meetings are to be made known. Special meetings must be formally announced, with adequate notice given to the public and communications media. The law is rightly flexible, granting the right of public bodies to executive sessions, specifically in the case of personnel actions, certain complaint charges and matters affecting the national security. For those interested in basic research on the California Brown Act and its broader relation to the whole freedom of information question, I recommend the article, "Secrecy and the Access to Administrative Records" by Prof. Albert G. Pickerell, and I ask unanimous consent to have Professor Pickerell's article printed at this point in the record. There being no objection, the article was ordered to be printed in the record, as follows:

PART V. AGENCIES AND THE PUBLIC: SECRECY AND THE ACCESS TO

ADMINISTRATIVE RECORDS

(By Albert G. Pickerell)*

I. THE FEDERAL SCENE

Since 1948 newspaper editors have been expressing anxiety over a "growing tendency" of government officials to suppress public information.1 In 1950 the American Society of Newspaper Editors authorized its Freedom of Information Committee (which previously had been primarily concerned with reducing barriers to the international flow of information) to undertake a general attack on the "undemocratic practice" of news suppression. The chairman of the committee reported a short time later that a "nation-wide and incessant guerrilla warfare was being waged against our right of access to public information." There is "arrogant suppression of news all over the place," he told the 1951 ASNE convention. As a result a concerted campaign has been carried on by several newspaper organizations, especially the ASNE. At least four national associations have set up standing "freedom of information" committees," and similar groups have been formed in many states to fight news suppression on state and local levels.

Numerous protests of withholding information of legitimate interest to the public have been lodged by these freedom of information committees as they sought, by a combination of publicity and legal action, to win broader access to public information. During the first half of 1953, for example, one group processed forty "major" cases, the "majority of which concerned secret government of one kind or another, or outright censorship by autocratic officials."

In 1951 the ASNE commissioned Harold L. Cross, veteran New York newspaper attorney, to continue a preliminary study and to prepare a "comprehensive report on customs, laws and court decisions affecting our free access to information whether it is recorded on police blotters or in the fields of the national govern

*Associate Prefessor of Journalism, University of California, Berkeley.

1 See, e.g., proceedings of the annual convention of the American Society of Newspaper Editors in PROBLEMS OF JOURNALISM 1948 150-51, 168-69. "Our responsibility lies in the domestic field as well as in the international field. . . ." Basil Walters, Bulletin of the ASNE, Oct. 1, 1948, p. 1.

2 The problem of course is not a new one. "Every newspaperman is used to a nominal tussle over news that reflects some discredit on elected or employed public officials. This is a conflict as old as government and news of government." James S. Pope, in CRoss, The People's Right to Know xv (1953).

Editor & Publisher, Jan. 27, 1951, p. 59.

ASNE, Problems of Journalism 1951, p. 171.

5 For reports of the ASNE see annual volumes of Problems of Journalism and the monthly Bulletin of the ASNE. Also taking part in the campaign have been the American Newspaper Publishers Association, the Associated Press Managing Editors Association (see annual volumes of the APME Red Book), Sigma Delta Chi, national journalistic fraternity (see its monthly publication, The Quill), and the National Editorial Association (see its monthly publication, The National Publisher).

Newton, A Growing Threat to Democracy: Secrecy in Government, The Quill, Sept. 1953, p. 7. Eighteen formal protests were lodged; they included secret meetings of the Alameda, California, city council and a secret conference on ethical standards at the University of California. Ibid. See also Report of Advancement of Freedom of Information Committee, The Quill, Dec. 1954, p. 7.

ment." The result was his The People's Right to Know, published in 1953, and hailed as a "manual of arms" for newspaper editors.*

8

The practice of news suppression has not been peculiar to any special type of information or limited to any particular branch of government. One California editor has commented: ". off-the-record statements by public officials are becoming a growing disease in this country. Because the President of the United States holds off-the-record conferences to supply background information, deputy sheriffs are doing likewise."

