PAGENO="0001" FEDERAL PUBLIC RECORDS LAW (PAItT 1) HEARINGS BEFORE A SUBCOMMITTEE OF TIlE COMMITTEE ON GOVERNMENT OPERATIONS IIOTJSE OF REPRESENTATIVES EIGHTY-NINTH CONGRESS FIRST SESSION ON ILR. 5012, H.R. 5013, ILR. 5014, H.R.. 5015, Hit 5016, Hit. 5017, H.R. 5018, H.R. 5019, H~R. 5020k H.R. 5021, ILR. 5237, H.R. 5406, H.R. 5520, H.R. 5583, H.R. 6172, H.R. 6739, H.R. 7010, Hit. 7161 BILLS TO AMEND SECTION 161 OF THE REVISED STATUTES WITH RESPECT TO THE AUTHORITY OF FEDERAL OFFICERS AND AGENCIES TO WITHHOLD INFORMATION ANt LThXIT TIlE AVAILABILITY OF RECQRD$ MARCH 80, 31, APRIL 1, 2, AND 5, 1985 Printed for the use of the Committee on Government Operations 0 U.S. GOVERNMENT PRINTING OFFIGE 4r~~213 WASITINGTON 1965 `3 PAGENO="0002" WILLIA1 Caljtornla ~~flSylvanja New Jersey url SW York Rhode Island AND Q~ ~N E. MOSs, Ca a ~~Onaj ~ta/J 11 PAGENO="0003" CONTENTS Page ILR. 5012..~ 2 List of House bills identical to H.R. 5012 3 Statement of- Benjamin, Robert M., representing the American Bar Association; accompanied by Chisman Hanes 97 Black, Creed, managing editor, Chicago Daily News, and chairman, Am*ican Society of Newspaper Editors' Freedom of Information Committee; accompanied by William P. Rogers, counsel; and Eugene Patterson, editor, Atlanta Constitution, committee mem- ber 125 Colburn, John H., editor and publisher, Wichita (Kans.) Eagle and Beacon, representing the American Newspaper Publishers Associa- tion 109 Costa, Joseph, National Press Photographers Association 81 Frandsen, Julius, chairman, Sigma Delta Chi's Committee for Ad- vancement of Freedom of Information; accompanied by Clark R. Mollenhoff, vice chairman 134 Hardin, Dale W., manager, Transportation and Communication Department, Chamber of Commerce of the United States; accom- panied by Verne R. Sullivan, assistant manager, Transportation and Communication Department 132 Herrick, H. T., General Counsel, Federal Mediation and Concilation Service; accompanied by Gilbert Seldin, Assistant Director, Office of Mediation Activities 35 McCart, John A., operations director, Government Employees' Council, AFL-CIO 161 Potter, Walter B., publisher, Culpeper Star-Exponent, representing the National Editorial Association 158 Schlei, Norbert A., Assistant Attorney General, Office of Legal Coun- sel, Department of Justice accompanied by Webster P. Maxon, Director, Office of Administrative Procedure, Department of Justice 3 Smith, Fred Burton, Acting General Counsel, Treasury DepartmentS accompanied by Mrs. Charlotte T. Lloyd, Chief, Legal Opinion Section, Treasury Department 47 Smyser, Richard D., chairman, Freedom of Information Committee of the Associated Press Managing Editors Association 115 Speiser Lawrence, director, Washington office, American Civil Liber- ties 1~Jnion 95 Wydler, Hon. John W., a Representative in Congress from the State of New York 153 Letters, statements, etc., submitted for the record by- Black, Creed, managing editor, Chicago Daily News, and chairman, .American Society of Newspaper Editors' Freedom of Information Committee: Excerpt from book by Dr. Harold Cross 127 Excerpt from statement of Norbert A. Schlei 125 Colburn, John H., editor and publisher, Wichita (Kans.) Eagle and Beacon, representing the American Newspaper Publishers Associa- tion; Excerpt from statement of Congressman Melvin Laird re news manipulation in the TFX affair 112 Excerpt from statement of Congressman William E. Minshall re changes made in Department testimony under the guise of security 112 UI PAGENO="0004" IV CONTENTS Letters, statements, etc.-Continued Colburn, John H., etc.-Continued Page Excerpt from statement of President John F. Kennedy 115 Excerpt from statement of Vice-President-elect Lyndon B. Johnson before the Associated Press Managing Editors Asso- ciation in Williamsburg 114 Excerpt from the Senate Judiciary Committee 1964 report on S. 1666 110 Excerpt from the Senate Judiciary Committee report on the Administrative Procedure Act in 1946 110 Costa, Joseph, National Press Photographers Association: Excerpt from Pope John XXIII's encyclical, "Pacem in Terris"_ 82 Excerpt from statement of Chief Justice Earl Warren of the TJ.b. Supreme Court 82 E,~cerpt of letter from the ICC, to Hon. John B, Moss, March 22, 1965 94 ~Memorandum from Jack Chase, cameraman, to Ed Fouhy re decision of the ICC to ban news cameramen 82 Statement by the late Honorable Learned Hand, in the case of the United States v. The Assoclitted Press 86 Griffin, Hon. Robert P., a Representative in Congress from the State of Michigan: Excerpt from statement of Norbert A. Schlei 21 Hanes, Chesman, chairmr~n, Committee on Public Information of the ABA Section of Administrative Law, American Bar Association: Proposed additions, changes, and deletions to H.R. 5012~ - 98, 100, 101 Herrick, H. P., General Counsel, Federal Mediation and Conciliation Service: Except from Federal Mediation Service regulations- Section 1401.2 40. Section 1401.3 40 Excerpt from Senate Report No. 1219, 88th Congress (S. 1666).~. 41 Excerpt from Tomlinson of High Point, 74 NLRB 681, 685 (1947)_ 39 Proposed changes to S. 1666 42 Kass, Benny L., counsel, Foreign Operations and Government Infor- mation Subcommittee: A 1947 interpretation of the Administrative Procedure Act 34 Excerpt from "Constitutional Limitations" 26 Excerpt from statement of Clark R. Mollenhoff 152 Excerpt from Supreme Court case, United States v. Reynolds - - - 24 Letter from H. T. Herrick, General Counsel, Federal Mediation and Conciliation Service, to Benny L. Kass, March 23, 196&.. - 46 Staff memorandum from Benny L. Kass, to Hon. John E. Moss, May 7, 1965 10 Monagan, Hon. John S., a Representative in Congress from the State of Connecticut: Excerpt from Federal Mediation Service Regulation 1401.3 43 Moss, Hon. John E., a Representative in Congress from the State of California, and chairman, Foreign Operations and Government Information Subcommittee: Excerpt from H.R. 5012 61 Excerpt from House Report No. 1770, May 24, 1958 155 Excerpt from section 303 of Public Law 85-568 156 Excerpt from statement of Fred Burton Smith 58 Excerpt from statement of Norbert A. Schlei 11 Excerpt from the ICC minutes of December 22, 1961 94 Excerpt of comments of Hon. August B. Johansen and Hon. John E. Moss re legislative history of the 1958 amendment on 5 U.S.C. 22 11, 12 Excerpt of letter from Hon. John E. Moss, to the Treasury De- partment, February 12, 1965 65 Interstate Commerce Commission's cited statutory authority for exclusion of photographers 93 Letter from Hon. John B. Moss, to President Lyndon B. Johnson, March 31, 1965 124 Letter from President Lyndon B. Johnson, to Hon. John E. Moss, April 2, 1965 123 PAGENO="0005" CONTENTS V Letters, statements, ete.-Continued Potter, Walter B,, publisher, Culpeper Star-Exponent, representing the National Editorial Association: Excerpt from statement of President Lyndon B. Johnson at a swearing-in ceremony for Hon. Henry H. Fowler as Secretary Page of the Treasury, April 1, 1965_. 160 Excerpt from statement of Vice President-elect Lyndon B. Johnson before the Associated Press Managing Editors Association in Williamsburg 160 Rumsfeld, Hon. Donald, a Representative in Congress from the State of Illinois: Excerpt from statement of Fred Burton Smith~. - - - - - 60 Schlei, Norbert A., Assistant Attorney General, Office of Legal Counsel, Department of Justice: Excerpt from court of appeals, case Machin v. ZuckerL~. 24 Excerpt from 18 U.S.C. 4082~ 27 Excerpt from Supreme Court decisions~ 23 Excerpt of letter from Paul Conrad, spokesman for 22 newspapers, State of Washington, to Senator Magnuson in 1963 re S. 1666. - 5 Language re internal memorandums 29 Statement re effect of H.R. 5012 30 Statement re litigation and administrative adjudication files - 34 Smith, Fred Burton, Acting General Counsel, Treasury Department: Confidential official records 50 Definition of persons properly and directly concerned under sec- tion 3(c) of the Adm~iistrative Procedure Act as set forth in Regul~tions of the Offices and Bureaus in the Treasury De- partment 74 Exce~rpt from the Administrative Procedure Act, section 3 59 Letter from Fred B. Smith, Acting General Counsel, Treasury Department, to Hon. John E. Moss, April 9, 1965 79 Smyser, Richard D., chairman, Freedom of Information Committee of the Associated Press Managing Editors Association: Excerpt of letter from George Beebe, managing editor, Miami Herald, to Hon. Dante Fascell 120 Speiser, Lawrence, director, Washington Office, American Civil Liber- ties Union: Excerpt of memorandum from Walter T. Skallerup, Jr., Deputy Assistant Secretary of Defense for Security Policy, to the Under Secretaries of the three services, November 1962 96 LETTERS AND STATEMENTS IN SUPPORT OF FEDERAL PUBLIC RECORDS LAW LEGISLATION Statements of and letters from Meffibers of Congress submitted by- Ashley, Hon. Thomas L., a Representative in Congress from the State of Ohio: Statement 170 Bartlett, Hon. E. L., a U.S. Senator from the State of Alaska: Letter to ~Eon. John E. Moss, April 1, 1965 168 Ed~ondson, Hon. Ed, a Representative in Congres~ from the State of Okhihotna: St~itemeht 170 Edwards, Hon. Jack, a Representative in Congress from the State of Alabama: Letter to Hon. John E. Moss, April 5, 1965 177 Ervin, Hon. Sam J., Jr., a U.S. Senator from the State of North Carolina: Statement 166 Pascell, Hon. Dante B., a Representative in Congress from the State of Florida: Statement 173 Gibbons, Hon. Sam M., a Representative in Congress from the State of Florida: Statement 175 Jones, Hon. Robert E., a Representative in Congress from the State of Alabama: Letter to Hon. John E. Moss, March 31, 1965 177 Long, Hon. Edward V., a U.S. Senator from the State of Missouri: Statement 165 McCarthy, Hon. Richard D., a Representative in Congress from the State of New York: Statement 176 Metcalf, Hon. Lee, a U.S. Senator from the State of Montana: Statement 168 Moss, Hon. Frank E., a U.S. Senator from the State of Utah: State- ment 167 PAGENO="0006" VI CONTENTS Statemen~~ofltjfld Patman, ii~ti. Wright, a Representative in Congress from the State of Page Texas: Letter to lion. John E. Moss 171 Reid, Hen. Charlotte T., a Representative in Congress from the State of Illinois: Statement 178 Statements of and letters from organiza~j~~5 and individuals submitted by- Allied Daily Newspapers of Washington: Letter to Hon. John B. Moss, March 24, 1965 194 American Trial Lawyers Association, Aviation Law Section New York, N.Y.: Letter to Senator Edward V. Long, and Congressmen John B. Moss and Ogden R. Reid, April 5, 1965~ - - - 187 Bieniillei., Andrew J., director, departme~~ of legislatio~, American Federation of Labor and Congress of Inthistrial Organizatj~~5. Statement 184 Burnham, G. B., president, Burnham Chemical Co.: Statement -- - 183 Fuchs, Ralph F., Indiana University School of Law: Letter to Hon. John E. Moss, March 30, 1965 182 Green Bay Press~Gazette, Green Bay, Wis.: Letter to Hon. John E. Moss, March 2, 1965 193 Griner, John F., president, American Federation of Government Emp1oyees~ Statement 181 Hidalgo Publishing Co., Inc., Edinburg, Tex.: Letter to Hon. John E. Moss, March 20, 1965 195 Magazine Publishers Association, Inc., New York, N.Y.: Letter to Hon. John E. Moss; April 12, 1965 188 Maritime Administrative Bar Association: Letter to Hon. John B. Moss, March 25, 1965 194 Meriden Record Co., Meriden,. Conn.: Letter to Hon. John E. Moss, Apri19,19~5 195 Overby, Kermit, director, Legislation and Research Departme~~ Rural Electric Cooperntiy~ Association, Washington, D.C.: State- ment 186 Railway Labor Executive's Association, Washington, D.C.: Letter / to Hon. John E. Moss, April 1, 1965 194 Shipley, Carl L., attorney, Shipley, Akerman & Pickett, Washington, `D.C.: Letter to Hon. John E. Moss, April 2, 1965 183 Speiser, Lawrence, director, Washington. office, American Civil Liberties Union: Statement 189 Wasilewski, Vincent T., president, National Association of Broad casters: Statement 192 BIOGRAPHICAL DATA OF WITNESSES Biographical data of- Colburn, John H., American Newspaper Publishers' Association - 199 Costa, Joseph, consultant in visual communications, author and lecturer 198 Frandsen, Julius, Washington manager, United Press International; chairman, Freedom of Information Committee of Sigma Delta Chi; and the National Professional Journalistic Society 200 Hanes, Chisman, American Bar Association 199 Hardin, Dale W., U.S. Chamber of Commerce 199 Herrick, H. T., General Counsel, Federal Mediation, and Conciliation Service 197 McCart, John A., operations director, Government Employees Council, AFL-CIO 198 Mollenhoff Clark R., Washington correspondent Cowles Publica- tions; and vice chairman, Freedom of Information Committee of Sigma Delta Chi - - - 200 Potter, Walter B., Culpeper, Va., National Editorial Association - 200 Schlei, Norbert A., Assistant Attorney General (Office of Legal Counsel), Departme~~ of Justice 197' Seldin, Gilbert J., Assistant Director of Mediation Activity, Federal Mediation and Conciliation Service - 198 Smith, Fred Burton, Deputy General Counsel (Acting General Counsel), Treasury Department 197 PAGENO="0007" CONTENTS VII Biographical data of-Continued Smyser, Richard D., managing editor, the Oak Ridger, Oak Ridge, Pags Tenu 199 Speiser, Lawrence, director, Washington office, American Civil Liberties Tjnion 200 ADDITIONAL CLARIFICATION OF DEPARTMENT OF JUSTICE ON "EXECUTIVE PRIVILEGE" Letter from Ramsey Clark, Deputy Attorney General, Department of Justice, to Hon. William L. Dawson, May 5, 1965 202 COMMENTS FROM DEPARTMENTS AND AGENCIES ON FEDERAL PUBLIC RECORDS LAW LEGISLATION Legislative branch, reply from General Accounting Office 203 Executive Office of the President, reply from Bureau of the Budget 207 Executive Departments, reply from- Department of Agriculture 209 Department of Commerce 211 Patent Office 213 Maritime Administration 215 Bureau of Public Roads 216 Assistant Secretary for Administration 216 Department of Defense 217 Department of the Interior, Office of the Secretary 222 Department of Labor, Office of the Secretary 223 Post Office Department 224 Department of State 225 Department of the Treasury 226 independent agencies, reply from- Atomic Energy Commission 231 Civil Aeronautics Board 236 Civil Service Commission 237 Federal Aviation Agency 238 Federal Communications Commission 239 Federal Home Loan Bank Board 243 Federal Maritime Commission 244 Federal Power Commission 245 Federal Reserve Board 247 General Services Administration 248 Housing and Home Finance Agency 251 Interstate Commerce Commission 253 National Aeronautics and Space Administration 254 National Labor Relations Board 255 Securities and Exchange Commission 258 Selective Service System 261 Veterans' Administration 262 Analysis of agency comments on S. 1666 265 Tabular summary 267 LATE COMMENTS FROM DEPARTMENTS AND AGENCIES ON FEDERAL PUBLIC RECORDS LAW LEGISLATION iExecutive Department, reply from Department of Health, Education, and Welfare 523 Independent Agency, reply from Federal Trade Commission 525 Index 527 Part 1-Hearings~. * 1-276 Part 2-Appendix and index (analysis of agency operations under 5 U.S.C. 1002) .. 277-528 PAGENO="0008" PAGENO="0009" FEDERAL PUBLIC RECORDS LAW (Part 1) TUESDAY, ~ARCR 30, 1965 HOUSE OF REFRESENTATIVES, FOREIGN OrEit~TIows AND G0vnaNMENT INFORMATION SUBOOMMIITEE, OF THE CoMMIrrm ON Govi~aNMENP Ori~A~rIoNs, Wa8Mngto~, D.C. Present: Congressmen John E. Moss (chairman of the subcoin-. mittee), John S. Monagan, Robert P. Griffin, and Donald* Rumsfeld. Also present: Samuel J. Archibald, chief, Government Iidormation; David Glick, chief counsel; Benny L. Kass, counsel; Jack Matteson, chief investigator; Robert Blanchard, investigator; and J. 1?. Garison, minority counsel. Mr. Moss. The subcommittee will be in order. The Foreign Operations and Government Information Subcommit- tee begins consideration of bills introduced by 15 Members of the House of Representatives to establish a Federal public records law4 The bills are based on many years of study-in the House of Repre~ sentatives, in the Senate, and in the executive branch-of the prob- lems created by restrictions on public access to Federal records. Our task in these hearings will be to make a careful, objective assessment of the testimony of witnesses who will have helpful com- ments on the proposed solutions for Government information prob- lems. We are faced with the challenge of reconciling, through. estab- lished democratic processes, often conflicting needs~ the need for people to be fully informed about the, actions of their Government and the need for protection of information which, if indiscriminately dissemmated, would make impossible the effective functioning of the Government. The legislation before this subcommittee is~ based upon. 10 years of study by the Government Information Subcommittee in the House of Representatives and upon careful and competent work by the' Sen- * ate, particularly by the Administrative Practices and Procedure Sub- committee under the cha~irmanship of Senator Edward V. Long of Missouri. In the House, the 10' years of study has proved-among other things-the unfortunate fact that governmental secrecy tends to grow as Government itself grows. The obvious need for adequate information in a democratic society needs no emphasis, fOr without the knowledge necessary to cast an intelligent vote, the value of the vote itself is diminished. And with- out the fullest possible access to Government information, it is impos- sible to gain the knowledge necessary to discharge the responsibilities of citizenship. PAGENO="0010" 2 FEDERAL PUBLIC RECORDS LAW But it is not easy to guarantee access to all Government information;. the protection of some types of information is as important as the dissemination of others. As the Government grows, as more and more Govermnent services are provided, more and more information from. the private sectors of our lives is gathered by the Government, In~ considering what information held by the Government shall be avail- able to all of the people, we must consider not only the need for a well- informed public but also the need to protect the right of individual privacy. Many States of our Nation have solved this problem. Many State legislatures `have enacted public records laws, but the Federal Govern- ment lags far behind. Many civic and professional organizations have recognized this shortcoming, and we will hear their testimony during these hearings. Many Government officials and organizations of Gov- ernment employees have recognized the need for clear guidelines to point the way to solutions of Government information problems. We will hear their testimony. The legislation before this subcommittee has been proposed to fill a legal void-a void mto which executive agencies have moved because of the ambiguities of the only general information laws which Congress has passed. I know that no one supporting the legislation would want, to throw open Government files which would expose national defense- plans to hostile eyes. I do not believe, on the other hand, that Govern- ment employees have any desire to impose the iron hand of censorship on routine Government information. These two extremes are obvious. Our task will be to work out an in-between ,solution which will guar- antee the right of every citizen to know the facts of his Government while protecting that information which is necessary to the function- ing of government. (H.R. 5012 introduced by Hon. John E. Moss, of California,. follows:) (H.R. 5012, 59th Cong., 1st sess.] A BILL To amend section 161 of the Revised Statutes with respect to the authority of" Federal officers and agencies to withhold Information and limit the availability of records Be it enacted by the Senate and Hoiise of Representativer of th~~ Usvited Statef of America in Congresa aasembled, That section 161 of the Revised Statutes of the United States (5 U.S.C. 22) is amended to read as follows: "Sac. 161. (a) The bead of each Department is authorized to prescribe regu- lations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertalning to it. "(b) Every agency shall, in accordance with published rules stating the time,. place, and procedure to be followed, make all its records promptly available to any person. Upon complaint, the district court of the United States in the district in which the complainant resides, or has' his principal place of business, or in which the agency records that the complainant seeks are situated, shall' have jurisdiction to enjoin the agency from the withholding of agency records and information and to order the production of any agency records or Infor- mation improperly withheld from the complainant. In such eases the court shall determine the matter do novo and the burden shall be upon the agency to sustain its action In the event of noncompliance with the court s order the district court may punish the responsible officers for contempt. Except as to those causes which the court deems of greater importance, proceedings before the district court as authorized by this subsection shall take precedence on the' docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way. As used in this subsection, PAGENO="0011" FEDERAL PUBLIC RECORDS LAW 3 the term `agency' means each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress or the courts. "(c) This section does not authorize withholding information from the pnblic or limiting the availability of records to the public except matters that are (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 any agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial Information obtained from the public and privileged or confidential; (5) interagency or intra-agency memoranda or letters dealing solely with matters of law or policy; (6) personnel and medical files and similar matters the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Investigatory files com- piled for law enforcement purposes except to the extent available by law to a private party; and (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions." Sue. 2. All laws or parts of laws inconsistent with the amendment made by the first section of this Act are hereby repealed. (The following identical bills were also introduced:) ILR. 5013 by Hon. Dante B. Fascell of Florida. H.R. 5014 by lIon. Torbert H. Macdonald of Massachusetts. II.R. 5015 by Hon. Robert F, Griffin of Michigan. ELR. 5016 by Hon. Ogden R. Reid of New York. H.R. 5017 by Hon. Donald Rumsfeld of Illinois. H.R. 5018 by Hon. Ed Edmondson of Oklahoma. H.R. 5019 by Hon. Thomas L. Ashley of Ohio. H.R. 5020 by Hon. Richard D. McCarthy of New York. H.R. 5021 by Hon. Charlotte T. Reid of Illinois. H.R. 5237 by Hon. Sam Gibbons of Florida. H.R. 5406 by Hon. Robert L. Leggett of California. H.R. 5520 by Hon. James H. Scheuer of New york. H.R. 5583 by Hon. Edward J. Patten of New Jersey. H.R. 6172 by Hon. Charles A. Mosher of Ohio. H.R. 6739 by Hon. Jack Edwards of Alabama. HR. 7010 `by Hon. William B. Widnall of New Jersey. HR. 7161 by Hon. John N. Erlenborn of Illinois. Our first witness this morning will be Norbert A. Sehlei, Assistant Attorney General. Mr. Schlei, would you come forward? STATEMENT `OF NORBERT A. SCHLEI, ASSISTANT ATTORNEY GER~ ERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; A0001VIPANIED BY WEBSTER?. MAXSON, DIRECTOR, OFFICE OP ADMINISTRATIVE PROCEDURE, DE?AB'TIVLENT OP JUSTICE Mr. S0HLEL Yes indeed, Mr. Chairman. Thank you, Mr. Chair- man. It is a pleasure for me to appear before this committee, Mr. Chair- man, and I thank the chairman and the subcommittee for giving me this opportunity to appear. I might say that as a Californian, it is a particular pleasure to appear before the chairman of this subcommittee, and I only wish that I was able this morning to be more affirmative than I am going to be in the course of my testimony. I have a statement which I would like to present. Facilities for collecting and disseminating news and information are of special significance in a democracy. Our communications media are unequaled elsewhere in the world and constitute an invaluable national asset. PAGENO="0012" 4 FEDERAL PtBLIC RECORDS LAW The United States has some 20,200 newspapers and magazines. In 1964 our daily and Sunday newspapers printed more than 18 billion copies A single weekly news magazine currently claims almost 13 imllion readers. At the present time the number of broadcast radio and television stations operating in this country is 7,257. In the last few years extensive sales of automobile radios and small, portable transistor receivers have given a new mobility to the listening and viewing habits of our highly mobile society It is estimated that there are now in regular use at least 62 million television sets and 214 million radio receivers-93 percent of all American homes are said to be equipped with television sets. The increasing attention of Americans to public affairs is responsible~ in part for the expansion of our broadcast facilities. Broadcast indus- try spokesmen report a growing public demand, particularly in tele- vision, for the so-called public affairs specials, discussion programs, and interviews with public figures prominent in the news, as well as more complete news coverage generally. Through our extensive communications facilities, the American public has become the best informed society in the history of the world. The real significance of this development lies in the strength which it adds to the fulfillment of the promise of Affierican detnoeracy. The steady flow of information concerning public affairs to all Americans, wherever bested and whatever their status, is truly the lifeblood of our democratic system. A genuine democracy is governed by the composite judgments of its people. Unless those judgments are informed judgments, of neces- sity the system ultimately will fail, and until such time as it doeis, it cannot be a real democracy without an informed public. Therefore, where the press and other observers of public events may be wrongfully shut off from sources of information, democracy suffers. Indeed, the damage wrought in any particular instance may be far greater than the denial of public understanding which results directly from nondisclosure. Unjustifiable secrecy in public affairs breeds distrust, suspicion, and rumor, and these are the most insidious o~ all enemies of enlightenment. No problem i~ of greater ultimate conse- quence to the sucess of our democratic system than the fundamental problem of public information. The considerable frequency with which the President discusses developments, formally and informally, with representatives of the news media evidences his earnest desire to keep the public as fully informed as possible concerning governmental affairs. As for the Department of Justice, I can assure you that the Attorney General is determined that this Department shall stand second to none in mak- ing available to the American people, to the press, and to interested individuals all of the information in the possession of the Depart- ment which properly can be disclosed. In general, I am sure that no group more fully appreciates the need for public understanding of the functions and operations of govern- ment than that relatively small body of individuals who are the heads of the Federal departments and agencies. Every such official knows or soon learns from some part of his own experience that nothing in public service can be more frustrating than to toil in an area of wide- spread public misunderstanding. In such situations he sees govern- PAGENO="0013" FEDERAL PUBLIC RECORDS LAW :5 went in its most unsatisfactory, most difficult, and generally most in- effectual form. At the same time, if our system is to surmount its challenges, dis- closure must always accord with the public interest. A successful democracy will never be built upon freedom of information achieved simply by a~ording to any and all persons unrestricte4 access to offi- cial information. Because of the scope and complexity of modern government, there are., literally, of infinite number situations where- in information in the hands of the government must be afforded varying degrees of protection against public disclosure: The .P~'- bilities of injury to private and public interests through ill-considered publication are limitless. And again, no one quite so fully appreci' ates the necessity for nondisclosure as the public official who is charged with the custody of the records involved and the administration of the program to which they relate. The problem, so-called, of public information is, therefore a very real problem and a very difficult one. Mr. Paul Conrad, as spokes~ man for some 22 daily newspapers in the State of Washington, de- scribed it well in a letter to Senator Magnuson in 1963 in support of the Senate bill to revise the public information section of the Administrative Procedure Act, S. 1666, in the 88th Congress. Mr. Conrad wrote: If ours is in fact a government by and for the people, then there is a place for secrecy and a place for easy access to information about government. Democracy requires many delicate balances, and this is one. Too much secrecy, or too free access, can render a great disservice to the people. The "delicate balance" to which this letter refers often requires the most sensitive of judgments. The basic thrust of H.R. 5012, the bill before this subcommittee, is to eliminate any applicaiton of judg- ment to questions of disclosure or nondisclosure, and to substitute, therefor, a simple, self-executing legislative rule which would auto~ matically determine the availability to any person of all records in the posse~sion of all agencies, except Congress and the courts. The bill would reserve to the President authority to classify as "secret" information in two designated areas-national defense and foreign policy. However, even in these two areas, the bill seeks to prohibit nondisclosure except as the President, by Executive order, identifies the matters which he has determined must be kept secret and specifically requires that they be withheld. Otherwise, however, H.R. 5012 attempts to leave nothing to Executive discretion. I ~respectfully submit, Mr Chairman, that this approach is im possible and can only be fatal to this committee's undertaking. There is no way, I submit, of eliminating judgment from the means we use to resolve this problem, and substituting for that judgment a verbal formula to be applied by another branch of government which is not charged with responsibility for execution of the laws. The prob- lem is too vast, too protean, to yield to any such solution. I do not, Mr. Chairman, come prepared this morning to document in detail the particular ways in which H.R. 5012 would adversely affect the public interest. The other departments and agencies, each in turn, will do that job of documentation as to the types of records and information with which each is particularly concerned. PAGENO="0014" 6 FEDERAL PUBLIC RECORDS LAW In a sense, therefore, my testimony is a preface or introduction to the reports and testimony of the rest of the executive branch. I come to express the basic thesis to which we believe the detailed evidence leads: that there is no form of words that can protect the public interest well enough to justify substituting that form of words for "executive judgment" and "discretion"; that the fault is not with the draftsmanship of this proposal but with its approach. There is one other point that I would like to make~ in some detail. In its consideration of the bill which resulted in the act of August 12, 1958, Public Law 85-619, amending 5 U.S.C. 22 to add the pro- vision now sought to be deleted, Congress had before it a complete exposition of the doctrine of Executive privilege and its history and development. Since it is set forth fully in the legislative history of that amendment, I shall not present it again at this time. As the legislative history of the 1958 amendment demonstrates, Congress at that time acknowledged the basic proposition that, under ~ur fundamental principle of separation of powers, the Constitution fixes the boundaries between the three coequal branches of our Gov- ernment, and no act of any branch can diminish, remove, or other- wise impinge upon the constitutionally derived authority of another branch. The 1958 amendment was enacted and approved by the President only upon assurances in the House and Senate debates that the amend- ment did not upset or diminish any power of the Executive which he derived from the Constitution. President Johnson has made it clear that, like President Kennedy before him, he believes the doctrine of Executive privilege should be used as sparingly as possible, in situations where its use is clearly and urgently necessary. He has sought to prevent abuse of the doctrine by directing that it not be. asserted except in situations where he has personally reviewed the matter and authorized its use. As a result, the doctrine has never once been used during this administration (see p. 202). However, this attitude on the part of this administration, while strongly maintained is, of course, a matter of policy rather than of law and does not reflect any change in the applicable law. And in the present consideration the same basic proposition of constitu- tional law is again applicable to the same question. H.R. 5012, like H.IR. 2'T67 in the 85th Congress, which became the 1958 amendment, cannot impinge upon the constitutionally derived authority of the Executive to withhold documents of the executive branch where, in his discretion, he determines that the public int~erest requires that they be withheld. Since H.R. 5012, by its terms, ~eeks to limit the Executive in the exercise of his constitutional authority to determine whether executive documents are to be disclosed, by setting forth in subsection (c) limited exceptions to the absolute dis- closure requirement of subsection (b), the bill would contravene the separation of powers doctrine and would be unconstitutional. Although the provision of the bill for judicial relief is unclear, if it would remove from the executive branch to the judicial branch the authority to determine, de novo, whether documents of the Executive are to be disclosed or not disclosed, that provision is also unconstitu.- tional on the same ground. PAGENO="0015" FEDERAL PtrBLIC RE:CORDS LAW 7 ELR. 5012, like H.R. 2767 in the 85th Congress, can result in a valid ~cnactment only if it leaves undisturbed the inherent authority of the ~executive branch to govern the disclosure and nondisclosure of its records. In sum, Mr. Ohairman, we believe that H.R. 5012 is unwise in that it seeks to resolve a terribly complex problem in a too simple way that does not recognize the complexities involved. Further, to the extent that the bill would seek to shift to the judicial branch a constitutional prerogative of the Executive, we believe it would be unconstitutional. Again~, Mr. Chairman, I thank the chairman and the subcommittee for this opportunity to appear. Mr. Moss. Thank you, Mr. Schlei. Mr. Monagan. Mr. MONAGAN. Thank you, Mr. Chairman. I find some difficulty in this position, viewed from the point of view of a legislative committee and in the light of the experience that I have had and I know other members of the committee have had in at- tempting to get information from the executive branch. The difficulty with this position is that it seems to me to leave the `standard entirely within the executive branch, which is in a sense say- ing that the executive branch could never err, could never have a `faulty or illegal `basis, let's say, for withholding information. I have seen examples in which a congressional committee, in the pursuit of its legitimate activities with relation to the foreign aid pro- gram, has sought to get information from the executive branch and has been met by the assertion of executive privilege. This has been made in different situations. I will not go into the varieties now. Some of them are more complicated and more difficult than others. But even in a case in which there was an executive session and a confidential situation where the disclosure would only be to the corn- mittee itheif, we have been met by a refusal. And, as a practical matter, even though a committee may throw its weight around, may have conferences, and so forth, about the oniy thing you can do about it if you are left with the standard that you propose is to bring somebody before the Congress and charge him with cont~mpt of `Congress. And that is a very extreme and impractical method of procedure. So that I am suggesting to you that you are not permitting us to take any halfway step or to move at all in the direction of setting up some standard whereby this information could be judged and the validity of the request could be determined. Mr. SGULEI. Congressman, let me begin answering your question by saying that I would not deny that there are examples of abuse in this area. It is obvious; it is clear. This committee has brought out many such examples in its operations. However, I `would suggest, as you perhaps indicated, that there are lots of ways for this committee and for the legislative branch gener- ally to exert pressure on the executive when the executive interprets- Mr. MONAGAN. I have not suggested that any of them would be effective, though. I do not believe that they would. PAGENO="0016" 8 FEDERAL PUBLIC RECORDS LAW Mr. SCHLEI. Well, I have certainly seen many exan~les of the quick production of information at the request of a congressional committee that was not forthcoming perhaps at the request of someone else earlier. My experience has been that the pressure exerted by such bodies as this committee is very effective and i~ very salutary and helpful and h~althfu1 to the process of government. But when there is a collision, what is occurring is something that occurs not infrequently in our system of separation of powers. There are legislative prerogatives that the executive may not touch and that the judicial branch may not touch. The judicial branch will refuse to entertain a challenge to the quali- fications of a legislator, for example, although he may be clearly unqualified to take his seat in terms of standards in the Constitution and perhaps in the law of his State. Congress is made the sole judge of the qualifications of its Members by the Constitution, and the other branches may not meddle. There is ~ remedy for misuse of executive prerogative and legis- lative prerogative and judicial prerogative, which is to go to the people and to use the political process as a remedy against such abuses. I think that the political process within the three branches of the Governmeiitcorrects many abuses. And the forum that there is-and it is a highly effective one-for any abuse of prerogative that is not reachable by that process is to go to the people, and the press willbe quick I think to bring to the attention of the public abuses in the field of public information. Mr. Moss. Would you yield at that point? Mr. MONAGAN. Yes. Mr. Moss. On this matter of the courts not being willing to look at the qualification of a legislator, have not the courts in the last few years opened a very broad new area where historically, from the very beginning of the republic up until the time of the Tennessee case before the Court, Baker- Mr. SCHLBI. Baker v. Ca~rP Mr. Moss. Yes. The courts would not look to a. matter of appor- tionment of a legislature. But they did. Mr. Scrn~EI. That is true, sir. Mr. Moss. Have they moved into the legislative area then by ex- panding their authority? Or have they expanded their authority ~ What have they done? Mr. SCHLBI. Well, if you ask for my personal view, Mr. Chairman, it has been my opinion since I became a lawyer and first studied these matters that the Supreme Court made a great error and refused to dis- charge its constitutional function when it refused to hear the suit of a voter who was denied an effective right to vote by malapp~r- tionment. And that wrong decision, what I considered a wrong decision, was in effect for some 25 years, during which time-I think it was abDut that period of time-the Supreme Court and other Federal courts did not look into apportionment matters. My view is that the 14th amendment should have been enforced with respect to apportionment matters all the time. And the Court has now returned to what it should have been doing. PAGENO="0017" FEDERAL PUBLIC RECORDS LAW 9 I do not think the Court has ever tried to put aside any legislator's election or to void any acts of a legislator. It has never gotten into the qualifications of a particular legislator to sit. Mr. Moss. I raised that because I doubt if these are immutable facts. The courts do from time to time change their opinion as to the au- thority of the courts. Mr. SCHLEI. Well, that is true, Mr. Chairman. I certainly hope they do not try to do anything about the principle of separation of' powers, which I would consider a cornerstone of our whole system of government, one of its mOst basic principles. Mr. Moss. I think right in the area in which your testimony is directed today that we would be able to put specific citations in the record where the Court has asserted an authority to determine whether information would be made available or would not. So that this is not a clean slate that we are going to start writing on today. This is one where there is some record. Mr. Scrn~i. Of course there is, sir. Mr. Moss. And it tends to support your views on occasion and the views inherent in my legislative proposal on other occasions. Thank you, Mr. Monagan. Mr. MONAOAN. Well, I agree with the chairman. My period of intimate acquaintance with constitutional law was about 1937, and I must say that there is quite a difference in the adjudications of the Court today and what was considered to be the legitimate bounds of constitutional law in those days. But that is a different war. I do not think we can get into that at this time. But just to take one specific instance. You spoke about the force of public opinion. Well, the case that I have in mind was a situation in which a subcommittee was interviewing witnesses from the executive branch in an executive session, and, importantly, there was no con- fidential matter involved in the sense of being a security situation, something ~that should not be disclosed to the public. At the same time, there was refusal in that inst'ince to m'ike the information available, with the committee stating that it would not be made public but would be used only by the committee. Now, as a practical matter, there is no way that you can cope with that situation. Theoretically, yes, you could go through the process of finding the witness in contempt and then bringing him before the bar of the House. But- Mr. SCHLEI. Congressman, may I ask whether that was not in the previous administration, the Eisenhowe" administration? Mr. MONAGAN. No, because this was in-~--wel1, I cannot give you the date. It was this subcommittee. and wlii1t'~ Mr. TT~rdy was chair- man of the subcommittee, so it was about 1960 I would say. Mr. ScHLEI. Well, I recall, Congressman, that when the Kennedy administration took office there was a pending controversy w~th the Eisenhower administration over AID records, and I think the Comp- troller General was involved in the controversy in some way. I did not personally participate in the resolution of thatq but I understood that it was compromised in some way, and it has not since arisen again. Mr. MONAGAN. I would not say that it was resolved on the side of making the information available. It was resolved on the side of not takine~ any further steps. 