
need would be largely wasted. Even where indexes
meet a need, like the card catalogue in our law
library, it is not clear that the expense of pub-
lishing would be warranted. And indexes that
have been developed by specialists for their own
use may be largely incomprehensible if published,.
It would sometimes be more practical, economical;
and satisfactory to the outside person seeking
information to give him direct personal assistance
that fits his existing knowledge and interest,
rather than to tell him to go buy an index that
may not help. To make published indexes helpful,
they may sometimes have to be completely reorganized,
or agencies will have to write explanatory literature
which hopefully will make the index useful to an un-
known spectrum of readers.
Indexes, after all, are principally devices
for locating other materials. The presenc Act,
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besides making the indexes available to requesters,
impose3an obligation on agencies to search their
records upon request. A major obstacle to locating
requested records is the availability of sufficient
time of qualified agency staff. Publishing indexes
would rarely help overcome this obstacle, and the
obstacle- might be aggravated if staff needed for
searches must be assigned to preparing, revising and
updating indexes for publication.
We conclude that this amendment should not be adopted
on a government-wide basis until all affected agencies have
had an opportunity to determine its probable impact on their
staffs and budgets in relation to estimated public benefits,
and until consideration has been given to possible alternative
devices which may be more effective, simpler to use, more
easily kept up-to-date, and less costly.
2. Section 1(b) of H.R. 5423 would amend Subsection (a)(3)
of the Act so that requests for records would no. longer have
to be "for identifiable records", requiring instead that a
request for records "reasonably describes such records".
This well-intentioned amendment.istaneeessary,
and it might lead to confusion as well as to unwarranted
withholding of requested records.
The proposed language would enable unsympathetic
officials, to reject requests which would have to be
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processed today, on the new ground that the requests
are not reasonably descriptive. This amendment could
also subject agencies to severe harassment, as where
a requester gave a description of Patent Office
records he wanted that was adequate to find them,
but his request was for about 5 million records
scattered through over 3 million files. The court,
apparently unable to accept something so unreason-
able, held the request was not for "identifiable
records".
The problems of identifying and describing
records will never be completely eliminated, but
they have been carefully studied by the Administra-
tive Conference of the United States, the Justice
Department, and the courts. Under the influence
of these various bodies, agency practices are im-
proving greatly in this area, and further legislation
is not needed at this time
3. Section 1(c) of H.R. 5425 wbuld amend the Act by imposing
time limits of 10 working days for an agency to determine
whether to comply with any request, and 20 working days to
decide an appeal from any denial. We strongly oppose this
amendment.
The Act now requires that agencies make records "promptly"
available. While promptness is a relative term, there is no
doubt that most courts will treat an unreasonable delay by
an agency in processing a request as a basis for mandamus
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requiring the agency to reach a decision. All our experience
leads us to believe that, while fixed time periods may be
useful in adhieving greater speed when used as norms or
goals, what constitutes unreasonable delay varies with the
circumstances of each case and can only be determined on a
case-by-case basis.
We recognize that there is considerable room for
improvement in many agencies including our own in the
speed with which requests under the Act are processed.
This may be partly due to the fact that no money has ever
been appropriated to any agency to administer the extra work
which the Act involves. Yet we have affirmatively tried to
move in the direction of quicker processing, without sacrificing
quality, and without undermining the ultimate legislative
objective of greater disclosure. For example, we supported
the Administrative Conference guidelines, from which the 10
and 20-day time limits in the bill originated, although only
as a desirable goal for agency administration of the Act. We
would like to see requests acted upon even more quickly than
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these 10 and 20-day limits whenever this can be done consist-
ently with agency resources, other responsibilities, and
processing quality. In our own department we have encouraged
the press to contact our Office of Public Information for
expedited and informal service, recognizing the need of the
press for specially prompt service. And, as you know, we
have recently issued an experf.mental revision of our own
departmental regulations to include 10 and 20-day time limits.
It therefore may seem ironic on first blush that we so
vigorously oppose the 10 and 20-day limit provisions set forth
in section 1(c) of the bill and any similar legislative amend-
ments. But we believe this amendment is far toc rigid for
permanent end government-wide application, just as would be,
for example, a requirement that Congress come to a record
vote within a specified number of days on all reported bills
or Administration bills. The section is quite unrealistic
from the standpoints of the complexity of the problems
which requests may present and the complexity of the
governmental organizations which are concerned with such
problems, and it is likely to be counter-productive of
the general purpose of maximizing disclosure, by discouraging
the careful and sympathetic processing of requests. The
amendment probably would encourage hasty initial decisions
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to deny, would mean an increase in unnecessary administra-
tive appeals, would also mean that appeals would be denied
more frequently, would lead to more unnecessary litigation,
and would in general reverse the substantial progress now
underway.
Such an amendment would also make it difficult to en-
courage a more positive and understanding attitude in ad-
ministering the Act by those whose primary responsibilities
are to agency programs and missions. The amendment would
tend to divert the attention of both requesters and agency
personnel from the main issue of whether the requested
records are to be made available to the collateral question
of time, e.g., how we can get a request disposed of quickly
if not correctly. It would tend to erode the credibility
of federal legislation in the eyes of the public, because in
many instances agency personnel might disregard the legis-
lative time limits on the not unreasonable assumption that
the requester is less interested in a negative answer within
the specified period than in getting the information he seeks,
even if it takes a little longer. It would be very difficult
to enforce.
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The time limits in our new Justice Department regula-
tions will hopefully serve as a model for other agencies
to adopt more or less similar time limits in their own
regulations, but as I shall demonstrate, these time limits
do not serve as a justification for a legislative proposal
like Section 1(c) of the bill. Flyst, our time limits apply
only to Justice Department records, not to the records of all
other agencies. There are great differences among the
agencies in subject matter, responsibilities, documentation,
organizational structures, and relationships with other
organizations both at home and abroad. Also, some of thesa
agencies do not have a great deal of in-house, in-depth
experience or expertise in applying freedom of information
principles to requests for their own records, yet they en-
counter problems that are difficult even for those with
extensive experience. Second, our regulations do not apply
to all parts of even our own department. In aeopting them
we recognized the valid objections of the Immigration Ser-
vice, which properly pointed out that the time limits would
be unworkable for them.
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115
They said: ". . . We are a field organization.
Authority to grant routine requests is delegated ...to...57
... offices, but, with a view to a uniform liberal
policy of disclosure, authority to deny any re-
quest is reserved to the Commissioner himself.
The Service handles an immense volume of requests.
In Fiscal Year 1972 receipt of formal requests for
records averaged 7500 monthly. Most requests
concern records contained in A files, each of which
relates to one person. There are 6,297,000 active
A files, each of which is theoretically in the
custody of the field office which has jurisdiction
over the alien's place of residence, but which
in actuality may be somewhere else for any of
several reasons. There are also 5,938,000 inactive
A files, distributed among 10 Federal Records Centers.
The logistics and practicalities of handling those
applications and requests frequently entail unavoid-
able delays. The subjects of the files often move
from one immigration district to another and their
files follow them. Because of this circumstance, and
inaccuracies in the basic information furnished by the
requester, it may take some time to locate and obtain
the file. In consideration of these facts, the Jus-
tice Department at the same time that it was adopting
a 10 day rule for requests addressed to the Department
generally, authorized the Service exceptionally to
adopt a 30 day time limit rule. All things con-
sidered, the Service record for promptness in re-
sponding to requests is good; enactment of section
1(c), far from improving that record, would be in-
jurious to the efficient and prudent operation of
the program."
We have little reason to believe that the Service is unique
among government organizations in this respect. Similar
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examples can probably be found within the Defense estab-
lishment, the Postal Service, the Departments of Trans-
portation and of Health, Education, and Welfare, the
Veterans Administration, or any other agency with a large
field establishment, a complex structure, or responsibili-
ties that require careful coordination outside of an immedi-
ate office or headquarters.
Thirdly, even if one could identify and exclude from
the proposed amendment the parts of the government like
the Immigration Service that cannot reasonably meet such time
limits, it would still be necessary to provide, as both
the Administrative Conference guidelines and the Justice
Department regulations do, for circumstances in which it is
not practicable to process the request within the specified
period. Our revised regulations follow the Administrative
Conference in specifying six 'reasons for extensions of time.
Even these reasons are not always sufficient because they
take no account of the unavailability of personnel through
illness, death, or resignation, or delays caused by sudden
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or sizeable increases in priority workload within the pri-
mary agency mission, in circumstances which cannot be pre-
dicted or controlled. In many agencies, especially. in our own
Office, there are certain times when personnel must either
work on a particular freedom of information request or on
other matters of high priority, including requests that come
from Congress or the White House.
Letme put this point in adifferent way,
because in our view it is vital to the quality
of government. In the overall context of agency
operations, to impose a strict time limit on a
particular function elevates that function to a
higher priority than others, no matter how vital
they may be. For example, do we really want FBI
personnel to process every request within pre-
scribed time limits when their attention is needed
for such things as a rash of airline hi-jackings,
bombings of public buildings, or other emergencies?
Should personnel of the Atomic Energy Commission
be required to sidetrack or speed through work
designed to perfect nuclear power plants to meet
the energy crisis in ways that are environmentally
and economically acceptable?, Must FAA personnel pro-
cess such requests within prescribed time limits
when they have work requiring attention that may
help prevent the crash of airliners? Should Postal
Service personnel process these requests within
prescribed time limits while deferring pressing
problems affecting efficient and economical. mail
service? Are personnel of our Department and the
Customs Service who are trying to stem the im-
portation and distribution of heroin to be required
to suspend this, wprk,when the calendar says they must
process A request for, access to records within the
prescribed time limit? These are not rhetorical
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questions. The requests which come in under the
Act sometimes encompass thousands of records, and
even those which seek a few records may require
serious and time-consuming attention.
There is a fourth reason why this amendment is not
justified by the time limits in our new Justice Department
regulations. Although we are proud of these regulations
and will strive to live up to them as nearly as we can,
consistently with our resources and other responsibilities,
I must tell you that after two months of experience under
these regulations we are finding that we were over-eager end
under-sophisticated. The regulations may be Misleading, by
holding out an expectation of more speed than we can, or
should, consistently achieve.
On appeals that seemed to present simple questions, we
have had to consult other organizations and even foreign
governments and extend the time. We do not propose, just to
adhere to our 10 or 20-day periods, to deny requests that
might with more study and effort be granted in whole or part.
We take the Freedom of Information Act too seriously to
engage in such a numbers game. Therefore, after a few
months experience under our new regulations, we expect to
make some adjustments in the time limit provisions, although
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we do not contemplate the elimination of goals stated in
terms of time periods. But if these limits were embodied in
a statute, we would lose our ability to adjust and perfect
them in the light of experience and our overall responsi-
bilities and resources.
In making these observations we are aware that the
10-day limit proposed in Section 1(c) merely requires that
a decision be made within 10 days, not that the records be
actually delivered to the requester within that period.
But this feature is of little help, because it is usually
impossible or unwise to process a request until the requested
records have been retrieved and examined. Any one with much
experience in administering this Act will soon discover that
the mere characterization of records in a letter of request,
or for that matter in an index, a title, or other characteri-
zation, is sometimes not a reliable guide to the actual
contents, legal status, or policy aspects of the records.
Anyone deciding on a request under the Act must understand
the Act, understand the agency activities for which the
records are maintained, and know what is in the records,
and if in doubt he must take the time to find out.
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4. Section 1(d) of H.R, 5425 would impose an automatic
requirement in any suit under the Act for an in camera
inspection by the court, and if the records were withheld
under the 1st exemption the court would further be directed
to decide whether disclosure would injure foreign relations
or national defense. Under the Act today, as construed by
the Supreme Court in the Mink case, 1/ courts in appropriate
circumstances may conduct an in camera inspection, except in
a very small percentage of suits under the Act where the
records have been classified under Executive Order to protect
national security.
'Irt camera inspection is not a normal type of judicial
procedure, and we vigorously oppose an automatic, across-
the-board requirement for it. First, we see no reason why
Congress should overrule the Supreme Court's recent decision
in this area. No argument has been advanced that the approach
of that decision is unfair. Furthermore, there are numerous
cases under the Act which courts have decided in favor of
plaintiffs, in favor of the government, or partly in favor
17--E.P.A. V. Mink,
U.S. , Jan 22, 1973.
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of both sides, without any need to resort to in camera
inspection. The normal, proper and economical way to
decide such suits is upon sworn affidavits and, if necessary,
supplemental affidavits, which of course are filed under
penalties of perjury. If more is required, the court can
take oral
testimony and other evidence. But in camera
inspection is a procedure in which the court and one
adversary see material that the other side does not. To
encourage frequent use of this extraordinary practice will
tend to undermine
Furthermore,
irrelevant to the
when the question
exempt turns on a
circumstances Or
handling.
In addition,
the fairness of the judicial process.
in camera inspection may be completely
issues in a particular case, for example
whether or not the records sought are
dispute not on their contents but on the
purposes of their creation and subsequent
if the court must determine by inspection
whether the records "or any part thereof" shall be withheld,
as the subsection states, a conscientious judge may feel
compelled to spend at least a few moments on each page.
Based upon experience with large requests, this may take
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many months of a judge's time. 1Some documents should not
be subject to in camera inspection. Consider, for example,
a memorandum from one of cyar litigating divisions to the
Solicitor General, withheld under the 5th exemption, which
criticizes a district court decision, discusses the
strengths and weaknesses of the government's position, and
frankly assesses the probable attitudes of various courts
of appeal toward the type of case involved. The Government
should not have to subject such a document tc the court for
its inspection.
There is a further provision in Section 1(d), concern-
ing classified documents. This provision would routinely
force the judge to subordinate an Executive Branch determination
that a classified document was properly classified for defense
or foreign policy reasons to the judge's personal opinion on
such a question. This provision raises serious constitutional
questions, since the actual conduct of defense and foreign
affairs under the Constitution is entrusted to the President,
and these responsibilities have always included the identifi-
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cation and protection of information that constitutes "state
secrets". Even if this were not so, the courts have generally
and properly regarded themselves as poorly qualified to make
such judgments. 2/
As is well known, even agency personnel who
are intimately familar with various specialized
and rapidly changing aspects of defense and foreign
affairs are sometimes uncertain whether particular
information should be classified, and are sometimes
wrong whichever way they may decide. The government
has recently set up improved declassification pro-
cedures to deal with this situation. But it would be
both unwise and unfair to our overburdened courts
to transfer to them decisions involving matters of
defense or foreign policy for which they have neither
background nor responsibility, and which both the
Constitution and common sense entrust to the Execu-
tive Branch.
5. Section 1(e) of H.R. 5425 would reduce the present 60-
day period which the Government normally has to answer com-
plaints against it in federal courts to 20 days for all suits
under the Act. It would also provide for an award of attor-
neys fees to the plaintiff in any such suit in which the
government "has not prevailed", leaving it unclear what might
happen in cases where the government prevails on part of the
records in issue and does not prevail on the rest.
2/ United States v. Curtiss-Wright, 299 U.S 304, 319-320
(1936).
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We oppose both features of this proposal. When a suit
is filed under the Act, the local U. S. Attorney, who is
often not as familiar with this field of law as if he were
defending a tort or contract suit, must consult the Depart-
ment of Justice, usually the Civil Division, already over-
burdened by the rise of litigation. The Department in turn
must consult the agency whose records are involved, and
frequently that agency must coordinate internally among its
headquarters components or its field offices, and sometimes
also externally with other departments. The federal govern-
ment is larger and more complex, and bears more crucial
public interest responsibilities, than any other litigant.
It needs more time to develop and check its positions,
especially if they may affect agencies other than the one
sued. And yet-unlike a large corporation it cannot readily
hire more lawyers to meet a sudden influx of litigation.
A 20-day rule would increase the incidence of positions that
would later be reformulated, causing unnecessary work for
both sides and for the court, and providing ample illustrations
of the adage that "haste makes waste".
The award of attorneys fees is particularly inappro-
priate in a type of litigation which can be started by
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anyone without the customary legal requirements of standing
or interest or injury. Some lawyers might take turns in
filing these suits for each other. In any event, the pro-
posal would encourage increased litigation, rather than en-
couraging efforts by requesters and agencies to adjust their
differences whenever possible. We see no reason why there
should be a departure in this area of law from the traditional
rule, applied in every other field of Government litigation,
that attorneys fees may not be recovered against the Govern-
ment.
Plaintiffs often have less financial need for these pro-
posed awards than in other types of litigation, because
under the Act the burden of proof is shifted to the defendant,
and because the expense of an evidentiary trial with oral
testimony is rarely encountered. Finally, the successful
plaintiff under the Act may not fit the familiar image of a
noble and deserving champion of the public interest who comes
into court under the Freedom of Information Act to vindicate
the public's right to know and vanquish bureaucratic secrecy.
Instead, the plaintiff may well be a businessman using the
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Act to get information about his competitors' plans, practices,
processes, capabilities and design concepts. Or he may be some-
one seeking government-furnished raw material for commercial
exploitation in a sensational book or in a mailing-list venture.
Or he may be a defense contractor seeking to obstruct the re-
negotiation of his excess profits. Or he may be an investiga-
tory law firm engaged in policy-making through new forms of
class-suit litigation--a permissible practice but hardly one
meriting a public subsidy. And in all such cases, the award
of attorneys fees would compel the hapless taxpayer to pay for
litigating both sides of the Jispute.
II
I turn now to the several proposed amendments in Section
2 of the bill, which would. rewrite exemptions 2, 4, 6, and 7
of the Act:.
1. Section 2(a) of H.R. 5425 would amend the 2d exemption
to restrict it to personnel matters and exclude any other
internal operating matters. While some courts have so
interpreted this exemption, your House Report which preceded
enactment of the Act expressly construed this exemption to
cover certain internal operating instructions, the disclosure
of which might cripple agency effectiveness in law enforce-
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merit and other arms-length situations. 3/
We agree with the view you expressed at that time. In
our opinion it is absolutely vital, if laws are to be en-
forced, that agencies be able to give instructions and guidance
to their own staffs without exposing these instructions,
routinely and under compulsion of law, to the very persons
whom the agencies may have to investigate, or regulate, or
audit, or inspect, or negotiate with. While we do not con-
tend that all internal instruction and guidance material
should be withheld, some must be if important laws and pro-
grams enacted by Congress are to be effectively executed.
Within our own Department, this amendment would undermine
the functioning of, for example, the Bureau of Narcotics
and Dangerous Drugs, the FBI, and the Immigration Service.
In any organization that must operate in an arms-length
environment, wholesale exposure of internal management
3/ H. Rept. 1497, 8.9th Cong., 2d Session, p. 10. The
Senate Report, No. 813, 89th Cong., 1st Sess., p. 8, is
not inconsistent with the House Report, and another Senate
Report, No. 1219, on an earlier version of the bill in the
88th Congress, confirms the House Report (p. 13, referring to
pages 12 and 11).
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directives is a poor gamble, if not a good guarantee that
its mission will largely fail. By tipping them off as to
the Government's investigative techniques and enforcement
practices, this amendment would benefit the tax dodger, the
chiseling; contractor, the industrial or transportation enter-
prise that may be tempted to skimp on safety, the food pro-
cessor who gets careless on sanitation, the manufacturer who
may discharge dangerous pollutants into the environment, and
in a broad sense all litigators against the government.
2. Section 2(h) of the bill would amend .the 4th
exemption. This exemption is primarily designed to enable
the government to Offer private persons, usually businessmen,
protection for their trade secrets or other confidential
information when contained in government files. The propoEed
amendment would limit the protection which can be offered
strictly to business-type confidential information, and has
serious right of privacy implications.
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We are strongly opposed to an amendment which would
place confidential information of the types likely to be
furnished by businessmen in a favored class, compared to
information furnished by other citizens which also merits
protection, on an ethical basis if not on a legal basis. Agency
files may contain an endless variety of letters of complaint
from citizens on all kinds of subjects, some of which warrant
confidential treatment in the interest both of the citizen and
of the agency's mission, but which may not fit under any other
exemption in the Act. Again, inquiries by various agencies into
casualties such as fires, plane crashes and explosions are often
undertaken not for law enforcement purposes but purely for fact-
finding, to devise measures to save life, limb and property in
the future. The full and candid statements of witnesses in
these inquiries are often vital in determining the probable
cause of the disaster, and such statements are more likely to
be obtained with a promise of confidentiality which can be
honored. Similar considerations apply to statements from
agency employees given in internal audits that are necessary
to maintain the quality of agency performance.
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Moreover, there are other agency records which sometime
warrant protection, involving perfectly legitimate communica-
tions from state or local or foreign governments, or from
Congressmen and Senators, which would never have been written
if the writer thought the agency would be compelled to make his
letter generally available. From time to time agencies consult
us informally on whether they can legally, deny requests for access
to communications from Congressmen and Senators. These communi-
cations may contain confidential information from constituents
or third persons, but under this amendment they would not be
protected unless the informatior is "commercial or financial".
Even information subject te the attorney-clieat privi-
lege or other traditional common law privileges, which both
House and Senate Reports leading to the Act expressly in-
dicated were covered by the 4th exemption, would no longer
be protected unless "commercial or financial". In the dark
days at the beginning of World War II, the government asked
all citizens to volunteer inventions or other suggestions or
ideas which might help in the defense effort and promised
confidentiality, but under the proposed amendment a public
appeal in such terms could not honestly be made again.
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We conclude that whenever functions entrusted to govern-
ment reasonably require information from sources which
legitimately expect confidential treatment for such informa-
tion, the government must be able to promise such treat-
ment and honor its promise. And there is really no more
danger of abuses under the 4th exemption where non-commercial
information is concerned than if business information were
involved, because use of the exemption in such cases will be
subject to very critical review by the courts, by our de-
partment, by Congress and the press, and by requesters.
3. Section 2(c) would amend the 6th or privacy exemption
by exempting medical, personnel and other privacy-type
"records", rather than exempting such types of "files".
This proposal may seem reasonable on first blush, but it seems
to be based on the questionable assumption that medical
"files", personnel "files" and the like are being used to
hide "records" which should not be in those files and which
the public should have a right to know about. This possi-
bility seems to us rather remote, particularly in view of
the attitude of the courts. The risk should be weighed
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against ti-e need to protect the ordinary individual's privacy
against big organizations that may use information from the
government to affect his life, including his educational
and job opportunities, although the information may be in-
accurate, incomplete, irrelevant or obsolete.
In this connection it is vital to remember that ex-
emptions are only options to withhold. If the option is
made burdensome for agencies to exercise where personal
information is involved, there will be more invasions of
privacy. t is relatively easy today to deny public access
to an individual's medical "file", but if an agency like the
Veterans Administration must take the time to decide whether
each and every "record" in a person's medical file involves
a sufficient invasion of privacy to warrant its withholding,
the option to withhold may become too costly and unattractive.
Actually, personal privacy today may need more rather than
less protection.
4. Section 2(d) of the bill would amend in several respects
the 7th exemption, which covers "investigatory files compiled
for law enforcement purposes". The word "files" would be
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changed to "records", the phrase "law enforcement purposes"
would be changed to "any specific law enforcement purpose
the disclosure of which is not in the public interest", and
the coverage of the exemption would be cut back to exclude
(i) records of scientific tests, (ii) inspection records re-
lating to health, safety or environmental protection, and
(iii) any investigatory records which are also used as a basis
for public policy, statements or rulemaking.
These changes would seriously impair and in some situa-
tions render almost helpless those parts of the government
upon which the nation must depend to enforce the laws. To take
a simple case, a sustainable conviction of a murderer would
become very doubtful if the government is compelled to publicly
disclose before trial incriminating ballistic reports, a type
of scientific test data. Scientific tests of various kinds
may be used in many other law enforcement investigations, for
example against violations by motor carriers, or against frauds.
To take another situation, the Bureau of Narcotics and Dangerous
Drugs has inspection reports "relating to health" which may be
used for criminal or administrative enforcement against anyone
among nearly 500,000 registered handlers of controlled substances--
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doctors, druggists, manufacturers and distributors. These
reports would no longer be exempt, threatening severe damage
to compliance investigations as well as irreparable damage
to the reputations of registrants.
The proposed amendment would have a particularly adve-:se
effect on law enforcement
antitrust, and indeed any
which is characterized by
duration. Society cannot
in fields such as organized crime,
field of serious illegal activity
conspiratorial conduct of long
fight effectively such activities
by confining the investigative process to those inquiries
triggered by "specific" illegal episodes. Without broad
intelligence-type investigation ; effective law enforcement
in areas like antitrust, organized crime and otaer major con-
spiracies would become extremely difficult, uncertain and
often impossible. America must not become a haven for group
crime.
Another effect of the amendment would be to subject the
FBI and its voluminous investigatory files to a record-by-record
screening at anyone's request, involving an unpredictable but
potentially unlimited drain on FBI money and manpower that
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would inevitably interfere with the FBI's main work. If
requests are made for the FBI's files on organized criminal
activities for given geographic or economic areas, the law
should not make it routinely necessary that each piece of
paper in such files be examined and separately ruled upon at
every level that may pass upon such requests.
According to the legislative history of the Act, it was
not supposed to have affected the FBI's investigative files
at all. If Section 2(d) were enacted, there would be over a
period of time more and more citizens who would become afraid
to tell the FBI what they know or suspect about crime. Even
if the FBI could alway6 meet to a judge's satisfaction the
amendment's vague burden of proving that "disclosure . is
not in the public interest," there would be enough other dis-
closures under the remainder of the amendment to erode and destroy
the vital public image of the FBI as a.trustworthy repository of
confidences. This danger applies as well to other law enforce-
ment agencies. If the Act is to be amended, perhaps the time
has come to put in an exemption expressly covering the files
of the FBI and other federal investigators working with the FBI.
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One further feature of this subsection should also be
noted, the proposed exclusion from the 7th exemption of
investigatory files if they also serve as a basis for public
policy statements or regulations. The fear of exposing such
files might not only inhibit rulemaking in impon=ant regula-
tory areas, but would also cut back on the flow of information
to the public. For example, Justice Department officials
would hesitate publicly to describe current policies as to
narcotics, antitrust, or other areas of law enforcement in
speeches to professional organizations or even at Congressional
hearings. The reason is, such a statement or speech might
terminate the exemption for the investigatory information
which was compiled for law enforcement but also was used as
a basis for developing'the policy described in the speech.
To be sure, all final policy decisions should themselves be
subjected to a process of scrutiny and justification--whether
emanating from Executive action, from an executive session of
a Congressional committee, or the office of a Committee chairman.
But it would stultify creative action and the decision-making
process if all interim hypotheses and false starts were subject
to revelation.
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Section 3 Of the bill involves a direct attack on the
doctrine of executive privilege and is, in our opinion, un-
constitutional. It attempts to require every agency in the
Executive Branch to disclose to Congress any information
or records in its possession regardless of the contents ?or
consequences.
Documents entrusted to an officer of the
Executive Branch by a foreign government under a
promise of confidentiality would nevertheless be
required to be disclosed in violation of that com-
mitment. Information that the Congress itself has
required by law to be kept confidential would have
to be made available, and without any commitment
that the Congress would respect and protect that con-
fidentiality. This goes much further than other
bills introduced on the subject of executive privi-
lege and clearly violates the separation of powers
established by our Constitution. If the President
cannot require that promises of confidentiality to
foreign governments be kept, cannot obtain the candid
advice of his subordinates, or cannot protect in-
formation given in confidence for use in faithfully
executing the law, the viability of the Executive
Branch is destroyed. Our Constitution forbids this.
IV.
Section 4 of the bill would require each agency to
make an annual report to Congress with various kinds of
statistics on its administration of the Act. We fully
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138
appreciate and respect the desire of Congress to be informed
on how the Act is being carried out. But in view of the
uncompensated expense to the agencies of these reports, we
wonder why permanent legislat.Lon of a government-wide nature,
and of the scope proposed, is needed to keep you informed.
We recall tat in 1971 your Committee without such legislation
obtained similar statistics from the agencies by a question-
naire, plus a great deal more information during your 1972
hearings. We feel sure the agencies will be glad to cooperate
when asked, without a series of permanent, across-the-board
fixed reporting requirements.
Collecting and assembling the reports called
for by the bill would be costly and burdensome
for some agencies, tending to divert the energies
of staff that might otherwise be used to process
requests under the Act. This is particularly true
of the requirement to report reasons and days to
process on each individual request. For example,
the Immigration Service would have to set up a
system for recording and collecting the number
of days to process each of 90,000 requests a year,
although there is no showing the Service is not
generally prompt. Some agencies would have to
set up special record-keeping systems in field
offices to prepare such a report, particularly
to collect data not now collected on requests
that are routinely granted. Perhaps such reports
should be called for every few years or when
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needed or desired, but not routinely every year
for the indefinite future. You might also prefer
to change the questions in a given year and to
concentrate on certain agencies but not all, which
you can do more readily by questionnaires.
We also doubt the meaningfulness of some of
the statistics called for. Thus, in counting the
number of requests for records received, should a
letter containing three requests be counted once or
three times? Suppose the letter contains only one
request, but it is a categorical one, seeking hundreds
or thousands of records and requiring a major effort
to process, should that enter the statistics as just
one request? Suppose a request from a newspaperman
comes in by telephone and it is granted without
regular processing, should it be counted? If so, are
all employees who may handle such phone calls to be
required to remember to record them for the report?
And what about requests which are made and processed
without reference to the Act because they always have
been and neither the requester nor the agency per-
sonnel thought about invoking the Act? Efforts to
resolve such problems with faithful respect for the
reporting requirements may encounter an indifferent
response in the ranks, due to difficulty in getting
the employees, especially the younger and brighter
ones, to follow through consistently on matters
which may strike them as tedious and of little use,
or to remain in jobs involving such activities.
The other statistics called for, such as those
on delay, appeals and litigation, also have doubt-
ful significance and much capacity to mislead. A
short delay may be too long on requests that are
easy to grant or deny, but a much greater period
of time may not be excessive when the records sought
are voluminous, there are difficult legal and policy
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questions, the staff is being pressed on other
priority assignments, and coordination with
several organizations is called for. Therefore,
the statistical volume of grants, denials, and
resulting litigation for an agency may mean little,
apart from knowledge, of the particular requests,
types of records involved, and the circumstances
affecting requesters and the agency.
V.
Now I would like to comment on H.R. 4960, and par-
ticularly on certain of its provisions which are different
from H.R. 5425.
Section 102 would impose a requirement to do
an editorial job of excerpting and deleting on an
unknown but extremely large number of government
records.that may contain both exempt and non-
exempt matter, in all cases where prescribed
standards are met. These standards are the pre-
servability of meaning and the dissectability
of contents. The application of these standards
calls for a full understanding of each record,
good editorial judgment, and sometimes an attempt
actually to edit, with an appraisal of the results
of that effort. The standards would often be hard
to satisfy and uncertain in practice and would re-
quire highly qualified staffs. Even so, the
standards are inadequate, because they do not
take account of how the records relate to agency
activities. We think experience shows that the
courts and the agencies are best able to decide
on a case-by-case basis the nature and extent of
the deleting and excerpting that should be done
on particular records, and that it is unnecessary
and somewhat impractical to attempt to frame legis-
lative requirements in terms of stated levels of
comprehensibility, faithfulness to an original,
and editorial judgment.
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Section 103 of H.R. 4960 would curtail the 4th,
5th, and 7th exemptions in various respects. There
is no real showing that these changes are needed.
Despite some past abuses in some agencies, this
Department and the courts are both active in curbing
unwarranted withholding. The proposed changes would
impair the government's ability to obtain commercial
and financial information needed for the intelligent
performance of various functions, to formulate sound
policy and actions with deliberations based on ade-
quate and efficiently marshalled information, to
conduct informed and effective enforcement of a great
variety of laws, and to grant and honor promises of
confidentiality where such protection is legitimately
desired by a citizen and serves a valid public purpose.
Title II of H.R. 4960 would establish a 7-member Free-
dom of Information Commission to investigate instances of
alleged improper withholding by federal agencies. We recog-
nize that in a field as complex and controversial as this,
there are continuing needs for oversight, review, coordination,
and guidance to improve the administration of the Act. But
we also want speed and economy, and it is not clear that
adequate oversight and review cannot be supplied by the com-
bined efforts of Congressional committees, the courts, the
Justice Department, professional groups, the press, scholars,
and interested members of the public. If all these re-
sources cannot meet the needs, even after improvements, some
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new entity should perhaps be created. However, the proposed
Commission would seem to invo"...ve another step and further
delay in a long process which already includes initial de-
terminations, administrative appeals, suit in the United
States District Court, appeal to the Circuit Court, and
perhaps final review by the S.apreme Court. The costs for
such a Commission, its seven members,. Executive Director,
appointed staff personnel, and employed experts and con-
sultants, with travel time and per diem, may be an un-
necessary or excessive expense for an already overburdened
Government. We believe that, with a spirit of cooperation,
measures can be devised that are simpler, quicker, less
expensive and perhaps even more effective. At least it
would be worth exploring.
Title III of H.R. 4960 contains various procedural
changes and reporting requirements. With your permission,
I will not discuss the provisions of Title III at this.
time, because most of them are similar to provisions in
H.R. 5425 which I discussed earlier.
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VI.
I conclude with a few suggestions for the overall
advancement of freedom of information. We in the Jus-
tice Department are in a strategic position to see how the
Act operates from the inside. We believe the basic obstacle
*
to improved public access is not the present language of
the Act, as these bills seem to assume. The courts have
resolved almost all legal doubts in favor of disclosure,
despite considerable risks to private rights and public
programs. Similar pressures come from Congress, the press,
and others. Where access is still inadequate, therefore, the
real need is not to change the law but to improve compliance.
We should realistically face the facts of agency life.
An agency employee who is indifferent toward his job would
probably not care who browses through agency files. Most
employees, however, take their jobs seriously and tend to
identify with their assignments, their agency, and "their"
files. In these circumstances, some doubts about granting
access may be resolved against release, especially in view
of the natural fear of creating a bad precedent. Similar
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attitudes can also be found in non-governmental organiza-
tions.
The most practical way to meet this situation, at
least at this stage in the development of this field, is
to provide help and training for agencies and their staffs in
freedom of fnformation matters, while respecting the im-
portance, the complexity and the dedication of their regular
work. You can help bring about better administration of this
Act and its objectives if you continue your valuable over-
sight in this field with realistic regard for the problems
that confront people in the agencies, as well as those
that confront requesters. The prodding is helpful.
It would be most helpful also to make available some
financial support for providing enough properly trained and
qualified personnel to upgrade the administration of the Act.
With such support, we could provide more leadership in such
matters as training, research, guidance, and review, and
could process requests more quickly to a conclusion. Per-
haps this can be done through improvements through means
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previously mentioned,:or through a new interagency freedom
of information council. In all candor, however, we are
rapidly reaching the limit of effective administration of
this Act on the basis of squeezing it into the regular
workload. We are confident, however, that with your under-
standing and support we can continue to improve the ad-
ministration of the Act, handle expeditiously the expanding
demands from all manner of persons and groups' for dis-
closure of all kinds of internal documentation,' and at the
same time protect the legitimate countervailing interests
specified in the Act. We continue to dedicate ourselves to
that end.
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Mr. Dixow. Thank you very much.
Mr. Chairman, we appreciate the opportunity to appeal before your
committee and discuss H.R. 5425 and H.R. 4960, bills containing sev-
eral proposed amendments to the Freedom of Information Act.
Before discussing the bills, let me emphasize our basic approach to
this subject. The Freedom of Information Act?applicable to the
executive branch but not to the other two branches--is a basic commit-
ment to the maximum feasible access by private persons to the inter-
nal details of administration' with no need to disclose the private in-
terest prompting the request. It is a major effort to open up many
aspects of Government. It is a real challenge to administer the act
well, and to accommodate the competing interests involved. Regard-
ing most requests by scholars we have little problem, and I might in-
terject that as a former scholar, I, myself, had little problem in get-
ting access to most information I desired. Regarding requests for in-
formation given to the Government in confidence, or which involve
law enforcement-type files, we have more problems.
We have taken several further steps to improve performance in this
field. These steps were over and above our regular freedom of informa-
tion workload of processing requests, handling litigation, and coun-
selling other agencies.
(1) We have prepared a 19-page analysis and program outline in
this field. The committee has a copy of this material whieh is, indeed,
in response to the committee's own research, and very important re-
search, on the administration of the act.
(2) We have issued and published in the Federal Register of Feb-
ruary 14, 1973, a sweeping revision of our own regulations under the
act, to improve and expedite the processing of requests for Justice
Department records.
(3) We prepared and conducted a concentrated and comprehensive
seminar on the proper handling of freedom of information requests for
over 50 officials from all parts of the Justice Department.
As an aside, that, indeed, was my first task on my first day in my
new position--to serve as a moderator at this important seminar.
Let me turn to some general comments on H.R. 5425.
We are of course sympathetic to what we take to be the two main
purposes of the bill; namely, to make the act as clear as possible, and
to make Government records even more quickly and fully available
than at present. We recognize the act is not perfect. We fear, however
that these amendments may introduce new uncertainties, bearing in
mind the incredibly vast and varied aggregations of records covered
by the act, and the inevitable need for some flexibility and judgment.
We share the concerns of those who feel that the administration of
the act is not perfect either. Our own considerable experience in screen-
ing contemplated denials of access by other agencies, plus our work
in handling appeals from denials within our own Department, sup-
port our belief that access should sometimes be more speedy and ex-
tensive that. some officials are inclined to grant. At the same time, I
should note that the overall Government practice is not nearly as re-
strictive as it may appear to some critics, that there are reasonable
explanations for much of the restrictiveness that dries exist, that no,-
agency can operate in a wide-open goldfish bowl very effectively, an
that steady progress is being made toward better access, due in pi
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to the efforts of your committee and, we like to believe, of our Depart-
ment as well. Our goal is continued progress in improving the admin-
istration of the act and responding as speedily as possible to the in-
creasingly broad and searching requests for all of the records of the
executive branch.
I might mention that I am told by Mr. Saloschin that we have had
about a 2,000-plus percent increase in appeals within our own Depart-
ment in recent periods.
Despite the laudable general purposes of H.R. 5425, we are com-
pelled to oppose its provisions strongly. Before discussing them in de-
tail, let me summarize the overall reasons for our present opposition.
In our view, with some possible exceptions, the proposed amendments
contained in the bill, first, would lead to increased costs and adminis-
trative burdens for Government agencies without, we feel, correspond-
ing public benefits, second, would create new uncertainties to confuse
requesters, agency officials and the courts, third, would actually tend
to reduce the flow of information to the public?unnecessarily, which
I will discuss in a minute?and, fourth, would undermine personal
privacy and the effective implementation of numerous laws and pro-
grams which Congress over the years has enacted, and which must be
faithfully executed by the executive branch if our system of govern-
ment is to serve the Nation and its people well.
I will now discuss the specific amendments to the act which H.R.
5425 proposes, taking up first section 1 of the bill.
(1) Section 1(a) of H.R. 5425 would amend the indexing provision
in subsection (a) (2) of the Freedom of Information Act. This pro-
vision currently requires that there be indexes to the several types
of material covered in subsection (a) (2) , which are basically mate-
rials that may be used as precedents for agency action. Under the
present act these indexes must be available for public inspection and
copying, but the proposed amendment would go further and compel
all agencies to publish and distribute such indexes.
Certainly, there may be nothing wrong with this amendment in
theory?some agencies already publish certain indexes?but in prac-
tice and as a Government-wide requirement it would be confusing,
costly, and essentially unnecessary?at least, at the present time.
Indexes, after all, are principally devices for locating other mate-
rials. The present act, besides making the indexes available to request-
ers, imposes an obligation on agencies to search their records upon
request. A major obstacle to locating requested records is the avail-
ability of sufficient time of qualified agency staff. Publishing indexes
would rarely help overcome this obstacle, and the obstacle might be
aggravated if staff needed for searches must be assigned to preparing,
revising and updating indexes for publication.
(2) Section 1(b) of H.R. 5425 would amend subsection (a) (3) of
the act so that requests for records would no longer have to be "for
identifiable records," requiring instead that a request for records "rea-
sonably describes such records." This certainly well-intentioned
amendment is, we feel, unnecessary. It might lead to confusion as well
as to unwarranted withholding of requested records.
For example' the proposed language would enable unsympathetic
Pficials to reject requests which would have to be processed today, on
?t new ground that the requests are not reasonably descriptive. This
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amendment could also subject agencies to severe harassment, as where
a requester gave a description of :Patent Office records he wanted that
was adequate to find them, but his request was for about 5 million rec-
ords scattered through over 3 million files. The court, apparently un-
able to accept something so unreasonable, held the request was not for
"identifiable records."
? (3) Section 1 (c.) of H.R. 5425 would amend the act by imposing time
limits of 10 working days for an agency to determine whether to com-
ply with any request, and 20 working days to decide an appeal from
any denial. We strongly oppose this amendment. And, indeed, about
one-quarter of this entire statement is devoted to this point.
Let me give the essence of our objection.
The act now requires that agencies make, records "promptly" avail-
able. While promptness is a relative term, there is no doubt that most
courts will treat an unreasonable delay by an agency in processing a
request as a basis for mandamus requiring the agency to reach a
decision.
We recognize that there is considerable room for improvement in
many agencies, including our own, in the speed with which requests
under the act are processed. This may be partly due to the fact that
no money has ever been appropriated to any agency to administer
the extra work which the act involves. As an aside, I now find that in
my very own small office we are keeping up on this with one-quarter of
our staff time devoted to our role under this act. Yet, we have affirma-
tively tried to move in the direction of quicker processing, without sac,-
rificing quality, and without undermining the ultimate legislative ob-
jective of greiter disclosure. We supported the Administrative Con-
ference guidelines, from which the 10- and 20-day time limits in the
bill originated. We would like to see requests acted upon even more
quickly if possible.
Now, let mo comment on the general purposes of maximizing dis-
closures, because these time rest rictlons might operate to discourage the
careful and sympathetic processing of requests. The amendment could
encourage hasty initial decisions to deny, which would mean an in-
crease in unnecessary administrative appeals and eventual litigation.
The time limits to our new Justice Department regulations will
hopefully serve as a model for other agencies to adopt more or less
similar time limits in their own regulations, but, as I shall demon-
strate, these time limits do not serve as a justification for a legislative
proposal like section 1 (c) of the bill. First, our time limits apply only
to Justice Department records, not to the records of all other agencies.
There are great differences among the agencies in subject matter,
responsibilities? documentation, organizational structures, and rela-
tionships with other organizations both at home and abroad. Second,
our regulations do not apply to all parts of even our own Department.
In adopting them, we recognized the valid objections of the Immigra-
tion and Naturalization Service, which properly pointed out that the
time limits would be unworkable for them. For example, in fiscal year
1972, receipt- of formal requests for records of INS averaged 7,500
monthly. Similar examples can be fund within the Defense Establish-
ment, the Postal Service, the Departments of Transportation and
Health, Education, and "Welfare, and the Veterans' Administration.
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Third, even if one could identify and exclude from the proposed
amendment the parts of the Government, like the Immigration and
Naturalization Service, that cannot reasonably meet such time limits,
it would still be necessary to provide for circumstances in which it is
not practicable to process the request within the specified period. Our
reviewed regulations in the Justice Department follow the Adminis-
trative Conference in specifying six reasons for extensions of time.
Even these reasons are not always sufficient. In many agencies, espe-
cially in our own office, there are certain times when personnel must
either work on a particular freedom of information request or on other
matters of high priority, including requests that come from Congress
or the White House.
There is a fourth reason why this amendment is not justified by
the time limits in our new Justice Department regulations. This rea-
son may be a clincher. Although we are proud of these regulations and
will strive to live up to them as nearly as we can, consistently with
our resources and other responsibilities, I must tell you that after 2
months of experience under these regulations we are finding that we
were overeager and a little bit undersophisticated. The regulations
may be misleading by holding out an expectation of more speed than
we can, or should, consistently achieve, if the speed is at the cost of
quality consideration of a request.
On appeals that seemed to present simple questions, we have had
to consult other organizations and even foreign governments and
extend the time. We do not propose to adhere to our 10- or 20-day
periods if the effect is to deny requests that might with more study
and effort be granted in whole or in part, and thereby abort an appeal
and eventual litigation. We do take the Freedom of Information Act,
its purpose and policy, too seriously to engage in such a numbers game.
Therefore, after a few months experience under our new regulations,
we expect to make some adjustments in the time limit provisions.
Now, turning to section 1(d). Section 1(d) of H.R. 5425 would
impose an automatic requirement in any suit under the act for an in-
camera inspection by the court, and if the records were withheld under
the first exemption the court would further be directed to decide
whether disclosure would injure foreign relations or national defense.
Under the act today, as construed by the Supreme Court in the Mink
case, courts in appropriate circumstances may conduct an in-camera
inspection, except in a very small percentage of suits under the act
where the records have been classified under Executive order to protect
national security.
In camera inspection is not a normal type of judicial procedure, and
we vigorously oppose an automatic, across-the-board requirement for
it. First, we see no reason why Congress should overrule the Supreme
Court's recent decision in this area. No argument has been advanced
that the approach of that decision is unfair. Furthermore, there are
numerous cases under the act which courts have decided in favor of
plaintiffs, in favor of the Government, or partly in favor of both sides,
without any need to resort to in camera inspection. The normal, proper,
and economical way to decide such suits is upon sworn affidavits
followed, if necessary, by oral testimony and the taking of other
vidence. But, by contrast, in camera inspection is a procedure in
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which the court and one adversary see material that the other side
does not. To encourage frequent use of this extrao7dina,ry practice
will tend to undermine the fairness of the judicial process.
We also oppose the provision in section 1(d) concerning classified
documents. This provision would routinely force the judge to subordi-
nate an executive branch determination that a classified document was
properly classified for defense or foreign policy reasons, to the judge's
personal opinion on such a question. This provision raises serious con-
stitutional questions, since the actual conduct of defense and foreign
affairs under the Constitution is entrusted to the President, and these
responsibilities have always included the identification and protection
of information that constitutes, to use the old-fashioned term, "state
secrets." Even if this were not so, the courts have generally and prop-
erly regarded themselves as poorly qualified to make such judgments,
as is indicated in the Supreme Court opinion in the case United States
v. Curtiss-Wright, 299 U.S. 304? 319-320.
Turning now to section 1(e) of H.R. 5425, this section would reduce
the present 60-day period which the Government, normally has to
answer complaints against it M Federal courts to 20 days for all suits
under the act,. It would also provide for an award of attorney fees to
the plaintiff in any such suit In which the Government "has not pre-
vailed," leaving it unclear what might happen in cases where the Gov-
ernment prevails on part of the records in issue and does not prevail on
the rest.
Now, we do oppose both features of this proposal. The Federal
Government is larger and more complex and bears more crucial public
interest responsibilities than any other litigant. It needs more time
to develop and check its positions, especially if they may affect agen-
cies other than the one sued. And yet, unlike a large corporation, it
cannot readily hire more lawyers to meet a sudden influx of litiga-
tion.
The award of attorneys' fees is particularly inappropriate, we feel,
in a type of litigation such as the nature of the litigation which can
be started by anyone under this act without the customary legal
requirements of standing or interest or injury.
Under the act, the burden of proof is shifted to the defendant, and
because the expense of an evidentiary trial with oral testimony is
rarely encountered, plaintiffs often have less financial needs for these
proposed awards than in other types of litigation. Finally, the suc-
cessful plaintiff under the act may not fit the familiar image of a
noble and deserving champion of the public interest who comes into
court under the Freedom of Information Act to vindicate the public's
right to know and vanquish bureaucratic secrecy. Instead, the plain-
tiff may well be a businessman using the act to get information about
his competitors' plans practices, processes, capabilities, and design
concepts. Or he may be someone seeking Government-furnished raw
material for commercial exploitation in a sensational book or in a
mailing-list venture. Or he may be a defense contractor seeking to
obstruct
the renegotiation of his excess profits. Or he may be an in-
vestigatory law firm engaged in policymaking through new forms
of class-suit litigation?a permissible practice but hardly one meritin
a public subsidy. And in all such cases, the award of attorneys' fe
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would compel the hapless taxpayer to pay for litigating both sides of
the dispute.
I turn now to the several proposed amendments in section 2 of the
bill which would rewrite exemptions 2, 4, 6, and 7 of the act.
Section 2(a) of H.R. 5425 would amend the second exemption to
restrict it to personnel matters and exclude any other internal oper-
ating matters. While some courts have so interpreted this exemption,
your House report which preceded enactment of the act expressly con-
strued this exemption to cover certain internal operating instructions,
the disclosure of which might cripple agency effectiveness in law en-
forcement and other arm's-length situations. We agree with the view
you expressed at that time.
In any organization that must operate in an arm's-length environ-
ment, wholesale exposure of internal management directives is a
poor gamble if not a good guarantee that its mission will largely fail.
Section 2(b) of the bill would amend the fourth exemption. This
exemption is primarily designed to enable the Government to offer
private persons, usually businessmen, protection for their trade secrets
or other confidential information when contained in Government files.
The proposed amendment would limit the protection which can be
offered strictly to business-type confidential information and has seri-
ous right-of-privacy implications.
We are strongly opposed to an amendment which would place con-
fidential information of the types likely to be furnished by business-
men in a favored class, compared to information furnished by other
citizens which also merits protection, on an ethical basis if not on a
legal basis.
Moreover, there are other agency records which sometime warrant
protection, involving perfectly legitimate communications from State
or local or foreign governments, or from Congressmen and Senators,
which would never have been written if the writer thought the
agency would be compelled to make his letter generally available.
From time to time agencies consult us informally on whether they can
legally deny requests for access to communications from Congressmen
and Senators. These communications may contain confidential infor-
mation from constituents or third persons; but under this amendment,
as we understand it, they would not be protected unless the informa-
tion is "commercial or financial."
Section 2(c) would amend the sixth or privacy exemption by ex-
empting medical, personnel, and other privacy-type "records," rather
than exempting such types of "files." This proposal may seem reason-
able at first blush, but it seems to be based on the questionable assump-
tion that medical "files," personnel "files," and the like are being used
to hide "records" which should not be in those files and which the
public should have a right to know about. This possibility seems to us
rather remote, particularly in view of the attitude of the courts, and
we suggest that personnel' privacy today may need more rather than
less protection.
Section 2(d) of the bill would amend in several respects the seventh
exemption, which covers "investigatory files compiled for law-enforce-
nent purposes." The word "files' would be changed to "records," the
hrase "law-enforcement purposes" would be changed to "any specific
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law-enforcement purpose the disclosure of which is not in the public
interest,' and the coverage of the exemption would be cut back to ex-
clude (i) records of scientific tests, (ii) inspection records relating to
health, safety, or environmental protection, and (iii) any investigatory
records which are also used as a basis for public policy statements
or rulemaking.
These changes would seriously impair and in some situations render
almost ineffective those parts of the Government upon which the
Nation must depend to enforce the laws, such as the FBI, the Bureau
of Narcotics and Dangerous Drugs, and the like.
The proposed amendment would have a particularly adverse effect
on law enforcement in fields such as organized crime, antitrust, and,
indeed, any field of serious illegal activity which is characterized by
conspiratorial conduct of long duration and very much undercover.
Society cannot fight effectively such activities by confining the investi-
gative process to those inquiries triggered by "specific" illegal episodes.
'Without broad intelligence-type investigation, effective law enforce-
ment in areas like antitrust, organized crime, and other major con-
spiracies would become extremely difficult and uncertain. America
must not, become a haven for group crime.
Another effect of the amendment would be to subject the FBI and
its voluminous investigatory ales to a record-by-record screening at
anyone's request.
According to the legislative history of the act, it was not supposed
to have affected the FBI's investigative files at all. If section 2(d)
were enacted, there would be over a period of time more and more
citizens who would become afraid to tell the FBI what they know
or suspect about crime.
If the act is to be amended, perhaps the time has come to put in an
exemption expressly covering the files of the FBI and other Federal
investigators working with the FBI.
One further feature of this subsection should also be noted, the pro-
posed exclusion from the seventh exemption of investigatory files if
they also serve as a basis for public policy statements or regulations.
To be sure, all final policy decisions should themselves be subjected
to a process a! scrutiny and justification, whether emanating from ex-
ecutive action, from an executive session of a congressional committee,
or the office of a committee chairman. But it would stultify creative
action and the decisionmaking process if all interim hypotheses and
false starts were subject to revelation.
Turning now to section 3 of the bill, this section involves a direct
attack on the doctrine of executive privilege and is, in our opinion,
unconstitutional. It attempts to require every agency in the executive
branch to disclose to Congress any information or records M its pos-
session regardless of the contents or consequences.
We have testified on this matter, separately, both here and before
Senate committees.
As we look at the proposed amendment, we feel that it goes further
than other bills introduced on the subject of executive privilege and
violates the separation of powers established by the Constitution.
Section 4 of the bill would require each agency to ir ake an annual,
report to Congress with various kinds of statistics on its administratiow
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of the act. In this regard, on this section, our feeling is more ambi-
valent. We fully appreciate and respect the desire of Congress to be
informed on how the act is being carried out, but, in view of the un-
compensated expense to the agencies for these reports, we wonder why
permanent legislation of the Government-wide nature and the scope
proposed is needed. In 1971, without such legislation, your committee
obtained similar statistics from the agencies by a questionnaire, plus a
great deal more information during your 1972 hearings. We feel sure
the agencies will be glad to cooperate when asked, without a series of
permanent, across-the-board fixed reporting requirements. We feel that
the spirit of agency cooperation in reporting may be sufficient at the
present time regarding the providing of statistics.
I would now like to comment briefly on H.R. 4960 and particularly
on certain of its provisions which are different from H.R. 5425.
Title II of H.R. 4960 would establish a seven-member Freedom of
Information Commission to investigate instances of alleged improper
withholding by Federal agencies. It is not clear that adequate over-
sight and review cannot be supplied by the combined efforts of con-
gressional committees, the courts2 the Justice Department, professional
groups, the press, scholars, and interested members of the public. We
believe that with the full spirit of cooperation, measures can be devised
for simpler, quicker, less expensive and, perhaps, more effective dis-
closure than would result under a full Commission on Freedom of
Information. At least, we think it is worth further exploration.
Title III of H.R. 4960 contains various procedural changes and re-
porting requirements. With your permission, I will not discuss the
provisions of title III of H.R. 4960 at this time, because most of them
are similar to provisions in H.R. 5425 which I discussed earlier.
I conclude now with a few suggestions for the overall advancement
of freedom of information. We, in the Justice Department, are in a
strategic position to see how the act operates from the inside. We be-
lieve the basic obstacle to improved public access is not the present
language of the act, as these bills seem to assume. The courts have re-
solved almost all legal doubts in favor of disclosure, despite consider-
able risks to private rights and public programs. Similar pressures
come from Congress, the press, and others. Where access is still inade-
quate, therefore, the real need is not to change the law but to improve
compliance.
We should realistically face the facts of agency life. An agency em-
ployee who is indifferent toward his job would probably not care who
browses through agency files. Most employees, however, take their
jobs seriously and tend to identify with their assignments, their agency,
and "their" files. In these circumstances, some doubts about granting
access may be resolved against release, especially in view of the natural
fear of creating a bad precedent.
The most practical way to meet this situation, at least at this stage
in the development of this field, is to provide help and training for
agencies and their staffs in freedom of information matters while
respecting the importance, the complexity and the dedication of their
regular work. You can help, I would suggest, bring about better ad-
;rimistration of this act and its objectives if you continue your valuable
versight in this field with realistic regard for the problems that con-
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front people in the agencies, as well as those that confront requesters.
The prodding is helpful.
It would be most helpful also to make available some financial sup-
port for providing enough properly trained and qualified personnel
to upgrade the administration of the act. With such support, we feel we
could improve our leadership in such matters as training, research,
guidance, and review, and could process requests more quickly to a
conclusion. Perhaps this can be done through improvements through
means previously mentioned, or through a new interagency freedom
of information council. In all candor, however, we are rapidly reach-
ing the limit of effective administration of this act on the 'basis of
squeezing it i:ato the regular workload. Nevertheless, we are confident
that with your understanding and support we can continue to improve
the administration of the act, handle expeditiously the expanding de-
mands from .111 manner of persons and groups for disclosure of all
kinds of internal documentation and at the same time protect the
legitimate countervailing interests specified in the act. We continue to
dedicate ourselves to that end.
Thank you., Mr. Chairman.
Mr. Mom/BEAD. Thank you, Mr. Dixon.
I think that probably where we first part ways is really your state-
ment on page 4 that "no agency can operate in a goldfish bowl very
effectively." I would agree with you on that point if we had not had the
experience here in the Congress of opening up executive sessions of our
committees. I was somewhat reluctant to see that come to pass because
I thought that we would not operate effectively in a goldfish bowl. But
this sulx-ommittee had its first executive session "in the goldfish bowl"
yesterday, and I was very pleased shat we operated just the way we had
done when the doors were closed. The press was there, and after awhile
they got bored with us and left. And I think that most agencies would
also find that their routine business is of such a nature that they could
operate completely in a goldfish bowl. But we are not even asking
them to do that, in this legislatior. So, I think we start with this basic
difference of opinion and our paths then seem to separate even more.
Now, I would have to agree with you that the legislation does tend
to be a little inflexible and, in practice, there may be exceptions to
the general rules. So, it occurs to me that maybe we should approach
it more along the line of Mr. Horton's essential proposition, which is
to establish an FOI Commission and give guidelines to the Commis-
sion, and then let them produce that flexibility. Let us say on the pub-
lication of indices, that indices shall be published, et cetera, on "iden-
tifiable record s"?that language, as the Commission could determine;
and the 10- and 20-day time limits?leave that with the Commission.
And maybe you could do it also with the in camera provisions, but you
think it might be too much of a burden on the courts? I would like to
have your reaction to these suggestions.
Mr. Dixorr. Yes, Mr. Chairman.
Regarding your initial remark about the goldfish bowl, it may well
be that we have not yet had sufficient experience and we are still at
the stage where the Congress was when it first thought of the concept
of operating in a much more open fashion. I think there is room fo
much give-and-take in that particular area.
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In regard to the question about the Commission, our position is
somewhat ambivalent on that, and it may be a matter of timing as
much as anything else. We are all aware that every new organization
does develop its own internal ethnic and procedures and tends to, per-
haps in a sense, overformalize. Whether or not that would occur in
the proposed Commission regarding freedom of information, we are
uncertain, of course, but we would be very worried if there were real
danger of over formalization of such a Commission which could then
be a device for further delay, further appeal, further briefing, further
arguments, and so on. I think that, as I understand the matter at the
present time, part of the feeling?of a person working in this area
day by day, such as Mr. Saloschin?the feeling is that we have come
to a position now where general knowledge of the act's existence is
becoming almost universal, which was not the case at the outset, and,
therefore, more and more persons are beginning to take advantage of
the act.
I should not put it quite that way?they are beginning to utilize
the act for requests to the Government that are legitimate, and most
requests are honored.
We have further formalized our procedure so as to give more
effective notice of appeal rights once a request is denied, and, there-
fore, there has been a tremendous increase in appeals. I believe you
said 2,000 percent in our own Department, perhaps. We are only now
reacting to this developing picture. We tried to react to it in part by
our own regulations, put in the Federal Register only 2 months ago.
Now, those were put into the Register after much deliberation
and much thought, responsive to the experiences we had had up to
that time, and, yet, as I mentioned in my statement, we are encounter-
ing problems with those regulations, and we have to change them.
So, it may be that our feeling is more a matter of timing than real
opposition to the whole concept of a Commission.
With your permission I might request Mr. Saloschin to respond to
the Commission idea a little and, perhaps, the question especially of
whether or not he feels further expansion of the Freedom of Infor-
mation Act Committee in the Department of Justice, more beefing
up in the light of our own ongoing experience, might warrant further
use ,for an interim period before reaching the Commission possibility.
Mr. MOORHEAD. I would rather that you direct your attention to this
proposition.
Assume that the Congress should enact at least that portion of the
Horton bill, Mr. Saloschin, would you then think that some of the ob-
jections to the flexibility of the legislation on indexing and on iden-
tifiable records could be solved by giving discretion to the Commission
to provide relief in particular instances?
Mr. SALOSCHIN. Well, any response that I give you now, Mr. Chair-
man, will be partly at least just thinking out loud, but I assume that
you might consider that useful and accept it in that spirit.
One very critical question in this area was mentioned by Mr. Dixon,
and that is the matter of timing. We are somewhat in the situation
in administering the Freedom of Information Act that the executive
?anch was in the weeks right after Pearl Harbor, if I can take an
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analogy which may seem overdramatic. I am talking about the fan-
tastic expansion.
Now, our practical problem is very largely, what do we do with our
small cadre of really qualified people. I know, in my work, there are
people in certain other agencies, a man here, a man there, who are
really qualified in this field, who sense the problems, who have the
balance, who have the experience.
How, do we make the best utilization of these people and at the
same time get the policy input from all concerned sources, including
of course, this committee
I am inclined to say that the best answer to this kind of thing would
be the kind of an answer that, perhaps, we could work out at some type
of an informal conference rather than my attempting to do so on this
Spot.
Now, if I were to give an answer immediately, I would say that some
kind, of an expansion of the Freedom of Information Committee,
which is, of course, a Justice Department creature that is oriented
toward the rest of the executive branch, would be one way to do it.
The: creation of an interagency council with two primary functions:
one being the function of education and training of agency staff?in
which we have a constant problem of turnover, as you know?and the
other area being research.
For example, there are whole subareas of freedom of information
having to do with the vast numbers of records, for example, in the
procurement process, and it very well may be desirable to have a task
force on the application of freedom of information to all types of
records generated in the procurement process. There are other areas,
for insta:nce casualty and accident investigations and many others,
which would warrant the task force to define freedom of information
principles and develop guidelines in those subareas. That could be done
if you had an interagency freedom of information council, as well as
the conduct of regular seminars for agency staff involving, of course,
public information people and administrators, as well as lawyers.
In time, it might be that the people in this council would have to
have some staff support and some leadership, as well as just having
people working from other agencies. In time, this. council. Might de-
velop the capability, or our present Justice Department Freedom of
Information Committee would delegate to it certain specialized kinds
of freedom of information problems?to the same people who had been
on task forces which developed guidelines in specific freedom of in-
formation areas.
Another well-known example would be, of course, the area of reg-
ulatory records which you went into very heavily in 1972 in your hear-
ings. And I think if we do this and maintain good liaison with your
committee and your staff, we might have the best prospect of proceed-
ing with the kind of informality which my experience, particularly
right after Pearl Harbor, indicates is essential in meeting a crisis
situation effectively. You have to have people who are not afraid to
make a few mistakes in order to move ahead and get the job done.
Mr. MooRHEAD. Well, we have some differences. But, Mr. Dixon, you
say that section 3 of H.R. 54'25 would repeal the so-called doctri
of executive privilege. For the purposes of this discussion, let us
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.me, that such a doctrine does exist in the law although there is some
quesqon about it. I understand that there are new guidelines for the
exercise of executive privilege that have been issued. Are you familiar
with those new guidelines?
Mr. DIXON. I am, Mr. Chairman, barely familiar .with them. I re-
ceived a copy, an official copy, late yesterday, and I have not subjected
them to great scrutiny.
Mr. MOORHEAD. Would you submit a copy for the record?
Mr. DIXON. We certainly will do that. This would include a document
of May 3 which has three regulations and .a document of May 4 which
.relates to the previous documents on the Ervin committee.
[NOTE.?See hearing appendix, Foreign Operations and Government
Information Subcommittee, 93d Cong., 1st sess., "Availability of
Information to Congress," April 3, 4, and 19, 1973.]
Mr. MOORHEAD. Mr. Dixon, at the suggestion of counsel for the mi-
nority, can we get a copy to have photocopied for the use of the
committee?
Mr. DIXON. At the present time?
. Mr. MoonitEAD. Yes. I do have some more questions, but I want to
,
go on and yield to the other members of the subcommittee.
Mr. Ncaoskey ?
To. MoCi,osKEy. Mr. Dixon, we had previous testimony before the
subcommittee by Mary C. Lawton, Deputy Assistant Attorney Gen-
eral, Office of Legal Counsel. Is she your employee?
Mr. DIXON. She is a Deputy Assistant.Attorney General, yes, in the
Office of Legal Counsel.
Mr. McCzosicEr. She is Assistant Attorney General, Office of Legal
Counsel, and you are the Assistant Attorney General of the Office of
Legal Counsel.
Does that make you the head of that Office?
Mr. Di-Now. That is correct.