11

Two executive orders (one by President Truman 10 and one by President Eisenhower have been the cause of much criticism, as have the information policies of the Department of Defense and the tight rein on information imposed by Secretary Wilson's directive of March 29, 1955, which permitted release only of material that would "constitute a constructive contribution to the primary mission of the Department of Defense. ." 12 Numerous other governmental information policies have been strongly protested.13

16

The "freedom of information" campaign reached something a climax late in 1955 when a special House subcommittee under the chairmanship of Representative John E. Moss of California opened hearings on government information practices. The subcommittee, said Representative Moss, "will not be conducting an investigation but, rather, will be studying a vital problem." " As preparation for its task the group in August, 1955, sent a questionnaire to all federal executive and independent agencies.15 Among other things, the replies revealed some 30 new classifications that had been devised to keep information unrelated to security from being disclosed and apparently to circumvent the Presidential order which had limited classification of information to three defined categories, "top secret," "secret" and "confidential." 17 Hearings were held November 7-10 and concentrated on the Executive branch. A second set of hearings was conducted in January, 1956, centered on the regulatory agencies. Witnesses for the Civil Service Commission particularly drew heavy fire. The commission had replied to the subcommittee questionnaire thusly: "The authority of the Commission to deny access to or to furnish information from its records and files is based on the inherent power of the executive branch of the Government derived from the Constitution...." 18 Both Commissioner Young and the agency's acting general counsel

Cross, The People's Right to Know xv (1953).

See also its 1953 CUM. SUPP. No. 1 (1954). For an illustration of the use of Cross' book to gain broader access to public information see Romm. Opening Up the City Hall, Nieman Reports, Jan. 1954, p. 8.

The Publishers' Auxiliary, Feb. 16, 1952, p. 1.

10 Exec. Order No. 10290, 16 FED. REG. 9795 (1951).

"Exec. Order No. 10501, 18 FED. REG. 7049 (1953). "We have found news somewhat harder to dig out under the present administration," W. L. Beale, Jr., chief of Washington bureau, Associated Press, quoted in Raymond, The People's Right to Know 48 (1955).

13 Reprinted in 101 Cong. Rec. 11325 (daily ed. Aug. 3, 1955). See also New York Times, March 31, 1955, pp. 1, 16; April 7, 1955, p. 15; April 13, 1955, pp. 1, 11; Time Magazine, May 9, 1955, pp. 78-79; and Henkin, "Pentagon News Policies Irk U.S. Press," I.P.I. Report (International Press Institute, Zurich), Aug. 1955, p. 1.

is These include activities of the Office of Strategic Information in the Commerce Department; the Commerce Department's control of the export of technical data; an "excessive" number of secret meetings by congressional committees; and information policies of the Atomic Energy Commission. See, e.g., reports of the ASNE subcommittee on Atomic Information in ASNE, PROBLEMS OF JOURNALISM 1952 and 1953 and an article by its chairman, Block, The Fetish of Atomic Secrecy, Harper's Magazine, Aug. 1953, p. 31. For general discussion by an edition of public information problems and restrictions see statement by Wiggins in Hearings before the Subcommittee on Reorganization of the Senate Committee on Government Operations, 84th Cong., 1st Sess., pp. 682-701 (1955). This statement also appears in ASNE, PROBLEMS OF JOURNALISM 1955, pp. 272-79. One of the most severely criticized administration policies has been the Eisenhower-to-Wilson letter of May 17, 1954, issued during the Army-McCarthy hearings, described by one newsman as "the greatest threat to freedom of the press in our time." Mollenhoff, Is the Press Alert to a Dangerous Precedent On Executive Secrecy? The Quill, Dec. 1955, p. 9. See also Mollenhoff, A Precedent the Press Should Examine, Nieman Reports, Jan. 1956, p. 28. "Never has so broad a power of executive right to withhold been asserted." Cross, Editor & Publisher, No. 26, 1955, p. 72.

14 101 CONG. REC. A6213 (daily ed. Aug. 25, 1955).

15 The four-page questionnaire and the "unevaluated" replies from the agencies, along with the bulk of exhibits, has been issued as a 552-page committee print, Replies from Federal Agencies to Questionnaire Submitted by the Special Subcommittee on Government Information of the House Committee on Government Operations, 84th Cong., 1st Sess. (1955).

18 For example, "for administrative use only," "for official distribution," "for staff use only." "administratively confidential," etc.

17 Exec. Order No. 10501, 18 FED. REG. 7049 (1953).

18 Replies from Federal Agencies to Questionnaire Submitted by the Special Subcommittee on Government Information of the House Committee on Government Operations, 84th Cong., 1st Sess. 83 (1955).

defended commission rulings that had kept secret such information as the names of eligible candidates for postmaster appointments. They maintained such authority was "inherent" in the Civil Service Act of 1949.19

Representative Moss expressed "amazement" that some agencies contended they had an "inherent power" to keep information from the public, describing it as a "fantastically new concept of law."" Officials of the agency asserted that they answered all "reasonable" requests for information. They insisted, however, that they alone had the right to judge what was "reasonable." " As a result of the hearings, there were indications the committee would take action to recommend changes in federal statutes. The Civil Service Commission has revised its public information regulations.

