FREEDOM OF INFORMATION ACT AMENDMENTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000600190002-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 9, 2016
• Document Release Date: August 24, 2001
• Sequence Number: 2
• Publication Date: September 25, 1974
• Content Type: REPORT

/_4
Approved For Release 2001/08/30: CIA-RDP75B00380R000"
93D CONGRESS HOUSE OF REPRESEd
2d Session X1380
FREEDOM OF INFORMATION ACT AMENDMENTS
Mr. MOORHEAD of Pennsylvania, from the committee of conference,
submitted the following
CONFERENCE REPORT
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the Senate to the bill (H.R. 12471) to
amend section 552 of title 5, United States Code, known as the
Freedom of Information Act, having met, after full and free confer-
ence, have agreed to recommend and do recommend to their respective
Houses as follows :
That the House recede from its disagreement to the amendment of
the Senate and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following :
H.R. 12471-FREEDOM OF INFORMATION ACT AMENDMENTS
That (a) the fourth sentence of section 553(a) (3) of title 5, United
States Code, is amended to read as follows : "Each agency shall also
maintain and make available for public inspection and copying cur-
rent indexes providing identifying information for the public as to
any matter issued, adopted, or promulgated after July 4,1967, and re-
quired by this paragraph to be made available or published. Each
agency shall promptly publish, quarterly or more frequently, and
distribute (by sale or otherwise) copies of each index or supplements
thereto unless it determines by order published in the Federal Reg-
ister that the publication would be unnecessary and impracticable, in
which case the agency shall nonetheless provide copies of such index
on request at a cost not to exceed the direct cost of duplication.".
(b) (1) Section 552(a) (3) of title 5, United States Code, is
amended to read as follows:
"(3) Except with respect to the records made available under para-
graphs (1) and (2) of this subsection, each agency, upon any request
for records which (A) reasonably describes such records and (B) is
made in accordance with published rules stating the time, place, fees
Approv d?I & Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 : CIA-RDP75B00380R000600190002-8
2
(if. au,), csnd. procedures to be followed, shall make the records
p?o raptly av&ahle to any person.''
{ N) ?ectiarc'S 2(a) o? title 5, United States Code, is amended by
redesignatinq paragraph (4), and all references thereto, as paragraph
(5) and l inserting immediately after paragraph (3) the following
new paragraph:
(A) In order to carry out the provisions of this section, Each
agency shall promulgate regulations, pursuant to notice and recsipt
of public comment, specifying a uniform, schedule of fees applicable to
all constituent units of such agency. Such fees shall be limited to
reasonable standard charges for document search and duplication and
provide for recovery of only the direct costs of such search and dup-
lication. Documents shall be furnished without charge or at a reduced
charge where the agency determines that waiver or reduction of the
fee is in the public interest because furnishing the information can be
considered as primarily benefiting the general public.
"(R) 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 inhieh the agency records are situated, or in the District
of Columbia, has jurisdiction to enjoin the agency from withholding
agency records and to order the production of any agency records im-
properly ?nihheld, from the complainant. In such a case the court shall
determine the matter de novo, and may examine the contents of such
agency records in camera to determine whether such records or any
part thereof shall 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.
"(C,) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made under
this subsection within thirty days after service upon the defendant of
the pleading in which such complaint is made, unless the court other-
wise directs for good cause shown.
" (D, F, xcept as to cases the court considers of greater importance,
proceedings before the district court, as authorized by this subsection,
and appeals therefrom, take precedence on the docket over all cases
and shall be assigned for hearing and trial or for argument at the
earliest practicable date and expedited in every way.
"(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially
prevailed.
"(F) i henever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other litigation
costs, and the court additionally issues a written finding that the cir-
cumstances surrounding the withholding raise questions whether
agency personnel acted arbitrarily or capriciously with respect to the
w,nithholding, the Civil Service Commission shall promptly initiate a
proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for the
withholding. The Commission, after investigation and consideration
of the evidence submitted, shall submit its findings and recommae'ada-
Approved For Release 2001/08/30 : CIA-RDP75B00380R000600190002-8
 Approved For Release 2001/08/30 :3CIA-RDP75B0038OR000600190002-8
tions to the administrative authority to the agency concerned and shall
send copies of the findings and recommendations to the officer or em-
ployee or his representative. The administrative authority shall take
the corrective action that the Commission recommends.
