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December 9, 2016
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August 24, 2001
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May 20, 1974
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S fV31-9 iibalis $, Alexaaider, Prealalante Arms Contaol asssocaritaaMProveu r o r Rev. Harry Applewhite, United Churc o Christ. ? Mrs. 3. Berensons? Board of Directors I A/ USA. Dr. Harrison Brown, California I itute of Techeology. William J. Butler, U.N. Repre ntatiye of the International Commission a Jurists, Rev. Sterling Cary, President, National Council of Churches of Christafn the U.S.A. Hon. Joseph S. Clark, Chairman Coalition on National Priorities. and 14.1tary Policy. Dr. Barry Commoner, Ce ter for the Biol- ogy of Natural Systems, ,? ashIngton Univ., St. Louis. Norman Cousins, Edit World. Dr. Paul Dotyallary William Epstein, Fo merit Affairs Divisio CONGRESSIONAL RECORD ?SENAI.E Saturday Review/ d University. er Chief of Disarnia- UN Secretariat, Hon. Seymour IL, Inger, Director, Ralph Bunche Institute ori the UN, CUNT. Hon. Donald M. 7aser, al.C. Dr. Richard Gar, ner, Professor of Law and, International Organization, Columbia Univ. Sanford Gottlieb, Executive Director, Coali- tion on Nation Priorities and Ifilitary Policy. Thomas Hals'pd, Executive Director, 'The Arms Control Association. Marii Haseglwa, President, U.S. Section. Women's Interhational League for Peace and Freedom. / alecida Heldrix, Public Relations Con- sultana Dr. David R. Inglis, Professor of Physics, Univ. of Masai ? ? Dr. Marvin' Kalkstein, State Unaa. of New York, Stony prook. ? - Donald 11, Keys, World Association of World Federalists. ? Dr. Bette Goetz Lail, N.Y. State School of Industrial Labor Relations, Cornell Univ. Dr. Arthhr Larson, Director, Rule of Law Research center, Duke Univ. , Oscar def Lana, Vice-Chairman, DNA/USA. Dr. Franklin A. Long, Director of the Pro- gram on iScience, Technology and Society, Cornell i_Thiv. Dr. Bekke Marshall, Depute Dean, Yale Law Schdol. Seymotir Melman, Co-chairman, SANE. Dr. Hans j, Morgenthau, Professor of PoliticalvScience, Graduate School, CITNY, Hon. 1, ayne Morse, Co-Chairman, SANE. Earl Osborn, Institute for International Order. i Mrs, :Mildred Persing,er, U.N. Representa- tive for/the U.S; YWCA. Mrs. Jo Pomerance, Co-Chairman, Commit- tee on Disarmament and Peacekeeping Con- ference of U.N. Representatives, DNA/USA. Mrs.( Frances Sawyer, President,. Women "United for the 'United Nations. Meat Marjorie Schell, Committee for a New Chine Policy, Dr.; Herbert Scoville, Jr., Federation of American Scientists. Dr4 John Toll, Professor of Physics and President State Univ. at Stony Brook. jaelt Tourin, President, American Ethical Unica. Map, Carolyn Tumarkin, Women United for the U.N. Mg. naul Warnke. DI Jerome Wiesner, President, Mass. In- st. itiate of Technology. Dal Herman Will. Jr:, Associate General Secretary, Board of Christian Social Con- cernsl of the United Methodist Church. Je . 14 Wurf, President, American Federa- tion o State, County aa Municipal Employees, AFL-C O. Charl'es W. Yost, Former Head, U.S. Mis- sion to take U.N. \ SENATE RESOLUTION 67 Whereas "; the United States is committed In the Partial Test Ban Treaty of 1963 and TreattriOnOrteltA2115151itind Seti Whereas the conclusion of a comprehenea test ban treaty will reinforce the Nonprol ation. of Nuclear Weapons Treaty, and fulfill our pledge in the Partial Tee Ban Treaty; Whereas there has been signiflca prog- ress in the detection and idental lion of underground nuclear tests by eel ?logical and other means; and Whereas the SALT accords o 1973 have placed quantitative limitations on offensive and defensive- strategic weep s and have established important prece nts for arms control verification procedur ; and Whereas early achieveme t of total nu- clear test cessation would Is ve many benefi- cial consequences: creatin a more favorable International arms coat ? climate; impos- ing further finite limits o the nuclear arms race; releasing resources or domestic needs; protecting our environ ent from growing testing dangers; makin more stable exist- ing arms limitations a reementa; and com- plementing the, ongoi a strategic arms lim- itation. talks: Now, erefore, be it ? Resolved, That it i the sense of the Sen- ate that the Preside t of the United States (1) should propose immediate suspension on underground n clear testing to remain In effect so long as he Soviet Union abstains from underground/ testing, and (2) should set forth 'pronspti a. new proposal to the Government of tfie Union_ of Soviet Social let Republics an other nations for a perma- nent treaty to b all nuclear tests. Introduced Fe ruary 20,1973. ? Reported by e Senate Foreign Relations Committee Jung 13, 1973, by a vote of 14 to 1. PR CIPAL SPONSORS Kennedy ( -Mass) , -Muskie (D-Maine), Humphrey ( Minn), Hart (R-Mich), Case (R-N.J.), Via as (R-Md). " COSPONSORS Abourezk -S. flak), Bayh (D-Ind), Biden (D-Del), Bu dick (D-N. Dak), Church (D- Idaho) , Cla, (D-Iowa), Cranston (D-Cal),. Fultaright (p-Ark), Gravel (D-Alaska), Has- kell (D-Cole), Hathaway (D-Maine), Hughes (fl-Iowa), 7artke CD-Ind). Inouye (D-Haarali), Magnuson (D-Wash), McGovern. 1(D-S. Dak), Mondale (D-Minn), Itaiss (D-rah), Nelson (D-Wis), Pell (D- ProTnire (D-Wis), Ribicoff (D-Conn), Stevensori (D-111), Tunney (D-Cal), Wil- liams (DetsT.J.), McGee (D-Wyo), Brooke (R- Mass), Ittatfield (R-Oreg), Jcivits (R-N.Y.), Dole (R- an) . COTCLUSION OF MORNING BUSINESS - Mr. ?ROBERT C. BYRD. Mr. Presi- dent, a there further morning business? ThelPRESIDING OFFICER.. Is there furth r morning_ business? If not, morn- ing b siness is closed. UN NIMOUS-CONSENT REQUEST M ROBERT.C. BYRD. Mr. President, I asjr unanimouS consent that at such tim as the House message relating to a Pro uctivity Commission is laid before the Senate, there be a 30-minute time lim,ltation thereon, to be equally divided beqween the majority and minority lead- ersIor their designees. fr. President, I withdraw that re- qu st temporarily. ii "ip May 30, 1974 ilRwsgrve, is laid before uldi`-a, time limitation thereon of 40 minutes, to be equa di- vided between the majority a mor- ity leaders or their desigr That the time o endinent be limited to 30 minu , That the time on any debatable on or appeal be lim- ited to 30 m' es; and That the agree- ment be he usual form. The ESIDING 0.1.1010ER. Without objection, it is so ordered. AMENDMENT OF FRDOM OF INFORMATION ACT The PRESMENG OFFICER. Under - the previous order, the Senate will now proceed to the consideration of S. 2543, which the clerk will state by title. The assistant legislative clerk read the bill by title, as follows:- - A bill (S. 2543) to amend section 552 of title V. United States Code, commonly known. - as the Freedom of. Information Act. The Senate proceededto consider the bill, which had been reported from the Committee on the Judiciary with an';,. amendment to strike out all after the-- enacting cla'ise and insert: That (a) the fourth sentence of section 552(a) (2) of title 5, United States Code, is deleted and the.following substituted in lieu - thereof: "Each agency shall maintain ands make available for public ? inspection and copying current indexes providing identify- ing information for the public as to any mat- ter issued, adopted, or promulgated after July 4; 1967, and required by this paragraph . to be made available or published. Each agency shall publish, quarterly or more fre- quently, each index' unless It determines by order published in the Federal Register 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 comparable to that charged had the index teen published." (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 paragraphs (1) and (2) of this subsection, each agency, upon any request for records which reasonably de- scribes such records and which is made in accordance with published rules stating the - time, place, fees, and procedures to be fol- lowed, shall make the records promptly avail- able to any person". (2) Section 552(a) of such title 5 is amended by reciesignating, paragraph (4) as paragraph (5) and by inserting Immediately after paragraph (3) the following new para- graph: "14)(A) In order to carry out the provi- sions of this section, the Director of the Office of Management and Budget shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to- all agencies: Such fees shall be limited to reas- onable standard charges for document search and duplication and provide recovery of only, the direct costs of such search and duplica- tion. Documents may 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. But such fees shall ordinarily not be charged whenever? ANIIVIOTJS-CONSENT AGREEMENT "(i) the person requesting the records is an Indigent individual; Mr. ROBERT C. BYRD. Mr. President, -(n) auch fees would amount, In the ag- Pak unanimous consent that at the time gregate, for a request or series of related the la onproliferation _Aof Nuc Releaselear_ Weapeans 115_46_ _ / a _0 bill . pproved For 2001 /083 . bAs-kbisti518h5861466tidoefitilibei May 3 CI, 197k CONGRESSIONAL RECORD?SENATE- S 9311 officer or employee suspend such oracirM- e (iiia the records recileapp mend foriReitswed20612/138t91)1P3ehmeRgo (iv). the records located are determined teepee without pay for a period of not more by the agency to be exempt from disclosure than 60 days or take other appropriate Ms- u ader subsection ib ciplinary or corrective action against hint ' " (B1 (1) On complaint, the district court "(0) In the event of noncompliance. with Df the United States in the district in which the order at the court, the district court may the complainant resides, or has his prine punish for contempt the responsible em.- elpal place of business, or in which the ployee, and in the case of a. uniformed service.. agency records are situated, or in the DU- the responsible member.". . trict of Columbia, has jurisdiction to enjoin ice Section 552(a) of title 5, United States the agency from withholding agency mends Code, is amended by adding at the end there- and -to order the production of any agency of the following new paragraph: records improperly withheld from the come "(6) (A) Bach agency, upon any request for plainsnt. In such a case the court shall con- records made under paragraph (1), (2) or aider the case de novo; with such in camera (3) of this subsection, shall? examination of the requested records salt "(i) determine within ten. days (excepting ends appropriate to determine whetherearcie Saturdane Sunday,. and legal public holi- records, or any part thereof may be withheld days) after the receipt of any such request under any of the exemptions set forth. in whether -to comply with such request and subsection. (b) of this section, and the bur- shale Ircunedfately notify the person melting- den is on the agency to sustain its. action. such request of' such determination and the "(if) In determining whether a document reasons therefor,, and of the tight of such is in. fact specifically required by anFate:cue person to appeal to ? the head of the agency tive order or statute to be kept, secret In the any adverse- determination; and interest of national defense or foreign policy; "(Li) ?make a. determination with respect a. court may review the contested document to such apnea within twenty days (except- in camera if it is unable, to rennet thee mat, ' Ing Saturdays,' Sundays, and legal public ter on. the basis of affidavits and other in.- holidays)' after the- receipt of such appeal. formation submitted by the partieseln. cone If on appeal the denial of the request for Junction with its in camera examination, the records is -in whole; or part upheld, the court may consider further argument, (tr an agency shall notify the Person making such ex parte showing by the Government, ea request' of ,the Provisions for Pwit"iai review planation of the wfteeboiren. Tr there has of that determination under paragraph (4) of this subsection. ' ? - been. Sled in the rectordesco affidavit- by the head-of the ageneycertalefing that he has-per- NBY 17Pott the written certification by the eonally examined the document*, withheld head ?I. an agency setting forth in detail his and has determined /dear such ereweestion personal nindings that re regulation of the that they should, be withheld under. the cri- kind specified in this paragraph is 314"3861.' tern. established by: ae statute or Executive tated by such. factors as the .volume of re- order referred to in subsection (by (T) of this quests. the volume of records involved, and dispersion and transfer of such records. section, the court shall sustain such' with- the and with the approval in writing of the At- holding, unless, following its in.. camera. ex- and General,. the time limit prescribed in animation; it finds the withholding Is with- clause (0. for initial determinations may by out a. reasonable bards under such, criteria. regulation be extended with respect to specie, " (C) Notwithstanding any other provision fled types of records of specified components. or ? Jew, the defendant shale serve an answer of such agency so as not to exceed thirty or otherwise plead to any complaint made of days. Any such certification shall be under this subsection within. forty days after tee service upon the United States attorney effective' only for periods- of fifteen mmithe thereof in the Federal of the ? pleading in which such compraint following publication made, unless the? court otherwise directs- forRegister_ ' good cense shown_ " (C) enunusual circumstances as specified "(D). Except- at toeciuses the court /con- 133-? this subparagraph, the time Smite Pre- scribed' pursuant to subparagraph (A), but siders of greater importance, proceeding's be- not those prescribed pursuant to subpart"- fore the district court, as authorized by this graph pr, may be extended by written no- subsection. and appeals therefrom, take pre- graph to' the requester setting forth the rea- cedence on. the docket over all causes, and sons for such extension and the date on shall be assigned forbearing And trial or for which a determination isnxpected to be die- ex? pedited in every way;L, , , patched. No such notice shall specify a date that would result in. an extension for more "(B) The caest raay assese ? againal/ -the than 10 il:sys As used in this subparagraph, United States reasonable' attorney fees and ?LI:usual circumstan- Ces' means; but only to other litiga.tion. costae; reasonably: incarred extent or need collect the. ch f reasonably- neceesary to the proper in any case under this section in which the procesaing of the particular request-- complainant has substantially prevailed- In fit th need exercising its discretion.. under this para- r "eeet e ed iecordste from seenarfield facilities or other graph, the court shale consider the benefit to est tel e te the public, if any, deriving from the ? case, 0 pros' separateittehieetregereeest Irons' the the commercial benefit to the complainant- eafi -the need to assign professional or and- the, nature onber Interest inetbe records sought, and whether the Government** with- holding? of the records. sought had a reartelle have been requested in categorical tenon or able basis in. law.. . _ ., with sufficient competence and discretion to "(F) Whenever records are ordered by the aid in determining by examination of large court to be made available under this- sec- numbers of records whether they are exempt tion, the court shall en motion by the coat- from compulsory disclosure under this- sec, plainant find whether the withholding of tion and if so. whether they should never- such records was wtthcrat- reasonable basil theless ? be made available as a matter of in law and which federal officer or employee sound policy with or without appropriate was responsible for the. withholding Before deletions:- ? ' ? n ? ? - such findings are madere any officers, or ern- e(iine the need for -consultation, which el ?pees named in the complainant's motion shall be conducted with all practicable speed,: _ewe be personally served a, copy of such 1110.., with another agency having a substantial and shall have. 20 days in which to re- interest In the determination of the request eend thereto, and shall be afforded an op- or among two or more components of the enmity to be heard bythe court; If such agency having substantial subject-matter in- - iings are made, the court shall, upon. con- terest therein, in order to resolve novel and ieration of the recommendation of the dinteult questions of law or policy and nnecy, direct. that an appropriate official of (iv) the _death, resignation, illness, or managecial personnel with sufficient experi- ence to assist in efforts to locate records that 3112M/Millt4t9tned not reenonehly geptional enemy"- foresee and control, of key personnel whose assistance is required in processing the re- quest and who would ordinarily lIe readily available for such duties. "(D) Whenever practicable, requewts and appeals shall be. processed more rapidly than required, by the time periods specified under (1) and (ii) of subparagraph (A) and pure- graphs (B) and. 1',C).. rpm" receipt of a re- quest for specially expedited processing ac- companied by a substantial showing of a public interest In a priority determination of the request, including but not limited,, to requests made for use of any person en- gaged in. the collection and diasemeautaion of news, an. agency may by regulation or otherwise provide for special procedures or the waiver of regular procedures. . , "(13) An agency may by regulation trans- fer part of the number of days. of the time limit prescribed in (A) (Ii) to the time limit prescribed in. (A.]; (i). In. the event of such a transfer, the provisions of paragraph- (C) shall apply to the time limits prescribed un- der such clauses as modified by such traziafen Any person making a_ request to any agency for records under paragraph (I)? (2), or (3) of this subsection shell. be deemed to have exhausted his administrativ, remedies with ' respect to such request if the agency fails to comply with the applicable time limit pro- vision of this paragraph. If the Government can show exceptional circumstances. and that-the agency is exercising- due dili- gence 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 determination by an agency to comply with a request for records,. the records shall:be made promptly available. to such person inaletiag such request. Any notification of denial of any request for records under this subsection shall set forth the names and :titres or positions of each person responsible for the dental of much requenen. Eire. 2. (a), Section 562(b) of' title 5, United States Ccde, in amended to read as follows: "(I) specifically' required by an. Executive order or statute to be kept secret in the in- terest of national defense or foreign policy and are in --fact covered by such order or statute:"._ (b) Section 552(b)'of title 5. United Slates Code, is amended by adding at the end the following "Any reasonably segregalole.portion of a record, shall be provided to any person requesting such record after deletion of the -portions which are exempt under this sub- section.". Sac. 3. Section 552 of' tine 5, United Slates Code,. la amended by ending at the' end thereof the following new subsections: "(de On or beforeldarch I of each calendar year, each agency shall submit a report con wing the preceding calendar year to the Com- mittee on. the nucticiary of the Senate and the Committee on Government. Operations of the Rouse of Representatives, which, shall in.- e" chide- _ . e(I) 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. .. - - - - "42) the nuenter of appeals made by per- sons 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 names and titles or positions of each person responsible' for the denial of rec- ords requested under this section. and the number of instances of participation for each: "(4)- a copy of every rule made by such agency regarding this section: Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 K) eft, .1.4.4 4,...a...r.n1 4..mitiEGaik.JJ.N.6,1L .11..41,,I....M.1.1 ? Jr.l.N ? "(5) the total amount of fees collected by thus become protections for the public's the agendy fpr makiv records av able_u - der this Section; ? Approved roreagr149% 0 .1 181%-tatTPTNAR13 ''(6) rt copy of every certification promul- Al 15 come fuller implementation of the first ,eatee by such agency under subsection (a) (f3) (B) of his section; and amendment of the Constitution. "(7) such other information as indicates There is another significant purpose efforts to administer fully this section. behind the Freedom of Information Act, The Attorney General shall submit an annual perhaps best stated by Justice Brandeis report on or before March 1 of each calendar when he wrote: year which shall include for the prior cal- Publicity is justly commendable as a endar year a listing of the number of cases remedy for social and industrial disease, arising under this section, the exemption Sunlight is said to be the best disinfectant, involved in each case, the disposition of such and electric light the most effective police- case, and the cost, fees, and penalties as- sessed under subsections (a) (3) (E), (F), man" and (0). Such report shall also include a de- Chief Justice Warren echoed this re- seription of the efforts undertaken by the cently when he said that secrecy "is the Department of Justice to encourage agency incubator for corruption." We have seen compliance with this section. too much secrecy in the past few years, "(e) For purposes of this section, the term 'agency' means any agency defined in and the_ Anierica,n people are tired of it. section 551(1) of this title, and in addition Secret bombing of Cambodia, secret includes the United States Postal Service, wheat deals, secret campaign contribu- the Postal Rate Commission, and any other tions, secret domestic intelligence opera- authority of the Ckwernment of the United tions, secret cost overruns, secret anti- States which is a corporation and which re- trust settlement negotiations, secret calves any appropriated funds.". White House spying operations?clearly Sze. 4. There is hereby authorized to be appropriated such sums as may be necessary an open Government is more likely to be to assist In carrying out the purposes of a responsive and responsible Govern- this Act and of section 552 of title 5, United ment. And the Freedom of Information States Code. Act is designed to open our Government, ssc. 5. The amendments made by this Act Finally, the Freedom of Information shall take effect on the ninetieth day be- ginning after the date of enactment of this Act is basic to the maintenance of our Act. democratic form of government. Presi- dent Johnson said on signing the FOIA Mr. KENNEDY. Mr. President, I ask that_ . unanimous consent that Mr. Thomas A Democracy works best when the people Susinan and Mrs. Hank Phillippi, of the have all the information that the security staff of the Subcommittee on Adminis- of the nation permits. trative Practice and Procedure, Mr. Al Friendly and Mr. Al From, of the staffThe people can judge public officials of the Committee on Government Oper- better by knowing what they are doing, ations, and Mr. Paul Summit and Mr. rather than only by listening to what Dennis Thelen, of the staff of the Com- they say. But to know what Government mittee on the Judiciary, be accorded the officials are doing the people must have ? privilege of the floor during the consider- access to their decisions, their orders, ation of this measure, their instructions, their deliberations, The PRESIDING OFFICER. Without their meetings. The Freedom of Informa- objection, it is so ordered, tion Act provides an avenue to public access_ to the records of Government. Mr. RF,NNEDY. Mr. President, I yield myself such time as I may use. Through these records the public can The Supreme Court of the United better judge, weigh, analyze, and scruti- nize the activities of public officials, mak- States observed a few years ago that: ing sure at every turn that Government It is now well established that the Con- stitution protects the right to receive infor- mation and ideas. people. And that Government is fully accountable to the people. Continued the Court. The Freedom of Information Act con- This right to receive information and tains three basic subsections. The first ideas Is fundamental for our free society. sets out the affirmative obligation of each An important objective behind the Government agency to make information Freedom of Information Act, passed by available to the public, with certain in- Congress in 1966, is to give concrete formation to be published and other in.- meaning to one aspect of this right of re- formation to be made available for pub- ceive information?the right to receive lie inspection or copying. Remedies are information from the Federal Govern- provided for noncompliance: No regula- ment. This is no meager right. The proc- tion, policy, or decision can affect any esses of Government touch almost every person adversely if it is not published as aspect of our lives, every day. From the required, and any person improperly food we eat to the cars we drive to the denied information can go to court to re- air we breathe, Federal agencies con- quire disclosure. The second subsection stantly monitor and regulate and con- contains exceptions to the general man- trol. Out Government is the biggest buyer datory rule of disclosure, for matters and the biggest spender in the world. It such as properly classified information, taxes and subsidizes and enforces. And trade secrets, internal advice memo- it generates tons of paperwork as it goes randa, personnel and investigatory files. about its business. The third subsection makes clear that The Freedom of Information Act guar- the Freedom of Information Act author- antees citizen access to Government in- izes only withholding "as specifically formation and provides the key for un- stated" in the exemptions and that the locking the doors to a vast storeroom of act "is not authority to withhold in- information. The protections of the act formation from Congress." May SO, 1974 I think that it is important to point 0 Rir.t0 MVO a2temPts to strike a proper ?alance 3etweefl disclosure and nondisclosure, providing protection for information where legitimate justifica- tion is present. Congress has circum- scribed narrowly the boundaries of justi- fiable withholding in the act's exemp- tions. Agencies have no discretion to withhold information that does not fall within one of those exernptions. It is equally clear, however, that agencies have a definite obligation to release informa- tion?even where withholding may be authorized by the language of the statute?where the public interest lies in disclosure. Congress certainly did not in- tend the exemptions of the Freedom of Information Act to be used to prohibit disclosure of information or to justify automatic withholding. This is a frequent misunderstanding, shared by many Gov- ernment officials who insist on citing the act as forbidding release of requested in- formation in specific cases. In fact, the exceptions to required disclosure are only permissive and mark the outer limits of information that may be withheld. The Freedom of Information Act grew out of the efforts of a special House sub- committee and the Senate Subcommittee on Administrative Practice and Proce- dure in the mid-1960's. The Administra- tive Procedure Act had attempted to open up Government records in 1946, but it failed to provide any remedy for wrongful withholding of information. It required persons seeking information to be "properly and directly concerned,' and it allowed administrators to with- hold information where secrecy was re- quired "in the public interest" or where it was considered "confidential for good cause found." With support and encour- agement by the press, Congress, in 1966, enacted the Freedom of 7nformation Act guaranteeing the public an enforceable right to Government recotds in the broadest sense. Shortly after I took over as chairman of the Administrative Practice Subcom- mitee, we undertook a review of agency practices and court decisions under the Freedom of Information Act. We found that many agencies had not yet brought their regulations and procedures into line with the requirements of the ant, but we concluded that additional time would be useful to allow them to come into com- pliance before looking to legislative pro- posals to change the still-new law. Many of the areas of the act where language was considered unclear or ambiguous were being interpreted by the courts, and we believed that the development of a body of case law on the act would be a useful predicate to any legislative at- tempt at clarification. In 1972 a House subcommittee con- ducted extensive hearings oh the opera- tion of the Freedom of Information Act and concluded that there were major gaps in the law through which agencies were able to justify unnecessary delays, to place unreasonable obstacles in the way of public access, and to obtain un- due withholding of information. The final report of the House Government Operations Committee described the fail- ure of the act to realize fully its lofty Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 Jiay 30, 1974 CONGRESSIONAL RECORD ? SENATE *-9313 l J ? a: a ?am)rst(9964.745mteletWAVAT, Ph3ZIAnIMMUi8(1.13W;Rctg ? v'sf; ' -Ade pineal& The net' an geverninern When Congress passed the Freedom of expertise in such cases. officials responsible for denying freeciom Information Act, it issued a rule of Gov- Fifth_ Expedition an appeal. Freedom of information requests are required, by ernment that all" information with some of Information cases are wader present S. 2543 to be noted in denials and re valid exceptions was to be made avaal- law to be expedited in the trial court. The ported annually to the Congress. This able to the American people?no clues.. bill adds a congressionatentent that ex- supplements the sanctions section in en- lions asked. The exceptions?intended to pedition of Freedom of -Information cases couraging personal accountability on the safeguard vital Defense and State secrets, extends to the appellate level also. part of government officials who would personal privacy, trade secrets, and the Sixth. In camera and de novo review, withhold information. like?were only Permissive, not manda- Presently de novo review with in camera , Thirteenth, Segregable records. S. 2543 tory. When in doubt, the department or inspection of documents is allowed in all adds a new provision to the act stating agency was supposed to lean toward cases except where withholding is justi- that if exempt portions of requested rec- dis- closure, not withholding. ' fled as. being in the interest of national ords or files are severable, they should be But most of the Federal bureaucracy defense or foreign policy._ This exception severed?or deleted, as the case may be? already set in its ways. never grit the is dictated by the Supreme Court's inter- and the nonexempt. portions disclosed. message. They forgot they are the serve pretation of the Freedom of Information Many courts are requiring this now, and - ante of the people?the people' are not Act in the case of Environmental Pro- the bill emphasizes the desirability of their servants. " n '' -. ' ? tection Agency against.. Mink. S. 2543 this approach in providing specifically Agency officials appeared and actually would- reverse Mink- and extend full in that courts may order disclosure of "por- testified under oath that they had to camera judicial review to all areas, in- tions" of files or records as well as en- balance the Governmenns rights against eluding, those involving classified docu- tire files or records. the people's eights. -The Government, mentse Specific procedures are set out in Fourteenth. Reporting. 5.2543 requires however, has ncierights. It Nun only the bill for courts to follow where classi- annual reporting of agency handling of ` - limited power delegated to en from. we, ficatfon decisions are reviewed. freedom of information requests to Con- the people. ,e 1 - 1 - 41, Seve,ntia. Attorneys fees. S. 2543 would gress. Specific information useful to the Last year, my. Sencommittee on?Ad- allow recovery from the Government of oversight functions of Congress in a n- ministrative Practice and Procedure be- attorneys' fees where the plaintiff in_ an sessing implementation of the bin and action sub- the act is recraired in the report. - gen its efforts to define the loopholes in. Freedom of Information the Freedom of matters Act' and to stantially prevails. and where recovery Fifteenth. -Agency definition. The bill Infer design legislationto close them- After ex- would:be in the public interest. The bill expands the definition of agency under tensive hearings, 2: intrOdUCeri 8:: 2543; contains- criteria to govern the courtes the Freedom of Information Act to in- award of these fees. elude the Postal Service. and Government which focused cca,tJae procedival obstacles Eighth. Answer time lei court' The corporations, Such as the National Rail- to timely access to-Governnaent informs- non. Through subcommittee and full Government presently has 60 days. to re- road Passenger Corporation_ -- committee consideration, we-- amended sPond to a- complaint in the Federal Dis- Sixteenth_ Authorization. S. 2543con- and improved some of the s tions of the trict Court. Private parties have 20 days. tains language authorizing anlernPela- ec bill. And on May & the Judiciary Com- The bill would expedite the Govern- times for such sums as may be necessary mittee unardinously ordered the bill re-. ment's response time, allowing 40 days to senst in carrying out agency freedom ported as amended.- :-. for its answer. The court may grant an. of information antiactivities, although it is , 8.2543 makes- a number of changes extension of time, or may shorten. the expected that funds will be appropriated ill the present Freedom of Information Act. response time, for good cause shown. only for special or supplemental agency Let me briefly outline all of the changes Ninth. Sanction for withholding. S. activities and not for the routine process-- made by the bill_ and then discuss in 2543 adds a new government account- lug of requests.- - , ability provision whereby if the court in Seventeenth. Effective -date. S. - greater detail what I consider- to esee be some of its most ignincant a freedom of information. case, after will become effective 90 days after enact- e provisions. : First. indexes.4?.under ., present a, hearing, finds the withholding to have merit, to give the-agencies time to adapt been. without a 'reasonable basis in lavien their internal procedures the require- indexes, of anew" Minion-se Pollen state- ments and staff manuals must be made- the official responsible can be disciplined merits of the new law. .-- e . available to the-public. To increase the , or suspended by direction. of the courts Mr. President I would now like to availability of these indexes, S. 2543 re- for up to 60 days. This should eliminate focus on some of the most significant. quires their publication unless it would many of the cases where obstinate of- portions of the bill we are considering be "unnecessary and impractical. This fici els disregard. the law in order to today and elaborate on the purpoees arid should especially -increase- their. avail- minimize embarrassment to the agency. objectives or ,the legislation in theseability to libraries, which play a vital Tenth.. Administrative .. deadlines. S areas role in making information widely avail- 2543 sets deadlines for agency handling One of the key provisions Is the new- able to the people..-- , - en , - of freedom of information requests: 10 subsection 552(a) (4) (F) proposed by the Second. Identiliable records Under days for the Initial reply and 20 days on bill. Under this subsection if the court. Present law a request must be made for appeal. It. sets up a certification proce- determines that. the Federal einployee "identifiable records." Since some agen- dune for extraordinary cases?where a or official :.lesponsible for wrongfully cies have used this-requirement to evade large magnitude of documents subject to withholding information from the put- disclosure of public infonnation. S. 2543 numerous requests are widely disbursed lie has acted without. a reasonable basis requires only that, the request, ereeson. geographically--allowing 30 _days for the in law, it may order the- employee or ably describes"- the records sought. initial answer time. And it provides that official be disciplined or suspended from Third. Search, and cony- fees. 10 days may be added to either the re- employment up to-GO dans. Specifically, agency presently sets its own schedule cif Ply or appeal true if "unusual circum- the subsection reads as follows: fees without. review or supervision. Exag- stances," as narrowly defined, by the bill, Whenever rtcord.s are ordered by the court t _ gerated search charges and extravagant are Presented- to be made arailable under this sec on, the , . . - charges for legal. review time nue pro- Eleventh. Exemption (b) (1). In court than oil motion by the complainant its find whether lite withholding of such records effective obstacles to publi access only amendment of & substantive exemp- was without reasonable basis in- law and to Governraent information S. 2543 re- tion in the FOIA, S. 2543 makes, clear wnien Federal officer or employee vras re- quires the office of Management and the duty of a court reviewing withhold- sponsible for the withholding_ Behove such Budget to set uniform fees, which will lug of classified material to determine endings are made, any officers or employees only cover direct costs of search and whether a claim based on national de- named in complainant's motion Shall be duplication? eliminating' any possibility fense or foreign policy is in fact justified PeleXarrilhallavYese2r;eddaayr3g of =11 ratziotirrapoanndd of padded fees or charges for peripheral under statute or executive order. Thus services. These fees may be waived or the court will not take an official's thereto, and shall be afforded an opportunity word tote heard bir the court. If such findings are- reduced under specific circumstances for the propriety of the classification, me, the eeesn shale , set out in the bill. but will look to the substance of the in- the recommendation upon.-consideration, ofcd the agency. direct Fourth. Venue.. The bill establishes formation to see If it had been properly that an appropriate orlictal. of the agency alternate concurrent venue for Freedom classified. which employs such responsible officer or Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 employee suspend such officer or employee exemption of the Freedom 'of Informa- would not apply, he surmised?and' the without pay or a period of not more than tion Act may on its face. have been requester bed not given any reason why eo days or take otherAqttjYrei.ttdifdfiRtYleasgtilaglkk/Otati3Os:o6kAAEIEI7,5BOQ380R000.620124aM&??.--Qeetion. These are or. =creative action ageanst mea. . ous courts have unanimously held that cases that would likely not have arisen The Freedom of Information. Act has for information which does not consti- if the sanctions provision had, been a part been in operation for almost 7 years, but tute trade secrets to be withheld under of the law at that time. one of its great . failures is that it does this exemptionethe information must be . The concept of administrative sane- not hold Federal officials accountable for both confidential and commercial, on tions for the nonperformance of a Fed- withholding information required by the both confidential and financial. Agency eral official's duties is not a. new one, nor act to be made public. The only mecha- refusals to acquiesce in this clearly cor- is the concept of sanctioning a Govern-, nism for enforcing the mandates of the rect judicial interpretation have been ment official for noncompliance with dis- Freedom of Information Act has been frequent, but in light of the clarity of the closure laws. . . - for individuals to goto court for an in.