22

21

Cross found the right of inspection on the federal level to be a "rare exception," in contradistinction from the law at state and municipal levels, where the right of inspection is the “general rule." He found there was no enforceable legal right to general inspection of federal non-judicial records, the availability thereof being a matter of official grace, indulgence or discretion." Cross reported he had practiced newspaper law for 35 years without encountering a serious case of refusal of access to public records and proceedings. "Now," he commented in 1951, "scarcely a week goes by without a new refusal. The last five years brought more newspaper lawsuits to open records than in any previous twenty-five years." It is difficult to conceive of any branch of the law that does not require frequent examination of such public documents as police records, vital statistics, tax assessments, motor vehicle records and various other materials to which newspaper organizations have been seeking the right of access. As Justice Botein has pointed out:

25

124

"The information stored in public records which the news reporter wants to inspect for possible publication may be the same information which the lawyer desires to inspect for possible use in a trial, in the preparation of legal documents, or in the myriad of functions he performs for clients."

The complexities and bigness of government alone make it increasingly difficult for the newsman to dig out information, especially information the public official is reluctant to disclose. As an indication of the problem facing the editor in his quest for "all the news that's fit to print," in San Francisco alone there are some 200 federal agency offices.2

The (London) Economist thus pictured a British senior civil servant if he had attended opening sessions of the Moss subcommittee hearings: “. . . he would have returned to Whitehall thankfully, like an explorer escaped from the Jibaro head-hunters."" The observations of the Economist illustrate sharply basic differences in the United States and England as to the relationship between public officials and the press, as well as differences in status of the contemporary press. Commented the Economist;

28

"Nobody ventured to suggest that these self-elected guardians of the public interest were already getting more information from government departments than were the newspapermen of any other country in the world. Nobody seriously

19 New York Times, Nov. 9, 1955, p. 39.

20 Editor & Publisher, Nov. 19, 1955, p. 13. "We are amazed to learn that Congressman John E. Moss is 'amazed' that some government agencies believe they have an inherent' power to control information. This perverted notion that elected or appointed officials can decide what items of non-security information should be released to the public has been the root cause of news suppression at all levels of government. It has provided the basic reason for the Moss Committee investigation." Editor & Publisher, Nov. 26, 1955, p. 6. 21 New York Times, Nov. 9, 1955, p. 39.

22 Editor & Publisher, Jan. 28, 1955, p. 46; New York Times, Jan. 21, 1956, p. 8. In its opening hearings the committee "took a giant step toward the goal of clearing the channels of communications between Federaldom and the public." Marder, Freedom of Information-a Giant Step Forward, Bulletin of the ASNE, Dec. 1, 1955, p. 1. See also Editor & Publisher, Nov. 12, 1955, p. 10 and Nov. 19, 1955, p. 13; and Freedom of Information News Digest, Feb. 6, 1956 (an occasional, mimeographed publication distributed by the National Editorial Association, 222 N. Michigan Ave., Chicago).

23 See Cross, The People's Right to Know 199-201 (1953) for listing of "several factors" (including five "legal doctrines") held responsible for the "state of the law." He deals in separate chapters with REV. STAT. § 161 (1875), 5 U.S.C. § 22 (1952), and the Administrative Procedure Act, 60 STAT. 243 (1946), 5 U.S.C. §§ 1001-11 (1952). He describes the former as having been "tortured into a barrier against the public interest" and a situation that "cried aloud for change." Id. at 222. He considers the latter as "abject failure" as far as making records available is concerned. New York Times, Dec. 18, 1955, p. 69. 24 Quoted in Pope, The Suppression of News, Atlantic Monthly, July 1951, p. 51. 25 Botein, Book Review, 67 HARV. L. REV. 920 (1954).

28 San Francisco Chronicle, July 3, 1955, p. 6.

"The Economist (London), Nov. 19, 1955, p. 653.

23 Ibid. But see Griffith, The Crichel Down Affair, 18 Modern L. Rev. 557, 568-69 (1955).

challenged the proposition that it was undemocratic and shameful to deny them more information. As for the idea, widely if not universally entertained in Whitehall, that government officials should be insulated from inquisitive newspapermen by press officers who should dispense whatever information the department chiefs think fit to give them and no more that idea was too arrogant and fantastic to be mentioned at all."

20

Even within the United States there are many varying concepts of "freedom of information." " From a practical standpoint, they range from the somewhat idealistic and sometimes over-zealous position of newsmen to the "inherent" powers of suppression claimed by some government officials. According to the charges, the suppression of public information takes many forms and stems from various motives. There is not room here for discussion of all these. One position is that the barriers are supported principally by public officials who have a basic contempt for the judgment and intellectual capacity of the American people. Another is that censorship is used to cover up administrative mistakes and to prevent embarrassment.

