FREEDOM OF INFORMATION ACT AMENDMENTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84-00933R000300170001-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 12, 2016
• Document Release Date: April 16, 2002
• Sequence Number: 1
• Publication Date: October 1, 1974
• Content Type: REPORT

Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
)31) CONGRESS SENATE REPORT
?d Scrsszo1z No. 93--1200
FREEDOM OF INFORMATION ACT AMENDMENTS
W. KENNEDY, from I he committee of conference,
submitted the following
CONFERENCE REPORT
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the Senate to the bill (H.R. 12471) to
amend section 552 of title 5, United States Code, known as the
Freedom of Information Act, having met, after full and free confer-
ence, have agreed to recommend and do recommend to their respective
houses as follows :
That the house recede from its disagreement to the amendment of
the Senate and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following :
That (a) the fourth sentence of section 552(a) (2) of title 5, United
States Code, is amended to read as follows : "Each agency shall also
maintain and make available for public inspection and copying cur-
rent indexes providing identifying information for the public as to
any matter issued, adopted, or promulgated after July 4, 1967, and re-
quired by this paragraph to be made available or published. Each
agency shall promptly publish, quarterly or more frequently, and
distribute (by sale or otherwise) copies of each index or supplements
thereto unless it determines by order published in the Federal Reg-
ister that the publication would be unnecessary and impracticable, in
which case the agency shall nonetheless provide copies of such index
on request at a cost not to exceed the direct cost of duplication.".
(b) (1) Section 552(a) (3) of title 5, United States Code, is
amended to read as follows:
"(3) Except with respect to the records made available under para
graphs (1) and (2) of this subsection, each agency, upon any re uest
for records which (A) reasonably describes such records and ( ) is
made in accordance with published rules stating the time, place, fees
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
(if any), and procedures to be followed, shall make the records
promptly available to any person."
(') Section 5,52(a) of title 5, United States Code, is amended by
redesignating paragraph (4), and all references thereto, as paragraph.
(5) and by inserting immediately after paragraph (3) the following
new paragraph:
"(4) (A) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt
of public comment, specifying a uniform, schedule of fees applicable to
all constituent units of such agency. Such fees shall be limited to
reasonable standard charges for document search and duplication and
provide for recovery of only the direct costs of such search and dup-
lication. Documents shall be furnished without charge or at a reduced
charge where the agency determines that waiver or reduction of the
fee is in the public interest because furnishing the information can be
considered as primarily benefiting the general public.
"(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the District
of Columbia, has jurisdiction to enjoin the agency from withholding
agency records and to order the production of any agency records im-
properly withheld from the complainant. In such, a case t).e court shall
determine the matter de novo, and may examine the contents of such
agency records in camera to determine whether such records or any
part thereof shall be withheld under any of the exemptions set fortK
in subsection (b) of this section, and the burden is on the agency to
ew tai, its action.
"(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made under
this subsection within thirty days after service upon the defendant of
the pleading in which such complaint is made, unless the court other-
wise directs for good cause shown.
"(D) Except as to cases the court considers of greater importance,
proceedings before the district court, as authorized by this subsection,
and appeals therefrom. take precedence. on the docket over all cases
and shall be assigned for hearing and trial or for argument at the
earliest practicable date and expedited in every way.
"(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially
prevailed.
"(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other litigation
costs, and the court additionally issues a written finding that A e cir-
cumstances surrounding the withholding raise questions whether
agency personnel acted arbitrarily or capriciously with respect to the
withholding, the Civil Service Commission shall promptly initiate a
proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for the
withholdina. The Commission, after investigation and consideration
of the evidence submitted, shall submit its findings and recomrurraemvda
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
3
Lions to the administrative authority to the agency concerned and shall
send copies of the findings and recommendations to the officer or em-
ployee or his representative. The administrative authority shall take
the corrective action that the Commission recommends.
"(G) In the event of noncompliance with, the order of the court, the
district court may punish for contempt the responsible employee, and
in the case of a uniformed service, the responsible member.".
(c) Section 552(a) of title 5, United States Code, is amended by
adding at the end thereof the following new paragraph:
"(6) (A) Each agency, upon any request for records made under
paragraph. (1), (2), or (-) of this subsection, shall-
"(i) determine within ten, days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such request
whether to comply with such request and shall immediately notify
the person making such request of such determination and the rea-
sorns therefor, and of the right of such person to appeal to the head
of the agency any adverse determination; and
"(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public holi-
(lays) after the receipt of such appeal. If on appeal the denial of
the request for? records is in whole or in part upheld, the agency
shall notify the person making such request of the provisions for
judicial eerie u' of that determination under paragraph (4) of this
subsection.