45-21S~~-65.---pt. 1-2 PAGENO="0018" 10 FEDERAL PUBLIC RECORDS LAW Mr. Griffin was on tl~ subcommittee. Mr. GRIFFIN. I am trying my best to remember the specific instance. My general recollection is in agreement with the gentleman. Mr. Moss. I believe it involved a case where, if the law had been followed to its ultimate, the payment of certain funds would have been ruled illegal by the Comptroller General as a result of a statu- tory provision in one of the foreign aid authorization acts. Mr. SOHLEI. Something about the inspector general's office. Mr. Moss. It involved the office of the inspector general in the Agency for International Development. And it was resolved, as ma~ny of these confliots are, by both sides backing dp'wn a little, moving into the gray area of accommodation, rather than' a showdown on either side. Mr. Soni~i. Well, if I may offer the view very respectfully, Mr. Chairnian, I think that that way of resolving the~e disputes is very often the best way of resolving them from the standpoint of the public interest, artd that we are all better pif because that was the case. There was no clear-cut victory on either side. Mr. MONAGAN. Mr. Chairman, I am sorry Mr. Hardy is not here. I am sure he could comment much more pungently than I on the solution. But perhaps the staff could check the facts. (The material referred to follows:) STArr MEMORANDUM MAY 7, 1965. To: Congressman John E. Moss. From: Benny L. Kass, The facts discussed referred to an investigation in 1961 by Foreign Operations and Monetary Affairs Subcommittee of the House Committee on Government Operations, under the chairmanship of Representative Porter Hardy. The sub- committee began an investigation into the operations of `the International Coop- erative Administration programs in Peru and attempted to obtain the necessary documents and reports. Although a formal claim of "executive privilege" never was made, `State Department witnesses who appeared before the subcommittee were initially instructed by their department not to `testify. WMen President Kennedy learned of this matter, he immediately ordered the instructions recinded, and 24 hours later the witnesses were ready to cooperate with the subcommittee. Mr. GRIFFIN. Perhaps this is an instance in which the committee shouldprov~de the witness' with a m~morandum, instead of the other way around, and ask him to comment. Mr. MONAGAN. I merely make the point that there are difficulties that we could find a formula for that would not be reached by the approach that is taken by the witness. Thank you, Mr. Chairman. Mr. Moss. Mr. Griffin. Mr. GmrnN. Mr. Chairman, I want to apologize first for being a little bit late. I was attending to other duties also important to a `Congressman. On this particular occasion, a ninth-grade class of Western Junior High School,' of which my son is a member, is visit- ing this committee room to get a firsthand view of our `Congress in action. Mr. Schlei, I will not attempt to interrogate you. I would com- ment, however, that I am disappointed that the thrust of your state- ment is a complete rejection of the bill. I can understand that the bill may not be perfect and that perhaps there are other areas that should be exempt. As I read your state- PAGENO="0019" FEDERAL PUBLIC RECORDS LAW 11 ment, I found no suggestions of that nature, merely that the question of what should be made public is a matter of bureaucratic judgment. You do not want legislative judgment in this field. You do not even limit the judgment to the President. Presumably it would be bureaucratic judgment, and we would be left with their decision? Mr. Scrn~m. Well, I think, Congressman, that the points that I would make are, first, that there has to be a residue somewhere for discretion, that it is not possible to create a closed number of cate- gories, any number of specific categories, without the possibility of disastrous oversight; that there has to be a, catchall category, if you like, that leaves some discretion. And I think that, secondly, there has to be a preservation of the constitutional executive prerogative. Now, that does not have to be given to every bureaucrat, as you say. I personally would think that it ought not to be confined by any legislative proposal to the President himself. Perhaps to the heads of departments or agencies. I would not take the position that the exercise of that discretion could not be confined by legislative enactment to a limited number of officials. But I think that there has to be a preservation of the constitutional prerogative. Somebody. has to have it, retain it. And, secondly, there has to be a preservation of a category that allows a discretioim~ry withholding when it is considered essential in the public interest. Mr. GRIFFIN. Well, I think it should be registered i~ the record that there is a good deal of opinion to question whether there is a constitutionally derived Executive privilege. Certainly there is a r lot of question about the scope of it. I will not try to argue that here but just register that Executive privilege is not necessarily accepted by all members of this subcommittee, as you might expect. Mr. SOJILFI. I do understand. Mr. GRIFFIN. I want to associate myself generally with the open- ing statement made by the chairman of the subcommittee and express the hope that these hearings will be fruitful in developing good leg- islation, perhaps improve the bill that I joined in introducing. The legislation should make it possible for the public, and particularly Congress, to get more information about what is going on in our Government. Thank you, Mr. Chairman. Mr. Moss. Thank you. Mr. Schlei, I would like to turn to page 8 of your statement. Mr. Sorn~EI. Yes, sir. Mr. Moss. It comments upon the legislative history of the 1958 amendment in a manner which is contrary to my recollection of that history, in which I participated very actively. You say: The 1958 amendment was enacted and approved by the President only upon assurances in the House and Senate debates that the amendment did not upset or diminish any power of the Executive which be derived from the Constitution. I refer to that history in one exchange with Mr. Johansen of Michigan. I will read his question: May I interrupt the gentleman at this point, because I think in my own mind I now have the nub of the issue. If this bill were adopted, what discretionary authority does the department head have to withhold information where it is PAGENO="0020" 12 FEDERAL PUBLIC RECORDS LAW not specifically provided by law that he must wIthhold information? Is there surviving with thh adoption of this bill a discretionary authority in the de- partment head to withhold information? My response: I want to be very careful on this language, because the gentleman is asking me if there is an inherent authority, as has been claimed by every, Executive from Washington to Eisenhower. I would say that if there is such authority, if there is that inherent power, it is not affected by this change in this stat- ute. But~ I will not concede that the broad and naked power claimed does exist in that I want that very clear in my response If It exists It is not affected. Throughout those hearings and throughout the debate in the House and in a statement following the message of President Eisenhower when he signed the legislation, I went to extreme lengths, was ex- tremely cautious, to make it very clear that, as the spokesman for the committee and as an exposition of my own views, we did not recog- nize anything. We did say that if it existed we were not, by that statute, upsetting it. We could not. Now, can the Congress write law requiring information to be sup- plied to the Government? Mr. SCHLEI. To be supplied to other branches of the Government? Mr. Moss. Yes, to the executive branch. I think here we will confine our discussion to the executive branch. Mr. SOHLEI. Well, now, I do not quite understand- Mr. Moss. All of the executive departments and agencies. I would exclude from the executive branch of the Government the independent regulatory commissions. Mr. SOTILEI. I se&. But the law would require that the executive branch supply information to the public? Mr. Moss. No; it would require- Mr. SCHLEI. Or to the Legislature? Mr. Moss (continuing). That the public supply information to the executive branch. Mr. SCHLEI. Oh, yes indeed; sir. Mr. Moss. All right. Can the Congress then direct that that information be either privileged or widely available to anyone who seeks it? Mr. SCHLEI. Yes; it can, Mr. Chairman. Mr. Moss. In other words, the Congress has the right to say John Q. Citizen: "You're going to respond to this questionnaire of the Government under penalty"- Mr. SCHLEI. Yes, sir. Mr. Moss (continuing). "If you're inaccurate," `and it can further direct, once the executive received this information, the manner in which it can be disposed of or treated? Mr. ScT-Ir~EI. Yes, sir. Mr. Moss. Now, much of the information that we are discussing here is information which is supplied the Government as a result of the requirement of law, is it not? Mr. SOTIIRI. Some of it certainly is, yes, sir. Mr. Moss. A great portion of it is; is it not? Mr. SCHLEI. Yes, sir. Mr. Moss. Does the Congress then have the authority, having failed to do it at the time it originally authorized the executive to PAGENO="0021" FEDERAL PUBLIC RECORPS LAW 13 require this information, to come in. now and direct the manner or the rules which would govern the use of this information? Mr. SCHLEI: I think, Mr. Chairman, that there is no question that there is a legislative power to regulate the handling and the avail- ability of that information. But I would also take the position that there is a residual constitutional authority in the President and the heads of the executive departments in particular situations to assert executive privilege. Mr. Moss. All right. Can the Executive require the public to supply information under penalty of law if they fail to give it correctly? Mr. SCULBI. No, sir. Not without some legislative authority, not that I know of. Mr. Moss. In other words, the executive, then, becomes the cus- todian of the information which develops as a result of the require- ment by law- Mr. SCHLEI. Yes, sir. Mr. Moss (continuing). Written by the Congress? Mr. SCIILEI. Yes, sir. Mr. Moss. And he does not have an inherent authority, then, to require that this information be supplied by the public? Mr. SOIILEI. No, sir; he does not that I know of. Mr. Moss. None at all? Well, then, I want to express the same dis- appointment expressed by my colleague Mr. Griffin that we would be faced here with a rejection, a blanket rejection, of any possible amend- ment to law affecting records held by the Government and the right and sometimes the need of the public to have orderly access to them. Mr. SCHLEL Well, I- Mr. Moss. I think it would have been far more constructive had the Department of Justice broken this down and dealt with the areas where they felt Congress could properly direct the method of use or disposal and those areas where they felt there was a strong privilege vested in the Executive. Now, we are not trying to reach executive privilege. I do not know what it is. It has been variously stated by various Presidents. Some have claimed that you could delegate it down to the lowest echelon of the career service and that they could act with all the power of the " President. And others have said that only the President can order, in each and every instance, withholding of information. Now, I do not know where it is. And the Justice Department does not know where it is. . Mr. SIEILEI. Well, I can tell you, Mr. Chairman, that in this admm- istration the President has made it clear that he is going to exercise the right of personal approval of each proposed instance- Mr. Moss. All right. Mr. SCHLEI (continuing). Although I do not think he takes the position that as a matter of law he is obliged to do that, but he thinks that he should do that, and he has indicated that he will. Mr. Moss. All right; fine. Now, we are not trying to get at that instance where the President is going to claim executive privilege, be- cause, as a matter of practical fact, we cannot, can we? Mr. SOHLrn. I guess not, sir. PAGENO="0022" 14 FEDERAL PUBLIC RECORDS LAW Mr. Moss. Now, we could do it this way: We could amend the Con- stitution, if we could get the concurrence of the legislatures of three- quarters of our States, without the need of the President to express approval or disapproval. Mr. SCHLET. That is right, sir. There is no veto power on a constitutional amendment. Mr. Moss. We could say the President has no inherent powers, that his are specifically set forth in this document, and that is all they are, could we not? Mr. SCHLEI. Yes, sir. Mr. Moss. We do not want to do that. That would be rather extreme. Mr. SoHu~I. I should think so. Mr. Moss. We could probably in our appropriations say that the funds we appropriate cannot be used to maintain any records that are not available to the public, that we are not going to n'~ake these tax- payers pay for something they cannot see. We could do that. Mr. Souu~rc. Yes, sir. Mr. Moss. That would be extreme, disruptive of orderly gocverll- ment. So we are not trying to get at Executive privilege. This is the area where Congress and the President and the courts are going to continue to adjust and accommodate. What we are trying to get at here is a requirement that departments and agencies of the Government set forth very clearly the rules and regulations governing access to information and that they make in- formation available unless it is withheld in the interest of national defense or by some statutory authority given by the Congress. Now, you recognize the right of Congress to enact a statute directing the disposal of certain types of this information. You have a reser- vation, and I imagine this reservation goes to the so-called internal working papers. Mr. Sorn~m. Yes, sir. That is one category of documents. Mr. Moss. And reflecting in many instances the final official acts of departments and officials of Government. Mr. ScHLm. Yes, sir. Mr. Moss. And here you feel we have no right to act? Mr. Soin~cr. Well, I think, Mr. Chairman, that the committee has- that the Congress has every right to legislate with respect to the ordi- nary handling of Government information. But I think that there is a residual Executive prerogative to withhold despite any legislation in a situation where the national interest demands it in the considered judgment of the Executive. That is the traditional concept of Executive privilege. I have not taken the position that no legislation could be constitutional in this area by any means. Mr. Moss. We do not challenge that right to withhold for the national interest, because we specifically require it by Executive order to be kept secret in the interest of the national defense or foreign policy. Now, that is very broad. That means that any of these documents that are of sufficient signifloance to the security of this Na- tion or to the interests of this Nation as it deals with other nations can, by appropriate designation, be excluded from the provisions of this act. PAGENO="0023" FEDERAL PUBLIC RECORDS LAW 15 We recognize that there are going to be certain needs to keep some of this information locked up. And the Executive order which is applicable in this instance I believe is Executive Order 10501, where the President authorizes the departments and agencies to appro- priately classify and lays out the guidelines for classification, ~whieh in my judgment are observed far more in the breach than in the performance. But, nevertheless, they are observed, and they are top secret, secret, and confidential. Now, they are not supposed to be affecting the national security unless they are classified, are they? Mr. SCHLEI. Well- Mr. Moss. The whole objective of the Executive order is to have a category in which you can place and identify this information, so that it is secure. Now, what hardship is imposed there? What infringement of the Executive right or responsibility is diminished by this provision of the proposed legislation? Mr. SCHLEI. Mr. Chairman, I may have misunderstood the pro~ posal here. I did not understand that the legislation contemplated the issuance of a broad-gage Executive order which delegated author- ity and created categories of information. Mr. Moss. Mr. Schlei, I thought we had such an Executive order~~~_~ Mr. SCHLEI. Well- Mr. Moss. Touching upon security. Mr. SCHLEI. We have as to national defense information, but I take it that we need, with our other problems, besides the national defense security, information which we cannot freely let be made universally available. Just to give you an idea of some of the catergories of documents that occur to us in the Justice Department, you have such documents as prisoners' files. No~v, the medical information in those files would be exempt from disclosure under exception G in the statute here, but there would be no assurance that the rest of these files could be with- held from the sensational press or gangsters or invidious in-laws or- Mr. Moss. Are you not provided with statutory authority now on those files? Mr. Scrn~i, No, Mr. Chairman. Mr. Moss. Are you sure? Mr. SCIILEI. You, a~ a matter of fact, inquired about a year ago4 and I worked on the preparation of the response. And we have no authority but the Constitution to withhold that information. And also, for that matter, FBI reports are protected only by an opinion of Attorney General Jackson based on the Constitution. Mr. Moss. Let's take the prisoner files. We have had prisoners ever since this Nation first came into being. Mr. Scni~r. Of course, sir. Mr. Moss. And if there is a need these to be kept~ from public view, can we not ~aave statutory authority? Can we not sanction the pro- tection, whatever it might be, that is required here? Mr. SCm2EI. Yes, Mr. Chairman. But the problem is- Mr. Moss. Is there a better system than that of law? Th it a better system to leave to the increasing number of Federal employees the sole determination of what will and will not be available? PAGENO="0024" 16 FEDERAL PUBLIC RECORDS LAW Mr. Scrn~x. Well, Mr. Chairman, I think it is possible to enact rules in certain areas that will improve the situation for everybody. But if you try to cover the whole gamut of the public information problem in the Federal Government-that is, in the executive branch-within the compass of one statute, either you will not have enough exceptions to cover some category of information that turns out to be crucial, or you will have enough rules to cover the gamut and the result will be that you actually shield more information than is now shielded. I think that it is just too complicated, too ever-changing a problem to be covered by a closed system of rules. If you have enough rules, you end up with less information getting out because of the complexity of the rule system that you establish. I think that there are areas where the making of rules could clarify the situation. It could make more information available than we now have. It would relieve administrators of headaches that they would like to be rid of. Make it available. But I do not think that you can take the whole problem Federal Government-wide and wrap it up in one package. That is the basic difficulty, I think, on which we founder here. That is why the Federal agencies are ranged against this proposal. Mr. Moss. Of course, that is an interesting statement-that the Federal agencies are ranged against the proposal. I believe I have had Justice, Treasury and the Federal Mediation and Conciliation Service indicates a desire to come here and testify. And, as I understand, over on the Senate side last year there was Justice, Treasury, Internal Revenue Service, and Federal Trade Commission. This does not seem to me to indicate a broad conviction on the part of the other departments and agencies-one, that the legislation would be onerous or, two, that they are overly concerned. Mr. ScHr~I. Well, Mr. Chairman, I think that they have all, a great many of them-my impression has been that a great many of the departments and agencies have commented adversely and that the Bureau of the Budget has made an effort to provide an orderly pres- entation to the committee and not get a great, long string of agencies that would say more or less the same thing. We have tried to be economical about it. But I think that there is quite widespread opposition within the executive branch to the attempt to cover the whole problem in one paeka~e as is attempted here. That really is the crux of the problem, I think. There are many areas, individual areas, where we think rules could be formulated that would be constructive and helpful from the stand- point of the public, the standpoint of people who are working for the public and the Government. Mr. Moss. And I think it would have been helpful had we had that type of statement from the Government's lawyers, the Department of Justice. Mr. SCHLEI. Well, Mr. Chairman, I deeply apologize. I can assure you that we have devoted many hours to working `on that kind of approach. We just have not got to the point vet where we can come forward with it. But I am sure that this problem is not going to go away the day after tomorrow, and, hopefully, we will finish our work PAGENO="0025" FEDERAL PUBLIC RECORDS LAW 17 while it will still be relevant and helpful to the committee. I would be hopeful- Mr. Moss. I am confident it will not go away day after tomorrow. And let me say that I have chaired a subcommittee dealing with this subject matter for 10 years. I have given much thought and study to it and heard very many well-informed and well-intentioned individ- uals express opinion on it. And over on the other side of the Hill, in the Senate, continuing the work of his predecessor in the Senate, Tom Hennings, is Senator Long. And, strangely enough, he has come up with about the same conclusion I have. And then we have professional groups. And I do not refer only to the press, because this really is no more a matter of concern to the press than it is to the bar or to the public. It is far too frequently identified as some seeking by the press of a privilege or a right that no one else has. The press has no greater right than any other individual, actually. And you say that you do not think this can be clarified and that we might succeed in bottling up more than we would release. And yet, after careful study, we have not been impetuous here. Ten years in moving to a piece of legislation is rather a long period of time. Mr. Scrn~si. Yes; it is, sir. Mr. RrM~stu. Mr. Chairman- Mr. Moss. We feel this step can be taken now and that it will succeed in making more and not less information available, and we feel it would be in the public interest that this step be taken now. We hope to convince the members of the committee. Most of them have indicated their conviction by the introduction of companion legis- lation. And that is why I really wish that we had a more constructive statement from the Department. Mr. Rumsfeld. Mr. RUMSF'ELD. I have a question or two, Mr. Chairman. Before I get into the questions that have come to my mind during your com~ ments, on a question asked by the chairman, is it correct that the Bu- reau of the Budget has restricted some agencies of the Federai~ Go~r- ernment from coming before this committee as an economy move? Mr. ScHL~I. Oh, no. Mr. RuMsFr~u. Your statement indicated the Bureau of the Budget was regulating an orderly flow of testimony to this co~nmttee Mr. Sciii~i. Well, all the departments and a~eiici~ ~f the Gov- ernment are more or less in touch with the Bureau of the Budget on legislative matters, so that we can be coordinated with the President's policies and program, as you know And it is 3ust a matter of our talking to the Bureau of the Budget and saying, "Well, how many of us are going to testify? Who do you think ought to express this point?" And in an informal process of that kind the Bureau ot the Budget may say, "Well, we think the Treasury Department ought to come. It feels it is important. And this department ought to come. And do you think that you should be added to that number?" And the agency will suy, "No. If they are going up, we will just ifie a report. I think they will make the points that we will want to make." And in a process, informal, like that, there is no restriction or com- pulsion. S PAGENO="0026" 18 FEDERAL PUBLIC RECORDS LAW Mr. RUMSFEfLD. Let me ask the chairman: Have you received reports from the other departments of the Government that are not requesting an opportunity to testify? Mr. Moss. Oh, yes. Mr. RUMSFELD. They have all sent a report in lieu of actually appearing? Mr. Moss. Not all. As a matter of fact, we did not get a comment from the Bureau of the Budget. Mr. SCHLET. Mr. Chairman, I happen to know that it will be up very shortly. Mr. RUMSPELD. I was struck here today by the similarity between the testimony we received here and some that is going on in the Judi- ciary Committee on the voting rights bill, where witness after witness is appearing saying it is unconstitutional, and, of course2 in that in- stance the Justice Department is saying it is constitutional. And under questioning, a great many of the people who are saying it is unconstitutional are having a great deal of difficulty coming up with any precise reasons as to why it is unconstitutional. It seems to me that when the Justice Department testifies here, if you are going to claãm this bill is unconstitutional, that a somewhat more precise definition of why it is and of executive privilege would have been in order. ~Furth.er, it strikes me that your statement conflicts with your answers to the chairman. As I have listened, you began with the statement which said that the bill was unconstitutional, and you made state~ ments to the effect that we could not substitute for executive judg- ment a verbal formula to be applied by another branch of Government which is not charged with responsibility for execution of the laws, that the problem is too vast to yield to any such solution, implying that legislation in this solution is not only unconstitutional but im- possible, referring to the infinite number of situations where it should bewibhheid-âs defined by the executive branch. And, yet, in answer to the chairman, you have indicated that Con- gre~s does have the legislative authority and that Congress has, in fact, already entered this area in appropriation bills, by requiring disclosure of certain types of information. So your statement says it is unconstitutional, yet at the same time you admit Congress is already involved here. Mr. SCHLEI. Well, I might begin by saying, Congressman, that the last word from the executive branch on these required disclosure riders to appropriation bills is that they are invalid. Mr. RUMSFELD. That they are invalid? * Mr. SCHLBI. Yes. I think that was an opinion by Attorney Gen- eral IRogers. under the previous administration, but, at any rate, the last word is one of opposition from the executive branch. * ~My view is that so long as the ultimate prerogative of the executive is recognized that there can be a provisional regulation of the handling ~f information short of an exercise of that prerogative bythe Congress, and I think that that is what happens in the relations between the executive branch and the judicial branch. There is an executive privi- lege problem there too. Mr. Moss. Mr. Rumsfeld, would you yield at that point? Mr. RUMSFELD. Yes, sir. Mr. Moss. How can we recognize it if you cannot define it? PAGENO="0027" FEDERAL PUBLIC RECORDS LAW 19 Mr. SCHLEL Well, Mr. Chairman, I would be pleased to supply a definition. Mr. Moss. Of executive privilege? Mr. SCELBI. Yes. Mr. Moss. One that you would like to live with? Mr. SOHLEI. Well I think I could live with it, Mr. Chairman, but it would be awfully broad, broader than your taste I think. Really, as you know, there is an extensive literature on this matter, ~nd the law consists not only of statements, of definitions, but of policies, and precedents, extending back to Washington. It is like many another concept in the law which- Mr. Moss. It was also used as the basis for pleadings in the Yo'wng&. tow~'t Sheet d~ Tube cases was it not? Mr. SCHLEI. You mean when President Truman-~- Mr. Moss (continuing). Seized the steel mills. Mr. SOHLEI. Seized the steel mills? Yes. Well, I think that was one of the concepts that was called upon as a possible analogy, but- Mr. Moss. The court did not agree that there was a privilege broad enough to cover that, though, did they? * Mr. SCHLnI. To seize the steel mills? No, sir; it did npt. Mr. RUMsFELr. Mr. Chairman, in view of the fact that the Justice Department has come before us with a very brief statement saying simply that the bill is unconstitutional and that venturing into this area is unconstitutional, and the disagreement that some members of the committee have with this position, I wonder if it might be valuabh~ to have the Justice Department take that extra step of going beyond that and saying that if it were constitution~tl they feel that certain types of information within the Department are of such a nature that, some changes in the provisions of the bill would be helpful to them and would protect the public interest better, even though they say that it is unconstitutional. I would still like to' have their opinion. Mr. Moss. It would be mpre constructive, I think, than what we have before us at the moment. Mr. Sorn~ii, If I could respond immediately to that, Mr. Chairman, this may not be terribly precise but it will indicate some of the kind of documents that we ourselves have that we would have trouble with under this legislation. One is the prisoners' files, other than medical, involving other than medical informatbrn, that seems to us to be problematical. The second category- Mr. Moss. On that, parole records which are part of the file are in: a different category, are they not? Mr. SOHLEI. Well, we have ~a problem with ~parole board files. Under exception No. 7, investigatory flies compiled for law enforce- ment purposes would be protected. And that pi~obabiy would cover information collected in an investigation looking toward revocation of parole. But a question we would ask would be: Would it cover the board's case summary prepared immediately ~oilowing the ap- pearance of an applicant before it? Would that be covered by excep- tion 7 for investigatory files compiled for law enforcement purposes? That seems to us a problem that ought to be resolved one way or another if the legislation were to go forward. PAGENO="0028" 20 FEDERAL PUBLIC RECORDS LAW A. terribly important category, it seems to me, is interagency com- munications relative to prospective litigation. Communications of that kind wotdd be protected only to the extent that they might deal "solely with matters of law or policy," which is exception No. 5 The Lands Division, for example, might have no right to withhohl the very large number of letter and reports it receives or sends to other Federal agencies relative to the protection of public lands. Reports and analyses prepared by attorneys of the Lands Division or other agencies which ordinarily are protected in litigation by the attorney's work product privilege, with which I am sure the commit- tee is familiar, might be made available under the provisions of the bill. And a third, perhaps a fourth I am up to now, category is communi- cations relating to efforts to compromise or settle disputes. Instruc- tions to negotiators, for example, might be withheld only to the extent that they relate solely to matters of law or policy. Letters to private parties would be freely available to the public. Communications from private parties might be confidential only to~ the extent that they are matters which are trade secrets or commercial or financial information and privileged or confidential. Mr. Mdss; Now, much of your commercial and financial inforniatio~i is protocted under existing statute, is it not? Mr. Scm,EI. Well, what we have in our files, I do not know that it is, Mr. Chairman. I do not think it is. I think it is dependent on the general executive prerogative. Mr.. Moss. How carefully have you checked the some 78 statutes which confer authority for withholding of information? Mr. Scnu~a. Well, I have not checked them carefully myself, Mr. Chairman. I have with me Mr. Maxson, who is the Director of the Office of Administrative Procedure, a constituent part of my Office, the Office of Legal Counsel. And I think he is rather thoroughly familiar with those statutes. I am to a large extent relying on his work in giving you these specific categories of information which seem to us to create trouble, problems, under the language of the statute as it now is. Mr. Moss. Back in the 8~th Congress, we published a document entitled "Federal Statutes on the Availability of Information." It isa very comprehensive document. Mr. ~Cffl4EI. Well, would that protect communications anticipating litigation or correspondence about the settlement of disputes, Mr. Chairman? I really am virtually certain that there is no statute that has any bearing at all on that problem, and that if this statute were enacted we would be unable to withhold a good bit of that informa- tion as to which it is absolutely crucial that it remain away from the public. Mr. RUMSFELD. Mr. Chairman, could I ask a question on this point? Mr. Moss. Mr. Riimsfeld. Mr. RUMSFELD. Where would this type of information fall? Say that under antitrust legislation passed by the Congress the Justice Department investigates the possibility of a suit against some elec- trical contractors and at some point they completely drop these pro- ceedings, discontinue the investigation, decide not to proceed, or to take itT to court. Is that information the type of information you would want protected aft.er it had been dropped? PAGENO="0029" FEDERAL PUBLIC RECORDS LAW 21 Mr. SCrn4EI. Yes. Mr. RUMSFELD. The reasons why it was dropped? Mr. SCHLEL I do not know about the reasons why it was dropped, but if we got a lot of half-baked complaints which turned out after investigation not to be true-- Mr. RUMSFELD. Let me narrow it down a little bit more. Say the investigation was conducted by one individual who was prepared to pyoceed with the suit, and at that point there was a change in Justice Department personnel and the suit was dropped. Mr. SCHLEI. Well, I think it probably, undoubtedly, should be pos- sible to investigate the performance of duty by the Justice Depart- ment man. And I think there would be found to be a way to investi- gate that without harming the people who are involved in the investigation. But it is obviously a sensitive kind of a thing, and you would not want to knock over all kinds of private citizens and harm their interests if you could possibly help it in the process of looking over the performance of the Justice Department employee, which ought to be subject to review by the legislative branch and by superiors in the executive branch, and so on. Mr. RUMSFELD. Thank you. Mr. GRIFFIN. Mr. Chairman, could I ask a further question? Mr. Moss. Mr. Griffin. Mr. GRIFFIN. Mr. Schlei, on page 8 of your statement you say: President Johnson has made it clear that, like President Eennedy before him, be believes the doctrine of executive privilege should be used as sparingly as possible, in situations where its use is clearly and urgently necessary. He has sought to prevent abuse of the doctrine by directing that it not be asserted except in situations where he has personally reviewed the matter and authorized its use. It may be that President Johnson has said that, although I am not aware of any public statement or of any statement to the Congress to that effect. It is true President Kennedy before him made it clear m com- munications and in other ways that that was his policy. Can you direct me to times and places and language where Presi- dent Johnson has asserted that policy in line with the previous policy of President Kennedy? z Mr. SCHLEI. Congressman, I will do that later today, if I may. I checked yesterday as to whether I could say this, and I could. And I am clear that President Johnson has taken this position. But I do not offhand recall in what form or the date that he did, and I will supply that information to the committee. Mr. Moss. Thank you. Mr. GRIFFIN. It may be that I am not fully informed and he has taken a position I am not aware of. I shall appreciate you supply- ing the subcommittee with a memorandum providing that informa- tion. Mr. SCHLEI. I will be pleased to do that, sir. Mr. GRIFFIN. Thank you. Mr. RUMSFELD. Mr. Chairman, could I ask a question? Mr. Moss. Certainly. Mr. RuMsr~w. You made the statement that it was the position of the Justice Department that some provisions which Congress has PAGENO="0030" 22 FEDERAL PUBLIC RECORDS LAW attached to appropriation and other bills in the past have been un- eon'stitutipnal; is that correct? Mr. SCHLEI. Well, that is not exactly what I said, Congressman. If you do not mind my being a little technical, I said that the appro- priation rider dealing with the Inspector General's Office in the AID agency was rgearded as unconstitutional in an opinion of the Attorney General under the Eisenhower administration. The Attorney Gen- er~tl was Attorney General Rogers. Mr. RUMSFELD. Is such an ppinion considered to be the opinion of the Justice Department? Mr. Scnu~i. Yes, that opinion has been referred to several times I believe in somewhat similar, analogous situations with approval in this administration. There have been some riders, for example, one that said that no sale or lease of property could he made by the Panama Canal Corpora~ tion without the approval of a committee of Congress, and I think the Roger$ opinion was referred to in connection with that rider. But we have never that I recall offhand dealt with the specific problem, and the general principles expressed in it at least are those- Mr. Moss. Would you yield at that point? Mr. Rui~isn~w. Yes. Mr. Moss. Is there not also an opinion of the Comptroller General that the rider in connection with the Inspector General's Office is constitutional? Mr. SCHLEI. I think there was a dead collision there, Mr. Chairman. That is my recollection of it. Mr. Moss. Back in the gray area, and it is not clear who is right and who is wrong? An accomodation was made? Mr. SCHLEL That is correct, sir. There was no clearcut resolution of that dispute as I recall in accordance with ~ne opinion or the other. It was walked away from. Mr. Moss. A draw at the moment? Mr. SCHLEI. A draw the last I heard. Mr. Moss. But here is the danger: It is a draw when you look at the record, but it will be cited from now to eternity on appropriate occasions. by the Attorney General's Office as further supporting their claim that such actions are un~onstitutional. Mr. RtTMSFELD. That was my point, Mr. Chairman. What are the mechanics for testing such a position? Mr. SCHLEI. Well, the mechanics, the forum in which disputes of that kind have to be resolved, Congressman, is before the public and before the Congress in the Halls of Congress. The judiciary cannot resolve a conflict between the executive branch and the legislative branch. We have a separation of powers principle in our Govern- ment, and when there is a collision between two of the coequal branches, it has to be resolved by the political process. Mr. RIJMSFELD. You are saying, then, there is no legal procedure or set of procedures whereby the executive branch, the Department of Justice, could test such a position? Mr. SCHLET. Well, if there were a lawsuit to resolve that problem, the Comptroller General would be represented by the Attorney Gen- eral of the United States, and the Attorney General mightin hs capa- city as attorney of record see fit to confess judgment. And in that PAGENO="0031" FEDERAL PUBLIC RECORDS LAW 23 case the resolution, I think, would be regarded as unsatisfactory by the people who though the Comptroller General was right. The thing is that when we get these confrontation situations the usual processes for resolving disputes are really not available in our system of government. We have three coequal branches, and when they really are in conffict-it happens very rarely, fortunately-but when they really are in conflict the political process slowly and usually effectively resolves it. Mr. RtTM5FEW. Well, then, just for the sake of clarity iii~ the record, assuming that the proposal before this subcommittee or some similar proposal were to pass the Congress and the opinion of the Justice Department was that it was unconstitutional, it would stand and there would be no way, according to what you have said, that its constitu- tionality could be tested? Mr. SCHLEI. Well, that is not accurate, Congressman, because this statute gives rights not just to Congress but to members of the public. And under this statute a member of the public who would presumably seek information and be refused would