COURT REVIEW CLASSIFIED MATERIAL UNDER PROPOSED FREEDOM OF INFORMATION ACT AMENDMENTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000600200001-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 14, 2016
• Document Release Date: April 15, 2003
• Sequence Number: 1
• Content Type: LIST

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COURT REVIEW CLASSIFIED MATERIAL UNDER
PROPOSED FREEDOM OF INFORMATION ACT AMENDMENTS
Problem: Aide-Memoire
Proposed Solution Amendments
(Proposed Solution Ramseyer Format)
Excerpt House Report on H. R. 12471
Excerpt Senate Report on S. 2543 (Committee Print)
CRC, 2/25/2003
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AIDE- MEMOIRE
Amendments to Proposed Freedom of Information Act Amendments
S.2543 (Committee Print)
(Section (b)(2) of the 25 March committee print S.2543) would
overrule the decision of the Supreme Court in the Environmental
Protection Agency v. Mink, 93 S. Ct. 827 (1973), by authorizing
court review of the contents of records withheld by a Federal
agency under the nine specific exemptions set forth in Title 5
U. S. C. 552(b). The purpose of such review would be to determine
if the information withheld meets the criteria of the exemption
involved.
2. Matters specifically exempted from public inspection by
section 552(b) of the Freedom of Information Act include those
"specifically required by Executive Order to be kept secret
in the interest of the national defense or foreign policy"
[552(b)(1)]. It was this exemption which was at issue in the
Mink case. A separate exemption from public inspection is
afforded matters "specifically exempted from disclosure by
statute" [552(b)(3)].
3. There is an important distinction between these two exemptions.
The former refers to classification of information under Executive
Order, which specifies criteria for evaluating _ and classifying
governmental documents. The latter exemption, based upon express
statutory authority, involves an act of Congress approved by the
President which directs the proper handling of especially sensitive
information. Three such categories of information are: "Restricted
Data" [42 U. S. C. 2162], relating to atomic energy matters;
Communication Intelligence [18 U. S. C. 798]; and Intelligence
Sources and Methods [50 U. S. C. 403(d)(3) and g]. To make it
abundantly clear that it is not the intent of Congress to
encourage or authorize court review of information which has
been specifically designated in an act of Congress as deserving
of statutory protection it is recommended that the potential
conflict in laws be resolved by the attached amendment.
(See Tab A)
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91 4. It is noted that the House report on H. R. 12471 (H. Rept. 3-876,
Page 7), a similar bill, makes two points about the proposed
court review amendment abundantly clear: the first is that it
is aimed at the exemption provision involving information
classified under Executive Order, which was at issue in the
Mink case; the second point is that it is not intended to reach
information "specifically exempted from disclosure by
statute." In this connection the House report makes specific
reference to the Atomic Energy Act of 1954. (Tab B.)
5. S.2543 provides no criteria for the in camera court review
of exempted material. In effect, the court would substitute
its own judgment for that of an agency head. Recognizing
that reasonable men do differ in their judgments as to those
matters which require protection in the national interest, a
court should not overrule the determination of an agency head
unless it can be shown that the determination was clearly
unwarranted. A proper court test would be whether or not
the agency head acted "arbitrary and capricious." Accordingly,
it is recommended that S. 2543 be amended as set forth in
Tab C.
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TAB A
AMENDMENT TO S.2543 (Committee Print)
At line 16, page 3, insert after the word "with" the following:
", except for matters withheld under section 552(b)(3),
involving, but not limited to, Restricted Data, intelligence
sources and methods, and communication intelligence
under sections 2162 of Title 42, 403(d)(3) and 403g of
Title 50, 798 of Title 18 and 73 Stat. 64."
NOTE: See next page for amendment in Ramseyer form.
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PROPOSED AMENDMENT H TO
S.2543 (Committee Pint) UNDERSCORED
"In such a case the court shall consider the case de novo,
with except for matters withheld under section 552(b)(3),
involving, but not limited to, Restricted Data, intelligence
sources and methods, and communication intelligence
under sections 2162 of Title 42, 403(d)(3) and 403g of
Title 50, 798 of Title 18 and 73 Stat. 64, zilch in
camera examination of the requested records as it finds
appropriate to determine whether such records or any
part thereof may be withheld under any of the exemptions
set forth in subsection (b) of this section, and the burden
is on the agency to sustain its action."
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TAB B
House Report 93-876
Even with the broader language of these amendments as they apply
to exemption (b) (1), information may stilt be protected under the
exemption of 552(b)(3): "specifically exempted from disclosure by
statute." This would be the case; for example, with the Atomic
Energy, Act of 1954, as amended. It features the "born classified"
concept. This means that there is. no administrative discretiorl to
classify, if information is defined as "restricted data" under. that Act,
but only to declassify such data.
The in camera provision is permissive and not mandatory. It is the
intent of the committee that each court be free to employ whatever
DWAIN it finds necessary to discharge its responsibilities.
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TAB C
AMENDMENT TO S.2543 (Committee Print)
At line 21, page 3, insert after the word "action." the following:
"The court shall not invalidate a determination by a
department or agency that records are to be withheld
under the exemption set forth in subsection (b)(1)
unless the court determines that the determination
was arbitrary and capricious."
NOTE: See next page for amendment in Ramseyer form.
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PROPOSED AMENDMENTS TO
TO S.2543 (Committee Print) UNDERSCORED
"with such in camera examination of the requested
records as it finds appropriate to determine whether
such records or any part thereof may be withheld under
any of the exemptions set forth in subsection (b) of this
section, and the burden is on the agency to sustain its
action. The court shall not invalidate a determination
by a department or agency that records are to be
withheld under the exemption set forth in subsection (b)(1)
unless the court determines that the determination was
arbitrary and capricious."
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Senate Report 93-
S. 2543
?1.1,
in Camera I wspeetion and De Novo Review
'Presently when most Freedom of Information Act cases reach the
federal district courts, the judge has authority to examine the re-
quested documents in order to ascertain the propriety of agency wit II-
lioldii1g. This procedure has not, however, been held to apply to records
withheld under :the first exemption of the Act--subsection 552(h)
In Environmental rpotection Acievry V. 1/'n7-. (110 r.S. 73 (1)73) )
Con!rre,sswoman Patsy Mink attempted to obtain documents relating. to
the -projected pirect of the -underground atom h: test at Amchitka from
the Environmental Protection Agency. The Supreme Court lucid that
in all cases eweept those dealing NVIth informathm which is claimed to
Is' specifically required by. executive order to be kept secret in the inter-
est of national defense and foreign policy, de novo review by the dis-
trict court--as provided for in the FOIA?allows an incamera inspec-
tion of the records. requested. The Court ruled that in that inspection,
lime court is to determine whether Claimed exemptions apply in fact and
whether non-exempt materials can be severed from exempt materials
and be released.
While legislative proposals have been made to require automatic
in camera examination of disputed records in every case, the Supreme
.Court observed:
Plainly,' in ?some situations., in camera inspection will he
-necessary and appropriate. But it need not be automatic. An
agency should be given the opportunity, by means of detailed
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affidavits or oral testimony, to establish to the satisfaction?
of the District Court that the documents sought fall clearly ?
beyond the range of. material [not exempt from disclosure].
?.The ?burden is, of course, on the agency resisting disclosure, ?
USC ? 552(a) (3), and if it fails to meet its burden without.
camera inspection., the District Court may order such in-
spection. (410 U.S. at 03.) .
'1Inis to the extent that a judge can rule on the government's claim
that material requested is exempt from disclosure under. the FOIA_
?without'an in camera inSPection of that Material, such as examination
is not mandated. This approach was preferred by the Attorney Gen-
eral i a his test.iniony. (Hearings, vol. at 218. )?
There is of course, an inherent disadvantage placed upon the Com-
plainant when material is submitted for in camera examination, since
the Court's decision will not be the product of an adversary process.
Private attorneys with experience in litigating FOIA suits have
emphasized this disadvantage. One testified that, in one case an agree-
ment'Was reached where he was permitted full access to Treasury De-
partment files Under an agreement that only information ultimately
ordered disclosed by the court would be publicly revealed. (Hearings,
vol. II at 117.) Another indicated that in every FOIA case he filed he
requested the court to require the government to file a memorandum
explaining why withheld materials were exempt, so that he could re-
spohd to the explanation. (Hearings, vol. II at .100.) These types of
procedures providing for the utilization, of the adversary process is
in camera proceedings are to be encouraged Whenever possible. (See
lledrings, vol. TI at 127, 142.)
