ADMINISTRATION OF THE FREEDOM OF INFORMATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP74B00415R000200100008-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 94
• Document Creation Date: December 16, 2016
• Document Release Date: July 6, 2005
• Sequence Number: 8
• Publication Date: September 20, 1972
• Content Type: REPORT

Approved For Release 2005/07/13: CIA-RDP74 0041 ~Qp 020 00008-7
7i
Union Calendar ON
ADMINISTRATION OF THE FREEDOM OF
INFORMATION ACT
TWENTY-FIRST REPORT
COMMITTEE ON GOVERNMENT
OPERATIONS
SEPTEMBER 20, 1972.-Committed to the Committee of the Whole House
on the State of the Union and ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
83-006 0 WASHINGTON : 1972
*(Star Print)
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
1 . >41 I I'I" I'1?:1: (IN GOVERNMENT ()1'I;R.A'I'i(TNs
(?II1;'1' IN)LIFIELD. 4';,Itfornia. ('hnirrn",n
1 . 1 1 ' 6 M O uKS. "Il?cas
I II. F'u["NT.AIV North I'it ro11iin
1:(11(1:1{ I- K. .T( )NATab, tnn
I!ri1"A It It ]inrylaud
.Tu1IN 1; A14155" 4':sIifnrnbt
"'11: It. 1'A St'I:L1? }?'1?rl i t
IiI:NHY S. Rf?['SS. R"1s,?nu~fu
.((1I[N S \T4(NAGAN, ('uaa,,11,11
'I'ultli EE'r IT. ALVCDON.AI,0, ]I u,.,,u?hns,?11.
R"II,i,I.A]I S. 11O((R[IS:AO. 1'onnsvivnnfa
4 I NF:LI['S I.. G.AI,LAGIIF.II. saw Jrrs,?r
VYAI. .1. R:"FALL. 1Ttsenurl
!BENJAMIN S R(1SENTIIA1, New Y;,rk
.IIM R'RIGII'i'. '1',?\na
1`F:RNAND .1. ST .};It\1115, 1(11 1,? ICItLllli
.14.111N I. Cl'I,CER Iuw,
I?'LOYII Y. III('ES. R'a.hi11gt011
4; F;O1U;F: W. CDT.I.INS, Illinois
I''N I`( QUA, 1?Rurida
.1(1TIN 4'INY"Iat S..ln.. Mirhlg;tn
IB11.1. ALEXANDER, Arkansas
It KLI.A S All%I'G New York
FL(1RI;N('1; P. I (WYER, New Jersev
PRANK IIl(((TI(N. New York
.1DIIN N. 1?:RLI:5110145, [Illaols
.(UIIN W. Yti Y.11LI:i( N,A York
CLARENCE I BROWN, (lI
(;T"Y" YANIIER JAG'I'. AIL,hli;ul
GILR}.:1t'I' (;1'I(I: Maryland
PAIL N. 1Ir1'1.OSKI:Y. .It{.. 4 tIlf>raht
.If(IN II. El I TE AN.". .la. .Vahnana
SAM STEIGEI(. Arizona
.ARRY RR(1IVN. ,1I, hltran
ILAItRY M. (;OLOYV'A'('ER, .(R-. ('alif,,rnla
('II.ARLES 'PHONE, N,?braska
it MIIN, HEINZ 111,
RICHARD W. \I.Af.LARY, Y.?rntout
II1,341S (IT ItuIA4-a Stuff Director
I't.NE(t YY'. IIENIIE(tBUY. (;ertrral Cnua , l
MILES 4. Rns[sta, Canxr(-.I,intini,trator
.1. P. t 'ARL.SO N. .IIinoritU Caanarl
1411 LIAM It ( 1ENIIAV Fit. AfinaritU I'rufraiiona( . t ii
WILLIAM S. MOORIIEAD_ 1'ena,vlvanlst, Chairnu(rt
.IO[iN E. MOS5, California JOAN N. I:It1 ENI(.ORN, Illimd~
'1'ORIIER'1' I[. MA('DONALD, ATnssaritn. etts FRANK HO RTO N, Nrw York
JIA1 WRIGHT, T..cas (AT"I, N. M,'('l.OSKEY'. .Tu.. Californi(t
J(IIIN ('ONYEItS, .la-, Mlrhigaa GII,ISF:It'I' G["DE. Maryland
IIILI. ALEXANDER. Arkin=as
(`((E l' 111(I.II'II:LU. California PL)EEN('E I. I)WYER, N,-w Jersey
1A"It. (. Lt tit 1;. l II n.[.I t'9. Stab Dirrct.,
NoRM(.(N G. COi.ISIi. J>rpul,) ,staff J)irrCt Or"
IIuun.n F. \VIIITTIS ,T,,N, .Staff Cnn+,utt,)nt
\I.titTHA M. 110TY, Clerk
. A I.M f:nA .1. I (A L 1:5, t rCt,)r-1)
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
LETTER OF TRANSMITTAL
HOUSE OF REPRESENTATIVES,
Washington, D.C., September 20, 1972.
Hon. CARL ALBERT,
Speaker of the House of Representatives,
Washington, D.C.
DEAR MR. SPEAKER: By direction of the Committee on Government
Operations, I submit herewith the committee's twenty-first report to
the 92d Congress. The committee's report is based on a study made by
its Foreign Operations and Government Information Subcommittee.
CHET HOLIFIELD, Chairman.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
CONTENTS
Page
1. Background------------------------------------------------- 1
1958 Amendment to 1789 "housekeeping" statute------------ 2
Freedom of Information Act_______________________________ 2
Withholding of information by Government----------------- 3
Continuous oversight_____________________________________ 3
IT. Introduction, finding, and conclusions_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 5
Freedom of information not a partisan. matter -------------- 6
Comprehensive hearings on broad Government information
policies----------------------------------------------- 7
Series of reports based on hearings------------------------- 7
Major problem areas------------------------------------- 8
Findings and conclusions__________________________________ 8
III. Freedom of Information regulations and administrative requirements- 12
Legally questionable regulations--------------------------- 13
Lack of top-level consideration of Freedom of Information
problems---------------------------------------------- 17
Recordkeeping--------------------------------------- 17
Summary----------------------------------------------- 19
IV. Government roadblocks preventing effective use of Freedom of
Information Act------------------------------------------- 20
The "Renting" of the Pentagon___________________________ 20
"Catch-22" at the Agriculture Department ------------------ 21
Secrecy through delay and obfuscation_____________________ 22
Nashville Tennessean case_________________________________ 23
The Longs and the Internal Revenue Service----------------- 23
USDA hides meat inspection reports _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 24
Federal Communications Commission's "Blacklist" _ _ _ _ _ _ _ _ _ _ 24
Philadelphia Inquirer case_________________________________ 25
Freedom of information suit sometimes brings action --------- 26
Health hazards in industrial plants_________________________ 26
Consumers' stake in freedom of information---------------- 28
Affirmative action plan information________________________ 30
Information on employment of women in government-------- 32
Broad range of Government activities covered---------------- 33
Remedies suggested by witnesses to limit governmental road-
blocks ------------------------------------------------- 37
Summary----------------------------------------------- 42
V. Public information experts and the Freedom of Information Act--- 43
Decentralization problem in USDA_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 43
Labor Department information practices-------------------- 44
Interior Department PTO role_____________________________ 45
Federal Communications Commission ignores PIO----------- 45
Selective Service System ignores PIO_______________________ 46
Contrasting view of PIO role______________________________ 46
Health, Education, and Welfare involvement of PIO--------- 47
Need for improved public information capability------------- 48
Public information role requires upgrading_ _ _ _ _ _ _ 49
A question of legitimacy-Sec. 3107, title 5, U.S.C_ _ _ _ _ _ _ _ _ _ _ 50
VI. The high cost of information_______________________53
User charges------------- ------ ---- - 53
Administrative Conference-Recommendation No. 24 -------- 55
Fee problems under Freedom of Information Act----- _ _ _ _ _ _ _ _ 58
VII. Public information versus publicity_____________________60
The image of EPA--------------------------------------- 60
The Interior Department's publicity program _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 61
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1,4: CIA-RDP74B00415R000200100008-7
VIII. The Department of Justice's role in administration of the Freedom
Page
of Information Act-----------------------------------------
64
Justice Department's triple role---- ------------------------
65
Work of the Freedom of Information Committee-------------
66
IX. Litigation under the Freedom of Information Act-1967-1972-----
70
The high cost of obtaining relief---------------------------
73
Delay in filing responsive pleadings-------------------------
74
Other problems involving court interpretations---------------
76
Summary-----------------------------------------------
77
X. Administrative, and legislative objectives to strengthen and improve
the operation of the Freedom of Information Act---------------
78
Administrative recommendations---------------------------
81
Legislative objectives--------------------------------- ---
82
Recommendations to other committees---------------------
84
Additional views of lion. John E. Moss------------------------------
86
Additional views of lion. Bella S. Abzug-----------------------------
87
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1 : QlA-R P 4B 041 00 0008-7
union a en ar o.
92D CONGRESS t HOUSE OF REPRESENTATIVES REPORT
92d Session J ( No. 92-1419
ADMINISTRATION OF THE FREEDOM OF INFORMATION
ACT
SEPTEMBER 20, 1972.-Committed to the Committee of the Whole house on the
State of the Union, and ordered to be printed
Mr. HOLIFIELD, from the Committee on Government Operations,
submitted the following
TWENTY-FIRST REPORT
TOGETHER WITH
ADDITIONAL VIEWS
BASED ON A STUDY BY THE FOREIGN OPERATIONS AND GOVERNMENT
INFORMATION SUBCOMMITTEE
On September 14, 1972, the Committee on Government Operations
approved and adopted a report entitled "Administration of the Freedom
of Information Act." The chairman was directed to transmit a copy to
the Speaker of the House.
I. BACKGROUND
The Freedom of Information Act (FOI Act) was signed into law by
President Lyndon B. Johnson on July 4, 1966, as Public Law 89-487.1
It went into effect on July 4, 1967.
In his bill-signing statement President Johnson said:
This legislation springs from one of our most essential
principles: a democracy works best when the people have all
the information that the security of the Nation permits. No
one should be able to pull curtains of secrecy around deci-
sions which can be revealed without injury to the public
interest. * * * I signed this measure with a deep sense of
pride that the United States is an open society in which the
people's right to know is cherished and guarded.
The new law followed more than a decade of effort by the For-
eign Operations and Government Information Subcommittee and its
predecessor, the Special Subcommittee on Government Information,
1 As result of Public Law 90-23, approved June 5, 1967, Public Law 89-487 was codified
as 5 U.S.C. 552.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13: CIA-RDP74B00415R000200100008-7
established on June 9, 1955, under the chairmanship of Representa-
tive John E. Moss of California. Similar efforts were focused in the
Senate Subcommittee on Administrative Practice and Procedure, under
the chairmanship of Senator Edward V. Long of Missouri, and its
parent Committee on the Judiciary. Volumes of hearings, investi-
gations, and studies of information policies of the Federal Government
over this 11-year period produced many reports, committee prints,
and analyses of the withholding of information by the Executive
bureaucracy .2
1958 Amendment to 1789 "Housekeeping" Statute
In 1958, near the end of the 85th Congress, the House and Senate
enacted, without a dissenting vote, the. first statute devoted solely to
freedom of information. The MYloss bill (H.R. 2767) was a one sentence
amendment to the 1789 "housekeeping" law which gave Federal
agencies the authority to regulate the business of the agencies and to
set up filing systems and keep records. The language of the amendment
added to section 22 of title 5 of the United States Code was:'
This section does not authorize withholding information
from the public or limiting the availability of records to the
public.
Yet hearings before the subcommittee in 1972 indicate that some
agencies are still rel yin on the original 1789 "housekeepingg" statute
as authority to withhold certain types of information from the public,
despite the enactment of Public Law 85-619 fourteen years ago. It is
expected that this subject rvil.l be dealt with in a subsequent report. The
subcommittee's bearings, parts 4, 5, and 6, entitled "U.S. Government
Information Policies and Practices-Administration and Operation of
the Freedom of Information Act," are hereinafter referred to as
"hearings."
Freedom of Information Act
The Freedom of Information Act was enacted as an amendment of
section 3 of the Administrative Procedure Act of 1946 and emerged
from the functional inadequacy of the prior section 3, which contained
the first general statutory provision for public disclosure of executive
branch rules, opinions, and orders, and public records. Some of its
provisions, however, were vague and contained disabling loopholes
which made the section as much it basis for withholding information
as one for disclosing. Section 3 as originally enacted was the target of
many legislative attempts to close the loopholes and make the language
more specific, but all failed of final approval until the 1966 amendment.
The Freedom of Information Act was milestone legislation that re-
versed long-standing Government information policies and customs.'
Previously, most agencies operated on the basis of the original r~o-
visions of section 3 of the Administrative Procedure Act of 1946 which
stated that unless otherwise required by statute, "matters of official
record shall in accordance with published rule be made available to
' Surh documents are too numerous to list, but Me copies are in the subcommittee's office. An Index and
Bibliography of hearings. reports, prints and studies was published in January 1964 as a Committee Print
entitled "Availability of Information From Federal Departments and Agencies."
r Public Law 85-819. The 1958 amendment to the 1799 "housekeeping" law has been subsequently
codified as 5 U.S.C. 301.
r For a legislative history of the FOr Act, prepared by the American Law Division, Library of Congress,
see Hearings, pt. 4, pp. 126'7-1378.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
persons properly and directly concerned except information held con-
fidential for good cause found." Moreover, the original section 3 con-
tained a blanket exclusion from its applicability of any function of the
United States requiring secrecy in the "public interest" and "any
matter relating solely to the internal management of an agency."
The Freedom of Information Act replaced this general language
relating to secrecy, indicating that Congress, in enacting the act, has
adopted a policy that "any person" should have clear access to identi-
fiable agency records without having to state a reason for wanting the
information and that the burden of proving withholding to be necessary
is placed on the Federal agency.
Withholding of Information by Government
Withholding of information by government under the act is per-
missive, not mandatory, and must be justified on the basis of one of
the specific nine exemptions permitted in the act. These relate to
matters that are 5-
(1) Specifically required by Executive order to be kept secret
in the interest of the national defense or foreign policy;
(2) Related solely to the internal personnel rules and practices
of an agency;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of
personal privacy;
(7) Investigatory files compiled for law enforcement purposes
except to the extent available by law to a party other than an
agency-
(8) contained in or related to examination, operating, or
condition report prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, includ-
ing maps, concerning wells.
The act makes it clear in section 552(c) that the exemptions have
absolutely no effect upon congressional access to information:
This section does not authorize withholding of information
or limit the availability of records to the public, except as
specifically stated in this section. This section is not authority
to withhold information from Congress.
Continuous Oversight
General oversight into the administration of the Freedom of Infor-
mation Act has been exercised by the Foreign Operations and Govern-
ment Information Subcommittee and the Senate Subcommittee on
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
4
Administrative Practice and Procedure since the act took effect on
July 4, 1967. The House subcommittee has provided informal assist-
ance service in hundreds of cases involving the act that have been re-
ferred by Members of Congress and their staffs or called to the
subcommittee's attention by newsmen, radio-television broadcasters,
researchers, attorneys, historians and scholars, and by individual
citizens. It has provided information about the act and informal
suggestions involving the procedural handling of FOI cases. The
hearings undertaken by the subcommittee in March 1972 are the
first in-depth review of the extent to which executive departments and
agencies have complied with the law and the implementing guidelines
contained in the Attorney General's Memorandum.'
See "The Freedom of Information Act (10 Months Review)," Committee Print, May 1968, published
by the Administrative Practice and Procedure Subcommittee, Senate Judiciary Committee. Also see
Freedom of Information Act (Compilation and Analysis of Departmental Regulations Implementing 6,
U.S.C. M2)," Committer Print, November 1988, published by House Government Operations Committee.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
II. INTRODUCTION, FINDINGS, AND CONCLUSIONS
Our concern in this report and those which will follow is the pro-
tection, preservation and enlargement of the American people's
"ri ht to know".
The overall guidance to executive agencies for their administration
of the Freedom of Information Act was clearly stated by Attorney
General Ramsey Clark in the- foreword to his memorandum of
June 1967:7
If government is to be truly of, by, and for the people, the
people must know in detail the activities of government.
Nothing so diminishes democracy as secrecy. Self-govern-
ment, the maximum participation of the citizenry in affairs
of state, is meaningful only with an informed public. How
can we govern ourselves if we know not how we govern?
Never was it more important than in our times of mass
society, when government affects each individual in so
many ways, that the right of the people to know the actions
of their government be secure.
Beginning July 4, a most appropriate day, every executive
agency, by direction of the Congress, shall meet in spirit as
well as practice the obligations of the Public Information
Act of 1966. President Johnson has instructed every official
of the executive branch to cooperate fully in achieving the
public's right to know.
Public Law 89-487 is the product of prolonged deliberation.
It reflects the balancing ofdcompeting principles within our
democratic order. It is not a more recodification of existing
practices in records management and in providing individual
access to Government documents. Nor is it a mere statement
of objectives or an expression of intent.
Rather this statute imposes on the executive branch an
affirmative obligation to adopt new standards and practices
for publication and availability of information. It leaves no
doubt that disclosure is a transcendent goal, yielding only
to such compelling considerations as those provided for in
the exemptions of the act.
This memorandum is intended to assist every agency to
fulfill this obligation, and to develop common and construc-
tive methods of implementation.
No review of an area as diverse and intricate as this one
can anticipate all possible points of strain or difficulty. This
is particularly true when vital and deeply held commitments
7 "Attorney General's Memorandum on the Public Information Section of the Administrative Procedure
Act," U.S. Department of Justice, June 1967 pp. iti-iv. The full text of the memorandum, which is now
out of print, is contained in pt. 4 of the hoarings, pp. 1079-1131.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/11: CIA-RDP74B00415R000200100008-7
in our democratic system, such as privacy and the right to
know, inevitably impinge one against another. Law is not
wholly self-explanatory or self-executing. Its efficacy is
heavily dependent on the sound judgment and faithful
execution of those who direct and administer our agencies
of Government.
It is the President's conviction, shared by those who
participated in its formulation and passage, that this act is
not an unreasonable encumbrance. If intelligent and purpose-
ful action is taken, it can serve the highest ideals of a free
society as well as the goals of a well-administered government.
This law was initiated by Congress and signed by the
President with several key concerns:
That disclosure be the general rule, not the exception;
That all individuals have equal rights of access;
That the burden be on the Government to justify the
withholding of a document, not on the person who requests it;
That individuals improperly denied access to documents
have a right to seek injunctive relief in the courts;
That there be a change in Government policy and attitude.
It is important therefore that each agency of Government
use this opportunity for critical self-analysis and close
review. Indeed this law can have positive and beneficial
influence on administration itself---in better records manage-
ment; in seeking the adoption of better methods of search,
retrieval, and copying; and in making sure that documentary
classification is not stretched beyond the limits of demon-
strable need.
At the same time, this law gives assurance to the individual
citizen that his private rights will not be violated. The
individual deals with the Government in a number of
protected relationships which could be destroyed if the right
to know were not modulated by principles of confidentiality
and privacy. Such materials as tax reports, medical and
personnel files, and trade secrets must remain outside the
zone of accessibility. * * *
Freedom of Information Not a Partisan Matter
There are some who would like to snake freedom of information a
partisan issue, claiming it is they or their party who represent the
one true champion of this particular devotion to liberty. But, in fact,
years of study by this committee show each new administration
develops its own special secrecy techniques which, as time passes,
become more and more sophisticated. The factor of credibility, together
with the inclination of government to invade the privacy of our citi-
zens, poses an ominous threat to our democratic system which must
be opposed at every turn despite the agony it might create. We believe
it is better to have too much freedom than too little.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/43 : CIA-RDP74B00415R000200100008-7
Comprehensive Hearings on Broad Government Information
Policies
The subcommittee received sworn testimony from 142 witnesses
at 41 days of public hearings by the Foreign. Operations and Govern-
ment Information Subcommittee of the House Committee on Gov-
ernment Operations during June and July 1971 and March 1972
through June 1972. The hearings were an intensive study of the
effectiveness of the Freedom of Information Act and related matters
involving information policies and practices of the Federal Govern-
ment. The FOI Act has been the law of the land 5 years, as of July
4, 1972, appropriately enough the anniversary of American inde-
pendence-the day 196 years ago when the ``many" revolted against
the despotic monarch. This committee has both legislative and over-
sight investigative ,~ Turisdiction over the Freedom of Information Act.
The hearings on V .S. Government information policies and practices
began June 23, 1971, and cover many months of intensive testimony,
interrogation, analysis of questionnaires, and research studies provided
by the Congressional Research Service, Library of Congress." The sub-
committee sought not only to examine those departments and agencies
with poor records of compliance with the Freedom of Information Act
but also those governmental units which tried to implement congres-
sional FOI mandate with dedication and enthusiasm. There were such
but the overall picture which emerges was encrusted with bureaucratic
dust and grime which need to be vigorously scrubbed away.
When Congress passed the Freedom of Information Act, it issued
a rule of government that all information with some valid exceptions
was to be made available to the American people-no questions asked.
The exceptions-intended to safeguard vital defense and state secrets,
personal privacy, trade secrets and the like-were only permissive, not
mandatory. When in doubt, the department or agency was supposed
to lean toward disclosure, not withholding.
But most .of the Federal bureaucracy already set in its ways never
got the message. They forgot they are the servants of the people-the
people are not their servants. This report is another reminder to our
Government of that fact. Agency ofhclals appeared and actually testi-
fied under oath that they had to balance the Government's rigg'hts
against the people's rights. The Government, however, has no rights.
It has only limited power delegated to it from "We, the people * *."
Series of Reports Based on Hearings
This report is the first of a series to cover virtually all major aspects
of freedom of information as it relates to our Government. Those
areas of concern include the administration of the Freedom of In-
formation Act, the subject of this first report; the security classifica-
tion system which has long impeded the free flow of information on
national defense and foreign policy; the so-called doctrine of "executive
privilege" used by Presidents to deny vitally needed information to
Congress; the information policies of governmental advisory commit-
tees; legislative proposals to close loopholes and narrow, if not elimi-
nate, certain exemptions in the Freedom of Information Act; and
other related subjects.
8 A complete listing of the hearing dates is printed in the legislative calendar of the House committee
on Government Operations.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : ;IA-RDP74B00415R000200100008-7
The ultimate objective is to strengthen and clarify the Freedom of
Information Act to make it more effective and responsive to an open
society. Action on legislation to accomplish this objective, based par-
tially on these in-depth hearings and studies, will be sought by this
committee.
Major Problem Areas
Some of the major problem areas pinpointed during the hearings are:
1. The bureaucratic delay in responding to an individual's request
for information---major Federal agencies took an average of 33 days
with such responses; and when acting upon an appeal from a decision
to deny the information, major agencies took an average of 50 addi-
tional days;
2. The abuses in fee schedules by some agencies for searching and
copying of documents or records requested by individuals; excessive
charges for such services have been an effective bureaucratic tool in
denying information to individual requesters;
3. The cumbersome and costly legal remedy under the act when
persons denied information by an agency choose to invoke the injunc-
tive procedures to obtain access; although the private person has pre-
vailed over the Government bureaucracy a majority of the important
cases under the act that have gone to the Federal courts, the time it
takes, the investment of many thousands of dollars in attorney fees
and court costs, and the advantages to the Government in such cases
makes litigation under the act less than feasible in many situations;
4. The lack of involvement in the decisionmaking process by public
information officials when information is denied to an individual
makin a request under the act; most agencies provide for little or no
input from public information specialists and the key decisions are
made by political appointees-general counsels, assistant secretaries,
or other top-echelon officials;
5. The relative lack of utilization of the act by the news media,
which had been among the strongest backers of the freedom of infor-
mation legislation prior to its enactment; the time factor is a significant
reason because of the more urgent need for information by the media
to meet news deadlines. The delaying tactics of the Federal bureaucrats
are a major deterrent to more widespread use of the act, although
the subcommittee did receive testimony from several reporters and
editors who have taken cases to court and eventually won out over
the secrecy minded Government bureaucracy; and
6. The lack of priority given by top-level administrators to the full
implementation and proper enforcement of Freedom of Information
Act policies and regulations; a more positive attitude in support of
"open access" from the top administrative officials is needed through-
out the executive branch. In too many cases, information is withheld,
overclassified, or otherwise bidden from the public to avoid adminis-
trative mistakes, waste of funds, or political embarrassment.