"(P) In, unusual circumstances as specified in this subparagraph,
the time limits prescribed in either clause (i) or clause (ii) of sub-
paragraph (A) may be extended by written notice to the person mak-
;,,g such request setting forth. the reasons for such extension and the
dote on which a. determination is expected to be dispatched. No such
notice shall specify a date that would result in an. extension for more
than ten working days. As used in this subparagraph, `unusual cir-
cumstances' means. but only to the extent reasonably necessary to the
proper processing of the particular request-
"(i) the need to search for and collect the requested records from
geld facilities or other establish ments that are separate from, the
ot/ice processing the request:
"(ii) the need to search for, collect, and appropriately examine
a Voluminous amount of separate and distinct records which are
demanded in a single request; or
"(iii) the need for consultation, which, shall be conducted with.
all practicable sneecd. with another agency having a substantial in-
?est in the determination of the request or among two or more
components of the agency having substantial subject-matter inter-
est therein.
'V') A ny person inching a regpu^st to any agency for records under
paragraph (7). (2). or (.7) of this subsection shall be deemed to have
e,ehausted his administrative remedies with respect to such request )*t
the agency fails to comply with. the applicable time limit provisions of
lbis paragraph. If the Gorernment can show exceptional circumstances
exist and that the agency is exercising due diligence in. responding to
/hr request, the court may retain jurisdiction and allow the agency
edditionai time to complete its review of the records. Upon any deter-
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
m.ination by an agency to comply with a request for records, the rec-
ords shall be made promptly available to such person making such
request. Any notification of denial of any request for records under
this subsection shall set forth the names and titles or vositions of each
person responsible for the denial of such request."
SEr-. 2. (a) Section 552(b) (1) of title 5, United States Code, is
amended to read as follows:
"(1) (A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national de-
fense or foreign policy and (B) are in fact properly elasai fled
pursuant to such Executive order;"
(b) Section 552(b) (7) of title 5, United States Code, is amended to
read as follows :
"(7) investigatory records compiled for law enforcement pur-
poses, but only to the extent that the production of suc& records
would (A) interfere with enforcement proceedings, (B) deprive
a person of a right to a fair trial or an impartial adjudication,
(C) constitute an unwarranted invasion of personal privacy, (D)
disclose the identity of a confidential source and, in the case of a
record compiled by a criminal law enforcement authority in the
course o f a criminal investigation., or by an agency conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source, (E) dis-
close investigative techniques and procedures, or (F) endanger the
life or physical safety of law enforcement personnel;"
(c~) Section 559 (b) of title 5, United States Code, i s amended by
adding at the end the followinq "Any reasonably segregable portion
of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this subsection.".
Sr,. 3. Section 552 of title 5. United States Code, is amended by
adding at the end thereof the following new subsections:
`4(d) On or before March 1 of each calendar year, each agency shall
>aut)mit a report coverinq the preceding calendar year to the Speaker of
the House Of Representatives and President of the Senate for referral
to the appropriate eorn.mi.ttees of the Congress. The report shall
r nrlude-
" (1) the number of determinations made by such agency not to
comply with requests for records made to such agency under sub-
section (a) and the reasons for each such deternnir..ztion.
"(2) the number of appeals made by persons under subsection
(a) (6), the result of such appeals, and the reason for the action
w.pon each appeal that results in a denial of information;
"(3) the names and titles or positions of each person responsible
for the denial of records requested under this section, and the
number of instances of participation for each;
"(4) the results of each proceeding conducted pursuant to sub-
section (a) (4) (F), including a report of the disciplinary action
taken against the officer or employee who was primarily res ponsi-
ble for improperly ,Withholding records or an explanation of 'why
disciplinary action was not taken;
"(5) a copy of every rule made by such agency regarding this
section;
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
"(6) a copy of the fee schedule and the total amount of fees
collected by the agency for malcing. records available under this
section; and
"(7) such other information as indicates efforts to administer
fully this section.
The Attorney General shall submit an annual report on or before
March 1 of each calendar year -which shall include for the prior calen-
dar yeaar a listing of the number of cases arising under this section,
the exemption involved in. each case, the disposition of such case, and
the cost, fees, and penalties assessed under subsections (a) (4) (E),
(F), and (G). Such report shall also include a description of the
efforts undertaken by the Department of Justice to encourage agency
corn liance with this section.
"(e) For purposes of this section, the term `agency' as de fired
in section, 661(1) of this title includes any executive department, mr.iii-
tam,' department, Govcr nm eit corporation, Government controlled
corporation, oi' other establishment in the executive branch, of the
Government (inciudivzg the Executive Office of the President), or any
;n.depe?ulerrt regulatory agency."
&'e. 1. The amendments mrade by this Act shall take effect on the
vinetieth day beginning after the date of enactment of this Act.
And the House agree, to the same.
EDWARD KENNEDY,
PHILIP A. HART,
BIRCH BAYH,
QUENTIN BURDICK,
JOHN TIJNNEY,
CHARLES MCC. MATHIAS, Jr'.,
Managers on the Part of the Senate.
CHET HOLIFIELD,
WILLIAM S. MOORHEAD,
JoHN E. Moss,
BILL ALEXANDER,
FRANK HORTON
JOHN N. ERLENRORN,
PAUL MCCLOSKEY,
Managers on the Part of the House.
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
OF CONFERENCE
The managers on the part of the House and the Senate at the confer-
ence on the disagreeing votes of the two Houses on the amendment of
the Senate to the bill (H.R. 12471) to amend section 552 of title 5,
United States Code, known as the Freedom of Information Act, sub-
mit the following joint statement to the House and the Senate in
explanation of the effect of the action agreed upon by the managers
and recommended in the accompanying conference report :
The Senate amendment struck out all of the House bill after the
enacting clause and inserted a substitute text.