"(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and
in the case of a uniformed service, the responsible member.".
(c) Section 552 (a) of title 5, United States Code, is amended by
adding at the end thereof the following new paragraph :
"(6) (A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall-
"(i) determine within ten days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the rea-
sons therefor, and of the right of such person to appeal to the head
of the agency any adverse determination; and
"(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public holi-
days) after the receipt of such appeal. If on appeal the denial of
the request for records is in whole or in part upheld, the agency
shall notify the person making such request of the provisions for
judicial review of that determination under paragraph (4) of this
subsection.
"(B) In unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of sub-
paragraph (A) may be extended by written, notice to the person mak-
ing such request setting forth the reasons for such extension and the
date on which a determination is expected to be dispatched. No such
notice shall specify a date that would result in an extension for more
than ten working days. As used in this subparagraph, `unusual cir-
cumstances' means, but only to the extent reasonably necessary to the
proper processing of the particular request-
"(i) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
"(ii) the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are
demanded in a single request; or
"(iii) the need for consultation, which shall be conducted with
all practicable speed, with another agency having a substantial in-
terest in the determination of the request or among two or more
components of the agency having substantial subject-matter inter-
est therein.
"(C) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if
the agency fails to comply with the applicable time limit provisions of
this paragraph. If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence in responding to
the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any deter-
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
4
urination by an agency to comply with a request for records, the r,-
c-ords shall be -made promptly available to such person making such
request. Any notification of denial of any request for records under
this subsection shall set forth the names and titles or positions of each
person responsible for the denial of such request."
SL'c. 2. (a) Section 552(b) (1) of title 5, United States Code, is
amended to read as follows :
" (1) (A) specifically authorized under criteria established by an
7+'xecutwe order to be kept secret in the interest of national de-
fense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;''
(b) Section 552( ' b) (7) of title 5, United States Code, is amended to
read as follows:
"7) Investigatory records compiled for law enforcement puuor-
puses, but only to the extent that the production of such reeo,'ds
would (A) interfere with enforcement proceedings, (B) deprive
a person of a right to a fair trial or an impartial adjudication,
(') constitute an unwarranted invasion of personal privacy, (.U)
disclose the identity of a confidential source and, in the case of a
record compiled by a criminal law enforcement authority in he
course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, confudential
in furnished only by the confidential source, (E) dis-
close investigative techniques and procedures, or (F) endanger the
life or physical safety of law enforcement personnel;"
(C) Section 552(b) of title 5, United States Code, is amended by
adding at the end the following: "Any reasonably segregable portion
of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this subsection.".
SEC. 3. Section 552 of title 5, United States Code, is amended by
adding at the end thereof the following new subsections :
"(d) On or before March 1 of each calendar year, each agency shall
submit a report covering the preceding calendar year to the Speaker of
the House of Representatives and President of the Senate for referral
to the appropriate committees of the Congress. The report shall
include--
"(1) the number of determinations made by such agency not to
comply with requests for records made to such agency under sub-
section (a) and the reasons for each such determination;
(2) the number of appeals made by persons under subsection
(a) (6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information;
"` (3) the namos and titles or positions of each person responsible
for the denial of records requested under this section, and the
number of instances of participation for each;
the results of each proceeding conducted pursuant to sub-
section (a) (4) (F), including a report of the disciplinary action
taken aainst the officer or employee who was primarily responsi-
ble for improperly withholding records or an explanation of why
disciplinary action was not taken;
"(5) a copy of every rule made by such agency regarding this
section;
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/305 CIA-RDP75B0038OR000600190002-8
"(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
section; and
"(7) such other information as indicates efforts to administer
fully this section.
"The Attorney General shall submit an annual report on or before
March 1 of each calendar year which shall include for the prior calen-
dar year a listing of the number of cases arising under this section,
the exemption involved in each case, the disposition of such case, and
the cost, fees, and penalties assessed under subsections (a) (4) (E),
(F), and (G). Such report shall also include a description of the
efforts undertaken by the Department of Justice to encourage agency
compliance with this section.
" () For purposes of this section, the term `agency' as defined
in section 551 (1) of this title includes any executive department, mili-
tary department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or any
independent regulatory agency.
SEC. 4. The amendments made by this Act shall take effect on the
ninetieth day beginning after the date of enactment of this Act.
And the Senate agree to the same.
