AMENDING THE FREEDOM OF INFORMATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000600190005-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 63
• Document Creation Date: December 20, 2016
• Document Release Date: September 19, 2006
• Sequence Number: 5
• Publication Date: May 16, 1974
• Content Type: OPEN

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93D CONGRESS SENATE .T_F,., ORT
AMENDING THE FREEDOM OF INFORMATION ACT
Mr. KENNEDY, from the Committee on the Judiciary, submitted the
following
REPORT
The Committee on the Judiciary, to which was referred the bill
(S. 2543) to amend section 552 of title 5, commonly known as the
Freedom of Information Act, having considered the same, reports
favorably thereon, with amendment, and recommends that the bill
do pass. Committee action on the bill was unanimous.
PURPOSE
S. 2543 would amend the Freedom of Information Act (FOIA) to
facilitate freer and more expeditious public access to government in-
formation, to encourage more faithful compliance with the terms and
objectives of the FOIA, to strengthen the citizen's remedy against
agencies and officials who violate the Act, and to provide for closer
congressional oversight of agency performance under the Act.
The committee recognizes that the meaning of the substantive ex-
emptions in subsection (b) of the FOIA has been subject to conflicting
interpretations and may not be altogether clear, but the committee
has concluded that the primary obstacles to the Act's faithful imple-.
mentation by the executive branch have been procedural rather than
substantive. For this reason S. 2543 does not amend the substance of
the exceptions to disclosure spelled out in subsection (b) of section
552, which have been clarified substantially through numerous re-
ported court decisions.
BACKGROUND
Recognition of the people's right to learn what their government
is doing through access to government information can be traced back
to the early days of our Nation. Open government has been recognized
as the best insurance that government is being conducted in the public
interest, and the First Amendment reflects the commitment of the
99--010
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Founding Fathers that the public's right to information is basic to the
maintenance of a popular form of government. Since the First Amend-
ment protects not only the right of citizens to speak and publish, but
also to receive information, freedom of information legislation can be
seen a e, an affirmative congressional effort to give meaningful content
to constitut,iDna1 freedom of expression. Moreover, to exercise effec-
tively ,all their First Amendment rights, the people must know what
their government is doing.
The first congressional attempt to formulate a general statutory plan
to assist free access to government information was contained in sec-
tion 3 of the Administrative Procedure Act, enacted in 1946. This
section provided that certain :information shall be published "except
to the extent that there is included (1) any function of the United
States requiring secrecy in the public interest or (2) any matter
relating solely to the internal management of an agency." Soon after
this enactment, however, it became clear that despite Congress' original
intent to promote disclosure, section 3--along with the federal "house-
keeping" statute (5 U.S.C. ? 301) allowing each agency head "to pre-
scribe regulations" for "the custody, use, and preservation of records,
papers, and property appertaining to" his agency-was becoming
widely used as a basis for withholding information.
In 1958 the federal "housekeeping' statute was amended (P.L. 85-
619) to provide that it did not authorize withholding information or
records from the public. And in 1966 Congress enacted the Freedom
of Information Act.
The specific objectives of the FOIA were set out by this committee
in its Report on the legislation (S. Rept. No. 813, 89th Congress, 1st
Session, October 4, 1965, at 11 (hereinafter 1965 Senate Rept.)) :
(1) It sets up workable standards for what records should
and should not be open to .public inspection. In particular, it
avoids the use of such vague phrases as "good cause found"
and replaces them with specific and limited types of informa-
tion that may be withheld.
(2) It eliminates the test of who shall have the right to
different information.. For the great majority of different
records, the public as a whole has a right to know what its
Government is doing. There is, of course, a certain need for
contiden.t:iality in some aspects of Government operations and
these are protected specifically ; but outside these limited
areas, all citizens have a right to know.
(3) The revised section 3 gives to any aggrieved citizen a
remedy in court.
Although the Act was hailed. by President Johnson in 1966 as de-
riving from the essential principle that "a democracy works best when
the people have all the information that the security of the Nation
permits," many observers at the time recognized the difficulties in ad-
ministering and interpreting the new law. Courts have since recog-
nized deficiencies in the legislation, and testimony last year before
the Subcommittee on Administrative Practice and Procedure pointed
out clearly a number of areas that require congressional action to
insure more fsithful agency compliance with the law. Witnesses sng-
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gested that the act has become a "freedom from information" law,
with the curtains of secrecy still tightly drawn around the business of
government.