- case law on the subject the earlier. posi- Under title .5 of the Cede of Federal junction, on a ease-by-case basis, with tion on this issue could no longerlie con- Regulations, a Federal employee can be ? 'great cost and delay. This is?an expensive sidered as having 'a reasonable 'basis -in reprimanded or suspended without ,the and. not always ;an effective approach. law. reee e?-e? ??...eie.efeee ben.eflt of a hearing. That sanction ap.-- The .sanction is ?intended tee encourage ::" 'Oneof bar Witnesses;' Mr:Teter Shuck, plies to a wide range- of derelictions administrators responsible for, carrying' told of a lawsuit brceight teobtain access ranging from in.subordinatiotete tardi- out .the Freedom of Information .Ant to to Agri-Culture Department inspection re- nese to failure to follow work regulations: . I make sure that ,their actions 'faithfully ports on meat processing plants. His suit Under the adverse 'action procedures an ? carry out the terms of .that lame -? was suecessfuleind the Government did employee may ,be .suspended for more Former Attorney General Richardson not, appeal: About a year later,: however, than 30 days or yerneved frozn his job, . observed in our hearings thatee-eeeee....' ee USDA ?refused to. turn- over similar re- .. Although a. hearing Is _required,. It is not The access to -officiarinformition is not statutory' they were .-exempt from disclosure under An adverse action.. is used where it is Probieneeneeetoidingetieeeebileenere eortee to eiriother-requeetere alleging that held until after areemployee is removed; but administrative.e. - ? ? .eeeee ? e, the -MIA. Onle after Mr. Schuck 's attor- determined that the employee should be 'ney-litterVened. on behalf 'of . this second . disciplined or removed for the efficiency , .:He indicated.bhater, - ? 7" ' requesteiadid the USDA' release reports. of the service. And :under the conflict :Of The real need, zot. to revise the act ex- -- ' . ? - If the persons responsible for the dem- -interest regulations an employee who is ter. naively but to. impreve compliance., ? . . eee-eve.. sions'inehe, Musing. home and meat in- Involved in an activity that may give the ? e ,That is precisely "kheewe included this spection casee, knew that ehelie actions .-- appearance of conflict and that may al-' , -sanction in S. 2543-, e- ? the second time around might have re- feet . public confidence in the Governe ? -There are three problems:toed-116h this 'suited in the imposition, of adrienistrative ment may be administratively reassigned ..':flew 'accountability provision" addresses sanctions by a Federal' judge,: their' le- -without a hearingor right of review. - ? Itself: where officiels refuse to follow epobees would likely havelieen different' ...eThe administrative sanctions sections ; clear precedent; forcing a requester to go Access'. would have been; expedited, and -of a '2543 'provides only that-if a Fed- ... toaCOUrt despite-- the clarity of .-the 'die- resort-teethe- courts unnecessarye -eral 'judge has found the withholding of closure yequirement in the specific. case; en some circumstances agency officials a document- was ',without -reasonable - where officials . requests, without refuse- access to information merely be- -basis in law,, the responsible employee- bothering tce inform themselves' Of the cause .they eo not want et _released, and , after being given notice and a hearing to -mandates of the law; arid where obsti- they practically dare the requester to present his own defense?maybe subject nacy provides thern obvious basis for the bring thene to court. One 'example from to certain sanctions in -the discretion of" official's refusal to disclose information. our hearing will suffice to Muserate this the judge. The recommendation of the Let me provide some examples, both from.., problem.,' . agency involved, ? as to. -the appropriate ouie hearing record and from' the- sub- Pursuant to statute the' Office of Eco- sanction, is to be taken into account. This committee's day-to-day' involvement noneic Opportunity imust prepare ari an-- is certainly- more protective of a, Govern.; with agencies on FOI problems. -- ? - nual report. A report for fiscal 1972 was ment employee's rights than those in- , -e Mr. Mal Schechter, a -senior' editor of .. prepared prier to the decision by the ad- existing Civil Service , regulations'. 'Here, -Ilospital Practice iriagazine, preeridedthe minieteation- diemantle0E0, but the" --mile' - officials' or' -einefloyees, who have subcomniitteeeveith a egregious- example. report ,was hot 'submitted to Congress clearly violated the- law are subject to of agency handling of his freedom of in- and was not released; 'Two 'individuals- sanctions?not too great a penalty for formation requests. He had for several requested' and were denied access to the guaranteeing the public's right to an years been atempting to obtain from the report. They filed suit under . the ,T'ree-_ open Government.' Social Security Administration access to dom of Information Act. _ - Fifteen States have penalties for viola- medical survey reports done on nursing The required disclosure of this dem-- lion. of their freedom of information' of homes and other medical facilities re- ment was so clear that the Justice De- public records statutes. Most of these ceiving Federal payments under inedie" partment took the position it-would not. penalties are criminal- in nature and careeMr. Schechter finally brought legal defend 0E0 in court on the question of charge the violating official with a mis?- , action under the Freedom of Information access to that report. Where the law was demeanor. A list of the State laws with Act, and the district court here in the clear, and their lawyers wouldn't even a brief description of the penalties they District of Columbia granted him access defend them, 0E0 officials nevertheless Provide appears in the committee report . to 15 reports on nursing homes in the persisted withholding the- -report tmtil. on 8.2543 at page 63. ,- ? Washington metropolitan area. The Gov- the east moment in.court._ If the re,spone a recent casein the New York Fed-. emment did not appeal.... eee ' :.sible officials at 0E0 knew that 'their ? eral district court, 'a collet ordered lin- . _ The safe assUreption would" have 'been actions could result- in. the imposition of position of a $5,000 sanction against a that the next time Mr. Schechter asked achninietrative - sanctions, 'perhaps: the party to private litigation who obstructed for access to- a medical survey - report, it citizens requesting the information., the discovery`of information by the ad- would be made - promptly available to would not have had to wait so long for verse party under ,the Federal Rules of " him, this was not the case. For, in re- a final adjudication of :their rights. Civil Procedure. The concept of imposing sponse to his next- request fere, onenistan6e, an -aiericy. official re- ; .sanctions to guarantee's right of access documents, the Social Security. Admin.- fesed access to 6km:ciente' because he' did 'to information is thus not a novel one, in istration refused access and stated that not think they ought to be made avail- the law. they did not acquiesce in the opinion of able to the requester, although during a The adn'thilstrative Sanctions con-, the court. Mr. Schechter had to go to subsequent review it became clear that tamed in S:2543 will create an incentive court again.. ' ? ? ? this official had not even considered ap- to Government administrators to .with- 'This situaten is epidemic in the area plication of the Freedom of Information hold information from the public only of requests for information which the request. In another, an agency lawyer when the Freedom of Information Act Government considers "confidential" but articulated the bade for refusing access specifically exempts disclosure. Without which is neither commercial nor finan- to records thusly: the material requested such. a . sanction the act will remain a cial. While the language of the fourth was written before 1967?so the act rightwithout an effective remedy. _ . Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 .3/Iczy. 30, 1974 Now I would like portant feature of CONGRESSIONAL RECORD ?SENATE z U.510 endments of the Government information. These involve nOditIK4ileantanaige'd Alali17,580,6380Ft000961049000012 judicial review of flacted in two provisions of the bill. That the association, "that this deletion con- classification decisions, setting firm time ?.,& the strong statement against corn- cept be included in any final amend deadlines for agency responses to in- mingling of exempt with nonexempt ma- ment, and be expanded to cover other formation requests, and eliminating terials in order to prevent disclosure of reasons for nondisclosure and all exemp- abuses in the charging of fees for han- the latter, and against withholding rec- tions." This is precisely what we had in dling Freedrm of Information Act re- ords where deletions., would as well serve mind, Mr. President, in amending the quests, and allowing recovery of attar - the purposes of the exemption; under original language. As stated in the corn- neys' fees in successful court actions. which they are withheld. Section 552(a) mittee report, page 32: '" Before January 23, 1973, it was gen- (4) (B) (i) provides that the court shall in The amended language is - .intended to en- erally thougat that the de novo review Freedom of Information Act actions compass the scope of this original proposal required in Freedom of Information Act "consider the case de novo, with such in but to apply the deletion principle to all, cases by section 552(a) (3) of the act camera examination of the requested effe7Pt-l?n1'- - , ,. - _ - - applied to documents withheld under an records as it, finds appropriate;to deter- . With- sakao pais Proiisioni. it should be nine exemptions, and that contested mine whether such records or any part lea c r that there can' be no blanket claim documents under all exemptions could, -,.thereof may be-,withheld .under ,any of a confidentiality under any of the ex- be examined in camera by a court decid-- ". ,the exemptions set forth in subsection empt,iens. In connection witasthis objec-_?: ing _whether withholding was Justified.- ..(b) of this section, and the burden is on tive,-Sa,,2543-, proposes specificalla to re- On that day, however, the=Supreme Court, . the agency to sustain its actione"S " aferni : the discretion . of the courts handed down its decision_ in Environ-.- Furthermore. anew sentenieleSdsled, through in camera inspection to examine mental Protection Agency against Mina, ? to- section 552 (hi. idattrIg: , - ..4A;,:i'l" --- - -- eachand every element of requested files in which Congresswoman PATSY MINK ? '-Ally reasonablr*Begregeble P.9rtba of - a _ or records -The Senate- report- in, this ? was attempting to obtain documents re- record shall be provided to.. any, person re- respect ?cites with approval the -type of lating to the effect of the proposed questing such record after deletioif_of the procedure set out in the District of Co- Amchitka -atomic test. The' Supreme Court, upholding ? -nondisclosure, held that where information is claimed to be required by executive order to be kept secret in the interest of National I)efera. s and Foreign Policy, the Freedom of In. formation Act does not permit an attisi; on the merits of the classification de- , .." vestigation"-a-to,deterrnine -whether the c,ally exempt MaY beW1 e cision. Thus where the document re- : *Information should be released under ahe lie disclosure. 'This should result in maxi- quested on its face bears a classification -, Freedom of Information Aet,07,-....i i . , -.-4- mum possible disclosure and is con- . marking, in, camera review, serves no When I originally introduced ar? 2543? sistentrwith the original congressional..., useful purpcse. ,s, - L. ' in October 1973 the new sentence, added purpose in enacting the.Fr-Pecinm at 7-11- ' S. 2543 addresses both aspects or the-- to section 552(baswedd have read- as fol- formation Act., -- .. a ; ..=.- a.- ; sass a ' Mink decision--the revievrabilitY of lows: - a- sa=daffassa. -' iasssal raver a - ss -- This. new requirement Is' also - cona_ ;classification decisions -In freedom of If the deletinne of names Or other,ideiiti- sistent . with most judicial pronounce- 'information cases and the, related mat- fying characteristics of individuals would- ments in 'Freedom of Information =Act ter of in camera inspection of records in ases,- although unfortunately-. some . the course of. such review: Under the prevent an inhibition of informers, agents, or c other sources of investigatory or intelligence courts are not adhering to the principle amended exemption (b). (1), courts must information, then records otherwise exempt under' some exemptions. The new Ian- determine whether documents in issue under clauses (1) 'and (7) of this subsection: ? unless exempt for' some other, reason under gauge in S. 2543 should extend this dele- are "in fact covered" 'by an Exeditive this subsection, shall be made available with tioli principle to all cases, involving all ' order or statute in the Interest of na- =oh deletions. tErtiringlilia=tirtM'-dallitaerilti011t.Or the legislation it became dear that it would be desirable to apply this deletion deletion may be made," said the court. principle to other exemptions. For ex-. In- another case the court found that .. - characteristics- of individuals would In. Info ation Act ?"does not indicate ' ? withholding classified documents. In - some cases Eerie the underlying purpose ' ' ? making its factual determination, the that Congress intended to exempt an en- , court must first attempt to resolve the ,.`*- of exemption 6," which exempts 'Verson- tire document merely ;because it con- s matter on . the basis of affidavits and , nel and medical flies and similar files the tained some camfidential information. other information submitted by the par- disclosure of which: would- constitute a' And another court said that "identifying ties. If it . does - decide to consider the ? clearly unwarranted invasion of pri- details or ?secret matters can he deleted documents in camera, the court may con- -' Deletion of formulas or statistics from a document to render it subject to a or figures may also in many cases en- die -, a? - - - ? - eider further argument by both parties, ciosure , - . --=. ? tirely fulfill the; purpose of the fourth ' ' " ' ' ' ' "' -, ' - ? ? may take further expert testimony, and exemption, designed to protect- "trade When the Freedom of Information Act, may in some cases of a particularly sen- se and commercial, or,finandas in . as amended, refers to disclosure of ,aany ,,,s= secre sitive nature entertain an ex parte show-- , ' formation Obtained from a Verson and Part"' of a record or, to any reasonably jog by the Government. This ex parte ' . privileged or confidential." Thus the on- segregable portion. of a record" this is showing would represent an exception jectjaes and purposes of -these-exemp. intended to provide for-release of the to the normal judicial procedures. Al- atoms, as well as oa esomptdons..(1) and record after. deletion, of the names of in . though it may he.requeeted frequently by (7), could equally be served by selective formers or sources- of Information, for- the Government In order to gain some ...deletions whilaathe basics document or mulas or &sandal Information, confiden- advantage over its opponent in court, ?? " :record- or file could otherwise. be. made tial f investigatory i techniques and --- the I do not bilieve that courts should mi- available to the public. ? , - like, depending on the exemption In ' tiate such a procedure lightly. It should It is upon this background that the volved. The legislative history of the act be used only in the most exceptional new language in the Freedom of Infor- and the case law construing it lir ade- cases perhaps where the court deter-- portions which are exisrapt under this section. lumbia Court of Appeals in the case of Taken together these provisions are Vaughn against Rosen, requiring the' tended to require agencies, and courts, to, Government to sustain its burden of jus- look at the information requested?not tifying- its vrithholding of each element ? the title of the document or a-restricted-- of a, contested file ?or record. That proce- -.access stamp or the fact that the record dure is consistent with our intent that -rs'is in file marked "Confidential" or 'In- only parts of .records which are specifl- ,s, exemptions. As one court observed, it is tional defense or foreign policy. In order a...violation of the Set an withhold decu-. make this factual determination, the. ments on the ground that parts" are ex- 'courts will have discretion to examine empt and parts nonexempt." "Suitable- the contested documents in Canada.' ' The bill sets out some 'procedures to ample, deletion of names and identifying guide judicial review of the propriety of the legislative history of the Freedom of mation Act must be read. The Associa- quate to provide the basis for those ex- ? mines thai; involvement of plaintiff's tion of the Bar of the City of New York, In its recent report on freedom of infor- mation legislation, indicated its conclu- sionthat the deletion or "savings clause" ? Is "in its original form one of the most emotions, against which this deletion principle can be applied and measured,. I would like to take a few minutes to mention some other areas where S. 2543 would, strengthen the public's right to counsel in that aspect of the. case would Itself pose a threat to national security. If the head' of the agency involved, and this means a commission chairman, cabinet official or independent agency Approved For Release 2001/08/30 :ICIA-RDP75B00380R000600190008-2 S-9316 CONGRESSIONAL RECORD SENATE May 80, 1974 a drhinistraebr, filelembiWeititptilleRtgreaMigWatigiejale.ntatelSoteSSoMmeliplDqna procedural legis- court certifying thet 'he has perso- reviewed the contested documents and finds thern properly withheld under the standards of the applicable Executive order, then the court must resolve whether, in its view, the determination by the agency head is in fact reasonable or unreasonable. That affidavit should specify which in- formation be required to be kept secret and the reasons for this conclusion. The Court can then order disclosure of the material if it finds the withholding to be withoult a reasonable basis under the order of statute. ? " Clearly, Mn President, -the cla,ssifica- ton system-is noted more for its abuses than for its protection of legitimate Gov- ernment secrets. In May 1973 the House Government Operations Committee is- sued a report on Executive classification- of information that concluded that there has been "widespread overclassification, abuses in the use of classification stamps, and other serious defects in the opera- - ton of the security classification sys- tem." The committee found the existing classification order inadequate in many respects and thus projected continuing problems in this area. - When he issued a new Executive order on classification in March 197Z Presi- dent Nixon acknowledged the widespread abuses raging under the existing classi- fication process. Let me quote from Pres- ident Nixon's statement on the issue: -unfortunately, the system of classification which has evolved in the United States has failed to met the standards of an open and democratic society', allowing too many papers to be classified for too long a time. The Con- trols which have been imposed on classifica- tion authority have proved unworkable, and classification has frequently served to con- ceal bureaucratic mistakes or to prevent em- barrassment to officials and administrations. - - ? In our subcommittee 'hearings last spring retired Air Force security. analyst William Florence observed that-- - There is abundant proof that the false philosophy of classifying information in the name of national security is the source of moat of the secrecy evils in the executive Mr. Florence then listed what he con- sidered the reasons most commonly used for classifying information, end I would like to read this list for my collea,gues: First, newness of the information; Second, keep it out of the newspapers; Third, foreigners might be interested; Fourth, do not give it away?and you hear the old cliche, do hot give it to them on a silver platter; - Fifth, association of separate nonclas- sified items; Sixth, reuse of old information with- out declassification; - Seventh, personal. prestige: and Eighth, habitual practice, including clerical routine. This sentiment was echoed and the list expanded somewhat by retired Rear Adm. Gene LaRocque, who observed in testimony on the House side that for the vast majority of classified information, the reasons for classification are: To keep It from other military services, from civilians in their own service, from civilians in the Defense Department, from a ion, t ere s ndeney for adrninis- trators to navigate their agencies through them at each opportunity. Nonetheless, we have tried to tighten substantially the exceptions to our basic time limits. We have tried to define their perimeters in the legislation and in a rather extensive report on this point. And we will be requiring agencies to re- port their practices to the Congress each year, so that both the House and Senate subcommittees with oversight responsi- bilities can exercise those responsibilities effectively. Certainly language of these escape clauses was not lightly arrived at. We do not expect them to be lightly in- voked. The press often has special problems with its need to obtain information in a timely manner, and testimony at our hearings reflected how delays in agency responses to press requests can partic- ularly frustrate the operation of the Freedom of Information Act from its perspective. A new provision is included In the law to promote expedited handling - of any request which is "accompanied by a substantial showing of a public in- terest in a priority determination of the request." I believe that this will assist the press in its efforts to obtain Govern- ment information. It should also assist others who have a special need for ex- pedited handling of their request, such as workers or public interest groups re- questing information relating to health and safety. The Federal Energy. Office set a good example by providing for the- answering of press requests within 24 hours whenever possible. There are two final matters I would briefly mention before concluding my remarks. First is the provision lathe bill relating to user charges that may be im- posed by agencies under the Freedom of Information Act. Under it the Office' of Management and Budget is to promul- gate regulations, subject to notice and comment, specifying a uniform schedule of fees applicable to Freedom of Infor- mation Act requests. These are to be limited to "reasonable standard charges for document search and duplication," thereby establishing a ceiling and pre- venting agencies from imposing burden- some and unreasonable fees as barriers to the disclosure of information which should otherwise be forthcoming. Agencies could not under the bill charge for professional time used to re- view requested records or to sanitizedoc- uments before release. S. 2543 also al- lows documents to be furnished without charge or at a reduced rate where the - public interest is best served thereby. And this public interest standard, spelled out generally in the legislation, to be lib- erally construed. Second, the bill authorizes discretion- ary assessment of attorneys' fees and costs against the Government where the complainant substantially prevails. This would eliminate another major obstacle to public access to information, assisting the public in their efforts to obtain ju- dicial enforcement of the mandates of the Freedom of Information Act. S. 2543 sets out four criteria for courts to use in determining whether to award fees in It is therefore crucial that there be effective judicial review of executive branch classification decisions if the most far reaching barricade of unjusti- fied secrecy in Government is to be pene- trated. S. 2543 is designed to provide just such effective judicial review. Another problem which this bill ad- dresses itself to, Mr. President, is that of undue delays in agency handling of Free- dom of Information requests. Time and again our witnesses from the private sector decried the unreasonable and unnecessary delays that are involved in agency responses to requests for infor- mation under the act. Our record abounds with example upon eeample where a request was 'followed by periods of long silence, with the first eVord back from the ? agency often unresponsive. Earlier this spring My Subcommittee on Administrative Practice and Procedure' opened oversight hearings on adminis- tration of the Freedom of Information Act at the Internal Revenue Service, and we continued to find delays endemic in that agency's process. Clearly legisla- tive restrictions and guidance are neces- sary to meet this kind of problem. S. 2543 establishes time deadlines for the administrative handling of Freedom of Information requests. It requires agencies to determine within 10 working days whether to comply with a request, and gives them an additional no- days to respond to an appeal or any denial of ace. cess at the initial stage. Agencies can by regulation shift time from the appeal to the initial reply period, but would have eto do this across the board, not selec- tively as to types of documents. Where there are specific types of docu- ments in large quantities, subject to - numerous requests, spread geographi- cally, then the bill provides for a certifi- cation procedure allowing the agency 30 days for the initial response time. This- is to be considered an exceptional pro- cedure, and I believe that our use in the Senate report of the Immigration and Naturalization Service example best illustrates the committee's intention with regard to this section. INS pro- cesses an average of 90,000 formal re- quests for records each year, seeking ac- cess to 1 or more of the 12 naillion in- dividual files dispersed and frequently transferred between 57 widely scattered service offices and 10 Federal records centers. Few other agencies will be able to rival this example; but then few other agencies should be allowed 'to take ad- vantage of this special certification process. '-'T 'Under S. 2543 an agency may, by noti- fying the requester, obtain a limited ex- tension for a period not to exceed 10 days of either the initial or appellate time limits?but not both. If the agency has certified a longer period of time for Its initial response as to records sought, then no additional time extension may be obtained for this period. Mr. President, r recognize" that the sections of the bill imposing deadlines might be subject to abuse by the agencies because they are not airtight. And his- tory has convinced us that whenever Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May a, 1974 a given case. The e.mount of es awAr_de will, of course, a-WPCOMQnt9f1,1*W19-a plication of these criteria. The bill does not state precisely how costs or fees ar to be measured, but courts should loo to the prevailing rate on attorneys' fees for example, rather than solely to wheth- er the specific attorney involved is from Wall Street or a public interest law firm The effective date of this legislation will be 90 days from the date of enact- ment. I hope that agencies willmot plan to wait until the, lest possible moment before implementing this new legislation since its basic principles have been pro- posed and debated for over a year,' and a similar measure passed the House over 2 months ago. Provisions such as those relating to in camera inspection-and at- torneys' fees should be* applied to cases -d already filed before the effective ate, since these are not dependents on any prior agency preparation or ptrblic notice for implementation. " Mr. President the Freedom of Infor- mation Act has already opened substan- tial access for the public to Government files and records. Under the act citizens have been able- to obtain nursing home reports, meat inspection reports, state- . raents of Justice Department intent on proposed mergers, AEC reports on nu- ':clear generator safety, civil rights corn- . pliance documents, IRS agents' manuals, 'FBI counterintelligence program guide- lines, FHA appraisal reports, and a large ? number and variety of other documents reflecting what the-Government is doing and how it is doing it. ? n Even now, however, with the law on the dde of the American public, it is still an uphill battle with the Government agencies and their deeply inured 'pen- chant for secrecy. There are blatantly unnecessary delays and purposeful frus- trations.. - There are outrageous fees. There is -.nitpicking over .identification and there isbargaining oVer.estemntioni. Then are lengthy and costlYcourt fights. And with each new request the entire process of ten has to be repeated:? . This is not the intent of the Freedom of Information Act. This is not what is meant by citizens' access in an open gov- ernment. . - The amendments presented in my bill today will give the people of this country more than just a foot in the agencies' doors?it will provide them with the nec- essary tools to break down the tradi- tional bureaucratic barriers of secrecy, and to gain access to what is granted them by the Freedom of Information Act. I urge the Senate's adoption of this Important Mr. liRITSKA. Iyield myself 5 minutes on the bill. --en ' " Mr. President, I ask unanimous con- sent that David .Clanton, a member cl Senator s s owed the Privilege of the floor during the debate and vote on the pending measure. The PRESIDING OresaCER. Without objection, it is so ordered. Mr. HRUSKA. Mr. President, freedom of information is basic to the democratic process. The right of the citizen to be Informed about the actions Of his gov- ernment must remain viable If a govern- ONGRESSIONAL RECORD?SENATE ? S 931' ihtagli?itn?tagglia0RegA 8I2deld myself an addl- . the people cannot govern themselves if The provisions of the bill have already e they cannot know the actions of those been discussed. The basic features al the k in whom they trust to carry out the bill that I believe deserve elaboration are ?? functions of Government. ? the following: Yet, it is 'also elementary that the wele First. The bill expedites public access fare of our Nation and that of its citi- to Government information by requiring Government agencies to respond to re- ' zens may require that some information quests for information within specified in the possession of the Government be time periods. It is a difficult task to draw held in the strictest of- confidence. For the deadline at the most appropriate example, the individual's right of pri- point. If too much time is granted, there vacy requires that personal information is the possibility that the requester's ac- collected and held in the files of Gov- cess to eovernment records may be de- ernment agencies under census reporting lived On the?Ort-he-r hand, If the time - laws, income tax reporting laws, criminal ? limits are too rigid. Government agen- investigations, and other activities, be , cies, in a 'spirit of caution to insure that protected from disclosure. Indeed, Sen- personal rights and other interests are ator Envier and I have introduced bills served, will- be forced to deny requests dealing with criminal justice informa- for inforraatiozi that might with more tion systems, the primary purpose of * , study be granted. In short, time limits which is to insure that this type of 111- that to rigid, ? _ formation- is not disclosed to the Immix counterproductive to the interests in al- or to any persons not- directly engaged fording citizens the greatest amount of in apprehending and prosecuting an of- omen to Information that- individsei fender. Likewise, information which di-? rights and good Government will permit. rectly- bears on delicate negotiations I believe that the time limit -provision with foreign nations or on the mainte- of this bill walks the fine line. It imposes mance of our national defense must not be reasonable timelimits er which an exposed for all the world to see, to the agency must resPend to a request.bia?.t, prejudice of 'our national 'position or permits the agency to extend the tfine our national integrity- ? for certain compelling reasons. For ex- - The Freedom of Information Act, en- ample, an agency could get an extension acted in 1966, recognized the competing of time if the-records requested are dis- interests in disclosure and *confidential-? persed and-cannot be located 'within the ity. It attempted to balance and protect time limits imposed or if the request is all the interests, yet place emphasis on for a voluminous amount ef recores the fullest responsible disclosure. That which must be located and reviewed. In act imposed on the executive branch an my view, this provision is responsive to affirmative obligation to provide access to the needs of both the Government agen- official information that previously had cies and the public. been long shielded from public view. Un- Second. S. 2543 insures the integrity der that act, an agency must comply of the classification of a classified docu- with a citizen's request for information ment by allowing the- courts to review unless it can show that competing in- the document in camera, if that proce- terests, such as the right of privacy or dure becomes necessary. However, the bill the national' defense, require the infor-i does not permit a judge to substitute his motion to remain confidential. - - view of the sensitivity of the document It is my understanding that, by and for that of the agency. A judge can over- large, the balancing of competing inter- rule the agency's decision to withhold ests codified in the Freedom of Informa- the document only if he is convinced that tion Act has proven successful. However, there is not any reasonable basis for the - experience with the administration of classification. the act indicates that some changes are Mr. President, I think that this stand- necessary. As the Committee on the and is sensible. Under this bill, the court Judiciary found in reporting on this . bill: .? can review the document to determine whether the classification is reasonably. The primary obstacles to the act's faithful based on an Exeiutive order implementation by the executive branoh But the Court cannot, and should not, have been procedural rather than substan- be able to second-guess foreign policy and national defense experts. _ In short, the problem lies not with the Third. The bill insures responsible re- substantive provisions of the act but ? spouses to requests by holding account- with its administration. The real need able those cfacials who, without a ree- ls to improve compliance with the dis- sonable basin, deny requests for informs- closure provisions we already have on tion. If a court determines that the-with- the books. holding by the deeonmaker was with- - To this 'end, S. 2543, as amended, has been reported favorably by the Commit- tee on the Judiciary. It is designed to remove the obstacles to full and faithful compliance with the act. Its basic pur- pose is to facilitate more free and ex- peditious public access to the informa- tion the act obligates the Government agencies to disclose. . The PRESIDING OFFICER. The Sen- ator's 5 minutes have expired,. out a reasonable basis, it may order that- corrective or disciplinary action be taken. - Before making such a decision, however, the agency involved shall recommend what ? corrective or disciplinary action it deems appropriate and the court shall accord this recommendation considerable weight hi making its ultimate decision. Finally, I .want to refer to a provision that is not in the bill. The basic premise under which 5.-2543 was drafted is that Approved For Release 2001108/30 : CIA-RDP75600380R000600190008-2 0;116 CONLiKESSIOIN AL RECORD ? S.ENATh May S0,1974 the problems arising under the Freedom substantive. True of? Information..aiektpclaa g this reltaffOtea Re premise, the committee decided not to amend the sub- stantive arovisions of the act. One of the substantive provisions considered but de- leted by the committee from the bill as originally introduced was a provision changing the word "files" in exemptions 6 and 7 to the word "records." By and large, the reason for this deletion was that there was no evidence that such a change was necessary.. - ? The provision dealing with deletion of segregable ?portions of records is proce- dural and requires the agency to segre- gate the disclosable portion of a record from the nondisclosable and to grant ac- cess to the disclosable portion. This pro- vision reflects existing law, but is incor- porated in this bill to clarify and emphaa size the point. Being procedural in na- ture, it does not aid in the substantive analysis whether a particular exemption ? applies to a record or portions thereof. Instead, it applies once the court deter- mines that portions of a record are dis- closable, requiring the agency to divulge those portions. Thus, it would not apply, where, for instance, an entire file was exempt such as under exemption 7. Mr. President, I am pleased to have worked with the Senator from Massachu- setts (Mr. KENNEDY) to develop this bill which was supported by every member of the Committee on the Judiciary when it was reported: I believe that this bill will insure that the Freedom of Infor- mation Act lives up to its. title. While stressing the fullest responsible disclo- sure, it produces a workable formula that, in my view, balances and protects all interests. Mr. President, I, reserve the remainder of my time. Mr. RFNNEDIa: Mr. President, I yield 30 seconds to the Senator from Michigan. The PRESIDING OtTICER. The Sen- ator from Michigan is recognized. Mr. HART. Mr. President, during the consideration of this bill I ask unani- mous consent that two members of my staff, Burton Wides and Harrison Well- ford be granted access to the floor. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. CR.ANSTON. Mr. President, the Freedom of Information Act has become one of the basic charters of the public's right to know what goes on inside their Government's executive departments and agencies. As a result of the act, more information has been made available to the public. Entire battalions of rubberstamp wield- ing bureaucrats have been stripped of then arbitrary, unreviewable, power to keep documents secret from the public. Before the act, there were an esti- mated 53,000 officials authorized to class- ify documents-23,900 at the Department of Defense, over 5,000 at State and hun- dreds of others scattered through agen- cies such as General Services Adminis- tration and HEW. Reductions of classifiers at some agen- cies have been dramatic, for example, before the act there were 7,745 classifiers at the Department of Commerce, today there are 81. At GSA there were 866, today there are 31. But there is still a de2OCKPO8Pi(10.43 ae4 in 2o agencies aintinTiMr offices, according to the staff of the Government Operations Committee. Arrayed against this phalanx is the Interagency Classification Committee, which has no chairman, one full-time employee, and a secretary. Fortunately, the Freedom of Informa- tion Act contemplated more than a toothless guardian of the public's right to know. The act gave to citizens the right to go into court to compel agency heads to comply with the requirements of the act. But the courts have applied rules of administrative lave which have made bu- reaucrats the final judge of the public's right to know. The seal of approval to this interpretation of the Federal of In- formation-Act was given by the Supreme Court in Environmental Protection Agency v. Mink, 410 U.S. 732 (1973). In that case the Court ruled that the Execu- tive' s- determination as to what shall be kept secret "must be honored." Justice Stewart in a separate opinion wrote: [Congress) has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document "secret", however, cynical, myopic, or even corrupt that decision might have been. . . . - In My judgment, we must not let 17,364 bureaucrats be the final judges of what we are to know from our. Government. The courts have been the traditional de- fenders of the right to know and asso- ciation first ainendment rights. The courts must not be pushed out of the pic- ture. S. 2543, amending the Freedom of In- formation Act, brings the courts back into the process of deciding what in- formation shall be withheld from the public and what information- shall be disclosed. It provides that challenges to Govern- ment claims of exemption from disclo- sure under the act shall be reviewed de novo in court and the burden of sustain- ing the claim of exemption is on the Government. It eliminates opportunities for arbitrary delay and obstructionism by agencies at- tempting deny information to citizens. Among the abuses the bill corrects are denials-of records based on the agency's assertion that the citizen has not speci- fied an "identifiable record" when the agency knows full well exactly which documents the citizen is requesting Arbi- trary and unreasonable fees for copying and searching for documents will become uniform under schedules to be set by the Office of Management and Budget. At present agency copying fees range from 5 cents per page to $1 per page and search fees range from $3 to $7 per hour. The bill further provides for the award of attorneys fees and costs, if the Gov- ernment loses in court. This provision will discourage unreasonable litigation by the Government undertaken for no good reason except to make as burden- some as possible the effort of a citizen to acquire information from his Govern- ment. These modifications and improvements ROGO6g01400043a2riformation. Act are vitally necessary. But S. 2543 falls short in at least two respects of what can be done to strengthen the public right to know under the Freedom of Information Act. First, the provisions of section (b) (4) (B) (ii) should be eliminated from the bill. The provisions in effect require the court to accept without question the Gov- ernment's word when it decides to keep Information secret from the public. The practical result of this direction to the courts is to make hollow the major achievement of S. 2543 in spelling out the right of a plaintiff to a de novo review in court of the agency's determination not to disclose confidential information. The second change is to spell out the precise grounds on which the Govern- ment can withhold information con- tained in investigatory files, This change has been recommended by the adminis- trative law section Of the American Bar Association, Our Government and way of life thrive on free and open debate. The free flow of information is vital to sustenance of our freedoms. The control of access to Information should not be left solely in the hands of bureaucrats whose function it is to deny information. Citizens must have an opportunity to appeal bureau- cratic determination in court. The amendments to the Freedom of Informa- ton Act proposed by S. 2543 will guaran- tee full review of refusals by Govern- ment agencies to make public informs, tion withheld unreasonably. Mr. MUSIME. Mr. President, I c411 up my amendment No. 1356. The PRESIDING OFFICER. The amendment will be stated. The legislative clerk proceeded to read the amendment. Mr. MTISKIE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OrVICER. Without objection, it is so ordered, and, without objection, the amendment will be printed In the RECORD. The amendment, ordered to be printed in the RECORD, is as follows: On page 10, line 11, strike out "(1)", ard on page 10, beginning with line 24, strike out all through page 11, line 15. Mr. MUSKIE. Mr. President I call up this amendment in behalf of 27 of my colleagues. I ask unanimous consent that their names be included as cosponsors. I will not undertake to read them all, The PRESIDING OreICER. Without objection, it is so ordered. The names of the cosponsors, ordered to be printed in the RECORD, as follows: Mr. Ervin, Mr. Javits, Mr. Symington Mr. Hart, Mr. Chiles, Mr. Humphrey, Mr. Mc- Govern, Mr. Gravel, Mr. Clark, Mr. Tunney, Mr. Metcalf, Mr. Mondale, Mr. Mathias, Mr. Hathaway, Mr. Burdick, Mr. Percy, Mr. Ribi- coff, Mr. Montoya, Mr. Weicker, Mr. Cranston, Mr. Nelson, Mr. Baker. Mr. Stevenson, Mr. Hatfield, Mr. Abourezk, Mr. Inouye, and Mr. Eiden. Mr. MTISKIE. Mr. President, I rise with some reluctance today to offer an amendment to the generally excellent Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974 - CONGRESSIONAL RECORD --- SENATE s 931 Freedorct a ANEfitlierci Kar gRkape 2alMetklOrirgbliflip.g5RIV3AWOWeglln9.9904-?,f doutients, starrIpe, ments offered by my friend and able col- the Court is permitted to make a deter- "secret" under this authorizathin owe league, the Senator from Massachusetts. mination in camera to resolve the ques- succeeding years are new forbicden to No one should underestimate the dill- - tion of whether or not the information even the most superficial judicial scru- gence and concern with which he and was properly classified under the criteria tiny: One of the 17,364 authorized class-- other members of the Committee on the established by ? the appropriate Execu- fiers In the Government could stamp the Judiciary have worked to insure that the tire order or statute. However, if an al- Manhattan telephone directory "top changes made in the 1967 act will, in fidavit is on record filed by the head of -secret"' end no court- could order the fact, further the vital work of making the agency controlling the information marking changed. Under the Supreme Government records readily available for certifying that the head of the agency Court edict the Executive need only dis- public scrutiny and making the conduct in fact examined the information and patch an affidavit certifying that the of the public- business a subject for in- -determined that it was properly class!- directory was classified pursuant to the formed public comment , ? - ,..' _ - fled, the judge must sustain the with- Executive order, and no- action could be It is because the bill Wore its is so holding unless he 'lin& the withhold- taken- .--- - - , very rare and Important an opportunity- inn is without a reasonable basis under - Obviously, something must be done to to correct the defects we discovered in such criteria ,"" ' " - sn correct this strained court interpretation: the administration of the act during , If this provision is allowed to stand It need not be a drastic step: Actually, joint hearings I conducted withSenator it will, make the independent judicial it wee the original intention of Congress Hemmer and Senator Elvers; last year evaluation meaningless. This provision In adopting the Freedom of Information that I wish to insure that we fully meet would, in fact, shift, the burden of proof Act to increase the disclosure of infor- our responsibility to make the lase e clear away from the. Government - anti go- mation. Congress authorized de novo expression of ' congressional intent. In agalnet the express language int section Probes by the_ judiciary as a cheek on many Important procedural : areas, S. (a) of the Freedom of -Information Act, arbitrary withholding actions ? by the 2543, as the Judiciary Committee lias re- which states that in 'court review "the Executive- Typically, the de novo process ported it, will close loopholes through burden of proof shall be an the Gov- involves In camera inspections. These which agencies were evading their duties eminent to sustain its action." Under the have- regularly- been carried out by lower to the Public right to know-." , amendment I propose, the court could courts .rn the case of materials withheld For example; this legislation will en- still, if it wishes, make note of an aill tender other exemptions in the act They able courts tanaward costs and attorneys davit submitted by the head of an can be . baii ed. under _exemption No. -1 fees to plaintiffs who successfully contest agenc-yejust as the court could request only through a misguided reading of the agency withholding of information. The or accept any data explanatory infor- act and by ignoring the wrongful-con- pride of a court suit has too long been a mation or assistance it deems relevant sequeneen, deterrent to legitimate citizen carries ts of when making its determination. How- . - But in correcting this fault to permit Government secrecy clenne Addition- ever, to give express statutory authority in camera review of documents withheld - ally, the bill will require agencies to beto such an stfficiavit goes far to reduce under any of - the exemptions, & 2543 prompt in responding to requests for ac- -the judicial role to that of a mere con- would simultaneously erect such restric- ce to information It will ba the . currence in Executive -,king. tions around the conduct of the revien ss . r staff- ing tactics which too many agencies have . - The express reason for amending -the when classified material was at issue that used to frustrate requests for material seetion of the act dealing with review of the permission could probably never be until the material loses its timeliness to classified information grows, as 1 indi- fully utilized. . an issue under public debate.' And the eaten from. concern with the Supreme By telling judges so Specifically how in bill provides long-overdue assnrance that Court ruling in the Mink case last year. manage their inquiry into the propriety agencies willgive full report to the Con- In that case 32 . Members of Congress, of a classification marking, we show a gress of their policies and actions in bringing -suit as private citizens, sought strange contempt for their ability to de handling Freedom of Information Act access to information dealing with the vise procedures on their :own to help ..atomic test an Amchitka Island in Alas- Tthem reach a just dectston:Moreover, by With all these significertt_ailvances in ..k.a. The. as.. Court of Appeals directed giving classified material 'a status unlike its favor, there should be little reason to the Federal district 'judge to- review the that of any other claimed Government argue with the wisdom of the bill's au- documents in camera - to determine secret, we, foster the outworn myth that thors. But in one vital respect S. 2543 which, if any, should be released. This only those in possession of military and runs counter to the purpose I and 21 - seemed an appropriate step since the dipIoma.tie confidences can have the ex- no sponsors had in introducing its prede- act-does provide for court determination pertise to decide with whom and when to ces.sor. S. 1142, and endangers the mo- on a de novo basis of the validity of any -sharentheir knoSvIedge. . mentum this. Congress is developing ?executive branch withholdings. , - It should not have required the decep- toward bringing the problem of Govern- .. Unfortunately, - the Supreme. Court tions practiced on the American public ment secrecy under review and control_ reached a decision in that c :se which I under the _banner of national secrecy in Responding to the Supreme Court rul- regard as somewhat tortuous. The Court the course of the Vietnam war or since 'in lug of January .22, 1973, in the case of held that in camera review of material prove to us that Government classifiers Environmental Protection Agency et al. classified for national defense or foreign must be ;subject to some impartial re- v. Patsy 7'. Mink et al., I had proposed in Pollen reasons not permItted by the act. view. If courts cannot have full latitude S. 1142 that we require Federal judges The basis of this decision wasexemption to conduct that review, no one can. And to review in camera the contents of rec- No 1., which permits withholding of mat- if we constrict the Manner' in. which ord.s the Government wished to with- , tea's authorized by. Executive order to be courts may perform this vital review hold on grounds ofsecurityClassification. kept secret in the interest.s. of national function, we make the classifiers privi- I agree that such a requirement would* defense or foreign policy. -. .. ? - leged officialS, almost iintinune from the have been an 'excessive response to the s- '--The Supreme Court decided that once accountability - we insist_ on from their - Court's holding that the original act pro- the Executive had shown that documen ts colleagues. hibited in camera inspection of na sse- were so classitielethe ludiciany could not . -.. r object: to the idea that anything but ?? . ? ' , - - en. - ..-_ .? fled records,' and I am completely at ease intrude. Thus, the mere rubberstamP- full' de novo review will Ove us the as- with the language in S. 2543 that makes Ing of a document as "secret" could for- surance that classification?Me other as- in camera inspection Possible at the dn.- ever immunize it from disclosure. All the pects of claimed secrecy?has been nretion of the, Judges whenever any of Court could determine was whether it brought under check. I cannot accept an the nine permissive exemptions are as- was so stamped . -- undefined reasonableness standard as serted. What. I cannot accept and what The abuses inherent in such a system the only basis on which courts may over- t move today to strike in- the subsequent of unrestrained secrecy are obvious: As rule an agency head's certification of the language which would force judges to the system has operated, there is no ape- propriety of classification. And I cannot conduct - the proceedings. of - in their eine Executive order for each classified understand why we should trust a Fed- chambers in such a way that the 'pre- document. Instead, the President Issued eral judge to be able to sort out valid sumption of validity for a classification one single Executive order establishing from, invalid claims of Executive Privi- marking woukr be overwhe1XUig the crei.ifts..89blosIfiesalkolistrstabRdtraalitifflotrz.te affair but not trust . Approve ol' Release 2 ia EVIL 01 .1.11 ^,1 11.14 him or his colleagues to make the same that they should be withheld under the cr1- 4,geclly, connected *- Ick5tsROP a &d:261/451610d ittatliki50401/ ail 0 urjettened - judgmottir Of section, the court shall sustain such with- tense or foreign policy. holding unless, following its in camera ex- Therefdre, while I am anxious to corn- amination, it finds the withholding is with- pliment the chief sponsor Of S. 2543 on out a reasonable basis under such criteria. the fine work that has been done and to praise the Judiciary Committee for its Mr. KENNEDY. I will highlight these sincere commitment in improving the particular lines: "a court may review a working of the Freedom of Information contested document in camera if it is Act. I must respectfully move to strike unable to resolve the matter on the basis these 17 offensive and unnecessary lines of affidavits:" It continues as follows: and to make the bill what we all want "In conjunction with its in camera ex- it to be?a restatement of congressional animation, the court may consider fur- commitment to an open, democratic ..ther argument." clay. There was some suggestion that we I withhold the remainder, of my time. require courts to entertain ex parte argu- Mr. KENNEDY. Mr. President, at the ment from the Government in every outset I want to say how much I have en- case, but we did succeed in making it joyed joining with the distinguished permissive. Senator from Maine, as well as the dis- Our language would add a presumption tinguished Senator from North Carolina, during the course of our joint hearings such a matter falls within the statute on the Freedom of Information Act and or an Executive order referred to in sub- section (b) (1) of this section, the court shall sustain that provision unless, fol- lowing its in camera examination, it finds the withholding is without a reasonable basis under, such criteria. I want to indicate to the Senator from Maine that although others may read it differently, I do not interpret that hm- guage as indicating a very strong pre- sumption. I cannot understand why it concerns the Senator from Maine, al- though, as I said before, I intend to sup- port the amendment. I do .want the legis- lative history to be clear that I, at least, do not think it presents a very strong presumption in favor of an administra- tive agency. But I understand what the Senator is attempting to do. I think it would strengthen the legislation. - I should like to ask the Senator from Maine, some specific questions. His amendment in no way attempts to re- committee and full committee process ofquire an m camera inspection, but I un- markup, this language In issue was 'derstand it still leaves that as discre- added tionary in each of these cases. Is this I want to state at the outset that I -right? ' think the amendment of the Senator Mr: MUM= The Senator is correct. from Maine is responsible and reason- Mr. KENNEDY. Furthermore, the Sen- ator's amendment allows the court to question the propriety of classification only under the standards set up in a statute or by executive order. Is that cor- rect? Mr. MUSKIE. The Senator is correct. Mr. KENNEDY. I think that is im- portant. This is an important, useful amend- ment, but it does not seek to alter the classification standards or procedures presently applicable. We do add a slight presumption, which the Senator recognizes from reading the language. It concerns him because it is a presumption. As the author of the bill, I do not want to acknowledge a very strong presumption. At least, that is my inter- pretation. Does the Senator believe there ought to be any special exemption for the Na- tional Security Administration, NSA, or the Department of Defense in. this part of the bill itself? Mr. MUSKIE. As the Senator proba- bly knows, we are holding hearings at this time on proposals to establish clas- sification control systems and new cri- to the agency head's declaration that if Government secrecy last year. The kind of joint hearings we had provided an ad- ditional dimension and insight into our better understanding the opportuni- ties as well as the problems of the Free- dom of Information Act. Many of the amendments that are in- cluded in the legislation today were de- veloped out of and during the course of those hearings, and I want to commend the distinguished Senator. from Maine for focusing attention on the particular provision of the legislation that we are considering here this afternoon. I know of his special interest and expertise in this area. This area was a matter of considerable interest to the members of the commit- tee. As a matter of fact, when I initially Introduced the bill last year, it did not include the language which the distin- guished Senator from Maine desires to strike. But during the course of the sub- able and I intend to support it. I would like to ask the Senator from Maine just a few questions. The clause which will be excluded by the Senator from Maine's amendment deals with the procedures of how classified documents will be considered in camera. I ask'unanimous consent that the whole section to be struck be included at this point in the RECORD. There being.-no objection, the extract was ordered to be printed in the RECORD, as follows: "(III In determining whether a document is in fact specifically required by an Execu- tive order or statute to be kept secret in the interest of national defense or foreign policy, a court may review the contested document In camera. if it is unable to resolve the mat- ter on the basis of affidavits and other in- formation submitted by the parties. In con- junction with its in camera examination, the court may consider further argument, or an ex parte showing by the Government, In explanation of the withholding. If there has been flied in the record an affidavit by the head of the agency certifying that he has personally examined the documents withheld and has determined alter such examination In ay el (J, 11i4 teria for classifications. Out of those eni.f. nu -&ered does not touch i .6 tttie glsomething: but the 4a that. Mr. President, will the Senator from Massachusetts yield further to me? Mr. KENNEDY. I yield. Mr. MUSKIE. The Senator, I think, has described the sense of my amend- ment very accurately and precisely. I have no real quarrel with the procedures which my amendment would remove from the statute. The principal quarrel is with the last 3 lines, as the Senator from Massachusetts has correctly pointed out. The weight of that presumption has to be analyzed in the light of the classi- fication system. As the Senator knows, fully as well as I do, my amendment re- lates to the reluctance to declassify. All the momentum in the existing classi- fication system is on the side of secrecy and all the incentives are in favor, of classification. All of that experience with the classi- fication system goes back a quarter of a century or more. It seems to me the lan- guage in the bill, read in that context, would reinforce the same presumptive effect. The effect would be different with different judges. I must say that different members of the committee and of the Senate, I think, would give it a different effect if we started from scratch, with a new law that would define the presuniptions dealing with classification. If we were to start from scratch and have a new law with the presumption of law in that way, I think the presumption would be different from that operating with the existing classification system. So the inevitable momentum that the bill's language gives supports the class- ifier and the classification in these words: The court shall sustain such withholding unless it finds such withholding is without a reasonable basis. I should think that a judge might feel that anyone who has the responsibility at high levels to classify would not class- ify without a basis that was reasonable to him. If he is a responsible man, we have to accept his basis, whether or not some- one else would agree. He would make an Independent judgment. That basis is reasonable. That does not 'say that his basis is the same basis as my reason or the basis of someone else's, presumably that of the classifier. That language must have a purpose, and putting that language into the bill has a purpose. The purpose clearly is to give greater weight to the testimony which the judge receives from the head of the agency than the evidence received from any other source and greater than the weight of his own judgment. That is how I read that language. I think that in the context of the momen- tum of the experience which has been generated under the classification sys- tem, we ought to be very reluctant and careful in adopting this kind of language. Mr. BAYI-1. Mr. President, I ask Approved For Release 2001/08/30: CIA-RDP75600380R000600190008-2 ilday 30, ' 1974 CONGRESSIONAL REt*9? SENATE S 9321 unanimous consent that gaweadePaster catentalng hie very _w_orkhea_ta. he nab- gerous to aur _ lfarewe egereriatliattal.wel- of my staff be PrgiVelb.Faftiia %IS/Matt? 1/08/30 : C -RDP7-53100380R.L i-,q_juat tow - the floor during-the debate. I think the bill itself, as worked out the eases evade opan end sey 1.,A;leahis The PRESIDING OFFICatt Without by the committee, has struck a fair bal- iseada_bealeatureozia_ along with all the objection. it Is so ordered. - , 221ce that meets the requirements of law otenerelesteaany," some ca which . is itsu- Mr. BAYS. Will the Senator Tema and, at the same time, gives a reasonable ally from biased sourc7E-,-natirtee of in- me 1 minute under the bill? .2 I ameeel, of protection. - terest and not give are/ consiffeT-ation Mr. KENNEDY. Mr- President, 1 yields The Senator from Maine raised e rnint here any more- than ilLSZ, ordinary can- to the Senator twin Indiana. - 7 of why give aTtaleanoresezeiglitelagen to 1.1-aerat14n ato-tiaa.-tanitieeraion Mr. BAY1L Mr. President. I will yield/ the headascencv with reference ta uheaeneeata at the head of the agency. to the &meter from Mississippi shortly4 these matter. It is for the very reason So I have to rest this thing with the I simply want to say that I find great; the a?..ere...X.e.-11111ae_p_a placed that person in Senate. The-committee has worked on. comfort in the position of -the Senatort gha_Ignes2f..1,1aftt agency endiven him all it and has come up with something that, from Maine. - . -.-..a a - ponsibility and power th I take it, is practical to live with and, It seems to riii that in it tree society, t entire o ce. e is the only one who at the same, time largely gives to the certainly in the light of everything thai is peenutted to file such an affidavit here, complainants what they might wish in , , , _ we have seen-occur over the past few as I imderstan.,??asee---, this case. a ? - a- ?-? - _ , months and years, we ought to -revise -.I.' lbcus now primarily ethe So until we just strike dovrri this mat- - the present -position which seems to be CTA. with th7 proposition thhte ter that, the committee has worked so that there is a-right to mark something ave t?ve a 'TA in world affairs; Njtard on and has balanced off, let us take classified until-it is proved not to be in ?ist m t have one, ana time lass second thought, and I believe we . . - the public interest. In a free society in proven velar.. _ . . - formation ought to be regarded as a zie So in the matter of certain informs" e PRESIDING OPPleekete. The tame e Senator has expired. ' ter of pubbic? interest and Public ka tion being classified, the average judge-' 0 edge unless W-Can be proven and with all due def4'rence to them per- STENNIS. I thought he he( should be secret ' sonally and I had the honor at one yield d to me and I will then fireea Mr. MrJSKIE. Mr. President, I t ank - time of being a judge of a trial court my- th the Senator. laanszneade ft a the Senator from Inana; di In pr self---is lust Just short of knowledge and iri- r- rks here yet about the Dearman a AA- ? a :. this amendment, I am not Eakin thuformation., on a lot of diffsrent sUbjent courts to disregard the experlase e the matters 'list as a Senator is on a ma:natters and there are many o'I' them, that are of ecnial ininortance Pentagon, the CM, or the State Dep a; those cf the CIA. When I leave this .Rather, I am saying that I would as so e ' dge ' floor I ant going down here now for a stmee and wish that the judges give su woilld-wan to hear and wouldee hearing with respect to -tiv: gentleman- '. '"' who is nominated ta . be- the Chief of -. expert testimony considerable w give consideration to thaelaaWils Naval Operations,the highest ranking However, in adetition; I would also t n+ e lanag?i-aade-11-1-2-h-iatt-e?-21-"52:112"--g9-.' officer in the -Navy. Next week we are the judges to be free to consult stets eix- ce_seeenter rin niaieetinn t.?\ going to have a hearing for the Chair- Pests in TralitarY affairs as the Sena or t....ainendinent. It is a kind of warning: lk nian of the Joint Chiefs, the highest from Mississippi (Mr. Serennal, or to theinean or nee agencye Is - - -- -- nking officer, military officer; in the perts on international relations, such tile-c-Mly. hE-person w o can file an affidavit ole Government. In addition to that the Senator from Arkansas (Mr. with. a court within a vast worride sc have the civilian officers over there, amane), Or other experts, and eve tAlejatii211 Silr:a as the...CIA. It has to be testimony equal weight. Their capethe head. of the agency. If he files an . of Tette esteem. of erealaeonape- should also be given considerable weight.. affidavit ifelie ta..1:e ,e a position on the / Three caliber men donot carelezlyefile I do not see why the head of a depart- laaailleateah- r-cf--- docarcieht-that is Affidavits. plat ismv .uo-ints anti salawrot_ ment should be able to vgalk into a judge's c ray not, just eanother of r U.e. jamposal vcrniftd put thpir hanat_and chamber, knowing that his testimony is ts ? - their nfrielsit el:mitt/et_ at stake and at against that of any othereexpert- Neel.. is son lane. Thress are not carelessly - weighs- more than any other on a one- , . , :...,117.Si. th Judge is still the master of the situation, (lau41. here_in g ipomentelet tie ataYeareranaain for-one basis. He has the addition lamas pro . weight that the exclusive judgment is ere the pa Ind of lust larnshinzethercLeside given to him. He has all or that bela he is still running his own court. as we him. -. ? vrith the lew of reason as this committee use that term.. He is still free to reach a Why should-he be given a statutory conclusion of his own. Bat.alsjs is a raild 1-1"N-ctre(1 it out, - ' - presumption in. addition if he cannot guideline, as the Senator from Massa- I thank the Senator again for Yielding make his case on its merits. He is hi a chusetts suggests. I violent pre- to me. better positianeto do that than. aeyone seenation. It is not a wall b aro d Mr. S Mr. President, just a ea-, . else. , _ - this_ head of agency and his testimony. n minute of" of response.-- , -a-- - Then, if he cannot make a case on itsf is a mild presumption in favor of -ES- May I say to the distinguished Senator- merits, / say he is not entitled to a pre-f tE".7"The .11-76EF, cliir still v-Thirn- it from Mississippi that / hardly regard my - sumption.. e ' . I all and unless there is found a reason amendment as throwing the doors wale We ought not to classify informationi that satisfies the judge-and you have open to inasPonsible disclosure of Gov- by presumptions, but only on the basil got to satisfy this judge-be is not-going- ernment sehaants. But on the question as ? of merit. And only the head of an agen0 to stop and back off. because it might- to whether or not the weight Pi the be- involved can. make that case. And if he have satisfied the head of the agency. reaneracy ai Government is nn 1:,de cannot make It... then. he ought to hese it The judge has all of this other testimony of secrecy or openness, let me give you a and not find it possible to get sustained before him, and he is, going to have to few statistics. At the. CIA there ei_agp,nly only through the support of a statut be convinced himself in view of all other, OP falt-1:11/11. secrecy reviewers tor 878 presumption.' - - ? ' - testimony or he is going to rule in favor atitejegal classing/see. - _ Mr. HRIISICEL,Mr. President, I yield of reviewing , the: classified documents In the third quarter of 1973 in -the- minutes in. opposition to the a.menchn now. . ? CIA, 1,350 documents were classified top to the a - .041 Onl MIS?SiSSIPPL I tell you this is a serious matter, Mem- secret, and that has climbed until, dur- Mr. President, I ee hers of -nit Senate. I do not lean toward Ing the first quarter of this year, the MLR thank the Senator from Nebras to rotect at- number has risen to 3,115. Sepeetee enor- I have, just gone into this matter witlet tens to e classified the same as the rest- mous weight f the bureaucrac is on the In. the last hour, Mr. President, but I ani, ofacanda, 13.3ati have been. at this thing snineafeasexeca. We ave all that here, greatly concerned. with the Sercator-'4 long enough and ma enough subject mat- and now we want to add to that weight, amendment, the amendment of the Sem texsjinjinnw_thfit we-.s. re nirsing-here a presumc ton. Arrayed on, the other a,tor from Maine, and that is not witintlaings_tha.tacanlan- side is a district court judge who treats Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 S 9322 . CONGRESSIONAL Itht...U.ttu 3.LIN A I OU, lilt 4 tieetteene'nseannaetetirrie_r_eenaltsibility, view, a,ncl neither to require the court to an essetatstshocument even if he tvho does not have- tv,......aRe !Gate nomain t.he TieRupsmo vogngtmelftraz-t-c--orz?P) 1-,Liyeaii6fili _Weight,. a Peeeureactite over or capricious. I respectfully submit it is end of the dilemma. a nytitina ,e1ee henhearanovennenyetTther promising a lot more than it will deliver, In other words, if the court finds a testinirs. Thatts what we are because I doubt that judges will do any reasonable basis for the classification, it trying to overcome. Ido not r ard that differently?except judges who want to shall not disclose the document. 9.S-throwing e cloot wide open. do differently?they are human like the The amendment of the senior Sena- -I-Yin happy to yield to the Senator classifiers in reading the information in from Mr. JAVIT -1/Ir. President, I have provision. camera?than they would without the joined nator Musxrs and his other In those circumstances, why put it in? colleagues in his amendment for the fol- Why not put responsibility on the lowing basic reasons: shoulders of the judges, whom we trust I believe that, one, there is no ques- enough to allow to see the material any- . ... tion about the fact thatttleentyleplennove- how? - merit of Government, especially in view For all these reasons, Mr. President, of Ciovernment's exoenence nets ieneam, - the motion to strike is eminently war- Waietrga and many other directions, is ranted, and I hope that the Senate will to_searginnemsnennessnacethatathenbias. support it. In imej_ndgment, in the Senate, should be Mr. HRUSIT.A. Mr. President, I yield towarcleeaoressueenness rather than being myself 5 minutes. toward more closed. , Tb.e PRESIDING 0.EVICER (Mr. Second, we have finally come abreast Heim). The Senator from Nebraska is of the fact of life that it Le not providence recogniz 5 minutes. on Mount Sinai that stamps a document Mr US I rise in opposition to secret or top secret, but a lot of boys end the amendment proposed by the senior girls just like us who have all their own Senator from Maine (Mr. MITSIOE). The hangups and who decide in individual - Freedom of Information Act was en- cases what the document should be acted at the expense of a lot of time and classified as, and very serious eonse- effort. It took several years to process to quences flow to individuals as a result of the point of balancing the several inter- that 'classification, very serious conse- ests contained in it and a sincere bal- quences in the denial of the basic infor- anced result has been attained. ._ motion. upon which the judge releases it There is the right to know on the part to the public. So the bias ought to be for of the public, but there is also the right openness not for closeness. and duty on thelFaTtarra Government Now, one would say this is a close ques- Unseemly a 0 5 tic steps as may tion normally because of this tension as be necessary to preserve the. national in- between the right of the public to know te and the necessity of Government in given This amendment would substantially cases to have secrecy. But the basic ques- alter that balance which is presently tion has been decided by the committee, contained in the Freedom of Informa- as by us, who are the movers of the tion Act. ItapL_Ild _endateghertithe passage amendment, that, is, that a judge in an_sel 1st proval ojpa w, camera should have the right to inspect in my con-slelerecl sucleonent. It should be this material. Having done that, and that a,nted on. hr we act on it at all, not in Is the basic question, why put a ball and connection with a is' where virtual chain on the ankle of the deciding au- unanimity pri In tile-Fatarary thority? I cannot see that the balance of Crolifinitiee and reported unanimously wisdom in government should move in without any objection to fhe Senate. that direction, having decided that the ent, I oppose the amend- apply even for the lawyer. So, let me pose judge may see-it. We should give him the merit offered by the Senator from Maine. an example. Suppose that the Freedom fr Peri om to deterrnineall I believe that the amendment is uneVork- _of Information Act, together with this tne_eirmunstance as_thesunnoiretbetisreen able and certainly is unwise. amendment, was on the books in the the ri h to. know n.a, the At the outset, it is imperative to realize 1940's. And fineetlegetteneepeeen.thateseern? e- necesesityte, lersaecrecy?claimed necessity what is and what is not at issue here. Is one wrote ernrnent requestingin, In- fer secrecy?tieLmennire_should not be re- the crux of the issue whether the courts ormation about the Manna einia i5roject. stricied by ground fiTi und should be able to review classified- docu- Noinhie 19,1 t- his anieird-ralit, rules dealing with: Itasientuatiethe merits camera? No. Under both the bill would be able to examin theenrojnet's baTaiTEFTof responsibility_and the balance and the amendment, the judge can re- documen s in camera and decida-for of the national interestas it relates to a view the documents in camera. Thus, hitniEelf Whether tfie cl5iSTacatinnewas given em or Info . - S. 2543, as unanimously recommended pr er He woulcrirealize that the dis-- It Is fo . ose reasons, Mr. President. by the Judiciary Committee, establishes clostotoof...Micisarclize because I think, having made that basic a means to question an executive dee!- naWmal def other hand, decision which now has been made by sion to stamp a classification on the he co d also reasonetehatntheepliblic the sponsors of the bill, by the sponsors document. - ? shlarirave some informaelion so the t it of the amendment, and by the sponsors e Mr. Presiden the evisii=Olf tow mu - _arch of the House bill I see no case for fur- sole uestion of whe er uld was cos mg an what its ob'ectiv_es.were. ther restricting that authority and ham- e a so ia s ard to guide. the judge's stringing it, once it has been given. dehetelentin his matter pertaining to the I find special support for that pro- first exemption. S. 2543 provitrrnrch a Position in the fact that the committee standard. . itself?incidentally, I personally think- Under the bill, a judge shall sustain they are i_p_mnsilag..a.lot....tuar ey ' the agency's decision to keep the docu- can delLyer terrne of derision* of the ment confidence .unless he finds the coerts but the committee itself says that withholding is "without a reasonable this standard of review does not allow the court to substitute its judgment for that of the agency as under a de novo re- wo 1-17sii is staked -to give at weight; that finds the determination hereo ar ca o is the or tor from Maine would eliminate this "reasonable basis" standard and put nothing in its place. It does not substi- tute any standard in its place. How is the judge to be guided in his decision whether a document is properly classie fled? In the absence of a specified stand- ard. I must assume that the standard that obtains is the one that applies to all the other exemptions. Let me take the sixth exemption as an example. That exemption allows an agency to withhold records if it deter- mines that disclosure would constitute an unwarranted invasion of privacy. In determining whether the invasion is un- warranted, the court attempts to ascer- tain the extent of the invasion and then balances that against the requester's and the public's need for that information. The burden of proving that the extent of the Invasion outweighs the countervail- ing interests is on the Government. How would this standard then apply with respect to exemption 1?the ex- emption. that allows the Government to miantain classified documents in confi- dence. It would allow the judge to bal- ance what he perceives to be the public interest in. disclosing the information against Government's, which is to say the people's, judgment that disclosure will jeopardize our foreign relations and national defense. Stated quite simply, the amendment before us purports to al- low a judge to release a classified docu- ment if he believes that the document should be in the public domain even if there exists a reasonable basis for the classification. I realize that standards of proof are difficult concepts to understand and 'I The judge co go on o reason that the public should be informed of the cataclysmic damage that could be done by an atomic weapon upon delivery so that the public could make a moral judg- ment as to whether such a weapon should ever be used. Balancing these concerns, as the eirusielesamendinsentawneld basis." we could turn that around. Mr. the judge could find the public...interest in ; tit t ? c4.1-tpr it cll.'s-closure-To outweigh th_,,e_natignal de- Presiden1 d be_py(_>_R.eL.fsw'uc_jssj.2, c.E.L.E1_11,2ad fense implications. Approved For Release 2001/08/30 : CIA-RDF'75B00380R000600180008-2 ?Mr. Presidentesuch a standard of proof is workable for the other exemptions. If a judge is wrongAipprosevedifelnlititerhea emption 6?the privacy exemptione-the harm is confined. Only one person is hi- jured. But if a judge is_witatteg_. tal_case inivipgibe first exenn?Rion, the damage co epee ? nu national defense oirofeign relat ons could com- promisedePutein_lennareLY is not ihstealle person but a nation and perhansIteeellees. Mr. President, what then is the crux of the issue? Is it a question Whether the judge (Inn review the classified documents ? In camera? No. Under both the bill and the amendment the judge can review the document in camera. Instead, the sole ? question is whether there should be a standard to guide the judge's ciecision in this matter. - 'ta?illinating a v standard_oto ide 's decision in this aree;-the pro- -posed amendment would put the courts in the position of making political ludg- mankelia...the 'tied of foreigia_affaira and national defense. Yet..theacantreabalze lit- ? aact if any:7'. '31-ardeneelttittesea.flalds. Xii- de ? - themselves h vedeclared that they do not ye the capacity-or ex- pertise tn_make these kinds of juAgments. ? In Epstein v.Resor. 