CHET HOLIFIELD,
WILLIAM S. MOORHEAD,
JOHN E. Moss,
BILL ALEXANDER,
FRANK HORTON
JOHN N. ERLENBORN,
PAUL MCCLOSKEY,
Managers on the Part of the House.
EDWARD KENNEDY,
PHILIP A. HART,
BIRCH BAYH,
QUENTIN BURDICK,
JOHN TUNNEY,
CHARLES MCC. MATHIAS, Jr.,
Managers on the Part of the Senate.
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
OF CONFERENCE
The managers on the part of the House and the Senate at the confer-
ence on the disagreeing votes of the two Houses on the amendment of
the Senate to the bill (H.R. 12471) to amend section 552 of title 5,
United States Code, known as the Freedom of Information Act, sub-
mit the following joint statement to the House and the Senate in
explanation of the effect of the action agreed upon by the managers
and recommended in the accompanying conference report :
The Senate amendment struck out all of the House bill after the
enacting clause and inserted a substitute text.
The House recedes from its disagreement to the amendment of the
Senate with an amendment which is a substitute for the House bill
and the Senate amendment. The differences between the House bill,
the Senate amendment, and the substitute agreed to in conference are
noted below, except for clerical corrections, conforming changes made
necessary by agreements reached by the conferees, and minor drafting
and clarifying changes.
INDEX PUBLICATION
The House bill added language to the present Freedom of Infor-
mation law to require the publication and distribution (by sale or
otherwise) of agency indexes identifying information for the public
as to any matter issued, adopted, or promulgated after July 4, 1967,
which is required by 5 U.S.C. ? 552(a) (2) to be made available or
published. This includes final opinions, orders, agency statements of
policy and interpretations not published in the Federal Register, and
administrative staff manuals and agency staff instructions that affect
the public unless they are otherwise published and copies offered for
sale to the public. Such published indexes would be required for the
July 4, 1967, period to date. Where agency indexes are now published
by commercial firms, as they are in some instances, such publication
would satisfy the requirements of this amendment so long as they are
made readily available for public use by the agency.
The Senate amendment contained similar provisions, indicating that
the publication of indexes should be on a quarterly or more frequent
basis, but provided that if an agency determined by an order published
in the Federal Register that its publication of any index would be
"unnecessary and impracticable," it would not actually be required to
publish the index. However, it would nonetheless be required to pro-
vide copies of such index on request at a cost comparable to that
charged had the index been published.
The conference substitute follows the Senate amendment, except
that if the agency determines not to publish its index, it shall pro-
vide copies on request to any person at a cost not to exceed the direct
cost of duplication.
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
8
_1D1-)NTIFIARLE RECORDS
Present law requires that a request for information from an a~,ency
be for "identifiable records." The House bill provided that the request
only "reasonably describe" the. records being sought.
The Senate amendment contained similar language, but added a
provision that when agency records furnished a person are demon-
strated to be of "general public concern," the agency shall also make
them available for public inspection and purchase, unless the agency
can demonstrate that they could subsequently be denied to another
individual under exemptions contained in subsection (b) of the Free-
dom of Information Act..
The conference substitute follows the Douse bill. With respect to
the Senate proviso dealing with agency records of "general public
interest," the conferees wish to make clear such language was elimi-
nated only because they conclude that all agencies are presently obli-
gated under the Freedom of Information Act to pursue such a policy
and that all agencies should effect this policy through regulation.
SEARCH AND COPYING FEES
The Senate amendment contained a provision, not included in the
House bill, directing the Director of the Office of Management and
Budget to promulgate regulations establishing a uniform schedule
of fees for agency search and copying of records made available to
a person upon request under the law. It also provided that an agency
could furnish the records requested without charge or at a reduced
charge if it determined that such action would be in the public interest.
It further provided that no fees should ordinarily be charged if the
person requesting the records was an indigent. if such fees would
amount to loss than $3, if the records were not located by the agency,
or if they were determined to be exempt from disclosure under sub-
section (b) of the, law.
The conference substitute follows the Senate amendment, except
that each agency would be required to issue its own regulations for
the recovery of only the direct' costs of search and duplication--not
including examination or review of records-instead of having such
regulations promulgated by the Office of Management and Budget.
In addition., the conference substitute retains the agency's discretionary
public-interest waiver authority but eliminates the specific categories
of situations where fees should not be charged.