The House Foreign Operations and Government Information Sub-
committee, held 14 days of oversight hearings in the 92nd Congress re-
lating to administration of the Freedom of Information Act by fed-
eral agencies, following which the House Subcommittee identified 6
"major problem areas":
1. The bureaucratic delay in responding to an individual's
request for information-major Federal agencies took an
average of 33 days with such responses ; and when acting upon
an appeal from a decision to deny the information, major
agencies took an average of 50 additional days;
2. The abuses in fee schedules by some agencies for search-
ing and copying of documents or records requested by inch-
viduals ; excessive charges for such services have been an effec-
tive bureaucratic tool in denying information to individual
requestors;
3. The cumbersome and costly legal remedy under the act
when persons denied information by an agency choose to in-
voke the injunctive procedures to obtain access; although the
private person has prevailed over the Government bureauc-
racy a majority of the important cases under the act that
have gone to the Federal courts, the time it takes, the invest-
ment of many thousands of dollars in attorney fees and court
costs, and the advantages to the Government in such cases
makes litigation under the act less than feasible in many
situations ;
4. The lack of involvement in the decisionmaking process
by public information officials when information is denied to
an individual making a request under the act; most agencies
provide for little or no input from public information special-
ists and the key decisions are made by political appointees-
general counsels, assistant secretaries, or other top-echelon
officials ;
5. The relative lack of utilization of the act by the news
media, which had been among the strongest backers of the
freedom of information legislation prior to its enactment; the
time factor is a significant reason because of the more urgent
need for information by the media to meet news deadlines.
The delaying tactics of the Federal bureaucrats are a major
deterrent to more widespread use of the act, although the sub-
committee did receive testimony from several reporters and
editors who have taken cases to court and eventually won out
over the secrecy-minded Government bureaucracy; and
6. The lack of priority given by top-level administrators
to the full implementation and proper enforcement of Free-
dom of Information Act policies and regulations; a more
positive attitude in support of "open access" from the top
administrative officials is needed throughout the executive
branch. In too many cases, information is withheld, overclas-
sified, or otherwise hidden from the public to avoid admin-
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istrative mistakes, waste of funds, or political embarrassment.
(H.R.:Rept. No. 92-1419, Administration of the Freedom of
In formation Act, Committee on Government Operations, p. 8
(hereinafter cited House Report).)
In March 1973 legislation was introduced in the Rouse and Senate,
reflecting the findings and recommendations of the Flow,e Report,
which proposed a number of procedural and substantive changes in the
law. These bills (S. 1142 and H.R. 5425) were the subject of hearings
in both Houses of Congress. -Discussion thus moved from identifying
problems of administering the FOIA to developing appropriate reme-
dial legislation.
During the spring of 1973, three Senate subcommittees joined to-
gether to take an intensive look at various aspects of government
secrecy, including freedom of information, executive privilege, and
the classification system. The three subcommittees were the Subcom-
mittee on Administrative Practice and Procedure, chaired by Senator
Edward Al. Kennedy; the Subcommittee on Separation of Powers,
chaired by Senator Sam Ervin; and the Subcommittee on Intergovern-
mental Relations of the Committee on Government Operations, chaired
by Senator Edmund S. Muskie. The subcommittees conducted 11 days
of hearings, heard from over 40 witnesses, and amassed over 850 pages
of record.*
Seven of the 11 days of joint hearings were devoted to :issues involv-
ing the Freedom of Information Act. Witnesses representing the
media (National Newspaper Association, Radio-Television News Di-
rectors Association, the New York Times, Joint Media Committee
and Sigma, Delta Chi), the bar (American Bar Association), public
interest groups (Center for Study of Responsive Law, Common
Cause, American Civil Liberties Union, Consumers Union), govern-
ment agencies (Department of Agriculture, Department of Defense,
Department of Justice), and labor (Oil, Chemical and Atomic Workers
International Union), together with members of Congress (Senator
Chiles, Congressman Moorhead, Congresswoman Mink) and prac-
ticing attorneys, analyzed the shortcomings of the present law and
proposed varying solutions. Reports on legislative proposals were
received from 23 government agencies, and additional views were
received from interested parties. S. 2543 reflects, in addition to the
views expressed at the public hearings, extensive analysis of the agency
practices and of the court decisions wider the. FOIA.
