closure of public information from the lower levels of bureaucracy. The top officials who now make the decisions are much more responsive to the democratic pressures implicit in the people's right to know. Arbitrary refusals to disclose information-the hallmark of the petty bureaucrat-are becoming fewer and fewer."

Still, many requests are rejected and, so far as could be learned, the agencies are standing their ground.

John Herling of the National Newspaper Syndicate learned that the Kennecott Copper Corp. and the Peabody Coal Co. has asked the Federal Trade Commission for a premerger clearance. The clearance was denied but the Commission made no announcement and would not admit it had made a decision. Mr. Herling asked for the vote and how each commissioner voted. The request was refused. He is preparing a formal challenge.

CLEARANCE DATA REFUSED

The Justice Department, which also considers premerger clearance requests, has refused to say whether it has given clearance in particular cases.

The Securities and Exchange Commission regards its correspondence with the New York Stock Exchange, for example, as "internal papers."

Futile requests for access to this correspondence have been made by The New York Times and presumably by other newspapers.

News hunters are often frustrated by means other than a flat refusal of disclosure. Delay is often the equal of denial. What is news today may be worthless tomorrow.

Many agencies want requests for information channeled through their public information offices, a system that often denies a reporter access to the Government source best qualified to answer the questions.

Many office holders have been geared over the years to that system, so they buck even the routine questions to the public information office. The effect often is delay and professionally shaped and filtered information.

The idea of freedom of information, and the action that translated that idea into a statute, were based on the public's right to know and were not particularly for the benefit of the press. The press serves as a channel for the transmission of Government information, but there is much information in which the press is not interested.

An insurance company, for example, wanted from the Defense Department the names of discharged service men. The request was refused on the ground that it would be an invasion of privacy.

This raises the question whether it is the business of the Pentagon to police the users of information that may otherwise be in the public domain, or whether a citizen's service and discharge is a private matter.

CENTER TO BE SET UP

A Citizen's Advocate Center is about to make its appearance on the Washington scene. The Field Foundation and the Rockefeller Foundation have given it interim grants of $15,000 each. The Ford Foundation is considering a request for more substantial funds.

Two lawyers, Edgar S. Cahn and Stephen Rosenfeld, are shaping the new center, which will try to extend the rule of law to the grant-making process in Government. Administrators, said Mr. Cahn, every day make cash grants that affect people's lives without their knowing what those determinations are or what they are based on.

Mr. Cahn and Jean Camper Cahn, his wife, who also is a lawyer, deal with the problem in an article that will be published next month by The Harvard Law Review.

They question some exemptions under the Freedom of Information Act, contending that they are "worded so ambiguously that they may undo all that the act sets out to accomplish."

HINGES ON 2 FACTORS

Two factors, other than litigation and court decisions, they wrote, "will ultimately determine the import of this act."

"First," they said, "Congress must monitor implementation of this act carefully; there are already clear signs that at least certain Congressmen and Senators are prepared to do so.

"Second, and possibly more important, compliance will rest upon the extent to which the act is used by the general public, by the press and media, by grantees and citizen groups."

Congress itself is less than a model for open decisions openly arrived at Congressional Quarterly, a private publication, reported that congressional committees in 1967 held 39 percent of their meetings in private. That is, 2,696 meetings were open and 1,716 meetings were closed. All 383 House Appropriations Committee meetings were closed.

"The reason usually is," said a long-time Capitol reporter, "that members don't want their constituents to find out and flood them with mail, phone calls and telegrams protesting this or that committee decision and demanding reversal of decisions. By the time the decisions become public knowledge it is often, if not always, too late to protest, as the bill has already been reported out." [Reprinted from Vol. 20, No. 3 of the Administrative Law Review (1968)] AGENCY IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT (Theodore Sky*)

INTRODUCTION

This amended section 3 of the Administrative Procedure Act now codified as 5 U.S.C. 552, known as the Freedom of Information Act, has been in effect since July 4, 1967. The Attorney General has prepared and issued a highly useful memorandum on the act which serves as a detailed set of guidelines for agencies and others who must grapple with its provisions.' Virtually every affected agency has published rules, in more or less substantial detail, concerning the manner in which it expects to meet its new responsibilities. The courts have already begun to enlighten us on the meaning of the new law's more elusive provisions." Stimulating and provocative commentary has appeared in the legal journals. Finally, if the act has had no other effect, it has generated an impressive array of symposia devoted to its intricacies, one being the very successful gathering sponsored by the Administrative Law Section itself in the spring of 1967.