There is evidence that the complexities of governmental affairs and the continuing crises of the cold war have reduced the public's interest in public information and strengthened the idea that security is somehow served by secrecy. The efforts in recent years of newspaper editors to reduce the area of restricted information, says one observer. "may prove to be the necessary pioneer work of men with real vision of a grave national problem." The American Civil Liberties Union published a study on the subject and expressed "rising concern" that government agencies were "narrowing 'the market-place of opinion.'" But there has been little general concern, and newspaper editors themselves, in the opinion of some of their spokesmen, have in some instances not taken sufficient interest in the problem. If the suppression of public information is as "arrogant" and "rampant" as some observers claim, the situation certainly presents a grave threat to the proper functioning of democratic processes.

II. THE CALIFORNIA PICTURE

34

In the winter of 1951 the Riverside Press-Enterprise learned that two drunk driving arrests had been made by the Riverside police department, the reports of which had been withheld from police records. Thus was the newly organized Freedom of Information committee of the California Newspaper Publishers Association (hereinafter referred to as the CNPA) provided with its first case of alleged news suppression. Since then CNPA and its Freedom of Information committee have been active in this field, sponsoring legislation and lodging numerous complaints that information of a legitimate interest to the public was being concealed." At the 1953 legislative session two bills dealing with access to public

36

For discussion of distinguishable theories of functions and purpose of mass media see, e.g., contributions by Siebert and Peterson in MASS MEDIA AND EDUCATION 13-53 (Henry ed. 1954); see also Siebert, Peterson and Schramm, The Four Theories of the Press (unpublished manuscript in Stanford University library, Division of Communication and Journalism, 1955); and Hocking, Freedom of the Press (1947).

30 E.g., "A free people cannot properly exercise their franchise unless they know the facts about the public business. And there can be no withholding of the facts about the public business on any score." Isaacs, The APME Red Book 1954, p. 187. But cf., "I am beginning to wonder whether the initials ASNE do not really stand for 'American Society for No-restrictions Enywhere.' So vast is the flood of rhetoric and report about Freedom of Information, so frequent and so ferocious are the pronouncements of editors and publishers on the subject, that one is sometimes impelled to seek out a Noah to show the way into an ark of dry silence away from the deluge of declaration." Markel, Bulletin of the ASNE, March 1, 1956, p. 7. "Moderation, in my opinion, will accomplish much more for freedom of information than an evangelical campaign making extreme demands." Mathews, Bulletin of the ASNE, Nov. 1, 1954, pp. 3, 6.

See, e.g., The APME Red Book 1954, p. 190, and Wiggins, A Failing Faith in the People as a Cause of Official Secrecy, Bulletin of the ASNE, Oct. 1, 1954, p. 9.

22 "In sum, secrecy may be a device to conceal ignorance and error as well as knowledge and success." Gellhorn, Security, Loyalty and Science 50 (1950).

Raymond, The People's Right to Know 45 (1955).

Id. at 3. This ACLU report concludes that the "abuses of power in Federal agencies to suppress information of value and interest to the nation were never so rampant as now,' Id., at 45. For another general report on the subject see Stone, Secrecy in Government, 24 Editorial Research Reports 895-912 (1955).

25 See e.g., Report of Sigma Delta Chi committee, The Quill, Dec. 1954, pp. 7, 8.

Hafner, California and "The Right to Know" (unpublished master's thesis in University of California Library, Berkeley, 1955). See also Berkeley Gazette, Nov. 27, 1951,

p. 3.

For examples of these protests see files of The California Publisher, monthly publication of the California Newspaper Publishers Association.

4

1 visions of this Act and copies of such transcript shall prompt

2 ly be made available for public inspections and copying.

3

SEC. 4. The district courts of the United States shall

4 have original jurisdiction of actions to render declaratory 5 judgments or to enforce, by injunction or otherwise, the first 6 section of this Act and section 3 insofar as it relates to that 7 section. Such actions may be brought by any person in the 8 district where such person resides, or has his principal place 9 of business, or where the agency whose action is complained 10 of resides.

SEC. 5. DEFINITIONS.-For the purpose of this Act(1) "Government agency" means each authority of the Government of the United States (whether or not it is within or subject to review by another Government agency) having more than one member, but does not include

(a) the Congress

(b) the courts of the United States

(c) military authorities.

(2) "person" includes an individual, partnership,

corporation, association, a public or private organization

other than an agency.

SEC. 6. This Act shall take effect on the ninetieth day

24 after the date of its enactment.