421 F. 2d 930- (9th Cir. 1970), certa denied, 398 -U.S. 965 (1970). the - Ccatt of Appeahr /or the ? Ninth Circuit 'dated that the judiciary ' has neither the-and I quote?a titude, facilities_ nor responsibility" to_ens. e lifjc ?ti ? :e a.gats as to what? is desir- ? the intet of natio defense ? andatareiga-policy 1Siiprerne Court took the same view in C. cre S. Air Lines V. Waterman Corp.,333 U.S. 103, 111 (1948). A "Develonments in the Law Note on N "ationalaiecuritv" by the HarvalThave Review reaches the same conilusion. In dWifssing the role of the courts in re- viewing classification decisions, it states that? - ? ? There are llinitato the scope of review that the courts aresturipetent to egirciel??A;?'' And concludes that? - A court would-1:dive difficulty determining when the public interest In disclosure was sufficient to require the Government to di- vulge information notwithstanding a sub- antial national security interest in secrecy. 85 Harvard Law Review 1130, 1225-26 (1912). There is also another reason why the judges should not os -rna-Kmgatical judgments on forate.polid national delenseeltuareleretasunvince a colift that natIonalstetemeinterests outweijElny interests_in public diaaraestirt, tairtinv- ernmerit agencies may hafEarralTeTose entire sensitive information to ,sfiow how sensitaxe-the-docuralY ahereeFor example, the fact that Informa- tionlLeeni the may no rooMpiom the face o e document. The agency required to divuireThibre informations to s s. that the dnent is relevant to secret ongoing neafiarols with a foreign eIation. Thus, ti cY may be en ? ? al - ? ?? 1st it must divulge more sensitive informa- tion to protect the information requested. Mr. President, I believe we all recognize that there have been some abuses in the classification system. But we should also-recognize that new classification pro- should not be able to divulge the docu- cedures have recently been promulgated ra ?iris as simpli as that. Zettli/00/3111dP01144RDR5BOOMORO GO1609084nator XENN my, the abuses. In a progress report just Issued author of this bill, has worked 'with me by the Interagency Classification Review and other members of the Senate Judi- Committee, the body created to monitor Mary Committee in developing a bill that the classification system, the following recognizes and balances all of the inter- progress was documented: ? ests. The hill was reported by the corn- First. The total number of authorized mittee without a dissent. I fear that this classifiers wit:ain all departments has amendment will thwart the bipartisan been reduced by '73 percent since the and cooperative efforts of the committee. order took effect; _. But more than that, it is unworkable and Second. The National Archives and extremely unwise. Records Service has declassified over 50 If my colleagues believe that a judge million pages of records since1972; ?should not be granted the power to d' Thirde The Department of Defense close a- cies shledadocument upon alone achieved a 25-percent reduction in b reasonatee basis forthe claeilh' its "Top Secret" inventory during 1973: -they should vote- agairket _the i)rop Fourth.- The majority of requests, 63 amendment. I intend to. - percent; or the declassification ? of Under the -amendment offered by the documents has been granted either Senator from Maine and under-the way or in part. , the bill as now drafted the judge can re- This last point deserveseeme elabora- . view documents in camera. The sole tion. Under the Executive Order, a person - question is whether there should be a may request review of classified docu- standard to guide the judge's decision on ments ir order to obtain access ?to the this matter. , records. If :the , documents are over a ?It is not a beal -and chain, Mr. Presi- certain age, the agency must review the ?dent, because he can decide for himself documents. This Is usually a two-step whether there is a reasonable basis for process:- the operating division first re- views the document to see if it is properly classified. If it determines the classifica- tion- is appropriate, the requester may then appeal to the review board in the be for the circuit court to decide whether agency, If he is not successful there, he there is a reasonable basis for that classi- may, , appeal outside the-agency to 'the fication. -Ido not know?perhaps I ea,1 Interagency Classification--Review Com- -: pose that question to the distinguished mittee. Re thus has three opportunities to' Senator from Maine, whether there is an obtain the documents declassified before intent to foreclose an appeal under his amendment. - --- Mr. MUSKIE. There is not, of course, any intention to foreclose. In addition. cielen lear all bodies tbat the there is nc- presumption on the part of classification is proper should put the the Senator from Maine that, absent mater to rest. Nevertheless, under S. the language my amendment would 2543 we will also permit- the courts to , strike?judges would always be unrea- review the documents in camera to judge sonable. What the Senator seeks to tell whether the classification is proper. Is it us is that his language, the language I too much to ask that a--standard be ire- have described, was -inserted in the bill posed ,toa guide the court's -decision -so : because otherwiie `judgswOuldT be that a document will not be divulged to - unreasonable in evaluating the basis for all the world if there is a reasonable the classification of documents; and that basis for the classification? I think not. the only way tar voidthat unreasonable Mr. President, the question whether a tendency on the part of district court document is properly classified is a polit- judges is to create a presumptioa on the 'cal judgment. This judgment must take part of the classifier. I listened to the Senator's argument closely, arid that seems to be the thrust of the argument: Mr. HRITSIKA. Mr. President, the At- torney General has written a letter. the text of which is on the desk of each Sera tor, and I ask unanimous consent ti;, it be printed in the RECORD. - There being no objection, the letter was ordered to be printed he the RECORD, a.s follows: ? ? opmos or TELE ATTORNEY- GENERAL, ? Washington, D.C., May 29,- 1974:- lion.- Roman- L."`HRIISEA, = - U.S. Senate, %. Washington, ? ? - , DEAR SENATOR nuirsace: The Department of Justice appreciates your Interest in S. 2543, a bill to amend the Freedom of Information the classification. Under the bill as pres- ently drafted :the judge is governed by the' existence of st. reasonable basis for the classification and on appeal-it would he files Suit under the Freedcam of In-?, formation Act. - - Mr. Presideeit in my own view, a 'de- cognizance of a number of factors, such as negotiations with other countries, the timeliness of the moment, the- disclosure of other information. Who is in a better position to make this judgment?the Sec- retary of State or a district judge? Should we permit a judge to balance what he perceives to be the interests of the public n disclosure against the interests of the public in maintaining the document in confidence? I say, most emphatically, no. I believe the point must be stressed that this standard does not equip the courts with a mere rubber stamp. The courts are granted the authority to review the documents in camera. And the courts can overturn a classification decision in a case involving a request for the classified documents upon finding that -there is no reasonable basis upon which the classi- fication decision can be predicated. But if there is a reasonable basis for the classificatioTa?a-Fidie would not?a?nd ? You havii inquired about.- a proposed amendment to the bill's provision on judicial review" of documents withheld in the inter- est of national defense or foreign policy. This uggested a:mendment would alter the pro- - ' ? Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 S932 CONGRESSIONAL RECORD ? SENATE line 15, of S. 264.I. 17 fa Unagigibi visibus oji page 10, documents to standards of judicial review that are the same or similar to standards applicable to ordinary government records. As the courts themselves have recoized, the conduct of defense and fore ? ? ?lie7 is specially entrusted to the - eatteiyeent. the and this responsibility includes the pr,3ectiou of infpinuktiory to the successful_ eonduct--af,-.-tb.ese___adiYnies. For this reason the constitutionality of the prop;:-,sed ani;Edraent is in serious- question. 'Ip tilie7.2.1tef2, onange wouTa call for a_de novo review by the court, and upilea_pg_p_rocif_to the government. Sucn a ch. e would klace a heavy burden on the.en tiVebranen_ta_relie& Cl pagified __materiAl - aLtale judicial bransl- par:07 .properly evaluate. For these reasons the Department of Jus- tice is opposed to an amendment of this nature. Sincerely, WILZIAIK B. SAXSZ, Attorney Gener Mr. HRUSE.A. The letter says, among other things the following: As the courts themselves have recognized, the conduct of defense and foreign policy is specially entrusted to the Executive by the Constitution, and this responsibility includes the protection of information necessary to the successful conduct of these activities. For this reason the constitutionality of the proposed amendment is in serious question. In, addition the suggested change would call for a de novo review by the court, and shift the burden of proof to the government. Such a change would place a heavy burden on the executive branch to reveal classified material which the judicial branch Is unpre- pared, to properly evaluate. Mr. MUSE, I gather that in offering that letter from Mr. Saxbe, the Senator is suggesting another point: If, for exam- ple, the bill is amended by my amend- ment and is passed and enacted into law and its constitutionality is challenged, would it be the Senator's view that Mr. Saxbe's view on the subject of constitu- tionality ought to be given a presumption over that of any other opinion that the court would consider? Mr. HRUSICA. The language in the bill is not intended to serve as the basis for the creation of a presumption. That is not its intent at all, and I do not think that is its meaning, Mr. MUSIG:E. What is its intent, if it Is not a presumption? If it is not intended to give the classifier's judgment a weight exceeding that of any other witness, what is it intended to do? Mr. HRI7SICA. Let me suggest this. The question of whether a document is prop- erly classified is a political judgment. There is no question about it. It has to be that, when it comes to national security and foreign policy. This judgment must take cognizance of a number of factors, such as negotia- tions with other countries, the timeliness of the moment, the disclosure of other information., and so forth. Who is in a better position to make this judgment? the Secretary of State or a district judge? That is what it comes down to. Should we permit a judge to balance what he perceives, with his relatively parochial interests, to be the interests of the public, in disclosure against the interests of the public, in ?maintaining. agme;40ePay3F;fgeeiblAo ? I ? It is a problem of such scope and with so many ramifications that it belongs, as the Senator from Mississippi has said, in the hands and in the minds and in the decisions of those who are versed in that field and who have the expertise for it That is the reason for the language in the bill as it exists?to furnish the judge, when he is called upon to pro- nounce judgment, with the standard and the requirement that if he finds there is a reasonable basis for the classification, he must sustain that classification. The point should be stressed that this standard does not equip the courts with a mere rubberstamp. They are granted the right and the authority to review the documents in camera. They can over- turn a classification decision in a case involving a request for the classified documents upon finding that there is no reasonable basis upon which the clas- sification be predicated. It seems to me that we are tampering here with a highly important subject. The decision was deliberately made some years ago, when the parent act was passed, and we will be interfering with that political balance and a matter of vital importance if this amendment is May 30, 19741 may agree with language, unless it s stricken, he is handcuffed, is he not? Mr. MUSICIE. I think the Senator has described the effect of the amendment as I understand it. Mr. HART. I would not be comfort-' able with that kind of restriction. Mr. B:RUSE,A. Certainly, the judge has the right to say that the blinking of an eye is, as a defense, unreasonable. Then that case will go to the circuit court of ' appeals, and I see no harm in that. I trust that the Senator from Michigan does not, either. But it seems to me that ' the door is open by this amendment and i the language is plain and simple: lithe basis is considered unreasonable and the judge so finds, then the Information must be disclosed. Mr. MUSR17 I yield myself 1 minute, and then I will yield to the distinguished o Senator from Florida. s The difficulty with the Senator's re- sponse is simply this. The Senator mini- mizes the implication that the Senator from Michigan and the Senator from Maine draw from his language, but then. in the Senator's prepared remarks,. in which he justifies his language, he justi- fies it on the ground that the Director of the CIA is the only man who knows. The adopted. Senator clearly wants ta give his knowl- I hope the Senate will reject the edge, his position, and his judgment a amendment. _Mr. HART. Mr. President, "will the Senator yield me a couple of minutes? Mr. MUSKIE. I yield. Mr. HART. I should like to ask a ques- tion of the Senator from Maine. I have listened to the exchange he has had with the Senator from Nebraska; and, as I the classifier's judgment and, certificate that inhibits the disclosure of informa- understande the bill, as reported by the committee, says that in the matter of a tion that ought to be disclosed or it does security document or file, if the head of not. It cannot. do both. I think / read it the agency?let us say the Secretary of fcroorrecmtliychiwghaennhIasrereadadititas the Senator _ Defense?certifies to the court that he m has examined the document and has de- How much time would the distins termined that it should be withheld, the guished Senator front Florida like? Mr. CHILES. Four minutes. Mr. MUSICE. I yield 4 minutes to the distinguished Senator from Florida. The PRESIDING OFFICER. The Sen- ator from Florida Is recognized. Mr. cHmEs. Mr. President, I support Mr. HART. I have never been con- the amendment offered by the Senator fronted with the problem of resolving from Maine (Mr. Mumtaz), when the a national security file, but some of us, Freedom of Information Act was enacted at least years ago, were confronted with, over 7 years ago, it was the congressional the homely experience of trying an acs intent that from that time forward the cident case. Is there not a parallel here? general rule to be observed by all bureau- A plaintiff puts on one eminent physi- crats was that disclosure of information clan who describes why the blinking eye was the norm and withholding the excep- is the result of the accident, and the tion. Recognizing that the ideal is not defendant puts on 10 very eminent physi- often observed, the Federal district court clans who say that is nonsense, that the was given jurisdiction to litigate dif- blinking eye is congenital. That court ferences originating from requests. can make a decision, choosing which The past 7 years' experience with the among the 11 opinions seems most per- act has indicated .that the fears of suasive. But if accident cases were tried bureaucratic obstruction were in large under a statute such as this committee part well founded and that but for firm bill provides, would not the court be guidance by the courts in the more than compelled to agree with the plaintiff 20e cases litigated under the act, the because there is a reasonable presump- public's right to know would still be little tion supporting the blinking eye? more than a wish. If the Secretary of Defense files a cer- The bill before us today le the result =este, that certificate is a reasonable of extensive hearings which pointed out basis: but nye prior Secretaries of De- a number of procedural shortcomings in fense and the CIA Director?and name administration of the Freedom of Inf or- your favorite expert?all say that Is mation Act I am satisfied that many of weight far out of proportion te the Sen- ator's retponse to the question raised by the distinguished Senator from Michi- gan. - I say to ..the Senator that he cannot have it both ways. Either this amend- ment has the effect of giving a weight to court must sustain that finding and cer- tification, unless the court finds the with- holding is without a reasonable basis. Mr. MIJSKIE. In other words, he has to find that the Secretary of Defense was unreasonable. Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974 CONGRESSIONAL RECORD -- SENATE S 9325 the problems wilIVPrre9cif9eCA F,Prhis oi.u. Mr. lagilaai'l'. bar. President, in my memded in the conimittee amendment to Relg,aSe 20_0 Q.: CIA-RDIP75B0038ORQOQ600190008-2 However, I am concerned by the language opening remarks I mentioned some words the Freedom of Information Act would presently fotmd in a section of the bill of the President of the United States add some presumption to their conclu- which, in toy-estimation, would reverse when he issued his new Executive order Sion. That presumption is what the Sen- the central thrust of the Freedom of on classification. This concern which has ator from Maine is attempting to erase. reformation Act. . . been expressed by the Senator from Flor- And these excerpts illustrate his point. As the result of a Supreme Court deci- Ida, the Senator from Maine, and the I think the amendment makes sense, sion which adopted an interpretation of Senator from Michigan is very real. This and I am extremely hopeful that this the language In section (b) (I) - of the is what the President of the United States body will support the Senator from original act, information claimed to be said in talking about classification, and Maine. I think it is a responsible ap- classified for security purposes could not it supports the basis for the amendment proach. It is sensitive; as we reviewed be examined by the Federal -courts to of the Senator from Maine:. earlier, in terms of protecting the kinds determine if in fact the classification was - untortunatele-the system of classification ! of classified material, where that pro- proper and valid. Rather, the Supreme which has evolved In the United States has tection is legitimately essential to our Court held that the trial judge must be failed to meet the standards of an open and. security and the national defense. The - satisfied with an affidavit from the head democratic society, allowing too many papers amendment -would reach the kinds of of the department originally classifying to be classified for too long a time. The COO-, abuses we have seen far too often in re- the information which affidavit would trots which have been imposed on classifi-` cation authority have proved unworkable, cent times, attest to 'the propriety of the classilic and classification has frequently served to a- I hope the amendment is agreed to. !' tion. -Thus, the classifier would, in fact, conceal bureaucratic mistakes or to prevent.' Mr. ,IVIUSRTP. Mr. President, I yield be the judge of the classification. This embarrassment to officials, and administra- inyself 2 reirtutes. ?result was patently absurd. Tet,. the cor- tions.. , ,,, .. . ;s1.,... --,L?.. ? -.2 , The PR.I.ISEDING OrraCER. Th e Sen rective language in the .- bill , before lis ; ator from Maine is recognized. :1" think-rece/ pisyr-this kind ' of 'lentirrient ' does little to remedy the': situation. hasri Mr. MUSETE..Mr. President, first may triggered the amendment of the Sen- = Rather than allow true judicial review ator I say that if the committee bill prevails, from Mane. n revewng hearings of this material, the present long-nage before I ii before I would him to see something that rain- the Committee on Arnaed Services ' once again attempts to hold the view of imizes the question of presumption, but ailo de g with the 'transmittal of docu- the department head by stating that the I am afraid to raise the issue because, in meats from the National Security Council court must accept his affidavit unless it the proper perspective, we have to de- to ?the Chairman of the Joint Chiefs of . is found to be unreasonable_ While seem- scribe the situation as it is. Staff, I find the following on page 4 of ingly, a step forward, this liniruage ac- those hea ?, ?,,. Then, Mr. President, I Would 'like- to rings - part 2. - --? .s, tually reverses. the genera/ ,rule of the , .s ? - - - - ' -: Th do any ng make one technical point with respect, to , e Cn.raessaar. / not know of thi - Freedom of Information Act which puts - national the letter to Senator Hausae by . the now that really is security. We have - the burden at proof upon the Govern- Attorney Cengal., William Saxbe, which. not been able to find out anything. But when ' ment to establish the basis for 3krithr we get into it it will be a matter of judgment was put in the -Raccaus earlier. The At- - - holding.-, " ..., . , 1- _ . ' and, so forth 7, :, " - '[. - , - ? ' - " 7, tome_ y_General's letter reads: If the present .language in (b) (4) (B) Senator RUGIPr'S:-, Whitk..14, to, make that -' ' In addition. the suggested 'change would (ID 13 allowed, to stand, the burden of Judgments ? - - . call for de novo review by a court and shift. ?. , proof will hi effect be shifted away from The CHA/RETA:g. The committee I am not the burden to the government. the Government, and -placed with the trying to overrule anyone as a member of this ? - courts. - rs.--?,. committee, you know that, but it is all r I wish to correct that Section (a) c' This - This is a situation which must not be _ for you to raise the point. . the Freedom of Information Act provide:, allowed to stand Gentlemen,- anyone else want to 'say any ,' that in court cases "the burden is on th- . I do not argue that an _ affidavit or other thing?' -? ,- ? -, ? ". ?'.4- - - -, ' ? -- - agency t...0 fustaln Its action." That is a suliMiSS i on from the Senattii'SYMINGTON. Last surruner when the . shifting of the burden. The Freedom Oi . head of an agency slmuld be disregarded. - sweels/- prosecutor sent us some papers taken , information Ant imposes this burden fox : Ork the contrary_ ,_. I .would hope hat the out of the Dean file, in Alexandria, and whichif:-^ a, we raidreason: e Th a t reason is ' til Court, in its camera examination, con? , -badialot to dO-witlx CIA and military matters,''., eight f tbe Fe tested documents, would call upon what- they were sent here and also sent to the Ervin o deral bureaucracy. ever expertise It found necessary. committee. Hastily everyone wanted to see us which has made it alniost impossible for However, te:raise the opinion of one at once, the State Department, the C/A, FBI, US to come to Stipa with secrecy control person, especially an interestetion d party, A. Anybody I left out, Mr. Braswell? ,, and limit the classification process. to that of a rebuttable presunap. ,. Mr. 'BEASWET.S.. NSA, ./. think, : - - ' .. I withheld the remainder of my time. is to destroy the possibility of ad wits Senator Srasnicrow. Yes, and they an said The PRESIDING OFFICER., who these papers train the standpoint of national 'yields time/ judicial oversight, which is so iiecessery , for the Freedom-Of Informatian Act to ' security must-situ otwbeuttilized by d the Water- Mr. MUSE. Mr. President, I am -1-tmetion- - -.:,..._';-?...hi'c..--' :,, .-::- .."1..-....'"; I said, the best thing We eat trci do . uldtteistotablei"- haPPY t? Yield- 4 rilhlutee to the dietin- ' I think it really goes against the thrust read the papers Mr. Dean put in his safe gashed Senator from North Carolina of what we are trying to do in amending before- we consider making a decision to re- ? (Mr- ERVE'll- * '',_--.r. President, ' 1-? - I rise in the bill, to again say that the norm is to quest senator E M MT- ERVIN. .rVin not to use them. So we. be to open things up unless a reason can mad the papers. They literally had nothing to 511PPOrt Of this amendnaent. It seems to do, that we could see, with the national secu- .. me that we ought not to have futifielal - be shown to have them closed: .- rity. one of .the staff members said, after we', weight given to agency action, which the ?If, as the :Senator from, Mississippi < had read for 10.or 15 minutes, it looks to nas 7 bill in Its present:form certainly would - 'ssold- there Is" Why aiv judges as if this- is more a case of national ember- 1, dn - - , ? , ...,.? ' '.._- .-. going to be so unreasonable? We say that rassnient than national security. In ray opin- - ? . - - ': -zz' four-star generals or ? admirals will be - ion. he 'Could not have been more right. " It has always seemed to Inc that all reasonable but arederal district judge is . So having beeh through that syndrome last , judicial questions should be determined going to be unreasonable. I'cannot buy summer, that particular aspect, and because de novo by a court 'when the court Is re- ? . that argument, especially when I See that of all of the various stories that have been " viewing agency action. One of the things general or thatnelsniral has participated getting out, 1 would join, the Senator from", ' which has been. t to inc.astounding ' s''in covering up a-mistake, and the rederal Iowa and hope we make a full report on this during, the time. I have served in the situation, one way or the other because I do Judge sits there without a bias one way or not Senate is tlie reluctance of the executive another. I want him to be able to decide see any national security involved. Ad- departments and agencies to let the miral Moorer said he knew everything being without blinders or 'having to go in one done. So I do not see the national security ? American people know how their Gov- direction. . - ----1-- - -. . , ' -, - .- ' -- angle. - - ' . ..." < ! ernment is operating. I think the Amer- I think we would be :much' better off The Cmam. I "have already told you ican people are entitled to know how with this amendment. I urge the adop- twice that I have not,run across anything yet those who are entrusted with great goy-. - tion of the amendment. 7 ?- - that. Is national security.. ., r ..-:-, - ' - ' ernmental power conduct themselves. - Mr. KENNEDY. Mr. president, I yield Here, supposedly the most sensitive- - Several years ago the Subcommittee on myself 5 minutes- ' materials are considered classified by the Constitutional Rights, of which / have The PRESIDING OleriCER. The Sea- heads of these respective agencies men- - the privilege of _ being chairman, con ator from Massa? tRAMacP-8111% I eatign2605WONit ifwelfACRtfr#511015131VORIV19#40V4?08e,Fitensi ve investigation - _ ., :3 93'21 CONGRESSIONAL RECORD?SENATE May 30, /9.74 of the use-of innitarAportivectiFOrsRelesStic200T/108i80 PektkiERDPMB00380R0006037t90008-2bresident, I yield on eivilia;ns who, in most instances, were of the courts, to the Senator from North Carolina. The nieESIDING flieieiCEren. The Sen- ator from North Carolina is recognized. Mr. ERVIN. Mr President, the ques- tion involved here would be whether a court could determine this is a matter which does affect national security. The question is whether the agency is wrong in claiming that it does. The court ought not to be required to find anything except that the matter af- fects or does not affect national security. If a judge does not have enough sense to make that kind of decision, he ought not to be a judge. We ought not to leave that decision to be made by the CIA or any other branch of the Government. The bill provides that a court cannot reverse an agency even though it finds it was wrong in classifying the document as being one affecting national security, unless it further finds that the agency was not only wrong, but also unreason- ably wrong. With all due respect to my friend, 'the Senator from Nebraska, is it not ridicu- lous to say that to find out what the truth is, one has to show whether the agency reached the truth in a reasonable manner? Why not let the judge determine that question, because national security is in- formation that affects national defense and our dealings with foreign countries? That is all it amounts to. If a judge does not have enough sense to make that kind of judgment and dew ? termine the matter, he ought not to be a judge, and he ought not to inquire whether or not the man reached the wrong decision in an unreasonable or reasonable manner. The, PRESIDING OtenaCER.. Who yields time?' Mn HRUSICA. Mr. President, I yield myself 3 minutes. - - - Mr. President, will the Senator respond to a question on that subject? He and ? have discussed this matter preliminarily to coming on the floor. ' If a decision is made by a court, either ordering a document disclosed or order- lug it withheld, is that judgment or order on the part of the district court judge appealable to the circuit court? . Mr. ERVIN. I should think so. . Mr. HRUSICA. What would be the ground of appeal? Mr. ERVIN. The ground ought to be not whether a man has reached a wrong decision reasonably or unreasonably. It ought to be whether he had reached a wrong decision. Mr. HRUSKA. I did not hear the Sena- tor. merely exercising their rights under the first amendment peaceably to assemble and to petition the Government for re- dress of grievances. At that time, as chairman of that subcommittee, I was informed by the Secretary of Defense, when the committee asked that one of the commanders of military intelligence appear before the committee to testify that the Department of Defense had the- prerogative of selecting the witnesses who were to testify before the subcom- mittee with respect of the activities of the Department of Defense and the De- partment of the Army. On another occasion I was informed by the chief counsel of the Department of Defense that evidence which wa,s quite relevant to the committee's inquiry, and which had been sought by the com- mittee, was evidence which, in his judg- ment, neither the committee nor the American people were entitled to have or to know anything about. . And so the Freedom of Information Act, the pending bill, is designed to make more secure the right of the American people to know what their Government- is doing and to preclude those who seek to keep the American people in ignorance from being able, to attain their hew-Vs desire. I strongly support the amendment of- fered by the distinguished Senator from Maine, of which I have the privilege of being a cosponsor, because it makes cer- tain that when one is seeking public in- formation, or information which ought to be made public, the matter will be heard by a judge free from any presump- Maine as well as under the bill, are the tions and free from any artificial bar- same. The documents would be available riers which are designed to prevent the withholding of the evidence; and if the matter cannot be resolved ore the I sin- cerely hope the Senate will adopt this basis, of affidavits. The documents are amendment ? , . available for examination in camera, and I thank the Senator for yielding. it will be for the judge to examine them and determine whether there is a reason- able basis. Under the amendment proposed there Is no standard to guide the courts in this difficult area. The purpose of the lan- guage in the bill is to require the judge to determine whether or not there is a reasonable basis. If there is, he holds the document; if there is no reasonable basis, he may order it disclosed. Mr. President, there are difficulties in getting papers from the Government and its agencies. There is no question that there are abuses. But, as I indicated in my earlier remarks, many steps have been taken pursuant to the Executive Order 11652 to correct those abuses. However,. again, I say that the issue of abuses is not relevant to -a. consideration of the amendment proposed by the Sen- ator from Maine. Finally, I must say, Mr. President, that the adoption of this amendment could endanger the passage and approval of the bill into law. It will substantially alter that finely tuned balance. We have competing interests that are highly con- troversial in this field that must be en- compassed and balanced. Mr. President, it is my hope that the amendment will be defeated. The Supreme Court, in the case of C. es S. Air Lines against Waterman Corp., in 1943, held to the same effect. The Harvard Law Review note reached that same conclusion. It is not a matter of any one person's knowing who is the one who would best know. There is the review, the trial de novo, to be sure. The bill is written so as to place upon the district judge the responsibility of determining whether or not there is a reasonable basis. If there is no reasonable basis, then he orders the information disclosed. If there is a reasonable basis, he is charged with the responsibility of maintaining the confidentiality GI the information. Under that system, it would be an ap- pealable order. It would be something that could be reviewed. The further suggestion is made that there is no indication that a district judge will be unreasonable in acting un- der the amendment of the Senator from Maine. I would not. think that any judge would be unreasonable. But that is not the point. If the district judge finds that there is no reasonable basis- for it, should he still have the power to say, "Release the information, anyway"? That is the position, for which the Senator from Maine is arguing. That is exactly the position for which he is arguing. The PRESIDING OFFICER, The time of the Senator has expired. Mr. HRUSKA. I yield myself 3 min- utes more. In all applications for the disclosure of public documents, the procedures, under the amendment of the Senator from Mr. MUSKIE. I thank the distina guished Senator from North Carolina, Mr. President, at this time I withhold the remainder of my time. The PRESIDING OnnaCER, Who yields time? Mr. HRUSKA, Mr. President, I yield myself 3 minutes. - A little while ago the question was asked whether the Director of the CIA or the Secretary of State is the only man who knows whether information should be classified or whether a district judge equally situated with regard to matters relating to national security or foreign policy as any other officer of' the Government, Mn President, it is not a question whether or not he is the only man. The courts themselves have said, as has al- ready been cited in Epstein versus Resor In 1970, wherein certiorari was denied by the Supreme Court, that the judiciary has neither the "aptitude, facilities, nor responsibility- to make politica/ judg- ments as to what is desirable in the in- terest of national defense and foreign policy. That is their decision, Mr. Presi- dent?it isnot the court's business to at- tempt to weigh nubile interests in the disclosure of this information. These are Mr. ERVIN. The question involved might to be whether an agency reached a correct or incorrect decision when it classified a matter as affecting national security. It ought not to be based on the question whether the agency acted rea- sonably or unreasonably in reaching the wrong decision. That is the point that the bill provides, in effect. In other words, a court ought to be searching for the truth, not searching for the reason for the question as to whether someone rea- sonably did not adhere to the truth in Approved For Release 2001/08/30 : CIA-RDP75B00380R000600190008-2 May 30, 197 classifying the AlaRiegeg FlihregAV 19CID1CIPPiagiPIAPRMO9a0 national security. Ireleased. However, no standards for guid- CONGRESSIONAL RECORD?SENATE S)327 INT. TrY/TISKA. The bill presently pro- vides that a judge should not discloee a classified document if he finds a rea- sonable basis for the classification. What would the Senator from North Carolina say in response to the following ques- tion: Should a Judge be able to neanead antnarnereeneetlecloh sure-af-antinnament eninnifelenie finds esnreasonable basis for theclassificationa Mr. ERVIN. I think_heenughtnto re- "mum the document to In disclosed:1 do not think the judge should have to inquire as to whether a man acted sea- sonably or unreasonably, or whether an cy, or department -did the wrong and acted reasonably or unreason- ably. -nee e. , ' -.-..-- The questionnought to be Whetbex classifying the document as affecting na- tional security was a correct or _an in- correct decision.-Just because a -person acted in a reasonable manner in coming to a wrong conclusion ought not to re- quire that the wrongful conclusion be sustained. ' - Mr. IIRUSIKAn Mr. President, I .am grateful to the Senator for his confirma- tion that such-a:decision would be ap- pealable. _ eenen ? ...--- , ...,. However, on ethe second part -of. his answer, I cannot getout of my mind the language of the Supreme Court. 