Findings and Conclusions
The efficient operation of the Freedom of Information Act has been
hindered by 5 years of foot dragging by the Federal bureaucracy. The
widespread reluctance of the bureaucracy to honor the public's legal
right to know has been obvious in arts of two administrations. This
reluctance has been overcome in a few agencies by continued pressure
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/138: CIA-RDP74B00415R000200100008-7
from appointed officials at the policymaking level and in some other
aggencies through public hearings and other oversight activities by the
Congress. However, it has been clearly demonstrated during these
hearings that much information of the type previously denied to the
public has been made available under the act.
Part of the gap between the promise of access to public records
which the FOI Act held out 5 years ago when it became law and the
practice of the Federal agencies which administer the law can be
closed by improvements in the rules and regulations adopted by the
agencies to implement the law. Additional narrowing of the gap is
taking place through court decisions that clarify the law. Some of the
gap can be closed by legislative changes to clarify the intent of Con-
gress or to correct shortcomings apparent in the first 5 years of the
law's operation.
But no changes in law and no directives from agency heads will
necessarily convince any secrecy-minded bureaucrat that public rec-
ords are public property. Only day-to-day watchfulness by the Con-
gress and the administration leaders can guarantee the freedom of
government information which is the keystone of a democratic society.
In general, the committee finds that the Freedom of Information
Act has helped thousands of citizens gain access to the information,
when they have been able to overcome Government roadblocks. The
information media, which serve as the major conduit of knowledge
between the public and their government, have been helped by the
FOI Act. But administrative delays and obfuscation have been a
particular problem for the press, for news is a perishable commodity.
In the few cases when the press has taken a case to court, govern-
ment secrecy usually has been overcome. In other cases, the likelihood
of court action has persuaded Federal agencies to grant access to
public records.
While there have been too few landmark cases decided by the courts
to indicate a pattern of interpretation of every part of the FOI Act,
it is clear that, by and large, the courts are effectively exercising their
authority under the act to judge the Government's stewardship of
the people's right to know. The courts' judgment has usually been
against needless Government secrecy.
Finally, it is apparent that a clearly defined role for essential public
information activities and personnel in the Federal Government is
necessary if such activity is to be afforded its proper status within
the bureaucracy. The public information role in Government is be-
coming even more important as Federal programs expand and become
decentralized. Public information experts should serve as a "bridge"
between an impersonal government and the individual citizen, to
make certain, that he is sufficiently informed about Federal programs
that may affect him and his family.
Following are findings and conclusions on the specific administrative
and legislative problems apparent after 5 years of experience with the
Freedom of Information Act. (See ch. X of this report for recom-
mendations.)
1. Administrative Problems
-Some agency regulations are confusing, inadequate, or
deficient, adhering neither to the guidelines in the 1967
Attorney General's memorandum nor the intent of
Congress.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1: CIA-RDP74B00415R000200100008-7
-The Office of Legal Counsel, Department of Justice, has
undertaken an advisory role to assist other agencies in
the administration of the FOI Act, but the office needs
to exercise a greater leadership function, for example,
by advising other agencies of significant court interpre-
tations of the act and by preparing a pamphlet for the
general public to explain the rights of individual citizens
to obtain public records from Federal agencies.
-Some Federal agencies have not kept adequate records of
requests for public information under the act to properly
evaluate thou performance; some have not informed an
individual of the precise exemption under the act being
exercised to deny a requested record; others have not
advised individuals of the administrative right to appeal
the denial to a higher agency authority, nor of ultimate
rights to legal remedy in the courts.
-Very few agencies have involved public information officials
an administrative decisions on requests for public rec-
ords under the act; very few agencies have issued clear
pgolicy statements on commitment to the principles of the
FOI Act, nor have they issued directives to dace
appropriate priority on compliance with the provisions
of the act.
-Many agencies have failed to provide suitable training or
orientation of employees on the meaning, intent, and
proper administration of the FOI Act, even those
directly affected by responsibilities that involve public
requests under the act.
-Excessive fees for search and reproduction of public records
in some agencies have deterred individuals desiring access
to such records; moreover, there is a wide disparity
among agencies in fees charged for the same types of
records.
2. Legislative Problems
-The delay by most Federal agencies in responding to an
individual's request for public records under the FOI
Act, or delay in acting on an administrative appeal
frequently has negated the basic purpose of the act;
while reforms might be initiated at the administrative
level, amendments to incorporate recommendations of
the Administrative Conference of the United States into
the act are a way to achieve the prompt handling of
requests by individuals under the act,
_Many Federal agencies have used the "identifiable record"
requirement of the FOI Act as an excuse to withhold
public records; thus, legislative clarification is necessary.
-The delay by Government. attorneys in filing responsive
pleadings in suits brought by individuals to obtain public
records and the high costs to an individual in pursuing
litigation under the act have often been serious deter-
rents in obtaining public records, giving unfair advantage
to the Government.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
11
-Federal agencies have not been required to report to
Congress on their activities under the FOI Act, and an
annual evaluation would not only improve administra-
tion of the act but also permit more effective and
systematic legislative oversight.
-The nine exemptions in the act which permit withholding
of information have been misused by Federal agencies.
Confused interpretations of agency regulations, the
desire to withhold records which might embarrass an
agency, and misunderstanding of court decisions affect-
ing these exemptions, all have contributed to the prob-
lem. These deficiencies can only be corrected by amend-
ments to the FOI Act itself.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
III, FREEDOM OF INFORMATION REGULATIONS AND
ADMINISTRATIVE REQUIREMENTS
Hearings on the administration of the Freedom of Information Act
were first announced on January 24, 1972; they began on March 6,
and extended through April 19. Immediately prior to, or during the
course of these hearings, 14 Federal departments and agencies mdi-
citted they were revising their regulations regarding '0I Act matters.'
Two of these departments released their new regulations within the
24-hour period immediately prior to their appearance before the
subcommittee."
In early May, the Food and Drug Administration (FDA) published
new regulations to make most of its voluminous files, which have
always been kept confidential, available to the public under the pro-
visions of the FOI Act. Earlier in the hearings, FDA had been singled
out by HEW's witness, Mr. Robert 0. Beatty, Assistant Secretary
for Public Affairs, for special criticism: "
* * * I am well aware of the less than salutary perform-
ances of the Food and Drug Administration under the act
and the interest of this committee in why. A part of the
answer, I think, lies in the inherent characteristics of the
Food and Drug Administration as a regulatory agency-the
only such regulatory agency in the Department.
Another I think is simple bureaucracy. FDA has docu-
mented for nee since March of 1969, they have received a
total of 96 inquiries under the act, have given 79 approvals,
11 denials, and three withdrawals, with an average response
time, however, of about 2 months. Certainly that is far too
long. I think the committee would agree and we all agree
within the Department and within the FDA that is too long.
I am sure the committee will be happy to know, however,
that the entire question of the release of information by the
Food and Drug Administration has been under intensive
review by this agency d the last 6 months and a major
change in the 4.gencies' policy and resulting performance
should result from that review. We had hoped to be able to
present to the committee today for discussion as it saw fit
these new regulations but we were not quite able to make it.
It would appear that the subcommittee's hearings on the adminis-
tration of the FOI Act had some direct influence in prompting the re-
vision of agency- regulations during the time period of these hearings.
As part of its oversight responsibility, the subcommittee had exer-
cised an early and continuous concern over agency regulations to
implement the act.f2
I They are American Revolution Bleentenidal Commission, Department of Commerce, Department of
the Army, Environmental Protection Agency, Food and Drug Administration, Department of Health.
Education, and Welfare, Department of Housing and Urban Development Department of Interior,
inter-Amerlcan Foundation, Itepartment of Labor, Selective Service System, fepartment of Transporta-
tion, Department of State, and Department of the Treasury.
Departments of Labor and Transportation.
rr hearings, pt. 5, p. 1580.
11 See Committee Print issued by this Committee In November 1468, "Freedom of Information Act
(Compilation and Analysis of Departmental Regulations Implementing 8 U.S.C. 862)".
(12)
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1133: CIA-RDP74B00415R000200100008-7
Mr. David Maxwell, General Counsel of the Department of Housing
and Urban Development, commented during his appearance before
the subcommittee that the hearings "had a great deal to do" with
HUD's review of its regulations. Speaking of the net effect of the
proceedings, he said :13
I think these [hearings] are very desirable, not only for us,
but for all of the other agencies. We are most appreciative of
having our attention called to these [FOI Act] matters in this
way.
Mr. Frank M. Wozencraft, a principal drafter of the June 1967
Attorney General's memorandum on the FOI Act's administration
recommended :'4
I would hope that each chairman when he comes before a
committee, be it this committee or his substantive commit-
tee, would be asked: "What have you done to see to it that all
of the general policies and guidelines in your agency are
published?"
Wozencraft suggested that agencies be continuously urged to
revise their regulations to conform with the FOI Act, amendments to
it, landmark court decisions, and be required to make such regulations
better known to both the public and to those responsible for admin-
istering the act.
Legally Questionable Regulations
The chief reason the committee urges better regulations is to remove
bureaucratic roadblocks to the extent possible, short of actual statu-
tory amendments. Such impediments in administering the FOI Act
may result from unclear regulations, undisclosed guidelines, portions
of regulations which are not in conformity with statutory or case
law, the failure to make regulations known to agency operating
personnel involved in the administration of the FOI Act, or the failure
to provide adequate training in the act for such persons.
Among the legally questionable regulations included in the subcom-
mittee's review is a Federal Power Commission (F PC) stipulation that
"Records not made part of the public record * * * may be disclosed if
requested, upon showing it is in the public interest that they be dis-
closed * * *." 15 Chairman Moorhead questioned this language,
noting: is
* * * the overall philosophy stated in the Attorney Gen-
eral's memorandum is that the burden be on the Government
to justify the withholding of the document, not on the person
who requested it.
It seems to me, in section (d), you try to shift the burden
back to the requester, that the Government must say this is
why we are not going to give you this other record * *
Thus, Congress said everything should be public unless-
so that the burden is on the Government to defend its non-
disclosure of public business, rather than saying that this
person has to show "good cause" and prove his case.
18 $oarings, pt. 6, p. 1916.
14 Hearings, pt. 4 p. 1074. _
11 For a further discussion of this problem, see p. 28 of this report.
la Hearings, pt. 6, pp. 1966-1957.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 14CIA-RDP74B00415R000200100008-7
The 28 divisions or units of the Department of Agriculture (USDA)
all publish separate regulations, exemplifying the fact that there is
no centralized administration of the F01 Act at this huge agency."
There is no USDA regulation which expressly refers to the Attorney
General's memorandum as a guideline for information that is being
subject to the claim under exemption (b)(5) of the FOI Act (inter-
agency or intra-agency memorandums or letters). The memorandum
quotes H. Rept.. 1497, 89th Congress, and states: "Accordingly, any
internal memorandum which would 'routinely be disclosed to a private
party through the discovery process in litigation with the agency' is
intended by the clause in exemption (5) to be 'available to the general
public,' unless protected by some other exemption.""' No mention is
made in the USDA regulations of the discovery test outlined in the
memorandum of "routine" availability. It. is not surprising, therefore,
that USDA has been one of the major "problem" agencies showing
a spotty record in administration of the act.
As a matter of practice, USDA commonly utilizes multiple exenp
Lions for a requested document. While this practice is not specifically
sanctioned by the regulations, it might be prohibited by a require-
ment that a "specific and pertinent, exemption" he citod.19
The Cost of Living Council (CLC) and its two subsidiary units-
the Pa - Board and the Price Commission-issued its regulations
under the FOI Act on February 1, 1972.20 The parts of the regulations
dealing with "exempt information" were in conflict among the three
issuing agencies.
In their regulations the CLC restated the provisions of subsection
(b) of Section 552--exemptions (1) through (9)-but specifically
referred to Section 1905 of Title 18, U.S. Code in the third exemption.
This criminal statute imposes a fine and imprisonment on any Govern-
ment employee who unlawfully discloses specified data or information
coming to him in the course of his employment, and is highly question-
able in regulations relating to the FOI ct.21
Although it is clear that the exemptions set forth in subsection (b)
of the Freedom of Information Act are permissive and not mandatory,
the CLC originally made no provision for disclosure of "exempt
information" if such disclosure is in the public interest. The CLC
regulations were subsequntly amended on August 15, 1972, to reflect
those regulations originalley adopted by the Price Commission.
The amendment adds a now subsection 102.3(e) which reads as
follows:
(c) The Chairman of the Council or his delegate is author-
ized at his tleseretion to make any record enumerated in
sec. 102.4 available for inspection when he deems disclosure
to be in the public interest and disclosure is not otherwise
prohibited by law.
IF Hearings, fii~t. 5, ppp. 1556-1593..
Attorney [ieneral's n,emorandum, op. cit., p. 35. hearings, pt. 4, p 1119.
tc See `:Vote, Freedom of Information: The Statute and the Regulations," Georgetown Lath Journal,
LVI (November 1967), pp. 42.
73 37 F. R.'_ti8:6 CF$, JA. I02.
it See Schapiro v. Seturlttes and Exchange Commission (DC, D.C., 1972). The court said in part In the
Sehaplro case "... The Securities and Exchange Commission alleges that 18 U.S.C. 1905 prevents the
disclosure of this Information. That statute, however, does not prevent the disclosure of Information that
is authorized to be disclosed under other laws. There is nothing In see. 1905 of title 18 that prevents the
op ration or the Freedom of information Act. ?Moreover, the provision for documents specifically exempted
by statute (5 U.S.C. 562(1x)(3)) relates to those other laws that restrict public access to specific government
records. It does not, as r e(endants allege, relate to a statute that generally prohibits all disclosures of
confidential Information. '
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
The Pay Board in its regulations has incorporated by reference the
provisions of subsection (b) of the FOI Act without any changes.22 It
has, however, made provision for the release of "exempt information"
to a complainant at the discretion of the Chairman of the Pay Board.23.
As in the case of the CLC, the Pay Board originally made no provision
for disclosure of exempt information in the public interest. However,
on Sept. 7, 1972, the Pay Board announced its intention to amend
its regulations so as to bring them into conformity with the spirit
of the Freedom of Information Act.
Paragraph (a) of section 200.20 was revised as follows:
(a) In general. All documents and exhibits filed by any
party with the Pay Board in the course of its proceedings
are part of the records of the Board, available for inspection
and copying by members of the public, except to the extent
and in the manner specified in this subpart, and except to
the extent such information is of the nature specified in
5 U.S.C. 552(b) (1)-(9). However, the Chairman of the Pay
Board or his delegate, is authorized at his discretion to
make any record enumerated in 5 U.S.C. 552(b) (1)-(9)
available for inspection if he deems disclosure to be in the
public interest, and disclosure is not otherwise prohibited
by law.
The Price Commission regulation affecting "exempt information" is
similar to the CLC regulations, restating the provisions of subsection
(b) of the act with minor procedural changes.-"' However, the Com-
mission makes specific provision for the release of "exempt informa-
tion" at the discretion of the Chairman of the Commission: 25
(b) The Chairman of the Commission, or his delegate, at
his discretion may make any record enumerated in paragraph
(a) of this section available for inspection when he deems
disclosure to be in the public interest, if disclosure is not
otherwise prohibited by law.
One of the more flagrant abuses of the FOI Act uncovered by the
subcommittee involved the Price Commission. In its printed form
PC-1, "Request (Report) For Price Increase For Manufacturing,
Service Industries and the Professions," the Commission actually
solicits confidentiality from the companies who are applying for price
increases under the Economic Stabilization Act of 1970. The printed
form PC-1 reads in part: 26
It is requested that the information submitted herewith
be considered as confidential within the meaning of section
205 of the Economic Stabilization Act of 1970 (as amended),
Title 5, U.S. Code, 552 and Title 18, U.S. Code, section 1905.
Such solicitation of confidentiality by the Price Commission was
entirely inconsistent with the FOI Act. This language adopted by the
Price Commission in 1971 was ordered removed from subsequent
press runs of form PC-1 in August 1972 although current supplies of
the old form are still in use.
22 Title 5 U.S.C., see. 552.
2a Pt. 2000, sec. 200.20 (Pay Board regulations),
24 Pt. 311, sec. 311,5(x) (Price Commission regulations).
25 Pt. 311, sec. 311.5(b).
2e A copy of form PC-1 is on file in the subcommittee office.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
As was stressed over and over during the hearings, the exemptions
contained in subsection (b) of the act are permissive and not manda-
tory and the committee knows of no agency that has specific statutory
authority to extend blanket exemption, let alone to solicit the ex-
emption of confidentiality. It is the duty of each agency to determine
on an individual basis whether or not specific. information fits the
test of confidentiality as provided in subsection (b) (4) of the FOI Act.
Moreover, it would seem that the degree of public confidence in the
integrity of the administrative processes which regulate wages and
prices under our economic stabilization program can only be earned
by actions which convince the American public that requests for in-
creases are judged in an equitable manner in the cold light of public
scrutiny-not hidden behind the closed door of blanket confidentiality
that is contrary to the law.
Few of the departments and agencies specified in their regulations
any limitations on action time for responding to requests brought
under the FOI Act. We have noted elsewhere in this report that the
problem of "foot-dragging" delays is one of the most common prob-
lems encountered.'
In analysing the agency's responses to the subcommittee's ques-
tionnaire on their operations under the FOI Act, a study conducted
for the subcommittee by the Congressional Research Service (CRS) of
the Library of Congress provided it revealing picture of agency be-
havior on the matter of response delays. Assessing the case load of
FOI denials for the 1967-71 period, ('1S analysts computed the aver-
age number of days required for each agency to respond to both
initial requests for information and appealed requests. According to
this study: ss
These time spans ranged from an average of 8 days (Small
Business Administration) to 69 days (Federal Trade Com-
mission) for responses to initial requests and from 13 days
(Department of the Air Force) to 127 days (Department of
Labor) for responses to appeals. For those agencies listed in
the analytical chart, the average number of days taken to
respond to initial requests was 33 (for 27 agencies); the aver-
age number of days to respond to appeals was 50 (for 20
agencies). In terms of the average time lapse on initial re-
quests for a eneics listed in the analytical chart, 11 agencies
exceeded this average; 9 agencies exceeded this avera~~~gge for
time on acting on appeals. The Department of I3calth,
Education, and Welfare, Interior, Justice and the Renego-
tiation Board exceeded the total average for both stages of the
administrative process. Statistically, four agencies seem to be
in no hurry to expedite requests for information under the
Freedom of Information Act.
Such delays, even for a fey days or a week, can make requested in-
formation of little or no value to someone attempting to meet a dead-
line on any research project or news story where the requested infor-
mation is needed on a timely basis. We have noted elsewhere in this
report that working journalists have made little use of the FOI Act
a See pp 19-42 of this report.
n The full text of the study Is to the hearings, pt. 4, pp. 1333-1343: the quotation appears on p. 1337.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
17
because of this problem of bureaucratic delay in obtaining responses
to requests for information. Such excessive delays also can frustrate
efforts by researchers, scholars, and other types of professional writers
who seek information from their government.
Lack of Top-Level Consideration of FOI Problems
One indication of the importance of the FOI Act in terms of agency
priorities is the record keeping of the agency. In response to the sub-
committee's questionnaire in the summer of 1971 regarding the ad-
ministration of the FOI Act, the Department of the Army, N avy, the
Department of Labor, the Civil Service Commission, and subunits of
the Transportation Department all indicated they could not provide
certain requested statistics because they had failed to keep any records
on these matters 29 Certain agencies frankly stated they had no records.
RECORDKEEPING
The Library of Congress analysis noted these and other problems
concerning the quality of agency data, stating: 3o
Responses to the subcommittee's questionnaire were gen-
erally complete and detailed for most agencies, but in certain
cases the agencies seemed to misunderstand the questions or
they provided otherwise unusable information. The Depart-
ment of Defense for example, acknowledged incomplete rec-
ords to answer some questions. The Civil Aeronautics Board
supplied aggregate information for fiscal year 1968 only. The
Federal Highway Administration and the Federal Railroad
Administration reported they kept no records on Freedom of
Information Act requests.
In a number of instances details were omitted from
agency responses. The number of requests for public records
was not provided, for example, by the Department of the
Army, the Department of Health, Education, and Welfare,
the Coast Guard, the Federal Maritime Administration,
and the Civil Service Commission, though those agencies
did provide information on individual denials. Often no
initial request dates were supplied for individual cases or no
dates on appeals were given, thus making the computation
of time intervals impossible or limited to a few cases. In many
responses the titles and citations of relevant court cases were
garbled or missing. The Department of the Army, the
Department of the Navy, the Department of State, and the
Securities and Exchange Commission failed to cite appro-
priate sections of the Freedom of Information Act as a basis
for refusing information.
The uneven quality of such data received in response to the ques-
tionnaire raises serious questions concerning the interest of some
Federal departments and agencies in how the act is administered,
since they do not even maintain sufficient records to evaluate their
performance under the statute.
Even details on court actions under the FOl Act were sorely
lacking. The Library of Congress analysis commented: 31
2D The text of the subcommittee questionnaire is on pp. 1331-1335 of the hearings, pt. 4.
11 Ibid., p. 1336.
81 Ibid., p. 1336.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/ 13g : CIA-RDP74B00415R000200100008-7
1
* *'` Frequently, the responding agencies cited court cases
which resulted from their refusals to provide materials but
they failed to provide details on the administrative procedure
which preceded judicial action. * * *
The problems of administration and inadequate recordkeeping
become compounded when it is realized that the agencies do not
always keep their personnel responsible for administering the FOI
Act abreast of recent precedent-making court decisions. The Agri-
culture Department's Assistant General Counsel, for example, told
the subcommittee: 32
* * * In the court cases the Department was involved in,
where they gave information as a result of the court cases,
a press release was then issued by the agencies informing
them of the information that was being made available and
it would be made available upon request to anyone else
and this press release is then summarized by the information
office of Mr. Gifford's office and that is circulated to all of
the agencies, so through that they get advice as to the type
of action under court cases where the Department is a party
to the case.
Thus, personnel of the USDA handling FOI requests receive only a
summary of a press release regarding it. court case involving released
documents under the FOI Act within their agency. They do not
normally have an opportunity to read the decision in the case; they
may not even see the full press release about the case; and they are
given summaries involving only those cases in which their own
Department was a litigant.
This problem of disseminating decisions of the courts involving
FOI Act cases among all executive branch personnel who deal with
Government information requests was discussed during the hearings
with then Assistant Attorney General Ralph E. Erickson, Office of
Legal Counsel, whose office is responsible Tor the operations of the
Freedom of Information Committee: as
Mr. MOORHEAD. Would it not be advisable to rewrite and
bring up to date the Attorney General's memorandum and
establish a procedure for ongoing distribution of advisory
opinions as new case law is developed?
Mr. ERICKSON. When I first became involved in freedom
of information matter(s) I looked at that book and I said,
"My God, this thing should be brought up to date."
Since that time I have come to recognize that it may not
be quite that easy to bring it up to date, because we do have
a number of, I think, rather important questions to be an-
swered, and maybe answered in the foreseeable future. I
think it is something that should be brought up to date at
some point in time. I am not sure that this is the exact time.
I would certainly prefer to have some pronouncement by the
Supreme Court before we do this. But, I do think it is-it
would be helpful, and it is something that should be done in
due course.
it Hearings, pt. 5, p. 1594
"Hearings, pt. 4, p. 1190.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/119 CIA-RDP74B00415R000200100008-7
Chairman Moorhead went on to ask Mr. Erickson if thought had been
given to some other method of keeping agencies up to date on legal
developments under the FOI Act, such as seminars for public infor-
mation officers and lawyers having such duties.