Mr. McCrosKEy. In expressing your opinion on the unconstitution-
ality of the bill, I assume you are expressing your own personal opin-
ion as well as that of the Department.
Mr. Dixox. You are talking now about the section -
Mr. McCmisKEy. I am referring to your testimony on page 36.
Mr. DIXON. On regulation of the executive privilege by the bill?
Mr. MCCLOSKEY. Yes.
. Mr. Drxox. ,Yes, we?and I?do have serious problems with that
section Of the bill,
Mr. McCrosic,Ey. Mr. Dixon, do you agree with Ms. Lawton's ear-
lier testimony befo,re this committee that executive privilege would
not apply to an inquiry by Congress into an alleged wrongdoing On
the part of a White Reuse assistant?
Perhaps you can give us a "yes" or "no" answer to that .question. Do
you recall her, testimony before the subcommittee?
Mr. DixoN. I do recall a question of that nature being raised and
an Answer being given. The premise we move from
Mr, McCLosicEv. ,May I ask for an answer to my question, sir? Do
you .agree with Ms. Lawton's testimony that the doctrine of executive
privilege would not apply, to an inquiry by the Congress into an at,
leged wrongdoing on the part of a White House assistant?
00 -570 -73 11
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Mr. DIXON. Only if the President reached that decision, as I believe
has been reached every time the question has been seriously raised. He
said that there should be full cooperation in the investigation of an
allved wrongdoing.
' Mr. MoCtkisKEy. Do you understand my question? It is the specific
question:
Does the doctrine of executive privilege; name4, the right of the
President to withhold information from the Congress, extend to an
inqUiry by. Congress into alleged wrongdoings on the -part of a White:
'House asinstant ? I think you Can answer that "yes" or "no."
Mr. Dix*. Yes, it could eXtend if the Presielent so directed in
,
appropriate circumstances.
Mr. MeiCtosKEy, If the President, then, chooses to claim executive
privilege, tie could deny Congress the right: to ascertain the truth
about an alleged wrongdoing by a White House assistant? I that
your answer?
Mr. DixoN. Yes, that could occur. The President might, in that in-
stance, be concerned about :a concurrent grand jury investigation of
the sante Matter, which he might feel was the initial forum to go into
the matter. The PreSident in this area has, we fee", under the separa-
tion of powers doctrine-7-as an implied power of executive privilege
like, other iMplied, powers of: the Constitution such as congres.sional
poviers to inVestighte-7,---he,.haS We feel, regarding executive privilege,
yery broad power for this Which is rarely exercised. It is almostal-
ways waived, and Most certainlY would be waived, in almostall of the
,
instances that we can conceive of, regarding allegations 'of wrong-
doing.
Mr. MoCtosKEY. Mr. Dixor,, can you tell me whether the guidelines
of executive privilege that you have tendered to the subcommittee were
prepared by your office or by someone else?
Mr.: DixoN. These guidelines undoubtedly were based on prior work
of our ofice but were not prepared at the current time by our office..
Mr. -AlcenosKEy. By whom Were they prepared, Mr. Dixon?
Mr. ThxoN. These guidelines Would emanate from the White House,
and that is the extent of my kr oWledge.
Mr, MClosKEy. Was there any consultation with your office on the
preparation of these guidelines that you have handed to us today?
Mr. Dixox. Not to my knowledge.
Mr. MeCtosKEy. On page 32 of your testimony, you state that a
sustainable conviction of a murderer could become very doubtful if
the Government is compelled to publicly disclose 'before trial, incrim-
inating ballistic reports, a type of scientific test. I do not follow your
reasoning on that. In what way would a conviction be set aside or be
unobtainable if the Government were required to publish its ballistic,
scientific data in advance of the trial ?
. As I understand it, you are required to give it to defense counsel
under the existing rules.
Mr. Dixoix. Our feeling, though, was that the advance disclosure
could jeopardize the conviction by giving to the public and defense
comae], on occasion more information than they now obtain. Mr.
Saloschin has suggested that he has a thought on this matter, at least.
Mr. MCCLOSKEY. Let me first establish this point.
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Today, under the existing rules of the Supreme Court, is not the
prosecution required to make available to defense counsel any incrimi-
nating evidentiary matters that may be used at the trial?
Mr. DIXON. Yes, there is a very broad
Mr. MCCLOSKEY. Pardon?
Mr. DIXON. There is a very broad "pretrial."
Mr. MCCLOSKEY. Then how do you justify this statement that some-
how the conviction of a murderer may not be obtainable if you have
to publish the ballistics information?
Mr. SALOSCMN. May I respond to that?
Mr. DIXON. Please, sir.
Mr. SALOSCHIN. The statement says that what the concern is here is
not that the Government be compelled to disclose to the defendant or
his lawyer before trial incriminating ballistic reports. My colleague
who follow the law of criminal prosecution tell me it is simply pretty
much accepted discovery law, pretrial discovery law, as it would apply
to a criminal proceeding. That is not what we are talking about in this
statement. The key word in the sentence that you read, Mr. McCloskey,
is the word "publicly." If the Government is compelled to publicly
disclose before trial incriminatincr, ballistic reports, now, the thought
behind that statement is the legal principle which we have all read
about in the papers?and I think it stems back to a Supreme Court;
decision?it runs back to ,the Supreme Court decision in the case in-
volving Dr. Sheppard in which a substantial amount of publicity
giving the public the idea that there was serious incriminating evi-
dence against a criminal defendant, that that would prejudice his
right to a fair trial and that a conviction could not be sustained. And
I take it that those lawyers who were concerned with criminal prosecu-
tions are concerned that they be very careful not to have the Govern-
ment's evidence and the Government's case tried in the newspapers,
because they know that a conviction could be thrown out on appeal.
Mr. McCLosxEr. I understand your point. What you are saying then
is that there should be an exception to the publication of scientific
data, if it might prejudice a defendant's case, in a pending trial, and I
think we would agree with you.
I want to go back to your opening statement, Mr. Dixon, in which
you have indicated that you would like to work with this committee in
establishing appropriate rules and an appropriate balance. I do not
find anything anywhere in your statement?anything but negativism?
in response to this bill.
I do not find any careful suggestions or affirmative suggestions.
I find only a negative reaction to points in the bill, but I do not find
any indication that the Justice Department wants to help the Con-
gress clarify these things that obviously distress us so deeply; par-
ticularly in view of recent disclosures concerning the Justice Depart-
ment itself, its professional handling of matters, the destruction of
records by the head of the FBI, and the withholding of information
from the prosecuting authorities such as the E'llsberg case where those
records were somewhere else in Justice. Have the records of the In-
ternal Security Division, for example, been found since Mr. Mardian
left the Department? Have those records been discovered?
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feo
Mr. DIXON. I have no knowledge of the present status of the records
of the Internal Security Division.
Mr. MoCeosKEY. There are such records somewhere are there not?
Mr. Dixox. I certainly assume so.
Mr. McCeosirEr. This is your Department.
Mr. DIXON. The Division recently has been dismantled in one sense,
but in another sense it has been transferred into the Criminal Division
for the discharge of certain of its statutory responsibilities, prosecut-
ing, in the national security field.
Mr. McCaosKEY. Well, I would like to say I do not mean to hold
you to these matters, but you can understand the desire of this 'com-
mittee to work with the Justice Department if the Justice Depart-
ment will. work With us. But I 00 not find in your statement any affirm-
ative suggestion as to how this law can be amended to remedy the tre-
mendous number of defects that we have found in the .aearings which
have gone on now for over 2 years. I think you have adequately com-
mented on the defects in the administration of the act. We find no lack
of recommendations by the Justice Department for strengthening the
criminal code to punish those who publish Government security Infor-
mation. I refer to your booklet, S. 1400, to revise your form and codify
the substantive criminal law to penalize those who report classified
information, and to remove the defense that it may have been improp-
erly classified?the very purpose of these bearings. I Would ask, r.,-
spectfully, M:7. Chairman, that in addition to the negative statements
you have made on the bills before us, that you provide us with some
affirmative amendments that we might pass without compounding the
problems of Government which you have very properly pointed out.
We do not want to throw the baby out with the batbwater either; we
-do not Want to double the cost of the administration cif the law. But
without your expert assistance we are very likely in the current envi-
ronment to pass a law that might impose some burdens on you to
remedy the very grave injustices that have now come to light. I Would
like to invite the witness, Mr. Chairman, to submit, in writing, some
affirmative suggestions as to how we can cure some of these defects.
Mr. MOORHEAD. I would like to add to that request. If you do this,
Mr. Dixon, just on a technical basis, would you suggest appropriate
language that would, in effect, overrule the Mink decision ?
The reason I. think we should do that is that the Con gross did not
intend what the Supreme Court said we intended in that decision.
Mr. DIXON. Yes.
Mr. McCLosieny. Excuse me. May I make one final cernment on that
point, Mr. Chairman?
Mr: MOORIMAD. Yes.
Mr. MCCLOSKEY. I notice' Mr. Dixon, in your response, to section 3
,of the bill, an attack on the doctrine of executive privilege. You point
out with respect to executive privilege one example with which I
think we would probably concur; namely, the documents entrusted
to the executive branch of the Government by a foreign nat ion Should
not have to be turned over to the Congress without some guarantee
that we will keep them confidential, as you have guaranteed?and by
"?you," I am referring to the executive branch. And I -,vould cite as a
reference the Keelhaul case, in which the British were itoparentiv
.guaranteed that we would keep the documents confidential. And
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think this is possibly a valid position where Congress should recog-
nize the executive privilege or where the executiv6 right to withhold
information from the Congress should, at least where it is without ade-
quate protection. But this example, it seems to me; should not be con-
strued as justification for the doctrine which you announced this morn-
ing; namely, that in cases of wrongdoing the President would in
effect, have the power to obstruct the discovery of the truth about one:
of his assistants in a congressional proceeding. Our differences of
opinion on that doctrine might not extend to the one example you haVo
cited here in your testimony. Previous witnesses from the adn4nistra-
tion have indicated that in diplomatic negotiations, in intelligence
gathering, and in military operations, the executive privilege might
properly be claimed. But it seems to me that the example which you
have cited this morning might not be sustainable; and if we could have
rated from 1 to 10 those areas of executive privilege which you felt
should be recognized by the Congress, we could then more competently
enact legislation.
Mr. MoormEAD. Thank you. Ms. Abzug ?
Ms. ABZUG. Mr. Dixon, what is your view with respect to the request
for information by a committee such as this concerning members of
the executive branch of the Government which effect the failure to
provide information or effect the utilization of information from the
files which might involve a violation of the law?
Mr. DixoisT. If I understood the question correctly; Ms. Abzug, you
are rephrasing, in a sense, the question of access to information sought
by Congress from the executive branch concerning alleged violations
of law, either civil or criminal?
And at the outset I might point out that the doctrine of executive
privilege, so-called, is, as such, almost never exercised. It has been
invoked only four times in the present administration so far..
Regarding the
Ms. ABZUG. You mean in this session, in this term of office?
Mr. DIXON. Since 1969. We can provide the committee with that list
if you would like us to do so.
Ms. ABZUG. The reason I ask that question is I think it has actually
been involved through the administration 19 times, the President hay-
ing invoked it himself four times, and then the executive branch hav-
ing invoked it at other times, and, essentially, this privilege which has
been invoked still has the implication of executive privilege; so, I
think we ought to just correct the record on that.
But please go further.
Mr. Dixolv. Yes. We may wish to expand, if you Wish, on the Li-
brary of Congress' statement of 19 times and so issue our own view
as to whether they are well taken in their position.
But, on your question, most requests from Congress for information
concerning alleged wrongdoing would involve what are now known as
investigatory files, cases contemplated or underway but not completed.
It has been the policy of the Executive to reserve investigatory files,
in part, for purposes of law enforcement and, in part, for purposes
of protecting innocent people whose names get into these files and, of
course, that happens in far-ranging investigations. I think that is the
primary concern we have regarding requests of that sort.
M. ABZUG. I do not know that we have gotten a complete answer.
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My question is: Supposing we were trying to find out what a member
of the executive branch of the Government was doing with respect to a
corporation and information with respect to that corporation that
would require it to be subject to criminal prosecution and that in the
course of various conversations that might have taken place a member
of the executive branch of the Government might say "Well, I can
figure out away for you to get out of this"?I mean, I tun trying to be
very graphic so that we understand each other. Do you not think
we are entitled, if you had some information to that effect, to get
that in connection with the exercise of our duties as to what is happen-
ing in the executive branch of the Government in the execution of the
laws that we have promulgated?
Mr. DIXON. Yes. You have a deep and abiding interest and an
important interest. I believe that many of those kinds of requests
received are negotiated to the satisfaction of both sides. I get this
information from talking with various persons in the Department
of Justice, and I could be wrong on that. But my understanding is
that requests are made and sometimes the response is not immediate.
There is a negotiation and then a release of that information so as
not to harm any person or any private individual implicated in the
files, which helps Congress in the course of its legislative mission.
Ms. ABZUG. Do you think that an inquiry from the Congress to
a member of the executive branch of the Government is subject to
executive privilege where it concerns possible wrongdoing under the
laws over whose execution we have oversight?
Mr. DixoN. Well, I think the word "alleged" wrongdoing needs to
be asserted in this discussion. And the President may consider that
element in his response. Our fundamental position so far has been
this: that the discretion to invoke or not to invoke rests in the Presi-
dent, that it derives from the separation-of-powers principle, and that
is a protective principle for the executive branch vis-a-vis other
branches, e.g., to preserve candor inside the executive branch which is
also in the public interest. As a protective principle?this is in response
in part to your question and also to Jr. McCloskey's question?it could
not serve as a protective principle if it is defined by Congress rather
than by the executive. Ultimately, of course, as disputes arise in the
very difficult area of separation of powers, we sometimes have to get
to a court decision as the final arbiter between them?the Congress and
the executive--as the final adjudicator of the proper range of the
rights asserted by either. But the proposition we start from is that
the executive privilege rests in the executive branch, thus in the Presi-
dent, and is responded to by him, and that is probably the funda-
mental reason why we are concerned about attempts at legislation to
regulate it, limit it, or otherwise define it. So, my initial response to
the question is that the President is the only one who can invoke
the privilege. If he invokes it, he is deciding. to stand on the separa-
tion-of-powers principle, as he understands it, and he would feel that
there is a protective interest of the executive at stake.
Ms. Anziro. Well, let us deal with the Constitution for a minute,
and the question of separation of powers. The Constitntion provides
that an executive officer, an official of the executive branch of the
Government, is subject to scrutiny by reason of any misconduct which
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would constitute treason or bribery or high crimes or misdemeanor,
and if one is investigating the action of an executive officer in the course
of the conduct of his duties, would you think that executive privilege
would apply in that connection?
We are exercising our constitutional responsibility to look into the
official conduct of an executive officer of the Government, and in the
event that there might be some cause for concern, an issue of, let us
say, bribery, would you believe that the executive privilege would
apply there?
I am talking now about separation of powers and the carrying on
of the responsibility of the House in connection with its responsibility
under the Constitution.
Mr. DIXON. Well, I can conceive of a situation, just hypothesizing
along with you and in line with your hypotheses, where the President
might have no desire at all to do?
Ms. ABzuG. I did not hear the last part.
Mr. DIXON. I can hypothesize a situation where the President would
have no desire at all to protect or shield wrongdoing, or an alleged
wrongdoing, but would, consistent with the separation-of-powers con-
cept, feel that the process of grand jury indictment and court trial and
conviction was the proper initial process?to be followed by new, cor-
rective legislation by Congress if needed, as suggested by the process of
criminal inquiry in the other branch of the Government, the judicial
branch.
Ms. ABZUG. Well, I am not discussing that kind of an inquiry. I am
discussing an inquiry which, constitutionally, only the House can
make and that is concerning the conduct of an officer of the executive
branch of the Government. It could be a judge, for example, as to
whom they are exercising the possible imposition of their constitu-
tional power under the section which says that an executive officer of
the Government can be found to be violative of their responsibility by
reason of either treason or bribery or high crimes or misdemeanors.
Now, that is an investigation which, under the Constitution, the
House must conduct, not the judicial branch of the Government. And
I am asking you again whether you think it would be appropriate, if
such an inquiry were to take place, for there to be an assertion of
executive privilege?
Mr. DIXON. edo understand the question. You are in the area
of? .
Ms. ABZUG. I am following your line of reasoning, professor,
which was that you are dealing with the issue not of the Freedom of
Information Act and executive privilege but, in fact, the separation
of powers. You were trying to point out to us that the ex.ecutive under
the theory of separation of powers has certain responsibilities and
prerogatives, and I am merely reminding you of another responsi-
bility and prerogative, and that is of the Congress and, particularly,
the House as consigned to it under the Constitution.
I am asking you very specifically whether you think, in the course
of an inquiry that might take place by the House pursuant to its
responsibility assigned to it under the Constitution to determine
whether there is an issue, let us say, of bribery concerning a high
officer of the Government?whether you think executive privilege in
that instance would apply?
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164
Mr. Dtxoeq. In the impeachment proceedings, you are speaking
of ?
Ms. .A.BZUG. I 'am only talking about an inquiry. I Mean you know
you are welcome to say whatever you wisli.
Mr. Thecox. If you tire referring to the Constitution, the constitu-
tional Clause, which is the impeachment clause, it has in it a series of
misconduct such as high crimes andirnisdemeanotS----7--
Ms. Anzuo. And bribery and treoson.
Mr. DixoN. 'That is the impeachment clause in article I Which :is
the foinithitiOn for the discussion. The question is : In the course
of such a proceeding, could execiitive privilege be claimed by the
President, and the answer simply is that it could be claimed, and; if
claimed, it might contribute adversely in a certain instance to the
Executive's success or lack of success in avoiding the ,proceeding going
through the full route of accusation by the lower House and removal
by the Senate. Impeachment' iA an an her you have, obviously,
sometimes a battle between branebas. In the past, however, the Execu-
tive has f tirnished information to the Congress in impeaelinient prO-
ceedings. I believe I can give you some examples of that if You Wish
by a responsive letter.
Ms. ABUTO. Well, you could conceive of a situation under the theory
of separation of powers where tho executive privilege would not lie
in the course of an investigation or an inquiry into the behavior or
conduct of a member of the executive branch of the Government.
I am interested also in another issue, and that is the, issue of right
of. privacy. And I note, with agree ment, that there should be a major
effort to open many aspects of government, as you say at the beginning
of your testimony. But I am fascinated by your concept of the right
of privacy in your further discuss' ons on various pages of your testi-
mony in that in the constitutional concept it is your impression or
your opinion, based upon your scholarly knowledge-- whi ch I know
you have--that it is the executive, branch of the Government that is to
protect the right of privacy of individuals.
Mr. DIXON. Insofar as the individuals give the executive information;
requested by the Executive, in confidence, as is the case in antitrust
matters. There, is much material in the Antitrust :Division files, for
example, for certain law enforcement, criminal law enforcement gov-
ernmental agencies.
Ms. ABZUG. And in the case where an individual :is seeking, for
example, information about what s in his own file, do you think that
the Government should protect him from that ?
Mr. DixoN. Very rarely, but a case could arise. There could be a case
arise, in the. area of an organized crime situation, where you are dis-
closing to a given member of an organized criminal conspiracy ma-
te, ittl in his own files which would be of aid to his coconspirators.
s..:Anzuo. Do you think it is consistent with your rather broad
statements of the need to have open as many aspects of Government
information as possible for there to be an accumulation of information
about individuals in files and protecting that individual from that
information tinat exists in those files in all branches of Government or
many different branches of the Government?
Mr. DixoN. Most of the inform rtion is disclosed. But, if there is a
particular problem of confidentiality, or a particular problem of tip-
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ping the .Government's hand in an organized crime conspiracy, there
would seem to be a legitimate reason in those rather rare instances to
follow a policy of nondisclosure.
Ms. ABZUG. Well, I am not confining it to your example. I mean,
there are some people about whom the &aovernment has files that have
not necessarily been involved in any crimes, organized or otherwise,
but it is sort of, you know, part of an operation of Government to
collect a lot of information. They might need it sometime. I am talking
about one where it is not evident there is any?that it is not part of a
prosecution .in an antitrust suit which, sometimes, is considered a good
prosecution to proceed with and at other times as not a good prosecu-
tion to proceed with. I am not talking about that kind of case. But I
am talking about a situation where' let us say, the FBI decides that it
would like to collect information about people Who have decided not
to wear long hair but short hair. Do you not think that that is viola-
tion of privacy to let that agency collect files on how people wear their
hair, and should not that individual be able to get that information
from the Government if it is about that person? .
I mean, is .that not what individual right of privacy is about, to
be protected against Government infringing on the right of privacy,
instead of the reverse as you seek to describe it in your testimony.?.
Mr. DrxoN:..As I understood your question; I do- not think we are
very far apart Mr :that .question of the gathering of information of
an odd type, as you suggest, just about hair _length It is very unlikely
that it would be involved or intertwined in other protectable records
or files. But I am not aware that there' is a serious problem of nondis-
closure of that information. . . . .
Ms. A137.64. Well, but there has been much testimony- before vari-
ous committees that there are tremendous numbers of -files on many
individuals, 'private rind otherwise in the possession of the FBI and
people Who have requested these files have not had them made avail-
able to them ?
Mr. DIXON. Regarding FBI. files, we have taken a very protective
policy vis-a-vis the files for what we feel to be a rather important
interest intertwined with law -enforcement and not effectively separa-
ble. The matter probably winds up in further Work and, as I under-
stand it, was the occasion for reqUests from the committee being con-
sidered and processed.
Ms. Anztro. Let me just ask you one more question on that so that
we can illustrate' the point and then perhaps have an Opportunity to
discuss it further.
- If the Justice Department is so concerned about privacy, did it, to
your knowledge protest the recent Executive -order opening up tax
returns of farmers to the Agriculture Department?
Mr. DIXON. Regarding farmers, and the Agriculture Department,
and their tax returns, there was no intent to invade the farmers' ?pri,
vacy. When it was perceived that the language, as drafted or as it
might- be interpreted?and I do not know. whether it is a draftsman's
problem or just an interpretation problem?that there was a basis for
fear of invasion of privacy, the regulation was redrafted. That was
done in February or thereabouts, and there was a revision of the Ex
ecutive order regarding ac-Cess- by the Internal Revenue to data con-
cerning fanners. AU the .Department of ..Agriculture .wanted was
access to group data for the purpose of building profiles on-farm
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income and farm income systems and policies and not access to data
on individual farmers which would certainly be a matter of great
concern. And the regulation or the Executive order authorizing acces3
was reshaped to respond to the Department,
Mr. Moon-HEAD. I think we are going to have a hearing on that sub-
ject, Mr. Dixon.
I have some, questions I would like to submit to you in writing.
Would that be agreeable to you? A:3d if other members would do that.
would you submit answers 'for the hearing record? We are trying to
expedite the hearing, and we have another witness this morning.
Mr. DIXON. You request to submit further questions, in writing?
MT. MOOIMEAD. Yes.
Mr. DIXON. Yes; and we should be able to respond to further
inquiries.
[The questions and answers follow
DEPARTMENT 07 JUSTICE,
Washington, D.C., June 8, 1973.
MT. WILLIAM G. PHILLIPS,
Staff Director, Foreign Operations and Government Information Subcommittee
of the Committee on Government Op,ratioizs, Rayburn Hous.3 Office Building,
Washington, D.C.
DEAR MR. PDELEn's : This is in response to your letter of May 15, 1973 trans-
mitting 19 additional questions for written answers, supplementing my May S,
1973 testimony before your subcommittee on H.R. 5425 and H.R. 40G0. Each of
the 19 questions with its accompanying answer is set forth ir. the attachment
hereto. References in the answers to "the bill" mean H.R 5425 unless otherwise
indicated, and references to our "statement" mean the full text of my written
testimony of May 8th.
We regret that we were unable to furnish these answers by the date you origi-
nally had requested.
Sincerely,
ROBERT G. Dixon, Jr.,
Assistant AtOrney General, Office of Legal Counsel.
NrNnrnEN QUESTIONS WITH ANSWERS
1. Question. On page 3 of your statement, you mention the "comprehensive
seminar on the proper handling of Freedom of Information requests," held en
March 1, 1973, at the Justice Department.
Please supply (1) a copy of the program agenda indicating the major topics
included in the seminar and (2) a capy of the Attorney General's keynote
remarks.
Answer. A copy of the program agenda, captioned "Tentative Agenda", is
attached hereto as Exhibit A. (The program was conducted without change :41
the agenda. as set forth in the "Tentative Agenda".) A copy of the Attorney
General's keynote remarks, captioned "Memorandum for Assistant Attorney
General Robert G. Dixon, Jr." and dated March 1, 1973, is attached hereto as
Exhibit B.
2. Question. On page 5 of your statem,mt, you say that "[D]espite the laudable
general purposes of H.R. 5425, we are compelled to. oppose its provisions
strongly."
Please state for the record which agency of the Executive branch. "Compelled"
the Justice Department to oppose H.R. 5425----was it the Officw of: Management
and Budget, the White House, or who?
Answer. The matter is merely one of semantics. There was no compulsion,
beyond :Our _own belief. The sentence would express our meaning accurately if
the words "are compelled to" were deleted.
8. Question. On page 5 of your statemmt, you categorically determine that "Me
proposed amendments in, the bill (a) would lead to increased costs and adminis-
trative burdens for government agencies Without corresponding public bene-
fits..."
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On what basis did you calculate what value could be placed on "public bene-
fits" resulting from more open access by the America/it people to the affairs of our
government as carried out by Executive agencies?
Did you make a corresponding determination as to the "public benefits" that
would accrue from a restoration of credibility in the governmental processes of
the Executive branch which has reached such a low ebb in recent weeks?
Answer. The statement was preceded by language indicating that this quoted
statement was one of 4 statements or reasons intended to "summarize the overall
reasons" for our opposition.
The balance of the statement indicates which provisions were regarded as
presenting problems in terms of anticipated public benefits in relation to costs.
Examples include the government-wide requirement for publication of indexes,
section 1 (a ) of the bill, and the government-wide detailed annual report require-
ment, section 4 of the bill. Other possible examples are also noted in the statement,
for example the proposed amendment of the 7th exemption which would routinely
subject FBI and other investigatory law enforcement files to a record-by-record
determination. This is discussed in connection with section 2(d) of the bill at
pages 33-34 of our written statement.
We believe that the increased administrative burdens are obvious. An estimate
of the public benefit to be derived from such proposed requirements as a published
index is of course more judgmental.
4. Question. Since you indicate also on page 5 that the Justice Department is
concerned about the "personal privacy" of our citizens, how do you rationalize
the indiscriminate me of wire taps against news reporters, the opposition to
newsmen's "shield" legislation, and the failure of the Department to oppose the
issuance of Executive Orders 11697 and 11709, giving the Agriculture Depart-
ment the right to inspect the income tax returns of an entire class?the millions
of farmers of America?
Answer. The Justice Department is deeply concerned with protecting and pre-
serving the personal privacy of our citizens from indiscriminate and unwar-
ranted invasion. The use of wiretapping is not indiscriminately authorized by this
Department against any class of citizens. The use of this method of surveillance
is restricted to circumstances involving national security (Cf. 18 U.S.C. ? 2511
(3) ) and in the furtherance of specific law enforcement objectives (18 U.S.C.
? 2516) as authorized by Congress. This Department is not engaged and is not
authorized to engage in the indiscriminate use of wiretapping. See generally
18 U.S.C. ?? 2510-2520, delimiting the areas of permissible wiretapping, and
especially ? 2518, setting forth the procedure prescribed by Congress for the
authorization of wiretapping.
This Department has not opposed in principle the creation of a qualified testi-
monial privilege shielding newsmen from being required to reveal sources of in-
formation in federal proceedings. See statement of Robert G. Dixon, Jr., Assistant
Attorney General, before the Subcommittee on Constitutional Rights, Committee
on the Judiciary, United States Senate, March 13,1973. However, it is our position
that the successful experience under the Attorney General's "Guidelines for
Subpoenas to the News Media," issued on August 10, 1970, demonstrates that such
"shielding" legislation is unnecessary. The very existence of these Guidelines
indicates this Department's support of the principle of a qualified testimonial
privilege.
We have opposed specific privilege proposals on technical legal grounds and have
raised questions as to whether some of these proposals adequately protect other
individual rights such as the right of criminal defendants to compulsory process.
The Executive Orders referred to, No. 11697, 38 F.R. 1723 (Jan. 18, 1973), and
No. 11709, 38 F.R. 8131 (March 29, 1973), were promulgated under the authority
conferred by 26 U.S.C. ? 6103 (a) which provides that certain specified tax returns
shall constitute public records, but that these records "shall be open to inspection
only upon order of the President and under rules and regulations prescribed by the
Secretary. . . ." The purpose of these Executive Orders is extremely narrow,
namely, to permit inspection of income tax records "to the extent readily avail-
able in the Internal Revenue Service" for specified years by the "Department of
Agriculture" and only "for the purpose of obtaining data about such persons'
farm operations . . . for statistical purposes only."
Treasury Decision 7255, 38 F.R. 2332 (Jan. 24, 1973) promulgates the regula-
tions to be observed in implementing the inspection by the Department of Agri-
culture of these tax returns. The Executive Orders state that any inspection
"shall be in accordance and upon compliance with the rules and regulations pre-
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scribed by the Secretary of the Treastr2y. . ." Section (b) cf this Treasury
Decision clearly states that the Secretary of Agriculture must pply in writing,
precisely stating who will inspect the records and the reason ,A-hy specific tax
data is needed in relation to statistical goals of the Department of Agriculture.
Subsections (b (3), (d) (1), (2), and ( deal expressly with the confidentiality
of the data examined and its limited use for statistical purpose:..
The original order was prepared by the Department of the Treasury in language
designed to serve as a prototype for future tax return inspecton orders. This
Department approved the order as to form and legality. It was not requested to,
nor did it, express any policy judgment. The subsequent modification was also
approved as to form and legality. In. our judgment both orders comply with the
provisions of law enacted by Congress. We are not aware of any abuse of the
Inspection authority conferred.
5. Question. 110w would the amendments to the Freedom of Information Act,
if enacted into law, "create new uncertainties to confuse requessers, agency offi-
cials and the courts," as you state on page 5?
Would not the Justice Department issue clarifying guidelines based on the
new amendments as was done in 1967 by the Attorney General?
Why has the Justice Department not updated, the 1967 guideline memorandum
of the Attorney General to reflect case law that has further restricted the with-
holding of information by Federal agencies?
Answer. Our answer to this question parallels our answer to question 3 above,
because the language noted in this question was also one of the "overall" reasons
for our opposition stated in our summary. Examples of new, or 'lowly- significant,
uncertainties are set forth at various points in our written statement, for ex-
ample in the paragraph about Section ha) of the bill appearing on pages 6-7 ;
the discussion of Section 1(b) of the bill on pages 8-9; the last sentence on page!
22 about Section 1(e) of the bill; the "public interest" qualification in Section,
2(d) of the bill as discussed on page 34, and the provisions of Section 2(d) that
would link the investigatory file exemption to public policy statements and regu-
lations, as discussed on page 35.
With regard ti the balance of the question, whether the Justice Department
would issue clarifying guidelines based on the new amendments as was done
when the Act was passed in 1967, We caunOt fully answer that ..piestion at this
time. We would naturally seek to dc our best to provide legal guidance in some
form to other agencies concerning the requirements of legislation in this field.
However, it should be noted that the 1967 guidelines required a major effort to
prepare, occupying R large part of the one-year period between the Act's enact-
ment and its effective date, during which exhaustive consideration and coordina-
tion with many agencies and other interested organizations was undertaken.
This difficult task was made possible largely because the lawyers who under-
took it were not: then involved in dealing with the steady flow of :actual problems
under the Act in other government agencies, in our own Department, and in the
ongoing work of the courts which now prevail.
As to the last part of the question, we Lave not updated the 1967 memorandum
to reflect case law for the reason just described plus the following additional
reasons: (a ) The ongoing development of case law in this field would probably
make a draft revision substantially out of date between the time of its prepara-
tion and the dates of publication and distribution, or shortly thereafter; (b)
ninny of the court decisions are not clear in their ramifications, some of them
are in conflict with other court decisions, and some of them represent inter-
pretations of the law which must be taken into account but which we are not
necessarily prepared to accept as sound for general application to other disputes.
Thus, only one ease has been decided by the Supreme Court, dealing with two of
the exemptions in the Act, and questions have been raised about legislatively
changing one aspect of that decision, while some who have considered the other
aspect of that decision find it difficult to apply in concrete situations. In this
connection it is interesting to note that the Attorney General's Memorandum On
the Administrative Procedure Act, which was issued in 1947 and was widely
relied on, has' never been revised or updated by this DepartmeM despite a con-
siderable and continuing accumulation of court decisions interpreting or applying
that legislation : (c) as we indicated in our December 27,1972 letter to Chairman
Moorhead, we believe there are preferable methods for accomplishing the objec-
tive in question. See Attachment B to our December 27 letter at pages 7 through
9, outlining a newsletter, a seminar or symposium program, or a combination of
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these devices to accomplish the end in question. We should add that our expecta-
tions last December of testing one of these methods during the early months of
1973 have been sidetracked, in part by the increased workload generated by our
liberalized Justice Department freedom of information regulations and by legis-
lative hearings this year in this general field. We nevertheless hope to undertake
steps of this nature as soon as practicable.
i. Question, it is difficult to understand how the spokesman for the Justice
Department, in discussing proposed 10 and 20 working day time limitations on
responses to requests for records under the Freedom of Information Act, can
cavalierly suggest (bottom of page 12) that "agency personnel might disregard
the legislative time limits." While recent events in connection with the Water-
gate case and government misbehavior with respect to the Ellsberg-Russo case
strongly suggest that the time-honored doctrine of "government by laws, not by
men" has been abandoned, /tow .can an official of the chief law enforcement de-
partment of the Federal government even suggest that any lawful Act of Con-
gress would be "disregarded" by the E:recutive bureaucrats?
Answer. The language, from the statement which you quote in your question is
explained by the language which immediately follows, it. The context appears
when the passage is quoted, as follows, with the explanatory language in italic:
"agency personnel might disregard the legislative time limits on the not unreason-
able assamption that the requester is less interested in. a negative answer within
the specified period than getting the information he seeks, even if it takes a little
longer. * *
Viewed in this context, we think the language in question merely reflects a
desirable, common sense effort to carry out the central purpose of the. Act of
greater disclosure, in preference to a meticulous observance of procedural re-
quirements that might give a requester a quicker but negative response. This
position was not intended to suggest that any lawful net of Congress would be
willfully disregarded by executive personnel.
7. Question. On pages 19-22 of your statement you discuss your opposition to
language in H.R. 5425 that would overturn the Mink decision. You state that you
"sec no reason why Congress should overrule the Supreme Court's recent decision
in this area." Contrary to your remarks, there have been numerous arguments
advanced that the approach of that decision is, indeed, unfair and circumvents
the intent of Congress in enacting the original Freedom, of Information Act. In
fact, dicta in that decision, in effect, invited Congress to legislate in this area
to clarify its intention.
How can Congress or the public have any confidence in the sworn affidavit
procedure by Executive personnel that certain information is properly classified,
which, you advocate on page 20, in view of the overwhelming testimony before
this subcommittee of the massive abuses of the classification system, the pen-
chant overelassification, and the refection of suCh affidavits by the Court in
its decision in, the Pentagon Papers case in June 1971?
Anfonr. We aSsume this question is directed both to the subject of in cainera
inspection in litigation under the Act and to the subject of reviewing the classi-
fication of documents. It is helpful to note that the opinion of the Supreme Court
in EnvirOntnent0 Protection Agency v. Mink, -- U.S. ?, ? L. Ed. 2d
93 S. Ct. 827 (1973) is structured into two forts: the first dealing with exemp-
tion 1 (classified documents) and the second dealing with exemption 5 (certain
internal communications). The decision on its face. precludes in camera inspec-
tion only with respect to exemption 1 issues, not with respect to issues under
exemption 5 or any other exemption. HR 5425 would prescribe an automatic
in camera inspection in all cases under the Act, regardless of the circumstances?
or the exemption involved.
So far as exemption 1 is concerned, the Mink decision makes it abundantly
clear that the intent of Congress, derived from a review of the legislative history.
of the. Act, was to defer to a determination of the Executive what information
should "be kept secret in the interest of the national defense or foreign policy."
(5,TT:S.C. C522 (b ) (1) ). The Court said:
"We do not believe that Exemption 1 permits compelled disclosure of docu-
ments, such as the six here, that were classified pursuant to this Executive Order.
Nor does the Exemption permit in camera inspection of such documents to sift
out so-called 'non-secret components.' Obviously, this test was not the only al-
ternative available. But Congress chose to follow the Executive's determination
in these matters and that choice must be honored.
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"... Rather than some vague standard, the test was to be simply whether the
President has determined by Executive Order that particular documents are to
be kept secret. The language of the Act itself is sufficiently clear in this respect,
but the legislative history disposes of any possible argument that Congress in-
tended the Freedom of Information Act to subject executive security classifica-
tions to judicial review at the insistence of anyone who might seek to question
them."
In the second part of the decision, dealing with the applicability of exemption
5, the Court reached a different conclusion on in camera inspection. The Court
stated that "in some situations, in camera inspection will be necessary and appro-
priate," however, the law does not mandate that such a procedure should "be
automatic."
". .. In short, in camera inspection of all documents is not a necessary or in-
evitable tool in every case. Others are available.. ."
We do not read the majority opinion as inviting the Congress to clarify its
intent regarding the scope of exemptions 1 and 5 and the use of in camera
inspection, but the Court did touch upon the powers of Congress as well as their
limitations. In ruling against in camera- inspection under exemption 1, the
Court touched upon a constitutional issue when it said that "Congress could
Certainly have provided that the Executive Branch adopt new procedures cr
It could have established its own procedures?subject only to whatever limita-
tions the Executive privilege may be held to impose upon such congressional
ordering. Cf. United States v. Reynolds, 345 U.S. 1 (1953)." (Emphasis supplied.)
Therefore, if Congress were to enact an automatic in camera review procedure,
certain documents and information, within the province of Executive privilege
would nevertheless be excluded from this procedure by reason of the separation
of powers. See discussion in answer to question 9, below.
As to what the question describes as "the massive abuses of the classification
system" and "the penchant for overclassification" of information, problems in
this area have existed for many years., but they should not undermine confidence
In sworn affidavits, in view of the continuing efforts to deal with such problems.
The subcommittee is invited to review the provisions of Executive Order 11562
of March 10, 1972 (3A C.F.R. 154) and the National Security Council's Direc-
tive of May 17, 1972 (37 Fed. Reg. 10053, 3A C.F.R. 227) concerning.the
classili-
cation and declassification of national security information and material. These
two documents both were executive recognitions of past exeesses, and both pro.
mulgate guidelines for classification anti deaissification of materials, indicating
that it is the policy of the Executive branch not only ,to classify information
properly but also to provide for its automatic declassification, except where a
determination has been made that its Continued classification is necessary. Pro-
cedures are provided whereby the public can challenge it particular classification.
The rejection -of the affidavits in the cakes of Now York Times ( o. v,.United
States and United States v. The Washington, Post Co., 403 U.S. 713, 29 L.Ed.
2d 822,, 91 Ct. '2140 ?(1971) does not call into question whether confidence
can still be pliced in Sworn affidavits that certain inform Hon is pro arty
classified. The Court merely held that the Gm eminent had not carriid its burd!in
of proof in petitioning for an, injunction in the face of ..the "heavy presumption
against . . . constitutional validity" with which "any system of prior restraints
of expression comes to this Court . . ." The Court affirmed the findings of the,
lower federal coarts that the ,Government had. not met its "heavy burden of
showing justification for the imposition"of prior restraint onFirst Amendment?
right of free speech. In other words, the Court's treatment of the affidavitS in
these cases did not indicate, a skepticism of the ,affidavit pro edure nor a lack
of confidence in the truth of the affidavits but rather , a judgment as to their,
force in resolving the issue of irrevocable injury in those eases. The decisi rn
was that where a prior restraint on the exercise of First Amendnient rights
had been sought, the Government had not met its heavy burden of proof to
warrant the grant of an injunction. Thus, both in the New York Times case
and in Mink, supra, the courts used affidavits in dealing with classified docu-
ments and were able to decide for the government in one ease and against it in
another using this procedure. ?
Moreover, the Department has _confidence that the threat of prosecution for
perjury provided by 18 U.S:C. ?-? 1621, 1622, and 1623 is an effective deterrent
against' any -misuse of the affidavit procedure, It is the opinion of the Department
that federal euployees are not apt to engage in illegal activity involving the use
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in litigation of false affidavits in support of a classification of documents which,
under the Executive Order and the Security Council Directive, is unwarranted.
8. Question. In discussing the provisions of H.R. 5425 and H.R. 4960 that would
authorize the award of attorneys' fees and costs to the FOI case plaintiff when
the government did not prevail in such litigation, you make the preposterous
statement (top of page 24) that "some lawyers might take turns in filing these
suits for each other."
Are you suggesting possible unethical conduct on the part of the legal
profession?
Are you aware of any such abuses in connection with similar provisions that
have been contained in certain civil rights statutes for a number of years?
Answer. We believe that our statement with regard to attorneys' fees in these
cases, as set forth on pages 22 through 25, contains several reasons why this pro-
posal should be approached with caution. We intended to imply no conclusions
as to the ethics of any la.wyer's conduct. As to litigation under the civil rights
statutes involving the award of attorneys' fees against the federal government,
we believe that experience with these awards in such litigation has thus far been
too limited, and that the character of such litigation is too different from that
under the Act, to have a major bearing on the issue here.
9. Question. Where in the Constitution or any decision of the Federal Courts. 18
there any mention, let alone the recognition, of the so-called doctrine of "Execu-
tive privilege?"
Answer. The doctrine of Executive Privilege denotes the constitutional au-
thority of the President in his discretion to withhold certain documents or in-
formation in his possession or in the possession of the Executive branch from
compulsory process of the Legislative or Judicial branches of the Government, if
he believes disclosure would impair the proper exercise of his constitutional
functions.
This authority of the President, described by the term "Executive privilege,"
stems from the separation of powers doctrine embedded in the first three Articles
of the Constitution and implicit throughout the document. While not expressed
in a constitutional clause, Executive privilege necessarily flows from the powers
vested in the President by Article II. ?
The Supreme Court has recognized the right of the Executive to withhold in-
formation from compulsory process of the Judicial branch in United. States v.
Reyitold$, 345 U.S. 1 (1953).
In United States v. Curtiss-Wright Export, 299 U.S. 304, 319-320 (1936), the
Supreme Court recognized that "[s]ecrecy in respect of information gathered by
[the President's confidential sources of information] may be highly necessary,
and the premature disclosure of it productive of harmful results."
In New York Times,. CO. v. United States, 403 U.S. 713 (1971), Justice Stewart
in a concurring opinion joined by Justice White said :
"It is clear to me that it is the constitutional duty of the Executive?as a mat-
ter of sovereign prerogative and not as a matter of law as the courts know law
throughthe promulgation and enforcement of executive regulations, to protect
the confidentiality necessary to carry out its responsibilities in the fields of inter-
national relations and national defense." (403 U.S. 713, 729-730 (1971)?)
In, Environmental Protection Agency v. Mink, ? U.S. ?, 93 S. Ct. 827 (1973),
the Court stated that the power of, Congress to require the Executive branch to
furnish documents to the public under the Freedom of Information Act, 5 U.S.C.
522, Was subject to "whatever limitations the executive privilege may be held to
impose. CC United states V. Reynolds, 345 U..S. 1 (.1953)." (93 S. Ct. at 884).
In Soucie v. Ravd, 448 F. 2d 1067. (D.C. Cr. inn , the Court of Appeals con-
Sidered the doctrine of Executive privilege in the context of litigation under the
Freedom of Information Act.. Noting that "[t]he doctrine of Executive privilege
is to some degree inherent in the constitutional requirement of separation of
power," the court pointed out that "the power of Congress to compel disclosure
of agency records to the public is no greater than its power to compel disclosure
to Congress itself." (448 F. 2d at 1071, n. 9)
In Ethyl Corp. v. Environmental .Protection Agency, -- F. 2d , Civil No. 72-
2355 (4th Cir. 1973), the Circuit Court recognizes and addresses itself to the
defense of "Executive privilege" in the following terms:
"Such privilege [Executive privilege] was well recognized long before the
enactment of the Freedom of Information Act. The extent and scope of the privi-
lege, which is regarded as in part constitutional in origin and in part commit
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law, have been explicated in the nuraerous decisions in which the issue has arisen.
While the claim is one to be asserted 'Initially by the 'head a the department
which has control over the matter' inquired into, resolution of the right to
secrecy is not left to 'tile caprice of executive officers' ; rather, it is for the courts
to 'determine whether the circumstances are appropriate for the claim of privi-
lege.' United stoics V. _Reynolds (1953) 345 U.S. 1, at 8-10."
10. Question. Why has the JustAce. Department not been more aggressive in
requiring other Federal departments and ccgeheies to comply with the Freedom if
Information Law!
Answer. We have no direct power to require other federal departments and
agencies to comply with the Act, because Congress has vested the administration
of the Act in "each agency" with respect to requests for its own records. 5 U.S.C.
552(a) (3). We will continue to do our best within our available resources to
promote better .2ompliance with the Ac by other agencies, as was discussed :n
Mr. Erickson's statement to your Committee on March 10, 1972. in our letter :o
Chairman Moorhead of December 27, 1972, referred to above, and as. summarized
in my May 8, 1973 written statement at pages 2-3 and 42 through 44.
11. Question. in reference to your objections to section 2(a) of H.R. 5425, please
explain how thie language would affect the operations of the rar;ous investigatioe
agencies referenced on page 26 of the testimony in view of the fact that the
amendment specifically exempts disolosl,re which ,would unduly impede the func-
tions of the agency and in view of the fact that 'investigative f unctions are gen-
erally protected under present exemption (b) (7).
Answer. The proposed language of Section 2(a) would interfere with the pro-
tection of internal instructions and guidance, as discussed on pages 26-27 of our
May 8 statement, because the amendment cuts back the scope of the second ex7
eruption to personnel matters only, thereby excluding operating matters andin-
structions with respect thereto. The amendment would not exempt from dis-
closure material which if released would unduly impede the functions of nn
agency, except in the case of personnel materials.
We do not believe that the phrase "investigatory files" as used in the 7th
exemption adequately covers internal instructions, manuals, memoranda or rec-
ords of practices sought to be protected under the second exemption to intainta:in
the efficiency en investigations, inspections, audits, negotiations, and. 06 like.
While an investigative file may incidentally reveal internal eperating,:inStr4-
tions to law enfoivement personnel, and, while such instructions may uptni-OcOl-
atoll be legitimately deemed parts of stp!li files, the common-sense distinetion be-
tween investigatory tiles and manuals for government operations of a law en-
forcement or adversary nature seems too real to treat them generally as parts
of the same exempt category. This would mean stretching one exemption to
cover what another should deal with, and may lead to confusion. Moreover, the
Investigatory file exemption applies only when the investigative activity is
oriented agaiT,s1; violations of law, whereas the internal instructions requiring
protection under the second exemption affect not only law enforcement but also
antheng and inspection functions aimed against inefficiency, to assure that maxi-
mum value is obtained for the tax dollar.
12. Question. Please give examples o;' confidential information supposedly re-
leasable under seation 2(b) of lid?. 5425 which would not be protected under
other exemptions in the Act suCh as (b) (6) and (h)(7).
Answer. Several examples of confidential information Which would be un-
protected under Section 2(b) of time bill and which probably would not be pro-
tected under any other exemption wee given on pages 28-29 of our May 8
statement. These include letters of complaint from citizens not falling under any
other exemption, for example, a letter complaining about the efficiency or the
policies of some government agency upon which the citizen depends for services,
where no violathin of law is implied but where the citizen might hesitate Do
complain publicly for fear of antagen!:zing those employees or officials whose
policies or performance may be the targets of his complaint. We also cited
casualty witness statements, including speculation on the possible causes of
accidents, generated during fact-finding investigations undertaken purely for
preventive safety ends rather than. disciplinary or liability purposes. Other ex-
ameles cited ire-luded statements of employees given in the course of internal
audits, confidential communications from legislators of a noncommercial, non-
financial nature, and responses to solicitations for citizen suggestions as illus-
trated in the statement.
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In addition to those examples, we understand that scientific experimenters
sometimes submit tentative scientific information to government agencies to
assist the agencies, with the understanding that the data will not be disclosed
or published without the experimenter's consent, because the research is still in
progress and the information is not complete or fully analyzed. It appears that
such experimenters have traditionally had the right of first publication of the
results of their research, and would not make available important preliminary
data if the agency were required to infringe the scientist's rights by releasing his
results prematurely. In addition, there is a need to protect scientific and clinical
safety data on food, drugs, cosmetics and medical devices submitted voluntarily
to the government by foreign governments, states, and even private firms, for use
by the government in making regulatory decisions designed to protect the public
health, data which ,will be submitted only on a pledge of confidentiality.
These examples should not necessarily be regarded as exhaustive. However,
they help show that the 4th exemption is a necessary safety value to prevent un-
due expansion of the other exemptions in unforeseeable situations where the facts
present an overriding ethical or public policy imperative for withholding and
no other exemption fairly applies.
13. Question. The purpose of section 2(e) is to insure that individuals will have,
to the greatest extent possible, access to their own records held by the govern-
ment: If this section does not meet that objective, please suggest language which
would be appropriate.
Answer. ? 2(c) of the proposed bill could be amended to read as follows:
(c) Section 522(b) (6) of title 5, United States Code is amended by adding
after the final word "privacy" and before the semicolon the following:
": Provided, that nothing in this exemption shall be construed to support a denial
of access to a requester seeking the release of his own personnel, medical or sim-
ilar file, solely on the ground that such disclosure to him would be an unwar-
ranted invasion of the requester's own personal privacy."
We believe that, before further consideration is given to any such amend-
ment, the views of various agencies, such as the Civil Service Commission, should
be sought. We believe a very common practice is to waive the 6th exemption
and grant discretionary access to the file or most of it to the individual who is
the subject of the file. We encourage such practices. There may be cases, how-
ever, where shoWing an employee a file indicating he has a very serious dis-
ease might have`a' dangerous impact upon him, and there may also be problems
in identifying a requester as the subject of a file.
14. Question. In view of the fact. that the statistical record which would be re-
quired to be kept under section 4 of H.R. 5425 may be excessive for Congress's
needs and a burden on the Executive departments, please comment on the ad-
visability of requiring a record of only those requests which were not acted upon
within ten days of receipt, thus obviating the need for voluminous record keep-
ing of all routine requests.
Answer. It is difficult to respond to this question in a comprehensive manner
without a survey of the agencies and their major components. However, to make
a record of those requests Which were not acted upon in ten .days would :nOf ob-
viate the need for voluminous record keeping, although it should reduce the need
in some agencies. For example, as pointed out on page 14 of our May 8 state-
ment, the Immigration and Naturalization Service receives about 90,000 re-
queats a year, which are generally processed within a 30-day rather than a 10-day
period. If they were required to collect data for an annual report on those re-
quests which were acted upon on or after the eleventh day, the impact would still
be very substantial. This suggestion does merit further study.
15. Question. You state that "no money has ever been appropriated to any agency
to administer the extra work which the (Freedom of Information) Act involves."
However, agency budgets have been going up for years. Is it really the view of the
Department of Justice that freedom of information is an extracurricular activity?
Answer. We are not clear on what the question means in referring to freedom of
information as an "extracurricular" activity. Our record in this Department dem-
onstrates that we take our responsibilities under the Act quite conscientiously.
The quoted reference to the extra work which the Act has imposed upon this
Department and on other agencies is quite true. We added that with your under-
standing and support, however, we confidently expect improved administration of
the Act.
90 570 73 12
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16. Question. You state that the 10- and 20-day limit provisions "probably would
encourage hasty initial decisions to deny.' Actually, couldn't they also have just
the reverse result of speeding decisions to provide information?
Answer. We agree that it is possible that a rigid time limit provision would also
result in hasty decisions to provide, as well as to deny, information. In general,
however, a rigid requirement for a quick answer where time does not permit the
examination of the records in question, any needed consultation with concerned
agencies and knowledgeable personnel, or a resolution of legal and policy doubts,
will in our judgment tend to result in denials. Denial will be seen as the safe and
cautious thing to do, on the theory that if a mistake is made in denying it can
easily be reclined on appeal to a higher administrative authority or to the judicial
branch, whereas a mistake in granting access would be irremediable.
17. Question. You state that section 1(d) concerning classified d9mments raises
serious Constitutional questions because the Executive branch determines what
constitutes "State secrets." Is it not fru? that Congress has the Constitutional
power to replace Executive Order 116,52 ott classification and declassification with
a statute any time it chooses?
Answer. Any legislation of this nature would be subject to the constitutional
powers and duties of the President under Article II of the Constitution to deter-
mine what information affecting the national defense and foreign relations of the
United States should be accorded particular degrees and kinds of protection.
18. Question. On the awarding of attorneys' fes, wouldn't this help to discourage
the Government ,from litigating weak or marginal cases where information has
been refused?
Answer. We agree that the awarding of attorney's fees might in theory be of
limited help in discouraging some agencies from litigating -weak or marginal
cases where information has been refused, but we do mit believe it would have
a significant effect. The usual reasons for litigating weak or marginal cases are
that the agency tWnks its policy or legal position is stronger than_ may appear to
others, that the agency believes It will be criticized by a portion of the public or
within Congress if it voluntarily relea;ses the information, that the agency con?
siders itself morally obligated to protect third persons or its own employees, m.
that the agency seeks the guidance of a court decision as to its obligations and
options in circumstances of the type involved in the case. To the extent that an
agency might decide to release information to avoid the risk of au award o:!
attorney's fees, there is no assurance tht-tt sirch a disclosure world not be at the
eXpense of some legitimate private interest Straii as individual Pt 1%
. /9. Question. You say that most Fede al 'employees take their jobs seHously and
tend to identify with their assignmlmts, their agency and their files. Isn't thei;7
responsibility first to the public? Are they not public agencies and public files P
Tawhom do they owe a greater loyalty--the President or the people of the United
States?
Answer. We take it that the thrust of the question is to emphasize the broad
public responsibility of all agencies and their employees. That is an hnportant
point to emphasize. Our comment mereiy recognizes the existence of a natural
psychological trait in all organizations?indeed the better the organization as an
organization the stronger may be 6e,ttait. We think the Freedom of Informa-
ion Act has had a salutary effect, which we hope will increase, in tempering this
normal tendency of an organization such as a government agency to become too
insular in its outlook because of its day-to-day and year-to-year preoccupation
with its regular functions.
EXHIBIT A
U.S. Department of Justic?,?Oillee of Legal Counsel
TENTAT ApENDA
Seminar for Department of Justice officials who will be responsible for imple-
menting the Department's revised Freedom of Information (FOI) Act Regula-
tions rhp rsday, March I, 1973' at 42 :to P.M. in Room 4510, Star Bldg.
Infra(' actionAsst. Atty. Cell. 0.1,C, Robert G. DIXON, Jr. (2 :00 2:10)
. .
Batkground o.j` Act and Ple0if WHO's (ffloW the Act (ame about ; functions
of 11/1 the_Adminfstrative Conference : the Moorhead Report ; the media, the
private and 'public interest bar, etc:: attitude of the courts)
128 OFF Part 16 A, as revised effective March 1, 1963, 38 Fed. Reg. 4391 of Feb. 14,
1973.
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A. Remarks by Leon UL14IAN, Deputy Asst. Atty. Gen'l OLC and chairman ex
officio POI Committee, and by Walter FLEISCHER, Asst. Chief, civil appellate
section and member, FOI Committee. (2 :10-2 :25).
B. Questions & discussion on same. (2 :25-2 ;40).
3. New Procedures (Features of the new regulations; informal procedures)
A. Remarks by Fredericka PAFF, OLC, member FOI Committee; by Jack
HUSHEN, Director of Public Information; and by Malcolm HAWK, Office of
the Deputy Attorney General (2 :40-2 :55).
B. Questions & discussion on same. (2:55-3:30).
4. Standards for Granting or Denying Access (Statutory exemptions; technical
& practical appraisal; discretionary access).
A. Remarks by Robert SALOSCHIN, OLC, chairman FOI Committee. (3 :30?
,
3 :45 ) .
B. Questions & discussion on same. (3 :45-4 :15).
5. General Summary
A. Questions, comments, or suggestions on any aspect of the subject. (4 :15-
4:30).
B. Concluding remarks. (4 :30-4:35).
Ex 1IIBIT B
OFFICE OF THE ATTORNEY GENERAL,
Washington , D.0 ., March 1, 1973.
MEMORANDUM FOR ASSISTANT ATTORNEY GENERAL ROBERT G. DIXON, JR.
Re: Seminar on afternoon of March 1st on Improved Processing of Freedom
of Information Requests under the revised Justice Department regulations.
Please extend my greetings to the participants in your Seminar.
In a government like ours, whose powers under the Constitution flow from "the
People" who established it, there should be no quarrel with the basic philosophy
Of the Freedom. of Information Act. That philosophy is sometimes described as
"the public's right to know." But this right is not absolute, and several years
experience has shown that it is not always easy to administer the Act well,
'especially when there is a clash of legitimate interests.
We in the Justice Department are expected to provide leadership in administer,
ing this Act. We advise other agencies, and we should set a good example by the
way we handle requests for access to our own records.
? Our revised regulations should help to achieve faster and better processing of
requests under the Act. I earnestly hope that everyone in this Department lit-
?VOlved in processing these requests will try to do' so In full accordance with the
Act and regulations?that is, promptly, fairly, and with careful regard for the
interests of all concerned.
RICHARD G. KLEINDI EN ST,
- Attorney General.
,
- Mr, MOORHE AD. IN nen you correct Your transcript.
.. Mr. Gude?
Mr. GunE. Yes ? thank you Mr. Chairman. I.just have two questions.
,
On page 43 of II .R. 6046 introduced, by Mr. Hutchinson and others?
that is page. 43. Do you have a covy of that ?.
. Mr. .DixoN. Yes,? I wa8 looking at my' statement: It is not in my
, . .
statement ?
Mr. GumiL, No, do you have a copy of the proposed OP
It is the administration's bill on recodifying the Code in this area.
Mr. DIXON. The Criminal Code?
Mr. Gum % Yes. ?
. Mr. DtxoN. Yes; I do not have a copy with me, but I do have a copy
in the office.
Mr. Gum. Well, on page 43, subsection (d) , it states that "the de-
fense is precluded, and it is not a defense to prosecution under this
section that classified information was improperly classified at the time
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of its classification or at the time of the offense." Is there any doubt in
your mind about the question of the constitutionality cif such a
provision?
Mr. DIxox. Well, Congressman Gude, I am not prepared to testify
this morning on those sections of the Criminal Code dealing with
national security offenses. There are four sections. They are the subject
of testimony by the Criminal Dixisicin before Senator McClellan's
committee. I are not prepared to 0.O into these four sections in detait
this morning. If you wish, I could attempt to respond to your inquiry
in writing when I return my corrected transcript of my testimony.
Mr. Gunn. I think that would be very helpful if that were possible.
The memorandum on May 3 from the White House stated that the
President desires that the invoking of executive privilege be held to a
minimum; specifically, as to past and present members of the Presi -
dent's staff questioned by the FBI, the Ervin committee, or the grand
jury, the privilege should be invoked only in connection with conversa-
tions with thd President, conversations among themselves involving
communications with the President and as to Presidential papers.
Now, this. would seem to be a constriction of the statement. of execu-
tive privilege which Mr. Kleindienst previously had stated in reference-
to the subject matter.
Does this statement by the President mean that executive privilege
is being redefined in this instance, or is this just for the purposes of
testimony before the Ervin committee? Does the statement of Mr.
Kleindienst still provide the larger umbrella covering executive privi-
lege in general ?
Mr. DIXON. Well, Mr. Gude, I tInnk the two can be juxtaposed and
explained and made consistent in this way: There is a distinction be-
tween the authority of the President under the separation of powers
doctrine to control executive privilege, and, on the other hand, his de-
cision whether or not to waive it or invoke it in a particular instance,.
Now, regarding the first aspect of my response, regarding control,
we will oppose legislation attempting- to define legislaiYely the scope
of the executiy e privilege. On the other hand, just created by this
document of May 3, 197'3, the President really goes all the way with
executive privilege in terms of not making it a complete obstacle to
access to information. And this document describes the manner in
which he is waiving what might be a constitutional ultimate, unless in
his view, overridden perhaps in a court decision, and applying it to a
particular instance. I believe the three points there are consistent with
the historic disinclination of Presidents to get to the issue of executive
privilege or if they get to it, to make it a major obstacle to inquiries of
this sort. This would become--
Mr. GUDE. Then you mean that the broader definition which Mr.
Kleindienst set forth still prevails?
Mr. Dixolv. I believe he was talking about the ultimate power and
not the question of how it would be or should be exercised in a particu-
lar instance. If the information is privileged information?and the
approach has been to only invoke privilege regarding i2onversations
with the President or which may closely involve the President?and
if the decision is made not to invoke it, that decision itself constitutes
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an exercise of the power, an exercise of the power in the direction of
being cooperative in the common interest of law enforcement in a
given situation. Maybe I am not responding to the question.
The President has specified his view of the manner in which to
utilize executive privilege in this present situation.
Mr. GUDE. I yield.
Mr. MGCLoskEv. Would the gentleman yield?
Mr. Dixon, I am distressed about that answer in connection with
earlier testimony before us. I had always understood that the Office
of Legal Counsel prepared the President's position on legal matters.
Is that not correct? Is that not essentially your function?
Mr. DIXON. That, very frequently, is the case. We respond to many
requests.
Mr. MeCLosicEy. Yet you are here today testifying before us re-
garding rules of executive privilege which are drawn by someone else,
apparently in the White House and .not in consultation with your
office at all. Is it your professional and personal Opinion that the rules
of executive privilege which have been handed us today are consti-
tutional?
Do you, have a personal .opinion, Mr. Dixon, regarding these rules
which were prepared outside of your office?
Mr. DIXON. Well, I think, in this matter, really my personal opm-
is not very important.
Mr, MCCLOSKY. Well, it is important, because we are relying on your
testimony as one of the august professional bodies, supposedly free
of political influence. We have a record that Most of the attorneys in
the White House. have either resigned or. have been fired, and some
unknown person has prepared guidelines on executive privilege?the
most important aspect of these inquiries?and you are presenting the
sole testimony of the administration before us on this crucial point.
Again. I ask you: Is your personal opinion in accord with these
guidelines that have been handed to us, or are you merely defending
something that the administration has clone?
Mr-. DixoN. Well; as I said earlier, -received these officially early
last night, and my attention was directed to the POI Act and not to
this matter in preparation for the hearing. So, I would need, in order
to give an opinion,. personally or officially, either way, more time, to
reflect on these documents and- their relation to prior precedents and
understandings.
Mr. Mc:CLosKEv. Well., if you only received this document last night,
I think we owe you the courtesy of not asking for your professional
opinion as to its constitutionality.
Mr. Drx-oN. I am not prepared at this time, in any event, to say.
Mr. McCiLoaKEY. But I could almost surmise that the morale in any
Justice department, with its pride of professionalism, must be at an
all-time low when you are handed documents that properly should
have been prepared by your office to sustain testimony of this kind.
Mr. DIXON. Well, we do not have exclusive jurisdiction .concerning
matters in the White House. There are White House officials from
whom we receive cooperation, and we are pleased to cooperate and ad-
vise whenever possible.
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Mr. Moon:hEAD. T think, Mr. Dixon. that we will excuse you at this
point. But we will try to phrase a written question to you to try to.
clarify the administration's position on executive privilege.
-We have statements from the :former Attorney GeneraTRehnquist,
we have a statement from Ms. Lawton, and we have former Attorney
General Kleindienst's statement. We have also had some discussions
with you, and on these new guidelines. dated May 3 and 4?which we
will make a part of the record?we will try to phrase a question which
will give you an opportunity to clarify the administration's present
position on this subject.
Mr. DrixoN. Thank you. Mr. Chairman, I am not trying to be at all
evasive or at, all unclear. When new materials come into the picture we
have to take time to evaluate them and reach a consi dered judgment,
and we shall, ultimately, respo:nd to your inquiry as best we can.
