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December 20, 2016
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September 19, 2006
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Publication Date: 
May 16, 1974
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Approved For Release 2007/03/07: CIA-RDP7 ,,;Op38?ft00,0 01.90pb5-5 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 Approved For Release 2007/03/07 : CIA-RDP75B0038OR000600190005-5 Approved For Release 2007/03/07 : GJA-RDP75B00380R000600190005-5 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- Approved For Release 2007/03/07 : CIA-RDP75B00380R000600190005-5 Approved For Release 2007/03/07: CIA-RDP75B0038OR000600190005-5 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- Approved For Release 2007/03/07 : CIA-RDP75B0038OR000600190005-5 Approved For Release 2007/03/07 : CIA-RDP75B0038OR000600190005-5 4 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. Approved For Release 2007/03/07 : CIA-RDP75B0038OR000600190005-5 Approved For Release 2007/03/075 CIA-RDP75B00380R000600190005-5 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 ; Approved For Release 2007/03/07 : CIA-RDP75B00380R000600190005-5 Approved For Release 2007/03/07 : CIA-RDP75B00380R000600190005-5 6 (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