Erickson responded: a
It is one of the questions. I feel something should be,
something should be done. I have not formulated, really,
any plan as to how it might be done. I mentioned the in-
crease in our consultations, and it seems to me that that,
in and of itself, serves to inform and keep other agencies
advised.
But, I certainly would not be adverse to some more con-
centrated effort, more expansive effort to keep other agencies
advised, because I think the law is evolving, is developing,
and certainly it would be a help.
Chairman Moorhead asked if general counsels of Federal agencies
were advised when a significant court decision under the FOI Act is
rendered. Erickson said that "we have developed no automatic pro-
cedures for doing so, but that certainly would be one of the alterna-
tives to be considered."
Summary
It is obvious to the committee from its study of the problems of
effective administration of the FOI Act that clearcut, easily under-'
stood regulations that adhere closely to the philosophy of the public's
right to know the business of its Government, as expressed in the law
enacted by Congress and the guidelines issued in 1'61 by the Attorney
General can go a long way toward making the act truly meaningful
under our representative system of government. Yet, we have learned
that the regulations, themselves, regardless of how positive or how
precise, do not necessarily guarantee effective operation of the FOI
Act in any agency. A constructive attitude toward the act by the top
leadership of the agency and a genuine desire to make more informa-
tion available to the public are essential ingredients.
The committee believes that there are many positive actions that
can be taken at the administrative level to make the act more workable
and more effective. Such actions must, however, be considered in the
context of recommended statutory amendments. Administrative
recommendations are therefore discussed in chapter X of this report,
along with the proposed objectives of amendments to the FOI Act
itself.35
'4 Ibid.
" See pp. 83-86 of this report.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
IV. GOVERNMENT ROADBLOCKS PREVENTING EFFEC-
TIVE USE OF THE FREEDOM OF INFORMATION ACT
During the hearings on bills which became the Freedom of Infor-
mation law, no witnesses testifying for Government agencies supported
the legislation. A few expressed approval of the people's right to know,
but each favorable comment on the general principle was hedged by
specific objections to the legislative language proposed to enforce the
right to know. Since there was general opposition to the legislation
throughout the Federal bureaucracy, the agencies would not be ex-
pected to administer the law so that public access to public records is
a simple process.
And they have not. In the great majority of the agencies, adminis-
tration of the Freedom of Information Act has been turned over to
the lawyers and the administrators, not to the Government informa-
tion ex perts whose job is to inform the public.
Nearly all aaggencies move so slowly and carefully in responding to a
request for public records that the long delay often becomes tanta-
mount to denial.
Dozens of agencies have set up complicated procedures for request-
ing public records.
Many will respond only to repeated demands for information, filed
formally and in writing. Others require detailed identification of the
records sought, so that only those who have complete knowledge of
an agency's filing system can identify properly the records sought.
Some agencies have harassed citizens who had the temerity to press
their demands for public records; others, when forced to provide
copies of Government documents, have given out illegible copies."
The "Renting" of the Pentagon
Even before the Columbia Broadcasting System produced its con-
troversial expose of the Defense Department propaganda machine-
a program titled "The Selling of the Pentagon"-the Freedom of
Information Act was twisted almost out of shape by Defense Depart-
ment officials trying to hide the facts about the "renting" of the
Pentagon. Repeated delays and insistence on bureaucratic formalities
were almost successful in hiding from the public how much money the
Department collects in concession payments from private companies
which have stores in the Pentagon concourse.
In 1970, Roy McGhee, a reporter for United Press International,
asked for the financial details on the leasing of store space in the
bowels of the Pentagon where thousands of employees pass daily on
their way to the bus stops inside the building. He found, after repeated
telephone calls, that the Defense Department collected almost $1
million in proceeds from private companies doing business on the
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/131 CIA-RDP74B00415R000200100008-7
Pentagon concourse. He said that about half of this income was turned
over to the Treasury and the rest was contributed to a Defense
Department "Concessions Committee", which used about $250,000
of the fund to finance social clubs, dinner dances and tennis tourna-
ments for Pentagon employees.37
But he said he could not get an exact accounting of the use of such
funds, nor could he discover how much each private company was
paying the Pentagon to lease space in the concourse and sell wares to
thousands of captive customers. He asked the Department's public
information office and he asked the Department's general counsel how
much each private company was paying to lease space in the public
building, but the information was refused. McGhee testified:
That is where the instance stands. I have not pursued it fur-
ther. I do not have the time. My company did not file a
lawsuit to get the information 38
McGhee wrote a news story based on the information he could
find, reporting the refusal to disclose the income from the leasing of
the Pentagon concourse space, and the University of Missouri Free-
dom of Information Center took up the battle from there. The Center
telephoned to try to get the information and then put a formal request
in writing, threatening to go to court under the Freedom of Informa-
tion Act if the information was refused. The Defense Concessions Com-
mittee agreed to make public the contracts entered into with private
companies leasing space in the Pentagon, but only if a records search
charge of $3.45 an hour was paid for a 4-hour search job.
Since the Defense Concessions Committee was responsible for only
16 contracts, all filed in the committee's office, the FOI Center pointed
out that 4 hours for searching the files to find the contracts seemed an
unnecessary waste of time. In response, more than 1 year after Mc-
Ghee first began his investigation of the "renting" of the Pentagon,
the Defense Department Concessions Committee finally agreed to
make the information on the contracts available to anyone who came
into the committee's Pentagon office-if given at least 1 day advance
notice.
"Catch-22" at the Agriculture Department
The Freedom of Information Act requires Government agencies to
make available "identifiable" public records, but the Attorney
General's Memorandum explaining the new law warns that the identi-
fication requirement should not be used as a method of withholding
records. Yet some agencies make identification requirements so strict
that they must be taken to court to force cooperation.39
Harrison Wellford of the Center for the Study of Responsive Law
asked the Department of Agriculture for research reports on the safety
of handling certain pesticides. His request was refused because the
Government records he sought were not clearly identified."
37 Hearings pt. 4, p, 1291; a fact sheet provided by the Department of Defense on the operation of the
Concessions committee, including criteria affecting receipts and disbursements may be found in the appen-
dix of part 6 of the hearings; the fact sheet states that the division of funds by the Concessions Committee
among (1) payments to GSA on the basis of rental square footage, (2) payments to the Pentagon Employees
Welfare and Recreation Fund, (3) investments in cafeteria property, and (4) other disposition of excess
funds is in accordance with Treasury Department, GSA, and DOD rules and regulations for receipts of
this type; see also colloquy on this case with DOD General Counsel Buzhardt, pt. 6, p. 2120.
88 Hearings, pt. 4, p. 1289.
80 Bristol-Myers Co. v. Federal Trade Commission, 283 F Supp. 745; Wellford v. Hardin, 315 F. Supp, 768;
hearings, pt. 4, pp. 1344 to 1367.
ao Hearings, pt. 4, p. 1253.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/122 CIA-RDP74B00415R000200100008-7
Wellford then asked for the indexes the Department maintained
so the specific files could be identified, but he was told that the indexes
were interagency memoranda and would not be made available. He
testified:
So, it was a Catch-22 situation. We were told our request
was not specific, and we were not given access to the indexes
which would have allowed us to make our request specific.'[
So Wellford took his case to court and won access to the informa-
tion. He went back to the Agriculture Department, looked at the
indexes, and found that the information he sought was kept in individ-
ual pesticide folders called jackets. He was told that the jackets also
contained company confidential information and that the confidential
information had not been separated from technical information he
sought. He testified :
We requested this information 2 years before and there was
plenty of time to reorganize their filing systems so they would
not have this commingling problem. * * * The final straw
was when USDA stated that if the information were made
available, it would cost $91,840 to prepare the registration
files for public viewing. At that point we decided to try to
find other means to get the information as
Secrecy Through Delay and Obfuscation
Nothing in the Freedom of Information Act requires expeditious
handling of requests for access to public records, nor would fast and
efficient response to requests be expected from agencies which uni-
formly opposed the legislation.
Most agencies take about a month to answer the initial request for
access to public records. They delay even longer in answering appeals
against the initial refusal, with the average time for a decision on an
administrative appeal being about 2 months'
Very few of the agencies make an effort to inform requesters that
they can appeal the initial decision. While the Freedom of Informa-
tion Act does not require an administrative appeal system, the neces-
sity for such a system was spelled out in the Attorney General's
Memorandum ex Iaining the act to the agencies u Thus, in most
agencies the regulations state that an initial refusal may be appealed
to a top official in the agency, but the agencies seldom make a point of
its appellate procedure in the letters denying the initial request.
This may help explain the small number of administrative appeals.
Of nearly 2,200 instances in which access to public records was
refused in the first 4 years of the act's operation, fewer than 300
denials were appealed administratively within the agencies, and in
about 100 cases, the individual refused information wont to court to
enforce the right to know." Agencies continued to block legitimate
public access in some cases even after courts ordered documents made
public.
n Hearings, pt. 4, p. 1231.
41 clearings, pt. 4, pp. 1254-115. This amount Includes both search tees and copying reefs.
a Hearings, pt. 4, pP. 1333-1343.
44 Attorney tienora!'s Memorandum, June 1967, pp. 28-29.
U Subcommittee questionnaire analysis, op. cit., pt. 4, pp. 1338-1843.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
23
Nashville Tennessean Case
The editor of the Nashville Tennessean, Mr. John Seigenthaler,
testified on one such case 46 His newspaper suspected that a blind
homeowner may have been swindled on the basis of an FHA appraisal
of his property. The homeowner and, later, the newspaper asked the
Department of Housing and Urban Development for a copy of the
FHA appraisal, but they were refused. The Nashville Tennessean took
the case to court. The judge set a hearing in 2 weeks, but the Govern-
ment lawyers demanded the full 60 days permitted under the Federal
Rules of Civil Procedure to answer the newspaper's request for access
to a public record.
Following the hearing, the court ordered the Government agency to
make public a copy of the FHA appraisal, but the copy turned over to
the newspaper was totally and completely illegible.
Once more, the newspaper went to court and the judge ordered the
Government to produce a legible copy of the FHA appraisal report.
The district court did agree with the Government's contention that it
could censor the FHA appraisal report, deleting the name of the ap-
praiser. The newspaper took that issue to the circuit court of appeals,
and once more, over the opposition and delaying tactics of the Govern-
ment agency, won a court order granting access to a legible public rec-
ord-including the identity of the FHA appraiser.47
The Longs and the Internal Revenue Service
The delays and frustrations faced by citizens trying to use the Free-
dom of Information Act are nowhere more apparent than in the at-
tempt by a Seattle, Wash., couple to get information from the Internal
Revenue Service (IRS). Among the documents requested by Philip
H. and Susan B. Long are those with simple statistical information
showing how the IRS carries out its tax collecting duties. They also
requested the blank forms which IRS agents fill out as a basis for an
annual activities report.41 After repeated trips to IRS headquarters in
Washington, D.C., and to a number of regional and field operations,
the Longs got some of the public records they requested. More of the
material was made available by IRS after the Longs filed suit under
the Freedom of Information Act.
Because of the continued prodding by the Longs, IRS prepared a
dossier on the couple, listing every letter sent by them and every inter-
view they held with IRS officials. When faced with the Longs' re-
quest for the blank IRS forms, Donald Virdin, chief of the IRS Dis-
closure Staff, testified that the agency convened 18 top officials to
discuss the disclosure problem. The top officials decided the Longs
could not have the blank forms because there were too many of them.49
As a result of handling the Longs' request for public records, Virdin
testified that the Treasury Department discovered some IRS docu-
ments in its public library which, he said, should not have been made
public. The documents were merely quarterly statistical reports on the
audit work of IRS, but upon the recommendation of Virdin, the IRS
disclosure expert, the reports were taken out of the public library, no
longer to be disclosed.50
9B Hearings, pt. 4, pp. 1302-1310.
4'' Hearings, pt. 4, pp. 1302-1309.
48 Hearings, pt. 6, p. 2025.
44 Hearings, pt. 6, p. 2025.
. Hearings, pt. 6, p. 1994.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
24
Mr. Virdin's staff of disclosure experts also ]prepared a digest of the
IRS experience with requests for public records under the Freedom of
Information Act. The digest was requested by a taxpayer, but was
refused. It was classified "for national office offcial internal use only."
Later the document was made public with the secrecy label removed.53
USDA Hides Meat Inspection Reports
Another witness, attorney Peter 11. Schuck of the Center for the
Study of Responsive Law, described his experience with the Agricul-
ture fepartment (USDA) and their "Delay-until-the-information-be-
comes-stale" routine, which involved efforts to obtain information on
meat inspection plants in Missouri under the Wholesome Meat Act
of 1967. He testified;
I have been engaged since mid-October (1971) in a vain
effort to gain access to three categories of information: (1)
Compliance surveys conducted by USDA with respect to the
meat inspection programs of Missouri, Nebraska, and sev-
eral other States; (2) USDA's correspondence with State
officials concerning their findings; and (3) the surveys re-
quired by USDA to be conducted in these states and sub-
mitted to USDA as part of its compliance review program.S2
By mid-December (1971), he continued, "USDA had reneged on
several oral promises to produce the information," Schuck then filed
administrative appeals and on May 2, 1972--some 5 months after his
original request- his a )peal was denied by Mr. G. R. Grange, Acting
Administrator of the Consumer and Marketing Service, despite the
fact that the Department of Justice's Freedom of Information Com-
mittee had strongly- urged USDA to make the information public.0
Schuck also testified that a Missouri State senator and a Springfield,
Mo. radio station had made similar requests to USDA for the infor-
mation about the Missouri meat inspection program and its conformity
with Federal standards and had likewise been turned down.
Several months after his testimony. Schuck filed suit against the
department under the Freedom of Information Act to obtain the
information. The case is now pending in the courts.`
Federal Communications Commission's "Blacklist"
Mr. It. Peter Straus, publisher of Straus Editor's Report, told the
subcommittee of its efforts to obtain permission from the Federal
Communications Commission to inspect the list of some 10,900 in-
dividuals and organizations whose names and addresses are on a so-
called blacklist. FCC claims that they possess qualifications that are
believed to require close examination in the event they apply for a
license.55
The request by Mr. Straus was denied by Mr. John M. Torbet,
Executive Director of the FCC. The "blacklist" problem was dis-
cussed later in hearings with the FCC.
Ji Hearings, pt. 6, p. 2027.
HearingH, pt. 4, pp. 1361-1262.
6s This case was also discussed with USDA witnesses later in the hearings. See pt. 5, pp.
1605 1600 .
'4.tchuek v. But:, D.C. D.C. Docket No. 897-72.
u rienrings, pt. 4. pp. 1284-1287; are FCC testimony, pt. 5, pp. 1789-1792 and 1810-1816.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13: CIA-RDP74B00415R000200100008-7
25
Philadelphia Inquirer Case
An urban affairs writer for the Philadelphia Inquirer, Mr. James B.
Steele, told the subcommittee of the efforts which he and his associate,
Mr. Donald L. Barlett, made to obtain information under the FOI Act
from the Department of Housing and Urban Development. The in-
formation first requested in August 1971 was the names of FHA staff
and fee appraisers connected with the appraisal of rundown houses
which were bought by real estate speculators and sold at inflated
prices, FHA-insured, to hundreds of low-income families.69 The in-
formation was needed in connection with a series of expose articles on
housing frauds in Philadelphia.
The information that would link specific appraisers to inflated ap-
praisals of individual dwellings was denied by Theodore Robb, HUD's
regional administrator in September 1971. The newspaper's appeal of
the denial to HUD Secretary George Romney was rejected on No-
vember 11, 1971. Steele testified:
In a four-page letter, he asked us to blame him for any slip-
ups that might have been made by FHA, but don't blame the
appraisers. He said it was not relevant to criticize an em-
ployee of HUD. He wrote:
No enterprise, public or private, can expect its em-
ployees to contribute as openly and honestly to the
formulation of its policy if those employees believe
that their opinions (such as appraisals) are to be
subject to public second-guessing."
But the official national organization of appraisers, The Society of
Real Estate Appraisers, in a letter to the subcommittee said:
This letter is for the record of the subcommittee's present
hearings on possible Government abuses of "The Freedom of
Information Act." It refers particularly to the recent con-
troversy over HUD's withholding of the names of appraisers
involved in FHA 235-236-237 programs.
We understand an intended Justice Department appeal of
the court decision ordering release has not been entered and
HUD has now released the names. While this settles this par-
ticular incident, the future may see similar attempts to with-
hold information by other agencies for varying reasons. The
Society of Real Estate Appraisers is opposed to any such
Government agency action.
The function of the appraiser as related to Government is to
protect the interests of the people and the Government. There
is no alchemy nor mystery to the appraisal process. The
appraiser should not be cloaked in secrecy as to imply
there is. His function is to estimate fair market value, which
involves just compensation of the public and the fiscally
sound operation of the Government. The steps taken to esti-
mate value involve reason and judgment. Public and Gov-
ernment must realize professionally the appraiser should be
an impartial observer. The best way to keep him that way is
to let both sides know who he is and what he's doing.
ae Ibid., p. 1294. The case is similar to the Nashville Tennessean case mentioned above.
57 Ibid., p. 1295.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1 CIA-RDP74B00415R000200100008-7
Private appraisers who do work for the Government make
no,secret of it; indeed, they list such work proudly in their
qualifications. It is often impressive to their other clients.
It cannot do much for a Government's image to impose
secrecy upon a subject that is being legitimately boasted
about outside that government. * * Ss
The Inquirer filed suit in the. 'U.S. district court in Philadelphia.
Oral arguments were held during December 1971 and on March 9,
1972, the court held in favor of the Inquirer and ordered the names
of the appraisers released.S?
Freedom of Information Suit Sometimes Brings Action
Washington attorney Benny L. Kass told the subcommittee that
"the mere threat of the act * * * has often released documents that
have been earlier withheld." He said:
One specific instance I might cite is that for 6 months, I
was getting an absolute run-around between the Civil Aero-
nautics Board and the Federal Reserve Board. I wanted to
gat a copy of the Civil Aeronautics Board response to the
Federal l.eserve on their implementation of the Truth-in-
Lending Act. The CAB said, we have no objection, but that
is from the FRB, because we wrote it to them, and the FRB
said that we have no objection, but got it from the CAB
because they sent it to us, and finally, I went, through this
run-around and filed an action under the Freedom of In-
formation Act, and about 3 days later the CAB hand-carried
this to my office, and disclaimed all knowledge of my,action.
And so, I think, in some instances the filing of a suit gives
rise to a level where somebody, at least, starts to worry about
it ao
Health Hazards in Industrial Plants
The close relationship between the FOI Act and the administration
of the law affecting the health and safety of workers is illustrated by
the testimony of _Mr. Anthony Mazzocchi of the Oil, Chemical &
Atomic Workers International Union, (OCAW) AF.I-CIO.81
Mr. Mazzocchi described the problems that his union encountered
in attempts to obtain information based on inspector's reports of
health and safety hazards under the Occupational Safety and Health
Act of 1970 .(OSIIA), administered in the Department of Labor. The
information problem also involves the National Institute for Occupa-
tional Safety and Health (NIOSH) of the Department of Health,
Education, and Welfare, which conducts inplant hazard evaluations.
The union official testified:
The one court fight in which this union has been involved
under the Freedom of Information Act centered on the same
kind of inspector's reports that were written by OSHA's
IS Hearings, t t. T 6, P. 19M
a Winess rra v. 17UD, D.C. E.D. Pa., 1971. A related class action suit involving thetnterests
ra Har. I
paP
of low-income homeowners in Philadelphia, brought by a subsequent witness, Mr. George D Gould, an
attorney with the Community Legal Services, Inc., is described in pt. 5 of the hearings, pp. 1402-1405.
"Hearings, pt.5, p. 1414. A similar view was expressed by another witness. Mr. Reuben B. Robertson, III,
a Washington attorney; see hearings, pt. 4, p. 1252.
it Hearings, pt. 5, pp. 14'n 1514. Allegations by this witness were subsequently taken up with witnesses
from the Labor Department and HEW. See pt. 5, pp. 1626-1628; 1692-1684. Additional correspondence on
this matter may be found in lit. 5, pp. 1648 1654.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
27
predecessor, the Walsh-Healey Administration. On February
1, 1971, the U.S. District Court ruled in the case of Recksler
et at. v. Shultz that the inspector's reports were to be made
public. As late as August 1971, high officials of the Labor
Department were ignorant of the results of the case and still
denied us access that the court had granted us 6 months
earlier. Anyhow, the Wecksler case should be enough prece-
dent for OSHA. If not, we will have to go to court again." 62
Mazzocchi also charged that the "trade secrets" exemption of the
FOI Act was being abused, causing serious health hazards to workers :
The last public information problem in the OSHA inspec-
tion-citation process inevitably involves trade secrets.
Under OSHA regulations, an employer can declare any part
of his manufacturing process to be a trade secret. Once the
declaration is made, the inspector will abide by the wishes
of the employer. Employees are not given an opportunity to
challenge managements contention. This kind of carte
blanche for employers will lead to arbitrary and capricious
actions. For years, the industrial water wastes inventory
was delayed because industry contended that trade secrets
would be revealed if they had to describe the nature of the
poisons being dumped into American rivers and streams. This
same position can be fostered today under OSHA. An em-
ployer can declare the toxic air contaminants inside a plant
to be a trade secret. The Labor Department will support
him as the Office of Management and Budget supported the
water polluters. Workers will never know what they are
breathing until it is much too late.83
Information in such cases is also denied to the union under the
"investigatory files" exemption of the FOI Act (552 (b) (7)), according
to the OCAW union witness:
* * * The figure 40 deaths a day is very conservative because
it includes only reportable deaths from injuries, and omits
those stemming from damage which may show up years
after the onset of exposure to a substance or group of sub-
stances.
Our inability to secure the type of information that is
lifesaving information, really, in our opinion, is just contrary
to the intent of the Freedom of Information Act, and the
Department is hanging its hat for the most part on No. 7,
investigatory files compiled for law enforcement purposes-
holding that anything occurring under the Occupational
Health and Safety Act is for investigatory and law enforce-
ment purposes, which moans that we would be consistently
denied information, the crucial information.
Mr. MOORHEAD. That was just the point I was going to
askyou. Going back to the top of page 4, you say:
" p to this point, the public and the affected workers have
been generally denied access to this information."
On what basis?
Is that the investigatory claim?
"Ibid., P. 1509.
" Ibid.. pp. 1609-1610.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
28
Mr. MAZZOCCHL Yes; that is what the Department claims,
and when information is finally divulged, sometimes it is
really too late.
You see, timeliness is also very important to the disclosure
of some information, and to disclose it at a point after the
confrontation has passed, rather than at a point when people
can do something about the particular condition, is still
frustrating the intent of the Freedom of Information Act, in
our opinion.
Mr. MoORHEAD. In the third paragraph on page 4, you
also refer to being denied the access to various reports of
inspectors.
Is that the same exemption cited there?
Mr. MIAzzoccm. Right."
The language of exemption (b) (7) of the FOI Act., as it has been
interpreted., thus makes it difficult, if not impossible, for workers in
hazardous plants to be informed about specific health or safety
problems that exist in an interim period while inspectors' reports
are slowly making their way through the bureaucracy toward eventual
enforcement proceedings, fines, and correction action. This use of
the exemption "investigatory files compiled for law enforcement
purposes" in such situations involving occupational safety and
health, oven the lives of millions of American workers is contrary to
sound public policy. This case and other abuses of the investigatory
file exemption have prompted a reexamination of the language of
subsection (b) (7), dealt with later in this report.
Consumers' Stake in Freedom of Information
A graphic and timely case of the withholding of information by the
Federal Power Commission (FPC) on natural gas reserves was called
to the attention of the subcommittee in testimony by Mr. Charles F.
Wheatley, Jr., general manager and general counsel of the American
Public Gas Association." This information affects natural gas rate
case decisions of the FPC involving billions of dollars in higher gas
rates for many millions of consumers.