Mr. MOORHEAD. Well, we thani-. you very much, Mr. Dixon. and we
may be calling on your professional assistance as we go ahead with this
Mr. DIxoN. Thank you, Mr. Chairman. I shall try to cooperate on
the legislation also.
Mr. AfoonunAn. Our next witness will be Professor Thomas M.
Franck, director, Center for International Studies at New York
University.
Professor Franck is a distinguished student of government secrecy,
classification, and foreign affairs. We are indeed fortunate in having
him with us here today. Would you come forward, Professor Franck?
I know that you have another appearance before another congres-
sional committee on the other side of the Capitol scheduled for this
afternoon. How much time can you give us?
Mr. FRANCK. Yes. I will be brief. I am not under any particular
pressure.
Mr. MOORTIEAD. Well, then, y)u. may proceed, Professor.
STATEMENT OF THOMAS IT FRANCK, DIRECTOR, CENTER FOR
INTERNATIONAL STUDIES, NEW YORK UNIVERSITY, AN7)
PROFESSOR OF LAW
Mr. FRAYCK. Mr. Chairman, with your permission : You have copies
of my testimony; so, I will just very briefly summarize what I have said
in there.
Mr. Moor:HEAD. Yes. I have read it and consider it nn excellent state-
ment.
Certainly, if you do not read a few lines that I particularly want to,
hear, I will ask you to read them.
Mr. FRANcri. Thank you.
It is a great privilege to be :invited to testify before this committee.
Those of us who are in the business of teaching and disseminating in-
formation at the universities consider this to be perhaps the most, im-
portant of the committees affecting the long-range future of our:
professions.
TO put these remarks in context, because they are going to be rather:
critical of the status quo, perhaps should report that there was a de-
bate last month in the Canadian House of Commons on information:
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179
policies of the Canadian Government. That government had tabled a
statement on the release of official information to the House of Com-
mons and the public. A number of Members said that the existing situ-
ation had been so bad?and they did not think the new rules would
make it much better?that the best place for a Member of Parliament
in Carmd.a to get information was from the reports of investigatory
committees and subcommittees of the U.S. Congress.
So, while you may think you have it bad
Mr. IVloounEAD. They are in deep trouble.
Mr. FRANCK. There are other places that have even more trouble
than you.
The search for better information flow between executive and legis-
lative branches is a worldwide problem among i democracies. In Brit-
ain, the Franks Commission has just reported in. The Franks report
is extremely conservative in proposing reforms for Britain. The Brit-
ish law has been so bad that it has almost been good, because it has had
a kind of chilling effect on prosecutions; there have . been, very few
prosecutions because the law has been so bad. But bad as the British
law is reported to .be, according to Franks, it is less restrictive than
S. 1400. If S. 1400 is passed by this Congress the law, here, will be
even more restrictive than the British law. -
I am going to confine my comments today to the question of flow,
information flow, in the field of national defense and foreign policy.
The Mink case has focused our attention on this issue, and it poses at
least three complex issues.
The first of those is whether the executive, as one of the parties to.
a specific information dispute, ought also to be the judge of that
dispute.
The second is. whether Members of Congress, in requesting informa-
tion, ought to be treated differently than the general public; whether
Congress. should have different and speedier procedures applied to
their requests. That seems to be a somewhat less important, but still a
major, problem.
And third. is the question of ,my principal concern here that . of
standards for disclosability. It has been -popularly assumed?and this
assumption is implicit in much congressional legislation and conduct,,
or at least has been in the past?that national defense and foreign
policy are matters which, by their very nature are, somehow, sacrosanct
and ought to be handled by the Executive and in secret. It is this
proposition which I think ought now to be Very seriously reexamined
as a part of the work of this committee..
John Jay addressed himself squarely to the question of secrecy and
conceded that the executive branch might sometimes?particularly in
the negotiation of treaties need perfect secrecy to achieve what he
called "immediate dispatch." And I think everyone here 'would grant
that. And there might .also have been occasions, he thought, where the
most useful intelligence. could only be obtained if the person possessing
it were sure he could confide without being revealed in public. Reports
from other governments from informants or informers might dry up.
if their confidences were not respected. But Jay certainly did not think
that foreign policy and national defense were discrete subjects re-
quiring secrecy per se. On the contrary. he selected -very narrow secrecy
categories: first, where disclosure would compromise a secret inform--
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ant or source, and, second, preparations for diplomatic or trade nego-
tiations, including secret instrictions to the negotiators. Beyond that,
Jay believed that, in a demccracy, the right to know should take
priority and that foreign policy was no exception.
Perhaps the time has come :or the information
,athring agencies
operating in the foreign and. tiefense fields to be detaehecr from the
executive branch and rriade responsible equally to Congress and the
President. There seems to me to be a particularly persuasive argument
in favor of doing this, aside from the obvious ones emanating from
democratic theory. One of the things that has come out of the revela-
tions of the Pentagon Papers 1:3 the relatively small amount of atten-
tion paid by the political decisionmakers in the executive branch to
the imformation engendered by the intelligence community. This com-
plaint has been expressed by persons high in the intelligence com-
munity.
Thomas Hughes. former Assistant Secretary of State. Director of
INR has said that the work of the intelligence community would re-
ceive much better attention from members of the exerntive branch if
they knew that Members of Congress, or at the very least select Mem-
bers of Congress, were receiving and reading the ;ame intelligence
reports. Part of the problem in the past had been .the tendency for
political decisionmakers to prei'er opinion to information. Perhaps
the pressure on the decisionmaker to square his own opinion with
received information, with data. would be greater if the flow of in-
formation were increased beyond the "eyes-only" contingent of the
executive branch.
The results of the Mink case have made early action by Congress
particularly important. Under Mink, the courts are not even free to
determine whether a classified document actually does pertain to na-
tional defense or foreign policy once they receive an affidavit from
the,executive branch. According to the court, "the test was to be simply
whether the President has determined by Executive order"---which
has to come to mean, simply, classification byany authorized official
under, general Executive order, "that particular 'documents are to be
kept secret." The majority of the Supreme Court held 'wholly un-
tenable any claim that the act intended to subject the soundings of
eXecutiVe security classifications to judicial review at the insistence of
nny objecting citizen."
Now, the right of the courts to review matters of this sort, if neces-
sary in closed session, would be restored by the provisions of the,
forton bill and the Moorhead bill. These bills would mandate the
courts to make an impartial determination of where national defense
or foreign policy ends and consumer rights, environmental protection,
and trade and commerce begin.
The bill, in my opinion, provides the right answer to the first ques-
tion: Who shall determine a dispute when one arises? The answer
is that the decision should be made, and truly and independently made,
by that organ of government designated by the Constitution to be
the umpire of the system. The courts, in other areas touching- on for-
eign relations, have proven themselves ible to make such determina-
tions. They have made their own findings, independent of the execu-
tive branch, in matters having to d3 with recognition o r foreign gov-
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ernments. They have held, for example, that the government of East
Germany exists and effect should be given to its laws in the domestic
courts of the United States. The Upright v. Mercury Business Machine
case is one example. Again, more recently, Congress has mandated the
courts to Make their own independent determinations in questions of
foreign expropriation where the acts of State doctrine has been in-
voked. The courts do seem to be able to make decisions in matters that
have a foreign relations content, even though these are inevitably ques-
tions of Some political interest.
- The second question is whether, in addition to this process of judicial
review, which would be available to the general public, Congress needs
an administrative remedy for obtaining information that would be
speedier, less formal and less rigidly adversary than the judicial rem-
edy. I think there are strong policy reasons that might militate in favor
of the Horton proposal for a joint legislative-executive commission to
resolve disputes between the two branches and to provide the Congress;
or the Members of Congress, into such information, sensitive or not,
as may be necessary to the discharge of its consitutionally-assigned
legislative and investigative functions.
This brings me to the third problem. The time has surely come not
only for reform of the procedure by which to review executive denials
of information to Congress and the public but also for a change in the
applicable standards and ground rules that pertain to secrecy and dis-
closure. It will be helpful to have the courts or a commission?rather
than the executive classifiers themselves?determine whether the Can-
nikin Papers, requested by Congresswoman Mink, were or were not
properly designated to be within the privileged category of national
defense and foreign policy. But let us not assume that courts will not
be heavily influenced by the Government's deposition in making that;
determination. Should Congress not reconsider the category itself ?
Similarly, other, older, provisions of the Administrative Procedure.
Act, 5 U.S.C. 551, et seq., 1970, contain procedural safeguards against
arbitrary executive rulemaking. But these safeguards do not apply
to the extent that there is involved a military or foreign affairs func-
tion of the United States. Should not this standard for denying open
procedures also be reconsidered ?
Foreign affairs is now a much more important part of the business.
of the United States than it has ever been in the history of the country.
It is also more of a Presidential monopoly than it has ever been in the
history of the country.
Not only is there more of a monopoly vis-a-vis the other branches of
Government but more of a monopoly vis-a-vis other parts of the Exec-
utive, that is, the Cabinet, and particularly, the State Department.
This makes it incumbent to have a monitoring of Presidential deci-
sions, outside review of the executive branch, based on sufficient infor-
mation to make that review effective. Such a review must come, first,
from the branch that shares the foreign policy power under the Consti-
tution, that is, the Congress, and, second, from the press and the public.
Even when the foreign relations power of the United States was less
important a share of total Government' power, it was never meant to
be exercised solely by the President; Today, the issue is far more
important.
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Foreign relations may at one time have concerned only a handful
?of professional diplomats and soldiers. Today it is not a category which
is discrete from domestic matters. The importation of chrome from
Rhodesia is ostensibly based on determinations of domestic need but,
as a breach of ?international law, has an important foreign relations
aspect. The sale of wheat to the Soviet Union is ostensibly based on
foreign relations components. And it is based primarily on foreign
relations or international trade considerations, but it has certainly
had a tremendous impact on the cost of living in this country. In the
same way, foreign relations initiatives, obviously, have an important
-effect on funds available for domestic poverty programs, for health
programs, for educational programs, and so on. The two subjects are
very closely interrelated in the sense that everything foreign has
,domestic impact, and, conversely, that most things that are domestic
have foreign impact. The Watergate matter, from one aspect, is
purely of domestic concern.
But, from another aspect, it appears also to affect the capacity of the
President to engage in foreign policy initiatives. Even the CIA seems
to have found it difficult to observe the line between the foreign and
the domestic. In many ways, whether a matter is foreign or domestic
is a matter of the perspective of the viewer. Perhaps Congress should
provide a Letter standard for the courts or the commission to apply in
determining disputes over access to information than whether the
matter pertains to "foreign policy."
A bill drafted by Senator Muskie in 1971 would have permitted
secrecy only for "information, the declassification of which would
? clearly and directly threaten the national defense of the United
States."
That seems to me to be a better standard.
Another standard might be: "information concerning ongoing de-
fense preparations or military operations." This standard could con-
ceivably be augmented by also permitting nondisclosure in the specific
-cases of "current negotiating instructions of U.S. Representative:3 on
matters pertaining-to' currently ongoing negotiations." A revised stat-
ute might also authorize the deletion from documents, prior to dis-
closure, of "names and other identifying data if such disclosure would
tend to interfere with the discharge of the functions of those named or
the functions of the U.S. Government, or would tend to impede
relations with a foreign government."
A revised standard for nondisclosure should also insure that who-
ever decides whether a particular piece of information must be dis-
closed do so by assessing not only whether a disclosure would harm
the national defense but also whether nondisclosure would seriously
hinder the democratic or legislative process. The court or commission
should be mandated to weigh tf.e one desideratum against the other.
Such balancing of equities is not at all alien to the third-party process.
Finally, n brief note of caution, and that is it seems to me it would
be a very high price to pay for the excellent legislative proposals which
are before this committee if, in return for an improvement in the in-
formation flow, all information obtained outside the newly mandated
procedures were to be subject to criminal penalties. There are initia
tives underway to that effect. I think it is important to remember that
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in the past self-help, information obtained privately; outside official
channels, has been the most frequent and fastest source of information
in the area of foreign relations, for the Congress, the media, and for
the public.
Even with new and better legislation, self-help, whistle-blowing, is
-likely to continue to be the principal source. Not all such information
flow is socially desirable, but much of it is essential to balance the
tendency towards foreign policy by Presidential fiat. The test for
when such information flow should be subject to penalties seems to
me to be adequately set out in the narrower provisions of the Espionage
Act. This makes punishable the taking, or the passing or the com-
municating, of information with the intent to harm the United States
or to benefit a foreign power under circumstances when harm occurs.
Anything more than that, if it were to be legislated as a kind of a
parallel to improvements in legalized information flow, would, I think,
be a bad bargain for this House and for the American public.
Mr. MOORHEAD. Thank you, Professor Franck. And as to that last
cautionary note, I think all of the members of this subcommittee would
.say "amen."
I would also suggest to any of the members of the subcommittee
who have not read pages 8 and 9 of your testimony that they do so.
I think it is a good analysis of the "pull and call" between the execu-
tive branch and the legislative branch. He mentions Executive secrecy
on the basis of "functional utility," while the press and the legislative
branch argue for "supremacy of the democratic process." I think that
should be read in conjunction with your suggestion that whoever makes
the final decision, the Commission or court, should have in mind the
balance of the two objectives in a democracy.
On page 15 you say, "should Congress not reconsider the category
itself," and then on the next page you refer to a bill by Senator Muskie
and then you make some additional suggestions. Is it your concept
that this is an amendment to the Freedom of Information Act expand-
ing the people's right to know, or is this a change in the Congress'
access to information ?
Mr. FRANCK. I think the Congress' light to know ought to be pretty
clearly absolute. That is, Congress itself might want to establish its
own system for regulating the flow of secret information inside the
halls and offices of Congress and Members of Congress. Congress itself
may want to have internal processes, its own rules, governing who
may see what. But the information gathering community ought to re-
port equally to Congress as to the Executive, although not necessarily
every item to every Congressman. It ought to be constituted something
close to an independent agency responsible both to the Executive and
to the Congress. First of all, I think that will improve the use made
of its products. It will improve the Executive's attention span vis-a-vis
the informants. Second, it will allow an adversary evaluation, by two
branches of government, of the significance of the information. Third,
it will dispel that myth that the Pentagon Papers has already to a
considerable extent dispelled the myth that if you know a lot more
information you make sounder judgments. If nothing else, it will help
to put that into perspective.
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Now, within Congress, I think that there May be 'qiite legitimately
some limitations as to which Members of Congress have access to how
much infortnation. That seems to be something that could be deter-
mined by the rules of Congress -rather than by any legislation. Ent
with the possible exception of those times I think the Congress ought
to have access to exactly the same kind of, and the same quantity of,.
information as the executive branch. It may not always request that
information. It may be peculiar even for it to request certain kinds of
information and that there may be a considerable sanciioii for or
against asking for certain kinds- of information, but, as a matter of
law, I think the information-gathering agencies ought be equally
responsible to Congress and the same information should' be 'made
available to Congress as to the executive branch; And any limitations
on that ought to be by way of congressional rules.
illowarAD. Thank you, Professor.
[Mr. Franck's prepared statement follows:]
: PREPARED STATEMENT OF TIMMAS M. FRANCK, DIRECTOR, CENTER FOR .
INTERNATIONAL STUDIES, NEW YORK UNIVERSITY, AND PROFESSOR OF LAW
I. am .grateful for the opportunity and consider it an honor to testify before
this ,committee, which is already regarded as historic by many of toy colleagues
at the universities for its innovative and persistent ,efforts to protect and enlarge
Otti rights to know and to verify the facts we teach.
I am going to address myself today primarily to the provisions of H.R. 5425
and an. 4960 as these pertain to the Mink case [Environmental Protection
Agency v. Mink, 93 S. Ct. 827 (1978)]. That is to say, I. will confine my comments
to the question of information flow in the field of national defense and foreign
policy. The Mink ease focuses on this issue. It poses at least three particularly
complex problems. The first is whether the Executive, as one of the parties to
a specific dispute about non-disclosure, should be able to make the final
determination as to its outcome; and, if not, then who is letter qualified to
decide? The second is whether Members of Congress?all or some of them?
should have greater and speedier access to information than the public as a
whole. The third problem is that of standards. If we agree that some infor-
mation in the general area of defense and foreign policy should not be subject to
immediate disclosure, then by what yardstick is disclosability to be measured?
There are, as regards this difficult matter of standards, at least three variables.
One, obviously, pertains to the nature of the material to be disclosed ; the second
to the varying needs of the persons Seeking disclosure: Congressmen, press,
scholars, general public, etc.; and the third variable has to do with timeliness?
hoW soon after the informaton came into being its disclosure is being sougat,
Any thoroughgoing solution to the :Information flow problem in the foreign
affairs and defense, fields must address itself to each of these three problems
and in terms of all three variables. There are undoubtedly others I have un-
wittingly omitted.
It has for long been popularly assumed, and this assumption is implicit in
much Congressionaf legislation and conduct, that national defense and foreign
policy are matters which, by their very nature, must be dealt with primarily
by the Executiire and in secret. Secrecy is necessary not only to avoid tipping
one's hand to the enemy, but to permit flexibility, maneuver, and, above 13.11,
speedy response. An open foreign po1i2y's greatest cost is not that the enemy
will ,know it, but .that Congress and everyone else will want to participate la
making it.
Nearly three hundred years ago, John Locke observed a degree of .contradie-
tion between democratic control of government and the exigencies of foreign
relations. He concluded that the control .exercised by the legislature and by low
over the, nation's relations with other states, which he misnamed the "federative
function," would perforce be less than over other, domestic, aspects of gov-
ernance. External relations, he stated, are "muCh less' capable to be directed
by antecedent, standing positive laws" than domestic affairs but must, instevid,
"necessarily be left to the prudence and wisdom of those whose hands it is in
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to be managed . . . by the best of their shill for the advantage of the common-
wealth." John Locke, Treatise of Civil Government, (New York: Appleton Cen-
tury Co., 1937), pp. 9F,99. Moreover, to? place this foreign relations discretion
in any hands but those of the executive would invite conflict and contradiction
"which would be apt some time or other to cause disorder and ruin." Ibid., p. 99.
Dr. Lemuel Hopkins, leader of the Hartford Wits, in his sardonic poem
attacking populism and the confederaLconstitution, said much the same thing:
"But know, ye favor'd race, one potent head
Must rule yonr States,. and strike. your foes' 'with dread,
The finance regulate, the trade control,
Live through the empire, and accord the whole."
Lemuel Hopkins, The Anarchiad, published in The New_Haven, Gazette between
Oct. 26, 1786 and September 13, 1787, reprinted in part, including the quoted
excerpt, in Vernon L. Parrington, The Colonial Mind, 1620-1800, Vol. 1 (New
York: Harcourt Brace and Co., 1927), pp. 371-373 at 372.
Some weight has even been given, indirectly, to this view of the institutional
necessities for the efficient conduct of foreign relations by the Supereme Court of
the United States. In the oft-cited U.S. V. Curtiss-Wright Corp., the Court sus-
tained a broad delegation by Congress to the President of discretionary power to
prohibit sale of arms and ammunition to parties in the Chaco war. Justice Suth-
erland, for the Court, spoke of the "exclusive, power of the president as the sole
organ of the federal government in the field, of international relations" and noted
that legislation .which had to be Implemented on the basis of "negotiation and
inquiry within the international field must often accord to the President a degree
of discretion and freedom from statutory restriction which would not he admis-
sible were domestic affairs ,alone involved."_ 299 U.S.? 304, 319-22 (1936). What
is notable about Curtiss-Wright from the constitutional point of view, however,
is that it, and the very few similar cases, Cf. United States v. Chemical Founda-
tion, 272 U.S. 1 (1926), never question the right of Congress to legislate in the
foreign relations field but only test whether, in legislating, congress can dele-
gate its own broad discretionary powers to the Executive. To this question, the
court has given a qualified affirmative response. But what Congress has given
must be Congress' to withhold, to retrieve, to exercise without any delegation to
Presidential discretion.
. Whatever Justice Sutherland's, dicta may have presumed, the Constitution of
the United States is not John Locke's word wade law,, and quite specifically not
in the matter of exclusive executive antherity over foreign affairs. The foreign
policy and defense powers are divided by the Constitution between Congress and
.the ?President, with a very, large share reserved ? explicitly for the former.
Alexander Hamilton in Federalist No. 69 .explicitly set out to quiet the fears of
Americans that the Constitution did, in fact, propose to give the Executive a
foreign policy and defense monopoly. "The President," he wrote, "will have only
the occasional command of such part of the Militia of the nation as by legisla-
tive provision may be called into the actual service of the Union." The Feder-
alist Papers, Wilhnoore Kendall and George W, Carey (eds.), (New Rochelle:
New York, undated), pp. 415-420. The President's power as supreme commander
"would amount to nothing more than the supreme command and direction of the
military and naval forces, as first general and admiral of the Confederacy" but
it would explicitly not include the power of "declaring of war and to the raising
and regulating of fleets and armies?all which, by the Constitution under con-
sideration, would appertain to the legislature." ibid. The President is also "to
-be authorized to receive ambassadors and other public ministers. This, though
it has been a rich theme of declamation, is more a matter of dignity than of
Authority." Ibid. Hamilton also emphasized the balancing power of the Senate
to concur in the appointment of ambassadors, as did John Jay. Federalist Paper
No. 64, ibid., pp. 3907393. Jay added that the Senatorial role would ensure that
-"the affairs of trade and navigation should be regulated by a system cautiously
formed and steadily pursued." Ibid., p. 392.
A policy cannot be cautiously formed and steadily pursued by Congress if
it does not know what pre-existing policies are already in force, why they were
iinplemented, where, how and why they have succeeded or faPed.
Jay, addressing himself squarely to .the question of secrecy, conceded that the
executive branch might sometimes, in the negotiation. of treaties, need "perfect
secrecy" to achieve -immediate dispatch." Ibid. There would also be occasions
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"where the most useful intelligence may be obtained, if the persons possessing
it can be relieved from apprehensions of discovery." There might be secret
Informants who would "rely on the 8ecrecy of the President, but who would not
confide in that of the Senate, aid still less in that of a large popular assembly."
Mid, pp. 392-393. However, Jay prophesied that "Those matters which in nego-
tiations usually require the most secrecy and the most dispatch" would be "those
preparatory and auxiliary measures which are not otherwise important in a
national view." He added that the F.enate's "talents, information, integrity and
deliberate investigations" would always balance the executive prerogatives of
"secrecy and dispatch." Ibid., p. 393. It is worth noting that Jay did not think
that foreign policy and national defense were discrete subjects requiring secrecy
per se. On the contrary, he selected very narrow secrecy categories: first, where
disclosure would reveal a secret informant or source?"blow a cover" as Jay
would certainly not have put it--and, second, the ease of preparation for diplo-
matic or trade negotiations, including secret instructions to the negotiators.
Beyond that, jay believed that the right to know had to take priority in a
democracy and that foreign policy was no exception.
It is not only In the United States, but in every democracy, that the people
have constantly sought reassurance that their executive's need for "secrecy
and dispatch" in foreign affairs world be balanced and checked by a vigorous,
informed legislature and public. In the words of the recent report of the Franks
Commission i.n Britain, "from the erzliest times governments of all typos have
been anxious to preserve secrecy for matters affecting the safety or tactical
advantage of the State. It is, hovvever, the concern of democratic governments
to see that information is widely diffused, for this enables citizens to play a
part in Controlling their common affairs. There is an inevitable tension between
the democratic requirement of openness, and the continuing need to keep some
matters secret." Great Britain, Home Office, Departmental Committee on Sec-
tion 2 of the Official Secrets Act 1111, Vol. I, Cmnd. 5104 (London, H.M.S.O.
1972), p. 9; commonly referred to as the Franks Report.
This checking and balancing has two functions: 1) to ensure that executive
discretion stays within the boundaries of the foreign affairs prerogative and
does not replace legislation as the way to regulate the internal affairs of the
nation; and 2) to ensure that the ptblie is adequately, if not in every instance
immediately, informed so that their executive could still be held to account,
even in foreign affairs. In the words of John Stuart Mill, "if the public, the
mainspring of the whole checking machinery, are too igno:mnt, to passive, or
too careless and inattentive to their part," democracy fails. 'Without publicity,"
Mill asks, "how could they either check or encourage what they were not per-
Milted to see?" John situart Mill. Considerations on Representative Government
(London : Longmans, Green and Co.. 18721. p. 13.
Not the written Constitution of the United States. nor the half-written consti-
tution of Canada, least of all the unwritten constitution of Great Britain. has suc-
ceeded in establishing the balance decreed by democratic theory between the im-
peratives of executive discretion and secrecy in matters of foreign affairs in-
cluding defense, on the one hand, an( i the public's need and right to narticinate.
knowledgeably, in the democratic process?either directly or through their elected
representatives. There is no abstract basis upon which to reconcile the demands,
of the government for "secrecy and dispatch" with those of the demos for access
to information. When the executive?the President, a cabinet minister, a senior
bureaucrat--refuses information, the government usually argues the case for
security, speed, and for preserving the integrity of an internal bureaucratic ad-
visory process. But when legislatures, the press, and an aroused public demand
Information, they are really calling for a right to participate either in making.
or in reversing, a decision. The executive champions functional utility. The
demos argues for the supremacy of democratic process. Witheut concern for atil-
ity, the society is doomed from without or disintegration from within. Without
concern for process. the society is SCE rcely worth preserving--at least for those
who hold liberal democratic values. All democracies concerned for survival, there-
fore, must strive to maintain a functional balance between these competing
demands.
Such a balance, however, cannot be captured in philosophic abstraction or even
in constitutional formulas. If there is a balance, it is likely to be an imperfect,
shifting, dynamic, tension-filled equ.librium compounded by numerous small
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accommodations between the key actors in a society's foreign policy process.
There can never be a final solution.
However, if there is no such thing as a perfect equilibrium, there is certainly
such a thing as a temporary dis-equilibrium. The events of the past six years
have produced such a dis-equilibrium, not least in the field of foreign affairs
and especially as between Congress and the Executive Branch. The Freedom of
Information Act as originally enacted was the the product of an era when this
dis-equilibrium had not yet become as widely noticed as it is now. Consequently,
it provided a wide exemption that permitted the government to refuse to dis-
close matters "specifically required by Executive Order to be kept secret in the
interests of the national defense or foreign policy." Title 5, section 552(b) (1),
U.S. Code (1970). The general classification system set out in Executive Order
10501 as amended by Executive Order 11652 has been used to meet this require-
ment for a specific finding that an item ought to be kept secret. The Congres-
sional reticence evidenced in this broad exemption for national defense and for-
eign policy is in the tradition of mutual accommodation which, in the past, has
made it possible for the executive and legislative branches to share the foreign
relations power of the United States as the Constitution requires.
It doe's not follow, however, that there is a constitutional basis for this Con-
gressional reticence. Accommodation, rather, has been evidence of mutual good
sense and a desire to make coordinate but separate powers work. To compel dis-
closure of the name of an informer still employed in intelligence work, or the
negotiating instructions of a diplomat still engaged in negotiating, or the exact
current strategic deployment of nuclear weapons, is as alien to Congress' as to
the Executive's sense of national security. But Congress has never conceded
that it is a sieve incapable of keeping a secret. A committee of the House of
Representatives during the controversy with President Tyler over the alleged
frauds of Indian Agents, in 1843, specifically declared that Members of Con-
gress are "as competent to guard the interests of the State, and have as high
motives for doing so as the Executive can have." 3 Hind's Precedents 0fi the
House of Representatives, p. 185. Given the secrets-revealing penchant of some
in the Executive, of. late, this may not be very high self-esteem. But, if Congress
has never accepted that it is a collective security risk, it has also acted with
pragmatic caution. Very few disputes have arisen, or are likely to arise, over
executive secrecy in really straightforward defense security matters. Regarding
this hard-core information, Congress has, by its voluntary reticence, in effect,
said to the executive branch "we will allow you to act as the judge of what
may have to remain an executive secret in the field of foreign affairs so long as
we are convinced that you are keeping from us only those matters the with-
holding of which any reasonable Member would recognize to be absolutely es-
sential to the national interest."
In 1930, for example, the Senate, as part of its advise and consent function,
called on the Executive to show it all papers relating to the negotiation of .the
London Treaty for the Limitation and Reduction of Naval Armaments. The
President resisted having to produce alt, on the ground that some documents
contained very frank comments on foreign officials. Although a majority of
Senators in the debate confirmed the constitutional right of the Senate to require
production of all documents, the body nevertheless voted in favor of an amend-
ment that made the demand for production subject to the usual "if not incom-
patible with the public interest" proviso. 73 Congressional Record 86 (1930) ;
Mary Louise Ramsey, Library of Congress, Congressional Research Service,
American Law Division, "Executive Privilege," Memorandum of June 7, 1971,
43 a t 43-45.
Unfortunately, the United States appears now to have entered a period when
the mutual confidence underlying this voluntary abstention has been eroded. The
responses recently elicited by Senator Ervin's questioning of the Department
of Defense concerning Army surveillance of U.S. civilians and data bank pro-
grams, the refusal of information to the General Accounting Office of Congress
by the Departments of Defense and State, the refusal of environmental data
concerning the Cannikin tests for Congresswoman Mink, taken together with
Congressional reaction to these refusals, suggest that the erosion has gone
rather far. United States, Senate Subcommittee on Separation of Powers of the
Committee on the Judiciary, Hearings, "Executive Privilege: The Withholding
of Information by the Executive," 92nd Congress, First Session, 1971, pp. 5-6 ?
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see also, "Summary Listing of Signant Access to Records Problems in Re2ent
Years," pp. 310-314.
There is no longer a dispo.sition on the part of Congress or lie public to pennit
the Executive complete discretion Lg.; to disclose information simplY by stating
that it is in the field of foreign policy or national defense and requires protection.
The -results of the Mink case havemade early action by Congress particularly
important. Under Mink, the courts are not even free to determine whether a
classified document actually does pertain to national defense or foreign policy
once they receive an affidavit from the executive branch. According to the
court "The test was to be simply whether the President has determinee. by
Executive Order that particular documents are to be kept soeret." Mink at 833.
The majority of the Supreme Court held "wholly untenable any claim that the
Act intended to subject the soundings of executive security classifications to
judicial review at the insistence of any objecting citizen." Mink at S34. The result
is not only to confirm the exclusion of national defense or ;7-oreign policy from
the Act's requirements for disclostve, but to make this category capable of
Infinite expansion at the sole diseret on of the executive. Since American isola-
tionism gave way to American work'. leadership, there are very few important
decisions to te made in Washington which do not have at least some "natianal
defense or foreign pulley" implications.
The salutary effect of both H.R. 030 and H.R. 5425 is to restore to the courts
power -to Make an impartial determination of where "national defense or foreign
policy" ends and consumers' rights, environmental protect on, and trade and
commerce begin. It is not in the tradtion of American courts to abdicate their
constitutionally-assigned role, merely because the issue is one involving foreign
policy judgments by the governmen.:. Por British courts, in contrast, Br tish
recognition of a foreign government i3 conclusive as to whether that government
does or does :aot exist even for purpoSes of suing, being sued, or of giving effect
to Its acts and laws in British courts. Luther v. Sagor (19'21), I K.B. 456. Such
diffidence has never been the etiquette of the U.S. courts, w hiela have assumed
the duty, however awkward, of making their own determinations of fact.
Upright v. Mercury Business Machine Co., 213 N.Y,S. 2d 417 (1016). The two
bills before this committee merely restore the Courts to that tradition of equality
with the other branches.
This, then, is the answer, and, in my opinion, the right answer to the first clues-
thin: who, in the event, of a dispute, EMI. decide. The answer is that the decision
should be made, and truly and independently made, by that organ of government
designated by the Constitution to be the umpire of the system.
This iloeg not mean that :any opportunity ,should be missed for resolving
cOnflicts before recourse to litigation: To this end, Congressman Horton's bill
(H.R. 4960) carried forward in soraewhat revised form a proposal fun l in
Congressman Moorhead's bill Of Ma Y 24, 11)72 (H.R. 15172). In place of the
earlier bill's prevision for a Classification Review Commission, the Horton bill
proposed a Freedom of Information Commission. Although the new title sounds
somewhat more partisan in the coarse of Congress, the composition of the new
commission is actually, numerically,: better balanced to accommodate executive
representation. There is something to be said for and against the commission idea.
I believe thal; the experience with lillgation to date militates in favor of inter-
posing sortie form of speedy administrative remedy along these lines. Such a Com-
mission could be helpful not only to a member of Congress, press. or citizen trying
to get 'Information but also to courts which may need expert -lisinterested advice
in deciding how to apply the new discretion in the field of "national defense or
foreign policy." On the other hand, the .press is afraid?and with considerable
justification, that if such an administrative clearance process is instituted. it will
be accompanied by criminal so-actions for obtaining cfasSified information by
other means, outside the new channels. Por the press, even' 1 ten- 41- tliirly.dar
delay while the Conunission procedures' are exhausted could have a serious in-
hibiting effee7. Incidentally, Britain Ond New Zealand have ilistituted Parliamen-
tary Commissioners for Administration with powers different but comparable to
those contemplated by this legislation. Cf. Parliamentary Commission Act, 1.067,
15 & 16 Eliz. c. 13.
There is another matter os to which I feel some ambignity. In the earlier
Moorhead draft the right to know WaS not identical for everyone. There is
something to be said for treating differently requests for information from
Members of Congress, particularly from members of key committees, and, on
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the other hand, requests from ordinary citizens. The ordinary citizen can effect
the foreign policy decision-making process primarily every four years at Presi-
dential elections. Congress, through its investigatory appropriations and powers
can effect the process much more immediately. Therefore, its needs are distin-
guished from those of the citizen.
This brings me to the third problem. The time may have come not only for
reform of the procedure by which to review executive denials of information
to Congress and the public, but also for a change in the applicable standards
and ground rules. It is, of course, helpful to have the courts, rather than the
executive classifiers, to determine whether the Cannikin Papers, requested by
Congresswoman Mink, were or were not properly designated to be within the
"national defense or foreign policy" category. But let us not assume that courts
will not be heavily influenced by the government's disposition in making so
vague and sweeping a determination. Should Congress not reconsider the cate-
gory itself? Similarly, other, older provisions of the Administrative Procedure
Act, 5 U.S.C. 551 et seq. (1970), contain procedural safeguards against arbitrary
executive rule-making. But these safeguards do not apply "to the extent that
there is involved a military or foreign affairs function of the United States."
Ibid., S. 553(a) (1), S. 544(a) (4). This, too, seems much too broad a blanket
exemption from normal processes of disclosure and participation. A very great
deal of activity within these broad ambits does not warrant secrecy either in the
decision-making process or in respect of information-flow.
A bill drafted by Senator Muskie in 1961 (S. 2965) would have permitted se-
crecy only for "information the declassification of which would clearly and di-
rectly threaten the national defense of the United States." This could conceiv-
ably be augmented with an exemption for (1) current negotiating instructions
of U.S. representatives and (2) a specific authorization to delete the names and
other identification of persons from documents if such disclosure would tend to
interfere with the discharge of their functions or with relations between the
United States and a foreign government.
But whoever makes the review, Commission, Court or both, it should be a
balanced review responsive to the balance of objectives in a democracy. The
reviewers should be enjoined to detemine not only (1) whether a disclosure
would harm the national defense but also (2) whether non-disclosure would
seriously hinder the democratic or legislative process. Such balancing of equities
is not at all alien to the third-party process, even though the standards will at
first be vague until narrowed down by precedent.
In conclusion, let me return to a note of caution. The entire process in which
this distinguished subcommittee is engaged would probably not be worth the
effort if, in return for better procedures to compel disclosure, it were to become
criminal to make or receive any disclosures outside the new procedures. Bill S.
1400, under consideration in the Senate, would have precisely this effect. If the
price, directly or indirectly, for the enactment of H.R. M25 or H.R. 4960 were
to be the passage into law of Sections 1122-1126 of S. 1400, I think that price
would not be right. I am sure that in any report you make to the House of Rep-
resentatives you will not allow to pass without comment the false syllogisms by
which are linked the reforms espoused in the two bills before this committee and
the measures to suppress all unauthorized communication contained in S. 1400
and similar proposals.
Mr. MOORHEAD. Because of the time, I am going to try to enforce the
5-minute rule, even on the chair.
Mr. McCloskey?
Mr. McCmsKEY. Professor Franck, I want to thank you for the
statement. In the 5 years that I have been in Congress, this is the
finest testimony by way of help to a congressional committee that I
have ever seen. I feel, better about the Justice Department now, know-
ing that Mr. Dixon who preceded you as a witness is an ex-law profes-
sor, and that Mr. Sneed, who was at Duke, is now in the Justice De-
partment. Perhaps we can restore some of the independent scholar-
ship to the Justice Department.
I would like to ask you one question.
96-576-73-18
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190
The nature of the arguments presented by the representatives a the
Justice Department have been along the lines that the separation of
powers and the doctrine of executive privilege are founded on a consti-
tutional right. I have wondered, and I have not yet heard competent
legal scholarship to the contrary, on this principle which was estab-
lished, I think, in 1804, in the case of Little v. Barreqe that in a field
involvinc, the President's inherent powers of foreign policy, the Pr,2SI-
dent acted before the Congress legislated.
Ms. ARUM. Would the gentleman yield for 1 minute?
Mr. MCCLOSKEY. Yes.
Ms. A_Bzuu. I want to echo the comments, if I mu, made by my
colleague, Representative McCloskey, about your statement. It is a
breath of fresh air to read it. But, unfortunately, I have to be ex-
cused, and I hope I will be able to talk to you about it; if not at the
hearing, perhaps I can ask some questions on the record, and I hope
you will answer them for me.
Thank you very much.
Mr. F:RANCR. Thank you.
Mr. MoCnostiEy. I will ask this one question and then leave, but
did want to get, if the Professor would, some response in writing
later on to this question.
Mr. MOORHEAD. I am sure you would be willing to answer questions
in writing, because we are under the gun.
Mr. FRANC K. Of course.
Mr. MCCLOSKEY. This point of Little v. Barrene involved the Ex-
ecutive ordering seizure of a ship going out of a Frencli port. Congress
enacted a law saving "You can seize a ship going into a French port
for contraband." But it had. not gone beyond that, and when the
court ruled, requiring the Government to return the ship to its owner,
it said that when Congress has acted in a field where the President
probably has inherent constitutional authority, then Congress' regula-
tion limits the exercise of that authority. Now, I think we are in the
same position on executive privilege, as the Mink case pointed out, that
should Congress choose to enact a rule the Executive would be bound
to adhere to that, as in any ()the.? law, and my question is: How far
can we go in enacting a law that will require that the Executive pro-
duce information for us? Now, hew far should we go? How far can
We go?
I am inchned to think that; these documents provided for the
Executive by foreign governments that Mr. Dixon talked about,
concerning ongoing intelligence, and as you have pointed out in your
testimony, Congress really did not want to know the names of those
conducting intelligence gathering. If we had a competent legal group
to respond to the Justice Department as to how far we could go con-
stitutionally, and how far we should go, we would then have informa-
tion that is not presently before this subcommittee. This is the question
T. would like for you to address yourself to.
.Taking the Little v. Barrene and the Youngstown Sheet and Tube
cases and, finally, the Mink case, we should have legal argument as to
how far we can or should go in defining a new doctrine called execu-
tive privilege, a constitutionally created doctrine whereby the Ex-
ecutive can withhold something from us. This was the question I
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wanted to ask the Professor, if, perhaps, after reflection, since we are
not accorded the time in these current days in the Congress, you might
give us your opinion.
Mr. MOORHEAD. Do you have anything else?
Mr. IVIcCLosuEy. That was all.
Are you able to do that within a reasonable time?
Mr. FRANCE. I would be glad to do that. Should I do that now, or
would you rather that I do that in writing?
I would be happy to.
Mr. MOORHEAD. If you want to make some comments now, go ahead,
and we can go until the bells ring again the next time.
Mr. FRANCE. All right.
I tend to think the way to resolve this problem is probably prag-
matically, that is, speaking bluntly, if one cannot make progress in
the field of Government openness today when the initiative is pretty
clearly?the public initiative and congressional initiative is with the
flow of events?when can one make progress? I tend to find it difficult
to answer your question in terms of what this Supreme Court would
say, but I would feel that now is the time to try.
I can make out, I think, a much stronger brief on the constitution-
ality of legislation, which having been accepted by the executive branch
or passed by a sufficiently large majority to override a veto by the ex-
ecutive branch would establish a reasoned basis for making informa-
tion gathered by persons employed by the executive branch available
to the Congress as an alternative to Congress setting up a duplicate
of that information (gathering itself. I think there is nothing in the
Constitution that prohibits that.
Mr. MoCLosKEy. If you will yield. As your testimony points out,
it is quite clear we are being forced into this by a sort of an unprece-
dented exercise of Executive restraint on the flow of information to us.
We have formed a whole office of technology assessment last year and
have 10 scientists to advise Congress. And probably we would have
not done that had the Executive been willing to give us the Govern-
ment report on the SST 3 years ago rather than withhold it from us.
But, faced with the Executive reluctance to give us information, we
are now being pushed into areas where we may go teo far in this
achievement of balance. I just cannot resist commenting that I think
that is the secret of what we are trying to achieve now and now is the
time to do it. This is why, in the legal brief, I would like for you to in-
clude also MeGrain v. Dougherty and Barry v. Madison. I think that.
4
pretty Well parallels Little v. B arrene.
But, thank you, Professor. I just cannot tell you how much I value
your testimony. This quote from John Stuart Mill, I am going to use
in some of my advocacy before this body.
Mr. MOORHEAD. Thank you very much, Professor.
Mr. FRANCE. Thank you.
Mr. MOORHEAD. I am sorry that we could not spend even more time.
At this time the subcommittee will adjourn until 2 o'clock, at which
time we will hear from Mr. J. Fred Buzhardt, General Counsel of the
Department of Defense.
[Whereupon, at 12 :30 p.m., the subcommittee recessed, to reconvene
at 2 p.m., the same day.]
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1.92
AFTERNOON' SESSION
Mr. MoormEAD. The Subcommittee on Foreign Operations and Gov-
ernment Infonnation will come to order.
When Government witnesses were asked some 8 years ago to testify
before this subcommittee on a proposed Freedom of Information Act,
they argued without exception that the Government would grind to
a halt if the bill were passed. They argued that efficiency in Govern-
ment was more important than public participation in Government.
Incidentally, that was included in Professor Franck's testimony this
morning.
Witnesses for every agency contended that they were already doing
an excellent job to keeir the public informed of everything the public
needed to know.
In spite of the unanimous opposition from the executive agencies,
the Congress passed the freedom of information law, and the agencies
reluctantly administered that law.
Last year this subcommittee held hearings to find out how well they
were administering the law. As a result of this public exposure of their
information practices, most agencies agreed to make some improve-
ments in their administrative handling of freedom of information
matters.
We want to make sure that all agencies honor both the spirit and the
letter of the lam,. To do so requires amendments to clarify some of the
provisions which many agencies have been reluctant to follow.
So far, agency comments on the proposed amendments are reminis-
cent of their attitude toward the original law 8 years ago. They want
no changes, no improvements.
We have been assured by President Nixon that his administration
will support all efforts to improve the administration of the terms,
policies, and objectives of the freedom of information law. I hope the
testimony from Defense Department witnesses whom we will hear this
afternoon will be in the spirit of cooperation and not the blanket op-
position to change which has characterized executive agency com-
ments so far.
We will bear from the Defense Department's General Counsel,
J. Fred Buzhardt, and from the head of the Department's publicity
operations, Assistant Secretary of Defense Jerry Friedheim.
Mr. Buzhardt, we are delighted to have you with us.
Mr. BUZIIARDT. Mr. Chairman, members of the subcommittee, before
I give my prepared statement let me say that there is no reluctance on
the behalf of the Department of Defense to provide information to
the public. We consider it our responsibility, and we are anxious to
work with the Congress in any way possible to improve both the law
and the administration of the law. To the extent that our methods
seem different, it is not that we disagree with the purposes, but I
think at _times_ there might be disagreement with the methods to
achieve the purposes.
Now, I will address the legislation
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STATEMENT OF J. FRED BUZIIARDT, GENERAL COUNSEL, DEPART-
MENT OF DEFENSE; ACCOMPANIED BY JERRY W. FRIEDHEIM,
ASSISTANT SECRETARY OF DEFENSE
Mr. RUZTIARDT. I appreciate the opportunity to appear before you
today to present the views of the Department of Defense on H.R. 5425
and H.R. 4960, both introduced to amend section 552 of title 5, United
States Code: the so-called Freedom of Information Act.
Although there are some similarities between these two bills, I be-
lieve it would be preferable to discuss them separately. I will, however,
confine these comments on the two hills to the issues they raise that are
of greatest concern to this Department. Additional technical points
regarding H.R. 5425 are included in the written report submitted to
the Committee on Government Operations, House of Representatives,
on behalf of the Department of Defense.
With respect to II.R. 5425, the Department of Defense strongly op-
poses the significant substantive modifications of the second, fourth
and seventh exemptions, 5 U.S.C. 552(b) (2), (4) and (7) , as well as
the unequivocal and inflexible time constraints for answering requests
and complaints that this bill would impose on the agencies. In addi-
tion the proposed requirements for the maintenance and the reporting
to dongress of data on some Freedom of Information Act requests for
records would be highly burdensome, not very useful, and, perhaps,
misleading.
Specifically, we oppose the proposed modifications of the second ex-
emption, 5 U.S.C. 552(b) (2), to limit its applicability to only those
"internal practices" which come within the description of "internal
personnel practices." There are many nonpersonnel, internal practices
that should continue to be protected from disclosure to any and all who
may request the records in which these procedures are set forth. The
Defense Contract Audit Manual is a prime example of the kind of
record which should not be available outside the Government. The
Defense Contract Audit Agency has determined that public release
of this manual must be avoided if the Agency is to fulfill its re-
sponsibility for auditing Government contractors' records in an ef-
fective manner and thereby better insure protection of the taxpayer's
interests. Because this manual is related solely to the "internal prac-
tices" of this Audit Agency, it cannot fairly be characterized as relat-
ing solely to "internal personnel practices." Yet, I cannot believe that
this subcommittee, the Committee on Government Operations, or the
Congress as a whole, would wish, by restricting the applicability of
the second exemption in the manner proposed in H.R. 5425, to hamper
the Audit Agency in the protection of the taxpayers' interests through
forced public release of the manual. There are numerous other Depart-
ment of Defense records that come within the ambit of "internal prac-
tices," but not personnel practices, that cannot be made available to the
public without serious disruption of the operations of the Department
of Defense. We agree with the position of the American Bar Associa-
tion that the preferable amendment of this section is the deletion of
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the word "personnel" so that all records concerning "internal prac-
tices" can be withheld if their disclosure, in the words of H.R. 5425.
"would unduly impede the functioning of such Agency."
The proposed modification of the fourth exemption, 5 U.S.C. 552(b)
(4), is objectionable because it would make even more difficult than
under the current ambiguous language of the fourth exemption the
responsibility to carry out the clearly expressed congressional man-
date of insuring that the traditional evidentiary privileges, such as
doctor-patient, lawyer-client. and priest-penitent, are preserved, along
with a guarantee to every citizen of his right to communicate with his
Government in confidence,. The revised language in H.R. 5425 would
limit the protection of "privilege" or confidential" records to those
which are trade secrets, or which contain commercial or financial in-
formation. No ilanguage would remain under this exemption by which
an agency could justify withholding noncommercial or financial rec-
ords containing information submitted by private citizens, members
of the Armed. Forces, and civilian employees to their Government, or
its officers, in confidence. The inability to protect such information
from public disclosure would haw the effect of discouraging potential
sources from providing valuable information about r ccidents, about
improper agency activities, the conduct of superiors, or countless other
sensitive matters of proper official concern. Thus, the net effect of the
proposed revision would be contrary to the public interest and actually
make more difficult the discovery or development of relevant informa-
tion about the operations of Government agencies.
The proposed revision of the seventh exemption, U.S.C. 522(b)
(7), is perhaps the most objectionable of all the substantive changes
contained in H.R. 5425. First, it is objectionable because of the am-
biguous effect of the apparent intent to limit the applicability of the
exemption to investigatory records compiled for "any specific law en-
forcement purpose." We frankly do not know what supposed abuse
under the present language of the seventh exemption that. this limita-
tion is intended to remedy. Any investigation, conducted for a law en-
forcement purpose has a specific law and specific purpose in view.
Otherwise, there would be no investigation because there would be
no justification for conducting it. If the intent is to limit the exemp-
tion to those investigations focus' don specific individuals or orgatiAza-
tions against whom some law enforcement action is contemplated, then
we believe that the result will be injury to innocent parties and a seri-
ous hampering of the investieutive process. Those who possess relevant
information about suspected deviations from proper enforcement of
laws will be reluctant or totally unwilling to disclose fully and com-
pletely that information to Government investigators if they cannot
be assured of its confidentiality. This consideration is even more acute
if the inability to protect the information results from the failure of
the investigation to confirm any law enforcement violation or to settle
on any particular violator. The consequence of this change may, there-
fore, be that violations of law will go undetected, uncorrected, or
unpunished.
The second serious deficiency in the proposed revision of the seventh
exemption is that it will deny agencies the right to protect investi-
gatory records compiled for the, purpose of enforcing health, safety,
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and environmental protection laws, as well as investigatory records
containing the results of scientific tests, reports, or data. Very often
the success of an investigation concerning health, safety, or environ-
mental protection depends on the cooperation of the employees of the
organization being investigated. It is unrealistic to suppose that the
investigator will be able to obtain complete and candid information
from these employees if he cannot assure its confidentiality. The likely
diminution in information can only have the effect of poorer investiga-
tions and poorer law enforcement to the detriment of all who are de-
pendent on the health, safety, or environmental protection involved in
the investigation.
Since the bill contains no definition of the term "scientific," it is im-
possible to determine the total adverse impact on this Department's
ability to protect from public disclosure to "any person" every scientific
test, report, or datum developed in the course of a law enforcement
investigation. Blood tests, urine samples, even polygraph results, may
be unprotectable, though they support the innocence of a suspect
against whom no enforcement action is taken. The unfair effect on the
reputations of innocent persons or organizations, resulting from the
revelation of various aspects of the investigation is too apparent to
belabor. Conversely, the potential detrimental effect on an ongoing
investigation caused by the premature disclosure of "scientific tests, re-
ports, or data" alone should provide sufficient justification for those
interested in vigorous law enforcement to reject this proposed provi-
sion of RR. 5425.
Although we agree that an agency should publicly announce the
basis for its public policy statements and rulemaking actions, we can-
not agree that investigative records concerning particular individuals
and organizations should always be available to the public simply be-
cause they stimulated a rulemaking action or a public policy statement.
A particular law enforcement investigation may still require protec-
tion even though its results may have caused the agency to take correc-
tive action of general applicability. The resulting public policy state-
ment or rulemaking should stand on its own rationale, independent of
any related investigatory record. To the extent that these are deficien-
cies in the rulemaking process, we recommend that they be corrected
by amending the section of the Administrative Procedure Act that
specifically addresses this activity. Amendment of the seventh exemp-
tion of the Freedom of Information Act as a means of addressing this
rulemaking issue will only serve to interfere with the accomplishment
of other worthy objectives.
With respect to the administrative and procedural requirements that
would be imposed on the agencies by RR. 5425, we believe that they
are for the most part unworkable and undesirable. By contrast, recom-
mendation No. 24 of the Administrative Conference of the United
States offers realistic proposals for improved agency implementation
of the Freedom of Information Act. These provisions have been almost
totally incorporated in a draft revision of Department of Defense Di-
rective 5400.7, which currently is being circulated among the various
components of the Department of Defense for comment or concurrence.
Its promulgation will, of course, await a determination by Congress
as to whether the Freedom of Information Act is to be modified, and
if so, the exact nature of those modifications.
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More specifically, the Department of Defense strongly opposes the
requirements in H.R. 5425 that initial requests under the act be
determined within 10 working days, appeals in 20, and that com-
plaints filed in the U.S. district court be answered within 20 calendar
days. In an agency the size of the Department of Defense, with mil-
lions of records all over the world, meeting such requirements would
simply be impossible.
Hence, these unrealistic time limitations would mean that we would
have inadequate opportunity to evaluate the difficult requests, or even
to find some records to determine whether they can be released. This
will cause requestors to initiate unnecessary litigation, which will
only serve to shift evaluative burdens from the agencies to the already
overburdened courts. Moreover, this evaluation by the court is limited
to a determination of whether the record comes within an exemption.
By contrast, the agencies also evaluate whether reliance on the exemp-
tion serves any legitimate and significant purpose. It is our experience
that more often than not the decision to release a record is made on
this basis, rather than because an exemption does not apply. If the
agencies have inadequate time to make these discretionary determina-
tions, those seeking release may be put to unnecessary trouble and liti-
gation expense.
Further, the courts would be obligated to make their judgment in
freedom of information cases without the benefit of a carefully con-
sidered and prepared Government answer because of the requirement
that it be filed within 20 days of receipt of the complaint by a U.S.
attorney. Yet, these severe time limitations on the agencies do not as-
sure the requestor a prompt hearing or judicial determination on the
availability of the record. This still remains within the court's dis-
cretion, a discretion which they may exercise under the present lan-
guage of t. U.S.C. 522(a) (3) to insure that freedom of information
cases "take precedence over all other cases."
We favor the flexibility that is inherent under the current language
of Section 552 (a) (3), title 5, United States Code, by which the judge
may evaluate the particular facts of the case to determine whether it
merits expeditious consideration over other cases. Although we be-
lieve that freedom of information cases are important, we do not con-
cur in changes which, in effect, create an unrebuttal statutory presump-
tion that they generally merit priority over every other type of
adjudication.
The flexibility of the courts would also be unacceptably limited by
the requirement of H.R. 5425 that the judge examine in camera any
agency record which a complainant has been denied. We believe, as the
U.S. supreme Court stated in Ewaronmental Proeeetion Agency v.
Mink, 93 Supreme Court 821 (1973), that a court should have the dis-
cretion of satisfying itself by whatever means it deems appropriate
that the agency has sustained its burden of demonstrating that the
withheld record falls within a statutory exemption.
We are particularly disturbed by this requirement as it would be
applied to records which are classified for security reasons under Exec-
utive Order 11652. The judge is in a poor position to second-guess
the validity of a security classification, and an ex parte procedure
where the agency explains the justification for the classification is
not satisfactory to either the requestor or the agency. One U.S. district
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court judge has opined that such a procedure is contrary to the tradi-
tions of our judicial process insofar as it denies the requestor an oppor-
tunity to present his arguments on the validity of the classification.
It is objectionable to the agency which often must rely on additional
classified information to justify the classification of the requested doc-
ument. It is preferable to permit the agencies to follow a procedure by
which they support the withholding of classified information with a
detailed affidavit explaining to the court the relationship between the
information withheld and the criteria by which it was classified under
Executive Order 11652. This affidavit procedure is well established as
a means of resisting discovery under the rules of civil procedure and
has been expressly recognized by the Supreme Court, Reynolds v.
United States' 345 U.S. 1 (1953), as an appropriate method of assur-
ing the court that classified and other privileged information should
be disclosed.
Finally, we believe that section 4 of the bill, relating to the reporting
requirements, is unnecessary, as well as unwise in some of its terms.
A simple request from the Committees on Government Operations of
the House of Representatives and the U.S. Senate to each agency for
the compilation and submission of data on freedom-of-information re-
quests would undoubtedly be sufficient to insure compliance. If, how-
ever, such a request is made, and particularly if it is incorporated in
legislation, we urge that it be modified to delete the requirement for
maintaining statistics on the total number of requests for records made
under the Freedom of Information Act and for the number of days
taken by each agency to make initial determinations on any such
requests.
In addition to being burdensome and costly, this requirement is not
likely to be helpful to Congress or the agencies. Indeed, it may be
misleading because the Department of Defense, like other agencies
would be required to report all requests for records regardless of form
or regardless of reference to the Freedom of Information Act. Most
of these are routine, and the records are provided without any consid-
eration of the applicability of the Freedom of Information Act. Con-
sequently, the resulting statistics would prove little or nothing. Com-
pliance with the act is judged only with reference to those cases
in which there has been an initial or final denial of the requested
record. Consequently, we recommend that any request or requirement
for reporting be limited to these troublesome cases.
II.R. 4960 is less objectionable to the Department of Defense in
many respects than H.R. 5425. It is more realistic and workable in its
substantial tracking of the time limitations for response to Freedom
of Information requests that are included in recommendation No. 21
of the Administrative Conference of the United States. We object only
to the requirement in if R. 4960 that "the head of the agency person-
ally" must authorize 30-day extraordinary delays for responding to
both initial requests and appeals which have not been answered within
the normal extended time limits. Although such delays should not be
granted lightly, we believe that it is impractical to require the per-
sonal involvement of the Secretary of Defense or the Secretary of a
military department in such a technical and particular matter. More-
over, it would be anomalous to impose such a burdensome requirement
when final decisions on appeal for records are made by subordinate
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designees. Consequently, we recommend that the word "personally"
be deleted from proposed new paragraphs (6) (C) and (6) (E) of
5 U.S.C. 552(a).
Another problem under any statutory time limitation for respond-
ing. to Freedom of Information Act requests is created when the
desired record has a security classification and is more than 10
years old.. Such records are currently reviewed upon request for de-
classification under procedures established by the departmental regu-
lations that implement Executive Order 11652. We bedeve these proce-
dures are sound, but, because of the right to appeal adverse decisions,
they do not permit compliance within the proposed statutory deadlines
for substantive response to requests for their declassification and re-
lease under the Freedom of Information Act. Separate time limitations
are imposed, however, under the regulations establishing these declassi-
fication review procedures for documents over 10 years old. We, there-
fore, recommend that a parenthetical exception be inserted after the
word "records" in the first line of the proposed section (6) (A) to
read as follows: "other than those over 10 years old and classified for
security reasons pursuant to Executive order or statute."
The proposed revision of the :seventh exemption for investigatory
records in TI.R. 4960 does not raise the same kinds of serious problems
discussed in connection with its counterpart in H.R. 5425. The amended
language would limit the withholding of investigatory records to those
which, if produced, would constitute "(A) a genuine risk to enforce-
ment proceedings, (B) a clearly unwarranted invasion of personal
privacy. or (C) a threat to life." Although this is a good description Of
many of the underlying reasons for withholding most investigatory
records, it would be improved by the. addition of section 552(b) (7)
(A) of the phrase "or to investigative procedures," and by the addition
of a subsection (D) to protect those records which, ii revealed would
constitute "a threat to the fairness of the proceedings."
The protection of "investigative procedures" would avoid any rev-
elation of records which, in themselves, disclose procedures that
are employed on a regular basis by the Agency and which, if revealed,
would lose their effectiveness. Such a protection would be. consistent
with the second exemption which protects records revealing internal
practices, which if disclosed, would unduly impede, the functioning
of an agency. The addition of authority to withhold records which, if
revealed, would affect the fairness of the proceeding, is closely re-
lated to the. protection of those which, if revealed, would constitute
a genuine risk to enforcement proceedings. It would, however, con-
stitute an express recognition that some investigatory records can
properly be withheld when the Agency concludes and is prepared to
demonstrate to the court that due process or equity so dictate.
The. modification of the :fifth ,exemption, 5 U.S.C. 552,(b) (5), ac-
curately translates most of the current judicial interpretation of the
present language of that exemption. We suggest, however, the addi-
tion of the term "evaluations" to insure protection of those inter-. or
intra ni
-aencv records which are not factual, but which require candid
evaluation of facts for the benefit of those, making policy decisions.
Such evaluations may not be accompanied by recommendations,
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-opinions, and advice, yet require the same kind of candor that justified
the witholding of recommendations, opinions, and advice.
In sharp contrast with the other changes in the exemptions proposed
by H.R. 4960, the modification of the fourth exemption, 5 U.S.C.
552(b) (4), would be seriously objectionable for many of the same
reasons discussed in connection with the proposed revision of that ex-
emption in UR 5425. Additionally, it is inadequate as authority for
protecting many records containing trade secrets and commercial or
financial information received in confidence because it imposes a re-
quirement that this information be obtained under a statute specifi-
cally conferring an express grant of confidentiality. To the extent that
such records are protected under the terms of a statute that confers
a specific grant of confidentiality, the third exemption, 5 U.S.C. 552
(b) (3) already applies. Consequently, this proposed revision has ren-
dered the fourth exemption a nullity, and would require the produc-
tion of many commercial or financial records which can only be ob-
tained through an assurance of confidentiality that will stimulate co-
operation and willingness on the part of the originator to be open and
candid in his submission of information.
The proposal in H.R. 4960 to establish a Freedom of Information
Commission is recognized as an effort to insure objective evaluation
and advice by an independent body on problems arising under the
Freedom of Information Act. The flexibility of its authority to insure
full consideration of all aspects of freedom of information complaints
and problems is commendable, and one could hope that it would result
in fair and impartial findings and useful recommendations with re-
spect to improvement in the enforcement of the act. Nevertheless, we
believe that the creation of such a Commission is unnecessary and is
likely to impose additional work loads that would not resolve the
more important disagreements on proper interpretations of the law.
In spite of a determination by the Commission that a record has
been improperly withheld, the requestor would still be required to take
the Agency to court to force release of the records, and the Commis-
sion's determination would be only prima facie evidence that the rec-
ord should be released. Since the burden is already on the Agency
to justify the withholding of records, the value of this prima facie de-
termination to the requestor may not seem sufficient to warrant the
trouble and delay in pursuing this route.
Moreover, this subcommittee and other committees of . Congress
have proved more than able to attract complaints from persons outside
the Government who do not believe that the agencies are properly
implementing the act. Such complaints have resulted in oversight
hearings and recommendations which have convinced the agencies,
includinc, the Department of Defense, that review of their procedures
was in order, and to take corrective action where justified. We doubt
that the imposition of an intervening bureaucracy of the kind contem-
plated by this proposal to establish a Freedom of Information Com-
mission will significantly lessen reliance on Congress or on the courts
as a means of insuring faithful compliance with the statute.
The comments on parallel provisions on 1-1.11.- 5425 _ regarding ex
parte in 'camera court evaluations of records and the compilation and
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submission to Congress of freedom of information case data me all
equally applicable with respect to H.R. 4960.
In addition, we note that the proposal to modify section 552(a) (3)
of title 5, United States Code, which would require a court to grant
an injunction_ whenever it concludes that an agency has not demon-
strated that a record comes witnin one of the exemptions of the act, is
a dangerous limitation on judieial discretion. Functioning as a court
of equity. 1. U.S. district court should have the option of declining a
requested injunction when its issuance will deny equity, shock the con-
science, or be contrary to public policy or the public interest. Certsinly
there has been no reluctance on71-ie part of U.S. district courts to grant
injunctions against agencies which have, improperly withheld records
under the Freedom of Information Act. IlTe know of few oases in
which an injunction has been denied when no exemption was found to
apply, but we believe that it -would be a serious error to deprive the
courts of this safety valve which experience has demonstrated to be
necessary and appropriate to the proper functioning of a court of
equity.
I recognize that much of whit I have said here about these bills is
critical. This is not intended to imply that improvements in the lan-
guage of the statute, as well as in its implementation by the agencies,
are not in order ; but I am constrained to say that. several of the revi-
sions proposed in these bills, and particularly in H.R. 5125, are, in my
judgment, likely to prove counterproductive should they be enacted.
There has just been brought to ray attention an article in the Maryland
Law Review, volume XXII, No. 3, entitled: "The Freedom of Infor-
mation Act.: Suggestions for Making Information Available to the
Publics" written by Mr. Charles TI. Koch, Jr., an attorney in the Office
of the General Counsel, Federal Trade Commission, .which in my opin-
ion merits the attention of this seibcommittee.
Mr. Koch discusses many of the problems of great concern to the
Department of Defense, and which, I believe, should be of concern to
this subcommittee. Although I do not agree with all of Mr. Koch's
observations, nor with all of his recommendations, I believe that he
has attempted to offer constructive solutions to Most of the more seri-
ous freedom of information problems. Similarly, the discussion of the
Freedom ef Information Act found in the 1970 supplement to Prof.
Kenneth Culp Davis' Treatise on Administrative Law contains many
worthwhile observations about difficult interpretation problems under
the language of the act which deserve the attention of this subcom-
mittee and the entire Congress.
The Department of Defense is willing to provide whatever informa-
tion or whatever other help it can to illustrate our concern with the
Operation of the act as presently written and with the proposed revi-
sions. We believe that improvements should be made, and we stand
ready to contribute to the effort which is necessary to their accomplish-
ment.