bring a lawsuit, and he would be separately represented. It would not be the Government suing itself. It would be a member of the public resting his rights on a statute enacted by Congress seeking relief against the executive branch. And the judiciary would decide that. My own view is that they would decide that by saying that the doctrine of separation of powers prevents them from exercising jurisdiction to compel the executive branch. Mr. Moss. I would like to clarify one thing. This is not intended to affect the rights of the Congress. This is dealing with a public right, this proposed legislation. Mr. SCIILEI. Yes, sir. Mr. Moss. Only with a public right. And Congress can, as an equal branch, use its own rights and privileges in seeking to get its informa- tion, This proposed bill does not affect the rights of the Congress. Mr. Scni~i. I understand that, Mr. Chairman. Mr. Moss. Mr. Kass. Mr. KAss. Mr. Schlei, has the Supreme Court ever decided that, v inherent in the executive branch of the Government, is the constitu- tional right to withhold information? Mr. SCHLEI. Well, I believe that there are decisions recognizing that inherent in the authority to execute the laws is the authority to with- hold information; yes. Mr. KAss. Could you give us some citations either now or for the record? Mr. Scrn~EI. I can certainly give them to you for the record. (The material referred to follows:) Marbwry v. Ma,diso~, 5 U.S. (1 Cranch) 137 (1803) appears to be the only case in which the Supreme Court has treated such authority to withhold infor- mation in terms of a constitutionally derived discretion in tbe.Executive, in the exercise of which the Executive is accountable only to the electorate. Other cases involving the nonavailability of official information determine the question in the context of evidentiary privilege and the reach of discovery procedures In judicial proceedings, which are matters within the authority of the courts. Three such cases have reached the Supreme Court: Totten v. Tfwtted 2ta~tes, 92 PAGENO="0032" 24 FEDERAL PUBLIC RECORDS LAW U.S. 105 (1875) (State secrets); Seher v. United States, 305 U.S. 251 (1938) (identification of informants) ; and United States v. Reynolds, 345 U.S. 1 (1953) (military secrets). In each of these cases the Court recognized a privilege of the Executive based upon the nature of the information involved. Mr. KASS. What about the Reynolds case, United States v. Reynolds? A 1953 decision. Mr. SCIJLEI.. Well, let me just see if that is the case that I think I remember. Was that a litigation about an airplane crash? Mr. KASS. Correct. Mr. SCHLEI. In which the question was the availability of a Govern- ment investigative report about whose. fault the crash was? Mr. KASS. This is correct. Mr. SCHLEI. Yes. And the court, as I recall, held that that report did not have to be disclosed. Mr. KASS. On what basis though? Mr. SCHLEI. Well, my recollection was that the basis at least in part was the doctrine of executive privilege. Mr. KASS. But did not the court at one point say, and I quote from Justice Vinson's opinion on page 8, that- The Court itself must determine whether the circumstances are appropriate for the claim of privilege. Mr. ScIILEI. Yes. Mr. KASS (reading): And yet do so without forcing the disclosure of the very thing the privilege is designed to protect. Mr. SCIILEI. Well, Mr. Kass, the difference there I think is that that was a question of executive privilege vis-a-vis the courts rather than the public or the Congress. So that you got into an area where the courts have some privileges of their own. Now, if the court decides that it is not going to honor a claim, of executive privilege, the court I do not think would take the position that it could compel the President to disgorge a state paper which he considered crucial to the Republic. What they would do is say, "You cai~not proceed in this litigation. We are going to throw you out of court-or, perhaps decide the issue here involved against you-unless that document is produced." So there is a judicial privilege in effect that limits and is juxtaposed against the executive privilege that might have come into play in that situation. Mr. KASS. Now, the Reynolds case dealt with a matter of state and military secrets. What about the recent court of appeals case MacMn v. Zuchert, where the same factual situation existed except the Air Force said there were no classified documents involved. The court said that they are going to determine what information will be made available to Mr. Machin. Are you familiar with that case? Mr. SCHLEI. I am sorry to say I am not. Mr. KASS. Could you, for the record, supply the information later on? Mr. SCIILEI. Yes, indeed. Delighted to. (The material referred to follows:) This ease establishes the proposition that to the extent that the disclosure of official information would hamper the effective operation of an important gory- ernment program, the information mu~t be treated as privileged, and such PAGENO="0033" FEDERAL PtTBLIC RECORDS LAW 25 prIvilege extends be~~on'd `the information itself, to deliberations on the informa- tion and conclusions and policy recommendations drawn from the information. Machin v. Zsckert Involved a demand for a military aircraft accident repoi~t developed from testimony before an Air Force Accident Investigation Board. Apparently, testimony before the board customarily was adduced under promises of confidential treatment. The court acknowledged the appellee's claim that the substantial reduction in aircraft accidents and improvements in equipment over the years depended upon candid testimony concerning aircraft accidents. The privilege was considered nece's'sary to avoid inhibiting future witnesses before such boards and thereby seriously prejudicing the aircraft accident analysis program, and perhaps the improvement `of military equipment. The privilege was held not to extend to information the disclosure of which would not inhibit future witnesses before investigating boards, and the district court, rather thaii the military department, was determined to have authority to decide bow much of the information demanded was within the privilege. The inference of the decision is that such authority would be in the Executive if state secrets were contained `in the report demanded, The broad principle on which the decision is founded would seem to be applie- nble in any case where disclosure would hamper an important governmental function, for example, investigation for purposes of law enforcement or regulation. Mr. KASS. Thank you. You spoke of the concept of executive privilege vis-a-vis the courts as compared to the concept of executive privilege vis-a~vis the Cqn~ gress. Is not this concept vis-a~vis the courts really what this bill is intended to accomplish? Mr. SCHLEI. Well, it is involved, but basically the courts would not be called upon to decide disputes in which the information is inci- dentally relevant as evidence. The courts would be called upon really to regulate the relationships of the executive branch and the public with respect to the information wholly apart from any4 rights and duties, legal rights and duties, any case or controversy, within the concept of article III of the Constitution. And I think that that is a constitutional infirmity, as a matter of, fact2 in this proposed legislation. Someone would be seeking infor- mation from the Federal Government who has had no jural interest ii~ it, so that there seems to me some question whether a court would be able to assume jurisdiction over the controversy under article III of the Constitution which limits the jurisdiction of Federal courts to "cases and controversies"-a very complicated concept that might not ,` extend to a situation of this kind. Mr. KAss. Does not a citizen have a jural right to information from the ,Government-that is, information not within these eight cate- gories? Mr. SCHLEL Well, I am not sure. Suppose a member of the press would like to get some information about a prisoner, say. Mr. KAss. Mr. Schlei, I think you answered Mr. Moss that it is not only the members of the press who are concerned here. Mr. Sc1~ILEI. Yes, that is true. Mr. KAss. It is the American Bar Association, the lawyers in gen- eral, and everybody else-historians, professors, and so forth, and John Q. Citizen. Mr. SCHLEI. Well, then, take John Q. Citizen who is just curious about some particular prisoner in the Federal system. He wants to know some information that is not within these exceptions, and he. brings a lawsuit, and the court says, "Well, where is your standing to sue? In what way is your ox gored by the refusal of the Federal Government to disclose this information?" 45-213-65-pt. 1-3 PAGENO="0034" 26 FEDERAL PUBLIC RECORDS LAW And the citizen says, "Well, I: am just a member of the electorate, and I want the information." And the court is going to say, and may say what~ it says to a tax- payer, "You have no interest in this information apart from that of the great mass of people in the country, and if we recognize that as standing to sue, we would have an infinite number of lawsuits to de.. dde, and we are going to rule that you have no standing to sue unless you have some particular personal interest in what you seek." Mr. Moss. Supposing that John Q. Citizen says, "Well, in a couple of months we are going to have an election, and I'm going to have to cast .a vote for President. I haven't been able to make up my mind, and I won't until I am able to form a judgment as to whethcr the Justice Department has acted properly in handling thi's matter. I need `the information to make that judgment." Mr. SOIILEI. Well, I- Mr. Moss. It is probably farfetched, but it is possible. Mr. SCHLEI. it certainly is possible. I think a court could say, "This man is trying to exercise his fran- chise. He needs that information. We have been given no concrete reason why he shouldn't have it." And proceed. `Or it might say, "Well, if they won't give it to you and they refuse to satisfy you on this basis, your remedy is to vote against the admin- istration and get an administration in there that will answer for treatment of prisoners." `Mr. Moss. The remedy might be that he should vote for whomever is able to run the Government better--not against something but for something. Mr. SCHLEI. That is usually a sound philosophy, Mr. Chairman. I would ~hope that the person who could best run the Government-I would think that usually it would be a peri~on who could recognize the advisability of making available information to the maximum extent consistent with doing the job. Mr. Moss. You know, talking of inherent rights, Dr. Harold Cross, who worked with this subcommittee back 8 to 10 years ago, had the novel conviction that inherent in the right to speak and the right to print was the right to know. The right to speak and the right to print, without the right to know, is pretty empty-to know about Gov-. ernment or about anything else that an inquiring mind might want to know about. Mr. SOHLEI. I think there is some truth in that, Mr. Chairman. They are obviously related. They are related rights. Mr. Moss. Continue. Mr. KASS. Mr. Chairman, in that connection, I do not know how novel Dr. Cross' statement was, because Cooley on "Constitutional Limitations" way back in the 1th century stated at page 886, regard- ing the first amendment, freedom of speech and press, that: The evils to be prevented were not censorship of the press merely bitt any action of the Government by means of which it might prevent such free and general discussion of public matters as it seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. The Supreme Court has not yet taken that position, but they have not gone the other way yet, Mr. Schlei; have they ~ PAGENO="0035" FEDERAL PUBLIC RECORDS LAW 27 Mr. ScHu~r. No, they have not. I think they have generally appre- ciated the necessity of being able to circulate information widely and to publish a newspaper, for example, free of discriminatory taxation, as in the Gro~jean case. The Supreme Court I think has been very sensitive to the right of free speech, and I think perhaps we could find places where they have recognized its relationship to the right to know to some degree. Mr. KAss. Mr. Schlei, what is your current statutory authority for withholding prisoner files from the public? Mr. SCHLEI. I do not believe there is any statutory authority. Mr. KAss. Could you check for the record 18 U.S.C. 4082 and supply us with information as to whether that goes to the question of with- holding prisoners' information? Mr. SOHLEI. I will indeed, sir. (The material referred to follows:) The section provides simply that persons convicted shall be committed to the custody of the Attorney General or his authorized representative. It contains no provision relating specifically to the availability of prisoner records or files. Mr. KASS. Do you have statutory authority, presently, for the in- ternal communications regarding prospective litigation? I think you mentioned the Bureau of Land Management. What is your current statutory authority for withholding those? Mr. S0HLEI. Well, I do not think there is any statutory authority in the usual sense. Conceivably, the authority could be traced to some application of the Federal rules. But that would be a sort of a logical exercise. The fact of the matter is that it rests on judicial doctrines as to what parties in litigation will be compelled to produce and what is privileged, what is out of bounds. It is nonstatutory privileges and attitudes. Mr. KASS. Is the information contained in these litigation files primarily factual? Mr. SCULET. Well, it would be hard to categorize them as factual or legal. They are just both and mixed. There are letters that talk about facts, and there are letters that talk about facts in the light of the law and make settlement recomendations, that appraise facts and appraise legal positions. They are just every imaginable kind of- Mr. KAss. On the assumption that J/LR. 5012 became law and that one of the exemptions from disclosure would be No. 5, dealing with in- teragency or intra-agency memoranda or letters solely on matters of law or policy, what would the Department of Justice opinion be as to whether your litigation files dealing with mixed matters of law, policy and/or facts would fall under this exemption? Mr. SCHLEI. Well, we have thought that they would not. That has been our interpretation, our estimate, as to how this language would be interpreted. Because this word "solely" makes you pull in your horns on making any broad gage interpretation. And these letters and materials just would not deal solely with matters of law or policy. There would be facts about the conduct of people and remarks, the evidence of what people said, that might be presented in support of a claim or against a claim-evidence, in other words, which is obviously something other than law or policy. Evidence is factual matters, and yet they really are the kind of thing that I think that all the members of the committee and every- PAGENO="0036" 28 FEDERAL PUBLIC RECORDS LAW one here would agree on-that litigation files relating. to pending pr prospective litigation should not be readily available to the op~ posites in the litigation, the newspapers or interested citizens. Mr. Kiss. Especially for the Department of Justice and the FBI, would that not fall under No. 7-"investigatory files compiled for law enforcement purposes except to the extent available by law to a private party?" This deals specifically, as I understand it, with the rules Of disclosure. Mr. SCIILET. Well, I do not think you c~ould call law enforcement a Lands Division suit about how much the Government is going to pay somebody in a condemnation situation, or perhaps a suit against the Federal Government in the Tort Claims Act field. That would not be law enforcement. I think law enfDrcement connotes an investigative, a police, criminal law enforcement effort. Would you not agree? Mr. KA5S. I won't comment. If the Department of Justice had internal memorandums or internal working papers dealing solely with facts, would you then have any objection to making them avail- able? In other words, facts compiled by your agency or given to you by others for investigatory or litigation purposes? Would you object to that information being made available? Mr. SCHLEI. Yes; because it would disclose the litigation position pf the United States in a way that- Mr. KAss. Would not the litigation position, Mr. Schlei, be based on the policy, not the facts which create the policy? Not the facts which create the litigation position? I am talking solely of the facts. If you could, in your compiling of this infDrmation, separate it on the basis of facts on the one hand; law and policy on the other-and I would interpret "policy" as meaning your litigation position; whether to go to ~ourt or not; whether to press charges; what your attack is going to be-would you then be willing to release that in- formation? Mr. SCHLEI. No, Mr. Kass. I think that the evidence that you have, the facts that you have, are terribly confidential in prelitigation, during a litigation situation. You make possible all kind of perjury if the ppposition knows exactly what you are able to prove and what you are not able to prove. They can construct a story that is con- sistent with what they know you are limited to and go between your evidence. But if they try to construct a story not knowing what your evidence may be, they are under compulsion to tell the truth or face the possibility of being very badly impeached. Mr. KASS. But have we not gone away from the concept of surprise? Mr. Scni~i. Well, we have to some extent, but there are limits to discovery, and there are privileges, and there is this concept that the work product of a lawyer is immune from discovery, and that would include a lot of factual material. I have read a number of cases, incidentally, where the possibility of perjury is spoken of by the courts as a reason for restricting discovery of matters that could be discovered by independent investigation. Mr. KASS. For the purpose of the committee's analysis of this specific area on litigation files, could you submit either a proposed amendment to the bill or, in the alternative, language which, in the report, could PAGENO="0037" FEDERAL PUBLIC RECORDS LAW 29 state that it is intended that internal memorandums would include the litigation files? Mr. SCHLEI. Yes, sir; we will. Mr. KASS. Could you supply that for the record? Mr. SCHLEI. I think that is going to be a fairly lengthy process, but I will move along as fast as we can. That is going to require some study; I think, substantial study. (The material referred to follows:) (Every agency shall make prc~mptly available to any member of the public, in accordance with published rules stating the time, place, and procedure to be followed, records in its possession) * * * "except * * * litigation and adminis- trative adjudication files, including communications and records' concerning negotiations for settlement or other efforts to avoid formal proceedings." Mr. KAss. Mr. Schlei, what is your interpretation of exemption No. 2? What information would fall under those records relating solely to the internal personnel rules and practices of an agency? How' does your agency interpret that? Mr. SoHr~I. ~Well, we were inclined to be critical of that exception because it did not seem to us actually that the personnel rules and practices of an agency, many of them, ought to be exempt. They ought to be public. How you handle various personnel problems and where somebody goes to complain if he is treated wrongly by his superior, and so on. All those things I would suppose should be public. They should be published somewhere. They should be up on a bulletin board. And there are some personnel rules and practices that ought to be exempt, and I think that-let's see- Mr. KAss. It is No. 2. Mr. SCHLEI. And so that exception, it seemed to us, protected from disclosure things that did not need protection, as well as perhaps not going far enough as to some aspects of information that the Govern- ment gets about its employees. Mr. KAss. Where an individual is, let's assume, fired from the agency-for cause we hope-would the facts and circumstances sur- rounding this discharge fall within the personnel practices of an agency as you read it? Mr. Scrn~EI. I should not think so, although you are talking here " about records that are related to the "practices" of an agency, and con- ceivably a record, although it contained only a summary of some facts, say, might be related to the "practices, personnel practices," of the agency, part of a file, part of a series of documents. I am just talking off the top of my head about that problem, but I would say that you could get a situation where a factual statement or document came within that exception. Mr. KASS. We are all talking, as you `say, off the top of our heads. We are trying to create legislative history' to determine what we intend. Mr. Moss, What this was intended to cover was instances such as the manuals of procedure that are handed to an examiner-a bank ex- airiiner, or a savings and loan examiner, or the guidelines given to an FBI agent. Mr. Scrn~rir. Ah! Then the word "personnel" should be stricken. Because "personnel" I think connoted certainly to use the employee PAGENO="0038" 30 FEDERAL PUBLIC RECORDS LAW relations, employee management rules and practices of an agency. What you meant was material related solely to the internal rules and practices of any agency for the guidance of its employees-something like that. I do agree that there should be protection for the instructions given to FBI agents and bank examiners; people who, if they are going to operate in expectable. ways, cannot do their jobs. Their instructions have to be withheld. But I think that word "personnel" does not do the job well enough, Mr. Chairman. I am sure it can be done. Mr. Moss. We will hope to seek a way of doing the job without ex- empting internal rules and practices. Mr. SCHLEI. I suppose that could cover quite a lot of ground, Mr. Chairman. Mr. Moss. Because I am afraid that we would there open the barn door to everything. Mr. ScHLEI. Well, it is one of those things, Mr. Chairman, that just shows how hard it is to cover the whole Government with a few words. There are a number of problems. Mr. Moss. Oh, we recognize the difficulty and the complexity, but we are perfectly willing to work at it. Mr. SCHLEI. All right, sir. Mr. KASS. Mr. Schlei, how would H.R. 5012, if enacted, affect the so-called Trade Secrets Act, 18 U.S.C. 1905? Mr. SCHLEI. May I submit a statement in answer to that? Mr. KASS. Please do. The question is whether this would, in effect, repeal the Trade Secrets Act, which I do not believe is the intention of the chairman. (The material referred to follows:) Since the section imposes criminal sanctions upon officers and employees of the United States who divulge certain kinds of information coming to them in the, course of their employment "in any manner or to any extent not authorized by law," the scope of the section would be reduced to the extent that HR. 5012, as enacted, would require the disclosure of such information. The application of the proscription of 18 U.S.C. 1905 is determined by the authority granted by other statutes. H.R. 5012, if enacted, would be one such other statute. Pre- sumably, its requirement that all official information, save that within the stated exceptions, be disclosed would constitute authority to disclose, within, the mean- ing of 18 U.S.C. 1905. Mr. Schlei, in 1946 Congress passed the Administrative Procedure Act and incorporated therein section 3, the so-called public informa- tion section. In the 19-year history of that act, and taking in consider- ation the legislative history of section 3, do you feel that section 3 has really operated as a public information section making information available to all within certain reasons? Mr. SCHLEI. Well, I know it has been suggested that the section has not operated as a public information section but as a restriction of public information section. And it certainly has provided the guide- lines along which the controversy has raged as to whether information should be available or not. I do not need to be persuaded that there have been abuses of that section and there have been things that have occurred that are un- fortunate and regrettable, and this committee has brought many of those to light, and constructively so. PAGENO="0039" FEDERAL PUBLIC RECORDS LAW 31 I think that there could he some improvements made in that section. I am confident that there could be. But the basic approach taken by that ~tatute of leaving a discretionary standard as the ultimate stand- ard is one which I think cannot be altogether dispensed with. I think that is an essential feature~-that retaining that is an essential feature of any improved statute. Mr. Moss. Who exercises the discretion? Mr. SCHLEI. Well, Mr. Chairman- Mr. Moss. We are talking about the whole Government, and in the absence of more definitive guidelines than exist at the moment, who exercises the discretion? Mr. Scm~m. Well, I am afraid that all too often it is a fellow at a very low level, Mr. Chairman. I have given a considerable amount of thought, as I mentioned earlier, to an improved statute, and I per- sonally see a Lot of merit in giving the citizen who is denied informa- tion the right to a decision at a high level in the executive branch- perhaps restrict the authority to finally deny information to the heads of departments and agencies or give a right of prompt appeal upon the denial of information to the head of a department or agency. I have np authority to advance that as a proposal of the executive branch, but it has seemed to me to offer possibilities for improvement, and we will be checking that out with departments and agencies in the Government to see whether we think it is feasible and can sponsor it. Mr. Moss. You know, just in the 12 years that I have been here in Washington, Government has grown quite a bit. r Mr. SCHLEL Yes indeed, sir. Mr. Moss. And in the Congress this year, the committees of Con- gress or on the floor of the House or the Senate, we have acted to further expand Government. And I think this places upon both the Executive and the Congress a very serious responsibility to insure that the public is going to be kept infnrmed, not exposed to propaganda. Now, you in your statement recited the facts of the great comrnuni- cations systems of this Nation, broadcasting and the press. But you know the press is not as large as it used to be, and broadcasting tends in the major areas to be concentrated in fewer and fewer hands. ~ Mr. SCHLEI. That is true, sir. Mr. Moss. And the opportunity for propagandizing rather than in- forming is, therefore, enhanced. And we know that Government-and these problems are com- pletely nonpartisan; they are political but they are not partisan- we know that Government as it acts and achieves is going to boast of its achievements. We are not going to be concerned about the Gov- ernment failing to have its light shine. But the things it does not talk about, where reluctance might exist, are where my curiosity becomes stimulated. And it is in these areas where fewer and fewer people renily today have the responsibility of keeping the American people informed. And by that I mean that, in relation to the size of Governmei~t, there are far fewer people today covering the activities of Government than there were 20 or 30 years ago. Now, it is an almost impossible assignment, and there are far too many who go down to the Press Club and pick up the handouts, PAGENO="0040" 32 FEDERAL PUBLIC RECORDS LAW and' these are always going to tell the most favorable side of the story. But where there is a will to seek, then I think there must b~ availability. That is all we are trying to do here-insure that avail- ability. Now, if I knew that the President of the United States or even the Attorney General was going to look at each instance where re- fusal was the final result, I would not be as worried as I am when I know that rarely is it ever going to get up to the President or the .A.ttorney General or to you. Many times information is controlled rigidly at very low echelons in Government, and the only way we can change that is to impose some requirement under the law. Obviously the Executive is not going to do this. They have not done it. And I think something must be done. We cannot just con- tinue to drift and rely on the good faith of people or the good judg- ment of people who inherently, when they are in a safe spot in Government, do not want to start any controversy, and the easiest thing in the world is to sit on that information. And you never have difficulty-and that is why I did not put it in this bill-in finding that it is "in the public interest" to withhold. Because each person who has the first chance to withhold is part of' that public, and he knows darn well it is in his interest to withhold. And so we have a real problem and one where we should apply our best intelligence, both of the E~ecutive and of the Congress, in an effort to resolve it in a fashion which guarantees a right of access under reasonable rules. On this right of appeal against the rigidity of bureaucracy, it exists in Government as it would exist in business. You have got bnsinesses today that hold on to every bit of information. Unless their corporate image is improved, it does not go out. And much of' that has transferred to Government. But here the proprietorship is much more `broadly dispersed, and we are all part of it. Mr. SOHLEI. We are all stockholders, Mr. Chairman. Mr. Moss. We are all stockholders., And we all have a need' to know, whether or not we exercise it. Mr. IC&ss. Mr. Schlei, you referred earlier to prisoners' records. In looking over this bill, H.R. 5012, would not exemption from dis- closure No. 6, dealing with personnel and medical files and similar ~" matters the disclosure of which would constitute a clearly unwar- ranted invasion of personal privacy, cover that? Mr. SOHLEI. Well, query about what "similar matters" means. We were dubious about that. Mr. KASS. Why do you want to withhold the prisoners' records?' Mr. SCITLEL Well, because there are many possibilities of harm to the man's rehabilitation. FQr example, there might be inter- views with his family members and they have said, "Well, he never was any good, and we hope you keep him there a long time." Now, if a man comes out of prison and goes back to live in that family situation, maybe not immediately in it but touched by it,~. his rehabilitation would be badly affected if he knew that those people had said that in an unguarded moment about him. Mr. K~ss. Does not release of that information clearly invade the person's personal privacy? PAGENO="0041" FEDERAL PuBLIC RECORDS LAW 533 Mr. Scini~x. Well, it is in a personnel or medical file, but-~- Mr. KAss. What kind of file is it in? Mr. SCHLEI. Well, it is in a file that we maintain as to each prisoner in the Federal prison system. Mr. K~ss. Is that not, in effect, called the personnel file? Mr. SCHLEI. Well, I think that if it came down to releasing some~ thing like that, we would argue that it was a "similar matter." But I think it will be helpful if this ever becomes law if we make a little legislative history here that prisoners' records are "similar mat. ters the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Mr. KASS. Mr. Schlei, you referred earlier to the litigation files. How' do you read the Federal Rules of Criminal Procedure and the Federal Rules of Civil Procedure, their aspects dealing with the disclosure and discovery proceedings, as far as exemption No. 3- "specifically exempted from disclosure by statute"? Would there be ~ny connection or correlation between these two? S Mr. SCHLEL Between the Federal criminal rules- Mr. KASS. Or civil rules dealing with disclosure. Mr. SCHLEI. Well, I do not know that the Federal criminal rules provide that any information in the possession of the Government is exempt from disclosure. They create a right of disc~very where none `existed at all before. Traditionally, as you know,%here has been no discovery in criminal cases. The defendant has his fifth a~nendment, and the Government need not provide discovery. Now there is a growing right to discovery in Federal criminal cases which is embodied in the Federal criminal rules, but 1 do not think lhat the Federal criminal rules specifically exempt anything in the possession of the Government from disclosure by statute. Mr. K~ss. But do they not spell out, both the Federal civil and criminal rules, the procedure for handling your litigation files? Mr. SCHLEI. Well, perhaps that argument could be made as to the particular individual with whom you are litigating. But this stat~ ute- Mr. K~&ss. You would still he litigating with a partk~ular individual in each case. Mr. SCHLm. Yes, but this statute talks about any member of the public. And it would be hard to say that the criminal rules say any- thing about the right of a representative of the New York Times, say, ~or of somebody who for some reason wanted to know about the case. The criminal rules obviously deal only with an adversary situation. And I would think you would have a tough time appealing to them for protection against disclosure to somebody not even a party to a crimi. nal case with you. Mr. KASS. Would it not be an adversary proceeding, though in the civil sense where a person has brought suit under section (b) of this statute? Mr. SOULBI. Yes. Well, is it your thought that the legislative his- tory would make clear that exemption 3 really reads in the Federal civil rules and that any disclosure as to litigation files in civil matters would have to be sought in accordance with the Federal Rules of `Civil Procedure? Mr. KAss. This is the question I am asking you. PAGENO="0042" 34 FEDERAL PUBLIC RECORDS LAW Mr. SCHLEI. I have to acknowledge it never occurred to me. That did not occur to me as a possibility. And I could only ask that you give us a chance to remedy that failure. Mr. KASS. Would you supply an answer for the record? Mr. SCHLEI. We will make a submission to the subcommittee of what we come up with. (The material referred to follows:) No. It is my view that litigation and administrative adjudication files gen- erally should be exempt from the reQuirements of this bill. Mr. KASS. Thank you. One additional question, Mr. Schlei. In 1947, in an interpretation of the Administrative Procedure Act, the Attorney General's manual on the APA stated at page 17: This section [sec. 3, the public information section,] unlike the other provisions of the act, is applicable to all agencies of the United States excluding Congress', the courts, and the governments of the Territories, etc. Every agency, whether or not it has rulemaking or adjudicating functions, must comply with this section. In the 19-year history of the Administrative Procedure Act, is it your feeling that every agency of the Federal Government, to your knowledge, has colnplied with section 3 of the Administrative Pro- cedure Act? ~, Mr. SOHLLI. Well, I think the hearings of this committee have made it amply clear that there have been instances of noncompliance. Mr. KAS5. In that connection, would it be better to amend, as this bill does (5 U.S.C. 22) the housekeeping statute, to make sure that this is applicable to all agencies, departments, commissions, etc., in the Federal Government? Mr. ScuLEr. I would not indicate any preference, Mr. Kass. I think that as long as it were made clear in the statute and legislative history that it was of universal applicability, it would make little difference whether it was in title 5, United States Code, or in the Administrative Procedure Act. Mr. KASS. We have had, in answer to a questionnaire the subcom- mittee sent out, numerous small agencies or commissions or boards that have commented to us, "We are not rulemaking, we are not adjudi- catory, and therefore the Administrative Procedure Act doesn't apply N~ to us." Maybe their lawyers did not read the manual, or maybe they did not have any lawyers. But, in any event, they felt that they were not covered by section 3 of the act. In that connection, would it be better to put it in title 5, United States Code, section 22? Mr. SCHLEI. I guess it would be better. I am not positive about title 5, United States Code, section 22. But I do recall thinking now that it seemed inappropriate to deal with the problem of public in- formation and the people's right to know in a statute called the Ad- ministrative Procedure Act. There is an inappropriateness there in the layman's sense that might get you into a situation where people would not suspect a regulation applicable to them was in that statute. And I would concur that it seems better to make the regulation else- where than in the Administrative Procedure Act. Mr. KASS. Thank you, Mr. Schlei. I have no further questions. PAGENO="0043" FEDERAL PUBLIC RECORDS LAW 35 Mr. Moss. Mr. Griffin? Mr. GRIi~IN. No. Mr. Moss. Does Mr. Carison have any questions? Mr. CAiu4soN. No, sir. Mr. Moss. I want to thank you very much, Mr. Schlei, for your appearance here this morning. It has been very helpful and very informative. Mr. SCIILEI. Thank you very much, Mr. Chairman. It was a pleasure. Mr. Moss. The subcommittee will now stand adjourned until 2 p.m.. this afternoon. (Whereupon, at 12:08 p.m., the subcommittee recessed, to reconvene at 2 p.m., this date.) AFTERNOON SESSION Mr. MONAGAN (presiding). The hearing will come to order. Our next witness will be Mr. H. P. Herrick, who is General Counsel of the Federal Mediation and Conciliation Service. Mr. Herrick, we are glad to have you with us. STATEMENT OP H. T. BERRIOK, GENERAL OOUNSEL, FEDERAL MEDIATION AND CONCILIATION SERVICE; ACCOMPANIED BY OILEERT SELDIN, ASSISTANT DIRECTOR, OFEIOE OP MEDIATION ACTIVITIES Mr. HERRICK. This is Mr. Gilbert Seldin, Assistant Director of the Office of Mediation Activities in our agency. Mr. MONAGAN. Thank you. You may proceed. Do you have a prepared statement? Mr. HEIuIICK. I have a prepared statement, Mr. Chairman, but I am not going to read the entire document. Mr. MONAGAN. Well, without objection, the statement may be made a part of the record at this point, and then you may summarize it as you wish or handle it in any way you may like. Mr. HEIIRICK. Thank you. Mr. Chairman and members of the committee, my name is H. P. .