MILTON VIORST: BUREAUCRATIC PULL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000700010005-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 26
• Document Creation Date: December 16, 2016
• Document Release Date: June 2, 2005
• Sequence Number: 5
• Publication Date: November 14, 1974
• Content Type: NSPR

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WASHINGTON STAR-NEWS DATE 6 PAGE
Milton Viorst:
Bureaucratic Pull.
ont
?hn 1.1-1.1knnA .,f - A--;yp nvprrir~p on a
hill that- by almos . a he
ncvhnnlrl hasp ve d the
Freedom of. infnrma inn Art amend-
tleerrls.
Ford's veto was widely interpreted as
proof of the pervasive power which the
Nixonian, mentality, if not the Nixon
entourage itself, retains in the White
House. The veto has been-described as
typical of the suspicion of press and
public that produced Watergate.
I find that interpretation overdrawn,
and I read the evidence as conveying
chiefly something else. Let me explain:
Most of us are familiar, at least in a
vague sense, with the power, that such
pressure groups as big corporations, the
labor unions, the AMA and the gun-lobby
exercise on the political process. We are
less familiar with a pressure group that
is even closer to power: the federal
bureaucracy..
TO BE SURE, the bureaucracy is not
the conventional interest group, pursu-
ing its goals with money or votes. But it
doesn't have to. It has other weapons. '
In fact, money and votes don't neces-
sarily assure favorable decisions, but
they do assure access to the people who
make the decisions. By its very nature,
the federal bureaucracy inherently pos-
sesses that access, not just by appoint-
ment but on an ongoing basis.
Federal bureaucrats know how to put
heat on their superiors, up to and
including Cabinet officers. And the
superiors, including Cabinet officers,
know their work will be made easier if
the bureaucracy under them is happy
is aigni it that this hillwas vetoed
habinet's behest.
1wss I,u A44U
~~ hp h can acv felt.thrpatpned he-
^ranep the Frppdnm nfTnfnrmatinn Act
amendments bill aims at reducing its
of
i government.
Bureaucrats, like others, do no like to
surrender power.
More specifically, the bureaucracy
was frightened by a provision that would
make an individual personally liable for
erecting barriers to the legitimate flow
of information. Bureaucrats dislike
being faced with taking. a disciplinary
rap for their violations of rules.
eless the abuses which are the
ca on s o sensitive m or
But from the start, the White House
insisted that the act did not cove,r; s
to a n classified document, and d
tna> toe public nag e
w then a document was legitimately
that.
the
the
the
This is not a partisan issue. The bill
passed the House 363 to 8, and the Senate
64 to 17. Conservative Republicans as
well as liberal Democrats have announ-
ced support of the override. ,.'"as
unwise in this veto, and it will hurt him.
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i.J ON STAR-NEWS DATE
some actually preferring that
Congress pass a bill which
Ford would veto At ameeting
__Q ?the, White House Senior
J. F. t@rH?rst Freedom of Misinformation
The day after his swearing
in on Aug. 9, President Ford
assembled the Nixon Cabinet
and urged the department
heads to be "affirmative" in
their relations with the news
media.
He promised to set a high
example at the White House.
MOMENTS LATER, as he
went around the table solicit-
ing the views of the Cabinet on
matters of concern to their
agencies, Atty. Gen. William
Saxbe brought up the amend-
ments to the Freedom of Infor-
mation Act then moving
through Congress. Saxbe
termed the amendments "bad
legislation" and warned 1~'ord
that he might have to veto the
bill.
On the way out of the Cabi-
net room, Counsellor Robert
T. Hartmann and I, then
Ford's press secretary, ex-
changed grim glances. It was
clear that the attorney general
had not caught the spirit of
Ford's desire to establish an
open administration after years
of Nixon isolation. We immedi-
ateell sought out Ford and
pointe_ out to ,him_ttta a =,Pto
of the Freedom of Information
amn~en s woula mat his
p e g o 'ermess-ring hol-
low.
,Ford agreed and. displadnig
owledge of_ Capitol
Hill. suggested that the Senate
an House chairmen be as ed
to hold up the FOI amend-
so h;.~ dministr _qVon
pprople ceuldwork.out an ac-
ce tta_ble co_,mitrolnise?
ord knew the Hill chairmen
would respond to his plea that
the new administration de-
served a chance to break the
impasse then developing.
What Ford didn't know was
the depth of the ingrained
Nixonian antagonism toward
the media that still prevailed
among the Cabinet members
he had inherited.
-DESPITE THE grace period
congresna n
the
ers o tie bill SxtendW to
,ls _a personal courtesy,
no serious efforts to work ou-'f a
compromise'weremacfehe
Justice epar men , e ,
.the omestic Council or other
55800380 000700a005-3
&t- GE
liam,. Timmpns the White
use con ressiona son
y or ed
chie f retame
coming late in the game, de-
serve serious consideration.
At least they could form the
framework for a compromise
on Freedom of Information
that would be palatable both to
Congress and the White
House.
F_or that he veto the FOI TL~NFOORRTUN ..TEL Ford's
legislation- , assum- mere roe too late "Ford's
i,ng Congress and not the ?Nixon holdovers inthe admin-
administration was being ?Fub- istration have andhaiiRUe
rn,inaIly3i tat tustTast new President's ple new
ee ppenness in Qoygrn. nt. nd
I the process. owever, cQngresional Democrats. em=
or offered several-newt sug bol&nCdjy their assurance of
,estions to Congress which he r-v_--~n next week's- n-
grgssional? leexiotas., p.mbably
avs, will make, it p e for udll be_n a mood to s ,4p at
-,him to sign a Freedom of ord for his harsh campaign
Information-measure.. Etp
.beks..-
wi h right of federal courts A ..V . ` ""` .- --
tnceYieWthe meritsglos- there still remains an exces-
__ontenty.o#.. _ i ed sive amount of anti-media zeal
in the uments if there. --no among the Nixonites in gov-.
doc
easonabTe basis f _r_Fe mg ernment, despite his own de-
-? sire that federal agencies
the information away from -the . make more, not less, informa-
&uhWQ. Another 'ord_propesal tion available to the public.
is that Conrress grant federal
a ci s,_15_more _days,,to,,~ro- It is yet one more liability
e the, governmenLitlfo na- Ford will have to live with
_.,: , . ,. ?. _ _ __ _ _____ __n._1
tall
hi
....
he ins
s
s own
n in
the Cabinet and around the
One Ford' roo,., ells
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THE WASHINGTON POST DATE Aff~ (
PAGE
ord Staff Preparing
New Information
Bill
measure vetoed last Uwe ti is In a veto message
s last
Thursday, Mr. Ford s
being revised by White H
id
a
ouse
he
aides to overcome President would "submit shortly lan-
IFord's obiecti
rn
o
s guaghih
,e wc would dispel my
The new draft of the bill, in concerns regarding the man-
tended to broaden public ac- ner of Judicial review of classi-
cess to government do
cu? materild
bea an ments, Probably will be sent i.ng the administrative burden
to Capitol Hill within a few placed on the , espe
days after receivin
g Mr dallyr
. ou law enforcement
(Ford's approval, aides said
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S 17 CONGRESSIONAL RECORD -SENATE
port). Referred to the- Committee on Gov-
ernment Operations.
PROPOSED LEGISLATION BY THE DEPARTMENT OF
THE INTERIOR
A letter from th Acting Assistant Secre-
tary of the Interior transmitting a draft of
proposed legislation to provide for the es-
tablishment of the Father Marquette Na-
tional Memorial in St. Ignace, Mich., and for
other purposes (with accompanying papers).
Referred to the Committee on Interior and
Insular Affairs.
REPORT OF THE FEDERAL ENERGY
ADMINISTRATION
A letter from the Administrator of the
Federal Energy Administration transmitting,
pursuant to law, a report of hydroelectric
generating facilities (with an accompanying
report). Referred to the Committee on Gov-
ernment Operations.
ORDERS OF THE IMMIGRATION AND NATURALIZA-
- TION SERVICE
A letter from- the Commissioner of the Im-
migration and Naturalization Service trans-
mitting, pursuant to law, copies of orders
entered in cases in which the authority of
the Service was exercised in behalf of such
aliens (with accompanying papers). Referred
to the Committee on the Judiciary.
MODIFICATIONS OF PROPOSED FAMILY CaNTEr-
BurrOw SCSIEDULES
A letter from the Commissioner of Ed
-
ucation reporting, pursuant to laW
posed modifications of the famil " contribu-
tion schedules for the basic edu tional op-
portunity grant program for t e 1975-76
academic year. Referred to the ommittee
A letter from the Secretary of t1i Interior
transmitting, pursuant to law, annual
report for the calendar year 1973 the ad-
ministration of the Federal Metal d Non-
metallic Mine Safety Act (with n ac-
panying report). Referred _ to t Com-
PROPOSED LEASE ACQUISTTION OF ACE
A letter from the Administrato of the
General Services Administration nsmit-
ting, pursuant to law, a prospect which
proposes lease acquisition of spa to be
occupied by the Federal Energy Ad nistra-
tion in Washington, D.C. (with ac pany-
ing papers). Referred to the Co tee on
REPORT OF THE VETERANS' ADMININRATION
A letter from the Acting Admistrator
of the Veterans' Administration t3'aansmit-
ting, pursuant to law, a report or. the ac-
tivities of the Veterans' Administration for
the fiscal year 1974 for the programs of ex-
change of medical information and sharing
of medical resources (with an accompanying
report). Referred to the Committee on Vet-
erans Affairs.
REPORTS OF COMMITTEES
The following reports of committees
were submitted:
By Mr. EASTLAND, from the Committee
on the Judiciary, without amendment:
S. 1634. A bill for the relief of Doctor
Lawrence Chin Bong Chan (Rept. No. 93-
1196).
H.R. 8477. A bill for the relief of Lucille de
Saint Andre (Rept, No. 93-1197).
By Mr. EASTLAND, from the Committee
on the Judiciary, with an amendment:
S. 3397. A bill for the relief of Jose Ismar-
nardo Reyes-Morelos (Rept. No. 93-1198).
H.R. 14597. A bill to increase the limit on
dues for United States membership in the
International Criminal Police Organization
(Rept. No. 93-1199).
By Mr. EASTLAND, from the Committee
on the Judiciary, without amendment:
S. Res. 203. A resolution refer the bill (S.
2698) for the relief of John J. Egan to the
Chief Commissioner of the. Court of Claims
(Rept. No. 93-1201).
H.R. 3532. An act for the relief of Donald
L. Tyndall, Bruce Edward Tyndall, Kimberly
Fay Tyndall, and Lisa Michele Tyndall (Rept.
No. 93-1202).
H.R. 6202. An act for the relief of Thomas
C. Johnson-(Rapt. No. 93-1203).
H.R. 7135. An act to amend the Military
Personnel and Civilian Employees' Claims
Act of 1964, as amended, with respect to the
settlement of claims against the United
States by members of the uniformed services
and civilian officers and employees for dam-
age to, or loss of, personal property incident
to their service (Rept. No. 93-1204).
By Mr. EASTLAND, from the Committee
on the Judiciary, with an amendment:
S. 3718. A bill for the relief of Leah Mau-
reen Anderson (Rcpt. No. 93-1205).
By Mr. NELSON, from the Committee on
Labor and Public Welfare, with an amend-
ment :
H.R. 13042. An act to amend the Farm La-
bor Contractor Registration Act of 1963 by
extending its coverage and effectuating its
enforcement (Kept. No. 93-1206).
By Mr. HASKELL, from the Committee on
Interior and Insular Affairs, with amend-
ments: -.0001
illto amend the Lower Saint
Croix River Act of 1972 (Rept. No. 93-1207).
FREEDOM OF INFORMATION ACT
AMENDMENTS-CONFERENCE RE-
PORT (KEPT. NO. 93-1200)
Mr. KENNEDY. Mr. President, I am
pleased to send to the desk the confer-
ence report on the Freedom of Informa-
tion Act Amendments-Report No. 98-
1380, on H.R. 12471. The House and Sen-
ate conferees met on four occasions last
month to discuss and debate a number
of the provisions of this significant legis-
lation, and I firmly believe that our final
product strikes the proper balance be-
tween the rights of the public to' know
what their Government is doing and the
needs of the executive branch and inde-
pendent agencies to keep certain infor-
mation confidential. The legislation will
promote both faster and freer public
access by the public to Government files
and records.
During our conference on this bill, I
received a letter from President Ford
voicing his concern over portions of our
proposed amendments. He identified five
specific problems, and at the next con-
ference session the conferees discussed
each problem and adopted language-
either for the bill or for the statement
of managers-designed to respond to
those concerns. Last week I replied to
the President's letter, along with House
Conference Chairman WILLIAM MooR-
HEAD, observing that our legislation
"would provide support for your own
policy of 'open government' which is so
desperately needed to restore the public's
confidence in our National Government."
I ask unanimous consent that President
Ford's letter and our reply be printed in
the RECORD at the end of my remarks.
The PRESIDING OFFICER. Without
objection, it is so ordered.
(See exhibit 1.)
Mr. KENNEDY. I believe it is signifi-
cant to note that the conferees ap-
October 1, 1974
proached this legislative effort in a bi-
partisan spirit. We attempted to accom-
modate at each turn the needs of the
Government agencies affected by our
bill. I was pleased that each major issue
requiring a final rollcall vote on the part
of the Senate conferees was resolved by
a unanimous vote. The participation of
our ranking minority member, Senator
HxusxA,. in the conference was most con-
structive, and his contributions extremely
helpful. It is because of the active give
and take of the conferees on both sides,
with continued advice from the executive
branch, that we achieved a final product
that I believe can and should be enacted
without delay.
I hope that our failure to get our
senior minority members to sign the
conference report does not reflect a deci-
sion on the part of the White House to
veto this significant legislation. Open-
ness is supposed to be the watchword of
the present administration. So far, how-
ever, it has been more of a slogan than a
practice. A veto of this bill would reflect
a hostility to just the kind of Govern-
ment openness and accountability which
the public must have to regain a full
measure of confidence in our National
Government.
The legislation approved by our con-
ference committee contains the follow-
ing major provisions:
Federal courts are empowered to re-
view the validity of agency classification
of documents and may examine those
documents in determining whether they
were properly classified.
Individual Government officials who
act arbitrarily or capriciously in with-
holding information from the public are
subjected to disciplinary procedures, to
be initiated by the Civil Service Com-
mission.
Investigatory files, which are exempt
from mandatory disclosure under pres-
ent law, are required to be disclosed un-
less their release will cause some spe-
cific harm enumerated in the bill.
Agencies are given definite time limits
to respond to requests for information:
10 days for an initial response, 20 days
to determine an appeal, with an addi-
tional 10 days in unusual circumstances.
A person who must sue to obtain ac-
cess to information may recover attor-
neys' fees if he prevails in court.
The Freedom of Information Act,
passed by Congress in 1966, guaranteed
the public judicially enforceable access
to Government information, subject to
specific exceptions defined in the law.
Hearings before my Subcommittee oil
Administrative Practice and Procedure
last year brought out numerous abuses
by Government agencies In administer-
ing the act, and in October 1973 I intro-
duced a bill to strengthen the Freedom
of Information Act, which has In large
part been incorporated into the final
conference report filed today.
Our present legislative effort finds sup-
port from many quarters. Representa-
tives of the media have strongly ad-
vocated adoption of these amendments.
The American Bar Association has re-
solved that Congress move forward with
the kinds of reforms contained in ow
legislation. The American Civil Liberties
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October 1, 1974
MESSAGES FROM THE PRESIDENT
Messages from the President of the
United States were communicated to the
Senate by Mr. Marks, one of his secre-
taries.
APPROVAL OF BILL AND JOINT RESOLUTION
A message from the President of the
United States stated that on October 1,
1974, he had approved and signed the fol-
lowing bill and joint resolution:
S. 3270. An act to amend the Defense
Production Act of 1950 and to establish a
National Commission on Supplies and Short-
ages. -
S.J. Res. 244. A joint resolution to ex-
tend the termination date of the Export-
Import Bank.
REPORT OF THE ECONOMIC STABI-
LIZATION PROGRAM-MESSAGE
FROM THE PRESIDENT
The ACTING PRESIDENT pro teni-
pore (Mr. HUGHES) laid before the Sen-
ate a message from the President of the
United States transmitting the final
quarterly report of the economic stabili-
zation program covering the first 3
months of 1974, and the month of April
1974, which, with the accompanying re-
port, was referred to the Committee on
Banking, Housing and Urban Affairs.
The message is as follows:
To the Congress of the United States:
In accordance with section 216 of the
Economic Stabilization Act of 1970, as
amended, I am hereby transmitting to
the Congress the final quarterly report of
the Economic Stabilization Program.
This report covers the first three months
of 1974 as well as the month of April,
1974-the last month before legislative
authority for the program expired.
When the Economic Stabilization Pro-
gram was begun in 1971, President Nixon
emphasized his hope that it would be
temporary. This objective has now been
met, as all mandatory wage and price
controls have been lifted, except for those
on petroleum which have been mandated
separately by the Congress.
Looking back I believe this program
gave all Americans a better appreciation
of how powerful the forces of Inflation
are in our economy and how difficult it is
to harness them. It also gave us convinc-
ing proof that wage and price controls
are not the right way to solve the long-
range problems of our economy. In retro-
spect this may have been the program's
greatest lasting value.
GERALD R. FORD.
THE WHITE HOUSE, October 1, 1974.
At 1:02 p.m., a message fro e
House of Representatives by Mr. ck-
ney, one of Its reading. clerks, a d
that the Speaker has affixed signa-
ture to the following enroll ills:
H.R. 15301. An act to ame the Rail-
road Retirement Act of 1 to revise
the retirement system fo mployees of
employers covered they der, and for
H.R. 15323. An at to amend the
Atomic Energy Act of-954, as amended,
to :revise the method of providing for
public remuneration In the event of a
nuclear Incident, and for other purposes.
CONGRESSIONAL RECORD - SENATE 47827
The enrolled bills were subsequently
signed by the President pro tempore.
At 3:20 p.m., a message from the
House of Representatives by Mr. Berry,
one of its reading clerks, announced that
the House has passed without amend-
ment the following Senate hills and joint
resolution:
S. 1276. An act for the relief of Joe
H. Morgan;
S. 2337. An act for the relief of Dulce
Filar Castin (Castin-Casas) ;
S. 2382. An act for the relief of Carl-
dad R, Balonan; and
S.J. Res. 192. A joint resolution to
grant the status of permanent residence
to Ivy May Glockner, formerly Ivy May
Richmond nee Pond.
The message also announced that the
House insists upon its amendments to
the amendments of the Senate to the
bill (H.R. 12628) to amend title 38,
United States Code, to increase the rates
of vocational rehabilitation, educational
assistance, and special trairdng allow-
ances paid to eligible veteran:; and other
persons; to make improvements in the
educational assistance programs; and for
d
ing votes of the two Houses the/-
that Mr. DORN, Mr. TEAGUE, M,
Mr. DULSKI, Mr. HELSTOSKI, -
MERSCHMIDT, Mrs. HECKLER Ochusetts, Mr. ZWACH, and M,
were appointed managers of -
ference an the part of the
e.
Petitions were laid
By the AC
ed:
PRESID:SNT pro
UGHES) :
by the Cit:r Council
COMM CATIONS FROM EXECU-
ING PRESIDENT pro tem-
freldras DEPARTMENTS, ETC.
pHUGHES) laid before the Sen-
allowing letters, whi ch were
r indicated:
REPORT OF THE SECRETARY OF DEFENSE
confidential report listing contracts pursu-
ant to section 139 of title 10, United States
Code (with an accompanying report). Re-
ferred to the Committee on Armed Services.
MILTTARY PROCUREMENT ACTIONS FOR ExPERI-
MENTAL, DEVELOPMENTAL, TEST, OB RE-
SEARCH WORK, JANUARY THROUGH JUNE
1974
A letter from the Acting Assistant Secre-
tary of Defense (Installations and Logistics),
transmitting, pursuant to law, listings of
Department of Defense contracts negotiated
during January-June 1974 (with accom-
panying documents). Referred to the Com-
mittee on Armed Services.
PROPOSED LEGISLATION To AUTHORIZE DIS-
POSAL Or TIN, LEAD, AND SILVER FROM THE
NATIONAL AND SUPPLEMENTAL STOCKPILES
A letter from the Administrator, General
Services Administration, transmitting drafts
of proposed legislation that will authorize
disposal of tin, lead, and silver from the
national and supplemental stockpiles (wi.th
accompanying papers). Referred to the
Committee on Armed Services.
DEPARTMENT OF DEFENSE PROCUREMENT FROM
SMALL AND OTHER BUSINESS FIRMS, JULY
A letter from the Acting ssistant Searc-
tary of Defense (Installatlo s and Logistics),
transmitting, pursuant law,' s report of
Department of Defense ocurement from
Small and Other Bus P Firms for July
1973-June 1974 (with accompanying re-
port). Referred to th Committee on Bank-
ing, Housing and Ur n Affairs.
LOAN, GUARANTEE - D INSURANCE TRANSAC-
TIONS SUPPORTE BY ExIMBANK TO YUGO-
SLAVIA, ROMAN , THE UNION OF SOVIET
SOCIALIST RE CS, AND POLAND DURING
JULY 1974
A letter fr the President and Chairman,
Export-Im t Bank of the United States,
reporting, rsuant to law, on loan, guaran-
tee and urance transactions supported by
Eximb to Yugoslavia, Romania, the Union
of oy Socialist Republics, and Poland dur-
inJ 1974. Referred to the Committee on
Ba Sg Housing and Urban Affairs.