I Am ready to answer any questions you may have on our response
to these bills.
Thank you.
Mr. MOORHEAD. Thank you very much, Mr. Buzbardt. We may very
well be taking you up on your kind offer. For example, I think that
a majority of Members of Congress believe that the .iitent of Congress
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in the Mink decision was different than that which the Supreme Court
said our intention was. I believe the majority of us would like to
overrule that decision. If the Court had examined the documents' they
could have separated some of them out of the entire file, so that there
would not have been any particular problem there.
We might be calling on you for technical assistance in drafting
language to overrule the Mink case decision. Maybe this legislation
can be improved. There may be another alternative to in camera
examination by the Court. If I read the mood of Congress correctly,
we were disappointed--all, or almost all of us?in that Court decision.
But sometimes when you want to overrule a Court decision, you
might go too far. So we have to be careful. We might be calling on
you for help.
Mr. RUZHARDT. Yes, sir.
There might be a problem in overruling, of going too far on the
other side of the spectrum.
Mr. MOORHEAD, On the assumption that the intent of Congress is
not that set, how would it be best to reflect that in our legislation?
Much of what you had to say in your testimony was critical of the
proposed legislation. Some of it, I am sure, may be justified; some of it
also brings to mind the negative testimony that was given by the De-
partment of Defense in 1965 when the present law was enacted.
In general, the Department of Defense was opposed to the whole
concept of limiting by the legislative imposition of specific categories
of privileged informaton to the discretion of Defense officials to pro-
vide appropriate protection for information or records that were in
their custody, and for which they were responsible. Let me quote
from that 1965 testimony:
This limitation is made more objectionable by the fact that such protection
might ultimately depend on the concurrence of th.e Court. In the Defense officials'
judgment the protection is permitted under the imprecise language of the bill.
Since jurisdiction is vested in any District Court, the possibility is evident of
inconsistent interpretations of the statute, to be settled ultimately by the Court
of Appeals and the U.S. Supreme Court.
In order to comply with requirements of H.R. 5012, if it were enacted, it
would be necessary in each component of the Department of Defense to build
a large staff whose duties would be to determine the availability of records
and information, and facilitate its collection from a variety of historic sites,
and to assist in defending each suit in U.S. District Courts anywhere in the
United States.
Such an organization requirement would be exceedingly costly.
That is the end of the 1965 quote.
Mr. RUZHARDT. Mr. Chairman, if I might comment on the latter
part, of the number of people that we have had to devote to this type
of activity, it is substantial. As you know, a substantial number of
cases have been developed across the country.
Let me say, I think, I do not believe that anyone can say the courts
are prejudiced in favor of the Department of Defense.
Mr. MoortirEAD. I'm disappointed that there aren't more FOI cases,
not against the Defense Department particularly, but that there
haven't been more cases.
One of the reasons for these bearings is that we think that the orig-
inal act was so cumbersome that it discouraged plaintiffs from bring-
ing suits. I'm not saying specifically against the Defense Department.
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think that part of the attitude expressed in Defense and other agen-
cies in 19a--and this was honestly held, I believe, on the part of the
executive branch?that you can do a better job for the people if you
don't tell them all that they want to know. I say that was an honestly
held opinion.
We in the Congress believe that even if you don't do as good a job
for them, they are entitled te know more about their Government than
they are being told now?even if it is a little bit less effective as a result.
I am interested in your comments about Mr. Horton's proposed Free-
dom of Information Commission. You talk about the overburdened
Courts, and of course, once upon a time as a practicing lawyer, I agree
with you, sir. But don't you. think that the Commission, developing
an FOl expertise, could actually relieve the burden on the courts?
Even if it couldn't dispose of every case, finally, but ii . it could dispose
of a substantial number that would relieve the courts? Wouldn't it be
of help?
Mr. BUZHARDT. Frankly, Mr. Chairman, I doubt if it would be much
help, and I think it would slow down a number of cases.
Mr. MOORHEAD. Of course, the plaintiff would still have the option
to go straight to the court for relief.
Mr. Buzinutryr. That's based on the experience of those reviews that
have reached a point where it was apparent that the denial was con-
troversial enough to go to court. We are trying to lean over to give
the information, to give it to the public. I don't recall a case offhand
where our judgment has not been upheld.
So it indicates that we are, trying to lean over to give the infor-
mation. That's the kind of case they are going to deal with. I doubt
if it would produce a significant amount of information to the public.
That's a personal opinion and subjective, obviously.
Mr. Mookanan. I suggest to you that the Commission could also give
some flexibility. If you couldn't answer a request in 10 days, you could
file a statement with the Commission and that would give you some
flexibility.
I'd now like to ask Mr. Friedheim this question. When freedom of
information cases have come up--not just the routine ones that are
handled with a yes or a clear no?but when there is a difficult ques-
tion, are you brought into it as a general practice?
Mr. Fluicalitum. Mr. Chairman, Mr. Buzhardt and I--which I think
is evidenced .by the fact we are here together before you today--
consult and discuss those cases that go beyond the routine. We have,
in the Department of Defense, divided up some of the responsibilities
of how we handle freedom of information cases. There has been a sug-
gestion from time to time, that we have some kind of information
center that would pull it all together in one bureaucracy someplace.
It has been done in some agencies, and has perhaps worked in some
agencies. It's our experience that ours is such a large one, spread out
geographically, 31A. million people, that our existing pi ocedures have
worked well in that the requests are made to those that are cognizant
of where records are filed and held.
Many requests are handled at that point on a routine basis, many
that go on beyond that point are discussed in consultation between
myself and Mr. Buzhardt and the administrators that hold the records..
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In many cases our procedures of allowing the heads of our organiza-
tional entities to make final decisions on these things has, in my view,
resulted in cutting down the number of appeals that might have to
be brought to Mr. 13uzhardt in his final legal capacity. Of course, he
and I do talk about those problems.
Mr. MOORHEAD. It has been our experience on this subcommittee that
when the legal profession?of which I am a member?is the only one
making the decision, the decision tends to be more negative than in
the agency where the public information officer is brought into the
case.
Specifically, Mr. Friedheim, what about the Daily Oklahoman case,
that involved the Army? Were you involved in that case ?
Mr. FRIEDIIEIM. That was a matter of some long standing, involving
a considerable exchange of correspondence. I am sure this subcommit-
tee recalls being involved in some of that exchange of correspondence.
The case is primarily in the Army. Of course, in my capacity, I have
an interest on behalf of the Secretary of Defense, in that his public
information principles have charged the whole Department and
Mr. MoomE.A.D. Did you say that you believe the Army's handling of
that case did comply with the public information principles issued
by Secretary Richardson?
Mr. FRIEDHEIM. I have not reached that point in my sentence, Mr.
Chairman. I was prepared to come to that point. I have an interest
in that case, although it is an exchange between the Army and an
individual newsman, because I am responsible for assuring the imple-
mentation of the public information principles of the Secretary of
Defense. These principles specifically include a charge to the Depart-
ment in the same words that you used in your opening remarks, to
adhere to the letter and spirit of the Freedom of Information Act.
I have followed the progress of that exchange, and a good deal of
the early exchange. If we brought the exchange of correspondence here
and put it on the witness table, it would be about 4 feet high. So I
didn't bring that today.
But the fact. of the matter is that in many cases the Army and my
office have been charged with working with the Daily Oklahoman and.
specifically Mr. Taylor. In fact, we have worked at great length and
have had a considerable exchange of correspondence and telephone
calls with him. He has not been satisfied with all of our answers. None
of the newsmen with whom I work are satisfied with all of my answers.
I would be surprised if they were.
The case is one which involved, in the early days, what has been
known as the Peer's Report. There were a great many newsmen, not
just Mr. Taylor, who were interested in obtaining release of that
report. It was a matter that was pursued all the way through the
district court.
The district court upheld the position of the Army, that as Iong
as the appeal is running, which it still is, that material, should not loi;
released. Mr. Taylor, even after that court decision, still chose to seek
those materials, which is his right.
We have chosen to adhere to the recommendations of the court. My
office and the Army respond to the Daily Oklahoman on all their in-
quiries. They have also engaged us in a lengthy correspondence of
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hundreds of letters asking for many materials, biographical sketches,
pictures of general officers, and a lot of material that is probably
available in the nearest Federal Register library. We have tried to.
respond to those.
The Army found it advisable to discuss with them the setting of
priorities or the order in which their written requests to us would be
filled. That was agreed to by the Daily Oklahoman, and we are pro-
ceeding to meet those requests in a priority way.
We have .worked in my view in a professional and a forthcoming
manner with Mr. Taylor. I think it should be noted that we attempt
to work in. that way with every other reporter, every other news-
paper in this country. Mr. Taylor is one of many, many thousands. If
we spent as much time with everybody else as we do on Mr. Taylor's
request, we would not begin to s itisfy our obligation to the public.
We respond to all requests. In this ease, we have had to do it in
somewhat of a priority manner. But I think we do have a handle on
how to go about it, and to the best of my knowledge, the Daily Okla-
homan has agreed to what I regard as a professional relationship and
a recognition that both sides in a, professional relationship must seek
to do what is possible, not to ask for the impossible.
Mr. MoonHEAD. Do I understand then that it is your belief, Mr.
Fricdheim, that you have worked out an amicable situation as far as
this tall stack of correspondence is concerned?
Mr. FRIEDHEIM. That certainly has been the desire of the Army.
That has been. our counsel and sugestion to the Army Chief of
Information.
Also, other Departments are involved besides the Army. Mr. Tay-
lor regularly queries the Air Force and the Marine Corps. He calls
my office for a break in news stories. We respond to his requests. We
also have an obligation under our freedom of information principles,
under the Freedom of Information Act, and under the Constitution
and the first amendment to respond to the request of all the news
media. And we try to do that.
We have to appty sonic professional standards from time to time,
and that we have tried to do in this case. This is not to say that Mr.
Taylor or his publisher or his editor have been in total agreement
with us at alit times throughout this exchange. We happen to have a
feeling in the Department, which we express with some regularity,
that both. we and the press are part of the same constitutional system,
and that it is possible to pursue that check-and-balance system, an
adversary relationship, without being antagonists.
We would be surprised, and a little frightened, in -fact, if it were
not an adversary relationship. It is supposed to be. It doesn't surprise
us that it is. We think that can be pursued in a nonantagonistic way,
and that has been our intent in this particular case as in all others.
Mr. MoomfEAD. I hope that to the extent that the _egislative and
executive branches have different opinions, and we are sitting here
and you there, we could have that same kind of feeling.
Mr. McClosl'iey ?
Mr. McCnosKEY. Mr. Friedheim, that adversary relationship with
the press you have described, do you in the Department have the
same feeling that you are in an adversary relationship with the
Congress?
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Mr. FRIEDIIETM. As I say, we view this constitutional system as a
whole.
Mr. MCCLOSKEY. Perhaps you can answer my question, yes or no,
please, and then comment on it.
Mr. FRIEDITEIM. Yes, sir. There is a check-and-balance relationship
between the executive and legislative branches of our Government,
and also with the press, which is also in the Constitution.
Mr. MCCLOSKEY. In connection with that response, Mr. Friedheim,
do you subscribe to the comment once made by Assistant Secretary
Sylvester, that in some cases the Government not only has the right
to lie but the obligation to lie?
Mr. FRIEDITEEM. NO, sir, I do not. You will find my exchange on
that in my confirmation hearings before the Senate; that question was
asked me by Senator Thurmond.
Mr. MCCLOSKEY. Mr. Buzhardt, in your testimony I found no ref-
erence to section 3 of H.R. 5425, the section which would require the
executive branch to furnish information to Congress upon request.
Had you intended to omit any reference to section 3 of the bill,
or was that inadvertent?
Mr. BUZHARDT. As I said in addressing the bills as a whole, that I
would comment on those that gave us greatest concern. We do not be-
lieve that we have a major problem with providing information to the
Congress. We generally think we can.
Nen McaoskEv. Generally, do you have any objection to section 3
of the proposed bill H.R. 5425?
Mr. BIJZIIARDT. Let me look at it again, if you will.
Mr. McCLoskEY. I can quote it to you, briefly. It merely states that
"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 such committee as
that case may be," and that included subcommittee under the defini-
tion of committee.
Mr. BTIZIIARDT. Let me say, as I noted earlier, we did submit com-
ments and the official report on the bill. This is what we say with re-
spect to section 3.
Mr. MCCLOSKEY. You were referring to comments I have not seen
? perhaps. What is that date of those comments? Is this your letter?
Mr. BITZHARDT. Yes, sir. It is a rather detailed comment on the bill.
It says : "The provisions"
Mr. livIcaosKEY. What page?
You are quotino?t' from your letter of May 7?
Mr. BITZHARDT.Yes, my letter to Representative Holifield.
Mr. MCCLOSKEY. Page 10?
Mr. BUZHARDT. Yes, Sir.
The provision of Section 3 of the bill that agencies shall furnish information
to the Congress and the Committees upon written request is consistent with the
current policy established by President Nixon in his memorandum of March 24,
1969 to the heads of executive departments and agencies; and by the statement
by the President dated March 12' 1973.
To the extent that proposed Section 3 is intended to modify the procedures set
forth by the President, and based on his Constitutional prerogatives and responsi-
bilities, it would of course be ineffective.
9G-576-73-14
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Mr. MoCeosKEr. Let me speak to that first point. I have in front of
me the letter of the President dated April 7, 1969, to Chairman Moss
of this committee, and the memorandum for the heads of executive
departments and agencies dated March 24 to which you refer.
That memorandum indicated that all information requested would
be furnished unless the President himself made the determination to
exert executive privilege. If a department head were in any doubt as
to whether executive privilege should be claimed, the question would
be referred to the White House and after careful consultation there,
the President's determination would be related to the appropriate
agency.
Now, I have three letters in front of me, Mr. Buzhardt. One comes
from you, and two from either Mr. Doolin or the related individual in
the Defense Department. In these letters, I specifically requested in-
formation from the Defense Department, and I received a response
that the information would not be forthcoming, because it was either
not productive to furnish the information to me, or, as in the case of
your own later to me, I think in this case, a lieutenant general, a head
of the DIA,. in view of the sensAivity of some of th:i information, it
would be deleted from the information furnished upon my request.
Let me be more specific about these three examples. I would like to
offer them at this point for the record, Mr. Chairman, if I may.
Mr. Moo-nut:Am NVithout objection, they will be made a part of the
record.
[The. material referred to follows i]
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
-Washington, D.C., May 19, 1971.
Mr. RACY JOHNSON,
Assistant to tite, Secretary, Department of Defense, The Pentagon, WasVng-
ton, D.('.
DEAR Mn. JOHNSON: In your letter of May 13, responding to my letter of April
29 to your predecessor, Mr. Richard C. Capen, no mention is made of the photo-
graphs requested from the Air Force in my earlier letters to Mr. Capen and to
Major General Giraudo.
Specifically, inasmuch as the Air Force has referred all pAority inquiries to
your office for response, I would like to reiterate the following request for
photographs:
1. The most recent photographs takm of the 196 villages on the attached list.
All of such viL ages are located in the .Plain of Jars area and testimony has been
received from a number of refugees from that area that their homes were
damaged or destroyed by United States bombing in 1969. This information was
previously requested of the Air Force in my letter of April 20, 1971, addressed
to Major General John C. Giraudo, a copy of which was enclosed in the letter
of April 29 to which you partially responded in your letter of May 13.
2. The two photographs of Laotian villages handed to me for examination on
April 15, by Major General Evans, Coramander 13th Air Force, Udorn, Thailand.
These are the photographs which General Evans discussed with General Clay on
April 16 in Saigon and which Major General Hardin on the same day advised me
that General Clay had decided to refuse release, suggesting that I should request
the pictures from the Air Force Liaison Office in Washington. I made such
request to Major General Ginn& in may letter of April 19, a copy of which was
enclosed in the letter to your predecesser, Mr. Capen.
3. A copy of the photograph of an F-105 bombing four huts with a direct hit
with white phosphorous, such photograph being the one formerly hanging in the
office of the Vice Commander, 7th Air Force, and from which the present oil
painting behind General Hardin's desk was copied. This photograph was also
referred to in my letter of April 19 to General Giraudo, aforesaid.
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From a personal inspection of your photographic records in Udorn I am sat-
isfied that it is a simple matter for the Air Force to collect the photographs in
question from those records and forward them forthwith.
The Air Force had no difficulty whatsoever in furnishing us with 12 recent
pictures of Laotian villages, these being the following:
1. Ban Toumlan, photograph dated, November 14, 1970.
2. Ban Le, photograph dated, February 27, 1971.
3. Ban Khe Louong, photograph dated, February 21, 1971.
4. Ban Donbouag, photograph dated, November 14, 1970.
5. Ban Khammouan, photograph dated, February 15, 1971.
6. Ban Nambak, photograph dated, April 1, 1971.
7. Ban Tomnlan, photograph dated, November 14, 1970.
8. Ban Nanhano., photograph dated, April 1, 1971.
9. Pak Beng, photograph dated, April 1, 1971.
10. Mahaxai, photograph dated, February 15, 1971.
11. Saravan, photograph dated, November 14, 1970.
12. Attopeu, photograph dated, November 14, 1970.
? None of these villages were named in the list previously requested, however,
at least to the best of our knowledge.
Needless to say, this request is made with the understanding that no photo-
graphic missions should be flown nor lives placed in jeopardy for photographs
not already in your files. It was my understanding that you already have a com-
plete and comprehensive file of photographs for each village located along lines
of communication (LOC's) in Laos.
If photographs of any of these villages are unavailable in your files I would
appreciate being immediately so advised.
Respectfully,
PAUL N. MCCLOSKEY, Jr.
ASSISTANT SECRETARY OF DEFENSE,
INTERNATIONAL SECURITY AFFAIRS,
Wasivington, D.C., June 11, 1971.
Hon. PAUL N. MeaosiKnY, Jr.,
House of Representatives,
Washington, D.C.
DEAR MR. MCCLosicEr : Mr. Johnson has asked me to reply to your letter of
May 19, 1971.
I have reflected on your various requests for photographs of villages in Laos.
Your understandably humane interest in the effect of the war on the civilian
population in Laos is shared by the many in the Defense Department who over
the years have wrestled with this problem. I hope our basic agreement on motives
is not obscured by the differences we may have over issues of management.
With regard to management, we have explained repeatedly that we have
established restrictions up to the limits of the safety of our pilots in order to
minimize the effects of the war on civilian populations. Ambassador Sullivan,
along with knowledgeable and competent witnesses from State, AID, and De-
fense, has discussed the refugee situation thoroughly with cognizant bodies in
the Congress. As you know, we are convinced that the overwhelming cause of
refugees in Laos is the offensive military activity of the North Vietnamese
Army. Finally, when civilians have been caught up unavoidably in the web of
warfare, we have given strong support through AID to ameliorative programs.
It is neither feasible nor useful to go beyond these steps to furnish extended
photography of Laos. Much of Laos is inhabited by itinerant groups who estab-
lish their villages temporarily and then move on. The abandoned villages, in
various stages of decrepitude, dot the countryside. Those which have suffered
military damage may be indistinguishable from those ravaged by the weather;
those which have suffered identifiable military damage may have been struck by
the enemy rather than by US bombs; finally, even if it appears from current
photography that US bombs might have damaged a village, we come back to
our assertion that only valid military targets come under attack as an unavoid-
able consequence of enemy activity, an assertion which you implicitly are chal-
lenging.
In sum, I cannot see that the cause of the civilians in Laos will be advanced by
our further exchange of photographs. The public record is as complete regarding
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our efforts to minimize the effect of the war on Laotian civilians as we can make
it without disclosing information which the enemy would certainly use further
to endanger the lives of our 'pilots. Let me- assure you that we are resisting a
ruthless and aggressive enemy as humanely as the circumstances permit.
Sincerely,
DENNIS J. Doonix,
Deputy Assstant Secretary.
CONGRLSS Or THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
Washington, D.O., Jsig 27, 1974.
DIRECTOR OF LEMSLATIVE LIAISON,
Department of the Air Force,
The Pentagon, Was D.C.
DEAR Sia: I read in the June 0,1971, issue of the Air Force Times that the
service is nearing completion of a five year-long study, code named Carona Har-
vest, and evaluation of the effectiveness of the air role in Souiheast Asia.
The article says that formal reports totaling about 10,000 printed pages al-
ready have been. completed, verified and sent to the Hq. USA air staff for a study
and comment.. The article further states that one feature of the project is the
compilation of more than 300 "oral hisa)ries" of the AF role in SEA as recorded
on tape by prominent military and civilian officials involved it. the war effort
I wonder if you would be kind enough to call my AdminiArative Assistant,
Paul LaFond, 225-5411, and advise when and where he and I can go over this
material.
Respectfully,
Hon. PAUL N. MCCLOSKEY, Jr.,
House of Representatives.
DEAR Mn. MCCLOSKEY : Reference your request to view Project CORONA HA!-
VEST study papers.
I regret that it would not be produ2tive to provide access to the CORONA
HARVEST papers. Although, as reported by the Air Force Times, a substantial
amount of reporting has been done by the operational elements of the Air Force,
the overall project is far from complete. Because of the sheer volume of the cur-
rent working papers, which are primarily after-action reports, and because they
are still in the process of being collated and evaluated, there is little to be gleaned
in the way of definitive material at this time.
Thank you fcr your interest in CORONA HARVEST and the United States
Air Force.
Sincerely,
PAUL N. MoCnosREy, Jr.
Thr.PARTAIENT OF THE Am FORCE,
OFFICE OF THE SECRETARY,
Washington, D.C., Scot ember 3, 1971.
JOHN C. GILITIDO,
Major Genei-al, iSAF,
Director, Legislative Liaison.
HOUSE OF REPRE'SEN TAME S.
FOREIGN OPERATIONS AN GOVERNMENT INFORMATION SUBCOMMITTEE-
OF THE COMMETTEE ON GOVERNMENT WERATIONS,
Washington, D.C., April 5, 1973.
Vice Adm. VIA CENT DE POIX,
Director, Defense Intelligence Agency,
The Pentagon, Washington, D.C.
DEAR ADMIRAL DE POIX : Some time a.;o, I :requested the opportunity to see a
copy of the Defense Intelligence Agency Manuel No. 58-11, commonly known as
DIC03.I. The existence and nature of this manual had been test' fied to by an ex.-
Army enlisted man, K. Barton Osborn, in testimony before the Government
Operations Committee's Subcommittee on Foreign Operations and Governmert
Information. His testimony commences on page 315 of the I earings entitled'.
"U.S. Assistance Programs in Vietnam," held in July and August 1971.
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209
Today, Col. Charles W. Hammond, USAF, came to the offices of the Subcom-
mittee with a copy of the DICO1VI, formally requested by a March 27, 1973, letter
from Subcommittee Chairman William S. Moorhead to Col. George Dalferes,
Office of the Secretary. He handed it to me without reference or comment as to
the fact that chapters 11-18 had been removed from the manual.
Upon inquiry, Colonel Hammond stated that he believed that the decision to
remove the last two sections of the manual had been made by the former Defense
Intelligence Agency Director, General Bennett, when the manual was first re-
quested and delivered for review to the Subcommittee office in Sepember 1971.
Colonel Hammond further stated that he thought he was delivering to us today
for inspection the same portions of the manual which had been delivered to the
Subcommittee in September 1971.
I would like to be apprised of the precise reasons for the removal of these pages
from the documents requested by the Subcommittee Chairman.
We are faced with the drafting of legislation to define the precise extent of in-
formation which can properly be withheld by the Executive from the legislative
branch, and it would be extremely helpful if we can have a candid understand-
ing of the policies and procedures, as well as the reasoning behind such policies
and procedures, governing DoD's response to requests of this kind.
I would like to add that Colonel Hammond's forthright handling of this mat-
ter has met the highest standards, and I in no way mean to criticize any aspect
of DoD's conduct thus far revealed.
A question arose during our review of the manual as to whether or not the
manual or documents brought over by Mr. Rady Johnson in September 1971
included reference to the termination of clandestine agents. It is the recollection
of Mr. Cornish of the Subcommittee staff that the copy of the manual reviewed
in September 1971 contained reference to the terminology "termination with
extreme prejudice," a term used by Mr. Osborn in his testimony before the
Subcommittee.
It is therefore requested that you review your records and determine by the
control number the precise copy of the document inspected in September 1971
to ascertain whether or not such language was included anywhere in this
document.
Sincerely,
PAUL N. McCLosicEY,
Member of Congress.
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., April 28, 1973.
Hon. PAUL N. MCCLOSKEY,
House of Representatives,
Washington, D.C.
DEAR Mn. MCCLOSKEY : Your letter of April 5, 1973 to Vice Admiral dePoix,
Director, Defense Intelligence Agency, concerning the DIA Manual No. 58-11
(DIC03/1) has been referred to me for reply.
In accordance with your request, the Department reviewed its records to
determine whether the document shown to the Subcommittee Chairman on For-
eign Operations and Government Information on September 23, 1971, is the same
document that was furnished you on April 5, 1073. Because of the passage of
time, it is no longer possible to trace the precise copy through the control num-
ber. However, we have no reason to believe that the document shown to Congress-
man Moorhead in 1971 was different from the 'document submitted to you. In
both instances, the Department of Defense representatives who offered these
documents for inspection had been informed that Parts III. and IV. (which cover
Chapters 11-18) had been removed from the Manual. Furthermore, the two
Subcommittee Staff members present when you reviewed the Manual were cog-
nizant of the fact that those sections had been deleted when it was shown to
Congressman Moorhead, as well as the reasons therefor.
Regarding the suggestion that the copy furnished in 1971 referred to "termi-
nation with extreme prejudice," it is believed that this term is attributable
solely to K. Barton Osborn's testimony. The term is not used in the Manual furn-
ished you, and does not appear in Parts III. and IV. of the Manual.
As for the reasons why Parts III. and IV. were not forwarded to the Com-
mittee, it is my understanding that Mr. Rady Johnson, then the Assistant to
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the Secretary for Legislative Affairs, advised Congressman Moorhead at their
meeting on September 23, 1971 that these portions of the Manual had been
omitted because of their "extreme sensitivity," and that Congressman Moorhead
accepted th13 response. In any event, we :nave no record that the Subcommittee
Chairman made any further request following these discussions.
As to the sensitivity of the document, I am informed flint Colonel Ham mond
has already discussed this with you. Upon reviewing the matters with respect
to Congressman Moorhead's 1971 request, I find that thLb decision to delete
Parts III. and IV. was made folloxviag consultation between Mr. Richard Helms,
former Director of the Central Intelligence Agency, and Lieutenant General
Bennett, then Director of the Defense Intelligence Agency, because of the sen-
sivity of_ the material.
During my testimony before the House Subcommittee on Government Opera-
tions and Government Information in May 1972, I pointed out to the Committee
that when it was necessary to provide to the Congress exti emely sensitive ma-
terial, it would be furnished solely lo the Congressional Cornmil tee having pri-
mary jurisdiction over the matter. Your attention is invited to Part 8 of the
Hearings, "U.S. Government Information Policies and Practices?Problems of
Congress in Obtaining Information s!rom the Executive BIT nch" before a Sub-
committee of the Committee on Government Operations, House of Representa-
tives.
Sincerely,
J FRED BITZHARDT.
Mr. MCCLOSKEY. The first is a letter dated July 27 to the Director of
Legislative Liaison of the Air Force from me asking for access to a
study enti thd "Corona Harvest.," concerning the effect of the ae:ial
bombardment of Southeast Asia, which was then puhlished, I believe,
in the Air Force Times.
A response from General Giraudo dated September 3 stated, "I
regret that it would not be productive to provide access to the Corona
Harvest papers."
Executive privilege was not claimed in that case, was it, sir?
Mr. B LIZ No, sir.
Mr. McCuosiur. On what bass, then, did General Gira.udo refuse
to make available to me materials on Corona Harvest?
Mr. 13-uiz [mum. Let me say, pu.sonal]y, I have not discussed this
with General Giraudo.
Mr. McCuoisKEr. Was this ever brought to your attention before
this day?
Mr. RUZIL^,RDT. Not to my knowledge, but let me address that if y DU
will, and when you look at the bill, you will see it will bear out what
I say.
Mr. McCr,csKry. Before you answer, let me try to make my question
precise.
You have indicated that there iii no problem in furnishing informa-
tion to the Congress, because the President has said, that you
?furnish information unless executive privilege is claimed. I cite this
example as a ease where information was not furnished, and executive
privilege Was not claimed. We are somewhat interested in how we
:might remedy this practice.
Mr. BUZHAEDT. Let me say, M:7. McCloskey, if I may address it.
"When the President speaks of furnishing information ta the Congress,
he 18 speaking of Congress as an entity, as a legal institution which
acts through its committees, but not through its individual Members.
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Your request was made as an individual Member for a classified
document. I suspect that the answer would have been different had
it come from a committee through its chairman.
Mr. MoCnosx.Ey. In that situation the Defense Department would
not hesitate to deny information to an individual Congressman, but
if a committee were to request it
Mr. BUZHARDT. Let me say that I hope that we would hesitate
in any case to deny information to an individual Congressman. We
might hesitate, we might in the final analysis do it, but we would
certainly hesitate.
Mr. MCCLOSKEY. Mr. Buzha,rdt, is there an internal document in the .
Defense Department that describes your internal procedures for han-
dling requests from individual Congressmen?
Mr. BUZHARDT. NO, kr. There is not.
Mr. MCCLOSKEY. There is no manual, no standard operating
procedure?
Mr. BIIZHARDT. No, sir. They are handled basically under the Free-
dom of Information Act, as implemented by DOD Directive 5400.7.
However, the response to all congressional inquiries is also given by
the procedural requirements of DOD Directive 5400.7.
Mr. MCCLOSKEY. On a case-by-case basis?
Mr. 1317ZHARDT. Yes, sir.
Mr. MCCLOSKEY. Let me go to the second example. I have a letter
from myself dated May 19, 1971, and responded to by the Assistant
Secretary of Defense, Mr. Dennis J. Doolin, on June 11, 1971, in
which this statement is made: "I have reflected on your various re-
quests for photographs of villages in Laos. It is neither feasible nor
useful to go beyond these steps to furnish extended photography of
Laos."
I had requested specific photographs. Would your answer to the
first example raised be the same; namely, that because this was an in-
dividual Congressman asking for photographs, it was treated differ-
ently than a committee's request?
Mr. BUM-TARDY. Again, I don't recall discussing the case with Mr.
Doolin. I suspect it would, and I suspect the photographs were ac-
tually shown to committees.
Mr. MoCnositvy. The third example, Mr. Buzhardt, is a letter that
I addressed to the head of the Defense Intelligence Agency on April
5, 1973, and the response came from you personally in this case, dated
April 23, 1973.
Here we had requested the Defense Intelligence Manual No.
58-11 referred to as DICOM. In this case, you state in your letter
that it was the decision of the Lieutenant General, then Director of
DIA, and Mr. Richard Helms, former Director of the CIA, that,
because of The sensitivity of the third and fourth_parts of that manual,
fon would furnish?previously this was to the full committee?to Mr.
Moorhead, and subsequently to me, only the first two parts of that
manual.
Here was a request by a chairman of a committee, and yet the deci-
sion was made to give the committee only roughly half of the manual
that was requested. What was the basis for that, sir?
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Mr. B tinTARDT. The basis :la this sirs as to the t WO portions which
were not _provided to the comnittee ?they involved sources and meth-
odsof intelligence collection and the authority to make the determi-
=Oil to aisclose them to tizzgne----is vested by stat ite in the Director
of the Cen,tral Intelligence, It :s not ours to give. It's that simple. We
don't have the authority to n.alieallLit decision.
Mr. MCCLOSKEY. The men in charge of DIA, an Army lieutenant
general, participated in the decision according to your letter.
Mr. Buil-Imam He secured the determination from the Director of
Central Intelligence, because he is the contact point.
Mr. iti4 CLOSKEy. You see, this example would seem to indicate that
the e.:,eentive branch, without claiming executive privilege, is still
not'adherinp- to the policy that Mr. Nixon laid down when he said
that without the claim of executive privilege, the information will be
furnished.
In your letter, you don't refer to any claim of executive privilege on
t 11701, do you?
2-1T7TTEZ1IARDT. No.
Mr. MCCLOSKEY. So no executive privilege was claimed, was it?
Mr. BuzirminT. No, sir.
Mr. MCCLOSKEY. Is it fair to say that the procedure established by
the President was followed in that case?
Mr. 1317::ICARDT. Yes, sir.
We did not have control over lie information. We can only provide
to you, from the Department of Defense, that information that we
control..
Mr. McCLosxEy. I understand that in this particular case, the joint
decision w53 perhaps in the hands of the CIA; but at least the CIA
then, in this particular ease, did not follow the directive laid down by
the President.
Did they?
Mr. BUZ HARDT. I am not sure on that case. We have a problem here,
and this is a very difficult -problem. Let me say, where you have in-
volved the statutory authority of the Director of Central Intelligerce,
I think, it would be better to discuss that in executive session at some
point, and far better with him than with me.
But we do have a peculiar statute involved in this. I think it's an
anomaly, that the protection of this type of informaLon is not vested
in the President of the United States, but in the Director of Central
Intelligence by statute.
, Mr, McCLosKry. Mr. Buzhardt, let me go back to an earlier point
here, if T an, not overstepping my bounds. The DICOM is a Defense
Department manual, it is not a CIA manual. Is that not correct ?
T. I3UzILUiDT. It is, but the in (T7--nation therein r(Tti-FZ's to sources
and methods of intelligence "FoTgaiiiit, and the DireAor of Central
In fact, largts the exclu-
sive authority over this type of information even thoup-h it is handlild
by the D7 Ti7e-Department. re-neTFalleless has overridintr authority.
Mr. MeCt,osiiFY. I want to ike very sure of your answer to this.
Your testimony is that this Army martial, the DICOM 541, which
is used iiiflT .Army 1ntelligence13775b1 to train Amp,- ofheers, is nfit
within yolluower to release toThe 757g,ress by law.
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Is that your testimony?
Mr. BTJZITARDT. Yes, that is my testimony.
Mr. MCCLOSKEY. What is the statute upon which you base that
opinion, sir?
Mr. BUZHARDT. It's in the National Security Act of 1947 as amended.
I forget the exact provision. I would be glac. to supply it. That gives
the Director of Central Intelligence the responsibility to protect in-
formation concerning the sources and methods of U.S. intelligence.
The Director of Central Intelligence has two ohs:j one, as the Di-
rector of CIA; and the other as Director of Central Intelligence. As
Director of Central Intelligence he has responsibilities and authori-
ties across the board with reference to anybody in the Government
'Chat collects information.
One of my assistants-here, just handed me section 102, Mr. Mc-
Closkey.
Mr. MCCLOSKEY. Section 102 of the National Security Act?
Mr. BUZHARDT. Yes, of 1947, as amended.
Mr. McCnosii.ny. I want to ask you this question then, without being
unfair. Perhaps your assistants would want to help on this one.
Is there any other example to your knowledge in which information
within the control of the Department of Defense cannot be released
except by the acquiescence of some other agency of Government?
Mr. BUZHARDT. Except in those cases where the President has
claimed executive privilege, or a case which we have reason to believe
that he might clam executive privilege if asked. In those cases, in
accordance with his memorandum, we have to refer to it.
Mr. MCCLOSKEY. I think I would concur in the executive privilege
question. But aside from executive privilege or information you might
not want to release until such time as you have consulted with the
President to determine if you were going to use executive privilege
and other than this intelligence manual and matters related to the pro-
tection of the intelligence collection, are there any other examples, to
your knowledge, in the law where defense information would be ex-
cluded from release. at a proper request from a congressional commit-
tee because of the exercise of control by an agency other than the De-
partment of Defense?
Mr. BUZHARDT. No, not to my knowledge. There might be occasions
where we think it is a better part of judgment perhaps not to release
it when requested, and we may go back to the committee, and reason
with them or try to, or suggest an alternate means to provide the in-
formation.
Occasionally, we think because of the sensitivity of information it's
much better to discuss with the committee a particular document. The
committees have worked very well in that respect.
Mr. McCLosKEy. Thank you.
I think I have exceeded my time, Mr. Chairman, but I would like to
establish one question if I may. These past examples in which individ-
ual Congressmen have requested information and have received letters
such as the one from General Girando or Mr. Doolin?I will assume
that if those questions are properly submitted by any appropriate
congressional committee in the future' you see no problem at all with
the Defense Department requesting full information and response
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thereto unless executive privilege is claimed pursuant to the Presi-
dent's memorandum.
Is that correct?
Mr. BiT2arAntrr. I would say would see no legal basis to withhold.
I can see a lot, of problems sometimes, Mr. MeClosey, but the prob-
lems have to be ignored if the Congress wants it.
Mr. McCLosKEr. When these problems come up to your office as
General Counsel, you will see that either the memorandum of the Pres-
ident is folhmed or the information is released?
Mr. Buz fIARDT. That is correct.
Mr. Moor: HEAD. Ms. Ahzug?
Ms. Auztro. Thank you.
You indi cate that you object to altering the language of section
(b) (7) to accept only files compiled for specific law enforcement. I
think you say on page 1, that any investigation conducted for law
enforcement purposes has a specific law and a specific purpose in view.
If that is, the case, then the addition of the word "specific" should.
give you no trouble.
Mr. BLZHARDT. Our problem is, we really don't know what the
purpose of the word "specific" is.
Ms, Arizro. But, I'll give you an example. If on the other hand the
fact is that an agency is out compiling data on "suspicious" persons
who were in no way at the time at all suspected of any particular
offenses, then I would trust that you would agree with me that there is
a need for the word "specific."
Mr. Buznmayr. If you gather information in an investigatory role,
I think there is a need for exclusion in order to protect the privacy of
the individuals investigated. Unless there is some law enforcement
purpose, the investigation shouldn't have been conducted in the first
place, if it's a law enforcement type of investigation.
I think, however, that you would not, even when you are doing a
statistical study or a crime study, or should not reveal names of indi-
viduals or reports on the activites of specific individuals ? that you
would not want to be in a posiCon of being forced to release it. It
might be inaccurate. It might be defamatory, even though there were
no grounds for prosecution.
I really don't think that type cf information should be released in
whatever type of investigation it is turned up in.
Ms. ABZI,G, Then you believe the only one that has the freedom of
information is the bureaucrat or the Government agency that decides
to collect a certain amount of information; even if it's not needed for
any specific law enforcement purpose. And that the individual's right
of privacy only goes to a very interesting proposition-- that the Gov-
ernment Is .rotecting the individual right of privacy, where under
our on itntional view it was that the right of privacy of the individ-
ual should not be invaded by Government.
Mr. BrZITARDT. I think we're addressing two different questions. If
you want to talk about limiting the Government's authority to investi-
gate, I think that is the question you are really addressing, and that
is something that is best not addr2ssed under the Freedom of Infor-
mation Act.
But if the Government has a 1)gitimate investigation, I am sure
You know that prior to the evaluation of the information, you got
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all types of allegations. It's the inclination of people during investiga-
tion to often exaggerate, sometimes to settle old scores. There may be
no validity to the information whatsoever. That information should
not be released to the public, because quite frankly, you can't catch
up with it, and it is not responsible to provide that type of informa-
tion in whatever type of investigation.
If your objection is to the scope of the investigative powers of the
Government, I suggest that would be better addressed in some legis-
lative forum other than the Freedom of Information Act, because
we're dealing with another subject. That's what I'm really saying.
Ms. ARTUG. Is that what you're saying in testimony?
Mr. BUZIIARDT. Yes; I think so.
Ms. Ar.zuo. In other words, you feel that there should be no limita-
tion in investigations of any kind, because you don't believe there
should be any right to information, which is specific except for a spe-
cific law enforcement purpose.
Mr. BuzHARDT. Again, I think we are in a semantic problem here.
I do not think that the limitation should be limited to that informa-
tion derived from a specific law enforcement purpose. If you mean by
that, that to be "specific"?and again, we are at a loss to understand
what it precisely means?if you mean that it has to be obtained in the
investigation of a particular person, if you have a prima facie case
to start with?or are concerned about a particular violation, which you
know before the investigation was committed, then I think we are miss-
ing the point.
We might have a situation where we have indications that an agency
of Government is not properly functioning?that there are things
going on, that there's some indication that there's some money missing
perhaps, or that it might be just improper auditing?and we conduct
an investigation. It could be for a specific law enforcement purpose.
It could be for a general law enforcement purpose to make the law
work better in that particular agency.
I don't think that the question of specific purpose is intended to
delineate between that case where we have a great deal of information,
at the start of an investigation very little information to start the, case,
whether it be specific instead of general.
I don't think that should be the dividing; line on whether we should
provide the information derived from the investigation to the public;
because it can be equally misleading regardless of which investigation
you get it in, and that can be equally harmful to the individual in an
unfair way.
MS. ABZUG. What is your suggestion with respect to the issue of
classification? There has been a great deal of evidence before this
committee and other committees that many items have been classified
that really are necessary for public information as well as for the
public as for the Congress.
in your testimony, you object to a court of judicial review as to
whether material should not be made available in camera if it is classi-
fied. You oppose the provision here which seeks to address this question.
Do you believe that Congress has any role whatsoever with respect to
the issue of classification?
Mr. BUZIIARDT. Yes. Although Congress has not assumed a large role
with respect to classification, and that's the point from which we start
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now. In the Atomic Energy Act, the Congress established by statute
the classification system. The remainder of the system is, largely one of
executive order.
As to the in camera proceedings, I think the in camera proceedings,
as a number of judges have said, should be by no means mandatory.
Often the purposes Of ju.Stie,., with fairness to both sides, can be
better served by other means.
I don't know if you are, familiar with the affidavit approach that
has been rsed in many of these cases, where the Government sets forth
the type of information in the affidavit that is contained in the docu-
ment, the criteria that were uE ed in adjudicating the classification of
the document, and the relationships between the criteria and the type
of information. It alinOSt insures a very thorough review has been
made.
This is more workable for the courts in most .2ases. I anticipate
some cases where the courts look at the classified documents in camera,
and I suppose in some cases that is really the only way to get at the
problem. It's disadvantageous in more instances than one.
But an ex parte in camera proceeding, even though the judge reaches
a conclusion in favor of the Government?that the enforcing party
will always, perhaps, have sonic doubt as to whether the judge came
to the right conclusion. They will also have a doubt that if they could
have looked at it, too, they could have convinced the judge otherwise.
So you have a real problem in that respect with the in camera
proceedings.
On the Other hand, if you go into the judgment of the validity of
the classification by the judge, in most cases, you will have to go be-
yond the information in the document and provide additional classi-
fied information in order to give the judge a basis upon which to
make a judgment.
This again gets you into a area of the judge's understanding of
classified information. You can almost get into a school session and
teaching. I think great flexibility should be allowed the courts to make
the determination of what is :accessary in a particular case for the
court to satisfy itself that the classification was, indeed, valid and
done pursuant to the criteria of the Executive order.
Ms. ABZUG. You think great flexibility should be given?
Mr. BUZIIARDT. To the court, :,Tes.
Ms. ABZIIG. You only oppose the amendment then because it sug-
gests that there be a requirement of the courts in the hearing of com-
plaints to force the use agency records to examine the, contents in
camera?
Mr. BUZBARDT. Basically. I. don't think that should be mandatory.
Ms. AliZt7G. Do you believe that Congress is entitled to have any
deciSionmaking with respect to whether or not a. document is
classified ?
Mr. RUZUARDT. I'm sorry. I didn't understand.
Ms. ABZUG. Do you think tha-, Congress or a committee of Congress
has the right to make a determination as to whether or not a docu-
ment is classified properly?
Mr. Btrzamuyr. No, I do not believe a committee of Congress has
the legal authority to , make that judgment. Congressional acts are
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217
by the Congress as a totality under the Constitution, and if I read
the cases properly, I believe the cases hold that Congress cannot dele-
gate its lawmaking function to a committee or a group within the
Congress. I believe Congress can?certainly has the authority to
enact criteria for the classification of documents, to say documents
will be protected, or will not be protected, because of their particular
character.
Certainly, Congress has that authority. i But on a particular docu-
ment, and on a particular judgment, that s not a legislative function.
It's an executive function.
Ms. ABZUG. You testified before to a question asked by Congress-
man McCloskey, that certain information would be furnished, would
be made available to a committee but not to a Member of Congress.
And I take it that behind that is some issue of whether or not
the material involved is classified or relates to some important issue
of national defense and so on. Is that right? Just answer that question.
Mr. BUZHARDT. Generally correct, but might I explain?
Ms. ABZUG. Yes, you may. I am struggling with a very difficult ques-
tion in my mind, and that is that a Member of Congress, who is, as
you know, elected by a great number of people, seems to have very
much less right, according to your testimony, than a bureaucrat ap-
pointed by another bureaucrat and responsible really only to maybe
one person, to determine what the nature of this material is, that a
Congressman requires in connection with his legislative responsi-
bility, or even an oversight responsibility; that he as a member of a
committee might wish to propose.
I really find this a great conflict in my mind as to how this position
is sustainable.
Mr. BUZITARDT. I think it is by the very character of the two
branches; that one has a legislative function and one has an executive
function. Might I say, that if you look at it in a different way?in the
executive branch you will find people who have executive functions
with respect to a relatively narrow range of Government activtiesz of
which they have very great responsibilities and decisionmaking
authorities.
On the other hand, members of the legislative branch, acting col-
lectively, have very few limitations at all in scope of authority,
except those in the Constitution. And that's the way this system of gov-
ernment was devised, so that you in the legislative branch do not
have executive or judicial functions.
On the other hand, if you're talking about it with regards to a
decision on the execution of the laws?if you are on the other hand
talkinc, about information?then the Congress does have the right,
acting through the mechanism which the Congress creates, to the in-
formation on which it bases its legislative decision.
MS. ABZUG. The Congress has a right to have information on which
it can act, and nobody in the executive branch under our constitutional
framework and our concept of separation of powers, has a right to
say that this is an executive power; that the executive has a right to
decide that a certain bit of information cannot be made available to a
Member of Congress, that has to act on in order to be able to fulfill
his or her function as a legislator.
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am fascinated as to your concept of executive power, and I realize
the concept of executive power is a very exaggerated concept at the
moment, which seems--
Mr. BUZIIAIWT. I don't have a very exaggerated concept of it.
Ms. Anzto. You are suggesting that information---a member, who
is a member of the executive branch of Government., can simply decide
that this is simply executive ground, where it's not in anybody's realm.
It's in the realm essentially of the information, or the realm of the peo-
ple or Members of -Congress to know, or to inform themselves to be able
to act on it?on the people that they represent.
This information doesn't belong to the executive branch of Govern-
ment, or a bureaucrat who decides to make it unavailable to anybody
else. It's very contrary to our whole concept of Government since you
mentioned the Constitution.
Mr. BrZHARDT. I think you either misunderstand me, or we're run-
ning on different tracks.
Ms. ABZUG. We seem to be doing that, that is running on different
tracks.
Mr. BrznAnnr. We have no lawmaking ability in the executive
branch. We must follow the laws made by the Congress and the Presi-
dent. We do so. We provide information to the Congress as requested
through the means established by the Congress, mainly its committees.
When dealing with anyone but the Congress as an institution, we
follow the laws, for instance, of the Freedom of Information Act with
respect to any of it.
Ms. ABZ.e-G. We understand that. We realize that tliere has been some
difficulty in getting information both for the individual and for the
Congress. It's a question of whether there is really any legal authority.
That has to be changed.
For example, I assume that you believe that Members of Congress do
not have the right to see the Pentagon papers, that clearly contain
material necessary and vital to a legislative role under the Constitu-
tion. But some other people, having nothing to do with it either in
executing the law or carrying out the law, were able to see it. How do
you expalin that?
Mr. BUZI1ARDT. That's correct, too, but. let me say that 110 one except
the President has this authority to make such a determination. Nobody
in the Department of Defense had that authority under his direction to
make that determination. It was something that was peculiar, and had
to be a Presidential decision.
Incidentally, he had not made the decision at the time the Pentagon
papers were released. It was under consideration.
Ms. ABZU44. What if we wanted to find out in conm etion with a law
that is passed concerning our involvement in the war in Cambodia,
whether there are any ground trcops there, and we request you to give
as some information as to whether three are ground troops at such and
such a place.
And the answer comes back, this is information that is necessary :For
the national defense.
Mr. Buziriutur. The answer won tdn't come back that it was necessary.
? Ms. ABZUG. What would be the answer ?
Mr. BerzeITARDT. If you asked and it was classified, it might or might
not be provided to you because ae an individual it would be a deter-
mination under the Freedom of Information Act.
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MS. ABZUG. I didn't get that.
Mr. BUZITARDT. If you requested as an individual, a Member of
Congress, it would be a decision under the Freedom of Information
AceIf it were requested by a committee, and I'm quite up to date on
this, I testified all morning this morning, answering questions in the
Armed Services Committee on the resolution in Cambodia, and I
answered every question.
Ms. ABZUG. Now, the specific statute that provides that seven mem-
bers can request information, the Government Operations Committee
is supposed to get that information.
Mr. BUZITARDT. If such a statute were on the books I'd have to see
it beforehand. If it were on the books, it would be a new law.
Ms. ABZUG. I am referring to a specific statute, and that statute is
section 2951, title 5. Let's assume there is such a statute, and seven
members of the Government Operations Committee asked for infor-
mation as to whether or not there were ground troops in Cambodia.
Mr. BUZHARDT. I'd be glad to answer the question. There are none.
MS. ABZUG. I Will make a note of that.
Mr. MoCzosic_Ey. Will you yield?
Ms. Amu-G. I'd be glad to yield for the moment.
Mr. MCCLOSKEY. You would consider a ground troop a man who
directs air strikes from the ground, -would you not?
Mr. BuniAnnT. He would not be a ground combat force, no.
Mr. McaosKEY. He would not be a member of a ground troop by
that definition?
Mr. BUZHARDT. No.
Mr. McCwsKEY. Thank you.
Ms. ABZUG. Supposing that information, using this as an illustra-
tion' were classified, and the reason these seven members asked this
question is because there is a law in the House or in the Senate or in
the Congress that says we should not be involved in any military
activity in Cambodia.
My question is you may regard this information as classified. I am
suggesting that it's necessary for us to have that information in con-
nection with our legislative responsibility. -
And where do you find your executive power greater than that of
the right of Congress to know?
Mr. BITZHARDT. Let me say in answer to your question, it's in two
parts; one is the provision of the information. I assume such a statute
does exist, and if such a request were made by seven members, we
would provide the information. If it were classified, we would provide
it on a classified basis. Because of the fact that you wanted to know it
would not be determinative of the issue of whether or not that _in-
formation was necessary to protect in the interest of national security.
Using this specific example?whether we have ground troops in
Cambodia?my own personal opinion would be that there are no
grounds for classifying that answer. But on another question, a factual
question, the answer might be that it might be necessary to protect
the information.
If you ask where some flyer got shot down yesterday and we were
conducting a search mission, it would be classified until we could get
to him. It would be provided on a classified basis; and the fact that
you wanted to know that information would not change the facts
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of whether or not it was necessary to protect what would be provided
on a classified basis.
So when we are dealing with Congress, as contrasted to when we are
dealing with the general public under the Freedom of Information
Act and the exemptions of classification?when we are dealing with
Congress it does not enter into it, The information would be provided,
if possible, on an unclassified basis. If that is not possible, it would
be provided on a classified basis, And it is frequent.
Ms. ABZUG. Let me ask another question in connection with that.
That is, if he. information requested is classified and you are pre-
pared to provide it as classified in that fashion, where do you inter-
change this question of availability, of it not being available to you
because of reasons of national defense?
In your department, in your experience, do you know how that has
operated; because there have been certain instances where informa-
tion has been requested. At first it has been said to be classified and
then unclassified. At times it has been suggested that that is not avail-
able because it is a matter of national defense.
Is there any measure at which you determine that, when something
is classified or something should not be made available because it would
be injurious to national defense; or is it the same thing?
Mr. BUZ !TARDY. It should not he classified unless its release would
be potentially dangerous to the national defense, or harm the national
defense in the first place. Then, as to the determination of when or
where to release it, if we are dealing under the Freedom of Informa-
tion Act with a request from the public, then, if the information cannot
be declassified, under the authorty of the law, we do not disclose it
under the Freedom of Information Act exemption.
If we are dealing with the Congress, the Freedom of Information
Act does not apply. None of the exemptions there provide us authority
to withhold :information from Congress. So the question then is pro-
viding it to the Congress, when it is classified, and providing it to them
on a classified basis.
In other words, advising them that it is so classified, and the
reasons therefor.
Ms. ABZUG. Thank you, Mr. Chairman.
Mr. MOORTTEAD. Mr. Gude.
Mr. GUDE Thank you, Mr. Chairman.
I was wondering in how many instances has the Department of De-
fense gone to court in the last several years in regard to security
matters?
Mr. RIME:AMT. I do not know offhand, but let me see if I can find if
the assistant counsel has any idea. [Pause.]
Mr. Gude, we can only recall one case where it has gone to court
recently, where material was denied on the grounds of classification
from the Department of Defense.
Mr. GUDE. Was this covering or 4 years or just within the last
year?
Mr. Byrn-IA:arc. The last year or so.
Mr. GUDE. The caseload is not very heavy then.
Mr. BUZHARDT. Not on the grounds of classification.
Mr. GUDE. :E was just wondering. In your testimony on page 16, you
said that you were concerned about, the establishment of a Freedom of
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221
InformationsCommission because you thought it was minecessa,ry and
likely to impose additional workloads that would not resolve the more
important disagreements on proper interpretations of the law.
Mr. BUZHARDT. Perhaps I misunderstood your earlier question. I
-filo-Light you had asked how many cases had gone to cotirt where the
denial had been on the basis of classification.
There have been more cases in the Department of Defense than that
that have gone to court on appeal, but on other grounds.
Mr. Gra. How many?
What is the number there?
Mr. BtrzHAulyr. I would have to supply it for the record. The De-
partment of Defense at any given time is involved in about 5,000
pieces of litigation. To sort these out into different categories, I cannot
do offhand.
I would guess it is about half a dozen cases in the last year.
Mr. GUDE. A half a dozen cases in the last year ?
Mr. BUZHARDT. Yes.
Mr. GUDE. You honestly think that the establishment of a commis-
sion could impose an additional worldoad .on the courts or on the
Department of Defense?
Mr. BUZHARDT. I think it would impose no additional workload on
the courts. It would on the agencies generally. Each one of these cases
does take quite a bit of work. It is not a short time thing.
Mr. Gtmr. You mean that because the citizen now has to go to court,
whereas with this Commission it would probably be easier to obtain
Formation, that this could be a hurdle ?
MT. BUZHARDT. A real problem with the Commission?I do not
have any great problem with it?I think the probabilities are that it
would create another bureaucracy level to go through, would create
an additional workload in dealing with it; and I doubt sincerely if it
would result in substantially fewer cases for the courts, or in greater
information released to the public.
Mr. GUDE. With the chairman's permission I wish we could have
1;he information on the number of cases since 1968, on a yearly basis, in
order to determine how substantial the number of cases are.
Mr. BuzititunT. I would be glad to provide that. As I .noted earlier
in my testimony, I use that to an extent to . gage how well we are
doing. And the fact that we do not have a greater number of cases, and
the fact that we have a very good win-loss recOrd?I do not recall one
that we have lost?tells me that we are doing a. pretty fair job.
[The following statement was submitted for the record:]
Since July 4, 1967, there have been 31 cases involving the Department of
Defense. Of these, three have concerned records of the Office a the Secretary
of Defense for Army records, 10 Navy records, and 14 Air Force records. We
do not have available yearly breakdowns for these cases,
Mr. Gum. I would hope that would be the case, and that you need not
look at 'the establishment of a freedom of information commission as
some type of adversary that would be harassing you, but actually
would probably assist in clarifying the lines as far as information that
should be made available, and information that should be retained.
I would just like to comment on the gentlewoman from New York's
interrogatipn regarding the availability of in You testified
last year regarding weather modification in Vietnam.
96 576 73 15
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Both Senator Cranston and I asked for this information repeatedly
and were denied it as individual Members of Congress. We had quite
a dialog about this. Then, Senator Pell of Rhode Island, who is the
chairman of the Subcommittee on Oceans and International Environ-
ment, also asked for information about weather modification; and it
was denied to him.
And I think the rationale of the Department at that time was that
this information should only be given to the commitee of primary re-
sponsibility. The question of weather modification is one of the most
i
sensitive things n the scientific field. In its concern with this area,
the scientists in this country, meteorologists and environmental-
ists.und scientists that are very knowledgeable in this area around the
world, are very concerned about the developments in this area. And
yet, this information was denied to Senator Pell; and he certainly was
entitled to it in my opinion as were Senator Cranston and myself. And
we continue to be entitled to it.
Thank you, Mr. Chairman.
Mr. MOORHEAD. Thank you, Mr. Gude.
Mr. McCloskey, do you have further questions?
Mr. McCnosKry. I just have one or two, Mr. Chairman, if I may.
That, term "Committee of primary responsibility" appears in your let-
ter of May, Mr. Buzhardt.
Mr. BUZAARDT. It possibly does.
Mr. MCCLOSKEY. You would consider this Subcommittee on Foreign
Operations and Government Information to be the committee of pri-
mary responsibility on learning how Mr. Friedheim's operation runs,
would you not? Or would you place that under Armed Services?
Mr. BuzaAnnr. I would consider both would have a very direct in-
terest--the Armed Services Committee, obviously, in the entire opera-
tion of the Department; this committee, and the Appropriation Com-
mittee, also this committee with respect to Mr. Friedheim's particular
types of activities, as a part of the Department of Defense.
Mr. McCeosiiEr. I do not mean to belabor this point, but I want to
clarify this point. Your previous answer to me was explicit, that if a
committee of jurisdiction asks for information, you would furnish it.
You do not mean to imply that this would be only to the committee
of primary responsibility?
Mr. BUZEARDT. No, sir.
Mr. McCLOSKEY. The other thing that I wanted to ask Mr. Fried-
helm refers to an answer that was given to the gentlewoman from New
York.
We had some problem with the statement that the President made
back on March 7, 1970, Mr. Friedheinn, where he said no ground troops
stationed in Laos were in combat operations, and then we had aLi-
brary of Congress report 3 months later that some Special Forces
teams had stilered casualties. You may recall that situation.
Do you consider Special Forces teams as ground combat forces?
Mr. BUZ-HARDT. I do not.
Mr. McCLostu-r. Mr. Friedheim, would you comment On this?
Mr. FRIEDHEIM. I do not recall the specific instance. There were at
the time that the President made that statement no U.S. ground coin at
troops in Laos. There are still none.
Mr. MCCLOSKEY. There were Special Forces teams that suffered
casualties at the time he made that statement, were there not?
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Mr. Fitnniimm. At the time that he made that statement, we do go
back and point out that there had been some casualties prior to that
time, most of them -under the previous administration.
Mr. MCCLOSKEY. Of ground combat troops, is that not correct ?
Mr. FRIEDHEIM. That is correct. As I recall, we did discuss that. Mr.
Ziegler discussed that at some length at a White House briefing.
Mr. MCCLOSKEY. It was later conceded that the President's state-
ment had been in error.
Mr. FR1E1)71E111'1. I do not recall that, Mr. McCloskey.
Mr. MCCLOSKEY. I want to make sure I understand this answer. The
statement that there ware no ground combat troops in Cambodia in-
cludes the fact that there are no Special Forces teams in Cambodia.
Mr. RUZITARDT. There are no special forces teams in Cambodia. If
you are interested in that specific question, I suggest you read the
House Armed Services transcript from this morning. There we detail
by grade and -duty every American military man in Cambodia, and
some of the diplomatic ones, too.
Mr. MCCLOSKEY. Thank you. One further question.
Mr. BUZITARDT. That was an open session, I might say.
Mr. McaosiiEY. I appreciate your candid and forthright testimony
this afternoon. I want to relate to you a circumstance that occurred and
ask how this fits up in your testimony.
In 1971 when we asked for the photographs of the villages in Laos,
they were ultimately furnished to a committee of the Armed Services
meeting in executive session. I was asked to sit in on that committee
session, either late September or October 1971.
When the Air Force officers completed their briefings on the bomb-
ing practices that were then taking place in Laos, the question was
raised whether we might see the photographs of the villages that we
had requested, some 196 villages. The response of the Air Force officer
to the chairman and to members of the committee present was that the
photographs were so sensitive that he would hand the photographs in
a sealed envelope to the chairman, and leave it up to the chairman as
to which members of his committee might thereafter be permitted
to see the photographs.
That does not seem to fit into any of the categories you have
mentioned.
Mr. Buzumayr. If I understand the rules of most committees, the
chairman's actions are governed by the votes of the committee. I
think the committee could have made a motion when it was delivered
officially to the chairman.
We are at somewhat of a disadvantage. At many times we do have
information upon which people's lives depend. This does concern us.
Sometimes it may overconcern us. But it is hard to imagine?I am
sure that he was being very solicitous of the protection of individuals
in that case.
Mr. MCCLOSKEY. Here is my question, Mr. Buzhardt. Is there a third
category, in addition to requests from committees for information,
where you would furnish it without hesitation; and requests from
individuals, where you might or might not furnish it, depending on a
case by case determination, is there a third category where at the re-
quest of a committee, you would furnish the information, but only to
the chairman of the committee?
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224
Mr. BUZITARDT. No, sir. New, we would deliver to the chairman as
the representative of the committee. That is the normal practice. How
it is handled in the committee after that is not our determination.
Mr, MoCeosKny. The reason I asked the question is that here was a
case where there were perhaps 20 committee members present; and the
colonel who had the photographs in his possession was obviously
prepared to deliver them to the chairman but was not prepared to
make them available to the. other 20 Members of the Congress that
were present, even though this was an executive session.
I take it from your answer that there is no directive or
Mr. BrZHARDT. No. There is not. Let me imagine a case of that type.
It could happen, as a very practical matter, if we had something ex-
tremely sensitive. It is even conceivable to me that we would ask that
chairman to elicit from his committee?we would make the request
whether or not they would not be willing to establish among them-
selves special rules for the protection of the information in their
group, if it were that sensitive.
Mr. MCCLOSKEY. Mr. Buzhardt, may I ask you, did your office par-
ticipate in the preparation of the bills now before the Judiciary Com-
mittee in the House and Senate, tightening up the criminal laws relat-
ing to the release of classified information?
I have particular reference to the sections which would make it a
crime to disclose classified information, and remove any defense if
the matter was improperly classified.
Mr. 13-CYHARDT. We participated in drafts, as I recall. We did com-
ment in draft about 2 years ago when there was a draft revision of the
code. We commented on that. We commented on the Justice Depart-
ment draft., to the best of my recollection. I do not remember what our
specific comments were section by section.
Mr. MCCLOSKEY. The nature of your testimony indicates that the
Defense Department has fears that. one Congressman might release
information of a sensitive native but another one might not. Clearly,
you have no concern about the chairman of the Armed Services Com-
mittee, but you might have concern about members of his committee
releasing information.
I would like to ask, in view of the fact that you have participated in
the preparetion of legislation to control the dissemination of informa-
tion and that this legislation has been presented to the Judiciary Com-
mittee, that in effect would make it a crime for an individual Congress-
man to receive information that was unauthorized: why is there a de-
fense in here, if it is delivered to a committee of the Congress, but no
defense if it is delivered to an individual Member of Congress? Your
office participated in the preparation of this legislation. I wonder if
you might, with the staff available to you, give us the precise statutory
suggestion that we might enact into law if we saw fit, which would
protect the Defense Departmene by eliciting from Congress require-
ments on or r part that we treat it as classified information.
All of us are accustomed to receiving secret, top secret, and confi-
dential information. We try to treat it, I think, on the same basis that
you do.
But if your concern is that individual Members of Congress might
not be trustworthy?and there lave been enough examples of Mem-
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bers of Congress going to jail lately that I think you have a right to
have that concern.
Could you give us the statutory recommendation or a recommenda-
tion for our own rules to apply when we receive classified informa-
tion from you?
Mr. BUZHARDT. I would be glad to attempt to at least try.
[The following statement was submitted:]
I do not believe that the enactment of a specific statute to meet the problem
you have addressed is the answer. Instead, I believe that the Congress has au-
thority under its own rules to establish the conditions under which classified
information will be safeguarded, and under which Congressional Committees may
authorize access to that information. An example of this may be found in the
"Rules Governing Procedure," Committee on Armed Services, Ninety-Third Con-
gress, and to the "Organization Meeting" of that Committee, February 27, 1973
[H.A.S.C. No. 93-3].