'This-is the particular language that 'the Court has used: Decisions about foreign policy are decisions 'which the judicial", alaS neither aptitude, facilities, nor respon- sibility and which has long been held to belong in the domain of political power not subject to -judicial intrusion ,or in- -quiry." C. & S. Air Lines V. Waterman Corp., 333 U.S. 103-f1948). - ? That is not -their field; that is not their police. n aa ' ' 'e lare NELITIN::Pardan me. ..A court:is 'conmosacinat-tailinannbaingannep7ELITais gthen.x.eaoh...annuneeasonalaL,canclusion, awning aeration would be on a at?err:el- nation &Lao whether the conclesion of the was...W.M.ZeSeelliggannnallireasen- Mr. HRUSKA. Mr. President, I .yield myself 2 minutes-to read from the Su- preme Court case, of C. & S. Airlines ver- ens Waterman Corp, 333 US. 103 U948): r ITlhe very naturerof executive decisions as i Ito foreign policy la political, not judicial. Such decisions are wholly confided by our / Zonstitution to the political departments of :the government. Executive and Legial.atiye. They are delicate, complex, and involve Lege elements of prophecy. They are and should 'be undertaken only by those directly respon- ' Bible to the people whose welfare they ad- ',ponce or imperil:They-are decisions of a kind .for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held toi:ielong in the domain of political power "not :subject to judicial in- trusion or inquiry. ? -- Mr. President, I think that is pretty Plain language. I stand by it. '- - In this connection, as I understand ' Senator Mussar's amendment, the bur- den of proof is upon the Government to demonstrate what harm would befall the United States if such information would be made public and the court is to weigh such factors against the benefit accruing mg the court's judgment are included. It seems obvious to me that in an area Ili have tremselves ad- millesa.theielnarleanaclesaineleallei II with the ieenea.....nareenae gereed endeavor to provide the proper guidance The re- ported version of this bill does so. It pro- vides that only in the event a court de- termines the classification of a document to be-without a reasonable basis accord- ing to criteria established by an Execu- tive order ror statute may it order the document's release. - 'Therefore, I respectfully submit that Senator Musamns proposed amendment does-not adequately come to grips with the various competing concerns involved in this issue. ' Mr: MUSETE. Mr. President ' how much time have I remaining? ' The PRESIDING Onleiteeate The Sere. atm from Maine has 21 minutes remain- ing. - - Mr. MUSK1E. Mr. President, yield myself 3 minutes. - - Mx. President, I have listened to the distinguished-Senator from Nebraska ex- pound at length on what he believes to be the faets and say that the judges are not qualified to make evaluations of clas- sification decisions = If he believes what he says he believes, he has got to be opposed to the commit- tee bill because the committee bill estab- lishes a procedure for judicial review. If he believes judges to be as ungeali- fied as he describes them, eloquently and vigorously, on the floor of the Senate, he has to be against the bill to which he has given his name and support, because that bill rests on the process of judicial review. - The second point that I wish to make is, of course, that judges can be un- reasonable, as my good friend the Sen- ator from. North Carolina has peinted' out. But what about the executives? Let me read, from the committee report, the language- of Justice Potter Stewart in concurring with the majority opinion of the Supreme Court in the Mink ease that we seek in this bill to alter. Justice Stewart sta.teen Gotigresi has built into the Freedom of Information Act an exemption that provides no means of 'questioning an -executive de- cision that determine a document is secret, however, cynical, myopic, or even corrupt that decision might have been. Now that is the opinion of a Justice who -concurred ,in the decisiorr in the Minkcase which denied judges In-camera review of executive decisions to classify in the national security field, clearly urg- ing the Congress, in my judgment, to do something about it, and that is what we seek to do. - I simply cannot understand the posi- tion of the Senator from Nebraska (Mr. Hausica) in supporting, on the one hand, a judicial review process designed to open the door to examination of executive decision, and then on the other hand closing that door part way back again, because that is the clear purpose of the presumption written into the act. So I hope, Mr. President, that, having taken this step, that we will not take part 131311q4,1r9gRing the support of my amendment for the reasons that I have amply discussed this afternoon. I am reads for ,a vote at any time, but I will withhold the remainder of my time until it is clear that the Senate is thavote. ".....%)11r. President, the Judi- - ma ttee deserve our appreciation for the significant work that is embodied In the bill before us today. . - These amendments to the Freedom of Information Act will accomplish the committee objective of providing more open access to Government activities. The fresh air that open access will bring - can only strengthen our -form ar Gov- ernment. Informed citizens and respon-, sive Government agencies will go a long way toward restoring the 'faith and con-- fidence that the American. -people must have in. our institutions. - - The amendment offered to S. 2543 by. the Senator from Maine which deals with _classified Informateon -relating to national defense or foreign polieneyala not serve the interests of clear legislation or a.ssis hi the delicate Means Onglak- ing available such sensitive .cassified Inatenar. ' airgais co me that the corimittlee ver- sion of S. 2513 offers a definite procedure and a definite Standard by which --nat tional defense or foreign policy classified Information may be examined in -a court proceeding. The court is not required to conduct a fie novo review, most courte are not knowledgeable in th-raensitive fojneign_noltcy factors tnat inner be weighed jn eeteentining whetnerataate- rial deservee Grin/apt demands classifi- ander the comiatia?Fersion court needs to determine if there is a reasonable basis for the agency clas.sin- cation. The standard "reasonable basis" is not vague. The- standard of reason- ablanessehaeurnicial system for GeInallnes. _ , The proposed .amendment would call for a de novo weighing of all of the fac- tors and leave the determination to the court according to a weighing of all the Information which eis much mare vague than that standard promulgated by the committee. ? , ? - The executive branch has especially significant responsibilities in foreign policy and national defense. The recently onducted Middle East negotiations by ur Secretary of State had to be cone ucted in secret and we are now enjoy - g fruit of the successful cnnennation of ese negotiations ? aaa - "- Innelieve foreign policy' considerations Thnmu. de- serve SpeCialAtt,entinn and the rommit- teThffis on of S. 2543 accords them such special attention. ? It does not seem worthwhile to confuse the standard that the committee has set nor does it seem useful to diminish the executive beanchn flexibility in dealing With sensitive foreign policy matters. I intend to support S. 2543 and urge my colleagues to approve it without amendment. - Mr. HENNe-UY. Mr. President,- a Par- liamentary inquiry. The PRESIDING OreaCER. The Sen- ator will state it. Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 .1.11, 4.41.4W.IA.I., ...Ia. It .0. ??? ???? Mr. KENNEDY. Are there a sufficient number of penators present to order the Allen - yeas and the naysApproved For ReleaNer.2001/08 iseunion. uney ' The PRESIDING OteeeiCER. There is Bible Hansen not a sufficient second. Byrd, Helms Mr. HRUSKA. Mr. President, I have 13arrY F?4 Jr. M Taft Cannon Talmadge no further requests for time on this side cotton Long Tower or in opposition to the amendment. Curtis -0w-eerier te.'hujisi NAYS--29 ter Nunn IA-REPT66.0380 acott. William L. ateartls ??? .14 ,Jul Mr. KENNEDY. Mr. President, I sug- gest the absence of a quorum, with the time to be charged to my time. The PRESIDING 0101.10ER. The clerk will call the roil. The legislative clerk proceeded to call the roll. Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. KTINNEDY. Mr. President, I ask for the yeas and nays on the Mu.skie amendment. - The yeas and nays were ordered. The PRESIDING OleriCER. The ques- tion is on agreeing to the amendment of the Senator from Maine (Mr. M1DSKIE) On this question the yeas and. nays have been ordered, and the clerk will call the roll. The legislative clerk called the roll. Mr. ROBERT C. BYRD. I announce that the Senator. from Arkansas (Mr. FULBRIGHT) , the Senator from Alaska (Mr. GRAVEL) , the Senator from Indiana (Mr. Hemmen), the Senator from South Carolina (Mr. Hoeaneas), the Senator from Iowa (Mr. Hamm), the Senator from Hawaii (Mr. INotrys), the Senator. from South Dakota (Mr. McGoveme), the Senator from Rhode Island (Mr. PEW and the Senator from Alabama (Mr. SPARKMAN) are necepsarily absent. I further announce that, if present and voting, the Senator from Alaska (Mr. GRAVEL) would vote "yea." Mr. GRIFFIN. I announce that the Senator from Utah (Mr. BENNETT) , the Senator from New-York (Mr. BUCHLEY) , and the Senator from Illinois (Mr. PERCY) are necessarily absent. I also announce that the Senator from Colorado (Mr. Doetnexcx), the Senator from Arizona (Mr. FANNIN ) , and the Sen- ator from South Carolina (Mr. THUR- mom) are absent on official business. On this vote, the Senator from Illinois (Mr. PERCY) is paired with the Senator from South Carolina (Mr. Teneeraceee). If present and voting, the Senator from Illinois would vote "yea" and the Senator from South Carolina would vote "nay." The result was announced?yeas 56, nays 29, as follows: [No. 219 Leg.] YEAS--56 Aboi irezk Eagleton Moss Aiken Baker Bayh - Bean Bentsen Biden. Brock Rump bre' Brooke Javits Burdick Johnston Byrd. Robert C. Kennedy Case Magnuson Chiles Mansfield Church Mathias Clark McIntyre Cook Metcalfn Cransto Metzenbaum Dole Mondale Dom enIci Montoya Ervin Muskie Hart Nelson Haskell Packwood Hatfield Past r Hathaway P?arTs?on Huddleston Proxmire Randolph Ribicoft Roth Schweiker Stafford Stevens Stevenson ngto2.3. Tun=y- Weicker Williams Eastland Fong Bennett Buckley Dominick McClure McGee NOT VOTING-15 Gravel Hanka Hollings Fannin Hughes Fulbright Inouye McGovern Pell Percy Sparkman Thurmond So Mr. MVSKIE'S amendment (No. 1356) was agreed to. Mr. MUSKIE. Mr. President, I move that the vote by which the amendment was agreed to be reconsidered. Mr. KENNEDY. Mr. President, I move to lay that motion on the table. The motion to lay on the table was agreed to.. Mr. Mr. BAYIL Mr. President, I send my amendment to the desk and ask that it be stated. The PRESIDING OFFICER (Mr. Hems). The amendment will be stated: The legislative clerk read as follows: On page 9, line 9, following the word "per- son" insert the following: "When such records are made available un- der this section in matters which the person seeking those records can demonstrate to be of general public concern, the agency com- plying with the request for the records shall make them available for public inspection and purchase in accordance with the pro- visions of this act, unless the agency can demonstrate that such records could sub- sequently be denied to another individual under the exceptions provided for in subsec- tion (b) of this act." . Mr. BAY11. Mr. President, this amend- ment is designed to make certain Fed- eral departments and agencies comply with both the letter and the spirit of the Freedom of Information Act in mak- ing public requested documents in mat- ters of general public concern. It is not consistent with the intent of Congress for an agency to comply with a reqeust for a certain document-under the Freedom of Information Act, but, at the same time, to refuse to make that document available to the public despite the legitimate and broad public nature of the document in question. Yet, this is precisely what happened in a Freedom of Information -Act request which I made earlier this year to the Federal Trade Commission. Probably the best way to demonstrate the real need for adoption of the amendment I have offered would be for me to recount my experience in seeking information from the FTC. - On March 20 a public interest law firm?the Institute for Public Interest Representation at the Georgetown Uni- versity Law Center?wrote to the Federal Trade Commission on my behalf request- ing a copy of a transcript of prehearing conference the Commission had con- ducted on December 18, 19'73 with eight major oil companies which the FTC has charged with engaging in anticompeti- a...L., a G. dom of Information Act. Subsequently, 6.80/493t1libittacre I v ed yanttoo nsumbys tha and- sent 2 weeks earlier, I filed suit in U.S. District Court here in Washington against the FTC to secure a copy of the requested transcript. While I did not take lightly the sig- nificance of a U.S. Senator suing an agency of the Federal Government, I felt the issue was of such importance that this strong action was required. In seeking access to the transcript, I must emphasize, I did not merely want to secure this material for myself. Certainly the Senator from Indiana did feel it would be helpful to him in weighing current energy-related legisla- tion to have the information being gen- erated in this very important proceeding before the Federal Trade Commission. But beyond the need which I felt I had for the document, I also felt that it was important that the transcript of a pro- ceeding against the eight largest oil com- panies be available to the public. Few issues have generated as much concern among the American people in recent months than the energy crisis. Much has been charged about the role of the oil companies in contributing to and exploiting the energy crisis, and the rrc allegations of major anticompeti- tive practices against the oil companies go directly to the heart of the public con- cern regarding the role of the oil com- panies. It, therefore, seemed to me important that not only should the transcript In question be available to the Senator from Indiana, but that transcript should be part of the public record of the FTC, available for examination and purchase by the media and individual citizens. However, when, on April 30. the FTC agreed to my request for the December 18, 1973 transcript, it did so on a very limited basis. Specifically, the Commis. sion provided copies of the transcript to me and to three State attorneys general who had requested it. The Commission did not add the transcript to the public docket in its case against the oil com- panies, and when newsmen requested a copy of the transcript they were told they would have to make individual requests for copies under the Freedom of Infor- mation Act. - This limited release of the transcript was especially incongruous since I was not under any constraint in what I could do with the copy delivered to me. Accord- ingly, to save those newsmen the time and trouble of bringing individual Free- dom of Information Act cases against the FTC, I provided access to the transcript to anyone who wanted to come to my office and examine it. It is evident, Mr. President, that in its limited response to my request the FTC had complied with the letter of the Free- dom of Information Act. But it is equally evident that in refusing to add the re- quested transcript to the public docket in its case against the oil companies that the FTC had not complied with the spirit of the act. This amendment is designed to avoid such evasion of the true purpose of the act. tire practices. I must note, Mr. President, that the That request was based on the Free- amendment is written in such a way so Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974. CONGRESSIONAL RECORD ?SENATE S 9329 as tO place the riNgeibilita tor demon- them to court or t r ' tota take an answer should be given taceatain sp- a: a..... i sta-ating that the? RM@gig9EzISIldefiselaWIRONQUIAQ tla .', R.1* .6 tha80R(1438fia(11-90CtOblasure.,The general ret- general public, concern on the individual give me a copy of the first conference erence to time limitations is in terms of requesting the material. The purpose of transcript; and I hope that before we "working days." By inadvertence, I take this part of the amendment is to guar- are through, they will promise to give me it, line 22, page 14, simply says "for more antee that the various agencies do not other transcripts as these hearings are than 10 days." The amendment, tech- have to make general release of all in- held. Yet while Bnico BATH happens to nical in mature, would insert the word formation provided for under the Free- be a Senator from Indiana who wants "working,' so that it would be for not dom of Information Act. It would be an this material to make proper decisions on more-than 10 working days. That is the unfair and burdensome requirement on energy issues; but I think the pubic has purPose of the amendment, and I urge the agencies to insrlqt that documents of a right to knew what is going on before its adopticia. - limited interest--for example, something the FTC as well. This amendment would , -Mr. KFTINEDY. 3,Ir. President, this is a required for academic research?be made make -that possible, by requiring that a technical, clarifying amendment It is public. - a , ' .- *. , copy of these documents be put In the useful and consistent with-the other pro- Also, the amendment does- areimit the public records, pursuant to the provisions visions of the bill, and I .urge :its a.dop- -agency faced with a request that infer- of this act - s- ' - - ?:- . tion - -- - - motion be made public to object to -that ' -." Mr. KENNEDY.; I yield myself " such I yield back the remainder Of my time . request if the agency can argue success- time as I may require. -- ' . - Mr. IIRTISKA. I yield-back the re- fully that. subsequent requests for the ' Mr: President I urge the acceptance inaindera: myr time. . ? . documents might be denied under the of 'this amendment I believe that the The PRESIDING OFFICER flAr. Dom- exceptions provided for in subsection (b) Senator from Nebraska has been in- mama) . The question is on agreeing to the of the act. ',A"f-,.:, ..:_ . -.a f: ,.? ; .. 'formed of it as well . ,?? -- -"' - ---' amendment If I may take- my experiender with the It seems to me to make eminentlY good The amendment wai agreed to. rrc as an example, Mr. President it is -sense that if information is going to be . :The PRFRTDING Oiaaa,CER. The hill . obvious that the Case against the -major made available to a particular individual, Is open to further amendment oil companies Is of general public- ton- and if it meets the other requirements of - ,..a - .1 ;:annigraelaer ND. :1241 cern and It Is unreasonable to place thefFreedom of Information Act relating , - "- Mra HART. Mr. President, 7 call up the responsibility for demonstrating this to disclosure, that 'information should be ...fact on the Senator from Indiana or. any -available to other citizens as well. Aramdme et No. 1361. - , other individual...requesting material in - The amendment does have certain pro- , The PRESIDING OFFICER. 'The 'amen en will be stated,' ' tilis eatefforY.'". . ' '''--- ': ' tedious. When an agency attempts tore- ... - -The legislative, clerkproceeded to read - a As .or the right of the agency to ob- - spond positively add constructively to a ject, I see no- problem in giving the request of an individual, -even though 121,-e -amendment'- I Mr. HART. Mr. President, ask Mien- the act would anew ? Withholding, the , linout -consent 'that further reading of 'amendment has -certain protections for . the aniendment be dispensed with. - - --, the agency so 'it does not have to release a The PRESIDING Opmczit. without this -generally automatically, 'I think --objection, it is se ordered; :ind;-witheut makes a good deal of sense. I believe it objection, the amendment will be print f td carries forward the spirit and the pur- in the Raavea. T?Se of the legislation 1:11 encouraging re: The amendment is as 'follows: lease of information, and I hope that on ...?,"6 IL. lins 15, ad..... 44,?....,?nriod, itsmi,it: the .amendment will. be accepted by the the feci,41,g new.sub,ect?7?7 l'' Senate. - " ' - .- (3) 'Section 352(b) (7) Is amended to read Mr.. HRUSIKA. Mr. President, will the as follows: -investigatory records compile, Senator yield me 2 Minutes? . - - /or law enforcement purposes, but only t Mr. KENNEDY. Iyield. `.,..': ' the extent that the productiffrn of. a, ' xecords ... , Mr. FIRIJSKA: Mr.- President, upon would (A) interfere with ardor It f d ha this end- . . ,_ anent proceedings, (B) deprive a person y 'anat731S, lir Olin tt -ani , a iight to a-fair ,triaI or, an, 1:131p51tIal lidiu- :ment does clarify _the, lam:- The ameral-: ? aication 1Yr-constitute a clearly unwarranted merit contains a safeguard, -by reference 'invasion-of personal privacy, (0) disclose the to Section 4(b) of Public Law 90-23; Identity of an informer, or (n) disclose in- commonly known as the Freedom- of In- vestagative techniques and-procedures,"?. formation Act which amply takes care ?- mr..??.?4,,/,..a.,a_.,,,,....; ..,,, - -- ,-._ - ra eau payseu. suca tins' e of those those items 'which are excluded from --/- s'"--".? "'".";ta - its mayreajzire Pur view' - ? ? - . lafr President' this act -exempts from Thave no objection-to the amendment. .. -. ' - ?. ' ... , ? - . cusciosure naves-alga-tory flies compueo In fact I favor it ', : ? -. . ' ' - - -mx. parmomy,., ivr.i. iii.;sident: I ideid for law enforcement purposes except to the exte.nt. available by law to e Part; -back the remainder of my time. - .,. 'roan an agency." , - Mr. BAYH. I yield back the remainder ?, ,::': --.,.... -- . . or. the legislathe histaaa of nay time '''.=4 1.1...'41..?4- ,.. The PRESIDING OFETCER. The qua._ ,suggests 1.41a14, t...OngreSS intended that ? this seventh ti to ' o thin Is on almeeing to the amendment harm, to a , . . . him, as I .azaaain proposing the new . of the senetortrom Indiana. _., - -,:a _ _ .. . - -narm. ro the Governments .casi, m comb ..,,emerehneeits to-the preedemlifintorine_ . ,The amendment was agreed to by ,, . by not., allowing an . opposing litigant ' tke3 Act- It'-' - -'`'''' ' ? ; ' '' - a The PRESIDING OlataLCER, The bill -earlier or greater access to Investigative . My amendment specifies that if an Da- - la'o to further amendment. files than he would otherwise have. ... pen divhivaL =der this act Is (sititk'd to - Mr-FIRUSif.A. Mr. President, I have a" RecentlY, the courts have interpreted Information that Is a matter ;of some brief amendment which which I send to the . ah ti Fr f public concernaLa .copy of the informa- desk. , , ,,- ,,, ,y.r.,??,,.,_,-: , , .a., ,..Inforraation,Act to be applied whenever tion that is given? to the individual should , ;,..,pRE,. ..sn5Tict1/4? tiptittira. , The agency can ow that. the -document sought is -an investigatory file compiled also be spread on the agency's public record, so that members of the news amendment will be stated, - for law enforcement purposes_a stone legislative ; clerk read as follows media and individual citizens may have The leg llews: wall at that point The court would have . access t it. , - On page 14, line 22, insert the word the exemption applied without the need o : . . . . As I said, I have been involved in this ."weeking" between "ia" 'a of of the agency to show why the disclo- matter with the FTC relative to some of ma, mauagaasa. Mr. President, this sure of the particular document should , the prehearhag conferences they have amendment has to do with the time Din- not be made. been holding with the major -Oil oil earn- itation. for the purpose of fWng an an- ,-- Thatawe suggest, isnot consistent with parties. At long last, after having to take swer-or extending the time within which the intent or Congress when it passed agency the responsibility?if it does not- want to- makeasomething public?to prove that the material In question might un- der different circurastances qualify for a subsection (b) exception. I am satisfied once again using my experience as an example, that the prc could not make a successful argument of this nature in the oil company case_ I do want to, emphasize_ Mr. President, that in citing my -experience-as an ex- ample I am nottrying to pass an amend- ment of relevance to a single issue in which I was, involved. Rather, I cite this experienceasammicaraple. with .the eon- ,--viction that it the amendment -1 propose - addresses itself properly to my experi- -ence, it would work in the future on mat- ters of similar public concern. In this way, when Freedom of Inforniation Act ' requests are made in areas of general im- portance, we can be satisfied that Fed- - eral agencies will have to meet both the letter and the Spirit of the law. Mr. President, finally; what this amendment is designed to do is to satisfy -what I think the intent was of the orig- inal act, and the bill brought te na today by the distinguished Senator from Masa s.achusetts and others who are joining Approved For Release 2001/08/30-: CIA-RbP75B00380R000600190008-2 S .9.330 CONGRESSIONAL RECORD ? SENATE May 30 1974 this basic: act in i9 -n pette,n1V, _riva.r.eee perso 1:3fte the by which it obtainedi=amaretinoenc.esBsoatrhy recognieed the needIJ Eligrieftkle4t4151Whilliti: ment agencies to be able to keep their who is the object of the investigation. for effective law enforcement." Id at 81.7.1r reCords and files confidential where a Third, investigatory files compiled for disclosure would interfere with any one law enforcement purposes would not be of a number of specific interests, each made available where production would of which is set forth in the amendment deprive a person of a right to a fair trial that a number of us are offering, or an impartial adjudication. I am offering this amendment on be- Fourth, the amendment protects with- half of myself and the following Sena- out exception and without limitation the tors: Mr. MATHIAS, Mr. CRANSTON, Mr. identity of informers. It protects both the, MusitrE, Mr. CLARK, Mr. Raincoer, Mr. identity of informers and information Moss, Mr. JAW'S, Mr. McGovERx, Mr. which might reasonably be found to lead PROXMIRE, Mr. HUMPHREY, Mr. Her- to such disclosure. These may be paid erEeD, Mr. EIDEN, Mr. NELSON, and Mr. informers or simply concerned citizens ABouRszic. who give information to enforcement This amendment was proposed by the agencies and desire their identity to be Administrative Law Section of the Amer- kept confidential. lean Bar Association. It explicitly places Finally, the amendment would pro- the burden of justifying nondisclosure tect against the release of investigative on the Government, which would have to techniques and procedures where such show that? disclosure would interfere techniques and procedures are not gen- with enforcement proceedings, deprive a erally known outside the Government. person of a right to a fair trial, consti- It would not generally apply to tech- tute an unwarranted invasion of personal niques of questioning witnesses. privacy, reveal the identity of inform- The purpose of the Freedom of Infor- ants, or disclose investigative techniques mation Act is to provide maximum pub- or procedures, lie access while at the same time recog- Our concern is that, under the inter- nizing valid governmental and individual preta tion by the courts in recent cases, interests in confidentiality. This amend- the seventh exemption will deny public access to information even previously available. For example, we fear that such Information as meat inspection reports, civil rights compliance information, and medicare nursing home reports will be considered exempt under the seventh exemption. Our amendment is broadly written, and when any one of the reasons for nondisclosure is met, the material will be unavailable. But the material cannot be and ought not be exempt merely because it can be categorized as an investigatory file compiled for law enforcement purposes. ? Let me clarify the instances in which nondisclosure would obtain: First, where the production of a record would inter- fere with enforcement procedures. This would apply whenever the Government's case in court--a concrete prospective law enforcement proceeding?would be harmed by the premature release of evidence or Information not in the pos- session of known or potential defendants. This would apply also where the agency could show that the disclosure of the information would substantially harm such proceedings by impeding any neces- sary investigation before the proceeding. In determining whether or not the in- formation to be released will interfere -with a law enforcement proceeding it is only relevant to make such determina- tion in the context of the particular en- forcement proceeding. Second, the protection for personal Other Jurists, however, have reached the conclusion that Exemption 7 was intended only to protect against premature disclosure in a pending investigation, and that once the investigation is completed and all reason.. ably foreseeable administrative and judicial proceedings concluded, the files must be disclosed. We agree with this view. The fear that disclosure of investigative techniques in general will hinder an agency's operations appears to be illusory. The methods used for such investigations are widely known and relatively limited in type and scope. The realistic problems are those we have already met?the need to preserve the identity of sources of information in particular eases, the need to assure an im- partial trial and to protect reasonable per- sonal privacy. In the context of Exemption. 7, there is the additional consideration that ? premature disclosure of the Government's case will allow the civil or criminal defendant to "construct" his defense. Against these real problems must be weighed important policy considerations which are by now also familiar?that our political system is premised upon public and congressional knowledge of the Executive Branch's activities; that the policy of agency actions is ultimately established by Congress and the public; that Importunate decisions ment balances those two interests and or those based on party politics, campaign is critical to a free and open society. This- -contributions and the like are less likely Le amendment is by no means a radical der the public has access to the record of such parture from existing case law under the ? decisions. Freedom of Information Act. Until a year ago the courts looked to the reasons for the seventh exemption before allow- ing the withholding of documents. That approach is in keeping with the intent of Congress and by this amendment we wish to reinstall it as the basis for access to information. Mr. President, I think that it would be useful if a brief excerpt from the re- Mr. TcFNNEDY. Mr. President, I be- port of the committee on Federal legis- Hove that it would be useful for me to lation of the association of the bar of outline for my colleagues briefly why the City of New York were printed in the S. 2543 did not initially attempt to amend RECORD. The full document is captioned the seventh exemption of the Freedom "Amendments to the Freedom of Infer- of Information Act, and why I presently melon Act." I ask unanimous consent believe that the amendment proposed by that that material may be printed in the the Senator from Michigan is a construe-- RECORD. tire and desirable one. There being no objection, the material Last October, when I introduced S. was ordered to be printed in the RECORD, 2543, the case law on the subject of In- as follows: vestigatory files was substantially differ- s. 2543 and H.R. 12471 do not propose any ent than it is today. During our hear- amendment to Exemption '7, but would add Ings in the spring of 1973, the subcom- to subsection (b) the "Savings Clause" die" mittee had before it legislation that cussed above. would have amended in various ways a The courts have agreed that Exemption 7 number of the exemptions of the FOIA. applies to investigations by regulatory agencies as well as criminal investigations. These proposals were fully discussed and But there is dramatic disagreement over the debated. Nonetheless, when I introduced question of continued non-disclosure after the legislation I believe that the public the specific investigation is completed. The was secure in its right to obtain infor- Second Circuit, in Frankel v. SEC, 160 F. 2d mation falling within the "investigatory 813 (1972), held that investigatory files are file exception to disclosure mandated exempt from disclosure forever, on the by the act. As Attorney General Elliot theory that disclosure of investigatory Richardson had told our subcommittee:. techniques 's privacy included in clause (B) of our effectiveness and would choke off the supply The courts have rsolved almost all legal amendment was not explicitly included of information received from persons who .doubts in favor of disclosure. In the ABA Administrative Law Section's abhor, for whatever reason, public knowledge amendment but is a part of the sixth of their participation in the investigation. exemption in the present law. By adding The court found: the protective language here, we simply "These Reports indicate that Congress had make clear that the protections in the a two-fold purpose in enacting the exemp- tion exemption for personal privacy tion for investigatory files: to prevent the premature disclosure of the results of an also apply to disclosure under the investigation so that the Government can seventh exemption. I wish also to make present its strongest case in court, and to clear. in case there is any doubt, that keep confidential the procedures by which this clause is intended to protect the the agency conducted its investigation and Mr. HART. Mr. President, I reserve the remainder of my time, but I hope very much that the committee and our col- leagues are persuaded as to the wisdom of the amendment. Mr. KENNEDY. Mr. President, I yield myself such time as I may use. The PRESIDING OFFICER. The Sen- ator from Massachusetts is recognized. Thus, I did not propose a change in the language of that exemption. In the report on S. 2543, as amended, the Judiciary Committee expressed its position generally: The risk that newly drawn exemptions might increase rather than lessen confusion in interpretation of the FOIA, and the in- creasing acceptance by courts of interpreta- tions of the exemptions favoring the public Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30,? 197.4 CONGRESSIONAL RECORD --- SENATE S 9331 ? disclosure criginalljApposvedfortkReleaqeiA4119E610 ihclA .51,434141701:14X10Paia0.0gMot9PAR-Rowev4r, the Adminis- strongly militated against substantive dom of Information Act. The Supreme trative Law Section believes that a bettee ap- amendments to the language of the exemp- exp proach is to set forth licitly the objectives Court has not ruled on the subject yet, tior,s. and th is a division which the investigatory files exemption is bl- ere a.mong various tended to achieve in order to assure that in- But we warned that by leaving the circuits on a number of issues arising formation is withheld only it one of those substance -of .- the exemptions un- from application of that exemption. I objectives wculd be frustrated were the in- changed? , thus want the record to show that by formation disclosed. Because many different The committee Is implying acceptance of accepting the Senator's amendment we types of information may be contained in an neither agency objections to the specific Will . be reemphasizing and clarifying Investigatory file for which there are legiti. changes proposed in the bills being con- what the law presently requires. U it Mate reasons for non-disclosure, the Section sidered, nor judicial decisions which duly Is not accepted, the Supreme Court will believes that it is unwise to attempt to ex- constrict the application of the act. still. have the opportunity to set things elude certain types of records from the ex- . .. emption undiw all circumstances. For exam- straight.' - - _ Unfortunately, Mr. President, must ie "scientific tests, reports, or data" agree with. the Senator from Michigan Second, I would point out that we do pie, *cteivoen 2 (d i ) contained in an invest - address ourselves in S. 2543 to this issue that our initial appraisal of the develop- tory ale, if released prematurely,tcould inter- ment of the law in-the area affected by in a less direct manner. Our report and fere with the prosecution of an offense eras- ? his amendment has turned 'out to he my opening statement contain extensive Suit in prejudicial publicity so as to deprive * - short lived.. A series of recent eases in discussion of new provisions in this leg. an accused al his right to a fair trim], In-ad- the District of Columbia Nab applied the lation relating to releaser of records "or -dition, the proposal set forth in 5.1142 would seventh exemption- of the act woodenly portions of records" and to deleting or not resolve the issue as to when the Investl. and mechanically and, I believe,-in direct ns gatory files exemption terminates, segregating exempt portio of files or an issue contravention of congressional; intent records so that nonexempt portions may !hat()ns. t has_arisan III several recent court deel- when we passed, that law in, 1956. One be released. Judicial and agency adher- Accordingly, the Administrative Law see- intent when it observed: - court a few years back correctly read this - .: ; ?-.., ai, - --. merits would go a long ence to the requirernentswoafyttesreemamoevningd- ttlioonn. risectoorambeends that, ifitthbee serevenetade. exermpto - strict- and undiscriminating 'adherence as followe: - - etsi The touchstone of any proceedings under ., the act must be the clear legislative intent to narrow interpretations of the Freedom '?Investigatory records compiled for laewzntn- to assure public access to all governmental of Information Act. This would apply th forcement purposes, but only to e x records whose disclosure would not signin- to the area of investigatory files as Well that the production of such records would cantly harm specific governmental interests., as to the other exemptions of the act (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial SO I think that courts would have to re- ,- Yet in the most recent decision inter- or an impartial adjudication, (C) disclose the con.sider their reliance on any restrictive -preting the seventh exemption of the identity of an Informer, or (D) disclose in- cases after passage of these new Previa Freedom of ;Information Act,' the Dis- - vestigative techniques and procedures," . mons anyway. - -, tea of Columbia Court of Appeals ob- ., . _ , _ e appi-oach su th ggeSted by e- Sena- Paom TS REPOS or TS Cowards= IDN nen- . - - 1- Th tar from Michigan in his amendment SEAL LEGISLATION OP TFLE ASSOCIATION OP ?Ftecent decisions .of this court construing which, states the policy emoidepations - Ts BAR or vs czar or New YORE., APRIL exemption seven have considerably narrowed 22, 1974 . -, ? .._ - - - ' . to be utilized by agencies and comas in the scope of our inquirY' - '''. : ' -': determining whi)ther to disclose investi- This, Mr. President was a forisboding gatory information, is a salutary one. It " Exemption 7 now exempts: that the court was going astray, since is the same approach?with the same "Investigatory files compiled for law en- the court was limiting its inquiry to avoid language?proposed by the American Bar forcement available b purposes except to the extent l to discussion of the intent behind the ex- Association representative at OUT hear- agency y aw a party other than an." - ' - emption and whether Congress intended Ings last year. Then, Attorney General a.R. mas sea S. 1142 would have aniendecl documents of the kind sought, under the F.Ilint Richardson, testifying at our hear- kxemption 7 to read as follows.' circumstances, to be kept secret pursuant ings, told the subcorarnitee that? , (7) investigatory records compiled for to that exemption. The court con timied: ? If w fresh approach is needed, we suggest any specified law enforcement purpose the ' lieThe. sole questioir 'before us Is libither the that.4.modified version of the ABA's pro. disclosure of which is not in the public In. materials in question are "investigatory files - posed amendment should be considered. terest, except to the extent that? compiled for law lenforcement purposes.. - ' - "(A)... any such Investigatory records are Should we answer that question in the These comments were addressed to a available by law to a party other than an affirmative, our role is "at an end." _ rather different proposal to amend the affeusY, or . . _ ' seventh exemption contained in 8 114Z "(B) any such Investigatory records are? . - This is the same kind of determinationbeing considered by the "(I) scientific tests, reports, or data, " subcommittee - made by the Supreme Court In the -Mink "(i) inspection ?reports of any agency at the time. And just last week the pres- case, when it observed that once a judge tigious Association of the Bar of the City health, safety, environmentnl. determined records to be in fact, on their pr.o ec on, o face, classified, then he could not look a New York issmed its report on araend- (111) records which serve as a heats for beneath that marking to determine merits to the Freedom of Information any public policy statement mule by any Acts. in which it too recommended agency or officer or employee of the United 'whether they were properly classifi.ed. We adoption of the language proposed by States or which serve as a basis for rniemair. are today reversing that holding of the the ABA, with aught modifications. Mg by any agency." _ ... _ . court by the legislatIon before us,. spelling a 2543 and :File. 12471 do not propose any Since the discussions by the ABA, the out that it is :Congress intention for amendment to Exemption 7. but would acid Attorney General, and the City of New courts to look behind classification mark: York Bar Association on this issue are ctou_subsesed abctiovoell ib),:tal_e -``.5evIngs Clause" clia- tug& I think it appropriate and useful relevant to our consideration of the pro- . . ' '"'----'''. ' '' ? - that we also ' spell - out our disapproval The courts have-agreed that Exemption 7 ? .. of the line of cases I referred to earlier, . posed ' amendment, I ask unanimous applies to investigations by regulatory' &gen- and that we make 'Clear our intention for consent that excerpts therefrom be,in- cies as well as? criminal investigations, But eluded in the RECORD at this point. there Is dramatic disagreement over the ques- e0Urts to lock behind the investigation There being no objection, the material tion. of continued .non-disclosure after the mark stamped on il file folder.