Data on natural gas reserves, compiled by a committee of the
American Gas Association (AGA), used by the FPC in making their
rate increase determination in the southern Louisiana rate case,68 was
withheld from consumer-oriented groups who sought to make an inde-
pendent evaluation of the data. Stung b public and congressional
criticism of their dependence on industry-furnished gas reserves stud-
ies, the Commission in December 1971 ordered a limited check of
certain gas reserve data supplied by the American Gas Association.
The Commission, however, ordered that the data involved be kept
confidential and withheld from the public. It is in the context of this
FPC study of gas reserves that the FOI Act became an issue 01
Wheatley testified :
The American Public Gas Association, American Public
Power Association, and Consumer Federation of America
filed a petition for rehearing with the Commission on Janu-
Ibid., p~ 1616.
Hearing, pt. 5, pp. 1522-1683.
b~Ibid., p. 1623.
'Ibid., p. 1626.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
29
ary 20, 1972 challenging, inter alia, the provisions for secrecy
of the National Gas Survey reserve study. In rejecting this,
the FPC relied upon the Natural Gas Act and the Freedom
of Information Act as justification for its imposition of se-
crecy of all the underlying figures reported to its agents by
the AGA and the producers. They quoted the language of
section 8(b) of the Natural Gas Act which appears at the
top of page 9 of my statement and with respect to the Free-
dom of Information Act they quoted section 552(b) of title
5, which is also quoted at the top of page 9, and in that sec-
tion, subsection 4 which refers to trade secrets and commer-
cial or financial information obtained from a person and
privileged or confidential * * * and (9) which concerns geo-
logical and geophysical information and data, including maps
concerning wells. 8
In his testimony Mr. Wheatley carefully analyzed the FPC inter-
pretations of the exemptions of the FOI Act relied on and presented
a strong case that the use of exemptions (b) (4) and (9) are not
properly claimed by FPC.89 He asserted that "the FPC appears tc
be giving a broad unwarranted interpretation to section 552(b) of the
Freedom of Information Act to bar all public inquiry into its asserted
investigation of the AGA gas reserve estimates under the National
Gas Survey. This is a matter of fundamental importance to the con-
sumers of the country * * *.Y) . 70
Wheatley went on to point out:
The survey as conducted by the FPC appears designed
merely to give the AGA industry figures a coating of respect-
ability which they do not deserve in the absence of cold hard
proof under public scrutiny. In testimony on March 2, 1972,
before the Senate Commerce Committee, Alan S. Ward,
Director of the Bureau of Competition. of the Federal
Trade Commission also reported that the National Gas
Survey as now being conducted would not satisfy the
public's and the Government's need and right to know the
facts-he concluded in this statement:
As with the existing AGA procedures, too much
concern about confidentiality of proprietary data
seems likely to interfere unduly with the public's
and the Government's need and right to know the
facts about our Nation's current energy resources.
Several weeks later, FPC General Counsel Gordon Gooch vigor-
ously defended the Commission's position in testimony before the
subcommittee, also discussing the provisions of the FPC regulations.''
Section 1.36(d) of title 18 code of Federal Regulations states that
records "not made a part of the public records by this section may be
requested in writing, accompanied by a showing in support of filed
with the Secretary and will be made available for public reference
upon good cause shown."
Subcommittee Chairman Moorhead and others questioned the
"good cause" requirement as being inconsistent with the intent of
' Ibid., p. 1526. Witnesses from the FPC were subsequently questioned concerning their interpretation
of the FOI Act. Bee pt. 6, pp. 1951-1954.
ea Ibid., pp. 1527-1528.
U Ibid., pp. 1528.
71 Hearings, pt. 5, p. 1528.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
30
the FOI Act. In subsequent colloquy and in response to questioning
by Representative Wright, General Counsel Gooch stated that the
"good cause" language of the regulation applied to matters "expressly
exempt by the Freedom of Information Act." 72
Affirmative Action Plan Information
One. of the most controversial problem areas under the FOI Act
described by witnesses testifying before the mubcominittee was that
involving affirmative action plan-, to bar discrimination by Federal
contractors. The subcommittee also received a considerable number of
letters, mostly from college and university faculty members, expressing
displeasure over the way in which the eppartment of Labor and the
Department of Health, 'Education, and Welfare was handling alleged
discriminatory complaints and the withholding of information con-
tained in the institution's affirmative action plan.
Executive Order 11246, as amended, prohibits all Federal contrac-
tors from discriminating on the basis of race, color, creed, sex, or
national origin. hundreds of complaints alleging sex discrimination
against women by educational institutions have been filed, but
governmental handling of complaint investigations has been often
criticized." Until the recent enactment, of tie Equal Employment.
Opportunit=ies Enforcement Act or 1972, there was no other legal
recourse to complainants of alleged violations of the Executive order.
Tho Executive order also requires that all Federal contractors,
except State and local governments, who have contracts for more than
$50,000 and who employ 50 or more people, must have a written
affirmative action plan. The plan must, include a policy of commitment
to the principles of equal employment opportunity, an analysis of
the workforce with regard to the utilization of women and minorities,
goals, and timetables for correcting deficiencies and it plan of action
by which the contractor can demonstrate a good faith effort to comply.
Miss Gates described in her testimony of her organization in its
attempts to obtain detailed information contained in contractors'
affirmative action plans: 74
WEAL members have usually been unsuccessful in
attempts to secure these plans from contractors. We suspect
that in most cases the employer has no plan and is therefore
in violation of the Executive order, althou h occasionally a
plan exists but the employer knows it will not withstand
scrutiny and 4o will not release it.
When plans have not been made available by the employer,
we have sought them from the Government through com-
munications with the office of Civil Rights, Department of
Health. Education, and Welfare and with the OffIce of Con-
tract Compliance, Department of Labor.
We have been told that Peter Nash, when he was Solicitor
of Labor, decided that the plans were exempt. under the
Freedom of Information Act because they contained trade
secrets and commercial or financial information obtained from
a person and privileged or confidential.
% Hearings, pt. 6, pp. 1!163-1939. The F1'C subsequently Informed the subcommittee that the '"good
cause" language was added to section 1.36(d) after the I OI Act was passed. They could give "no Indication"
why this was done. Sen hearings, pt. 6, p. 1960.
.' erne testimony of Miss Margaret Gates, Woman's Equity Action League, hearings, pt. 6, pp. 2146-2149.
N Ibid, pp. 2147.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
31
She went on to outline a strong argument against the .use of the
FOI Act exemptions claimed by the Labor Department, including
(b) (4) and (7). The argument against use of the FOI Act exemptions
to withhold affirmative action plan information was clearly sum-
marized in Miss Gates' testimony: 71
We maintain that an affirmative action plan is a condition
of a Federal contract and as part of the contract must be as
accessible to the public as any other Government document
not specifically exempted under the act * * *.
To deny disclosure of the plans is to destroy what appears
to be the only method by which the Executive order can be
enforced. The compliance agencies lack the resources to do
adequate reviews and investigations and the contractors
know that their chances of losing valuable contracts are
virtually nil. Affirmative action plans are not even requested
from the contractors unless a compliance review is anticipated
because the Government lacks the personnel necessary to
determine whether all of the programs are adequate.
If the Government does not have the resources to review
and evaluate the plans that is the more reason to permit the
public to do so.
The intention of the Department of Labor now seems
to be to make available the approved plans but to deny
access to the inadequate or uninspected proposals which are
the very ones which minorities and women could benefit most
from seeing. This practice also permits employers to conceal
the fact that they have no plan at all, which usually means
they have given no thought whatsoever to equal employment
opportunity * * *.
If the affected classes know what their employer's com-
mitment is, they can protect their own interests by monitor-
ing the implementation of the plan.
They can bring union and community pressure to bear
upon the contractor to meet his obligations. By comparing
the original plan of the contractor with an improved version
accepted by HEW they can also assess how well the Govern-
ment is negotiating on their behalf.
Of course, one cannot but suspect that these are precisely
the reasons why neither the contractor nor the Government
is willing to disclose the plans.
The Women's Equity Action League witness concluded her state-
ment with this blunt charge: 78
I am asserting that the Department of Labor is unwilling
to release affirmative action programs because if it chose to
make them available it certainly could do so. The Freedom
of Information Act never forbids disclosure, but only permits
nondisclosure * *
I think that what is lacking is an acknowledgment on the
part of both the Government and its contractor that the
spirit of the Freedom of Information Act requires that the
public have access to the kind of information we seek.
75 Ibid., pp. 2147-2148.
76 Ibid., pp. 2148-2149.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13: CIA-RDP74B00415R000200100008-7
32
Contractors who are making a good faith effort to correct
deficiencies in their employment, patterns have nothing to
fear from disclosure.
One compliance officer told me that an example of why
plans are considered "competitive" information and shouldn't
be made public is the case of a major city bank which pub-
lished its plan, which was a good one, and received so much
favorable publicity that it hurt its competitor's business.
Earlier in the hearings, Labor Department Solicitor Schubert was
asked about the disclosure policies of compliance agencies under
Executive Order No. 11246 affecting affirmative action plans. He de-
scribed a policy review that was then underway and stated that "the
odds clearly are that we will go for broader disclosure in respect of
affirmative action programs and perhaps compliance reviews." 77
uestions were also raised on this subject with Mr. Manuel B.
Hiller, Assistant General Counsel, Business and Administrative Law
Division, HEW. He told the subcommittee that it was the view of
HE%i"s legal counsel tliait "affirmative action plans are subject to
publication disclosure under the Freedom of Information Act * * * and
(they) cannot justify a refusal to make public affirmative action plans
when they are requested." Hiller also qc}uoted a December 22, 1971,
instruction of HE M's Office of Civil Rights: 78
Once the plan has been accepted and is subject to no more
negotiations it is OCR policy to release the plan to anyone
who requests it. In negotiating, staff members should notify
school authorities or Federal contractor(s) of this policy.
Thus, despite assurances from these two Departments, it appears
that many of the objections to disclosure policies in cases involving
affirmative action plans are still unresolved. There is little, if any,
opportunity for input by those employees currently affected by a plan
(luring the critical negotiating stages. Moreover, there is a serious
question about, the time period when an affirmative action plan is
actually considered by a Department. to be actually "accepted," so
that it would fall tinder the requirement of public release.
The subcommittee is continuing its study of the broad freedom of
information ramifications of this controversial problem.
Information on Employment of Women in Government
A similar problem involving the difficulties encountered by a pub-
lisher in obtaining information from governmental offices about
Federal ern loyment. practices affecting women was described by
Mrs. Myra 1 . I3arrer of Today Publications and News Service.79
The problem of obtaining details concerning the implementation of
President Nixon's directive' of April 21, 1971 regarding agency plans
to make greater use of women's skills in high level governmental
positions began last Septeniber when Mr. and Mrs. Barrer wrote to
affected departmi=nts for details of these governmental affirmative
action plans. Only a handful of Government agencies responded, and
then not until April 1972-some 7 months later."' Some agencies
refused to provide the information. citing exemption (b) (5) "inter-
n Hearings, pt. 5, p. 1633.
7' Ibid., P. Sass.
"Hearings, pt. 6, pp. 2175-2i79.
~a Ibid., p. 2178.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
33
agency or intra-agency memoranda" of the FOI Act. This denial was
asserted in a letter to the Barrers dated September 3, 1971, and signed
by Mr. Frederic V. Malek, Special Assistant to the President.81 Of the
63 plans requested, only 15 had been made available by April 19, 1972,
the date of Mrs. Barrer's testimony.
Broad Range of Government Activities Covered
The types of cases involving the Freedom of Information Act among
Federal departments and agencies who testified before the subcom-
mittee during the 14 days of hearings touched upon a broad range of
the activities of government both at home and abroad.
For example, the Interior Department presented correspondence
with individual citizens and groups that dealt with denials of informa-
tion concerning financial data on concessionaires in national parks;
deaths and disabling injuries in national parks; regulations of the Fish
and Wildlife Service; documents relative to water pollution control; a
report on a wilderness area, and the Treleaven report on the depart-
ment's public information function, discussed elsewhere in this report.82
Department of Transportation (DOT) General Counsel John W.
Barnum's testimony discussed the so-called Garwin report on the
supersonic transport (SST), which had been the subject of consider-
able controversy over funding in the Congress and also involved a suit
under the FOI Act.83 It also included such diverse areas as Coast
Guard information practices; access of the public to information con-
tained in research and development contracts; and the heavy caseload
of requests under the act involving the Federal Aviation Adminis-
tration.84
Mr. Ronald M. Dietrich, General Counsel of the Federal Trade
Commission (FTC), described the details of its information policies
under the FOI Act as they relate to the regulatory functions of the
Commission.85 His testimony described problems involving the types
of proprietary data provided to the FTC by companies subject to
Commission jurisdiction and regulations that have been established to
protect the competitive position of such companies.
An interesting listing of requests for information to the FTC which
have involved exemption (b) (4) of the FOI Act (trade secrets) was
provided for the hearing record. This list of typical cases provides a
good insight into the day-to-day types of cases which the Commission
receives under the act.86
The Environmental Protection Agency's (EPA) witness, general
counsel John R. Quarles, Jr., described the positive approach that
agency takes to the Freedom of Information Act: 17
At the Environmental Protection Agency, we attempt to
comply with the spirit, as well as the letter, of the Freedom
of Information Act.
The philosophy of open disclosure which that act embodies
is, we believe, a necessary part of modern government. The
81 Ibid. p. 2183. The term "working documents" was used in connection with (b)(5) a term that is not
even in t{ee language of the exemption subsection of the act.
82 Hearings, pt. 4, pp. 1280-1281; 1313-1314; 1323; pt. 5, pp. 1737-1751; and pt. 6, appendix.
83 Hearings, pt. 5, pp. 1761-1783. See Soucie v. David, 448 F. 3d 1067, 2 ERC 1626 (D.C. Cir. 1971).
84 Ibid., pp. 1763; 1766-1782. An affirmative step was taken by DOT in holding a FOI seminar in Washing-
ton on May 17i 1972 for departmental operating personnel. Experts from the Justice Department, the Civil
Service Comm ssion, and the subcommittee staff participated in a panel discussion of FOI Act principles and
administration. The committee feels that all Federal agencies should follow DOT's lead in holding such
seminars on the act at both the Washington and regional levels.
83 Hearings, pt. 6, pp. 1846-1853.
86 See listing in pt. 6 of hearings, pp. 1868-1870.
87 Hearings, pt. 8, p. 1876.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1334: CIA-RDP74B00415R000200100008-7
public will not tolerate a government that is conducted in
secret. A Federal agency that wishes to have any credibility
with the public must be frank and open in its conduct of
affairs. This is especially important for the Environmental
Protection Agency * * *.
As a new agency, it has benefited from the experiences of many
other older departments and agencies in administering the FOI
Act and, consequently, has promulgated one of the most enlightened
and positive sets of regulations to implement the act.88 Of particular
importance is EPA's procedure involving the handling of "trade
secrets" under exemption (b) (4) of the FOI Act. The burden of
justification of the trade secret claim is placed on the individual
company or individual involved.89
General counsel David Maxwell, of the Department of Housing
and Urban Development (HUD), unveiled a new set of regulations
tinder the FOI Act, promulgated on the eve of his appearance before
the subcommittee."' lie announced a policy change with respect to the
release of the names of appraisers involved in housing projects, dis-
cussed-earlier in this report. 0' The difficulty of departmental implemen-
tation of basic policy at the area or regional office levels is illustrated
by the fact that several months after the assurance given by Mr.
Maxwell, similar types of information were still being denied under
the FOI Act by II D officials outside Washington."
The importance of providing training and indoctrination of regional
and local office personnel of all Federal agencies as to the intent of
the Freedom of Information Act and how it should be administered
in the public interest was stressed in a colloquy with -HUD witness
Maxwell." The decentralized administration of vast numbers of im-
portant Federal programs makes such action imperative if the FOI
Act is to be an effective instrument in safeguarding the "public's
right to know,"
Testimony by Mr. Donald O. Virdin, Chief, Disclosure Staff, Office
of the Assistant Commissioner (Compliance), Internal Revenue Serv-
ice (IRS) and that of Mrs. Charlotte T. Lloyd, Assistant General
Counsel, Treasury Department covered some of the most serious cases
of bureaucratic abuses uncovered during the subcommittee's investiga-
tion of the. administration of the Freedom of Information Act.?i This
subject is also dealt with earlier in this report. It should be noted that
much tax data is exempt from disclosure by law.
The list provided by IRS for the hearing record which summarizes
the types of requests received under the FOI Act since July 1967, is a
revealing insight into the impact which the act has on day-to-da y
activities of a Federal agency." Almost half of the requests to IR
were denied. In addition, many of the requests recorded in the list
were for copies of printed handbooks or manuals available in the
public reading room, so that the denial record on substantive requests
under the act is even higher than the percentages show.
mid., pp. 1894-2001.
9+ Ibid., pp. 1878-I880.
"Ibid., p. 1911.
n Ibid.. P. 1911. Sue p. 13 of this report.
~~ Staff meeting with news staff of the St. Louis tJlobe?Democrat and conversations with Washington
bureau staff. (lanneit Neu spapers.
93 Hearings, pt. 6, p. 1931.
N Ibid., pp. 1563-2022 2tY2e-2027; 2030-2033. For examples see p. 23 of this report.
" Hearings, pt. 6, p. 1905.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
35
The Department of State's witness, Mr. William D. Blair, Jr.,
Deputy Assistant Secretary for Public Affairs, described the broad
range of activities involving international relations that are covered
by the department's administration of the FOI Act.96
One of the few Federal agencies not providing for an appeals process
under the act, the State Department witness explained such rationale,
but indicated that "we are presently preparing to amend these regula-
tions to provide for an administrative appeal to a higher level within
the department from an initial denial of a request." 97 Changes to
liberalize its copying fee schedule, were also promised.
Mr. Blair also discussed a case involving a request under the act
by a Cornell University professor, Mr. D. Gareth Porter, for informa-
tion concerning the list of Vietnamese landlords who rent villas, hotels,
and apartments to the U.S. AID Mission in Saigon. 98 The informa-
tion was withheld under exemptions (b) (2), (3), and (6) of the FOI
Act and title 18, section 1905 of the U.S. Code. The justification of
such action appears to the committee to be without merit, based on
the fact situation, and is typical of the types of abuses uncovered
during this investigation.
He also discussed the Passport Office "lookout list," similar in some
respects to the FCC "blacklist" mentioned previously in this report,
and the rationale behind the secrecy policy attached to such com-
puterized list. The Agency for International Development's (AID)
"watch list" of suspended or debarred importers and suppliers under
the Vietnam commodity import program was also explored as part
of the department's information policies.99 Unlike the FCC and Pass-
port Office lists, the AID list is published quarterly.
Testimony by Mr. J. Fred Buzhardt, General Counsel of the De-
partment of Defense, and statements from witnesses from each of the
three military services covered a wide scope of activities involving
the FOI Act.100
Each component part of the department has established its own
regulations based on the DOD policies set forth in their directive
5400.7. Each military department and defense agency has its own
procedures for handling requests under the FOI Act. The general
philosophy as expressed by Mr. Buzhardt is: 101
I assume that any request for a record made by a member
of the public constitutes a valid request within the purview
of the Freedom of Information Act.
It should not be necessary for an individual requesting a
record to cite the Freedom of Information Act before his
request is evaluated in accordance with the intentions of
Congress expressed in the act. Such a restriction would
obviously favor the sophisticated and work to the dis-
advantage of those average citizens who may have little
technical knowledge about the Freedom of Information Act,
yet are the very persons for whom the "right to know" is
most important.
It is, therefore, our policy to treat each request for a record
as though it was made by the most knowledgeable law firm
ae Ibid., pp. 2076-2081.
97 Ibid., p. 2078.
oa Ibid., pp, 2095-2087.
oc Ibid., pp, 2006-2098.
100Ibid., pp. 2101-2112.
101 Ibid., p. 2107.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
36
in Washington, with all the proper citations and references
to Freedom of Information Act provisions and case inter-
T tat-ions. The only requests which may be denied are those
olvi ng records which clearly come within one of the ex-
emptions of section 552(b), title 5, U.S.C.
Even then, all officials of the Department of Defense are
instructed that a record exempted under the Freedom of
Information Act should be released whenever it is deter-
mined that no significant purpose would be served by with-
holding it. Thus, for example, many records which technically
might fall within the second exemption of the Freedom of
Information Act as "internal personnel rules or practices?
of the department or agency, would routinely be released
on request because no significant purpose would be served
by refusing them; although the second exemption serves a
very* practical purpose in excusing the Department of Defense
from publishing in the Federal Register its parking regula-
tions, for example. We would, of course, provide a copy on
request because no significant purpose would be served in
withholding it.
Mr. Buzhardt's testimony also clarified another matter which had
been the subject of considerable confusion-the basis for use of the
legend "For official use only." He said: 102
* * * the marking "For official use only" does not relie--o
an official of his responsibility to review a request for a
record for the purpose of determining whether an exemption
(under the FOI Act) is applicable and whether any sig-
nificant purpose will be served by denying that record to
the requester. The reviewer may discover that the legend
was improperly applied or that the passage of time makes
it possible to release the document.
I might add that the term "For official use only" is not
properly denominated a "classification." There are only
three categories of security classification: "Top secret,"
"Secret," and "Confidential," and these all have to do with
the interest of the national security or foreign relations of
the United States.
I repeat for emphasis that "For official use only" docu-
ments can be withheld from the public only when they
come within one of the express exemptions provided by the
Congress in the Freedom of Information Act, and only when
their release would be inconsistent with a significant responsi-
bility of the Department of Defense.
Since the DO!) information directive did not require keeping statis-
tical records on requests received by the Department or its component
services or agencies, only the Air Force could provide the type of
data on requests under the. FC)I Act.101 Mr. Buzhardt noted, however,
that a February 18, 1970, memorandum from the General Counsel's
office directed "all components * * * to keep records on denials"
of information under the art. 104
:" Ibid., p. 2110.
a see subcommittee questionnaire analysis, op. cit., pp. 1333-1343.
IN Hearings, pt. B, p. 2127.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
37
A colloquy with Mr. Bert Z. Goodwin, Assistant General Counsel
of the Air Force, brought out other diverse matters involving the act
such as the denial of Air Force Academy records dealing with honor
board. hearings."' Another colloquy with Mr. R. Kenly Webster,
Principal Deputy General Counsel of the Army, dealt with the
Army's information policies in the handling of the case involving Lt.
Col. Anthony B. Herbert (retired).1116
Some of the best examples of Federal Government roadblocks to
the effective operation of the Freedom of Information Act were pro-
vided in testimony by Mr. Sanford Jay Rosen and Mr. John Shattuck
of the American Civil Liberties Union (ACLU), both of whom have
had extensive experience in FOI Act litigation.167
Among specific FOI Act cases being handled by the ACLU attor-
neys, Mr. Rosen mentioned those involving a university professor
seeking a study of Vietcong defector morale; a law review project
involving disciplinary proceedings at the U.S. Air Force Academy; a
death report being sought by a father from the Navy on the demise of
his son; and the efforts of a historian to obtain access to documents in
the National Archives that are some 30 years old.'08 It is expected
that this latter subject will be dealt with in another report.
Remedies Suggested by Witnesses To Limit Governmental
Roadblocks
A number of significant approaches to limit governmental. road-
blocks to more effective and expeditious administration of the Freedom
of Information Act were suggested by subcommittee witnesses.
It is abundantly clear, however, that procedural changes in ad-
ministrative regulations or even amendments to the act itself will not
necessarily solve the types of abuses brought to light during the course
of these hearings. This point was effectively made in the foreword of
the Attorney General's memorandum setting forth guidelines for
administration of the FOI Act 5 years ago: 109
No review of an area as diverse and intricate as this one can
anticipate all possible points of strain or difficulty. This is
particularly true when vital and deeply held commitments in
our democratic system, such as privacy and the right to know,
inevitably impinge, one against another. Law is not wholly
self-explanatory or self-executing. Its efficacy is heavily
dependent on the sound judgment and faithful execution
of those who direct and administer our agencies of Govern-
ment.