LEVENTH ANNUAL REPORT OF COMSAT
letter from the President, Communica-
s Satellite Corporation, transmitting,
of the operations, activities and accomplish-
ments of the Communications Satellite Cor-
poration (COMSAT) (with an accompanying
report). Referred to the Committee on
Commerce.
PUBLICATION OF THE FEDERAL POWER
COMMISSION
A letter from the Chairman of the Federal
Power Commission transmitting for the in-
formation of the Senate a copy of the publi-
cation entitled "Environmental Research
Task Force Report" (with an accompanying
publication). Referred to the Committee on
Commerce.
REPORT OF THE NATIONAL RAILROAD PASSENGER
CORPORATION
A letter from the Vice President of the
National Railroad Passenger Corporation
transmitting, pursuant to law, a report on
the operation of the Corporation for the
month of August 1944 (with an accompany-
ing report). Referred to the Committee on
Commerce.
REPORT OF THE NATIONAL PROFESSIONAL
STANDARDS REVIEW COUNCIL
A letter from the Secretary of Health,
Education, and Welfare transmitting, pur-
suant to law, a report of the National Pro-
fessional Standards Review Council (with
an accompanying report). Referred to the
Committee on Finance.
PROPOSED LEGISLATION BY THE DEPARTMENT
OF STATE
A letter from the Assistant Secretary of
State transmitting a draft of proposed legis-
lation to authorize certain officers and em-
ployees of the Department of State and of
the Foreign Service- to carry firearms for the
purpose of protecting designated individuals
(with accompanying papers). Referred to the
Committee on Foreign Relations.
REPORT OF THE INTERNATIONAL DEVELOPMENT
AGENCY
A letter from the Assistant Administrator
of the Agency for International Development
transmitting, pursuant to law, the report of
the Agency for the fiscal year 1974 (with an
accompanying report). Referred to the Com-
mittee on Government Operations.
-Mua-KRD SR'I'IOSAIwdo3 al-TS so xuoaa-a
A letter from the Comptroller General of
the United States transmitting, pursuant to
law, a report entitled "Problems in Provid-
ing Education Overseas for Dependents of
U.S. Personnel" (with an accompanying re-
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O'c obeY 1~, 1974 CONGRESSIONAL RECORD- A
Union has advocated adoption of this bill best interests of Government nor the public vidual who is effectively precluded from exer-
and has found it consistent with privacy to this kind servedof personal tliabil tye fort the format ofn A ttbecausetof the substantial
rights which must also be protected. The performance of his official duties. Any poten- costs of litigation, I hope that the amend-
American Federation of Government tial harm to successful complainants is more ments will make it clear that corporate in-
Employees has determined that the appropriately rectified by the award of at- terests will not be subsidized in their at-
sanction provision is acceptable as fair torney fees to him. Furthermore, placing in tempts to increase their competitive posi-ini
Act. I also
bel and consistent with Civil Service safe- the judiciary tit rement of antiamlly tion by using
- the t me limits fors agency action are unnect
guards. And the American Political Sci- determine the ppropri
ence Association has indicated the spe- ployee's conduct and to initiate discipline is essarily restrictive in that they fail to rec-
cial interest of scholars in seeing this bill both unprecedented and unwise. Judgments ognize several valid examples of where pro-
concerning employee discipline must, in the viding flexibility in several specific instances
enacted.- interests of both fairness and effective per- wouldspe sit moreacerefully co sidered de-
These amendments to the Freedom of sonnel management, be made initially by cislon In Information Act, contained in our con- his supervisors and judicial involvement 'ing the principle of timely implementation
ference report, will help open the deci- should then follow in the traditional form of Athe Act.
gain, I appreciate your cooperation in af-
li and actions of Government to the of review.
between am hopeful
ve.
lighght t of public review and nd understanding. There are provisions in both bills which fording time and I
would place the burden of proof upon an staffs which have continued In the interim
tion Act them, the Freedom of Iri agency to satisfy a court that a document be successful.
tion Act will remain a toothless tiger, , and classified because it concerns military or will have stated publicly and I reiterate here
the executive branch will continue to be intelligence (including intelligence sources I p
'able to delay, resist, and obstruct public and methods) secrets and diplomatic rela- that I intend to go more than halfway to
access to Government information. With tions is, in fact, properly classified, follow- accommodate Congressional concerns. I have
them, the Freedom of Information Act ing an in camera inspection of the docu- followed that commitment in this letter, and
merit by the court. If the court is not con- I have attempted where I cannot agree with
becomes truly worthy of its name. vinced that the agency has adequately car- certain provisions to explain my reasons and
ExHIBIT 1 ried the burden; the document will be dis- to offer a constructive alternative. Your ac-
TIE WHITE HovsE, closed. I simply cannot accept a provision ceptance of my suggestions will enable us
Washington, D.C., August 20, 1947. that would risk exposure of our military or to move forward with this progressive effort
DEAR TED: I appreciate the time you have intelligence secrets and diplomatic relations to make Government still more responsive
given me to study the amendments to the because of a judicially perceived failure to to the People.
Freedom of Information Act (H.R. 12471) satisfy a burden of proof. My great respect Sincerely,
GERALD R. FORD.
presently before you, so that I could pro- for the courts does not prevent me from
vide you my personal views on this bill. observing that they do not ordinarily have FOREIGN OPERATIONS AND GOVERN-
I share your concerns for improving the the background and expertise to gauge the MENT INFORMATION SUBCOMMIT-
Freedom of Information Act and agree that ramifications that a release of a document TEE,
now, after eight years in existence, the may have upon our national security. The Washington, D.C., September 23, 1974.
time is ripe to reassess this profound and Constitution commits this responsibility and Hon. GERALD R. FORD,
worthwhile legislation. Certainly, no other authority to the President. President of the United States, The White
recent legislation more closely encompasses I understand that the purpose of this pro-- House, Washington, D.C.
my objectives for open Government than vision is to provide a means whereby im- '' DEAR MR. PRESIDENT: We were most pleased
the philosophy underlying the Freedom of properly classified information may be de- to receive your letter of August 20 and to
Information Act. tected and released to the public. This is an know of your personal interest in the amend-
Although many of the provisions that are objective I can support as long as the means ments to the Freedom of Information Act
now before you in Conference will be expen- selected do not jeopardize our national secu- being considered by the House-Senate con-
sive in their implementation, I believe that rity interests. I could accept a provision with ference committee. And we appreciate your
most would more effectively assure to the an, express presumption that the classifiea- recognition of the fundamental purposes of
public an open Executive branch. I have al- tion was proper and-with in camera judicial this milestone law and the importance you
ways felt that administrative burdens are review only after a review of the evidence attach to these amendments. They of course
not by themselves sufficient obstacles to pre- did not indicate that the matter had been would provide support for your own policy
vent progress in Government, and I will reasonably classified in the interests of our of "open government" which is so desperately
therefore not comment on those aspects of national security. Following this review, the needed to restore the public's confidence in
the bill. court could then disclose the document if our national government.
There are, however, more significant costs it finds the classification to have been When we received your letter, all of the
to Government that would be exacted by this arbitrary, capricious, or without a reason- members of the conference committee agreed
bill-not in dollar terms, but relating more able basis. It must also be clear that this to your request for additional time to study
fundamentally to the way Government, and -procedure does not usurp my Constitutional the amendments and have given serious con-
the Executive branch in particular, has and responsibilities as Commander-in-Chief. I sideration and careful deliberation to your
must function. In-evaluating the costs, I recognize that this provision is technically views on each of the major concerns you
must take care to avoid seriously impairing not before you in Conference, but the differ- raised. The staffs of the two committees of
the Government we all seek to make more ing provisions of the bills afford, i believe, jurisdiction have had several in-depth dis-
open. I am concerned with some of the pro- grounds to accommodate our mutual inter- cussions with the responsible officials of your
visions which are before you as well as ests and concerns. Administration. Individual Members have
some which I understand you may not have The Senate but not the House version also discussed these points with Justice De-
considered. I want to share my concerns amends the exemption concerning investiga- partment officials.
with you so that we may accommodate our tory files compiled for law enforcement pur- At our final conference session we were
reservations in achieving a common objet- poses. I am concerned with any provision able to reopen discussion on each of the
tive. which would reduce our ability to effectively major issues raised in your letter. We believe
A provision which appears in the Senate deal with crime. This amendment could that the ensuing conference actions on these
version of the bill but not in the House have that effect if the sources of informa- matters were responsive to your concerns
version requires a court, whenever its deci- tion or the information itself are disclosed.. and were designed to accommodate further
sion grants withheld documents to a com- These sources and the; information by which interests of the Executive branch.
plainant, to identify the employee respon- they may be identified must be protected in You expressed concern in your letter about
wisdom of court-
constitutiona
whether or the withholding and to o(a not to how ever, equally con imthe po ed pena tieslagai st Federal employees
sible
n)
whsona e the basis withholding was "without ( )
reasonable basis in law" " if the complainant cerned that an individual's right to privacy who withhold information "without a rea-by re
sona
This so rt is r eIf such a finding is made, the quiring would edispclosurea of yinfo m t on con- substantially ?modified by conference haacs
or to to tained the in an investigatory file about him At our last conference meeting, after ex-
without e t agency
suspe d th hat at uired employee to direct ect the
pay or to
take take disciplinary or corrective action against unless the invasion of individual privacy is tensive debate and consideration, a com-
him. Although I have doubts about the ap- clearly unwarranted. Although I intend to promise sponsored by Representative McClos-ess more
conf
- key
com
rees p gati n from of diverting the direction of take
rehensivelsmy on ernsdrwith encroa h- adoptedand This 1 ompromise leaves toe the Civil
titionato, cfrom the e disclosure of informa- p y y Service Commission the responsibility for
ion to career-affecting disciplinary hearing ng ments upon individual privacy, I believe now
about employee conduct. I am most con- is the time to preclude the Freedom of In- initiating proceedings
against a
cerned with the inhibiting effect upon the formation Act from disclosing information ate ernmrnmen official or but p onlyloyee after a written priva duties s that and t s potential conduct personal of ability that yout st it ke thecwordsIndividual
"cl arly s. I
finding by the court that there were "circum-
will ill have e upon en employees responsible for e for ranted" from this provision. stances surrounding the withholding (that)
the exercise of these judgments. Neither the Finally, While I sympathize With an indi- raise questions whether agency personnel
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CONGRESSIONAL RECORD SENATE Octcbe.A 1 ?4
acted arbitrarily or capriciously With respect ,national security intelligence investigation."
to the withholding." The actual disciplinary -The Federal agency may, in addition, with- INTRODUCTION JOINT BILLS AND
action recommended by the Commission, -bold the identification of the confidential JOINT RESOLUTIONS
after completion of its standard proceedings, . source in all law enforcement investiga- The following bills and joint resol.u.-
would actually be taken by the particular ?tions-civil as well as criminal. Lions were introduced, read the first time
agency involved in the case. To further respond to your' suggestion on , the
We feel that this is a reasonable coin- the withholding of information in law en- and, by unanimous as indicated- iSeCOnd
promise that basically satisfies your objet- forcement records involving personal rivac time, and referred as
tions t th
You expressed gfear thatttheaaame dments word "clearly" f olmeethe Senate-passed
afford inadequate protection to truly IM- language.
portant national defense and foreign policy - You expressed concern that the amend-
information subject to in camera inspection ments to the Freedom of Information Law
by Federal courts in freedom of information authorizing the Federal tour s to award at-
cases. We believe that these fears are un- torney fees and litigation costs' not be used
founded, but the conference has nonetheless to subsidize corporate interests who use the
agreed to include additional explanatory [an- law to enhance their own competitive
guage in the Statement of Managers making position.
clear our intentions on this Issue. The members of the conference committee
The legislative history of H.R. 12471 clearly completely share your concern in this con-
shows that the in camera authority conferred nection, and the Statement of Managers will
upon the Federal courts in these amend- reflect mutual view that any award of fees
ments is not mandatory, but permissive in and costs by the courts should not beauto-
cases where normal proceedings in freedom =matic but should be based on presently pre-
of information cases in the courts do not vailing judicial standards, such as the gen-
make a clear-cut case for agency, withhold- eral public benefit arising frim the release
ings of requested records. These proceedings of the information sought, as opposed to a
would include the present agency procedure more narrow commercial be::Iefit solely to
of submitting an affidavit to the court in the private litigant.
justification of the classification markings _ You also suggest that the time limits in
on requested documents in cases involving the amendments may be unnecessarily re-
552(b) (1) information. strictive. The conference adorted at its first
The amendments in H.R. 12471 do not re- meeting the Senate language allowing agen-
move this right of the agency, nor do they ties an additional ten days to respond to a
change in any way other mechanisms avail- request or determine an appeal in unusual
able to the court during its consideration of circumstances. Pursuant to your suggestion
the case. The court may still request addi- We included language from the Senate version
tional information or corroborative evidence making clear that a court cangive an agency
from the agency short of an in camera exam- additional time to review requested materials
ination of the documents in question. Even in exceptional circumstances where the
when the in camera review authority is exer- agency has exercised due diligence but still
cised by the court, it may call in the appro- could not meet the statutory deadlines.
priate a
they vials involnedrtoffi discus iss any In conclusion, Mr. President, we appreciate
of fur-
Dished by the agency in the case. your expression -of cooperation with the Con-
The conferees en
have vy agreed a include Ian- gress in our deliberations on the final version
guage in the Statement of Managers that of this important legislation. In keeping with
reiterates the discretionary nature of the in your willingness "to go more than halfway
camera authority provided to the Federal to accommodate Congressional concerns", we
have.given courts under the Freedom of Information areas of the bill your suggestions
renewed d co nsi d rat ove key
Act. We will also express our expectation that we feel, , t have likewise ren e than and,
n half-
"moors than half-
the courts give substantial weight to the way" e this late stage.
agency affidavit submitted in support of the w welcome your .
classification markings on any such docu- final deliberations ntions s and valuable input into rou
meats in dispute. and app preciate the fine
e
Thus, Mr. President, we feel that the con-
ference committee has made an effort to ex-
plain our intentions so as to respond to your
objections on this important area of the
amendments, operating as we must within
the scope of the conference authority be-
cause of the virtually Identical language in
both the House and Senate versions of H.R.
12471.
The conference committee has also acted
affirmatively to satisfy your major objections
to the proposed amendments to subsection
(b) (7) of. the Freedom of Information Act,
dealing with specific criteria for the withhold-
ing of Federal investigatory records in the law
enforcement area.
The conference committee had already
added an additional provision, not contained
in the Senate-passed bill, which would per-
mit withholding of information that would
"endanger the life or physical safety of law
enforcement personnel." This made it sub-
stantially identical to the language recom-
mended*by then Attorney General Richardson
during Senate hearings on the bill and en-
dorsed by the Administrative Law Section of
the American Bar Association.
After reviewing the points made in your
letter on this point, the conference commit-
tee also agreed to adopt language offered by
Senator Hruska to permit the withholding of
the information provided by a confidential
source to a criminal law enforcement author-
ity during the course of a criminal or `lawful
..-I iuelnoers and Oilieials of the
Executive branch. It is our hope that the
fruits of these joint efforts will make it possi-
ble for the Senate and House to act promptly
On the conference version of R.R. :12471 so
that this valuable legislation will be enacted
and can be signed into law before the end
of the month. `,
With every good wish,
Sincerely,
EDWARD M. KENNEDY,
Chairman, Senate Conferees.
WILLAM S. MOORHEAD,
Chairman, House Conferees.
EXECUTIVE REPORTS OF
COMMITTEES
As in executive session, the folio
By Mr. HASKELL a,mitteee on
Commerce and Inerior and Insular Affairs:
Lynn Adams Greenwalt, of Maryland, to
bee, Director of the U.S.. Fish and Wildlife
Service,
:The above nomination was reported
with the recommendation that it be con-
firmed, subject to the nominee's commit-
nl It to respond to requests to appear
and testify before any duly constituted
committee of the Senate,)
By Mr. METCALF (for himself and Mr.
MANSFIELD) :
S. 4066. A bill to provide for the study
of certain lands to determine their suit-
ability for designation as wilderness in ac-?
cordance with the Wilderness Act of 1964,
and for other purposes. Referred to the Coin-
mittee on Interior and Insular Affairs.
By Mr. JAVITS:
S. 4067. A bill to establish a Capital Mar-
kets Advisory Committee. Referred to the
Committee on Banking, Housing and Urban
Affairs.
By Mr. CURTIS (for himself, Mr.
HRIISKA, Mr. FANNIN, Mr. BARTLETT,
and Mr. TowER):
S. 4068. A bill to amend the Food Starap
Act of 1964. Referred to the Committee on
Agriculture and Forestry,
By Mr. GRAVEL:
S. 4069. A bill to require that a preference
be afforded to local residents in employment
on certain Federal projects or federally as-
sisted or regulated projects in areas with
substantial unemployment, and for other
purposes. Referred to the Committee on
Labor and Public Welfare.
By Mr. STEVENS:
S. 4070. A bill to revise retirement benefits
for certain employees of the Bureau of Indian
Affairs and the Indian Health Service not en-
titled to Indian preference, provide greater
opportunity for advancement and employ-
ment of Indiana, and for other purposes.
Referred to the Committee on Interior and
Insular Affairs,
By Mr. McCLURE:
S. 4071. A bill to provide for the establish-
ment of the Hagerman Fossil Beds National
Monument in the State of Idaho, and for
other purposes. Referred . to the Committee
on Interior and Insular Affairs.
By Mr. STENNIS:
S. 4072. A bill to authorize the Secretary
of the Army to return the remains of 2d Lieu-
tenant John A. Ellard, Jr., from the Manila
American Cemetery, Republic of the Philip-
pines, to the United States. Referred to the
Committee on Armed Services.
CORRECTION OF THE RECORD
Mr. HANSEN. Mr. President, on Sep-
tember 30, 1974, I Introduced S. 4060. is
correct date appear in the p - Vt
record.- permanennt
STATEMENTS ON INTRODUCED
BILLS AND JOINT RESOLUTIONS
By MR. METCALF (for himself
and Mr. MANSFIELD) :
S. 4066. A bill to provide for the study
of certain lands to determine their suita-
bility for designation as wilderness in
accordance with the Wilderness Act of
1964, and for other purposes, Referred to
the Committee on Interior and Insular.
Affairs.
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October 1, 1974
CONGRESSIONAL RECORD -SENATE S 17971
intent of the original Congressional person-
nel restriction. The Committee believes that
by limiting the number of Americans in
Cambodia the degree of American involve-
ment in Cambodian affairs can be more ef-
fectively controlled and, thus limits can be
put on Cambodia's dependence upon the U.S.
Government. It is now evident that the Com-
mittee underestimated the energy and re-
sourcefulness of 200 Executive Branch rep-
resentatives in Phnom Penh.
While reducing the level of U.S. personnel
in Cambodia, particularly the military, the
Committee also adopted an amendment
offered by Senators Case, Symington, and
Humphrey, designed to encourage expansion
of private relief activities in Cambodia. At
present these are being carried out almost
exclusively by American voluntary nonprofit
organizations and by the International Com-
mittee of the Red Cross. The Committee has
been informed that these organizations are
willing to expand their operations In order
to meet the increasing humanitarian needs
of the Cambodian people. In order to do so,
however, the relief organizations need U.S.
funds to support their personnel since they
have now reached the limit of their own re-
sources. To date, AID has been unwilling to
provide personnel support funds to the relief
propriateness of the Embassy's decisio rto
give priority in Its personnel allocatio to
military personnel, who now account f 124
of the authorized total of 200, rathe 'than
to increasing the number working o relief
The new subsection (h) carries ver the
provision from subsection 655( which
states that the section shall ncjr be con-
strued as a commitment by a United
Subsection (b) of section 2 repeals sec-
tions 656 and 856 of the Fore n Assistance
Act since they will become ob lete upon the
$55,000,000 is allow
and $45,000,000 is
sistance, which is
f 1961 which will
specify the dis-
economic assistance
5. Under the ceiling,
Committee
Executive recom-
branch mends-
Estimate request tion,
fiscai fiscal fiscal
y
1974 1975
$13,000,000
velopment__________
22,400,000
9, 900, 000
3 Stabilization.........
.
17,500,000
17, 500, 000
. Technical support..
4
(6,300,000)
4, 600, 000
Total. ------- '___
55, 209, 000
The Conn tes, has not reduced the Lao
program i roportion to other Indochina
programs. aos alone among the Indochina
states ha eached a political settlement and
the Lao,;eople deserve encouragement and
assista9 in making their government work.
The abunt approved reflects the limit of
what jt ey can effectively absorb. It will not
be s cient, however, to sustain Vientiane
socik y in the manner to which it became
ac 6tomed in the days of the massive Amer-
presence. The reduction made in the
program came primarily out of "recon-
uction" where AID requested $11 million
build two dikes, neither of which required
any dollar inputs. The AID request for dollars
for this purpose appeared to be but an
effort to obtain additional free foreign ex-
change for Laos from the Congress.
United States policy in Laos Is designed
to facilitate the establishment of peace and
national reconciliation. To this end, United
States assistance must operate within the
terms of the agreements on a cease-fire and
a coalition government signed by the Laotian
parties in February and September, 1973.
Since that latter agreement establishes a
Provisional Government of National Union,
American aid should be channeled to the
extent possible through that government.
Also, insofar as Is possible, U.S. programs
for humanitarian assistance, recontruction,
and development should be available to all
areas of Laos and should be directed wherever
the need is greatest and the assistance
desired.
The new subsection (b) prohibits transfer
of economic assistance funds authorized for
Laos for use* as military assistance. Military
assistance funds may be transferred to and
used in the economic assistance categories
in accordance with the new section 809.
