FREEDOM OF INFORMATION BILLS (H.R. 5012 AND S. 1160)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01676R000500110007-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 12, 2016
• Document Release Date: May 30, 2002
• Sequence Number: 7
• Content Type: MF

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EMORA DUM FOR: ]Deputy Director of Central Intelligence
SUBJECT:
Bole (H. R. $012 and S. 1160)
Ey.
2. ?eepresentati rer John E. Moss (D., Calif.) introduced H. R. 501.
oe 17 .February 1965 to amend the so-called "housekeeping" statute (5 U. S. C.
22). Nine members joined Mr. Moss and introduced s rar ar x .easurees.
The bills were referred to the Government Operations Committee and will
be considered by the Information Subcommittee, chaired by Mr. Moss. On
the same day, Senator l downward V. Long (D., Mo.), along with 17 co-sponsors,
introduced S. 1160 to amend the "public information" section of the Admini-
of 1946 (5 U. S. C. 1002). This bill was referred to
ciary Committee and will be considered by the Administrative
Practice and Procedure Subcommittee, chaired by Senator Long.
E round H. R. 5012.
3. Over the years, agency heads have successfully contended that
they possess what amounts to a constitutional privilege and discretion to
determine what papers and infer Ation should be disclosed in the public
interest. While this privilege does not extend to subordinates. regulations
limiting the subordinates' authority to disclose have been issued to assure
that the department heads' privilege is not undermined. This also protects
the subordinate from being forced to make disclosures under subpoena.
4. Up to 1958, the most frequently cited authority for issuing such
regulations was the so-called "housekeeping" statute. " This statute was
passed during President Washbeigton's administration and granted departm nt
heads the authority to issue regulations for the administration of their depart-
ments, including regulations dealing with "custody, use and preservation of...
records, papers.. appertaining" to the department. Independent agencies
construed that this authority applied to them also.
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5. Congress, strongly backed by the press, felt that this purely
"housekeeping" statute was being incorrectly cited as an authority to
withhold information. Therefore, in 1958, the statute was amended to
prevent it from being used as a basis for issuing regulations which
"authorize withhold!Bg information from the public or limiting the
availability of records to the public " This amendment was pressed
by its sponsors (Congressman Moss and his Subcommittee staff) as a
first small step in increasing the amount of governmental information
in the public domain. It was recognized only as a first step because:
(a) it created no eenforcible right in the public to obtain
Government information;
(b) it in no way infringed upon the 78 statutory authorities
which specifically authorized information to be withheld at that
time; and
(c) it did not deal with the question of the inherent consti-
tutional privilege of agency heads to withhold information in
thetepublic interest. "
The successful passage of the 1958 amendment was the culmination of a
lengthy effort and built up a national reputation for Congressman Moss
and his $ubcomn- ittee as protectors of the public and the press against
"recalcitrant bureaucracy. "
6. lour se of H. R. 5012.
(a) As previously noted, the 1958 amendment did not promulgate
a positive right for the public to obtain information. H. R. 5022 is an
attempt to remedy this situation and is a logical follow up to the 1958
amendment. The three key elements of H. R. S012 are:
(1) to vest the public with a right to "public" information;
(2) to statutorily delineate what constitutes "public"
information; and
(3) to provide legal redress for a complainant from whore=
such records are wrongfully withheld.
(b) This purpose is accomplished in the following ways: First,
it lays at rest any questions as to what is the positive right of the public
to records and information, by providing that ever Money shall make
all its records promptly available to any person. Second, it backs up
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this right by providing that a complainant may go to district cour
told. The burden is placed on the agency to sustain its "withholding'
the pro uction of ant' agency records or information improperly
. provisions are wade for expediting the court action. Non-
caenrspliance with a court order is punishable by contempt. Third, it
constitutes "public Information" as all matters not speci-
fically excepted. By so doing, it authorizes eight exceptions. The
matters excepted are those that are:
specifically required by li xee uttve order to be het
set of the national defense or foreign policy;
4 solely to the internal pe
*Rey;
(3) specifically exempted f'r,
obtained from the public and privileged
closure by statute,
(4) trade secrets and conmiercial or fin;
(5) Interagency or infra-aageency mesrr.ora
sling solely with matters of law or policy;
di*clossure of whie`h would grass
invasion of personal privacy;
(6) personnel and
p poses except to
party; aad
filar matters, the
l?' unwarranted
(7) Investigatory files compiled for law enforcement
rrallsble by law to a private
d in or related to eination, operating,
to prepared by, on behalf of, or for the use of
any agency responsible for the regulation or supervision of
ial institution, .
slurs that non-disclosure by an agency shall not be based on
y other than the eight exceptions, Section Z of the bill repeals
s inconsistent with the amendment.
sac
S. 1160.
7. Up to the time of the passage of the Administrative Procedure
Act of 1946 (5 U.S.C. 1002), the only a ner*l statute under which agencies
could publish regulations dealing with the disclosure of information was
the "housekeeepitag" statute referred to earlier. With the enactment of
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Section 3 of the Administrative Procedure Act, additional General rules
on disclosure and non.-disclosure were statutorily prescribed.