One of the key purposes of the act, reiterated in that same mem-
orandum was "that there be a change in Government [information]
policy and attitude." The committee has noted the original hostility
toward the FOI bill by the Federal bureacracy and the fact that, in
historical terms, 5 years of experience in the administration of the act
measured in these hearings is not a significant time period.
It also notes the significant efforts on the part of many Federal
agencies to comply fully with the congressional intent and the Attor-
105 Ibid., pp. 2128-2131.
106 Ibid., p. 2131.
107 Ibid., p. 2204. Their excellent analysis of leading FOI Act court cases appears on pp. 2206-2212. The
ACLU witnessess also provided for the hearing record a number of suggested amendments to the FOI
Act. Bearings, pt. 6, pp. 2234-2235.
106 Ibid., p. 2217.
105 Attorney General's memorandum, p. 111, hearings, pt. 4, p. 1081.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
39
ney General's guidelines for proper implementation of the act. It is
constrained to point out, however, that such positive implementation
and constructive efforts are spotty and are not uniform in all Federal
departments and agencies. In a number of significant instances, the
committee finds that an entrenched bureaucracy is stubbornly resist-
ing the efforts of the public to find and pry o1en the hidden doors
which conceal the Government's business from its citizens.
One of the positive suggestions presented for the subcommittee's
consideration was contained in Recommendation No. 24 of the 1971
Administrative Conference, referred to elsewhere in this report.118 The
specific recommendation in part B- -guidelines for handling of infor-
mation requests-would place at time limit of 10 working days to
respond to an original request for information under the FOI Act,
except under certain specific situations, and that final action should
be taken within 20 working days from the date of filing an administra-
tive appeal of an agency's denial of information.11'
The imposition of such a reasonable time limit would substantially
speed up (lie handling of requests under the act and help correct one
of the most flagrant and widespread bureaucratic abuses noted in the
subcommittee's inquiry- ---the stalling tactics that often cause the re-
quester of information to abandon his efforts to obtain information
because it is no longer timely for his purposes. This reform would
perhaps be, most significant in the case of the news media requests
under the act, which have not been significant in number .112 The lack
of positive use of the FOI Act byy newsmen and other media repre-
sentatives has been puzzling to the subcommittee and was explored
during the testimony of newsmen and editors who had effectively
utilized the act to obtain information from government officials."3
Another suggi'stcd way to clear the. massive governmental road-
blocks preventing more effective operation of the Freedom of Infor-
mation Act was pro osed by Mr. Mitchell Rogovin, general counsel
of Common Cause. Tie told the subcommittee: 114
Common Cause proposes one major amendment to the
Freedom of Information Act which it considers to be of the
utmost importance. Our proposal for a statutory annual re-
port by each agency to Congress is based on the belief that
no law can be enforced on the Federal bureaucracy without
continuous outside reinforcement of the spirit of the law.
We do not believe that you can leave the enforcement of
the Freedom of Information Act entirely to the initiative of
those few who can afford costly litigation. Litigation is the
exception, rather than the rule.
* * * This atendment we offer as paramount to all others
because it should help create and maintain an atmosphere
conducive to it spirit of more open access to government
information. I t would require continuous action of both the
executive and legislative branches in behalf of the people's
uo See p. 55 of this report.
ui }Hearings, pt. 4, pp. 1233-1234 for full text of recommendations.
its Sea subcommittee questionnaire analysis, op. cit. pp. 1333-43 and remarks by Chairman Moorhead
on p. 1333. Only do of the more than 2,200 denials of information over Lila 1967-71 period measured by the
analysis involved the me-ifs, or about 6 percent. Of course, this does not measure the extent to which in-
formation was obtained from government officials by newsmen by expreving Intent to the suit under the
FOI Act to obtain Information requested.
'u See hearings, pt. 4, pp. 1278, at seq.
Ill Hearinggs, pt. 5, p . 1491-1492. The problem of delay by the Federal Government In responding to
complaints in court actions under the FOI Act Is discuss l elsewhere in this report at pace 19.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 52 IA-RDP74B00415R000200100008-7
Finally, I'd be the first to admit that like any other func-
tion of Government, resources (e.g., people and tax dollars)
applied to public affairs are subject to abuse or misuse. The
best safeguard against that happening is to give the func-
tion sufficient authority and the resources to develop the
professionalism that transcends political expediency. To
the extent that it happens, the public will be better served
and what the people have a need and right to know about
their Government will no longer be an issue.
While the committee does not concede that the provision contained
in section 3107 represents any serious conflict with the responsibility
of Federal agencies to adhere fully to the provisions of the Freedom
of Information Act, it does recognize the psychological effect it has on
many Government public information officials that contributes to an
overall downgrading of status and professionalism of this vital func-
tion of modern government.
Despite the fact that this restrictive language of section 3107 is
already included in title 5 of the U.S. Code, the similar language con-
tinues to be added to the "general provisions" section of several
appropriations bills each year as a limitation on the appropriations
made for these departments and agencies.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
51
He added :
I doubt that you will find any job descriptions in the
public information service which define the incumbent as a
publicity expert * * *. Some information people, I am told,
are quietly disguised as administrative or special assistants
and they reside in innocuous places, such as personnel or
budget offices.
A atevor label we bear, and we are called many things,
our basic function and primary reason for existence is the
dissemination of information to the public. We would appreci-
ate some assurance from this subcommittee that we are not
violating section 3107 of title 5 of the United States Code,
and, thus, become instant criminals every time we dissemi-
nate information to the public, as we are required to do under
provisions of the Freedom of Information law.
This point was also made in earlier testimony by Mr. Robert O.
Beatty, Assistant Secretary of Public Affairs, Department of Health,
Education, and Welfare. Beatty told the subcommittec.'s6
* * * Without going into details of the damage that
perhaps the law has done, even though it was well intentioned
as a constraint on iackery in Government, I will say I think
it has not prevented abuses that it was intended to prevent
and has, at times, driven legitimate public affairs people
underground so to speak, because it does reflect an attitude
on the part of Congress that public affairs, public information,
public relations are somehow not quite legitimate functions
of Government.
Beatty urged that the ancient (1913) provision contained in section
3107 be superseded so as to "legitimatize public affairs as a valid
function of Government, clearly defining its functions and responsi-
bilities across the board." 76' He also suggested as other ways to
upgrade the status of Government public information: I"
In summary, what this country needs is more information
about its Government-and more resources allocated to the
task, not less. One way to achieve this would be to:
Establish an assistant secretary for public affairs in
every executive department;
Supersede the 1913 law which places the role of public
affairs personnel in Government in doubt;
Require accountability to the Cabinet level and to
Congress for public affairs planning, performance and
budgeting;
Investigate, with a view of legislative or administra-
tive action to correct, the morass of bureaucratic con-
straints to the production of effective Governmental
communications.
I urge the House. Subcommittee on Government Informa-
tion to take a hard look at these things, Mr. Chairman.
IN Hearings, pt. 5, p. 1681.
u~ Ibid., p. 1661.
"Ibid.. p. 1667.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
50
law-but it would also give proper recognition to the legitimate and
increasingly necessary role of public information officers as "the
bridge" between faceless government and its citizens.
This committee recognizes the increasing dangers of impersonal
government by computers and the adverse effect it can have as a
dehumanizing force in our increasingly complex and interdependent
society. It also recognizes that Federal programs have been expanded
into virtually every facet of human endeavor and their administration
has been greatly decentralized to the community level. There is,
therefore, an even greater need to relate such programs to individual
citizens and groups through efficient, skilled, nonpartisan public
information specialists. Otherwise, it will be difficult for many Ameri-
cans to benefit fully from the programs created and funded by the
Federal Government.
A Question of Legitimacy-Section 3107 of Title 5, United States
Code
One of the most frequently cited inconsistencies in Federal law that
affects the role of public information officials is section 3107 of title 5,
United States Code:
Appropriated funds may not be used to pay a publicity
expert unless specifically appropriated for that purpose.
The prohibition was written into an October 22, 1913, law dealing
with the Interstate Commerce Commission and has remained on the
statute books ever since, despite the vastly different role that "pub-
licity," public information, or public relations plays in our modern
industrial society. Also, our governmental structure and programs
over the past 60 years have been drastically changed but the law has
remained the same.
Mr. William L. Webb, president of the Government Information
Organization, said in his statement to the subcommittee. 149
The Freedom of Information Act, when laid side by side
with section 3107 of title 5 of the United States Code,
creates a state of schizophrenia in the minds of many govern-
ment public information employees * * *. Many government
public information officers feel they are caught in the cross-
currents of these two statutory directives, and that the
public is the real loser. The Freedom of Information law
clearly orders the Government to recognize the public's right
to know what its Government is doing. Obviously there
must be an effective and free flow of information from the
Government to the public if we are to comply with this
mandate. But the machinery to accomplish this obligation
takes personnel and money, and section 3107 can be con-
strued as outlawing funds and people for such purposes.
110 Hearings, pt. 6, pp. 2165-2156. An analysis of President Nixon's Nov. 6, 1970, memorandum directing
a .urtailment of "public relations" activities by Federal agencies may be found in pt. 6 of the hearings, pp.
2159-2167. The July 24, 1971, National Journal article by Dom Bonafede is entitled "White House Report-
Agencies Resist Nixon Directive To Cut Back Spending on Public Relations." The subcommittee has been
re ularly monitoring agency reports to OMB as required by the directive to determine the effect of cuts on
effective administration of the FOI Act. For a history of the 1913 rider, see article by Mr. Joseph S. Rosapope,
hearings, pt. 6, pp. 2170-2175.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
49
FOI difficulties and provide for continuous review and
education.
Mr. J. Stewart Hunter, former Associate Director of Information
for Public Services, Department of Health, Education, and Welfare,
put his finger on what is perhaps one of the basic reasons for the lack
of input by Government public information officials in agency de-
cisions involving the FOI Act. He said: 11b
As a member of the executive branch and as a Government
information officer, I welcomed this legislation when it was
enacted. I have been puzzled, if I may say so, at the apath r
of some of my colleagues in public information who should,
in conscience and as a practical matter, have become its
vigorous champions. They and the members of the press
should give you their enthusiastic approbation and support.
More than a month later, another witness gave indication that
efforts were underway to upgrade the status of public information
officers. Mr. William L. Webb, president of the 200-member Govern-
ment Information Organization, stated that "many times where
information is denied, the information officer himself or office has
not been consulted or not been given an opportunity to make any
input or whether or not the document should be made available." 1 7
He went on to tell the subcommittee that:
In some agencies the information officer is not placed in the
same professional category as, for example, a lawyer, an
engineer, an economist, or an accountant. Yet the informa-
tion officer is charged with the somewhat awesome re-
sponsibility of serving as a bridge between the citizen and
his government.
Webb said that his organization had set up an ad hoe committee
to review the role of the government information officer. He ob-
served : 148
It is my feeling that the mission of the public information
officer not only has never been adequately defined, but is
often misunderstood. In many agencies the information
officer plays only an administrative, or housekeeping role.
Some information people are faced with a "wish you'd go
awa r" syndrome. They feel that their agencies would
real iy prefer not to have any information officer at all, and
sometimes try, budget-wise and personnel-wise to come as
close to this goal as possible.
Public Information Role Requires Upgrading
A more clearly defined role for public information personnel in
the. Federal Government and a general uplifting of their status
within the bureaucracy are long overdue, Not only could such steps
have significant impact on more conscientious administration of
the Freedom of Information Act-both the letter and spirit of the
MI6 Ibid.. p. 1021.
+7 Hearings, pt. 6, p. 2167. A discussion or the problems of a public Information officer in gettin news
across to the media Is contained In a colloquy with Mr. Leonard Weinles of the FCC in pt. 6 of the hear-
ings. pp. 1802-1803; 1808-1810.
141 Ibid., p. 2157.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
48
If the information chief proposes to deny a request, he must dis-
cuss the situation in advance with an information lawyer in the Office
of the General Counsel, the operator who wants the information
denied, and the public information adviser.
They have had a number of seminars and conferences with low level
officials on administration of the FOI Act. And they report they
rarely charge fees for search and seldom for copies.
In responding, Mr. Robert Beatty, Assistant Secretary of Public
Affairs for HEW, said, "I think a major factor in the department's
affirmative approach to the act has been the early and continuing
involvement of public affairs professionals in its implementation.
Additionally, I think every secretary of the department since the
inception of the act to the present has vigorously supported its
intent and purpose." 142 Mr. Beatty added that HEW has confined
its denial authority to four persons, all public affairs officials.
The HEW official said "It was Congressman Moss, who determined
in 1968 that something like 18/100,000th of the entire Federal budget
is spent on the dissemination of information about what the Gov-
ernment is doing and that as much Government effort is spent to
inform 535 Congressmen as is spent to inform 210 million American
citizens. I think this is a ridiculous imbalance of this allocation of
resources and I think it is one of the reasons-and I say this in all
sincerity-that the people, regardless of party in this country, are
growing increasingly disenchanted with their Government because
they know so little about what is going on or what is supposed to be
going on or what it can do." 141
Need for Improved Public Information Capability
The problem of proper authority over information requests was
also dealt with by other witnesses, Mr. Arthur Sylvester, former
Assistant Secretary for Public Affairs, Department of Defense. He sug-
gested that the subcommittee "consider the feasibility of requiring
each agency to identify a single person as responsible for the release
of information, someone on whom you can put your finger for the
responsibility of getting the news out. I think this would tend to
reduce buckpassing." 14
Another witness, Mr. Harold R. Lewis, former Director of Informa-
tion for the Department of Agriculture observed: 146
Typically, three types of officials would be involved in
considering an FOI request or appeal-an administrator,
a legal counselor, and an information officer. The informa-
tion officer's role would chiefly be that of adviser, not de-
cisionmaker. He would have to resort to persuasion rather
than clearcut decision, and persuasion rarely carries the
weight of authority.
As a result, some FOI decisions could be made without
adequate regard for implications of withholding action.
A central point of review, with specific authority beyond
that usually provided department officers, would obviate many
112 Ibid., p. 1618.
+a Ibid., p. 1662.
u' Hearings, pt. 4, p. 1016.
'44 Ibid., p. 1017.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/137: CIA-RDP74B00415R000200100008-7
could be more devastating than when the Department of
Justice Committee says to somebody that it is indefensible
end we will not take it to court. We will not defend it, and
I think that is the end of the road right there, and there are
lawy=ers who do that, too.
A similar question concerning the proper balance between the role;
of public information officers and legal authorities of an agency was
put to another witness, Mr. Ralph E. Erickson, then Assistant At-
torney General, Office of Legal Counsel, Department of Justice. He
responded: 139
I would feel rather clearly- that if the inquiry were to
come into the public information officer, that the public
information officer should handle it to Lite extent that he can.
If he runs into a situation where he feels that it is some-
thing that he should not disclose or cannot disclose, for
some reason, he certainly, should consult the general counsel.
I would not expect that all of these thing- would be formalized
within the General Counsel's Office. That, to me, is over-
legalizing it, if you will * *
I am assuming that we have a responsible public informa-
tion officer that is going to be aware of the concerns, the
interests of the Department, and the interest of the public,
and the individual that may be involved in the disclosure
which could be harmful to the person about whom the dis-
closure is being made.
And at that. point in time we would expect a responsible
public information officer to check with his general counsel.
Health, Education, and Welfare Involvement of PIO
During the subcommittee's review of the administration of the
Freedom of Information Act, Chairman Moorhead commented on
the public information role in the Department of Health, Education,
and Welfare: 1'
HEW is the only agency in which the public information
people appear to control public information. r1 hen the FOI
Act was passed, HEW set up a special office to Melly admin-
ister it. This was part of IIEW's continuing effort-going on
ever since the Department was created-to gam some
semblance of coordination over the diverse agencies which
made up the Department.
IIEW now haw an Assistant Secretary for PubAc Affairs, the only
agency outside of Defense and State where the information function
is raised to the top operating level. Their special FOI office operates
under him.
IIEW listed as freedom of information requests only those requests
for information which were in writing and mentioned the FOI Act.
Requests go to program officials-that is, those running particular
programs such as health, social security, for food and drug, with which
the information is concerned. Anyone can grant information but only
the chiefs of public information can deny information."'
70 ibid., p. 1195.
fie Bearings, pt. 6, p. 1657.
llr Ibid., p. 1657.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
46
Executive Director is not required to seek the advice of, nor does he in
practice consult with, the Public Information Officer before acting
upon a request which raises a question of interpretation under the
Freedom of Information Act." 136
Selective Service System Ignores P10
Very few information experts in our Government are at the top
administrative level where credibility is determined and even when
they are, they are sometimes not consulted. The Selective Service
System was a prime example of the latter. Although the Chief Public
Information Officer is a super-grade and referred to as "a member of
the top-management team," he has played virtually little or no role in
advising on refusals to provide information to the public. Questions
confirming this brought forth an assurance from the General Counsel
that the situation would be rectified and the Chief Public Information
Officer would be consulted in the future."36
Contrasting View of PIO Role
A somewhat different point of view was expressed by several
attorneys who have had extensive experience in Freedom of Infor-
mation matters. Mr. Frank Wozencraft, a former assistant attorney
general who participated in the drafting of the 1967 Attorney General's
memorandum on the act, said: 137
I did not mean to imply that only lawyers should be
charged with releasing documents. As I said earlier, I think
the public information officer can be very useful in a great
many situations, but a lot of times his problem is also to
have great consciousness of the image of the agency. Some-
times if the image of the agency might be tarnished a little
bit by the document, he may be much more inclined to
withhold it rather than release it.
And my thought of having a general counsel in at the
appellate level is in case that does happen, to let us have
someone else to whom an appeal can be directed.
The General Counsel of the Civil Service Commission, Mr. Anthony
Mondello, who also served in the Justice Department and participated
in the drafting of the Attorney General's memorandum, argued for
a dominant role for agency lawyers in FOI Act cases: 118
* * * I think we should keep lawyers on the scene all of
the time because I think the lawyers in Government have
been very helpful in persuading these operation officials
who, you know, for 20 years perhaps ran an office, owned
the files, so to speak, and have been turning down everybody
under former section 3. It has been legal counsel, I think,
who has been very instrumental in letting them realize that
day is gone, and the great benefits of the act seen in the past
4 years, I think, are a direct result of that kind of working
out with lawyers with the threat that we are going to lose it
in court, and you make the agency head resist, and nothing
138 Ibid., p. 1795.
138 Hearings, pt. 6, pp. 1834-1836.
137 Hearings, pt. 4, p. 1158.
136 Ibid.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
45
Mr. MOORHEAD. Is that on an appeal or on the initial
re uest?
Mr. SCHUBERT. On appeal. The initial decision under the
rules and regulations is made by the highest officer of the unit
in the field, as I indicated, almost invariably after discussion
with the Solicitor's Office indicated, but there is nothing in
the procedure which wires the public information officer into
that process.
Mr. Moo1un AD. Well, whether the request was to Wash-
ington or to the field and then there is a denial, then an appeal
is made, to whom does the appeal go?
Mr. SCHUBERT. The appeal is to the Solicitor and what I
have said to my staff was I want to be sure whenever an
appeal is received that that appeal be coordinated and that
the process of determination regarding that appeal include
the public information officer and the Special Assistant to the
Secretary.
Chairman Moorhead told Mr. Schubert earlier that staff investiga-
tion showed initial decisions to refuse information were made for the
most part at the various operative levels within the Department of
Labor and public information experts played no part in the decisions.
"Appeals are handled by the Under Secretary after seeking the
advice of the legal office," Congressman Moorhead said. "Although
the Labor Department has an extensive public information office and
the Secretary has a special assistant who is an expert in the field * * *,
none. of the information people apparently are consulted at any
time in the public information process." "'
Interior Department PIO Role
The Interior Department also kept no records of requests under the
act; the public information office (PIO) was not consulted in handling
such requests; and decisions on refusals were made at low administra-
tive levels. Access to information requested was granted in only 40
percent of the cases.13'
Robert Kelly, Director of Communications for the Department of
the Interior, was asked by Congressman Conyers whether his office
has "ever been asked for advice on a refusal." Mr. Kelly's answer
was: "Not since I have been there, really." 133
Federal Communications Commission Ignores PIO
Some regulatory agencies, such as the Federal Communications
Commission (FCC), ignore the public information officer. Staff studies
introduced into the record during the hearings showed 36 percent of
the 98 requests to the FCC were refusetl.13' The initial decisions were
made b , the FCC Executive Director with the advice of the General
Counsel's Office. The Public Information Office was never consulted,
neither in response to an initial request for information or when an
appeal was acted upon. The FCC General Counsel., in answering a
written question submitted by the subcommittee, said bluntly: The
n, Ibid., p. 1614.
177 See sutrcommtttee nuetlonnalre analysis, hearings, pt. 4, pp. 1833-I334.
in hearings, pt. 6, p. 1714.
is' Subcommittee questionnaire analysis, op. cit., p. 1339..
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
44
Department of Agriculture is done on what I call a very
decentralized basis? In other words, each agency head has
the final say on a request for information; is that correct?
Mr. Bucy. That is correct, Mr. Chairman.
This was followed later by these additional questions and answers:
Mr. MOORHEAD. How many times in the 4 years under
the act did operating officials seek the advice of public infor-
mation experts before making the decision to withhold?
Mr. Bucy. We don't have any record on that, Mr. Chair-
man, because there we leave it to the attorneys who service
the particular agency to answer in the first instance. Then
they come to one of the divisions that happens to be under
my supervision which coordinates and keeps all of the
people in the General Counsel's Office advised of develop-
ments in this field, but we wouldn't have a record that would
be meaningful as to the number of times that we have been
consulted with respect to initial requests and decisions on
information.
Mr. M OORHEAD. I think maybe I should have directed that
question to Mr. Gifford since it asked how many times they
asked the advice of public information experts.
Mr. GIFFORD. Mr. Chairman, I have been with the De-
partment only since June 15 last year and I am trying to
recall whether anything has come to my attention since that
time. I can't recall anything coming to my particular atten-
tion. It could have been brought up with the Deputy Director.
I don't know.
Of course, on many occasions information people within
the agencies will consult with us on matters usually having
to do, however, with expediting the release of information.
This would not relate to the question of what information is
going to be withheld, but usually relates to how we can get
something moving when the information machinery, let's say,
is not turning as rapidly as it should.
Labor Department Information Practices
This issue was brought up again in testimony before the subcom-
mittee by Mr. Richard F. Schubert, newly appointed solicitor of the
Department of Labor. Chairman Moorhead queried Mr. Schubert on
whether the advice of public information officers was sought on deci-
sions by other departmental officials in providing information when
requests came to them. The response was: 110
Mr. SCHUBERT. There is not any requirement. My investi-
gation, primarily as a result of the discussion that we had
with your staff a week or so ago, revealed that the practice
was at best mixed and it was as a result of that finding that I
have asked my people in the Washington office of the Solici-
tor's Office to set up a procedure whereby not only public
information officers in the Labor Department in Washington,
but also the Special Assistant to the Secretary for Press Rela-
tions be a part of any appeal process on the decision made to
deny disclosure.
aao Ibid., p. 1622.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
V. PUBLIC INFORMATION EXPERTS AND THE FREEDOM
OF INFORMATION ACT
One would expect that when a department or agency is faced with
a question whether to withhold or release a document requested by a
taxpayer under the Freedom of Information Act, expert advice and
recommendations would be sought from that department's or rgency's
chief public information officer. But this advice often is not sought
and in a number of cases the chief public information officer may even
be unaware such a question is under consideration.
There seems to be a pattern throughout Government that these
matters are handled by the General Counsel, sometimes in consulta-
tion with a policyniaking official whose primary interest may be pro-
tecting the agency from criticism. A public information officer, if
asked for advice, might head off a number of such refusals by pointing
out that withholding can subject the agency to even more serious
criticism.
As Harold R. Lewis pointed out:128
Information people are by the nature of their training and
in the performance of their lob, more sensitive, I think, to the
general needs of the public than are technical and adminis-
trative people.