The House recedes from its disagreement to the amendment of the
Senate with an amendment which is a substitute for the House bill
and the Senate amendment. The differences between the House bill,
the Senate amendment, and the substitute agreed to in conference are
noted below, except for clerical corrections, conforming changes made
necessary by agreements reached by the conferees, and minor drafting
and clarifying changes.
The House bill added language to the present Freedom of Infor-
mation law to require the publication and distribution (by sale or
otherwise) of agency indexes identifying information for the public
as to any matter issued, adopted, or promulgated after July 4, 1967,
which is' required by 5 U.S.C. ? 552(a) (2) to be made available or
published. This includes final opinions, orders, agency statements of
policy and interpretations not published in the Federal Register, and
administrative staff manuals and agency staff instructions that affect
the public unless they are otherwise. published and copies offered for
sale to the public. Such published indexes would be required for the
July 4, 1967, period to date. Where agency indexes are now published
by commercial firms, as they are in some instances, such publication
would satisfy the requirements of this amendment so long as they are
made readily available for public use by the agency.
The Senate amendment contained similar provisions, indicating that
the publication of indexes should be on a quarterly or more frequent
basis, but provided that if an agency determined by an order published.
in the Federal Register that its publication of any index would be
"unnecessary and impracticable," it would not actually be required to
publish the index. However, it would nonetheless be required to pro-
vide copies of such index on request at a cost. comparable to that
charged had the index been published.
The conference substitute follows the Senate amendment, except
that if the agency determines not to publish its index, it shall pro-
vide copies on request to any person at a cost not to exceed the direct
cost of duplication.
(7)
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
Present law requires that a request for information from an agency
be for "identifiable records." The House bill provided that the request
only "reasonably describe" the records being sought.
The Senate amendment contained similar language, but added a
provision that when agency records furnished a person are demon-
strated to be of "general public concern," the agency shall also make
them available for public inspection and purchase, unless the agency
can demonstrate that they could subsequently be denied to another
individual under exemptions contained in subsection (b) of the Free-
dom of Information Act.
The conference substitute follows the House bill. With respect to
the Senate proviso dealing with agency records of "general public
interest," the conferees wish to make clear such language was elimi-
nated only because they conclude that all agencies are presently obli--
;ated under the Freedom of Information Act to pursue such a policy
and that all agencies should effect this policy through regulation.
The Senate amendment contained a provision, not included in the
Rouse bill, directing the Director of the Office of Management and
Budget to promulgate regulations establishing a uniform schedule
of fees for agency search and copying of records made available to
a person upon request under the law. It also provided that an agency
could furnish the records requested without charge or at a reduced
charge if it determined that such action would be in the public interest.
It further provided that no fees should ordinarily be charged if the
person requesting the records was an indigent, if such fees would
amount to less than $3, if the records were not located by the agency,
or if they were determined to be exempt from disclosure under sub-
section (b) of the law.
The conference substitute follows the Senate amendment, except
that each agency would be required to issue its own regulations for
the recovery of only the direct costs of search and duplication-not
including examination or review of records-instead of having such
regulations promulgated by the Office of Management and Budget.
I n addition, the conference substitute retains the agency's discretionary
public-interest waiver authority but eliminates the specific categories
of situations where fees should not be charged.
By eliminating the list of specific categories, the conferees do not
intend to imply that agencies should actually charge fees in those
categories. Rather, they felt, such matters are properly the subject for
individual agency determination in regulations implementing the
Freedom of Information law. The conferees intend that fees should
not be used for the purpose of discouraging requests for information
or as obstacles to disclosure of requested information.
The House bill clarifies the present Freedom of Information law
with respect to de novo review requirements by Federal courts under
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
9
section 552(a) (3) by specifically authorizing the court to examine in
camera any requested records in dispute to determine whether the
records are-as claimed by an agency-exempt from mandatory dis-
4.1, 1
f
b
o e aw.
)
closure under any of the nine categories of section 552(
The Senate amendment contained a similar provision authorizing
in camera review by Federal courts and added another provision, not
contained in the House bill, to authorize Freedom of Information suits
to be brought in the Federal courts in the District of Columbia, even
in cases where the agency records were located elsewhere.
The conference substitute follows the Senate amendment, providing
that in determining de novo whether agency records have been prop-
erly withheld, the court may examine records in camera in making its
determination under any of the nine categories of exemptions under
section 552(b) of the law. In Environmental Protection Agency v.
Mink, et al., 410 U.S. 73 (1973), the Supreme Court ruled that in
camera inspection of documents withheld under section 552(b) (1) of
the law, authorizing the withholding of classified information, would
ordinarily be precluded in Freedom of Information cases, unless Con-
gress directed otherwise. H.R. 12471 amends the present law to permit
such in camera examination at the discretion of the court. While in
camera examination need not be automatic, in many situations it will
plainly be necessary and appropriate. Before the court orders in
camera inspection, the Government should be given the opportunity
to establish by means of testimony or detailed affidavits that the docu-
ments are clearly exempt from disclosure. The burden remains on the
Government under this law.