- - , _. was ordered to be printed in the REcoaD,4 Specific investigation is completed The See- - -t. The Senator from Michigan-beta-made as follows: , _ ? - ond Circuit in Frankel v. SEC, 460 F..2d 813 a persuasive case for the amendment he- (1972), held that investigatory tiles are ex- is- STATEM T OP J OH v proposing, and I will not go over the CHAIRMAN, ADAHNEATRA LAW SE irr.T. ON: empt from disclosure forever, on the theory same ground he has an covered. r do wt AMP/MAN BAR ASSOCIATZON, JUNE 11 1973 vir , that l disclosure Investigatory the agency's effectiveness losure of vestigatory techniques to make two points that bear directly THE severerer Exeserrioar and would chote off the supply of lai'orraa- on t whet First thiS 18811e? - ? -`' t ' - - . S. 1142 also proposes changes in the seven tiers received from persons who abhor, for , er or no this amendment seventh exemption to the Freedom of Information whatever reason, public knowledge of their 13 aciopted, I would like to make-it clear Act, which relates to investigatory files corn- participation in the investigation h crt that I believe the courts have, in nar- piled for law enforcement purposes, by ex_ found: ' . :- .,. ----------- rowly and mechanically interpreting the pressly excluding certain specific types of "There Reports indicate that Congress had seventh exemption, strayed from the re- records from the investigatory files exemp- a two-fold purpose in enacting., the exemption -"Approved For Release 2001/08/30 : CIA-RDP75B00380R000600190008- .. S-9332 CONGRESSIONAL RECORD,? SENATE May 30, 1974 for invest.igaeory to prevent the pre- relating to health, safety or environmental Mr. HRUSKA. Mr. ?DAyaaroved tbrrRVIemtlinP1/68120): GykiREZPISBOE180R9066,001906084,21 mature dieciosure vestiaation so that tie overnmen caare- its stronger case in court, and to keep conedential the _procedures by which the agency conducted it a investigation and by which it has obtained information. Both these forms of confidentiality are necessary for effective law enforcement." Id. at 817. Other jurists, however, have reached the conclusion that Exemption 7 was intended only to protect against premature dis- closure in a pending investigation, and that once the investigation is completed and all reasonably foreseeable administrative and Judicial proceedings concluded, the files must be disclosed. We agree with this view. The fear that disclosure of investigative techniques in general will hinder an agency's operations appears to be illusory. The meth- ods used for such investigations are widely known and relatively limited in type and scope. The realistic problems are those we have already met?the need to. preserve' the Identity of sources of information in particu- lar eases, the need to assure an impartial trial and to protect reasonable personal privacy. In the context of Exemption 7, there is the additional consideration that premature dis- closure of the Government's case will allow the civil or criminal defendant to "construct" his defense. Against these real problems must be weighed Important policy considerations which are by now also famillar?that, our pol- itical system is premised upon public and congressional knowledge of the Executive Branch's activities; that the policy of agency actions is ultimately established by Congress and the public; that importunate decisions contributions and the like are less likely if the public has access to the record, of such decisions. ? For these reasons, we conclude that the strict definitions In the earlier proposed amendment to E-xemption 7 could not be relied upon to produce the intended result in all cases. For example, the non-exemption of "scientific tests, reports or data" could easily cause disclosure of special techniques or the extent of the Government's knowledge with respect to a particular investigation. Therefore, we recommend amendment of Ex- emotion 7 instead to state the policy con- siderations which are to be utilized by the agencies and conks with respect to dis- closure. The Department of Justice and the ABA Administrative Law Section reached the same conclusion and recommended similar amendments. For the reasons discussed above, we rec- ommend adoption of the language proposed by the ABA, modified slightly to make it clear that (a) completed investigations must be disclosed except where confidential sources of information will be unavoidably revealed. (b) oiatir specialized techniques, not generally used in investigations, are protected from disclosure; and (c) the ex- emotion applies to "records" not "files," so that disclosable material is not exempted merely by being placed in an investigatory Me. Thus. Exemption 7 would read: "Investigatory records compiled for law en- forcement purposes, but only to the extent that disclosure. of such records would (A) interfere with pending or actually and rea- sonably contemplated enforcement proceed-. ings. (B) deprive a.person of a. right to a fair trial or an impartial adjudication, (C) un- avoidably disclose the identity ol. an informer, or ID) disclose unique or specialized in- vestigative techniques other than those generally used and known." FROM THE STATEMENT Or ELLIOT L. RICH- ARnsoki. Arroatree GENERAL or a XI: UNITED Seares, ;RINE 28, 1973 Section 2(d) of the bill would also limit the coverage of the exemption by excluding: 1.1) scientific tests, (2) .Inspection reports bids w ch are so use as a ases for pu ho policy statements or rulemaking. These changes would seriously impair the law enforcement capability of many agencies. The provision excluding scientific tests, reports or data from the protection of the exemption presents several problems. First, it could jeopardize the right to an impartial trial by permitting any requestor to obtain and publish any incriminating scientific tests, such as bathetic reports, be- fore the defendant is brought to trial. Second, because the act does not permit an agency to determine whether a requester has a rational basis for seeking information, any one could insist on obtaining autopsy reports or other medical reports on victims of crime, which reports may not be exempt un- der exemption six if the victim is dead. Because this same information can be ob- tained in discovery proceedings, in which the need of the individual for the reports is a proper consideration, we do not believe an amendment is necessary. The provision denying the protection of exemption seven to inspection records re- lating to health, safety or environmental protection would impede the efforts of agen- cies to take law enforcement nation against offenders. It would permit offenders to obtain these records and thereby discover all of the de- tails that an agency intends to use against them in any law enforcement action, whether civil or criminal. ? Finally, the provision excluding from the coverage of exemption seven records which serve as a basis for public statements or reg- ulations not only would inhibit rulemaking in important regulatory areas but also would restrict the flow' of information to the public by discouraging official discussion of public business. - For example, if a Justice Department spokesman announced that on the basis of an investigation by the FBI and the Criminal Division a grand jury would he convened to consider indictments, all of the investigatory reports apparently would no longer be pro- tected by exemption seven, The protection.of this information cannot depend on the continued silence of officials In making public statements or issuing regu- lations. _ If a fresh approach is needed, we suggest that a modified version of the ABA's pro- posed amendment should be considered along the following Lines: The provisions of this section shall not be applicable to matters that are . (7), in- vestigatory files compiled for law enforce- ment purposes except to the extent avail- abie by law to a party other than an agency; Provided, That this exemption shall be in- yoked only while a law enforcement proceed- ing or investigation to which such files per- taM is pending or contemplated, or to the extent that the production of such flies would. (A) interfer with law enforcement functions designed directly to protect indi- viduals against violations of law, (B) deprive a person of a right to a fair trial or an im- partial adjudication, (C) disclose the identi- ty of an, informant, (D)' disclose investiga- tory techniques and procedures. (E) damage the reputation of innocent persons, or (F) jeopardize law enforcement personnel or their families or assignments. Mr. KENNEDY. Mr. President, I rec- ommend the adoption of the amendment of the Senator from Michigan. Mr. IIRUSKA. Mr. President. I yield myself 10 minutes to speak in opposition to the amendment. The PRESIDING OFFICER. The Sen- ator from Nebraska is recognized. President, again here where an amendment is proposed that goes to the substance of a bill which was enacted after years of processing. In 1966, agree- ment was finally reached among several competing interests in this field for the disclosure of public documents. Those is- sues were resolved and we have a very well balanced act, the deficiencies of which are such that they called for amendment but amendments which have procedural features rather than substan- tive features. I do believe that while the public has a right to know, there is also the duty of a government to survive. There must be sufficient safeguards under which officials of our Government can preserve national integrity, security, and public interest, and in the case of the instant amendment., law enforcement. In my judgment, the approval of this amendment would endanger the passage and approval of this bill into law, and I would urge the Members of the Senate to reject the amendment for that rea- son and for additional reasons which I shall now recite. Mr. President, In considering this bill, the Judiciary Committee reviewed an amendment that did not go as far as this one. The committee decided to reject it because it could hinder the FBI in carry- ing out its, law enforcement responsibili- ties and, further, because the forced dis- closure of FBI information could infringe on the individual's right of privacy. / must oppose this amendment for the same reasons. The FBI has been successful in the past in apprehending criminal offenders and for carrying out its other investiga- tive duties because of one chief and im- portant asset?that is, its ability to ob- tain information from its informants and private citizens throughout these United States. In many instancesdt has not solved .a crucial case because of de- ductive reasoning or a specific clue but because a private citizen was not afraid to come, forth and offer a piece of infor- mation. In the past., the FBI has usually taken the information. it receives as a matter of confidence and assured the. in- dividual his name would be kept in con- fidence. The passage of this proposed amend- ment would undoubtedly have the effect of inhibiting FBI informants and citizens from coming forth to offer vital bits of information to the FBI. They will no longer reel confident that their iaamea will remain secret from public scrutiny, possibly subjecting them to embarrass- mend and/or reprisals. The net result will be a crippling effect on the FBI's ability to garner information and obtain successful prosecution in criminal cases. Moreover, the release of any material into the public domain is likely to cause embarrassment to individuals mentioned in FBI files. This Congress has exhibited a marked increase in the concern for the protection of privacy of U.S. citizens. There are literally dozens of bills being circulated in Congress today with various provisions attempting to protect private citizens from unauthorized disclosure of many Government records which may concern them. Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974 CONGRESSIONAL RECORD ?SENATE S 9333 Indeed, I fearifftriVZiT atter of prime importance to dividual may possess, his right to pri-a-ae'v d FgccaVniai2w20,091/1)8/30 : CIA-RDP75600380R000600190008-2 - this country, this amendment should be and his right to personal safety. This denied and rejected. amendment poses a threat to those The proposed amendment would apply rights. For that reason, Mr. President, to records of any age, including those rights, most recently compile& And it is cora- For that reason, Mr. President, I oP- monsense that the more recent the case pose the amendment, and I urge my col- and the more recent the forced disclosure leagues to take the same step when they? of the identity of the informant, the come to casting their votes. more impact such a disclosure will have Mr. President, I ask unanimous con- on other individuals who may wish to do sent that there be printed in the RECORD their past to assist the FBI in enforcing a statement by the distinguished senior the law.-- In. my judgment, the mere approval of this amendment, even without any further procedures under it, will have absent Irani the Senate on official busi- t.hat effect, Mr. President because there ness. will always be the imminent potential The PRESIDING CneraCER. 'Nithout that there will be a release of that docu_- objection it is BO ordered. ? merit and that there will be, through it, ? Q ....TATZMULIT EY SZNATOR Th1:723510 ND notwithstanding the deletion of names, When the Freedom at information Ant the, -ability to trace the informant's was enacted in 1966, it was well recognized name, address, and location.. that Congreasiorud intent behind sucl) ? Furthermore, it is going to be very dif- Act was directed towards regulatory seen.- ficult for the FBI to know how much in- cies as distinguished from investigetive formation can be disclosed without ex- agencies. This premise is reaffirmed when It posing an informant. The FBI cannot is noted that Congress went to great lengths to insure that data contained in investlge- , know extent of the requester's knowl- ton, flies would not be disclosed to unan- edge on the subject, what other informs.- thorized agencies or individuals, by sped. tion the requester may have to link cer- recline listing as one of the Zane exemptions tam n items to the informants or even the to disclosure under the Act exemption seven purpose for which the requester wants to .pertaining to investigatory files. The pm,- use the information. " ' sage of time has failed to produce worthwhile d 'min- _evidence tJant w oul encourage a change - President, I yield myself 5 that ori stance. ' U tes 'more - a. ". from ginei All of us are aware of the general feeling permeating She country that our citizen& want to know what their Government is do- ing and therefore, should have access to the files, of various Governmental agencies. How- ever, by the Same token, we are also con- cerned about a mutual problem of invasion of an individual's privacy. I contend that thie fundamental right of privacy is as great, if not greeter, than the right owed to the Len- eral public for open disclosure. The FBI, being an investigative agency of the Federal Government, obtains TEM, un- evaluated data from individuals from all walks of life who furnish this information with the implied or expressed understand- ing that such bafosination Is being furnished the Government in confidence, never to be disclosed unless to an official, authorized in- dividual or agency. Senate Report No. 813 -supporta this view by stating in part, "it is - also necessary for the very operation of our Government to allow it to keep comidential certain material, snob as the investigatory hies of the Federal Bureau of Investigation." The House, in Report No. 1497 also took note of exemption seven providing protection for - data such as that which is contained in the files of the Federal Bureau of Investigation. This position has also come under judicial reputations of the relatives of ..the 'review and has been sustained in "a number vidtral. ? ":1:' ? Of legal' proceedings In Weisberg eanepars- In my View, we should allow the `FBI incur of Justice, which involved a suit by to have more time to gain more expert- mr- wataberg for an FBI Laboratory report ence in- this difficult field before we- esn- which was part of the investigation of the assassination of President Kennedy, the balm any standards in a. statute. Perhaps court held that once it has been determined some of the problems can be ironed out. by ey a District Judge that files '"(1) -were in- Let at legislate on the basis of experi- ence, not on unfounded forecasts of what might occur in the future, and certainly not in the vacuum of saying that the public has a right to know without refer- ring to the rights that society possesses, as well as the rights of private individ- uals who are involved. - Mr. President, we are dealing in this matter with what I believe to be the most important rights, and in some re- will work cross-purposes to the bills on criminal justice information systems, such as the measures introduced by the senior Senator from North Carolina (Mr. Elavne) and this Senator. The basic thrust of these bills is to maintain the confidentiality of law en- forcement records. We have held exten- sive hearing on these bills and through- out these hearings the point has been repeatedly stressed that -information in ? law enforcement _files must be kept in ? confidence to insure that theindividual's ? right to -privacy ? is secure; 'Yet-. this amendment purports to give anyone the right to request, and receive some of ? these very same.records. I can think of no other instance where an amendinexit to a bill has posed such a grave threat ? Ito the vary' thrust of a major bill that -? Is still in committee and has Tett? Come to the floor:I Mr. President- the threat' to personal privacy that such an amendment poses can already be documented. The Depart- ment of Justice has adopted regulations which authorize release of files which are over 15 years old to historical re- . searchers. Like the proposed amendment, the regulations provide that the FBI can delete information which might. reveal the identity of informants. ? , In one instance, a researchex asked for the files on the investigation-of Para Pound for treason. Pursuant to its-regal- lations, the FBI-deleted the names of the informants 'and other information that it thought could reveal his Identity. Yet, the research was so knowledgeable about the facts of the case that he was able to link the information in the file to the actual infermarits." The researcher then went on in his a,rticle to criticize these Informers for cooperating with the FBI and squealing on their friend, Pound- -Apart from the Merits of itanart from the justice or Injustice of it, Mr. Presi- dent, if it becomes known that files may be released subject to deletions such as those enumerated in the amendment proposed by the Senator from Michigan, if it becomes known and if by deduction and by the supplying of additional extra- neous information those names can, in effect, be restored' by a reseatcher, then the forecast cart be readily and reliably, made that the sources for FBI informa- tion will thy up and become fewer and fewer as time goes on. This was an issue In the Pound case that arose more than 15 years alter the file was curient. But the Department le finding administrative difficulties with the regulations which have been adopted; regulations which are very similar to those which the Senator from Michigan seeks to put into the con- crete form of a_statute. Mr. President\ a" few more-instances like that of the Ezra Pound case and the FBI will be hard put to use informants as legitimate law enforcement techniques. Mr. President, the FBI is very strongly opposed to this amendment. They focus on the point that their files are investiga- tory for law enforcement purposes, not for the purpose at writing stories. It is for one purpose' only, and that is a law - enforcement purpose. Since that is their mission and since enforcement of Abe Approveci For Keie Senator -from - South Carolina (Mr. THURMOND) on this particular subject and on this particular point, he being - The identification of 'an inforniant, even if accomplished by other Informa- tion; together with a reference that por- tions of an FBI file were obtained, can strike fear in. the hearts of those who already have cooperated with the FBL This fear will be not only for their repu- tations but also for their own safety and that of their families. Mr. President, as I already have men? - tioned, the FBI is operating under guide- lines-Ali-at apply to records over 15 years old. Those guidelines protect categories of information similar to the categories the 'Proposed 'amendment purports to protect However, as is clearly docu- mented, the FBI is experiencing some difficulties under stancLards which go further and protect more information than-those proposed in the amendment In addition to the problem of 'revealing informants, it is my understanding that the- estate of one individual whose file or portions of it were disclosed intends to bring suit against the FBI for invading' the privacy and. adversely affecting the veatigatory In nature; and-13) were coin- piled for lair enforcement purposes, such files are exempt from Compelled disclosure." Its recently 4311 May 15, 1974, the Supreme - Court denied certiorari in this case. In a more recent case in which some Members of 'Congress brought suit against the FBI for my data it might have in its files concerntag them, the District Court of the District of Columbia held that in regards to background-type investigations conducted on an -individual being considered for Fed- . Wird&- Investigations are asemeeiffighaptrirkbo%igtki5toado May 3V, 1974 S 9334 CONGRESSIONAL RECORD?SENATE ? ? Appgwg GLE ;weft! ew,,zp Dip ao o 1:1QA-RE) R361a003, 8 CIRO 110431104 90 120 8a2r responsibility to peotected frorn disci exemption of the Freedom of Information thoroughly canvass and make their ef- achieve accountability, to exercise super- ' Act. It is clearly apparent that both CODgreSa fort an additional process. After it has vision over all agencies of Government. e.nd the courts have seen the wisdom of ex- been carefully considered and recom- So when the Senator stated that it eluding from disclosure data contained in mended, it then goes to the House of would destroy the confidence of the investigatory files compiled for law enforce- Delegates. American people in the agencies and that ment purpoees. Departmental Order 528-7 which became The Senator has correctly described that was a reason to be against the 3 effective in July of last year, basically it. However, it has come to be Innown amendment, let me say that the Arneri- vides that although Justice Departmen Me pro- as an American Bar Association pro- can faith in those agencies has never t vestigatory files are exempt from compulsory posal, and it is not. been- at a lower point, because we have disclo.eure, persons engaged in historical re- Mr. WEICKER. Mr: President, I wish never had? the type of legislation as is search projects will be accorded access to ma- to speak in favor of the amendment of- contained in the amendment offered by terial of historical interest that is more than bred by the distinguished Senator from Senator HART this afternoon. 15 years old, as a matter of administrative Michigan. I think it is a great amend- I have already made the statement to discretion. It is my understanding that since ment. I think it relates to a matter that the' Senator from Michigan and the Sen- July of last- year, the FBI has attempted to should have received our attention and _ator from Massachusetts that I consider Implement the provisions of this Order, even though it has been confronted with. enumer- the attention of the American people a' the amendment too weak. able problems relating to the invasion long time ago. If it had and if we had My feeling is that supervision ought to of an individual's privacy. acted, many- of the abuses which we be direct and not via the courts. When "The New- York Times" in its April 21st place under the heading- of Watergate I am elected a US. Senator from the issue, reported that the researcher; who had W011id neverhave occurred. State of Connecticut, I have my security requested and received data concerning Mr. President, I notice in the mem- clearance, It could be that I am a crook Ezra Pound from the files of the, FBI, was orandum distributed by the Federal Bu- or in the pay of a foreign government. successful lit identifying a, number of in- reau of Investigation to various mem- Sorry about that. That is one of the risks dividuals who had furnished the Bureau leers- of the U.S. Senate, a statement is of a democracy. However, I have faith data concerning Pound. Tale, despite the made in opposition to the amendment of fact that, the names and addresses of suchin that the democratic process minimizes the Senator from Michigan, that the that possibility. individuals, as well as other pertinent Idea- tifying data, were deleted from the informa- Hart amendment would: When a man or woman is elected, he or tion furnished The researcher went on and Destroy the confidence of the American she represents the people- And he or she . people in the Federal investigative agencies not only identified the individuals furnish- is the one who should supervise. That is lug information to the FBI by name, but I have been asked by many young the democratic way. also described the' data they gave as well as people in my State as to what for me We should make sure that we get into expressed ' surprise that Pound's "closest was the greatest surprise a Watergate, I what every Government agency is doing. friends" cooperated with the FBI. This have responded by saying that the great- Otherwise, how can we tell whether they points out the futility of attempting to pro- est revelation was the fantastic scope and are performing their function uricler the -feet a source of information, by deleting idenefying data, from - an experienced re- quality of abuses committed by the Fed- Constitution? I cannot assure my con- searcher who can easily put the pieces of the oral law enforcement and. intelligence stituents that I am performing my duty puezie together. community; that. these various nen-, if I am not allowed to look here or not Disclosures of this type of Information can cies?be they the FBI, the CIA, the. mili- allowed to look there. only hinder the investigative responsibilities tary intelligence, or the Secret Service_ So by our nonaction we have built un of the FBI or those of eimilar agencies whose had escaped accountability for such a a new type of government. It operates ' primary responsibility is to investigate crim- long period of time that it was only a under a new Constitution, and that new 1nal activities. The FBI has always- staked its high reputation ori the fact that informa- matter of time before the little acknowl- , Constitution and that new- type of Gov- tion given to it in confidence Is kept secret. edgements and. the little favors snow- ernment brought us Watergate.. It is just such assurance as this that en- balled into the types a massive abuses Let me say this insofar as law, en- courages individuals from all walka of life which surfaced before the Senate Select forcement is concerned.. I remember well to furnish this agency information felt to Committee. an interview several years back Justice come within its investigative resporisibil- There is nothing stated hi the Consti- Black had with Martin Ageonsky. ities. If we now attempt, through legisla- tution which places any of our law en- Martin turned to Justice Black and time to discourage such people from report- forcement agencies in some special status said: ing to their Government violations of law ra t e an d apa rt from either the ex- because of fear. that their Identities. will be sepa ecutive, Because of these recent Supreme Court . made public; we will be doing a disservice to or congressional or judicialdecisions, doesn't it make it more difficult to our country branches. convict an individual of any particular erline . . Therefore, I am unalterably opposed to Yet there is not one Senator who can or, to put it in the words of others, aren't any amendment which will weaken the in- attest to the fact that we have exercised you being soft on the criminal? vesfigative effectiveness of the FBI or other the 'type of supervision and have de- Justice Black responded, he said: agencies responsible for investigating crirn- mandcd the type of accountability of Well, of coarse, it makes conviction more- nal aceivities, by shutthig off one of then these agencies as we do of other agencies difficult, Have you read the But of Rights? greatest source of information?the Amen- of the Government. Slowly but surely, as The fact that a man is entitled to counsel can public. ' . our legislative processes mature, one after makes it more difficult M convict him. The Mr. HART. Mr. President, I yield 10 another of the sacred bureaucratic efnes fact that you have a right as an American minutes to the distinguished Senator comes tumbling down. And as they have, to a trial by jury makes it more difficult to from Connecticut. we have produced better government. convict an individual. Mr. HRUSKA. Mr. President, will the How long ago was it, for example, that He went down the whole list of rights Senator yield half a minute to me on reY it would have been unpatriotic for us to that we, as Americans, had, and which time? question the Defense Department? Now, makes it more difficult to close that pris- Mr. WEICKER. I yield to the distill- we are long over that hurdle, and we have on door on any one of us. euished Senator from Nebraska. better defense because of it.. That is the view that he took upon Mr. RP' tUSKA. Mr. President, refer- It was not too long ago that we could our rights as American citizens, in mak- ence was made to the standards set forth not question our foreign policy. We will Mg it more difficult, to incarcerate an in the amendment which the Senator have better foreign policy because Con- American. from Michigan has offered as an Ameri- gross participates. I make no bones about the fact that can Bar Association /..roposai. That sug- gestion was not made be' tile Senator The time is long overdue to say that from a law enforcement and efficiency from Michigan. He correctly described it the intelligence agencies are performing standpoint, ours is a very inefficient sys- as a position recommended by the ad- a special function, and that we should tern of government because its whole ministrative law section of the American not be a part of that function, - emphasis is on the individual rather than .. . - Bar .Association. All of us who are lam- Abuses committed are our respons.oii- society as a whole. ',liar with the proceedings of that asso- ity because there is nothing in the Con- I have heard this term, "What's good elation know that that section, when it stitution that says that we should not for society." If that is the focus, we have Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974 CONGRESSIONAL RECORD --- SENATE ' S 9335 lost the rea ne ??Fo,sRetas9,c2Ott$/O8Y?AARDR7ENBOD389RCKIIM4010Pegbiciae if we ,are "going to tion: for, we barb achieved a strength and an Increase in crime and increasing say they must all function in the oven. way beyond our head count because each problems in the field of law enforcement, they must all function in total frankness of us has been allowed to flourish, as an Mr. President, as against any indi- and with total public disclosure, there individual rather than as a dot. in a mob. vidual rights to see what is in an FBI may well be an erosion of our law-en- It is an inefficient form of government, file, such as those to which we were just forcement capabilities. but a very great form of government, referoed by- the senior Senator from The answer to the question is simply So I correlate this to what sits before Michigan, what is the price for giving this: There are regular oversight prac - us insofar as this amendment is con- individual citizens' a right to go into Croy- tices and procedures available to the cerned. - - --ernraent files. There will be a continued Congress for the purpose of investigating Yes, it is going to make the job of the and increasing inability of the Govern- these abuses, if they are abuses, that law enforcement agencies more difficult ment to deal with violators of the law come to light Furthermore, criminal in that it brings them out into.ther-open, and enforcement of the law, that price abuses can be prosecuted in the courts. But, let me assure you, the far greater is unacceptable, totally unacceptable. I cite the case of the narcotics danger lies -behind closed doors and in This Nation cannot survive if we are not agents in Illinois, who allegedly locked files. None of the abuses that we able to deal with the lawless elements. raided a wrong address in search of have seen come out of this system would It is nice to say that our freedoms are heroin or whatever the controlled sub- have happened - il more Penale, more valuable and we ,- must have the right stance was. For- awhile, it was rend they , eyes, more earn had been on the scene, to know and to do this and that or the may have infringed upon the rights of I would hope this body would adopt the other thing, but if, in the process of get- the individuals. They were tried in court, amendment of the distinguished Senator ting those things we are going to be They were tried in court for lawless en- from Michigan (Mr. HART), because to unable to deal wish organized crime, if try and a violation of law Those issues sit and groan- as to all the horrible we are going to be unable to deal with were submitted to a jury and they were things that have happened without ac- those-who wilfully violate- our criminal found innocent. tion would be-ludicrous. A finger-point- laws and we impair the tools or even do Yes, bring to court Government oin- Ina exercise insofar as the executive away with the tools that we have avail- cials who abuse the law if there is any branch of Government Is conc ned able to us now for the purpose of dealing violation of law. Furthermore, as I earli- er is not good enough.. Congress has to have with those violators of law, then indeed er indicated, we also have adequate pro- the guts to stand up and say "We are we will have been very, very misguided endures here in Congress We have legis- doing something." We cannot do some- in 'this busimns of trying to see that lative oversight committees thing by traveling the old ways . . ' the Nation survives , Mr. WEECKE'R. I do not believe that . I What is expected of each of us now is say again that the adoption of Van the amendment of the Senator from that we stand upend look where we have amendment together with the adoption Michigan involves throwing the PBI open of the amendment offered here by the to the mob. The amendment of the Sen- not looked befo:re, and that is exactiy ator from Michigan, as I understand it. Senator from Maine (Mr M . usszen Mr. Sea- what this amendment attempts to . aehieve, and why it is supported so President will gravely endanger the en- employs rivulet' court procedures, Mr. wholeheartedly. It is not antilaw en- actraent and the effectiveness of the bill Presidertt, and is very restrictive end - forcement, and It is not antipatriotig. before us today. . specific. This amendment is democracy This The better course 'of' wisdom earlier - I repeat my question: How do we find . amendment isthe patriotism that this afternoon would have been to Put out? How de we find out unless we have - I stand for the substance of the amendment of the acces.s to iofonnation as to the lawlees- . one , ..4`..,. 'Or I thank the distinguished Senator from Senator from Maine (Mr. Musxxr) on a ness that could take place or has taken place in the agencies? How do we find separate and independent basis. Michigan. - . a ,, That. same thing is true in reference Mr. HART. Mr President, have felt very strongly that this amendment was to the pending amendment Let us put Mr. HRUSIKA.. There are ways of doing sound and desirable /salute the Senator this . Freedom of Information Act into it We bave legislative oversight. We have . a , from Connecticut I have no- doubt tans, is a positron, where it can operate effective- .the courts to: resort to ;where there is a 'Precisely thewnynnwe must go: I wish very la,. -efficiently- and for its declared ear- ' violation_ of law. much others had been free hear him. poses in those areas upon which we find put, Mr president there is a more T. , The Senator-from Nebraska correctly agreeraent, and then go onto the propo- fundamental question involved here: cautions us that there is an obligation sition of taking substantive amendments Hon are we going to find out about illegal and a duty and a. right of a government to the Freedom of Information Act and doings of the law enforcement agencies? to survive. But-survival' for a society such treating them an their own merits. I ask this question, to which 1 should as ours hinges very importantl on the They are two separable problems, and like an answer from the Senator from access that a citizen can have to the y I say the price is just ton high; it ie too Connecticut: HOW are we going to in- ? performanne of those he has hind. That high to pay to try to treat the whole veatigate effectively violations of law. is important, to- the survival of govern- subject in one bill when the passage and 19w are ete going to investigate or 'r- merit, too. That is what this amendment the approval of certain of these amend- mzed crime when, if this amendment is seeks to do As the Senator from C merits will actually endanger its becom- passed, individuals will say "Nothine . on- , . y - necticut stated so eloquently, this la really doing Mr FBI, because if we give 01.1 a the meat and potatoes of the society at It is my hope that the amendment win statement, it will be in that ille, and th ociety, we so often describe as a free be defeated. there will be a court order saying that ? s I reserve the balance of my time Mr...WE:WEER. Mr President will the the file should be disclosed My name Mr Mr HRITSSAL President -I yield rentingionaea senator .fraln Renradte, may be deleted but there are Other ways . : ... myself 5 roinutei.. ' - Yield for a question? . . to find out, and they may identify me. Mr. BRUSIne. I am happy to yield threaten my family, or myself." These " Mr. President the first duty of-a nation is to survive We figure that usually in mr. wEenan en The. distinguished are not porasibilities I am dreaming up. . terms of nations/ defense where we are Senator from Nebraska refers to the in.