They work every day with the media people, and know
better the impact of what is going to happen, either good or
bad, based on how an information situation develops.
Refusals often raise the question, justified or not, "What is the
Government trying to hide?" A minor matter can often take on a
sinister appearance under such circumstances. Thus, the preference
always should be toward public disclosure unless solid defensible and
compelling reasons exist otherwise. There must be no doubt they can
hold up at the bar of public opinion, as well as in court.
Decentralization Problem in USDA
The subcommittee found in its hearings that some large Govern-
ment departments and agencies are set u~ under a system of decentral-
ized operations which by their organizational nature, impede the chief
public information officers in providingg the type of advice that should
be immediately available and given, This is true of the Departments
of Agriculture, Interior, and Labor, for example. The followvi.n
questioning b~ subcommittee Chairman Moorhead of Mr. Charles ~F.
Bucy, Assistant General Counsel of the Department of Agriculture,
and its Director of Information, Mr. Claude W. Gifford, is illustrative
of the problem : 129
i4ir. 11ooRHEAn. I would like to ask you gentlemen if it is
not correct that the handling of information requests by the
In Hearings, pt.4, p. 166&
m Hearings. Pt. 5, p. 1561.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1342CIA-RDP74B00415R000200100008-7
require that denials be supported with specific references to
exemptions, provide for uniform fees for furnishing records,
etc., could do as much as any single measure to assure effec-
tive implementation of the Act.125 In addition, agencies should
include in their regulations in implementation of the Infor-
mation Act a provision requiring the agency to disclose
information that is technically exempt from mandatory
disclosure where there exists no legitimate purpose for with-
holding the information. Several agencies already have such
provisions in their regulations, but the practice should be
universal.
Third, Congress should conduct periodic oversight hear-
ings, like these hearings, to assure that agencies are complying
with the act's requirements, are attempting to bring their
regulations into line with the uniform regulations, and are
generally living up to the act's objective of maximum dis-
closure.
Fourth, agencies should maintain, insofar as is practicable,
detailed statistics concerning requests for information, and
the disposition of those requests, especially denials. At
present, it is extremely difficult to obtain any meaningful
idea of the agencies' compliance with the Information Act.
Summary
The committee finds that the correction of some basic problems of
administrative roadblocks which hinder the fully effective operation of
the Freedom of Information Act, typical examples of which are out-
lined above, require significant amendments to the act. Some of the
general suggestions presented by witnesses to improve the effectiveness
of the act have also been described in this part of the report. Specific
legislative objectives to remedy the types of problems in the adminis-
tration of the act over the past 5 years, pinpointed by the subcom-
mittee's investigations, studies and hearings are described later in this
report.128 Other administrative problems, such as those involving de-
fective regulations, lack of proper training in the act, overly excessive
search and copying fees for provision of information, inadequate rec-
ordkeeping, and similar matters might be properly corrected by the
type of positive action recommended later in this report.121
146 Last year, the Committee on Access to Government Information of the Section of Administrative Law
endorsed Recommendation No. 24 in a report to the section.
126 See p. 80 of this report.
127 See p. 83 of this report.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
41
that we get into when we refuse the request * * *. I favor
that approach.
The effective administration of the FOI Act, ,vitli all its problems,
is considered by some to be largely a matter of positive attitude or
philosophic conviction that supports the principle that the public is
entitled to know the business of its government. This point of view
was expressed by 'Mr. David Parson, a Chicago attorney and Chairman
of the Committee on Government Information of the Federal Bar
Association: 121
When the head of the agency has as his basic tenet the dis-
tribution and availability of information, then it follows that
everybody or most everybody in the agency will follow his
policy; therefore, it does not become a problem for the lawyer,
and it does not become a problem for the public information
officer. It is only when the head of the agency does not set that
policy of distribution of information that it then becomes a
problem of whether we are charging too little or too much,
whether one person or another has to make that final de-
termination of what will be distributed.
So I think the crux of the matter is, as I have also seen it in
practice, is that once the beads of the agencies are aware of the
need for the public to have this information, any informa-
tion, information which does not violate the right of privacy
and national security, then all of the other problems really
melt away.
The administrative law section of the American Bar Association
(ABA) also noted that "despite general compliance with the statute
by most agencies, problems have been encountered in receiving prompt
replies to requests for agency records." 113 The ABA statement said:
The administrative law section believes that the Freedom
of Information Act is serving a useful and necessary function
in our society, and, notwithstanding the dire predictions of
some when it was enacted, has proved to be a workable
statute.
The statement recommended a number of proposals to alleviate
some of the enforcement problems: 14
First, agencies should make a greater effort to educate
information officers and other personnel at all levels of the
government as to their obligations and responsibilities under
the Freedom of Information Act, and should encourage a
spirit of maximum disclosure of Government information
among all employees.
Second, agencies should conform, insofar as is practicable,
their internal regulations with the uniform regulations in
implementation of the Freedom of Information Act recom-
mended by the Administrative Conference of the United
States. (Recommendation No. 24.) The administrative law
section believes that adoption of these regulations, which
establish specific time limitations for responding to requests,
is Hearings, pt. 4. p. 1164.
1a ABA statements, op, cit.. hearings, pt. 6, p. 1436.
"4 Ibid., p.1496.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/134bCIA-RDP74B00415R000200100008-7
Other witnesses suggested that the law be amended to provide for
the award of reasonable attorney's fees and court costs to the plaintiff
when information that is sought by an individual from a Government
agency under the FOI Act is refused and in a subsequent court case
results in a victory for the plaintiff.118
In its statement to the subcommittee, the administrative law
section of the American Bar Association (ABA) also made such a
recommendation : 119
The Freedom of Information Act should be amended to
provide for the recovery of reasonable attorney's fees and
costs by successful plaintiffs, in the discretion of the court,
in lawsuits brought under the act. At present, the substantial
expenses of litigation may well discourage many citizens from
bringing suits under the act even where the agency has clearly
withheld information wrongfully.
Another witness, Washington attorney Jacob A. Stein, suggested
a procedure similar to that under the Federal Tort Claims Act: 120
Denial made at the agency level, I would suggest, must be
made within 60 days. I use the 60-day figure because many
times the information really is not available to the agency on
a good faith basis. However, in making a denial, the agency
must specify the defenses pursuant to the act, and that
specification must be made in good faith. No defense may be
raised when this matter is litigated unless such defense was
presented at the agency level. Upon hearing in court, if the
court finds that a defense raised at the agency level was not
made in good faith, the court shall award reasonable at-
torney's fees and costs upon such finding * * *.
A more extreme approach to the governmental FOI Act roadblock
problem was discussed in the following colloquy between Representa-
tive Frank Horton and Interior Department Solicitor Mitchell
Melich.121
Mr. HORTON. Does the Department of the Interior have
any recommendations with regard to changes in the Freedom
of Information Act prompted by experience in working with
it * *
Mr. MELICH. I would say to the committee that I think,
in order to have a much freer flow of information, that the
act ought to be amended to have specific sections requiring
the Government to make disclosure, and I think where
the difficulty is, is that you leave that to the discretion of us
in the bureaucracy. That is where we have our difficulty and
I realize it is a difficult thing to write the kind of mandatory
regulation which I think ought to be in the act so that there
would not be any question about some of these gray areas
118 For example, see statement by Mr. Robert Ackerly, hearings pt. 5 p 1432; sec. 2412 of title 28 of the
United States Code presently permits the award of court costs to plaintiffs in civil suits against the Federal
Government in certain instances. Costs and attorney's fees are authorized in certain civil rights cases; see
42 U.S.C. 2000(e)-5(k).
11# Hearings, ppt. 5, p 1436.
120 Ibid., pt. p. 1392.
121 Ibid., pp. 1731-1732. An earlier witness, Mr. Frank M. Wozencraft, bad proposed that agency budgets
have line items devoted to "compliance with the FOI Act." He argued that this would remove the most
prevalent excuse for failure to comply with the act and enable the agency to be held more strictly account-
able. See hearings, pt. 4, pp. 1073-1074.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
39
right to know. It would provide an annual forum for the
expression of and scrutiny by public opinion.
The amendment would require that every government
department, bureau, or agency submit annually to Congress
a report which would detail, item by item, the record of each
agency's res ponse to requests for disclosures of information
under the Freedom of Information Act. It would, in effect,
require an accounting of each and every refusal to disclose the
information requested * * *.
As Common Cause has indicated, this amendment would "institu-
tionalize" the ty pe of work of the subcommittee in preparation for
these hearings-t le collection of statistical data on administration of
the act over a 4-year period, analysis of such data, investigation of
allegations of abuse of the exemptions under the act, and similar types
of oversight activities.
Still another type of remedy is directed toward the "foot-dragging"
government official who uses every conceivable device to delay making
information available under the FOI Act. The dimensions of this prob-
lem were described by Mr. William A. Dobrovir, a Washington attor-
ney who has handled a number of freedom of information cases:
The first problem is the intransigence of Government
officials. Basically, they do not believe in freedom of informa-
tion. They believe that the public's business is their business,
and not the business of the public. Until there is a fundamental
change in the attitude on the part of Government officials,
either by process of education, or by a process of some kind
of court sanction, I do not believe that the set is going to be
administered. Government officials engage in delay. In one
case, in which I represented the plaintiffs and in which we
were ultimately successful, there was a 5-months' delay in the
response to the appeal, which does nothing but add additional
delay into the process, because never have I heard of a
Government agency on appeal overturning the initial denial
of access to information.' 6
The administrative appeal delay, added to the delay in responding
to an original request for information, could be effectively dealt with
b a time limitation such as recommended by the Administrative
Conference and discussed earlier. Another witness, Attorney Bernard
Fensterwald, Jr., suggested a 2-week limitation on an original request
within the agency and a 2-week limit on appeal.116 He also proposed
an additional enforcement penalty:
We might give some thought to a monetary penalty on
the agency that withholds. For example, suppose the
Defense Department wrongly withholds. If you charge them,
for example, $100 a day from the day that the funnel request
was put in until the court finally ordered that the documents
be shown, this would be some incentive for them not to with-
hold when they should not, and too, not to drag their feet,
because every day they are dragging their feet they lose and
it is costing them $100 a day * *, f7
Ht Ibid., p. 1394. Other examples of delay are found to the ACLU statement, hearings, pt, 6, pp. 2212-
2213-
M Ibid. p. 1877. A similar proposal was made by Mr. Richard Wolf, hearings, pt. 4, p. 1066.
nr Hearings, pt. 6, p. 1432.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
VI. THE HIGH COST OF INFORMATION
One of the related perplexing problems of individual citizens in
obtaining information from Federal agencies has been the matter of
fees charged for search and copying of material to be made available
under the Freedom of Information Act.
Section 552(a)(3) provides, in part:
Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, or
request for identifiable records made in accordance with
published rules stating the time, place, fees to the extent
authorized by statute, and procedure to be followed, shall
make the records promptly available to any person * *
This language and references in the legislative history make it clear
that Congress intended that "search and copying fees" authorized
under existing statutes could be charged for records made available
under the act.153
Guidelines set forth in the Attorney General's Memorandum further
emphasize this point: 154
The provision authorizing agencies to require payment of
a fee with each request for records under subsection (c)
makes it clear that the services performed by all agencies
under the act are to be self-sustaining in accordance with
the Government's policy on user charges * * *
The law (5 U.S.C. [1964 Ed.] 140) referred to in the House
Report as directing Federal agencies to charge a fee for any
direct or indirect services such as providing reports and
documents provides the statutory foundation of the user
charges program * * *
The statute further authorizes the head of each agency to
establish any fee, price, or charge which he determines to be
"fair and equitable" taking into consideration direct and in-
direct cost to the Government, value to the recipient, public
policy or interest served, and other pertinent facts * *, *.
User Charges
User charges policy for Federal agencies is contained in Office of
Management and Budget Circular No. A-25 "User Charges." 155 The
circular provides that "where a service or privilege) provides special
benefits to an identifiable recipient above and beyond those which
accrue to the public at large, a charge should be imposed to recover
the full cost to the Federal Government of rendering that service."
133 H. Rept. No. 1497, 89th Cong., 2d sess., p. 9.
131 present reference isesubsee.. (3) ofeP blic Lawt90 23 (5 U.S.C.352(a)(3)) as The contained
refe reference to hecusLaw
er
harges
statute (cited above) (5 U.S.C. 146) has been codified as 5 U.S.C. 483(a).
166 Issued Sept: 23, 1959 (revised October 22, 1963).
(53)
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
54
The circular provides some broad guidelines to be used in (1) deter-
mining the costs to be recovered, (2) establishing appropriate fees,
and (3) providing for the disposition of receipts from the collection
of fees and charges.
The Attorney General's memorandum further observes: 1b6
It is evident from the provisions of the user charges statute,
the Bureau of the Budget circular, and the legislative history
of the act that the enactment does not contemplate that
agencies shall spend time searching records and producing
for examination everything a member of the public requests
under subsection (c) (now subsection (a) (3)) and then
charge him only for reproducing the copies he decides to buy.
Instead, an appropriate fee should be required for searching
as distinguished from a fee for copying. Such fees should
include indirect costs, such as the cost to the agency- of the
services of the Government employee who searches for,
reproduces, certifies, or authenticates in some manner copies
of requested documents. Extensive searches should not be
undertaken until the applicant has paid (or has provided
sufficient assurance that ho will pay) whatever fee is deter-
mined to be appropriate.
* * * Charging fees may also discourage frivolous request,
especially for largo quantities of records the production of
which would uselessly occupy agency personnel to the det-
riment of the performance of other agency functions as well
as its service in filling legitimate requests for records.
This committee's 1968 committee print containing a staff compi-
lation and analysis noted that after 1 year of operation the problem
of fees was already apparent: 187
Another aspect of the law which could be used to block,
rather than facilitate access, is the reference to fees (to the
extent authorized by statute) to recover the costs of clerical
handling of information requests. The intent of the law was
to make information available to the public, yet some
agencies have raised possible financial barriers using the fee
device.
The analysis went on to cite the wide disparity of fees provided for
in various agency regulations and the lack of any uniform standards.
It stated further:
Although the Freedom of Information Act does not address
itself to the possibility that request for information may be
considered frivolous by the agencies, the Attorney General's
memorandum states: 'Charging fees may also discourage
frivolous requests .' In view of the wide range of applica-
tion and search fees, it appears that there is no agreement on
the use of fees to discourage `frivolous requests,' although
spokesmen for several agencies concede that this is the reason
for some of their charges. Neither in the law nor in the
Attorney General's memorandum is there a definition of
`frivolous' or a suggestion for the establishment of adminis-
"I rp. 26-27.
I 1 16td., p. 6. 800 footnote 12.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/155 CIA-RDP74B00415R000200100008-7
trative machinery to determine if a request is `frivolous,'
thus some agencies have abrogated to themselves more
power in the handling of public information than the law
intended.
During the subcommittee hearings, considerable attention was de-
voted to a discussion of fee schedules of various Federal agencies and
the extent to which such search and copying fees were being used to
deny information that Congress intended to be made available to
the public upon request under the act. Executive branch witnesses
were also requested to supply information on the amount of fees
collected under the act during the previous fiscal year.'58
Valuable insights into the scope of this problem of administrative
problems and fees were furnished by Mr. Roger C. Cramton, Chairman
of the Administrative Conference of the United States, during his
testimony on March 14, 1972.111 The Conference had undertaken
some 2 years ago a detailed study of the implementation of the
Freedom of Information Act and in May 1971 had adopted Conference
Recommendation No. 24, entitled "Principles and Guidelines for
Implementation of the Freedom of Information Act." The recom-
mendations have been transmitted to all Federal departments and
agencies and, while not binding upon them, should receive most
serious consideration because of the prestigious makeup of the
Conference.
Among the important recommendations of the Conference were
those set forth in "Part A, General Principles": 180
(1) A restrictive interpretation of the exemptions authoriz-
ing non-disclosure;
(2) Full assistance and timely action on public request for
information;
(3) Disclosure to the fullest extent possible of all but exempt
parts of documents;
(4) Specification of reasons when requests for information
are denied, together with a statement as to how the denial
may be appealed and to whom; and, finally,
(5) Minimum fees for providing information, which
should be waived when it is in the public interest to do so.
Part B of Recommendation No. 24 provides that each agency
should adopt procedural rules to effectuate the above principles and
details guidelines as a model for the kinds of procedures that are appro-
priate for such purpose.
Part C of the recommendation calls upon each agency to establish
a fair and equitable fee schedule relating to the provision of informa-
tion. It also proposes that a committee of representatives from the
Office of Management and Budget (OMB), the Justice Department,
158 For examples of response, see hearings, pt. 5, pp. 1595,1625,1679, 1713, 1763. See hearings, pt. 6, appendix
for a listing by agency; see also p. 58 of this report.
159 Hearings pt. 4, pp. 1219-1251. The Administrative Conference of the United States, a permanent,
independent 'Fedoral agency, is engaged in the improvement of the procedures of Federal departments
and agencies. The objective of the Conference is to assist agencies in the more effective performance of their
functions while providing greater fairness and expedition to participants and lower costs to taxpayers.
180 Ibid., p. 1221
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
1%
and the General Services Administration (GSA) should establish
criteria for determining what are "fair and equitable fees."
Conference Chairman Cramton told the subcommittee: "If
Recommendation 24 was communicated to all Federal
agencies. They were asked to consider it seriously. They were
also asked to respond to us by a given date as to the extent
to which they had taken action pursuant to it and what
further plans they had for such action. We have now re-
ceived comments from all but a handful of Federal agencies.
Looking first to the five general principles of the recom-
mendation, the record of compliance revealed by these agency
responses is good. This assumes, of course, that compliance
means a statement of intention to adhere to these principles
in practice as distinguished from merely having them publicly
stated in regulations. On this basis, we have rated about 25
agencies as in substantial compliance with the policies of the
recommendation, and 11 agencies in partial agreement, with
further study underway.
Mr. Cramton went on to point out, however, that with respect to
"compliance with the major specific proposals of the guidelines, the
record becomes more checkered."
The Office of Legal Counsel, Department of Justice, took the
initiative in calling a meeting of the interagency committee recom-
mended in part C. The 0MB and the GSA joined Justice in the inter-
agency committee study of fee schedules and the following conclusions
were reached : 162
(1) Fee schedules for routine reproduction or photocopying
of documents are often too high;
(2) Charges for time spent in routine search or in monitoring
reproduction should be at a clerical rate;
(3) Considerable flexibility is necessary with respect to fees
for nonroutine compilations and reproductions of files
where starches may require use of professional, op-
erating, or management personnel. This last problem
is particularly acute because to charge actual costs
would often result in a prohibitively high fee, thus
frustrating the primary intent of the Freedom of In-
formfition Act.
OMB Director George P. Shultz stated in a letter to Chairman
Moorhead dated March 6, 1972: t '
0MB joined with Justice and GSA to establish a com-
mittee as recommended in part C of the Conference's Recom-
mendation No.. 24. 'l'he committee concluded that fees
charged by agencies were lacking in uniformity and in some
cases appeared to be excessive, and recommended that these
matters be brought to agency attention. Action to give
III ibid., p. 1222; we pp. 1232-1136 for text of Recommendation No. 24; the staff work was done by Prof.
Donald A. Oiannella, Professor of Law, Villanova Law School; we p. 66 of this report for additional
diseuusion of Recommendation No. 24. The new head of the Office of Legal Counsel Is Mr. Roger C. Cramton
who, as Chairman of the Administrative Conference of the United States testified before the subcommit-
tee on Recommendation No. 24 to Improve the administration of the Fo`i Act.
tar Ibid., p. 1223.
'w The text of 0M13 Director Shultz, memorandum appears at pp. 1231-1232 of pt. 4 of the hearings.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
57
effect to this recommendation of the interagency committee
is now in process, and I will be pleased to make a further
report when that action is completed.
Subsequent to the issuance of Recommendation No. 24 by the
Administrative Conference, Chairman Moorhead requested the
General Accounting Office (GAO) in a letter dated July 19, 1971, to
investigate the appropriateness of fees charged by Federal agencies
for searching and copying. Several meetings between the subcom-
mittee staff and GAO investigators resulted in inquiries to the inter-
agency committee established by Justice, OMB, and GSA as to
progress being made on their study, so as to avoid unnecessary dupli-
cation of effort by GAO. Conclusions of the interagency committee
as stated above were duly referred to OMB because of its overall
responsibility for the administration of user charges through Circular
No. A-25.
On May 5, 1972, Chairman Moorhead was advised by letter from
Mr. William L. Gifford, Special Assistant to the President, that a
memorandum, dated May 2, 1972, had been sent to the heads of all
executive departments and agencies "asking that they initiate a
review of their agencies' charges for search, reproduction, and certifi-
cation of records. The purpose of this review is to determine whether
some reductions of current charges could be made while continuing
to cover the costs of providing the service. The memorandum em-
phasizes that fees should not be set at an excessive level for the purpose
of deterring requests for copies of records." 184
Mr. Cramton summarized the findings of the Administrative Con-
ference's survey of agency fee schedules in his testimony: 186
Almost every agency has a rule which calls for charging
fees.
Almost every agency has a rule permitting the waiver of any
charge .in appropriate cases and most make no charge where
costs would be $1 or less * *
Several agencies have a mandatory minimum charge for
handling information requests whether any documents are
provided or not. But mandatory fees are often not charged
even when applicable * *
Copying charges vary widely, from 5 cents per page at Agri-
culture to perhaps as high as $1 per page at the Selective
Service System. A charge of 25 cents per page is most
common.
Clerical research charges vary widely, from a low of $3
per hour at the Veterans' Administration to as much as $7
per hour at the Renegotiation Board.
The committee is concerned over the real possibility that search
fees and copying charges may be used by an agency to effectively
deny for exemption under subsection (b) of the act. As Chairman
Moorhead pointed out during the hearings, many agencies have cir-
cumvented the copying cost problem by leasing copying facilities to
private companies who charge the public for the services. Such
"4 Hearings, pt. 4, pp. 1223-1224.
lee Ibid., p. 1218. A table showing typical agency fees for the production of documents compiled by the
Conference appears at p. 1246.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
58
charges-which obviously include a profit margin for the company-
are also a matter of concern to this subcommittee.'"
Fee Problems Under Freedom of Information Act
Several witnesses detailed their experiences with Federal agencies
on the fee problem.
Reuben B. Robertson, III, an attorney with the Center for the Study
of Responsive Law, testified:
My own view is that the search fee should be eliminated
entirely, because it is essentially inconsistent with the basic
provision of the Freedom of Information Act that the
Government should properly index and file and maintain its
rceords.
The only reason that a search fee would be necessary is
that there is no index in the agency of what information is
available and where it is located. Very few, if any, agencies
have gone to any kind of automatic data processing. Very few
have comprehensive resource-s where you can go and find out
what is available, and how you can get it, and whom you are
supposed to ask.
One particular incident, which demonstrates the inten-
tional harassment aspect, occurred when one of the students
working under me in a study of air safety asked an official at
the Federal Aviation Administration for the names of the
26 inspectors who reported directly to him. He was charged
a search fee for that information. 't'hat is typical of what can
happen.
Mr. Harrison Weliford, also with the Center for the Study of Re-
sponsive Law, de:4cribed to the subcommittee a case involving a scien-
tist teaching at the University of Georgia who requested information
on pesticides from the Department of Agriculture (USDA) and was
asked to give some assurance "that he could pay at least a fee of $100
before they would go to the trouble of making the search." 18'
He Went on to detail a personal case. with the Department of Agri-
culture, also involvingg pesticide information, in which the "USDA
stated that if the information were made available, it would cost
$91,840 to prepare the registration files for public viewing." 168
Still another witness, Mr. Bertram Gottlieb of the Transportation
Institute, told the subcommittee of his efforts to obtain information
from the Maritime Administration on all ships that had been pur-
chased by American operators from the U.S. Government under the
Ship Sales Act of 1946 and the amounts of operating differential
subsidies each received from public ?unds.A' His request was turned
down as being "too broad," whereupon he submitted the names of
each of the ships, obtained from another source. The Maritime Ad-
ministration then quoted a minimum fee of $8 an hour for its personnel
to produce the subsidy information requested, working on weekends,
or a total minimum fee of some $12,000. Mr. Gottlieb testified that
after "considerable dickering", he received permission to employ
tw Ibid., p. 1262.