The House bill required that the defendant to a complaint under
the Freedom of Information law serve a responsive pleading within
20 days after service, unless the court directed otherwise for good
cause shown.
The Senate amendment contained a similar provision, except that
it would give the defendant 40 days to file an answer.
The conference substitute would give the defendant 30 days to re-
spond, unless the court directs otherwise for good cause shown.
The Senate amendment included a provision, not contained in the
House bill, to give precedence on appeal to cases brought under the
Freedom of Information law, except as to cases on the docket which
the court considers of greater importance.
The conference substitute follows the Senate amendment.
ASSESSMENT OF ATTORNEY FEES AND cosrs
The House bill provided that a Federal court may, in its discretion,
assess reasonable attorney fees and other litigation costs reasonably
incurred by the complainant in Freedom of Information cases in which
the Federal Government had not prevailed.
The Senate amendment also contained a similar provision applying
to cases in which the complainant had "substantially prevailed," but
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
10
added certain criteria for consideration by the court in making such
awards, including the benefit to the public deriving from the case, the
commercial benefit to the complainant and the nature of his interest
in the Federal records sought, and whether the Government's with-
holding of the records sought had "a reasonable basis in law."
The conference substitute follows the Senate amendment, except
that the statutory criteria for court award of attorney fees and litiga-
tion costs were eliminated. By eliminating these criteria, the conferees
do not intend to make the award of attorney fees automatic or to pre-
clude the courts, in exercising their discretion as to awarding such
fees, to take into consideration such criteria. Instead, the conferees
believe that because the existing body of law on the award of attorney
fees recognizes such factors, a statement of the criteria may be too
delimiting and is unnecessary.
The Senate amendment contained a provision, not included in the
House bill, authorizing the court in Freedom of Information Act cases
to impose a sanction of up to 60 days suspension from employment
against a Federal employee or official who the court found to have
been responsible for withholding the requested records without reason-
able basis in law.
The conference substitute follows the Senate amendment, except
that the court is authorized to make a finding whether the circum-
stances surrounding the withholding raise questions whether agency
personnel acted arbitrarily or capriciously with respect to the with-
holding. If the court so finds, the Civil Service Commission must
promptly initiate a proceeding to determine whether disciplinary
action is warranted against the responsible officer or employee. The
Commission's findings and recommendations are to be submitted to
the appropriate administrative authority of the agency concerned and
to the responsible official or employee, and the administrative author-
ity shall promptly take the disciplinary action recommended by the
Commission. This section applies to all persons employed by agencies
under this law.
The Id.ouse bill required that an agency make a determination
whether or not. to comply with a request for reemds within 10 days
(excepting Saturdays. Sundays, and legal public holidays) and to
notify the person making the request of such determination and the
reasons therefor, and the right of such person to appeal any adverse
determination to the head of the agency. It also required that agencies
make a final determination on in appeal of an adverse determination
Fvithin 20 days (excepting Saturdays, Sundays, and legal public holi-
days) after the date of receipt of the appeal by the agency. Further,
,u>y person would be deemed to have exhausted his administrative
remedies if the agency fails to comply with either of the two time
deadlines.
The Senate amendment contained similar provisions but authorized
certain other administrative actions to extend these deadlines for an-
other 30 working days under specified types of situations, if requested
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/0?j18 : CIA-RDP84-00933R000300170001-2
by an agency head and approved by the Attorney General. It also
would grant an agency, under specified "unusual circumstances," a
10-working-day extension upon notification to the person requesting
the records. In addition, an agency could transfer part of the number
of days froni one category to another and authorize the court to allow
still additional time for the agency to respond to the request. The Sen-
ate amendment also provided that any agency's notification of denial
of any request for records set forth the names and titles or positions of
each person responsible for the denial. It further allowed the court, in
a Freedom of Information action, to allow the government additional
time if "exceptional circumstances" were present and if the agency
was exercising "due diligence in responding to the request."
The conference substitute generally adopts the 10- and 20-clay ad-
ministrative time deadlines of the House bill but also incorporates the
10-working-day extension of the Senate amendment for "unusual
circumstances" in situations where the agency must search for and
collect the requested records from field facilities separate from the
office processing the request, where the agency must search for, collect,
and examine a voluminous amount of separate and distinct records
demanded in a single request, or where the agency has a need to consult
with another agency or agency unit having a substantial interest in the
determination because of the subject matter. This 10-day extension
may be invoked by the agency only once-either during initial review
of the request or during appellate review.
The 30-working-day certification provision of the Senate amend-
ment has been eliminated, but the conference substitute retains the
Senate language requiring that any agency's notification to a person of
the denial of any request for records set forth the names and titles
or positions of each person responsible for the denial. The conferees
intend that this listing include those persons responsible for the origi-
nal, as well as the appellate, determination to deny the information
requested. The conferees intend that consultations between an agency
unit and the agency's legal staff, the public information staff, or the
Department of Justice should not be considered the basis for an
extension under this subsection.