Mr. MCCLOSKEY. I am disturbed about this proposed criminal law
to make it a crime for an individual to give classified information to a
Member of Congress. If we have gone that far under our system of
government where somebody, telling a Member of Congress truthful
information, is susceptible of being guilty of a crime, we are in real
trouble.
Thank you.
Mr. MOORHEAD. Mr. Phillips.
Mr. PH-Eu.11,s. Thank you, Mr. Chairman.
Would it be appropriate to include in the record, mentioned during
the colloquy between Ms. Abzug and Mr. Iluzhardt, the text of section
2954 in title 5?
Mr. MOORHEAD. That would be appropriate. Without objection, it is
so ordered.
[The text follows:]
? 2954. INFORMATION TO COMMITTEES OF CONGRESS ON REQUEST
An Executive agency, on request of the Committee on Government Operations
a the House of Representatives, or of any seven members thereof, or on request
of the Committee on Government Operations of the Senate, or any five members
thereof, shall submit any information requested of it relating to any matter
within the jurisdiction of the committee. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 413.
HISTORICAL AND REVISION NOTES
=VISORS' NOTES
Derivation: United States Code, 5 U.S.C. 105a
Emplanatory Notes
The words "Executive agency" are substituted for "executive department and
independent establishment" in view of the definition of "Executive agency" in
section 105.
The words "Committee on Government Operations of the House of Representa-
tives" are substituted for "Committee on Expenditures in the Executive Depart-
ments of the House of Representatives" on authority of 11.Res. 647 of the 82d
Congress, adopted July 3, 1952.
Revised Statutes and Statutes at Large
May 29, 1928, ch. 901, ? 2, 45 Stat. 906.
The words "Committee on Government Operations of the Senate" are sub-
stituted for "Committee on Expenditures in the Executive Departments of the
Senate" on authority of S.Res. 280 of the 82d Congress, adopted Mar. 3, 1952.
Standard changes are made to conform with the definitions applicable and the
style of this title as outlined in the preface to the report.
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Mr. Blizaranuer. I might say in that connection I never doubted there
was such a statute that existed. I never had a request from seven mem-
hers under that particular statute.
Mr. Mammal). I do not think Ms. Abzug took that interpretation.
Mr. Primars. In June of 1971, seven members of this_subcommittee
signed such a request addresaed to 'Secretary Laird, for a set ,of the
"Pentagon Papers." That request was not acted upon, because a com-
plete set was subsequently delivered to the Speaker of the House and
deposited in the Armed Services Committee.
So that request was never acted upon, but a formal request was made
at that time, citing section 2954; perhaps someone -2Ise handled it.
Mr. Bynum-Yr. Somehow it must have gotten loaf in the. rather
tumultuous events of that perical.
Mr. Prinaars. In response to a subcommittee request for comments
on the Freedom of Information At report that was adopted by the
committee last September (H. Rept. 92-1419), you responded, Mr.
Buzhardt, in a letter dated November 9,1972. You said that you would
ask the Assistant Secretary of Defense on Public Ale irs for advice,
on "whether additional participation in Freedom of In formation Act
decisions by Public Information officers -would be practical and useful."
Since Mr. Friedheim is now sitting there with you, could you tell
the subcommittee whether or not you asked him for such advice?
Mr. BITZHARDT. Yes. I did. We discussed it at length on the methods
of handling Freedom of Information. Act requests, and how to get
as useful an input from Publie Information officers as possible..
In our own case, we ha Ve consulted with him ald in a few cases
it has reached the Office of the Secretary of lDfense. He has taken
the position of suggesting more participation throughout the ser7ices
by the Public Information officers in this activity.
And natarally, when these requests come in, they almost have to
be forwarded to the people that have the records in their custody.
This is the initial hangup. The biggest delay in providing informa-
tion to people who request it is finding the records.
We talk about the few exceptional cases where perhaps the in-
-formation cannot be furnished, or some borderline case that has to
be considered carefully. But the biggest problem is not that at all.
The problem is a mechanical one of getting the request to the person
that knows where to find whatever it is that is requested, and getting
the information, and then producing it so it can le evaluated.
I would say that a majority of requests for information?those
that are cited under the Freedom of Information Act?comes
through Public Information c and Public Affairs officers of the De-
partment. Those are the persons from whom the contact comes. That
as where the media goes. That is where most of the requests originate.
And they come in through those Public Affairs officers in the initial
instance. Then they have to be sent to the people that, handle the sub-
stantive 'words for location, and finding the information.
Mr. PHILLIPS. With regard to the advice that Mr. Friedheim fur-
nished, has that been incorporated in your new information directive
that was issued a few months ago?
Mr. BuZ/TAEDT. I think it was ir the old and the new one. I think it is
in both.
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Mr. PHILLIPS Then it was not any new advice? Jt was just a restate-
ment of previous operating rules?
Mr. BITZHARDT. That is right. The Public Affairs Office should be
consulted to the maximum extent feasible. And our discussions, I
think, relate more to the mechanics of how these officers might be more
useful, than on whether there is a policy matter in which they should
become involved in.
Another problem is how to best involve them mechanically.
Mr. PHILLIPS. On page 4 of your statement, in discussing the pro-
posed revision of exemption (b) (7) dealing with law enforcement
records and files, you say that "you frankly do not know what sup-
posed abuse under the present language of this 7th exemption that this
limitation is intended to remedy."
I would call your attention to pages 23 through 28 of House Re-
port 92-1419, in which we enumerate six or eight specific cases that do
involve law enforcement activities in a number of different depart-
ments and agencies of Government, which are a handful of many such
cases that have come to the attention of the subcommittee, and which
we explored at some length during our hearings last year.
So that we believe that the evidence uncovered during those investi-
gatory hearings clearly makes a case for a strengthening of language
of (b) (7).
I do not know whether you had a chance to look at any of those
cases. They do not involve the Department of Defense that I know of,
at least the ones that are in the report.
Mr. Buziiiinur. Frankly, I did not recognize these as investigatory
records, quite frankly. I really did not perceive them as being of that
character. They are not really what we think of as investigations.
Mr. PHILLIPS There are other cases that have been called to our
attention involving the Department of Defense that we did not explore
in our hearings last year.
On page 10 you discuss the affidavit approach to the courts in cases
involving classified information. Of course, our subcommittee has
spent many years investigating the operation of the Executive order
classification system. You were one of our witnesses last year, of
course.
Any affidavit that states the validity of a particular classification
to a court is, of course predicated on some credibility in the system.
Frankly, the overwhelming evidence that we have obtained in our
hearing's indicates that most, if not all, of the vast majority of docu-
ments that are classified are overclassified. So I do not see how any
court could put any great weight on an affidavit from a self-serving
bureaucrat that classified the information merely stating that it is
classified properly.
What would we expect him to say? That it was not classified
properly?
Mr. BUZITARDT. I think quite frankly that they deserve more credi-
bility than your assessment of the classification system. I do not think
it is that bad.
We do have abuses in the classification system. We have humans ad-
ministering it. None of us are perfect. We certainly have differences
of judgment. But overclassification is no longer that rampant.
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As far as, credibility is concerned? I never felt my credibility was in
question when I made an affidavit to court, as an officer of the court..
To tlie.b4t9f .my knowledge,. I did not know any court that questioned'
rny,,cretlikil4y. The facts have to speak for thenaselvs. And if the facts
are inaccurate, the forms that the court requires for the affidavit and
404 amount; of information. they require' would usually reveal the,
lack of credibility of the statement. They do not act on just an Esser-
tion. The affidavits do not 120110411 au,assertim:011 claasifieation. They
go into some detail.
Pi awns. It is adittle diva-tubing when we hear a witness testify
at-the ,Pentagon Papers trial. jt.st a few daysago?the gentleman who
elas!silied the: Pentagon Papers as "Top Secret-Sensitive"----that his
training for classification authority consisted. of a training film in
which he was warned to be aNvore of "over-friendly Russian.blondes.".
We do not think that that gives too much credibility to the system.
Besi,d(s, we have sworn testimony before this committee by experts,
whohave handled ,cla.ssified, information all their lives, that anywhere
from 90 to 991/2 percent of. he documents that they have come in con-
tact with were not really necessary to be classified at all.
Mr. Buz FiAtuyr. I; question the qualifications of your witnesses if they
so testified. I see quite a few Classified documents. On occasion I see-
some of them that are overclassified. I see some that are. classified. im-
properly. At the same time, it is not a substantial portion of the docu-
ments that I see by any means.
I think that you have some people who might work in the security
system, who think that they are administering, the regulations, who,
probably do not know enough :o know whether they are or they are
not properly classified; and the3- are making judgments they are really
not qualified to make.
PnaaaPs. Is that not one of the basic reasons for the failure of
Executlye Order 10501? Is that not why President Nixon replaced
it with anew order last year?
Mr. RETznannT. The basic reason was to try to improve its operation.
Yes. That there. is always room for improvement; exen under the new
Executive order we are constantly trying to find ways to better admin-
ister the. system so we can improve it.
As I say, I do see documents improperly classified from time to,
time. Because I have worked on the Executive order and had respon?
sibilities in this area, perhaps I am peculiarly conscious of these things.
Mr. Purmaps. When you see such a misclassification, what action
do you take?
Mr. BITZIIARDT. I recall a number of them when th,.3, have been sent
to- me for coordination, writing on the bottom and sending them back
-
refusing coordination, and asking what is the authority for so classi-
fying this document.
Mr. num.:EPS. Then he reviews it, the classification. marking?
Mr. Btrzunnor. And I will say come back to me and tell me the rea-
sons why the document is so classified.
Mr. PHILLIPS. I wish there were more people over there doing this
type of thing.
Mr. BuzirAnnr. I believe there are many people doing this kind of -
thing.
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229
Mr. PHILLIPS. One additional question, Mr. Chairman.
Mr. Friedheim, does your office or any other office in the Pentagon
.produce "canned" articles or "canned" editorials for use in newspapers
.around the country to support the Pentagon's point of view?
Mr. FRIEDEIEI1VI. NO sir.
Mr. Pnmurs. You do not?
Mr. FRIEDHEIM. NO, Sir.
Mr. Pnit,Lirs. The reason I asked, I saw an editorial recently in a
Joplin, Mo., newspaper attacking the chairman of this subcommittee
for his criticism of the abuses of executive privilege by the President
and it occurred to me that you had once worked as a reporter for a
Joplin. Mo., newspaper. I just wondered if there was any connection?
Mr. 'FRIEDITE1111. I once wrote editorials for that newspaper. I did
not write that one, sir.
Mr. Pniturs. Thank you.
Mr. MCCLOSKEY [presiding]. Any other questions?
Mr. KRONFELD. Would the Department of Defense oppose a pro-
vision in this legislation which did not make in camera review manda-
tory, but would leave it up to the court?as a matter of discretion.
Mr. BITZTIARDT. Speaking personally?and I really have not re-
searched the question thoroughly?I do not think I would. I think
the court now, under the present law, does on occasion actually view
classified documents in camera. They are in camera when they examine
them.
So I think you do not need a change in the law if that is your objec-
tive. I do not think there is any need for it, because I think the court
exercises that power in some cases now.
I believe that they do not have to in every case. They are not
mandated to do that. I do not consider it necessary.
Mr. KRONFELD. It is my interpretation of EPA v. Mimic that under
the present language in the Freedom of Information Act the courts
. are prohibited from going into the body of the documents and examin-
ing it under section (b) (1) of the act. That is what I think the amend-
ment in 5425 is trying to reach, not that the courts have to in every
case, but they would be given the option if they so wished.
Mr. BUZIIARDT. Perhaps that was the situation before Mink.
Mr. KRONFELD. So there would be no objection to the language that
would insure that the courts would have the option of going into the
body of the document enacted under subsection (b) (1) ?
Mr. BuznARDT. I do not perceive any presently. I think the courts
will still use their best judgment. I think that is very much a matter
of last resort in the more complicated cases.
Mr. KRONFELD. Thank you.
Mr. MCCLOSKEY. If there are no further questions, the committee
will be adjourned until the next session of these hearings on Thursday,
May 10, at 10 a.m. in this room, to hear public witnesses on information
amendments to the Freedom of Information Act.
Thank you.
[Whereupon at 4:15 p.m., the subcommittee adjonrned, to recon-
Nene at 10 a.m.:Thursday, May 10, 1073.]
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THE FREEDOM OF INFORMATION ACT
THURSDAY, MAY 10, 1973
HOUSE OF REPRESENTATIVES,
FOREIGN OPERATIONS AND
GOVERNMENT INFORMATION SUBCOMMITTEE
OF TI-IE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D .0 .
The subcommittee met, pursuant to recess, at 10:15 a.m. in room
2154, Rayburn House Office Building, Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present: Representatives William S. Moorhead, Paul N. McCloskey,
Jr., Gilbert Gude and Ralph S. Regula.
Also present: William G. Phillips, staff director; Norman G. Cor-
nish, deputy staff director; L. James Kronfeld, counsel;, and William
H. Copenhaver, minority professional staff, Committee on Govern-
ment Operations.
Mr. MOORTIEAD. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
On this fourth day of hearings on amendments to the freedom of
information law which, many of us hope, will make it a more effective
freedom of the press law, we will hear testimony from some of the
organizations of the press which share a part of the credit for creat-
ing the original law. And we will hear from representatives of the
other groups which worked on the original legislation or have studied
the administrative problems posed by the law.
Over the years, various representatives of Sigma Delta Chi?the
national professional journalism association?have worked with this
subcommittee to help solve the problems of Government secrecy. To-
day, Courtney R. Sheldon of the Christian Science Monitor, chairman
of the SDX Freedom of Information Committee' will testify on the
amendments which have been introduced to make the Freedom of In-
formation law a more effective tool for the press to dig out Govern-
ment information.
We will also hear testimony from two representatives of the Na-
tional Newspaper Association, an organization which has been 'involved
in the fight against Government secrecy ever since it began. Mr. E. W.
Lampson, president of the Ohio Newspaper Association, will represent
the National Newspaper Association, along with Ted Serrill, execu-
tive vice president of the NNA, who has been one of the longest and
strongest supporters of this subcommittee's work.
John Shattuck, staff counsel of the American Civil Liberties Union,
will testify later on the legislation, as will Antonin Scalia, chairman
of the Administrative Conference of the United States.
(231)
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I now yield to my colleague, Mr. Regula, who may want to welcome
one, or more witnesses because of previous acquaintance with them.
Mr. Rno-c-LA. Thank you, Mr. Chairman.
On behalf of the minority party, of which through some quirk of
fate I got, to be ranking today, and that is an unusual thing for a fresh-
man, fern pleased to welcome all of the witnesses, but especially Ab
Lampson from Ohio. Ab and I served 8 years in the Ohio General
Assembly together, and he had a number of years before I got there.
How many did you have as a total, Ab?
Mr. LAMPSON. Ten.
Mr. 1-i,EGITL.A. Ten years in the general assembly.
Mr. MootatEAD. Won't you gentlemen come forward to the witness
table? Why don't you all conic forward.
Mr. RE4417I,A. Ab I am sure can bring to us some excellent help and
guidance on this proposed legislation for the reason that he had a 'very
distinguished career in the Ohio Legislature. He was chairman of the
ways and means committee which, of course, we recognize is one of
the vital responsibilities in the legislative process. And we could use
some of your expertise here? AL, on not only freedom of information
but on ho w .to provide the necessary funds. I know that you labored
through an income tax law in the State of Ohio just recently, and bear
the sears to prove it. But, Ab, I am very pleased that you are here.
I might say, Mr. Chairman, I have a radio taping at 10:30, so if I
have to leave, it is not out of any lack of respect for our witnesses.
We are all so happy to see Mrs. Lampson here and hope that she is
enjoying the city. Ab can relax because she is here and not down at
Gariinkel's. But, we are especially pleased, and I am particularly, that
my colleague from Ohio is going to appear before our committee.
Mr? LAMPSON. Thank you.
Mr. MoonnEAD. Mr. Sheldon, you are first on the list, but maybe in
view of this relationship you would yield to Mr. Lampson. Would that
be all right with you, sir?
Mr. SHELDON. It certainly would.
Mr. M0011 READ. That would give Mr. Regula a chance to pose ques-
tions to his former colleague.
Mr. REGITLA. Thank you, Mr. Chairman.
Mr. MooRHEAD. It would be a rare turnabout really.
Would you proceed, Mr. Lampson ?
STATEMENT OF E. W. LAMPSON, PRESIDENT, wan NEWSPAPER
ASSOCIATION; ACCOMPANIED BY TED SERRILL, EXECUTIVE
VICE PRESIDENT, NATIONAL NEWSPAPER ASSOCIATION
Mr. LAmesoic. Thank you, Mr. Chairman and members of the com-
mittee.
For the purpose of the record, I am E. W. Lampson publisher of
the Jefferson Ohio, Gazette and president of the Ohio Newspaper As-
sociation, an organization representing 96 Ohio daily newspapers and
261 nondaily papers from the largest in the State to the smallest. I
am also an affiliate member of the National Newspaper Association.
As has been stated by the chairman, with me today is Theodore i.
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Serrill, executive vice president of the National Newspaper Asso-
ciation.
The association has prepared a formal statement which I will ask
you to enter into the record of the proceedings. I will not read the
association's statement, but I do have a few remarks of my own which
I would like to present at this time.
Mr. MOORHEAD. Without objection, the full statement will be made a
part of the record.
Mr. LAMPSON. Thank you.
[The document referred to follows:]
STATEMENT OF NATIONAL NEWSPAPER ASSOCIATION
INTRODUCTION
The National Newspaper Association, as I am sure you are aware, is the
official representative for our nation's approximately 8,500 community news-
papers. These are the 7,500 weekly and 1,000 smaller city daily newspapers of
our country whose major purpose is to provide local news and information to the
communities they serve.
We are indeed honored to be a part of this prestigious panel which is composed
mainly of our colleagues from the big city newspapers and from the broadcasting
field.
BACKGROUND
In March 1963, this Association informed this same Subcommittee that it
was no "Johnny-come-lately" to the fight for freedom of information. Long before
the Cold War era we said, NNA (which then was NEA, the National Editorial
Association) had been active in defending the precepts of the First Amendment.
This Subcommittee should should know that the idea for the creation of the
Freedom of Information Center at the University of Missouri, which maintains a
continuing record of instances of censorships, suppressions, and manipulation
of information and assists the Press in overcoming such instances, first emerged at
a 1957 meeting of the then NEA. NNA continues to support the Freedom of In-
formation Center, both in spirit and with financial contributions.
NNA has appeared before this Subcommittee in the past and has support ed and
publicized its activities since its inception.
This Association was involved directly in this Subcommittee's efforts to enact
the present FOI law. As you realize, that law is the result of a compromise, as
is all good legislation. We would even call the present law an experiment, to
answer the question of whether such a concept could be made to work at the
Federal level. Government officials warned against its enactment, predicting
all sorts of dire consequences should it become law, arguments which they have
recently repeated to you in trying to prevent amendments to improve the Act's
effectiveness.
In spite of these contentions, it was discovered that the experiment worked--
that it is feasible, indeed desirable, to make information possessed by the gov-
ernment available to the public. The fears expressed by government officials sim-
ply have not been realized.
What we have discovered, however, is that the law is not as effective or useful
as it ought to be, and it is that problem to which we now address ourselves.
It is at the local level where NNA's constituency, the home town press, is
the sole defender of the right to know. Policies of the Federal government toward
access to governmental information however, are becoming more and more of a
problem to this segment of the news media because of the tremendous growth of
the Federal government in recent years. This has led to the establishment of
branch and regional Federal offices in nearly all of the three thousand-plus
counties of our nation.
What happens in Washington today becomes immediately important to local
communities.everywhere.
The Federal government's- information policies are important not only with
respect to actual access to information held by the Federal government, but also
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by way of educating state and local government officials as to the importance of
making public information and public records available to the citizens served
by those officials.
FREEDOM DF INFORMATION GOALS
The 21st Report of the Committee on Government Operations on the Ad-
ministration oil the Freedom of Information Act says "Our concern in this Report
and those which will follow is the protection, preservation and enlargement of
the American people's 'right to know' ".
Former Attorney General Ramsey Clark stated in his memorandum on the
implementation of the FOI Act in 1937, "Nothing so diminishes democracy as
secrecy".
Mr. Clark continued ".. . this statute imposes on the Executive Branch an af-
firmative obligation to adopt new standards and practices for publication and
availability of information. It leaves no doubt that disclosure is a transcendent
goal, yielding only to such compelling considerations as those provided for in the
exemptions of the Act".
As this Committee has learned, those high goals have not been lived up to by
those charged with administering this law in the various agencies and depart-
ments of the Federal government. Its Report lists several areas where the law
has proved to be deficient.
MAJOR FOI PROBLEMS CF COMMUNITY NEWSPAPERS
This Association, because of the type of newspapers which it represents, is
principally concerned with four of these problem areas:
1. The bureaucratic delay in responding to individual requests for information.
This Committee's 1972 investigation revealed that major Feel.eral agencies took
an average of 33 days for initial responses and when acting on appeals from a
decision to deny information, major agencies took an average of 50 additional
days.
We believe that amendments to require a preliminary determination as to com-
pliance with an information request within ten days are most reasonable, and
if anything, should be reduced.
2. We are concerned about the abuses in fee schedules set by some ageniAes
for searching and copying requested documents. Some agencies have initiated
excessive charges for such services as an effective tool denying information.
While the fees charged by many agencies have been modified in recent months,
largely due to this Committee's oversight function, some remain unreasonably
high. While such fees will not bankrupt a community newspaper, at least in most
instance, we do not believe that there is a sufficient reason for inordinately
high fees for copying and searching for government records.
3. The cumbersome and costly legal remedy provided by the Act in cases
where information is denied is a particular concern. The time involved, the
investment of a great deal of money in attorney fees and court costs and the ad-
vantages which inure to the government in such cases make litigation highly
undesirable for the members of this Association in particular and render the
Act less than useful.
4. Many problems are connected with the necessity of requesting an "identi-
fiable record". Many agencies have used the requirement as ore means of denying
information to the public. In most cases, reporters working on a story do not
have an identifiable record, but rather have information from sources which
lead them to believe that such records are in the government's possession and a
reporter simply needs a reasonable means of obtaining access to them. This re-
quirement must be modified if the Ad: is ever going to prove to be truly effective.
? As you know, the news media has been criticized for failing to utilize the
Freedom of Information Act to its fdlest extent. The items cited in the above
paragraphs are but a few of the reasons for this lack of utilization and are the
principle reasons why the community press has not used the Act as much as is
desirable.
An overriding. factor in the failure of our segment of the Press to use the exist-
ing Act is the expense connected with litigating FOI matters in the courts once
an agency has decided against making Information available. This is probably
the most undermining aspect of the 2xisting law and severely limits the use of
the FOT Act by all media, but especially smaller sized newspapers. The financial
expense involved, coupled with the inherent delay in obtaining the information,
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means that very few community newspapers are ever going to be able to make
use of the Act unless changes are initiated by this Committee.
A community newspaper generally operates but with a small staff and the staff
which is available simply does not have the time to devote to hassling with a
government agency over the availability of what should ordinarily be easily
accessible government records and information.
ACCESS TO GOVERNMENT INFORMATION ALWAYS AN ISSUE
In recent months, the Press, particularly our colleagues in the metropolitan
newspapers, have been subjected to criticism for stories concerning unethical
election campaign practices. These stories ranged all the way from illegal fund
raising activities to illegal disbursements of campaign funds to charges of illegal
spying activities as well as attempts to cover up all of these activities. As a
result, there has been a great tendency on the part of this Administration to close
many channels of information to the Press. Such a trait, regretfully, is not an
exclusive property of this current Administration.
As James C. Haggerty, former press secretary to President Eisenhower, told
this Subcommittee on the opening day of its hearings last year,
Availability of government information "has been a fairly constant issue,
in varying degrees, between government, the news media and the citizens of
our nation almost since our founding days. From time to time in our coun-
try's history it has resulted in public distrust of the credibility of govern-
ment. It has also raised questions as to the responsibility and integrity of a
free press. It has never been definitively solved and I am not sure it ever
can be".
While it may be true that no definitive solution can be written in terms of
legislation, the mere fact that this Subcommittee expresses continuing interest
in the subject gives a great deal of evidence for hope for the future, and much
encouragement to our members.
NNA SUPPORTS LEGISLATIVE EFFORTS
The National Newspaper Association endorses the efforts of this Subcommittee
to write new legislation in this field to alleviate the problems which we have
emphasized in this statement and problems which others have brought to your
attention. This Subcommittee will have our Association's full cooperation in
efforts towards enacting the legislation which is the subject of these hearings.
We have reviewed the 21st Report of the Committee submitted to the Speaker
on September 20, 1972. In our opinion, the Report and its legislative recommenda-
tions should be acted on by Congress with all reasonable speed. I assure you,
Mr. Chairman, that the National Newspaper Association and its members in
every part of the country will be carefully watching the progress of this legisla-
tion and that we will be doing all within our power to move the legislation along.
Thank you for providing our segment of the news media with an opportunity
of participating In these discussions.
Mr. LANIPSON. And I, of course, will be happy to answer any
questions.
There was never a time in the history of the Republic than at this
present time that we should have an effective and responsive Freedom
of Information Act. Updating the 1967 act to that end is both timely
and a genuine need, if the people's confidence in government is to be
restored and accelerated and the people's right to know be more than
an empty slogan. In addition to my many years of employment as a
reporter, editor, and publisher, I also had the privilege of serving for
10 years as a member of the Ohio House of Representatives, the last
four of which I was chairman of the House Ways and Means Com-
mittee. So, I have a limited knowledge of the task now before this
committee in assembling all possible information before acting upon
any given piece of legislation or amending existing statutes.
If I may for a moment shift from the Federal to the State scene,
during the past 10 years two important pieces of legislation were
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enacted by the Ohio General Assembly to improve the people's right
to know about their ,government and what their elected representatives
were doing. The first provides that all meetings of any board or com-
mission, agency, or authority, and all meetings of any board, commis-
sion, agency, or authority of any county, township, municipal corpora-
tion, school district, or other public subdivision are declared to be
public meetings, open to the public at all times. Yo resolution rule,
regulation, or formal action of any kind shall be adopted at any ex-
ecutive seseion of any board,, commission, or agency.
May I further add that them is presently before the Ohio House a
proposed amendment to further limit executive sessions.
Another section of the Ohio revised code deals with the availability
of ?public records. This section reads in part:
As used in this section, public record means any record required to be kept by
any governmental unit, including hut not limited to State, county, city, village,
township and school district units, except records pertaining to physical or psy-
chiatric examination, adoptions, probation and parole proceedings and records,
the releaSe ot which is prohibited by State and Federal law. All records shall be
open at all r2asonable times for inspection upon request. A person responsible
for public records shall make ca,pies available at cost within a reasonable time.
At the State level these statutes have proven most effective in estab-
lishing more open government and protecting the people's right to
know. But, in this area of .expanding Federal bureaucracy, extending
into nearly every city and hamlet, State statutes are not enough. We
must have an effective and workable Freedom of Information Act at
the Federal le vol.
The proposed amendments in FIR. 5425 4960, and. 0792, I believe.
will go a lo.ng way in improving the workability of the present Frei:-
demi of Information Act. .
From the record I find that the news media have not taken full
advantage of the law. There may be a number of reasons, but one, is
the element of ? time. News is oply news when it is happening. A
reporter cannot adjourn his story to some future date at the conven-
ience of some 'Federal agency. The proposed ?admendments in this
direction will be most helpful.
It might f. arther expedite the problem if the Congress could define
more Closely and precisely what is and what is not in
ma-
terial in such a way that the responsible parties Government
bureaus or agencies could not hide behind generality. r noted in the
remarks of the Honorable Bella Abzug in commenting on the Free-
dom of Information Act that there are more than 6,000 full-time'
Federal Government employees involved in public relations and in-
formation work. So, providing request information should not over-
burden the bureaus.
As an editor, I have found that these Government pronouncements
are all too of ten couched in such cumbersome and lengthy language
that it is next to impossible to understand them. Many years ago I had
a journalism professor who said that a. good reporter-shoe:1d be able.
to write the story of the creation i.x a single column..I only wish that
some of these 6,000 public relations people might have been in one.
of his classes.
Mr. Chairman, I want to thank you and the members of the com-
mittee for permitting me to appear ?before you at this hearing. And
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with the basic foundation of the present act, I am confident that. this
committee will ably resolve the problems in providing a more work-
able and effective Freedom of Information Act.
Thank you, Mr. Chairman.
Mr. MOORHEAD. With your permission, Paul, I would like to yield
out of order to Mr. Regula.
Mr. MCCLOSKEY. Certainly.
Mr. 11/fooRnEAD. Mr. Reo.ul a, do you have any comments or questions ?
Mr. REGULA. Yes, Thank you, Mr. Chairman. Just one. I think Mr.
Lampson introduced an interesting dimension into the record here
in terms of the objectives of this legislation in stating that the
Federal Government has many agencies in local communities. In
contemplating this legislation we think in terms of providing access.
to information in the city of Washington, and yet I would guess that
the group you represent are really interested from the standpoint of
Federal agencies in the communities scattered around the country.
As we propose to decentralize Government this will become even more
important. My question would be, in your experience do you find any
problem in getting access to information that you would like from
agencies of the federal Government that are located in the local
communities, and in our instance such as Cleveland, or even perhaps.
right down in the county in which you serve?
Mr. LAMPSON. Congressman Regula, I cannot cite any specific exam-
ples. However, I can say that frequently in the smaller communities
of the newspapers which I represent, one of the difficulties is that the
people, the staff people in the particular bureaus are not knowledge-
able as to the information that we might desire, so that if through this.
legislation if the heads of these agencies and bureaus extended to their
field people some authority and some knowledge of what is and what
is not to be released, I am sure it would expedite the problems of the,
smaller community newspaper people.
MT. REGULA. Mr. Lampson?
Mr. SERRILL. Congressman, may I add a point to what Mr. Lamp-
son said? I have not been active in this particular area for the last
couple of years, but the last two instances in which our association has
asked me to intercede in their behalf were involved with the Agricul-
ture Department. An agency of the Agriculture Department refused
to divulge information in some community in New York State about.
the financing and development of a country club. We did not know
whether they were involved in it at the time, but they were, and they
had some legislation that permitted them to support that concept. And
in another instance the release of information by a bureau of the
Agriculture Department with respect to the subsidies for farmers in
western Pennsylvania. In each instance it was a refusal of the local
representative of the Department of Agriculture that brought the case
back to, Washington.
Mr. REGULA. You are saying that it is important that this act extend
to all levels of the Federal Government, including any local agencies,
in insuring access to information they have?
Mr. LAnirso.x. That is correct, Mr. Regula. I think it is quite im-
portant, and as Mr. Serrill was talking I do recall an incident that we
did have in our own community relative to the release of the Federal
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Government concerning the Department of Agriculture., release of fig-
ures of the payments of over a 2ertain figure to the individual farmers.
And we had great difficulty in attempting to find out specifically
farmer A and farmer B and farmer C, what their payments were, al-
though we knew that they wen in excess of this minimum figure that
they had announced.
Mr. REGULA. Thank you.
Thank you, Mr. Chairman.
Mr. MOORHEAD. Thank you.
The subcommittee would now like to hear from Mr. Courtney R.
Sheldon, chairman of the Freedom of Information Committee, Sigma
Delta Chi.
Mr. She] don?
STATEMENT OF COURTNEY R. SHELDON, CHAIRMAN, FREEDOM OF
INFORMATION COIYIKITTEE, SIGMA DELTA CHI
Mr. SHELDON. Mr. Chairman and members of the committee, there is
no question from the standpoint, of the public's right to know that the
changes you are now considering in the Freedom of Information Act
are in the public interest. There is still too much delay and obstruction
in the making available to the public information they are entitled to.
We journalists have been negligent in not using the FOI Act to a
maximum, sometimes because the procedures could become drawn out
and our deadlines are very immediate. But, those who have used it
testify to its necessity. We support your efforts to improve the act.
? We note the objections that some Government officials are now
making to the proposed changes, but getting information to the people
about their Own Government is more important than saving some time
of officials and saving money heL-e and there. Speaking generally, the
White House has, for the last 41/i years, severely restricted the flow of
news to the public. If it had not ignored the questions of newsmen, and
the President had held regular press conferences to set an example for
open Government, the country raight not today be wallowing in the
Watergate scandal. Those close to the President's office have adopted
the President's style of secrecy and the aggressive use of White House
power. John D. Ehrlichman telt secure enough not to report the crime
of burglary by the team of Liddy and Hunt. The fact: that the White
House was investigating news le4ks was well known 2 years ago, but
President Nixon and his aides could pick the times when they sub-
mitted to questioning. They were usually so infrequent that there was
never time for probing deeply and to bring up a host of peripheral sub-
jects of lesser importance than Peking and Moscow. If Mr. Nixon had
done as every other modern day President has, held press conferenees
two or three times a month, someone, just someone might have asked
questions about that plumbers team, and Liddy and Hunt might have
been put early in the public limeIght in a way that would have made
their escapades in the Watergate impossible.
At the W1tit?ouse one struggle between reporters trucl \Ir. Ziegler
last fall illustrates what we are up against on a daily basis. It has-been
determined by sources outside the White House that Donald Segretti
was in freqnent telephone contact with Dwight Chapin, an aide
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H. R. Haldeman's office. Reporters first pressed to have Mr. Chapin
come forward. That failed, as has every other attempt of that kind, in-
cluding efforts to bring Mr. Haldeman to be interviewed.
What is clear now was clear then, that Mr. Segretti and Mr. Chapin,
acting for the White House, had engaged in political espionage on
behalf of Mr. Nixon. So, Mr. Ziegler stepped forward with a state-
ment that the charges were fundamentally inaccurate. It was a cover-
up, cover story that lasted until the more recent disclosures.
Now, last fall when reporters tried to get Mr. Ziegler to say just what
? was accurate and what was inaccurate about the reports of Chapin
and Segretti, he stonewalled. One reporter asked if there was any
record of the phone calls to Chapin from Mr. Segretti. Mr. Ziegler did
not seem to know anything about them and was reluctant to find out.
? Mr. Ziegler was then asked if the White House switchboard had any
such information and would give it out if asked. Mr. Ziegler's reply
was,
"I would hope not."
As reporters like myself run from one event to another, there does
not seem to be time to even consider whether such a withholding of
news is justified under one of the exemptions of the FOI Act. It would
not seem to come under foreign policy, national security, trade secrets
or internal personnel rules, but who can be sure what the administration
would claim if it were asked, and how long it would take to even start
the process?
Now, asking!. White House Press Secretary Ziegler questions about
what the President thinks or knows is one of the most frustrating ex-
ercises in Washington, and it is not wholly his fault. He does what he
is asked to do, not just by the Ehrlichmans and Haldemans but by the
President himself. The President sets the climate for the drovernment
on freedom of information matters, just as on everything else. If the
Freedom of Information Act is not working as well as it should, it is
because certainly in part the President really is not interested in hav-
ing it more effective. It might not be a great deal different under an-
other President, but getting the truth in the White House today is cer-
tainly more difficult than it has been in my memory of Presidential
administrations. The skills of news management are greater and they
are used more frequently. There may be flashes of reform, it may be
possible for the leopard to change its spots.
Anyway, we are most grateful for the contributions that you and
your committee are making toward giving the American public what
it has every right to know. Your diligence is a shield and a comfort to
many of us.
Thank you, Mr. Chairman.
Mr. MOORTIEAD. Thank you, Mr. Sheldon, and thank you also for
those kind words with which you concluded your statement.
I have some questions which I will direct to anyone of the panel who
may wish to answer them?whoever wants to take a crack at them can
do so. It would probably be well if anybody who agrees would say so,
or if they have qualifications they would so indicate..
One of the amendments we are considering would require agencies
to make a preliminary determination as to whether to comply with the
request for information within 10 days of the receipt of it, permitting
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additional time to gather the documents if that were necessary. In your
opinion, is this a reasonable tim3limit ?
Mr. SnEnnox. Well, it is certainly better than what was required
before. It seems to me very reasonable. I have neve]: been a public re-
lations officer, preferring to stay on my own side of the fence, hut it
does not sound unreasonable' and certainly from the standpoint of the
news gailiarer it still could be quite a stretch of time, delay us, and
encourage us not t o go forward. Fortunately a lot of newspapers these
days are using investigative teams, taking their time to do stories? and
so your efforts to compress the time, and our efforts to take more time
could bear fruit for the good of us all.
Mr. MOORHEAD. The amendments would require an individual re-
fused access to public records to file an administrarive appeal of the
denial within 20 days, and would require an agency to act on the ap-
peal within 20 days of receipt. Do you think this is a reasonable limit?
Mr. LAA1ESON. I would think that that would be more than a liberal
time. It seems to rue that an agency should be able to prepare their posi-
tion in a shorter period of tinu nowever, it is an improvement over
the existing situation, and I think would be welcomed by the news
gathering people as an improvement.
Mr. MoonnEAD. If a request for public records goes to court, H.R.
5423 requires the Government to answer the complaint within 20 days
instead of the 60 days now required by law. Is this, in your opinion, a
reasonable time ?
Mr. Stuir_DoN. I would certainly say it was, and anything yoncould
do to shave that down would be desirable. Courts and lawyers are very
expensive processes, and except for the very large papers they arc not
used too often. And anythithr that could make the process easier would
he a tremendous step forward.
Mr. MoormEAD. The amendments would permit the court to assess
the Government for reasonable attorney fees and court costs if the
Government is found in violation of the Freedom of Information law.
Would this amendment permit citizens to enforce their right to know
more effectively and mitigate against unreasonable Government court
action?
LAMPSON. I would say most certainly, Mr. Chairman.
Mr. MocarinAn. I am assuming that when there is no dissenting re-
mark that you both are in agreement with the answers?
Mr. SHELDON. That is right.
Mr. MoounEAD The amendments would require each agency to file
an annual report with Congress on its administration of the Freedom
of Information law. Would this provision make public and congres-
sional oversight of the law more effective as well as requiring agencies
to give more careful consideration to their administration of the law?
Mr. Sirmpoic. Well, I certainly think it would be useful. I am not
sure how ninny of us read these reports, but if the committee can
somehow use them as a police means, I certainly would say they would
be most valuable. But, I guess obviously what is most needed is their
day-to-day reaction rather than the summation. But, I am sure they
would be valuable.
Mr. Mooinunn. I would think that the objective would be to give
the Congress the necessary data to isolate the recalcitrant agencies so
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that in the following year hopefully they would be more responsive on ti
day-to-day basis.
Mr. SuEnooN. Yes ? I think that is a good point.
Mr. iNfoontinim. 11.11. 5425 would also require all agencies to furnish
any information or records to Congress or its proper committees. Do
you think this would help clarify the right of congressional access to
Government information?
Mr. LAM PSON. It would appear that it would be such, and I would
assume from the recent history that it would be helpful to the Congress.
Mr. MOORHEAD. H.R. 5425 would require the courts to examine the
contents of agency records?including classified records?in private,
if necessary, to determine whether the records must be withheld from
the public. This involves the Minis v. Environmental Protection
Agency case. Would this provision make possible a qualified, inde-
pendent judgment on whether an agency has sufficiently proved the
necessity for withholding specific records?
Mr. SHELDON. Yes; I am sure it would, because obviously so much
is overclassified in Government that that review at that paint would
be very helpful.
Mr. MoonnnAn. H.R. 1960, commonly called the Horton bill, would
establish an FOI Commission?a majority of the members of which
would be appointed by the Congress?to investigate cases of withhold-
ing of public records and to issue findings which would be prima facie
evidence against an agency in a later court suit. Would this concept
be a workable system to help to enforce the Freedom of Information
law?
Mr. SERRILL. I would like to comment on that. I wonder if there is
a need for another commission, another department of Government in
this instance, or whether it might not be better to assign this respon-
sibility, say, to a Federal district court, in the District of Columbia
or some other agency in being, or to some standing committee of the
Congress? I just feel that we have a great proliferation in the years
I have been around Congress and State government, and we establish
more commissions and agencies than I think we have need for. And
I raise that question rather than having a definitive answer for it, but
we have discussed this, and I discussed it with counsel yesterday. And
we came to no definite conclusion insofar as that area is concerned.
Mr. MOORHEAD. To make the point completely clear, I am convinced
that RR. 4960 does not intend to have the Commission as a required
step. It would still permit the requester to go directly to the court.
But, in the case particularly where a requester did not want to spend
the money for court costs, he could go to the Commission and a lot of
the groundwork could be done for them at no cost.
SERRILL. That sounds good. I mean to eliminate cluttered courts,
if we can do so in other words I do not think that we have studied
this in the depth. that probably it should be studied with respect to the
ultimate results of establishing such a Commission. I am sure I would
be interested in what Sigma Delta Chi has to say about this particular
aspect of it.
Mr. SHELDoN. Well, I guess if I thought it was just another commis-
sion being put into a picture, doing a job that somebody else was
already doing I might raise some reservations. But, it sounds to me
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as if it could be a very useful tool, someone to turn to short of the
courts to get a very quick opinion. And the mere presence of it would
exert pressure on Government agencies and public relations officers
to tread a little softly in areas that they might be a little bit more heavy
handed.
Mr. MOO:MEAD. I noticed in your prepared written statement, Mr.
Lampson, that you mentioned bureaucratic delay, abuses in fee sched-
ules, and cumbersome and costly legal remedies. I think the bill we
are considering deals with these bureaucratic delays,. We have not at-
tacked the fee schedule directly, except that we might give the Commis-
sion authority to review fees to make sure that they are reasonable.
The comm:Lssion might also cut down on the costly legal remedies,
which we also try to solve by permitting the award of court costs and
attorney fees to a successful plaintiff. We have attacked the problem of
"identifiable records." Our proposed language, I think, is better :from
your point of view.
Mr. LAMPSON. Thank you.
Mr. MOOMFAD. Mr. McCloskey?
Mr. McCiosimy. Thank you, Mr. Chairman.
I am interested in the question of how this committee might assist to
get a broader distribution of accurate information about what happens
here in Washington into the interior of the country. I am particularly
concerned about the small nes-mpapers throughout the country who
are either limited to wire services or what they can perceive on the
network news, but do not have the resources to station a reporter here
in Washington with all of the problems that a reporter who is here
faces in keeping up with the canned news releases and the like that
come in such copious quantities out of this Government, including those
of us in the Congress. What do you see as the possibility of enhancing
the small rural newspaper's ability to keep up with this tremendous
volume of news from Washington?
MF. LAMPSON. Mr. McCloskey, we do rely for interpretive material
from our association office here in Washington, looking at the national
scene. But, in a community press we do limit most of our news to our
immediate area, with the exception of the wire service information.
And I think my personal concern, and the concern I am sure that ethers
in the smaller communities have, other publishers, is an ability to get
information from those Federal agencies that are operating in our
area.
Mr. McCrosic.Ey. Your contact then with the local offices has been
essentially disappointing?
Mr. LAMPSON. Many times, yes. Sometimes that might not be a re-
luctance to give us the information. It sometimes is their inability to
put their hands on the information.
Mr. MCCLOS1KEY. Well, coming from our particular area in the coun-
try in California, it has been almost impossible to get square state-
ments of any information from regional offices because of the tendency
of the bureaucrat to be reluctant to 'issue any statement or provide any
information that is likely to be overruled by a policy decision in Wash-
ington. I wonder if you would :ominent on the problems that would be
raised or the benefits obtained, and any drawbacks that would accrue
from adding to these amendments to the Freedom of Information
Act a misdemeanor section that would make any Government employee
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guilty of a misdemeanor and subject to prosecution in the event he will-
fully and deliberately withheld information or took any steps to un-
duly delay the delivery of such information? It might have a salutary
effect, and if it might, what problems do you see in it?
Mr. LAMPSON. Well, I would be reluctant to take a position on
whether or not there should be a criminal section in the Freedom of.
Information Act without exploring it to a greater degree than at this.
moment. I know that that avenue is -followed frequently in State legis-
lation, and it is a debatable avenue to follow. In some instances I am
sure that it could be implemented without any undue harm one way
or another. But, it would be something that I would want to think
on more than an immediate response as to whether it should go that.
far.
Mr. McCnoskEy. Well, I think we have found in the hearings we
have held over the last 2 years that in classification and in the 1e-tease
of information there is an inherent tendency on the part of the Gov-
ernment employee to overclassify as to secrecy, and to decline to reveal:
that which may be embarrassing, if there is any reason to do so. I
have growing questions in my mind whether or not there should not:
be some counterbalance sanction against the employee who over--
classifies this to secrecy or who exercises his discretion not to release
that which may prove embarrassing. I suppose the basic question is
this: We have accepted until this recent point in our history the argu-
ments of Government employees that they cannot operate in a gold-
fish bowl, that they are inefficient if they are forced to disclose to,
another their interagency communications. I am sure that is true. But,
with the present crisis of confidence in Government, would it not be.
better perhaps to give up some efficiency in order to require the com-
plete disclosure of these matters which might make it a little more.
difficult to act in Government effectively, but at least would reduce.
the public's present concern that most of us in Government represent.
a conspiracy against the public?
Mr. LAivirsow. Well, offhand, Congressman, I would say that thc.
news people can oti to the Government bureau or agency to get the
' .
information if there was a sufficient definition so that the newsman
himself would know that this particular information was not the type.
of information that would be classified, that he could get a story and
get the information. But, when he goes in blind and the head of the
bureau says, "Well, I am sorry, Joe, I just cannot give you that infor-
mation, that is confidential information," whether it is or is not, then.
he is met with a roadblock which if he has the connections and could
possibly come to 'Washington and prosecute it under the Freedom of.
Information Act, he does have that avenue.
Mr. MCCLOSKEY. Let me ask another question along those lines..
Ordinarily a Congressman finds that perhaps a quarter of his time.
here is occupied in servicing the complaints of constituents because
of the arrogance or the caprice or the pure redtape of the Govern-
ment agencies, and I suppose that all of us get hundreds of complaints
each year on Social Security, the Veterans Administration, and im-
migration rights. But I cannot recall ever havirig a reporter in my
21 weekly newspapers or daily newspapers complain and ask my
assistance in unlockine. some Federal agency with whom they had
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hod difficulty in getting Freedom of Information Act .information.
is the some reluctance on the part .:of the reporter or the small town
neugpaper to ask the assistance of their Congressman when they rim
into this abuse yciu have testified. about ?
Mr. LA.APSON. Well, there could be; yes. I have had personal ex-
periences with my own Congressman in which I have obtained valu-
able information. It did not happen to be controversial information,
but I have relied on his office to supply me with. information.
Mr. MCCLOSKEY. Well, I just suggest the possibility, and I would
prefer to .see this remedy pursued as opposed to inserting a criminal
section in. the law at this stage. Perhaps if we might publicize to the
small newspaper editors in the Nation that whenever they run into this
problem of getting information from a Government office, their Cons
gressman can serve as an ombudsman in that situation, just as he can
in getting committee reports and other information, because I think
your testimony today, and the importance of this issue is crucial tO the
country. We find the further we go out into the hinterlands of the
country, that the diminishing amount of the inforriation in the small
communities as to some of the evils practiced by Government really
has caused those areas to be somewhat less critical of Government itself
and less dnnanding of its change. Now, I think that this committee
and individual Congressmen 'would want to do everything possible to
assist these smalltown editors and reporters in getting immediate in-
formation. The first Government office that looks at all dilatory in
producing it should receive the, .attention of the Congressman and that
this is something the Congressman ought to make as just a matter of
his ordinary operations, to unlock it or widely publicize it.
Mr. LAMPSON. I think that is right, and I am sure it would be ap-
preciate,d by the small town papers.
Mr. Mcdnositer. I just mentien it because. I cannot recall a reporter
or editor faced with the problent you described ever having asked my
assistance as a Congressman, and yet most of these agencies are funded
by us, and most of them are immediately responsive 0 a congressional
inquiry as to why they have withheld this information.
Well, thank you. I think I have exceeded my time.
Mr. MoottilEAD. Mr. Lampson, do you think that most of your Mem-
bers are familiar with the existurce of the Freedom of information
Act?
Mr. LAMPSON. Yes, I think they are. We have had this subject on our
convention programs, we hose had speakers on it, we. have a special
committee-11.e freedom of information committee. Of course, their
essential office operates out of l!viissouri, but each State has its own com-
mittee on freedom of informatior , like my own son happens to serve
on that committee in Ohio.
Mr. MOORILEAD. Thank you, sir.
Mr. Phillips?
Mr. Pninerps. Thank you, Mr. Chairman.
Along the lines of Congressman McCloskey's questions about new,s-
papers coming to Congressmen for help, I would say that cptite a great
number of journalists have called upon cur subcommittee for assistance
in various cases. And in a number of such cases they haw, been referred
by their own Congressman to the subcommittee. In some cases we try
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to act like an ombudsman between the news media representative on
the one hand, and the Government agency on the other, to try to help
resolve those problems, or to answer the specific questions about the
Freedom of Information Act. For example, to explain the way various
exemptions have been interpreted by the courts and through agency
regulations. So, we have had a great deal of experience over the years
since the act has been in effect in doing this very kind of thing.
I think there is a growing awareness in the last 2 years of the exist-
ence of the act, how it operates, and how it can be used by the news
media. There has been a tremendous increase in our workload along
that line, and statistics that we have seen as to the increase in the
number of requests being made from all sources to Government
agencies is another indication of how this awareness of the law is
growing. There is also a corresponding growth in the number of cases
that are pending in the courts. At the time of last year's investigatory
hearings on the way the Freedom of Information Act was being admin-
istered. by Federal agencies there were some 42 cases pending in the
Federal courts under the Freedom of Information Act. In the latest
figures I have seen, there are over 70 cases, and that is just in a year's
time. Although we do not measure the effectiveness of the law by the
number of court cases that are brought, it is another significant indi-
cator. Hopefully, when positive case law is made interpreting various
provisions of the Freedom of Information Act, this would make Gov-
ernment officials more open and less likely to deny information when
it is requested, whether it be by the news media or by an individual
citizen. I would ask all of the panelists a broad question that is covered
to some extent in Mr. Lampson's statement as to the reasons why more
people in the news media have not made greater use of the Freedom
of Information Act? I know we have talked about time problems, the
high costs of litigating, and the fee schedules which in many cases are
exorbitantly high. But, from your own experience and from your con-
versation with colleagues in the news field, can you shed any light on
why you feel the law is not used more often by the news media to get
information from Government officials?
Mr. SERRILL. Mr. Chairman and Mr. Phillips, I think the fact is that
the law has had a very esoteric effect upon the country, and I am not
speaking about Washington itself. I think newspaper editors and re-
porters are well aware that this law exists. With the trade press, pro-
fessional press since 1966 when this law became effective in July, there
has been a great deal written about those cases which have been, mostly
by nonmedia sources. And I think many reporters have cited this law
when they get into difficulties, and they are getting greater access to
information. And reporters and editors, they do not like to go to court
very much. I mean, it is just?I think that it is indicative of our type
of people. I think they tend to be more professional in their approach,
and I do not think they go threatening court cases or go through with
them.
I think one of the other things that is helpful, in California, for
example, the Brown act, the State laws have been tightened up, and
the Sunshine law in Florida. These laws in many of these States are
tightened up. And I think at the local level our problems have been
helped materially by the act. The defects in the act have been pretty
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much ascertained by these court cases. And I think that your greatest
reluctance is among Federal agencies at the local level and ''here in
-Washington to release information because of this great cloud of
classified documents that have developed over the last?well, since
World War T, and particularly since World War IT. And I think the
next thrust of this act, and this is evolution here, and we expected this
when We worked on the act back in the sixties, we expected it would be
a less than perfect instrumene, and we have found out where these
imperfections are, and I think when this act is amended, when the
present act .is amended it will have another thrust forward of getting
more access to information for the reporters and the editors of the
.country, both the print media and the commentators.
? I 'would like to hear what Sigma Delta CM thinks on this. They
cross all boundaries of the media.
Mr. SIIFLDON. I would not disagree with anything you have said
about it. I am trying to think beyond the reasons that we have talked
about earlier.
I would suggest that maybe the fact that newspapers have been on
the defensive during the last 4 years more than at any time that
can recall has played a very large part. You have organizations like
the Los Angeles Times spending hundreds of thousards of dollars and
goodness knows how much maneiours just defending themselves. That
is part of the picture.
think another part is that the decisions as to whether to press are
not on the part of the reporter. They are on the part of the manage-
ment, the editors and management. They tend to be less aggresswe.
They have other concerns, and suppose maybe it would be a good
idea to address this question more often to publishers and editors than
to a reporter.
Mr. PHILLIPS. Of course, we are well aware that the active interest
and tremendous support given by the news media when the original
Freedom of Information bill wae before the Congress was one of the
major reasons it was finally ena,eted. What we had was a Freedom
of Information law, but it has not been translated into, by any stretch
of the imagination, a "freedom of the press" law. What we are
hoping to c17) by the amendments that we are considering now is to
Make it a more useful and workable tool for the news media so that
some of the high hopes that we all had 10 years ago or 8 years ago
when the bill was before this f3ubcomm ittee for hearings can be. made
a reality, and become truly a "freedom of the press" law that can be
more readily used on a day-to-day basis by working reporters, ed-
itors, and others in the news media field. This is one of the reasons why,
of course, we are considering the time limit on agency responses to
FOT requests. Witnesses last year indicated that wen they are on a
tight deadline: story, there just is not time to use the FOT law. A
free-lance writer working on an article perhaps has 2 or 3 months to
complete it, but that is another matter. We have foumi that in those,
kinds of situations the law has, on occasion, been a useful tool. But, for
the average daily working reporter who has a tight schedule, as you
all well know, the law has not always proven to be the kind of in-
strument that we had hoped that it would be.
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Could I ask -one more question, Mr, Chairman? This is along the
lines of whether?in your experience you have ever encoimtered a situa-
tion where you have .asked for information from a Government of-
ficial, and have gotten the old runaround, put-offs, delays, and so on,
where perhaps you have been in a negotiating situation for some part
?of the information you have requested. Have you ever had occasion
to cite the Freedom of Information Act as your right to that informa-
tion and ,Totten any kind of response from the public information
officer or other Government official that you have been dealing with?
Mr. SIIELDON. Well, I would suggest, of course, that when a re-
porter is out on the beat, a good share of the time he is not out after
information which is documentary in the sense that he can go into,
.say, somebody in the White House and say, look, this information I
want is in, I know is written in a document somewhere. A lot of the
best news is carried around in the heads of the principals.
I might just, and I did not quote this case earlier because I do not
think it is representative, but in talking to some other bureau chiefs
about the problem in the use of the FOI, one of them said to me that
he had found that some of the sources which he had before the act
was passed had turned less cooperative and had begun to use the rules.
Now, as I say, he is the only one that said that. I do not consider it
representative.
Mr. Pnii,mps. We have heard that expressed on other occasions, too,.
and it is distressing if that is a a i
eneral rule. We do not think that t is,
but there are instances where that has happened.
Mr. SHELDON% No, I do not think it is representative myself. I would
not want to call this a game, a matter of trying to get information for
the public because it is too serious for that. But, the fact of the matter
is in practice, as you toughen up our side of the operation, the nature
of the beast on the other side is that they seem to find new ways,
new devices to withhold. They are more careful about what they put
in writing and all of these things come into play. So, as your latest
changes showed, it is something that you just have to live with, and
ride with, and shoot down what pigeons you can.
Mr. PHILLIPS. In your press meetings with Ron Ziegler, or Gerald
Warren, or any of the other people in the White House Press Office
over the years have you ever heard any reporter ask for information
and cite the Freedom of Information Act as a basis for his request?
Mr. SHELDON. Yes. I somewhat ducked your question earlier because
I was not able to really give you an answer that I am sure would be to
our credit on it. No, I have not, and the closest that I can come to it,
instances where it could be invoked actually, and we are talking
now about the briefing sessions, is in the case like asking for the tele-
phone records. But, no, I have not heard him threatened with that.
But., times are changing a little.
Mr. PHILLIPS. I was wondering how he might have responded, such
as citing some exemption under the act that would be used to deny it.
But, I think this illustrates part of my earlier questioning about the
problem. I do not know, perhaps some reporters feel that it is a crutch
that they do not need. If they have good sources, obviously they are
not going to have to rely on the law to get the information that they
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need. I think most reporters pride themselves on their ability to fer-
ret out information from a variety of sources, and perhaps there is
some feeling that using the Freedom of Information law would be a
sign of weakness, or a less than total profession in the field. Do
you feel that perhaps might be a factor?
Mr. SHELDON. No, I think you make a valid point. Yes. I think there
is a tendency on the part of reporters not to want to appear and, in
fact, there was an article in the paper this morning where somebody
said reporters do not even like to report that someone would not (ogle
ment. They think that that is a reflection on their ability. But, I just
guess T would have to say I do not see quite as much reluctance to use
that, to admit that over a period of time as there used to be.
PHILLIPS Of course, we had a number of news reporters testify
during our earlier hearings last year who had used the law and cited
it on many occasions, and in most cases they were successful. And even
in cases where initially information was denied, when they quoted that
part of the law to the public in:!ormation officer or other official they
had been talking with, in some eases there was a turnabout by the,
agency in the position they were taking once they lead over the ex-
emptions and could not find one of them that applied to that precise
situation and, therefore, made fae information available.
Mr. Snlinoolc. No, I think the point was made earlier at this table
that the fresh interest in it is going to stimulate more interest on the
part of the reporters. And there has been a lapse of time when we have
had a flare of publicity on the Freedom of Information Act, and now
coming as it does in the wake of Watergate hopefully we, will de more
of what you are suggesting.
Mr. Pmersps. If we are able to enact strengthening amendments to
the law, perhaps it would be used even more effectively.
Thank you, Mr. Chairman.
Mr. LAM ['EON. Mr. Chairman, Mr. Phillips, may I continue?
Mr. MExianrao. Yes, Mr. Lampoon.
Mr. LAWSON. It is not in direct response to your question, but I
think the press, and particularly ,3ommunity press use it indirectly in
away. We comment on it frequently during certain periods of the year
editorially, and then the fact that there is such a Federal law. I am sure
tho impact of this Federal law tends to open the door on the local level
to a good degree, because while we do have, as I have pointed out, State
laws, the Federal law seems rnorE powerful, more ell inclusive. And
editorially we refer to the Freedorh of Information Act; when we have
a local problem, and it does ease the avenues to these local people. So,
it really has more than a Federal purpose, and we do use it in that
way.
Mr. PHILLIPS. I think that is aL important point because since the
Federal law was enacted in 1066 there have been a great number cf
open-access laws enacted at the State level, and increasingly at the inn-
nicipal level, so that there is a growing public awareness. In fact, some
of the so-called "Sunshine Laws" that have been enacted at the State
levels are much more effective and comnreheesive than the .Federal
law is. We are even receiving inquiries from foreign countries as to
how our Federal law is working. We have provided information to
about a half dozen embassies or directly to individuals abroad in re
sponseto inquiries about our law. So, there seems to be this growing
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awareness around the world of the importance of open government in
a free society.
Thank- you, Mr. Chairman.
Mn MOORI [EAT). Any questions here, Mr. Gude?
Mr. GUDE. Yes. Thank you, Mr. Chairman.
I wondered what experience any of the witnesses might have had in-
sofar as the receipt of canned editorials from Federal officials? Is this
a, practice that has come to your attention?
Mr. SHELDON. I have not had any personal experience, and I do not
think my paper has had any personal experience. I think I would only
say that most respectable papers would recognize them for what they
are, unless there is some kind of a throwaway sheet, semipropaganda
sheet. They are just not a large factor.
But, going on from your question, you are really asking the extent to
which, say, Herb Klein's operation might be influencing the press.
There was a period when he and his agents were very actively calling
up editors after a presidential speech and asking their pinion. You
can say, well, as they say, that this is harmless and so on. I take this as
a subtle effort to influence the editors, to flatter them, to let them know
that the White House is watching and interested in it. And I would
suggest that editors simply do not take those calls under those circum-
stances to discourage it. But, I have not even heard so much of that
lately anyway.
Mr. GuDE. That is what you call a fresh editorial, not a canned
editorial?
Mr. SITELDO-IsT. Right.
Mr. SERRILL. Mr. Chairman and Mr. Gude, incidentally, I used to be
a resident of your area when I first came to Washington. But, I have
since moved into the District of Columbia. Traffic problems are diffi-
cult back and forth.
I would say that in my years representing community newspapers
there has been a great deal of lessening of acceptance of canned ma-
terial. There has been such a growth of community problems in the
newspapers which I see and have seen over a period of years, and I
do see them. I just came back from North Carolina, for example, and
my staff assistant is in Wisconsin today. We do see these newspapers,
and they are written locally by reporters. Now, occasionally I wouli
say maybe an editor is influenced by some of the material that might
emanate from the offices in Washington. But, I think the whole char-
acter of the community press of this country has improved immensely
in the last few years. The quality of staff is so much better, and the
management has improved quite a bit as the press has grown. And in
your own county, for example, there have been tremendous changes in
the community press.
Mr. GUDE. We have under consideration legislation which would de-
fine executive privilege quite narrowly. I was wondering to what
extent this had come to any of your attentions and whether you have
any thoughts in its regard ? Do you have any comments on the specific
legislation and also to what extent do you feel it is necessary?
''Mr. SHELDON. Well, I can answer the last part very readily. I regret
that I am not fully aware of the legislation which you are talking
about, but certainly, it certainly is terribly needed, especially at this
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time. And this ought to be the-time when Congress moves in on it in
a big way. But, I am handicapped by not knowing precisely the legis-
lation that you are talking about.
Mr. SKaitim,. My comment is this, that when I first came to Wash-
ington in March 1933, the Federal establishment of the Congress was
about the same size as it is today, with fewer committees and fewer
staff assistants. But, the proliferation in the period I am familiar with
Federal Government is Cie fact that it has grown so large that I think
it is intolerable to have the kind of thoughts about executive privilege
that you once had. For example, I have read somewhere where there
are more than 4,000 individuals reporting directly to the Office of the
President, and each of the departments of Government have grown
so tremendously that by putting an umbrella of executive privilege
over all of these people is really not good Governm ent. And in this ''I
am speaking personally, not as a newspaper man, but just trying to
relate myself as a citizen.
Mr. GunE. Thank you, Mr. Chairman.
Mr. MooatuAn. Mr. Cornish ?
Mr. Consisn. Yes. Thank you, Mr. Chairman.
- Mr. Lampson' I am always glad to see anybody from my native
State of Ohio, which I tell my- colleagues here is the heart of America.
And I am -very happy to see that you have served in the Ohio General
Assembly, which I used to cover as. a correspondent for the United
Press a number of years ago.
I am also very happy to see that Ohio has adopted. an open meeting
law and open records law. I remember very vividly my first assignment
as a reporter for the Cleveland Plain Dealer, going to a meeting of the
Lakewood (Ohio) School Board and found out when I got there that
it Was a closed session, and I. wa3 not permitted to enter and report on
the events going on there, which I understand under the new State
law would be illegal ?
Mr. LAMPSON. That is correct.
Mr. Comilsn. Is it your experience that you receive a large number
of press releases from the U.S. Department of Agriculture?
Mr. LAMPSON. Yes, Mr. Cornish, we do, particularly through the
Extension Service, the Federal USDA to the State colleges, and to
the newspapers. I think I am not too active on the editorial desk there.
Mr. CORNISM. I understand. I might say that it has been my impres-
sion that most of the rural papers in the United States receive a bliz-
zard of news releases from the :Department of Agriculture, ranging
from watercress to beetle nuts. We had a hearing yesterday on a new
Executive order issued by President Nixon which permits the Agri-
culture Department to obtain certain financial information of a pri-
vate nature from the income tax ieturns of farmers. We found out that
neither the Department of Agriculture nor the White House issued
any news release in relation to that new Executive order. And I am
sure it would be of interest to many farmers in Ohio and throughout
the country. I think that is the t3pe of story that probably most com-
munity newspapers would have been very glad to print from a news
release from the Department of Agriculture. Would you agree with
me on that?
Mr. LAMPSON. Yes, I am quite certain that it would be newsworthy,
and it is true that we get reams of stuff. But, a very small percentage
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of it is used. Generally in a community such as my own community,
which is a town of about 3,000, the county seat, we rely upon the local
agricultural agents. We rely upon the head of the Soil and Water Con-
servation Service. They have offices there, and as I say we go to those
sources for our information. It may be from a lead from one of those
sheets, but locally I mean? that is the method of operation for most
newspapers to go.