~` Herrick, General Counsel of the Federal Mediation and Conciliation Service. I am accompanied by Mr. Gilbert Seldin, Assistant Director of our Office of Mediation Activities. We would like to thank you for giving us an opportunity to comment on H.R. 5012. We would also like to express regrets on behalf of the Service's Director, Mr. Wil~ 11am E. Simkin, whose prior commitments prevent him from appear.. ing here today. Mr. Simkin is in New York, in the newspaper industry negotiations which are now in a very tense-even delicate-condition. Mr. Walter Maggiolo, Director of the Office of Mediation Activities, is also in New York. Before addressing myself to those parts of H.R. 5012 which are troublesome to the Service, it would probably be appropriate to tell you a little about the Service's history and functions, to provide a background which will help to explain the reasons for our concern. The Federal Mediation and Conciliation Service was established in 1947 to assist the collective bargaining process by making available "full and adequate governmental facilities for conciliation, mediation, PAGENO="0044" 36 FEDERAL PUBLIC RECORDS LAW and voluntary arbitration to aid and encourage employers and the ~representatives of their employees to reach and maintain agree- ~ment * * * and to make all reasonable efforts to settle their differences ily mutual agreement reached through conferences and collective bar- ~gaining * * This is all we do. The Service issues no decisions or rulings; it ~does not adjudicate; it has no enforcement powers; it cannot issue subpenas or compel testimony. Use of mediation is entirely voluntary. In short, the Service exists for the sole purpose of assisting those who are willing to use itsfacilities to settle their differences, if not amicably, at least peaceably, without resort to the economic weapons of the strike or lockout. Let me dispose of the "voluntary arbitration" part of our statutory mandate at the outset. My office maintains a roster of qualified arbi- trators, whose names are submitted, usually on five- or seven-man panels, to the parties to grievance disputes arising under a collective bargaining agreement which provides for the selection of arbitrators through Federal Mediation and Conciliation facilities. The arbitra- tors on our roster are private citizens who are chosen and paid by the parties. Our arbitration records are not confidential. All arbitration awards received by the Service are released for publication by the three labor services, Bureau of National Affairs, Commerce Clearing House, and Prentice-Hall, unless the parties themselves agree that they should not be published. Since arbitration is a private juridicial process, created by contract between the parties themselves, we feel that the awards belong to the parties, and that they are therefore en- titled to prohibit publication. So much for our arbitration function. The balance of my testimony will relate solely to mediators' reports, letters, and memoranda involving contract negotiation or other dis. putes in which the bulk of the Service's work is done. The tasks of mediation and conciliation are carried out by a field staff of about 250 professional mediators who are located in 7 regional offices and numerous 1- and 2-man duty stations throughout the indus- trial centers of the country. For the most part, mediators work alone, whenever and wherever the parties to an industrial dispute are willing to use their services. Each year, the mediation staff of the agency actively participates in the settlement of about 7,000 disputes; it main- tains telephone or other contact with the parties to about 13,000 other contract negotiations; it receives notice of the pendency of about 80,000 other disputes every year in which the parties do not require any third party assistance in order to achieve peaceful settlements. Time will not permit a detailed description of the mediator's art this afternoon. It is enough to say that in the negotiations in which the. Federal Service actively participates, our mediators serve as a kind of catalyst in whose presence agreements can be reached. They some- times do nothing more than soothe tempers; they sometimes serve as a transmission belt for ideas and proposals between parties whose emotions are so engaged by the pressures of the moment that they cannot fruitfully participate in joint meetings; they sometimes serve as sounding boards for proposals; frequently they suggest alternatives to proposals which they know will be unacceptable unless changed, watered down, or restated; they sometimes are told in advance that one or another party would be receptive to a particular proposal, even PAGENO="0045" FEDERAL PUBLIC RECORDS LAW 37 though for tactical or other reasons the receptive party cannot break t~ deadlock by advancing the proposal on its own behalf. The skillful mediator must bring to his job a solid knowledge of the collective bargaining process, as well as a large fund of tact. He must not lose his temper-unless the needs of the particular negotiation require him to do so. He may be required to know something about pension plans, wage and salary administration, job evaluation systems, the manufacturing process, the personalities and idiosyncrasies of the negotiators, the internal political structure of the union, the competi- tive pressures which may exist in the industry, and a thousand and one other things which appear on the bargaining tables of the Nation. There are many things that the mediator must bring to his job, and most of them cannot be taught; they must be learned through experi- ence acquired by exposure to the bargaining process. But in any tab. ulation of the qualities that a mediator should have before he can be truly skilled, one thing is absolutely essential: He must be able to earn and keep the confidence of the parties. Their confidence can be earned only by an impartial, honest, discreet man. Collective bargaining requires both strategy and tactics. It is fre- quently a kind of poker game, with the cards played close to the chest. For a mediator to be truly effective, he must have some capacity to kibitz, if you will, to know a little about the cards which are to be played as the game develops. No mediator can possibly play this role if the parties think that the things he learns in confidence will be told to the public-which includes the party on the other side of the bargain- ing table. One way to preserve the confidence of the parties would be for the Service to abolish all of its case records; to allow each mediator to function in silence and on his own, keeping no documents, and com- muning only with himself. However, orderly administration does not permit the Service to operate in this manner. Mediators must file reports and keep records. They must consult with their supeFiors, both in the regional offices and in the national office. Since some ef- fort is made to develop not only a broad expertise applicable to any negotiation, but also specific expertise applicable to particular parties in successive negotiations, case histories are developed which can be useful in future years, or for other mediators. In short, the Service does keep records, and it uses them in the fol- lowing ways, among others: 1. The Service is engaged in a constant program of training, im- provement, evaluation of mediation techniques, and search for ways of increasing its effectiveness. Because so many of our mediators work alone from very small field offices, one-man and two-men offices, they do not have the benefit of close contacts and daily associations with other mediators, so that we do have a systematic program of seminars and workshops in which there can be an exchange of ideas and experi- ence based upon reports and records which are kept in significant disputes. The interchange of information and ideas is essential if we are to do effective work in the fluid and dynamic world of labor re- lations. ~. Regional offices and the national office must constantly be in- formed of the status of negotiations. Case reports are used by super- visors-the regional directors and assistant regional directors-and PAGENO="0046" 38 FEDERAL PUBLIC RECORDS LAW by the national office staff, to be sure that the mediator assigned to the case is making every effort and is using all available facilities and tech- niques to assist the parties in reaching agreement. `While we have less supervision than most agencies, in fact, in the field we have a total of only 14 supervisors and-what we have is essential, and it could not be effective without adequate, informative, and frequently subjective reports. 3. Finally, regional offices and the national office must be able to ~valuate the status of any given dispute. Because of the small number of mediators and their heavy caseload, conflicts in dates are frequent. Complete and honest reporting is vital whenever it is necessary to change a case assignment, to supplement mediation efforts by sending in one or more additional mediators to sit as a mediation panel, or to add "new blood" in a sticky negotiation by dispatching one of the small number of national office representatives__or "troubleshooters"-_jn an effort to start a stalled negotiation, to bring in a fresh approach, or to add a mediator with special expertise in particular kinds of problems. The records on which the activities described above depend can be useful only if the reporting mediator describes with complete candor everything of importance that takes place in the negotiation. If one party tells the mediator in confidence that next Monday he will put two more cents on the table, this fact may be reported to the national office-but not to the other side. If the mediator thinks that one or the other side is stalling, that a party does not seem to be bargaining in good faith, or that settlement is being impeded by a personality quirk of one of the chief negotiators, these facts and opinions must be re- ported. Since much of our work is done in "crisis" bargaining, in a few short days before a strike deadline, replacement or supplement mediators and national office representatives cannot enter negotiations "cold." They must be as fully informed as possible about all aspects of the negotiation to which they are assigned. Records are essential. Very frequently a negotiation may lead to litigation, possibly in a suit for damages resulting from a strike, in an unfair labor practice case before the National Labor Relations Board, or in an arbitration proceeding in which the intent of the parties cannot be determined without testimony as to what took place when the contract language in dispute was being negotiated. Within the last year, eight mediators' have been subpenaed; in most of those instances they have been asked to bring their case records, re- ports, or other memorandums with them. A witness is called only when one party to the litigation thinks his testimony or records will be helpful to him and adverse to the other side. Corroboration of one side frequently impeaches the credibility of witnesses on the other side. The mediator who testifies, or who produces his case reports, will not be welcomed back to the next negoti- ation by the party damaged by his testimony. We acknowledge that in all of these situations there is a delicate balance of conflicting public interests. If a party in a court or Board proceeding has not told the truth about his conduct in a negotiation, there is a strong public interest in producing impartial testimony con- cerning what actually took place, to assist the tribunal in question to reach a correct. decision. Never~he1ess, we believe that there is an even PAGENO="0047" FEDERAL PUBLIC RECORDS LAW 39 stronger public intt~rest in protecting the mediation process, and the impartiality and acceptability of our professional staff. I might add that the National Labor Relations Board and the courts agree with us as to which is the stronger public interest in these situations. The NLRB has, in a number of cases, had occasion to con- sider whether or not to try to enforce a subpena against a Federal medi- ator, and invariably they quash those subpenas and do not insist that they testify, and this has also been our record in the rather smaller number of cases in which mediators have been subpenaed in either court proceedings or in some States in arbitration proceedings. Mr. GRIFFIN. In the eight cases you referred to, none was required to testify? Mr. HERRICK. That is correct, sir. Mr. MONAGAN. Excuse me, was that in the courts or in the NLRB? Mr. HERRICK. I think four of them were NLRB cases, three of them were court cases, and one was an arbitration proceeding in a State where the arbitrator had power to subpena. I might say that in one of the cases the mediator had testified some years ago before a joint committee of the Congress about a transaction which he was later asked to testify about in a court proceeding and we have some reason to think that we might not have been successful in that case. Unfortunately, the mediator was very ill at the time of the court proceeding, and was in the hospital on the day of the hearing, and died within several weeks after that, so that it was never tested. In all of the other cases the subpenas have been quashed. Mr. GRIFFIN. What do they use in their reasoning? There is no statute to point to, is there, to give them- Mr. HERRICK. No, sir; there is not. We have our own regulations which I will refer to, which prohibit mediators from testifying con- cerning information which they have acquired in the performance of their official duties. We rely primarily upon the public policy which we feel justifies our holding this kind of information confidential. This classification, of course, h~s been imposed under the Adminis- trative Procedure Act, and we feel that we have met the standard of good cause shown because of the peculiar nature of the work that the Federal M~idiation Services does. This overriding interest has long been recognized by the National Labor Relations Board-the agency chiefly responsible for adjudicat- ing disputes that arise between employers and the representatives of their employees. The Board agrees with our appraisal of these con~ flicting policies. It does not compel testimony of mediators or pro- duction of their records. its reasons were stated almost ~O years ago in Tomlin$on of High Point, 74 NLRB 681, 685 (1947): However useful the testimony of a conciliator might be * * * to execute successfully their function of assisting in the settlement of labor disputes, the conciliators must maintain a reputation for impartiality, and the parties to con- ciliation conferences must feel free to talk without any fear that the conciliator may subsequently make disclosures as a witness in some other proceeding, to the possible disadvantage of a party to the conference * * ~`. The inevitable result would be that the usefulness of the Conciliation Service in the settlement of future disputes would be seriously impaired, if not destroyed. The resultant injury to the public interest would clearly outweigh the benefit to be derived PAGENO="0048" 40 FEDERAL PUBLIC RECORDS LAW from making their testimony available in particular. cases. (See also New Britain Machine (Jo., 105 NLRB 64(1.) For all of these reasons, the Service has alway.s classified case rec- ords "confidential," and it believes that by doing so it meets the stand- ard of present section 3(c) of the Administrative Procedure Acts "for good cause shown." Our classification is contained in section 1401.2 and 1401.3 of the Service's IRegulations (29 CFR, ch. XII, pt. 1401). Section 101.2 states the "good cause" upon which the Service has relied in classifying its case records and reports. Public policy and the successful effectuation of the Federal Mediation and Conciliation Service's mission require that commissioners and employees main- tain a reputation for impartiality and integrity. Labor and management or other interested parties participating in mediation efforts must have the as surance and confidence that information disclosed to commissioners and other employees of the Service will not subsequently be divulged, voluntarily or be- cause of compulsion. Mr. MONAGAN. Where is that citation? Mr. HERRIOK. This is on page 8 of the statement, sir. Mr. MONAGAN. Thank you, page 8. Mr. HERRICK. Section 1401.3 describes the records which are sub- ject to the "confidential" classification: All files, reports, letters, memorandums, minutes, documents or other papers (hereinafter referred to as "confidential records") In the official custody of the Service or any of Its employees, relating to or acquired in its or their official activities under title II of the Labor-Management flelations Act, 1947, as amended, are hereby declared to be confidential. No such confidential records shall be disclosed to any unauthorized person, to be taken, or withdrawn, copied or re- moved from the custody of the Service or its employees by any person, or by any agent or representative of such person without the prior consent of the Director. We feel that labor and management and other interested parties must be assured that information which is given to Commissioners and other employees of the Service will not be disclosed, and the regulation goes on to classify the files, reports, letters, memorandums, et cetera, which are basically our case files. The Service does not classify all of the disputes information which it receives. Section 8(b) (3) of the Taft-Hartley Act requires the parties to collective bargaining agreements to file dispute notices with the Federal Mediation and Conciliation Service, and with comparable State agencies, not less than 30 days before the modification or termi- nation date of a collective bargaining agreement which has been opened for negotiation. Section 1401.4 provides that such dispute notices are not confidential. It states that interested parties "have the right"- and frequently do request-"to receive certified copies of any such notices of dispute upon written request to the regional director of the region in which the notice is filed." We believe that our effectiveness would be seriously jeopardized by passage of H.IR. 5012 in its present form. We believe that the special needs of the Service must be recognized, and that it must con- tinue to classify the reports and records described in the regulation quoted above. We do not believe that the Service has abused, or in- deed, could abuse, the classification of "confidential" by keeping such case records, reports, and files from the general public-including competing parties in a labor dispute subject to FMOS jurisdiction. PAGENO="0049" F1CD~RAL PUBLIC REC0I~DS L~W 41 As stated earlier, we have no coercive power. Until the passage of the Civil Rights Act, the Mediation Service and the N~ttional Media~~ tion Board performed a unique service in a unique way. Since w& have no power to compel, the Service issues no rulings or decisions.. We "proffer" our services-nothing more~ The parties which accept them expect our agents to function with discretion. The parties which reject them conduct their own negotiations without our assistance. We may disagree with their rejection, we may try to persuade them to change their minds, we may let it be known that the offer to help will remain outstanding until the dispute is settled. We do not meet in secret to consider ex parte evidence or investigative reports, and to order somebody to do something on the basis of information which is then classified confidential. Several weeks ago the committee's staff asked the Service to consider whether the exception set forth in section 161 (c) (4) of the proposed bill would protect its confidential records and files. We answered on March 23, 1965, that in our opinion subsection (4) would not give us the protection we need. Subsection 161(c) (4) of the proposed legislation would except from the public inspection requirement "trade secrets and other information obtained from the public and customarily privileged or confidential." Thit~ exception is taken verbatim from S. 1666, which passed the Senate during the last session. On its face, the exception does not apply to the bulk of the information which comes to mediators in the perform- ance of their duties. There are situations in which an employer who does not wish to plead poverty at the bargaining table for fear of having to reveal financial records under current National Labor Relations Board decisions will give the mediator confidential competi- tive information or financial information to explain an adamant posi- tion. Such information might be considered a "trade `secret"-but information of this sort is an exception to the general rule, so far as our agency is concerned. The information which we seek to protect concerns bargaining strategy and tactics, proposals and counterpro- posals, personalities, and methods of the negotiators, and similar mat- ters which do not fit neatly within the category protected by exception (4). We have studied Senate Report 1219, which accompanied S. 166 (S. R. 1219, July 22, 1964). According to the report, exception (4)- is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries', but which would customarily not be released to the, public by the person from whom it was obtained. This would include business sales statistics, inventories, customer lists, and manufacturing processes. It would also include information cuSto- marily subject to the doctor-patient, lawyer-client and other such privileges. To the extent that the Information is not covered by this or other exceptions', It would be available to public inspection. Mediators do not obtain information by "questionnaire or inquiry." Most of the information obtained by mediators is obtained at the bargaining table, or in give-and-take sessions with the parties, sepa- rately or together. The Senate report also shows a congressional intent to protect infor- mation normally subject to such traditional privileges as the docto'r~ patient or lawyer-client privilege. 45-213-65-pt. 1-4 PAGENO="0050" 42 FEDERAL PUBLIC RECORDS LAW We do not feel that the mediator-party privilege stands on the same legal or historical foundation as those of the doctor-patient or attor- ney-client relationships.The art of mediation, as practiced by the Service, is relatively new. It is a product of our industrial society. But within our limited field of operations, we think a mediator-party privilege is as important as the ancient and honorable privileges ex- tended by common law to the doctor, the lawyer, or the clergyman. Unfortunately, we do not believe that the statement of legislative intent in Senate Report 1219 is sufficiently clear to protect this new privilege any more than it would protect a newspaper reporter-source privilege, which is also a product of relatively modern times. In order to clarify the status of information obtained by mediators in the performance of their duties, we have proposed, in our letter of March 23, 1965, that exception (4) be changed to read as follows: Trade secrets and other information obtained from the public and customarily privileged or confidentiar, or information acquired during mediation or concili- ation of labor disputes. (Italic indicated new material.) We would like to see the bill make this explicit so that nothing will be left to interpretation and the need to consult the legislative history. Nevertheless, we also recognize that the committee may have reasons for not wishing to change the language of the proposed bill. If the committee decides to report the bill with exception (4) in its present form: we ask it to give the most serious consideration to insertion of appropriate language in the committee report which will make it abundantly clear that the present exception is intended to be broad enough to give Mediation Service files and records the protection neces- sary to enable us to fulfill the congressional mandate that we provide full and adequate governmental facilities for conciliation and media- tion in cofleetive bargaining disputes. Accordingly, we have sug- gested that the following language be incorporated in the legislative history at an appropriate place: The exception would also include information given to Federal mediators in the regular performance of their duties in mediating and concilating labor disputes. In conclusion, let me thank you again for the privilege of present- ing the views of the Federal Mediation and Conciliation Service on this important piece of legislation. Now, if there are any questions, Mr. Seldin and I will be happy to answer them to the best of our ability. Mr. MONAGAN. Thank you very much, Mr. Herrick. It seems to me that we have three areas that we are potentially deal- ing with here. First of all, we have the area that exists while a dis- pute is actively going on, and it would seem to me that there would not be much question about the fact that communications of the sort that you mentioned should be kept protected at that time. Now then, you move into another area; the area, as you say-the first would be negotiation, the second would be litigation or arbitra- tion; in other words, a formal proceding that would be subsequent to negotiation but immediately connected with it. It is your position, I take it, that there is or should be a privilege comparable to the lawyer-client or husband-wife or the other accepted privileges; is that so? PAGENO="0051" FEDERAL PUBLIC RECORDS LAW 43 Mr. HE1UIICK. Yes, sir. The problem is that our agency is one which, in essence, must be accepted by the parties, by both parties. In other words, we cannot and never have tried to compel parties who do not want to use our services to accept them, although there is some language in the statute that suggests that if necessary this might be done by obtaining a court order. There is "shall meet with the Mediation Service" language in the statute-nevertheless, this has never been used; never been tested; and, as a practical matter, negotia- tion taking place under those circumstances would probably be pretty futile. We do feel that even after a contract is settled and, possibly, there is some subsequent litigation before the NLRB, no mediator could possibly testify in a proceeding of that sort without completely de- stroying his acceptability to the person whose interests were damaged by his testimony. Mr. MONAGAN. Well, all right. That is the second situation where there is still some activity going on. What about the case where final settlement which has been made through negotiation or through litigation, and the file has been closed insofar as its activity is concerned? What is your position on com- munications of that sort after that point? Mr. HERRICK. Well, two things, Mr. Chairman: First, a bargaining relationship between two parties is really never closed unless the union is decertified or the employer goes out of business. In other words, even after a contract is completed there is a continuing relationship during the life of the contract, through the grievance procedure, and so on. So that the contract eventually comes up again, and the chances are that the same mediator will be back if a dispute seems imminent; again trying to produce a settlement 1 year or 2 years or 3 years later. So that, if the frequently very candid observations and comments which he has put into the file as part of the process that I have described earlier were to be released to the parties 2 years later, we still feel that this would jeopardize the mediators acceptability. Mr. MONAGAN. You feel that it is indefinite in time, in other words? Mr. HERRICK. They all keep going on and on, except where the com- pany goes out of business or a particular plant is closed or a union is decertified. It seems only yesterday that- Mr. SELDIN. May I add a point on that? One of the activities we engage in is what we call our preventive mediation program. Fre- quently in a situation where relations are pretty bad between parties both subsequent to contract negotiations, the same mediator usually will endeavor to work with the parties to see if he can somehow create a better climate. Now, this would be somewhat poisoned if some of his records indicating his real opinion of the parties at the time of negotiations were public. Mr. MONAGAN. All right. What about the scope of the privilege? In this classification under section 1401.3 on page 8. This says- All files, reports, letters, memorandums, minutes, documents, or other papers are hereby declared to be confidential. In other words, that is a very broad, it is practically a blanket classi- fication. Are there any limitations on thfit? PAGENO="0052" 44 FEDERAL PUBLIC RECORDS LAW Mr. HEERICK. Well, about all we have in the way of flies and records relate either to the internal administration of the Mediation Service or to actual disputes. That is, that certainly is, there's no getting away from it, a broad statement. Mr. MONAGAN. Even in the traditional privileges that are generally accepted there are certain limitations such as that the communication has to be made for the purpose for which the privilege was created, and that the relationship must exist, and so forth. Mr. HERRICK. This really has two parts, of course. Obviously, the classic common law privilege would not extend to a statement made by the union in the presence of a company. Mr. MONAGAN. Yes. Mr. HERRICK. So that you cannot really call that a privilege. Mr. MONAGAN. It has to be confidential, to begin with. Mr. HERRICK. That is correct. Mr. MONAGAN. That is, it is intended to be. Mr. HERRICK. Yes; but the problem that we have also involves this problem of maintaining our impartiality, so that if the mediator has to come in-well, let me give you an example. Frequently in an unfair labor practice proceeding there is a dispute between the charging party and the respondent as to who said what during a particular stage of the negotiations. How was a certain offer phrased, and so on. If the mediator can be subpenaed and brought in to testify about that, the chances are he is going to support one side or the other. It is hard to see where there is a conflict in testimony, how a mediator, testifying honestly, could avoid supporting one side or the other in this. So that it is more than just a privilege. It is a need to keep the mediator and to keep the Mediation Service away from any semblance of having taken sides as to the merits of a dispute of that sort. We try very hard to strike a fine balance between being impartial but, at the same time, getting these very candid appraisals of what is going on in the negotiation, predictions as to what is going to hap- pen, and so on. Mr. MONAGAN. You have indicated that there is a balancing of the interests involved in arriving at your judgment. Would you say that the extent of the privilege might depend upon the degree of pub- lic interest that in a particular situation was involved in whatever the statement was? It is a little hard for me to think up specific instances where this might be true. But let us say in a criminal cas~ with a subpena, you referred to subpenas, let us say there might be a declaration that an individual was a member of the Communist Party or something like that, where that might be relevant to the criminal prosecution. It would seem to me that you would have same difficulty in per- suading a court not to permit evidence of that sort to be admitted. Mr. HEmUCK. I agree. I think we probably would have some dif- ficulty. I think we would try-I am happy to say that all of the cases that I am familiar with have not involved anything quite of that nature. Mr. MONAGAN. I am trying to think of an extreme case just to test the extent of your position. PAGENO="0053" FEDERAL PtBLIC RECORDS LAW 45 Mr. HERRICK. If a murder were committed at the bargaining table, for example, a mediator might be a very important witness. Our regulations do permit the Director of the Service to give mediators permission to testify, and I think that we would, as we always do, approach these things on a case-to-case basis. But I cannot- Mr. MONAGAN. Well, the difficulty is that the application of the standard rests with the executive agency, and I think what we are trying to do is to consider some abstract standards that might apply fairly generally without reference to a more or less objective judg- ment by the agency that was involved. Mr. HERRICK. We are conscious of the problem. I think the example of the murder at the bargaining table is one that I hope will never happen. Mayhem is usually more oral than that at the bargaining table. I might say, of course, that our judgment-it is not strictly accurate to say that our judgment is not subject to any kind of review. In any situation in which there is a subpena, let us say, before the Na- tional Labor Relations Board, there can be an effort made to enforce the subpena before a district judge, and, I suppose, this would be appealable to the court of appeals. Mr. MONAGAN. I was thinging more of making records available to a committee, for example, rather than through subpena. Mr. HERRICK. I cannot say; as far as I know we have never been asked for records by any congressional committee, except in that one instance that I gave which was many years ago. I do not know, I :am just not familiar with any other illustrations of that. Mr. MONAGAN. I want to compliment you on your statement and particularly on making a suggestion both as to language by which the bill might be amended, and also in the alternative language that mightbe used in the report. I am not sure that your recommendations will be adopted, but it is a good practice and one that I want to compliment you on. Mr. GRIFFIN. Well, I want to join in that statement of conunenda-. tion. I think that it is an excellent statement, Mr. 1-Terrick. So far as I am concerned, I think the Service does an excellent job, and has high standing. It would seem to me that a murder at the collective-bargaining table would not be the type of confidential coin- munication that would normally be considered in a lawyer-client rela- tionship. I think there is that type of relationship that the mediator has with the parties to collective bargaining. Even though they might both be present, they are dealing jointly on a confidential basis within the room where the bargaining is taking place. I do not think that either party would expect that what they are saying within the confines of that room would be made public. If it were going to be made public, they might conduct themselves in a much different way and say different things. Mr. HERRICK. I think that is correct. I think, of course, one anal- ogy might be discussion of settlement efforts in an ordinary piece of litigation. Yet the fact that there is a give and take and an explora- tion of each other's minds is not something that would come into a subsequent litigation based on positions that are much harder and much further apart. PAGENO="0054" 46 FEDERAL PUBLIC RECORDS LAW Mr. GRIFFIN. I feel confident that some of the committee, if it does enact this legislation, would certainly implement your suggestion in someway to make sure that that is done. Mr. HEImIcK. Thank you very much. Mr. MONAGAN. Mr. Kass. Mr. KASS. Mr. Chairman, I have no questions, but I would like to insert the letter dated March 23, 1965. Mr. MONAGAN. If there is no objection, it will be inserted. (The document referred to follows:) FEDERAL MEDIATION AND CoNciliATioN SERVICE, Washington, D.C., March 23, 1965. Mr. BENNY L. KASS, Counsel, Foreign Operations and Government Information f~ubcommittee, Com- mittee on Government Operations, House of Representatives, Washington, D.C. DEAR MR. KASS: In accordance with our conversation of March 15, the Fed- eral Mediation and Conciliation Service has considered the problems presented l)y the proposed legislation which is now under consideration by Congressman Moss' subcommittee of the Government Operations Committee of the House of Representatives. We have carefully considered exception (4) in the proposed legislation which would except from the public inspection requirement "trade secrets and other Information obtained from the public and customarily privileged or confidential." In our view, this exception will not adequately protect the confidentiality of information obtained by Federal mediators during their performance of official duties. Exception (4) is taken verbatim from S. 1666, which was passed by the Senate at its last session. The exception is discussed in some detail at page 13 of Senate Report No. 1219, July 22, 1964. According to the report, the exception "is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was ob~ tamed. This would include business sales statistics, inventories, customer lists, and manufacturing processes. It would also include information customarily subject to the doctor-patient, lawyer-client, and other such privileges. To the extent that the information i~ not covered by this or other exceptions, It would be available to public inspection." [Italics added.] Information received by mediators is never obtained by questionnaires, such as those used by the Bureau of Labor Statistics in collection of Walsh-Healey data. Such information, indeed, is seldom obtained by "inquiry." It usually comes to the mediator in the form of proposals, counterproposals and other disk cus~ions by the parties before or with the mediator either together or in sep- arate sessions with one or another of the parties. Furthermore, the "privileges" \ referred to in the report are well established, and their origins precede by many years the development of labor mediation as we now know it. For these rea- sons, we do not believe that the proposed exception, even read in the light at S.R. 119, is broad enough to protect this agency's confidential case reports. To protect the confidentiality of these reports, we proposei the following change in the language of exception (4): trade secrets and other information obtained from the public and customarily privileged or confidential, or informatiea acquired during mediation or con- ciliation of labor disputes. [Italic indicates new material.] In the alternative, we would add to the legislative history of the exception, In an appropriate place, the following sentence: The exception would also include information given to Federal mediators in the regular performance of their duties in mediating and conciliating labor disputes. Mr. Abner and I will be available to discuss these proposals at your convenience. Sincerely yours, H. T. HEiiIiIOK, General Cosnsel. Mr. MONAGAN. Thank you very much. PAGENO="0055" FEDERAL PUBLIC RE~~0RDS LAW 47 Our next witness is Fred Smith, Acting General Counsel of the U.S. Treasury, accompanied by Mrs. Charlotte T. Lloyd, Chief of the Legal Opinion Section. Mr. Smith, you also have a prepared statement? Mr. SMITH. Yes, sir. Mr. MONAGAN. You may proceed. STATEMENT OF FRED BURTON SMITH, ACTING GENERAL COUNSEL, TREASURY DEPARTMENT; ACCOMPANIED BY MRS. CHARLOTTE T. LLOYD, CHIEF, LEGAL OPINION SECTION, TREASURY DEPART- MENT Mr. SMITH. I would like to read some of my statement, Mr. Chair- man, I may not read all of it. Mr. MOWAqAN. Well, suppose that we insert the entire statement in the record. That may be done if there is no objection, and then you summarize it and we will just use the statement unless there is some substantial variation. Mr. SMITH. Thank you. Mr. Chairman and members of the committee, I want to say, first, that I appreciate the opportunity that has been afforded to the Treas- ury Department to present its views on H.R. 5012 and the various related bills which are before the committee. The Treasury Department has a broad and continuing interest in problems relating to the disclosure of information to the public. We, therefore, are deeply concerned with the various identical bills now before your subcommittee, of which H.IR. 5012 is the first, described as legislation to establish a Federal public records law. This legisla- tion is intended to require every agency to make all its records promptly available to any person unless the records consist of matters which fall within eight specific exemptions. My Department agrees wholeheartedly with the objectives of pro- viding the fullest possible information to the public. It has sought to realize this objective in its long dealings with the American public in its many areas of operations. The Department does business with literally millions of citizens through the collection of taxes, the man- agement of customs, the issuance of public securities, the disburse- ments of large sums of money, and the provision of safe1~y regulations for navigation, to name only a few of the many areas Of contact be- tween the Treasury and the citizens. We have received almost no com- plaints of insufficient knowledge by the public of matters with which they are concerned. The record of compliance by the various offices and bureaus of the Department with section 3 of the Administrative Procedure Act, providing for the publication and availability of in- formation, which was recently submitted to your subcommitte, indi- cates, I believe, that a great wealth of information has been published and made available to the public as a whole and to persons immediately concerned. I should like to state at the outset that it is our sincere belief that problems in the area of public disclosure do not stem from an in- adequacy of the existing laws on the subject, but from occasional mis- applications, or failures in implementation, of such laws. In gen- eral, I believe that this administration has a very good record in mak- PAGENO="0056" 48 FEDERAL PUBLIC RECORDS LAW ing information available to the public and that the existing provisions of the Administrative Procedure Act on publication of information constitute about as good a standard as can be devised for this purpose. It is for this reason, and because after earnest study we find that H.R. 5012 and the related bills would be seriously prej~udicial to the effective conduct of the Government and damaging to many private individuals, that we have felt compelled to report to your suboom- *mittee that we are opposed to their enactment. We believe that we can demonstrate to the subcommittee that if legislation is passed which requires all Government records, with a few noted exceptions, to be made available to any person, the executive branch will be unable to execute effectively many of the laws designed to protect the public and will be unable to prevent invasions of the privacy of individuals whose records have becomA Government records. I would ljke to develop this under four headings, the first of which relates to the requirement that disclosure be made to persons who do not have a legitimate interest in a matter; (2) the inadequacies of the exemptions; (3) the inappropriateness of the court provisions; and (4) the doubtful constitutionality of the legislation. (1) Requirement that disclosure be made to persons who do not have a legitimate interest in the matter. A statute which requires that records be made available to "any per~ son" must be tested quite literally by considering who "any person" might be. Prof. Kenneth Culp Davis, author of the authoritative text, "Administrative Law Treatise," dramatized this point to the Senate Subcommittee on Administrative Practice and Procedure when it was considering similar legislation last summer by citing as an ex- ample of what would be possible under a provision such as that con- tained in this bill, that high school children playing games would be enabled to require all of the White House records to be made available to them, minus those in the exc~eptions. Another example he cited was the possibility of a deranged person requiring the records of the Justice Department concerning judicial appointments. While these are pos- sibly extreme examples, it is not hard to point to other types of per- sons who could, and in large numbers undoubtedly would, demand `quantities of records to further their own malicious, illegal, or med- dling purposes. The purposes behind demands might or might not be known to ~he agencies, but in any case would, seem to be irrelevant under the legislation. We feel compelling such demands to be met would not only serve no useful purpose but would put the agencies involved under a legislative mandate to waste their time. Legislation such as that proposed would encourage irresponsible demands. In this connection we should like to emphasize the difference between making information on Government operations available to the public and a requirement that all records must be promptly available to "any person." In our opinion, section 3 of the Administrative Procedure Act makes an appropriate distinction between the right of the public to information which must be published or made generally available and the right of any single individual to demand the disclosure of non- public Government records for his personal benefit. In the latter case, the Government is now required to honor such a demand if the person lodging it is a person properly and directly concerned with the in- PAGENO="0057" FEE~ERAL PUBLIC RECORDS LAW 49 formation sought. The subcommittee, therefore~ is urged to consider the problem from two perspectives: First, what information should be made generally available to the public as a whole, and, secondly, what should be the ground rules by which any single person can de- mand entry into Government files. We have observed that advocates of legislation similar to that under consideration usually speak of the right to obtain Government records in terms of the right of a person who has business with an agency to get certain information, or of a newsman requesting greater liberality on behalf of the press. Inter- ests like these have a different claim upon Government inforinatioA than have, say, local gossips interested in finding out personal informa- tion about their neighbors. Next I would like to refer to what we feel are inadequacies in the exemptions listed in the bill. I believe the exemptions should be tested to insure that they are adequate to safeguard Government records, the protection of which