On August 20, 1073, the D.C. Circuit Comt of Appeals observed
that in cases in which in camera examination is warranted:
?- It is anomalous but obviously inevitable that the party
with the greatest interest in obtaining disclosure is at a loss
to argue with desirable legal precision for the revelation of
the concealed information. Obviously the party seeking dis-
closure cannot know the precise contents of the documents
sought. , . . In a very real sense, only one side of the con-
troversy (the side opposing disclosure) is in a position con-
fidently to make statements categoriziir. information. . . .
The p h
resent method of resolving FOIX dispu?tes actually
encourages the Government to contend that large masses of
information are exempt, when in fact part of the information
should be disclosed. ( Vaughn v. Rosen, No. 73-1039 (D.C.
Cir., Aug. 20,1073),?Slip op. at 8.)
The court ordered that, in those situations calling for in camera
inspection, the govermnent must provide a detailed analysis of the
withheld information and the justifications for withholding them, and
iii iSt formulate a system of itemizing and indexing those documents
Hutt would correlate statement ?s by the, government with the actual
portions of each document. The committee supports this approach
witich, with the use of a special master where voluminous material is
involved, was intended by the court to "sharply stimulate what must
be in the final analysis the, simplest and most effective solution?for
agencies voluntarily ,to disclose as much information as possible and
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to create internal procedures that will assure that disclosable informa-
tion can be easily separated from that which is exempt." (Vaughn v.
Rosen, No. 73,-1030 (D.C. Cir., Aug. 20,1073) , ip op. at 17.)
One proposal considered by the committee (in S. 1142) would have
required ,in camera, inspection of records in FOIA ? cases. While the
court should be able to require submission of .documents for in camera
inspection when it determines such procedure, to be desirable and ap-
propriate, the court should also, in the testimony of the American Bar
Association spokesman John Miller, "be enabled to reach a decision
with respect to whether or not a, particular record has been lawfully
withheld under the Freedom of information Act in any manner that
it chooses, including through the. use of affidavits or oral testimony."
.(Hearings, vol. II at 15(3.)
. The Supreme Court in Minh held that the. FOIA does not permit an
attack on the merits of an executive decision to classify information.
Since the fact of classification was not in issue, in camera examination
could .serve no purpose. The practical result of this decision is that in
camera inspection of documents withheld under exemption (b) (1)
will generally be precluded in cases brought under the FOIA.
S. 2543 would amend the Act to permit such examination, and a
fuller discussion of this issue appears below in this Report (page ?).
On at least two occasions, however, the government has taken the posi-
tion that the seventh exemption (subsection .(b) (7) ) relating to dis-
closure of investigatory files also represents'a blanket exemption where
in camera inspection is unwarranted and inappropriate under the.stat-
ute. (Stern v. lachardsou, No. 179-73, D.C. Cir., Sept. 25,1973; Wes-
berg v. Department of Justice, No. 71-1026, D.C. Cir., reargued en
bane.) By expressly providing for in camera inspection regardless of
the exemption invoked by the government. S. 2513 would make clear
the congressional intent?implied but not expressed in the original
FOIA?as to the availability of in camera examination in all FOIA
cases. This examination would .apply not just to the labeling but to
the substance of the records involved.
S. 2543 also indicates that the court shall make its determination
whether the requested records "or any part thereof may be withheld
under any of the exemptions." The spokesman for the American Bar
Association suggested in the hearings that "it, would also be use.ful
to amend the statute so as to make it clear that agencies are required
. to separate exempt from non-exempt information in a particular.
record, and make available the non-exempt information." The. com-
mittee believes that this requirement is understood in the basic FOIA,.
and the inclusion of this amendment provides authority for the court
during judicial review to undertake such separation if the agency has.
not. (See also page ? below, concerning the government's responsibil-
ity to release documents after deletion of segregable exempt portions.),
85es,qm cut of Attor'neys' Pees and Costs
S. 2543 would permit the courts to assess reasonable attorneys' fees
"ad othex litigation costs against the 'United States in cases whetT the
complainant has substantially prevailed. Such it provision was seen by
many witnesses as crucial to effectuating the original congressional in-
tent that judicial review be available to reverse agency refusals to ad-
here strictly to the Act's mandates. Too often the barriers presented
by court costs and attorneys' fees are insurmountable for the average
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AIDE -MEMOIRE
H.R. 12471?Freedom of Information Act Amendments
1. The Director of Central Intelligence, by the National Security Act of
1947, is charged with responsibility to protect intelligence sources and methods
from unauthorized disclosure (50 U.S. C. 403).
Z. There is no specific legislation implementing this authority to strengthen
the Director's ability to carry out his responsibilities under law.
3. If the veto of H. R. 12471 is not sustained, the result will be that
sensitive intelligence sources and methods critically affecting the national security
will be subject to detailed examination in our court system as a result of a suit to
publish such information which can be brought by any person regardless of
citizenship.
4. The President has already stated his concern that the legislation
could adversely affect our military or intelligence secrets, and that diplomatic
relations also could be adversely affected. The President has pointed out that
the court should be forced to make what amounts to the initial classification decision
in sensitive and complex areas where they have no particular expertise. The result
would be that a determination by the Director of Central Intelligence that a disclosure
of a document would endanger intelligence sources and methods could
be overturned by a district judge who thought that the plaintiff's position was
reasonable. This would give less weight before the courts to an Executive
determination involving the protection of our most vital secrets and interests
than is accorded determinations involving routine regulatory matters under
standard administration law concepts.
5. The President's counterproposal for legislation would permit the
courts to review classification under the Freedom of Information Act, but to
uphold the classification if there is a.reasonable basis to support it. Under the
President's proposal the courts could consider all attendant evidence in camera
and an in camera examination of the documents.
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FOR IMMEDIATE RELEASE October 17,197L1
Office of the White Honbe Press. Secretary
WI .4 On
THE WHITE HOUSE
TO THE HOUSE OF REPRESENTATIVES:
I am returning herewith without my approval H.R. 12471,
a bill to amend the public access to documents provisions of
the Administrative Procedures Act. In August, I transMitted
a letter to the conferees expressing my support for the di-
rection of this legislation and presenting my concern with
some of its provisions: Although I am gratified by the
Congressional response in amending several of theSe provi-
sions, significant problems have not been resolved.
loirst, I remain concerned that our military or
Intelligence secrets and diplomatic relations could be
adversely affected by this bill. rfilfs provision remains
unaltered l&Tiowing my earlier letter.
1 am prepared to accept those aspects of the provision
which would enable courts to inspect classified documents
and review the justification for their classification. How-
ever, the courts should not be forced to make what amounts
to the initial classification decision in sensitive and
complex areas where they have no particular expertise. As
the legislation now 9tands, a dnhei'minntion by the ;Iprr-tary
of Defense that disclosure of a document would endanger our
national security would, even though reasonable, have to be
overturned by a district Judge who thought the plaintiff's
position lust as reasonable. Such a provision would violate
constitutional principles, and give less weight before the
_courts to an executive determination involving the protec-
tion of our most vital national defense interests than is
accorded determinations involving routine regulatory matters.
I propose, therefore, that where classified documents
are requested the courts could review the classification,
but would have to uphold the classification if there is a
reasonable basis to support it. In determining the rea-
sonableness of the classification, the courts would consider
all attendant evidence prior to resorting to an in camera
examination of the document.
Second, I believe that confidentiality would not be
maintained if many millions of pages of FBI and other in-
vestigatory law enforcement files would be subject to
compulsory disclosure at the behest of any person unless
the Government could prove to a court -. separately for
each paragraph of each document -- that disclosure would'
cause a type of harm specified in the amendment. Our law
enforcement agencies do not have, and could not obtain,
the large number of trained and knowledgeable personnel
that would be needed to make such a line-IT-line examination
of information requests that sometimes involve hundreds of
thousands of documents, within the time constraints added
to current law by this bill.
more
(OVER)
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2
Therefore, I propose that more flexible criteria govern
the responses to requests fbr particularly lengthy investi-
gatory records to mitigate the burden which these amendments
would otherwise impose, in Order not to dilute the primary
responsibilities of these law enforcement activities.
Finally, the ten days afforded an agency to determine
whether to furnish a requested document and the twenty days
afforded for determinations on appeal are despite the
provision concerning unusual circumstances, simply unrealistic
in some cases. It is essential that additional latitude be
provided.
. I shall submit shortly language which would dispel my
concerns regarding the manner of Judicial review of classi-
fied material and for mitigating the administrative burden
placed on the agencies, especially our law enforcement
agencies, by the bill as presently enrolled. It is only
my conviction that the bill as enrolled is unconstitutional,
and unworkable that would cause me to return the bill without
my approval. I sincerely hope that this legislation, which
has come so far toward realizing its-laudable goals, will
be reenacted wlth the changes I propose and returned.to,me
for signature, during thin session of Congress.
GERALD. R. FORD.