- They can be documented by the examples supposed to be equipped with such Weep- crease In lawlessness and so forth. Han I referred to earlier nns and suchinilltary forceathat we- 'sill , do we deal, since the matters have - The question is, therefore how are we be able to withntand and successfully come to our attention of late, with the going to ir vestigate successfully to the resist invasion. lee/lege elements within the Federal Bu- prosecutor-lel and conviction stage the , a .4 - - e-, Yet it has been written many r many eau of Investigation, within the nun violation - of law at large in the ,corn- times in political history and be philo- within military ,intelligence within the MunitY? sophical government discussions that if Secret Service, within the Internal Rev- It is a big, a massive, and a serious this Nation is going- to fall it is not going enue Service? How do we deal with law- proposition as an of us know. to fall because of external Pressure or less elements within those Government Mr. WEICInfent. I am- glad to respond invasion from without. It is going to fan agencies? - , , ? to the Sens tar from Nebraska. The fact because of events that happened within Mr. ECRIISIKA. The pending amend- is, there has not been a good job done in its interior, and we have witnessed here ment does not bear upon that in any way those areas., of law enforcement where Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 S 9336 CONGRESSIONAL RECORD SENATE May 30, 1974 the agencies operatappneelledrFtallrRele lern is that in the quest for law and order, case after case after case after case has been thrown out because the law en- forcement and intelligence communities acted illegally. So I do not think we at- tain any particular status of accomplish- ment in conquering organized crime, or any crime whatsoever for that matter, with illegal activities resulting in cases being thrown out of court. I would suggest that the record speaks for itself. Frankly, I never thought the record of former Attorney General Ram- sey Clark was that good. But, comparing his record with that achieved by succeed- ing Attorneys General, he looks like Tom Dewey in his prosecutorial heyday. Mr HRTJSKA. That record is bad, but do we want to make it worse by adopting this amendment which threatens to tie the hands of the FBI and dry up their sources of information? I say, with that, the soup or the broth is spoiled, and I see no use in adding a few dosages of poison. The pending amendment should be rejected..- Mr. KENNEDY. MrePresident, I do not recognize the amendment, as it has been described by the Senator from Nebraska, as the amendment we are now consider- ing. I feel there has been a gross misin- terpretation of the actual words of the amendment and its intention, as well as what it would actually achieve and ac- complish. So I think it is important for the record to be extremely clear about this.. If - If we accept the amendment of the Senator from Michigan, we will not open up the community to rapists,- muggers, and killers, as the Senator from Nebraska has almost suggested by his direct com- ments and statements on the amend- ment. What lam trying to do, as I un- derstand the thrust of the amendment, Is that it be specific about safeguarding the legitimate investigations that would be conducted by the Federal agencies and also the investigative files of the FBI. As a matter of fact, looking back over the development of legislation under the 1966 act and looking at the Senate report language from that legislation, it was clearly the interpretation in the Senate's development of that legislation that the "Investigatory file" exemption would be extremely narrowly defined. It was so until recent times?really, until about the past few months. It is to remedy that different Interpretation that the amend- ment of the Senator from Michigan which we are now considering was proposed. I should like to ask thefl Senator from Michigan a couple of questions. Does the Senator's amendment in ef- fect override the court decisions in the court of appeals on the Weisberg against United States, Aspin against Department of Defense; Ditlow. against Brinegar; and National Center against Weinberger? As I understand it, the holdings in those particular cases are of the greatest concern to the Senator from Michigan. As I interpret it, the impact and effect of his amendment would be to override those particular decisions. Is that not correct? asrer2004108/30:031AtIRDM5B006801%00800190008-2 preserve the idea igen is correct. That is its purpose. That of protecting the investigative techniques was the purpose of Congress in 1966, we and procedures, and so forth. But what thought, when we enacted this. Until about the names of those persons that about 9 or 12 months ago, the courts are contained in the file who are not in- consistently had approached it on a bal- formers and who are not accused of ancing basis, which is exactly what this crime and who will not be tried? What amendment seeks to do. about the protection of those people Mr. President., while several Senators whose names will be in there, together are in the Chamber, I should like to ask with information having to do with for the yeas and nays on my amendment. them? Will they be protected? It is a real The yeas and nays were ordered, question, and it would be of great inter- Mr. KENNEDY. Furthermore, Mr. est to people who will be named by in- President, the Senate report language farmers somewhere along the line of the that refers to exemption 7 in the 1966 investigation and whose name presume- _ report on the Freedom of Information bly would stay in the file. Act?and that seventh exemption is the Mr. President, by way of summary, I target of the Senator from Michigan's would like to say that it would distort amendment?reads as follows: the purposes of the FBI, imposing on them the added burden, in addition to Exemption No. 7 deals with "investigatory files compiled for law enforcement purposes." These are the files prepared by Goverinnent -agencies to prosecute law violators. Their disclosure of sucl files, except e ex- tent they, are available by law, to a private party, could harm the Government's case in court ? -It seems to me that the interpretation, the definition, in that report language Is much more restrictive than the kind of amendment the Senator from Michi- gan at this time is attempting to achieve. Of course, that interpretation in the 1966 report was embraced by a unani- mous Senate back then. . Mr. HART. I think the Senator from Massachusetts is correct. One could argue that the amendment we are now consid- ering, if adopted, would leave the Free- dom of Information Act less available ' to a concerned citizen that was the case with the 1966 language initially. Again, however, the development in re- cent cases requires that we respond in some fashion, even though we may not achieve the same breadth of opportunity. for the availability of documents that may arguably be said to apply under the original 1967 act e_ Mr. KENNEDY. That would certainly be my understanding. Furthermore, it seems-tome that the amendment itself has considerable sensitivity built in to protect against the invasion of privacy, and to protect the identities of infor- mants, and most generally to protect the legitimate interests of a law enforcement agency to conduct an investigation into any one of these crimes which have been outlined in such wonderful verbiage here this afternoon?treason, espionage, or what have you So I just want to express that on these points the amendment is precise and clear and is an extremely positive and constructive development to meet legiti- mate law enforcement concerns. These are some of the reasons why I will sup- port the amendment, and I urge my col- leagues to do so. The PRESIDING OrisiCER (Mr. DOMENIC') . The Senator from Nebraska has 6 minutes remaining. Mr. HRUSKA. Mr. President, / should like to point -out that the amendment proposed by the Senator from Michigan, preserves the right of people to a fair trial or Impartial adjudication. It is careful to preserve the identity of an in- investigating cases and getting evidence, of serving as a research source for every writer or curious person, or for those who may wish to find a basis for suit either against the Government or against someone else who might be men- tioned in the file. Second, it would impose upon the FBI the tremendous task of reviewing each page and each document contained in many of their investigatory files to make an independent judgment as to whether or not any .part thereof should be re- leased. Some of these files are very ex- tensive, particularly in organized crime eases that are sometimes under consid- eration for a year, a year and a half, or 2 years. Mr. HART. Mr. President, will the Senator yield? The PRESIDING OraeICER. All time of the Senator has expired. Mr. RrNIsTEDY. I yield the Senator 5 ?minutes on the bill. Mr. HART.. Mr. President, I ask unan- imous consent that a memorandum, let- ter, reference to which has been made in the debate arid which has been dis- tributed to each Senator, be printed in the RECORD. There being no objection, the letter was ordered to be printed in the RECORD, as follows: 14REMORANTATM LETTER A question has been raised as to whether my amendment might hinder the Federal Bureau of Investigation in the performance of its investigatory duties. The Bureau stresses the need for confidentiality in its Investigations. I agree completely. All of us recognize the crucial law enforcement role of the Bureau's unparalleled investigating capabilities. - However, my amendment would not hinder the Bureau's performance in any way. The Administrative Law Section of the American Bar Association language, which my amend- ment adopts verbatim, was carefully drawn to preserve every conceiveable reason the Bureau might have for resisting disclosure of material in an investigative Me: If informants' anonymity?whether paid informers or citizen volunteers?would be threatened, there would be no disclosures; If the Bureau's confidential techniques and procedures would be threatened, there would be no disclosure;. If disclosure is an unwarranted invasion of privacy, there would be no disclosure (contrary to the Bureau's letter, this is a determination courts make all the time; in- Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 Mau ,10, 1974 CONGRESSIONAL RECORD ?SENATE d ;he th exempAPPrAYSCICF9AgPleascR91941QtagArieciikeROPrZ5BOOSSOR ly Invoives Just such a task); voting, the Senator from South Carolina tom ff In any other way the Bureau'a ability - (Mr. THURMOND> would vote "nay." ing to ear.duct such investi,gations was threat- The result WU announced?ye-as 51, Thic hope ened. there would be no disclosure. Thus, my amendment more than axle- nuately safeguards against any problem ,.vhien might be raised for the Bureau. The point is that the "law enforcement" exemp- tion has been broadly construed to include any investigation by a government agency of a federally funded or monitered activity. The courts only require that the investigation might result in tome goverrunent "sanction" sucn 33 a cutoff of funs?and not :necessar- ily a prosecutaon? The, investigations of auto defects, harmful chilcirens toys, or federally- aasisted hosnitals could all be hidden com- pletely from public view, and from criticism of goverrunent inaction or favoritism unless my amendment is adopted. This is the dan- ger Whir'''. the ABA. proposal seeks ta correct. These are rarely FBI investigations., . Beyond these legitimate concerns, the Bu- reau's letter presents argument3. which reject the entire Freedom of Information Act and all efforts by the press and the public to And out what their government repre- sentatives are actually doing. The Bureau objects that governmerrt em- ployees would have to review files to deter- mine whether disclosure would really be harmful, and that someone might sue if he disagrees with an agency's refusal. But the fundamental premise of the Free- dam of Information Act is precisely that the opportunity to seek informatioft is es- -ential to an informed electoratent is also Bennett axiomatic that an official should not be the sole judge of what .he Must disclose about his own agency's activities. ? Surely tf the events of the last two years, collectively known as Watergate have taught us anything, they have underlined vtridly the wisciom of these two assumptions. Sincerely, ? PHILIP A. 11,13.1'. The PRESIDING Orrickai. The ques- tion is on agreeing to the amendment. On this question the yeas and nays have been ordered, and the clerk will call the roll. r. The assistant legislative clerk called the roll. Mr. 13.013ERT C. BYRD. I announce that the Senator from Arkansas (Mr. FULDRIGHT), the Senator from Alaska .(Mr. Gaaver.), the Senator from Indiana (Mr. Hee:race), the Senator from South, Carolina (Mr. Horazeics) , the Senator from Iowa (Mr. HUGHES), the Senator from Hawaii (Mr. Irmeren), the Senator from South Dakota (Mr. McGovaaN), the Senator from Rhode Island (Mr. Paseoas) , the Senator from Rhode Island (Mr. P=1..), and the Senator from Ala- bama (Mr. SP/taxa/mei are necessarily absent. I further announce that, if present and eating. the Senator from Alaska (Mr. GRAVEL) and the Senator from Rhode Island (Mr. Pitsroan) would each vote Mr. GRIFFIN. I announce that. the Senator from Utah (Mr. BENNETT/ , the Seaator :from. New York (Mr. .Bucxney) and the Senator from Idaho (Mr. Mc- Gee-13v are necessarily absent. also announce that the Senator from Colorado (Mr. Domiaime), the Senator from Arizona (Mr. FANNIN), and the Senator from South Carolina, (Mr. T=RMONI? are absent on oirEtcial busi- ness. nays 33, as follows: No. 220 Leg.] TEAS-51 Abo urezk Fla tiled Aiken Hathaway Bayh Humphrey Beall Jackson -- Biden Javits Brooke Kennedy Burdick Magnuson Case Mansfield Chiles Mathias Church Clark ?? Cook Cranston Eagleton Fong Hart Haskell -. NAYS-33 Allen Curtis' .iotuastoraae Baker " Dole ? Long Bartlett Domenici--- McClellan Bellmon Eastland Nunn. Bentsen Ervin .... Randolph -- Bible Goldwater Scott, Hugh Brock --" Griffin Scott Byrd, Gurney WilliamL. , Harry. Jr. Hansen Stennis Byrd, RobPrt Ceflelms Talmadge Cannon Hruska Tower Cotton.? Huddleston ? . Nelson Packwood Pearson Percy PrOKM11,3 Riblooff Roth Schwelker Stafford Mc Gee Stevens McIntyre Stevenson Metcalf Symington. Metzenbaum Taft -- Mondale 'Tunney Montoya Welcker Moss Williams Muskie Young? .NOT VOTING?ie Hartke Pastore Buckley Hollings Pell Dominick - Hughes Sparkman Fannin.. Inouye Thurmond Fulbright. ? McClure Gravel ? McGovern So Mr. HART'S amendment was agreed to Mr. IcANNEDY. Mr. President. I move to reconsider the vote by which the ameaciment was agreed to. Mr. MOSS. Mr. Preside at, I move to lay that motion on the table. The motion to lay on -the table was agreed to. ' -"i en?Mr KENNEDY. Mr. Presic . The PRESIDING OFFICER. The Sen- ator from Massachusetts. Mr. KENNEDY. I yield to the Senator from Pennsylvania without losing my right to the floor. The PRESIDING OFFICER. 'The Sen- ator from Pennsylvania. Mr. HUGH scow. Mr. President. I thank the Senator from Massachusetts. The PRESIDING OlekuCER. Will the Senator suspend? Who yields time? Mr. KENNEDY. I yield 5 minutes to the Senator from Pennsylvania, or what- ever time he needs. S 9337 is anticipated that ht, alter the d sposition of the pend- usiness, we will take up the Big et National. Preserve, And I woula hat the two Texas Senators would ttendance at that time. wing that, we will take up the relating to the Produc- mm ission tomorrow. g that, S. 3433, the rational s preservation system. apologize to the distinguished e epublicans, the senior Sen- Vermont (Mr. Anari), and to that, after many months, ter the original bill was re- mazy 15, 1973, it is the inten- up this collateral measure: S. 3433, tomorrow. It takes time to attend to my good be in Poll House tivity Follo wildem I mus dean of a.tor fro notify finally, a ported Fe tion. to c Calendar me a lo friend andiolleague, my breakfast coin-. panion for any years, but tomorrow is the day. . - Mr, AIKE . Mr. President, I will say that this bit has been worked over and worked over and worked over for 15, months novr. it is to be worked over ere will not be any bill Congress. It so happens meet somebody's request o the bill, someone will ter someone gotten to say, "We want that dif-- ifferences between the are concerned, they , and I am very aP- think the bill should e are going to make ome 246,000 acres in and a study of es. The East does- areas and we think some more, t this session o that when yo and write it come up later, him, arid he ? f erent." As far as any West and the E have been resolv preciative cf that be passed now if a start, setting out the Eastern Sta another 400.000 a not have any of the it is time we did. As soon as we re somebody comes tdon posaL and it is delay two; and aere is no now. Mr. MANSFIELD I say I was joking t yielding to pressure, tor from Vermont unde keeping a promise mad morial Daa recess that i up when we return. Then, of course, confer other bills on the calen up. and it is anticipated t authorization bill will be Senate toraorrow. Perhaps. merits will be made, but - be undertaken until Mond ch full agreement. with another pro- another month or ore time for delay ? President. may en I sad I was cause the Sena- tends that I am before the Me- would be takea .ce reports and will be taken at the defensi Id before the pening state- 0 action will y next. ? PROGRAM Mr. HU SCOTT. Mr. President. I rise to inquir, the distinguished ma- jority leader w ' the order of business for today and fo the near future, ex- pressing the hope at perhaps it may not be necessary to ' in session tomor- row. The distinguishe majority leader did not know I was go to say that. Mr. IvLatiSraelaD. Tha correct. but we are going to be in to. orrow. I am happy to state to my frier. the distin- guished Republican leader. Mr. HUGH SCOTT. I have 'scharged my duty to my colleagues. A u aTOR IZATION FOR eat ON FINANCE TO R 0:R.T H.R. 3215 BY MIDNIGHT Mr. MANSFIELD. Mr. dent, I also- ask unanimous consent at th time, with the consent of the Senate, th t the Com- mittee on Finance have until ainight to report H.].. 8215. The PRESIDING OTIC' Is there objection? Mr. MANSFIELD 'This is a if bill to which has been apt amendment having to do with mon fund. I understand that thi Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 or tar- nded an e coal- bill haa S 930 CONUKESSIUIN AL KhLU1W ? 1NAIJt. ckne out of the Committee on Finance urihrihnousli. I wApillitiONAtlifititsftlle S'enttor from Wyoming over there. Mag we have order. Mr President? The\FRESIDDIG Orao.t.CER. The Sen- ate wilite in order. Mr. MANS.v.LELD. And it is my under- standing ''',,,that the so-called common fund has 0,4 do with college investments made up oprivate donations and that if it is not attended to shortly, it would- create economic hardships on the col- leges to be invo4ved. So I would hdpe?and this, of course, would be subject4o the approval of the Senate?that whelk that bill Is reported out of committee 4n1ght and is on the calendar tomorrow,kwith that kind of a time limiting facto the usual consid- eration will be given lo the possibility of perhaps taking it uP\ tOMOTTOW. May I say, if, there re any other amendments to be offere I will pull it off the calendar and we .will turn to some other measure?with the proviso of some minor tariff measuf having to do with shoe leather, because s matter Is very important to colleges that are dependent upon private funds survive. The PRESIDING OFFICER. e time of the Senator has expired. Mr. HUGH SCOTT. Mr, Preside , will the distinguished Senator yield an additional 5 minutes? Mr. IMNNEDY. Yes, I yield such no , as the Senator may need. , PROGRAM?CONTINUED Mr. HUGH SCOTT. The distinguished majority leader ,referred to the Big Thicket. Mr. MANSFIELD. Yes. Mr. HUGH SCOra . Many of my col- leagues have mentioned that we seemed to be going through some sort of little thicket. While I certainly would not characterize it as legislation of the feline persuasion, I am delighted that the dis- tinguished majority leader has men- tioned the defense authorization bill, be- cause we need to get our teeth into the "big ones," as the Senator is aware, and as the whole Senate is aware, if we are going to get our work done before the recesses we have been assured of getting. I hope that following the defense au- thorization bill, if there are any other "Big Thickets" in the vicinity, they will be brought in at the earliest possible time, and I know he will receive the co- operation of the minority and of the ranking Republican members of the committees in that regard. Mr. MANSisiaLD. Yes, indeed. May I express my thanks to the distinguished Republican leader and to other Senators for the accommodation and understand- ing they have shown in helping clear the calendar as much as possible so that we can get our work done insofar as it is possible to do so, But I think I should say, in all candor, that after the defense authorization bill is disposed of, it is anticipated calling up H.R. 8217, to which there will be some amendments proposed and which will entail some debate. Mr. HUGH SCOTT. May I ask what that bill is? !Play jU, 1t11.4 Mr. MANSFIELD. A bill to which POW to S. 2543 the following amendment to fietrOu:Vittlrft7513160v38014060601349015?FFFinY has referred: ances may we I be o ere a. On page 17, between les 12 and 13, insert Mr. HUGH SCOTT. I thank the dis- the fallowing new subsection: tinguished majority leader. Section 552(b) (4) of title 5, United States Mr. President, I am not responsible for Code, is amended to read as follows: "(4) trade secrets and commercial or li- the expletive deleted there. nancial information obtained from a person and privileged or confidential, including ap- plications far research grants based on orig- inal ideas." ORDER FOR ADJOURNMENT Mr. MANSFIELD Mr. President, I ask unanimous consent that when the Sen- ate completes its business tonight, it stand in adjournment until the hour of 12 noon tomorrow. The PRESIDING OiseetCER, Without objection, it is so ordered. AMENDMENT OF FREEDOM OF -- INFORMATION ACT The Senate continued with the con- sideration of the bill (S. 2543) to amend section 552 of title 5, United States Code, commonly known as the Freedom of In- formation Act. The PRESIDING oplacha. The bill is open to further amendment. Mr. KENNEDY. Mr. President, I yield myself 1 minute. The Senator from Kansas has men- tioned to me an amendment which he was considering offering to expand one of the exemptions dealing with medical research, and its relationship to the cate- gory of confidential information. Al- though we have no specific information about its impact at this time, I have in- dicated that I will work with him to re- view the proposal and make a determina- tion as to its merit. The Senator would then have the opportunity to offer his amendment at a later time, perhaps to a health bill that will be pending. Mr. DOLE. Mr. President, hosed on that ss.surance, I would like to commend the Judiciary Committee's Subcommit- tee on Administrative Practice and Procedure, under the very capable lead- ership of the distinguished Senator from Massachusetts (Mr. KENNEDY), for its work on this bill to refine the pro- visions of the Freedom of Information Act. I think they quite properly endeavored to correct some of the many problems of implementation created by the deficien- Mr. President, very briefly, this was a simple amendment intended to clarify in part the application of the Freedom of TnforMatiOn Act as it directly relates to research grants. I have received several letters on this subject from Kansas edit- . caters?especially those associated with medical or other scientific havestigae, tions?all expressing criticism of the act's interpretation and ultimate impact on original experimental project studies. COMPETITION IN PRREAREPI Basically, their arguments have been that research, like any other free enter- prise, is highly competitive. And while individuals capable of performing ex- periments using the ideas of others are rather plentiful, creative individuals with new ideas of their own are much less common. Therefore, it is extremely important that the ideas of such in- vestigators be protected. It seems to me, then, that the scien- tist who applies for a research grant, - based on his original idea, should not have to risk the exposure of that notion In a public document for anyone to test before he himself has the opportunity to be awarded funds to perform the necessary experiments; that is, the con- fidentiality of an application for a re- search grant being the integral part of the granting process that It is, the safe- guarding of the ideas contained therein should be imperative. PROTOCOL OF GRANT APPLICATIONS This very standard has been generally Invoked. in the past, as described by Dr. John F. Sherman, Deputy Director of National Institutes of Health, during his testimony before a House subcommittee surveying the granting process in hear- ings of June 1972. Certain portions of his remarks are particularly pertinent, I think, and merit the attention of my col- leaeues cies and shortcomings of the existing -Reading from his statement, Dr. Sher- law under section 552 of title 5, United man said that-- States Code. However, I am concerned that, as spelled out on the first page of Its report, the committee chose not to approach and attempt to resolve the difficulties emanating from the "excep- tions to disclosure" contained in sub- section (b) of the relevant section. They did so, apparently, on the prem- ise that such "exceptions" had been sub- stantially clarified through numerous reported court decisions. I would have to take issue with this position, particu- larly as it involves item 4 pertaining to "trade secrets," and the definition there- of. For there are many yet unsettled questions in this area, probably as the result of our failure to adequately specify by statute exactly what is meant by such a "secret." Accordingly I had considered offering The information provided in grant ap- plications submitted to the NIH is treated as confidential. Because research scientists and academic clinicians owe their advance- ment and standing in the scientific com- munity to their original research contribu- tions, their creative ideas are of critical im- portance and research scientists carefully protect their ideas. Thus, to the scientists and to the research clinician, research de- signs and protocols are regarded and treated as proprietary information, just as trade secrets are protected by the commercial and industrial sector. If we are to encourage vigorous competi- tion in health research, the NTH must re- spect applicants' ideas and protect them. If they could not be assured of this confiden- tiality, we believe the NIH review system and its encouragement of scientific competition could not be sustained. Scientists would not supply the explicit details of their proposed Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974 CONGRESSIONAL RECORD?SENATE VS 9339 research approach AV larAVAA4p reaggie%1%incutopqg ? cIA-RDP75600380R000600190008-2 - - and reflects on his qualifications as a sclen tist, it is not released to any other request or a without the principal investigator's consent tial for competent review, and the NTH abil sty to obtain effective evaluation of scaentin merit for further ptogrammatic judgment would be markedly hampered. o tie principal investigator (a) with re ard t g o previously apprneed - grant applications, the narrative statement and any related exhibits describing In detail . the research plan to be followed (sometimes ? referred to as the research protocol or re- search design) (b) with regard to previously approved continuation, renewal or supplemental ap- pUcatlons, the: c.omprebenslve progress re- ports describing the results and accomplis.b- ments of the projects since the last such report; (c) the entire twit of all site visit reports and "pink sheets" prepared by outside con- sultants and RIME staff during the agency review of the applications: ? - (d) the emare text of all continuation and renewal applications which have not yet been approved.?, ?e - For the purposes of analysis, these vari- ous documents will be referred to simply as grant applications, site" visit reports, and "Pink sheets." - After some discovery, the matter came be- fore the Court' for final hearing under an arrangement developed at a status confer- ence. The parties presented in camera a por- tion of a singe grant file marked to show the type of information defendant believes may properly be -withheld under the Act. This as marked, was also given plaintiff informally. It was agreed that the determi- nations made -by- the Court based o.o. _this example would control the disposition as to other similar material covered by .plaintiffn request and presently withheld. After the record was completed, the parties. pre- sented argument and were allawed iio tale . post-trial briefee Nana/ grant procedures Before turning to the conflicting inter- pretations of the Freedom of information Act presented by the parties, the mature of the material requested must be elaborated '-and its significance in the chain of the grant process explained.' The National institute of Mental Health operates a dual system of review for all major research projects. The first stage involves the initial review group (sometimes called a study section Cr review committee), tnade up of from 10-20 nongovernmental technical consultants, who are appointed by the Di- Executive Secretary for each review group grants, fellowships and training. There Is an qualified in a :specific field. There are :ap- proximately 20 NIMEL review groups for re- groups .for long-term program grants, small wtroehcotofoirurs ofyeNIMInEacrfoehrmoiveranlorylaecehppoingrdceatenrnisteehratol,rofthulape search project grants, as well as review NIMH is served loy Otte or more review groups who is appointed by the Executive Secre- tary. Each application is assigned by the EIIRGU- tive Secretary to one or more members (as- signees) of the initial review group for study and comment Assignees are selected because of their experience and competence in. the areas covered by the proposed researcheNon- nommittee members may also be asked to re- view a project on an ad hoc basis, when the Executive Secretary- feels that the commit- - tee Itself lacks expertise In a necessary area. When additional - Information is needed. the Executive Secretary may obtain 'it through correspondence, by telephone, or by a site visit conducted by the review group assignees. Site visits may also be requested by the assignees themselves when they believe it will aid in their review of the project. Site vis.ts are generally used for unusually large or multidisciplinary applica- tions, or when it is deemed Important to rnee ' personally with the investigator and his or her associates in order to observe the phensi- . 86MittiVatilbtfcFsofe? Mr. President, / ask unanimous con- sent that the remaining selected extracts of Dr. Sherman's testimony be included In the RECORD at this point. There being no objection, the testi- mony was ordered to be printed in this RECORD, as follows: PARTIAL Exraecr or Testraecner or Da. Jenne F. Sersateiner, Direrrre Drexcroa, Nsenateer, INST/TIFIES OF HEALTH, DURING HEARINGS BEFORE A SUBCOMMITTEE OP THE COMM/TTEE ON GOVERNMENT Ormerions FLOW OF INFORMATION TO THE PUBLIC REGARD- ING THE =MARCH metier PROGRAM 1. Applications While the substance of the research grant applications Is considered to be privileged. information, a notice of the application is sent to the science information 'exchange, The science Information exchange is an in- formational system operated by the Smith- sonian institution. , Section 1 of the research grant application is entitled "Research Objectives." This par- ticular sheet contains no privileged informa- tion. It Includes the . name and address of the applicant organization as well as the name and other pertinent information re- garding the professional personnel engaged on the project, the title of the project, and an abstract of the proposed project which has been prepared by the principal investi- gator. This sheet is sent to the science informa- tion exchange and is available from them when the project is funded. The publicnpar- ticularly the scientific community, may re- quest that information about individual projects or aggregates of projects from that organization. At the time an award is made, this information Isealso provided to the SSEE, plus Information regarding the dollar amount of the award. 2. Research grant awards Public notices of the research grant; awarded by the NIH ire -made available in a number of publications: (a) Each year a cumulative list of awards made during the previous fiscal year Is pub- lished in a aeries of volumes entitled "Public Health Service Grants and Awards" through the U.S. Government Printing Office. Data, with regard to the awards are broken down in a Aumber or fashions. Principally, how- ever, this is by institution, by States, by principal Investigator, the project title, the Initial review group, the grant number, and the dollar amount_ . ? (b) The DIVISSOII of Research Grant a also issues a two-volume aeries each year entitled "Research Grants Index," which displays the grant awards by major rubric headings, such ?? as arthritis, brain injury, 'gastroin- testinal. circulation, et cetera. The research grants are also indexed by number and alpha- betical listings of investigators (a) In addition to' these formal publica- tions, interim listings .of grant awards are also available to interested individuals or organizations, Includingemembers of the preset. Notice of a grant award is also sent to the congressional Representative in whose district the grantee institution is located. 3. Notification to principal investigator re applications which. are disapproved or "ap- proved but not funded" For those applications which are disap- proved or, though approved are not awarded, information summarizing the reviewer's opinions regarding scientific merit will be sent to the principal investigator upon his request, Since this Information relates to the t Approved For Re Mr. DOLE. Mr. President, in spite o this practice in the treatment of gran applications, the courts have, unfortu- nately, not always seen fit to accept it as being in compliance with the Freedom of Information Act provisions. And I think this may be due in great part to the vague language used in the previously men- tioned "exemptions" subsection. In fact, in ruling last November that privileged research grant, information must be made public, U.S. District Judge Gesell admonished Congress for its "? * * imprecise and poorly drafted freedom of information statute." I believe the entire backdrop and rationale of that deci- sion?which is currently on appeal?is Important In the consideration of this amendment, and ask merrily:nous consent that the complete memorandum opinion and order be printed in the RECORD. There being no objection, the de- cision was orde red to be printed in the REcoan, as follows: {U.S. District Court for the District of Co- lumbise?Civil Action No. 1279-731 WASHINGTON RESEARCH PROJECT, INC., PLAIN. ? TIFF, VERSUS DIPARTMENT OP HEALTH, ED., LIGATION, AND 'W//LFARE, AND CASPAR W. Wanntszcza, Dereareezers , - MEMORANDUM OPINION Plaintiff invokes the Freedom of Informa- tion Act, 5 U.S.C. 1552, and. seeks to eolnnel production of certain records from the De- partment of Health, Education, and Welfare and one of Its constituent agencies, the National Institute of Mental Health (NINIFI). An, injunction and declaratory judgment are sought. Plaintiff's written re-, quest for production, Inspection and copy- ing of specified records has been fully proc- essed through appropriate administrative channels and the issues are accordingly properly' before the Court, which has juris- diction under 5 U.S.C. 1522(a) (3). On April 13, 1973, plaintiff requested, with detailed specification, documents relating to eleven. designated research grants by the Psychopharmacology Research Branch of NIME for studies on the drug treatment of children with learning difficulties or behav- ioral disorders, particularly hyperkinesis. All but two of the research grants involve the use of one or a combination of stimulant or anti-depressant drugs, including methyl- phenidate (Ritalin), dextroamphetamine, thioridazine and irnipramine, on selected school age and/or pre-school children. All of the grants are administered by pub- lic or private non-profit educational, medi- cal or research institutions. None of the grants is concerned with the production of marketing of the drugs being tested. Their purposes include the determination of opti- mai dosage levels and treatment schedulea the identification of possible harmful side effects such as drug addiction and loss of weight: the measurement of the effect of different drugs on learning, including the existence of state-dependent learning; and the development of improved assessment techniques to measure the efficacy of drug treatment on children. Following a series of conferences and administrative actions, which need not be reviewed here in any detail, a considerable number of documents were furnished. How- ever, as of-July 27, 1973, the following cate- gories of documents were still being with- held, and it is upon these that the litiga is has linally f lease 2001/08/30 : CIA-RDP75B003 May j0, /974 S'9340 CONGRESSIONAL RECORD?SENATE , . eel facilities anti 'eNNamvecliFiorviRelease 2004/08d2s0s: GlAtRialn5B00380R0006001,8000842Pa-rtim's of the grant used Or to observe a particular -experimental informative document in the history of the applications, pine sheets," and site visit re- technique in operation. Visitors may make grant." ports requested, suggestions for changes in the proposed re- The second stage in the dual NTMII review In resolving this dispute dispute, the Court search plan, and a revised protocol or ad- process involves the National Advisory Mental is faced win the initial difficulty that the deridum is sometimes submitted to NIMH Health Council, a body set up by statute to Act on its face does not give special consid- following the site visit. , "advise, consult with, and make recom- eration to the field of medical research or the At the conclusion of the site visit, the team mendations to, the [Secretary] crn matters re- problem of grant applications. Accordingly. meets in executive session to discuss their lating to the activities and functions of the es is usually the case where the Court must reactions andeto formulate a recommends- (public Healthl Service in the field of Mental attempt to apply this imprecise and poorly tion. One assignee is delegated to write up Health." 42 U.S.C. _?. 