is required to insure the public interest in the enforcement of law and legitimate individual privacy. A recent example is the public interest in questions relating to the future of our coinage-Mr. Chairman, I was just citing a recent ex- ample with which I have been concerned which is the public interest in questions relating to the future of our coinage, and whether it will continue to contain silver. In a very short while the Treasury Department will be sending to the Congress the results of a comprehensive study of all aspects of this problem which has been underway for many months, together with such recommendations for new coinage legislation as are deemed appropriate. Under the provisions of JIB. 5012 much of the data that has been compiled in this study-statistics, the results of the test- ing of various possible alloys for our coins, et cetera-would have had to be made available upon request to any persons inquiring. Any person interested in speculating on what might happen to the price of silver or other metals could obtain access to this data. Misuse of the information or misinterpretation of such information as to what the Treasury's recommendations were likely to be could have greatly ag- gravated the problem of the shortage of coins, which we have rather successfully overcome, by stimulating the hoarding of such coins or silver, for example. We think that it is obvious that it was not in the public interest to make premature disclosure of this information. Ah though H.R. 5012 contains an exemption from the disclosure require- ments for intra-agency memorandums dealing solely with matters of law and policy, the factual material I have mentioned would not have been protected. I might interpolate at this point another example or two which I do not have in my statement. Information as to purchases by the Federa.l I~eserve System, for example, of Government securities in the market, if prematurely disclosed could have, we feel, serious effects on the orderly handling of the Government's financing requirements so that in all of these things there is a question of timing. There are many things on which full disclosure is made in reports which are published or filed with the Congress with a timelag, there is no basic secrecy about these matters, and yet the premature release of these could be very damaging to the general interest. PAGENO="0058" 50 FEDERAL PIJI3LIC RECORDS LAW Mr. Moss (presiding). Let me ask you this: is this information presently protected by a rule or regulation promulgated under the authority of the Administrative Procedure Act or under 5 U.S.C. 22? Mr. SMITH. I believe so; yes, sir. Our basic regulations for the Department as a whole and our subsidiary regulations for various portions of the Department, specify certain documents which are readily available, and then specify that certain others are deemed confidential for various reasons, and I would think that those exam- ples that I have mentioned would come within the specifications. Mr. Moss. Now, the examples you mentioned, let us go back to this matter of the coinage problem and ask whether information relating to coins or coinage is specifically protected by a rule or regulation of the Department of the Treasury? You have, under 5 U.S.C. 22 the authority to make rules and regulations for the custody, use and pres- ervation of your records. Under section 3, is it not, of the Admin- istrative Procedure Act you have a right to make rules and regulations on the information to be made available, do you not? Mr. SMITH. Would you care to have me read the basic provision in our regulations, sir, that I think relates to this? Mr. Moss. Yes. Mr. SMITH. This is entitled-. CONFIDENTIAL On?ICIAL RECORDS For one or more of the following good causes, certain information in the offi- cial records of the bureaus, divisions, and offices enumerated above is held con fidential and is not available to the public: (1) `The information has been submitted in confidence to the Treasury De- partment; (2) The Information relates to a financial matter or some other type of trans- action between the Government and an individual or corporation, the disclosure of which would be prejudicial to the individual or corporation involved (such as by aiding a competitor) without furthering the public interest; (3) For security reasons, such as protection against counterfeiting; (4) The information pertains to negotiations with foreign countries, which information, because of its nature or because of an agreement between this Gov- ernment and the foreign countries concerned, is required to be held confidential; (5) The material is made confidential by law, such as tax returns; or and I think this is the one that applies, although some of the others might have- (6) The disclosure of the information would clearly be inimical to the public interest. Mr. RUMSFELD. Mr. Chairman, may I ask a question? Mr. Moss. Certainly you may. Mr. RUMSFELD. Your first point, I think, was that it was submitted in confidence to the Treasury Department? In other words, the supplier of the information deteripines the clas- sification, secrecy classification, of it? If the person says, `~I am giv- ing you something in confidence," then it automatically fails within this provision, is that what you are saying? Mr. SMITH. Yes, largely. This relates, of course, to voluntary in- formation, not information that they are required t.o submit to us. I will give you an example. In our program which was recently announced to help our balance of payments the banks and other financial institutions were requested by the President to cooperate voluntarily; we have an elaborate questionnaire as to their foreign PAGENO="0059" FEDERAL PUBLIC RECORDS LAV7 51 lending activities, in which we have asked them on a purely voluntar- ily basis to tell us periodically, every 3 months about their foreign lendings and we have told them that this will be received in con- fidence and held in confidence. Obviously, there is information in these detailed questionnaires which would be of great value to competitors, and so forth, and we honor that confidence. This is the type of thing to which this refers, I believe. Of course, where somebody is required by regulation to submit some- thing, then we are the determinant as to whether it can be submitted ~on such a confidential basis. Mr. RuMs~u. Thank you. Mr. Moss. You may continue. Mr. SMITH. A matter of great consequence to the public interest is the integrity of the Nation's currency. Under the bills before you, any counterfeiter could obtain the records of how the ink and paper are prepared for the production of currency. Only trade secrets ob- tained from the public may be withheld under exemption (4), not those which are derived from the work of a Government agency, such as our Bureau of Engraving and Printing. Further examples could be given. Exemption (1), the most important of the eight, relates to the necessity of protecting national defense secrets from disclosure. The phrase "national defense" might be interpreted by a district court ~r by others as applying only to traditionally military concepts. In the modern world, however, the total commitment of our resources to national defense makes such a definition patently too narrow. The stability of our monetary arrangements, for which the Treasury bears heavy responsibility, may be as crucial a weapon in our defense as a military weapon, we believe, and I am glad to~say we have a positive suggestion to make here. The term "national security" would enable i~ court more easily to weigh these considerations and therefore would provide more adequate coverage. I should like now to refer briefly to the problem of the disclosure of records which pertain to private corporations and individuals. Mr. Moss. On this matter of national security, do you classify under Executive Order 10501? Mr. SMITH. The Treasury Depart ment? Mr. Moss. Yes. Mr. SMITH. Yes, indeed. Mr. Moss. Doesn't the Executive order itself use the term "national defense" rather than "national security"? Do we have a copy of the Executive order? Mr. SMITH. I think we have one here, if you will bear with me for just a minute. I am not sure whether we do or not. I think I have it, sir, if you will just bear with me a minute. No, sir, I am sorry. All I have is the Treasury Department order which was issued under it. I thought I did. Mr. Moss. Do we have a copy of the Executive order available here in the committee room? Mr. SMITH. The title, I have referenc1e to the title here in our regula- tions, and as far as the title is concerned it says "Safeguarding officlal information in the interests of the defense of the United States." PAGENO="0060" 52 FEDERAL PUBLIC RECORDS LAW So the title does say "In the interests of defense of the United States." Mr. Moss. I believe the order is consistent throughout in using the term "defense" and the language of the proposal here before us spe- cifically required by the Executive order to be kept secret in the interest of national defense or foreign policy. Now, if that is using the term of the Executive order which gives the authority for classification, then what do you gain by using "secu- rity" rather than "defense"? Mr. SMITH. Well, sir, the term commonly used within the executive branch, at least in talking about these things, is "national security." It is possible, I believe, that if it were made clear in the legislative history that the scope of the term "national defense and foreign policy" as used in this bill were as broad as the presently understood breadth of the area in which we could, for example, classify things under the Executive order, it is possible- Mr. Moss. Can you now classify matters relating to monetary policy? Mr. SMITH. On some of our international monetary negotiations and major transactions we do; yes, sir. Mr. Moss. Do you then classify under the authority given you by Executive Order 10501? Mr. SMITH. I believe so, because I believe that is- Mr. Moss. This was intended to specifically recognize that Execu- tive order. Mr. SMrm. Yes. Mr. Moss. The No. 1 exemption. We will pass on to that later~ when we get it. You may continue. Mr. SMITH. If I can, make one further comment on that, Mr. Chair- man, it seems to me that there could be some domestic matters which were of such major consequence to the welfare and continuance of the Nation which might not relate to any foreign threat, but could still be and might need to be privileged. I am thinking in terms of the thirties when we had the bank failures and everything else, and the President started off each Executive order "I hereby declare the exist- ence of a national emergency," and, in fact, used authority in th& Trading With the Enemy Act. So far as I know, there was no outside threat or there was nor need to worry about the defense of the United States from foreign sources, and yet the economic future of the country was certainly at stake there. We had thought that the term "national security" would be broader, but I would say that as long as the legislative history- Mr. Moss. I do not disagree that it would not be broader; but the question is whether you rely upon Executive Order 10501 as the au- thority for classifying such information. If you do, then it seems to' me that the language of this order determines whether or not you classify for defense or for security. Just looking at the order-I now have a copy here-I find in each instance it uses "defense" not "Se- curity." And, therefore, you are classifying-whatever this might say, you would be classifying for defense. PAGENO="0061" FEDERAL PUBLIC RECORDS LAW 53 Mr. SMITH. I would like to make one thing clear. I stated in an- ~swer to your question that certain international monetary activities of sours are classified under 10501 with a security classification. But there are a lot of other operations in that area that we feel are very delicate and that should not be given out, at least at the time they take place, which are not given a security classification, but which, neverthe- less, are not made available to the public. In other words, these would be in the area where we would consider it contrary to the public in- terest to make them available. Mr. Moss. How many of those are covered by specific statute? You have some 78 statutes available. Mr. SMITH. Yes, indeed. I know of none, sir, that cover these in- ternational monetary activities of ours, if that is what you are re- ferring to. Mr. Moss. Let us find that out. Mr. RUMSFELD. If I might ask a question while you are lookmg ~for it. Mr. Moss. You may. Mr. RUMSPELD. I happened to see an article by Jack Anderson in the Washington Post of Tuesday, March 30, about the availability of individual income tax returns "for the most frivolous reasons with a minimum of ceremony. Snoopers from a long list of Federal, State, and local agencies cain pry into almost anyone's financial secrets in the Internal Revenue Office." You made a point earlier in your remarks to the effect that these tax returns were classified, referring to the public. Is this article which you indicated you apparently read- Mr. SMITH. Yes, I did. Mr. RnMSFELD (continuing). Reasonably accurate? Mr. SMITH. I think it is a very inaccurate--- Mr. RUMSFELD. They are very much available to anyone in Govern- ment? Mr. SMITH. No, indeed. I think it is a very inaccurate article, and I would say that this is a vital area to us in the maintenance of tax- payer confidence, that the impression not be given that income tax and other tax return information is readily available to the public. The facts are that- Mr. RUMSFELD. I was referring to the column, his column, his ar- ticle, which indicated that these various returns were available to any number of people in the Agriculture Department or the Veterans' Administration, and he goes on to list the Civil Rights Commission, Housing and Home Finance Agency, every conceivable department or agency of the Government he indicated has access to this information. Mr. SMITH. Well- Mr. RUMSFELD. I am not referring to the public now. Mr. SMITH. Right. Mr. RUMSFELD. Although that amounts to the public when you add up all the Federal employees in the United States, you are approxi- mating it, at any rate. Mr. SMITH. I would like to say this, that a number of those that are mentioned do not have access to- Mr. RUMSFELD. In other words, you are saying his article is wrong? PAGENO="0062" 54 FEDERAL PUBLIC RECORDS LAW Mr. SMITH. It is wrong in a number of respects. Now, there are certain departments and agencies of the Government which, pursuant to carefully prescribed regulations, may obtain tax-return information for specific purposes. For instance, the Department of Health, Education, and Welfare, which administers the social security laws, has a legitimate right in connection with matters relating to unemployment insurance, for ex- ample, to check on whether information given to them as to a man's income is accurate. HEW does have that. Mr. RUMSFELD. What about the Justice Department? Mr. SMITH. The Justice Department has access, of course, in con- nection with its investigation and prosecution of crimes against the United States. But those- Mr. RUMSFELD. Let me ask you this, mechanically when an individ- ual from the Civil Rights Commission or Civil Service Commission or HEW decides that they want to have some information on a specific individual income tax return, you say that the regulations are care- fully prescribed. My question is how are they enfotced, what does he do? Mr. SMITH. The head of the department or agency, to begin with, has to request it. It cannot be just any old employee. It has to be the head of the department or agency, and he has to state the reason why he wants it, and then the furnishing of tax return information has to be approved by the Commissioner of Intern~l~ Revenue or by the Secretary of the Treasury. Mr. RUMSFELD. You are stating that is the general rule. What are the exceptions to that? Does a U.S. attorney have to state the reason hewantsit? Mr. SMITH. I will have to check the provision on the U.S. attorney. Mr. RUMSFELD. But there are exceptions to this general rule you just articulated? Mr. SMITH. I am not sure there are. Yes. U.S. attorneys may request, and the application, to be in writing, shall show the name and address of the person for whom the return is made, the kind of tax reported on the return, the taxable period, the reason why the inspection is desired. The application shall, where the inspection~. is to be made by a U.S. attorney, be signed by such attorney, and where N the inspection is to be made by an attorney of the Department of Justice, be signed by the Attorney General, the Deputy Attorney General, or an Assistant Attorney General. It has to be addressed to the Commissioner of Internal Revenue, and then there is- Mr. RUMSFELD. You must just have volumes and volumes of files where you keep these requests. Does it go down below to the Assistant Attorney General in that regulation? Mr. SMITH. No. Mr. RUMSFELD. I mean it must take rooms to house the files for all these requests. Mr. SMITH. Well, sir, it certainly takes rooms to keep all of our taxpayer's files. Mr. RUMSPELD. No; I mean just to file these forms that HEW has to make out to go and look at one. PAGENO="0063" FEDERAL PUBLIC RECORDS LAW 55 Mr. SMITH. Well, I do not think the requests to look at these are all that numerous. I do not happen to know how many there are. We have a small section of the people in the Internal Revenue Service who handle these requests. Mr. RUMSFELD. I do not want to pursue this, it is a little off the track, and I think the information that the chairman was seeking has arrived. But I would personally be curious to know how many people are involved in processing such requests and what the average number has been in the last year or two. Mr. SMITH. Well, I will be happy to supply that. I just do not happen to know it. Mr. RUMSPELD. I do not think it is necessary for the record, but if you would like it for the record- Mr. Moss. Supply it for the subcommittee. Mr. SMITH. I would be glad to. Mr. RUMSFELD. Fine. Thank you. Mr. Moss. If you would continue with your statement, you may. Mr. SMITH. I was about to refer to the problem of the disclosure of records which pertain to private corporations and individuals. Government records necessarily include much information on the business and personal lives of millions of individuals. The problem of disclosure has often been before the courts on the plea of private persons seeking to prevent Government disclosure of information con- cerning them. At the present time, another committee of the Con- gress is now intensively studying the question of possible invasions of privacy by the Government. It should be recognized that a great deal of undetected discovery of personal information by third parties having no legitimate claim for access to it would be possible if "any person" could obtain Government records concerning other persons unless those records came within exemption (4) or (6). Therefore, the scope of these exemptions becomes crucial. Exemption (4) is a most necessary one, this is the trade secrets one, but it is not clear whether it is broad enough to include both information submitted to the Government under a pledge of con- fidentiality and information which is tendered to the Government in confidence. There are established rules of evidence as to what infor- mation need not be submitted in court because it is "privileged." It is not clear whether the reference to information which is "privileged" in exemption (4) is restricted to such rules of evidence. The Treasury Department would like to be certain that the mass of personal inf or- mation it holds in the files of the Internal Revenue Service, the Bureau of Customs, and the Bureau of the Public Debt, for example, would be exempted under this section. I will cite you an example. Supposing somebody, just as a matter of curiosity, wants to know the extent of a neighbor's purchases of Government bonds, and we have records of all the Government bonds held in the names of any given person. This type of information is not submitted to us in confidence under any pledge of confidentiality. It is not,informa- tion that is obtained from persons, so it is not covered by this-let's see, which one is it-it is not obtained from the public, so it is not under (4), at least it does not seem to be, and yet we do not feel that this is the kind of information that ought to be just given out to any- body that wants it for any purpose. PAGENO="0064" ~56 FEDERAL PUBLIC RECORDS LAW Exemption (6) for "personal and medical files and similar matters, the disclosure of which would constitute a clearly unwarranted in- vasion of personal privacy," is even less clear. We wonder whether the reference to "similar matters" would include matters disclosed to the Treasury concerning persons who are not Government employees but are applicants for some privilege. These applicants might be seeking a foreign assets control license, t~n alcohol or tobacco license, merchant marine certificates, or authorization to practice as custom- house brokers. It is hoped that matters concerning them given to the Treasury would be as exempt from disclosure to any person as would be the personnel files of Treast~ry employees. A greater ambiguity is presented by the proposed test for preventing disclosure; namely, "a clearly unwarranted invasion of personal pri- vacy." An invasion of personal privacy is now a recognized tort whenever the invasion is unwarranted. An invasion of privacy is unwarranted, according to modern law, when the public interest does not warrant the invasion. The test proposed in the statute would there- fore appear to divide unwarranted and those which are unwarranted but not clearly so. We are of the view that no unwarranted invasion of privacy is justified and doubt the propriety of attempting to legitimatize it. $ Next I would like to speak about what we feel is the inappropriate- ness of the court provisions. The provisions in subsection (b) for district court action in the event of nondisclosure of Government records give extraordinary advantages in litigation to any person who may want to see Government records regardless of the propriety of his demand. The provisions, in our opinion, depart from the prin- ciples of fairness which characterize the judicial process and would deprive the Government of the benefit of many usual rules of judicial procedure. In the first place, any disappointed person is given standing to sue an administrative agency without question, simply upon his complaint that he did not receive all of the records and files ~vhich he had de- manded. Persons who are dissatisfied with other types of agency ac- tion or inaction are entitled to seek judicial relief if they have suffered legal wrong because of the agency action or have been adversely affected or aggrieved by such action within the meaning of any rele- vant statute. We believe that persons who are disappointed in obtain- ing Government records and files should be provided with a judicial remedy only if they have thereby been wronged or adversely affected. In civil litigation the plaintiff has the burden of showing that he is entitled to relief and~ if he does not make this showing, his com- plaint may be dismissed. Tinder the proposed legislation the com- plainant has no obligation to show any reason for obtaining Govern- ment records or any need for such records, he simply complains that the Government has not given him what he demanded. The pro- priety of his claim, no matter how contrary to the public interest it might be,~ apparently must be disregarded by the court. This seems to us not only an arbitrary limitation on the judicial process but one which may cause a heavy and unnecessary burden on the judiciary as well as upon those in the executive branch who must defend these çouifl actiQxn3. Furthermore, Congress has provided that certain court actions are to be given precedence over other litigation ~n unusual cases which PAGENO="0065" FEDERAL PUBLIC RECORDS LAW 57 are of general public importance. The proposed legislation would provide precedence over all such expedited actions as well as over regular court a~c~ions for the demands of random individuals, regard- less of the public interest in the satisfadtion of their demands. My testimony has already indicated the types of mischievous and danger- ous demands which the Government may be called upon to honor. Sub- section (b) would make the judiciary, in addition to the executive, the victim of such demands. Under the discovery rule-34---of the Federal Rules of Civil Pro- cedure a litigant must show "good cause" for o'b;taining documeiits from the adverse party. However, since the proposed subsection (b) would open `to any plaintiff or defendant in Government litigation Government records to the extent demanded-unless within the eight exceptions-~the discovery rule is nullified insofar as the Government is concerned. The adverse party, however, remains protected by that rule. Furthermore, subsection (b) does not allow for the protection for privileged documents permitted under the Rules of Civil Pro- cedure and under 18 U.S.C. 3500 in criminal cases for delivery `of Government documents to the court in camera and, if the court ~1nds necessary, sealed for appellate court review. Finally, it is questionable whether district courts should be invited to engage in a contest with `administrators and to punish for contempt any administrator with whose judgment the cour~s may disagree. If an agency has declined `a particular disclosure request, it would be doing so in conformity with its understanding of the law and regula- tions. The impropriety of a district judge imposing a contempt sen- tence and arrest upon an officer of an agency who is complying with the agency's regulations was pointed out by the circuit court in a `well- known decision reversing the district judge's contempt decision and upholding the officer's adherence to the agency rules. (Appeal of U.'S. Securities and Exchange Commission, 226 F. 2d 501 (6th Cir. 1955).) (4) The doubtful constitutionality of the legislation. Aside from the questions arising from the text of the proposed leg- islation, there is the basic question whether the legislation is con- stitutional. The President has the constitutional responsibility under article II to preserve the confidentiality of documents and information the disclosure of which would be contrary to the public interest in the faithful execution of the laws. The propo'sed legislation would remove this responsibility from the President and constitute an attempt to exercise it by the Congress. Such action by Congress would appear to violate the separation of powers which is basic to the Constitution. When 5 U.S.C. 22 was amended in 1958 with respect to Government in- formation, and here I am getting into a point in my prepared state- ment that you commented on this morning, and I may be inaccurate here, the Senate in its debate recognized the constitutional power of the President to withhold information the disclosure of which would be contrary to the public interest-104 Congressional Record, pages 15688-1 5689, 15696, 1958. 1 can oniy say on that, sir, I think you made it abundantly clear that you did not recognize it, and others- Mr. Moss. I think the House made it abundantly clear that the Houses did not recognize it. Mr: SMITH. I do know that upon signing the bill the President made it abundantly clear that he was standing for this position anyway. 45-213-65--pt. 1--S PAGENO="0066" 58 FEDERAL PUBLIC RECORDS LAW Mr. Moss. We had the unique instance of the President, in signin the bill, handing down an interpretation of the law and, as I pointe ~ out the day of the signing in a statement placed in the Congressional Record, it was still the role of the courts to determine what the Con- gress intended and what the law is. I would be perfectly willing to leave that to the courts. Mr. SMITH. I have in my statement cited some examples of dis- closure which would be required under the proposed bill which we be- lieve would be damaging either to the general public interest or to the private interests of many individuals. These have been cited out of a sincere desire to be of assistance to the subconimittee. Should the committee decide to recommend legislation in this area, I should cer- tainly hope that it would see fit to make amendments, particularly as to the scope of the eight exemptions, to deal with these problems. How- ever, I would not be honest with the committee if I did not express my conviction and that of the Treasury Department that no effort at leg- islation in this area will be beneficial unless it recognizes and contains express provision for the Executive to prohibit disclosure of informa- tion on grounds of the public interest. As I have pointed out, we believe this is a constitutional prerOgative of the Executive and one that he must be able to exercise. If this reservation to the Executive were to be incorporated in the bill, then I believe that it is possible that my suggestions might be of assistance to the committee in its further con- sideration of this legislation. Should it be the committee's conclusion, on the other hand, that this reservation should not be included in the legislation, then I am not sanguine about the possibility of its pre- paring a bill which my Department would find acceptable, because I don't believe that it is possible for the Congress or anyone else to conceive a bill that can adequately anticipate and specify all of the situations in which, to protect the public interest, the Government should be able to refuse to disclose information. I appreciate very much the opportunity which the subcommittee has given me to express the views of the Treasury Department. I would be glad to try to answer any questions that the committee may have. Mr. Moss. First, let me say that I regard the statement you have given as being more in keeping with what we anticipated than was the statement we received from the Attorney General's Office this morn- ing. We have attempted to deal with some of the areas of concern to you. I think that is appropriate, and certainly that is the reason we have hearings before these committees. On page 13 you state that- ( I would not be honest with the committee if I did not express my conviction and that of the Treasury Department that no effort at legislation in this area will be benefieiai unless it recognizes and contains express provision for the Executive to prohibit disclosure of information on grounds of the public interest. Are you saying that we should, in anything we might decide upon here in committee, recognize a constitutional right of the President to act contrary to the statute if he finds it in the public interest? Mr. SMITH. Well, sir, I think what I intended mainly there was to say that unless it incorporated what is, in effect, in section 3 of the Administrative Procedure Act at present, it would not be adequate. lit does not necessarily, I feel, have to be the same words, llut the equivalent of this provision in section 3 which reads: PAGENO="0067" FEDERAL PUBLIC RECORDS LAW 59 Except to the extent that there is involved (1) any function of the United States requiring secrecy in the public interest. I am not trying to say that anybody should really recognize any-~ thing. It is just we feel that it is essential- Mr. Moss. The word "recognize" is the word that disturbs me. Mr. SMITH. Yes. Mr. Moss. The additional language. Mr. SMITH. Well, I feel- Mr. Moss. Granting the right to prohibit disclosure on the grounds of the public interest is a different subject. Mr. SMITH. I think that is the essential feature. Mr. Moss. Who should make this decision? Mr. SMITH. I think that, in my opinion, and this is the way it works in the Treasury Department I know, that essentially it is the decision of the Secretary of the Treasury. Now, that does not mean that there are not others who refuse on a given occasion or in a specific instance to disclosure a particular mat- ter. But there can always be an appeal to the Secretary of the Treas- ury in the first place if they do not get it from the man in question and, secondly, the refusal is almost always based on policies which have previously been approved by the Secretary. So that I think that essentially and ultimately the head of the De- partment is the man who should make this determination. Mr. Moss. I would not be nearly as concerned if I could be convinced that that was the case. Going back over the years on occasion I have had great difficulty in getting a matter acted upon by the head of the Department. We have had some refusals referred to us, and they have been pretty well down the line. It has been very difficult to get the Department head to look at it. Mr. SMITH. Well, sir, all I can say is that I have been in the Treas- ury 22 years, and I- Mr. Moss. I am not saying we have had this problem with the Treasury. Mr. SMITH. Yes. Mr. Moss. Remember, we are not here considering problems arising only in connection with the operation of the Department of the Treas- ury. I think in the course of the past 10 years there have been suf- ficient reports in the press of instances uncovered by this committee to make it very clear that we are not just conjuring up something here. There have been problems, real problems, in an effort to overcome these problems that we are proposing an effective public records law. Mr. SMITH. I would be the last one to say that there were not cases where there was an illegitimate attempt to refuse to provide informa- tion either to the Congress or to members of the public. I will say this: that I think it has been my experience that there has been considerable improvement over when I first came to work in the Government. I came to work in wartime, 1943, and there was terrible overciassification, for example, in those days. People were busy and they had a good excuse-the war effort-for refusing to give anybody anything, and I think a lot of people in Government got into some very bad habits and forgot who they were working for; namely, the taxpayers, the citizens of the United States. But I really feel that as far as the dissemination of information is concerned, there has been great improvement. I certainly can see it in our own Department. PAGENO="0068" 60 FEDERAL PIJBLIC RECORDS LAW Mr. Moss. Yes; I think there have been improvements. This legis- lation here is proposed in an effort to bring about further improve- ments. Mr. RUM5FELD. Mr. Chairman, may I ask a question at this point? Mr. Moss. Certainly. Mr. RtJMSFELD. In your statement on page 13 it says- I don't believe it is possible for the Congress or anyone else to conceive a bill that can adequately anticipate and specify all of the situations in which to pro- tect the public interest the Government should be able to refuse to disclose information. This statement is a statement that is very similar to the one that was made this morning by a representative of the Justice Depart- ment, saying basically that this just cannot be done; the bill cannot be drafted that could solve the problem. It reminds me of discussions before other committees where a por- tion of the executive branch of the Government comes before the Congress and requests contingency funds and says, "We just cannot possibly detail every aspect of these problems and we request a con- tingency fund." Should the emphasis be on the words "anticipate in the future"? If we took out what might happen in the future, or types of information it might be desirable to refuse to disclose that we do not know about now, isn't it conceivable in your mind that some sort of bill could, in fact, be drafted to meet those instances that we today know of and that if some-I say this facetiously, some sort of a contingency fund for the future or some proviso whereby things that came up in the future that we were not aware of, could be worked out on some other basis during an interim period? Are you going to stand by this state- ment taking away the word "anticipate" and, therefore, the unknowns of the future, are you going to stand by the statement that a bill just plain cannot be drafted? Mr. SMrrii. WeU, I think mainly, I was referring to anticipate for the future. I would say this: that we probably could do a pretty good job of listing the things that we felt should be withheld at present in the public interest. I am not sure that- Mr. RUMSFELD. Everything is in the public interest; I mean, that is the only reason we are having this hearing. Mr. Sa~rrrn. Well, records should be withheld because it is not in the public interest or contrary to the public interest to disclose them. I am not sure that your committee would agree with our enumeration, but let me say this: that in this statement on page 13 I was not trying to say that necessarily nothing could be done by legislation in this area. I think, as Mr. Schlei said this morning, and I would agree with him, that if there was a reservation to the Executive so that he could exercise what has been called executive privilege, then it is con- ceivable that something might be gained by legislation which would carve out areas where Congress feels that disclosure should be made, although I must say that my own personal opinion is that, as I said at the beginning of my statement, the problems are not so much the law on the subject as the implementation of the law. I think if every department and agency of the Government would honestly and conscientiously adhere to what is in the Administrative PAGENO="0069" FEDERAL PUBLIC RECORDS LAW 61 Procedure Act now that there would not be too much of a problem, and I think that is more the problem than what the law says. Mr. EUM5FELD. You mention in your remarks this danger about nuisance requests or frivilous requests. Haven't we in the Govern- ment faced this problem in other areas, and isn't it conceivable that such a thing could be resolved by charges for the effort that would go into producing the document or the information-the cost to the Government of supplying this? You mentioned the high school student requesting voluminous information on White House records. You mentioned that, did you not? Mr. SMITH. Yes; I gave that as an example. Mr. RUMSFELD. I cannot conceive of a high school student if he is going to be charged for the amount of time that an employee is going to take and the paper and materials to supply the records, making such a frivolous request. Mr. SMITH. I certainly feel that some provision would have to be made for user charges for a lot of the area covered by H.R. 5012. Mr. RUMSFELD. I do, too. Mr. SMITH. Because I really believe, if the bill were enacted in its present form-and I have not emphasized this in my statement, and perhaps I should-there would be a tremendous additional burden placed on the Government, and we would have to hire a lot of people to handle these requests. Mr. RUMSFELD. I would personally feel that we should have user charges on that type of thing, and that the burden should be on the person who desires- Mr. SMITH. We get a lot of nuisance requests now. Mr. Moss, Would you yield at that point? Mr. RUMSFELD. Yes, sir. Mr. Moss. I think it has been clear from the very beginning of the work of this subcommittee, certainly it would be very clear in any re- port accompanying this legislation, commenting on the language on page 2, line 1: Bvery agency shall, in accordance with published rules stating the time, place, and procedure to be followed, make all its records promptly available to any person. Now, we certainly intend that this be reasonable, the Government not be put to any heavy costs or extra costs in compiling specialized information, that which is available conveniently. We are not ask- ing here that there be a requirement imposed upon the agencies and departments that they go in and compile exhaustive data for a person who might just be curious, and certainly the consideration of any appropriate charges is a matter this committee would not reject. The proposal here is advanced as a reasonable proposal by reason- able men to try to improve the availability of information to the American public, and for no other reason. I do not think any of the authors of the legislation is any less con- cerned over the need of this Government to operate in an orderly fashion than those in the executive department who are charged with the responsibility of operating it. Mr. SMITH. I am sure of that. Mr. Moss. I do not think we want to have information which would be prejudicial to the Government, to its security, whether it be fiscal or military, be made available to anybody. PAGENO="0070" 62 FEDERAL PUBLIC RECORDS LAW I just wanted to make that clear that we are not asking here that you marshal up an army of new clerks to start gathering information. Mr. RUMSFELD. I certainly did not mean to imply that your bill con- templated that because I also introduced the bill. Mr. Moss. Yes; I felt that the response indicated that it might have been contemplated, and that is why I wanted to make it clear. Mr. SMITH. I might make a point here, although it is not entirely relevant. We have a section of lawyers in the Internal Revenue Serv- ice called the Power of Attorney Section that has to examine powers of attorney of lawyers who claim to represent taxpayers. The necessity for this is because there are all kinds of people who come in and represent themselves and who state, "I represent John Doe, taxpayer, and I want to get copies of returns or I want to get information." In many of these cases these people who were just trying to get-didn't represent them, or previously did but no longer do, or something like that-but just trying to get personal information. This is why we have to have a very careful examination of the power of attorney of every lawyer who comes in and claims to represent `somebody to make sure he does. It is amazing how many people will try for one reason or another, business purposes, to find out who are good prospective customers, what their assets are or something, to get information that is available within the records of these Government agencies. So that I merely point this out to say that I may be wrong, but J think that if this bill were passed, there would be a tremendous flow of requests by people