THEWHITE HOUSE,
October 17
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1,N 12.)-ri
ay ?gay 19 7 4 CONGRESSIONAL RECORD ? SENA.TE ,
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r was consent that Howard Paster countine his very ne work on s nen e. eelnire: cur
- fare, and we ought net te eet
-ray staff be granted the privilege of
door during the debate.
The PRESIDING OleCICER. Without
ection, it is so ordered.
fr. BATH. Will the Senator permit
I minute under the bill?
entr, ElginNEDree Mr. President, I yield
to the Senator from Indiana.
-Mr: HAYTI. Mr. President, I will Yield
the Senator from Mississippi shortly.
simply want to say that I find great
' rt in the position of the Senator
Maine.
It seems to me that in a free society,
ealaainly in the light of everything that
e bave seen occur over the past few
riths arid years, we ought to revise
Present position which seems to be
'there is a right to mark something
._('ted until it is proved not to be in
'Public interest. In a free society in-
tion ought to be regarded as a mat-
of public interest and public knowl-
le unless it can be proven that it
mild be secret.
. MUSKIE. Mr. President, I thank
e Senator from Indiana. In proposing
is amendment, I WTI not asking the
s to disregard the expertise of the
Pentagon, the CI_Aenor the State Depart-
;Rather, I am saying that I would as-
sume and wish that the judges give such would want to hear and would want to
1
etpert testimony considerable weight- give consideration to the head of this
ever, in addition, I would also want agency arid, in matters of great eon-
'the judges to be free to consult such ex-
perts in military affairs as the Senator
from Mississippi (Mr. Sreerens.), or ex-
..perts on international relations, such as
the Senator from Arkansas (Mr. Poe,-
Hr), or other experts, and give their
'testimony equal weight. Their expertise
ould also be given considerable weight. affidavit, If he takes a position on the
jeer.
I thine:. the bill itself, as worked out the gates wide open and see
by the committee, has struck a fair bal- is to he testimony alone vein
ance that meets the requirements of law other testimony." some of weici.
and, at the sezne time, gives a reasonable ally from biased sources, s teires.!-- (e-
ameunt of protection. terest, and not give any coesinereeiee
The Senator from Maine raised a point here any more than just ore-leery een.
of why give a little more weight here to sicieration to the officiel cert. eeen
the head of an agency with reference to under oath of the head of te fercery.
these matters. It is for the very reason So I have to rest this thine with tie
that we have placed that person in. Senate. Tile committee hen yeaeal on
charge of that agency and given him all it and has come up with For-Jeannie Inn.
responsibility and power that goes with I tate it, is practical to live wile rend.
that entire office. He is the only one who at the same time largely giver le the
Is permitted to file such an affidavit here, complainants what they might wen in
as I understated, this case.
I want to focus now primarily on the So until we just strike down this en: t-
CIA. I start with the proposition that ter that the committee has worked so
we have to have a CIA in world affairs; hard on and has balanced off, let us tehe
we just must have one, and time has a second thought, and I believe ,,ee
proven its value. - will?
So in the matter of certain informa- The PRESn)ING sateraCER. Thr tin- e
ton being classified, the average judge? of the Senator haaexpired.
and with all due deference to them per- Mr. STENNIS. I thought he had
sonelly--and I had the honor at one yielded to me and I will then finish. I
time of being a judgea a trial court my_ thank the Senator. I have not made an
self--1s just short of knowledge- and in- remarks here yet about the Department
- -
formation on a lot of different subject of Defense.
matters, just as a Senator is on a great There are matters, and there are many
deal of subject matters that come before of them, that are of equal importance
eern as those of the CIA. When I leave this
. am-going own here now for a
So I imagine that the average Judge hearing with respect to a gentleman
who is nominated to be the Chief of
Naval Operations, the highest. ranking_
officer in the Navy. Next week we arc
going to have a hearing for the Chair-
man of- the Joint Chiefs, the highest
ranking officer, military officer, in the
whole Government. In addition to that
we have the civilian officers over there,
men of great esteem, of great compe-
tence.
These caliber men do not carelessly file
affidavits, that is my point, and commit-
tee proposal would put their honor and
their official conduct at stake and at
Issue. Those things are not carelessly
done.
So instead of just brushing them aside
here in a moment, let us stay or remain
with the law of reason as this committee
has worked it out.-
I thank the Senator again for yielding
chusetts suggests. It is not a violent pre- to Me.
sumption. It is not a wall bunt around Mr. MUSICIE. Mr. President, just a
this head of agency and his testimony. It . minute or two of response.
Is a mild presumption in favor of his May I say to the distinguished Senator
testimony. The judge can still weigh it from Mississippi that I hardly reeard my
all and unless there is found a reason amendment as throwing the doors wide
open to irresponsible disclosure of Gov-
ernment secrets. But on the qucetion as
to whether or not the weight of the bu-
reaucracy of Government is on the side
of secrecy or openness, let me give you a
few statistics. At the CIA there are only
'
cern would really have no dejection to
this amendment. It is a kind of warning
to the judge. The head of the agency is
the only person who can file an affidavit
with. a court within a vast worldwide
operation such as the CIA. It has to be
the head of the agency. If he files an
-Ido riot see why the head of a depart- cla.ssification of a document, that is
ant should be able to walk into a judge's \certainle not just another piece of.
chamber, 'mowing that his testimony is paper. _ . - _
ainst that of any other expert and That is something with the man's
i
:Weighs more than any other on a one- honor and official responsibility tied with
;for-one basis. He has the additional it. This provision here is one where the
weight that the exclusive judgment is I judge is Still the master of the situation;
,
giten to him. He has all of that behind he is still running his own court, as we
, use that term. He is still free to reach a
Why should he be given a statutory I conclusion of his own. But this is a mild
resumption in addition if he cannot 1 guideline, as the Senator from Massa-
make his case on its merits. He is in a
ktetter position to do that than anyone
lase. . .
Then, if he cannot make a. case on its
merits, I say he is not entitled to a pre-
umptior...
We ought not to classify information 1 that satisfies the judge?and -you have
St Presumptions, but only on the basis 'got to satisfy this judge?he is not going
merit. And only the head of an agency tee stop and back off because it might
involved can make that case. And if he ihave satisfied the head of the agency-
anuot make it, then he ought to lose it The judge has all of this other testimony
a.nd not find it possible to get sustained before him, and he is going to have to
only through the support of a statutory be convinced himself in view of all other five full-time secrecy reviewers icr ite ,
presumption. testimony or he is going to rule in favor authorized classifiers.
'9-Minutes in opposition to the amendment now. , In the third quarter of 197e in the
-
--Mr. HIeteSIKA. Mr. President, I yield 5 Of reviewing the classified documents
. the Senator from Mississippi. ' i CIA, 1,350 documents were classified top
to
I tell you this is a serious matter, Mem- , secret, and that has climbed until, dor-
-Mr. STENNIS. Mr, President., 1 car- bers of the senate. I do not lean toward ' ing the first quarter of this yef,r, the
-tainly thank the Senator from Nebraska. trying to protect everything. I-want mat- f number has risen to 3,115. So LIIC enor-
I have just gone into this matter with- ters to be classified the same as the rest i mous weight of the bureaucracy is on the
-in the last hour, Mr. president, but I am of you do. But I have been at this thing ;side of secrecy. We have all that here,
greatly concerned with the Senator's long enough and on enough subject mat- 1 and now we want to 8. di d to ihR1. v t--.::.r.'....
amendment, The amendment of the sen- ters to know that we are flirting here a presumption. Arrayed on inc. oine,
ator from Maine, and that Is not dis- with things that can be deadly and dan- side is a district court judge vele-, irente
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S 9392
this issue as a part-ti gl,utslr
-Me does not have this
.f, 13 asked to give that weight, that
e.tteaucratic weight, a presumption over
t ay thing else he hears, over any other
testimony he hears. That Is what we are
trying to overcome. I do not regard that
as throwing the door wide open. e,
I am happy to yield to the Senator
(coin New York.? -
Mr. JAVITS. Mr. President, I have
joined Senator MUSK= and his other
colleagues in his amendment for the fol-
lowing basic reasons: -
I believe that, one, there IS no ques-
? tion about the fact that the whole move-
ment of Government, especially in view
of Government's experience in Vietnam,
Watergate, and many other directions, is -
? toward more openness, so that the Wats,
in my judgment, in the Senate, should be
toward more openness rather than being
toward more closed.- - s .