III? Ibid., p. 1263.
I" 11-id., p. 1265. This matter was discussed by a ]USDA witness, see hearings, pt. 5, p. 1638 and 1596.
IN Ibid., p. 1270-1271.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13: CIA-RDP74B00415R000200100008-7
some university students to review the agency records and in this
way finally obtained the data he was seeking.
The imposition of fees by agencies for searching and copying infor-
mation sought under the provisions of the FOI Act is further compli-
cated by the agency's administrative costs. Chairman Moorhead
pointed out: 170
Although the authority to impose fees was designed to off-
set the cost of the Government for the provision of requested
information, it is questionable whether this intent is effec-
tively being carried out. One regulatory agency did a
statistical study of this problem. About 34,000 items for
which a fee could have been charged were handled during
the fiscal year in question. The fees collected would have
amounted to about $17,000. However, some 11,000 bills
would have been mailed to collect those fees. Since it costs
this agency $1.60 to send out a bill, the cost of billing would
have been about $17,600--or about $600 more than the
amount they could have collected. At last word, the agency
is still pondering the problem.
During the hearings, departmental and agency witnesses were
asked to furnish statistics on the amount of fees collected during
fiscal year 1971 for search and reproduction of records made available
under the FOI Act. Some departments, such as Defense and Trans-
portation, said that they kept no such records; others provided esti-
mates. The total fees collected by the 10 responding agencies that kept
records was $345,955.171
170 Ibid., p. 1218. The agency referred to is Federal Power Commission.
171 See hearings, pt. 6, appendix for a listing by agency.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
VII. PUBLIC INFORMATION VERSUS PUBLICITY
It is axiomatic that the requirement for Government agencies to
inform the public about their activities can result in npropaganda.
The line between "public information " "publicity or public relations,"
and "propaganda" is fine indeed and, like beauty, is often in the eye
of the beholder.
Mr. Robert 0. Beatty, HEM' 's Assistant Secretary for Public
Affairs, testified : 17'
Generally, in government, public information is "good"
and public relations is "bad," because it's supposed to
connote some sort of self-serving jropaganda effort for the
perpetuation of bureaucrats or politicians.
As discussed elsewhere in this report, Beatty preferred the term
"public affairs," and urged repeal of the 1913 statute which prohibits
the use of appropriated funds to pay a "publicity expert.' 178 Such
action is necessary to help legitimatize essential Government informa-
tion activities and to raise the role of public information personnel to a
higher level of professionalism and status within the agent to enable
them to fully participate in effectively administering the Freedom of
Information Act.
Warnings against press agentry or image making by Federal agencies
apply equally to those which seem to be administering the FOI Act
properly, as well as to those agencies which have made few changes in
their public information policies and practices since the now law took
effect. Examples are apparent in the old line agencies like the Depart-
ment of the Interior and in new agencies such as the Environmental
Protection Agency (EPA), established after the enactment of the
F0I Act.
The Image of EPA
"A Federal agency that wishes to have credibility with the public
must be frank and open in its conduct of affairs," John R. Quarles, Jr.,
general counsel of EPA, testified about his agency's implementation
of the Freedom of Information Act."'
EPA witnesses also testified that final authority on refusals of access
to public records rests with the a ency's public affairs officers and that
other provisions of the act are administered to speed the disclosure of
information. For instance, tight limits are applied to the time EPA
officials may take to make disclosure decisions, and fees for search and
copying public records often are waived. Such forward-looking pro-
visions for public access to EPA information can, however, be nullified
when information activities become publicity-seeking devices.
Shortly after testifying to EPA's steadfast commitment to a proper
Government information program the agency selected two New York
in hearings. pt. 5, p. 188,6.
1.r For a diseua ton of this aspect of public intonnetion's role in tiocernment, see pp. 49 and 50 of this report.
lit hearings, Pt. 8, p. 1878.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
61
City agencies to develop plans to advertise the work of EPA. Both
agencies were to develop comprehensive advertising plans to cover,
among other things, "the image of EPA projected through advertis-
17s
ing.> One of the image-making companies was to concentrate on
advertising strategy for inner city programs. The other company was
to worry about the EPA's image in the rest of the nation.
The agency selected to handle the overall EPA "image problem"
is Geer, DuBois & Co. of New York City; the agency selected for an
"inner-city image-making plan" is John F. Small, Inc., of Now
York's Madison Avenue. Both agencies were directed to make sure
their employees working on the project were thoroughly familiar with
EPA's mission and the environmental problems it is supposed to
help solve-details which the EPA's full-time public information
staff would not have to spend time learning.
The price EPA paid the advertising agencies to find out. EPA's
mission and develop an advertising program to sell EPA to the public
was $101,535. The contracts were of an open-end nature, with wage
rates pegged on an hourly basis for 22 employees specifically named
in the contracts. The contracts call for the hourly rates to be paid
"for the duration of this agreement," which is to be 1 year from the
date the contracts are signed.178
For John F. Small, Inc., the hourly wages range from $50 an hour
for Small himself and two of his top associates down to $25 an hour
for a print production supervisor. For Geer, DuBois & Co., Inc., the
hourly wages range from $50 an hour for Peter Geer and $40 an hour
for his executive vice president, down to $16 an hour for a production
and traffic operator.
The Interior Department's Publicity Program
The Department of the Interior confuses "image-making" with
"public information" on a slightly smaller scale than EPA. The agency
paid $121 a day to a political publicity man to recommend improve-
ments in Interior's public information practices and then decided that
the public information report was not a public record under the FOI
Act.
Harry Treleaven, who worked in President Nixon's successful 1968
campaign and was a leading character in the book "The Selling of the
President, 1968," prepared a report to Interior Secretary Rogers C. B.
Morton on the information and public relations activities of the
Department.177
The 85-page report was presented in April 1971. It included 18
pages of general observations and recommendations with the remain-
der covering in slightly more detail the information activities of the
Department's 11 divisions.178
Ward Sinclair, a reporter for the Louisville Courier-Journal, asked
for copies of the Treleaven report but was refused. He appealed the
refusal under the Freedom of Information Act but was again refused.
Mr. Mitchell Melich, Solicitor of the Department of Interior, argued
16 For details of these contracts see hearings, pt. 6, appendix.
176 Ibid.
177 This case is discussed at length in the hearings; see pt. 4d pp. 1280-1251 and also pt. 5, pp. 1743-1751.
A. article by columnist Jack Anderson, revealing portions of the Treleaven report appears on pp. 1740-
1741 of the hearings.
176 This 18-page portion of the report may be found on p. 1744 of pt. 5 of the hearings.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/132 CIA-RDP74B00415R000200100008-7
that the Treleaven report, designed to improve the Department's
publicity practices was an "internal document" and exempt from
public scrutiny under section (b)(5) of the Freedom of Information
Act. He also testified: t7Q
Just as important was the fact that disclosure would
result in an unnecessary invasion of the personal privacy
of those department employees named in the report.
The Department had sent the Treleaven report to a number of
Members of Congress, and also made it available to the Foreign
Operations and Goverment Information Subcommittee. Chairman
Moorhead sent the subcommittee copy of the report back to the
Department, pointing out that only the last sections named Interior
Department employees and suggesting that the general comments and
recommendations in the first 18 pages of the Treleaven report be made
available for the subcommittee's public record."?
The Department reluctantly agreed to make public the first 18
pages of the report except for a single paragraph which, Solicitor
Melich argued, contained "references to named individuals, the dis-
closure of which could Prove an unwarranted embarrassment to those
individuals." In spite of the fact that the FOI Act permits withholding
under the privacy claim only if the information would constitute a
"clearly unwarranted invasion of personal privacy", Solicitor Melich
argued: ten
When the Secretary sought the advice and counsel of Mr.
Treleaven a confidential relationship was established. Dis-
closure of Mr. Treleaven's views with respect to a particular
individual could result in personal embarrassment without
serving any useful purpose.
The University of Missouri Freedom of Information Center for-
mally asked for access to the first. 18 pages of the Treleaven Report,
including the single censored paragraphs. Apparently, investigators
for the center had access to the censored section--a section which had
been included in the document given to many Members of Congress
and circulated in the Interior Department. When the center appealed
to Secretary of the Interior Rogers C. B. Morton to lift the censorship
of the offending paragraph, the center identified the employee who
might be embarrassed by identificaLion. 1B2
Harry Treleaven's censored paragraph had recommended that the
Department's publicity practitioners should make greater use of Secre-
tary Morton on television, getting him visually involved in newsworthy
events. Treleaven's report said:"'
Secretary Morton is not only the most photogenic member
of the administration-but lee's also able to participate
physically in all kinds of outdoor situations and look natural.
It's important that the communications program make full
use of this, because it's a way of making sure that the Secre-
tary's statements get maximum exposure, as well as building
ne Ibid., p.1695.
fie Correspondence relative to the report is In pt. 5, pp. 1748-1744; 1749-1751 of the hearings.
L'i Ibid., p. 1751.
182 Hearings, pt. 6, appendix, pp. 2275-2278.
Ip Hearings, pt. 8, appendix, p. 2276.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 CIA-RDP74B00415R000200100008-7
69
valuable goodwill for the Department and the administration.
Information officers in each of the Bureaus should be required
to submit, on a regular basis, ideas for this kind of involve-
ment. (Every time this was suggested in an interview it
immediately sparked ideas.) And arrangements for motion
picture and still photography should be built into all personal
appearance plans.184
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
VIII. THE DEPARTMENT OF JUSTICE'S ROLE IN THE
ADMINISTRATION OF THE FREEDOM OF INFORMA-
TION ACT
Shortly after the Freedom of Information Act was signed into law
in 1966, the Department of Justice was assigned the task of preparing
guidelines for the administration of the act by Federal departments
and agencies. Supervision for the project was assigned to then Assistant
Attorney General Frank M. Wozencraft, Office of Legal Counsel
(OLC) tit the Department.7B6
These comprehensive guidelines, published in June 1967, were
officially entitled "Attorney General's Memorandum on the Public
Information Section of the Administrative Procedure Act." The
memorandum served as the basis for the drafting of regulations by
executive agencies for the administration of the FOI Act, which
became effective the following month.188 Next to the. act itself, and the
legislative history contained in committee reports and debates on the
bill, the Attorney General's memorandum has become the single most
important. interpretative document upon which executive departments
and agencies rely to defend judgments on what information should be
made available to the public under the act.
The foreword to the memorandum by Attorney General Ramsey
Clark set forth the general principles accurately reflecting congressional
intent in enacting the FOI Act and correctly pointed out that: 187
* * * Law is not wholly self-explanatory or self-executing.
Its efficacy is heavily dependent on the sound judgment
and faithful execution of those who direct and administer
our agencies of Government.
This observation is particularly important in the case of the FOI Act
which represented such a vast departure in both the philosophy as well
as the information practices of the Federal bureaucracy.
As Mr. Wozencraft stated: 188
The act was a watershed event, because it. reversed the
philosophy of releasing Government information. Previ-
ously, the Government would withhold the document
unless it was persuaded that there was a valid reason to dis-
close it. Now, it must release the document, unless it can
establish a valid reason to withhold it. That was, and is, and
should be, a cause for jubilation in itself, even though its
promise has yet to be entirely fulfilled.
As the hearing record clearly shows, the laudatory principles and
goals set forth in the memorandum have seldom been achieved by
I+'ederal agencies in their administration of the I'OI Act. Part of the
reason may be attributed to sections of the memorandum, which
'u Mr. Woramcraft testified before the subcommittee, hearings, pt. 4, pp. 1068, et seq.
"See pp. 5-6 of this report for background dJscusslon of memorandum.
187 Attorney General's memorandum, see p. 4 of this report.
iu Bearings, pt. 4, p. 1069.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1305 CIA-RDP74B00415R000200100008-7
in its overall tone and in detailed discuFsions of the exemptions of
subsection (b) of the act leans toward. a restrictive interpretation of
these key provisions. Conflicting language in the House and Senate
reports on the legislation and the natural tendency of an executive
department to interpret any act in their favor may have contributed
to the direction taken in this guideline document.
The memorandum stressed an important principle of the act-that
the use of the nine exemptions of subsection (b) is permissive and not
mandatory, a point that many Federal agencies do not adequately
reflect in their administration of the act over the past 5 years. The
memorandum stated: 189
* * * Agencies should also keep in mind that in some
instances the public interest may best be served by disclosing,
to the extent permitted by other laws, documents which
they would be authorized to withhold under the exemptions.
Mr. Wozencraft pointed out in his testimony that in the drafting of
the memorandum, the interpretations of provisions of the FOI Act
could only be "our best effort" and that "definitive answers" neces-
sarily had to await judicial rulings to provide more clear interpreta-
tions of some of the ambiguous portions of the statute.110
There is no question that in the drafting of the memorandum, the
Justice Department officials who were responsible made conscientious
efforts to provide an equitable guideline basis for administration of
the act. Mr. Wozencraft testified that he and his staff consulted with
general counsels of Federal agencies, with the staffs of the two con-
f ressional committees which had jurisdiction over the legislation, with
ar association groups, and with various organizations representing all
segments of the news media.l91
Justice Department's Triple Role
The Department of Justice plays three roles under the Freedom. of
Information Act. First, as an executive department, it is an "agency"
under the act and is subject to all of the same administrative pro-
cedures in making information available under the act as are other
Federal agencies!"
The second important function of the Department of Justice is its
role as legal counsel to the Federal Government. As the executive
branch's "law firm", the Department has exercised considerable
influence over the operation of the FOI Act since its enactment. Then
Assistant Attorney Ralph E. Erickson told the subcommittee: 193
* * * The Civil Division of our Department handles the
litigation for most Government agencies when suit is filed
under the Freedom of Information Act. A status report
indicated that as of January 1, 1972, the Civil Division had
46 freedom of information suits pending in some stage of
litigation * * *.
1e2 Attorney General's memorandum, pp. 2-3.
1 D Hearing"' pt. 4, pp. 1070-1071. For a valuable study by the American Law Division, Library of Con-
gress entitled, "The Freedom of Information Act: Comparison of the Case Law With the Attorney Gen-
eral's Memorandum," see hearings, pt. 0, p. 2254.
141 Ibid.
92 The Department's own administrative record of handling FOI requests is discussed in the hearings,
pt. 4 pp. 1175-1177.
103 ibid., p. 1177. An estimated 200 suits have been filed under the FOI Act.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
66
In information subsequently furnished to the subcommittee on the
details of the Civil Division's role in handling litigation under the
FOI Act, the number of cases had risen to 48 as of March 1, 1972, of
which number some 12 cases "were being handled directly in all
respects by Civil Division attorneys." In two additional cases, "briefs
were prepared by Civil Division attorneys and filed although the oral
argument was left to the U.S. attorney's office." 1"
The third, and most vital role played by the Justice Department
affecting the governmentwide policies for administration of the Free-
dom of Information Act is the advisory or consulting responsibilities
exercised by the Office of Legal Counsel through its Freedom of In-
formation Committee, currently headed by Mr. Robert Saloschin.
Mr. Erickson described in his testimony the broad groundrules: 195
* * * In such (FOIJ cases, our functions are limited by the
decentralized administration of the act, as prescribed by
Congress, in requiring each agency to act on requests for its
own records. In other words, we generally have no authority
to compel another agency to comply with a request for its
records. Subject to this limitation, the functions of the
Justice Department in freedom of information matters are
counseling, coordinating, and representing other agencies in
court * * *.
Work of the Freedom of Information Committee
The Freedom of Information Committee, composed of five lawyers
from the Office of Legal Counsel and the Civil Division, was created
by it December 8, 1969, memorandum cosigned by Mr. William H.
Rehnquist and Mr. William D. Ruckelshaus, then heads of the OLC
and the Civil Division, respectively,'"
That memorandum was prompted by a series of events during 1968
and 1969 that concerned administrative problems under the FOI
Act being experienced by various Federal agencies. Mr. Erickson
testified that the Department "began to be increasingly concerned
that some agencies might be engagin in dubious or unwarranted
denials of requests under the act, leading to litigation burdensome
both to the requestor and to the Government. This feeling crystal-
lized after the July 10, 1969, decision in the famous hearing aids
case." 191 Ho.went on to say that this impression "was sharpened
that same summer after various informal requests for assistance and
advice reached us from agencies that were receiving the attentions of
Mr. Nader and his associates."
In addition to establishing the Freedom of Information Committee,
the December 8, 1969, Rehnquist.-Ruckelshaus memorandum, ad-
dressed to "General Counsels of all Federal departments and agencies
re coordination of certain administrative matters" under the FOI
Act requested that the Department of Justice be consulted prior to
the issuance of a final denial of a request for information if there was
any possibility that the denial might result in litigation. The memo-
randum made the following major point: 198
iw Ibid., p. 1197.
1#6 Ibid., pp. 1177-117&
"N The text of the memorandum appears In the hearings, pt. i, pp. 1132-1133.
~n Ibid., p. 1178. Consumers Union v. Veteran` Adminiafration, 301 F. Supp. 796 (S.D. N.Y. 1969)
(footnote 2 on p. 1178 of hearings).
IM Dec. 8, 1969. memorandum, op. cit., p. 1132. The memorandum was addressed to general counsels
only, not public Information officials.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
67
In discharging these functions the Department has noted
several developments which we believe warrant your atten-
tion. First, the Government in recent months has lost cases
in court which involved a number of the exemptions con-
tained in the act. Consumers Union v. Veterans Administra-
tion, 301 F. Supp. 796 (S.D.N.Y. July 10, 1969) (involving
exemptions 2 3, 4 and 5); General Services Administration v.
Benson, 415 P. 2d 878 79th Cir. Aug. 26, 1969) (exemptions
4 and 5). Second, there has been considerable variation in
agency practices with respect to consulting the Department
on freedom of information controversies before the agency
takes final action, which may result in the filing of suit
against the agency. Third, there are particular problem
areas under the act, which are common to a number of
agencies, where an exchange of views may be beneficial.
The implications of the judicial decisions cited above, as
well as other cases, are under continuing review in the
Department. However, enough review has already been ac-
complished to point to two conclusions: (1) Although the
legal basis for denying a particular request under the act
may seem quite strong to an agency at the time it elects
finally to,refuse access to the requested records, the justifi-
cation may appear considerably less strong when later
viewed, in the context of adversary litigation, from the
detached perspective of a court and from the standpoint of
the broad- ppublic policy of the act; (2) an agency denial
leading to litigation and a possible adverse judicial decision
may well have effects going beyond the operations and
programs of the agency involved, insofar as it creates a
precedent affecting other departments and agencies in the
executive branch.
In order to coordinate activities among Federal agencies and to
avoid the creation of "bad" precedents under the FOI Act from the
Government's viewpoint, the Freedom of Information Committee in
OLC was established. The memorandum said : 199
In view of the foregoing, it seems manifestly desirable
that, in most instances, litigation should be avoided if reason-
ably practicable where the Government's prospects for
success are subject to serious question. This can often best
be done if, before a final agency rejection of a request has
committed both sides to conflicting positions, the matter is
given. a timely and careful review, in terms of litigation
risks, governmentwide implications, and the policy of the
act, as well as the agency's own interests. To facilitate
review of the nature just described, we need your coopera-
tion. To improve cooperation on our part, we have just
established an informal committee of representatives of the
Civil Division and of the Office of Legal Counsel. The func-
tions of this committee will be to assist in such review and
hel assure closer cooperation in our work.
We request that in the future you consult this Depart-
ment before your agency issues a final denial of a request
under the Freedom of Information Act if there is any sub-
Ibid.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
68
stantial possibility that such denial might lead to a court
decision adversely affecting the Government. Such consulta-
tion will serve the review function discussed above, and in
some instances may also enable us to assist you in reaching a
disposition of the matter reasonably satisfactory both to your
agency and to the person making the request. The requested
consultation may be undertaken formally or informally as
you prefer, and ordinarily should be directed initially to the
Office of Legal Counsel rather than to the Civil Division.
This committee places great. importance on the role that the
Freedom of Information Committee can and does, in many cases,
play in the administrative processes of Federal agencies involving the
handling and decisiorunaking on requests made under the FOI Act.
For the most part, it believes, the committee has had a salutary
effect on the overall administration of the act. This committee also
is convinced that the FOI Committee and the Office of Legal Counsel
could-and should-exercise more of a leadership and coordinating
function to improve the administrative machinery as well as to foster
a more positive attitude in the Federal bureaucracy toward the basic
principles and goals of the FOI Act. These administrative problems
were spelled out earlier in this report.-o1
Mr. Erickson testified that through March 1, 1972, the FOI Com-
mittee had received "an estimated 400 to 500 contacts, which have
led to approximately 120 committee consultations * * * (and) have
involved about 30 different agencies." let He explained the consulta-
tion procedures as follows:
Consultation procedures are usually quite simple. About
80 percent of consultations are conducted by a face-to-face
meeting of the committee with representatives of the agency.
Agencies usually send a lawyer and one or two operating
Zials to a consultation, although the representation may
vary from just one person to several and occasionally includes
both the general counsel and the head of the agency.
Typically the committee is represented by at least. three
and usually four of its members. All five members are of
course notified of every meeting, and sometimes all five
attend.
Speed is a major goal in all the committee's work, and it is
usually obtained. A meeting usually occurs within less than
a week of the phone contact which led to it, and some are
held the very next day. Sometimes papers that will be dis-
cussed at the meeting are shown to committee members
beforehand.
The meetings vary in length from about 30 minutes on
simple matters to 2 hours or more on complex ones. No min-
utes are kept, although any participant is free to take his own
notes. The agencies usually get the committee's reaction
immediately, from the discussion during the course of the
2N See lenpings. 9-10 of ii, pp. report.
177%-1180. For a listing of agencies consulting with the FOI Committee, see
p. 1181; for a listing of the range of subject areas covered by these 120 consultations, see p. 1213. A colloquy
with Mr. Erickson revealed the tact that the FOr Committee does not respond torequestsby the public for
such counseling; see p. 1fia.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
69
meeting, although in some cases there may be further tele-
phone calls or other contacts after a meeting. As for the re-
maining 20 percent or so of committee consultations which do
not involve a face-to-face meeting with agency representatives,
the usual procedure is that papers from the agency are circu-
lated to the committee members, who read them and give
their comments to the chairman, and if no further discussion
is needed, the chairman gives the agency the committee's
collective reaction by telephone.
Mr. Ericksonindicated to the subcommittee that "the rate of consulta-
tions seems to be accelerating, and is estimated to be running now at
roughly between 75 and 100 a year."
According to his testimony, the FOI committee's consultations on
the 120 cases through March 1, 1972, resulted in advice to the agencies
that (1) the information was clearly exempted from disclosure-
about 40 cases or one-third; (2) the information was probably not
exempt and should be released-about 40 cases or one-third; and (3)
the information was in an uncertain category, suggesting an alternative
solution or a practical accommodation of the dispute over disclosure-
about 40 cases or one-third 202
It is difficult to determine precisely what effect the FOI Committee's
recommendations have had on agency decisions in FOI Act requests.
The informal nature of the work of the committee and the lack of
documentary evidence of subsequent actions taken by the individual
agencies on cases brought to the committee for consultation points up
one of the administrative weaknesses of the procedure. Nevertheless,
the Committee on Government Operations shares the positive view
of the Department toward the work of the FOI Committee in helping
to encourage greater understanding of the act and to help bring about
a more enlightened administration of the act within the Federal
bureaucracy.
This committee's studies of the FOI Act's operational status after
5 years would generally parallel the evaluation stated by Mr. Erickson
at the conclusion of his testimony: 203
* * * The act is an epochal step in democratic government.
Our experience indicates that that act is working, but that
much additional effort, experience, good judgment, and good
will may be needed to keep it working and to improve its
operations.