There shall be no transfers of funds between
the four economic assistance categories.
The new subsection (c) through (f) relate
to implementation of this ceiling for Laos,
and are identical to those explained in the
analysis of section 806.
The new subsection (g) states that the
new section shall not be construed as a com-
mitment by the United States to defend
Laos.
Section-27. Transfer of Funds
Section 27 adds a new section 809 to the
Foreign Assistance Act.
Subsection (a) prohibits use of the trans-
fer authority of section 610 of the Act to
add to, or take away from, the funds appro-
priated for assistance to South Vietnam,
Cambodia, or Laos.
r Newobligational authority and excess defense articles.
7 Military assistance service funded.
B Includes supply operations and excess defense articles.
Four categories of assistance authorize
and development; stabilization; and tech
nical support. For these categories the Com
mittee recommends the following:
military assistance for South Vietnam, Laos,
or Cambodia may be used for war relief,
reconstruction, or general economic develop-
ment purposes.
FREEDOM OF INFORMATION ACT
AMENDMENTS-CONFERENCE RE-
PORT
Mr. KENNEDY. Mr. President, I sub-
mit a report of the committee of con-
ference on H.R. 12471, and ask for its
immediate consideration.
The PRESIDING OFFICER. The re-
port will be. stated by title.
The assistant legislative clerk read as
follows:
The committee of conference on the dis-
agreeing votes of the two Houses on the
amendment of the Senate to the bill (H.R.
12471) to amend section 522 of the United
States Code, known as the Freedom of In-
formation Act, having met, after full and free
conference, have agreed to recommend and
do recommend to their respective Houses this
report, signed by a majority of the conferees.
The PRESIDING OFFICER. Is there
objection to the consideration of the con-
ference report?
There being no objection, the Senate
proceeded to consider the report.
(The conference report Is printed in
the House proceedings of the CONGRES-
SIONAL RECORD of September 25, 1974, at
page H9525.)
The PRESIDING OFFICER. The ques-
tion is on agreeing to the conference
report.
The report was agreed to.
Mr. HRUSKA. Mr. President, as a
conferee on this bill, I have seen several
significant changes made to the bill
which, in my view, makes it a more work-
able measure. However, I do not believe
that these corrections go far enough.
While we were in conference, the
President sent a letter to the conferees
pointing out his objections to the bill.
The provision that appears to concern
the executive branch the most is the sec-
tion of the bill that places the burden
of proof upon an agency to satisfy a court
that a document because it concerns
military or intelligence secrets and diplo-
matic relations is in fact properly classi-
fied. If the court is not convinced that
the agency has adequately carried the
burden, the document will be disclosed.
Yet, while this bill transfers the au-
thority to declassify documents from
the executive branch to the courts, it
provides no standards to goven the re-
view of the documents. The judge is
given the documents and then is cast
upon a sea without any lighthouses or
buoys to point out the shoals and rocks
to make his decision whether the docu-
ments are properly classified.
No standards are created to guide a
judge in reviewing the documents. He
can release the documents if, in his own
view, they are not properly classified,
even if the Secretary of State, the Secre-
tary of Defense, or any other agency
head certifies that the documents are
properly classified. This is a provision
that is not only distrustful in nature; it
is unreasonable.
President Ford, in his letter to the
conferees cited these concerns and said:
I simply cannot accept a provision that
would risk exposure of our military or in-
telligence secrets and diplomatic relations
because of a judicially perceived failure to
satisfy a burden of proof. My great respect
for the courts does not prevent me from
observing that they do not ordinarily have
the background and expertise to gauge the
ramifications that a release of a document
may have upon our national security. The
Constitution commits this responsibility and
authority to the President.
Despite these strong words and valid
concerns, the majority of the conferees
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817972
refused to change the provision vesting
a power in the courts to declassify docu-
ments classified by a Government
agency.
Mr. President, I realize that there are
some mistakes in judgment about clas-
sification and that there are some abuses
of the system. But there are administra-
tive procedures for dealing with these,
mistakes and abuses. If a citizen wants
access to a classified document, he may
request declassification under Executive
Order 11652. If his request for declassifi-
cation is refused, he may appeal to the
head of the agency. If his request is again
refused, he can appeal to the Interagency
Classification Review Committee-a
committee designed to correct erroneous
classifications and in general, be a
watchdog over the classification system.
This bill, however, ignores this admin-
istrative mechanism and vests in the
courtsthe power to declassify documents
and release them to all the world.
The President, in his letter to the con-
ferees, said that he could not accept a
provision that would risk exposure of our
national defense or foreign relations
secrets. I cannot accept such a provision
either.
Mr. President, I ask unanimous con-
sent that the text of President Ford's
August 20 letter be printed in the REcoan
at this point.
There being no objection, the letter
was ordered to be printed in the REcoan,
as follows:
THE WHITE I ous ,
Washington, Aug. 20,1974.
Senator Enwaxn KExrrmY,
U.S. Senate,
Washington, D.O.
DEAR Ten: I appreciate the time you have
given me to study the amendments to the
Freedom of Information Act (MR, 12471)
presently before you, so that I could provide
you my personal views on this bill.
I share your concerns for Improving the
Freedom of Information Act and agree that
now. after eight years in existence , the time
is ripe to reassess this profound and worth-
while legislation, Certainly, no other recent
legislation more closely encompasses my ob-
jectives for open Government than the
philosophy underlying the Freedom of Infor-
mation Act.
Although many of the provisions that are
now before you in Conference will-be expen-
sive in their implementation, I believe that
most would more effectively assure to the
public an open Executive branch. I have al-
ways felt that administrative burdens are
not by themselves sufficient obstacles to pre-
vent progress in Government, and I will
therefore not comment on those aspects of
the bill.
There are, however, more significant costs
to Government that would be exacted by
this bill-not in dollar terms, but relating
more fundamentally to the way Government,
and the Executive branch in particular, has
and must function. In evaluating the costs,
I must take care to avoid seriously impairing
the Government we all seek to make more
open. I am concerned with some of the pro-
visions which are before you as well as some
which I understand you may not have con-
sidered. I want to share my concerns with
you so that we may accommodate our reser-
vations in achieving a common object(ve.
A provision which appears in the Senate
version. of the bill but not in- the House ver-
sion requires a court, whenever Its decision
grants withheld documents to a complain-
ant, to identify the employee responsible for
the withholding and to determine whether
CONGRESSIONAL RECORD- SENATE October 1, 197),
the withholding was "wi?;hout (a) reason-
able basis in law" If the complainant so re-
quests. If such a finding is made, the court
is required to direct the agency to suspend
that employee without pay or to take dis-
ciplinary or corrective action against him.
Although I have doubts about the appro-
priateness of diverting- the direction of liti-
gation from the disclosure of information
to career-affecting disciplinary hearings
about employee conduct, I am most con-
cerned with the inhibiting effect upon the
vigorous and effeptive conduct of official
duties that this potential personal liability
will have upon employees responsible for the
exercise of these judgments. Neither the best
interests of Government nor the public
would be served by subjeclIng an employee
to this kind of personal liability for the
performance of his official duties.
Any potential harm to successful com-
plainants is more appropriately rectified by
the award of attorney fees to him. Further-
more, placing in the judiciary the require-
ment to initially determine the appropriate-
ness of an employee's conduct and to initiate
discipline is both unprecedented and unwise.
Judgments concerning employee discipline
must, in the interests of b th fairness and
effective personnel management, be made
initially by his supervisors and judicial in-
volvement should then follow in the tradi-
tional form of review.
There are provisions in both bills which
would place the burden of proof upon an
agency to satisfy a court that a document
classified because it'concerm military or in-
telligence (including Intelligence sources
and methods) secrets and diplomatic rela-
tions is, in fact, properly classified, following
an In camera inspection of the document by
the court,
If the court Is not convinced that the
agency has adequately carried the burden,
the document will be disclosed. I simply can-
not accept a provision that - would risk ex-
posure of our military or intelligence secrets
and diplomatic relations because of a judi-
cially perceived failure to satisfy a burden
of proof,
My great respect for the courts does not
prevent me from observing that they do not
ordinarily have the background and exper-
tise to gauge the ramificationsi that a release
of a document may have upo:l our national
security.
The Constitution commits this responsi-
bility and authority to the President. I un-
derstand that the purpose of this provision
is to provide a means wherelyy improperly
classified information may be detected and
released to the public. This is an objective
I can support as long as the means selected
do not jeopardize our national security in-
terests. I could accept a provision with an
express presumption that the classification
was proper and with in camera judicial re-
view only after a review of the evidence did
not indicate that the matter lad been rea-
sonably classified in the interests of our
national security.
Following this review, the court could then
disclose the document if it finds the classi-
fioation to have been arbitrarr, capricious,
or without a reasonable basis. It must also be
clear that this procedure does not usurp my
Constitutional responsibilities as Command-
er,.in-Chief. I recognize that this provision
is technically not before you in Conference,
but the differing provisions of the bills afford,
I believe, grounds to accommodate our mu-
tual interests and concerns.
The Senate but not the House version
amends the exemption concerning inveeti-
gaeory files compiled for law enforcement
purposes. I am concerned with any provision
which would reduce our ability to effectively
deli with crime. This amendmenr? could have
that effect if the sources of intlyrmation or
the information itself are disclosed, These
sources and the information by which they
may be identified must be protected in order
not to severely hamper our efforts to combat
crime. -
I am, however, equally concerned that an
individual's right to privacy would not be
appropriately protected by requiring the dis-
closure of information contained in an in-
vestigatory file about him unless the invasion
of individual privacy is clearly unwarranted.
Although I intend to take action shortly to
address more comprehensively my concerns
with encroachments upon individual privacy,
I believe now is the time to preclude the
Freedom of Information Act from disclos-
ing information harmful to the privacy of
individuals. I urge that you strike the words
"clearly unwarranted" from this provision.
Finally, while I sympathize with an in-
dividual who is effectively precluded from
exercising his right under the Freedom of
Information Act because of the substantial
costs of litigation, I hope that the amend-
ments will make it clear that corporate inter-
ests will not be subsidized in their attempts
to increase their competitive position by
using this Act. I also believe that the time
limits for agency action are unnecessarily
restrictive in that they fail to recognize sev-
eral valid examples of where providing
flexibility in several specific instances wculd
permit more carefully considered decisions
in special cases without compromising the
principle of timely Implementation of the
Act.
Again, I appreciate your cooperation in
affording me this time and I am hopeful
that the negotiations between our respective
staffs which have continued in the interim
will be successful.
I have stated publiclyand I reiterate here.
that I intend to go more than halfway to
accommodate Congressional concerns. I have
followed that commitment in this letter,
_and I have attempted where I cannot agree
with certain provisions to explain my reasons
and to offer a constructive alternative. Your
acceptance of my suggestions will enable us
to move forward with this progressive effort
to make Government still more responsive to
the People.
Sincerely,
Mr. TOWER. Mr. President, I ask
unanimous consent that the Senate re-
consider the vote by which S. 3817, a
bill to amend the National Bank Act, the
Federal Deposit Insurance Act, the Na-
tional Housing Act, the Small Business
Investment Act, and for other purposes
was passed.
Inadvertently when the bill was
passed, the last page was left off and this
bill passed without opposition. It has
been agreed to. It does affect Interest;
rates in three states, Montana, Tenne-
see and Arkansas, so it is not contro-
versial.
Mr. HUMPHREY. Was this matter
cleared with the majority?
Mr. TOWER. This was cleared with
the distinguished Senator from Montana
who has a personal interest In the matter.
Mr. HUMPHREY. I know he has a very
important public interest In that matter.
Mr. TOWER. It has been cleared with
the committee.
Mr. ROBERT C. BYRD. Would the
Senator include in his unanilous-con-
sent request that the bill be returned to
second reading, the amendment adopted,
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06o ,er 7, 1974
Under present law-16 United States
Code 715s-ail revenues received by the
Secretary of the Interior from the sale or
other disposition of animals, timber, hay,
grass, or other products of the soil, min-
erals shells, sand, or gravel, from other
privileges, or from leases from public ac-
commodations or facilities incidental to,
but not in conflict with, the basic pur-
poses for which those areas of the Na-
tional Wildlife System were established
are required to be covered into a separate
fund in the U.S. Treasury. At the end of
each fiscal year, the Secretary is re-
quired to pay out of the net receipts in
the fund-which funds are to be ex-
pended solely for the benefit of public
schools and roads-as follows: First, to
each county in which reserved public
lands are situated, an amount equal to 25
percent of the net receipts from such
reserved public lands in that particular
area; and second, to each county in
which lands are situated which have been
acquired in fee, either three-fourths of 1
.percent of the cost of the area, or 25 per-
cent of the net receipts from such area,
whichever is greater. An moneys remain-
ing in the fund after payments to the
counties are used by the Secretary for
management of areas within the System
and for enforcement of the Migratory
Bird Treaty Act.
The Senate amended H.R. 11541 to
provide that any excess receipts-after
payment to counties-would be ear-
marked for the Migratory Bird Conser-
vation Fund for land acquisition, the
lined for purposes other tha for which
they were intended. In the ture, the
Secretary would be requir to obtain
funds with which to manag the areas
within the System and enfo the Mi-
gratory Bird Treaty Act thr h regu-
In fact, it was brought out Interior
witnesses at my subcommitt hearings
on the predecessor legislation t t by fis-
cal year 1977 revenue shari to the
counties will gradually increas because
of the requirement under prese law of
adjusting the cost of acquiri lands
within the System at 5-year in als-
and the Department will have to sort to
the appropriation process for su funds
during fiscal year 1977. It is ant pated
that after fiscal year 1976 there 11 be
no excess receipts, which c ntly
amount to approximately $1 mill per
Mr. Speaker, I would like to a it
clear-and this is consistent wi the
language In the Senate report-t t in
transferring these excess receipts the
Migratory Bird Conservation Fun this
action in no way negates or lesse the
responsibility of the Department the
Interior to come forward and tain
through the regular appropriation roc-
ess the funds that would be necess : for
it to carry out its functions and respon-
sibilities to enforce the Migratory Bird
Treaty Act and to manage the National
Wildlife Refuge System.
Mr. Speaker, I do not want the Mem-
bers to think that I am advocating an
increase in the sale and utilization of the
various resources within the System as a
way of obtaining additional revenues for
this fund, but we have to find some per-
manent source-other than appropria-
tions-for acquiring wildlife habitat in
the future. The main source for such ac-
quisitions at the present and, as a matter
of fact, in the foreseeable future is from
duck stamp sales which are running
about $12 million per year. After fiscal
year 1976, when three-fourths of such
receipts will be used to pay off the loan
under the Wetlands Accelerated Acquisi-
tion Act-which amounts to approxi-
mately $85 million at this time-there
will only be about $3 to $4 million re-
maining to be used for acquisition pur-
poses.
Mr. Speaker, in view of the present
energy crisis and the demands being
made upon these Federal areas, one of
these days mineral receipts from refuges
may run into the millions annually, and
this would appear to be a good time to
earmark this possible source of revenue
for land acquisition. I congratulate the
Senate for adding this provision to the
bill.
Mr. Speaker, I think this is a good
piece of legislation and one that is
greatly needed. The House considered
this legislation earlier in the year at
which time it passed by Voice Vote under
Suspension of the Rules. I ask the House
once again to declare its support for this
measure.
The SPEAKER. Is there objection to
the request of the gentleman from Mich-
igan?
A motion to reconsider was laid on
the table.
FREEDOM OF INFORMATION ACT
AMENDMENTS
Mr. MOORHEAD of Pennsylvania. Mr.
Speaker, I call up the conference report
on the bill (H.R. 12471) to amend section
552 of title 5, United States Code, known
as the Freedom of Information Act, and
ask unanimous consent that the state-
ment of the managers be read in lieu of
the report.
The Clerk read the title of the bill.
The SPEAKER. Is there objection to
the request of the gentleman from Penn-
sylvania?
There was no objection.
The Clerk read the statement.
(For conference report and statement,
see proceedings of the House of Septem-
ber 25,1974.
Mr. MOORHEAD of Pennsylvania. Mr.
Speaker, since the text of the conference
report has been printed with the amend-
ment and also printed in the CoNcaEs-
SIONAL RECORD of Wednesday, Septem-
ber 25, 1974, I ask unanimous consent
that the statement of the managers be
considered as read.
The SPEAKER. Is there objection to
the request of the gentleman from Penn-
sylvania?
There was no objection.
Mr. MOORHEAD of Pennsylvania. Mr.
Speaker, I yield myself such time as I
may consume.
(Mr. MOORHEAD of Pennsylvania
asked and was given permission to revise
and extend his remarks and include ex-
traneous matter.)
Mr. MOORHEAD of Pennsylvania.
Mr. Speaker, on March 14 of this year
this important bill to make a number
of needed procedural and substantive
amendments to the Freedom of Infor-
mation Act of 1966 was considered by the
House and passed by the overwhelming
vote of 383 to 8. A Senate version of the
bill was considered by that body and
passed on May 30 by a vote of 64 to 17.
The Senate bill contained several amend-
ments not previously considered by the
House, two of which were of consider-
able significance. One dealt with the
imposition of administrative sanctions
against Government officials or employ-
ees for the improper withholding of in-
formation under the law and the second
amendment tightens loopholes in the ex-
emption dealing with law enforcement
records. There were also a number of
Important differences in language be-
tween the two bills on amendments con-
tained in both the House and Senate
versions.
The conference committee met on four
separate occasions to resolve differences
between the House and Senate bills,
reaching final agreement on August 21,
except for minor technical changes in
language that were resolved after the
Labor Day congressional recess. Mr.
Speaker, I will now indicate the major
changes- in the House bill that have re-
sulted from the conference:
First, the conference version directs
each Federal agency to issue regulations
covering the direct costs of searching
for and duplicating records requested
under the Freedom of Information Act.
It also provides that an agency may waive
the fees if it determines that it would
be in the public interest.
Second, the Senate bill contained a
provision authorizing Federal courts---in
Freedom of Information Act cases-to
impose a sanction of up to 60-days sus-
pension from employment against a Fed-
eral official or employee which the court
found to have been responsible for with-
holding the requested records without
"reasonable basis in law." This amend-
ment, the most controversial part of the
conference committee's deliberations,
was opposed by many House conferees
on the grounds that it gave the court such
unusual disciplinary powers over Federal
employees. After extensive discussion
over 3 days of meetings, the conferees
reached a reasonable compromise --
if the court finds for the plaintiff and
against the Government and awards at-
torney fees and court costs, and if the
court makes a written finding that cir-
cumstances surrounding the withholding
raise questions whether the Federal
agency personnel acted "arbitrarily or
capriciously," the Civil Service Commis-
sion must initiate a proceeding to deter-
mine whether or not disciplinary action
is warranted against the responsible
Federal official or employee. The Civil
Service Commission would then investi-
gate the circumstances, may hold hear-
ings, and otherwise proceed in accord-
ance with regular civil service proce-
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H 10002 CONGRESSIONAL ]RECORD -HOUSE
dures. The employee has full rights of
due process and the right to appeal any
adverse finding by the Commission. If
the Commission's decision is against the
Federal official or employee, it would
submit its findings and disciplinary rec-
ommendations for suspension to the af-
fected agency, which would then impose
the suspension recommended by the
Commission.
Mr. Speaker, there has been some mis-
understanding about this sanction pro-
vision and I trust that this explanation
will help clarify our intent. I seriously
doubt that such procedures will actually
be invoked except In unusual circum-
stances. Its inclusion in the law will
make It crystal clear that Congress ex-
pects that this law be strictly adhered
to by all Federal agency personnel and
that withholding of Government records
be only when clearly authorized by
one of the nine exemptions contained
In the freedom of information law.
Mr. Speaker, at this point in the
RacoaD, I would like to include a letter
sent to all members of the conference
committee by Mr. John A. McCart, op-
erations director of the AFL-CIO Gov
ernment Employees Council in which his
organization-representing some 30
unions and 1.5 million Federal and postal
employees--endorses the -compromise
sanction provisions contained in this bill:
GOVERNMENT EMPLOYEES
CouxcIL-AFL-CIO,
Washington, D.C., September 10, 1974.
Hon. Wu.LUM MOORHEAD,
U.S. House of Representatives,
Washington, D.C.
DEAR CONGRESSMAN MOORHEAD! Because of
your membership on the conference commit-
tee on R.R. 12471 (Freedom of information
Act Amendments), we believe you will be
interested in the views of our organization
on the provision affecting Federal officers and
employes in connection with alleged viola-
tions. Thirty AFL-CIO unions representing
more than 1.5 million Federal and postal
workers comprise the Council.
Our concern with the original language
in the measure is that it permitted Federal
courts to impose administrative penalties on
employes where violations were confirmed
by the courts. This arrangement would de-
prive postal and Federal employes of due
process permitted under existing laws gov-
erning. disciplinary actions. Moreover, the
language could open lower level employes
to court unposed' discipline, even though
they were acting in keeping with instructions
froth higher level officials.
Section A 4(i) of the measure agreed to
by the conferees on August 21 is much less
onerous. In cases where Federal courts find
a violation exists and believe disciplinary ac-
tion maybe justified, the matter will be re-
ferred to the Civil Service Commission for
processing through the employing agency.
Under this procedure, we assume employes
Will be entitled to the appellate rights nor-
mally available, In current statutes appli-
cable to the Federal service.
The Council urges acceptance of the con-
ference agreement of August 21.
Respectfully yours,
JOHN A. McCAaT,
Operations Director.
TEXT OF M'CART LETTER
Finally, Mr. Speaker, another provision
of the Senate bill, not previously con-
sidered by the House but included in the
conference bill, is an amendment to sec-
tion552(b) (7), the exemption in the law
dealing with law enforcement records.