218 ( c) . The Council is drafted statute to a situation apparently the team's findings, sometimes with the specifically authorized "to review research never contemplated by the Congress, it be- assistance of written reports from the other projects or programs submitted, to or initi- comes necessary to resolve the controversy . visitors. The site visit reports are prepared sited by it in the field of mental health and by reliance an the high gloss which the on behalf of the -team as a whole and they recommend to the . Secretary .;'. , any such learned decisions of this Circuit have been do not identify evaluations with particular projects which it believes show -.promise of required to place on the legislation. members of the site visit team. ' making valuable contributions to - human The initial question 'for 'consideration is The site visit report or, when no site visit knowledge with respect to the cause, pre- whether the "pink sheets," site visit reports ? was held, a written evaluation prepared by vention, .or methods of diagnosis, and treat- and grant applications are documents cons- one of the assignees is made part of a.grant enent of psychiatric disorders." 42 U.S.C, 'Mg within the 'disclosure provisions of ? 552 book which is sent to each member of the ? 218(c). The members of the Council are the (a). Under the decisions in this Circuit, it Is- initial review group four to six weeks before _Assistant Secretary for Health, the Chief clear that the NIMH initial review groups its meeting. The grant book also contains a medical Officer of the Veterans' Administra- constitute "agencies" as that term is used copy of the complete grant application for . tion,-.a medical' officer designated by the Sec- In the Act. See, e.g:, Grumman Aircraft En- each. project -which is scheduled to be re- -retary of Defense, and twelve public mem- gineering Corp. v. Renegotiation Sri., No..71e, bers appointed by the Secretary of HEW. 1730 (D.C. Clr. July 3, 1973) ("Grumman Initial 'review groups meet three times a ? 'The National Advtsory Mental Health :tr). They "serve as a discrete, decision-pro- year. The Clinical Psychopharmacology Re-Council meets three times a year for two during layer" in the application process and search Review Committee, . which reyiewed or three days to review the "recommenda- the priorities they set 'receive only -pertunc- . the grants involved here, considers an average -dons", of all of the Initial review groups tory review by the National Advisory Mental of ten to fifteen applications at each meet- within NINTH. The Council. reviews from 500 Health Council-rd. at 10. It is equally clear? ing, Including - supplemental and renewal to n,000 grants during each meeting. Except' indeed not contested?that the "pink sheets" aPPlicationse Each proposed research proj- where a special request is made, the Council represent the final: opinions of the Initial act is reviewed separately for 'approximately members do not receive individual grant ap- review groups, presenting authoritative Tea- 45 minutes to an hour. The -principal as- -plications. Their decision is based solely on sons for assigning" each application to a signee describes the project and presents the the review group Summary Statements. Ex- .particular priority.. The site visit' reports findings 'of the site team visit_ The other .cept for grants on which a special question must be viewed as- integral parts of -these 'visitors also present a critique of the project, is raised (no more than five percent of the final. decisions, since, . as indicated by the and NIMH staff may be asked-to -comment. grants), the Council approves the recom- sample file, they are incorporated by refer- Following the discussion and after a con- mendations from each review group in a ence into the "pink sheets" and are cited . sensus has been reached, a' formal vote Is block. Consequently, the Council's concern as a basis for the-,review groups' final elect- taken on each project. If it is approved, each es with -q.uesticeis of general- Policy and of . sions. See Sterling 'Drug, Inc. v. F.T.C., 450 meember of the committee, then assigns a program' priority; and not 'with the scien- /.2d 698, 704-08 . (D.C. Cir. 1971); Amer-teen sating to the project, which Is used for de- tide merit of any individual applications. 'Mai/ Lines, Ltd. v. Gulick, 411 P.2d 696, 703 iermlning funding priorities... The minutes ? Following approval by the National Ad- (D.C. Cir. 19e8). Both types of doeuments - ? of each meeting contain a complete attend- visory Mental Health Council, funding of a :are therefore rubtect to disclosure as- an . ance list and -data on. the number of ap- :project is contingent upon the availability agency's "final opinions . . . made in the provals, disapprovals and deferrals of appll- of funds. General priorities for funding are adjudication of eases . . ." 5 U.S.C. ? 552(a) cations considered, but they .do not contain , deteemined by the Director of .NIMH, with (2) (A). As for the' grant applications, they a summary of the discussion regarding any "the advice of the National Advisory Mental 'are "Identifiable records- of an agency and ,. application. .. o. . o . , -e . : . ? Health Council. Within -these general priori- are therefore subject to disclosure upon spe- ' After' the :meeting, of the Initial review teee, "90 Percent of, the approved grants are cific request, which plaintiff has duly made. group, an Nnelli staff person prenares a Sum' -funded in the order 'of numerical. priority See 5 U.S.C. I 552(a) (3); ?Bristol-Myers-Cm mazy Statement ("pink eheet") for each ' set by the initial review group. Researchers .7, F.T.C., 284 Fe Seipp. 745, 747 -(DDC. 1968). grant, containing in -a single document a are notified of the grant award'by an award All of the documents . sought by plaintiff brief description of the proposed research or letter and a formal notice, both 'of which are must therefore be produced in full unless the training grant request and the substantive signed by the NIMH branch chief. The award Government can establish that certain pa- considerations that led to the specific recom- letter states that the project has been ap- pers or sections thereof' fall within the spec- mendation, including in the case of a split proved by the initial review group and the ifi.c exemptions enumerated in the 'Act. De- vote the reasons for both majority and National Advisory Mental Health Council. fendants suggest that three of these excep- . minority opinions. The Statement will norm.- - . II., The act . ,. ,., tions are applicable to the documents at is- ally discuss the background and eompetence : These procedures generate .a prodigious sue. In considering this claim, the Court . of the investigators, any special aspects of- --amount of, information. concerning the pro- must construe. the requirement of disclosure the facilities and equipmnet, and whether posed research projects and- the allocation broadly and the exemptions narrowly in ienene . incorporates ? order to promote "the clear legislative intent the budget is appropriate to the aims and of fmitia. among them. . methodology 'of the project. Where human 'into its application instructions a. warning to assure public access to all government subjects involved, the Statement should in- that some of this information must be made records whose disclosure would not segnif- elude the opinion of the review group on the ' available to the public under the , Freedom Icantly harm specific governmental inter- risks involved. In addition, the site visit re- 'of Information ,Act. However, it' specifically eats." Soucie V. 'David, 448 F.2d 1067. 1080 port if one has been written, is incorporated assures the applicants that the following in- ? - - . ? by referenee into the Statement.. - formation does not fall within the terms of Defendants argue that all description of All Review Commitee actions are consid- the Act and will not be disclosed to the applicant's proposed research, whether in ered to be collective and anonymous. There- public:. ? . . its application or in agency reports, consti- fore, the Summary Statement does not at- a Applications for research grant support tutes confidential material within the terms .. ? tribute evaluations or comments to any in- are considered. to be privileged information, of the fourth exemptions However, that ex-; . dividual member. If two or more members Until such 'time as an 'application is ap- emption shields only trade-secrets and other voted against the majority recommendation, " proved and a grant awarded, nolnformation confidential information that is-either "corn- their opinion is also summarized in the is disclosed 'except for the use of-Section I of merciale or "financial" in nature. Getman y. ? Statement, without identifying tile members the application form PHS-398 and the notice N.L.R.B., 450 F.2d 870, 673 (D.C. Cir. 1971). involved. - . of research project form PHS--166 by the Sci- None of the applicants for NIMH grant funds The Statements are the principal source of ence Information Exchange in connection are profit-making enterprises, nor are such Information regarding the application and with its responsibilities for exchange of in- funds sought for the production or market- the recommendation provided to the Na- formation among participating .agencies, tog of a-produet or service., Whatever Con- e10nm Advisory Mental Health Council; they b. Section II of the application form PHS- grass may have meant by the-admittedly tin- are also used by NIIVIH staff to provide infor- 898 or the corresponding material in appli- precise terms in the fourth exception, the matt= concerning disapprovals to applicants cation form PHS--2590. Court cannot, consistent with its duty to . and to follow the results of approved proj- C. Details of estimated budgets, construe the Act's exemptions narrowly, find sets. According to the NIMH Handbook, at d. Discussions of applications by- advisory that scientific research procedures to be un- bodies 33 Plaintiff challenges this interpreta- dertaken by non-eleofit educational or mad- Footnotes at end of article. tion of the Act and NMEFI's consequent with- lea institutions fall within those terrase Approved For Release 2001/08/30 : CIA-RDP75B00380R000600190008-2 May 30, 1974 CONGRESSIONAL RECORD ATE S 341 Even if the Court APpneviiiii EaCIRsejpa however, defendants would not prevail, for they have wholly failed to meet their burden of proving that the particular research de- signs and protocols at issue in this case con- tain material that would normally be kept confidential by the researchers themselves, regardless of the agency's own assurances of confidentiality. See Sterling Drug,, Inc. V. F.T.C., supra, at 709. Defendants also raise the fifth exemption,* which shields inter- and intra-agency memo- randa. However, this Court's finding that the "pink sheets" and site visit reports constitute final agency opinions takes those documents out of the fifth exemption, see Grumman II, supra, at 13, and the applications are not protected because they were written by non- agency personnel, see Note, The Freedom of Information Act hand the Exemption for Intra-Agency Memoranda, 86 Ham- L. Rev. -1047, 1063-66 (1973) and contain essentially factual material, 855-Bristol-Myers Company v. F.T.C., 424 P.2d 935; 939, cert. denied, 400 US 824(1970) Similarly, there es n?erit to defendants' claim that the disclosure of any agency refer- ence to the profeasional qualifications or competence of a particular researcher would constitute a clearly unwarranted inraseon of personal privacy under the sixth exemp- tion, That provision shields only, "personnel and medical files and similar files" from dis- closure. Although the term "files" has been justifiably criticized as vague, see X. Davis, supra note 4, at 798, it cannot be ignored. The sixth exemption was intended to protect "detailed Government records on an individ- ual:' H. Rept. 1497, 89th Cong., 2d Sess. 71 (1966), and it -cannot be extended to shield a brief analysis of "professional competence written into a final agency opinion. - Perhaps in recognition of this distinction. Congress incorporated another privacy pro- vision into the Act which is not limited to Government files. Immediately following the disclosure requirement. In 552(a) (2), the Act states: "To the extent required to pre- vent a clearly unwarranted invasion of per- sonal privacy, an agency may delete identi- fying details when it makes available or pub- lishes an opinion, statement of pollen inter- pretation, or stain manual or instruction. However, in eachecasen the justification for the deletion shall ine explained fully in writing," Portions of the "pink sheets" and the site visit reports could fall within the terms of this exemption, but the Govern- ment has the burden of establishing that disclosure in each instance would be "clearly unwarranted." See Getman v. N.L1.11., supra, at 674. Upon careful consideration of the com- peting interests involved, the Court con- cludes that the Government may, to the extent described below, delete identifying details from statements of opinion concern- ing the professional qualifications or com- petence of particular individuals involved in the research project under consideration. Disclosure of such 'information might sub- -stantially injure thsin professional reputa- tions of researcheren while deletion would not; in most instances, significantly obscure the reasons for assigning an application to a particular priority. ' It must be stressed,-however, that the hold= lug of this Court ire narrowly limited. Nor- mally, only the names of the individuals 'un- der discussion may be deleted, leaving the opinions themselves free to be disclosed. Grumman Aircraft Engineering Coro. v. Re- negotiation Bd., 425 P2d 578, 580-41 (D.C. Cirs 1970) ("Grumman 1"). If, as is the case with many of the documents sought by plain- till, the names of the researchers have al- ready been disclosed or if for any other rea- son the deletion of such names would not conceal the identity of the individuals under discus.sion, the statements of opinion might 50.2a04/Qata irctrAgitaem every case the defendants may only delete that minimum amount of itforinatlon nec- essary to conceal the identity of those indi- viduals whose privacy is threatened in the manner described above. ... As a further limitation, no deletions what- ever may be made from documents relating to an application--whether initial, continua- tion, renewal or supplemental?which has actually been granted, since in such cases the public's interest in knowing how its funds are disbursed surpasses the privacy interests involved. Nor may the identity of an institutional applicant be concealed, be- cause the right of privacy envisioned in the Act is personal and cannot .be claimed by a corporation or association:K. Davis, supra note 1; at 781 799. ? --Apart.fronn resolution of ,:the instant con- troversy, plaintiff asks for assistance to in- sure that subsequent similar requests for information, from NEVIII will hot be delayed and 'obfuscated by drawn-out negotiations and Court -proceedings. Plaintiff's concern is well: taken, for the Act should; to the extent practlean be self-operative no assure prompt disclosure-as-contemplated by Congress. At a minimum, the defendants should promptly -modify existing regulations and grant ap- plication instructions to bring them into conformity with the decision of this Court. It is particularly important tbate grant ap- plicantsehe placed on notice that informa- tion submitted pursuant to an application for NIMH grant funds and final agency opin- ions concerning' the award ?of_ such funds, as defined above, cannot' normally be kept confidential -nor. withheld from the public. The foregoing shall constitute -the Court's findings- of fact- and conductions of law. - GERHARD A. GESELL, - V. District ,Judge, Novemszat 6,-1973. :FOOTNOTES 1 The following textual description of the NL1111 grant review process is taken prin- cipally from the deptesition of D. Ronald S. Lipman, Chief of the Clinical Studies Sec- tion of the Psychopharmacology Research Bramels of MUM and from the ND/111 Hand- book for Initial Review Staff , (1970), plain- tiff's 1 exhibit-in evidence. neon-nee 1Supplemental applications are for addi- tional funds above the amount previously approved for the current or any future proj- ect year. Renewal applications are for funds beyond the project period previously ap- proved. Continuation_ applications are Sled at the beginning of each year in the previ- ously . approved project period. Generally, supplemental and renewal applications must compete for available funds with other ap- plications, new or otherwise; they are proc- essed through both stages of the review process. Continuation applications are gen- erally noncompeting and not subject to the review process. "National Institutes of Health, Grant for Research Projects, Policy Statement 14 (1972). This interpretation of the Act is con- sistent with Einers more general interpreta- tion, codified at 45 C.P.R. 1 - ' 5 U.S.C. I 552(b) (4) : "This section does not -apply to matters that are . trade secrets and commercial or-financial informa- tion obtained from a person and privileged or confidential...." ; 'In recent testimony before. COngress, Dr. John P. Sherman, Deputy Director of the National Institutes of Health, argued that the fourth exemption should apply to grant documents because "to the scientist and to the research clinician, research designs and protocols are regarded and treated as pro- prietary information, just as trade secrets are protected by the commercial and industrial sector." Hearings on U.S. Government In- formation _Policies and Practices Before a Subcoram, of the House Comm. on Govern- OROA106104116100(12d2conr, 24. Sees. 3520 -(1972). However, this analysis is only rele- vant to the extent that Dr. Sherman recog- nizes that research procedures are not act"- teeny trade secrets, nor are research part of the "commercial or industrial sector." His arguments We exceptional ? *. ? ? 5 The Attorney General's Memorandum on the Public Information Section of the Ad- ministrative Procedure Act (1967), at 34, ap- parently reached' a contrary conclusion, based upon commente in the congressional reports to the effect that "technical data" .concerning 'scientific . or manufacturing processes" would be covered by the fourth exemption. However, Professor Davis points out that the quoted 'language was derived from a Senate report on an earlier version bf the exempelon which did not contain the limiting words "commercial or financial," and that the shielding Of non-commercial tech- laical information would be contrary to the clear wording of the statute. K. Davis, The Information Act: A Preliminary. Analysis, 31 U. Chi. L. Rev. 761, 789-91(1987). In, resolv- ing this dispute in Davis' favor. the Court- finds it signiicant that the D.C. Circuit in Getman followed Davis and interpreted the fourth exemption narrowly (although it did not specifically consider the disputed lan- guage in the congressional reports), - while the Attorney General's Memorandum in- terpreted it broadly to cover all confidential -material e5 U.S.C. 552(b) (6): "This section doer not apply to matters that are .. :inter-agen- cy or' tiara-agency-memorandums or -letters which would not be available by law to a party other agency . a n a agency iTslitigation with the n 75 U.S.C. 552(b) (6) : "This section does not apply to matters that are personnel and medical files- and similar files the dis- closure of which would constitute a clearly' unwarranted invasion of personal pri- 6 An earlier version of the sixth exemption shielded the specified files and all "similar matter" (emphasis added), but Congress amended that phrase to use the more Lim- ited term "files" throughout. K. Davis, supra note 4, at 798 n. 94. - (U.S. District Court for the District -of Co- lumbia--Civil Action No. 1279-731 WASHINGTON RESEARCH Paoarcr, e INC., Px.ssse- Tn',, VERSII3 Dneeserserarr OF HEALTH, Emu- CATION, AND WELFARE, AND CASPAR. . Wzue- nssaza DEFENDANTf3 - In accordance with the Court's Menaoran- slum Opinion filed this 6th day of November, 1973, it is hereby _ - Ordered that the defendants promptly amend all relevant application instructions and agency regulations, including those codi- fied at 45 CYR. 5, to bring them into con- formity with the decision of this Court, and it is further - . . - Ordered that tice defendants promptly pro- duce and mace available to plain-n/1 for in- spection and copying all documents listed in its request for information dated April 13, 1973, except that, if any such document re- lating to an application that has not been granted contains a statement of opinion by a Governiziene officer, employee or consultant concerning the professional qualifications or competence of an individual involved in the - research project under consideration, the de- fendants may delete from that document any detail which would identify a particular in- dividual as the subject of that statement, or. if such deletion would be impossible or in- effectual, the- defendants may delete the statement GERHARD A. Gess:sus, U.S. District .fudge. Hove:ware E, 1973. Approved For Release 2001/08/30 : CIA-RDP75B00380R000600190008-2 ..el e_elele nainneeree, aeenennee....., 1.c Mk. DOLE. Mr. President, I think the on on the engrossment of the amend- STATEMEZIT r 1?60 Mr. President m points of summary are eofarell Project, "'IaaPs 'f.02AnFTWinatle 411,4.4344ka0,41380,RGeosathisoula.2the musk'. eituation in this enent of leCealth, Education and Wel- fare clearly demonstrates the need for congressional action to insure that re- search ideas are indeed accorded the confidential status which they deserve. It is for that sole reason that I drafted the said amendment, in anticipation of proposing its adoption. While it is not our business to preempt the courts in matters of judicial concern, it is our affirmative legislative duty to lay down proper statutory guidelines. Regardless of the outcome in the cited case, therefore, we still have the obli- gation to protect against any future un- necessary, unwise, and unfair premature disclosure requirements in the specific area of scientific experimentation. Certainly, the whole idea of "disclo- sure" and the public's "right to know" is of paramount Importance at this. time in our Nation's history. And I have no de- sire or intention of placing undue re- strictions on those fundamental con- cepts. But I feel very strongly that, in the area of research grants, nondisclo- sure entitlement is justified?and com- pletely within the spirit of the Freedom of Information Act itself. It is my sincere hope that my col- leagues will agree, and join me at the ap- propriate time in moving to identify such matters as specifically excepted from categories of information which should be disseminated to the public. I urge this problem to be the subject of special hearings at the earliest opportunity, and that it be resolved coincident with fu- ture health legislation, as the distin- guished floor manager of the present bill (Mr. KENNEDY) has suggested. The PRESIDING OFFICER. The question is on agreeing to committee amendment in the nature of a substitute, as amended. The amendment was agreed to. The PRESIDING OFFICER. The question is on the third reading of the bill. The bill (S. 2543) was ordered to a third reading and read the third time. Mr. KENNEDY. Mr. President. I ask that the Chair lay before the Senate a message from the House of Representa- tives on H.R. 12471. The PRESIDING OterICER laid before the Senate H.R. 12471, to amend section 552 of title 5, United States Code, known as the Freedom of Information Act. The PRESIDING OFFICER. The bill will be considered as having been read twice by title, and without objection the Senate will proceed to its consideration. Mr. R-FINNEDY. Mr. President, I move to strike all after the enacting clause of H.R. 12471 and insert in lieu thereof the language of S. 2543 as amended. The PRESIDING OieriCER. The ques- tion is on agreeing to the motion of the Senator from Massachusetts to insert the Senate language as a substitute for the House bill. The motion was agreed to. Mr. KENNEDY. Mr. President, I ask for the yeas and nays on final passage. The yeas and nays were ordered. The PRESIDING 011aCER. The ques- ment. r that we are giving undue lati- grossed and the bill to be read a third fear tude to the courts In dealing with a very time. important national issue. The amendment The bill (H.R. 12471) was read the asks the courts to review documents to de- termine their effect on the national defense and foreign policy of the United States. Yet the amendment offers the courts no guid- ance in performing this task. It asks the court to make political judgments. Indeed, this Is a teal* for which the courts themselves have found that they lack the aptitude, facilities and responsibility. This is not my own flat statement. These are the words the Supreme Court used in C.& S. Ait Lines v. Waterman: , [Tlhe very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which. the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial In- trusion or inquiry. Likewise, a Harvard Law Review Develop- ments Note reached the same conclusion. In discussing the role of the courts 121 re- viewing classification decisions, it states that "there are limits to the scope of review that the courts are competent to exercise," and concludes that "a court would have difficulty determining when the public interest in dis- closure was sufficient to require the Gov- ernment to divulge information notwith- standing a substantlea national security in- terest In secrecy." 85 Harvard Law Review 1130, 1225-28 (1972). Furthermore, the Attorney General in a letter which I earlier introduced in the Rec- ord expressed the opinion that grave con- stitutional questions arise in the adoption a this am.endrreent. As the Attorney Gen- eral concluded, -the conduct of defense and foreign policy is specially entrusted to the -,Executive by the Constitution, and this responsibility includes the protection of In- formation necessary to the successful con- duct of these activities. For this reason, the constitutionality of the proposed amend- ment is in serious question." Second? I believe that the amendment to exemption 7 could lead to a disastrous ero- sion of the FBI's capability for law enforce- ment notwithstanding the safeguards and standards contained in that amendment. To be sure, the standards contained in the amendment look well on paper. However, based on the experience that the FBI has ac- cumulated to date under standards similar to these, It is clear that they are difficult third time. The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall it pass? Mr. GRIFFIN. Mr. President, is the Senator from Nebraska entitled to rec- ognition? The PRESIDING 01010ICER. The Sen- atorrtlehza is recognized. r. President, I shall e not more than 3 or ? 4 minutes to recapitulate what has transpired today on this bill. Fixate; Point out that this bilLsaas re- ne.rted Peld-wittusiat.ealajec- tion from the Jtidiniary Committee trine- eemnlish centajneleneheedneaLchanges in the Feelora ne 'fief armatinn _Act,. which Some substantive changes were offered In committee. They were turned down. The purpose was to make it an effective and an efficient implement and in a. very vital field; namely, the right of the pub- lic to know, on the one hand, and, on the other hand, to conserve the confidential- ity of Federal Government departments and documents and to enable them to function properly and effectively. r...Beeeislente t is tje_O1..e.Ajlealiad'e that msge_p_ina'or substantive ch es were effected by amendmen s on the floor of the Senate today. ilTi-m?Tire7---ntion?and I shall do sa? to vo a aarg.arn se=itaahse agreement Vete-fore:the bill, ntion to call to thea_feeMntlan_ef the Pre e_serY ? " * egmble_featums_a_itejwo amend- - ments. In nlY judgment, there has been a dis- astrous effect upon law enforcement, par- ticularly by the Federal Bureau of in- vestigation and the law enforcement agencies of our national Government. The amendments will have an effect also on the local law enforcement agencies a.s well. I shallniegeabeePeresidentna,s_steongly aWaneto, vete thisenaeasure.-It. is my bellefahat it is sufficiently disadvanta- geolai Ethatatemegpetes a veta...It is to be regretted, Mr. President, because we had a good bill. We should go if not Impossible to administer. forward and make the Freedom of In Here are some of the effects which adop- formation Act as effective as possible tion of the Mot amendment could have. ?I. thin 1. It could distort the purpose of agencies e '1_.qr?t.d bee W ed OMI..38:Ithetheaosaany...1efestsCO1X132QtiLlig sue is as the FBI, imposing on them the added burden of serving as a research source for for information that either shout e is- every writer, busybody, or curious person. alined or shoul a e d enteakand with either interests such as permitting 2.. It could Impose upon these agencies the theseaoleeeview classified_documents tremendous task of reviewing camera. , many investigatory files to make an Indic- each page of each document contained in any of tlaeir Mr. President. I make this as a state- pendent judgment as to whether or not any ment in connection with the future pro- part thereof should be released. ceedings on the bill. 3. It could detrimentally affect the confi- dance of the American people in its Federal Mr. President, I ask unanimous con- n iast3haar-t sent that a brief statement summarizininvestigative agencies since it will be suraepenies no longer those points be printed in the Recoee. their ide nntities and the informatton they There being no objection, the state- furnish in confidence for law enforcement ment was ordered to be printed in the purposes will not some day be disclosed to RECORD, as follows: the subject of .the conversation. ? ? Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 May 30, 1974 CONGRESSIONAL RECORD ?SENATE S 9343 rearee, and ansily; ApprovedifooRelease 2001/08/364023A-RDPITSBCRI3 or severe problems regarding the privacy of My time. Mr, KENNEDY. Mr. President, I yield Mr. President, in my view, nothing 9rouid- *seek the remainder of my time. be lost by deferring action on this steeled- back meat because tne P The pREsmialo OFFICER,.HI is now operating under All time standards virtually similar to those contained has been yielded back. The bill having in the amendment. It would be well to al/ow been read the third time, the question is, a suitable interval of experience to be ac- Shall it pass? On this question, the yeas cumulated under these regulations In order and nays have been ordered, and the to ascertain, the wisdom or lack thereof irt putting these standards' In statutory form. Mr. President, the highly detrimental and far-reaching impact' that these two aMend- manta tairen together pose is so grave and sweeping that it is my intention to address a letter to the President urging as strong as can that he veto this; measure- if it passes In this form. Alaska. (Mr. GRAVEL). the. Senator from Mr. eecneaaaneen, neee President, win Indiana Gerr. lieeexx), the Senator front the-Senator-yield?, e South Carolina (Mr. HOLLINGS).the Sen- Mr. HRIISIC.A. Mr. President, I glonne ator from Iowa (Mr. Hommel, the Sena- yield' to the distinguished Senator from tcw from Hawaii (Mr. Nouns) the Sen - Aramaean atter from South Dakota (Mr.. Mc, me.eenueeereoer, ' pees-nine* :1 GovEarr)e the Senator from New Mexico wish to assz -)iac with the eyiews (Mr. MorrroveY, the Senator from Rhode expressed by-t ? .1-guished Senator Island (Mr Pesecar), the Senator front freffi-.Nerea-sTea. i nely intended to sup- Rhode Island (Mr. PELL), and the Sena - pare- the measure aant, came to theneroon tor from Alabama. (Mr. Mem/moa) are of the neuateea. e..ie2LI,IF the. necessarily absent. toeim,ahichndeatanzpleepf the. and voting, the Senator from A/aska ',_Btlf*Lement and ea, the alein:tTewnennegurelle On documents and rec-. ?Tee eon/Ult. RUIDIDOrt the measure_ r shall now have to vote against the bill. is..teN et E,i).x. tense:lent, .ryield myself 2.minutese - ? ? The Freedom of Information Act was passed in 1966. This legislation we are considering today is really a response by Congress to the past experience we have found with- the failure of Government agencies to respond to the. public's legiti- mate interest in what had been taking place inside their- walls. It. is precisely eie extreme and. unreasonable secrecy of the past that this addresses, and I think the overwhelming support by the press- arid acmes the- country for sorcte legislative response to this secretly can ?.:* answered by thre bill. I should say that the amendments that [eve been agreed, to by a strong vote in it Senate today inn* way infringe Mreel =lanai security or. upon the law en- nee:Tient agencies and their responsi- ilities in this cormizy. thmk the; is the most important legietative action that , Aanueeek: Doecenlci . Mondale Aiken Eagietozi Moss be taken to open up the. Govern- Baker Ervi Muskie merit to the American people, who re- Bartlett quire it, who demand it, who are begging Barb and Pleading/wit._ . Beall Salmon I want to acknowledge the construe- Bentsen tle and supportive efforts of Senator Bible 1-brosice and her staff In developing flenr' latce176, legislation for floor action. / am disap- Drente pointed that he does not feel that he Burdick. can support this bile as amended on the Byrd" Harry P., Jr. floor. clerk will call the roll. The second assistant. legislative clerk called the roll.. Mr; ROBERT C. BYRD. I announce that the Senator from California (Mr. CRANSTON), the Senator from Arkansas (Mr. FITLBRIGHT), the Senator from amendments that have_ jessiteenziO. to further amaounce that, if present (Mr. Gamin.), the Senator from South Dakota (Mr. McGovnue), the Senator from Rhode Island (Mr. PASTORE). the Senator from Rhode Island (Mr.. Pent), , and the Senator from California (Mn CRANSTON) would each vote "yea." Mr. GRIFFIN. I announce that the Senator from 'Utah (Mr. Terenerse), the Senator from New York (Mr. BacktEr), and the Senator from Idaho (Mr. MC- CLURE) are necessarily absent. I also announce that the Senator from Colorado (Mr. Domnsacx)? the Senator from Arizona (Mr. Fearrnee, the Senator from Arizona (Mr. GOLDWATER), and the Senator from South Carolina (Mr. Tertramouel are absent on official, busineasee "e ? I further announce that, if present and voting, the Senator from South Carolina (Mr. Tereareoten) would vote The result was announced?yeas 64, nays Ile as follows: [No 22/ LeiM TEAS-64 8B0e 5 9 060u-op-Wt.-- 40,;w5.; Peng ' Gurney ? Nelson ? Packwood Hart Pearson Hasltell Percy Hatfield PrOXTetire Hathaway Ribicoar ' Huddles/on Roth " ? Htunplarey Berme/ken Jackson Scott Hugh Ja.vits Johnston Kennedy Stevenson hiagnuson SYminlOon Mansfield Taft Mathias. 'runner Males Weicker Williams Edeteall TOULIg. Metzenbaum Cannon .The bill provides ample protection for Case the legitimate interests of Government- Ftene ea: -??-? agencies. It also insures that they will be. open and and responsive- to the American coca Dole people. I hope that the bill will be passed. I am ready to yield back the remainder Allen of my time. . pd3yrd, Robert Mr_ IIELD.W.A. Mr. President, may I C*t4c41^ Curtis- ask al my colleagues if there are area Eastland requests for time? Apparently there ars Grunts Buckley gartke Pastore Cranston El ollings Pel I Dominick Hughes Sparkman Fannin Moore 'Thurmond Funnier& McClure Goldwater McGovern So the bill (l.R. 12411) was passed. Mr. KENNEDY. Mr. President, I move that the vote b r which the bill was passed be reconsidered. Mr. MOSS. Mr. President, I move to lay that motion on the table The motion to lay on the table was agreed to. ' - Mr. KENNEI>Y: Mr. Presidertt-, I move that S.1543 be indefinitely postponed. The motion was agreed to. ? SERVICRS RESE-Al HEALTH STATISTICS, AND M CAL. LIBRARIES ACT OF 1374 Mr. KENNEDY. Mr. President, ask the Chair to lay before the S e a message froze the House of Re mita- tives on H.R. 11385. The PRESIDING OleraC (Mr. 'Nome) laid before the Senat a message from the House of Represe Jives an- nouncing ita irsagreemept t the amend- ment of the Senate to t e bill 11385) to amend the Publi Health Serv- ice. Act to revise the prog ems, of health services research and to xtend the pro- gram of assistance for libraries, and requesting a co once With the Senate on the disagre trig' votes of the two Houses thereon. Mr. E:ENNEDY, I ve that the Sen- ate insist upon its am ndment and agree to' the request: of th House for a con- ference on the disa eeing votes o.t the two Houses thereon, rid that the Chair be authorized to t the conferees on the part of the ate. The motion w agreed. toe. and the, Presiding Officer, ppaintece Mr... KEN- , Neer,. Mr. Wieer Mr,. NELSON, Mr_ EACLETON, Mr. con Mr. Htrones- Mr. Pete, Mr M ALE, Mr. EtteneWer, Mr. SCHWEIKER, . ?TAVITS, Mr. DOMT- NICK? Mn BEALL., . TAFT, Mr. SITAYTORD conferees on part of the Senate_ - ENERGY TIL SPORTATIO14 SECU- RITY OR TSECURITY--AT WHAT COST? - . Mr. CO TIN. Mr. President, ask unanimous cl sent to insert in the Rvc- - max a. stateMerrt which I made today before the abcoramittee ore Me/chant Marine of e- Committee on Commerce. 8193 and S. 2089. UL 8193? carries. the short iergy Transportation Seen- - '74.." and would require an increasingvercentage of impacted petro- leumr and! petroleum products. to be transported on higher-costing U.S.-nag tanker vessels. If enacted, this legislation eatiln have a. profound, and probably adverse, effect upon the, cost of meeting our current, pressing Onerg7 resource needs. I seri- ?ugly q non whether, as reflected in the shorttitle "The Energy Transporta- Stafford opposmgth Stevens The bill. title. "The rity Act o '1lAYS?L erIns's , asetaotpa ?'tiins m necott Hruska se.'" William L. Long Stennis eacctenan Ire Talmadge Nunn Tower Approved For Release 2001/08/30 : CIA-RDP75600380R00 00190008-2 TATINTL Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 Approved For Release 2001/08/30 : CIA-RDP75600380R000600190008-2 STATI 0 4J N CtASS I I p rovecDr M2001/08/30 : CIA-RIADBCOMFDERinli 90008-2 ? ROUTING AND RECORD SHEET SUBJECT: (Optional) ,TL Eareovutive Reegisity FRC Acting Legislative Counsel 7D35, Hqs EXTENSION 4151 NO. DATE 31 May 1974 TO: (Officer designation, room number, and building) DATE OFFICER'S INITIALS COMMENTS .0.16-mber each comment to show from whom to whom Draw a line across column after each comment.) RECEIVED FORWARDED Director 6/3 12 Attached is an excerpt from yesterday's Record on the Freedom - - in 2. of Information Act amendments, par- ticularly the Muskie amendment. Senators Stennis and Hruska state ments in opposition are clipped. Also clipped is the Attorney Gener- al's letter questioning the consti- tutionality of the authority of the courts to break classification and Hruska's prediction of veto. The results of the FBI exten- sive lobbying against the amendment opening up the law enforcement files netted four more votes (33) than the opposition against the Muskie amendment (29), but in the process they lost Jackson, McGee, Taft and Young. Because of the Muskie amendment Hruska and McClellan voted against final passage of the bill as did Eastland, Byrd and Bill Scott of the full Judiciary Committee. This may be significant in conference since the House bill has" exempted from court review information ex empted from disclosure by statute. The vote of the Judiciary Committee on the bill reported to the Senate without the Muskie and Hart amend- ment was unanimous. There are many good quotes which may be useful Marchetti. -1 STATIN Actim Legislative Counsel 3. ()cfC.? . . ? ? 8. 9. 10. 11. 12. - 13. 14. cc: DDCI, Asst to DCI, 15. DDO, DDI, DDM&S, DDS&T, OGG Approved For Release 2001/08/30 CIA-RDP75600380R000600190008-2 FORM 61 0 USE PREVIOUS 3-62 EDITIONS 0 SECRET 0 CONFIDENTIAL INTERNAL EERMY 0 UNCLASSIFIED