The conference substitute also retains the Senate language giving
the court authority to allow the agency additional time to examine
requested records in exceptional circumstances where the agency was
exercising due diligence in responding to the request and had been
since the request was received.
NATIONAL DEFENSE AND FOREIGN POLICY EXEMPTION (B) (1)
The House bill amended subsection (b) (1) of the Freedom of In-
formation law to permit the withholding of information "authorized
under the criteria established by an Executive order to be kept secret
in the interest of the national defense or foreign policy."
The Senate amendment contained similar language but added
"statute" to the exemption provision.
The conference substitute combines language of both House and
Senate bills to permit the withholding of information where it is
"specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
12
policy" and is "in fact, properly classified" pursuant to both procedural
and substantive criteria contained in such Executive order.
When linked with the authority conferred upon the Federal courts
in this conference substitute for in camera examination of contested
records as part of their de novo determination in Freedom of Informa-
tion cases, this clarifies Congressional intent to override the Supreme
Court's holding in the case of E.P.A. v. Mink, et al., supra, with respect
to in camera review of classified documents.
ITowever, the conferees recognize that the Executive departments
responsible for national defense and foreign policy matters have
unique insights into what adverse affects might occur as a result of
public disclosure of a particular classified record. Accordingly, the
conferees expect that Federal courts, in making de novo determina-
tions in section 552(b) (1) cases under the Freedom of Information
law, will accord substantial weight to an agency's affidavit concerning
the details of the classified status of the disputed record.
Restricted Data (42 U.S.C. 2162), communication information (18
U.S.C. 798), and intelligence sources and methods (50 U.S.C. 403
(d) (3) and (g) ), for example, may be classified and exempted under
section 552(b) (3) of the Freedom of Information Act. When such
information is subjected to court review, the court should recognize
that if such information is classified pursuant to one of the above
statutes, it shall be exempted under this law.
tNVESTIOATORY RECORDS
The Senate amendment contained an amendment to subsection
(b) (7) of the Freedom of Information law, not included in the House
bill, that would clarify Congressional intent disapproving certain
court interpretations which have tended to expand the scope of agency
authority to withhold certain "investigatory files compiled for law
enforcement purposes." The Senate amendment would permit an
agency to withhold investigatory records compiled for law enforce-
ment purposes only to the extent that the production of such records
would interfere with enforcement proceedings, deprive a person of a
right to a fair trial or an impartial adjudication, constitute a clearly
unwarranted invasion of personal privacy, disclose the identity of an
informer, or disclose investigative techniques and procedures.
The conference substitute follows the Senate amendment except for
the substitution of "confidential source" for "informer," the addition
of language protecting information compiled by a criminal law en-
forcement authority from a confidential source in the course of a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation, the deletion of the word "clearly"
relating to avoidance of an "unwarranted invasion of personal
privacy," and the addition of a category allowing withholding of
information whose disclosure "would endanger the life or physical
safety of law enforcement personnel."
The conferees wish to make clear that the scope of this exception
against disclosure of "investigative techniques and procedures" should
not be interpreted to include routine techniques and procedures al-
ready well known to the public, such as ballistics tests, fingerprinting,
and other scientific tests or commonly known techniques. Nor is this
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
13
exemption intended to include records falling within the scope of
subsection 552(a) (2) of the Freedom of Information law, such as
administrative staff manuals and instructions to staff that affect
a member of the public.
The substitution of the term "confidential source" in section 552
(b) (7) (D) is to make clear that the identity of a person other than
a paid informer may be protected if the person provided information
under an express assurance of confidentiality or in circumstances from
which such an assurance could be reasonably inferred. Under this
category, in every case where the investigatory records sought were
compiled for law enforcement purposes-either civil or criminal in
nature-the agency can withhold the names, addresses, and other
information that would reveal the identity of a confidential source
who furnished the information. However, where the records are com-
piled by a criminal law enforcement authority, all of the informa-
tion furnished only by a confidential source may be withheld if the
information was compiled in the course of a criminal investigation.
In addition, where the records are compiled by an agency conducting
a lawful national security intelligence investigation, all of the infor-
mation furnished only by a confidential source may also be withheld.
The conferees intend the term "criminal law enforcement authority"
to be narrowly construed to include the Federal Bureau of Investiga-
tion and similar investigative authorities. Likewise, "national secur-
ity" is to be strictly construed to refer to military security, national
defense, or foreign policy. The term "intelligence" in section 552(b)
(7) (D) is intended to apply to positive intelligence-gathering activi-
ties, counter-intelligence activities, and background security investi-
gations by governmental units which have authority to conduct such
functions. By "an agency" the conferees intend to include criminal
law enforcement authorities as well as other agencies. Personnel,
regulatory, and civil enforcement investigations are covered by the
first clause authorizing withholding of information that would reveal
the identity of a confidential source but are not encompassed by the
second clause authorizing withholding of all confidential information
under the specified circumstances.
The conferees also wish to make clear that disclosure of information
about a person to that person does not constitute an invasion of his
privacy. Finally, the conferees express approval of the present Justice
Department policy waiving legal exemptions for withholding historic
investigatory records over 15 years old, and they encourage its con-
tinuation.