S. Cove ee. The Administrative Procedure Act of 1946 lays
rules of practice and procedure for the quasi-legislative
and quasi-judicial functions of agencies. Regulating agencies is its
primary concern, however, it is a statute of general applicability and
no agency is granted exception from its scope. To grant public access
to the decision-making process and policies being followed in the field
of administrative law, the Act contains a public information sectil
(Section 3) teeing certain disclosures. These disclosures concern
an agency's central and field organization., its rules, opinions an
order, and its records.
Exclusion&. The Act provides two general exclusions t
above public information requirements. The first has to do with any
function of the United States requiring secrecy In the public interest,
and the second with any matter relating solely to the internal management
of an agency. Further exemptions to the disclosure rules are granted
to opinions and orders if for good causee the are to be held confidoutia1.
and to agency "cords which should be held confi =for ood cause
found with a further requirement that the interested party must be
properly and directly concerned.
nator Long and other proponents for amending the public
ate section of the Administrative Procedure Act, feel that the
erioualy deficient in the following respects:
(a) There to no delimitation on watt the phrase "In the
public interest" means. When exclusions are based on secrecy,
there is no authority for reviewi a :Fe eerral official's inter-
prrotatte of what that phrase r means.
(b) The exemption granted In the case of opinions or
orders because they are "required for good cause to be held
confidential" is an almost unlimited out for officials who do
not want to make a disclosure.
(c) The exemption granted in the case of agency records
provide* a double-barreled loophole because such records can
be hold confidential "for good cause found"' and the records can
only be requested by persons "properly and directly concerned. "
(d) There is no remedy in case of wrongful withholding of
information from the public by Government officials.
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de ctenctees is underscored by the Senate's unanin ous passage in
the 9fth Congress of a similar bill by Senator Long. Also, the Moss
That there is widespread agreement in the net
mittse In the House is presently accuxnulat information in
onnection with the public information section of the Act.
made
the Administrative Procedure Act by S. 1160 are similar to those
lilt y t
in court, and eexe;
eight CerarWI-,
pe of the
are exempted by H. R.
which
-tion or
pecifica21 it
d
public.
that of the public to obtain Government
sorted to assure that the amendment we
ncies, provides an aggrieved citizen a remedy
Ca ress's inherent right to obtain Information
it is not viewed as charging the right as it now oxi
mr concerning the r. jht of the
Tom, there rem ain tndi eturb d the provisions of the National Security
Act of 1947 and the Central lhtelligeenca Agency Act of 1949, holding the
"respoa eiblet for proteecti iea eeilfge nce sources and methods from
unauthorized disclosure" and exempting the Agency from the "provisions
Agenc r#s present authority
total policy of mm-disclosure. A
;e rprete
;rasa, as
is superior to
The provision has
, but
Leatr~ly exempted from the provisions of the bill by the enceeptio.
_ spelled out in the bill. Sy far the most important exception deals with
matters that are "speeaclfleally exempted from disclosure by statute.
disclosure at the organization,
names, official titles... to (See+ctie s 102 (ei) (3) and (6), respectively).
As a further buffer, Executive order 10501 authorizes the Agency to
classify information and material and prohibits further dissemination
without the approval of the originating agency or department. The bill
matters that are 'Papecifically required by Executive order to be
kept secret in the interest of the national defense or foreign policy.
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. 6012 in the et useele.eeping"' statute. S. 1160 is of general
y diminish
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14. Effect on enc 150. Since the Ageenc
quasi-judicial or legislative authority, as sucho the Agency does not
fall within the intended and practical scope of the Act. The Agency's
dealings with the public in a rule-making or adjudtcatory capacity are
limited to its own employee* and its procurement activities. With
respect to employees, the bill specifically excludes "internal Persomel
melees and praextic s" mad the Agency has specific statutory authority for
.-disclosure in this area. With respect to procurement, the bill n akea
babes in disclosures relating to the Agency's procurement activities.
15. Ge nel ton. The passage of H. R. 5012 aid S. ll60 woulc
not in any torus 5 way, affect the Agency's authority to maintain its
present non?disclosuree policy.
25X1
Legislative Counsel
Distribution:
Orig and 1 - DDCI
X - ER
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