Under recent court decisions, the lan-
guage of the present law has been inter-
preted as almost a blanket exemption
against the disclosure of any "law en-
forcement files," even If they have long-
since lost any requirement for secrecy.
The bill- now contans modified lan-
guage of the amendment sponsored by
the Senator from Michigan, Mr. HART,
and adopted in that body by a vote of
51 to 33, which tighten, up the loopholes
of the seventh exemption by providing
six specific areas of criteria under which
agency withholding of information is
permitted. Certain of these criteria were
the subject of compror.nise language to
accommodate unusual requirements of
some agencies such as the Federal Bu-
reau of Investigation.
Mr. Speaker, before yielding to other
members of the committee, I would like
to refer briefly to communications be-
tween the conference co.nnilttee on this
legislation and President Ford. During
the meetings of the committee and only
a few days after his swearing In, Presi-
dent Ford requested a delay in our pro-
ceedings to give him an opportunity to
study the bill and agreements already
reached by the conferees. We unani-
mously agreed to this request. On August
20, President Ford sent ,s letter to the
conference committee setting forth his
views in four major areas--sanctions, the
in camera review language that was vir-
tually Identical in both House and Sen-
ate bills, the law enforcement exemption
amendment, and the pro~dsion for dis-
cretionary award by the courts of attor-
ney fees and court costs to successful
Freedom of Information Alt plaintiffs.
Mr. Speaker, the conferees seriously
considered each of the points made by
President Ford in his letter and have
gone "more than halfway" to accom-
modate his views. We modified the sanc-
tion provision of the bill. We included
language on the in camera, review part
of the conference report to clarify con-
gressional intent along the lines he sug-
gested. We modified two provisions of the
law enforcement exemption language to
meet points he raised. We had already
acted to clarify our intent that corpo-
rate interests not be subsidized by the
award of attorney fees and court coats in
freedom of information cases. The con-
ference committee made every effort to
cooperate with the President in our con-
sideration of this measure alid feel that
we have acted responsibly t) deal with
each of the questions he raised in his let- _
ter. I ask unanimous consent to insert in
the REcoxn at the point the text of Presi-
dent Ford's letter to me, dated August 20,
1974, and the text of the responsive let-
ter from Senator KENNEDY and myself,
dated September 23, 1974, which sets
forth conference action on each of the
major points he raised:
T'Ha WHITE Borax,
Washington, D.C., August 20,1974.
Ron. WILLmM S. MOORHxsD,
House of Representatives,
Washington, D.G.
DaAR BILL: I appreciate the time you have
given me to study the amendments to the
Freedom of Information Act (H.R. 12471)
October 7, ,1 974
presently before you, so that I could protlde
you my personal views on this bill.
I share your concerns for improving the
Freedom of Information Act and agree that
now, after eight years in existence, the time'
is ripe to reassess this profound and worth-?
while legislation. Certainly, no other recent
legislation more closely encompasses my ob-
jectives for open Government than the phi-
losophy underlying -the Freedom of Infor-
mation Act.
Although many of the provisions that
are now before you in Conference will be
expensive In their implementation, I believe
that most would more effectively assure to
the public an open Executive branch. I have
always felt that administrative burdens are
not by themselves sufficient obstacles to pre-
vent progress in Government, and i will
therefore not comment on those aspects of
the bill.
There are, however, more significant costs
to Government that would be exacted by this
bill-not in dollar terms, but relating more
fundamentally to the way Government,, and
the Executive branch In particular, has and
must function. In evaluating the costs,
must take care to avoid seriously impairing
the Government we all seek to make more
open. I am concerned with some of the pro-
visions which are before you as well as some
which I understand you may not have con-
sidered, I want to share my concerns with
you so that we may accommodate our reserva-
tions in achieving a common objective.
A provision which appears in the Senate
version of the bill but not in the House ver-
sion requires a court, Whenever its decision
grants withheld documents to a com-
plainant, to identify the employee respm-
sablefor the withholding and to determine
whether the withholding was "without [a)
reasonable basis In law" if the complainant
so requests. If such a finding is made, the
court is required to direct the agency to
suspend that employee without pay or to
take disciplinary or corrective action against
him.
Although I have doubts about the ap-
propriateness of diverting the direction of
litigation from the disclosure of information
to career-affecting disciplinary hearings
about employee conduct, I am most con-
cerned with the inhibiting effect upon the
vigorous and effective conduct of official
duties that this potential personal liability
will have upon employees responsible for the
exercise of these judgments. Neither the
'jest Interests of Government nor the public
would be served by subjecting an employee
to this kind of personal liability for the per-
formance of his official duties. Any potential
harm to successful complainants is more
appropriately rectified by.the award of at-
torney fees to him. Furthermore, placing In
the judiciary the requirement to Initially
determine the appropriateness of an em-4
ployee's conduct and to initiate discipline is
both unprecedented and unwise. Judgments
concerning employee discipline must, in the
Interests of both fairness and effective per-
sonnel management, be made initially by his
supervisors and judicial Involvement should
then follow in thetraditional form of review.
There are provisions in both bills which
would place the burden of proof upon an
agency to satisfy a court that a document
classified 'because it concerns military or
Intelligence (including Intelligence sources
and methods) secrets and diplomatic rela-
tions is, In fact, properly classified, follow-
ing an in camera inspection of the docu-
ment by the court. If the court is not con-
vinced that the agency has adequately car-
ried the burden, the document will be dis-
closed. I simply cannot accept a provision
that would risk exposure of our military or
intelligence secrets and diplomatic relations
because of a judicially perceived failure to
satisfy a burden of proof. My great respect
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October 7, 1974
for the courts does not prevent me from ob-
serving that they do not ordinarily have the
background and expertise to gauge the rami-
fications that a release of a document may
have upon our national security.
The Constitution commits.this responsi-
bility and authority to the President. I
understand that the purpose of this provi-
sion is to provide a means whereby im-
properly classified information may be de-
tected and released to the public. This is an
objective I can support as long as the means
selected do not jeopardize our national secu-
rity interests. I could accept a provision
with an express presumption that the clas-
sification was proper and with in camera
judicial review only after a review of the
evidence did not indicate that the matter
had been reasonably classified in the inter-
ests of our national security. Following this
review, the court could then disclose the
document if it finds the classification to
have been arbitrary, capricious, or without
a reasonable basis. It must also be clear
that this procedure does not usurp my Con-
stitutional responsibilities as Commander-
in-Chief. I recognize that this provision is
technically not before you In Conference,
but the differing provisions of the bills af-
ford, I believe, grounds to accommodate our
mutual interests and concerns.
The Senate but not the House version
amends the exemption concerning investi-
gatory files compiled for law enforcement
purposes. I am concerned with any provision
which would reduce our ability to effectively
deal with crime. This amendment could have
that effect if the sources of information or
the information itself are disclosed, These
sources and the information by which they
may be identified must be protected in order
not to severely hamper our efforts to combat
crime. I am, however, equally concerned that
an individual's right to privacy would not
be appropriately protected by requiring the
disclosure of information contained in an
investigatory file about him unless. the in-
vasion of individual privacy is clearly un-
warranted. Although I intend to take action
shortly to address more comprehensively my
concerns with encroachments upon individ-
ual privacy, I believe now is the time to
preclude the Freedom of Information Act
from disclosing information harmful to the
privacy of individuals, I urge that you strike
the words "clearly unwarranted" from this
provision.
Finally, while I sympathize with an indi-
vidual who is effectively precluded from ex-
ercising his right under the Freedom of In-
formation Act because of the substantial
costs of litigation. I hope that the amend-
ments will make it clear that corporate in-
terests will not be subsidized in their at-
tempts to increase their competitive position
by using this Act, I also believe that the
time limits for agency action are unneces-
sarily restrictive in that they fail to recog-
nize several valid examples of where pro-
viding flexibility in several specific instances
would permit more carefully considered de-
cisions In special cases without compromis-
ing the principle of timely implementation
of the Act.
Again, I appreciate your cooperation in
affording me this time and I am hopeful
that the negotiations between our respective
staffs which have continued in the interim
will be successful.
I have stated publicly and I reiterate here
that I intend to go more than halfway to
accommodate Congressional concerns. I have
followed that commitment in this letter, and
I have attempted where I cannot agree with
certain provisions to explain my reasons and
to offer a constructive alternative. Your
acceptance of my suggestions will enable us
to move forward with this progressive effort
to make Government still more responsive
to the People.
Sincerely,
GERALD It. FORD,
CONGRESSIONAL RECORD - HOUSE
WASHINGTOri, D.C.,
September 23, 1974.
Hon. GERALD It, FORD,
President of the United States, The White
House, Washington, D.C.
DEAR MR. PRESLDENT: We were most pleased
to receive your letter of August 20 and to
know of your personal interest in the amend-
metna to the Freedom of Information At
being considered by the House-Senate con-
ference committee. And we appreciate your
recognition of the fundamental purposes of
this milestone law and the importance you
attach to these amendments. They of course
would provide support for your own policy
of "Open government" which is so desperately
needed to restore the public's confidence In
our national government.
When we received your letter, all of the
members of the conference committee agreed
to your request for additional time to study
the amendments and have given serious con-
sideration and careful deliberations to your
views on each of the major concerns you
raised. The staffs of the two committees of
jurisdiction have had several in-depth dis-
cussions with the responsible officials of your
Administration. Individual . Members have
also discussed these points with Justice De-
partment officials.
At our final conference session we were able
to reopen discussion on each of the major
issues raised in your letter. We believe that
the ensuing conference actions on these mat-
ters were responsive to your concerns and
were designed to accommodate further in-
terests of the Executive Branch.
You expressed concern in your letter about
the constitutionality and wisdom of court-
imposed penalties against Federal employees
who withhold information "without a rea-
sonable basis in law," This provision has been
substantially modified by conference action.
At our last conference meeting, after ex-
tensive debate and consideration, a com-
promise sponsored by Representative Mc-
Closkey and modified by Senate conferees
was adopted. This compromise leaves to the
Civil Service Commission the responsibility
for Initiating disciplinary proceedings against
a government official or employee in appro-
priate circumstances-but only after a writ-
ten finding by the court that there were "cir-
cumstances surrounding the withholding
(that) raise questions whether agency per-
sonnel acted arbitrarily or capriciously with
respect to the withholding." The actual dis-
ciplinary action recommended by the Com-
mission, after completion of its standard
proceedings, would actually be taken by the
particular agency involved in the case,
We feel that this is a reasonable com-
promise that basically satisfies your objec-
tions to the original Senate language.
You expressed fear that the amendments
afford inadequate protection to truly im-
portant national defense and foreign policy
information subject to in camera inspection
by Federal courts in freedom of information
cases. We believe that these fears are un-
founded, but the conference has nonethe-
less agreed to include additional explana-
tory language in the Statement of Mana-
gers making clear our intentions on this
issue.
The legislative history of H,R. 12471 clear-
ly shows that the In camera authority con-
ferred upon the Federal courts in these
amendments is not mandatory, but permis-
sive in cases where normal proceedings in
freedom of information cases in the courts
do not make a clear-cut case for agency
withholdings of requested records. These
proceedings would include the present agency
procedure of submitting an affidavit to the
court in justification of the classification
markings on requested documents in cases
involving 552(b) (1) Information.
The amendments in H.R. 12471 do not re-
move this right of the agency, nor do they
change in any way other mechanisms avail-
H 10003
able to the court during its consideration
of the case. The court may still request addi-
tional information or corroborative evidence
from the agency short of an in camera ex-
amination of the documents in question.
Even when the in camera review authority
is exercised by the court, it may call in the
appropriate agency officials involved to dis-
cuss any portion of the information or affi-
davit furnished by the agency in the case.
The conferees have agreed to include lan-
guage in the Statement of Managers that
reiterates the discretionary nature of the in
camera authority provided to the Federal
courts under the Freedom of Information
Act. We will also express our expectation
that the courts give substantial weight to
the agency affidavit submitted In support of
th classification markings on any such doc-
uments in dispute.
Thus, Mr. President, to feel that the con-
ference committee has made an effort to ex-
plain our intentions so as to respond to your
objections on this important area of the
amendments, operating as we must within
the scope of the conference authority because
of the virtually identical language in both
the House and Senate versions on H.R. 12471.
The conference committee has also acted
affirmatively to satisfy your major objections
to the proposal amendment to subsection
(b) (7) of the Freedom of Information Act,
dealing with specific criteria for the with-
holding of Federal investigatory records in
the law enforcement area.
The conference committee had already
added an additional provision, not contained
in the Senate-passed bill, which would per-
mit withholding of information that would
"endanger the life or physical safety of
law enforcement personnel." This made it
substantially identical to the language rec-
ommended by then Attorney General Rich-
ardson during Senate hearings on the bill
and endorsed by the Administrative Law
Section of the American Bar Association,
After reviewing the points made in your
letter on this point, the conference commit-
tee also agreed to adopt language offered by
Senator Hruska to permit the withholding
of the information provided by a confidential
source to a criminal law enforcement au-
thority during the course of a criminal or
"lawful national security intelligence in-
vestigation." The Federal agency may, in
addition, withhold the identification of the
confidenttal source in all law enforcement
investigations--civil as well as criminal.
To further respond to your suggestion on
the withholding of information in law en-
forcement records involving personal privacy
the conference committee agreed to strike
the word "clearly" from the Senate-passed
language.
You expressed concern that the amend-
ments to the Freedom of Information Law
authorizing the Federal courts to award at-
torney fees and litigation costs not be used
to subsidize corporate interests who use the
law to enhance their own competitive posi-
tion.
The members of the conference commit-
tee completely share your concern in this
connection, and the Statement of Managers
will reflect mutual view that any award of
fees and costs by the courts should not be
automatic but should be based on presently
prevailing judicial standards, such as the
general public benefit arising from the re-
lease of the information sought, as opposed
to a more narrow commercial benefit solely
to the private litigant.
You also suggest that the time limits in
the amendments may be unnecessarily re-
strictive. The conference adopted at its first
meeting the Senate language allowing agen-
cies an additional ten days to respond to a
request or determine an appeal In unusual
circumstances. Pursuant to your suggestion
we included language from the Senate ver-
sion making clear that a court can give an
agency additional time to review requested
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H 10004 CONGRESSIONAL RECORD - HOUSE
materials In exceptional circumstances where
the agency has exercised due diligence but
still could not meet the statutory deadlines.
In conclusion, Mr. President, we appre-
ciate your expression of cooperation with the
Congress in our deliberations on the anal
version of this important legislation. In
keeping with your willingness "to go more
than halfway to accommodate Congressional
concerns", we have given your suggestions
in these five key areas of the bill renewed
consideration and, we feel, have likewise
gone "more than halfway" at this late stage.
We welcome your valuable input into our
final deliberations and appreciate the fine
cooperation and helpful suggestions made
by various staff members and officials of the
Executive branch. It is our hope that the
fruits of these joint efforts will make It pos-
sible for the Senate and House to act prompt-
ly on the conference version of R.R. 12471
so that this valuable legislation will be en.
acted and can be signed into law before the
end of the month.
With every good wish,
Sincerely,
EDWARD M. KENNEDY,
Chairman, Senate Confereees.
WILLIAM S. MOORHEAD,
Chairman, House Conferees.
Mr. Speaker, our committee has work-
ed for more than 3 years in investiga-
tions, studies, legislative hearings, and
careful drafting of this legislation to
strengthen and improve the operation
of the Freedom of Information Act. It
has been passed by overwhelming votes
In both the House and Senate. The con-
ferees have labored hard and long to re-
concile the differences between the two
versions of the bill and have arrived at
reasonable compromises on each of the
major issues in dispute. We have a good
bill. We have a fair and workable bill
that will plug major loopholes in the
present Freedom of Information Law.
In remarks soon after he took office,
President Ford pledged to the American
people an "Open Government." Enact-
ment of these amendments to the free-
dom of information law and their
prompt signing into law will be the im-
portant first step toward the achieve-
ment of this badly needed objective of
"open Government" and a restoration of
the faith of the American public in the
Institution of government-faith that
has been so seriously eroded over the last
several years.
In conclusion, Mr, Speaker, I would
like to call attention to the language of
the statement of managers on page 15 of
House Report No. 1320 which clarifies the
intent of Congress with respect to the
impact of this legislation on the Corpora-
tion for Public Broadcasting. The gen-
tleman from California (Mr. VArr DEER-
LIN) raised such questions during a col-
loquy when the bill was debated last
March. This language makes It clear
that the definition of "agency" for pur-
poses of Freedom of Information Act
matters does not include the Corpora-
tion for Public Broadcasting.
I had sought assurance that CPB would
follow the open government principles
of the Freedom of Information Act in Its
information activities-even though they
were not specifically covered by that
act--so as to serve the public interest. I
am pleased that CPB has reaffirmed that
position in correspondence with me. At
this point in the RECORD I include two
letters from Mr. Henry Loomis, president
of CPB, in which he silts forth such as-
surances :
CORPORATION FOR
PUBLIC E'AOADCABTING,
Washington, D.C., September 23, 1974.
Hon. WmLrAal S. MOOaHEAD,
Chairman, Subcommittee On Foreign Opera-
tions and Government Information,
Washington, D.C.
DEAR MR. MOORHEAD: On behalf of the
Board and Management of the Corporation
for Public Broadcasting, I wish to con-
gratulate you and the House Conferees on
the Freedom of Information amendments
(HR 12471) recently reported by the Con-
ferees. We believe the amendments serve a
very real public need and will, when im-
plemented, reward the wisdom and dedica-
tion of the House Members In the Freedom
of Information area. WE are most en-
couraged by the recognition, in the Con-
ference Reports, of CPB's unique status as
a private, nonprofit corporation dedicated
to the purposes set out in t:te Public Broad-
casting Act of 1967.
The Conferees' generous and statesman-
like response to CPB's comments on the
pending legislation prompt us to reaffirm
CPR's traditional commitment to freedom
of information principles, and to pledge
fullest implementation of these principles
in CPR's operations, consistent with Its
private status and constitutionally protected
activities in the area of broadcast program
support. You have our full assurance of
CPB's continued dedication to the spirit of
the Freedom of Information hat.
Sincerely,
H1;NRY LOOMIB.
CORPORATION FOR
PUBLIC BROADCASTING,
Washington, D.C.
Ron. WILLIAM MOORHEAD,
House of Representatives,
Washington, D.C.
DEAR MR. MOORHEAD: In my letter to you
of September 23, it was my pleasure to reaf-
firm CPB's "fullest implementation of free-
dom ofinformation principles :n CPB's oper-
ations, consistent with its private status and
oonstitutlOnauy protected activities in the
area of broadcast program support."
In order to add some specifiers to that gen-
eral commitment, I should like to describe
current CPB practices regarding, the dissemi-
nation of Information relating to CPB ac-
tivities, and regarding requests for informa-
tion about CPB activities from the press and
the public.
All of CPB's public information activities
an coordinated by our Office of Public Af-
fairs. The Office of Public Affairs is located
at the Corporation for Public ftroadcasting,
888 16th Street. N.W., Washingtai, D.C. 20006
Phone [phone]).
This office publishes the following informa-
tional documents relating to CP3 activities:
(1) The Annual Report of the Corporation
for Public Broadcasting which represents "a
comprehensive and detailed report of the
Corporation's operations, activities, financial
condition, and accomplishments ... [in-
cluding] such recommendations is the Cor-
poration determines appropriate", required
by the public Broadcasting Act of 1967, as
amended, (47 U.S.C. 396(t)). This report is
submitted to the President for transmittal to
the Congress on or before the Slat day of
December of each year. After transmittal
to the Congress it is available to all who re-
quest it from the CPB Public Affairs Office.
(2) The CPB Report, a weekly newsletter
containing reports of official CPB :Board and
Management actions, and activities, as well
as additional information of Interest to pub-
lic broadcasting stations, viewers, listeners,
and citizens.
(3) Press releases, containing official re-
ports and statements of the CPB Board and
October 7,.;!9'74
management. Such releases are issued from
time to time as, in the opinion of the: Public
Information Office, they are required.
(4) CPB testimony before legislative, over-
sight, and appropriations committees and
subcommittees of the U.S. Congress. These
comprehensive statements on CPB activities,
financial conditions, projects, and accom-
plishments are routinely duplicated for con-
venient public access by request to the Pub-
lic Affairs Office. In addition, these state-
ments, together with the transcripts of
questions and answers before Congressional
committees are routinely published, and
available as Congressional documents.
(5) Technical studies, final grant reports,
etc. From time to time, the Corporation com-
missions research and development or other
projects that result in the presentation of
reports, monographs, statistical compila-
tions, and other written materials of Inter-
est to the public broadcasting community or
the public at large. The availability of all
these materials is noted in the CPB Annual
Report, CPB Reports, Or CPB press releases.
Copies of these materials are available upon
request at the Public Affairs Office (in Um-
ited numbers).
Requests for information or documehts
coming to CPB employees from the press,
the general public or others not dealing with
CPB in its business operations are routinely
referred to the Public Affairs Office. It is the
practice of the Corporation to provide in-
formation specifically requested in every in-
stance in which furnishing such information
will not:
(1) divulge confidential personnel infor-
mation regarding Individual employees with-
out their consent; or
(2) divulge financial or trade secret data
acquired from any person under a promise of
confidence; or
(8) impair CPB ability to:
(a) conduct its activities free from the
"extraneous interference and control" Con-
gress sought to bar in authorizing establish-
ment of CPB as a private mongovernment cor
poration [47 U.S.O. 396(s) (6) ].