The Senate amendment contained a provision, not included in the
House bill, providing that any reasonably segregable portion of a rec-
ord shall be provided to any person requesting such record after the
deletion of portions which may be exempted under subsection. (b) of
the Freedom of Information law.
The conference substitute follows the Senate amendment.
The House bill provided that each agency submit an annual report,
on or before March 1 of each calendar year, to the Speaker of the House
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
and the President of the Senate, for referral to the appropriate com-
mittees of the Congress. Such report shall include statistical informa-
tion on the number of agency determinations to withhold information
requested under the Freedom of Information law; the reasons for
such withholding; the number of appeals of such adverse determina-
tions with the result and reasons for each; a copy of every rule made
by the agency in connection with this law; a copy of the agency fee
schedule with the total amount of fees collected by the agency during
the year; and other information indicating efforts to properly admin-
ister the Freedom of Information law.
The Senate amendment contained similar provisions and added two
requirements not contained in the House bill. (1) that each agency re-
port list those officials responsible for each denial of records and the
numbers of cases in which each participated during the year and (2)
that the Attorney General also submit a separate annual report on or
before March 1 of each calendar year listing the number of cases aris-
ing under the Freedom of Information law. the exemption involved
in each such case, the disposition of the case, and the costs, fees, and
penalties assessed under the law. The Attorney General's report. shall
also include a description of Justice, Department efforts to encourage
agency compliance with the law.
The conference substitute incorporates the major provisions of the
Clouse bill and two Senate amendments. With respect to the annual
reporting by each agency of the names and titles or positions of each
person responsible for the denial of records requested under the Free-
dom of Information law and the number of instances of participation
for each, the conferees wish to make clear that such listing include
those persons responsible for the original determination to deny the
information requested in each case as well as all other agency employ-
ees or officials who were responsible for determinations at subsequent
stages in the decision.
The House bill extends the applicability of the Freedom of Infor-
mation law to include any executive department, military department.
Government corporation* Government-controlled corporation. or other
establishment in the executive branch of Government (including the
Executive Office of the President). or any independent regulatory
a,ge:ncy.
The Senate amendment provided that for purposes of the Freedom
=)f Information law the term agency included any agency defined in
-ection 551 (1) of title 5. T"nited States ("ode, and in addition included
the United States Postal Service, the Postal Rate Commission, and
any other authority of the Government of the United States which is
a corporation and which receives any appropriated funds.
The conference substitute follows the House bill. The conferees
state that they intend. to include within the definition of "agency"
those entities encompassed by .5 U.S.C. 551 and other entities inchid-
ing the Trnited States Postal Service. the Postal Rate Commission.
and government, corporations or government-controlled corporations
now in existence or which may he created in the future. They do not
intend to include corporations which receive appropriated funds but
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
15
are neither chartered by the Federal Government nor controlled by it,
such as the Corporation for Public Broadcasting. Expansion of the
definition of "agency" in this subsection is intended to broaden appli-
cability of the Freedom of Information Act but it is not intended that
the term "agency" be applied to subdivisions, offices or units within an
agency.
With respect to the meaning of the term "Executive Office of the
President" the conferees intend the result, reached in Soucie v. David,
4.48 F. 2d. 1067 (C.A.D.C. 1071). The term is not to be interpreted as
including the President's immediate personal staff or units in the
Executive Office whose sole function is to advise and assist the
President.
Both the House bill and the Senate amendment provided for an
effective date of 00 days after the date of enactment of these amend-
ments to the Freedom of Information law.
The conference substitute adopts the language of the Senate
amendment.
EDWARD KENNEDY,
PHILIP A. HART,
BIRCH BAYH,
QUENTIN N. BURDICK,
JOHN TUNNEY,
CHARLES MCC. MATHIAS,
Managers on the Part of the Senate.
CIIET HOLIFIELD,
WILLIAM S. MOORHEAD,
JOHN E. Moss,
BILL ALEXANDER,
FRANK HORTON,
JOHN N. ERLENBORN,
PAUL MCCLOSKEY,
Managers on the Part of the Hoome.
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Appr,,ed For Release 2002/06/18 CIA-RDP84-00933R000300170001-2
Public Law 93-502
93rd Congress, H. R. 12471
November 21, 1974
210 2fCt
To amend section 552 of title 5, United Stat s Code, known as the Freedom of
Information A ct.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) the fourth Public infor-.
sentence of section 552(a) (2) of title 5, United States Code, is amended mation.
to read as follows: "Each agency shall also maintain and make avail- Indexes, publi-
able for public inspection and copying current indexes roviding cation and
identifying information for the public as to any matter issued, adopted, distribution.
or promulgated after July 4, 1967, and required by this paragraph to
be made available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplements thereto unless it determines by
order published in the Federal Register that the publication would Publication in
be unnecessary and impracticable, in which case the agency shall none- Federal Register.
theless provide copies of such index on request at a cost not to exceed
the direct cost of duplication.".