Mr. CORNISH. Would you agree with me that the Government has a
responsibility if it is going to be in the process of disseminating infor-
mation to relay to the people the bad news as well as the good news?
Mr. LAMPSON. I would agree with you, but that is rather a utopia, I
think. I would not anticipate receiving very much of the negative.
Mr. CORNISH. Yes.
Mr. Sheldon, I was very interested in your testimony because most
of it seems to be centered on your experiences at the White House,
where I assume you have spent most of your editorial time. But how
about your experiences in dealing with the line agencies in obtaining
information? Do you run into many obstacles there at all?
Mr. SHELDON. Well, as you say, I have spent most of my time follow-
ing the President, so to speak. I at this moment in my career do not
have many contacts with the line agencies. The people in my bureau
do. They have the usual frustrations. I do not always hear about them.
I am trying to think of a specific instance which would illustrate their
difficulties. We do get a fair amount of cooperation on some of the
things that we write about. Some of the things that my particular
paper might write about may even be something that the agency wants
to cooperate with 100 percent. And it is when you get into the area of
investigating, when you get into the area of trying to uncover some-
thing wrong that they did, or something that they did not do that
you start to have problems.
Mr. CORNISH. That seems to be the real problem area?when you
start submitting inquiries?is it not?
Mr. SHELDON. Yes; but particularly when you are dealing in for-
eign policy and defense matters. As was said earlier, really our best
sources there are not documents or not asking to see documents. They
are speaking to and seeing people who can give you what is in the
documents and are willing to do so. When those dry up we are in real
trouble.
Mr. Coitifisrr. Are you familiar in any detail at all with the various
exemptions in the act which permit the Government to withhold cer-
tain information?
Mr. SRELnox. Yes, in specific areas.
Mr. CORNISH. Do you have any recommendations that might per-
tain to the possible elimination of any of those exemptions; that is, a
narrowing of the act? There has been some feeling as we review the
effectiveness of this act over a period of years, and in future Congresses
that actually what the Congress should try to do is to narrow the ex-
emptions in the act and attempt to eliminate them over a period of time
as much as possible. Do you think that is a good objective?
Mr. SHELDON. Well, yes; I think that is a very desirable and nec-
essary objective. I think most of us, most of us feel that there are very
few things which the Government does and says which cannot stand
the light of day, and that the public does not deserve to know. But,
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when we see the Government protecting the Pentagon papers which
are some 10 years old, we can see what we are up against. I cannot?
I think I would have to be more familiar with every clause of the
exemption and think through them a little bit more before I would say
where is the major weakness in th3re. The difficulty in the areas that I
am interested in is classification., and I do not know as any of the ex-
emptions really get at that problem.
Mr. Conmsn. That is a problem the subcommittee is going to deal
with at a later date, and I hope you will give us the benefit of your
views in some manner at that time, because that apparently is the
area which concerns you most.
Mr. It/0mmAn. Any further questions?
[No response.]
Mr. MooarssAn. Thank you vcry much, .0.entlemen, for your most
helpful testimony. We appreciate your takirig the time and the effort
that you have put into your statements..
Mr. LAMPSON. Thank you for the privilege.
Mr. Suanrc,n. Thank you.
Mr. SHELDON. Thank you, Mr. Chairman.
Mr. MoontrEAD. The subcommittee would now like to hear from Mr.
John Shattuck, staff counsel for the American Civil Liberties Union.
Mr. Shattuck has appeared before this subcommittee before, and has
given us much valuable help.
I have read the statement that you have prepared, Mr. Shattuck,
and you have done just what we -1.ad hoped a lawyer of your capability
would do, taking it section-by-section and giving us your analysis of
which bill you think does a better job., and also when you think neither
bill does an adequate job. This statement will be, I think, one of our
chief reference works when we get down to the legal draftsmanship. I
would suggest, if you can eliminate some portions as you go along, for
example, the long citations of cases and things like that, because the
hour is getting late and we want to be sure to have plenty of time for
discissi on.
STATEMENT OF JOHN SHATTUCK, STAFF COUNSEL, AMERICAN
- CIVIL LIIIERTIES UNION
Mr. Si TUCK Thank you, Mr. Chairman. I appreciate this oppor-
tunity to appear before you On behalf of the.Americ;an Civil Liborties
"Union to follow up our testimony of last year in the areas which we,
felt the set needed strengthentag. And as you have suggested, I have
submitted a rather lengthy statement, and will summarize it as briefly
as possible.
would ? like to point out at the outset an 'aspect of the act which I
think is ?Ann overlooked by -ecurts and by commentators, which is its
constitutional premise. 1 do not know whether any of your other wit-
nesses have addressed themselves to this, but I would like to highlight
that, aspect of my prepared, -statement. The legislative history of the
act, and a few of the courts that have construed h have pointed out
that it flows directly from the first, amendment. And the Supreme
Court has in other areas, not under the Freedom of Information Act,
recogni?zed that the, first amendment does cover the right of the public
to receive information. And I, of course, ,cannot think of any time in
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which this right is more important than today, as illustrated by recent
events in Washington.
Because the act places certain limitations on the right to know, I
think the best way to regard the exemptions is to see them as licenses
on first amendment rights. In other words, they should be strictly
limited and construed as narrowly and objectively as possible, not just
because Congress says so, but because they bear directly on the exercise
of the first amendment rights. As the hearings last year pointed out,
and your excellent report in September pointed out, the act has cer-
tainly not worked out the way I think it should, given its Constitu--
tional premise. The conflicts in the legislative history and the bureau-
cratic hostilities and judicial reluctance to give it broad effect, all of
these impediments have been chronicled in the hearings, and we have
brought them out in some of our own testimony.
Both of the bills befere this subcommittee go a long- way toward rem-
edying these snags, but I hav-e in my statement highlighted various
ways in which one bill is Sometimes stronger than the other. How-
ever, I think they both reflect significant progress on the issue of
bringing the Freedom of Information Act into conformity with the
first amendment right to know.
Since the exemptions have in many ways turned out to be the big-
gest stumbling block, I would like to look at them first. The difficulty
with the exemptions, as I am sure the committee is aware, stems from
a very restrictive interpretation Of the act by the Attorney General
in a memorandum issued in 1967. At least in part the difficulty stems
from that. The memo gave a very broad construction to the. exemp-
tions, relying on a conflict in the legislative history, and the agencies
have generally followed that Memorandum in applying the exemp-
tions, and in some cases so have the courts, although some courts have
realized that the Attorney General's memorandum is hardly a reflec-
tion of the statutory intent of Congress.
The first exemption, national security, has come to cover all classi-
fied documents, although the provision is "national security informa-
tion specifically exempted by Executive order," and there is no men-
tion of classified documents in the statutory language. I feel that the
first exemption, at least in my litigation experience, has acquired the
appearance of authorizing an unreviewable executive power to classify
documents, which is precisely the opposite from the purpose of this
statute. And I do not think Congress intended to provide the execu-
tive with authority to create an unreviewable classification system. But
the difficulty here, I think, lies more with the courts than with the
Congress, and Congress must now point out to the courts that they
have the power under the statute, even without amendment, to review
classification. The two amendments proposed in both bills emphasize
his by requiring in-camera inspection of classified documents. I think
this is what Justice White, at least in my optimistic view, was saying
in the Supreme Court's Mink decision. He was saying that the Con-
greSS has not clarified this matter for us, and the courts, at least reading
the first exemption narrowly, are not entitled to review classification
if a. classification has been made under an Executive order.
We, as ami ens curiae in that case, made the argument that an Exec-
a-dive order, according to our reading of the language of the exemp-
tion, would have to have been promulgated for each classified docu-
oc-370-73-17
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ment. That did not win approval by the five-man majority of the
Court. In his majority opinion, however, Justice White invited Con-
gress. to "adopt a new procedure,' for dassifying documents, and in
.anot her statement this morning 1 and another ACLU witness have
stated that we believe the Mkk decision in fact suggests that Congress
does have a constitutional power in this area to act on t he classification
system, and could, by additional statutory provisions, change the
entire system. Not only does Cie 1W bale decision suggest that, but it also
,invites Congress to give the courts the power to conduct in-camera
inspections. Justice White simply said that we do not have this power
At the moment.
I think .the standard in H.R. 5425 for conducting an in-camera in-
spection is considerably clearer than the standard suggested by H.R.
4960. iou have got to show the courts the way in this area, and as I
recall the language in H.R. 5425 is disclosure unless ' 'harmful to the na-
tional defense or foreign policy." This language requires the courts to
make a review which is more comprehensible than the one they are re-
quired to make under H.R. 4960 'to determine if the documents are
being improperly withheld." I am not at all concerned about the pro-
priety of forcing the courts in each case to make these classification
reviews in camera. I think Congress has got to act 'very vigorously in
this area because the courts se far have indicated that they are ex-
tremely reluctant to review any national security matters unless spe-
cifically given authorization by Congress. So, I wonld make this pro-
vision mandatory as it is in HE. 5425, requiring in-camera inspection,
and I wow a not merely suggess that the courts have the power to do
so. If the language is not intended to be mandatory, I ;suggest to the
committee that it should be.
. There are many reasons, of course. to require in-eantera. inspection.
The pcilitical abuses and the adriinistrative abuses of the classification
system have been well documented Ly your committee and by others,
and T. would lust like to address the subcommitteo's attention to the
example that I have given on page Ei of a professor at Smith College
who is seeking to write a book about the Alger Hi88 ease and is trying
to get access to documents which are between 25 and 10 years old, and
are consideted both investigatory files and national security documents.
But, he has been barred in a way that other writers unabashed pub-
licists ztnd apolo!-rists of the FBI have been permitted access to these.
documents. So. quite apart from whether or not the exemptions should
apply to the doeuments, if the executive is not going to apply them
even-handedly, they should not apply at all.
In another case illustrating the administrative abuse.. is cited on
page 7 of irly statement--a rehash of the Operat;an. Ke7 Haul files
ease, which I am sure the stibcemmittee is aware of. Following the
decision in Epste/n v. Re$or, the files of the forced repatriation of
Russian refugees after World War II were declassified by the U.S.
Government, but they continue to be withheld solely for the ad-.
ministrative convenience of thi British Governmcnt who claim
that they do not have time to address declassification of post-World
War II docuinents. The U.S. Government is not evsn asserting, hi.
claiming the first exemption, in tais case that there would be any in-
jury to -the national security if the documents were released, but they
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simply say that they are required under Executive order to yield to
the British desire that they not be released.
I would like to say just one more word about classification before
going .to the second exemption. A memorandum in the National Secu-
rity Council that has been requested, as I understand it, by the chair-
man of this subcommittee as well as by myself on behalf of some.
clients in the American Civil Liberties Union. This memorandum pur-
ports to underlie the new Executive order for classification, and it is;
based on a study that was done by a special White House team that.
originally was directed from the Justice Department by now Justice'
William Rehnquist, but then subsequently by Mr. David Young at the
White House. And the study I believe covers the extent of over-classifi-
cation and gives some very important statistics about that within all of
the branches of the Government. When the new Executive order was
first promulgated, Mr. Ehrlichman, in a press conference, stated that ?
this study had been completed 6 months previously, in January 1972,,
and it was supposedly not classified. And he stated that it was not clas-
sified at that time, and he gently chided the press for not having gotten
hold of it. Subsequently when we began to try to get hold of it we
were told that, first it was simply a directive and not a document avail-
able to the public; then that it was an internal memorandum, even
though it clearly contained many statistical evaluations about the
Government's classification practices. Finally, there is now a hint that
it is classified, even though at the time that it was announced it was
not. I think this is an extremely important document, and I would
urge the chairman to do everything that he can do to acquire it. And
I represent that by the middle of this month if I have not gotten
hold of it I will probably file suit to do so. I believe that it would
be the first glimpse of the Government's study of its own overcl.assifi-
cation practices.
Well, briefly on the second exemption, the internal personnel rules
and practices, there is a very important amendment in H.R. 5425
which would make it crystal clear that the exemption is to cover only
documents, the disclosure of which would unduly impede the function-
ing of an agency. This is very important. We have two cases where
matters of public importance or constitutional importance have been
withheld under the second exemption, and they do not appear to me
in any meaningful way to be internal personnel rules or practices. The
first is a, press credentials case where a client of ours was denied admis-
sion into the White House as a newsman. We discussed this in our
testimony last year. He was not told the reasons for this denial
because the Secret Service claimed that it would reveal the internal
practices of the Secret Service, an extraordinary citation of the exemp-
tion since there is no way without filing suit, claiming that he has been
arbitrarily denied access to the White House, that this person can .find
out why he was not permitted to get in.
Now, the second case is a case where we are trying to obtain docu-
ments concerning the honor code system at the. Air Force Actu'emy, a
subject which is so celebrated that I notice that it appeared, with re-
spect to one of the other service academies, on page 10 of the New York
Times this morning. Nevertheless, the district court decided that case.
against us on the ground that the second exemption applied because in
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the court's -view the documents were internal matters in the Air Force
Academy. Because of these overly broad interpretations of the current
exemption, we support the amendments proposed for subsection 2.
The fourth exemption is amended in H.R. 5425 to bring it in line
with the decision in the 0 on,sumers Union case. it is an excellent
amendment, and I believe that many witnesses testified that it was
necessary in hearings last year. The amendment proposed in H.R.
4960 we feel is counterproductive. We may misunderstand it, but it
appears to allow an executive agency to give a pledge of confidentiality
for any financial information that it receives. But, the purpose of the
exemption would be to protect the person submitting the information,
not the agency, and we do n.oe feel that pledges of confidentiality
should be given by any agency. Furthermore., the burden of proving
that the information given to the agency was confidential should be on
the person submitting it.
The fifth exemption, the internal memorandum exemption is one of
the muddiest areas in the statute. 1 hear rumors that some people
Would like to abolish it entirely. We feel that it dove serve a purpose,
but we were disappointed to find that neither bill proposed what we
thought was necessary to separate facts from fiction, facts from coin-
ion or advice, and to require the production of all factual information
in any internal memorandums. 1I.11. 4960 appears to require a separa-
tion of information generally exempt from nonexempt information,
but this does not seem to apply to exemption No. 5 because the bill
would amend subsection 5 to permit the withholding of documents con-
taining presumably in any part opinion or advice. That is a broadening
of the exemption, so we are very strongly opposed to the H.R. 4960 ap-
proach. and suggest that a further amendment is necessary which
would require courts, in camera, to separate fact. frcm advice and, in
fact, this is the solution that was proposed by Justice White in the
Mink case. If a flexible approach similar to the one that he suggests
is taken, I think that would possibly solve many of the problems under
the internal memorandum exemption.
The sixth exemption, the privacy exemption, would be amended
very minimally by H.R. 5425 to prevent a commingling of exempt
and nonexem.pt information in one file. In other words, if there were
some privacy-invading documents, they should not be covering other
documents -which are not privaey invading. We think an additional
amendment is necessary, however, and it is one that, the courts have
found satisfactory in this area, -which is to require the deletion Wher-
ever possible of the names and dentifying information which would
invade privacy, and then to release the documents. I think that this
would be a simple amendment which could be stated in permissive
terms so that the courts would caearly have the power to require agen-
cies to delete identifying information..
The. seventh exemption, the investigatory files exemption, has been
one of the sticky points in the statute. In this area there are two very
important amendments which we support. The one in H.It. 5425 would
narrow the definition of "investigatory" so that it would cover only a
"specific law enforcement purpose," and even then would eliminate
scientific and other information which might be i ncluded within an
investhratory file. The amendment offered by H.R. 4960 takes care
of one of the other problems of the current investigatory files exemp-
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tion, and requires the agency withholding such a file to show that there
is a ?genuine risk to law enforcement hi order to continue to withhold
it. This would permit disclosure of at least some of the dead files that
are often sought under the Freedom of Information Act -which May
once have served a law enforcement purpose, but where them is no
further law enforcement purpose to be served. There are a variety of
cases cited in our statement where the courts of appeal have found
that solution to be acceptable, and we, therefore, commend the amend-
ment in TER. 4960. We have a case which I mentioned briefly earlier
which I think is an excellent example of this problem. This is the case
where our client, a professor, is seeking 25- to 40-year-old investigatory
documents which stopped serving their law enforcement purpose at
least 25 years ago. And we feel that they could be released, and the
protection of informants or others be secured by deleting their names.
If the amendment in II.R. 4960 were. enacted, documents of that. kind
would be more readily available.
I will pass over the section in H.R. 5425 which requires all informa-
tion to be submitted to Congress which would otherwise be covered by
the exemptions. I have discussed it briefly, and this morning I, with
another ACLU witness,- testified on this subject on the Senate side.
This is really a matter of executive privilege, and I know the com-
mittee is very interested in it, but for the purposes of this testimony
I am not sure we should go into it. I probably disagree with a number
of the committee members because we do feel that the purely advisory
and opinion communications within all branches of Government
should, in fact, be protected from disclosure. They should not be with-
held at the unreviewable discretion of the branches. The Court should
be permitted to come in and where there seems to be an abuse, to compel
the disclosure. But, we do not support an across the board probe of the
thinking processes of the executive branch by the Congress.
Mr. Mooniman. You mention that you have a position paper entitled
"Executive Privilege, Congress and the Courts." I think the subcom-
mittee would certainly like to have a copy of that study for insertion
in other hearings of the subcommittee on that subject.
Mr. SHATTUCK. I will be glad to provide it. We have a short sum-
mary of it, too. The paper is about 70 pages long.
Leaving the exemptions and concluding the testimony by addressing
myself to the administrative enforcement amendments which have
been proposed in the two bills, there are a number of very important
ones. The identifiable records requirement is amended by H.R. 5425 to
require that documents be made available. We have had a great deal
of difficulty with the identifiable records requirement. Sometimes ? an
agency will say if your request is for files which are too voluminous
they will consider that those are not identifiable, and in other instances
they require you to tell them what their own internal markings on
the documents are, which is a "Catch 22". situation, to say the least.
The amendment in H.R. 5425 would considerably alleviate these
difficulties.
The costs problems that were highlighted in the testimony last year
I do not think were addressed by either of the bills, and I was disap-
pointed. Our experience has been that persons requesting information
under the statute sometimes have to pay as much as 75 cents a page, and
then are charged additional fees for routine retrieval. I would hope
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that an amendment could be introduced or incorporated in one of the
hills saying that fees would have to be strictly limited to the out-of-
pocket expenses of the Government agency.
The provisions on time and the exhaustion of administrative rem-
edies are generally acceptable. to Is. We thought that they reflected a
reasonable approach. We were inpre in agreement with the approach
in H.R. 5425 than in H.R. 4960 because it seems to be stricter. To
create a number of exceptions to the 10-day response requirement
seems to invite abuse, and since the committee last year in its report
suggested that the information offices of each agency should handle
most of the requests, we feel thti if the requests were regularized in
that manner it would not only be reasonable to limit the agencies to
10 days, but I think we. should expect that responses would be received
in a few days if people are spending full-time on this -matter, and rou-
tine requests processed very quickly.
Requiring the Government to answer a complaint in court in 20
days is a very important amendment in H.R. 5425. The Government
will have formulated its position previously in the administrative pro-
ceeding, and there is absolutely no reason to give them 60 days to re-
spond to an FOIA complaint. In fact, the reason that the newsmen
have used this statute so little I think is perfectly exemplified by the
requirement that you must wait 60 days after exhausting your admin-
istrative remedies before getting i response.
Finally, the mandatory inspection which is required by H.R. 4960,
giving the. court no leeway to refuse to disclose documents which are
not exempt on an equitable basis, I think is excellent.. We have had
experience in a variety of ways with courts who even though they are
convinced that no exemption applies still continue to think the public
interest has been served by having the documents withheld, which is
an extraordinary reading of the statute, and to force the court to take,
jurisdiction and to grant injunctions is therefore essential.
Finally, in one case which we also described last year, and which has
recently been decided, we have had a court reach out and of its own
accord decide that an exemption which had never been argued before
applied, and refused to enjoin the withholding of the information.
This is a tricky matter, but I think that the mandatory injunction pro-
vision would cover that. Since the burden of proof is clearly on the
agency, and if the agency fails to shoulder that burden, the amend-
ment in H.R. 4960 would quite properly prevent a court from reaching
out sua sponte and deciding an exemption applied that had not been
argued below.
Finally, the machinery for the congressional oversight which is pro-
vided in both of the bills is probably beyond our competence to com-
ment on. But we support it, and I assume it reflects great deliberation
by the committee as to the best way to conduct this oversight. Clearly
congressional oversight is necessary, and whatever machinery is set up
would hope-fully be able to perform as magnificently as your com-
mittee has performed in the last 2 years to bring pressure to bear on
the agencies to live up to the Freedom of Information Act.
Mr. MO6RITEAI). Thank you very much, Mr. Shattuck. And in case
I did not, do this before, T would say that without objection your en-
tire statement will be made a ,iart of the record. And we appreciate
your ability to summarize it so e ffectiyely and briefly.
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[The statement referred to follows:]
PREPARED STATEMENT OF JOHN SHATTUCK, STAFF COUNSEL, AMERICAN CIVIL
LIBERTIES UNION
My name is John Shattuck and I am Staff Counsel for the American Civil
Liberties Union, a nationwide, nonpartisan organization of more than 200,000
members, on whose behalf I appear today. The resources of the ACLU are en-
tirely devoted to advancing and defending the Bill of Rights. During its fifty-
three year existence the ACLU has been particularly concerned with the free-
doms protected by the First Amendment, and in recent years we have repre-
sented a wide variety of citizens requesting disclosure of information from exec-
utive agencies of the government.
The right to know how the government is discharging its duties is essential
to a democratic people who would be their own governors. This is the constitu-
tional idea underlying the Freedom of Information Act. As President Johnson
commented when he signed the new law in 1960:
This legislation springs from one of our most essential principles: a
democracy works best when the people have all the information that the
security of the Nation permits . . . 2 Weekly Compilation of Presidential
Documents 895, July 11, 1566.
This Committee in its Report to the House had earlier expressed a similar view-
point:
A democratic society requires an informed, intelligent electorate, and the
intelligence of the electorate varies as the quantity and quality of its in-
formation varies. A danger signal to our democratic society in the United
States is the fact that such a truism needs repeating. . . . House Report No.
1497, at 12. See also, Senate Report No. 813, at 3.
I. THE FAILURE OF THE FREEDOM OF INFORMATION ACT TO LIVIC UP TO ITS
CONSTITUTIONAL PREMISE
An understanding of the constitutional premise in the Freedom of Informa-
tion Act is essential to defining its proper scope. This premise is too infrequently
explained by courts interpreting the Act?one reason why the Act has often been
so narrowly interpreted as to defeat its purpose.
The Supreme Court has long held that the First Amendment protects not only
the right of citizens to speak and publish, but also the right of the public to
receive information. See Martin v. City of Stru,thers, 319 U.S. 301, 308 (1965)
(Brennan & Goldberg, JJ., concurring) ; Stanley v. Georgia, 394 U.S. 577, 564
(1969) ; New York Times v. Sullivan, 376 U.S. 254, 270 (1963) ?, see generally
Office of Communication of United Church of Christ v. F.C.C., 359 P. 2d 994 (D.C.
Cir. 1966). Thus, the Act must be seen as an affirmative effort on the part of
Congress to give meaningful content to the system of freedom of expression as
provided by the First Amendment. See Emerson, The System, of Freedom of
Expression (1971)7 Chapter XVII.
Because the public interest in disclosure of government documents under the
Freedom of Information Act rises to constitutional stature, Congress specifi-
cally limited the circumstances under which this interest may be governmen-
tally restricted to tile nine exemptions provided in subsection (b) of the Act.
Subsection (c) also provides: "This Section [5 U.S.C. ? 552] does not authorize
withholding of information or limit the availability of records to the public,
except as specifically stated in this section." The purpose of this provision is
crystal clear. As the Senate Report stated:
The purpose of this subsection Is to make it clear beyond doubt that all
materials of the Government are to be made available to the public by pub-
lication or otherwise unless explicitly allowed to be kept secret by one of
the exemptions. S. Rept. at 10.
The House Report contains very similar language. Sae House Rept. at 11.
Since the exemptions touch on First Amendment interests, they have the effect
of "licensing" free speech and public debate. For this crucial reason they must
be drafted by Congress and construed by the Courts as "narrow, definite and
objective standards to guide the licensing authority." Shuttleworth v. Birming-
ham. 394 U.S. 147, 151 (1969). Moreover, they must be applied where applicable
in a "uniform, consistent and nondiscriminatory" manner by federal agencies
receiving requests for documents. See Cox V. Louisiana, 379 U.S. 536, 545 (1965).
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Unfortunately, the Act has not worked out that way. Conflicting legislative
history, ns well as bureaucratic hostility and inertia, coupled with a general re-
luctance on the part of the judiciary to give it bread effect, has converted the
statute in many respects into a "Freedom from Information Act." And all of
this has happened at a time when the Act is desperately needed to counteract
a:general increase in government semecy.
In testimony .a year ago before this subcommittee, Sanford Rosen and I oat-
lined the ACLU's principal ceoicerns about the operation cf the Freedom of
In-
formation Act. We gave ,a variety of examples from our own experienee of the
extreme reluctance of executive agencies to abide by its spirit, and we at-
tempted to pinpoint the statutory loopholes which in our view tended to frns-
trate the public's right to know, and to dampen informed Ilebite about istes
of private as well as public Importance. We expressed parrienlar Concern 'aTiont
certain ambiguities in the affirmative provisions of the Act, such as the defini-
tions of "agency", agency "orders" and "statements of policy" ; the lael; of a
mandatory judicial enforcement mechanism; and confusion about whei her a
person muse show a particular "rt.ed" for government information before he
can compel its disclosure.
We also addressed ourselves to the breadth of the nine exemptions and the
imminent danger?again, in light of our litigation experienc-that these exemp-
tions would Swallow up the aflInnative provisions and defeat the purpose of the
Act. This seemed particularly trite of the national security [ ( ( b) (1)1 and in-
vestigatory files [ ( (b) (7)] exemptions,-Our experiences over the last year have
even :More solidly confirmed this fent., as I will describe Li er inqll wo also
voiced our concern in our testimony last year about the growth of obstructive
administrative procedures for proce..ssing requests for information under the
Act. These include complicated agency request forms, exorbitant filing and re-
production fees, an unreasonable dEgree of specificity in identifying requested
documents, refusals to separate non-exempt from exempt iefformation, and un-
conscionable delays in processing initial requests and administrative appenis.
In each of these areas where we felt the Act was not working properly we gave
examples from cases in our own files, and we were not surprised to find tha t the
Government Operations Committee Report last fall contained mores of similar
examples of the malfunctioning of the Act.
The two bills which the subcommittee is now considering are lmportant steps
toward remedying some of these basic deficiencies. While we generally sutpert
the remedial i:hrust of both of the bills, each of them has particular shorDi!c.pargs
and strengths which I would like to try to pinpoint. In order to compare them
I have found it convenient to discuss them in terms of their sometimes differing
approaches to what information should be exempt from the Act and how the
Act should be administered and eni7o:.1ced. Because I believe the exempt ions are
the single largest problem in the exikting statute, I shall lock first at the ways
in which H.R. 5425 and H.R. 4960 WO alcl amend subsection (b) of the Act.
D. AMENDING THE EXEMPTIONS FROM THE AOT
The difficulty with the exemptions :from the Act seems to start with a memo-
randlun issued by the Attorney General in 1967, soon after enactment of the
statute. ("Memorandum on the Public Information Section of the Administra tive
Procedure Act".) This memorandum analyzed the Act, and particularly its
exemptions, in very restrictive ter/11s :'or the edification of government agencies.
It took advamage of a conflict in the legislative history and, with deference to
this subcommittee, relied exclusively on a rather expansive view of the exemp-
tions taken by the House Government Operations Committee in its Report on
the bill. The House Report, however, did not reflect the view of the Congress, hav-
ing been written after the Senate had acted on its bill and tubing, a considerably
different position from the Senate Committee Report.'
1 A few discerning courts have recognize? that '[s ince only the Sen rite -eport Virl-
sidered by both houses of Congress, the Senate Committee's reading of the Am- t a
better indieavon of legislative intent wi en tipe two reports coral 'ct.' ee 1:77(rWr,
Union of the United States, Inc. v. Vettrans' Administration, 301 F. Rupp. 795, 801
(S.D.N.Y. 1969) : Benson v. General Services Administration, 259 F. iimm. 590, 595 (WI).
Wash- MS), (fff'd on other grounds, 915 F. 2d 875 (9th Cir. 1969) goncce V. David, 148
F. 2d 1067, 1077 (D.C. Cir. 1971). See also Getman V. NLRB, 450 l'. 2d 670 (D.C. Cir.
1971).
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Nevertheless, the damage was done by the Attorney General's memorandum,
which has studiously been followed by most government agencies. Since no gov-
ernment witness had testified in favor of the Act when it was being considered in
Senate and House hearings, the agencies were of course delighted to find the
Attorney General giving it a restrictive interpretation.
The Attorney General's expansive interpretation of the exemptions has been
transmitted not only to federal agencies who must comply with the Act, but also
to courts who must resolve the conflict between disclosure and exemption.
Some courts have even upheld assertions of exemption by expressly relying on
the Attorney General's Memorandum. See e.g., Benson v. General Services Ad-
ministration, 289 F. Supp. 590 (W.D. Wash. 1968), affirmed on other grounds,
415 F. 2d 878 (9th Cir. 1969) ; Consumers Union of the United States v. Veter-
ans Administration, 301 F. Supp. 796,801 ( S.D.N.Y. 1969).
Let us then look at several of the more important broadly interpreted exemp-
tions and the amendments proposed in H.R. 5425 and H.R. 4960.
(a) "National security information specifically exempted by Executive order"
[?(b)
The first exemption has increasingly become the greatest deficiency in the
statute. Instead of reducing the obsessive secrecy in which the Executive con-
ducts foreign and military affairs, it has tended to enhance and legitimate that
secrecy by appearing to authorize an unreviewable executive power to classify
documents.
In many respects this is the fault of the courts, not of Congress. While the
courts are authorized by subsection (a) (3) to conduct a thorough review of each
case of non-disclosure, when the national security exemption is asserted they
decline to exercise their review power. This situation was brought to a head in
January of this year when the Supreme Court held in its controversial 6-3 Mink
decision that any classified information is exempt from disclosure whether
or not it is properly or necessarily classified, and that a court is not entitled to
review the propriety of the decision to classify [Environmental Protection
Agency v. Mink, ? U.S. ?, 41 U.S.L.W. 4201 January 23, 1973) ] Mink, as the
subcommittee knows, involved a request by 33 Congressmen for the release of
classified documents concerning the anticipated environmental impact of the
underground nuclear test on Amchitka Island. Despite the extraordinary im-
portance of the documents to a proper legislative debate, and in the face of
evidence of the rampant overclassification and lumping together of classified
and unclassified information, the Supreme Court held that the documents could
not even be inspected by a court.
I believe, however, that the Mink decision was implicitly an invitation to Con-
gress to amend subsection (b) (1) to require judicial review of documents claimed
to be exempt by reason of their general classification. I am pleased to see that
the sponsors of H.R. 5425 and H.R. 4960 apparently share this view.
In his opinion for the majority in Mink Justice White rejected the argument
of the respondents and the ACLU as amicus curiae that in order to qualify for
the exemption each document would have to be classified pursuant to a specific
order of the President and that the courts were therefore empowered to make an
in camera inspection to review the propriety of the general classification. Justice
White rejected this argument because in his view the language of subsection (b)
(1) did not support it. On the other hand, he carefully pointed out that "Con-
gress could certainly have provided that the Executive Branch adopt new pro-
cedures, or it could have established its own procedures . . ." 41 U.S.L.W. at
4204 [emphasis added].2
The new procedures proposed in H.R. 5425 and H.R. 4960 would have a salu-
tary effect on the classification crisis resulting from the practices of the Execu-
tive Branch and brought to a head by the Supreme Court in Mink. Both bills
would require in camera inspection of documents claimed to be exempt, as part
of the court's de novo review procedure under subsection (a) (3). This inspec-
tion would apply to all documents, but its effect would be most pronounced on
documents withheld under the (b) (1) exemption.
2 It is our view that this language also Implies, and properly so, that Congress itself has
the constitutional authority to establish a classification system, and that Executive Order
11652, which authorizes the current classification system could not survive a direct con-
gressional challenge by way of new legislation. See Dorsen and Shattuck, "Executive Privi-
lege, the Congress and the Courts" [see p. 157].
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262
Of the two versions of this in eaniesa review amendment, the one proposed in
Section 1(a) (d) of H.R. 5425 is preferable. Clarity is essential in matters: of
"national security" and the courts must be given a legislative standard to apply
to their in camera inspections. A standard which requires disclosure un: ess
"harmful to the national defense or foreign policy" (H.R. 5425) is considerably
more comprehensible than one which requires in camera inspection of classicfted
documents "to determine if they are being improperly withheld" (See. 101, H.R.
4960). Needless to say, some deference would have to be paid to a well consid-
ered and procedurally correct executive decision to classify, but the traditional
reluctance of the courts to conduct any review of "national security" determina-
tions would provide a built-in safeguard against judicial abuse. Indeed, the cen-
tral problem is to coax the courts to play even a limited role in this area.
Expanded Pelletal review of chtima of the (b) (1) exemption is essential to
prevent political, and administrative abuses of the classification system.
The political abuses are too numerous to catalogue. One particularly striking
example c.otales from my own litigatior. Professor Allen Weinstein is chairman of
the American Studies Department at Smith College. For the last five years he
has been researching and writing about politics in the early Cold War period.
His research has led him to an intensive study of the Alger Hiss; perjury-espionsee
case, and ?he has repeatedly attempted to gain access to the voluminous dead
FBI files on the case to verify the position taken by several other writers that
the Hiss defense was a hoax. These other writers?unabashed publicists and
apologists for the FBI?have by their own admission been permitted to inspect
the FBI files, although they have cited no documents in reaching their conclu-
sions. Weinstein, however, has been denied access by the FBI, presumably be-
Cause be has published a widely respected article indicating that at least for him
the case still raises unresolved questons. He has now sued the FBI under the
Freedom of Information Act, but has immediately run up against the national
Security and ihvestigative files exemptions, even though the documents are more
than twenty-f.ve years old, are part of a closed case, and have been disclosed
already to otter persons. The case is now pending in the District Court here in
Washington [Weinstein v. Gray, Civil Action No. 2278-721.
Administrative abuses of the classification system are a result of its sheer
weight. Under Executive Order tor,o-:? there were more than 40,000 persons in
the Defense Department alone with authority to classify, while under the hew
Executive Order 11652, as a study by the staff of this subcommittee has shown,
"the number of persons granted a.utherity to wield 'SECRET' stamps mushrooms
. .
for every person with 'TOP SECRET' authority can designate without limi-
tation any subordinate to use 'SECRET' stamps." CONG. REC. at E 2776 (March
21, 1972).
I would like to describe briefly one example of what I consj.der an administra-
tive abuse which would not withstaul scrutiny under the in camera inspection
procedure pro nosed in H.R. 5425. Professors Bertram Wolfe, Lev Dobriansky and
Julius Epstein (an historian, economist and international lawyer, respectively)
have requested production of the so-called "Operation Keelhaul" files concern-
ing the forced repatriation of Russian refugees after World War II. Ir an
earlier case the documents were held to be exempt under subsection (b) (1)
because they were classified, althougl the district court refused to inspect them.
Epstein v. Resor, 421Y. 2d 930 (9th. (ir. 1970).
A year later the documents were cleared for declassification?presumabl7 as
a result of time lawsuit, since this subcommittee heard testimou last year that
160 million pages of World War II documents have still not been reviewed for
declassification [Hearings before a Subcommittee of the Haase Committee on
Government .. Operations on U.S. Government Information Policies and Practices,
92nd Cong., 2nd Seas . (1972) (daily transcript), at 1012]. Nevertheless, the docu-
ments have not been released because they are still classified by the British, who
have retained a separate copy.
The professors have been told, moreover, that the British refuse "to address
the question Of declassification until they [have] completed their review or all
their wartime documents," although there is no indication that they pose any
objection to declassification based on the contents of the documents, [Exhibit A
to Plaintiffs' Memorandum of Law in Support of their Motion for Summary
Judgment, Wolfe v. Frochike, Civil .A.ction No. 2277772 (D,D.C.) ]. In defending
Its claim of exemption, the government has candidly declined even to include
an assertion that disclosure would cause significant injury to our relations with
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Great Britain or any other country, and rests its case entirely on the assumption
that the court will not review the documents which can be withheld solely
because the British have not concurred in their release. In short, these important
historical documents are being withheld solely for administrative reasons, and
even then, for the administrative convenience of a foreign government.
(b) "Matters related solelly to the internal personnel rules and practices of
an agency" [? (b) (2)].
The second exemption should have caused no problems at all, but it has.
Part of the difficulty stems from a conflict in the legislative history. While
the Senate Report took the position that the exemption did not cover informa-
tion pertinent in any way to persons outside an agency,' the House Report
treated it as somewhat broader in scope.'
Since the sole purpose of the exemption is to prevent persons outside the
agency from disrupting matters which are solely internal and unrelated to the
public, a broad interpretation does not seem justified. Accordingly, we welcome
the amendment proposed in H.R. 5425 which would limit the exemption to
"internal personnel" matters "the disclosure of which would unduly impede
the functioning of [the] agency" [Sec. 2(a)].
The abuses to which the existing language has been subjected are illustrated
by two ACLU cases. In one case, mentioned in our previous testimony, we are
representing a journalist who is seeking to be accredited as a reporter to cover
the White House. He has been denied press credentials. Seeking a statement
of reasons for the denial, he was informed by the Secret Service that the infor-
mation was exempt front disclosure because it would reveal "internal practices"
of the Secret Service within the terms of subsection (b) (2). In this case, there-
fore, the exemption was used to bar discovery of information pertinent to the
apparent denial of a First Amendment right, and our client was forced to go
into litigation to find out why he was barred from the White House.
In another case also briefly touched upon in our testimony last year, editors
of the New York University Law Review have attempted to obtain "sanitized"
case studies of the well publicized disciplinary hearings at the United States
Air Force Academy in order to document an article on military discipline. The
Air Force refused to disclose, relying solely on the "privacy exemption" [sub-
section (b) Oa The District Court held that this exemption was inapplicable.
Nevertheless, the court also held, sue sponte, that the records were exempt under
subsection (b) (2), notwithstanding the fact that the Air Force itself had gen-
erated considerable public debate about its "Cadet Honor Code" by defending
it in press conferences, The White House in November 1972, a month before the
Court's decision, issued a press release announcing the completion of a presi-
dential study of morale and discipline at the service academies. In short, the
documents sought were considered to be important to persons outside the Acade-
my, and for this reason the Air Force did not rely on the (b) (2) exemption
which the court held applied. Rose v. Department of the Air Force, - F. Supp.
( S.T).N.Y. Dec. 29, 1972).
The district court's decision in RO8C also raises a serious question about the
power of a court to disregard the burden of proof requirement of the statute.
We recommend that Congress make it crystal clear that the burden is on an
agency to show that it is entitled to exemption, and that a court is therefore
without jurisdiction to deny disclosure on a ground not presented by the agency.
Any other interpretation is inconsistent with the fact that the exemptions are
intended to be permissive not mandatory.
(c) "Trade secrets and commercial or financial information obtained from a
person and privileged or confidential"
[?(b)(4)].
The fourth exemption is amended by both bills, but the formulation in Sec.
2(b) of H.R. 5425 is the more sensible of the two.
3 The Senate Report at P. 8 explains: "reixemption No. 2 relates only to the Internal
personnel rules and urnetices of an mreney. Examples of these may be rules as to person-
,ors us- of nack-ing facilities or regulation of lunch hours, statements of policy as to sick
leave, aml the 1P-e."
kfThe House Committee Report states at P. 10: "(ml afters related solely to the internal
personnel rules and practices of any agency, operating rules, guidelines, and manuals of
procedure for Government investigators or examiners would be all exempt from dis-
closure." The Attorney General's Memorandum at pp. 30-31 accepts the House interpreta-
tion without so much as a passing reference to the conflict between the two reports.
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264
The problem with the existing exemption is that it has been claimec by
agencies and sometimes interpreted by courts to apply to non-commercial and
financial information which the agency rather than the person who provided the
information claims is confidential. As we pointed out in our testimony last spring,.
agencies have denied disclosure of documents under subsection (b) (4) which
are confidential but not commercial or financial in nature, e.g., Barceloneta
shoe Corp. v. Compton, 271 F. Sinop. 591, 594 (D.P.R. 1967) (statements of per-
sons given in confidence to NLRB agents in connection with the investigation of
an unfair labor practice) ; cf. Tobacoc Institute v. FTC, Civ. No. 3035-67 (D.D.C.
1968). On the other hand, agencies have also refused under this exemption to
disclose commercial information even though it was not "ol. Mined from a per-
son" but was developed by the agency. We had a client last year, for example,
who was a nonprofit educational corporation. This organization requested the
Army to supply it with data about a new 35-millimeter film projector the Army
had developed. Even though the Army had no commercial interest in the :pro-
jector, the data was withheld for more than three months under a claim of the
(b) (4) exemption. On a final administrative appeal, under threat of litigation,
it was released.
Only a few courts have applied a properly restrictive interpretation to subsec-
tion (b) (4). In Consumers Union v. Veterans Administration, 301 F. Supp. 796
(S.D.N.Y. 1969), a case brought by an ACLU General Counsel, it was held that
information to be exempt had to be ( I) privileged or confidential, and (2) com-
mercial or financial or a trade secret, and (3) obtained from a person outside
the agency. See also Grumman Aircraft Corporation v. Renegotiation Board, 425
F. 2d 578 (D.C. Cir. 1970). This is now made clear by the amendment proposed
in H.R. 5425, which we support.
The amendment contained in Sec. 103(a) of II.R. 4960 seems both superfluous
and confusing. Insofar as an agency has obtained information "from a person
under a statute specifically conferring an express grant of confidentiality," that
information should be exempt from Cisclosure under subsection (0) (3) of the
Act. On the wilier hand, by permitting an agency to confer a "pledge of confi-
dentiality" on the person supplying: it, thc agency is given an I Ipportunity to
claim the exemption even when the outside "person" does not require protection.
We believe that the burden of justifying any claim of confidentiality in this
commercial area should be placed on the person submitting the information, and
that the agency should disclose all such information unless its supplier can bear
this burden. Apparently this is the practice of the Environmental Protection
Agency, and it should be recommended to other departments, [See Administra-
tion of the Freedom of Information Act, Twenty-first Report by 1 he Committee
on Government Operations, 92nd Cong., 2nd Sess. (Sept. 20, 1972), at 34].
(d) "Inter-agency or intra-agency memorandums or letters which would not be
available to a party other than an agency in litigation with the agency"
[? (b) (5)].
The internal memorandum exemption is one of the muddiest areas in ithe
statute. It is unfortunate, therefore, that neither bill comes to grips with the
needs to require agencies, whenever feasible, to separate fact from advice. This
problem was discussed in our testimony last year, as well as in the testimony of
other witnesses.
It is unnecessary to repeat the numerous examples contained in the subcom-
mittee's earlier hearings of refusals by courts as well as agencies to limit this
exemption to policy matters. While it is reasonable to exempt documents in
which "facts" and "policy" are 'inextricably intertwined," it is unreasonable
automatically to apply the exemption to documents which contain any element
of "policy" or "advice", however inconsequential.
Justice White addressed this problem in his opinion for the majority in Mink.
In explaining why Congress had rejected an earlier version of the exemption,
which was limited to internal memoranda "dealing solely with matters of law or
policy," 41 U.S.L.W. at 4206, Justice White pointed out that
. . . the change cannot be read as suggesting that all factual material was
to be rendered exempt from compelled disclosure. Congress sensibly dis-
carded a wooden exemption that could have meant disclosure of mani-
festly private and confidential policy recommendations simply because the
document containing them also happened to contain factual data. That de-
cision should not be taken taken, however, to embrace an equally wooden
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exemption permitting the withholding of factual material otherwise avail-
able on discovery merely because it was placed in a memorandum- with
matters of law, policy or opinion. 41 U.,S.L.W. at 4207 [emphasis added].
The opinion went on to recommend flexibility in applying the exemption and
suggested that agencies and courts wherever possible should make available
to persons seeking documents under the Act "purely factual material appearing
in those documents in a form that is severable without compromising the private
remainder of the documents." Id.
This is sound advice. In our view it should be embodied in an amendment to
subsection (b) (5) of the Act, since experience has shown that agencies and,
to a lesser extent, courts are reluctant to adopt such flexibility on their own
initiative.
The amendment proposed in Sec. 101 (b) of H.R. 4960 would only make mat-
ters worse. Agencies should not be invited to withhold documents "which contain
[presumably in small as well as large part] recommendations, opinions, and ad-
vice supportive of policymaking processes." This broad language is apparently
contradictory of the provision in Sec. 102 of the same bill, which expressly re-
quires an agency, where possible, to separate exempt from nonexempt material.
It is this latter approach which should govern the internal memorandum ex-
emption, as well as the other exemptions. Accordingly, Sec. 103(b) of H.R.
4960 should be deleted, and a provision similar to Sec. 102 of that bill should be
added to H.R. 5425.
(e) "Personnel and medical and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy" [? (b) (6)].
The only change proposed for this exemption is contained in Sec. 2(c) of
H.R. 5425, which would substitute "records" for "files". According to Chair-
man Moorhead the purpose of this amendment is to "close another loophole in
the Act whereby releaseable information is often commingled with other types
of information in a single 'file', and therefore withheld." CONG. REC. II. 1590
(March 8, 1973). This seems sensible.
In our earlier testimony, however, we proposed an additional amendment
which I wish to press again. It should be made clear that personnel or medical
files can be released if the private and personal material is deleted. The ex-
emption must not be used to allow the withholding of unobjectonable material
merely because it is contained in the same file as material that invades a per-
son's privacy. In fact, as suggested in Sec. 103 of H.R. 4960, whenever exempt
matter is mixed with non-exempt matter, the agency bears the burden of
separating the non-exempt matter and disclosing it.
Very few agencies have adopted this practive of "sanitizing" records in order
to protect personal privacy rather than merely withholding them, but the courts
have generally compelled them to do so whenever possible. See, e.g., Wellford v.
Hardin, 315 F. Supp. 768 (D.D.O. 1970), aff'd 444 F. 2d 21 (4th Cir. 1971) : Grum-
man Aircraft Corporation v. Renegotiation Board, supra; Rose v. Department
of the Air Force, supra. The District Court in Rose summarized this practice as
follows:
Revelation of a set of facts absent some type of association with a person's
name seems to us incapable of invading anyone's personal privacy. It is only
the identifying connection to the individual that casts the personnel, medical,
and similar files within the protection of the sixth exemption. The Act and
courts following the Act, therefore, permit deletions of exempted portions
of documents but then order the remainder to be released. Rose v. Depart-
ment of the Air FOce, supra, Slip Op. at 4-5.
In order to commend this approach to the agencies, subsection (b) (6) of the
Act should be further amended to require the deletion, where feasible, of names
or other identifying characteristics from records the disclosure of which would
otherwise constitute a clearly unwarranted invasion of personal privacy.
(f) "Investigatory files compiled for law enforcement purposes except to the
extent available by law to a party other than an agency" [? (b) (7)].
The investigatory files exemption as originally drafted suffers from two princi-
pal abuses: "investigatory" has been defined too broadly by most agencies, and a
"law enforcement purpose" has been regarded as a permanent shield, even when
a law enforcement proceeding has been concluded or foreclosed and no prejudice
could result from disclosure.
H.R. 5425 and H.R. 4960 each addresses a different abuse. Sec. 2(d) of an.
5425 significantly clarifies the meaning of "investigatory" by requiring a record
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withheld under this section to be for a "specific law enforcement purpose" [em-
phasis added]. Even then the record cannot be withheld if it relates to "scientific
tests, reports Cr data," or "inspection 7.eports which relate to health, safety [or]
environmental protection," or if it is recsrd underlying a public policy strie-
ment or a rulemaking. These narrowing provisions would go far toward prevent-
ing a recurrence of eases where unconscionably broad agency interpretations of
the exemption were not repudiated undl they reached the court of appeals. E.g.,
Weisberg v. Department of Justice, -- F. 2d?, 41 L.W. 2470 (D.C. Cir. Feb. 28,
1973) (request for spectographic analyses of bullets which killed President
Kennedy) ; (Jazlan v. NLRB, 450 F. 21 670 (D.C. Cir. 1971) (request for names
of union members eligible to vote in union election; list maintained by agency
pursuant to its own adjudicative decision) ; WeIlford v. Ha,/in. 144 F. 2d 21
(4th Cir. 1971) (request for letters of warning already sent to meat processors
about possible violations of federal law).
Sec. 103 (c ) of 11.11. 4960 is apparently aimed at curbing the Mber principal
abuse. This amendment would require disclosure of an investigatory "record"
'unless there was, inter :ilia, "a genuine risk to enforcement -:lroceedings." This
language is consistent with the original Senate Report which pointed out that
the purpose of the (b) (7) exemption was to permit the withholding of "files pre-
pared . . . to prosecute law violators. . . . the disclosure of [which] could harm
the Government's case in Court." S. Rept. at 9 [emphasis added]. Unfortunately
the agencies have not taken such a narrow view of the exemption, and courts have
often found it necessary to compel them to release "dead files." See, e.g., -Weisberg
v. Department of Justice, supra, (investigatory information concerning Kennedy
assassination now more than nine years old and not held for law enforcement
proceedings) ; Bristol-Myers v. FTC, 424 F. 2d 935 (D.C. Cir. 1970) (no further
adjudicatory rroceedings, contenaplate1) ; Wellford v. Hard/n, supra, (no danger
of "premature discovery by a defendalt") ; Schapiro & Co. v. SEC. 339 P. Supp.
467 (D.D.C. 1972) (disclosure of investigative information compelled six years
after being cempiled) ; Cooney v. Sun Shipbuilding & Drydock Company, 208
P. Supp. 708 (E.D.Pa. 1968) (no danger of "premature disclosure" of an agency's
case).
A combination of these important amendments is essential if excessively broad
interpretations of the investigatory files exemption are to be avoided. In the
Weinstein ca&e referred to above, for example, an entire investigatory file (011-
taming voluminous documents between 25 and 40 years old is being withheld
under a blanket claim of exemption. The law enforcement purpose for which the
documents were originally compiled Was fully served more than twenty years
ago. To the extent that the privacy 01' innocent persons or live informers wallet
be invaded by release of the documents, or that live informers would refuse
to cooperate further, I see no reason why the deletion of names and identifying
information from the documents wolfsti not be sufficient. In any event. I believe
that this case underscores the need for the amendments contained in H.R. 1425
and H.R. 4960.
(g) Should the exemptions apply to ,,equests for information by committee? of
Congress?
H.R. 5425 would amend subsection (c) of the Act to provide that none of the
exemptions shall authorize an executive agency to withhold records or informa-
tion from Corgress [Sec. 31. This is an extremely important amendment which
we support with one reservation.
Professor Norman Dorsen and I testified this morning on tehalf of the ACLU
before a joint committee considering the issue of executive privilege. Our posi-
tion is contained in a paper, "Executive Privilege, the Congress and the Courts,"
which bas been submitted for the record.
We agreed that the Executive has no inherent Constitutional power to with-
hold information from committees of Congress if such information is germane to
-a proper legislative inquiry, as defined by the Supreme Court in Watkins v.
United States? 254 U.S. 178 (1957). However, we take the position that all three
branches of the federal government have an implied constitutional power to
isrotect their internal decision-making processes by withholding advisory com-
munications. This means that judicial law clerks and legis)ative assistants as
well as officials Within the executive branch cannot be forced to reveal what
"advice" they gave to their superiors or associates.
The principal justification for this narrow but important privilege is that
.the development of 'public policy will be harmed if individuals in government
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cannot rely on the confidentiality of their communicated opinions. Freewheeling
debate among colleagues and the presentation of iconoclastic ideas are in-
hibited if the prospect looms of later cross-examination. A tragic example of
such inhibition was the stagnation of American policy toward China in the wake
of the censorious treatment of china experts such as John Paton Davies, who
courageously anticipated American Far Eastern Policy twenty years too soon,
and paid dearly for their foresight. The Joe McCarthy era brings to mind many
other tragic examples. To require all advice to be subject to often unfriendly
scrutiny would surely dry up many sources of innovation and truth.
We have, therefore, attempted to block out as follows, the extremely broad
boundaries of proper Congressional inquiry into Executive matters:
1. No executive witness summoned by a congressional committee may refuse to
appear on the ground that he intends to invoke a "privilege" as to all or some of
the questions that may be asked.
If an employee of the executive branch is directed by a superior not to testify
he should make himself available to explain the reasons for the refusal. Con-
gress is entitled at least to this. Any other rule?and we fear that it is the rule
by which we now live?opens the door wide to unjustified and even arbitrary
assertions of privilege, and to the denial to the legislative branch of informa-
tion it rightfully seeks in order to carry out its constitutional responsibilities.
2. a. A witness summoned by a congressional committee could claim advice
privilege only when accompanied by, and at the direction of, the Attorney Gen-
eral, Deputy Attorney General or Counsel to the President, who would assert
that they were acting at the direction of the President personally.
b. A witness may decline to answer questions about recommendations, advice
and suggestions passed on to superiors or associates for consideration in the
formulation of policy. (Nor may Congress question others, including the superiors
or associates of an employee, about such advice.)
c. An Individual summoned may not decline to answer questions about policy
decisions that he personally made or personally implemented. Whatever the title
of an individual, and whether or not he is called an "advisor," he should be ac-
countable for actions that he took in the name of the government and decisions
that he made leading to action on the parts of others.
d. An individual summoned may not decline to answer questions about facts
that he acquired personally while acting in an official capacity.
e. Congress may also require answers to questions about actions or advice
by executive officials which it has probable cause to believe constitute criminal
wrongdoing or official misconduct, such as the anti-trust settlement with ITT,
as well as the Watergate events. In such situations, of course, individuals sum-
moned before Congress are entitled to exercise their constitutional rights, in-
cluding, for example, the privilege against self-incrimination.
f. Past employees of the executive branch should also be able to exercise the
privilege because the possibility that advice given in confidence might be re-
vealed after an employee left the government could also have an inhibiting effect
on free interchange. If called upon to review the exercise of a privilege over
advice given by a former employee, a court in accommodating the respective
interests of the legislative and executive branches might well conclude that the
privilege is not permanent but expires after a given period of time?for example,
a set number of years after a change in administrations, or the death of the
former advisor.
3. a. Documents could be withheld from Congress or a committee of Congress
only on the personal signature of the President.
b. The privilege should extend not to entire documents but only to those por-
tions of documents that embody the criteria set out above to justify an exercise
of "advice privilege."
HI. ADMINISTRATIOIC AND ETSPORCEMENT
The administrative and enforcement provisions contained in section 552 (a) are
also in need of amendment, as illustrated by the many examples of agency foot-
dragging contained in the subcommittee's excellent report issued last fall.
While the purpoSe of the existing administrative provisions of the Act is to re-
quire agencies to establish orderly procedures that are consistent with prompt
and full disclosure, section 552(a) contains a variety of weaknesses and
ambiguities which require amendment. Many of these problems are addressed
by H.R. 4960 and H.R. 5425.
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(4) Formal requirements for reoiests
The statute currently requires agencies to process requests only for "iden-
tifiable records," thus placing an initial burden on the person making the re-
quest to be specific. This seems reasonable. In practice, however, the "identifiable
records" requirement has become a tool for agencies to frustrate the statute
by requiring a higher degree of specificity than any member of the public
could reasonably be expected to satisfy. This problem was illustrated by many
of the early agency regulations, The Renegotiation Board required the appli-
cant to supply the date, addressee, and the "title or sefbjeet matter" of the
record sought or to give an explanation for the failure ix specify each of these
matters. 32 C.F.R. ? 1480.6(b) (1970). The prescribed forms of the Justice and
Commerce Departments also required very detailed specification. HEW regu-
lations, although not as rigid, could be read to require with some inflexibility
that the applicant supply specific details such as date, author, addressee, and
topic. HEW, 45 C.F.R. ? 5.51(c) 11970). See also HTJD, 24 C.F.R. ? 15-13(a)
(1970) ; CAB, 14 C.F.R. ? 310.6 (b) 11970).
The identifiability requirement Las even been used by agencies as a basis for
denying requests for records which in their view are too "voluminous" to make
available. In our Weinstein case, described above, for example, the plaintiff has
specified the FBI records he seeks in great detail, and the government in its
responsive pleadings has itself identified the contested documents by date, tile
number, and size, claiming nevertheless that they are not "identifiable" ?Nithin
the meaning of the statute because they would be too difficult to produce even
if they were not covered by any exemption. This is apparently a common agency
ttigniment, and it is generally not sbandoned until a case reaches the court of
appeals. The argument is often effective, therefore, in frustrating requests. See,
e.g., Wellford V. Hardin, supra (request for all letters of warning Issued te meat
and poultry processors over a five year period rejected by Department of Agricul-
ture) ; Getman v. N.L.R.B., supra (request for names and addresses of all em-
? ployeee entitled to vote in approximately 35 union elections rejected by NLRB) ;
Bristol-Myers v. FTC, supra (request for all information compiled by agency
concerning certain specified medicines rejected by rye).
In light of these abuses of the "identifiable records" requirement, the amend-
Ment proposed in section 1(b) of H.R. 5425 is important. Agencies would be or-
dered to process "any_ request for records which (A) reasonably describes such
record. .......and and the word "identifable" would be deleted from the statute, It
'should be made clear in the legislative history that at a minimum an agency
could'not refuse to process a request which did not identify a document by its
internal symbol, or its date, or its author, or its addressee, nor could an agency
?
refuse to consider a request for documents simply because it resarded them as
too voluminous to produce.
?A related amendment offered by section 1(a) of H.R. 5425 would require agen-
.cies "promptly [to] publish and distribute (by sale or otherwise) copies of'' the
adjudicative proceedings, statements of policy and administrative manuals af-
feeting members of the public which are not published in the Federal Register
'but. are required to be released under subsection (a) (2) of the Act. These docu-
ments are currently required .to be made "available for public inspection and
'copying," but in practice they are often withheld because agencies find it "her-
denseme" to make them available pursuant to isolated requests.
Another way of tightening up the formal requirements for requests which is
not suggested in either of the bills would be to require agencies to establi,41 a
uniform schedule of costs for retrieval and duplication of records. Such costs
currently range as high as 75 cents pr page, with additional fees being charged
for rotitine retrieval. Fees should be strictly limited to the actual and direct out-
of-pocket expense to the government.
(h) Exhausting administrative rentalies.
The only constraint under whieh agencies are currently placed by the sta?lute
in processing requests is that they must make records "promptly available.' As
the committee's report sadly demonstrates, however, many recalcitrant ageneies
have followed the bureaucratic maxim that "time is the best administrator."
As we pointed out in our testimony last spring, requests are often peneing,
for months while agency records are being "located" and "reviewed." A primary
reason for the deiay appears to be the difficulty in getting the necessary offle"als
to tun away from other matters and review the request. Gianella, Agency Pro-
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cedures Implementing Freedom of Information Act: A Proposal for Uniform
tlegulations, 23 Ad. L. Rev. 217, 223. Another reason why an agency may be in-
clined to drag out matters is the hope that the passage of time will exhaust the
applicant's interest in the documents that the agency is reluctant to produce.
This is undoubtedly the reason why so few journalists have found the statute
worth using at all.
In one case that we described last spring, we made a request by letter to the
Justice Department's Internal Security Division. Two months after we requested
information by letter we were informed that we had to complete the proper form.
After we sent a complete form, more than two additional months elapsed before
we were informed that the record we requested did not exist. In another case,
involving the United States Parole Board, more than two months passed after
we had made several telephone requests for a new set of parole criteria being
used by the Board before we were orally informed that we would not receive the
criteria. A demand letter was sent to the Board's counsel, threatening suit if we
did not receive the information within twenty days. On the twentieth day, the
Board's counsel by telephone informed us that he was almost certain we would
be provided with a copy, but that he needed a couple of more weeks to clear re-
lease with others in the agency. Among the "reasons" given for this delay, the
counsel stated that the Department of Justice was having difficulty deciding
which office should handle our request, since it did not wish to concede that the
Parole Board was an "agency" within the meaning of the Act.
Both H.R. 4960 and H.R. 5425 contain detailed amendments which attempt
to fill the current statutory void regarding the delays so often experienced in
exhausting administrative remedies. The general rule proposed by both bills is a
10-day period for agencies to respond to initial requests, and a period not exceed-
ing 20 days for response to administrative appeals. H.R. 4960, however, is more
flexible than H.R. 5425 and permits an additional period for agencies faced with
complex requests.
Since many of the administrative problems in the statute result from the
failure of the agencies to employ their public information offices to expedite
routine requests, we tend to favor the strict approach taken by H.R. 5425. Routine
requests should be answered immediately, and only the more complex should
take as long as 10 days. Furthermore, of the five exceptions to the ten-day rule
contained in H.R. 4960, the first four relate only to technical problems in produc-
ing the records. These problems are at least partially dealt with in section 1(c)
of H.R. 5425, which requires agencies to make records available "as soon as
practicable," after determining within the 10-day period whether they are sub-
ject to release. The fifth exception to the 10-day rule in 11.11. 4960 is the only
substantial one, but we feel that if is contrary to the purpose of the Act.
Accordingly, if an agency has not responded within the 10-day period, a person.
making a request should be deemed to have exhausted his administrative
remedies, which, of course would still be no assurance that a court would find
that he is entitled to the information. In any event, by being forced to follow
a strict 10-day rule, the agencies will find it necessary to routinize their handling
of requests under the Act and to limit the bases for their decisions on whether to
release information strictly to the criteria set forth in the statute.
We also support the amendment in section 1(e) of H.R. 5425 which would re-
quire agencies to file within 20 days an answer to any complaint filed in court
by a person seeking to enjoin the agency from withholding information. The
current 60-day period is both unnecessary and counterproductive. It is unneces-
sary because by the time an agency is hauled into court, it has necessarily formu-
lated its legal position in its letters denying the information sought on an admin-
istrative level. The 60-day period is counterproductive because it merely exacer-
bates the problems of delay which make the statute useless for any person in
need of information in a hurry.
(c) Mandatory injunctions
Section 301 of H.R. 4960 would make mandatory the injunction relief which
a court merely "has jurisdiction" to grant under the existing statute. This is an
important amendment which we enthusiastically support.
As we pointed out in our testimony last year, there is an unfortunate absence
of any language in the statute requiring the courts to order disclosure of docu-
ments unless they are specifically exempted. Because the statutory language and
the legislative history both imply in the strongest terms that enforcement is
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mandatory, the absence of any express provision must be considered a Congres-
sional oversight, Indeed, the implication of subsection (c) could not be clearer:
This section does not authorize withholding of information or limiting the
availability of records to the pubFc, except as specifically stated in this
section. tEmphaels supplied.]
The Senate Report echoes this language in describing the purpose of the statute
as '"estabiish[ing] a general philosophy of full disclosure unless information
is exempted under clearly delineated statatory language. . . ." Sem. Rept. No. t,da,
at 3. See also American Mail Line, Ltd. v. Gulick, 411 F. 2d 696 D.C. Cir. 1969).
Unfortunately, the lack of explicit language about judicial enforcement has
created a vacuum which some courts have filled by asserting an equitable die-
eretion to deny relief even when the infcrmation sought is not e-aemet under the
Act. In Consumers Union of the United ,Slatcs v. Veterans Administration, 301
F. Supp. 796 , S.D.N.Y. 1969), for example, the court found that none of the
records was exempt from disclosure, but upheid the agency in part after balanc-
ing the equitiee to determine whether disclosure would do "significantly greater
harm than good." 301 F. Supp. at 806
A related problem resulting from the absence of a provision for mandatory
injunctions like the one contained in 5425 is that a court can disregard an
agency's failure to carry its burden of proof and decline to compel disclosure
when it believes that the information is exempt for a reason not claimed by the
agency. This is what happened to our clients in Rose v. Deparimeni of the Air
Force, discussed above. In that ease the privacy exemption had been claimed by
the Air Force a a a basis for withholding the Honor and Ethics Code case sum-
maries sought by the plaintiffs. As we have seen, the court held that the Air
Force had failed to prove the applicability of the privacy exemption, but it
nevertheless refused to grant an injunction on the ground that the "personnel
records" exemption never claimed by the .tgency was applicable.