Second, we have finally come abreast
? of the fact of life that it is not providence
on Mount Sinai that stamps a document
secret or top secret, but .a lot of boys and
girls just like us who have all their own
hangups and who decide in individual
cases what the document should be
classified as, and very serious conse-
quences flow to individuals as a result of.
that classification, very serious conse-
quences in the denial of the basic infor-
mation upon which the judge releases it
to the public. So the bias ought to be for
openness not for closeness. -
Now, one would say this is close clues-
tion normally because of this tension as
between the right of the public to know
1 and the necessity of Government in given
cases to have secrecy. But the basic ques-
tion has been decided by the committee,
as by us, who are the movers of the
amendment, that. is, that a judge- in
camera should have the right to Inspect
this material. Having done that, and that
Is the basic question, why put a ball and
chain on the ankle of the deciding au-
thority? I cannot see that the balance of
wisdom in government should move in
that direction, having decided that the
judge may see it. We should give him the
freedom to determine whether, under all
e the circumstances, as the umpire between.
e the right of the public to know and the
necessity for secrecy?claimed necessity
for secrecy?the umpire should not be re-
stricted by ground rules, except ground
rules dealing with basic justice and the
balance of responsibility and the balance
of the national interest as it relates to_ a
given item of information. -
It is for those reasons, Mr. President,.
because I think, having made that basic
decision which now has been made by -
the sponsors of the bill by the sponsors
of the amendment, and by the sponsors
; of the House bill, I see no case for fur-
ther restricting that authority and ham-
stonging it, once it has been given.
I had special support for that pro-
position in the fact that the committee
itself?incidentally, I personally think
tbey are promising a lot more than they
can deliver in terms of decisions of the
courts, but. the committee itself says that
this standard of review does not allow
the court to substitute its judgment for
-hat of the agency as under a de novo re-
,*
CONGRESSIONAL RECORD -- SENA i
IMO W.010*(4 :CltrgVri*
? ?..ft:
finds the determination thereof arbitrary
or capricious. I respectfully submit it is
promising a lot more than it will deliver,
because I doubt that judges will do any
diffetently?except judges who want to
do differently?they are human like the
classifiers in reading the information in
camera?than they would without the
provision.
In those circumstances, why put it in?
Why not put responsibility on the
shoulders of the judges, whom we trust
enough to allow to see the material any-
how?'
For all these reasons, Mr. President,
the motion to strike is eminently war-
ranted, and I hope that the Senate will
support it,.
Mr. HRUSICA. Mr. President, I yield
myself 5 minutes. '
The isitESDDMIG ' OFFICER , (Mr.
Iletees). The Senator from Nebraska is
recognized for 6 minutes.
Mr. HRUSInA. I rise in opposition to
the amendment proposed by the senior
Senator from Maine (Mr. Musitiz) . The
Freedom of Information Act was en-
acted at the expense of a lot of time and
effort. It took several years to process lb
the point of balancing the several inter-
ests contained in it and a sincere bal-
anced result has been attained.
There is the right to know on the part
of the public, but there is also the right
and duty on the part of the Government
to survive and to take such steps as may
be necessary to preserve the national in-
tegrity and security.
This amendment would substantially
alter that balance which is presently
contained in the Freedom of Informa-
tion Act. It would endanger the passage
and approval of the instant bill into law,
In my considered judgment. It should be
acted on, if we act on it at all, not in
connection with a bill where virtual
unanimity was reached in the Judiciary
Committee and reported unanimously
without any objection to the Senate.
Mr. President, I oppose the amend-
ment offered by the Senator from Maine.
I believe that the amendment is unwork-'
able and certainly is unwise.
At the outset, it is imperative to realize
what is and what is not at issue here. Is
the crux of the issue whether the courts
should be able to review classified docu-
ments in camera? No. Under both the bill
and the amendment, the judge can re-
view the documents in camera. Thus,
S. 2543, as unanimously recommended
by the Judiciary Committee, establishes
a means to question an executive deci-
sion ?to stamp a classification on the
document.
What is at stake, Mr. President, is the
sole question of whether there should
be a special standard to guide the judge's
decision in this matter pertaining to the
first exemption. S. 2543 provides such a
standard.
Under the bill, a judge shall sustain
the agency's decision to keep the docu-
ment in confidence unless he finds the
withholding is "without a reasonable
basis." We could turn that around, Mr.
President, and we could ask whether it
would be proper for a judge to go ahead
Ikray 1974?
"04.0,44 -at even if he
gip
? : j basis for de-'.'
classification exists. That is the other
end of the dilemma.
In other words, if the court finds -a
reasonable basis for the classification, it e
shall not disclose the document. '-
The amendment of the senior Sena-e
tor from Maine would eliminate thise
"reasonable basis" standard and put"
nothing in its place. It does not substi-d
tute any standard in its place. How is
the judge- to be guided in his decision
whether a document is properly clasei- -
fled? In the absence of a specified stand--
ard, I must assume that the standard,
that obtains is, the one that -applies to-
all the other exemptions.
Let me take the sixth exemption as ari
example. That exemption allows an
agency to withhold records if it deter- ,
mines that disclose would constitute
an unwarranted Invasion of privacy. In
determining whether the invasion is un-
warranted, the court attempts to ascer-
tain the extent of the invasion and then
balances that against the requester's and
the public's need for that information.
The burden of proving that the extent of
the invasion outweighs the countervail-
ing interests is on the Government. ;
How would this standard then apply
with respect to exemption 1?the ex-
emption that allows the Government to
miantain classified documents in confi-
dence. It would allow the judge to bal-
ance what he perceives to be the public
Interest in disclosing the information
against Government's, which is to say
the people's, judgment that disclosure
will jeopardize our foreign relations and
national defense. Stated quite simply,
the amendment before us Purports to al-
low a judge to release a classified docu-
ment if he believes that the document
should be in the public domain even if
there exists a reasonable basis for the
classification. -
? I realize that standards of proof are
difficult concepts to understand and
apply even for the lawyer. so, let me pose
an example. Suppose that the Freedom
of Information Act, together with this
amendment, was on the books in the ,-
1940's. And further suppose that some-
one wrote the Government requesting in-
formation about the Manhattan project.
Now, under this amendment, a judge
would be able to examine the project's
documents in camera and decide for
himself whether the classification was
proper. He would realize that the dis-
closure of documents could jeopardize
national defense but, on the other hand,
he could also reason that the public
should have some information so that it
would know how much all this research
was costing and what its objectives were.
The judge could go on to reason that
the public should be informed of the
cataclysmic damage that could be done
by an atomic weapon upon delivery so
that the public could make a moral judg-
ment as to whether such a weapon should
ever be used. Balancing these concerns,
as the Muskie amendment would call for.
the judge could find the public interest in -
disclosure to outweigh the national de-
fense implications.
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May 30, 1974- CONGRESSIONAL RECORD SENATE
0 SA *05410.4Mr 014 support Cif- y
ns teat I nes V.
ulletpprovetifebriReltatt 203/65/tit-50
Mr. HRUSKA. The bill presently pro- lug the court's judgment are Included, amply discussed this afternoon.
na to:nal security. relea.sea. oweven ets.
aides that a judge should not dieclose It seems obvious to rne that in an area
classified document if he finds a res- where the courts have themselves ad-
sonable basis for the classification. What mitted their inadequacies in dealing with
would the Senator from North Carolina these issues, Congress should endeavor
say in response to the following ques- to provide the proper guidance. The re-
? tion: Should a judge be able to go ahead ported version of this bill does so. It pro-
-and order the disclosure of a document vides that only in the event a court de-
even if he finds a reasonable basis for termines the classification of a docunient
? the classification? to be without a reasonable basis accord-
? Mr. ERVIN. I think he ought to re- lug to criteria established by an Enecu-
quire the document to be disclosed. I do tive order or statute may it order the
not think that a judge should have to document's release.
inquire as to whether a man acted rea- Therefore, I respectfully submit that
sonably or unreasonably, or whether an Senator Musitre's proposed amendment
agency or department did the wrong does not adequately come to grips with
thing and acted reasonably or unreason- the various competing concerns involved
ably. - '? in this issue.
The question ought to be whether Mr. MUSEIE. Mr. President, how
classifying the document as affecting na- much time have I remaining?
tional security was a correct or an in- The PRESIDING OFFICER. The Ben-
correct decision. Just because a person ator from Maine has 21 minutes remain-
teed in a reasonable manner in coming tug.
to a wrong conclusion ought not to re- Mr. MUSKIE. Mr. President, I yield
:quire ? that the wrongful conclusion be myself 3 minutes.
sustained. Mr. President, I have listened to the
. Mr. HRTJSKA. Mr. President, I am distinguished Senator from Nebraska ex-
grateful to the Senator for his confirma- pound at length on What he believes to
-tion that such a decision would be ap- be the facts and say that the judges are
pealable. - - not qualified to make evaluations of cies-
.