(b) (1) Section 552(a) (3) of title 5, United States Code, is amended Records, avail-
to read as follows: ability to
"(3) Except with respect to the records made available under para- public.
graphs (1) and (2) of this subsection, each agency, upon any' request
for records which (A) reasonably describes such records and (I3)
is made in accordance with published rules stating the time, place,
fees (if any), and procedures to be followed, shall make the records
promptly available to any person.".
(2) Section 552(a) of title 5, United States Code, is amended by Document
redesignating paragraph (4), and all references thereto, as paragraph search and
(5) and by inserting immediately after paragraph (3) the following duplication
new paragraph : fees, regula-
"(4) (A) In order to carry out the provisions of this section, each time.
agency shall promulgate regulations, pursuant to notice and receipt
of public comment, specifying a uniform schedule of fees applicable
to all constituent units of such agency. Such fees shall be limited to
reasonable standard charges for document search and duplication and
provide for recovery of only the direct costs of such search and dupli-
cation. Documents shall be furnished without charge or at a reduced
charge where the agency determines that waiver or reduction of the 88 STAT. 1561
fee is in the public interest because furnishing the information can co STAT. 1562
be considered as primarily benefiting the general public.
"(B) On complaint, the district court of the United States iii tie withheld agency
district in which the complainant resides, or has his principal place records, court
of business, or in which the agency records are situated, or in the examination.
District of Columbia, has jurisdiction to enjoin the agency from with-
holding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case
the court shall determine the matter do novo, and may examine the
contents of such agency records in camera to determine whether such
records or any part thereof shall be withheld under any of the exemp-
tions set forth in subsection (b) of this section, and the burden is on
the agency to sustain its action.
"(C) Notwithstanding any other provision of law, the defendant complaints,
shall servo an answer or otherwise plead to any complaint made response by
under this subsection within thirty days after service upon the defendant.
defendant of the pleading in which such complaint is made, unless the
court otherwise directs for good cause shown.
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2?-
Pub. Law 93-502 - 2 - November 21, 1974
"(1)) Except as to cases the court considers of greater importance,
proceedings before the district court, as authorized by this subsection,
and appeals therefrom, take precedence on the docket over all cases
and shall be assigned for hearing and trial or for argument at the
earliest practicable date and expedited in every way.
Attorney fees "(E) The court may assess against the United States reasonable
and posts. attorney fees and other litigation costs reasonably incurred in any
case under this section in which the complainant has substantially
prevailed.
CSC proceeding "(F) Whenever the court orders the production of any agency
against officer records improperly withheld from the complainant and assesses
or employee. against the United States reasonable attorney fees and other litigation
costs, and the court additionally issues a written finding that the cir-
cumstances surrounding the withholding raise questions whether
agency personnel acted arbitrarily or capriciously with respect to the
withholding, the Civil Service Commission shall promptly initiate a
proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for the
withholding. The Commission, after investigation and consideration
of the evidence submitted, shall submit its findings and recomrnenda-
t.ions to the administrative authority of the agency concerned and
shall send copies of the findings and recommendations to the officer
or employee or his representative. The administrative authority shall
take the corrective action that the Commission recommends.
Nonoomplianae, "(G) In the event of noncompliance with the order of the court,
penalty. the district court may punish for contempt the responsible employee,
and in the case of a uniformed service, the responsible member.".
Administrative (c) Section 552(a) of title 5, United States Code, is amended by
deadlines. adding at the end thereof the following new paragraph:
"(6) (A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall-
"(i) determine within ten days (excepting Saturdays, Sundays.
and legal public holidays) after the receipt of any such request
u hether to comply with such request and shall immediately notify
the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal to the
head of the agency any adverse determination; and
"(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. If on appeal the denial
o the request for records is in whole or in part upheld, the agency
shall notify the person making such request of the provisions
for judicial review of that determination under paragraph (1)
8_ STAT. 562
88 STAT. 1563 "(B) In unusual cir,cumstances as specified in this subparagraph.
the time limits prescribed in either clause (i) or clause (ii) of sub-
paragraph (A) may be extended by written notice to the person
making such request setting forth the reasons for such extension and
the date on which a determination is expected to be dispatched. No such
notice shall specify a date that would result in an extension for more
"unusual oir- than ten working days. As used in this subparagraph, `unusual c_.ir-
oumstanoes.? cumstances' means, but only to the extent reasonably necessary to
the proper processing of the particular request-
"(i) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
"GO the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are
demanded in a single request; or
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
November 21, 1974 - 3 Pub. Law 93.502
"(iii) the need for consultation, which shall be conducted with
all practicable speed, with. another agency having a substantial
interest in the determination of the request or among two or more
components of the agency having substantial. subject-matter
interest therein.
"(C) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request
if the agency fails to comp1 with the applicable time limit provisions
of this paragraph. If the Government can show exceptional circum- Time extension
stances exist and that the agency is exercising due diligence in for agency
responding to the request, the court may retain jurisdiction and allow review.
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 making
such request. Any notification of denial of any request for records
under this subsection shall set forth the names and titles or positions
of each person responsible for the denial of such request.".
SEC. 2. (a) Section 552(b) (1) of title 5, United States Code, is National defense
amended to read as follows : and foreign poli-
"(1) (A) specifically authorized under'criteria established by oy, exemption.
an Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;".