The mandatory injunction requirement in section 301 of MR. 4960 properly
would eliminate the equitable balancing of Consumers Union and the judicial
discretion of Rose, and would further strengthen the affirmative thrust of the
Act. Agencies would be less inclined to persist in withholding information not
clearly covered by one of the exemptions if they knew that the role of the
courts was strictly limited to reviewing the grounds for administrative denies
of relief.
coatenusioN
An important feature of both H.R. 5425 and H.R. 4960 is that they would create
the machinery for continuous congressional oversight of the information prac-
tices of the federal government. We endorse both the Freedom of Information
Commission which would be established as a permanent regulatory body under
H.R. 4960, and the annual information reports which the agencies vould be re-
quired to stibini to Congress under section 4 of H.R. 5425. This oversight ma-
chinery would Joopefully carry through with many of the tasks which this
subcommittee has so admirably been peeforming in recent years.
In theory, the Freedom of Information Act symbolizes Congress performing
its most essential role?that is, placing a check on the tremendous growth of
executive power. Many wise observers have pointed out that the power of the
presidency has grown during the Cold War era precisely because of the increas-
ing secrecy with which the President has acted during this period, most notably
in foreign affairs. Senator Stuart Symington, for example, recently pointed out
that he has, as Le put it, "slowly, reluctantly and from the unique vantage point
of having been a Pentagon official and the only member of Congress to sit on
both the Foreign Relations and Armed Services Committees concluded that
executive branch secrecy has now developed to a point where secret military
actions often first create and then dominate foreign policy responses." [Quoted in
"The Pentagon Papers and the Public," Freedom of Informatien Center Report
No. 0013 (17. Mo. Tilly 1971).1
The Freedom of Information Act, therefore, is so important to the democratic
character of our society that I can think of few problems that require greater
attention from Congress. To be sure. problems of executive tor vilege and other
forms of government secrecy cannot be cured by the Information Act alone, but
the statute should be a serious and effective beginning for open government.
believe the Act is concerned very much with the First Amendment and what that
means to our .seciety. And if it means that the Congress-, in order to effectume
this First. Amendment interest, must take more of a role than it has before in
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:scaling down government secrecy, then it must take that role or it will soon find
that many of its own constitutional powers have been forever swallowed up by
the President. As James Madison pointed out prophetically more than two cen-
turies ago:
? Knowledge will forever govern ignorance. And a people who mean to he
- their own governors, must arm themselves with the power knowledge gives.
A popular government without popular information; or the means of ac-
quiring it, is but a prologue to a farce or a tragedy, or perhaps both.
Mr. MoonnEAD. I would hope, Mr. Shattuck, that you would take a
little deeper look into the Freedom of Information Commission .which
is proposed by Mr. Horton's bill because the more I study it the more I
think it offers some opportunities for putting some flexibility into the
act.. For example, you mentioned that we did not attack the problem
of high costs charged for search and copying. A member of the full
committee, Congressman Hanrahan, came up with a proposal that if
we establish the Freedom of Information Commission, that it, in ef-
fect, could establish a fee schedule. It would give us flexibility if one
agency could conclusively demonstrate that its search fees were more
expensive than another agency's search fes, or the documents were
more difficult to photostat or something. I cannot imagine how this
would come up; but it conceivably could, and this I think is one way
of handling both the standardization of the search and the copying
fees.
It might also be that if executive branch witnesses made a good case
that because some agencies are so regionalized that to give an anSwer
to an FOI request within the 10 days is really impossible. Maybe the
Commission could be used as an escape valve, there, providing that the
10-day time period must be observed unless the agency files a state-
ment with the Commission as to the reason why it cannot. Incidentally,
the -role of such a commission could be restructured. It does not have to
have the same construction. But, I think it could be used to overcome
some of these objections, some of which may be legitimate on the part
of the agencies; not many, but some of them might be.
Mr. SHATTUCK. I think you are right. Actually there is a danger in
legislating essentially administrative matters. I agree with you that
perhaps some of the more teehnical amendments that we would favor
but that did not scorn to be in either of the bills could be taken care of
by a commission. But, the danger I think is that you really want to put
the burden squarely on the agencies themselves to comply. And I think
without really having given it much thought it may be difficult to set
up an independent commission which can take a lot of the heat off
the agencies, even though it is a commission that would clearly be re-
sponsible to the Congress. For example, I think your report of last
September pointed out that one of the ways in which the act would
be tremendously strengthening 'administratively. would be to require
each agency to set up its own freedom of information office., and Proc-
ess all complaints, all demands and requests for information through
that office. That is not inconsistent with 'setting up. a commission to be
sure-, but I. suppose one would want to think .very hard about whether
a commission might be regarded by the. agencies as a :way for them to
escape having to really think hard about the administrative problems
under the act.
-- Mr. MOORTIVAD. Well, I:certainly would not want that result to hap-
pen, but your cautionary words will be taken to heart.-
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Mr. Gude?
Mr. Guon. No questions, Mr. Challnan.
Mr. MWRTIEAD. MT. Phillips ?
Mr. PHILLIPS. I just wanted to say how much the staff appreciates
this very excellent and detailed sta:ement, Mr. Shattuck. As last year
when we were working on the draft report, we found your testimony
and statement of extreme value to us, and I know the same thing will
apply to your statement today.
MT. SHATTUCK. Thank you.
Mr. PHILLIPS. I was interested in your reference to the request for
the National Security Study l'vlemorandurn. I do not know whether
you identified it for 'the record or not, but that is NSSM---113, dated
January 15, 1971. We share yonr hope that this very important mem-
orandum will 3c,ort be made awdlable to the subcommittee.
I have no further questions' Mr. Chairman.
Mr. MCIORMAD. Well, Mr. Shattuck, just a few quick ones. Do you
think the 10-day requirement in the statute for decision as to whether
information will be furnished is a reasonable time?
Mr. SHATTUCK. Yes; I think it is a reasonable time.
Mr. MOORITRAD. And what about the 20-day period for appeal ?
that a reasonable time?
Mr. SHATTUCK. Well, that might be a bit on the long side, but I guess
not beim), an administrator I may not be entitled to complain about
that. I think that the important thing, though, is what I NV`Is trying 1:0
highlight in the testimony. I favor your approach in H.R. 5425 of
being really quite strict with the time. I do not see any reason why if
the administrative machinery is set up?and I do not think it has
been in many agencies, at least properly set up?that ordinary re-
quests could not beprocessed almost immediately. And it is our ex-
perience that ordinary requests receive no expedited treatment. They
take just about as long as the hard requests. There may be a few ex-
ceptional cases where you need more than 10 days, but there must be
some way to resolve that rather than writing exceptions into the
statute.
Mr. MOORHEAD. What is your thought about the portion of the hill
that permits the courts to assess the Government for reasonable attor-
ney fees and court costs in cases where the Government has failed to
prevail?
Mr. SHATTUCK. I think that would encourage people to exercise
their rights -ander the act. I am not sure that it would be a deterrent
on. the Government against withholding information, unless the fel-
low Who was in charge of makiiw that initial decision that litia8 wrong
somehow or other felt the pinch_ himself. It must be pretty easy to
spend Government money in denying requests for information, but I
think in general it is an excellent suggestion. I do not know whether
it would work as a deterrent.
Mr. MOORHEAD. Mr. Cornish?
Mr. CORN:SH. Thank you, Mr. Chairman. As usual, Mr. Shattuck, I
think the American Civil Liberties Union has really done a magnifi-
cent work here in its presentation.
Do you find difficulty or any resistance on the part; of people when
you remind them about the Bill of Rights ? Do they hate to be re-
minded about that?
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Mr. SHATTUCK. I do not know whether they hate to be reminded, but
the Gallup polls never helped us very much. Sometimes they cannot
recognize them.
Mr. CORNISH. Do you think there should be administrative penalties
for withholding?
Mr. SHATTUCK. I think that would be a more effective deterrent
than would attorneys fees. I think that the attorney fee provision, as I
said to the chairman, would encourage people to sue, perhaps spuri-
ously, but presumably not because they obviously would not recover if
they had a ridiculous case. The prospect of recovering attorneys fees
might provide an incentive to use the act, but I do not think it would
provide a deterrent for governmental misuse. An administrative pen-
alty I think would be a better way to approach the deterrent problem.
Again, I am just not familiar enough with how the agencies operate,
and you are probably much better qualified than I am to answer
that.
Mr. CORNISH. Of course, the Justice Department, you know, does
not have a very good record in these decisions. As a matter of fact,
I think they have lost two-thirds of their cases, and I think that one
of these days OMB or somebody else is going to say, "Look, you know,
too many of these cases are going to court, and you are losing them,
and it is costing a lot of money." OMB does not seem to have any re-
luctance to express such an opinion about any other Government
Agency activities, and I do not think it would be inhibited from criti-
cizing the Justice Department on that score.
Mr. SHATTUCK. It is extraordinary that that is the track record be-
cause what I find is the most useful Government document in the
whole Freedom of Information Act is the memorandum prepared
by now Justice William Rehnquist cautioning agencies to think twice.
And in every demand letter that I send outI stick that right at the
end, and it has sometimes worked, I think, although nobody has ever
cited it back to me. I think the Justice Department has not given a
great leal of thought to the statute since that memorandum was writ-
ten, and they may very usefully rewrite it and reissue it.
Mr. CORNISII. Thank you, Mr. Chairman.
Mr. MOORIIEAD Thank you very much, Mr. Shattuck. We are very
grateful.
Mr. SHATTUCK. Thank you.
Mr. MOORHEAD. We will recess this hearing at this point until 2
o'clock this afternoon.
Thank you.
[Whereupon, at 12:35 p.m., the subcommittee recessed, to recon-
vene at 2 p.m., the same day.]
AFTERNOON SESSION
? Mr. MOORHEAD. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
The subcommittee is very pleased to welcome back again Mr. An-
tonin Scalia, Chairman of the Administrative Conference of the
United States.
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We look forward to your testimony today, sir. You may procen1.-
If you- desire to skip over or summarize, the entire statement will be
made a part of the record.
STATEMENT OF ANTONIN SCALIA, CHAIRMAN, ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES; ACCOMPANIED BY RICH-
ARD IC. B:ERG, EXECUTIVE SECRETARY
Mr., SCALIA. Fine. I will do the best I can to skip rather than su m-
marize. The statement is as on as it is because I tried to cover Si)
much, rattrii than because I tried to cover so much in such length.
What I can skip is the porsion at the beginning, Iliore or less estab-
hshing, the qualifications of the Administrative Conference to give
this sort of tiistiniony. I think the subcommittee knows by now we have
had a contirating interest in the field of public information ; a large
part of our activity relates to it directly or indirectly.
[Mr. Scalia's prepared statement follows :]
PREPARE ;-.) STATEMENT OF ANIONIli SCALIA, CHAIRMAN, ADMIN TSTRATIVE
CONFERENCE OF THE UNITED STATES
I am grateful for this opportunity to testify on these proposals to amend
the Freedom of Information Act. A frequent recurring theme in the 39 format
recommendations the Administrative Conference has adopted 0 date has been
the need to opm the administrative process.. making it more visible, more acces-
sible, anti more receptive to the suggestions and criticisms of he interested
public. In his testimony last year before this subcommittee at its hearings on the
administratim, of the Freedom of information Act, my predecessor, Roger (7.
Cramton, pointed to the recommendtttions which most obviously look toward
these goals, notably, Recommendation No. W.)-8, on eliminating exemptions from
the requirements for notice and opportunity for public comimmt in rulemaking,
and. of coure, Recommendation No. 7I-2, on principles and guidelines for im-
plementation of the Freedom of Information Act.
Over the past year the Conference, as you may know, has adopted other 17ee-
ommendatimis specifieally designed to help assure a full and free flow of in-
formation to the peblic. Recommendation No. 72-1 adopted la4 June, calls upon
agencies to establish policies to encourage broadcast of their proceedings that in-
volve issues of broad public interest. We had in mind, for example, hearings
involving environmental issues, such. as those concerning the .:ocation of nuclear
power .facilities. There has not yet developed, it is true, much, media interest; in
the broadcast of agency proceedings, but advancing communications tech-
nology is greatly facilitating access to television of programs appealing to trio-
cialized Cr limited audiences. I firmly believe that television coverage of agency
proceedings is an idea whose time will soon he at hind. a:ad the Conference
recommendation has already contributed to a more receptive attitude on the part
of a number of agencies.
In our eff(,rts to achieve openness in government we are concerned, of course,
not only for the public's right to know but also for the rights of ry.,rsons directly
affected l)y the Government's action. Sometimes these interests are parallel:
sometimes they conflict. For exaniple, in our recommendation adopted :,ast
Deceinber for a comprehensive revision of the procedures governing adverse
personnel actions against civil service employees (Recommendation 72?S), we
proposed granting* the employee the right to elect a public hearing, eseept in
extremely rare cases when the emrloying agency can show good cause for
keeping the hearing closed. The Civil Service Commission has recently announced
that its revised rules provide for :public hearings. at the election of the employe,..
except in a narrow category of secarit3,-type en F;es. in another recommend:1.1bn cif
parole procedures (Recommendation No. 72-3) we called .for making public
more information regarding Board of Parole standards and policies as applied
to individual cases, but with adequnte protection for the prisoner's right of
privaey. We ft!so reconanended that the prisoner be allowed right to counsel, ac-
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cess to most of the material in his file, and a decision stating reasons for the
denial of parole. Because the Board of Parole has rejected this recommendation
to open its proceedings to public scrutiny, we would favor legislation requiring
the Board to abide by these principles.
In our ple.nary session next month we will address another problem connected
with Government information policies?the use of agency publicity which re-
sults in unjust injury to private persons in their businesses or reputations.
This is a difficult problem, and its resolution requires the balancing of some
very sensitive policy considerations. We will consider a suggested guide-line for
agency publicity practices and a damage remedy for those injured by er-
roneous publicity. (I might add that the proposed recommendation is not aimed
at cutting back in any respect on the disclosure requirements of the Freedom
of Information Act.)
The Administrative Conference is, as you know, an advisory body, with
authority to recommend but not to command. Unavoidably, therefore, there is a
gap?occasionally a large one?between our recommendations and agency prac-
tices. Securing agency implementation of our recommendations is an increas-
ingly significant part of our activities. In this connection we are particularly
pleased to report to you the progress being made?and I would emphasize largely
through the cooperative efforts of this Committee--to secure agency implementa-
tion of Conference Recommendation 71-2 on the Freedom of Information Act.
Part of this Recommendation called upon agencies to reduce their fees for mak-
ing copies of documents in Government files, so that they do not exceed actual
cost. A number of agencies have responded by substantially lowering their
charges?in some instances cutting them by more than half. I offer for the record
the latest reports we have which set forth the specific reductions which have
been adopted. (Attachment A.) The Department of Justice recently revised its
regulations governing the production and disclosure of information, so that they
follow Recommendation 71-2 almost verbatim. The Department will advise of its
conclusions on the use of these procedures after an experimental period ending
this June. It is their hope and ours that these procedures will prove effective
and will serve as a model which most other agencies will be willing to adopt.
With the background of the Conference's experience in this field, let me turn
now to the bills before you, H.R. 4900 and H.R. 5425. I will address my remarks
initially to the latter of these bills, referring to differences in H.R. 4960 as I
go along.
H.R. 5425 would make a number of changes in the Freedom of Information
Act. They can, I think, be classified in four general categories: administrative
procedures under the Act, judicial procedures in suits to enforce the Act, the
substance of exemptions from the disclosure requirements, and Congress' right
to require the furnishing of information to itself or its committees. The provi-
sions relating to administrative procedures are, of course, of the greatest interest
to the Conference, and it is exclusively to these procedures that our Recom-
mendation 71-2 is directed. I will have a few comments, however, concerning
certain other provisions of this proposed legislation that have a close relation-
ship to and effect upon the administrative procedures.
PUBLICATION OF INDEX
Section 552(a) (2) of the Freedom of Information Act now requires the agen-
cies to make available for public inspection and copying final opinions in the
adjudication of cases, statements of policy, interpretations, and staff manuals
and instructions affecting the public, unless such materials are published and
offered for sale. That paragraph also requires each agency to maintain available
for inspection and copying a "current index" of such materials issued after the
effective date of the Freedom of Information Act. Section 1 (a ) of H.R. 5425
would require that this index be published and distributed, by sale or otherwise.
Although not a point covered by our Recommendation, the basic thrust of this
proposal seems reasonable. Wider distribution of indices of available materials
would undoubtedly assist members of the public in making specific requests and
might even ease the burden of agency personnel who process requests. Assuming
that the agency is complying with the present requirement to maintain a cur-
rent index, the only new burden imposed is the cost of publishing (I assume this
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270
term is meant to be synonymous with "printing" or "reproducing" and does not
refer to publication in the Federal Regb ter) and of distributing (which latter
requirement would presumably be satisfied by furnishing copies on request).
Nevertheless, with respect to some of the major agencies the bulk of a mere
listing of such materials may be enormous--especially when it is considered that
the time period which the index must cover begins on July 5, :,967. Ten years
from now the size of such an index--and the cost of it, if there b, to be a reason-
able fee?will be so substantial as to impair the purpose of the amendment. It
would seem desirable, therefore, to provide a cutoff date for the period with re-
spect to which the index must be published that is different from the fixed date
(July 5, 1967) from which an index must be maintained?perhaps the beginning
of the preceding -fiscal year. Moreover, it seems to me that it might be more de-
sirable simply to require the agencies .to provide such a printed index upon.
request, rather than to require publication whether or not request has beer.
made. I suspect taere are many small agencies that have never received a request
to examine their indices, and with respect to which publication of the type here
required would be a sheer waste of time and money. If it is merely required that
agencies furnish an index upon request, I think it certain that principal libraries
and other institutions resorted to for information of this sort would request and
maintain copies of those indices that are indeed frequently used; while indices
rarely desired will be available on reqmst, directly from the agencies involved.
I might make two other minor points about this proposal: First, it should be
understood that "current" is a relative term. The same level of currency should
not be expected of a published index as of the index now maintained in the
agency reading room. And the recency 01 published revisions for an agency that
has few documer.ts to add in the course ff the year should not be expected to be
the same as for one of the major regulatory agencies. Secon0, while the bill
proposes distribution "by sale or otherwise," the committee shonld not overlook
the fact that these materials could be rublislied and sold today by commercial
enterprises if there were a market for them. One must assume, therefore, that
sale proceeds wid not offset the costs to the agencies of complying with section
1(a).
CONTENT 0:r REQTTEST
Section 1(b) of the bill would amend section 552(a) (3) to alter the description
of what the request for information must consist of?instead of a "request for
identifiable records" simply a request wt ich "reasonably describes such records.'?
This amendment has the apparent intention of implementing paragraph B(2) (b)
of our Recomme:adation 71-2, which provides that a request should be acceptable
if it "identifies a record sufficiently for the purpose of finding it." Frankly, I
prefer our language, since it sets forth with specificity the cnterion by which
the adequacy of a description is to he measured?to wit, its capacity to enable the
agency to find the document. Whereas in the language of the bill, it does not seem
to me, as a matter of pure linguistics, that the effect of the phrase "reasonably
describes" is necessarily anything different from the effect of the present oper-
ative term, "identifiable." Nevertheless, .eince the intended purpose of the change
is clear (and presumably can be clarified still further in legislative history) the
language of the bill may suffice. The basic purpose, as I understand it, is to re-
quire agencies to comply with categorical requests for records if it is reasonably
possible to do so.
DEADLINES MR COMPLIANCE
Section 1(c) of H.R. 5425 would implement two key provisions of our Recom-
mendation (paragraphs B(4) and (0) ) by requiring that agencies determine
within ten working days whether to amply with requests for information arid
that they resolve appeals from denials of requests within twenty working days.
However, our recommendation contair ed certain provisions, not carried over
into H.R. 5425, to deal with situations in which the ten-day deadline may not be
feasible. These include cases in which the requested records are located elsewhere,
require a substo ntial process of search or of collection, or must be examined and
valuated to determine whether they are exempt from disclosure. In such situa-
tions our Recommendation calls for allowing an additional ten working days
for compliance, or even longer where special circumstances are present. As I
read H.R. 5425 it deals with the problem of such unavoidable delays by distin-
guishing between the agency determination to comply and actual compliance. The
ten-day deadline applies to the determination to comply, but the records shall be
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made available as soon as practicable thereafter. Our recommendation, on the
other hand, provides for actual compliance within ten days, with the exceptions
noted above. I think the tacit assumption of H.R. 5425 that the agency can deter-
mine whether to comply with a request before it has located and had a chanee.
to examine the records is unsound, and that this provision of the bill is likely
to prove unworkable. The practical effect of the provision will probably be to.
cause agencies to deny requests where the files have not been located or exam-
ined, so as to gain the extra twenty-day appeal period in which to continue their
efforts.
With respect to this subject of the procedures and deadlines governing requests
for information, therefore, I much prefer and commend to your consideration the
provisions of section 303 of H.R. 4960. This closely follows our Recommendation,
? except in the following respects which I urge to be changed: It would impose an
outside limit of 40 days on compliance with or denial of the request and 30 days
on final resolution of an appeal; unlike our proposal, it would not allow an agency
to authorize a longer delay for any reason. It seems to me that this is not a mat-
ter that can be treated so categorically. There may well arise situations in which
all would agree that a more extended delay was reasonable. It seems to me ade-
quate if (as our Recommendation proposes) the agency must give specific reasons
for any extension beyond the deadline?which would of course enable judi-
cial review. If it is desired to be more restrictive than this, it would seem to mo
adequate to provide merely that the agency head himself must authorize such
extension, without imposing an absolute limit of 30 or 40 days. I think sectied
303 of H.R. 4960 is also deficient in omitting that sentence of our Recommenda-
tion (contained in paragraph B(6) (c) ) that would require copies of grants and
denials on appeal to be collected and indexed in a public file. This is highly desir-
able to provide predictability for the public and to encourage consistency of
agency action. Subparagraph 6(G) of section 303 of H.R. 4960 treats judicial
review in a different fashion from that which we recommended?enabling it to.
occur, in my opinion, prematurely. Finally, may last quarrel with section 303 is
subparagraph 6(II), which requires records to "be made available as soon as
practicable" after determination to comply with the request. This is simply in-
consistent with the earlier paragraphs which (unlike H.R. 5425) do not distin-
guish between agency determination to comply and actual compliance, but rather
follow the Conference's format by applying the various deadlines to compliance
itself.
One final point I should emphasize here. Paragraph B of our Recommendation,
which includes the provisions I have discussed on the nature of requests, on time
for replying to requests, and on time for disposing of appeals, was set forth by
the Conference as a guideline or model for the procedures that would be appro-
priate to achieve the more general principles set forth in paragraph A of Our
Recommendation. It was recognized at the time that agencies might need some
flexibility in applying this guideline, and that not every departure would be
viewed as a failure t comply with our Recommendation. I do not know what
suggestions, if any, the agencies may have for altering the procedural provisions
of these bills to suit their particular needs and experience, but I think it is only
fair to the agency members who concurred in our Recommendation to emphasize.
to you that flexibility was contemplated.
41,
JUDICIAL REVIEW PROCEDURES
Section 1(d) and section 1(e) of 11.R. 5425 deal with judicial proceedings to
compel disclosure of agency information. Section 1(6) provides for in camera
inspection by the court of records asserted to be exempt from disclosure. Section
1(e) provides for the Government to file an answer to a complaint under the
Act within twenty days, and provides for recovery of costs and attorneys' fees
from the Government by a successful plaintiff. The Conference has not done any
study of the litigating experience under the Freedom of Information Act, and so
I am unable to give reactions that are as informed by concrete data as I would
like. I do think, however, that the absenee of such data should be even more
troublesome to one who enthusiastically supports these changes than to one who,
like myself, is skeptical of their value.
Courts generally have the right to examine in camera government documents
not available to the public, where that is necessary to adjudicate the cases before
them. Thus, with respect to all except one of the categories of documents exempt
from disclosure under section 552(b) of the Freedom of Information Act, the bill
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makes no change in existing law. (This is true unless paragraph 1 of section
1(d) is intended to compel in camera inspection that the court would otherwise
not consider needed. While the language might be given such .an interpretation,
it does not seem likely and is certainly not desirable.) The one category of
exempted documents for which the provision would impose a change is the
category "specifically required by Executive order to be kept secret in the in-
terest of national defense or foreign polity." ? 52(b) (1) of the Freedom of
Information Aet, The Supreme Court has held that when this exemption is
asserted the court cannot examine the relevant documents in camera?not
because of any special privilege from judicial scrutiny accorded to matters that
relate to national defense or foreign policy, but because as the exemption is now
written such a .court inquiry would. have no relevance to the case. The only issue
raised when the exemption is asserted is whether?whatever the content of the
document---it Las been "specifically required by Executive order to be kept
secret" for defense or foreign policy reasons. [Enviromental Protection Agency
v. Mink, 93 S. Ct. 827 (Jan. 22, 1973)]. Paragraph 2 of section 1(d) seeks to
change this by providing (though not with the utmost clarity) that the coert
will make a determination, not merely that the Executive has classified the
document, but also that disclosure "would be harmful to the national defense
or foreign policy of the United States."
It should be apparent from the 'foregoing description that this provision does
not merely alte:c the scope or nature of judicial review of an asserted exemption;
it changes the rature of the exemption itself, so that instead of the test of Exec-
utive classification, there is now applied the test of Executive classification plus
harmful effect upon national defense or foreign policy. If this change is to be
made, it would seem more logical to make it in section 552(b ) of the Freedom
of Information Act, which describes tie exemptions, rather than in section 552
(a) which deals with procedures. 'There is one other technical deficiency in sec-
tion 1(d) : If its intent is to enable court review of the judgment that foreign
policy or defense would be harmed by disclosure, it does not suffice to give the
court the power to make such an inquiry only when the exemption of subsection
552(b) (1) is asserted. For without asserting that exemption, the egency might
assert that because of Executive classification a private paety would not be
able to obtain the document In litigation with the agency, and therefore the en-
tirely separate exemption of subsection 552(h) (5) would apply. As now drafted,
II.R. 5425 word not allow judicial inquiry into the propriety of classification
when it is assened as a basis for that exemption.
As to the desirability of this change, I will of course defer to the Department
of State and the Department of Defense concerning its effect upon foreign policy
and security matters. From a purely procedural standpoint, however, one effect
of the provision is clearly indefensible. Even if it is desired that the courts look
behind the Executive order and inquire into the question of whether disclosure
would be harreul to national defense or foreign policy, it seems highly inappro-
priate for the courts regularly to resolve such questions "de r.ovo," without ac-
cording any special weight to the determination of the President and the agency
involved. The "de novo" review provided for in the Freedom of Information Act
is reasonable enough with respect to the other exemptions, which require judg-
ments or determinations of fact that can be as well made by a Angle judge as by
the agency involved: but to commit to the judicial branch in all cases the original
determination of what disclosure would be harmful to foreign policy or national
defense seems clearly improper.
As to other procedural effects of this provision, I am frankly less concerned
about its effect upon the agencies than upon the courts. I fear the prospect of
over-worked Federal judges poring through piles of documents, trying to deter-
mine whether all or parts of them should be disclosed to a rlaintiff whose re-
quest may be motivated by nothing more than idle curiosity "which is all that
is needed ?to minke a request under the Act). Even after screening the documents,
the judge will doubtless require much more evidence in order to determine
whether what ne has read will in fact be harmful to foreign policy Or national
defense if diseosed. The recent Pentagon Papers trial indica-les that assessing
the propriety or impropriety of a classification is no brief and easy task.
With respect to the provision for recovery of costs and fees, I am again some-
what skeptical. That the provision will be a disincentive to agency refusals
seems doubtful, because the money will come from general Government funds
rather than the agency's appropriation. Even if it came from the agency's budget,
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,
the impact on the officer making the decision not to disclose would be remote.
The provision might be defended as reparation to a plaintiff whose request was
wrongfully refused. But if the principle ofl recovery of litigating costs against
the Government is sound here, it ought to e sound elsewhere, unless we are to
conclude that plaintiffs under the Freedom Of Information Act are a particularly
deserving class of litigants, or a class that should be artificially stimulated by
the provision of a bounty. Perhaps such an argument can be made, but I per-
sonally hesitate to rely upon it until I have more data about litigation that has
arisen under the Act, about disputes not litigated, and about the frequency of
arbitrary agency refusals to comply.
LIMITATION OF ELIvIPTIONS
Section 2 of H.R. 5425 is aimed at tightening certain of the existing exemp-
tions from the disclosure requirements of the Act. While it is perhaps a border-
line case, the Conference has in the past considered the scope of the exemptions
in section 552(b) a matter of substance ther than of procedure. Our Rec-
ommendation 71-2 does not deal with it other than to urge the agencies to in-
terpret the exemptions restrictively and "With a view to providing the utmost
information." However, the effect of these particular limitations to the ex-
emptions bears closely upon a topic which the Conference currently has under
active consideration?to wit, the effect of adverse agency publicity. I think
it appropriate, therefore, to speak briefly .o these provisions.
The present categorical exemption for "Investigatory files compiled for law
enforcement purposes" is restricted by the present bill in several respects:
First, it would extend only to investigatory records "compiled for any specific
law enforcement purpose," and would not include "scientific tests, reports or
data" and "inspection reports of any agency which relate to health, safety,
[or] environmental protection." If, as seems to me to be the case, the purpose
of the investigatory files exemption is to protect a person from disclosure of
erroneous and misleading information conce7ing law violation, it is not apparent
how these limitations are in accord with that basic purpose. Erroneous information
concerning law violation acquired in the course of a general investigation of
compliance with statutory requirements is just as harmful as information com-
piled "for any specific law enforcement ptirpose" (if indeed the latter phrase
has any distinctive content). And despite their authoritative-sounding titles,
"scientific tests" and "inspection reports" are, like any investigative data, subject
to being wrong.
Another limitation of the existing exemption imposed by the present bill is
the elimination of protection for those investigatory records "which serve as a
basis for" public policy statements or rules. presumably the rationale behind this
change is that the public's "need to know" IS greater when the investigatory files
pertain to agency action affecting the public. I would, first of all, dispute the
premise. It seems to me that the public's need for information is in fact greater
when the agency has taken no action, and issued no public statement. The very
conducting of a rulema king furnishes substantial information; inaction pro-
vides nothing. Public-interest groups are generally more concerned about why
1.
an agency has not taken certain action tha about why it has. But more funda-
mentally, I doubt that the "basis-for-pol cy-statement-or-rulemaking" test is
workable. Assume, for example, that an offic r of the Department of Justice makes
a policy statement concerning enforcement of the narcotics laws. It is pre-
sumably based on an accumulation of evidence and experience over many years.
Would the bill open to public disclosure all investigatory materials involving
drug-related crimes? It is, I think, simply unrealistic to regard policy state-
ments or even rules (except those rules required to be made on an evidentiary
record, see 5 U.S.C. 553(c) ) as being based on a narrow and definable category
of agency records.
What little is left of the investigatory records exemption after applying the
limitations discussed above is finally reduced still further by the requirement that
disclosure of the document sought to be protected must not be "in the public
interest." This provision will be an inexhaustible source of litigation, since it
gives no hint as to what the "public interest" means in this context. It is indeed
a puzzlement to me whet the "public interest" could mean in this context other
than an abandonment of the basic philosoPhy behind the investigatory records
exemption---the philosophy that the public interest (here the public interest in
obtaining information) must sometimes yield to private rights (the right to a
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fair adjudication before Government-inflicted sanctions are imposed). I realize,
of course, that the "public interest," broadly viewed, may be deemed to include
within itself the ultimately public valu3 of protecting private rights. The phrase
makes no sense, however, if given that Interpretation in the present bill. It seems
quite clearly intended to provide that no investigatory files exception exists when
there is a public interest in disclosure of the information. Presumably the mere
public interest in knowing (embodied within the Freedom of Information Act
itself) is not enough, for otherwise the exemption is entirely illusory; but any
further public "need" for the information will suffice. If this limitation does not
completely devour the investigatory records exception, it certainly leaves only a
morsel on the plate.
I think it would be a great mistake to emasculate the present exemption for
investigatory records, as section 2(d) of this bill would do. In most regulatcry
statutes, Congress has provided specific procedures which must be followed in
order to establish a law violation with fairness and accuracy; guilt is not estab-
lished by the mere presence of infoimation?even a "scientific test" or "in-
spection report'---within the agency files. Yet in many cases the mere public
disclosure of an erroneous report showing violation of Federal law can cause as
much damage to the person or industry involved as subsequent agency adjudi-
cation of violation. One thinks, for example, of an inspection report?untested,
perhaps even unexamined by superiors within the agency--erroneously showing
that a particular food product is contaminated. It is absurd to invest agency ad-
judication of law violation with extensive procedural safeguards while permit-
ting, and indeed requiring, agencies to cause damage that may be just as severe
through indiscriminate and unrestrictel release of investigative material not es-
tablished as correct, and perhaps even known to be erroneous. How does one ob-
tain correction of an incorrect "Government Report" (which is the way the press
will describe it) once it is released? There is no way to force the agency to an
adjudication of innocence. That fact raises the possibility that in many eases
the opening of :investigative files may render the procedural protections attached
to adjudication academic. Since publicity is in and of itself such a potent sanc-
tion, why should an agency regularly proceed through lengthy and cautious
hearings to adjudicate guilt? The manpower it devotes to one prosocution might
be more efficiently spent on five investigations, leaving it to publicity to impose
the desired siinction. Five punishments for the price of one?even though guilt
has not fairly been determined. It is in my view not desirable to establish a law
enforcement system in which Government action of this character is facilitated
and even encouraged.
The Conference's Committee on Rulemaking and Public Information (the same
Committee in which our Recommendation for stricter compliance with the Free-
dom of Information Act originated) has proposed for consideration at our Ple-
nary Session next month a recommendation that would establish careful guide-
lines for the agencies' own use of the potent modern weapon of publicity. The
concern which prompts that proposal argues even more strongly against the
substantial elimination of the investigatory file exemption wrought by the pres-
ent bill. In fact if this provision is adopted, sensitive and careful safeguards of
private rights sought by the Committee in a closely allied field can only be
regarded as so much wasted effort.
PROVISION OF INFORMATION TO CONGRESS
Section 552(c ) now states that the section "is not authority to withhold infor-
mation from Congress." Section 3 of E.R. 5425 would add a new paragraph di-
recting agencies to furnish "any information or records" to Congress or its com-
mittees upon written request. Obviously, this provision raises the policy prob-
lems associated with executive privilege that I discussed in earlier testimony be-
fore this subcommittee, relating to legislative proposals directed exclusively to
that issue. I need not go over that grosind again. It seems to me, however, that
the Freedom of Information Act is not the appropriate place to deal with the
matter of Congress' obtaining information from the Executive Branch. All agree
that the Congress' powers and requirements in this field stand on a different foot-
ing from the rights and needs of the general public, and I think the present Free-
dom of Information Act is both explicit and adequate when it says that it is
"not authority to withhold information from Congress." Accordingly, without
commenting on the merits of section 3, I express the view that this subject
should be handled elsewhere than in this bill.
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ANNUAL REPIORTS
The final provision of H.R. 5425, section 4, provides for annual reports by
the agencies on their experience in administering the Freedom of Information
Act. A similar requirement is contained in section 304 of H.R. 4960. I think
the idea of an annual report is a good one. It is important, however, that the
requirements for maintaining records not be unreasonably burdensome. The
burden will of course depend to a considerable extent on the volume of requests,
which will, vary with each agency. I think, though, that for an agency with any
significant volume of requests the fourth item required in both bills, "the num-
ber of days taken by such agency to make any determination regarding any
request for records and regarding any appeal," is likely to prove unreasonable.
It would be better, I believe, to permit thi sort of information to be tabulated
on the basis of sample periods from agency records of requests and dispositions.
H.R. 4950
Most of the provisions of H.R. 4960 are generally similar to those of H.R.
5425, and I will not repeat my previous diseussion. As I have stated, section 303
of H.R. 4960 is closer than section 1(c) of H.R. 5425 to the Conference Recom-
mendation and, with some modifications, we prefer it.
The novel feature of H.R. 4960 is the establishment of a Freedom of Informa-
tion Commission, whose members would lm appointed by the President, the
Speaker of the House, and the President pro tempore of the Senate. The Com-
mission would have broad authority to i vestigate allegations that Federal
agencies are improperly withholding inforination requested under the Freedom
of Information Act, but I confess that I do not understand the function to be
served by such investigations. Is the Commission supposed to be performing
some general oversight function on behalf of Congress? Is it intended to umpire
disputes between Congress and the agencies? Is it intended as an administrative
remedy for private citizens whose requests for information are denied? If so,
is there any requirement of resort to this remedy? If there is no such require-
ment, why would an individual go to the Commission when a determination by
the Commission in his favor would be only, prima facie evidence in court?
On the other hand, if its powers are more than investigatory and advisory, how
can a Commission some of whose members are 'appointed by leaders of the
Congress be reconciled with Article 2, Section 2 of the Constitution, authorizing
Congress to vest appointment of inferior federal officers "in the President alone,
in the Courts of Law, or in the Heads of Departments"?
Without some explanation of the theory behind the Commission I am skeptical
of its value. It seems to introduce another layer of administration into a system
which is already somewhat complex. Yet in the last analysis it would still be
left to the courts to resolve disputes under the Act.
Most of my comments concerning this proposed legislation?because they have
been suggestions for improvements?have been critical of the existing provisions.
I do not want to end on such a carping note, because as I hope this subcommittee
is aware the Conference applauds and supports efforts to make the Freedom of
Information Act more effective. It is a cause In which, as many of the pro-
visions in these bills borrowed from our Recommendation indicate, we have
taken an active role. It is a cause in which we very much believe.
Thank you.
(Attachment A)
REDUCTIONS IN CHARGES FOR REPRODUCTION
Nine agencies have now substantially reduced their reproduction charges as
a result of the Office of Management and Budget's request for fee schedule re-
views. In addition, one agency has decided to waive fees in cases where the public
interest is served. The most substantial and notable reduction occurred in the
Selective Service System, Where reproduction rate S were reduced from $1 to 250
per page. Agencies which reduced reproduction charges include:
Atomic Energy Commission.?With .the installation of new machines, xeroxing
charges have been reduced from 250 per page to 100 per page.
- Federal Communications Commission?The coin-operated machine charge has
been reduced from 250 per page to 100 per page. In addition, the FCC has en-
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tered into a competitively-selectel contract to make copies of FCC documents
available. The charge is, on the average. 120 per page.
Federal Power Co mission,?Chargesfor two coin-operated copying machines
in the 'PC's Office of Public Information were reduced from 250 to 100 per page.
Most Of the agency's reproduction work is carried out under a contract. Charges
for reproduction are 90 per page.
Federal Trade Commission?The FTC dropped its user fee schedule and re-
placed it with a general policy to charge at cost. When appropriate, it will waive
charges for reproduction work that is deemed to be in the public interest.
General Services Administration?The National Archives and Records Service
has conducted a review of their fres and, as a result, has issued a revised sched-
ule of reproduction charges. The effective rate of regular-sized paper has been
reduced front 200 to 100. The Business Service Centers are nearing completion
of a review of their fees.
Department of Labor.?The Labor Department has reduced charges for re-
production ft-cm 300 per page to 200 per page, when copies are made by em-
ployees. The installation of self-service equipment has reduced rates to 100. per
page when self-service reproduction is involved.
Selective Service System.?The previous charge of $1 per page has been re-
duced to 250 per page. In addition, Selective Service registrants can now request
duplicate complete copies at this rate Before, registrants had to go to private
concerns.
Department of State.?Xeroxing charge has been decreased from 400 per page
to 250 per page.
Department of Transportation.--The copying fee has been cut in half, from
500 per page to 250 per page.
United States Information Agency.---Reproduction rates, formerly 400 per
page, have been reduced to 200 per page, with a 500 minimum.
-DepartMent of Justice.?The reproduction rate had formerly been 500 for the
first page and 250 for each page thereafter. The new rate is a flat 100 per page.
Mr. SCALIA. I would like to bring to your attention, however, devel-
opments in the implementation of Conference Recommendation 71-2.
since my immediate predecessor, Roger Cramton, testified before you
last year. That recommendation is, of course, the one on which some
provisions of the bill I will testify about today are modeled.
There have been two principal developments. The fist is the recent
adoption by the Department of Justice of our recommendations in al-
most verbatim form, as part of their regulations. Needless to say, in
a field such AS this, the Department of Justice is a leader among the
agencies, anti we are hopeful that Justice's implementation of our rec-
ommendation will cause other agencies to follow along.
The other development is our success, with the help of this subcom-
mittee, in getting agencies to comply with the portien of the recom-
mendation urging the reduction of the fees for copying. Some of the,
fees at one time were really outrageously high. There is an attachment
to my teSlittiony which will show you the latest brer kdown of what
reduetions have been made.
Let me turn now to the substance of the bills that you have before
you. My testimony will pertain initially to H.R. 5125. I will make
reference to any differing provisions of H.R. 4960---or many of the
differing provisions. at any rate--as I proceed.
First of all. let me speak about the requirement of H.R. 5425 that
would require a publication of the index which agencies are now re-
quired to keep available for public inspection. This index, now required
by 552(a) (2) of the Freedom of Information Act, contains a listing of
the final opinions in the adjudication of cases, statements of polhy,
interpretations, and staff manuals, and instructions affecting the pub-
lic, which are available for public inspection at the agency. Section
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1(a) of II.R. 5425 would require this index?which now does not have
to be distributed, just kept in the agency reading room?would require
this index to be published or distributed, by sale or otherwise.
Although this point was not covered by Conference recommendation,
the thrust of the proposal seems reasonable. Wider distribution of in-
dexes would undoubtedly assist the members of the public in obtaining
information. Moreover, there is not a substantial additional burden,
imposed, or there doesn't have to be a substantial additional burden
imposed upon the agency, since it has to keep the index already. All
that is really new in this proposal is that the agency must publish the
index and make it available for distribution.
Nevertheless, with respect to some of the major agencies, the mere
bulk of listing such materials could be enormous. Once again, remem-
ber that this index will contain a listing of final opinions in the adjudi-
cation of all cases, statements of policy, interpretations, staff manuals,
and instructions affecting the public. That is a large body of material.
Bear in mind, also, that the index in the agency office must be kept
with respect to those documents dating from July 5, 1967. Now, ob-
viously, as time goes on, the length of that index, which is already
considerable, will increase, and I think 10 years from now will be so
massive as to defeat the purpose of this statutory provision. It will be
so expensive to obtain it, that many people will be discouraged from
doing so.
It would seem desirable, therefore, to provide in this legislation a
cutoff date for the period with respect to which the index must be
published?a cutoff date that is different from the fixed date from
which the index must be maintained at the agency offices. In other
words, the published index could perhaps only have to date from the
beginning of the last fiscal year or the last calendar year.
Moreover, it seems to me it might be more desirable simply to require
the agencies to provide a printed index upon request, rather than to
require publication whether or not a request has been made. And as I
read the bill, the index must be published, the process of printing it
must be undertaken, even though no request has ever been made.
Now, I suspect there are some agencies which have never had a re-
quest to examine their index and it would really seem wasteful to
require them to print it up if no one is expected to ask for it. If you
change the provision to require it to be printed and distributed only
upon request, I am sure the major agencies would have to print it, be-
-cause libraries would ask for it. But those little agencies that may
never have a request for it would perhaps be spared some trouble and
expense.
I make in my written testimony two other minor points about the
bill, which in the interest of saving your time, I will skip in this oral
presentation.
Another provision of II.R. 5425, section 1 (b) , would amend 552
(a) (3) to alter the description of what the request for information
must consist of. The language now requires a request for "identifiable
records." The revision would change that to a request which "reason-
ably describes" the record. As a matter of sheer linguistics, I am not
sure there is any difference between the two. I much prefer the lan-
guage contained in the Conference recommendation on the subject,
which sets forth explicitly the criterion that is to be applied, to wit,
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whether the request enables the agency to find the document. That
brings out plainly and clearly just what the objective of the require-
ment is to be.
Section 1 (e) of II.R. 5425 would implement two key features of the
Conference recommendation, by requiring that agencies determine
within 10 working days whether to comply with the request for in-
formation and by requiring that they resolve appeals from denials of
requests within 20 working days. There are, however, several pro-
visions in this aspect of our recommendation that are not carried over
into H.R. 5425, and I think they ought to be.
I refer to the provisions that deal with the situations in which the
10-day deadline may not be feasible. It may be infeasible for a number
of reasons, in-3luding the fact that a substantial search for the records
is necessary, or that the records are scattered and have to be assembled,
or that the records have to be examined and evaluated to determine
whether they are subject to any a the exemptions under the act. In
some cases, one cannot be sure that such a process not take any
more than 10 days. In those situations, our recommendation ,would
allow an additional 10 days, and even longer when special circum-
stances are present.
As I read H.R. 5425, however, it deals with the problem of unavoid-
able delays only in one way: That is, II.R. 5425, unlike our recom-
mendation, applies the time periods, the time deadlines-10 days and
days?not to the provision of the information, but to the agency's
response, as to whether or not it will provide the information. In other
words, So long as the agency answers Within 10 days "yes, we will pro-
vide the information," the time deadline would be met. Under the
Conference recommendation, however, the agency would have to pro-
vide the information within 10 days.
Now, Iprefer our approach, because, frankly, I thirk it is unreal-
istic to think that you can give an answer to the question whether you i
are willing to provide the nformation' without havingfound the doc-
ument and examined it. The practical effect, I think, of taking the
approach of H.R. 5425 will be to cause the agencies to deny requests
as a matter of course whenever they can't locate or examine the files
promptly, because that will give them an extra 20 days to find and
examine them during the appeal period. I am. sure that is not what is
intended by the provision, and it could easily be avoided.
With respect to these deadline provisions, I much prefer the treat-
ment given by H.R. 4960. Section 303 of that bill closely follows our
recommendation, except in a few respects. I do urge those respects to
be altered. I won't go into the details about the way in which section
303 varies, but I think they are important.. Basically, it comes down
to this: Under the conference recommendation, there is no categorical
time limit established, whereas, under H.R. 4960, after a period of
40 days for compliance with or denial of a request, and 30 days for
final resolution of an appeal, the agency must act. I don't think this is
the kind of matter where you can. be that categorical. 'There just may
be some circumstances where you need more time than that. It seems
to me the matter of providing some exemptions from an .absolute dead-
line can be handled in other ways?by requiring for instance, that
the agency give a reason for the extension beyond that :period. If you
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think that is not enough, by requiring that the agency head himself
personally authorize additional extension. It seems to me that would
suffice, rather than wielding an ax that you may regret later.
The last point I want to emphasize, with respect especially to these
provisions on time deadlines?and I think I have an obligation to the
Conference to do this?is that paragraph B of the Conference recom-
mendation, which includes the provisions I have discussed, was set
forth by the Conference not as an absolute but as a guideline or a model
for the procedures that would be appropriate to achieve the more gen-
eral principles set forth in part A of our recommendation. It was recog-
nized when the recommendation was adopted, that agencies might
need some flexibility in applying these guidelines, and that not every
departure from the guidelines would be viewed as a failure to comply
with our recommendation. I do not know what suggestions, if any,
the agencies may have for altering the procedural provisions of these
bills to suit their peculiar needs and experience. But I think it is only
fair to the agency members who concurred in our recommendation to
emphasize to you that our recommendation did envison flexibility.
I would like to speak briefly to the judicial review provisions con-
tained in sections 1 (d) and 1(e) of II.R. 5425. These are very im-
portant. The most important item they deal with is the exemption for
materials classified by reason of military or foreign affairs. Section
1(d) provides for in camera inspection by the court of records that are
asserted to be exempt from disclosure. Section 1(e) provides that the
Government must file an answer to a complaint under the act within 20
days and also provides for recovery of costs and attorneys' fees from
the Government by a successful plaintiff.
You should be aware of one thing with respect to the in camera pro-
visions of this legislation. Right now there is nothing that prevents a
court from examining any document in camera. As a general matter,
that is the case. With respect to all except one of the categories of docu-
ments exempt from disclosure by reason of 552(b) of the act, the bill
therefore makes no chancre in existing law. The only reason courts do
not examine in camera change
as to which executive classification
has been alleged, the only reason is not that they have no power to do
so, but simply that the Supreme Court has held the contents of the
documents to be irrelevant to the case. The Supreme Court has held
that the exemption applies categorically whenever the executive has
classified the documents for security reasons, whatever the contents of
the documents.
Therefore, although the. documents are available to the court, there
is no relevance to the court's examination. This is set forth clearly in
the recent case of Environmental Protection Agency v. Mink, which
cite in my written testimony.
H.R. 5425, in paragraph 2 of section 1(d), would change this by
providing that the court will make a determination, not merely that
the executive has classified the document, but also that disclosure
would be harmful to the national defense or to the foreign policy of
the United States. I think you should realize that this change is not
really a change in procedure. It isn't a change in the manner by which
the exemption is adjudicated. It is rather a change in the nature of
the exemption itself. In other words, there is no longer an automatic
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exemption under H.R. 5425 for e:;ecutive classification. The exemp-
tion is in effect, changed to apply to executive classification for a good
reason.
If you are going to make that kind of a change, I think it is more
logical to make it not in the procural section of the Freedom of In-
formation Act, 552(a), but rather in 552(b), where the executive
classification exemption is set forth. In other words, 552(b) (1), which
now reads only as follows: "The section does not apply to matters that
are (1) specifically required by Executive order to be kei.:?t secret in the
interest of national defense or foreign policy," should if you wish to
achieve what H.R. 5425 apparently seeks to achieve, be amended to
read "specificOly required for good reason by Executive order to be
kept secret in the interest of national defense or foreign policy."
Mr. MOORHEAD. Just let me interr apt there.
Mr. ScAr4A. Please interrupt with questions if you have them.
Mr. MOORHEAD. At one point there
Mr. ScAetk. The point I am makiag now, Mr. Chairman is that ILE,.
5425 does not just make a change in the procedure by which that ex-
emption of the Freedom of Information Act, 552(b) (1), is applied. It
is much more than a change of procedure. It is a change in the sub-
stance of the exemption.
Mr. MoomiKAD. This is intended.
Mr. SCALIA. I am sure it is intended.
Mr. MooirmEAD. At some point you said something about the clarity
of the language.
Mr. SCALIA. That was gratuitous, perhaps; and perhaps not terribly
important. But even if you wanted to leave the change, where it is
placed in HR. 5425, I think i.t could be done more clearly. It isn't
crystal clear to me that it is intended to give the Court a new power
to determine the reasonableness of the executive classification.
The provision reads as follows:
Such in-camera investigation by the court shall be of the contents of such
records in order to determine if such records, or any part thereof, cannot be
disclosed because such disclosure woulti be harmful to the national defense cr
foreign policy of the United States.
I think that that does not express as clearly as it slould, to make
such a substantive change, that you are in effect changing the nature of
the exemption rather than the manner in which the Court goes about
adjudicating it.
Mr. Moomit:An. Quite frankly, a number of us were rather shocked
by the M ink decision. We thoughi, the Court's interpretation of the
intent of Congress was not what Congress thought the intent of Con-
gress
was. We are endeavoring to reverse that decision, and we wel-
come any heir you can give us on language or its location.
Mr. Sea LL. I think it would be better located elsewhere.
There is only one other point concerning the exemption that I feel
strongly about. I would leave it to the Department of State or Defense
to speak to what the effect of changing it will be upon foreign af-
fairs and military interests. The one provision I do feel strongly about
is that this adjudication by the Court will be de novo which does not
seem to me Co be in accord with the traditional judicial function in
fields such as this. H.R. 5425 leaves it to the judiciary to make the mi-
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tial determination, not just to adjudicate the reasonableness of Execu-
tive's determination. The bill leaves it to the courts to say as an initial
matter whether our foreign affairs or military -defense posture would
be harmed by revealing information.
Even if you want to cut back on Mink, I would not advise you to cut
back that far. I would not, perhaps, mind leaving it to the courts to re-
view the Executive determination, with the. usual deference that is
accorded to agency decisions upon judicial review: But that is not
the effect Of this provision because, as you know, the provisions of 552
require de novo judicial determination of the claim of exemption. Now,
de novo judicial determination is fair enough for the other -exemptions
that are now contained within 552(b). As you read them, you can
see that they are matters that the Court can figure out as well as any.
agency and, in fact, better?whether something iS a trade secret,
whether disclosure of a personnel or medical fire would invade- pri-
vacy, and things of that sort. Those- are traditional enough judicial
determinations. But it is surely not a judicial funetion to determine
what will or will not harm our military or foreign affairs.
If you change the section (b) (1), one exemption; r would at least
recommend that you change it in such a way that that exemption is
not reviewed de novo 'by the Court, but rather by the usual standard
of"arbitrary or capricious".
I might say, by the way, that section 2(a) raises the same type of
problem. That also creates a new exemption which it seems to me
Mr. MOORHEAD. You are- directing yourself towards Section
Mr. SCALIA. Section 2(a) of ILR. 5425 establishes a new limitation
upon the internal personnel exemption. Right now, all the court has to.
determine is whether the document relates solely to the internal per-
sonnel rules- and practices of an agency. That is how the current
statute reads. It is easy for a court to determine that de novo. That
doesn't trouble me at all.
But this bill would change the nature of that exemption, so the
exemption only applies when the document is not just related to in-
ternal personnel rules and procedures, but only if its disclosure would
also unduly impede the function of the agency. That is the kind of
decision I am willing to have the courts review, perhaps; but I am
not willing to have the courts make that determination as an original
matter. They should make that determination in reviewing the agency's
finding.
So what I am saying- is that in Making the changes in the exemp-
tions, it seems to me you have created some new exemptions that?
whatever their desirability?do not lend themselves to the de novo
kind of judicial review that now is applicable to the other exemptions.
Mr. MOORHEAD..Mr. Copenhaver has some questions,
Mr. COPENHAVER. Mr. Scalia, I dou't see in your statement an ex-
amination of the provision of H.R. 4960, which contains an in camera
provision similar to H.R.. 5425. Do you have a copy of H.R. 4960?
Mr. SCALIA. Yes.
Mr. COPENIIAVER. Let me get your comment on that. If you turn to
page 2, you would see on line 4:
The court, shall examine in camera such records, including records of classi-
fication under statute or Executive order, to determine if they are being im-
properly withheld.
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Does that language give you the same degree of concern as H.R.
5425?
Mr. SCALIA. Well, I would say no.
Mr. COPENIIAVER. Because, you can see the reason for that, that was.,
to get around Mink, quite frankly, and to give the court--
Mr. SCALIA. .1 am not sure it clearly gets around Mink, unless you
puff it up with good legislative history. If you read the language
without any legislative history, you could say, well, the court merely
has to look at it in camera to determine whether or not in fact it has
been classified, not whether it has been classified correctly.
Mr. COPENHAVER. It is not just classification; it goes .to all exemp-
tions. It-could go to the No. 5 exemption, for example. You recall the
Mink decision went to No. 5 exemption, also.
Mr. SCALIA. But this provision is not needed for the other exemp-
tions, because the courts have p.)ower to examine in camera. The only
reason you need a new provision is because they won't examine in,
camera as to exemption I, for the reason that the only thing relevant
is whether it has been classified.
- Mr. CornmmvER. Not quite exact. Because I think the Mink case
held that with regard to exemption 5, a court very frequently could
decide it should not for one reason pr another go behind the Govern-
ment's evidence on exemption 5 matters. You see here we say, "The
court shall."
Mr. SCALIA. That is something I didn't (Yet into in my testimony
because I didn't really believe you intended it. Right now, even when
the courts mi)... examine documents camera, nobody asserts that they
must. And if that is the intent of this provision, then I do have a prob-
lem with it. It seems to me that whatever the desirability of sending
,lassified material to the courts whenever somebody who is just curious
to get information wants it (which all the Freedom of Information
Act requires; curiosity is enough)--whatever the desirability of doing
that when a court thinks it should be done, it seems to me clearly un-
desirable to eta-ill:wit classified information to be sent to the court when
the court itsel f says, "I don't have to look at it. There is no reason. It
has been adequately demonstrated that there is no need for it."
Mr. COPNNHAVER. Right. Let me explain the rationale behind the
drafting of it in that regard.
One rationa le was that there is perhaps too great a tendency for the
agencies to interpret the FOI Act in a conservative fashion, as well
as interpreting the Executive order on classification in a conservative
fashion, thereby withholding too much information from the public or
classifying too much information. Thus, we have the desAie to provide
for an independent review.
In addition, because of the language of the Mink decision, and be-
cause in some cases courts seem to have some affinity accepting
Government statements as being tru3, we had a desire that the burden
be. cast upon the Government and the courts to be critical of that which
an agency says.
Finally, in H.R. 4960, we went to the commission concept as a form
of master. If the court felt it lacked the expertise or didn't have the
time, it could refer such a matter to the commission for a review or
recommendation as to whether a document is classified, or otherwise
being improperly withheld.
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Mr. SCALIA. I suppose, then, where we differ is in our feel for how
reasonable or unreasonable the courts are being with respect to exam-
ination in camera. I think they are generally sympathetic towards the
Freedom of Information Act. I think they are generally on the side
of the angels in this matter. I do agree, however, with the language of
the Supreme Court in the Mink case, which says in part:
"In some situations in camera inspection will be necessary and ap-
propriate"?the court is referring now not to the classified area but
unclassified areas as well?"but it need not be automatic. An agency
should be given the opportunity by means of detailed affidavits or oral
testimony to establish to the satisfaction of the District Court that the
documents sought fall clearly beyond the range of material that would
be available to a private party in litigation with the agency. The
burden is of course, on the agency. * * * But the agency may demon-
strate, by surrounding circumstances, that particular documents are
purely advisory and contain no separable, factual information."
Thus, it certainly is the view of the Supreme Court that in camera
inspection is not always necessary. I think the Supreme Court is pretty
liberal in matters of this sort, and I am inclined to rely on its view as to
this particular problem.
Mr. COPENHAVER. After the Mink decision, many of us no longer
have faith in the Supreme Court's liberality with regard to adminis-
tration of the FOI Act.
Mr. SCALIA. That may be. I3ut I didn't feel from my reading of the
opinion that the Court came to its conclusion. Happily, I think it was
a matter of judicial restraint. Although not liking the decision they
arrived at, they nevertheless felt that was the way the law read. That
is certainly the case with Mr. Justice Stewart's concurrence.. Ile makes
it very clear.
Mr. COPENHAVER. One more question on this line and I will yield
back.
In lieu of language as is contained in H.R. 5425, which may create
a new level of what should or what should not be classified, I wonder
if instead of using the language which is used there, "harmful to the
national defense or foreign policy," I wonder if you said, "The Court
shall review such classified documents in camera to determine whether
they are classified properly in accordance with the Executive Order
or law."
Mr. SCALIA. If you want to go that way, I would prefer saying "to
determine that such classification is not arbitrary and capricious or
an abuse of discretion."
Mr. COPENHAVER. But some of us no longer have any faith in the
executive branch's ability to be nonarbitrary and noncapricious. If
that is the case, hypothetically, if you were in our position, how would
you do it better? If you have lost faith, how would you proceed?
Mr. SCALIA. I am not sure that there are answers to all problems,
among them the problem of complete distrust of one branch of Gov-
ernment by another. I am not sure in that situation there is any way
to make the thing work smoothly.
I also want to point out that Judicial intervention in this area is not
going to be easy. I think even if you put in this language, theoretically
requiring the courts to make military and foreign affairs judgments,
you may in fact achieve no more than a token effort toward that goal.
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I wouldn't want to make such judgments as an individual judge--to
say as an original matter whether 'articular information would en-
danger the national defense. To begin with, I would have to pore
through all of the documents and even after I have done so, II wouldn't
know whether they endanger nationol defense without learning a lot of
other information. I:presume I would have to call witnesses and what-
not. The Pentagon papers trial 'demonstrates rather vividly the
extreme difficulty of determining whether particular information
harms the national defense. It is not an easy job for ally judge.
Mr. COPENHAVER. I do see you have been fairly critical of the com-
mission concept of H.R. 4960, hut you see, the reason we drafted
the commission concept in there was to .provide an expert source, a
,master concept. for a court to turn to, the commission would gradu-
ally build up an expertise in this area and who could devote itself
exclusively to making decisions of that nature, keeping in mind the
court would sd:ll have ultimate authority.
Mr. ScAmA. Except. as I recall, the determination of that commis-
Sion is only prima facie evidence.
Mr. CocEN it AVER. Purposely so, liecause, following your logic, it is
not fair for us to tie the hands of the court. In our viewpoint there are
many who want to give the commission the authority to order, with
the right of appeal, you see, to a COMt And the drafters of H.
4960 thought they should take a more gradual approach. You could
bypass the commission first oft if you wanted to and rio directly to
court. Also, you could go directly to a court and, it could use the coin.-
'mission as a master to ;,et an advisory opinion to help out.
Mr. Sc. it would be an awfully long process if you went before
the commission first and then do novo before the court.
Mr. Own-Nu:win:. The commission mast answer in 3,1 days, if you
recall. and the court may take months and months and months.
Mr.ScAtAA. I also raise briefly in my 'prepaxed statement some con-
stitutional difficulty which I have with the commission.
In general, am skeptical about both the desirability---and 1 think
even rtiore skeptical about the effectiveness?of any substantial at-
tempt to achieve. judicial intervention in this field. Even if you wanted
to force the courts to make such initial determinations. 1 really don't
see how you can do it. aside from the question of whether it is desir-
able or not.
Let me confluent briefly on the provision for the recovery of costs
and fees. It strikes me as odd-4 suppose that is the word. There are,
of course, a number of suits that are permitted against time United
States. A suit for denial of information which one would like to
know as a matter of cariosity (which is all that is required to demand
information ruder the Freedom of Information Ac)) is surely not
the most appealing case for allowing the plaintiff his costs.
It seems to me there ought to be some special reason to provide
the Cost of suit in this case and not in the others. I can think of many
more appealing 'cases---to wit, cases in which an agency has arbitrar-
ily, unfairly, unjustly, acted against a particular individual, and he
is suing the Government to get that coercive, unjust action undone.
There he must bear his own expenses. But here, the person who is
merely curious and denied information is allowed costs of Suit. It is
highly at odds with the ordinary wAy of proceeding.
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There may be Other reasons for it than fairness. You may simply
want to encourage suits?and I think you will encourage them provid-
ing a bounty. But, again I don't have -enough data on how often in-
formation is .arbitrarily denied and how rarely suit is brought to know
whether it is necessary to provide such a bounty. In any case, without
some further justification, the provision strikes me as undesirable.
I would now like to talk about the limitation on the exemptions
from the Freedom of Information Act which are contained in MR.
5425, in section 2 of that bill.
? There is presently in the Freedom of Information Act a categorical
exemption of investigatory files compiled for law enforcement pur-
poses. This particular exemption is restricted by I I.R. 5425 in several.
respects. First of all, it would not extend to investigatory files com-
piled for all law enforcethent purposes, but only to investigatory rec-
ords compiled for any "specific." law enforcement purpose. Moreover,
it would not extend to scientific tests, reports or data, and to inspection
reports which relate to health, safety, or environmental protection.
I frankly do not see the reason behind these limitations. Presumably,
the reason for the investigatory files exemption is to protect innocent
individuals against substantial harm that can be caused by having
erroneous reports circulated. It doesn't seem to me the report is likely
to be any less erroneous if it has been compiled for specific law enforce-
ment purposes rather than general, if indeed there is any difference.
NOr is it any more likely to be accurate merely because it bears the
impressive name of a scientific test or scientific report, or an inspection
report. The possibility of error exists just the same.
Another limitation of the investigatory records exemption imposed
by the present bill is the elimination of protection for those investi-
gatory records which serve as?and I. am n quoting?"which serve as a
basis 'for" policy statements or rules.
I presume that the rationale behind this is that there is a greater
public need to know when the information pertains to agency action
that applies to the public generally.
First of all, I would contest that hypothesis. It seems to me time need
to know is greater when there has been no agency action. It is usually
in those cases that the public interest groups want to get data. They
say the agency should have acted; it has done nothing; why hasn't it?