.However, on the eecond part of sifcation decisions.
answer. I cannot get out of my mind the If he believes what he says he believes,
language of the Supreme Court. This is he has got to be opposed to the commit-
the particular language that the Court tee bill because the committee bill estab-
has used: Decisions about foreign policy lishes a procedure for judicial review.
are decisions "which the judiciary has If he believes judges -to be as unquali-
neither aptitude, facilities, nor respon- fed as he describes them, eloquently and
sibility and which has long been held to vigorously, on the floor of the Senate, he
belong in the domain of political power has to be against the bill to which he
not subject to judicial intrusion or in- has given his name and support. because
quiry." C. dr S. Air Lines v. Waterman, that bin rests on the process of judicial
Corp., 333 U.S. 103 (1948). review.
That is not their field; that is not The second point that I wish to make
their policy. is, of course, that judges can be un-
Mr. ERVIN. Pardon me.. A court is reasonablena,s my good friend the Sen-
composed of human beings. Sometimes ator from North Carolina has pointed
they reach an unreasonable conclusion, out. But what about the executives? Let
and the question would be on a determi- me read, from the committee report, the
nation as to whether the conclusion of language of Justice Potter Stewart in
the agency was reasonable or unreason- concurring with the majority opinion of
able. the Supreme Court in the Mink case that
Mr. PIRUSKA. Mr. President, I yield we seek in this bill to alter.
myself 2 minutes to read from the Su- Justice Stewart stated:
preme Court case of C. & S. Airlines ver- Congress he built into the Freedom of
SUS Waterman Corp., 333 U.S. 103 (1948): Information Act an exemption that provides
no means of questioning an executive de-
to
very nature of executive decisions as
ciskra that determine a document is secret,
to foreign policy is political, not judicial. however, cynical, myopic, or even corrupt
Such decisions are wholly contded by our
that decision might have been.
Constitution to the political departments of
the government, Executive and Legislative. Now that is the opinion of a justice
They are delicate, complex, and Involve large who concurred in the decision in the
elements of prophecy. They are and should ,,ase which denied judges in camera
be 'undertaken only by those directly respell- Mink-
Bible to the people whose welfare they ad- review of executive decisions to classify
vance or imperil. They are decisions of a kind in the national security field, clearly urg-
for which the Judiciary has neither aptitude, jug the Congress, in my judgment, to do
facilities nor responsibility and which has something about -it, and that is what we
long been held to belong in the domain of seek to do.
political power not subject to judicial in- I simply cannot understand the posi-
tension or inquiry. ton of the Senator from Nebraska (Mr.
. Mr. President, I think that is pretty Hausza) in supporting, on the one hand,
-plain language. I stand by it. a judicial review process designed to open
a In this connection, as I understand the door to examination of executive
Senator MUSICIE'S amendment, the bur- decision, and then on the other hand
classifying the docu
1 am ready for a vote at any time, -on
I will withhold the remainder of me
time mitt' it is clear that the Senate is
ready for inc vote.
Mr. TAFT. Mr. PresiCz.-..-A. the Jocn-
iary Committee deserve our appsecisieer.
or the significant work that is en-nice-led
n the bill before us today.
These amendments to the Frees:era of
ri
formation Act will accomplish the
ommittee objective. of providine mete
pen access to Government active na
e fresh at that open access will brie;
an only strengthen our form of Oct -
ernment. Informed citizens snd respell-
ye Government agencies Will to a lone
ay toward restoring the faith and con-
deuce that the American people must
have in our institutions.
The amendment offered to S. 2543 by
the Senator ? from Maine which deals
with ' classified information relating to
national defense or foreign policy will
not serve the interests of clear legisletion
or assist in the delicate process of mak-
ing available such sensitive classified
material.
It seems to me that the committee ver-
sion of S. 2543 offers a definite procedure
and ..a. definite standard by which na-
tional defense or foreign policy classified
information may be examined in a court
proceeding. The court is riot required to
conduct a de novo review, most courts
are not knowledgeable in the sensitive
foreign policy factors that must be
weighed in determining whether mate-
rial deserves or in fact demands classifi-
cation. Under the committee version a
court needs to determine if there is a
reasonable basis for the agency classifi-
cation. The standard "reasonable basis"
is not vague. The standard of reason-
ableness has been applied in our judicial
system for centuries.
The proposed amendment would call
for a de novo weighing of all of the fac-
tors and leave the determination to the
court according to a weighing of all the
information which is much more vague
than that standard promulgated by the
committee.
The executive branch has especially
significant responsibilities in foreign
policy and national defense. The recently
conducted Middle East negotiations by
our Secretary of State had to be Con-
ducted in secret and we are now enjoy-
ing fruit of the successful culmination of
these negotiations.
I believe -foreign policy consideratioes
and national defense considerations de-
serve special attention and the corninit-
tee version of S. 2543 accords them such
special attention.
It does not seem worthwhile to confoye
the standard that the committee has set
nor does it seem useful to diminish the
: executive branch's flexibility in dealing
. with .sensitive foreign policy matters.
I intend to support S. 2543 and urea
my colleagues to approve it viihout
den of proof is upon the Government to closing that door part way eacic
again, a1utiw."
_ .
demonstrate what harm would befall the because that is the clear purpose of the - Mr. KENNEDY. Mr. President. a par-
:United States if such information would presumption written into -the act. liamentary ifleuirY?
be made public and the court is to weigh - So I hope, Mr. President, that; having The PRESIDING OetrICER. The Sen-
such factors against the benefit accruing taken this step, that we will not take part ator will state it.
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9342 Mag. 30.,, 1974-7
A p p ro vart;Rgati3g7S0161A-10\l/WO 3 8 0 RO 0 0 6 0 620 0 0 1-7,
tin DOLE. Mr. President, I think the lion is on the engrossment of the amend-
1- nation in this case of Washington. Re- ment and the third reading of the bill.
tat-th project. Inc., against Depart- The amendment waeordered to be. en-
Tient of Health, Education and Wel- grossed and the bill. to be read a third
:are clearly demonstrates the need .f or time.
,:on,gressional action to insure that re- The-bill (H.R. 12471)-- was read the
search ideas are indeed accorded the third' time. '
confidential status which they ?deserve. The PRESIDING OrinICER. The bill
It is for that sole reason that I drafted having been read the third time,. the
the said amendment, in anticipation of question is,. Shall it Pass? -
proposing its adoption. _ - Mr, GRIFFIN. Mr.. President,. is the
While it ianot our business to preempt Senator from: Nebraska. entitled tele rece
the courts in matterenf Judicial concern; _ ognitionr .., aptitude, facilities- and responsibility. This
it
is our affirmative legislative duty to The PRESM_____Thin G OsetuCER. Theaert- is net. my own flat statement. These are the
lay down proper statutory guidelines: ator from Nebraska Is recognized. words the Supreme Court used. in. Ca cfs AiZ
Regardless of the outcome in the cited? Mr. HRUSKA. Mr. President, I. shall nines v. Waterman:
case, therefore,, we. still have the obit- take not more than -X or 4 minutes, to erlhe very, nature of executive- decisions:
y .-
eation to protect against any futureun-- recapitulate what. has transpired today as to foreign polic is political, not judicial
unwise, and unfair premature on. this:bill,
Mr. President.. my points of summary are
as follows.. First, as, to the Muskie amend-, -
ment? I fear that we are giving. undue late-e7
tude to the courts in dealing with. a very,
Important national issue. The amendrrient
asks the courts to review documents. to de--
terrnine their effect on the national defenise
and foreign policy, of the United States. Yet
the amendment offers the courts no guid-
ance in performing this task. It wits. the
court to- make political judgments..
-Indeedethis is a. task for which, the. courta
themselves have found that they lack the
Such decisions are- wholly, coneded. by our
necessary,'
disclosure- requirements in the apecifie First,. I point out that this bill was re-
area of scientific experimentation: ported' unanimously and without objec-
Certainly, the whole idea of "dis.clo- ton from thetludiciary Committee to ac-
sure" and the publies"right to know" is compli.sla certain procedural changes in
of paramount importance at this time in the Freedom of Information Act, which
our Nation's history. And .1 have no de- was enacted In 1956.
sue or intention of placing undue re- Some substantive changes were offereel
strictions on those fundamental con- in committee. They were turned down.
cepts. Eut I feel very strongly that, in The purpose was to make it an effective
the area of research grants, nondisclo- and. an efficient implement and in a very
, sure entitlement is justified?and cora- vital field; namely, the right of thetpub-
'pletely within the spirit of the Freedom tic to know, on the one hand, ande on the
of Information -actitself. - other hand, to conservethe confidential-
It is Inez sincere hope that my col- itY. or Federal Government departments
leaguea will agree, and join me at the an- and document, and. to. enable them to
matters as specifically excepted from Mr. Pre.eldent, it is to be regretted that . determining wben, the public interest in die- -
categories of information which should some? major, substantive chenges were closure, was surenieet ni require the Goy-
be disseminated to the public. I urge effected by amendments on the floor of eminent to divulge information notvrith- ,
? standing a substantial national security la-
the Senate today. terest in. secrecy." 85 Harvard Law Review
It is my intention?and I shall do so? 1130, 1225-26 (1972). ,
t vote. against the bill. because of the Furthermore, the- Attorney Ger.eralt in
Constitution to the, political- departments of.
the
the government. Fieeciative. and Legislative.