for information. Mr. GRIFFIN. Mr. Chairman, may I ask a question at this point? Mr. Moss. Certainly. Mr. GRIFFIN. Mr. Smith, in the Treasury Department you have regulations, I take it, determining what kind of information is avail- ~ible to whom, and how, and when, don't you? Mr. SMITH. Yes, we do. Mr. GRIFFIN. And yet the thrust of your statement, as I read it, is that it is impossible for Congress to lay down any guidelines for rules as to when and where in-formation should be made available? Let me say that I certainly do not advocate that income tax returns `should be made available to anybody or to the public generally. But you derive your powers in the Internal Revenue Service from laws passed by Congress? Mr. SMITH. Right. Mr. GRIFFIN. You would not have any record or any information to reveal if it were not for the laws that Congress passes? Mr. SMITH. That is right. Mr. GRIFFIN. And why can't we, in passing those laws, also deter- mine who, when, and how the information that is accumulated under that law would be made available? Your statement seems to imply that it would be unconstitutional if we did so. I do not follow that at all. Mr. SMITH. Well, I would like to make two or three comments on that, sir. One is that while a great majority of the information that we have is the result of laws passed by Congress, that there is other information that we get, voluntarily given, which is at least not the direct result; in other words, it is not required by any law to be given PAGENO="0071" FEDERAL PUBLIC RECORDS LAW 63 to us, such as the voluntary questionnaires which banks and business- men are now giving to the Government as to their international lend- ing activities, for instance. Secondly, and. I do not pose as anything like the constitutional law expert that Mr. Schlei is, but under our separation of powers, as I understand it, while these laws are passed by the Congress and, there- fore, we would not get this information if it were not for the laws passed by Congress, once these laws are passed by the Congress, the Constitution reposes in the President the responsibility and authority for the faithful execution of them and, therefore, it may be that even though Congress begot the child, it does not have complete control over the child after it is begot, to put it bluntly. Mr. GRIFFIN. Are you saying that Congress, if it could have provided how such information would be made available, cannot amend the original statute-that we have somehow lost this legislative power that we would have had in the beginning? Mr. SMITH. Well, that is a very difficult question for me to answer. I would only say this, that I am not at all sure but what even if you provided as to how the information, how and when and to whom it should be made available, that there might not be a situation in which the President, for overriding considerations of the national interest, would feel that he would not make it available. Now, this is getting into a very-an area that I am very uneasy about. Mr. Moss. Would you yield? Mr. GRIFFIN. Yes, I yield. Mr. Moss, Are you saying then in the faithful execution of the law the President has the right to disregard the law? Mr. SMITH. No; because he has to support and defend the Cônsti- tution and the laws of the United States. But he also has the responsi- bilities for the national security and various other things under the Constitution. Mr. Moss. hue shall take care of the law, to see that the law is faith- fully executed. Mr. SMITH. That is right. I suppose in a situation where the over- riding national interest that I referred to related to one of his other constitutional or legal responsibilities. But I am getting into deep water here and I think purely and simply I do not know the answer to your question. I think, Mr. Schlei attempted to answer it this morning, and I do not feel that I can do any better than he. I wanted to make one further point though before I forget it, sir, Mr. Rumsfeld, that while we have set forth in our regulations the circumstances under which records can be made available, we ran into the same problem that we feel confronts the Congress in trying to legislate in this area and, therefore, item 6 of the list of things that won't be diclosed is: "if the disclosure of the information would clearly be inimical to the public interest." In other words, we had to have a catchall phrase in our regulations because we did not feel that we could anticipate all of the possible situationsrn the future, so that what we have in our regulations paral- lels the point I was making with respect to the legislation. Mr. RUMSFELD. I have a question, Mr. Chairman. On page 13 of your statement again toward the earlier portion, you say that you would not be honest with the committee if you did not PAGENO="0072" 64 FEDERAL PUBLIC RECORDS LAW express the conviction of the Treasury Department that no effort at legislation in this area will be beneficial unless it recognizes and con- ~ains express provision for the Executive to prohibit disclosure of information on grounds of the public interest. There is your Execu- tive privilege again. Mr. SMITE. Yes, that is the Executive privilege. Mr. RUMSFELD. Why, if there is no law today which recognizes the principle of Executive privilege, should the bill that the subcommittee is considering bring it up? Doesn't this stem from the Constitution? Mr. SMITH. I think the Administrative Procedure Act recognizes this. The first paragraph of section 3 exempts from the provisions- Mr. RUMSFJ~LD. Was this the creation of it or did it stem from the Constitution? Mr. SMrni. Well, no-the Administrative Procedure Act did not originate the doctrine of Executive privilege; that is right. Mr. RUMSIrELD. That is my point, it did not create the concept or authority. Mr. GRIFFIN. Do you claim it recognizes it though? Mr. SMITH. The Administrative Procedure Act? Mr. GRIFFIN. Yes. Mr. SMrria. I believe it does. Mr. GRIFFIN. What section? Mr. SMITH. The first sentence. Mr. GRIFFIN. I see. Mr. RUMSFELD. My point is I fail to see why the proposal that is being considered by this subcommittee should contain express pro- vision for Executive privilege since this doctrine comes from the Constitution and would exist, according to the people who subscribe to this theory, as the gentleman who appeared this morning obviously does, apart from anything we did or did not do. Mr. SMITH. I would only say- Mr. RUMSFELD. You see my point? Mr. SMITH. Yes, I see your point. I would only comment this way, that since it is in the law now and it is a position which the Executive has taken traditionally since the beginning of the Nation practically, if it were to' be omitted from the law now, and I am Sure that if this committee were to omit it from the law now, they would make it clear they were omitting it because they did not recognize the validity of the doctrine of Executive privi- lege, then it seems to me that the bill would squarely raise this con- stitutional issue. Mr. GRIWIN. Would the gentleman yield to me? Mr. RUMSFELD. Certainly. Mr. GRIFFIN. I want to enter into the record a challenge to' the statement that section 3 expressly recognizes the doctrine of Executive privilege. I assume you are referring to the words "except to the ex- tent that there is involved any function of the United States requiring secrecy in the public interest"- Mr. SMITH. Yes. Mr. GRIFFIN. "Or any matter relating solely to the internal man- agement of an agency." Mr. SMITH. The first. Mr. GRIFFIN. Yes. PAGENO="0073" FEDERAL PUBLIC RECORDS LAW 65 Is that the language that you are referring to? Mr. SMITH. Yes. Mr. GRIFFIN. Naturally reasonable men can differ on the meaning and interpretation. Congress is determining here that in those in- stances it is not necessary to make a disclosure, but there is no express recognition of any doctrine of executive privilege. Mr. RUMSFELD. In other words, you are saying Congress wrote that and Congress could amend it or delete it or do anything it wishes. Mr. GRIFFIN. Surely if there is any doctrine of executive privilege, it is founded on the Constitution and not on that section. Mr. SMITH. I would certainly agree with that. Mr. GRIFFIN. I do not admit a doctrine of executive privilege exists. Mr. SMITH. The Administrative Procedure Act did not create the doctrine of executive privilege, I would certainly agree with that, and I do not think-I will even go so far as to say that I do not think it is important whether I agree or not that section 3 recognizes the doctrine of executive privilege. Mr. GRIFFIN. You people in the agencies and departments may read it that way. Mr. SMITH. I had always understood that is what it represented, a recognition of it. Mr. Moss. Would you yield to me? I would like to join in that statement of my colleague that I certainly can find nothing in section 3 that recognizes the executive privilege. It is a statutory expression saying that any function of the tTnited States requiring secrecy in the public interest can be exempted from the provisions. But I do not see any recognition. As a matter of fact, even the framers of the Constitution were able to deal with secrecy when they felt they wanted to grant it. They did grant it to the Congress in connection with the publication of a journal of the proceedings of the Congress. They required us to publish it excepting those portions which the Congress, in its judgment, deemed required secrecy. That is the only place you will find it. So they were not unaware of the fact that there might be a requirement for secrecy. But the only place they granted it expressly was to the Congress. Now, I notice in the response to the letter I addressed, the Febru- ary 12 letter addressed to the Treasury Department, that in response to question No. 7, "What limitations are placed upon the availability of records and files to the general public either by statute, rule, or practice," the Treasury's response was as follows: The principal limitations placed on making available recordS and files of the Office of the Secretary are contained in the following statutes. The relevant regulations are generally those of the operating bureaus reported elsewhere. A. Confidential Information in general: 5 IJ.S.O. 1002 as implemented by 31 CFR Part 1: 18 U.S.C. 1905; 5 U.S.C. 139b. B. Income tax information: 26 U.S.C. 6103, 6104, 6106, 7213. C. Information on returns and order forms relating to narcotic drugs and marihuana: 26 U.S.C. 7237(e). D. Bank information: 12 U.S.C. 77; 18 U.S.ci. 1906. B. Classified information affecting the national security: 18 U.S.C. 793, 794, 798 and E.O. 10501 (1953), as amended, and as implemented by Treasury Depart- ment Order No. 160. revised, dated March 23, 1962, as amended. F. Miscellaneous information: Information affecting the Reconstruction Finance Corporation: 18 U.S.C. 1904. PAGENO="0074" 66 FEDERAL PUBLIC RECORDS LAW Coast Guard records of discharge books and certificates: 46 U.S.C. 643(f), and the source of certain Information received by Coast Guard officials: 46 U.S.C. 234. Subpenas In libel suits aaglnst the United States: 46 U.S.C. 784. Confidential Information obtained under the E~port Control Act of 1949, as amended: 50 U.S.C. App. 2026(c)." Now, it would appear that you, in this instance, cited considerable additional material, additional statutory authority, as the basis for the withholding rather than relying upon the general provisions of sectiop 3 of the Administrative Procedure Act. Mr. SMITH. Oh, yes, sir. Of course, the very first one we list is, I believe is, 5 U.S.C. 1002 which is the Administrative Procedure Act. We do list that. Mr. Moss. Yes. Mr. SMITH. Yes, sir. Mr. Moss. The only interesting thing on 5 U.S.C. 22 that I would like to raise, I remember before we amended that, that it was cited by most departments and agencies time and time again as the au- thority for withholding. You may continue. Mr. SMImI. I have nothing further, Mr. Chairman, except to be available to answer any further questions that you have. Mr. Moss. Are there further questions? Mr. Kass? Mr. KASS. Mr. Smith, you stated on page 19 of your statement that the President has the constitutional responsibility under article II to preserve the confidentiality of documents and information. What is the specific constitutional citation, article II what? Mr. SMrm. Well, section 3, I think it is, to faithfully execute the laws. Mr. KAss. This was your interpretation? Mr. SMITH. Yes. Mr.~ KASS. Thank you. Section 3 of the Administrative Procedure Act, as I asked Mr. Schlei this morning, was passed in 1946. In the 19-year history of that section, do you think that the public information section has really been a public information section in the light of the legislative history of the section? Mr. SMFrIJ. So far as the Treasury is concerned, I think so. We make everything available except where we feel it should not be made available. Mr. Moss. We have had a minimum of complaint against the Treasury. Mr. GRIFFIN. In fact, according to Drew Pearson's column this morning you may be giving out too much information. Mr. SMrrn. We get it both ways. Mr. KASS. Yet in your answer to Mr. Moss' questionnaire the very first citation given earlier was 5 U.S.C. 1002 not for public information but for withholding this information. Mr. SMITH. Yes, sir. Mr. KAss. If the Treasury Department-you touched on that earlier with Mr. Rumsfeld-were authorized to charge reasonable fees for obtaining the information, would this relieve the problem that you spoke of-the malicious, the evil, or the meddling purpose? Mr. SMITH. Well, it would enable us to hire the people and make the facilities available for whatever volume of requests would come. PAGENO="0075" FEDERAL PUBLIC RECORDS LAW 67 I personally think somewhere along the line there that the taxpayer should not be asked to foot the bill for a lot of trivial, meddlesome requests for information where there is no real need for it. Mr. KASS. Do you mean the taxpayer, in general, or the individual taxpayer or the individual citizen? Mr. SMITH. I mean I am talking about the taxpayers in general. Of course, as you say, if we had user charges, then the person request- ing it would pay a fee, but you have got employees on the rolls and coming up for pensions after 25 or 30 years, and so on. I just do not think it is good government even where they pay for it to provide a facility for a useless request for information. Mr. KASS. But don't you, in fact, have specific statutory authority for user charges inS U.S.C. 140? Mr. SMITH. I am advised by Mrs. Lloyd that we do have authority. I do not know the full scope of it without examining that question a little further, but I know there is basic legislation for the establishment of user charges. Mr. KASS. Mr. Smith, what is your present authority for withhold- ing income tax returns? Mr. SMITH. I think it is cited in that response of ours: 7213, title 26,7213,1 believe, is the basic- Mr. KASS. As you read H.R. 5012, if that bill were enacted, would that in any way change the existing statutory authority given you by the Congress to withhold those income tax returns? Mr. SMITH. Well, I meant to mention it in my statement and T neglected to put it in there, but we have been quite concerned to try to figure out what the legal effect of section 2 would be both as to the specific statutes and as to 18 United States Code 1905. I would certainly think that there might be some disagreement as to whether those statutes were overridden and I would certainly rec- ommend if this bill were acted upon, that you might want to wish to consider specifying in some way the impact of this bill on some of these other statutes. Mr. K~&ss. Mr. Smith, you understand it is not the intention of the bill as drafted and as introduced by the members of the committee and others to repeal any existing statute which authorizes the De- partment to withhold information such as income tax returns? Mr. SMITH. Well, I am glad to know that. We were not sure. Mr. KASS. What is your present- Mr. Moss. You were not sure? What does the language on page 3, lineS, mean? Mr. SMITH. Well, I am talking about section- Mr. GR1rr[N. Section 2 of the bill. Mr. SMITH. Section 2 of the bill which says "All laws or parts of laws inconsistent with the amendment made by the first section of this act are hereby repealed." Mr. KASS. But, Mr. Smith, taking section (c)-"this section does not authorize withholding information from the public or limiting the availability of records to the public except matters that are," and then skipping down to exemption No. (3) "specifically exempted from dis- closure by statute." Mr. SMITH. Yes; I should have said that our main worry was the impact of this upon 18 U.S.C. 1905. PAGENO="0076" 68 FEDERAL PIJBLIC RECORDS LAW Mr. KASS. Well, now, how would this bill, which specifically ex- empts from disclosure matters which have been exempted by statute, affect the Trade Secrets Act? Mr. SMITH. Well, 1905, as I recall it, prohibits disclosure of con- fidential information except as authorized by law, and when you get into this question of this section 2, if it were enacted, is it authorized by law? I mean does section 2 have the effect of meeting the test of 1905. 1 think that is our point. Mr. Moss. I think it is a very good point. Mr. KASS. Mr. Smith, in your opinion could this matter be suffi- ciently covered by the legislative history or would your department, faced with this statute if enacted, still have that problem? Mr. SMITH. Well, we certainly would be amenable to any guidance given in the legislative history, and we would endeavor to interpret it naturally in the way in which it was intended by Congress. But I would merely suggest that there might be some way in which this could be clarified a little bit in order to avoid that problem. Mr. KASS. Mr. Smith, what is your present statutory authority for withholding your own trade secrets? You started to mention that earlier, dealing with ink and paper processes for making money? Mr. SMITH. I think that it is contrary to the public interest. Mr. KASS. So the statutory authority- Mr. SMITH. I do not think there is any specific statutory authority we could point to for that. Mr. KASS. You would not point to 5 U.S.C. 1002? Mr. SMITH. Well, that is public interest. I think we would say within the meaning of 1002 that the process for making the ink and paper for our currency must be maintained a secret in the public in- terest within the meaning of-yes, I suppose we could cite 1002, Mr. KASS. So then your specific statutory authority in this instance is 1002? Mr. SMITH. It would be the only specific one. Mr. KASS. These are trade secrets or other informational matters which your department has, on its own, developed? Mr. SMITH. Yes. Mr. KASS. And not given to you by anybody else? Mr. SMITH. Yes, and I might say there are other cases of that. For instance, the Coast Guard is constantly developing various kinds of equipment, electronic and otherwise, that it uses in its various activities. Mr. KASS. Are these patented? Mr. SMITH. Port security activities. Some are patented and some are not. Mr. KASS. Mr. Smith, as the law now stands, 5 U.S.C. 1002, who, in your opinion, is a person properly and directly concerned who should be given information, who should be given Government information? Mr. SMITH. Well, I think it depends upon the nature of the pro- ceeding, of the subject matter. It is hard to generalize. But ob- viously, let us say a man who applies for a gold refiner's license is properly and legitimately concerned with the documents that he sub- mitted to the Treasury. For instance, if he wants to get them back later on or remember what he said in his application; in the case of a corporation, a majority PAGENO="0077" FEDERAL I~TJBLIC RECORDS LAW 69. stockholder, or even a large stockholder, heirs, the heirs of that same person who applied for the gold license. This is the general area in which we consider who is properly and legitimately concerned. Then in the case of the regulations of our specific bureaus that carry this out, for instance, the Office of Domestic Gold and Silver Operations, I believe they spell out who they do consider to be directly concerned, but it is hard for me to generalize throughout all the operations of the Treasury Department, for instance, in any given type of situation because they vary, whom we would consider properly and legitimately concerned. Mr. KASS. But for the record on the case you illustrated, would not that information fall specifically under trade secrets and commercial or financial information obtained from the public and privileged or confidential-that information given on an application for a gold license? Mr. SMITH. It might, yes, but I think we could cite some of such type of information that we would not feel was covered. Mr. KASS. In the general sense on the availability of information, though. Mr. Smith, should there be a distinction between any person seeking information and those persons who are properly and directly concerned? Mr. SMITH. We believe there should be; yes, sir. Mr. KASS. Should there be criteria based on "properly and directly concerned," or should the criteria be more properly based on the type of information that you are going to make available or not make available? Mr. SMITH. Well, I think that for a general statute it is very diffi- cult to come up with any formulation more specific than something like properly and legitimately concerned or words to that effect. I think that in applying such a requirement the agencies and bureaus should spell out what their determination is in any given situation so that it is clear to the public and to the Congress, indeed, if they look into the matter, how they are implementing this. Mr. GRIFFIN. Mr. Kass, could I ask a question at this point? Mr. Moss. Certainly. Mr. GRIFFIN. As an example, suppose that the gold balance, our gold balance, continues to go down. Could you in the Treasury De- partment decide some day that it is not in the public interest to disclose what our gold balance is from day to day? Would you do that? Mr. SMITH. We actually do not disclose it from day to day. We publish information as to our gold transactions with a lag of 2 or 3 months. Mr. SMITH. Something like that. Mr. GRIFFIN. Two or three months? Mr. SMITh. And we feel that it could be disastrous under certain circumstances to publish the information about our gold in interna- tional foreign operations, international gold operations. Let me give you an example. You might have a nunther of situa- tions coming together that would, all of which might be, unsettling to confidence in the dollar, and don't forget we have to worry not only about American citizens' confidence in the dollar, but foreigners, and let's say right at that point France buys $150 million worth of gold PAGENO="0078" 70 FEDERAL PUBLIC RECORDS LAW from us, a big purchase. Tomorrow we may buy $50 million worth of gold from Italy. Turkey, and so on, so that in the next day $50 million from some other countries, is purchased, and when our 3 months' statistics come out it is 2 or 3 months later, there is $100 million of purchases balanced over against $150 million of sales, but at any given time, if we had to make available immediately in some of these international monetary operations of ours the information it could counteract just exactly what we are trying to accomplish. For instance, whe we are performing exchange operations in foreign markets to maintain the price `of the dollar in those markets, if the speculators `knew ho'w much we were spending to support the price `or to push it down, either one, it could operate exactly contrary to what we are trying to accomplish in those operations. Mr. GRIFFIN. Well, I do not know whether it is go'od policy o'r not, bnt have I put my finder on `some information that would n'ot be ex- empt under the bill as we `have drafted it? In other words, under the bill would a person be able to get information on a day-to-day basis? Mr. SMITH. I think there is some that would not be covered. Of course, here again we get int'o this point I made about what is national defense. Mr. Moss. Do you classify it? Mr. SMITH. The breadth c~f national `defense. Mr. Moss. Do you classify this information? Mr. SMITH. I do not think-no, we do not, not these `actual transac- tions. I d'o not think they are classified. National security classifica- tion. Mr. Moss. What other type of classification are you authorized to use? Mr. SMITH. Well, none, except our own official use administratively whi'ch merely means contrary to public interest to give it out at this time. Mr. Moss. Are the persons who have access to this information cleared by any form of clearance procedure? Mr. SMITH. Oh, yes; indeed. Mr. Moss. At what level? Mr. SMITH. Well, the whole Office of `the Secretary which largely controls these transactions are `all cleared for top secret or higher. Mr. Moss. Is this information handled as though it were classified? Mr. SMIETH. Yes, sir. Mr. Moss. It is given all of the protection that would be given t'o classified material? Mr. SMITH. Are you talking about information on gold transactions or foreign exchange transactions? Mr. Moss. That is right, the ones we have just been discussing. Mr. SMITH. Yes, sir. That is very carefully protected; yes, sir. Mr. Moss. For all practical purposes it is treated as classified infor- mation, then, isn't it? Mr. SMITH. It is handled in the same way; yes, sir. Mr. Moss. And the authority to' handle it that way is your 10501, is it not? Mr. SMITH. Well, sir- Mr. Moss. In other words, you have not withheld a classification be- cause you thought 10501 failed to cover it, have you? PAGENO="0079" FEDERAL PUBLIC RECORDS LAW 71 Mr. SMITH. Well, I think the answer is this, sir, that we are cog- nizant of our responsibility not to classify as national defense infor- mation, not to abuse this classification authority of national defense information. Now, for this reason we use that type of classification very spar- ingly. But, on the other hand, there is information of this type that we consider it would be seriously contrary to the public interest to have revealed, at least the timing of it, which we carefully safeguard. Mr. Moss. Then, if you felt that this is material which is so' sensi- tive that it has a direct impact upon the national security rather than the national defense-I do not think you separate the two, but let us assume that you can-then isn't the authority for classifying deficient in not recognizing national security rather than national defense? Mr. SMITH. Well, there are some other considerations here that I ought to mention, probably. For instance, whenever we buy or sell gold it is with a foreign country. Mr. Moss. Yes. Mr. SMITH. And so it is a transaction that we are not completely at liberty anyway to give information on, make public, because if they are selling gold it may be contrary, they may consider it contrary, to their interests to have it publicized that they had to sell gold to us. So that I mean it is not information that is owned entirely by the United States. Mr. Moss. That is specifically exempted. Mr. SMITH. What? Mr. Moss. That is specifically exempted by this proposed legisla- tion, under "foreign policy." Mr. SMITH. Right. I think as to gold transactions they come under foreign policy. I think a better example would be our foreign ex- change operations in foreign markets where we are not selling to foreign governments or central banks. We are operating in exchange markets where private individuals and institutions are buying and selling foreign exchange. There the foreign policy exception does not come into play. Then you get into this question about a little wire saying "I bought 500,000 marks today." That one thing in and of itself, is the national defense going to stand or fall if we give out that information? I am sure nobody would say that the country was going to fall if we gave it out. On the other hand, if you had a trend in the market, and there were a series of transactions over a period of 4 or 5 days, it could be very serious. I think this is one reason why we do not attempt to give this the national defense type of classification. Yet we feel it is very sensitive information, at least as to the tim- ing of the release of it. It is like this silver thing that I referred to about our coins. When we make our report within the next couple of weeks to the Congress on the coinage situation and what we propose Congress enact about it, we are going to give the Congress a wealth of information. We are going to give them everything we have. But if in these last 3 months while we were polishing this up we had to give out little bits and pieces of it, we would have had a con- troversy raging and speculation and everything else going on. PAGENO="0080" 72 FEDERAL PUBLIC RECORDS LAW Mr. Moss. You know I do not think that is contemplated under this: "Every agency shall, in accordance with published rules stating the time, place, and procedure to be followed, make all its records promptly available to any person," and I think some of the records you are discussing could be covered under appropriate rulemaking. Your report on a matter of coinage is not complete. At the moment it re- flects no official records. It is a proposed, it is an interim report; it is an internal memorandum covered here under "interagency or intra-agency memoranda or letters dealing solely with matters of law or policy~" Your recommendations to the Congress are a matter of policy, solely. You may put in a lot of stuff to support it, and if it is not broad enough to cover, I think you could suggest to us that we make a modification or cover it by appropriate language in the report. Mr. SMITH. Well, factual information, for instance, I had a re- porter on the phone the other day about when are we coming up with our coinage recommendations, and I said I hoped very soon. He said, "What alloys have you tested at the Philadelphia Mint?" Well, I said, "We have tested a whole bunch of alloys, all feasible possibili- ties." He said, "Did you test this one?" and he mentioned a specific metal or mineral. Now, there is factual information that if we read this right is not covered by internal memos on law or policy. We have statistics and we have records of tests and things, just factual information which could be very damaging to give out at the wrong time, and yet I do not believe we would say that it is covered by internal memo- randums of law or policy. Mr. Moss. We have gone into a lot of matters here today, and it seems to me you cannot have a memorandum dealing solely with law that does not cite fact, and it is inconceivable to me that you could have a memorandum dealing solely with policy that does not cite fact. Mr. SMITH. Well, I would suggest, sir, that I think that word "solely" is not helpful in there, because this is what, partly what, gives us concern, that if it has got some fact in it, and if you read this one way- Mr. Moss. If you cite a statute, that is a fact, is it not, and a matter of law? Mr. SMITH. But if we had an internal memo discussing policy, but along with it in there are some statistics, some facts, let us say, on testing coins, then I would not regard that memo as dealing solely with matters of law or policy, at least that is the way I interpreted this provision. Mr. Moss. Mr. Smith, let me say that your discussion is very help- ful, and I appreciate it. But I can only observe that the tendency in agencies is to regard these things very narrowly when we discuss them in a committee, and very broadly when they administer them. Mr. KAss. Mr. Smith, would your agency have any objection to releasing those memorandums dealing soley with facts--in other words, facts compiled for your agency, no policies, no law, no inter- pretations, just facts, actual investigation reports, accident investiga- tion reports, in the Coast Guard or other things like this? Mr. SMITH, Oh, yes, there are certain ones that we would. PAGENO="0081" FEDERAL PUBLIC RECORDS LAW 73 Mr. K~&ss. So there would be some objection even to specific factual memorandums after all- Mr. SMITH. Yes. Mr. KASS (continuing). For release. Mr. SMITH. I cannot emphasize this question of timing too much. Something that could be very damaging to be put out today, we would be glad to give anybody 2 weeks from now. I think the matter- Mr. Moss. But the agency shall, "in accordance with published rules, stating the time, place, and procedure to be followed." Mr. KAss. That is in the bill, line 2, page 2. Mr. SMITH. Well, I thought that was merely saying between the hours of 9 and 5:30, at such and such an address. Mr. KASS. I suppose you could also say between 2 and 4 a.m., on Sunday morning? Mr. SMITH. But if you mean timing, if you mean that when some- body asks for something and we say you can check in 6 months from now, I do not believe you mean that. Mr. GRIFFIN. You get into a discussion of that word "promptly" in line 3, don't you? Mr. Moss. That is right. Mr. KAss. Mr. Smith, you objected to the phrase "clearly unwar- ranted invasion of personal privacy." Why? Mr. SMITH. I almost took that out, but it seemed a little funny to say in a law you had to exempt something clearly unwarranted. But if it was just plain unwarranted that you should give it out. Mr. KAss. Does not your own regulation that you cited earlier this afternoon stating something about those matters which are "clearly inimical to the public interest," what is the difference between that- Mr. SMITH. I think there is a big difference there, because this puts the burden on us. In other words, this is the emphasis which is on not withholding. I think there the word "clearly" puts the burden on the Government agency to give it out. Mr. KASS. Whose burden would this be under the "clearly unwar- ranted invasion of personal privacy"? Mr. SMITH. I suppose it is the same situation, although I still must say that if it is an unwarranted invasion of personal privacy, I cannot see why Congress would want to say it should be given out. It is a minor point, though, I must say, I almost took it out of the statement because I do think it is a little petty, that point. It offended my sensi- bility a little bit. Mr. KAss. Mr. Smith, one other question: We were talking earlier about the concept of persons properly and directly concerned. Who sets the criteria as to who is a person properly and directly concerned in your agency? Mr. SMITH. I would say it was the head of the department and the heads of the bureaus that promulgate these regulations~ Mr. K~ss. Do persons in other agencies and departments fall under the category of persons properly and directly concerned? Mr. SMITH. It depends upon whether they have a legitimate need in their activities, they are authorized by law for the particular type of information in question. Mr. KAss. I am talking about, for example, the Department of the Treasury files, compiled for whatever purpose and given then to the 45-213-65--~pt. 1--c PAGENO="0082" 74 FEDERAL PUBLIC RECORDS LAW Department of Justice for litigation purposes. Do you make a deter- mination as to whether the people looking at those files in the Justice Department are properly and directly concerned? Mr. SMITH. We make them state what their need for them is and, of course, in a great many cases it is our own litigation in the sense that the Justice Department are the trial attorneys for most all of the litigation in which the Treasury Department is a party. We do not do our own trial work except in the Tax Court. All the rest of our trial work is done by the Department of Justice. Mr. KAss. Are there any clear guidelines spelled out by the De- partment of Treasury as to who will be a person properly and directly concerned for any information given out? Mr. SMITH. Well, I believe that some of our bureaus' regulations do spell it out. For instance, I happen to know, because it was one I saw not too long ago, I do not believe I have it with me, in the regulations of the Office of Domestic Gold and Silver Operations, which issues licenses to processors, and refiners of gold, they have specified in there who are entitled to obtain information contained in the records of the licensing division on gold licenses and they also state that anybody can come in and find out if a given company has a gold license, and the size of it. In other words, how many ounces they are entitled to hold at any one time in their possession. Mrs. Lloyd informs me that the Bureau of Customs specifies in its regulations who are directly and legitimately concerned. Mr. K~ss. Have you supplied that information to the committee in your questionnaire or, if not, could you supply it? Mr. SMITH. We will check our questionnaire and if it is not in here we will be happy to supply it. DEFINITION OF PERSONS PROPERLY AND DIRECTLY CONCERNED UNDER SEcTIoN 3(c) OF THE ADMINISTRATIVE PROCEDURE ACT AS SET FORTH IN REGULATIONS OF THE OFFICES AND BUREAUS IN THE TREASURY DEPARTMENT This memorandum provides information for the record of the hearings on H.R. 5012 and related bills before the Subcommittee on Foreign Operations and Gov- ernment Information of the House Committee on Government Operations on the definitions used within the Treasury Department of "persons properly and di- rectly concerned" to whom matters of official record would be made available un- der section 3(c) of the Administration Procedure Act. This submission covers definitions provided in the regulations of the offices and bureaus of the Treasury Department in addition to the information on this matter previously provided to the subcommittee in the reports of the offices and bureaus of the Department in answer to the subcommittee's questionnaire on the operation of section 3 of the Administrative Procedure Act. There follows a discussion of the pertinent provisions of the regulations of the offices and bureaus approximately in the order in which their reports were presented in the submission of the Treasury Department on March 16, 1965, in- cluding the regulations of the Office of the Comptroller of the Currency reported later to the subcommittee. Where the reports detail the information requested, it is referred to, but not reproduced here. Since the regulations vary depending upon the character of the official records concerned, the character of the records is indicated to the extent relevant. This submission includes reference to the furnishing of official information by a bureau to persons considered directly con- cerned therewith without specific request from such persons. This submission does not include reference to the regulations on making available to the public final opinions and orders pursuant to section 3(b) of the Administrative Pro- cedure Act. 1. OFFICE OF THE SECRETARY Title 31, Code of Federal Regulations, part 1, subpart A, provides for the dis- closure of official information pertaining to the various divisions within the Office PAGENO="0083" FEDERAL PUBLIC RECORDS LAW 75 of the Secretary and certain other offices of the Department. Section 1.2(f) pro- vides that requests for information shall be addressed to the Administrative Assistant to the Secretary (now the Assistant Secretary for Administration) and shall state the "interest of the applicant in the subject matter and the purpose for which the Information is desired." Further, If the applicant is an agent or attorney acting for another, "he will attach to the application evidence of his authority to act for his principal." Subsection (g) provides that the determina- tion will be made "on the basis of the nature of the information desired" and that the determination will be made by the Administrative Assistant to the Sec- retary or the Secretary of the Treasury, the Under Secretary, an Assistant Sec- retary, the Fiscal Assistant Secretary, or the General COunsel. The following offices which responded separately to the questionnaire are also covered by the disclosure regulations in title 31, Code of Federal Regulations, part 1: 2. Office of the Assistant Secretary for International Affairs. 3. Office of the Fiscal Assistant Secretary. 5. Office of Foreign Assets Control. 6. Office of Law Enforcement Coordination. 9. Bureau of Engraving and Printing. 4. OFFICE OF DOMESTIC GOLD AND SILVEIt OPERATIONS The special regulations on the disclosure of Information for this office (title 31, CFR, Cum. Supp., pt. 93) were set forth at length In the Information submitted to the subcommittee. In section 93.16(b) the persons to whom official business rec- ords deemed confidential are available are described in five paragraphs. They include applicants for gold licenses, applicants who have been denied licenses, and persons whose licenses have been revoked, any agents of the foregoing, or their successors in interest. These persons may secure confidential Information concerning the application and licenses in which they have an interest. In addi- tion, disclosure may be made to "persons properly and directly concerned" upon the showing of a court order in pending litigation or in lieu thereof with the written consent of the person authorized to inspect the documents under the reg- ulations. A person showing a legitimate interest may be advised of the form and amount of the license held by any other person. Also, official requests from State or Federal agencies or officers will be met. 7. DIRECTOR OF PRACTICE The roster of all persons enrolled to practice and the roster of all persons dis- barred or suspended from practice are available to public inspection. Matters of official record pertaining to the enrollment of individuals are available to persons properly and directly concerned. Persons seeking such information should set forth the interest of the applicant in the subject matter and the purpose for which the information Is desired. If the applicant is an attorney or agent he should attach evidence of his authority to act for his principal (31 CFR 10.90, 10.91). 