We wanir to see the investigative reports. Moreover, when the agency
has acted by way of rule, there has been at least some information con-
veyed to the public in the course of the rulemaking. So it Seems to me
this focuses on precisely the areas in which the public's need to know
is, if anything, lesser rather than greater.
But more important than that conceptual consideration is the fact
that I do not see how the test that is set forth in this limitation of the
exemption could be workable. How do you determine whether par-
ticular investigatory records have been the basis for a policy state-
ment Or the basis for rulemaking? Assume, for example, an officer
of the Justice Department makes a policy statement concerning en-
forcement of the narcotics laws. It is presumably based on an accumu-
lation of evidence and experience over many years. Would the bill
open to public disclosure all investigatory materials involving drug-
related crimes? It is, I think, simply unrealistic to regard policy state-
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ments or even rules as being based on a narrow and definable category
of agency records.
Finally, after all of these limitations to the investigatory recoi d
exemption?and there is little enolgh left after them--there is a fut.-
ther limitation imposed by this bill which cuts the exemption down to
practically nothing. That is, in addition to being part of an investiga-
tory record, it must be established that the disclosure of the document
is not in the public interest.
This provision, first of all, would be an inexhaustible source of liti-
gation. It gives no hint as to what the public interest means in this
context. Indeed, I am at a loss to figure out what the public interest
could mean in this context, other than an abandonment of the basic
philosophy behind the investigators/ records exemption?
The ;philosophy, to wit, that the public interest?in this case the
public interest in obtaining information?must sometimes yield to pr:i-
vate rights--in this case, the right to a fair adjudication before Gov-
ernment-inflicted sanctions are imposed. I realize, of course, that the
public interest broadly viewed may be deemed to include within itself
the ultimately public value of protecting private rights. But the phrase
makes no sense if it is given that interpretation in the present bill. The
phrase in the present bill seems clearly intended to mean that no in-
vestigatory files exemption exists when there is any public interest in
disclosure of the information. If this does not completely devour the
investigatory records exception, it certainly does not leave much on the
plate.
I think it would be a great iMstake to emasculate the present exemp-
tion for investigatory records to the extent that this bill does. In most
regulatory statutes, Congress has provided specific procedures which
must be followed in order to establish a law violation with fairness and
accuracy. Guilt is not established by the mere presence of informa-
tion?even a scientific test or inspection report?within the agency files.
Yet in many cases the mere public disclosure of an erroneous report
showing violation of Federal law can cause as much damage to the
person or industry involved as subsequent agency adjudication of the
violation. One thinks, for example, of an inspection report, a report
untested, perhaps unexamined by superiors within the agency, that
erroneously shows a particular food product to be contaminated. It is
absurd, it seems to me, to invest agency adjudication of law violation
with extensive procedural safeguards while permitting, and indeed re-
quiring, as this bill will do, that agencies cause damage just as severe
through indiscriminate and unresticted release of investigative ma--
terial not established as correct, and perhaps even known to be
incorrect.
How, by the way, does one obtain correction of an incorrect Gov-
ernment report?and that is how it will be referred to in the press--
"Government report says thus-and-so." How does one obtain correc-
tion of that? There is no way o:F forcing an agency to an adjudication
of innocence. That fact raises an irteresting possibility which I urge
you to consider. In many cases, the opening of investigative files may
render the procedural protection. attached to adjudication entirely
academic. Since publicity is, in and of itself, such a potent sanction,
why should an agency regularly proceed through lengthy and cautious
hearings to adjudicate guilt? The manpower it devotes to one prosecn.
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tion might be more efficiently spent on five investigations, leaving it to
publicity to impose the desired sanction. Five punishments for. the
price of one, even though guilt has not fairly been determined. It is in
my view not desirable to establish a law enforcement system in which
Government action of this character is facilitated and even encouraged.
If I may add that I feel so strongly on this point, and I think the
Conference does, because we have recently been focusing on precisely
this problem in another context, that is, the agency's own use of ad-
verse publicity where the agency does not just open its records but
actually goes out and presents to the press, presents to the public, in-
formation about facts that have not yet been adjudicated. It can cause
enormous harm. We are looking for ways to make that process fair
and to cause the agencies to be cautious and circumspect. All of those
efforts will be entirely wasted if this provision is adopted because they
really will be straining out a gnat when the camel has already been
swallowed.
I would now like to turn to the provision of information to Congress.
There is only one thing I want to say about that, because we discussed
that subject thoroughly in earlier testimony. I think everyone agrees
that the provision of information to Congress is an entirely different
animal from the provision of the information to the public. The pow-
ers, the needs involved, are entirely different. It does not seem to me
that the Freedom of Information Act is the place to treat that issue.
I would rather see it addressed in a different portion of the Adminis-
trative Procedure Act. I don't think it should be included in this bill.
I think the annual reports provision contained in H.R. 5425 is a
good idea, although the fourth item that is required, to wit, the num-
ber of days taken to make any agency determination, is too onerous.
I think that one ought to be cut and perhaps instead allow a sample
to be studied.
I turn now briefly to H.R. 4960. The provisions of that bill are gen-
erally similar to those of H.R. 5425, and I won't repeat my comments
on the points that are in common. The only novel feature of H.R. 4960
is the establishment of a Freedom of Information Commission, whose
members would be appointed by the President, Speaker of the House,
and President pro tempore of the Senate.
The Commission would have broad authority to investigate allega-
tions that Federal agencies are improperly withholding information.
My main problem with the provisions is that I don't understand quite
clearly the function to be served by such investigations. Is the Com-
mission supposed to be performing some general oversight function
on behalf of the Congress? Or is it intended to umpire disputes be-
tween the Congress and the agencies? Or is it intended as an adminis-
trative remedy for private citizens whose request for information has
been denied?
If it is intended as the last of these, is there any requirement that
private citizens use it? I gather from earlier discussion there, this is
not meant to be. But if there isn't any requirement that a citizen go
there, why should he? I don't think he would do so just to get a prima
facie determination on anything.
On the other hand, if the powers of this Commission are more than
investigatory and advisory, how can such a Commission, some of whose
members are appointed by leaders of Congress, be reconciled with
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article IT, section 2, of the Constitution, authorizing Congress to vest
appointment, of inferior Federal officers in the President alone, in the
courts of law, or in the heads of departments? There is no constita-
tional power for Congress itself tc appoint inferior Federal officers.
But my major problem with this provision for the Commission is I
don't understand the function that is intended to be served. It clearly.
introduces another layer into a system that is already complex and
multitiered. You have an agency chtermination, an agency appeal, and.
a court of appeal, perhaps at three different levels. To insert another
layer, and without clear reason, does not seem to be reasonable.
Most of my comments concerning this proposed legislation?because
they have been suggestions for improvements?have been critical of
the existing provisions in these bills. I do not want to end on a carping
note because, as I hope the subcommittee is aware, the Conference ap-
plauds and supports efforts to make the Freedom of Information A.ct
more effective. It is a cause in whicU. as many of the provisions in these
bills borrowed from our recommeudation indicate, we have taken an
active role. It is a. cause in which we very much believe.
Thank you.
Mr. MOORMAD. Thank you, Mr. Scalia.
I am intrigued with your thought about tele..visicn coverage of
agency proceodings. You are thinking of cable. television; would there
be enough channels available so even though the audience would be
relatively small, there would be sufficient interest to justify it?
Mr. SCALIA. That is the major advantage of cable, of course. You
can appeal to smaller groups.. The principal criticism of television
generally is that it goes for the mass audience,. It has to as a commeT-
cial matter. You can't deal with smaller groups. I believe a network
show needs something like 8 milliou viewers to be a success financially,
which is an awfully large number of people. This may be changed by
the new lower-cost medium, and perhaps more important, by the abil-
ity to charge which cable provides. If you can charge only 1 million
people a dime for a. program, you have a lot of monev?so that it
becomes economically feasible to produce programs of much more
limited interest.
Another factor, too, is the new technology for transmitting and
recording proceedings. These new cameras I think some of you have
already seen. i[17 the show is to be transmitted on cable, it doesn't need
the heavy equipment. You can use a backpack camera and a relatively
inexperienced cameraman to shoot it
So the Conference felt that the televising of hearings was perhaps
the wave of the future. Our recommendation, I think, lies already been
successful in eliminating an initial artagonism on the part of the
agencies. As you may know. the ABA canons relating to judicial pro-
ceedings would forbid televising, and most lawyers carry over this
prejudice into the agency field. I think the fact that a. responsible
aggregation of lawyers, such as the Conference, has come out four-
sonare and said. "Let's televise agency proceedings of geueral interest."
will have an effect on. that frame of mind. It already has.
Mr. Mooini MAD. Let me also ask ;you e gain, on page 2. recommenda-
tion 72-g. Is that the kind of recommendation that would apply in the
case of Ernest Fitzgerald? Was that one of the cases you were think-
ing about? Do you know who I am referring to?
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Mr. ScAmA. Yes. I don't recall the facts of the case clearly enough.
It would normally apply in any case involving a Federal employee.
Not with .respect to Foreign Service officers, however, because they are
not under the Civil Service provisions.
Mr. MOORHEAD. He requested an open hearing before lite Civil Serv-
ice Commission and was denied by the Commission. and took an ap-
peal. The court sustained his right to have at his .request, an open
hearing. That would be in accordance with 724.- ? ?
Mr. SCALIA.. I believe it would. As I indicate, that particular recom-
mendation lies already been implemented by the Civil Service Com-
mission, so in the future there will be a right to open hearing if ?the
employee himself wants it.
Mr. MoommAn. Now, let's get back to the Freedom of Information
Commission, which is not in the bill I introduced, but is in the bill Mr.
Horton and others have introduced. It does seem to me that the Com-
mission could perform certain functions very clearly, not that some of
them I suggest are in the bill, but if we provided a rigid 10-day or 20-
day limit in the legislation, we might provide an escape valve if you
Went to the Commission.
Mr. SCALIA. That might be done.
Mr. MOORHEAD. The Commission might give the flexibility that you
are concerned about, or help meet your concern about the inflexibility
of legislating the deadlines for responses.
Second, you are also concerned about the courts being swamped by
the requirement to review documents de novo. An FOI commission,
having the flexibility of manpower that would exist to a- greater de-
gree, they could have experts perform, as Mr. Copenhaver stated, the
"master -function," so that. if ultimately the, case did come up on appeal.
to the court, an independent body would have given its opinion and
the courts could review that. We could possibly even modify de novo,
if we had a Commission finding on which the court could depend,
using whatever method it wanted to use to check on it.
Mr. SCALIA. If you did that., then I-presume you would say de novo
review would be eliminated, but instead of applying an arbitrary and
capricious test to the agency, the court would apply a substantial evi-
dence or arbitrary and capricious test to the Commission's determina-
tion?
Mr. MOORHEAD. What?
Mr. SCALIA. I think there is a real problem if you try to establish the
Commission to make in effect a judicial determination. I think there
may be a constitutional problem in setting up the Commission this
way. If you wanted to make a judicial determination, I would think
the thing to do--I hate to make the suggestion, because I am afraid
it will seem like a good idea, and it doesn't seem to me a good idea.
One way to go is to establish a special court. As you know, there have
been several proposals recently for various kinds of special courts,
environmental courts, and so forth. This field might be considered
broad enough to have a special court just to rule on these matters. That
would make more sense to me than this Commission.
Mr. MOORHEAD. Well, I start with two presumptions. One, there has
been just one heck of a lot of arbitrary and capricious classification.
Our long hearing record and the forthcoming report by this commit-
tee, I think, establishes that.
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Second, the Congress has been more interested in opening up rec-
ords and Government information to the public than the Executive,,
and after the Mink decision, I would say also to a degree, than the
courts.
So that I would like a decisionn aking body that is more responsive
to this attitude. It is not a question of power, but is more of an attitude.
This country works better with more openness, rather than less.
Mr. SCALIA. Of course, especiary in this area of classification, the
courts haven't been given a fair tnal yet, because of the way the act
now reads. it. seems to me this is a sensitive area and it is filled, even the
proponents of this Commission would acknowledge, with many com-
plexities and problems. It would seem to me advisable, if you want to
make a change, at least to go slowly, and at first give the courts a
chance to do it right. Up to now they haven't had a chance because the
exemption as now written excludes them entirely. I think it is difficult
to say they wouldn't do a good job, unless and until they have had an
opportunity to do so.
Mr. MooraiKAD. We only had 0113 Supreme Court decision which, as
you well know under our system, will affect all of the lower courts.
That one decision is not toward greater openness, but more reliance
on an already stifling policy of seerecy by the executive branch.
Mr. SCALIA. My impression was that even before the decision the
lower Federal courts were behaving in that fashion, on the assumption
that was indeed what their function was?not to make any review of
this matter i'e there had been classification. I may be, wrong about
that, but I don't, think I am.
Mr. MooRatan. The Supreme Court had to reverse the lower court
to achieve the less open situation.
Mr. McCloskey?
Mr. MoCacsitEv. Mr. Scalia, the example that you have drawn on,
the broadening of investigatory records of exemption, the narrowing
of it in this proposed legislation, went to disposing of a (km, investiga-
tion before the courts. What would you think if we changed that
exemption to read something like this--this is subdivision b(7) : "In-
vestigatory records compiled for a:ay specific law enforcement purpose,
the disclosure of which would reresent unreasonable intrusion on the
privacy of individuals."
Would that be inadequate protection if we drew the exemption in
that manner?
Mr. SCALIA.. Well, there is a privacy exemption already. Privacy
has more connotation to me of medical records, psychiatric records,
and things of that sort, rather than the kind of dania,ge you are con-
cerned about here, to wit, imputation of the commission of a crime.
That is not normally what privacy connotes.
Mr. McCaosiinv. Let me read the exemption from H.R. 4960.
investigatory records compiled for law enforcement purposes, hot only to the
extent production of such records would constitute a genuitte risk to enfoDI?e-
meat proceedings, a clearly unwarraated invasion of personal privacy or a
threat to life.
Would those be adequate protections for the individual?
Mr. SCALTA. "Threat to life," alone is certainly not enough. Nor is
the privacy exemption, as I just indicated. A genuine, risk to enforce-
ment proceedings only looks at one side of the coin. That is one effect
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that I "Suppose disclosure of the records can have: It can harm the
agency's later attempt to enforce. That wasn't what I was mainly con-
cerned with. I was concerned with the innocence of individuals who
may be unjustly accused of crimes.
Mr. MCCLOSKEY. But you use that in the existing law. Exemption
No. 6 covers personnel and medical files and similar files which would
constitute a clearly unwarranted invasion of privacy.
All we are doing is changing the investigatory records to the same
example.
Mr. SCALIA. That is right. But the reason there was a separate in-
vestigatory exemption written in was the fact it was felt that there is
a totally separate value, aside from the value of privacy, that is, the
right of the individual not to have governmental action cause him to,
be injured in his person, his property and his reputation on the basis
of unjust allegations. You must remember that in this file there would
be all sorts of material that had not been evaluated by anybody. Be-
hind this exemption it is the same principle, Congressman, that urges
the keeping of grand jury testimony secret: We don't want to harm
innocent individuals.
Mr. MCCLOSKEY. That method worked fine until grand juries began
to be abused by a law enforcement agency that used them for their
purposes.
Mr. SCALIA. I am not urging that this provision be abused.
Mr. MCCLOSKEY. When this Congress enacted the Freedom of In-
formation Act, it was almost in a benevolent atmosphere compared to
the arrogance of this executive branch and what it claims it has as a
right. You don't subscribe to Attorney General Kleindienst's view, I
take it, probative of all 2 5 million of the Federal employees on any
subject?
Mr. SCALIA. I have taken no position on the matter and hope not to.
Mr. MCCLOSKEY. Pardon?
Mr. SCALIA. I have taken no position on the matter and hope not to.
I have never subscribed to it. I can answer your question, "No, I
haven't subscribed to it."
Mr. MCCLOSKEY. I think that the unjust recommendations, or as to
that particular section, I tend to agree, and I have written that down
as you suggested.
Let me go to exemption No. 5. I want to thank you for the copy of
the letter you sent to Chairman Moorhead on this subject of confi-
dentiality of advice. The difficulty I have with your testimony, Mr.
Scalia, is that when you make a point, you take an outrageous example'
we would agree with you on, as improper abuse of privilege. But gen-
erally, these statements are somewhat limited example in general scope..
Let me go to this exemption 5, interagency or intra-agency memo-
randa or letters which would not be available by law to a party other
than in litigation with the agency. Former Assistant Attorney General
Rehnquist said that, in effect, meant any interagency or intra-agency
memorandum. In fact, he applied the present doctrine of executive
privilege to these memoranda.
It seems to me what you were trying to protect?what you spelled
out in your letter?was confidentiality of advice. Suppose we protect.
that confidentiality of advice point with language such as this: That
there would be exempted from the act, interagency or intra-agency
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memoranda or letters, that reCornmendations contained in them would
be inhibited in thei r' candor and. accuracy if the party inaking this
knew they were to be made public.
Would that protect against all possible concerns that you have?
While you are thinking over that question, this was the point: I brought
up in your earlier testimony: That perhaps we ought not to have peo-
ple in government making recommendations that they would not
\VaTII to make public if known.
Mr. ScAm.x. Well, you are getting right to the subjeet of the letter
that :you referred to. I tried to point out in the letter that it seems to
me they are now using confidentiality just to the poinr,---
Mr. MoCtosiitEr. ut you cited as examples in your letter, man's
hope for promotion, hope for favor, hope for obtaining a civilian job.
Maybe those are not proper elements to permit to be claimed by a mem-
ber or person who chooses to serve the public.
Mr. St:ALIA. Well, there are values on the other side., as I have indi-
cated. My only point is that there is a definite value, I think a sub-
stantial value, in encouraging forthright advice. It isn't always a
shameful rea
son that will induce a person not to make a statement
which he knows will become public.
For example, the suggestion that is off the top of his head. It seems
to me you want an advisor to open up and brainstorm. If you are
speaking, however, on the record, you speak with much more delibera-
tion. I don't think that is the kind attitude you want to encourage ni
the advice.
Mr. 111cCi.asKEy. I grant you th it all of us use swear words, Ive use
indecent. language sometimes to each other that we wouldn't want to
appear in the record. But we are talking about the functioning govern-
ment here, rec.ommendations made in due course by an employee of
government or an associate to another that should be candid and forth-
right. I can think of one single example and that is where advice is
given as to the competence or integrity or personality or abilities of
another indi vidual, where all of us would insist that there be confiden-
tiality if you are going to get candid advice or comment. But what
other examples can you think of in the operations of the U.S. Govern-
ment, where, in order to get candid and forthright and accurate
advice, the donor of such advice would not want it made public, in
order that he be uninhibited and candid and completely express his
opinion?
Mr. SCALIA. ?I will give you an3xample' and freely, because it per-
tains to an area I know nothing about, and have no intentions of know-
ing anything about.
Mr. MCCLOSKEY. You are not an expert on that subject.
Mr. SCALIA- Not at all. And it is an example I think shows dual
value of this confidentiality, a value to the giver of the advice and
value to the institution. Let's say the Secretary of State or one of his
immediate assistants has a half-I: aked notion to the effect, "Why in
the world should we continue the support of NATO?"
Mr. McCi.osKEY. Wait a minute. That would come under exemption
1, affecting national defense or foreign policy. That is a different
exemption.
I go back to this SST question, which is the great example where
.the Government withheld from Congress the Garwin-reported advice.
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Can you make a case that Garwin Would not have (riven an honest,
candid, scientific opinion, if he had known it might become known to
somebody outside of the executive branch in the SST?
Mr. SCALIA. I would probably not select that as an example.
Mr. McCLositny. Let's get out of the national security and out of the
State Department category. Let's say the FCC or SEC. Give me an
example in a nondefense, nonforeicrn policy area where, in your judg-
ment, candid advice might be inhibited because of the donor's con-
cern that it might later be made public.
Mr. SCALIA. All right. In the communications field, there have been
proposals which some would consider half-baked and others would just
consider enlightened and avant-garde, that the radio spectrum be
sold in a free marketplace, just like other properties.
I think if it became public knowledge that a high-level official in
the FCC was advising the chairman or even raised the subject, "Why
don't we think about washing out all of the licenses after the next 3
years and putting the whole thing up for sale," it would have an
enormous impact upon the solvency of that industry.
Mr. MCCLOSKEY. Might that not possibly be good for the industry
to have a full understanding of this advice going back and forth be-
tween individuals and the regulatory authority?
Mr. SCALIA. I can't conceive that the stockholders in the industry
would consider it was (mod for the industry, or for its effect on the
price of their stock, to have public knowledge of just a brainstorming
idea like that.
Mr. McCnosKEY. What kind of value does the Government have in
keeping the value of stock up? I saw such a recommendation by some-
body higher in the ITT case, to the Justice Department, that if they
forced ITT to divest itself of Hartford, the stock would go down $2
billion, and that advice, of course, was secret.
But where is the public interest in preserving stock values within a
given company or given industry, for example?
Mr. Scanta. It isn't preserving stock values but preserving the in-
dustry as a healthy industry. Unfortunately, that happens to be tied
considerably into the stock. I think it is irresponsible of the Govern-
ment to do something unnecessarily that impairs the economic sol-
vency of any company.
Mr. MCCLOSKEY. Is it irresponsible for the adviser to the head of
FCC to give him his opinion as to what he thinks a given action
should be?
Mr. SCALIA. Absolutely not.
Mr. Mcaosicny. Would he be inhibited if he knew it was public?
Mr. SCALIA. I think he would in a case such as that. He just wants to
chat about it, just wants to brainstorm.
Mr. MCCLOSKEY. The other alternative, of course, is the public
speculates on what is going on in the minds of these augmented gov-
ernmental personnel. They may be just as wrong in their speculation as
the advice that may be given. I am really wondering if you can make
a case for the concept that advice given in the domestic area between
high officials' which may or may not be accepted, and may or may not
have an effect on the public, is really not in the public interest.
Mr. SCALIA, May I?
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Mr. McenosKEY. I can assure you, any advice I ntight give to Jerry
Ford isn't going to alert the entire Republican Party that that advice
can be followed.
Mr. SCALIA. I can't really believe that you are asserting that a man
speaks on the record with the same freeness that he speaks in private.
You are saving he should.
Mr. 3/101L0SKEY. I am suggesting the possibility that any person
that serves the public ought to be willing to say on. the record what
his views are and the nature se! his advice is. As I understand your
position, you are saying that in Government we ought to have the right
to keep our advice private because it might not stand the light of day,
or we might not give honest advice if we knew it was going to be
made public.
Mr. Scaesa. It isn't a matter cf giving honest advice; it is a matter
of not being as willing to be as innovative or forthright as we might
otherwise be. I am not saying it isn't desirable only for Government;
I am saying there is no reason to apply different rules to Government
than the rules that apply throughout the rest of our lives.
Mr. MCCLOSKEY. That is exactly my point. Isn't there a trusteeship
on the part of Government that is higher than the obligation, say, of a
corporation to the public'?
Mr. SCALIA. I think if you are going to draw a distinction, that is
the basis on which you have to do it. It is not I who wants to treat
Government differently; it is rather someone who says there should
be no confidentiality. The common run of mankind has it, I think.
Mr. McCnosvcvy. Mr. Scalia, I value very much your wisdom, ex-
perience, and sincerity. I think we have a fairly sharp focus of this
issue, and I wonder if you might not write a second letter giving me
some examples after you have thought of them, of proper govern-
mental advice ;hat might not be given if the party giving them knew
that they were going to be ultimately learned by the public.
I concede the need for confidential advice in foreign policy, intelli-
gence gathering and military affairs. I concede confidentiality in the
matter of personnel advice on the evaluation of individuals. I think
these hearings have progressed, all of us agree, in those areas. But I
am puzzled a little because the examples you have cited in support of
that opinion are all examples of personal favor or business advance-
ment or pleasing your superior, which I am not so certain we ought
to recognize as the proper basis for secrecy in Government.
That request, I think, is clear, isn't it ?
Mr. SCALIA. That is such a reasonable request, I don't see how
could refuse ie.
Mr. Mcenos KEY. I was impressed by your letter and I don't want to
take any more time on this question, but this exemption 5, interagency
memorandum, as the Attorney General at least would interpret them.
would extend to everything. I think we all appreciate the purpose and
advice to the court, administrative assistants advice to congressmen
and White House advice to the President, and all of these are in areas
WO want to protect in a reasonable way.
But when we go to all interagency memorandums and all advice that
may be given, which is what we have now and as this law is inter-
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preted, I would like to look into a little further, and appreciate your
helping us with this.
Mr. MOORHEAD. I hate to belabor this point, but let's try something
out following along Mr. McCloskey's argument.
It is my understanding, if the special assistant to the president of
United States Steel gives his president advice, and then there is a law-
suit, that there is no exemption that protects the special assistant to
the president from being cross-examined in court on the advice he gave
the president. Isn't that correct, sir?
Mr. SCALIA. I think if that advice is germane to the lawsuit; yes,
that is right. But I wasn't arguing that there has to be a constitutional
privilege or constitutional right to keep advice secret under all cir-
cumstances. I was just speaking to the general desirability of confiden-
tiality. I think it is generally thought that the inner discussions of the
board of directors of a corporation, or the advice given to the chief
executive officer by his immediate subordinates, should not be made
public. I think that is common practice and a sound common practice.
Mr. MOORHEAD. But if it were germane to a lawsuit or if germane
to a congressional investigation, there is no privilege. Am I not
correct?
Mr. SCALIA. That is correct.
Mr. MOORHEAD. If that is correct for private business, is there any
reason that Government should make a difference? I mean, the assist-
ant to the president of U.S. Steel is going to feel the same kind of con-
straint, is he not, as the Special Assistant to the Secretary of HUD?
Mr. SCALIA. Yes. I wasn't just talking, however, about specific ad-
vice that is germane to a particular lawsuit, or evidence of a particu-
lar wrongdoing. I was really addressing my comments to a general
requirement, that whether this advice is germane to any particular
litigation or controversy or not, you generally would be speaking on
the record. That goes a good bit further.
Mr. MOORITEAD.Your distinction is that we don't have a "freedom
of information" for U.S. Steel so they don't have to reveal to the
public generally.
Mr. SCALIA. That is right.
Mr. MOORITEAD. And you are sayinc, that similarly an adviser to the
Secretary of HUD, his advice shouldn't be available to the public gen-
erally. It might be required in a lawsuit, if germane, or in a congres-
sional inquiry.
Mr. SCALIA. That is right. Indeed, there is much information that
does not have to be furnished under the Freedom of Information Act
which an agency would have to furnish in a lawsuit.
Mr. MOORHEAD. Mr. Phillips?
Mr Piaiwrs. I will defer questioning, Mr. Chairman. But for the
record, could we clarify the fact, when you refer to recommendation
71-2, that is old recommendation 24? We have changed the number-
ing system. We did refer last year to recommendation 24.
Mr. SCALIA. It is the same. One of what I hope is the least significant
things we have done in the past year is to renumber our past recom-
mendations.
Mr. Pumors. It is a good change.
06-570 -73-20
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Mr. MoommAn. In view of the fact you defer any questions, the Chair
will recognize Mr. Kronfeld.
Mr. KIZONFELD. Getting back to the classification discussion we had
a little earlier, I wanted to make a comment on what the purpose of the
bill was and get your reaction.
This is a totally different piece of legislation, in that it did originally
require that the courts make de novo review. The original intent of
Congress was that all information is public. There were certain per-
niissive exemptions. They are not mandatory.
The problem with limiting the courts to a standard review of ad-
ministrative procedures, only on the basis of whether they are arbi-
trary and capricous, defeats the original purpose of the act. The courts
in these cases are not reviewing an agency adjudication. Really, they
are reviewing what is in most cases the unilateral turndown of a re-
quest that is presumed to be releasable even if it is exempt.
I wonder if we could be defeating the purpose of the act by restrict-
ing the courts, or even directing the courts to take standard review cf
an administrative decision as they would in, say, an FTC matter?
Mr. SCALIA. If it was the original purpose of the act, maybe that
original purpose should be reexamined. It seems to me that this is a
lesser ease for allowing court interferen.ce than many other situations
in which we do not allow de novo rwiew.
For instance, where you have a rulemaking that substantially af-
fects a private person, deprives hilt of profits he might otherwise have,
or an adjudication that imposes a line upon him, or a penalty, depriv-
ing him of property?there we accord deference to the agency action.
it would seem to me that is a much stronger case for saying we will
let the court examine this de novo, than is the present situation, where
all that is happening. all that has to have happened., is that a curious
individual who would like to have it piece of information comes to the
Government and the Government says, "I don't want to give it to you
because it relates to foreign affairs." It seems to me that is a much
weaker case for according no deference to the agency action.
Mr. KitoNsia.o. I don't want to spend too much of the committee's
time on this. As an example, there may have been an adjudication in
rulemaking for an FCC matter, Counsel for both sides are represented.
There is an administrative judgment involved in many eases. But, in
the case of information requests, I think Congress stated as a matter
of policy, that information requests were very important, that provi-
sion of information was very important, even though, or maybe be-
cause, just by curiosity a person could get any information he wanted.
I don't think the question of rot requiring "standing" in an in-
formation request has indicated a policy that these requests are not
very important. I think, rather, it indicates a policy they are very
important.
Mr. ScAni.A. 1 agree, it is importmt. But I find it hard to believe the
Congress thinks it is more important than other agency determina-
tions, including some adjudications which are not formal but informal.
Even there you accord very great xeight to the agency decision. This
doesn't strike me as a clear case for going the other way. That is all
I am saying. I think we just disagree on it.
Mr. KRON FELD. Another question the Administrative Conference
might want to look at itself are those provisions on classified informa,
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Lion, or declassification of information.' There has been testiniony in
the Senate about the fee structure used now for searching and declassi-
fication Of information that private parties have requested which has
been dlassified by Executive order. The fees are very high because
necessarily the research time and study time is quite extensive for in-
formation that may be classified.
However, under the Executive order, the President has stated as a
matter of policy that it is a positive duty for the Government to de-
classify as much information as possible as quickly as possible.
I am wondering if you don't think requests by individuals for de-
classification is not a public service in that it alerts the agency to
matters which? might be declassified under the Executive order, and
therefore there should be no fees charged for searching of records and
the, time spent reviewing them for declassification purposes, although
a fee may be charged for copying?
Mr. SCALIA. I have not been aware of this problem. I would appreci-
ate getting from you, after the hearing, citations of Senate testimony
relating to this and I will look into it.
Mr. KRONFELD. Another thing is indexing. You mentioned the
burdensome nature of this provision in the act.
Mr. SCALIA. No, it was a good idea to have an index. I am just say-
ing, that requiring the whole thing to be published, all the way back
to July 5, 1967, seems unwise. Even today, for some of the major agen-
cies, that is a pretty big volume and in the 1980 period it is going to be
a bigger one, and so forth. Moreover, most of the material in the index
is going to be of antiquarian interest. I think the antiquarians can
come to Washington. You are concerned in getting out to the field such
material as is really of a more general interest.
Mr. KRONFELD. One of our concerns was that many of the agencies
themselves don't know what they have. Large agencies with various
components such as DOT, have trouble locating their own information.
Mr. SCALIA. That should not be the case because the indices should
exist. The change made by the present bill is only that the agencies be
required to publish them. Under the Freedom of Information Act, they
have to have the indices in existence and available for public inspec-
tion right now.
Mr. KRONFELD. Which doesn't seem to be the case in many agencies.
A number of people feel regional offices or agencies do not have
access to these types of indices from the Freedom of Information Act.
Mr. SCALIA. The act does not require the index to be retained in
? field offices. It just has to be in an office where it is maintained?I
think most agencies, because of the bulk, keep it in their central office.
I am not aware any agency has failed entirely to keep an index. That
is not what I believe to be one of the areas of noncompliance with the
Freedom of Information Act. It is a clear provision that most agencies
have lived up to. At least any I know have.
Mr. KRONFELD. We have had instances where components of the
Department of Defense do not have the kind of index that we en-
vision should be kept under the act.
Mr. SCALIA. It is not in detail.
Mr. KRONFELD. One other question on the (b) (7) exemption. The
word "files" has been changed to "records" as a means of limiting the
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kinds of documents that could be kept exempt by inclusion in an exempt
"file"?what is your position?
Mr. SCALIA. I think that is a good idea. The Conference's 'position
is in any case, that even where you are talking about a particular doc-
ument, and find. it to be within one of the exemptions, you should win-
now out that portion that can be ps?ovided. So, a fortiori, we would
be in -favor of eliminating any languacT that seems to enable whole
documents that do not justify an exemption to be included in it. ?
Mr. KEONFELD. In a number of court eases involving investigatory
files, the court has said that at the point at which it looks like either
the investigation is finished, prosecution is finished, or there is no at-
tempt to proceed with any prosecution, the file should be opened, pro-
viding, of course, that deletions can-pe, made for protection of privacy,
protection of names of informers, or other matters of this nature.
Do you think that kind of language could be incorporated into the
amendments to the bill to make it clear that investigatory files would
not, remain investigatory forever?
Mr. SCALIA. It seems to me that the main evil sought to be avoided
is the publicaf.on as a Government record of something that is not
accurate. T don't see how that evil is avoided by allowing it to be
published later. It seems to me that same problem exists. The exemp-
tion you just mentioned to the statement with respect to files in a court
criminal proceeding, whereby you can delete the names entirely?I
suppose that avoids the problem.
Mr. MIONFELD. I don-'t think we fully considered the problem raised.
earlier about the erroneous investigation.
Finally, on time, limits, I am wondering if you think A might be in
order to legislate the Department ef Justice's regulations, specifying
that response -would have to be made in 10 days except for stated rea-
sons. We seem to have a problem here with the 10-day limitation ,
which may not be enough in certain cases.
Mr. SCALIA. :Right.
Mr. Kilowlasj). Some departments have, aro-lied they cannot make a
determination until they pull the file and the file may be in another
country. -So they could not comply with the 10-day rule. Do you think
it would be a good idea to clearly specify exactly what they have to do
within a 10-day period or 15-day period, whatever the period is de-
cided upon?
Mr. ScAn-tA. I think it would be awfully hard to frame something
that you are sure would make thein do everything you want them to do.
The trouble is, once you set it forth explicitly, the bureaucrat in charge
of it isn't going to do any more than what is strictly required. I think
you are better off to have a generalized requirement. Let the agency
proceed in good faith and with du?, dispatch to go about getting the
information.
Mr. KnoNFissis. That, of course, would be judicially reviewable.
Mr. SCAMA. Yes. In our proposals, we establish initial time limits and
ultimately, if you want to get an extension beyond a certain period, re-
quire the giving of a reason, and the reason given is judicially re-
viewable. If the reasons given show the agencies have not proceeded
with dispatch, in good faith, the agencies will be reversed.
Mr. 1-CnoNFELD. One final comment. Although -use of such commis-
sion isn't mandatory, assuming the commission was legislative, do you
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think the courts would feel that if a person went directly from the
agency determination to the court, they would not have exhausted
their administrative remedies? Would the courts push the people to the
commission?
Mr. SCALIA. I think you can clearly avoid that, if you are worried
about it, by setting forth in the act, that it is not required and shall not
be necessary. I thought the bill was clear on that point as written.
Mr. KRONFELD. I think it is clear as written.
Mr. SCALIA. That didn't occur to me as a problem. If it is one, I have
to go back and look at the language, but it is easily remedied by a few
words, probably.
Mr.KRONFELD. Thank you.
Mr. MOORHEAD. MT. Cornish.
Mr. CORNISH. Mr. Scalia, we have had some testimony from the agen-
cies already on the bills this year and also during our investigative
hearings last year. One thing that has really bothered me greatly in
their testimony is an attitude that runs throughout virtually every
statement we received, and that is Freedom of Information seems to
be looked upon almost as an extracurricular activity in Government
agencies.
That is, it takes time away from the operations of the agency. We
have a complex fee system set up for copying, and searching, and that
sort of thing. It is almost an orphan to be tended only when you have
time and the inclination.
This bothers me greatly. I would like to get some expression from
you, whether you feel that the provision of information to the Ameri-
can public is an integral part of an agency's operations.
Mr. SCALIA. I think I can state that categorically. Not only do I as
an individual feel that way, but the Conference as an organization
does. It has made that feeling clear by the fact that more of its recom-
mendations deal with this general problem of providing information
to the public, involving the public in the agency process, than any
other single item.
As you know, 60 percent of the Conference is made up of agency
people, policy level agency people, and I think at that level, at least,
there is an awareness this is a very important part of our democratic
process. It has a value not only to the public, but the agency itself.
I think the agency does its work better with public exposure and
public involvement. There is no question about it.
Mr. CORNISH. I think your testimony has been especially helpful
? from many points of view, but one comment you made really upset
me a little bit. In reference to the recovery of reasonable attorney
costs and court fees, that provision of the bill, you referred to a
"class" action that could be artifically stimulated by the provision of
a bounty.
Mr. SCALIA. I felt that was a little colorful, perhaps, when I wrote
it.
Mr. CortNisit. You didn't mean "bounty" in the sense of a reward
did you?
-
Mr. SCALIA. It is in a way that. That is a justification for allowing
attorneys' fees. For instance, some people who are enthusiastic about
the utility of the class action as a means of enabling private attorneys
general to enforce laws, very much favor the provision of attorneys'
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fees to the successful class action plaintiffs, as a means, avowedly, of
- stimulating the bringing of class action.
I think the word "bounty" was colorful, but I stand by the point
it makes?to wit, that one reason for this device, and I suspect the
reason some people have in mind, is to encourage those suits. I don't
say that is necessarily a bad or a (rood reason but it is possibly the
operative one. I do say if it is a good reason here, I don't see why it is
not so elsewhere. It gets back to the discourse I had with Mr. Kron-
feld. I think there are certain suits that are more deserving of this
treatment.
Mr. Coaxisn. As a matter of fact, there are other types of suits--
the Equal Employment Opportunity Act, for: example--where this
enters into it.. You know, you can make recovery there.
Mr. SCALIA. Yes, that is true.
Mr. Couxisn. You don't know of any problems involving that, do
you?
Mr. ScAnnv. I don't assert there are any technical problems with it,
but I do think the field is somewhat distinguishable in that it was
probably thought those who generally have Equal Employment Oppor-
tunity complaints will be relatively poor plaintiffs. I think that is a
generalization that is probably supported in fact. I don't think a
similar generalization applies here.
Mr. Conxisn. This would be discretionary on the part of the Court
anyway. But I can tell you froni my own personal experience in 8
years of dealing with Freedom of Information complaints, that I
have had many people march through the office who could hardly
afford the carfare to the office building, much less paying attorneys
to exercise their legal remedies in court to obtain what they consider
to be very vital information. They're not, if you will excuse me, just
curiosity seekers.
Mr. SCALIA. Let me make it clear. I don't assert that everybody who
uses the Freedom of Information Act is that. But I do assert that-
in deciding what it is good or bad for the act to contain, one must
be aware that the bare minimum a person needs in order to invoke
the act is idle curiosity. And it should be enough.
Mr. CORN ISIE. I wanted to make it clear on the record there are a
number of very serious requests for information that go far beyond
mere curiosity. There are people who cannot afford to press their
legal remedies in cases like this.
Mr. SCALIA . That is certainly true. The Conference, and I person-
ally, recognize that by our interest in this particular :field.
May I just say abou the fee provision: You will recall the concln-
sion of my prepared testimony on that point is simply that I hesi-
tate to say it is good or bad until I know more about the kinds of
suits that are now brought. If indeed it turns out a large number of
the plaintiffs who want information and are denied it are poor plain-
tiffs, as they are in the other prolisions you refer to, then the device
would make sense here. I don't think we have that kind of data now--
and as an abstract matter I don't see why this area deserves that
special kind of treatment any more than another.
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Mr. ConNisn. On the point Mr. McCloskey was making in regard to
advice which subordinates give their superiors in Government, you
seem to have some problems with this, quite obviously. Isn't it true that
all advice, even if it is written, can be qualified with the proper lan-
guage to indicate exactly the nature of the advice it is? In other words,
if it is a brainstorming suggestion, this can be indicated in some way. If
it is a revolutionary thought this can be indicated in some way. It can
be described in such language that it would be clear to any person who
read it, just what the nature of the advice is and how it is being
presented.
Mr. SCALIA. I think so. But it takes thought and effort to do that,
thought and effort which is thereby diverted from the subject at hand,
perhaps. Moreover, advice is sometimes not taken as seriously when
it is put forward so tentatively. I occasionally like to play the role of
the devil's advocate, that is, to take a position in the discussion as
forcefully as though I am entirely committed to it, whereas in fact
I have my own substantial doubts. I find that often the discussion is
taken more seriously and the person you are providing the advice
to responds more vigorously, if you play the role of devil's advocate.
And that role is utterly inconsistent with putting forth a position very
tentatively. It can't be done.
Mr. Pimurs. If you could yield for an observation. It might be
if there were such a requirement, if advice contained in interoffice or
interagency memorandums were to be disclosed, this might have the
effect of reducing the great mountain of paper that is moved through
the executive bureaucracy. People would be less likely to write 10 or
15 memos a day, if they knew it was going to be disclosed. That might
save the Government and the taxpapers many millions of dollars a
year.
Mr. SCALIA. Unfortunately, it is probably only the most useful.
memorandums that would be suppressed. The ones you would want a
record of.
Mr. MOORHEAD. Thank you, MT. Scalia.
T don't think the subcommittee has kept up to its usual standard
of hospitality. Would you present your associate?
Mr. SCALIA. I am sorry, Mr. Richard Berg, who is the executive
secretary of the Administrative Conference.
Mr. MoonnEAD. We welcome you, MT. Berg.
We want to thank you very much, Mr. Scalia, for presenting such
a forthright memorandum you didn't mind putting on the public
record. We appreciate it.
Mr. SCALIA. Thank you, Mr. Chairman.
Mr. MOORHEAD. When the subcommittee adjourns this afternoon, it,
will adjourn until 10 o'clock, Wednesday, May 16, when we meet in
room 2247 to hear additional outside wtinesses on the Freedom of
Information Act amendments.
The subcommittee is now adjourned.
{Whereupon at 4 p.m., the subcommittee adjourned, to reconvene at
10 a.m., Wednesday, May 16,1973.]
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THE FREEDOM OF INFORMATION ACT
WEDNESDAY, MAY 16, 1973
HOUSE OF REPRESENTATIVES,
FOREIGN OPERATIONS AND
GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
W aging ton, D .0 .
The subcommittee met, pursuant to recess, at 10 :10 a.m., in room
2247, Rayburn House Office Building, Hon. William S. Moorhead
(chairman of the subcommittee) presiding.
Present: Representatives William S. Moorhead, and John N.
Erlenborn.
Also present: William G. Phillips, staff director; Norman G.
Cornish, deputy staff director; L. James Kronfeld, counsel; and
William H. Copenhaver, minority professional staff, Committee on
Government Operations.
Mr. MOORHEAD. The Subcommittee on Foreign Operations and Gov-
ernment Information will please come to order.
This morning we conclude our legislative hearings on bills to
strengthen and clarify provisions of the Freedom of Information Act.
Since May 2, when these hearings commenced, we have taken testi-
mony from a broad cross section of witnesses. We have heard from a
group of distinguished news media veterans who testified before this
subcommittee during the original hearings on Government informa-
tion in the 1950's and mid-1960's. We have received testimony from
our colleagues in the House. We have heard from the Departments of
Justice and Defense, albeit negatively and with little constructive sug-
gestions as to how we can technically improve the bills before us. We
received testimony from members of the working press, the American
Civil Liberties Union, and the Administrative Conference of the
United States. Many other interested organizations have indicated
that they will file prepared statements on H.R. 5425 and H.R. 4960 for
our hearing record.
Today, we will hear from both news media and legal expert points
of view. Our first witness will be Mr. John T. Miller, chairman of the
section of administrative law of the American Bar Association and one
of the most prominent members of the Washington Bar. Mr. Miller is
accompanied by Mr. Richard Noland, a member of the ABA section of
administrative law and vice chairman of its committee on access to
Government information.
We willalso receive testimony from Mr. Ted Koop, whose long and
distinguished career in the electronic news media and broadcasting
(309)
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industry is well known to all of us. Mr. Koop represents the Radio-
Television News Directors Association.
oat cleanup witness for these hearings will be Mr. Ronald
Plesser, representing the Center for the Study of Responsive Law.
Mr. Plesser is one of the outstanding experts on freedom of informa-
tion law in the United States,: having probably litigated more such
cases than any other attorney. He is also active in the Center for Press
Information, a group that assists members of the news media in their
freedom of information problems.
I understand you have another appointment, Mr. Miller. Is that
correct ?
Mr. Minuru. Yes.
STATEMENT OF JOHN T. MILLER, JR., CHAIRMAN, SECTION OF
ADMINISTRATIVE LAW, AMERICAN BAR ASSOCIATION; ACCOM?
PANIED BY RICHARD NOLAND
Mr. MinnHu. I have another hearing, and I do appreciate the oppor-
tunity to appear tirst this morning because of this conflict of time
which I have.
My name is John T. Miller, Jr. I am a practicing attorney and chair-
man of the administrative law section of the American Bar Association.
With me today is Richard T. Noland, who is vice chairman of our
committee On access to Government information.
We have, prepared a statement, Congressman Moorhead, which we
ask be copied into the record at some appropriate place. T will not try
to read it all.
Mr. MoomiEAD. Without objection, the entire statement will be made
a part of the record.
Mr. Mitumn. You will notice when you look at the entire statement
that while we are authorized to appear here on behalf of the adminis-
trative law section, in view of the brief notice period, we have not been
able to clear fais with the policymaking part of the ABA which is
above us. However, we have been authorized by the prsident of the
American Bar Association to appear before you.
We appreciate your invitation to appear .and to testify in these hear-.
ings. The section has long been concerned with problems relating to
public access to Government records, and welcomes this opportunity
to present its views. Our section submitted a statement to this Sub-
committee last June in connection with the subcommittee hearings or.
the administration and operation (A the Freedom of Information Act.
In that statement, the section indicated that it believes that the Free-
dom of Information Act is serving a useful and necessary function in.
our society, and has generally pro, ,ed to be a workable statute. The
section went on to point out that the main problem with the statute
today is one of enforcement, particularly at the lower levels of Gov-
ernment. The section also noted that, despite general compliance b.
most agencies, some problems have been encountered in receiving
prompt. replies to requests for ageucy records. In order to alleviate
some of these problems, the section of administrative law Made a IM/11-
her of recommendations in that statement, including certain speciii(
proposals for amendment of the statute.
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We understand that the purpose of these hearings is to consider two
specific bills which have been introduced in the House of Representa-
tives, II.R. 4960 and ILR. 5425. Our comments on several aspects of
the 'bills are set forth in detail in the statement which we submitted
to day .
Basically, we have addressed the following matters:
First, we support the 'establishment of specific time limitations in
order to assure that agencies reply promptly to requests for records.
In our view, these limitations do as much as any single measure to
assure effective enforcement of the Freedom of Information Act, es-
pecially at lower levels in the government.
_However, we believe that there may be legitimate grounds for al-
lowing an extension of time for an agency to respond to a request for
an agency record in certain instances.. Accordingly, we support the
proposed time limitations sot forth in H.R. 4960, and prefer this pro-
posal to the proposal in II.R. 5425.
The provisions contained in H.R. 4960 are based upon the uniform
regulation and implementation of the Freedom of Information Act
recommended by the Administrative Conference of the United States
in its recommendation No. 24, which we supported in our statement
last year.
Second, the Administrative Law Section agrees with the objective
of proposals -contained in both bills to empower the courts to review
security, classifications by the government. While courts are generally
not equipped to deal with policy questions involving national defense
and foreign policy, we believe that judicial review of security classi-
fications to 'determine whether they are consistent with applicable
criteria can provide a salutary check oil executive action. In our state-
ment we, propose specific language designed to confer this authority
upon courts.
Third, the section also believes that certain of the exemptions set
forth in subsection (b) of the Freedom of Information Act should be
amended in order to assure that information be .made available to the
maximum extent possible.
-At the same time, there is certain information, such as information
the disclosure of which would invade personal privacy and some in-
formation received by the government from a citizen in confidence,
that the section believes normally should be protected against public
disclosure. Our statement sets forth proposed 'amendments 'to several
exemptions, including the second, fourth fifth, sixth, and seventh ex-
emptions to the Freedom of Information Act.
I might digress to attract your attention to the portions of our state-
ment which begin at page 8. We refer first to the second exemption
where it has been proposed to amend section 552(b) by inserting the
words "internal personnel." We believe that at least certain types of
internal guidelines should be protected against public disclosure. These
internal guidelines include such sensitive matters as allowable toler-
ances for prosecution, negotiating techniques for contracting officers,
schedules of surprise audits and inspections, and similar matters which
obviously cannot be disclosed without impeding the, performance of
a particular agency function which they concern.
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As to the fourth exemption, which we believe has been the subject
of more Controversy than the others, some courts have held that the
fourth exemption protects only commercial and financial information
that is confidential or privileged Ind is not applicable to other kinds
of information. We believe that tLere are certain kinds of information
which are not commercial or financial in character which should en-
joy a privilege nonetheless. In my statement I mention that in certain
types of investigations important information is obtained on a con-
fidential basis which would not otherwise have been disclosed, and this
may be important in the case of ai;Traft accident safety investigations,
for example.
Further, citizens must be able in confidence to complain to their
government and to provide infoimation without fear of reprisal. I
believe one example of that might be the soldier who complains to the
Inspector General about some condition in the Army. The Inspector
General would probably be denied access to further complaints if some-
one in command could obtain access to the complaint and make the
identity of the soldier known, and thereby subject him to possible eLs-
ciplinary action by a superior.
We have recommended a change in language which would reflect
confidential information which is not simply financial or commercial
in nature.
In the fifth, exemption, we have suggested that it read consistently
with the new proposed Federal Rules of Evidence. We have suggested
language to effect this result.
The sixth exemption is one we think is proving to be unduly exclu-
sionary. We would broaden this exemption by eliminating the ward
"clearly." Second, the word "files" should be changed to records" in
order to avoid the possibility that documents which ought to be dis-
closed would be withheld on the grounds that they are in a file which
may otherwise enjoy an exemption.
The seventh exemption relates to investigatory files compiled for
law enforcement purposes. B:ere we prefer the approach taken in
H.R. 4960 over the approach taken in H.R. 5425. We have suggested
that the reform be accomplished by stating specifically what investi-
gatory records should not be made available, by using general group-
ings. Unless release of the document actually interferes with en-
forcement proceedings, for example, it should be made available.
Turning now to the more general legislative proposals, we support
the proposal set forth in H.R. 49E0 to establish. a Freedom of Infor-
mation Commission and believe that such a commission. could serve a
useful role as an ombudsman for ,!,omplaints arising under the Free-
dom of Information Act. The section does not believe that it would be
useful or wise to enable the Freedom of Information Commission to
adjudicate individual cases, since this would simply duplicate existirg
procedures for judicial review under the Information Act. Conse-
quently, we recommend that the Commission's rules be limited to set-
ting general policies regarding release of information and acting as
an ombudsman in matters relating to public access to Government
information
Fifth, our statement also addre sses several technical amendments
proposed in H.R. 4960 and H.R. 5425. These technical matters are
discussed in detail in our rgfatem pnt.
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We will be pleased to answer any questions which the subcommittee
may have.
Mr. MOORHEAD. Thank you very much, Mr. Miller.
[Mr. Miller's prepared statement follows:]
PREPARED STATEMENT OF JOHN T. MILLER, JR., CIIAIRMAN, SECTION OF
ADMINISTRATIVE LAW, AMERICAN BAR ASSOCIATION
Mr. Chairman and Members of the Subcommitte : I appreciate your invitation
to appear and testify in these hearings before the Subcommittee on Foreign
Operations and Government Information of the House Committee on Govern-
ment Operations on behalf of the Section of Administrative Law of the Amer-
ican Bar Association.' The Section has long been concerned with problems relat-
ing to public access to government records, and welcomes this opportunity to
present its views.
The Administrative Law Section submitted a statement to this Subcommittee
last June in connection with the Subcommittee's hearings on the administration
and operation of the Freedom of Information Act. In that statement, the Section
indicated that it believes that the Freedom of Information Act is serving a useful
and necessary function in our society, and has generally proved to be a workable
statute. For this reason, the Section concluded that no sweeping changes in
the structure or organization of the Act were required. The Section went on to
point out that the main problem with the statute today is one of enforcement,
particularly at the lower levels of the government. The Section also noted that,
despite general compliance by most agencies, some problems have been en-
countered in receiving prompt replies to requests for agency records. In order to
alleviate some of these problems, the Section of Administrative Law made a
number of recommendations in that statement, including certain specific
proposals for amendment of the statute.
The Administrative Law Section understands that the purpose of these hear-
ings is to consider two specific bins which have been introduced in the House of
Representatives. These include H.R. 4960, introduced by Congressman Horton on
February 28, 1973, and H.R. 5425, introduced by Congressman Moorhead on
March 8, 1973. Without discussing either of these bills in detail, I would like to
devote the remainder of my statement to certain aspects of the proposed legisla-
tion which the Administrative Law Section believes merit attention at this time.
First, both bills make provision for the establishment of specific time limita-
tions intended to assure that agencies reply promptly to requests for records.
(Section 303, H.R. 4960; Section 1(c) H.R. 5425). These proposals are evidently
based upon the uniform regulations in implementation of the Freedom of Infor-
mation Act recommended by the Administrative Conference of the United States
in its Recommendation No. 24. In our statement submitted last year, the Section
strongly endorsed Recommendation No. 24, and urged that agencies should con-
form their internal regulations governing release of information with the uniform
regulations to the maximum extent practicable, on the ground that the uniform
regulations "can do as much as any single measure to assure effective implemen-
tation of the Act."
The Administrative Law Section continues to believe that a set of strict time
limitations for responding to requests, such as is contained in the proposed bills
before this Subcommittee, is essential to effective enforcement of the Freedom of
Information Act. In this connection, we believe that the proposal set forth in
H.R. 4960 (Section 303), which virtually tracks the uniform regulations proposed
by the Administrative Conference in Recommendation No. 24, is far preferable
to the proposal set forth in H.R. 5425 (Section 1 (c) ). Both bills require that an
agency comply with or deny a request in 10 working days. However, H.R. 5425
apparently would provide no basis for an extension of time in which to reply to
a request for agency records, while H.R. 4960 sets forth several specific grounds
for an extension of time. In our view, there are legitimate reasons for extending
Although we are authorized to appear on behalf of the Administrative Law Section,
the policy-making body of the American Bar Association has not had an opportunity to
pass on the principles of the legislation here being discussed.
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the thne in Which an agency must rep13 to a request, such as the need to condnct
an extensive search for the records or to evaluate whether a particular record
is exempt under the Inforination Act, and a set of time limitations should pro-
vide sufficient flexibility for extensions in such instances. Moreover, we believe
that the grounds for extending the tinie in which to reply to a request are set
forth with sufficient specificity in H.R. 4960, so as to avoid abuse of the provision.
By failing to provide any grounds for obtaining an extension of time, HR. 5425
could well tend to force the agencies to deny a request that might have been
granted had more time for deliberation been allowed. Consequently, if it is de-
termined to enact a set of time lbartations, the Section recommends that the pro-
posal set forth in H.R. 4960 be adopted.
II
A second aspect of the proposed legislation which the Administrative Lew
Section desires to comment upon relates to provisions concerning in camera in-
spections of documents. Both bills contain language which is apparently
tended to respond to the recent decision of the Supreme Court in Environmental
Protection Agency v. Mink, ?17.S --, 41 L.W. 4201 (1973). (H.R. 1960, Secti rat
101; H.R. 5425, Section 1(d)). In that decision, the Supreme Court ruled that,
under the first exemption to the Freedom of Information Act (5 U.S.C. ? 552
(1) ), a district court has no authority to inspect in camera u. record classified
in accordance with an Executive Order to separate the secret portions from the
non-secret portions, and rejected "any claim that the Act intended to subject the
soundness of ex kutive security classifications to judicial review at the insistence
of any objecting citizen."' The Court also held that district courts were not ]:e-
quired, under tie fifth exemption to the Act (5 U.S.C. ?552(b) (5)). to inspect a
record in camera to determine whether or not the exemption was propetly
claimed, but could instead rely upon alidavits, oral testimony. etc., in reaching
a decision. To the extent that the pro,,..msed legislation would require courts to
examine government records in camera to determine whether or not they fall
within a particular exemption, the Administrative Law Section opposes such
proposals. In the Section's view, a court should be enabled to reach a decision
with respect to whether or not a :particular record has been lawfully withheld
under the Freedom of Information Act in any manner that it chooses, including
through the use of affidavits or oral testimony. However, the Section agrees that
courts should he permitted to examine records in camera in their discretion.
It appears that the principal purpose of both bills is to empower the courts to
determine whether or not a particular record has been properly classified in ac-
cordance with applicable criteria governing classification in order to determine
whether or not it should be withheld under the first exemption to the Freed, m
of Information Act. Generally speaking, the Administrative Law Section be-
lieves that courts should have the authority to review security classifications in
instances where an agency has acted without reasonable grounds in assigning
the classification to a particular document. To he sure, the courts are not
equipped to deal effectively with questions of what is desirable in the interests
of national defense and foreign policy, and should be reluctant to interfere with
security classifications in the absence of evidence that there is no rational justifi-
cation for the classification! However, we believe that, even in this limited re-
spect, judicial review can provide a salutary check on Executive action.
One technical difficulty with the mauner in which the proposed bills attempt
to provide for judicial review of security classifications is that neither would
amend the language of the first exemption. Since the Supreme Court held in
Environmental Protection Agency v. Mini:, .supra, that, under the first exemption,
the sole question was whether or not the record had been classified pursuant to
an Executive Order, in our view, it wc uld be necessary to modify the language
of the first exemption in order to permit a court to determine whether a record
was properly classified. In H.R. 4960, it is provided only that the court shall
examine in camera any records being withheld under an exemption to the Free-
dom of Information Act, including classified records, "to determine if they are
being improperly withheld." (Section 101, H.R. 4960). Because this amendment
would not change the language of the first exemption, under the Mink decision,
presumably a classified record would still be properly withheld under Section
242 L.W. 4205.
3 See Epxtein V. Resor, 421 F. 2d 390 (9th Cir. 1970), cert. den., 398 U.S. 965 (1970).
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552(9) (1) simply if it were classified pursuant to an Executive Order. The pro-
posal in H.R. 5425 suggests more clearly that judges are expected to examine
classified records in order. to determine whether or not they are properly classi-
fied, but, -without amendment of Section 552(b) (1), the statute could still be
construed to limit the court's role simply to deciding whether the record had
been classified pursuant to an Executive Order.4 If the Subcommittee desires
to overcome the decision of the Supreme Court in En'eirOminental Protection
Agency v. Mink, .supra, it should revise the language of the first exemption in
addition to requiring that classified recordsbe examined in camera. by a court so
as to make it clear that courts have authority to review security classifications.
In view of the foregoing, the Administrative Law Section recommends that
the following two sentences be substituted. for the third sentence in 5 U.S.C.
? 552(a) (3) :
"In such a case the court shall determine the matter de novo, including
_ such in camera examination of the requested record as it finds necessary to
determine if such record or any part thereof may be withheld under any
of the exemptions set forth in subsection (b) of this section, and the burden
is on the agency to sustain its action. Such in camera examination of records
which the agency- claims are in the purview of subsection (h) (1) of this
section is authorized whenever the court finds reasonable grounds to believe
that the agency's claim is not justified."
In addition, the Section recommends that ? 552(b) (1) be revised. to read as
follows:
"authorized under the criteria of an Executive order to be kept secret in
the interest of national defense and foreign policy."
III
A third major portion of FIR. 4960 and H.R. 5425 would revise certain of the
exemptions set forth in Section 552(b) of the Freedom of Information Act. These
include proposed amendments to the second, fourth, fifth, and seventh exemptions.
TIIE SECOND EXEMPTION
H.R. 5425 proposes to amend Section 552(b) (2) by inserting the word-"internal
Personnel" immediately before "practices," and adding the words "and the dis-
closure of which would unduly impede the functioning of such agency" at the
end of the exemption. (Section 2(a) ). The Administrative Law Section agrees
with the proposal to restrict the scope of the second exemption only to instances
where information cannot be disclosed without nullifying the effectiveness of a
particular agency function. Indeed, in our statement submitted to the Subcom-
mittee last year, we noted that some courts, relying upon the Senate report for
the bill subsequently enacted as the Freedom of Information Act, have held that
the second exemption is limited to information pertaining to an agency's policies
regarding employee vacations, lunch hour time, sick leave, parking space alloca-
tions, and similar non-sensitive matters.' Other courts, however, have accepted
the .broader reading of the second exemption found in the House report, which.
covers such matters as operating manuals and guidelines intended for the use
of agency personnel.? While the Administrative Law Section does not believe
that personnel information of the type described above should be withheld under
the Information Act, it does believe that at least certain types of internal guide-
lines should be protected against public disclosure. These internal guidelines in-
clude such sensitive matters as allowable tolerances for prosecution, negotiating
techniques for contracting officers, schedules of surprise audits and inspections,
and similar matters which obviously cannot be disclosed without impeding the
performance of the particular agency function which they concern.
In the Administrative Law Section's view, the difficulty with the proposed
amendment to the second exemption set forth in 11.11. 5425 is that the addition
It is noted that the standard for review of classified records in Section 1(5) (2) of H.R.
5425 ("harmful to the national defense or foreign policy of the United States") is incon-
sistent with tile standard set forth in Executive Order 11652, March 10, 1972, 27 Fed Reg.
5209 ("in the interest of the national defense or foreign relations"). (Emphasis added).
Consunters Union v. Veterans Administration, 301 F. Supp. 796 (S.D.N.Y. 1969) ;
Benson v. GSA, 289 F. Supp. 590 (W.D. Wash. 1968), ard on other grounds, 415 F. 2d 878
(9th Cir. 1969).
Caneo v. McNamara, Civ. Action No. 1826-67 (D.D.C. January 14, 1972).
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of the words "internal personnel" could be read to restrict unduly the scope of
the exemption. In light of the Senate report discussed above, the proposed
amendment could be construed to apply only to matters concerning personnel
policies, and not to apply to the kinds of sensitive matters intended for the guid-
ance of agency employees such as were described above. Accordingly, the Admin-
istrative Law Section recommends that the word "personnel" be deleted entirely
from the second exemption, and that it be amended to read as follows:
"Related solely to internal rules and practices the disclosure of which
would significantly impede the performance of an important agency
function."
THE FOURTH :EXEMPTION
As the Section noted in its statement submitted last year, the fourth exemp-
tion has probably been the subject of most controversy of all nine exemptions,
in large part because of its awkward wording. As it is presently drafted, some
courts have held that the fourth exemption protects only commercial and finan-
cial information that is confidential or privileged, and is not applicable to other
kinds of information.' However, the Administrative Law Section believes that
non-commercial and non-financial it:formation that is confidential or privileged
should be afforded the same protection as commercial and financial information.
In certain types of investigations, important information is often obtained on a
confidential oasis which would not otherwise have been disclosed. For example,
in the case a aircraft accident safety investigations, information as to the cause
of the occident may be obtained only on the understanding that it will be used
solely for the purpose of prevention f accidents, and will not be disclosed to the
public or used for any other purposa. In addition, in our view, a citizen "must
be able in confidence to complain to his Government and to provide information"
without fear of reprisal.' According:y, the Section recommends that the fourth
exemption be amended to read as follows:
`Trade secrets and privileged or confidential information obtained froni
any person."
The Section recognizes that such an exemption could be abused by indis-
criminate receipt of information in confidence by agencies. However, this po-
tentiality would similarly exist with respect to commercial and financial in-
formation received in confidence. It is intended that, regardless of whether or
not there was an express or implied promise of confidentiality by the agency,
the fourth exemption should be con;steued so as to exempt only such information
as would customarily be withheld from the public and for which there is legiti-
mate reason for non-disclosure.
THE FIE PH EXEMPTION
The Administrative Law Section has no difficulty with tie proposed amend-
ment to the fifth exemption found in H.R. 4960. That proposed amendment ap-
pears to be consistent with the law co-2 discovery presently incorporated into the
fifth exemption, and apparently is intended simply to clarify the scope of the
exemption. However, since the privilege in discovery law for intra-agency
memoranda would be expressly defined in the new proposed Federal Rules of
Evidence, it is suggested that the proposed amendment be revised to conform
with that proposed definition. (Rule 509(a) (1) (A) ). Thus, th