B-v eliminating the list of specific categories, the conferees do not
intend to imply that agencies should actually charge fees in those
categories. Rather, they felt, such matters are properly the subject for
individual agency determination in regulations implementing the
Freedom of Information law. The conferees intend that fees should
not be used for the purpose of discouraging requests for information
or as obstacles to disclosure of requested information.
COMM REVIEW
The FIouse bill clarifies the present Freedom of Information law
with respect to de novo review requirements by Federal courts under
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
section 552(a) (3) by specifically authorizing the court to examine in
camera any requested records in dispute to determine whether the
records are-as claimed by an agency-exempt from mandatory dis-
closure under any of the nine categories of section 552(b) of the law.
The Senate amendment contained a similar provision authorizing
in camera review by Federal courts and added another provision, not
contained in the House bill, to authorize Freedom of Information suits
to be brought in the Federal courts in the District of Columbia, even
in cases where the agency records were located elsewhere.
The conference substitute follows the Senate amendment, providing
that in determining de novo whether agency records have been prop-
erly withheld, the court may examine records in camera in making its
determination under any of the nine categories of exemptions under
section 552(b) of the law. In Environmental Protection Agency v.
Mink, et al., 410 U.S. 73 (1973), the Supreme Court ruled that in
camera inspection of documents withheld under section 552(b) (1) of
the law, authorizing the withholding of classified information, would
ordinarily be precluded in Freedom of Information cases, unless Con-
gress directed otherwise. H.R. 12471 amends the present law to permit
such in camera examination at the discretion of the court. While in
camera examination need not be automatic, in many situations it will
plainly be necessary and appropriate. Before the court orders in
camera inspection, the Government should be given the opportunity
to establish by means of testimony or detailed affidavits that the docu-
ments are clearly exempt from disclosure. The burden remains on the
Government under this law.
RESPONSE TO COMPLAINTS
The House bill required that the defendant to a complaint under
the Freedom of Information law serve a responsive pleading within
20 days after service, unless the court directed otherwise for good
cause shown.
The Senate amendment contained a similar provision, except that
it would give the defendant 40 days to file an answer.
The conference substitute would give the defendant 30 days to re-
spond, unless the court directs otherwise for good cause shown.
EXPEDITED APPEALS
The Senate amendment included a provision, not contained in the
House bill, to give precedence on appeal to cases brought under the
Freedom of Information law, except as to cases on the docket which
the court considers of greater importance.
The conference substitute follows the Senate amendment.
ASSESSMENT OF ATTORNEY FEES AND COSTS
The House bill provided that a Federal court may, in its discretion,
assess reasonable attorney fees and other litigation costs reasonably
incurred by the complainant in Freedom of Information cases in which
the Federal Government had not prevailed.
The Senate, amendment also contained a similar provision applying
to cases in which the complainant had "substantially prevailed," but
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
10
added certain criteria for consideration by the court in making such
awards, including the benefit to the public deriving from the case. the
commercial benefit to the complainant and the nature of his interest
in the Federal records sought, and whether the Government's with-
holding of the records sought had "a reasonable basis in law."
The conference substitute follows the Senate amendment, except
that the statutory criteria for court award of attorney fees and litiga-
tion costs were eliminated. By eliminating these criteria, the conferees
do not intend to make the award of attorney fees automatic or to pre-
clude the courts, in exercising, their discretion as to awarding such
fees, to take into consideration such criteria. Instead, the conferees
believe that because the existing body of law on the award of attorney
fees recognizes such factors, a, statement of the criteria may be too
delimiting and is unnecessary.
SANCTION
The Senate amendment contained a provision, not included in the
House bill, authorizing the court in Freedom of Information Act cases
to ,impose a sanction of up to 60 days suspension from employment
against a Federal employee or official who the court found to have
been responsible for withholding the requested records without reason-
able basis in law.
The conference substitute follows the Senate amendment, except
that the court is authorized to make a finding whether the circum-
stances surrounding the withholding raise questions whether agency
personnel acted arbitrarily or capriciously with respect to the with-
holding. If the court so finds., the Civil Service Commission must
1-promptly initiate a proceeding to determine whether disciplinary
action is warranted against the responsible officer or employee. The
Commission's findings and recommendations are to be submitted to
the appropriate administrative authority of the agency concerned and
to the responsible official or employee, and the administrative author-
ity shall promptly take the disciplinary action recommended by the
Commission. This section applies to all persons employed, by agencies
cuadeF this law.