5, BUREAU OF OUSFOMS The disclosure regulations of the Bureau of Customs, title 19, Code of Federal Regulation, part 26, describe the official records of customs business transactions which are held confidential because the disclosure would be detrimental to the interest of the parties involved without furthering public interest. Section 26.4 provides that the Information contained in such papers and documents may be made available to the importers, exporters or their duly authorized brokers, attorneys or other persons directly in interest, or other agents. Provisions are included for disclosure of documents in litigation. Section 26.5 provides that an accredited representative of the press may be permitted to examine vessel's manifests and summary statistical reports of imports and exports and to copy for public information data not of a confidential nature. Certain limitations on the information which may be copied from outward and inward manifests are specified. Accredited representatives of regularly established associations are permitted to examine vessel's manifests for the purpose of securing data relevant to merchandise of the kind or class in the imports of which the association is in- terested, subject to other provisions of the regulations. PAGENO="0084" 76 FEDERAL PUBLIC RECORDS LAW 10. BUREAU OF ACCOUNTS The regulations on disclosure of public records in the Bureau of Accounts in 31 CFR 270.2 describe the official records as including appropriation accounting rec- ords, collection and disbursing accounting records, accounting records relating to investment accounts, and others. The regulations state that certain of this information is held confidential "because it relates to the personal financial trans- actions of individuals or corporations, or because the disclosure of information would clearly be inimical to the public interest." A request for information in these records "should set forth the interest of the applicant in the subject mat- ter and the purpose for which information is desired." The determination of disclosure will be made by the Secretary, the Under Secretary, or the Fiscal Assistant Secretary. 11. BUREAU OF THE PUBLIC DEBT The applicable regulations are 81 OFR 323.2. They state that apart from records pertaining solely to internal management the records "pertain to the purchase and ownership of Government securities and transactions in connec- tion therewith." The further provide: "These records ordinarily will be dis- closed only to the owners of such securities, to their executors, administrators or other legal representatives or to their survivors, or to investigative and certain other agencies of the Federal and State Governments, to trustees in bankruptcy, receivers of insolvents' estates, or to Federal and State courts, where proper order has been entered requesting disclosure of information." The regulations explain that the records are held confidential as to other persons "for the reason that they involve private financial affairs of individuals, organizations, and others who purchased Government securities in the belief that in so doing their affairs would not be exposed to public scrutiny." A request for information "should be accompanied by a statement of the reasons why such information is requested and evidence that the person requesting information is entitled thereto." 12. OFFIOB OF THE TREASURER The regulations of this Office on records disclosure (31 CFR 351.2) describe the official records as including "paid checks and records thereof; retired obliga- tions of the United States and records thereof; records relating to coin, bullion, and currency; and various accounting and other records relating to the functions of the Office of the Treasurer." Certain of this information is held confidential, the regulation states, "because it relates to personal financial transactions of in- dividuals or corporations, or because the disclosure of the information would clearly be inimical to the public interest." A request for information "should set forth the interest of the applicant in the subject matter and the purpose for which the information is desired." The determination of disclosure will be made by the Secretary, the Under Secretary, or the Fiscal Assistant Secretary. 13. INTERNAL REVENUE SERVICE The regulations on disclosure of tax returns are based upon provisions in the Internal Revenue Code. Under 26 U.S.C. 6103(a) the bulk of tax returns shall not be open to inspection except by Presidential order. Subsection (b) (1) per- mits proper officers of any State to have access to returns or abstracts thereof of any corporation. Subsection (b) (2) provides that the designated representa- tive of any State body or commission charged with the administration of the tax laws of the State may have access to all income tax returns but only if the purpose is to aid in the administration of State tax laws or to furnish local tax authorities with information for tax administration purposes. Written request of the Governor is required. Subsection (c) allows Stockholders owning more than 1 percent of the outstanding stock of a corporation to inspect the annual income return of such corporation. Subsection (d) provides for the furnishing of any data of any character contained in or shown by any return to the Com- mittee on Ways and Means of the House of Representatives, Committee on Finance of the Senate, the Joint Committee on Internal Revenue Taxation, or a select committee of the Senate or House authorized to investigate returns or a joint committee so authorized by concurrent resolution, sitting in executive session. The regulations issued pursuant to Executive orders are as follows: Under 26 CFII 301.6103 (a)-1, certain tax returns are open to inspection by a taxpayer making the return and by certain others including the taxpayer's ad- PAGENO="0085" FEDERAL PUBLIC RECORDS LAW 77 ministrator, executor, or trustee, by partners, corporate officers, receivers, or trustees in bankruptcy, and by heirs, next-of-kin, or beneficiaries having a "mate- rial interest which will be a~ected by information contained in such returns" (subsec. (c)). Properly authorized State tax officials and tax officials of the District of Columbia and Puerto Rico may inspect estate, gift, unemployment, and certain excise tax returns filed in an IRS district within or including that State or political entity, if for tax administration purposes. If filed in another district, the returns may be inspected if identified with particularity (subsec. (d)). Officers and employees of the Treasury Department may inspect tax returns where their official duties require it, but inspection by anyone not in the Internal Revenue Service for reasons other than tax administration must be on applica- tion in writing by the head of the bureau (subsec. (e)). The head of another executive department or other Federal establishment or one designated by him may be granted permission to inspect an income and other tax return in connection with a matter officially before him, but the request must be made by the head of the department or agency and must state the reason why examination is sought (subsec. (f)). Where necessary in the performance of official duties, U.S. attorneys and Justice Department attorneys may be granted permission to inspect income and other tax returns, but their requests must state why the information is desired. Where inspection is to be made by a Justice Department attorney, the application must be signed by the Attorney General, Deputy Attorney General, or an Assistant Attorney General (subsec. (g)). Under section 301.6103 (a)-l00 et seq. and the Executive orders which these regulations implement, seven governmental agencies, and specially authorized committees of Congress are permitted to inspect certain types of returns neces- sary to carry out particular Government functions. In every case the inspection is to be authorized or requested by the chairman or other Government head and to take place with the approval of the Secretary of the Treasurl or Com- missioner of Internal Revenue, and the information obtained is to be held confidential except to the extent necessary to carry out the purposes of inspection. The Government entities covered by these regulations are the following: The Department of Health, Education, and Welfare with respect to income tax returns as needed in the administration of the Social Security Act, as amended (subsec. (a)-100). Committees of Congress authorized by Executive orders to inspect those returns specified in a resolution adopted by the committee in accordance with the rules of the appropriate House of Congress (subsec. (a)-101). Securities and Exchange Commission with respect to corporate and individual income tax returns and statistical transcript cards as necessary in gathering statistical information to carry out functions under the Securities Exchange Act, as amended (subsec. (a)-102). Advisory Commission on Intergovernmental Relations with respect to income and other taxes for the purpose of making studies and investiga- tions leading to recommending methods of coodinating and simplifying tax laws and administrative practices (subsec. (a) -108). Department of Commerce with respect to income tax returns for the taking of such data as the Secretary of Commerce may designate (subsec. (a)-104). Renegotiation Board with respect to income tax returns for the taking of such data as the Chairman of the Board may designate (subsec. (a)- 105). Federal Trade Commission with respect to income tax returns of corpora- tions as' an aid in executing the Federal Trade Commission Act (subsec. (a)-106). Board of Governors of the Federal Reserve System and the Federal Reserve banks with respect to the Information return made by a com- mercial bank concerning loans and commitments to foreign obligors under the Interest Equalization Tax Act (subsec. (a)-107). 14. BIJREAU or run MINI' The regulations of this Th~reau governing disclosure of official records are contained in 31 CFR, Cum. ~upp. 92.23. This section provides that the official records of the weight and value of gold and silver deposited with the mint and of other mint matters are confidential because they contain information of a PAGENO="0086" 78 FEDERAL PUBLIC RECORDS LAW confidential nature concerning the commercial and industrial affairs and activ- ities of individuals and enterprises and because to permit general inspection of these documents would violate public and private confidence. However, these records are available for inspection by depositors of gold and silver who may inspect documents relating to their deposits and by persons properly and directly concerned, upon furnishing a court order in pending litigation, or with the written consent of a person authorized to inspect the documents under the regulations. Records are also available upon official requests of Federal or State governmental agencies or officers thereof acting in their official capacities. 15. BURJSAU OF NARCOTICS The distribution of information held in the Bureau of Narcotics is governed by a number of Federal statutes and the regulations issued thereunder which are cited and described in the response of the Bureau to questions 6 and 7 of the subcommittee's questionnaire. Because of the extensiveness of this material it is not reproduced here. It should be noted that interpretations of the narcotics law~s and regulations are furnished to the general public on request and particular compilations of the laws and regulations are furnished to profes- sional persons. Further, interpretations concerning drugs are furnished to the drug industry. The records and files of the Bureau with respect to violations of the narcotic laws are held confidential for good cause and because certain criminal files are classified and require secrecy in the public Interest. 16. U.S. COAST GUARD The Coast Guard has general regulations on the disclosure of records and additional regulations on disclosure relating to particular statutory activities. The general regulations are contained in title 33, CFR, subpart 1.10. This sub- part provides that official records and documents, except those classified as "confidential" by reason of military necessity or for other good cause, "will be made available for examination by persons who have legitimate and valid reasons for seeking access to such records." Title 46, OFR, subpart &10 provides for the disclosure of information regard- ing shipment and discharge of merchant mariners. Section 3.10-1 states that upon inquiry Information will be released "as to the dates and ports of the com- mencement and termination of all voyages by merchant vessels for which shipping articles are signed before shipping commissioners." However, other information contained in shipping articles or logbooks required to be kept by the Coast Guard will be released only to a limited extent. Under section 3.10-5 the application for this information must identify the applicant and, if he is a representative of another, must specify the nature of the representation and attach proof when required. The application must set forth the interests of the applicant in the subject matter, the purpose for which the Information is desired, and whether it is intended for use in presecuting a claim against the United States. Section 3.10-10 governs the obtaining of information by representatives of any party. Section 3.10-15 specifies the particular persons, such as the master, owner, etc., who may obtain information from shipping articles. This includes any officer of the United States, or of a State, Territory, or political subdivision, or the Dis- trict of Columbia acting In the course of his official duty. Section 3.10-25 provides the same specifications of persons who may obtain information from official log- books. Logbooks may, in addition, be examined by a member of the crew, a passenger, an underwriter, or an authorized representative of such a person who was connected with the particular voyage for which information is sought. Title 46, OFR, subpart 136.13 provides for the disclosure of records relating to marine Investigations. Information as to the time, place, and general subject matter of investigations will be released upon inquiry except when such informa- tion l~ confidential for security reasons. Other information relating to such investigations will be released to a limited extent. Under section 136.13-5 the applicant must be Identified and his representative, if any, must provide proof of his designation. The applicant must set forth his Interest in the subject mat- ter, the purpose for which it Is desired, and whether or not it is intended for use in prosecuting a claim against the United States. Title 46, CFR, subpart 137.50 provides for the disclosure of information in connection with the suspension and revocation proceedings with respect; to any license, certificate, or document issued to a person by the Coast Guard. Informa- tion is available upon inquiry as to whether an investigation of a specified corn- PAGENO="0087" FEDERAL PUBLIC RECORDS LAW 79 plaint is in progress or that charges have been preferred, or that an investigation has been closed, and as to scheduled times of hearings and the substance of charges. Information disclosed at public hearings before examiners may be released upon inquiry so long as the eases have current public interest. There is to be maintained at headquarters a file of the Commandant's decisions on ap- peal or review and a file of the decisions of examiners, and in the district commander's office, a file of the decisions of the examiners in that district. Copies of such records may be obtained by persons properly concerned because of litigation or other collateral interests in the proceedings. Such persons and the appellant may obtain a copy of the complete hearing transcript. Appellants are specifically entitled to free copies of these records as a matter of right. As in the other regulations, the applicant must be identified, specify the material de- sired, state the reason for the request, and whether or not the information is intended for use in litigation involving the United States. 17. U.s. SECRET SERVICE The records of the Secret Service are of two types: those held confidential and those available for inspection by members of the public upon request. The types of records in each category are set forth in section 3 of the document on "Orga- nization and Procedure of the United States Secret Service" published in 16 F.R. 10861, October 25, 1951. This section provides that records containing reports, directions, and determinations pertaining to criminal investigations, protection of the President and criminal law-enforcement activities and records pertaining to contraband material confiscated pursuant to law are held confidential as dis- closure would aid law violators and reduce the effectiveness of law-enforcement operations. The records available to the public are those pertaining to public education activities relative to counterfeiting and the theft, forgery, or fradulent negotiation of Government checks and records of inquiries from: the public rela- tive to the application of the criminal laws enforced by the Secret Service. 18. THE COMPTROLLER or THE CURRENCY The regulations of the Comptroller of the Currency with respect to disclosure of information (12 OF?, Corn. Supp., 4.13), Identify the publications of that office which are available to the public or to financial institutions subject to his jurIs~ diction and provide for the availability of unpublished information. Unpublished information is available to persons properly and directly concerned upon request for examination of the Information in accordance with the procedures set forth in the regulations. These procedures are described in the Comptroller's response to question 6 of the subcommittee's questionnaire. Section 4.13(b) of the regu- lations provides that the information coming to the Comptroller as a result of his supervisory, investigative, and examining functions is held confidential for the reasons specified. Confidential informatlon is defined as information in re- ports of examination and inspection of national banks and other financial insti- tutions and in eight other categories set forth in that subsection. The Comptroller makes confidential information available to certain Government agencies, and a copy of the report of examination is made available to the bank or company concerned for its confidential use only. Mr. KASS. Mr. Smith, are there any employees in the Department of Tre.asury whose payrolls are withheld from the public? Mr. S~m. Payrolls? Mr. K~ss. Salaries paid. Mr. SMFrH. Not to my knowledge. Mr. KASS. Could you cheek that and supply it for the record? Mr. SMUrH. Yes, I will be glad to. I do not know of any. GENERAL CoUNsEL OF THE TREASURY, Washington, D.C., ApriZ 9, 1965. Hon. TOHN. B. Moss, Chairman, Foreign Operations and Governsnent Information Subcormnittee, Committee on Government Operations, House of Representatives, Wash- ington, D.C. DEAR MR. Moss: During my testimony on March 30 on H.R. 5012 and related bills before the Subcommittee on Foreign Operation's and Government Infor- PAGENO="0088" 80 FEDERAL PUBLIC RECORDS LAW mation of the House Committee on Government Operations, I was asked to provide information for `the record on two subjects. The first was the defini- tions used within the offices and bureaus of the Treasury Department of "persons properly and directly concerned" to whom matters of official record would be made available under section 3(c) of the Administrative Procedure Act. Information on this matter is supplied in the attached detail memorandum. The second subject was whether there were "any employees in the Department of Treasury whose payrolls are withheld from `the public," The answer is none. I trust that `this information is adequate for the subcommittee's purposes. Sincerely yours, Fnnn B. SMITIX, Acting General Counsel. Mr. KASS. I have no further questions. Mr. Moss. Are there further questions? Mr. GRIFFIN. No, Mr. Chairman. Mr. Moss. If not, we thank you. Mr. GRIFFIN. Except the information that the gold balance statistics are not available for 3 months. Mr. SMITH. I am not sure that is the right period. There is a time lag here. Mr. GRIFFIN. It is interesting- Mr. SMITH. Let me say this. Mr. GRIFFIN. We might be in a much different situation than we think we are at any given time. Mr. SMITH. No. The Treasury daily statements contain our bal- ance, our total, but what I am talking about are the individual transactions. Mr. GRIFFIN. I see. Mr. SMITH. If we sell gold to France or if we buy gold from Turkey and so on, those-that information as to our transactions is publ'ished with a ~- or 3-month timelag. Mr. GRIFFIN. I wondered as you spoke. I was under the impression that our balance was- Mr. SMITH. Oh, no. Mr. GRIFFIN. That the information was on a day-to-day basis. Mr. SMITH. The balance is currently published' at all times. I am sorry if I said that. I probably misstated myself. Mr. Moss. I do want to thank you for your testimony, and I am quite sincere in stating that it has been very helpful to us. Mr. SMITH. Thank you, sir, and I appreciate very much the op- portunity to tell you what we think. Mr. Moss. Thank you. The committee will stand adjourned until 10 a.m. tomorrow morning. (Whereupon, at 4:45 p.m. the subcommittee recessed to reconvene at 10 a.m., Wednesday, March 31, 1965.) PAGENO="0089" FEDERAL PUBLIC RECORDS LAW (Part 1) WEDNESDAY, MARCH 31, 1965 HousE o~ REPRESENTATIVES, FOREIGN OPERATIONS AND GOVERNMENT INFORMATION Sut300MMITTEE, OF THE COMMITTEE ON GOVERNMENT OPERATIONS, Washington, D.C. The subcommittee met, pursuant to recess, at 2 p.m. in room 2247, Rayburn House Office Building, Representative John E. Moss (ch~ur- man of the subcommittee) presiding. Present: Representatives John E. Moss, Torbert H. Macdonald, Robert P. Griffin and Donald Rumsfelcl. Also presenit: ~amuel J. Archibald, chief, Government information; David Glick, chief counsel; Benny L. Kass, counsel; Jack Matteson, chief investigator; Robert Blanchard, investigator; and J. P. Carison, minority counsel. Mr. Moss. The subcommittee will come to order. The first witness this afternoon is Mr. Joseph Costa, New York City, representing the National Press Photographers Association. Mr. Costa. STATEMENT OP JOSEPH COSTA, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION Mr. COSTA. Chairman Moss, members of the House Foreign Opera- tions and Government Information Subcommittee, members of the subcommittee staff, gentlemen, it is my pleasure to appear before you at this hearing as the accredited representative of the National Press Photographers Association, the world~s largest organization of visual news reporters. Our membership is drawn from virtually every daily newspaper and television station which maintains a news-picture staff, news magazines, news reels, industrial, scientific, and educational news publications. The president and executive committee of our organization appointed me to accept your invitation to testify in the hope that my more than 40 years as a working news photographer, cofounder and 18-year chair- man of the NPPA board, editor of the National Press Photographer, our official publication and, if I may say, battle-scarred veleran of the fight for freedom of the camera in news reporting could be helpful to this subcommittee in its deliberations on H.R. 5012 and all related bills. In this role, I am here in behalf of my colleagues in photojournalism, to advocate and urge the passage of a true public records law at the 81 PAGENO="0090" 82 FEDERAL PUBLIC RECORDS LAW Federal level. No segment of the working press, more than news photographers, has been taught by bitter firsthand experience, the ex- tent to which the so-called public information section of the Admin- istrative Procedure Act of 1946, during its 18-year history, has been turned into a vehicle to withhold information from the public. It is my understanding that the pressing need for a Federal public records statute has been documented by this subcommittee during the decade of its existence. Hopefully, the word-and-picture testimony presented here today will add effectively to that documentation. With your permission, I should like to establish a broad base for the advocacy of a bill that will forever eliminate language that permits the enforcement of "ridiculous requirements" or that becomes a "shield of secrecy" or encourages abuses in the name of "good cause." Chief Justice Earl Warren of the U.S. Supreme `Court was quoted in an interview as stating: The complexities of life today demand a free and objective preas if the neople are to be informed and make responsible decisions regarding Government. I have great faith in the American people that if they `have the facts they will make the right decision.' In Pope John XXIII's encyclical, Pacem in Terris, he wrote and I quote again: * * * Peace on earth can only come * * * from observance of the "universal, inviolable and inalienable" natural law rights which include: "The right to free- dom in searching for the truth and in expressing and communicating one's opin- ions * * * The right to be informed truthfully about public events." We, of communications media, hold the conviction that those rights need to be respected and exercised by inquisitive newsmen, interested taxpayers, persons properly and directly concerned-all those persons having legitimate and valid reasons for seeking information from the Government. To be more precise, in our advocacy of the bill H.R. 5012, and re- lated bills, the profession I represent is urgently concerned with that part of section 161 (b), which would make all the records of every agency, other than Congress or the courts, promptly available to any person. Our concern is intensified by the repetitious and arbitrary raising of the "shield of secrecy" by the Interstate Commerce Commission, by its enforcement of a ban on all forms of visual reporting from pro- ce~dings which are nonjudicial in character. Yet it has invoked the American Bar Association's Canon 3, Judicial Code of Ethics, as its justification for giving "stronger roots to the weed of secrecy." Your committee's staff has been apprised of this situation. By the way, if I may interject and read to you an interoffice memorandum written by a cameraman to the news director of WBZ-TV in Boston about a de- cision of the ICC to ban news cameramen, and he wrote this: To: Ed Fouhy. From: Jack Chase. Just a note to let you know that in our attempt to cover the ICC hearings at the Hotel Bradford in Boston, we were not allowed to take our camera into the hearing room. Lester Conley, the hearing examiner, said no to my reguest for live camera coverage stating it was ICC policy, raised on a previous experience when sound film excerpts which he said were used out of context had been mis- leading and had caused some embarrassment. `Editor & Publisher, Jan. 9, 1965. PAGENO="0091" FEDERAL PUBLIC RECORDS LAW 83 These are the reasons on which the ICC apparently bases its judg~ mont to ban news reporters. There are those who argue that the word report alone suffices to make any event public-and the press "free." We disagree. The effect of word imagery is based on common experience. If this does not exist, then we can rightly ask whether the man with pictures can and does provide common experience in them, so that the words have a richer and more precise meaning. Do we not find impressive affirmative answers in the word-and- pictures coverage of Gemini and Ranger~ And even the censored photo story of the Russian cosmonauts ~ Words that mean one thing to the writer often moan something else to the reader. If word communication were a precise science, at least half the work of lawyers would not be necessary. As long ago as 1941, members of the Attorney General's Committee on Administrative Procedure unanimously agreed that laymen and lawyers alike were ~`k * * baffled by a lack of published information to which they could turn when confronted with an administrative problem." The Attorney General's Manual has been subjected to as many interpretations as the number of agencies that looked to it for guidance. The introduction of H.R. 5O1~, and related bills, and-indeed- these hearings, would have been unnecessary if word compositions or expressions were not subject to different interpretations by different people. Permit me, therefore, to focus on "complete information" which cannot be assured by words alone; and to state the photo-journalists' position that no report can be complete if it is possible to enhance and clarify the meaning of the words. Now the immediate objective of this presentation is to establish the correct relationship of pictures-of visual communications, if you will-to the word report. I am going to ask you to join me in an ex- periment. I will describe certain events to you verbally. I ask you then to compare your own mind's-eye picture-the image created by the word description alone-with a photograph of each scene. You alone will know how accurate or rich your first mind's-eye picture was, when compared to the photograph of the actual scene. Mr. Moss. Is there objection to the request of the witness ~ Hearing none, the lights will be turned out. Mr. CosTA. In the third round Firpo knocked Dempsey through the ropes. It was one of the most exciting moments in boxing history. This is how the camera saw it. The word description: 87' children * * * 87' children and 3 nuns died in the Chicago school fire. A fireman, his face drawn and hag- gard, carries a boy from the building. Here, in one picture is the whole story. The word image: peering through the shattered windshield, the camera records the pain-distorted face of pretty auto crash victim as she waited to be pulled from the wreckage. Now the actual picture. General Dwight Eisenhower, Supreme Commander in World War II, learns that President Truman has fired General MacArthur from his command in the Pacific. PAGENO="0092" 84 PEDERAL PUBLIC RECORDS LAW I ask you, gentlemen, are there words to match the eloquence of this picture? [Laughter.] Again let me describe `a chariot race in whi~h fleas, not horses, pro- vide the pulling power. An accurate idea of their incredibly small size can `be gotten only by comparison with, well, a fingernail. The four-engined 0-54 leaped skyward, propelled from the short Alaskan runway by jato-assist bottles. Now look at the actual scene. The convicted murderer stands before the bar waiting to be sen- tenced. Now try to visualize how his expression changes from amuse- ment to astonishment, then despair, as he hears the death sentence pronounced. Now look at him. Poised for "scrambling" the instant the alarm sounds, men of the Strategic Air Command are shown relaxing as they pass the night in the ready room. Again, let me show you `the actual scene. Narcotics addiction is an unsolved problem among us. Heroin allows the junkie to escape life's uneven battle. It deadens his desire for wealth, strength, success-even for food. New York's junkies often take their shots on rooftops, where there is less chance of being spotted by the law. Here is how they look in the actual photograph. `Concentrating on one patient at the Government's Lexington, Ky., narcotic facility, Dr. Glaser's face registers the `seriousness with which he regards the problem. What manner of man is he? Shall the words describe him as youthful, tightlipped, bespectacled, tousled? Well, take `a look at him. How muth more does this closeup photo- graph tell you about how this `man dedicates himself to helping the patient solve `her own problem? The world-famous Indianapolis 500 auto races are notorious for tragedy, `and `the recurrence of tragedy, year after year, yet its fasci- nation is irresistible. Let us reverse the procedure now and Show the `pi'cture first. Flames spread instantaneously down the track and `seem to engulf a whole section of `the gran'dstand in fiery disaster. Da~re MacDon- aid's car hit a wall and burst into flame. Eddie S'achs plowed broad- side into MacDonald's car and died `in the smoldering ruin `of `his own cockpit. MacDonald died of burns 2 hours later. But three cars careened safely through the huge fireball-and spectators were spared any serious injury beyond smoke inhalation. This was the story that only words could toll. The word report says forthrightly enough that an extraordinary assemblage of the world's "movers and shakers" converged on New York City to grapple with a staggeringly ambitious subject: solutions to `the eternal human problem of war-or "Peace on Earth," a working title borrowed from Pope John XXIII's "Pacem in Terris" encyclical. What manner of men were they ~ Ijnited Nations belittler, U.N. defender, delegates from the United States, West Germany, France, Belgium, and Great Britain. Let us see photographs of them in conference. No word report could have been complete without the pictures. PAGENO="0093" FEDERAL PUBLIC RECORDS LAW 85 We live in an age of miracles, yet we live in a world in which so much is taken for granted. Photography itself is by way of being a miracle, perhaps even a series of miraculous accomplishments har- nessed to a single purpose. Photography, in everything we do, serves as a vital force in our daily lives. It is, all at one and the same time: teacher, persuader, seller, informer, shaper of images and opinion, a recorder of history. Photography plays an invaluable role in crime prevention and detec- tion, in medical diagnosis and healing, in the study of the extremes of outer space and the ocean floor, in unveiling the mystery of growing things, in revealing the secrets of the food and water that gives us life. Photography is a reformer of mankind's industrial, economic, and social mode of living. Through pictures we can better understand an overall scene, an event of happiness, a tragedy; yes, we can even understand people better if we are able to see them. Obviously then, in the field of com- munication, pictures are indispensable companions to the written word whether the event is a tragedy, a religious or political ceremony, a court scene, a scientific or technological breakthrough-or, as I said, just plain people. Every President for the past 40 years has reiterated his belief in the importance of an informed electorate. Every public servant running for office, at some time or other in his career, inevitably dedicates him- self to the importance of an informed people. Yet we are constantly faced with efforts of people in government, and in many other aspects of public life, who exert their every effort to deprive the public of information to which they are entitled. At this very time we are experiencing perhaps the greatest turmoil in our Nation's history regarding the people's right to vote. Of what possible use is the right to vote if the electorate does not have the in- formation on which to base intelligent decisions? Surely no one can deny that we live in the most complex age in the history of the world. If our people are to be adequately informed, they must be completely informed through every means available to us with today's technology. Scientists tell us that most of the things we learn, we learn through our eyes. Educators have found that they can teach students of every level, including the Armed Forces, faster, more efficiently, and com- pletely, with visual teaching aids. Doesn't it stand to reason that we can inform our people about the world about them better, more completely, and more accurately if our news reports are a combination of words and pictures, rather than words alone? Yet, although there are efforts being made at every level to restrict public information, there is far more discrimination against the visual report than there is against any other form of reporting. Therefore, for all the reasons given in this statement, we respectfully urge the committee to do everything in its power that will help to eliminate the double standard in reporting information to which the people are entitled. Gentlemen, I would be failing in my duty if I were not forthright in asking why, even here in a congressional investigation, word re- porters are permitted to observe, interpret and report proceedings, PAGENO="0094" 86 FEDERAL PUBLIC RECORDS LAW even to describing verbally their impressions of how the committee members and the witnesses looked and acted whereas visual reporters, whose pictures would permit the public to see for themselves, are banned. The late Honorable Learned Hand, in the case of the `United &ates v. The Associated Press, said: (The press) serves one ocf the most vital of all general interests; the dissemi- nation of news from as many different sources, and with as many different facets and colors as is possible. That interest is closely akin to, If indeed it is not the same as, the interest protected `by the first amendment; It presupposes that right conclusions are more likely to `be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have `staked upon it our all.' We respectfully submit that whether it is an ICC hearing or a con- gressional inquiry, the public is entitled to a complete report in both words and pictures. News photographers must have access to news and news sources just as freely as word reporters in order to assure the availability of com- plete information in the public interest. In closing let me repeat that we of the National Press Photographers Association support passage of a `bill that will require each authority of the executive branch of the Government to "make all its records promptly available to any person." In behalf of the officers, directors, and members of the National Press Photographers Association, permit me to express our appreci- ation for this opportunity to appear before you. And, in the name of all those I represent, from coast to coast, I want to publicly thank Con- gressman Moss for his 10 years of dedication and service to the cause of a truly informed public, and for his enlightened and highly success- ful efforts in bringing complete information to the American people, in both words and pictures. If there are any questions I would be more than happy to try to answer them. Mr. Moss. Well, Mr. Costa, I want to thank you very much for the compliment and for the testimony. Mr. Griffin, do you have any questions? Mr. GRIFFIN. Well, Mr. Chairman, I do have a question for Mr. Costa. In view of your testimony and your concern about whether photographers may take pictures, I wonder if this bill permits any- thing that you are not able to do now? It makes records promptly available to anyone and, I suppose, to the extent that you want to photograph records, it would make them more available than other- wise. But what about taking pictures in various offices and agencies of the Government? Do you understand that this bill would allow you to do that? Mr. COSTA. No, I have no such understanding. In fact, my inter- pretation is, sir, that it does not concern itself with pictures at all, and this is one of the things, about which we would like to see some- thing done, if it is humanly possible. Mr. GRIFFIN. I see. Mr. COSTA. For example, the General Services- Mr. GRIFFIN. I had the impression you were in favor of the bill and were satisfied. `Learned Hand in U.