Considerable as is the level of attention the FOIA is getting, it is deserving of more. Problems of interpreting the act, some fundamental, remain. The manner in which some agencies are administering the act may be the subject of honest dispute.

As the arm of the American Bar Association particularly interested in administrative law, the Administrative Law Section should naturally take an active interest in the FOIA's operation. Furthermore, it may be open to the section to serve as a vehicle of serious communication with individual agencies concerning the administration of the act.' The FOIA represents a set of sweeping principles which leaves to the collective judgment of the agencies and their clients the resolution of complex problems regarding disclosure of particular records. Congress, as well as the judiciary, has an important role in scrutinizing those judgments, a task to which already it is warming. There is room, how

*Member of the District of Columbia Bar; chairman, Public Information Committee, Administrative Law Section, American Bar Association. Portions of this paper appeared in a report submitted on behalf of the Public Information Committee to the Council of the Administrative Law Section at is midwinter meeting.

1 U.S. Department of Justice: Attorney General's Memorandum on the Public Informa tion Section of the Administrative Procedure Act (June 1967) (hereinafter cited as "Attorney General's Memorandum").

2 See infra pp. 14-16.

See Davis, The Information Act: A Preliminary Analysis, 34 University of Chicago Law Review 761 (1967).

At least one committee of the association has already been active in this respect. On January 26, 1968, the Public Information Act Subcommittee of the NLRB Practice and Procedure Committee of the ABA's Labor Section met with the NLRB regarding that agency's implementation of the FOIA. It is understood that a useful exchange took place in a number of areas.

The Senate Subcommittee on Administrative Practice and Procedure is expected soon to hold hearings on compliance with the FOIA in connection with consideration of a bul to extend the act to the District of Columbia Government.

ever, for meaningful dialog between interested segments of the bar and the agencies concerned.

In this context, the purpose of this paper is briefly to describe, albeit in an impressionistic and broad-brush fashion, some of the recent developments under the FOIA, particularly those which disclose the type of interpretative problems which are arising.

Purpose of the FOIA.-The movement to amend section 3 of the APA grew out of a congressional concern that that section was being employed by some agencies as a basis for withholding information. Section 3 contained some rather broad exceptions. It withdrew from its publication and availability requirements matters involving any function of the United States requiring secrecy in the public interest. It did not apply to records which "should be held confidential for good cause found," and, in any event, it required that records be made available only to persons "properly and directly concerned." Whatever its original intent, Congress determined that section 3, by virtue of this broad language, was being employed at least as much to restrain the flow of Government information as to foster it.

Speaking generally, the FOIA effected the following changes:

First, it eliminated the broad exemptive language including the requirement that a person must be directly and properly concerned in order to be entitled to see Government records. Any person, regardless of status, interest, or identity, is theoretically entitled to the records the act makes available.

Second, the FOIA thus represents a swing of the pendulum. Where formerly the burden of justifying disclosure was on the person seeking public records, the act has attempted to impose a burden of justifying nondisclosure upon the agency fielding the request. To accomplish this, the act specifies that certain described materials, and all identifiable records generally, must be made available, subject to nine specific exemptions.

Third, the act has attempted to promote the greater availability of certain classes of agency materials which are potential sources of law or policy. In particular, statements of policy, agency interpretations of general or specific applicability, and administrative staff manuals are covered.

Fourth, the act affords a remedy for those unable to obtain requested records by providing for resort to the courts.

Whether Congress has succeeded in fully effecting these objectives is open to question. However, that the act signifies a new and more liberal approach to public information appears largely to have been accepted within the Government. The Attorney General epitomized the philosophy of the act when he stated:

"The revised section 3, *** is clearly intended to be a 'public information' statute. The overriding emphasis of its legislative history is that information maintained by the executive branch should become more available to the public.'