ADMINISTRATIVE DEADLINES
The House bill required that an agency make a. determination
whether or not to comply with a request for records within 10 days
(excepting Saturdays, Sundays, and legal public holidays) and to
notify the person making the request of such determination and the
reasons r.he.refor, and the right of smh person to appeal any adverse
determination to the head of the agency. It. also required that agencies
make a final determination on any appeal of an adverse determination
within 20 days (excepting Saturdays, Sundays, and legal public holi-
days) after the date of receipt of the appeal by the agency. Further,
any person would be deemed to have exhausted his administrative
remedies if the agency fails to comply with either of the two time
deadline s.
The Senate amendment contained similar provisions but authorized
,,ertain other Administrative actions to extend these deadlines for an-
other 30 working days under specified types of situations, if requested
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 IclA-RDP75B00380R000600190002-8
by an agency head and approved by the Attorney General. It also
would grant an agency, under specified "unusual circumstances," a
10-working-day extension upon notification to the person requesting
the records. In addition, an agency could transfer part of the number
of days from one category to another and authorize the court to allow
still additional time for the agency to respond to the request. The Sen-
ate amendment also provided that any agency's notification of denial
of any request for records set forth the names and titles or positions of
each person responsible for the denial. It further allowed the court, in
a. Freedom of Information action, to allow the government additional
time if "exceptional circumstances" were present and if the agency
was exercising "due diligence in responding to the request."
The conference substitute generally adopts the 10- and 20-day ad-
ministrative tme deadlines of the House bill but also incorporates the
10-working-day extension of the Senate amendment for "unusual
circumstances" in situations where the agency must search for and
collect the requested records from field facilities separate from the
office processing the request, where the agency must search for, collect,
and examine a voluminous amount of separate and distinct records
demanded in a single request, or where the agency has a need to consult
with another agency or agency unit having a substantial interest in the
determination because of the subject matter. This 10-day extension
may be invoked by the agency only once-either during initial review
of the request or during appellate review.
The 30-working-day certification provision of the Senate amend-
ment has been eliminated, but the conference substitute retains the
Senate language requiring that any agency's notification to a person of
the denial of any request for records set forth the names and titles
or positions of each person responsible for the denial. The conferees
intend that this listing include those persons responsible for the origi-
nal, as well as the appellate, determination to deny the information
requested. The conferees intend that consultations between an agency
unit and the agency's legal staff, the public information staff, or the
Department of Justice should not be considered the basis for an
extension under this subsection. .
The conference substitute also retains the Senate language giving
the court authority to allow the agency additional time to examine
requested records in exceptional circumstances where the agency was
exercising due diligence in responding to the request and had been
since the request was received.
NATIONAL DEFENSE AND FOREIGN POLICY EXEMPTION (B) (1)
The House bill amended subsection (b) (1) of the Freedom of In-
formation law to permit the withholding of information "authorized
under the criteria established by an Executive order to be kept secret
in the interest of the national defense or foreign policy."
The Senate amendment contained similar language but added
"statute" to the exemption provision.
The conference substitute combines language of both House and
Senate bills to permit the withholding of information where it is
"specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense for foreign
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30 j2CIA-RDP75B0038OR000600190002-8
policy" and is "in fact, properly classified" pursuant to both procedural
and subsi;antive criteria contained in such Executive order.
When linked with the authority conferred upon the Federal courts
in this conference substitute for in camera examination of contested
records as part of their de novo determination in Freedom of Informa-
tion cases, this clarifies Congressional intent to override the Supreme
Court's holding in the case of E.P.A. v. Mink, et al., supra, with respect
to in camera. review of classified documents.
However, the conferees recognize that the Executive departments
responsible for national. defense and foreign policy matters have
unique insights into what adverse affects might occur as a result of
public disclosure of a particular classified record. Accordingly, the
conferees expect that Federal courts, in making de nova determir.a-
tions in section 552(b) (1) cases under the Freedom of Information
law, will accord substantial weight to an agency's affidavit concerning
the details of the classified status of the disputed record.
Restricted Data (42 U.S.C. 2162), communication information (18
U.S.C. 798), and intelligence sources and methods (50 U.S.C. 403
(d) (3) and (g) ), for example, may be classified and exempted under
section 552(b) (3) of the Freedom of Information Act. When such
information is subjected to court review, the court should recognize
that if such information is classified pursuant to one of the above
statutes, it shall be exempted under this law.