They are delicate, complex. and lttvolvelergeee"
elements of prophecy_ They are and should be
undertaken only by those directly responsible'
to the people Whose welfare they advance
or imperil. They are decisions of a kind.
for which. the Jude-eery brie neither aptitude,
facilities nor responsibility and which has
long been- held. to, belong in, the domain of
political. power not. subject, to judicial in-
trusion. or inquiry..
Likewise.. a Harvard, Law, Review. Develop-
meats, Note reached the same conclusion.
In, discussing the role of the courts- in re-
viewing classidcatlondeceeer.s. it states that
"there are limits te the scope of review- that "4
the courts are, competent to eeercise," and.'
propriate time in moving to- identify such function properly and eifeceiVelea concludeeteat"aicourt would have. difficulty ,
title problem to be- the subject of special
hearings at the earliest opportunity,. and
that it be resolved coincident with,
ture health legislation, as the distin-
guished floor manager of the present a ment to those amendments. It was letter which I earlier introduced- in the ec
bill (Mr. Krailetre) has suggested .. . , my prior- Intention to- vote for the bill, ord expressed the' opinion that grave eon-
-'atitueional questions. arise In the adoptien
.
The PRESIDING _ Ol'euCE17,- The . but it is my present intention tocall to
of this. amendment. As thee Attorney Ger,* .
the: attention of the President the verY
: question Is on agreeing to committee undesirable features of the two amend- eral concluded, "the conduct of' defense and',
, amendment in the nature of a. substitute, raents foreign policy is specially entrusted to the -,
as-amended. , ...... _, ?.. Exeeutive by, the Constitution, e.nd this
Tti trre judgment,h been a dis- responsibility- incrudee the protection' of In- -
The PRESIDING OFFICER'. ;'The estrous effect upon law -er
e?orcement par- formation, necessary to the. successful cone
. ' duct. of theseactivities, For this reason, the-'
The amendment:was agreed to. - , " ? ne' ?
question is on the third reading of the ticuiarly, by the Federal' Bureau of Irt-
consatuttenairta ca the proposed. amend:::
bill. - - . , - ? , - vestigation and the law enforcement
- ment is in serious question." ' ' ..,
, The bill (S. 2543a was ordered- to. a agencies- of our national Government. Second,. I believes that -die amendment "to
t third reading and read the third time. The-amendments will have an effect aLso exemption 7 could lead to a disastrous ero-
laced law enforcement agencies sion of the-FBI's capability for law enforce-
Mr. r-CFVNEDY. Mr. President, I ask en the
' - raent notwithetanding the safeguards and
that the Chair lay before the Senate a a's wel ? , -s, , . , - - t. -- ?
, standards coartathed in that. amendment Ta
! message from the House of Representa- - I-. shall urge the President as strongly-
' tives on H.R. 12471.- as, I can to veto this measure. It 1?5 'MY amendment look well. on paper. However.
be sure? the standards eentained in the
The PRESIDING 0.enriCER, laid before belief that it is sufficiently disadvanta - bawd on the extierieuce that. the FBI lam ac-
the Senate H.R. 12471, to amend section . geous and detrimental that it requires a cumulated to date under standards similar
552 of title 5, United States Code, lmown vet.o. It. Is to be regretted, Mr. President, to these, it is clear that they are difficult -
as the Freedom of Information Act. because we had a good bill. We should go if not impos.sible to administer.
The PRESIDING OPFICER. The bin forward and make the Freedom of In- Here are some of the effects which adope
will be considered as having been read formation Act as effective as possible. I tiou of the Hart amendment could. have.
twice by title, and without objection the think a fine balance had been. worked
such as the FBI, imposing on them, the added
1.. It could distort the purpose of agencies
Senate will proceed to its consideration. out with the sunny interests competing
burden. of serving as a research, source for
Mr. KENNEDY. Mr. Preeident, I move forinformation that either should be die- every writer, busybody, or curious person..
to strike all atter the enacting clause of closed or should be held confidential. and 2. It.could impose upon these agencies the
H.R. 12471 and insert in lieu thereof the with other interests such as. permitting tremendous task of each document contained in
eac age of
language of S. 2543 as amended. - the courts to review classified documents re page
any of their
The PRESIDING OFFICER. The ques- in camera. many investigatory files to make an lade-
tion is on agreeing to the motion of the Mr. President, I make this as a. state- pendent judgment as to whether or not any
Senator from Massachusetts to insert ment in connection with the future pro- part thereoe should be release& ,
the Senate language as a subetitute for ceedings on the bilL 3. It-could detrimentally affect the eond-
S gu
file Heuee bill. Mr. President, I ask unanimous con- dence of the American people in its Federal
Tile, motion was agreed to. sent that a- brief statement summarizing investigative agencies since it will be appar-
Mr. KENNEDY. Mr. President, I ask those points be printed in the RECORD ens these' agencies no longer can assure- that
for nee yeas ami nays on final passage. There being no abjection, the state- e - ?
?
-lumen in confidence for law enforcement
their identities and the information they
The yeas and
nays wer ordered.
CIA-RDP75B003130R0601002CfOtirrPtc"
ment was ordered to. be printed. in the purposes will not some day be disclosed to
The Y.'RESIDESG 0 CniletdeFeef ReleaseD20011105/06 :
ENATE
" 3?' 19/4roved For Release ''03CrAb5)A ? bikikS$75B00380R000600200001-7
-none, so yield back the remainder of
my time.
Mr. KENNEDY. Mr. President, I yield
back the remainder of my time.
The PRESIDING OFFICER. All time
has been yielded back. The bill having
been read the third time, the question is,
Shall it pass? On this question, the yeas
and nays have been ordered, and the
clerk will call the toll.
The second assistant clerk
called the roll.
Mr. ROBERT C. BYRD. I announce
that the Senator from California (Mr.
CPA:Knox), the Senator from Arkansas
(Mr. Fumeniutir), the Senator from
Alaska (Mr. GRAVEL), the Senator from
Indiana (Mr. HARTKE), the Senator front
South Carolina (Mr. Hoeenics.), the Sens.'
CON TA
Fourth, and finally, it could set the stage
. for severe problems regarding the privacy of
Mr. President, in my view, nothing would
he lost by deferring, action on this amend-
ment because the PHI is now operating under
standards virtually similar to those contained
in the amendment. It would be well to allow
a suitable Interval of experience to be ac-
- cumulated under these regulations in order
to ascertain the wisdom or lack thereof in
? putting thee, standards in statutory form.
Mr. President; the highly detrimental and
far-reaching impact that these two amend-
ments taken together pose is so grave and
sweeping that it is my intention to address a
letter to the Pres,dent urging as strong as I
..can that he veto this measure if it passes in
this form.
Mr. McCLELLAN. Mr. President, will
the Senator yield?
Mr. HR. TJSKA. Mr. President, I gladly
yield to the distinguished Senator from.
Arkansas. -
Mr. McCLELLAN. Mr. President, I
wish to emaciate myself with the views
expressed by the distinguished Senator
from Nebrasim. I fully intended to sup-
port the measure as it came to the floor
'of - the Senate.. However, in view of the
arnendmerits that have been agreed to
today, which destroys the purpose of the
bill_ in my judgment, and violate the
-Nation's security on documents and rec-
ords, I cannot support the measure. I
shall now have to vote against the bill.
- Mr. KENNEDY. Mr. President, I yield
myself 2 minutes: ? -
The Freedom of Information Act was
passed in 1966. This legislation we are
considering today is really a response by
Congress to_the past experience we have
ound with the failure of Government
agencies to respond to the public's legiti-
-mate interest in what had been taking
place inside their walls. It is precisely
the extreme and tmreasonable secrecy
of the past that this bill addresses, and
think the overwhelming support by the
press and across the country for- some
legislative response to this secrecy can
be answered by this bill.
I should say that the amendments that
have been agreed to by a strong vote in
the Senate today in no way infringe upon
national security or upon the law en-
forcement agencies and their responsi-
bilities in this. country. I think this Is the
most important legislative action that
eau be taken to open up the Govern-
Ment to the American people, who re-
quire it, who demand it, who are begging
and pleading for it.
a. I want to acknowledge the construc-
tive and supportive efforts of Senator
HRUSKA and his staff in developing this
legislation for floor action. I am disap-
pointed that he does not feel that he
cart support this bill as amended on the
floor.