(b) "carry out its purposes and functions
and engage in Its activities in ways that will
most effectively assure the maximum free..
dom of the noncommercial educational tele?,
vision or radio broadcast systems and locay
stations from interference with or control of
program. content or other activities," [47
U.S.C. 396(9) (1) (D) 1;
(c) avoid "... any direction, supervision,
or control of educational broadcasting, or
over the charter or bylaws of the Corpora-
tion; or over the curriculum, program of
construction, or personnel of any educa-
tional institution, school system, or educa-
tional broadcasting station or system" by
"any department, agency, officer, or employee
of the U.S...:. [47 U.S.C. 898]; or
(d) conduct its activities as a private,
"nonprofit corporation .. . which will not
be an agency or establishment of the United
States Government." [47 U.S.C. 396(b) ]; or
(4) otherwise compromise the constitu-
tionally protected activities of the Corpora-
tion, stations, or systems, ' in the broadcast
program area.
I am sure you will recognize that CPB's
practices regarding public access to CPB in-
formation are consistent with, and in a
number of instances, actually exceed princi-
ples of access applicable to government
avencies under the Freedom of Information
Act and the amendments recently consid-
ered by House and Senate conferees. I stress
again that CPR's voluntary commitment to
freedom of information principles is a con-
tinuing one, limited only by the sensitive
nature of some of its function, I doubt that
you will find another private rporation so
committed to public understanding of its
work and activities.
Sincerely,
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October 7, 1974 CONGRESSIONAL RECORD -HOUSE
Mr. SEIBERLING. Mr. Speaker, will
the gentleman yield?
Mr. MOORHEAD of Pennsylvania. I
yield to the gnetleman from Ohio.
Mr. SEIBERLING. Mr. Speaker, on a
matter of such importance, particularly
in the light of what we have gone
through this year with respect to Water-
gate, I would hope we could have enough
order so that all Members of the House
who are interested in this can hear what
the gentleman is saying.
If I may proceed just a little further,
in my mind the whole conspiracy aspect
of Watergate was made possible because
of the abuses of the power of people In
the executive branch to keep matters
secret. The distinguished gentleman
from Pennsylvania is talking about what
the conferees have done to remedy this
situation. I think we deserve to under-
stand exactly what the conferees did.
Mr. MOORHEAD of Pennsylvania. Mr.
Speaker, the gentleman is entirely cor-
rect. That is the thrust of the legislation
as passed by this body and passed by the
other body and reported back through
conference.
The other major change in the bill
was tightening up loopholes on public
access to law enforcement records, and
I think the conferees have reached a very
good compromise which we can endorse
to all the Members of the House.
Mr. ALEXANDER. Mr. Speaker, will
the gentleman yield?
Mr. MOORHEAD of Pennsylvania. Mr.
Speaker, I now yield to the able gentle-
man from Arkansas (Mr. ALEXANDER) a
member of our Foreign Operations and
Government Information Subcommittee,
who has made such a significant contri-
bution to this legislation as a House
conferee.
Mr. ALEXANDER. Mr. Speaker, I note
that section 3 of this act requires each
agency to file an annual report with the
Speaker of the House and the President
pro tempore of the Senate. These annual
reports are to contain specific informa-
tion as enumerated in the act. Following
this enumeration there is a requirement
that 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" certain
Information regarding litigation brought
under the Freedom of Information Act,
as well as a description of action taken
by the Department of Justice to en-
courage compliance with the act.
Is it the intent of this section that the
Department of Justice file two annual
reports?
Mr. MOORHEAD of Pennsylvania.
The answer is yes. The Department of
Justice, as an agency, just as any other
agency, is. required to file an annual re-
port containing specific activities of the
Department of Justice in complying with
the requests under the Freedom of in-
formation Act; to wit, that additionally
the Attorney General Is required to file a
second report dealing with the activities
of the Department of Justice in its role
as legal counsel to all of the other agen-
cies under the Freedom of Information
Act.
(Mr. ALEXANDER asked and was
given permission to revise and extend
his remarks.)
Mr. ALEXANDER. Mr. Speaker, truth
is the foundation of democracy. Thomas
Jefferson said:
Whenever the people are well-informed,
they can be trusted with their government,
because whenever things get so far wrong
to attract their notice, they can be relied on
to set them right.
Our democracy is based on truth. Our
Declaration of Independence declares
that all men are created equal, and that
we are endowed with the unalienable
right of liberty; that to secure our liberty
we established a representative demo-
cracy; and that our Government derives
its powers from the consent of the gov-
erned.
But, the very survival of democracy
depends on an informed citizenry. There-
fore, if we are to survive as a free na-
tion, we must not tolerate deception in
government. If the basis of government
is the consent of the governed from which
it derives its just powers; then, clearly,
unjust powers of government can also
be consented to by the governed.
But, once the consent to unjust power
is given, liberty can soon be replaced by
tyranny. And, once tyranny is estab-
lished, It no longer matters whether the
governed consent, or not.
That's why government deception sup-
ported by official secrecy causes Ameri-
cans to become frustrated, powerless, and
dissatisfied with elected officials.
Our action here today in adopting the
conference report on the Freedom of In-
formation Act Amendments may prove to
be one of the most significant steps we
have taken in returning the U.S. Govern-
ment to the hands of the American peo-
ple. Unfortunately, our action did not
come early enough to prevent the scan-
dals which have rocked the Nation In
the last year and which have rallied all
people behind the cause of open govern-
ment.
For although the people of this country
have the power to go to the polls to rec-
ord their wishes, they are denied the in-
formation with which to make wise
decisions. Over the years, as our bureau-
cracy has expanded unchecked, a cur-
tain of secrecy has fallen over its opera-
tions, a curtain only slightly less pene-
trable than the one which surrounds
the Communist bloc.
Since the enactment of the first house-
keeping statutes under George Washing-
ton for the purpose of allowing depart-
ment heads to adopt regulations govern-
ing the custody, use, and preservation of
official Government documents, the exec-
utive branch has become more and more
effective in twisting these laws Into an
excuse for hiding information. and docu-
ments from the American people.
Why do we have this secrecy in Gov-
ernment? In many instances, It appears
that it is simpler for our Government of-
ficials to have a "secret" stamp on hand
than to go to the trouble of digging up
the information to answer a lot of ques-
tions. This same "secret" stamp makes
it easier to hide the errors of judgment
H 10005
and the favors of politics which could be
damaging to the men in control.
I have read reports of some pretty ab-
surd uses of our information classifica-
tion system. For instance, during the
Korean war, the Department of Labor
would not give out the details of the
armed services purchase of peanut but-
ter, contending that a clever enemy could
deduce from these purchases the approx-
imate number of men in the services.
Yet at the same time the Department of
Defense was releasing mimeographed
sheets with a breakdown of the exact
number of men In the Army, Navy, and
Air Force.
Things have not improved much over
the years, I am afraid, even though the
passage of the 1967 Freedom of Informa-
tion Act was a giant step in returning
to the public access to their own public
documents.
And although in the 1970's I am not
really concerned with supplies of peanut
butter, I am most concerned with the
price and availability of the bread it is
spread on and the effect that the sale of
grain and wheat to Russia has had on
its cost to the American consumer.
Now let me briefly outline the difficul-
ties I have had in my unsuccessful ef-
forts to obtain information on this deal.
In the fall of 1973, I began an exten-
sive investigation of the transactions be-
hind the Russian grain deal. As a Mem-
ber of Congress and as a member of the
Intergovernmental Relations Subcom-
mittee of the Committee on Government
Operations-the committee charged with
the Investigative powers of the House of
Representatives-i sought information
on the wheat subsidies paid to each ex-
porting company since July 8, 1972. I also
requested information on the status and
background of the investigation being
conducted by the Department of Justice
on the alleged Kansas City Wheat Mar-
ket price fixing by certain individuals or
grain companies. I made my requests
through communications with Secretary
of Agriculture Earl Butz, ASCS Adminis-
trator Kenneth Frick, Acting Attorney
General Robert Bork, FBI Director Clar-
ence Kelly, the Commodity Exchange
Authority, and Assistant Attorney Gen-
eral Henry E. Peterson.
In each case, I was told that the In-
formation I requested was either not
available or that it could not be made
available to me. I was told that the FBI
could not release the details of the in-
vestigation and that we must rely on the
FBI's judgment that there had not been
any illegal activities connected with the
sale.
The investigations were secret, but It
was no secret that bread prices were
higher and the American people were
not ready to accept such a decision from
the FBI without having access to the
facts that would back up such a judg-
ment.
As long as a man Is informed, he can
usually take action to insure that his
other rights are not violated. If, I as a
Member of Congress and the Govern-
ment Operations Committee, who works
daily with the bureaucracy, become frus-
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H 10006 CONGRESSIONAL RECORD - HOUSE
trated when I am denied access to In-
formation vital to the public welfare,
what about John Q. Citizen and his ef-
forts to get the information he needs?
In conclusion, let me relate one pore
"horror" story. In 1971, a public interest
group asked the Department of Agricul-
ture for some information on pesticides.
The Department told them they bad
have to be a little more specific as to
what they wanted.
The group asked the Department for
their index of flies on pesticides so that
they could specifically state the informa-
tion needed. In response to this request,
USDA not only denied them access to the
index, stating that the index itself *as
a secret, but also restated their refusal
to release the information on pesticides
without the appropriate index number.
Fortunately this particular group had
the resources to go to court and sue fbr
the information, which the court ordered
released.
However, the case did not end here.
Undaunted, USDA replied that they
would be glad to release a copy of the
information, but it would cost $91,000
and take a year and a half to get it to-
gether.
The group again went to court where
USDA was told by the court to stop
fooling around and release the informa-
tion that was requested.
I shudder to think of the amount of
time, energy, and money wasted in this
process.
The enactment of these amendments
to the Freedom of Information Act will
put an end to the ridiculous delays, ex-
cuses, and bureaucratic runarounds
which have denied U.S. citizens their
"right to know" and made Americans a
captive of their own Government.
Mr. GROSS. Mr. Speaker, will the
gentleman yield?
Mr. MOORHEAD of Pennsylvania. I
yield to the gentleman from Iowa.
Mr. GROSS. Are the amendments
adopted by the conference germane to
the bill?
Mr. MOORHEAD of Pennsylvania, In
my opinion they are.
Mr. YOUNG of Florida. Mr. Speaker,
will the gentleman yield?
Mr. MOORHEAD of Pennsylvania. I
yield to the gentleman from Florida.
Mr. YOUNG of Florida. Can the gen-
tleman tell us what happens to the pro-
vision in the bill where certain judges
were permitted to make national securi-
ty determinations?
Mr. MOORHEAD of Pennsylvania.
Yes. The bill contains the requirement,
which Is in the House bill, that, where
there is a stamp, a classification stamp,
the court could go behind that, but we
specified that the court should give great
weight to an affidavit by the Department
that this was properly classified. What
we are trying to overrule is the situation
described in the famous Mink case, where
the court said to the Congress, no mat-
ter how frivolous or capricious the classi-
fication should be, that the court could
not go behind it.
Mr. ERLENBORN. Mr. Speaker, I
yield myself 5 minutes.
(Mr. ERLENBORN asked and was
given permission to revise and extend
his remarks.)
Mr. ERLENBORN. Mr. Speaker, I rise
in support of the conference report on
H.R. 12471, the Freedom of Information
Act amendments.
Mr. Speaker, this bill passed with a
rather overwhelming vote in the House,
and there were only a few questions to
be adjusted by the House and the Sen-
ate. These amendments to the Freedom
of Information Act I chink are those that
all Members can support. We are acting
at this time in a way that is consonant,
with the times, and that is making in-
formation more readily available from
the Government to m mbers of the gen-
eral public.
One of the questions that was raised
in the conference, and was most difficult
to resolve, was the due.,tion of an amend-
ment proposed by the other body. It was
incorporated in the bill as passed by the
other body and would have allowed a
sanction to be imposed by the court
against Government employees who are
found to have refused to give informa-
tion to someone who requested it with-
out-and I quote-"a reasonable basis
in the law."
I objected to this provision. I think it
would have been an unconscionable bur-
den on Government employees. I am
happy to report that a compromise was
adopted by the conference, one that I
am not totally happy with, but I think
it does improve the provision to the point
where I can support the conference
report.
As a matter of fact, the provision that
is now In the bill is one that, in my judg-
ment, could never result in the imposi-
tion of a sanction against a Federal
employee.
The conferees agreed to change the
test to that of an employee acting arbi-
trarily and capriciously rather than just
without a reasonable basis in law. As a
matter of fact, before the case ever gets
to court, the employee who refuses to give
information when a demand is made will
have to have been supported by his su-
perior. There will have hat'. to have been
an administrative appeal within the
agency.
In most agencies this would mean that
the general counsel of the agency would
support the decision of the employee, and
then the case would have to be brought
to court by the one who wa,s seeking the
information. The Attorney General or
the general counsel of the agency would
then have to make a decision at that
point that the case is sufficiently meri-
'torious to defend. Then possibly the
court might find the agency to be wrong,
but I think in that circumstance the
court could hardly find that the em-
ployee who has been sustained all the
way along the line had acted arbitrarily
or capriciously. Therefore, though we
do have a provision in here For a sanc-
tion, it is limited to a case wh are there is
action which is found by the court to be
arbitrary and capricious.
The court would not make a determi-
nation as to the sanction, but would then
certify the matter to the Civil Service
Commission. The Civil Service Commis-
sioti would be required to institute a pro-
ceeoing.
I- find that rather interesting, by the
way: Proceeding.
October 7 1974
I asked the principal sponsor of the
Senate provision, Senator KE ia. soY of
Massachusetts, what a proceeding was.
He was unable in conference to define
it. It is neither defined in the Civil Serv-
ice law, nor is it defined in the Freedom
of Information Act. What kind of pro-
ceeding is intended by the compromise
of the conferees is really rather vague.
Whether the employee would be entitled
to counsel and whether there would have
to be a public hearing are things which
really are rather vague. However, be-
cause I expect this provision never to be
utilized, I do not think it makes a great
deal of difference.
Besides this provision, which was con-
troversial, there are other noncontro-
versial provisions, some that I think are
great advances in the law.
First of all, this does allow a court to
review what could, and sometimes, I am
sure, in the past, has been an arbitrary
decision to classify a document for secu-
rity reasons. This would not require the
court to view the material, but would
allow the court-and we make this clear
in the conference report--allow the court
to look at the affidavits from the affected
agency, whether the Department of State
or the Defense Department or other,
and give great weight to these affidavits.
At that point only, if there was still
a question remaining in the mind of
the court, the court could conduct an
in-camera inspection of the material and
see whether it had been properly classi-
fied within the terms of the Executive
order setting forth the procedure for
classification.
The SPEAKER. The time of the gen-
tleman has expired.
Mr. ERLENBORN. Mr. Speaker, I yield
myself 1 additional minute.
Only then would the court have an
opportunity to view the material and
make a determination as to whether it
had been properly classified.
In addition, for those who think that
the law has not been applied as it ought
to have been in the past, there Is one
further provision of the act which I think
is very helpful. Those who have been de-
nied information when they have made a
demand under the law, and then go to
court to prove that their demand was
meritorious, the court can-is not re-
quired to, but can-award attorney's fees
and court costs to the successful litigant.
I think that, on balance, the bill as
reported by the conference is a good bill.
I was happy to sign the conference
report.
I hope that it will be adopted.
The SPEAKER. The time of the gen-
tleman from Illinois has expired.
Mr. ERLENBORN. Mr. Speaker, I yield
5 minutes to the gentleman from New
York (Mr. HORTON).
(Mr. HORTON asked and was given
permission to revise and extend his re-
marks.)
Mr. HORTON. Mr. Speaker, I rise in
support of the conference report on H.R.
12471, the Freedom of Information Act
Amendments of 1974.
Before becoming ranking minority
member of the Government Operations
Committee, I was a member of the sub-
committee which has Jurisdiction over
this legislation. In that capacity, I have
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 Octbbcr 7, 197: CONGRESSIONAL RECORD -HOUSE
studied for several years how the Free-
dom of Information Act works and how
it can be improved.
Let me assure you that the measure
before us today will strengthen the pub-
lic's right to know what its Government
is doing. By strengthening the public's
right to know, we make democracy work
better. That is an objective we should
all support wholeheartedly.
H.R. 12471 eases public access to Gov-
ernment information in several con-
structive, ways. It requires agencies to
publish indexes of documents, respond
more quickly to requests for data, and
submit annual reports to the Congress on
their performance under this act. It
grants individuals access to material
they can ? reasonably describe-rather
than identify with particularity-more
prompt resolution of lawsuits they file
under the freedom of information law,
and an award of attorney fees-at the
courts' discretion-in cases in which they
substantially prevail. In addition, this
bill makes clear that courts have the dis-
cretion to examine in chambers all con-
tested records-including classified ma-
terial-before deciding whether it is
properly exempt from public disclosure.
Mr. Speaker, my dedication to free-
dom of information remains firm. I
think the conference report before us is
an improvement over the present law in
this area. I urge my colleagues to join
me in supporting this legislation.
Mr. Speaker, I would like to ask the
gentleman from Pennsylvania some
questions about section 2 of this bill. Sec-
tion 2(a) amends paragraph (1) of 5
U.S.C. 552(b) to exempt from the re-
quirements of the Freedom of Informa-
tion Act matters which are-
(A) specifically authorized under criteria
established by 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.
When coupled with section 552(a) (4)
(B), as amended in this bill, this provi-
sion would permit a court to look behind
the security classification given to a doc-
ument by an agency to determine wheth-
er the document was properly classified.
This provision is not intended to permit
a court free rein to classify information
as it wishes, is it?
Mr. MOORHEAD of Pennsylvania. Mr.
Speaker, If the gentleman will yield, it
certainly is not.
First of all, a court could only deter-
mine whether the information was
"properly classified pursuant to (an)
Executive order." In other words, the
judge would have to decide whether the
document met the criteria of the Presi-
dent's order for classification-not
whether he himself would have classified
the document in accordance with his
own ideas of what should be kept secret.
Second, as we have said in the joint ex-
planatory statement of the committee
of conference:
The conferees expect that Federal courts,
in making de novo determinations in sec-
tion 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.
Mr. HORTON. I would like to move
now to section 2(b) of the bill. That sec-
tion rewrites the subsection of the Free-
dom of Information Act which exempts
certain law enforcement records from
disclosure to the public, The new lan-
guage exempts "investigatory records
compiled for law enforcement purposes,
but only to the extent that-the produc-
tion of such records would-among other
things-disclose the identity of a confi-
dential source and, in the case of a rec-
ord compiled by a criminal law enforce-
ment authority in the course of a crim-
inal investigation, or by an agency con-
ducing a lawful national security intelli-
gence investigation, confidential infor-
mation furnished only by the confiden-
tial source."
I would ask the gentleman two ques-
tions about this provision. First, with
regard to the phrase "a lawful national
security intelligence investigation," ex-
actly what types of investigations does
that encompass?
Mr. MOORHEAD of Pennsylvania. Let
me quote to the gentleman from the joint
explanatory statement of the committee
on conference. That statement says:
The term "intelligence" in (the) section
(we are discussing) is intended to apply to
positive intelligence-gathering activities,
counter-intelligence activities, and back-
ground security investigations by govern-
mental units which have authority to con-
duct such functions.
Mr. HORTON. So it would apply to
more than just positive intelligence
activities?
Mr. MOORHEAD of Pennsylvania. Yes.
It would also apply to counter-intelli-
gence activities and background security
investigations.
Mr. HORTON. But it would not apply
to investigations which were labeled "na-
tional security" but in reality had noth-
ing to do with that subject matter?
Mr. MOORHEAD of Pennsylvania. No,
It would not. The national security in-
telligence Investigation must be "lawful"
for information compiled in the course
of it to be exempted from disclosure
under the Freedom of Information Act.
Mr. HORTON. My second question is,
this bill exempts from public disclosure
confidential information furnished by a
confidential source in the course of a
criminal investigation if the records were
compiled by "a criminal law enforce-
ment authority" and the same kind of in-
formation given for a lawful national
security intelligence investigation if the
records were compiled by "an agency."
By using the term "criminal law enforce-
ment authority" in one place and "an
agency" in another, does this provision
mean that the two terms are mutually
exclusive, and that as a result, confi-
dential information compiled by a crim-
inal law enforcement authority In the
course of a national security investiga-
tion would not be exempt from public
disclosure?
Mr. MOORHEAD of Pennsylvania. No.
Again, let me quote from the statement
of managers:
By "an agency" the conferees intend to
include criminal law enforcement authorities
as well as other agencies.
H 10007
Ali agencies-criminal law enforce-
ment authorities as well as others-
could properly withhold confidential in-
formation compiled for a lawful national
security intelligence investigation.
Mr. HORTON. Mr. Speaker, I thank
the gentleman for his lucid explanations
and commend him for the interpreta-
tions of the bill which he has given.
I would like to make a separate point
with regard to the conference report.
Section (1) (b) (2) writes into the Free-
dom of Information Act a requirement
that fees charged by agencies for per-
forming services under the act "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 duplication."
Some question has arisen as to the
meaning in this provision of the term.
"document search." As the ranking mi-
nority House member of the committee
of conference, I wish to express my opin-
ion that this term means not just a
search for documents, but also a search
within documents to determine which
specific portions are subject to public
disclosure and which are exempt from
the provisions of the act. It does not
encompass a review by agency lawyers
or policymaking or other personnel to
determine general rules which they or
other employees later follow in deciding
which specific portions are exempt from
disclosure.
Let me cite just one example of how
the conferee, in my judgment, mean
that this distinction should be applied.