(b) Section 552(b) (7) of title 5, United States Code, is amended investigatory
to read as follows: records for law
"(7) investigatory records compiled for law enforcement pur- enforcement pur-
poses, but only to the extent that the production of such records poses, exemption.
would (A) interfere with enforcement proceedings, (13) deprive
a person of a right to a fair trial or an impartial adjudication,
(C) constitute an unwarranted invasion of personal privacy, (D)
disclose the identity of a confidential source and, in the case of
a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source, (E) dis- As STAT. l 63
close investigative techniques and procedures. or (Fl endanger 188 STAT. 1564
the life or physical safety of law enforcement personnel;".
(c) Section 552(b) of title 5, United States Code, is amended by Segregable porgy.
adding at the end the following : "Any reasonably segregable portion tions of
of a record shall be provided to any person requesting such record :records.
after deletion of the portions which are exempt under this subsection.".
Snc. 3. Section 552 of title 5, United States Code, is amended by :Reports to
adding at the end thereof the following new subsections : Speaker of the
"(d) On or before March 1 of each calendar year, each. agency shall House and
submit a report covering the preceding calendar year to the Speaker President of
of the House of Representatives and President of the Senate for 'the Senate.
referral to the appropriate committees of the Congress. The report Contents.
shall include-
"(1) the number of determinations made by such agency not
to comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
"(2) the number of appeals made by persons under subsection
(a) (6), the result of such appeals, and the reason for the action Ante, p. 1562.
upon each appeal that results in a denial of information;
"(3) the names and titles or positions of each person respon-
sible for the denial of records requested under this section, and
the number of instances of participation for each;
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
"(4) the results of each proceeding conducted pursuant to
subsection (a) (4) (F), including a report of the disciplinary
Action taken against the officer or employee who was primarily
usponsible for improperly withholding records or an explanation
if why disciplinary action was not taken;
"(5) a copy of every rule made by such agency regarding this
action ;
"(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
4ection; and
"(7) such other information as indicates efforts to administer
ally this section.
Annual report. The Attorney General shall submit an annual report on or before
March 1 of each calendar year which shall include for the prior
calendar year a listing of the number of cases arising under this sec-
tion, the exemption involved in each case, the disposition of such case,
and the cost, fees, and penalties assessed under subsections (a) (4)
Ante, p. 1561. (E), (F), and (G). Such report shall also include a description of
the efforts undertaken by the Department of Justice to encourage
agency compliance with this section.
"Agency." "(e) For purposes of this section, the term `agency' as defined in
5 USC 551. section 551(1) of this title includes any executive department, military
department, Government corporation, Government controlled corpo-
ration, or other establishment in the executive branch of the Govern-
ment (including the Executive Office of the President), or any
independent regulatory agency.".
Effective Sxc. 4. The amendments made by this Act shall take effect on the
Este, ninetieth day beginning after the date of enactment of this Act.
5 USC 552
note.
68 STAT. 1564
3 TAT. I S63
t THE HOUSE OF REPRESENTATIVES, U.S.,
ivuwernber 20. 1.174.
The House of Representatives having proceeded to reconsider the bill (H.R.
12471) entitled "An Act to amend section 552 of title 5. United States Code.
known as the Freedom of Information Act", returned by the President of the
United States with his objections, to the House of Representatives, in which it
originated, it was
Resolved, That the said bill pass, two-thirds of the House of Representatives
agreeing to pass the same.
Attest:
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2
 Approved For Release 2002/06/18 :
CIA-RDP84-00933R000300170001-2
502
3
November 21, 1974 - 5 -
-
Pub. Law 9
68 BSTA T. 1565
I certify that this Act originated in the House of Representatives.
W. PAT JENNINGS
Clerk.
By W. Raymond Colley
IN THE SENATE OF THE UNITED STATES,
November 21, 1974.
The Senate having proceeded to reconsider the bill (H. R. 12471) entitled
"An Act to amend section 552 of title 5, United States Code, known as the
Freedom of Information Act", returned by the President of the United States
with his objections to the House of Representatives, in which it originated, it
was
Resolved, That the said bill pass, two-thirds of the Senators present having
voted in the affirmative.
Attest:
FRANCIS R.VALEO
Secretary.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 93-876 (Comm. on Government Operations)
and No. 93-1380 (Comm. of Conference).
SENATE REPORTS: No. 93-854 accompanying S. 2543 (Comm. on the
Judiciary) and No. 93-1200 (Comm. of Conference).
CONGRESSIONAL RECORD, Vol. 120 (1974):
Mar. 14, considered and passed House.
May 30, considered and passed Senate, amended in lieu of
S. 2543.
Oct. 1, Senate agreed to conference report.
Oct. 7, House agreed to conference report,
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 10, No. 42:
Oct. 17, vetoed; Presidential message.
CONGRESSIONAL RECORD, Vol. 120 (1974):
Nov. 20, House overrode veto.
Nov, 21, Senate overrode veto.
Approved For Release 2002/06/18 : CIA-RDP84-00933R000300170001-2