The bill provides ample protection for
the legitimate interests of Government
agencies. It also insures that they will be
open and responsive to the American
People.
I hope that the bill will be passed.'
I am ready to yield back the remainder
my -time
-Mr. IMUSKA. Mr. President, may I
-ask of my colleagues if there are any.
;requests for time.? Apparently there are
ator from Iowa (Mr. Huctms), the Sena-
tor from Hawaii (Mr. INOUYE), the Sen-
ator from South Dakota (Mr. MC,-
GOVERN), the Senator from New Mexico
(Mr. MoarroyA) , the Senator from Rhode
Island (Mr. PASTORS), the Senator from
Rhode Island (Mr. FELL), and the Sena-
tor from Alabama (Mr. SPARKMAN) are
necessarily absent. _ ,
further announce that, if present
and voting, the Senator from Alaska
(Mr. GRAVEL), the Senator from South
Dakota (Mr. McGovErtar), the Senator
from Rhode Island (Mr. PASTORE). the
Senator from Rhode Island (me. Pau.),
and the Senator from California (Mr.
CRANSTON) would each vote "yea."
Mr. GRIFFIN. I announce that the
Senator from Utah (Mr. BENNETT), the
Senator from. New York (Mr. BUCKLEY),
and the Senator from Idaho (Mr. Mc-
CLIME) are necessarily absent.
I also announce that the Senator from
Colorado (Mr. Dommetc), the Senator
from Arizona (Mr. PANztrar), the Senator
from Arizona (Mr. GOLDWATER), and the
Senator from South Carolina (Mr.
Thunman)) are absent on official
business.
I further announce that, if present and
voting, the Senator from South Carolina
(Mr. Tauitasoin) would vote "nay." -
The result was announced?yeas 64,
nays 17, as follows:
[No. 221 Leg-1
YEAS SC
?
Abourezh Domettici Mondale
Aiken. Eagleton. Mess
Baker ErVill lillushie
Bartlett Fong Nelson
Bavh Gurney Packwood
Beall Hart Pearson
Bellnion. Hasfrell Percy
Bentsen, Hatfield Proxmire
Bible Hathaway Ribicaff
Bid en _ Huddleston Roth
Brock. liunaphrey . Schweiker
Brooke ? Jackson. , Scott, Hugh
Burdick Jamas , Stafford
Byrd, Johnston. Stevens
Harry r.. Jr, Kennedy Stevenson
Cannon Magnuson , Symington
Case Mansfield Taft
Mathias Tunney
McGee Welcher
. McIntyre Williams
Metcalf Young.
Metzenbaum
Chew
Church
Clark
Cook
Dole
NAYS-17
Allen Hansen
Byrd, Robert C.. Helms ?
Cotton Hruska
Curtis Long
Eastland McClellan
Griffin NIT1111.
Randolph
Scott,,
William L.
Stennis
Talmadge
Tower ? the short title "The Energy Tran,r..4.to.-
Bennett
Buck] ey
Cranston
Dominick.
Fannin
Pulbright,
Goldwater
C
=-K
NOT VOTING-19
Gravel ? MCI) toya
Pantere
PeA
SuarLman
Thurmonzi
Earths
Hollings
Flugliec
Inouye
McClure
McGovern.
So the bill (HR. 12471) was passed.
Mr. KENNEDY. Mr. President, / move-
that the vote by v-hich the bill was passed
be reconsidered.
Mr. MOSS. Mr. President, I move to
lay that motion on the table.
The motion to lay or the table was
agreed to.
Mr. KENNtaDY. Mr. President, I move
that S. 2543 be indefinitely postponed.'
The motion wa-s agreed to.
HEALTH SERVICES RESEARCH,
HEALTH STATISTICS, AND MEDI-
. CAL-LIBRARIES ACT OF 1974..
Mr. KENNEDY. Mr. President, / ask
the Chair to lay before the Senate a
message from the House of Representa-
tives on H.R. 11385.
The PRESIDING OFFICER. (Mr.
NuNa) laid before the Senate a message
from the House of Representatives an-
nouncing its disagreement to the amend-
ment of the Senate 'to the bill (H.R.
11385) to amend the Public Health Serv-
ice Act to revise the programs of health
services research and to extend the pro-
gram of. assistance for medical libraries,
and requesting a conference with the
Senate on the disagreeing votes of the
two Houses thereon.? .
Mr. KENNEDY. I move that the Sen-
ate insist upon its amendment and agree
to the request of the House for a con-
ference on the disagreeing votes- of the
two Houses thereon, and that the Chair
be authorized to appoint the conferees
on the part of the Senate.
The motion was agreed to, and the
Presiding Officer appointed Mr. KEN-
NErry, Mr. WILLIAMS, Mr. NELSON, Mr.
EAGLESON, Mr. CRANSTON, Mr, HUGHES,
Mr. FELL, .Mr. MONDALE, Mr. HATHAWAY,
Mr. SCHWETKER, Mr. JATITS, Mr. Domr-
iTICE., Mr. BEALL, Mr. TAFT, Mr. STAFrORD
conferees on the part of the Senate,
ENERGY TRANSPORTATION SECU-
RITY OR INSECURITY?AT WHAT
COST?.
Mr. COTTON. Mr.. President, I ask
unanimous consat to insert in the Rye-
?tat a statement. which I made today
before the Subcommittee- on Merchant
Marine of our Committee- on Commerce,
opposing the bills. HR. 8193 and S. 2089.
The bill, H.R. 81.g3, carries the short
title, "The Energy Transportation Secu-
rity Act of 1974," and would require an
increasing percentage of imported petro-
leum and petroleum. products to be
transported on higher-costing U.S.-flag
tanker vessels.
If enacted, this legislation could have
a. profound, and probably adverse, effect
upon the cost of meeting our current
pressing energy resource needs. I seri-
- ously question whether, as reflected in
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Troublesome Proposed Amendments to the
Freedom of Information Act - S. 2543
I. De Novo Review of Classified Records By the Courts
A. Concern:
The proposed amendment would encourage judges to "second
guess" the validity of classified documents by the agencies
responsible for the national security or foreign relations
programs involved. Courts are ill equipped to perform this
task because of a lack of background in the technical subject
matter and inadequate resources to develop the necessary
expertise. Although there may be unusual circumstances in
which a judge has sufficient grounds for going behind an
affidavit from the head of the agency supporting the validity
of the classification, the statute should recognize the presump-
tive validity of the affidavit and establish a standard fgr in camera
review to test the validity of the affidavit .
B. Suggested Amendment:
Add at the end of section 552(a)(4)(B) the following:
In determining whether a document is in fact specifically
required by an Executive order or statute to be kept secret
in the interest of national defense or foreign policy, a
court may review the contested document in camera only
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2
if it is unable to resolve the matter on the basis of affidavits
and other information submitted by the government. In
conjunction with its in camera examination the court may
consider further argument or an ex parte showing by the
government in explanation of the withholding. If there has been
filed in the record an affidavit by the head of the agency stating
that he has personally examined the documents withheld and
has determined after such examination that they should be
withheld under the criteria established by a statute or
Executive Order referred to n Exemption (I), the court
shall sustain such withholding unless it finds the withholding
was without a reasonable basis under such criteria. On
appeal the appellate court shall consider the matter de novo.
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II. Suspension of Employees:
A. Concern:
Authority in the district court to direct the imposition of a
10 to 60 day suspension from employment for those officers
or employees responsible for an unreasonable withholding of
an agency record will cause employees to avoid making
decisions on Freedom of Information Act requests at the
working level. They will fear that some court, some where,
some time, may cite their denial of a record as "unreasonable."
Thus, high-level officials will be flooded with Freedom of
Information Act decision requirements which will crowd out
other important work. Comparability with penalities imposed
on employees for security violations requires a system of
administrative agency penalties.
B. Su_ggested Amendment:
Substitute for section 552 (A)(4)(F) the following:
Whenever records are ordered by the court to be made
available under this section, the court shall on motion by
the Complainant find whether the withholding of such records
was taken in a good faith belief that the withholding had a
reasonable basis in law. If a lack Of "good faith in withholding
Is found, the court shall advise the agenev, which shall
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determine the officer or employee responsible for the denial
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4
and the extent to which disciplinary action against him is
appropriate in accordance with agency procedures established
by regulation.