Suppose someone requested the FBI to
provide all documents in its possession
relating to investigations of the Com-
munist Party of the United States. The
FBI estimates that it has 2 million
pages of such documents. The Bureau's
lawyers would first have to review
samples of this material to formulate
guidelines for other personnel to use in
applying the exemptions of the act to
the entire group of papers. The Agency
could not charge fees for this examina-
tion. Then the other personnel would
search through the documents, page by
page, to determine which portions could
be made public and which could not.
This action would be subject to fees
under the act.
The FBI has estimated that the page-
by-page search through the documents
would consume 225 man-years. Even if
each employee participating in the
search was paid only $10,000 per year,
the cost of responding to this one request
would be more than $2 million. The com-
mittee report on the House bill estimated
the cost of the entire bill as $100,000 per
year; the report on the similar Senate
bill estimated the cost as $40,000 annual-
ly. Surely, the committee on conference
could not have intended that agency ex-
penses in searching through documents
to comply with requirements of the law
not be reimbursable. If that were the
case, the conferees would have written a
bill which would entail expenditures for
responding to one request more than 20
times greater than the annual expense
of the more costly of the two similar bills
they were reconciling.
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1 10008 CONGRESSIONAL RECORD -HOUSE
Mr. Speaker, I thank the gentleman for
this time and yield back to him.
Mr. ERLENBORN. Mr. Speaker, I yield
such time as he may consume to the
gentleman from Nebraska (Mr. Tno,NE).
(Mr. PHONE asked and was given per-
mission to revise and extend his re-
marks.)
Mr. THONE. Mr. Speaker, I rise in sup-
port of the conference report on H.R.
12471. This bill amends the Freedom of
Information Act of 1966 in several ways,
all of them designed to increase the pub-
lic's access to Government information.
As one who has fought for openness in
Government for many years, first in
Nebraska and now in the Congress, I am
proud to add my support to that of other
Members advocating passage of this con-
ference report.
Mr. Speaker, I would point in partic-
ular to provisions of this legislation
which require agencies to respond to
requests promptly and actually reim-
burse some successful plaintiffs who bring
suit under the law. Section 1(c) of the
measure provides that agencies must
respond tQ requests for Information with-
in 10 days, and decide on appeals of deci-
sions to withhold data within 20 addi-
tional days. These time limits could be
extended only in unusual circumstances
defined in the bill, and then only for 10
days. This provision will cure the un-
fortunate tendency which we have noted
in some agencies to delay responding
to citizen requests. Section 1(a) permits
judges to assess attorney fees against
the Government in cases in which com-
plaints substantially prevail. This would
surely discourage agencies from keeping
matters secret unless they are quite con-
vinced that withheld information would
be within the law.
In these ways as in others, this bill
represents a great step forward for free-
dom of information. I strongly support
H.R. 12471.
Mr. THOMPSON of New Jersey. Mr.
Speaker, as a cosponsor of the original
bill that was acted upon earlier this ses-
sion, I am pleased to support the con-
ference report on H.R. 12471. In many
ways it is a stronger and more compre-
hensive Freedom of Information meas-
ure than the bill we passed in March by
an overwhelming 383 to 8 vote. I com-
mend the House conferees for their in-
peachment proceedings of the Judiciary
Committee. This legislation, when
signed into law, will be the first major
step forward in helping to restore the
confidence of the American people in
the institutions of government by purg-
ing the body politic of the secrecy ex-
cesses which marked the sordid Water-
gate coverup during the Nixon admin-
istration.
Mr. Speaker, I urge the House to adopt
this conference report adding these sig-
nificant strengthening amendments to
the Freedom of Information Act.
Mr. MOORHEAD of Pennsylvania.
Mr. Speaker, I have no further requests
for time.
Mr. ERLENBORN. Mr. Speaker, I
have no further requests for time.
Mr. MOORHEAD of Pennsylvania.
Mr. Speaker, I move the previous ques-
tion on the conference report.
The previous question was ordered.
The SPEAKER. The question is on the
conference report.
The question was taken; and the
Speaker announced that the ayes ap-
peared to have it.
Mr. ANNUNZIO. Mr. Speaker, I object
to the vote on the ground that a quorum
is not present and mike the point of
order that a quorum is not present.
The SPEAKER. Evidently a quorum is
not present.
The Sergeant at Arms will notify
absent Members.
The vote was taken ty electronic de-
vice, and there were-yeas 349, nays 2,
not voting 83, as follows:
i Roll No. 5','4l
YEAS-3411
Abdnor
Abzug
Addabbo
Alexander
Anderson,
Calif.
Anderson, Ill.
Andrews, N.C.
Andrews,
N. Dak.
Annunzio
Arends
Aslibrook
Ashley
Aspin
Badillo
safaris
Baker
Barrett
Bauman
Beard
Butler Eilberg
Byron Erlenborn
Camp Esch
Carney, Ohio Eshleman
Casey, Tex. Evans, Colo.
Cederberg Fascell
Chamberlain Fish
Chappell Fisher
Chisholm Flood -
Clancy Flowers
Clark Flynt
Clausen, Foley
Don H. Ford
Cleveland Forsythe
Cochran Fountain
Collier eraser
Collins, Ill. Frelinghuysen
Collins, Tex. Frenzel
Conlan Prey
Conte Froehlich
Corman Fulton
Cotter Fuqua
Coughlin Gaydos
Crane Gettys
Cronin Gibbons
Culver Gilman
Daniel, Dan - Ginn
Danielson Goldwater
Davis, Ga. Gonzalez
Davis, S.C. Goodliug
Davis, Wis. Gray
de la Garza Green, Oreg.
Delaney Green, Pa.
Dellenback Griffiths
vellums Gross
Denholm Grover
Dennis Dubser
Dent Dude
Derwinski 3unter
Devine 3uyer
Dickinson :ialey
Dingell Hamilton
Donohue Hanley
Downing Hanrahan
Drinan Hansen, Wash.
Dulski Harrington
Duncan Harsha
du Pont Hastings
sistence on the basic principles of the Bennett
House version during the conference Ileviland
deliberations and for their wisdom in Be ggi
accepting several important provisions Bieater
added by the other body. This is an im- Bingham
portant bill that will make the Freedom Boggs
Boland
of Information law more effective, more Boiling
workable, and vastly more meaningful Bowen
in advancing the public's "right to Brademas
Bray
know" about the affairs of our Federal Breaux
Government. Breckinridge
During the debate on H.R. 12471 last Brinkley
March, I stated that- Brooks
'Broomfield
Government secrecy for the purposes of Brotzman
hiding wrongdoing, Inept leadership, orgownBrown, Calif.
bureaucratic errors undermines and can , Ohio
eventually destroy system of re resenta- Broyhill, N N.C.
P Broyhill, Va,
tive government. Buchanan
Since then, we have seen dramatic Burke, Fla.
evidence of the effects of government Burke, Mass.
secrecy, and the corruption it produced, Burlison. Mo.
John
October 7,-1974
Heckler, Mass.
Moakley
Sisk
Heinz
Mollohan
Skubitz
Heletoski
Montgomery
Slack
Henderson
Moorhead,
Smith, Iowa
Hicks
Calif.
Smith, N.Y.
Hulls
Moorhead, Pa.
Spence
Hogan
Morgan
Staggers
Holifield
Mosher
Stanton,
Holt
Moss
J. William
Holtzman
Murphy, Ill.
Stanton,
Horton
Murphy, N.Y.
James V.
Howard
Myers
Stark
Huber
Natcher
Steed
Hungate
Nedzi
Steiger, Ariz.
Hutchinson
Nichols
Steiger, Wis.
Ichord
Nix
Stephens
Jarman
Obey
Stokes
Johnson, Calif.
O'Brien
Stubblefield
Johnson, Pa.
O'Hara
Stuckey
Jones, Ala.
Owens
Studds
Jones, N.C.
Parris
Sullivan
Jones, Tenn.
Paasman
Talcott
Jordan
Patman
Taylor, N.C.
Karth
Patten
Thompson, N.J.
Kastenmeier
Perkins
Thomson, Wis.
Kazen
Pettis
Thone
Kemp
Peyser
Thornton
Ketchum
Pickle
Traxler
Kluczynski
Pike
Treen
Koch
Price, Ill.
Udall
Kuykendall
Price, Tex.
Van Deerlin
Kyros
Quie Vander Jagt
Lagomarsino
Quillen. Vander Veen
Landrum
Railsback Vanik
Latta
Randall Veysey
Leggett
Rangel Vigorito
Lehman
Regula Waggonner
Lent
Reuss Waldie
Litton
Riegle Walsh
Long, La.
Rinaldo Wampler
Long, Md.
Robinson, Va. Ware
Lott
Robison, N.Y. Whalen
McClory
Rodino White
McCollister
Roe Whitten
McCormack
Rogers Wiggins
McDade
RoncaIio, Wyo. Williams
McEwen
Roncallo, N.X. Wilson, Bob
McFall
Rooney, Pa. Wilson,
McKay
Rose Charles ]H.,
McKinney
Rosenthal Calif.
McSpadden
Rostenkowski Wilson,
Macdonald
Roush Charles, Tex.
Madden
Rousselot Winn
Madigan
Roybal Wolff
Mann
Ruppe
Wright
Martin, Nebr.
Ruth
Wyatt
Matsunaga
Ryan -
Wydler
Mayne
St Germain
Wylie
Mazzola
Sandman
Wyman
Meeds
Sarasin
Yates
Melcher
Sarbanes
Yatron
Metcalfe
Satterfield
Young, Alaska
Mezvinsky
Scherle
Young, Fla.
Michel
Schneebeli
Young, Gs.
Milford
Schroeder
Young, Ill.
Miller
Sebelius
Young, Tex.
Minish
Seiberling
Zablocki.
Mink
Shipley
Zion
Mitchell, Md.
Shriver
Mizell
Shuster
NAYS-2
Burleson, Tex.
Landgrebe
NOT VOTING-83
Adams
Hanna -
Powell, Ohio
Archer
Hansen, Idaho
Prayer
Armstrong
Hays
Pritchard
Bell
Hebert -
Rarick
Blackburn
Hinshaw .
Rees
Blatnik
Hosmer
Reid
Brasco
Hudnut ,
Rhodes
Brown, Mich.
Hunt -
Roberts
Burke, Calif
Johnson, Colo.
Rooney, N.Y.
Carey, N.Y.
Jones, Okla,
Roy
Carter
King -
Runnels
Clawson, Del
Lujan
Shoup
Clay .
Luken
Sikes -
Cohen
McCloskey
Snyder
Conable
Mahon
Steele
Conyers
Mallary
Steelman
Daniel, Robert
Maraziti
Stratton
W., Jr.
Martin, N.C.
Symington
Daniels,
Mathias, Calif.
Symms
Dominick V.
Mathis, Ga.
Taylor, Mo.
Diggs
Mills
Teague
Dorn
Minshall, Ohio
Tiernan
Eckhardt
Mitchell, N.Y.
Towell, Nev.
Evins, Tenn.
Murtha
Ullman
Findley
Nelsen
Whitehurat
Gialmo
O'Neill
Widnall
Grasso
Pepper
Young, S.C.
Hammer-
Poage
Zwach
achmidt
Podell
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 Approved For Release 2005/06/09: CIA-RDP75B00380R000700010005-3
October 7, 1974
CONGRESSIONAL RECORD - HOUSE H 10009
So the conference report was agreed
to.
The Clerk announced the following
pairs :
Mr. Rooney of New York with Mr. Dorn.
Mr. Hebert with Mr. Blatnik.
Mr. Dominick V. Daniels with Mrs. Burke
of California.
Mr. Sikes with Mr. Clay.
Mr. Stratton with Mr. Mahon.
Mr. Adams with Mr. Nelsen.
Mr. Carey of New York with Mr. Minshall
of Ohio.
Mr. Gialmo with Mr. Hansen of Idaho.
Mr. Mathis of Georgia with Mr. Roamer.
Mr. Roberts with Mr. Martin of North
Carolina.
Mr. Hays with Mr. Maraziti.
Mr. Conyers with Mr. Luken.
Mr. Reid with Mr. Mailary.
Mr. Diggs with Mr. Tiernan.
Mr. Teague with Mr. Cohen.
Mr. Ullman with Mr. Brown of Michigan.
Mr. Pepper with Mr. King.
Mr. Preyer with Mr. Blackburn.
Mr. Roy with Mr. Hinshaw.
Mr. Hanna with Mr. Carter.
Mrs. Grasso with Mr. Bell.
Mr. Jones of Oklahoma with Mr. Conable.
Mr. Mills with Mr. Archer.
Mr. Rarick with Mr. Robert W. Daniel, Jr.
Mr. Runnels with Mr. Del Clawson.
Mr. Eckhardt with Mr. Findley.
Mr. Evins of Tennessee with Mr. Ham-
merschmidt.
Mr. Murtha with Mr. Hudnut.
Mr. Symington with Mr. Lujan.
Mr. O'Neill with Mr. Hunt.
Mr. Mitchell of New York with Mr. Mathi-
as of California.
Mr. Steelman with Mr. McCloskey.
Mr. Pritchard with. Mr. Powell of Ohio.
Mr. Shoup with Mr. Rees.
Mr. Widnall with Mr. Snyder.
Mr. Symms; with Mr. Steele.
Mr. Taylor of Missouri with Mr. Zwach.
Mr. Whitehurst with Mr, Towell of Nevada.
The result of the vote was announced
as above recorded.
A motion to reconsider was laid on the
table.
GENERAL LEAVE
Mr. MOORHEAD of Pennsylvania. Mr.
in which to revise and exte Pe-
marks on the Freedomormation
conference report just agreed to.
The SPEAKER. Is there objection to
the request of the gentleman from
Pennsylvania?
There was no objection.
COMMITTEE REFORM AMEND-
MENTS OF 1974
Mr. BOLLING. Mr. Speaker, I move
that the House resolve itself into the
Committee of the Whole House on the
State of the Union for the further con-
sideration of the resolution (H. Res. 988)
to reform the structure, jurisdiction, and
procedures of the committees of the
House of Representatives by amending
ruler. X and XI of the Rules of the House
of Representatives.
The SPEAKER. The question is on the
motion offered by the gentleman from
Missouri (Mr. BOLLING).
The question was taken; and the
Speaker announced that he was in doubt.
RECORDED VOTE
Mr. ANNUNZIO. Mr. Speaker, I de-
mand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic de-
vice, and there were-ayes 211, noes 121,
not voting 102, as follows:
(Roll No. 5751
AYES-211
Abdnor
Gilman Pettis
Abzug
Ginn Peyser
Addabbo
Gonzalez Pickle
Anderson,
Green, Pa. Pike
Calif.
Grover Rallsback
Anderson, Ill.
Gubser Randall
Andrews, N.C.
Oude Rangel
Andrews,
Gunter Regula
N. Dak,
Guyer Reuss
Ashley
Hamilton Riegle
Aspin
Hanley Rinaldo
Badillo
Hanrahan Robinson, Va.
Bafalls
Hansen, Wash. Robison, N.Y.
Beard
Harrington Rodino
Bennett
Harsha Roe
Bergland
Hastings Rogers
Blester
Hechier, W. Va. Roncalfo, Wyo.
Bingham
Heckler, Mass.
Roncallo, N.Y.
Boggs
Heinz
Rose
Boland
Helstoski
Rosenthal
Bolling
Hillis
Roush
Breaux
Holtzman
Roybal
Breckinridge
Horton
Ruppe
Brinkley
Howard
Ruth
Broomfield
Huber
Sarasin
Brotzman
Hungate
Sarbanes
Brown, Calif.
Hutchinson
Schroeder
Brown, Ohio
Ichord
Sebelius
Buchanan
Jordan
Seiberiing
Burgener
Korth
Shipley
Burlison, Mo.
Kazen
Shriver
Burton, John
Kemp
Smith, Iowa
Burton, Phillip Ketchum
Stanton,
Butler
Koch
J. William
Chisholm
Kyros
Stanton,
Clancy
Lagomarsino
James V.
Clausen,
Landgrebe.
Stark
Don H.
Lehman
Steed
Cleveland
Lent
Steiger, Ariz.
Cochran
Litton
Steiger, Wis.
Collins, Ill.
Long; La.
Stephens
Conlan
McClory
Studds
Conte
McCollister
Talcott
Carman
McCormack
Taylor, N.C.
Cotter
McDade
Thomson, Wis.
Coughlin
McSpadden
Thone
Cronin
Madigan
Van Deerlin
Culver
Mahon
Vander Jagt
deja Garza
Mateunaga
Vander Veen
lenback
Mazzoli
Vanik
luins
Meeds
Vigorito
enholm
Melcher
Walsh
ennis
Mezvinsky
Wampler
Donohue
Milford
Whitten
Drinan
Miller
Wiggins
Duncan
Minish
Wilson, Bob
du Pont
Mitchell, Md.
Wilson,
Edwards, Calif. Mizell
Charles, Tex.
Eilberg
Moakley
Winn
Erlenborn
Mollohan
Wolff
Each
Moorhead,
Wright
Eshleman
Calif.
Wyatt
Fascell
Moorhead, Pa.
Wydler
Flood
Morgan
Wylie
Flynt
Mosher
Wyman
Foley
Natcher
Yates
Forsythe
Obey
Yatron
Fraser
O'Brien
Young, Fla.
Frelinghuysen
Owens
Young, Ga.
Frenzel
Parris
Young, Ill.
Froehlich
Passman
Zablocki
Fuqua
Patten
Zion
Gettys
Perkins
NOES-121
Alexander
Burke, Mass.
Davis, S.C.
Annunzio
Burleson, Tex.
Davis, Wis.
Arends
Byron
Delaney
Ashbrook
Camp
Dent
Baker
Carney, Ohio
Derwinski
Bauman
Casey, Tex.
Devine
Bevill
Cederberg
Dickinson
Blaggi
Chamberlain
Dingell
Bowen
Chappell
Downing
Brademas
Clark
Dulski
Bray
Collier
Evans, Colo.
Brooks
Collins, Tex.
Fisher
Broyhlll,.N.C.
Crane
Flowers
Broyhill, Va.
Daniel. Dan.
Fountain
Burke, Fla.
Danielson
Frey
Fulton McEwen St Germain
Gaydos McFall Sandman
Gibbons McKay Satterfield
Goldwater Macdonald Scherle
Goodling Martin, Nebr. Schneebeli
Green, Oreg. Mayne Shuster
Gross Metcalfe Skubitz
Haley Michel Smith, N.Y.
Hawkins Mink Spence
Henderson Montgomery Staggers
Hicks Moss Stokes
Hogan Murphy, Iii. Stubblefield
Holifield Murphy, N.Y. Stuckey
Holt Myers Sullivan
Jarman Nedzi Thompson, N.J.
Johnson, Calif. Nichols Thornton
Johnson, Pa, Nix Treen
Jones, Ala. O'Hara Waggonner
Jones, N.C. Price, Ill. Ware
Jones, Tenn. Price, Tex. Whalen
Kastenmeier Quie White
Kluczynski Quillen Williams
Latta Rooney, Pa. Young, Alaska
Leggett Rostenkowski Young, Tex.
Long, Md. Rousselot
Lott Ryan
NOT VOTING-102
Adams Hanna Pritchard
Archer Hansen, Idaho Rarick
Armstrong Hays Rees
Barrett Hebert Reid
Bell Hinshaw Rhodes
Blackburn Hosmer Roberts
Blatnik Hudnut Rooney. N.Y.
Branco Hunt Roy
Brown, Mich. Johnson, Colo. Runnels
Burke, Calif. Jones, Okla. Shoup
Carey, N.Y. King Sikes
Carter Kuykendall Sisk
Clawson, Del Landrum Slack
clay Lujan Snyder
Cohen Luken Steele
Conable McCloskey Steelman
Conyers McKinney Stratton
Daniel, Robert Madden Symington
W.. Jr. Mailary Symms
Daniels, Mann Taylor, Mo.
Dominick V. Maraziti Teague
Davis. Ga. Martin, N.C. Tiernan
Diggs Mathias, Calif. Towell, Nev.
Dorn Mathis, Ga. Traxler
Eckhardt Mills Udall
Edwards, Ala. Minshall, Ohio Ullman
Evins, Tenn. Mitchell, N.Y. Veysey
Findley Murtha Waldie
Fish Nelsen Whitehurst
Ford O'Neill Widnall
Giaimo Patman Wilson,
Grasso Pepper Charles H.,
Gray Poage Calif.
Griffiths Podell Young, S.C.
Hammer- Powell, Ohio Zwach
schmidt Preyer
So the motion was agreed to.
The result of the vote was announced
as above recorded.
Accordingly the House resolved itself
into the Committee of the Whole House
on the State of the Union for the further
consideration of the resolution House
Resolution 988, with Mr. NATCHER in the
chair.
The Clerk read the title of the resolu-
tion.
The CHAIRMAN. When the Commit-
tee rose on Thursday, October 3, 1974,
there were pending the amendment in
the nature of a substitute offered by the
gentlewoman from Washington (Mrs.
HANSEN), the amendment offered as a
substitute by the gentleman from Ne-
braska (Mr. MARTIN) for the Hansen
amendment, the amendment offered by
the gentleman from Florida (Mr. BEN-
NET) to the Hansen amendment, and the
amendment offered by the gentlewoman
from Missouri (Mrs. SULLIVAN) to the
substitute amendment offered by the gen-
tleman from Nebraska (Mr. MARTIN).
Mr. BOLLING. Mr. Chairman, I move
to strike the requisite number of words.
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CONGRESSIONAL RECORD -HOUSE
Mr. Chairman, I appreciate the feelings
of the Members who felt that it was not
wise to go into the Committee of the
pletion. 1: know that other Members have
the same desires that I have concerning
the events that are going to take place
later in the evening, and I know that
they hope that they might be able to see
them. I know the Members would like
very much for this matter to go away;
at least some of the Members would.