Government officials charged with administering the act have publicly recognized this emphasis. Individual judgments on particular documents may run counter to the disclosure philosophy. Individual agencies may take what might be regarded as restrictive positions with respect to particular documents. The climate, however, appears, at least from this vantage point, to have changed. Subsection (a) (1) (publication in the Federal Register).-The legislative history of the FOIA suggests that subsection (a) (1) was the least changed of any of the components of the original section 3 of the APA. The FOIA has, however, strengthened the incentives to publication. It warns the agency: "Except to the extent that a person has actual and timely notice of the terms hereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." The former section 3 provided that a person should not be required "to resort to organization or procedure" which should have been published but was not. The new sanction was designed to afford an "added incentive" for publication by relieving persons from obligations imposed by any matter which should have been, but was not, published in the Register."

Agency organization.-The requirement that the agency publish descriptions of its organization (category A) and of its method of operation (category B), while little changed, has encouraged numerous agencies to recast and republish in the Federal Register statements of their organization, functions and dele

6 Attorney General's memorandum at 1.

7S. Rept. No. 1219, 88th Cong., 2d sess. 11 (1966); Attorney General's memorandum at 11-12.

92-089-68-13

gations of authority. This material should have considerable practical utility to lawyers, particularly when dealing with such agencies for the first time.

Interpretations of general applicability.-One of the most difficult problems of interpretation arising under the FOIA involves "interpretations." The act requires publication in the Federal Register of "interpretations of general applicability formulated and adopted by the agency." The former section 3 provided that such interpretations need be published only if adopted "for the guidance of the public." By removing this qualification (and by strengthening the sanction for nonpublication, the FOIA has given this requirement new force. The term "interpretations of general applicability" as used in the FOIA is elusive. The Attorney General's memorandum observes: "Ordinarily an agency would not adopt a rule or interpretation for publication in the Federal Register unless it is of general applicability,' which would exclude rules addressed to and served upon named persons." This statement leaves unanswered the question whether an interpretation made by the agency, whatever the occasion of its adoption, is one "of general applicability" so that it must be published.

At first blush, agency decisions in adjudicated cases would seem an obvious source of generally applicable interpretations of the laws the agency is charged to administer. The Attorney General's memorandum states that an agency need not publish in the Register policies and interpretations formulated in its published decisions." Professor Davis, on the other hand, believes that at least some "case law" interpretations must be published in the Federal Register."

In light of the legislative history of the FOIA and the provisions of subsection (a) (2) as to the availability of agency case law, it seems doubtful that this view is correct. If it is, however, then many agencies may be failing to comply with the FOIA by not combing their case law for interpretations to place in the Register," and some agency case law may have lost precedential force by virtue of the sanction in subsection (a) (1).

Even more difficult problems exist with respect to the publication of other types of interpretations such as informal agency staff interpretations, an issue discussed at the National Institute on Federal Agency Practice last spring."

Subsection (a)(2) (routine availability of agency material not published in the Federal Register).—Subsection (a) (2) provides for the routine availability for public inspection of certain specified types of materials likely to contain matters of law or policy. More particularly, this subsection requires an agency to make available:

“(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

"(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and

"(C) administrative staff manuals and instructions to staff that affect a member of the public; ***"

While subsection (a)(2) specifies no particular machinery for making the relevant materials available, the use of a public reading or reference room is an obvious method, and the Attorney Generals Memorandum encourages the use of such facilities." Many agencies maintained reading rooms prior to the enactment of the Freedom of Information Act and are presumably expanding their facilities to encompass material required by the act. Some agencies are also providing for the availability of information through reading rooms or otherwise at the regional level

See, e.g.. 32 F.R. 10518 (July 18, 1967, Department of Defense, ASPR Committee): 32 F.R. 12023 (Aug. 19, 1967, Federal Reserve System). 9 Attorney General's memorandum at 10.

10 Ibid.

11 Davis, supra note 3, at 768–770. “[A] very useful purpose will be served if agencies are required to publish in the Federal Register their especially significant statements of general policy or interpretations of general applicability [in adjudicatory opinions]."

(Id. at 769.)

12 The F.C.C., for example, expressly states that substantive interpretations and state ments regarding policy which may be contained in Commission decisions are published in the "F.C.C. Reports" as part of the decision, not separately in the Federal Register. 47 CFR section 0.445(d), (32 Federal Register 10573, July 19, 1967).

18 The Federal Trade Commission has recently begun publishing in the Federal Register digests of premerger clearance rulings. See 33 Federal Register 2887-89 (Feb. 13, 1968). This material had not been previously published in the Federal Register.