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III. Rigid Time Limits for All Requests
A. Concern:
The 15 working-day time limitation for responding to all
Freedom of Information Act initial requestz and appeals is s3
inflexible as to be unworkable. In cases which are not routine
officials with technical expertise or with high-level responsi-
bility must make the judgment of whether the requested record
falls within one of the broad exemptions of the Act and whether
discretionary release can be made even when the record
comes within an exemption. This time -consuming function in
difficult cases will require priority attention by these
individuals who frequently will be obliged to set aside other
tasks which by any reasonable standard would be considered
more significant to the national interest. Such priority
attention will be required of any request under the Freedom
of Information Act from any person for Whatever reason,
frivolous or substantial.
B. Suggested Amendment:
Substitute for the second paragraph of section 552(a)(6) the
following:
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s ?
(6) Each agency upon any request for records made under
paragraph (1), (3), and (3), of this subsection shall
*
6
Any person making a request to an agency for records under
paragraph (1), (2), and (3), of this subsection shall be entitled
to seek a final agency determination of his request if the agency
fails to comply with subparagraph (A) of this paragraph and
shall be deemed to have exhausted his administrative remedies
with respect to such request if the agency fails to comply with
subparagraph (B) of this paragraph. The time limit set forth
in subparagraph (A) shall, however. be extended for an
additional period not exceeding 30 days (excepting Saturdays,
Sundays, and legal public holidays) upon notification to the
requester by the agency that further time is required because
the agency has been unable to locate or collect the records
or because the requested records are voluminous, and
extensive effort is required to segregate available from
unavailable records. The time limit set forth in subpara-
graph (B) shall, however, be extended for an additional period
not exceeding 15 days (excepting Saturdays, Sundays, and
legal public holidays) upon notification to the requester by
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the agency that further time is required because either
the agency has determined that further review may result
in the discretionary release of requested records coming
within one of the exemptions of subsection (131, or the
applicability of an exemption requires interagency con-
sultation, or a personal review of the requested record by
the head of the agency or his designee. Any notification of
denial of any request for records under this subsection shall
set forth the name and title or position of the officer or
employee responsible for the agency's decision to deny such
request.
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8
IV. Responding to Freedom of Information Suits in 20 Days
A. Concern:
The requirement to file an answer to a complaint in Freedom
of Information Act litigation within 20 days rather than within
the normal 60-day period available to the Government, offers
the agency insufficient time to prepare the necessary litigation
report. Although the reason for a final administrative denial
of a request under the Act will usually form the substantive
basis for the answer to the complaint, the preparation of
that answer requires the careful preparation of an affidavit
that outlines and indexes in accordance with Vaughn v. Rosen,
the relationship of that exemption to the specific pages and
paragraphs of the requrested document. This is particularly
difficult when lengthy and technical classified documents are
involved. Such a time--consuining task cannot be conscientiously
performed within an abbreviated period greatly reduced by the
time required for the complaint to reach the policy official
who must supply the expertise for the affidavit and other
aspects of the litigation report. Often a significant portion
of the available time is exhausted through the mails in cases
files in United States District Courts located many miles
distant from the responsible officials and records.
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B. Suggested Amendnlent:
Substitute for?section 552(a)(4)(C) the following:
In any suit under this section, the plaintiff may file with his
complaint a motion to reduce the time prescribed for the
Government to answer complaints in civil actions to a period of
not less than 20 days. The court shall dispose of any such
motion as soon as possible, and it shall order such reduction
in the time to answer as may be warranted in the light of the
plaintiff's showing that such reduction will serve the public
interest or avoid undue hardship, and as may appear consistent
with the orderly and efficient conduct of the case.
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25X1
25X1
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Journal - Office of Legislative Counsel Page 3
Friday - 27 September 1974
co; INTERNAL USE oNry CONFIDENTIAL
9. - GLC) Met with Ed Braswell, Chief Counsel, Senate
Armed Services Committee, and briefed him on the Director's concern about
responding to the inquiry from Norvill Jones, of the Muskie Surveillance Sub-
committee. I left with Braswell a copy of the reply which we had planned to
send to the Subcommittee and told Braswell we were delaying our response
until I discussed the matter with Jones.
I also told Braswell we are pulling together several lists of items of
good things" Senator Stennis might discuss on the floor if it became necessary
and that I would get these to him early next week.
I mentioned the routine request we had received from the Committee for
comments on Senator Mondale's proposal, S. Res. 404, and asked Braswell
if he wanted a speedy response. Braswell said they plan no action on the
Resolution and not to rush our reply.
10. - GLC) Dropped by to see John Goldsmith, Senate
Armed Services Committee staff, who gave me a package of material on the
Phoenix Program that the Director had submitted to the Committee in his
confirmation hearings and which he wished to have returned. In the course of
our conversation, Goldsmith said it might be helpful to the Agency if we prepared
some sort of unclassified justification for our covert activities which people like
he and others might use in contacts with various members of the news media.
I told him I appreciated his thoughtfulness and would get some material to him.
25X1 11. - GLC) Met with Norvill Jones, Muskie Surveillance
Subcommittee staff of Senate Foreign Relations, and talked with him at considerable
length about his questions on Agency use of electronic surveillance. See Memo
for Record.
25X1
25X1A
25X1
12. - JGO) After talking to Frank Slatinshek, Chief Counsel,
House Armed services Uommittee, I talked to Robert Wichser, Administrative
Assistant to Representative Paul Findley (R. , Ill.), and scheduled a meeting for
2:00 p.m. , Monday, 30 September, for a briefing on Soviet facilities in South
Yemen?the Port of Aden. OCI, has been advised,
13. JGO) Talked to Scott Cohen, Executive Assistant
to Senator naries Percy (R. , Ill. ), who told me they have no one associated
with their office by the name of Glenn Reed. This related to a phone call earlier
in the week from Glenn Reed who identified himself as a member of Senator
Percy's office. No further action is indicated.
CIA INTERNAL: USE ONLY'
CONFIDENTIAL
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25X1
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Journal - Office of Legislative Counsel
Friday - 27 September 1974
Ci
CIA INTERNAL: USE ONLY DN FIDE NT1AL
Page 4
14. - JGO) Talked to Werner W. Brandt, Legislative
A3sistant to Representative Thomas S. Foley (D. , Wash.), who told me
that the Representative is Chairman of the Subcommittee on Livestock and
Grains, House Committee on Agriculture, and as a result, would like a
breakfast briefing on Soviet and Chinese feedgrains and wheat and climatology.
25X1A Mr. Brandt will discuss a time for the briefing with Chairman Foley and
call us during the day on Monday, 30 September. OCI,
ha.s been advised.
, 25X1A
25X1
16. - LLM) Called Jack Maury, Assistant
Secretary of Defense for Legislative Affairs, to inquire as to the position of
the Department with respect to the Freedom of Information Act amendments
(E. R. 12471). He said David 0. Cooke, .Deputy Secretary for Administration in,
En"-e-ox.?r?ipt-T-011er Organization, Department of Defense, or Marty Hoffman were
handling the problem and that he would look into it. I pointed out that NSA
no doubt would have the same problems we envisaged and that we were a bit
guzzled by their silence.
I asked for Mr. Maury's reaction to printing up for Agency circulation
copies of his article in "Studies in Intelligence" on Congressional relations
explaining it might cause him some problems in his present office and it is
doubtful that the Agency should be circulating its article on how Congress
works. Mr. Maury acknowledged the article belongs to the Agency but was
not opposed to circulating it after some editing.
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j. ?#7.
uo? ; 4iA
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25X1A
25X1A
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Journal - Office of Legislative Counsel Page 5
Friday - 27 September 1974
CR INTERNAL USE ONLY CONFIDENTIAL
17. - LLM) David 0. Cooke, Deputy Secretary
for Administration in the Comptroller Organization, Department of Defense,
at Jack Maury's, Assistant Secretary of Defense for Legislative Affairs,
t,,...graggestion called on the Freedom of Information Act amendments (H. R. 12471),
indicating that he is frequently in touch with OGC, on this
bill. Per Cooke, DOD has not made up its mind on whether or not to
recommend a veto, and believes the bill is veto proof and that the Congress
has made major concessions. I pointed out that very little concession had
been made on the provision in the bill forcefully addressed by the President
in his letter to the conferees concerning the breaking of executive classification
in sensitive military, foreign, and intelligence fields by the Judiciary and
Cooke agreed. I told him we were leaning heavily towards recommending
veto as was Justice and in response to his query that State perhaps would
not. When asked how the other departments and agencies were lining up,
I told him we were not making a tally and did not know.
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cc:
0/DDCI
25X1A Ex. Sec.
Mr. Thuermer
Mr. Warner
Mr. Lehman
Mr. Clarke
EA/DDO
DDI
DDA
DDS&T
Comptroller
(..?,UEC5-11.GE L. CAtrY
Legislative Counsel
CONFIDENTIAL
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