I only sought to go into the Commit-
tee of the Whole so that we might come
to some kind of an arrangement as to
how, in a reasonable time tomorrow or
perhaps the next day, we-might conclude
the matter.
I would like to explain what my pref-
erence would be. I would like to see that
the House is absolutely fair to every
Member. One of the dilemmas we suffer
from is the necessary tightness of the
parliamentary procedure.
Mr. Chairman, I am going to make"a
unanimous-consent request-and it is a
request that could never be turned into
a motion-to schedule things in such a
way that we will have a fair debate on
everything, including the basic resolu-
tion. I doubt that that will-prevail. That
request cannot be made in the form of a
motion.
I would seek a situation where we
could continue in an orderly fashion to
amend both the amendment in the na
So I will make the unanimous-
the event that neither the
If that does not pr,
made in
to figure
adopted.
then I will
certain number of
ho wish to filibuster it. I have
the conclusion that there is
situation would be to provide a unani-
mous consent request that we do this.,
That there be 2 hours of further debate
on perfecting amendments to the amend-
ment in the nature of a substitute of-
fered by the gentlewoman from Wash-
ington (Mrs. HANSEN) ; that upon the
conclusion of that there be 2 hours of
debate on perfecting amendments to the
Martin substitute to the amendment in
the nature of a substitute; and then upon
the conclusion of that we vote on Martin
as perfected versus Hansen as perfected.
If then the vote comes on one as opposed
to House- Resolution 988, and House Res-
olution 988 does prevail, that then there
be 5 hours of debato on amendments to
House Resolution V88. At the end of
which time, which r suspect would be
some time early Wednesday evening, with
some luck, we would then have a vote on
the final matter.
This is an attempt by unanimous con-
sent to structure things so that every-
body gets a fair shot at their substitute
or their amendment so that the House
does not have to wonder what it is going
to do.
I do not like late sessions any mor
than anybody else does.
With that I will pose my unani s
consent request, and two glad to y to
those who wish to object, or res the
right to object.
Mr. GROSS. Mr. Chairm eserving
the right to object-/
Thoo g eman from
The CHAIRMAN.ight object.
Iowa reserves the r
Mr. DINGELL. Mr hairman, the
same reservation of ection.
same reservation objection.
Mr. GROSS. . Chairman, I would
sa3;to the gen an from Missouri that
I" would be to expedite conclusion
of debate I e House is ready for it by
offering referential motion at this
point t ike the enact: ng clause.
Mr. LUNG. That is the kind of
assi ce that does not really come
wi my unanimous-consent request.
GROSS. I withdraw my reserva-
of objection.
the request of the gentleman from
Missouri?
Mr. DINGELL. Mr. Chairman, I object.
The CHAIRMAN. Objection is heard.
Mr. BOLLING. Mr. Chairman, I move
that all debate on the amendment in the
nature of a substitute offered by the gen-
tlewoman from Washington (Mrs. HAN-
SEN), and all amendments thereto, con-
clude In 5 hours.
The CHAIRMAN. The question Is on
the motion.
The question was take:'i; and the
Chairman announced that the noes ap-
peared to have it.
RECORDED VOTE
Mr. BOLLING. Mr. Chairman, I de-
mand a recorded vote.
PARLIAMENTARY INQUIRY
Mr. O'HARA. Mr. Chairman, a parlia-
mentary Inquiry.
The CHAIRMAN. The gentleman will
state his parliamentary inquiry.
Mr. O'HARA. Mr. Chairman, if the
motion were to be agreed on, what effect
would that have on amendments that
have been printed in the RECORD under
the rule?
The CHAIRMAN (Mr. NATCHER). The
Chair will state that amendments
printed in the RECORD would be protected.
Mr. O'HARA. A further parliamentary
inquiry, Mr. Chairman, Would there be
time for debate guaranteed to those
amendments?
The CHAIRMAN (Mr. NATCHER). The
Chair will state that the gentleman's
statement is correct; they would be
protected.
Mr. O'HARA. I thank the Chairman.
PARLIAMENTA
Mr. DENNIS.
liamentary inq
The CRAI
state his pa ment
Mr. D S. Mr.
the effec this mot ";: p
r either p
which
off ere
T
to or the Hmsen
October 71974
like to state to the gentleman from In-
diana that the motion now pending on
the floor is to limit debate on all amend-
ments now pending or which would be
offered to the Hansen amendment in the
nature of a substitute and thus would
include the Martin substitute.
Mr. YATES. Mr. Chairman, how :many
amendments are pending at the present
time?
The CHAIRMAN. In answer to the
gentleman from Illinois, the Chair will
state there are eight amendments
pending.
Mr. YATES. I thank the Chairman.
The CHAIRMAN. And there are a
number in the record that are not at the
desk.
PARLIAMENTARY INQUIRY
Mr. ASHBROOK. Mr. Chairman, I
have a further parliamentary inquiry.
The CHAIRMAN. The gentleman will
state it.
Mr. ASHBROOK. Mr. Chairman, it is
my understanding that when time is lim-
ited under the rules of the House, the
Chair normally recognizes those Members
standing and allocates time. I pose the
question to the Chair whether that would
or would not be the procedure for as long
as we would proceed, for as long as a
period of 5 hours?
The CHAIRMAN (Mr. NATCWER). The
Chair would like to advise the gentleman
that those amendments pending and
those that would be offered would, of
course, be considered. As far as the Mem-
bers standing on the request that is now
before the committee, it would seem to
the Chair that it would be premature to
recognize the Members standing when.
there are a number of Members not pres-
ent at this time who would like to be
heard.
PARLIAMENTARY INQUIRY
Mr. THOMPSON of New Jersey. Mr.
Chairman, a parliamentary inquiry.
The CHAIRMAN. The gentleman will
state his parliamentary Inquiry.
Mr. THOMPSON of New Jersey. Mr.
Chairman, I did not understand the
Chair's answer to the parliamentary in-
quiry by the gentleman from Michigan
that notwithstanding that 5 hours under
the gentleman's motion would dispose
of the Hansen and Martin substitutes,
in addition thereto for those amend-
ments which have been printed in the
RECORD will there be time to debate
them allowed?
The CHAIRMAN (Mr. NATCHER). The
Chair would like to advise the gentle-
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DATE 1 T PAGE
THE WASHINGTON POST
,=] esigned
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sent
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t j@ pr4 }egt fiord.
final
ns~racai .step ast voted
nnto 2 in favor of the com-
aromi t1Q1 had
ileared the,, Senate by voice ~
Est Tuesday.
The bill roviding the first
changes e ree om o In-
formati,pn Act_s,nrP i 1S law
b ne- effective _on... ZulY 4,
f7_ is in d t9-stPngthen
_. he_..publ t $ ac&eSS,_tQ govern-
ent_ documents by, generally
=king it easier and quicker
to-do so.
an 866 il' dlpcuinents
were. opcrly Classified.
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 /j&, )2.1 l t
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S 19396 CONGRESSIONAL RECORD- SENATE 3ctober 17, 1974
component within the Department of Juve- he has made to these important im- Court could determine was whether it
rile Services which would provide diagnosis, provements of the Freedom of Infor- was so stamped.
screening and diversion. The goal in this area mation Act. . The measure before the President
is that only 10 per cent of all juveniles first No one can underestimate the dilli- would specifically overrule that holding.
reaching intake would go through the formal genre and concern with which he, the And it is t Pat provision which seems to
adjudication process.) other members of the Committee on the cause him the greatest difficulty.
Diversion Judiciary, and the Senate and House When the Freedom of Information Act
The report said each local jurisdiction conferees have worked to insure that the amendments were considered by the Sen-
should 1y organ develop and programs for implement diversion by 1975 for- that changes made in the 1967 act will, in fact, ate, I offered a change which would au-ized can be applied in the criminal justice ce process further the vital work of making Govern- thorize the courts to conduct in camera
from the time an illegal act occurs to the ment records readily available for public a review of documents classified by the
moment of adjudication. scrutiny and making the conduct of the Government to determine if the public
Factors to be considered in determining public business a subject for informed interest would be better served by keep-
whether an offender is to be selected for di- public comment. ing the information in question secret
version include: the arrest has already served This has been a very rare and impor-
as the desired deterrant, the needs and in- Cant opportunity to correct the defects
served by of the diversion victim than and by offisocietycial are process- better we discovered in the administration of
served
ing, the offender does not present a substan- the act during joint hearings I conducted
tial danger to others, the offender voluntarily with Senator KENNEDY and Senator
accepts the offered alternative to further ERVIN last year. In many important pro-
criminal justice system process, or the facts cedural areas the conference report on
of the case do not sufficiently establish that H.R. 12471 will close loopholes through
the defendant committed the alleged act. which agencies were evading their duties
(The Governor's Commission has provided to the public right to know.
substantial funding support to a diversion
project in Baltimore City, Project F.O.U.N.D. The price of a court suit has too long
(First Offenders Under New Direction). The been a deterrent to legitimate citizen
project is designed to divert from the court contests of Government secrecy claims.
process young adult first offenders charged This legislation will enable courts to
with certain misdemeanors. It offers a com- award costs and attorneys' fees to plain-
bination of counseling, educational, voca- tiffs who successfully contest agency
tional and supportive services as an alterna- withholding of information: Additionally,
tive inal adjudication.)
these changes will require agencies to
FREEDOM OF INFORMATION ACT
Mr. MUSKIE. Mr. President, the Sen-
ate and House have sent to the President
a bill to insure greater openness and pub-
lic knowledge about the way our Gov-
ernment is run. The amendments to the
Freedom of Information Act of 1966 are
a most - significant product of this post-
Watergate period because they will
bring the people closer to the materials,
facts and documents on which officials in
the Government base their decisions and
policies.
That legislation may be in jeopardy.
While it was sent to the President on
October 9, we must still await a decision
whether he will sign the measure into
law or return it to the Congress with a
veto. Unfortunately, should the Congress
recess before midnight Saturday, Presi-
ly let the bill sit on
im
ld
p
s
dent Ford cou
A,,U~LLS. court of appea
his desk to die by the pocket veto. Federal district judge trying the case to courts may perform this vital review
i
i
i
-
fiers pr
v
This would be a serious blow to our review the documents in camera to de- function, we make the class
Govecn nfi as dence e through attempt to more restore termine which, if any, should be re- leged officials, almost immune from the
public confi open leased. This seemed an appropriate step accountability we insist on from their
processes. since the act now provides for court de- colleagues.
Congress cannot override a pocket termination of the validity of any exec- An editorial in the New York Times
next Instead n would have to wait until utive branch withholdings. today refers to reservations the Presi-
ex session and begin again with a new The Supreme Court was asked to re- dent reportedly has expressed about this
bill. legislation on national security grounds.
We must not delay the people's oppor- view that order and reached a decision I believe as the editorial states that
tunity to know more about their Gov- in that case which was somewhat torte- the Congress has "made an extraordinary
ernment. Already that right has been ous. The Court held that in camera re- the to balance the extraordinary
right to s has information effort to with the Governs
eroded by too little candor and too much view of material classified for national legislative
secrecy. defense or foreign policy reasons was not rent's need to protect its legitimate -
It would be a regrettable irony if a de- permitted by the act. The basis of this meta' and I wrote strongly legs ur the
cision'to deny the people greater access decision was the exemption of the act president and sign this important rgl ithe
to their Government is decided without which permits withholding of matters law.
further debate behind closed doors of the authorized by Executive order to be kept
and offer the should state
White House by a new administration, secret in the interests of national de- if he cannot
only recently pledged to openness and fense or foreign policy. his his reasons a coffe eeC got thesoss veto
candor. The Supreme Court decided that once by a opportunitythirds acce in both Houses.
I want to take this opportunity to ex- the executive had shown that documents
tend my congratulations and apprecia- were so classified, the judiciary could not I ask unanimous consent that the Oc-
tion to my friend and able colleague the intrude. Thus, the mere rubberstamping tober 17, 1974, New York Times editor-
senior Senator from Massachusetts (Mr. of a document as "secret" could forever lal, "More Open Government," be printed
KENNEDY) for the dedicated contribution immunize it from disclosure. All the in the RECORD.
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respond promptly to requests for access
to information. They will help bar the
stalling tactics which too many agencies
have used to frustrate requests for ma-
terial until the material loses its time-
liness to an issue under public debate.
And they provide long-overdue assurance
that agencies will report to the Congress
on their policies and actions in handling
Freedom of Information Act cases.
In one major respect this legislation
responds to a weakness in the existing
law which was illustrated in the case of
tal Protection Agency
en
My amendment was a response to the
increased tendency of former adminis-
trations to use national security to shield
errors in judgment or controversial deci-
sions.
It was a response as well to the mount-
ing evidence, more recently confirmed in
tapes of Presidential conversations, that
national security reasons were deliber-
ately used to block investigations of
White House involvement in Watergate.
Finally that amendment reflects confi-
dence in the Federal judiciary to review
determinations to classify secret docu-
ments and to decide whether the greater
public interest rests with public disclo-
sure or continued protection.
I cannot understand why we should
trust a Federal judge to sort out valid
from invalid claims of executive- privilege
in litigation involving criminal conduct,
but not trust him or his colleagues to
make the same unfettered judgments in
matters allegedly connected to- the con-
duct of national defense or foreign policy.
As a practical matter, I cannot imag-
ine that any Federal judge would throw
open the gates of the Nation's classified
secrets, or tha, they would substitute
their judgment for the head of an agency
without carefully weighing all the evi-
Envlronm
against Patsy T. Mink, and others, de- dente in the arguments presented by
cided by the Supreme Court on January both sides. It is doubtful that there is
22, 1973. any Federal judge in the country that
In that case, 32 Members of Congress, would not give weight to an affidavit
bringing suit as private citizens, sought from the head of an agency which argues
access to information dealing with the the merits for classifying a particular
atomic test on Amchitka island in document without giving that affidavit
Alaska. a special status.
 vcwuer 11, 1W4 CONGRESSIONAL RECORD - SENATE S 19395
Race and sex
On the basis of race and sex, there is little
variation In failure-to-appear rates, except
that the rates for white females are signifi-
cantly lower than the others. The total rate
for non-white females was 4.1 percent; for
non-white males, 4.0 percent; for white fe-
males, 1.8 percent, and for white males, 3.9
percent-
Age
Defendants were categorized Into threeage
groups; 20 years or less, 21 to 29 years and
30 years or older. Defendants who were 20
years of age or younger had a slightly higher
failure-to-appear rate than the older de-
fendants; 4.5 percent as opposed to 2.9 per-
cent in the 21 to 29 years group and 3.6per-
cent in the 30 years and older group.
Seriousness of charge
Baltimore City data was analyzed to ob-
serve whether there may be a relationship be-
tween the seriousness of the charge against
the defendant and the likelihood of appear-
ance at trial. Differences were found to exist
among the misdemeanor charges. The fail-
ure-to-appear rate was 3.2 percent for mi-
nor misdemeanors (such as gambling, liquor
law violations, disturbing the peace) and
4.2 percent for serious misdemeanors (such
as assault and battery, marijuana possession,
vandalism). A low failure-to-appear rate was
reported for felony charges (3.1 percent),
but there was a higher rate of detention for
suspected felons and thus those defendants
were not subject to the same risk of non-
appearance."
Criminal activity between release and trial
percent) or the 3,686 under the jurisdiction
of Baltimore City committed new offenses
between the time they were first released and
their trial for that arrest in Baltimore Coun-
ty there were seven new arrests (1.4 percent)
and in Prince George's County there were
twelve news arrests (1.8 percent).
The study also examined the role of Dis-
trict Court commissioners who, as- judicial
officers, are generally the first contact the
offender has with the criminal justice system
in Maryland. A duty of the commissioner is
determining a defendant's eligibility for pre-
trial release under Rule 777.
The study points out that although any
arrestee detained as a result of a commis-
sioner's decision gets a bail review hearing
before a District Court judge, "from a practi-
cal standpoint it is the commissioners who
are making the pretrial release decisions."
- Three major needs were pointed outinso-
about the defendant is needed to assist the
decision-making process. Third, a fo ized
training program for corn lmissione ould
be developed which would provid` th pre-
A REPORT OF THE NATIONAL ADVTAWY COMMIs-
SION ON CRIMINAL -JUSTICE ANDARDS AND
This article highlights major recom-
mendations made by th k Force on Cor-
rections of the Natio Advisory Commis-
sion on Criminal J ice Standards and
Goals. The Task Fo ne of five survey-
ing problems and . s in all areas of the
criminal justice stem-was chaired by
Judge Joe Fraz Brown, former executive
director of the xas Criminal Justice Coun-
The Natio#hl Advisory Commission studied
the crimingO justice system for two years
under a ant from the Law Enforcement
Assistance Administration (LEAA). Its find-
ings were made public in a final report con-
sisting of a summary volume, "A National
Strategy to Reduce Crime," and five individ-
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ualTask Force Reports: "Police.' "Courts,"
"Corrections," "Community Crir.:ie Prev9n-
tioil;" and "The Criminal Justice System."
LLAA officials have emphasized that the
Standards and Goals recommendations are
advisory in nature and that the federal gov-
ernment does not intend to impose them
on states and local units of government.
The Standards and Goals recommendations
are Among material currently being reviewed
by W number of subcommittees of the Gov-
ernor's Commission, which have begun the
planning process aimed at furth,.r defining
criminal justice standards and goals for
Maryland agencies.
Emphasizing that a new view" of corree-
tion! is needed, the Corrections 'Cask Force
stated that a fundamental objective of cor-
rections must be to secure for tl.e offender
contacts, experiences and opportunities that
provide a means and stimulus for pursuing
a lawful style'of living in the community-
"With this thrust," their report says, "rein-
tegration of the offender Into the community
comes to the fore as a major purpose of cor-
rectipns." It Is further noted that "the failure
of major institutions to reduce crime is In-
contstable. . . . The mystery is that they
havanot contributed even more to increasing
ime
"
cr
.
The report deals substantively with sev
diversion.
Sentencing
Thy report says a study of se ces and
actual time served by first rele Indicates
that In many states a substan ;portion of
offenders released in 1970 ha en sentenced
to five years or more but latively small
percentage had actually ved more than
five pars. A very small p ntage had served
10 -____
- ___ ,
or
It was recommend hat-prison terms be
set at not more t ve years unless it is
determined that t efendant is a persistent
felony offender, ofessional criminal or a
dangerous off r. Under these circum-
stanees, a 25 r sentence would be given,
This would apply in the case of murder.
Among econgmended sentencing alter-
natives unconditional release, condt-
t
ooal fe e, a fine, release under community
supe n, sentence to a halfway house cg
othe mmunity-based facility or sentence
to ial confinement with libert3 to work
g all but leisure time.
Institutions
local detention and correctional facilities,
both pre- and post-conviction, should be in-
corpotated under state systems by 1982.
"States should also," the report said, "de-
velop community-based resources and co-
ordinate planning for community-btsed cor.
rection services on a state and regional
basis."
In addition, it was recommended t`aat there
be a 10-year moratorium on the construction
of correctional institutions except when an
"analysis of the total criminal justice and
adult -corrections systems produces a clear
finding that no alternative is possil:le."
(The long range-10-15 year-plans of the
Goverfor's Commission call for a system
of community-based correctional facilities
and services to be Implemented in Maryland.
The cprnerstone of this capability would be
expanded parole and probation services and
the development of a system of community
correctional centers throughout the State.
Three types of jurisdictional centers
would be established. Regional centers would
be located in less populated colnbinecl-coun-
ties. Single County centers would btu located
in several highly urbanized counties. Multi-
ple centers would be located within urban-
ized areas-counties or cities-having a
large number of incarcerated persons.)
Rights of offenders
Stating that the strategy of correctional
reform must be built on a founds ion of non-
discriminatory and just actio , the Task
Force concluded that "convi ize
d offenders
should retain all rights that ns in gen-
eral have except those righ that must be
limited in order to terry t the criminal
sanction or to administer orrectional faeil-
Until recently, the Frrt said, an offender
was deemed as a ma reof law to have for-
feited virtually all is upon his convic-
tion and to haver lned only such rights
as were expressly nted to him by statute
or correctional hority.
It was furt noted that the issue of
offenders' rig has been increasingly be-
fore the co in recent years; therefore,
the Task F e recommended that each cor-
rectional ency immediately develop and
implem policies and procedures to as-
should immediately formulate policies and
procedures that would assure that the fol-
lowing are prohibited:
Corporal punishment.
The use of physical force by correctional
staff except when absolutely necessary.
Solitary or segregated confinement except
as a last resort, and then not to last more
than 10 days.
Any deprivation of clothing, bed and bed-
ding, light, ventilation, heat, exercise,
balanced diet or hygienic necessities.
Any act or lack of care that injures or
significantly impairs the health of an of-
fender.
Ombudsmen
The Task Force called on every correc-
tional agency to have a designated ombuds-
man who is trained, compensated and orga-
nizationally experienced. "He would hear
complaints of employees and inmates who
feel aggrieved by the organization or its man-
agement, or (in the case of offenders) who
feel aggrieved by employees or conditions of
their incarceration," the report said.
Juvenile delinquency
In its standards on juvenile delinquency
proceedings, the report recommended that
the delinquency jurisdiction of the courts
be more clearly defined and called on the
states to adopt legislation by 1975 to achieve
that goal.