The committee amended S. 2543, as introduced, and unanimously
voted to ,report favorably the committee amendment on May 8, 19'74.
Tile conunittcc amendment contains various changes and additions to
the original bill. In the Explanation portion of this report below. "the
bill" and "S. 2543" are used for simplicity to refer to the committee
amendment as reported.
*fiearin?gs before the Subcommittee on Intergovernmental Relations of the Committee on
Government Operation, and the subcommittees on Separation of Powers and Adminis;ra.-
tive Practice and Procedure of the Committee on the Judiciary, vol. I (April 10, 11, 12,
May 8, 9, ILO, and 16, 1973), and vol. II (June 7, 8, 11, and 26, 1973). Witnesses testified
on the FOIA proposals on April 11 12, May 9, June 7, 8, 11, and 26. References to testi-
mony are cited hereinafter as Hearings. 'Volume III contains secondary materials related
to the issues con idered in the hearings. Agency reports on S. 1142' are collected in
Hearings, vol. II at 280-325.
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In 1966 President Johnson, upon signing the FOIA into law, said
"I signed this measure with a deep sense of pride that the United
States is an open society in which the people's right to know is cher-
ished and guarded." When President Nixon issued a new Executive
Order in 1972 governing classification and declassification of govern-
ment information he observed :
Fundamental to our way of life is the belief that when in-
formation which properly belongs to the public is system-
atically withheld by those in power, the people soon become
ignorant of their own affairs, distrustful of those who man-
age them, and-eventually-incapable of determining their
own destinies. (Fed. Reg., vol. 37, No. 48, March 10, 1972,
p. 5209.)
In introducing S. 2543, the bill's sponsor, Senator Kennedy, ob-
served that "secret government too easily advances narrow interests at
the expense of the public interest," and re-emphasized the importance
to democracy of a free flow of information from the government to
the public :
We should keep in mind that it does not take marching
armies to end republics. Superior firepower may preserve
tyrannies, but it is not necessary to create them. If the people
of a democratic nation do not know what decisions their gov-
ernment is making, do not know the basis on which those
decisions are being made, then their rights as a free people
may gradually slip away, silently stolen when decisions which
affect their lives are made under the cover of secrecy.
The Freedom of Information Act was enacted in July 1966, became
effective in July 1967, and was codified in June 1967 as section 552 of
title 5, United States Code. The Act contains 3 basic subsections. The
first Q 552(a)) sets out the affirmative obligation of each agency of
the federal government to make information available to the public,
with certain information required to be published and other informa-
tion merely required to be made available for public inspection or
copying. This subsection contains remedies for noncompliance : no per-
son may be adversely affected by any matter (e.g. regulations, policies,
decisions) required to be published and not so published, and any per-
son improperly denied information requested or required to be pub-
lished under the section may go to court to require its production.
The second subsection of the FOIA ($ 552(b)) contains the so-
called "exemptions" to the general rule of mandatory disclosure con-
tained in the previous subsection. These relate to matters that are :
(1) Specifically required by Executive Order to be kept secret
in the interest of the national defense or foreign policy;
(2) Related solely to the internal personnel rules and practices
of an agency;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information ob-
tained from a person and privileged or confidential ;
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(5) Inter-agency or :intra-agency memorandums or hatters
which would not be available by law to a party other than an
agency -in i itigation with the agency;
(6) Personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of per-
sonal privacy;
(7) Investigatory files compiled for law enforcement purposes
except to the extent available by law to a party other than an
agency;
(8) Contained in or related to examination, operating or con-
dition reports prepared by, or on behalf of, or for the use cf an
agency responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, includ-
ing maps, concerning wells.
Congress did not intend the exemptions in the FOI A to be used
either to prohibit disclosure of information or to justify automatic
withholding of information. Rather, they are only permissive. They
merely mark the outer limits of information that may be withheld
where the agency makes a specific affirmative determination that the
public interest and the specific circumstances presented dictate-as
well as that the intent of the exemption relied on allows--that the in-
format ion