Incorporation by reference, another major innovation contained in subsection (a) (1), has been the subject of reports by the section's Committee on Public Information. See ABA, section of Administrative Law, 1967 Annual Reports of Committees at 34-57.

14 Attorney General's Memorandum at 14.

15 See, e.g., Civil Service Commission, 5 CFR section 294.105 (32 Federal Register 9494. July 1, 1967); Office of Economic Opportunity, 45 CFR section 1005.4 (32 Federal Register 9685-86, July 4, 1967).

INTERPRETATIONS

One of the more important innovations of the Freedom of Information Act is the requirement that agencies make available for inspection interpretations not published in the Register. As indicated above, publcation in the Federal Register under subsction (a) (1) is required for "interpretations of general applicability." (Emphasis added.) The coverage of subsection (a) (2) is thus apparently addressed to those statements and interpretations which are not of general applicability. Language in the House report appears to narrow this even further by indicating that "an agency may not be required to make available for public inspection and copying any advisory interpretation on a specific set of facts which is requested by and addressed to a particular person, provided that such interpretation is not cited or relied upon by any officer or employee of the agency as a precedent in the disposition of other cases.'

" 16

The Attorney General has relied upon this language in indicating the subsection covers only those statements or interpretations which the agency may rely upon as precedents." The position has also been taken that the phrase "adopted by the agency" limits the covered interpretations to those made by the agency itself or by a specific delegate of the agency.18 This view apparently excludes the numerous interpretations made by agency staff personnel at the request of private parties.

In implementing the FOIA agencies appear to be taking either or both of these approaches. Thus, the Federal Communications Commission announced in its regulation under the Freedom of Information Act:

"General statements regarding policy and interpretations furnished to individuals, in correspondence or otherwise, are not ordinarily published. A series of individual interpretations may be collected and published in the Federal Register and the FCC reports."

19

Other agencies have stated the requirement in terms that statements of policy and interpretations adopted by the agency will be made available if they have precedential value. Many agencies content themselves simply with paraphrasing the statutory language.

20

21

As is well known, agencies, through staff, routinely make what could justifiably be called limited interpretations in response to more or less formal requests by private parties. Some of these responses may be quite informal and their interpretative content may be implicit. Moreover, in order that such interpretative content can be made intelligible, the reader often must see the letter from the private party as well as the agency's reaction to it. (Indeed, there may be no such letter if the request was oral.)

The case of the SEC no-action letter provides an interesting illustration. The SEC no-action letter is typically a staff response to a private party's request for an SEC opinion as to whether a particular transaction will come within the reach of the Securities Act. The SEC may respond to such a letter by reciting the facts and then indicating that based on the facts as stated, the staff is not inclined to recommend any action with respect to the matter. The rules published by the SEC in response to the Freedom of Information Act in July of 1967 recite that among the materials which will be available for public inspection and copying during normal hours at the Commission's public reference room are "statements

16 H. Rept. No. 1497, 89th Cong., second sess. 7 (1966).

17 Attorney General's Memorandum at 16. This view gains some force from the language of the relevant sanction which applies to statements and interpretations which are relied upon, used or cited as precedent by an agency. However, it is arguable that the availability requirement may go farther than the sanction. See generally Davis, supra note 3, at 772-75 for an argument in favor of a much broader reach for subsection (a) (2) in this regard.

18 Attorney General's Memorandum at 16.

19 47 CFR section 0.445 (d) (32 Fed. Reg. 10573, July 19, 1967).

20 See e.g., NASA, 14 CFR section 1206.200 (b) (ii) (32 F.R. 9529, July 1, 1967); Office of the Secretary of the Treasury, 31 CFR section 1.3(c) (32 F.R. 9562, July 1, 1967) ("statements and interpretations of limited rather than general applicability adopted by the Department upon which the Department may rely as governing policy or precedents"); Renegotiation Board, 32 CFR section 1480.5(a) (32 F.R. 9226, June 29, 1967) ("statements of policy and interpretations adopted by the Board and not published in the Federal Register, to the extent that matter included therein is considered by the Board to have potential significance as a precedent"). The Federal Maritime Commission, on the other hand, states flatly that it will make available "those statements of policy and interpretations which have been adopted by the Commission" 46 CFR section 503.21 (32 F.R. 8408, June 13, 1967).

21 See, e.g., Agency for International Development, 22 CFR section 212.21 (b) (32 F.R. 9653, July 4, 1967).