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CONTENTS

Letter of transmittal.

Introduction..

The Freedom of Information Act.

Statement by President Johnson upon signing the act-

Court cases arising under the act:

A. Decided cases -

B. Pending cases.

Subcommittee questionnaire on implementation of the act.

Questionnaire returns:

Civil Aeronautics Board...

Federal Communications Commission.

Federal Power Commission.-

Federal Trade Commission..

Food and Drug Administration..

National Labor Relations Board..

Securities and Exchange Commission.-

Tables showing types of information presently being withheld by the

agencies.

Appendix:

New York Times article entitled "New Freedom of Information Law:

Fact-Seekers Testing Its Effectiveness,” by Joseph A. Loftus,

February 18, 1968.-

Reprint from volume 20, number 2, Administrative Law Review

(1968), article entitled "Agency Implementation of the Freedom of

Information Act," by Theodore Sky--

Reprint from volume 56, Georgetown Law Journal (1967), article

entitled "Freedom of Information: The Statute and the Regula-

tions"

Report concerning compliance by the National Labor Relations Board

with the Public Information Act, prepared by the Laborer's Inter-

national Union of North America -

Reprint from the Journal of Accountancy, April 1968, article entitled

"How Can the Freedom of Information Act Help Me in My Tax

Practice?" by Gilbert Simonetti, Jr...

Reprint from the Journal of Taxation, September 1967, article en-

titled “The New Freedom of Information Act: What It Means to

Tax Practitioners," by Jonathan Sobeloff..

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On July 4, 1966, President Lyndon B. Johnson signed Public Law 89-487—the Freedom of Information Act. The act became effective on July 4, 1967.

It has now been operative for approximately 10 months, and the inevitable questions regarding the effectiveness of the act are heard. Are the agencies in fact complying with the letter and the spirit of the act? Have the agencies cooperated fully in achieving the congressional recognition of the public's right to know?

In June, 1967, Attorney General Ramsey Clark released a memorandum for the guidance of all executive departments and agencies, and pointed out:

No review of an area as diverse and intricate as this one can anticipate all possible points of strain or difficulty. This is particularly true when vital and deeply held commitments in our democratic systems, such as privacy and the right to know, inevitably impinge one against another. Law is not wholly self-explanatory or self-executing. Its efficacy is heavily dependent on the sound judgment and faithful execution of those who direct and administer our agencies of Government.

As is the case in all administrative laws, it is axiomatic that the sound judgment of those who direct and administer our agencies will be questioned and opposed by private citizens. When that happens, and when Congress has created a judicial remedy, court cases often arise.

Despite the fact that the Freedom of Information Act has only been operative these 10 months, a dozen court cases have already been docketed. The courts have been asked to determine whether a particular document or set of documents fall within one of the act's nine exemptions, and would thus permit the agencies to withhold the information from public disclosure.

Of the eleven cases decided at this time, four have held in favor of disclosure and seven against. (See below.) Two other cases are pending in Federal district courts. Perhaps upon conclusion of these cases, a pattern may be indicated.

It should be noted that there have been a number of requests for information that have been settled without resort to the courts. In many cases the final ruling of the highest agency official was in favor of disclosure and the matter ended there. In others, the complainant accepted the final ruling of the agency against disclosure and did not pursue his remedy in court. (See replies of the agencies to the subcommittee's questionnaire).

The usefulness of the act, however, will not depend on court decisions alone. The act called for a change in attitude, and hence, the success or failure of the act greatly depends on the sound judgment and faithful execution of the law by agency officials. The record of the agencies in this regard is far from clear.

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The direction that some agencies are taking, however, gives cause for optimism. The Department of Health, Education, and Welfare, for example, is establishing public reading rooms, both in Washington and in each of its regional offices throughout the country. The Immigration and Naturalization Service as well as several other agencies have done likewise. This is a positive step and helps to eliminate the frustration of having to deal with agencies on a long-distance basis.

In most cases agencies have staffed their public reading rooms with a responsible public information specialist to assist the citizen in obtaining the records required to be made available under the act. Moreover, most of the agencies' implementing regulations grant final authority to deny information only to the head of the agency. This was suggested by the Attorney General's memorandum on the act, which stated, “It should be noted that district court review is designed to follow final action at the agency head level." (P. 28.)

As intended by Congress, the effect of this has been to remove information policy decisions from the hands of the low-level Government employees and place them in the hands of high-level, responsible policymakers. The purpose of this committee print, therefore, is threefold:

To survey the activities of selected Federal agencies in implementing the act;

To review recent or pending court decisions construing the act; and

To urge agencies of the Federal Government to implement both the spirit and the letter of the law, and attain the goal of freedom of information.

THE FREEDOM OF INFORMATION ACT

S. 1160,1 the Freedom of Information Act signed by the President on July 4, 1966, resulted in a sweeping revision of the public information section of the Administrative Procedure Act of 1946.2

The original section, although headed "Public Information," was something less than a true public information law. Under the ÅPA's section 3 (c), matters of official record were to be made available only to persons properly and directly concerned with the subject matter of the inquiry. Further, that section gave the agencies authority to withhold from public inspection those records held confidential for good cause found or whenever the public interest so required. Viewed in this light, the section was not a general public information law and did not provide for public access to official records generally.

On June 9, 1955, a House Government Information Subcommittee, with Congressman John E. Moss of California as its chairman, was established to investigate charges that Federal agencies had withheld information from those entitled to receive it; namely, the American public.

It was discovered by that subcommittee that agencies, in refusing to permit public disclosure, were citing as authority section 161 of the Revised Statutes—the so-called housekeeping statute.3 That section

1 Public Law 89-487, 80 Stat. 250. 2 Act of June 11, 1946, ch. 324, 60 Stat. 238 (now 80 Stat. 383, 5 U.S.C. 552 et seq.) 3 Now 80 Stat. 379, 5 U.S.C. 301 (1964 ed.).

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