202 Ibid.. pp. 1182-1183
203 Ibid., p. 1184.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
IX. LITIGATION UNDER THE FREEDOM OF
INFORMATION ACT-1967-1972
The ultimate weapon provided to the public under the Freedom of
Information Act that can be wielded against a recalcitrant Federal
bureaucracy is the right to file suit in a U.S. District Court to obtain
requested Government records if all other efforts are fruitless. The
law directs that such cases be considered in the form of injunctive
proceedings against the Government. Such cases are considered de novo
and the burden is on the agenc,y~ to justify its refusal to make records
available to the complainant. in the case of noncompliance with the
order of the court in such cases, the responsible Government em-
cloyee or member of the uniformed service involved in the suit may
be punished for contempt-.104
No law is self-enforcing, least of all a law designed to help
the citizen in a contest with the government. Thus, the Free-
dom of Information Act has it built-in enforcement tool-
the citizen's right to go to court and force the government
to prove the need to withhold public records.
The court-enforcement provision has been used effectively
during the first 4 years the act has been in operation. In some
areas-particularly the protection of national defense in-
formation and the protection of investigatory files-the
courts have been reluctant to order the disclosure of gov-
ernment secrets. In other areas-particularly the contention
that privileged financial information and internal memoranda
must be hidden from the public--tho courts have rejected
Government arguments.
Hopefully, Government agencies will consider the trend
of court action and stop using the excuses for secrecy which
have been rejected by the courts. If not, it may be necessary
for Congress to amend the Freedom of Information Act to
limit further the Government's claim that routine financial
information and government memoranda are not public
records. 202
As noted earlier, the Justice Department witness stated that about
200 suits have been filed under the FOI Act, and that some 48 cases
were pending in the Civil Division as of %Iarch 1, 1972. He estimated
that the Government's position has been sustained in about half of
the FOI cases litigated nationwide, "although the Government has
had very little. success in the Court of Appeals for the District of
Columbia circuit." 266
Another witness told the subcommittee : 207
So far the act has received relatively little examination by
the courts, despite the hundred or so cases that have thus far
4 Bec. 622(a)(7) of title 6, United States Code.
as Statement by Chairman Moorhead, Mar. 19, 1972. Hearings, Pt. 4, P. 1844.
W Hearings, pt. 4, p 1177.
'm Mr. Richard Wolf, Institute for Public Interest Representation, Georgetown University Law Center,
hearings, pt. 4, p. 1067.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/1 71; CIA-RDP74B00415R000200100008-7
appeared. My count indicates that the Federal courts of
appeals have decided only 17 cases. Nine of these have
occurred, as might be expected, in the District of Columbia
circuit. We are seeing some trends developing in this circuit.
But the Supreme Court, except for yesterday's announce-
ment, has yet to pass on any of the complex issues of privacy
and disclosure which are raised in the act. Some of these
difficult problems are perhaps better left to careful judicial
development, and this will certainly occur.
It is difficult to deal adequately in this report with the matter of
court decisions under the FOI Act in sufficient detail to make such an
analysis meaningful in this context. Moreover, oversimplification of
case references would necessarily tend to be misleading to Members of
Congress, private attorneys, Government officials, students, and
others who will utilize the contents of this report. For this reason, the
committee has included in the hearing record a comprehensive analy-
sis, summary, major holdings, and important court dicta on more than
30 of the leading cases decided thus far under the act. These objective
studies were prepared by researchers in the American Law Division of
the Congressional Research Service of the Library of Congress.208 The
general summary of court decisions that follows is taken from these
studies.
Within this caveat, it is accurate to state in a summary fashion,
that the courts have been generally reluctant to order the disclosure
of Government information falling within exemption (b) (1) of the
act-information "specifically required by Executive order to be kept
secret in the interest of the national defense or foreign policy"-and
exemption (b) (7) -"investigatory files compiled for law enforcement
purposes except to the extent available by law to a party other than
an agency.
On the other hand, the courts have generally ruled against the
Government's contention that "trade secrets and commercial or
financial information obtained from a person and privileged or confi-
dential" should be withheld from the public under exception (b) (4)
of the act. In a majority of the cases thus far decided, the courts have
also rejected Government arguments that "interagency or intra-agency
memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency" should be
withheld from public disclosure under exemption (b) (5).
There have been too few court decisions to indicate a clear pattern
on other sections of the F01 Act, including several of the other exemp-
tions permitted in subsection (b). A number of other valid observations
may be made, however, on the basis of the Library of Congress studies:
(1) the courts are taking seriously the statutory grant of
authority to enjoin the agency from withholding
agency records and to order the production of any
agency records improperly withheld;
(2) the courts are following the statutory directive to put
the burden of proof that withholding of requested in-
formation is necessary on the shoulders of the Govern-
ment agency that withholds public records;
208 Ibid., pp. 1344-1367.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
72
(3) while the courts do not always rule in favor of the person
seeking access to public records, they have exercised a
judgment that used to be exercised solely by the
Federal bureaucracy, often having a personal or politi-
cal stake in keeping it. secret;
(4) the courts have generally ruled that, on the question of an
"identifiable record" requested by the public under the
act, the Government agency may not use the identifi-
cation requirement as an excuse for withholding
because the means to identify documents are solely
within the control of the agency holding the requested
record;
(5) the courts have rejected Government arguments that
the particular information being sought could be
ferreted out by diligent search outside the Govern-
ment;
(6) the courts have also ruled against Government claims
that all of a public record could be withheld if only
part of the document is exempt from disclosure under
the Act;
(7) the courts have likewise rejected arguments that a Govern-
ment unit is not an "agency" covered by the law, even
though it has substantial independent authority to
exercise specific functions; and
(8) the courts have a spotty record with regard to the pro-
vision of the Act that directs "precedence on the
docket" and expeditious handling of FOI Act cases.
This particular observation is dealt with later in this
section of the report in detail.
The analysis of litigation under the FOI Act does not take into
account the man}- thousands of Government documents, records,
and other information which have been made available to the public
upon request without the necessity of resorting to relief in the courts.
or does such analysis clearly reflect, the results of the administra-
tive actions taken upon requests for information by Government
agencies.
Of the 2,195 denials of information reported in detail to the subcom-
mittee by 29 major departments and agencies, only 296 were appealed
administratively within the agency by the requestor. Of this number,
196 original denials were upheld by appeal to higher authority, while
:37 denials were reversed; an additional 42 original denials were re-
versed in part through appeal. But in only 99 cases where the requestor
was finally denied information by an agency was court action initiated.
In only 23 of these 99 cases was the agency's refusal to furnish the
information requested sustained by the. courts. The agency's refusal
was reversed in whole or in part by the courts in 32 of the cases.'
Thus, while there have been too few landmark cases by the courts to
accurately interpret many sections of the FOI Act during the 5 years
since it became effective, the record shows that by and large the courts
are effectively exercising their responsibility to judge the Govern-
m' Hearings, pt. 4 pp. 1338-t343. The total of 99 cases used here is substantially less than the 20o FOI
eases mentioned culler b ecausse they represent the esperlenee of only the'-) largest Federal agencies; more-
over many suits are dropped before being acted upon by the court as Information requested is often made
avallghle.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13: CIA-RDP74B00415R000200100008-7
7!3
ment's stewardship of the people's right to know and the courts'
judgment has usually been against unjustifiable Government secrecy.
The High Cost of Obtaining Relief
Many private attorneys and public interest organizations who
testified before the subcommittee stressed the high cost of litigation
under the FOI Act. This fact is also reflected in the statistical analysis
of agency denials based on the subcommittee's questionnaire, which
shows that of the 2,195 denials of information cited above, 640 were
requests for government information or records by corporations and
private law firms-about 30 percent of the total, while only 90 repre-
sented denied requests from the media; 85 from public interest groups;
41 from researchers; and 13 from labor unions. Some 547 were lumped
as "other," which included other categories of miscellaneous organiza-
tions and the individual citizens.210 A review of the cases listed in the
Library of Congress study mentioned above will confirm the large
number of them that involve corporations or law firms representing
citizen complainants.
Few individuals can afford the expense of litigating a suit under
the Freedom of Information Act, even though the agency's decision
to withhold information may be clearly unlawful. Mr. Reuben B.
Robertson, III, an attorney with the Center for the Study of Re-
sponsive Law pointed out during the hearings: 211
The filing of any suit, of course, entails obtaining legal
counsel, it involves the expenses of legal costs and fees,
and a great deal of time and delay. Most people, I think,
when they are confronted with this kind of an approach do
tend to go away. Often we have found that just the filing
of a suit is enough to get the Government to release the
information. * * *
Harrison Weliford stated that: 212
* * * One problem is that the act expects of public officials
an obedience to the unenforceable. If a public officer ignores
the act, the citizen must engage the agency in court, the
only recourse afforded by the act. Those who can afford legal
challenge are those special interests who need the FOIA
least of all. Examination of court records establish this point.
In the firs.t 2 years of FOIA, 40 cases were brought under the
act. Thirty-seven of these involved corporations or private
parties seeking information for some private claim or benefit.
Only three cases involved a demand by the public at large for
information. Most surprising of all, no member of the media,
which should be the prime beneficiary of the FOIA, had
initiated a single court action under the act. In practice,
therefore, the attitudes of agency personnel determined
whether FOIA was to be a pathway or roadblock for citizen
access.
210 Ibid.
211 Ibid., p. 1262; see pp. 55 and 66 of this report for a discussion of remedies.
212 Ibid., p. 1257. A unique approach to the problem of high costs in FOI suits involving low-income
citizens is a class action suit by five low-income homeowners representing the interests of over 30,000 such
persons in Philadelphia. The suit was filed by an attorney with the Community Legal Services, Mr. George
D. Gould, who testified before the subcommittee. See hearings, pt. 5, pp. 1402-1403.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
74
It has been pointed out that the costs of the Government in defend-
ing suits against the public, costing hundreds of thousands of tax-
payers' dolrars, are provided through agency budgets. Of course, the
tremendous manpower and resources of the Justice Department can
be brought into play against any plaintiff bringing suit under the
FOi Act. These court costs and attorney's fees of the Government
are, in effect, also being borne by the individual citizen-plaintiff
through his taxes that go to pay for the cost of running the Govern-
ment, including the salary of his adversary in court.
As a deterrent to the action of a governmental official who abuses
his authority, either by a willful misinterpretation of the FOI Act or
by some other action to deny information to an individual, it was
suggested in one colloquy during the hearings that such Government
official be subject to a fine or administrative reprimand. The witness,
Mr. William Dobrovir, a Washington attorney replied: i13
Well, I do not think that a fine would be appropriate, but
certainly an administrative reprimand or something that
would go in the official's file, assuming it is a civil service per-
son, something that would go in his file that would show that he
made this decision, and that the decision was -wrong, or was
made, and if the court ruled, you know, the decision was made,
in bad faith-but ordinarily courts do not do that.
Delay in Filing Responsive Pleadings
A major complaint voiced by a number of witnesses who have had
extensive experience in Freedom of Information Act litigation is the
delay in responsive pleadings by the Government.. Under the Federal
Rules of Civil Procedure, the. Government is accorded 60 days in
which to answer the complaint and each additional motion. Private
litigants, on the other hand, must respond within 20 days in each such
case. This has led to interminable delays in the adjudication of suits
under the FOI Act, since the Government often makes full use of the
time period accorded to them for response, and in some cases exceeds
the 60-day limitation. Information sought by plaintiffs from Govern-
ment is likel y to be a perishable commodity, and in many cases these
procedural delays by Government attorneys-whether or not made
in good faith-may result in substantive damage to the plaintiff's
case. In some instances, such foot-dragging in the courts can render
the information totally useless, if and when it is ever made available by
the Federal bureaucracy.
Typical of the comments by witnesses are these statements:
* * * The Government should, upon complaint in court, be
given the sane 20-day period in which to reply as is accorded
to private parties in a case in Federal court, and not the 60
days normally given to the Government. And the Freedom of
Information cases, in fact, should be expedited in hearing,
which they currently are not.214
* * * If I sue a citizen in the Federal district court., they have
20 days in which to respond; yet if I site the Federal Govern-
ment under this (FOI) act, even though Congress intended
ni Hearings pt 5. p. 1427.
n' Bernard'ensterwaid, Jr., Washington attorney, Ibid., p. 1377.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/ 05/13 : CIA-RDP74B00415R000200100008-7
that there be an immediate action, there are 60 days in
which the Government can respond. But I think certainly
there ought to be a shortening of that time through either
the rules of Federal procedure or, more specifically, through
congressional action.2ls
A colloquy between Representative Erlenborn and these two wit-
nesses on this problem of Government delay in filing responses pro-
duced a positive approach: 218
Mr. ERLENBORN. As a last observation, I would agree with
many of the suggestions that have been made here today as
to speeding up the process. It seems to me that any action
bogs down with 60 days for filing of an answer; and no final
decision for a good deal of time after that makes the infor-
mation in many cases useless, and probably inhibits the
filing of suits. Perhaps either the establishment of some
central office for making final decisions at the executive
level, or putting the burden on the head of the agency,
rather than having it dispersed in various places within the
agency, might also be helpful, with some set period of time
for appealing, say, from the decision of some bureau chief
to the head of the agency, the Cabinet officer or the chair-
man of the independent regulatory agency. This would cen-
tralize at least within that agency decisionmaking, and you
would have some coherent policy of that agency.
Mr. FENSTERWALD. It is centralized in the Justice Depart-
ment now. I do not know how successful it is, but they have
requested all departments and agencies to clear with them
any final denial before it goes forward.
Mr. ERLENBORN. What about a formal written statement
from the head of the agency? For example, if you wanted
information from Defense, Mr. Laird himself would have to
make the ultimate decision?
Mr. KASS. With a time limit on it?
Mr. ERLENBORN. Yes; with a time limit on it. Would that
be helpful?
Mr. KASS. Very much so.
Mr. ERLENBORN. It is better to have him do it, or some
person within the Defense Establishment at a lower level?
Mr. KASS. _ Congressman, if I could give you some of my
own background on this quickly, having participated to some
extent in the drafting of this, there was no specific proce-
dure in the Freedom of Information Act itself requiring these
exhaustive administrative remedies. 'Alen the Justice De-
partment prepared their memorandum and discussed it with
the committee, and the committee staff, trying to incorpo-
rate some form of exhaustion of administrative remedies at
the top of the agency, there was no objection because what
was pointed out to us by Frank Wozencraft and others who
have been here before, the main reason for that was to let
somebody in the very top, in a political and substantive posi-
tion, make a final determination.
216 Benny L. Kass, Washington attorney, ibid., p. 1380.
210 Ibid., pp. 1414-1415.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CJ,A-RDP74B00415R000200100008-7
This is the problem, except in the Justice Department if
you write the Attorney General, he will not answer you be-
cause he has to make the final response. You have to write
him again, two or three more times, before you ever got a
response.
Mr. EJLLENBORN. Well, I certainly would hope that one of
the things that we could consider and do would be to put
some short time limit in the act.
A statistical analysis of 33 FOI Act suits filed in the U.S. Dis-
trict Court for the District of Columbia shows that it took an average
of 68 clays for the Government to file a responsive pleading and an
average of 167 days before the F01 Act was decided by the court.117
This record hardly meets the criteria spelled out in subsection (a) (3)
of the act that, except for cases the court deems of greater importance,
FOI Act cases shall have "precedence on the docket," shall be assigned
for hearing and trial "at the earliest practicable date," and shall be
"expedited in every wa!y'."
Since the administrative remedies had been fully or partially ex-
hausted in each of these 33 cases, the Government attorneys were
fully aware of the subjects of the information request at issue even
before the complaint was filed by the plaintiff. Thus, in such FOI
cases it is difficult, if not impossible, to defend the rationale for extend-
ing to the Government the 60-day period for response---three times
that accorded to private parties --because of its size and complexity
of administrative behavior. The affected Federal agency would have
already reviewed the nature of the information requested, the bases
it might have to rely upon under the exemptions permitted under
the FOI Act, and quite possibly would have already consulted with
the Justice Department's FOI Committee as to the legal precedents
that might apply. Therefore, the need for 60 days to prepare the
necessary response to defend the suit for the Government can only
work to the disadvantage of the plaintiff.
The Dobrovir analysis shows that in 19 of the 33 cases the Gov-
ernment took longer than 60 days to file a responsive pleading. One
case took 140 days, another 137 days, another 135 days, another 105
days, another 104 days, and still another took 103 days. The fact
that the average of all 33 cases was higher than the 60-day period
provided for in the Federal Rules of Civil Procedure is a danger signal
that prompts remedial action, since it strongly suggests that the pro-
cedural foot-.dragging by Government attorneys in FOI Act suits
may be negating the congressional intent and basic purpose of the
act.
Other Problems Involving Court Interpretations
Other related problems involving court interpretations of parts of
the FOI Act deal with the phrase in subsection (a) (3) "shall make the
records promptly available to any person." As has been stated earlier,
Congress eliminated the "need to know" requirement contained in the
old section 3 of the Administrative Procedure Act when it enacted the
FOI Act. Yet solrle courts continue to inquire into a person's "need to
know" during hearings on F01 cases. It was not the intent of Congress
="l The analysis was prepared by attorney William Dobrovir; sae hearings, pt. 5. p. 1898, for table
showing dates and ease ldentiflratton.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
77
that any person should have to have a stated reason for wishing to see
any particular Government document or record, nor should that
motivation be a matter for the courts to concern themselves with dur-
ing litigation under the act.
Finally, some courts have decided for themselves that it is discre-
tionary with them whether they order the production of information
which is held not to be subject to the exemptions permitted by sub-
section (b) of the FOI Act. In effect, they are applying theories of
equity to balance the need of the individual citizen to the information
requested under the act .and the need of the Government to withhold
such information. Information requested under the act by the plaintiff
should be considered only with respect to whether or not the Gov-
ernment's arguments fulfill the "burden of proof" requirement that
the information is subject to the subsection (b) exemptions claimed.
If the court finds that the Government has not met such test, the
information should be ordered to be made promptly available to the
plaintiff solely on the substantive merits of the case.
Summary
By and large, the Federal courts have taken adequate notice of the
importance of the Freedom of Information Act as a milestone enact-
ment by Congress of the fundamental right of all Americans to be
informed about the business of their Government. Perhaps the most
eloquent statements by a court in this regard were contained in the
Soucie v. David case: 218
Congress passed the Freedom of Information Act in
response to a persistent problem of legislators and citizens,
the problem of obtaining adequate information to evaluate
Federal programs and formulate wise policies. Congress rec-
ognized that the public cannot make intelligent decisions
without such information, and that governmental institutions
become unresponsive to public needs if knowledge of their
activities is denied to the people and their representatives.
The touchstone of any proceedings under the Act must be the
clear legislative intent to assure public access to all govern-
mental records whose disclosure would not significantly
harm specific governmental interests. The policy of the
act requires that the disclosure requirement be construed
broadly, the exemptions narrowly.
218 Soucie v. David, 448 F. 2d 1067, 2 ERC 1826 (D.C. Cir. 1971).
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
X. ADMINISTRATIVE AND LEGISLATIVE OBJECTIVES
TO STRENGTHEN AND IMPROVE THE OPERATION OF
THE FREEDOM OF INFORMATION ACT
Opponents of the legislation that became the Freedom of Informa-
tion Act issued dire warnings to the effect that if the bill were enacted
"the administrative processes of the Federal Government would
grind to a halt," that "the President would spend all his time re-
sponding to requests for information from high school students," that
FOI cases "would overburden the Federal courts." They implied that
the pillars of the Republic would collapse. Extreme arguments on
specific legislative proposals usually are far-fetched exaggerations
that cannot stand the tests of time or rational analyses. Such is the
case with respect to the exaggerated claims about the effect of the
FOI Act on the processes of Government.
Witnesses who expressed an opinion about the way in which the
FOI Act has operated during these past 5 years were overwhelmingly
positive in their comments, varying only in the degree of salutary effect
the act has had on the Federal bureaucracy. Typical of the comments
made by the subcommittee witnesses are the following:
Mr. Lewis. * * * So, from the standpoint of making in-
formation freely available, the freedom of information law, I
felt, was a real milestone in the long history of sensitive re-
lationships centered on the peoples' "right to know" versus
the need Government has felt to withhold information for
national security or other reasons.
For a government information officer, a strategic part of
whose job was to keep information moving, the new law had
distinct advantages in its policy direction for disclosure, and
in the provisions that put the burden of proof for withholding
on the Government and which gave citizens the right to
seek legal action against withholding. Particularly in the
early phases of the law's application, these measures brought
about a more positive attitude toward disclosure among
administrative and other officials, and they strengthened
the hands of those responsible for release of informa-
tion. * * * ??
Mr. W OZENCRAFr. * * * Now, after almost 5 years under
the act, those who expected it to strip away the veils of
Government secrecy feel cheated; and those who predicted
disaster grumblingly insist that although the pillars of the
Republic have not crumbled the act has been an expensive
and troublesome nuisance and they wish it would go away.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
7Kj
Since I shared neither set of expectations, I share neither
view today. I have been disappointed that the act has not
yet had more impact, but I am far from disheartened. The
drafting of the act leaves much to be desired, and its imple-
mentation far more. Nevertheless, viewed objectively and
disregarding excessive fears or expectations, the act remains a
watershed event in the history of Government, unprece-
dented, as far as I know, by any other nation.* * * 220
Mr. ERICKSON. * * * In conclusion, we at Justice are
working with you in Congress as participants, within our own
branch of Government, in the task of trying to insure the
success of the Freedom of Information Act. The act is an
epochal step in democratic government. Our experience
indicates that that act is working, but that much additional
effort, experience, good judgment, and good will may be
needed to keep it working and to improve its operations. You
may be assured the Department of Justice will continue to
give its best efforts toward a fair, reasonable and effective
administration of the act * * *,221
Mr. HUNTER. * * * In the spring issue of the Texas Law
Review, in an article entitled "The Games Bureaucrats Play;
Hide and Seek Under the Freedom of Information Act,"
Mrs. Joan Katz of Mr. Ralph Nader's Center, for Responsive
Law says:
[The Act] has not fulfilled its advocates most
modest aspirations * * *. The ambiguities and
deficiencies of [the statute] will be remedied, if at all,
only by the passage of new and improved legislation.
These are harsh judgments. After 4'/2 years as one of the
act's principal administrators in HEW, my opinion is that
the truth, as it, usually does, lies somewhere in between.
I believe that the law's general effect has been salutary
and has worked in the public interest. I believe, however,
that there are faults in the act and in its administration
in the executive branch which are indeed grievous and need
correction. These hearings are most welcome, for there has
been world enough and time to make a prqper assessment
of the act * * *. 222
Mr. REEDY. * * * I think that you gentlemen performed
a very valuable service when you passed the Freedom of
Information Act. I am not quite certain that you are going
to get a large number of cases under it, or that you are going
to get a lot of information out of it. But frequently the value
of legislation consists in the fact that it exists and that every
government official knows that the press has an ultimate
weapon against him if he becomes a little bit too tight, too
220 Hearings, pt. 4, p. 1009.
181 Ibid., p.1184.
222 Ibid., p. 1019.
Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
 Approved For Release 2005/07/13 : CIA-RDP74B00415R000200100008-7
80
tough in withholding information. This means he will be
considerably more candid.
But, you would still have to get back to the other question
of what good is the weapon, if information can be placed into
areas that cannot be reached by the normal processes. I
am not a lawyer and I do not come here with specific recom-
mendations because I think this is a legal question. But, I
believe if I were in your position, gentlemen, this is the
principal thing I would look at. What can be done about
these huge, sprawling bureaucracies, these new agencies that
are being setup within the White House itself?
James C. Hagerty, former press secretary to President Eisenhower,
observed that Government, information procedures "cannot remain
static, for the simple reason that Government and public attitudes do
not remain static." He urged a course of action precisely like that fol-
lowed by the committee in studying, reviewing, and in this report,
suggesting changes and modifications to the FOI Act to meet the
changing conditions and times. Ile told the subcommittee on the
opening day of these hearings, as the leadoff witness: 22'
At the outset., I think it is pertinent to the discussion to
out that the proper dis.