The legislation also should include pro-
visions governing the detention of juveniles
accused of delinquent conduct, the report
said. It suggested a prohibition against de-
taining juveniles in jails, lockups or other
facilities used for housing adults, criteria for
detention prior to the adjudication of delin-
quency matters; a maximum of overnight
detention for juveniles prior to their first
juvenile hearing; and courts, not law en-
forcement officers, deciding whether a juve-
nile should be detained.
(Maryland statutes provide that, after
January 1, 1975, children who are alleged
either delinquent or in need of supervision
shall not be detained in facilities w1 ch ire
being used to detain adults or to which de-
linquents have been committed.)
"Use of state institutions for juveniles
and youths should be discouraged. The
emerging trend in treatment of young de-
fenders is diversion from the criminal justice
system. When diversion is not possible, the
focus should be on community programs,"
the report said.
(The Commission's long range plans,
similarly, call for a strong court services
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October' 17, 1974 CONGRESSIONAL RECORD - SENATE
There being no objection, the article
was ordered to be printed in the RECORD,
as follows :
[From the New York Times, Oct. 17, 1974]
MORE OPEN GOVERNMENT
The Freedom of Information Act was
passed by Congress in 1966 on the assump-
tion that the public should have broad right
of access to information about the workings
of its Government. The act hasn't func-
tioned particularly well since it went into
effect because of the Federal Government's
use of a variety of obstructionist tactics
ranging from forcing these seeking informa-
tion into long and costly litigation to plain
old bureaucratic foot-dragging.
Congress has now passed and sent to the
White House a number of amendments de-
signed to make the law work more effectively,
including a provision that would subject to
judicial review decisions on the classification
of Information. Other amendments would
open up noncriminal investigatory files for
the first time and would award attorney's
fees to successful public litigant.
The Department of Justice is reported to
have recommended that President Ford veto
.this legislation. The President himself has
reportedly expressed reservations about the
bill on national security grounds,
Mr. Ford's concern appears misplaced.
Congress, in developing the new amend-
ments, made an extraordinary legislative
effort to balance the public's right to infor-
mation with the Government's need to pro-
tect its legitimate secrets. Unless the Presi-
dent feels that the Federal judiciary is
Insensitive to national security or is in-
capable of handling such issues appropri-
ately, he can have no justifiable fears about
the law's adequacy to protect legitimate na-
tional secrets.
The ability to preserve free and responsive
government depends in large measure on the
preservation of open government to the
greatest possible degree. That is the principle
that animated the Congress in passing the
amendments. It is the motivation that
should lead the President to sign them into
law.
RED MEAT
Mr. McCLURE. Mr. President past
year has not been a good . or either
farmers or consumers. 1Ve have seen
store prices going up while farm prices
were going down. Consumers have boy-
cotted, because they could not afford to
buy, while farmers have destroyed ani-
mals they could not afford to raise.
While there are a number of factors
which have led to this paradoxical situa-
tion, one of the major ones is the in-
creasing farm-retail price spreads. And
the reaction has been just what we would
expect-increasing criticism of the so-
called middleman. But before we start
allocating blame, we should attempt to
get all the facts. In June, I joined with
a number of my colleagues in calling on
the President to investigate the increas-
ing beef price spread, but as yet we have
not received the administration's report.
However, while we are waiting for that
report, there are some other sources of
information which may prove helpful. A
USDA Task Force prepared a report in
August which partially explains the
farm-retail price spreads for pork and
choice beef.
This report not only shows how much
the price spreads have increased-ap-
proximately 50 percent since 1968-but
explains in general terms those factors
which have been primarily responsible
for this increase. It is interesting to note,
for example, that since 1963, more than
90 percent of the farm-retail spread for
beef has occurred in the carcass-retail
segment of the spread.
While the report is rather general In
most of Its data and comments, it does
provide a rather useful summary, as well
as some suggestions on improving meat
marketing performance in order to re-
duce the spread.
I, therefore, ask unanimous consent to
have this report printed in the RECORD.
There being no objection, the report
was ordered to be printed in the RECORD,
as follows:
FARM-RETAIL PRICE SPREADS Pon RED MEAT
(Report of a Special Task Force to Earl L.
Butz, Secretary of Agriculture, August
1974)
The farm-retail spread, o,~.argin, for beef
or pork Is the difference between a monthly
average composite price per pound of selected
cuts at retail and the fdi.'m value of the
equivalent quantity of live animals less the
value of byproducts.
Thus, the farm-retail spread is a measure
of the charges for all marketing, processing
and distribution activities that occur be-
tween the "farm gate" and consumer pur-
chase of the product at retail.
Spreads, or margins, for meat, then, in-
clude charges for such activities as trans-
porting animals to packing plants, slaughter-
ing animals and processing products, pack-
aging of product and shipping meat and
products to major consuming areas. Each
activity involves expenditures for labor,
energy, capital, taxes and depreciation of
fixed assets.
All such costs, plus profits.earned by firms,
are incl ed in the price spread or margin
repor by USDA. By the way, the price
sprea 'argives no Indication pf whether the
in ry is efficient or inefficient, or whether
capM for marketing, processing and distri-
tion are reasonable or excessive.
WHAT HAS HAPPENED 5&CE 1963?
Price spreads for beef and pork have wid-
ened substantially in the past 10 years, par-
ticularly since 1968, Between 1963 and 1968
the spread for beef hovered between 28 and
30 cents per pound. Then it Increased sharply
and persistently to 45 cents per pound in
1973-a jump of about 50 percent.
Margins for pork have followed similar
patterns but with greater year-to-year
changes-ranging between 29 and 32 cents
per pound In 1963-69, then widening to 38
cents per pound in 1973-an Increase of
about one-third.
Several factors contributed to the trend
toward wider margins for red meat. Most
important have been the sharp increases
in costs of labor and other services and sup-
plies required by marketing firms. Hourly
earnings of workers in meat packing and
processing are three-fourths higher than
earnings In 1963. In the food retailing sector
hourly wage earnings are about 80 percent
higher than In 1963.
Despite labor saving technology and in-
creased labor productivity total labor costs
have risen substantially and account for
about half of the farm-retail spread for beef
and pork,
Prices of containers, packaging, energy
and rail freight rates have undergone sim-
ilar dramatic increases, particularly since
1969.
In a very real sense, marketing margins
for meat are the result of the strong Infla-
tionary pressures in the American economy
since 1969.
In addition, the meat marketing system,
like other parts of the food system, now
provides additional services in the form of
further processing which requires relatively
large inputs of labor. Costs of providing
such services plus those for advertising, pro-
motion and convenience of store location,
exert pressure for. widening margins for
many foods, including red meat.
BEEF SPREAD SEGMENTS
Since 1963 more than 90 percent of the in-
crease In the farm-retail spread for beef
has occurred in' the carcass-retail segment
of the spread (Figure 1). This spread in-
cludes costs of activities such as carcass-
breaking, local delivery, and retail cutting,
packaging and selling.
The other segment, the farm-carcass
spread, includes approximate costs of mark-
eting, slaughtering and processing beef ani-
mals and transportation to consuming cen-
ters. Until the fourth quarter of 1973, when
this spread nearly doubled, the farm-car-
Cass spread had been remarkably stable
since 1963.
It should be noted that these spreads are
not synonomous with packer or retailer mar-
gins. The farm-carcass spread includes as-
sembly and transportation of live animals
to packing plants and meat to consuming
center in addition to costs of slaughter at the
packing plant. The carcass-retail spread in-
cludes wholesaling, local delivery costs, and
some fabricating activities as well as costs
of retailing.
Both packers and retailers do some break-
ing of carcasses but in the USDA price
spreads all such activities are accounted for
in the carcass-retail spread,
PORK SPREAD SEGMENTS
Changes in the farm-wholesale and whole-
sale-retail spreads for pork have shown
somewhat different" patterns from beef
spreads.
Since packers do much more processing of
pork than beef, the farm-wholesale spread
for pork is substantially wider and more
closely approximates packer margins than
does the farm-carcass spread for beef.
The farm-wholesale spread for pork in
1973 averaged 153 cents per pound, about
the same as in 1963. Again the major cause
of the increase In farm-retail margins was
centered in the wholesale-retail segment
where margins in 1973 averaged 62 percent
above 1963 and 26 percent above 1972.
PROFITS
Throughout much of the period since 1960.
profits as a percentage of stockholder equity
ranged between 10 and 13 percent for 15
major retail food chains as a group. As a
percentage of sales, profits ranged between
1.1 and 1.3 through most of the period. Profit
rates by both measures fell substantially in
1972 and 1973 and they were well below profit
rates for other Industry groups throughout
the period 1960-73. Only recently have retail-
ers' profits risen to their levels of the 1960's.
Meat packer profits were more unstable
but ran somewhat higher relative to sales
than those of food retailers,
Overall, profits in meat packing and food
retailing have not been excessive relative to
all manufacturing industries in the country.
RECENT CHANGES IN PRICE SPREADS
Meat price margins exploded late In the
third quarter of 1973. They rose to record
high levels in late winter and early spring
of 1974 while market prices for cattle and
hogs dropped sharply and losses mounted for
livestock feeders. Both livestock producers
and meat consumers vented their frustra-
tions against what they considered to be an
unresponsive, profiteering, meat marketing
system.
Farm-retail price spreads for beef peaked
in March 1974 at about 56 cents per pound,
dropped slightly in April and May and then
rebounded to 54 cents in June. Only in the
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S193198 CONGRESSIONAL RECORD-SENATE
final quarter of 1973 had the farm-retail beef
spread reached such lofty heights during the
past 10 years.
The situation was much the same for pork
margins, but with some differences in timing.
At the peak in May 1974 the farm-retail
margin totaled 54.5 cents per pound, well
above even the high levels of late 1973 and
early 1974.
Preliminary data for July signal a turn-
about. Market prices for Choice steers
strengthened by better than $6 per cwt over
June; hog prices in July rose nearly $13
above their June low. Retail prices of beef
in June were down significantly from early
year levels and they held nearly steady in
July, Preliminary data indicate the farm-
retail spread declined substantially in July
for both beef and pork.
To some extent the surge in margins in
late 1973 and early 1974 was caused by the
same set of factors that widened margins
since 1968. Inflation was at very high rates in
the fall of 1973 and the first half of 1974.
Between the third quarter of 1973 and the
second quarter of 1974, prices of some mar-
keting inputs rose sharply-energy up 48
percent; containers and packaging, 18 per-
cent; and services, 7 percent. In the first
quarter of 1974 hourly earnings of food
marketing employees average $3.85, a 7 per-
cent increase relative to the first quarter of
1973.
But inflation of prices ofinputs used by
marketing firms cannot alone explain the
surge in meat margins.
CEILINGS AND PROTITS
The imposition of price ceilings on meat
in March 1973 created serious disruptions
in the normal flow of livestock. Live animal
prices increased during the summer of 1973
when retail meat prices were frozen, which
pinched marketing margins in. the third
quarter.
When ceilings were removed in irate sum-
mer of 1973 pent-up cost increases passed
through the system to consumers. Marketing
firms attempted to recoup their losses or
improve upon relatively low earnings ex-
perienced earlier in the year.
In the first three quarters of 1973 profits
of 15 retail food chains ranged between 0.4
and 0.7 percent of sales-well below their
historical levels of 1.1 to 1.3 percent. But in
the fourth quarter of 1973 retailers' profit
rates rose to 1.0 percent of sales. Preliminary
data for 10 retail chains indicate that profit
rates averaged 0.9 percent of sales in the
first two quarters of 1974.
Meatpacker profits also rose in the fourth
quarter of 1973 to 1.5 percent from about
1.0 percent of sales in the first three quar-
ters of that year. Preliminary data suggest
packers' profits ranged between 1.1 and 1.4
percent in the first two quarters of 1973
(Table 2) .
Although packers and retailers improved
their profit positions in sate 1973 and early
1974 relative to their earlier positions in
1973, those higher rates were not out of
line with longer term rates in the industry.
Profit rates, of course, vary substantially
from quarter to quarter and among retail
food firms. -For example, returns for 15 re-
tail food firms in the first quarter of 1974
ranged between a loss of 4.1 to a profit of
2.4 percent of sales. Among the same 15
firms eight had increased profit rates, six
had reduced profit =rates and one firm's rate
was unchanged between the fourth quarter
of 1973 and the first quarter of 1974.
But the foregoing profit data are for firms
or groups of firms. Since many have multiple
product lines or departments, a firm's profit
rates do not necessarily indicate profit rates
of individual product lines or departments.
In 'any given short period of time, one de-
partment may incur losses while others re-
turn profits. Pricing policies of retail food
chains focus upon returning profits to the
firm or store as a whole and not necessarily
upon profits in each department at all times.
When price spreads increase sharply in a
short time span---as in the case of beef and
pork in late ig'73 and early 1974--we can
expect that it is more profi bble to handle
those products. Prices of most Inputs used
in marketing-therefore, most cost of the
department or firm--generally change more
evenly.
We don't have data on tho profit rates for
departments of retail food stores. However,
the changes in meat price spreads and gen-
eral marketing costs suggests that the pro-
fits for retailing meat increased sharply
during the first half of 1914, Based on this
circumstantial evidence, it appears that the
recent increase in meat price spreads was
caused partially by food retailers changing
their pricing policies to increase profits in
their meat departments. On the other hand,
higher profits for meat m oy have been off-
set partially by lower profits in other product
lines and profits for the entire firm may
have risen less steeply than in the meat
department.
Based upon the preltrainary data now
available, it appears that the major factors
contributing to wide spreads were inflation
coupled.with seriously distorted Market re-
lationships and higher profit rates in meat
processing and retailing.
IMPROVING PERFORMANCE IN MEAT MARKETING
One way to dampen increases in price
spreads is to improve efficiency and produc-
tivity in the marketing system. In a com-
petitive industry such improvements tend
to be passed backward to producers in the
form of higher prices, or forward to con-
sumers in the form of lower retail prices,
or in some combination of the two.
An efficient, competitive industry also will
reflect promptly and accurately the changes
in supply, demand and prices as they occur.
Earlier research and suc)i reports as those of
the National commission on Productivity
and the National Commission on Food Mar-
keting point to important opportunities for
improved performance in meat marketing.
Several examples follow.
1. Box beef and can-:rat meat cutting
A further shift to box beef and central
meat cutting would lower marketing costs.
Box beef is beef that has been out up into
retail cuts and packaged before being shipped
to the retailer. When packers convert beef
carcasses to box beef there are at least three
immediate cost reductions:
(1) Assembly line meat cutting is more
efficient in output per loan hour;
(2) Wage rates per hour are generally
lower in packing plants than in retail stores;
and
(3) Fat and bone trimmed off reduce the
total weight to be trtuisported to the retail
marketing area. Also, the larger concentra-
tion of fat and bone trimming allows alter-
native use of these products at higher value.
2. Fro :en beef
Producing more frozen beef would extend
the economies of boar beef and central cut-
ting. This would remove almost all pack-
aging from the retail store, extend shelf life,
reduce the number of deliveries to stores, and
almost completely eliminate shrink and spoil-
age losses.
3. Transportation
Meat transportation costs can be reduced
in several ways. Improved scheduling would
decrease transportation costs. Box beef ship-
ments would decrease weight and transpor-
tation costs. Backhauls could be Increased
to more fully utili::e capacity. Meat trans-
portation costs could be reduced by allow-
ing trucks to pull ;wo trailers on all inter-
state highways, The number of deliveries
required per week at the retail level could
be reduced.
October 17, 1974
4. Labor contract restrictions .
Labor-management obstacles In some areas
have slowed the move to box beef and cen-
tralized cutting. This includes the retail
meat cutters' fear that there would be fewer
jobs if meat cutting were relocated from
the store to a central cutting warehouse in
the same city. In addition, the union fears
more jgbs would be lost in consumption
areas than would be gained at the packer-
processor level If we moved to box beef,
Some labor contracts require a minimurn
number of personnel per retail outlet, and
the contracts so narrowly define tasks that
efficiency cannot be gained by flexible use
of labor. Productivity in transporting meat
is hindered by labor contract restrictions crn
loading and unloading trucks and contract
terms which limit number of stops and the
number of drivers.
We estimate that a minimum of five cents
per retail pound could be saved from com-
plete adoption of box beef and central cut-
ting, conversion to frozen beef, elimination
of trucks returning empty, and changes iii
labor-management obstacles.
5. Grade standards for beef
Uniform grade standards-universally 'un-
derstood and accepted-contribute to etti.-
cient marketing and lower marketing costs
Most of the beef sold at retail in recent years,
has been U.S. Choice. Recently there has
been an increase in the percentage of Good
grade beef produced, most of which has been
sold ungraded since the use of Federal grades
is optional. Federal grade standards for beef
have undergone major revisions through the
years--changes were made in 1939, 1941., 1949,
1950, 1956, 1965 and 1973.
To perform effectively as a language of the
trade, grades must reflect characteristics
which are significant in the marketplace.
Existing. quality grades for beef (Prime,
Choice, Good, etc.) are designed primarily
to measure eating quality-tenderness, juici-
ness, flavor. Yield grades (i through 15) indi-
cate the yield of closely trimmed retail cuts
that can be derived from carcasses or whole-
sale cuts, and they directly reflect the de-
gree of muscling and quantity of trinlmable
fat.
The USDA believes that grades should be
revised as marketing conditions change. Re-
cently, the Department has received diver-
gent recommendations for further changes
in the beef grade standards from five major
segments of the cattle and beef industry and
from consumer interest groups. 'Proposals
concern the relative emphasis on marbling
and maturity in determining quality grades.
USDA standardization specialists are eval-
usting these proposals and other alterna-
tives. They are developing information to
provide additional precision in yield grades.
Real potential exists for reducing excess fat
on beef through greater use of an accurate
yield grading system.
6. USDA price spread measures
Although one large retail chain measures
price spreads for beef and pork sold in its
stores in seven cities. USDA is the only pub-
lic source of such data on an industrywide
basis. USDA price spread data have proven
generally reliarale indicators of both short-
and longer-run changes in meat price
spreads. USDA price spread data have served
well as a basis for monitoring overall pricing
performance. If kept abreast of changing
practices in the sector those data should
continue to serve well the public interest in
a responsive and efficient marketing system.
7. Communication among producers, con-
sumers, and marketing firms
Despite a wealth of information, there is a
serious lack of public understanding con-
cerning the organization and performance
of the food industry. A classic example is
the recent misunderstanding concerning
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Threat to U.S. Sierets lte
Ford Wtoe'Giformation Bill
By Jules Witcover
Washington post Staff-writer
pZcir1 nt Ford, ia, his third
upto this week and the eighth
of-his young administration,
gr,pste 1974 freedom of in-
formation bill. He called it
">nconstitutional and unwork-
blle_' and a threat to Ameri-
can "militaLyoor inte e$ce
s~eetc and dinlomat,_r-gla-
ions."
sions of the bill would enable
the courts to declassify secret
documents without expertise
in the areas concerned, under-
mining, national security, and
ould e cessively burden the
FJI an _Qther__agencies re,
q.irea to open Files to
errand f? om rep s and pub-
DATE ! O 00 14" PAGE
the Diu, nuuicuia~c,y -- 1
the veto. "In the early days of 11
his administration, the Presi-
dent promised an open gov
ernment," he said. "But today
he breaks that promise in
yielding to the excessive de-
sire for secrecy that character-
ized the most insidious aspects
of the Nixon administration."
The President, in. his veto
message, said he was prepared
See VETO, A2, Col. 7
Sen. Edwar4 M. Kennedy
(D-Mass.), a major sponsor of
VETO, From Al
to accept a provision that
would enable the cavrts-,!U
incpec elaas hed-...docwnents
an revie~ac, the- ju tifi tioti
fnrr their. C1asaii atiQfl.!.,.~ut
-the courta_._should
nmt_.bejsxced-..to....malce._What
amou_ the ;nital classi-
Kati on - e; sinnIT in..--SetLSitive
I have to upnuiu Lim ua#oo=== -
informa-
tion "' there is a as en ties nno no find by both the
tained if FBI and other agency
investigatory files had to be
made public on request unless
the government could prove
specifically that disclosure
would be harmful to the na-
tional interest.,
The procedure would im-
pose an impossible burden on
the agencies, he said, as would
a 1'0-day time limit for compli-
ance and a 20-day limit for ap-
peals stipulated in the bill.
Mr. Ford said he will submit
language of his own to Con-
gress shortly.
tentle2is'-^t'on- .sent ssteod _ lzv
the
3yhite use Oct. 7 was de-
si ned to beef up the Freedom
nformation~c ~9
In a itioon to ie provi-
sions singled out for criticism
the bby Mr. Ford yesterday,
would have cut the time limit
for agency responses-to re-
quests for information, set ad-
ministrative penalties for arbi-
trary refusal, and permitted
recovery of legal fees by suc-
cessful petitioners.
The bill, aimed at cutting
bureaucratic delay in produc-
ing sought information, at re-
ducing the cost of bringing
? It to force disclosure and ex-
"As the legislation n o w
stands, a determination by the
Secretary of Defense that dis-
closure of a document would
endanger our national securi-
ty would, even though reason-
able, have to be overturned by
a district judge who. thought
the plaintiff's position just as
reasonable. Sucha nrov lion
'wgpld violate, _.e, n stit onal
*srineinlec_-._,-ud-_..aiv~Q less
wgight before_ the courts to
a executive determination in-
.>n v,~____g the n~oc amour
ost~vital national defense in.
tgrests than is acc?r~ed deter-
inationS inyo vlrlr utine
re~-tters."
Mr. Ford proposed instead
that the courts in -reviewing
the classification of any docu-
r they
d complex t~acru eaas r where
bar-
basis to support1t. , .
rest e " t also said con- FBI and the National Security
r se oBQltM/t$931 75B00380R000700010005-3
Approved Fd,