The Senate amendment contained an amendment to subsection
(b) (7) of the Freedom of Information law, not included in the House
bill, that would clarify Congressional intent disapproving certain
court interpretations which have tended to expand the scope of agency
authority to withhold certain "investigatory files compiled for law
enforcement purposes." The Senate amendment would permit an
agency to withhold investigatory records compiled for law enforce-
ment purposes only to the extent that the production of such records
would interfere with enforcement proceedings, deprive a person of a
right to a fair trial or an impartial adjudication, constitute a clearly
unwarranted. invasion of personal privacy, disclose the identity of an
informer, or disclose investigative techniques and procedures.
The conference substitute follows the Senate amendment except for
the substitution of "confidential source" for "informer," the addition
of language protecting information compiled by a criminal law en-
forcement authority from a confidential source in the course of a
criminal. investigation or by an. agency conducting a lawful national
security intelligence investigation, the deletion of the word "clearly"
relating to avoidance of an "unwarranted invasion of personal
privacy." and the addition of a category allowing withholding of
information whose disclosure "would endanger the life or physical
safety of law enforcement personnel."
The conferees wish to make clear that the scope of this exception
against disclosure of "investigative techniques and procedures" should
not be interpreted to include routine techniques and procedures al-
ready well known to the public, such as ballistics tests, fingerprinting,
and other scientific tests or commonly known techniques. Nor is this
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08/30i8CIA-RDP75B00380R000600190002-8
exemption intended to include records falling within the scope of
subsection 552(a) (2) of the Freedom of Information law, such as
administrative staff manuals and instructions to staff that affect
a member of the public.
The substitution of the term "confidential source" in section 552
(b) (7) (D) is to make clear that the identity of a person other than
a paid informer may be protected if the person provided information
under an express assurance of confidentiality or in circumstances from
which such an assurance could be reasonably inferred. Under this
category, in every case where the investigatory records sought were
compiled for law enforcement purposes-either civil or criminal in
nature-the agency can withhold the names, addresses, and other
information that would reveal the identity of a confidential source
who furnished the information. However, where the records are com-
piled by a criminal law enforcement authority, all of the informa-
tion furnished only by a confidential source may be withheld if the
information was compiled in.. the course of a criminal investigation.
In addition, where the records are compiled by an agency conducting
a lawful national security intelligence investigation, all of the infor-
mation furnished only by a confidential source may also be withheld.
The conferees intend the term "criminal law enforcement authority"
to be narrowly construed to include the Federal Bureau of Investiga-
tion and similar investigative authorities. Likewise, "national secur-
ity" is to be strictly construed to refer to military security, national
defense, or foreign policy. The term "intelligence" in section 552(b)
(7) (D) is intended to apply to positive intelligence-gathering activi-
ties, counter-intelligence activities, and background security investi-
gations by governmental units which have authority to conduct such
functions. By "an agency" the conferees intend to include criminal
law enforcement authorities as well as other agencies. Personnel,
regulatory, and civil enforcement investigations are covered by the
first clause authorizing withholding of information that would reveal
the identity of a confidential source but are not encompassed by the
second clause authorizing withholding of all confidential information
under the specified circumstances.
The conferees also wish to make clear that disclosure of information
about a person to that person does not constitute an invasion of his
privacy. Finally, the conferees express approval of the present Justice
Department policy waiving legal exemptions for withholding historic
investigatory records over 15 years old, and they encourage its con-
tinuation.
SEGREGABLE PORTIONS OF RECORDS
The Senate amendment contained a provision, not included in the
House bill, providing that any reasonably segregable portion of a rec-
ord shall be provided to any person requesting such record after the
deletion of portions which may be exempted under subsection (b) of
the Freedom of Information law.
The conference substitute follows the Senate amendment.
The House bill provided that each agency submit an annual report,
on or before March 1 of each calendar year, to the Speaker of the House
Approved For Release 2001/08/30 : CIA-RDP75B0038OR000600190002-8
 Approved For Release 2001/08130 :CIA-RDP75B0038OR000600190002-8
and the President of the Senate, for referral to the appropriate com
mittees of the Congress. Such report shall include statistical inforrna-
tion on the number of agency determinations to withhold information
-e