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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.

(1)

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 APA'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, à 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. That section

1 Public Law 89-487, 80 Stat. 250.

3

2 Act of June 11, 1946, ch. 324, 60 Stat. 238 (now 80 Stat. 383, 5 U.S.C. 552 et seq.) 8 Now 80 Stat. 379, 5 U.S.C. 301 (1964 ed.).

provided in part that the head of each department was authorized to establish regulations concerning the performance of his department's business and the use of its records.

Congress amended the housekeeping statute in 1958 to make it clear that the statute could not be relied upon as legal authority for the withholding of information from the public. The agencies, however, then began relying on a restrictive reading of section 3 of the APA to deny disclosure.

Subsequent hearings on the availability of Government information were held by the Moss subcommittee and by the Senate Subcommittee on Administrative Practice and Procedure. Since 1957, each succeeding Congress had before it a bill to substantially revise section 3 of the APA. Finally, after 9 years of hearings and debate before the two subcommittees, Congress passed a new public information law and forwarded it to the President for his signature.

The thrust of the new law is, in the words of Attorney General Clark, that "disclosure is a transcendent goal, yielding only to such compelling considerations as those provided for in the exceptions of the act." 5

(NOTE.-On Feb. 7, 1968, Senator Edward V. Long introduced S. 2941 which would amend the Administrative Procedure Act so as to include the District of Columbia government under the provisions of the Freedom of Information Act.)

A reading of the act and its legislative history indicates that it was Congress' overriding concern that disclosure be the general rule, not the exception; that all individuals have equal rights of access; that the burden be on the agency to justify the withholding of a document, and not the person who requests it; that individuals improperly denied access to the documents have a right to seek injunctive relief in the courts; and that there be a change in Government policy and attitude toward disclosure of information.

The full text of the Freedom of Information Act, as passed by Congress and signed into law by the President on July 4, 1966, follows:

Public Law 89-487

89th Congress, S. 1160
July 4, 1966

AN ACT To amend section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), to clarify and protect the right of the public to information, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 3, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), is amended to read as follows:

"SEC. 3. Every agency shall make available to the public the following information:

"(a) PUBLICATION IN THE FEDERAL REGISTER.-Every agency shall separately state and currently publish in the Federal Register for the guidance of the public (A) descriptions of its central and field organization and the established places at which, the officers from whom, and the methods whereby, the public may secure information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as

Public Law 85-619, Aug. 12, 1958, 72 Stat. 547.

"Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act," U.S. Department of Justice, June 1967, p. iii.

to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) every amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, no person shall in any manner be required to resort to, or be adversely affected by any matter required to be published in the Federal Register and not so published. For purposes of this subsection, matter which is reasonably available to the class of persons affected thereby shall be deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

"(b) AGENCY OPINIONS AND ORDERS.-Every agency shall, in accordance with published rules, make available for public inspection and copying (A) all final opinions (including concurring and dissenting opinions) and all 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 any member of the public, unless such materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction: Provided, That in every case the justification for the deletion must be fully explained in writing. Every agency also shall maintain and make available for public inspection and copying a current index providing identifying information for the public as to any matter which is issued, adopted, or promulgated after the effective date of this Act and which is required by the subsection to be made available or published. No final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects any member of the public may be relied upon, used or cited as precedent by an agency against any private party unless it has been indexed and either made available or published as provided by this subsection or unless that private party shall have actual and timely notice of the terms thereof.

"(c) AGENCY RECORDS.-Except with respect to the records made available pursuant to subsections (a) and (b), every agency shall, upon request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute and procedure to be followed, make such records promptly available to any person. Upon 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 shall have jurisdiction to enjoin the agency from the withholding of agency records and to order the production of any agency records improperly withheld from the complainant. In such cases the court shall determine the matter de novo and the burden shall be upon the agency to sustain its action. In the event of noncompliance with the court's order, the district court may punish the responsible officers for contempt. Except as to those causes which the court deems of greater importance, proceedings before the district court as authorized by this subsection shall take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way. "(d) AGENCY PROCEEDINGS.-Every agency having more than one member shall keep a record of the final votes of each member in every agency proceeding and such record shall be available for public inspection.

"(e) EXEMPTIONS.-The provisions of this section shall not be applicable to matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy; (2) related solely to the internal personnel rules and practices of any agency; (3) specifically exempted from disclosure by statute: (4) trade secrets and commercial or financial information obtained from any person and privileged or confidential; (5) interagency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a private party; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions; and (9) geological and geophysical information and data (including maps) concerning wells.

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