~5. v. Associated Press, 52 F. Supp. 3~2, 372 (1943). PAGENO="0095" FEDERAL PUBLIC RECORDS LAW 87 Mr. COSTA. No, sir; for the bill as far as it ges. Mr. GRIFFIN. I see. Mr. COSTA. For example, the General Services Administration bans cameramen from all Federal property all over the whole country, and you must realize that there are bound to be many important news stories to which the pictures can add a great deal of information, that the public is deprived of. Mr. GRIFFIN. I am not being argumentative but in order to get into a discussion on the merits of your request let us consider the fact that a picture is often assumed to be proof positive of an event; yet it occurs to me that sometimes pictures can be very deceiving, depending upon the purpose that the photographer or editor wants to achieve. I can recall a personal experience for example. In 1959 I co- sponsored a piece of labor legislation, and in the eyes of many people I was supposed to be some sort of a demon. I recall making a speech at a banquet in Detroit. In advance of the banquet there was a press conference and a number of photographers took a great many pic- tures. The only one used caught me scowling-I looked about as mean as I have ever looked in my life. That was the image that they wanted to portray of me. That picture was used over and over again by that particular news- paper. I suppose in House committee hearings there is concern as to whether the photographs will portray a balanced picture of what goes on in a committee hearing or will they show only the empty chairs or the Congressman when he happens to be reading a paper? If that is what the photographers or editors want to show, that is what they can show. What is your answer to this concern? Mr. COSTA. My answer is a very forthright one. Pictures can be made to distort and not tell the truth. But we are dedicated to a free press and the principle that the news media editors try to give a balanced report. Words can distort every bit as much or more so than pictures. It stands to reason, it seems to me, that if we are going to rely on public information reaching the people in the public interest, the more sources that the people have of getting that information, sir, the more accurate it is probably going to add up to just as Learned Hand said. While there are exceptions, just as in the legal profession, there are the ambulance chasers, and in the medical profession there are people who do things that are not right, I would be degrading myself if I stood before you and said that every editor in the country always does exactly the right thing. Human nature is frail, to be certain, but I maintain, and we main- tain, if the public can get the word report and see the pictures of the event or people to which they refer, in the majority of all the cases, they will come up with a more accurate understanding of the news event or the people, than they can by one or the other alone. That is the reason I showed here, in connection with the Indianapolis Speed- way crash, that the picture could not tell information that the words did provide. Mr. GRn~n~. Mr. Costa, I am inclined to agree with you. T think it is well that your explanation and your point of view are in the record. PAGENO="0096" 88 FEDERAL PUBLIC RECORDS LAW Certainly editors, both photo editors and the editors of the printed word, have a great deal of responsibility that goes along with their freedom. I think we both recognize that they try to give a balanced picture rather than a distorted one. Still the subject should be avail- able, I agree with you. Mr. COSTA. If I may add to what I just said, there is a continuous program within the media itself for improvement of our ethics~ prac- tices, and techniques. Only recently there was a long discussion in one of the professional publications about balanced reporting in pic- tures. It is the responsibility of responsible editors also to select pic- tures that show both sides of a story just as it is their responsibility to tell both sides of any story in words. So, you see, we are always trying to improve. Just as your hearing here is aimed at improving, something that we are already living with, newspapers, the law, medicine, the professions, we too `are always try- ing to improve, and we make progress slowly. I might point out that in the Senate, at Senate hearings, pictures are permitted. I do not think you find newspapers or news media pub- lishing pictures of empty chairs or of the Senators when their faces are distorted. I think those pictures that are published are generally aimed at giving a balanced report of the particular hearing. Mr. GRIFFIN. I think there is a psychOlogical tendency for a picture more than the printed word to be accepted as proof positive of a sit- uation. ~People are critical of the printed word, and often compare the articles of various reporters, but I think a picture has a little higher standing in many respects- Mr. COSTA. You are right. Mr. GEIWrN (continuing). And there is probably a little more re- sponsibility involved on the part of the photographer `and editor. Mr. RUMSFELD. Would the gentleman yield? I, to `some extent, feel the other way about a picture. I think most people `at one time or another have seen a picture of themselves or of something that they saw with their own eyes that does not represent a balanced picture, whereas most individual citizens have never in their lives had anything written about themselves which was inaccurate, because most people have not had anything written about them, and they tend to accept the written word. We had a situation yesterday in this hearing where the gentleman from the Treasury Department stated categorically that Mr. Jack Anderson's column was not accurate, it was wrong. Now people read that and have no way to know this. But with a photograph, it seems to me, people recognize that possibility. I would like to say in conclusion that I am delighted to be here to hear your testimony, and I think that certainly the problems you put be- fore this subcommittee are worthy of consideration, and certainly the area of picture reporting and picture information is one which should properly be considered. Mr. COSTA. If I may add to this discussion, we conduct workshops at various times through the year in different parts of the country, and we have a publication which I edit, and the one thing we continuously admonish is that pictures carry a presumption of truth and, there- fore, it is incumbent on the visual reporter when he has his film in his camera and, before he pulls the slide, he should ask himself, "Is this picture that I am about to take true or is it false?" This is a gospel PAGENO="0097" FEDEEAL PUBLIC EECORDS LAW 89 that we preach just as religiously as we can, because we are working for the improvement of the tecniques to bring better and more accu- rate information to the public in the public interest. A news cameraman's salary goes on whether he gets a picture or not. He is not paid by the number of pictures he takes. He can go to an assignment and be turned down and go back to his office, and he is not reprimanded. We work for equality of visual reporting because we sincerely believe that the public is being deprived of a means of in- formation which can add to the total report, and make newspapers and news reports more informative. Mr. GRIFFIN. I have no other questions. Mr. Moss. Mr. Macdonald. Mr. MACDONALD. I have very few questions, Mr. Costa. I appre- ciate your coming here. I know of your reputation and of the work you have done on behalf of your people. One thing that is not clear in my mind is that except for the exclu- sion from the House side hearings of cameras and cameramen, how else do you think you are discriminated against, in what way are camera people or television people treated unfairly? Mr. COSTA. I already mentioned the General SerVices Administra- tion which bans photographers from all Federal property, Federal buildings. Mr. MACDONALD. Well, it is not quite true because at least to my knowledge, and you correct me if I am not stating the truth, even though it is, I guess, a rule of the House promulgated by the leader- ship of the House going 1?ack to Mr. Sam, that no cameras were al- lowed in the hearing rooms, I have many times, having left a congres- sional hearing, seen cameras and camera people out in the corridors. Mr. COSTA. I am sure you have. However, this is n~t so across the whole country. Because the Federal Judicial Council has approved the provisions in canon 35 of the American Bar Association, the General Services Administration has ordered cameramen out ef Fed- eral buildings, in order to keep them away from Federal courts. `These complaints come in to us from all over the country. If the committee wishes me to document some of these I will get the informa~ tion together. Mr. MACDONALD. I do not know about the committee, but I person- ~ally would like to, because while I sympathize with you, and I think, perhaps, if you were allowed into House committee hearings they might be more lively, et cetera, I think the opposite has been true where television has become increasingly important in getting their message across to the bulk of the people of America, that many people say that too much attention is paid to television. If I were on the opposite side I would say that, perhaps, we had ~ couple of joint sessions of Congress not for the benefit of the news media by the written word but, perhaps, for the benefit of the people who watch television, so in some ways I think you are protesting a little too much. I agree with you about the House hearings. But past that, I have not heard a valid point that you raise. Mr. COSTA. May I point out that the occasions on which the show, if I may say so, is put on exclusively for television, are those occa- sions when the entire country is concerned with a President's state 45-21~- 65--rt. 1----7 PAGENO="0098" 90 FEDERAL PUBLIC RECORDS LAW of the Union message or some equally important story. However, 1 am not here speaking for live television. I am speaking generally for visual reporting, and I am more concerned with the report on film than I am concerned with the live electronic report. Now, for example, here you have to have a tripod permit to photo- graph the dome of the Capitol with a camera on a tripod. Either if you are a valid- Mr. MACDONALD. I would think that would be a very limited protest, because I doubt if there is much sex appeal for any photographer to take pictures of the dome of the Capitol. Mr. COSTA. Of course; of course. Mr. MACDONALD. There is very little news value that I can see. Mr. COSTA. But you see the tendency might be to judge the rest of the country by what happens here. I am not being argumentative. Mr. MACDONALD. I understand, and I am not either. We are just discussinp~ this. Mr. COSTA. But we get reports from members all over the United States who complain, that they were ordered out of a Federal build- ing in their particular city because they had a camera. Mr. Moss. Would you yield? Mr. MACDONALD. Yes, of course. Mr. Moss. This matter of the GSA's actions to ban photographers is one which has come to the attention of the committee on numerous occasions, and I believe that the last understanding we have with GSA is that photographers are permitted in all Federal buildings ex- cepting in those areas where Federal courts have their quarters. In other words, the Federal courthouse buildings or the combina- tion of post office and court buildings, the areas, the floors, devoted. to the courts, photographers are not permitted there, and that is be- cause of the courts themselves rather than GSA. We did have a couple of instances where GSA building managers attempted to go beyond the policies of the GSA, and to bar photogra- phers from the buildings. When the complaints were received by the c~mmittee, we went immediately to GSA. Unless you have a very recent case, I think the policy is as reflected in the correspondence in the files of the committee. Photographers do have free access now except in the court areas. Mr. COSTA. The latest instance, Mr. Chairman, that I recall from memory, and I do not want to be held to it, would be within the last year, but not within 6 months. Mr. Moss. Well, within the last year we had a case, and that is where we reached this understanding with GSA. Mr. COSTA. I see. Then I am glad to learn that because I think we can run a story about it in our magazine and let our members know about it. Mr. Moss. I thank you for yielding. Mr. MACDONALD. I do not want to prolong this, but just recently the GSA, which runs the Federal Building in Boston, had a student sit-in during the time of Selma, and there was no question that cameras and photographers were allowed in that building run by GSA. So I just use that-that is just 2 weeks ago, so I would think that is a correct statement about current practices of the GSA position. PAGENO="0099" FEDERAL PUBLIC RECORDS LAW 91 But I go back to Mr. Griffin's statement, and I am happy to join with him; I think the old Chinese proverb, which I maybe misquote, but isn't it that one picture is worth a thousand words? Mr. COSTA. May I-this is interesting-may I give you the correct mterpretation. It is "one seeing is worth a hundred tellings," and it has been perverted over the years to "one picture is worth a thousand words," but the actual interpretation I am told by Chinese friends is, "one seeing is worth a hundred tellings." Mr. MACDONALD. I bow to your erudition. I do not have that many Chinese friends. [Laughter.] But isn't the temptation, not on the photographers so much, but on the, I guess, photo editor very strong? If he happens to like a candidate for, say, such an important office as the Presidency, the news corps has to report what was said, and yet a photographer does not have to do anything except catch somebody, as somebody apparently did Mr. Griffin, in an off moment, and- Mr. RUMSFELD. He did not say it was an off moment. [Laughter.] Mr. MACDONALD. He said a thousand pictures were taken, and one was scowling. It must have been a Republican rally, I am sure. But in any event, isn't it very possible and, as a matter of fact, I know it is possible because I traveled on a presidential campaign, and depend- ing on the area and the feelings of the paper in that area, the photo- graphs of the candidate for Presidency of the United States2 if it were in a friendly territory they always came out smiling and patting a child on the head, and if it was an unfriendly territory, I don't know if he would be scowling, but he would be chasing a dog away with a stick or something. And I just say that while I agree in theory with what you say, that because a photo is so concise but it also can give a very false impression, I mean somebody can be here at this hearings for hours and be smiling, and then raise their finger and point a finger at you, and it comes out that somebody is browbeating you, that the re- sponsibilities that go with being a photo editor are even stronger than those of an editorial writer for a newspaper. Would you agree with me or not? Mr. COSTA. They are, they are. But since Mr. Macdonald has raised this point, Mr. Chairman and gentlemen, I would like to comment on it, because I have had experience in this area myself, and I think it is tremendously important that we all understand it. To begin with, the individual who views a picture views it sub- jectively. If he is traveling on the Presidential train he has a sub- jective view- Mr. MACDONALD. Sir, I am not that old, I am sure none of us are. Mr. CosTA. At any rate, may I tell you of an incident that happened when Mr. Roosevelt was campaigning for the last time that he cam- paigned through New York City. It was a miserable, rainy day. The cameramen were in the 14th car, an open car in the procession. I was one of them, and a New York Times photographer, a very dear friend, was with me, and the car was full of cameramen. We toured the whole city, and when we stopped at the Brooklyn Navy Yard to receive flowers from the daughter of one of the workers there or when we stopped at another place and another place, by the time the cameramen left the 14th car in the procession and ran 14 car lengths up, the particular little ceremony for which they stopped was finished, and we got no pictures. PAGENO="0100" 92 FEDERAL PUBLIC RECORDS LAW We finally got into the Kingsbridge Armory in the Bronx where the President was reviewing some Women's Army Corps recruits. Il-us car drove in, and the lady commandant of this group sat in with him, and we grouped ourselves around the car to take pictures. The New York Times man was directly behind me, and he said, "Joe, please, the minute you get your shot will you duck?" And I did. I got a picture and I ducked, and while I was changing the plate, he got his picture. We used glass plates in those days. No sooner had he taken his picture when the President's car drove off. So we each had one picture. At that time I worked for the New Yoik News, which was not supporting Mr. Roosevelt. In my picture he was not smiling, and if you will recall, his health had started to go, and he looked rather poorly. When t'he New York Times man snapped his shot Ille was smiling or laughing at some remark made by the lady commandant. Now, the Times was supporting Mr. Roosevelt. The next morning these two pictures were published. The ne~t, week Time magazine used these two pictures .to prove that editors deliberately select the pictures that will enhance or degrade a candi- date's image according to their own editorial point of view, the very thing you are saying here. I submit that, by and large, for example, on your campaign trip, if I were covering that trip~ I would find it pretty hard working under the crowding and shoving conditions of covering a campaign-which I have done many a time-to `deliberately select attitudes and ta~ke pic- tures that make a candidate look good or had. A cameraman has all he can do to just record anything that happens as it happens, and keep abreast of the moving procession as the situation develops. I honestly think that this is exaggerated out of all proportion be- cause we all view pictures subjectively. Mr. MACDONALD. Just one last remark, Mr. Chairman, ~tnd then I will yield. You spoke about WBZ-TV and Jack Chase writing you this letter. Mr. COSTA. Not to me, sir; to his superior. Mr. MACDONALD. I see; because I was going to say, he is a news- caster, I happen to come from that area, and the editor of this, Denny Whitmarsh, and I would think any protest to anyone would be coming from the editor of WBZ-TV, I am not `doubting it but- Mr. COSTA. I have this letter-of course- Mr. MACDONALD. Secondly, I was wondering what sort of picti~r~s~ he could take of any record that the ICC have? Mr. `COSTA. It was a hearing. Mr. MACDONALD. Yes, of a hearing, that would be injurious to either side. Mr. COSTA. It had to do with the New Haven Railroad bankruptcy, as I understand it. This is of great public interest at this time. Com- muter railroads, particularly in the New York area, Long Island, Now Haven, and others coming in from New Jersey, are very much in the news these days and, of course- Mr. MACDONALD. They just OK'd a merger of the New Haven for freight. Mr. COSTA. Yes, for freight; that is right. But apparently WBZ wanted to cover the hearing because of the great interest in the New Haven Railroad. PAGENO="0101" FEDERAL PUBLIC RECORDS LAW 93 Mr. MACDONALD. What prevented them? Mr. COSTA. Well, according to Jack Chase he talked to Mr. Lester Conley, the hearing examiner, who said, and I am reading from Jack Chase's memorandum to Ed Fouhy, who signed his letter to me as news director, and he said, "that Mr. Conley told him stating it was ICC policy based on previous experience when sound film excerpts which he said were used out of context had been misleading and had caused some embarrassment." Mr. Moss. Would you yie~d again? I can clarify this. This, I think, illustrates the very complex nature of the problem the photog- rapher has. It is a matter which I doubt can. be reached by this subcommittee. The subcommittee received a complaint and followed its usual pro- cedure in attempting to develop the facts. The Interstate Commerce Commission cites statutory authority for exclusion of photographer~. Let me read it: The applicable provisions of the Interstate Commerce Act appear in section 17 and read as follows: "The Commission shall conduct its proceedings under any provision of law in such a manner as will best conduce to the proper dispatch of a business and to the ends of justice. The Commission may from time to time make or amend such general rules or orders as may be requisite for the order and regulation of pro- ceedings before it shall conform as nearly as may be to those in use in the courts of the United States. All hearings before the Commission, a division, individual Commission or Board shall be public upon request of any party interested." Now, the section of the portion of the statute which says that the Commission's hearings or proceedings, whatever their nature, shall conform as nearly as may be to those in use in the courts of the United States is, iii the judgment of the Chairman of the Commission, the basis for their exclusion of photographers from those proceedings. I would say, reading the statute, that they appear to be acting in keeping with their authority. Canon 35 is their authority. Mr. COSTA. Is their authority, that is right. And that is an example of a rule of a private organization that has the effect of law, which is a thing that we have been protesting for all these years. Now, I do not know, I am not a legislator nor an attorney, but I appeal to this committee regarding this statute, if anything can be done about it, the ICC hearing is not a judicial proceeding. Whether anything can be done about it, I do not know. But I do think, when the public has an interest in a hearing such as is going on now about the New Haven Railroad, and they are deprived of seeing the faces of the people who are concerned with this problem and how they are carrying on their investigations and discussions, that it is an infringe- inent of the people's right to know. Mr. Moss. If the gentleman from Massachusetts will yield further, I would say that there are three items raised by your testimony that involve the jurisdiction of three other committees of the House. I believe that the Committee on the Judiciary would have to deal with any question of the Canon 35. I believe that the Committee on House Administration would have to deal with the matter of housekeeping here on the Hill unless that has been given to the Capitol Buildings Commission. I think it probably would be the Committee on House Administration. The item we have just discussed. the action of the Interstate Com- merce Commission, where they rely upon statute-and I think the PAGENO="0102" 94 FEDERAL PUBLIC RECORDS LAW statute is clear on its face-would be a matter which would require the consideration of the Committee on Interstate ~ind Foreign Commerce at any time they might have before them legislation which would amend the ICC Act. There is the problem of how to differentiate between their quasi-judicial role and their quasi-legislative role, and it is difficult to do so. The statute directs that they employ the same procedure in both areas. Mr. COSTA. Mr. Chairman, we get down to the very thing we have been discussing about how people in government tend to make a rule and apply it to their own conceptions. As I understand it, a letter written by Mr. Webb, who is Chairman of the ICC, directed to you on March 22, paragraph 4, he says that: Policy does not permit television, sound recording of the hearing without spe- çial permission of the Chairman of the Commission. I should think that in a case of New Haven Railroad it would be considered to be of sufficient importance that the Chairman would give his permission. Mr. Moss. Was that permission sought? Mr. COSTA. I do not know. Mr. Moss. Because there we go back to a minute of the Commission dated December 22, 1961, which reads as follows: Live, delayed, or recorded television or radio broadcasting of Commission hear- ings or the taking of pictures in the hearing rooms will not be permitted without special permission of the Chairman of the Commission. So there the Commission has acted to authorize its Chairman to grant the permission, but it has to be requested. Mr. COSTA. Yes, I really am not familiar, do not know the circum- stances. Mr. Moss. The complaint the committee received in this instance did not indicate whether the Chairman had been contacted. We sought, as we always do preliminarily, the statutoiy basis for the denial of access, and in this instance the agency was able to cite a statute. I thank the gentleman for yielding. Mr. MACDONALD. I think it would be a good thing to have many of our hearings here in the House subjected, if you want to use that word, to the all-seeing eye of the camera. Mr. COSTA. Thank you, sir. Mr. Moss. Are there further questions? Mr. Kass. Mr. KAss. The problem of the photographer, the news photographer, is in many cases the problem of immediacy. The event is taking place, and he has to take the picture at that time or else the fire or whatever else that is happening is going to go out. The court action, even given top priority, could not take place at the same time as the event is taking place. How would the bill, H.R. 5012, help solve the problem of the news photographer? Mr. COSTA. H.R. 5012? Mr. KASS. This bill, if enacted. Mr. COSTA, I do not see that it would at all. I came here at the invitation of the committee to register our support for anything that furthers the cause of public information. In addition, I plead with the committee to think of the unity of the word and picture report in conveying public information, in all of its deliberations in the future. PAGENO="0103" FEDERAL PUBLIC RECORDS LAW 95 Mr. KASS. But the court access provision, is that not satisfactory to the news photographers? Mr. COSTA. I do not see how that concerns itself with pictures at all, and we are fully aware of the problem here with the Canon 35 business and the Federal Judicial Council policy. Incidentally, I must say that there is a certain degree of inconsist- ency even though I quoted Mr. Justice Warren. He says, on the one hand, give the people the information and they will make the right decision. But as Chairman of the Federal Judicial Council he then endorses Canon 35, and all the restrictions there are on photography thus restricting public information, so it is not quite consistent. Mr. KASS. I have no further questions, Mr. Chairman. Mr. Moss. Again I want to thank you, Mr. Costa, for the pleasure of having you appear this afternoon. Mr. COSTA. Thank you. Mr. Moss. Mr. Larry Speiser. Do you have a statement? STATEW~T OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION Mr. SPEI5ER. I do not have a prepared statement, Mr. Chairman. Mr. Moss. Mr. Kass. Mr. SPEI5ER. I have a few preliminary remarks, if I may. Mr. Moss. All right, if you would. Mr. Srrnsi~n. I am Lawrence Speiser, the director of the Washington office of the American Civil Liberties TJnion, a member of the Bars of the U.S. Supreme Court, the State of California, and the District of Columbia. I am here today to offer the support of the American Civil Liberties Union to H.R. 5012, a bill which would establish a Federal public rec- ords law by amending section 3 of the Administrative Procedure Act of 1946. The aim of this legislation is to provide freedom of information, and it is designed to regulate the information policies of the various ad- ministrative agencies, departments and bureaus of the Federal Govern- ment. We support the general aim and purpose of this bill. Our organiza- tion is of the opinion that access to therecords of Government agencies by the public and the press is vital to the continued functioning of the democratic process. A free society can only exist so long as the public business can be conducted openly via continuing debate and considera- tion of national policies. In the past, we have had some difficulties arising from the section 3 of the Administrative Procedure Act as it presently exists, notably the section relating, which permits the withholding of any matter relating, solely to the internal management of an agency. The most continuing problem we have had in this area relates to the rules that guide investigators, principally security investigators, of the various departments of the Department of Defense. In November 1962 a memorandum was sent to the Under Secretaries of the three services signed by Walter T. Skallerup, Jr., the Deputy Assistant Secretary of Defense for security policy. In it he -the sub- ject of his memorandum was civil and private rights-and i1i it he set forth a very commendable policy to insure that during the course of PAGENO="0104" 96 FEDERAL PUBLIC RECORDS LAW security investigations and interviews that the civil and private rights of the individuals being interviewed and also of others not be rn- fringed. For example, in the memorandum he stated: Inquiries which have no relevance to a security determination should not be' made. Questions regarding personal and domestic affairs, financial matters, and the status of physical health fall in this category unless evidence clearly indicates a reasonable basis for believing there may be illegal or subversive activity, per- sonal or moral irresponsibility or mental or emotional instability involved. The probing of a person's thoughts or beliefs in questions about his conduct which have no security implications are unwarranted. The conclusion of the memo was to refer the matter to the respective departments to review their applicable regulations and instructions,. and requested that they be furnished with whatever changes have been made in their regulations in order to comply with the policies set forth in the memorandum. The memorandum commendably has attached to it the types of questions which should not be asked during security investigations or adjudications, such questions, for example, on religious matters as "Do you believe in God? What is your religious preference or affilia- tion? Are you anti-Semitic, anti-Catholic or anti-Protestant? Are you an atheist or agnostic? Do you believe in the doctrine of the separation of church and state?" With respect to questions on racial matters, "What are your views on racial matters, such as desegregation ?" In other racial mattera like, "Are you a member of the NAACP or CORE? Do you enter- tain members of other races in your home? What are your views on racial intermarriage?" And on through. There are questions on personal and domestic matters, on political matters, such q~uestions as on political matters, "Do you consider yourself to be a liberal or conservative? Do you write your Congressman or Senator on issues in which you are in- terested or to obtain assistance?" After becoming aware of this memorandum which, incidentally~ was furnished by Mr. Skallerup with no hesitancy, he said that this was certainly in the public domain, I wrote to each of the three serv- ices to find out what their regulations were and whether they were in line with this policy memorandum of Mr. Skallerup. I have never received copies of the regulations. I have received replies from the three services, one from one of the services quite belatedly, but in every case they refused to give me copies of their regulations on the grounds that they were internal management guides, and since I have had a number of cases in which the policy of this memorandum has been violated. Mr. Moss. I wonder if it would be possible for you to return on Monday afternoon? Mr. SPEI5ER. Yes. Mr. Moss. With a quorum call in the House, and probably a roll- call by the time we get back, it will be too late to resume the hearings.. Mr. SPEIsiiu. All right (see p. 189). Mr. Moss. The subcommittee will stand in adjournment until 2 o'clock tomorrow afternoon. I express my personal regrets. Mr. SPEI5ER. That is quite all right. (Whereupon, at 4 p.m. the subcommittee recessed, to reconvene at 2 p.m. Thursday, April 1, 1965.) PAGENO="0105" FEDERAL PUBLIC RECORDS LAW (Part 1) THURSDAY, APRIL 1, 1965 HousE OF REPRESENTATIVES, FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SuaCOMMIrrEE OF THE C0MMIrrEE ON GOVERNMENT OPERATIONS, Wa8hi~1igton, D.C. The subcommittee met, pursuant to recess, at 2:05 p.m. in room 2247, ?Rayburn House Office Building, Representative John E. Moss (chair- man of the subcommittee) presiding. Present: Representatives John E. Moss, John S. Monagan, and Don- ald Rumsfeld. Also present: Samuel J. Archibald, chief, government inforina- tion; David Glick, chief counsel; Benny L. Kass, counsel; Jack Matte- son, chief investigator, and J. P. Carison, minority counsel. Mr. Moss. The subcommittee will be in order. We are pleased to have as our first witness this afternoon Mr. Rob- ert Benjamin, of New York City, and Mr. Chisman Hanes, of Wash- ington, D.C., representing the American Bar Association. Mr. Ben- jamin, do you have a statement? STATEMENT 0]? ROBERT M. BEN~A1VIIN, REPRESENTING TEE AMEItI- CAN BAR ASSOCIATION; ACCOMPANIEfl BY CIIISMAN EANES Mr. BENJAMIN. Mr. Chairman, I just have a few initial remarks. We have no written statement. Then I will introduce Mr. Chisman Hanes, who is chairman of the Committee on Public Information of the ABA Section of Administrative Law. He will present some sug- gestions we have with respect to the text of the bill and talk briefly about related matters. Then after that either or both of us would be glad to answer questions. Mr. Moss. Fine; you may proceed. Mr. BENJAMIN. I would like to say initially as chairman of the Special Committee on Code of Federal Administrative Procedure, which is charged with representing the American Bar Association before the Congress in respect of legislation in this field, that we are very much encouraged and delighted with the progress that is being made in the field. We have known the chairman's strong interest and effective interest in this field over a good many years, apart from your having been kind enough to come out and address the Section of Ad- ministrative Law in San Francisco in 1962. We have followed what has been done with the amendment of section 22 in 1958. 07 PAGENO="0106" 98 FEDERAL PTJBLIC RECORDS LAW We have been working also with the Senate Subcommittee on Ad- ministrative Practice and Procedure of their Judiciary Committee, and in that relation I testified on S. 1666 of the 88th Congress in Octo- ber of 1963 and again on S. 1663 and 1666 in July of 1964, and I would like to refer to some of the comment we made then. A good deal of what we thought desirable has been done since in the Senate staff bills, the bill introduced recently by Senator Dirksen, and Senator Long, especially in combining in one section all the ex- emptions which initially had been scattered between the different sub- sections of S. 1666. I would like now to pass the stand on to Mr. Ilanes after simply saying how pleased we are to take part in this effort, your effort to bring something to pass in this extremely impor- tant field. I think it is encouraging that the newspaper people are here on the same afternoon that the bar is, because I think we share strongly the feeling of the importance of getting something done that will really work in this field and of getting rid of the language that so far has been availed of by the agencies more as an excuse for noncompliance than as an exhortation to compliance with the public interest. Mr. Moss. I would like to express my appreciation to the American Bar Association and to many members of the bar who, during the past 10 years, have contributed a great deal to the work of this committee and made it possible for us to move ahead. I thank you for your appearance this afternoon. You may proceed. Mr. IIIANES. Thank you, Mr. Chairman and members of the com- mi:ttee. As you are probably aware, Mr. Benjamin's Committee on the Code of Federal Administrative Procedure is the body that is authorized to speak for the bar association on legislation in this area. The admin- istrative law section, of which I am a member, is authorized to work in an advisory capacity with Mr. Benjamin's committee. Mr. Ben- jamin very kindly asked me to outline a few suggested changes that we have in the bill which we believe will be clarifying and will perhaps help toward the attainment of the purposes of the bill. We are completely in accord on these changes, and after I am through, Mr. Benjamin may want to add some comments on indi- vidual changes himself. In subsection (a) of the bill as now drawn the first sentence is a repeat of the first sentence in 5 U.S.C. 22. The last sentence of 5 U.S.C. 22, which was added in 1958, has been deleted. It seemed to us that it might be desirable to restore that sentence which would read: This subsection does not authorize withholding information from the public or limiting the availability of records to the public. Just to avoid any implication that this deletion might authorize some withholding, we think it is desirable to put the sentence back in, and it is consistent with subsection (b) and the subsequent provisions of the bill. Mr. BENJAMIN. May I interpolate briefly as this goes along? Mr. Moss. Certainly. Mr. BENJAMIN. Of course we recognize that you have got that Ian- guage in the beginning of subsection (c), but we have a suggestion for other language there. PAGENO="0107" FEDERAL PUBLIC RECORDS LAW 99 Mr. HANES. Right. Mr. BENJAMIN. I think the idea of restoring it to (a) is not because logically it is necessary, but because as a matter of controversy, some- body without any justification can always get up and say, "You have taken this out. Now, what was the 1958 amendment that has gone out." I think that was said the other day. Mr. Moss. That is correct. Mr. BENJAMIN. It is so easy to overlook that you switched it some- where else, and we think it is more sensible to avoid controversy by leaving it where it is going on from there. Mr. HANES. If we restored that, I might jump over to the beginning of subsection (c). With that restoration it seems to us it would be better draftsmanship to change the first 2½ lines of subsection (c) which now read, "This section does not authorize withholding infor- ination from the public or limiting the availability of records to the public except"-to delete those and to insert in lieu thereof, "The provisions of subsection (b) shall not be applicable to." Now, going back to page 2, lines 1 and 2, we would suggest the dele- tion of the word "published" at the end of line 1 and inserting after the word "rules" the words "which shall be currently published in the Federal Register." The publications provision in section 3 of the present Administrative Procedure Act I do not think would be broad enough to cover the publication of all the rules that this present bill covers. So therefore it seems to us that it would be well for subsection (b) to carry its own publication requirement-for this bill to carry its own publication requirement. In line 3 on page 2 at the end of the sentence which ends with the ~ord "person," we think it would be desirable to insert "for inspection and copying." If a person were authorized to reeeivC the records, he should be able to inspect and copy them. Now, line 3, page 3, the words "national defense or foreign policy." It seems to us that it would be perhaps more consistent with the pur- poses of the bill to substitute "national security," that national security is really the criterion for the exemption under any Executive order that would be issued by the President, and that it embraces every- thing that properly should be included in national defense and foreign policy. Mr. MONAGAN. You mean you would leave out "for foreign policy." Mr. HANES. We would leave out also "defense" and for both "na- tional defense or foreign policy," we would substitute "national security." * Mr. MONAGAN. For both~ Mr. HANES. For both. In line 7 on page 3 the exemption which deals with trade secrets and commercial or financial information as now written contains the phrase "obtained from the public." We are a little confused by that phrase "obtained from the public." There might be some impli- cation in that that only trade secrets or commercial information ob- tained in a census or by some means which is of general application would be subject to the exemption. I think it is the intention of the committee and the staff to exempt any trade secret or commercial or financial information which is of a privileged or confidential character which is acquired either from PAGENO="0108" 100 FEDERAL PUBLIC RECORDS LAW one party or from a group of parties. So we would suggest instead of "from the public" the insertion of the words "from a nonagency source." Then in that same subsection, in line 17 at the end of the subsection we would suggest the deletion of the period and then after "institu~ tions" the addition of the following: Provided, That records received from another agency which are exempt in hands of such other agency under this subsection shall continue to be exempt in the hands of the receiving agency. Nothing contained herein shall be deemed to prevent the discovery of documents in judicial or administrative proceedings in accordance with applicable rules of law. Now, the proviso which we first suggest it seems to me just carries out the intent of the bill. The mere fact that a record is transmitted from one agency to another does not change its exempt or nonexenipt. status. If it is exempt or nonexempt in the hands of one agency, and if it is transmitted over to another, it should retain the same character. The additional sentence which provides that "nothing contained herein shall be deemed to prevent the discovery of documents in ju- dicial or administrative proceedings in accordance with applicable rules of law" seems to us important because in judicial proceedings or administrative proceedings where a private party is involved, that pri- vate party under the applicable rules of law might be entitled to have produced by an agency certain documents which are exempt in these eight categories. He might be entitled to have them produced for the specific purposes of his case, and the discovery rules under the Federal Civil Rules, or any other applicable provisions of law, should remain as they are. But we felt that this sentence ought to be put in there to make that clear. Mr. KASS. Excuse me, Mr. Hanes. Do you have an additional car- bon copy of that ~ Mr. HANES. Yes, I do. Mr. KASS. Thank you very much. Mr. HANES. Mr. Benjamin has just reminded me that we overlooked one insertion in subsection (b) in line 20 on page 2. In the sentence which begins "As used in this subsection", we should also insert "and subsection (c) ", so that the term "agency" would be defined for sub- section (c) as well as subsection (b). Mr. BENJAMIN. May I interpolate one thing. This language we have about changing hands from one agency to another derives from the ABA proposed code which in the 88th Congress was 5. 2335 and we expect to be introduced again. That is one part of that-several things we have said are reflected in S. 2335. I would just like to mention it on appropriate occasions, because it is not exactly like S. 1336 or the old 1663. It has played a considerable part in the revisions from time to time of S. 1663 and 1336, and I think it is useful for anybody, including this committee, who is dealing with this general subject to look at that bill also as one of the sources of suggestions. This happens to be one of them. You find that, among other things, printed in the comparative print that the Senate subcommittee staff got out last April. Mr. HANES. Our final suggestion has to do with the present section 2 of the bill. It seems to us it might be appropriate to try to make the repeal provision somewhat more precise~. The provision of law PAGENO="0109" FEDERAL PUBLIC RECORDS LAW 101 to which it would have application is the present section 3 of the Administrative Procedure Act, and consequently we are suggesting that the present section 3 of the bill that is before you be deleted and that in lieu of that we insert two new sections. One section would amend subsection (b) of section 3 o'f the Adminis- trative Procedure Act to make it conform with the provisions of this bill. That subsection is now subject to the exemption provisions which are contained in section 3', namely, "any function of the United States requiring secrecy in the public interest or any matter relating solely to the internal management of an agency." Of course that is not consistent with the exemption which we have here. Subsection (b), which is subject to those exemptions, now reads that "Every agency shall publish or, in accordance with published rule, make available to public inspection all final opinions or orders in the adjudication of cases (except those required for good cause to be held confidential and not cited as precedents) and all rules." Now, in order to make `that `conform, we would suggest that we add a new section `2 to this bill which would provide: Sac. 2. Subsection (b) of section 3, chapter 324, of the act of June 11, 1946 (60 Stat. 238), is hereby amended to read as follows: "(b) Every agency shall publish or, in accordance with the requirements of section 161 of the Revised Statutes of the United States (5 U.S.C. 22)- which is this section- "make available, all final opinions or orders in the adjudication of cases and all rules." Additionally we would suggest that a new section 3 be added to repeal subsection (c) of the present `section 3 of the Administrative Procedure Act, because we believe that subsection would be incoli- sistent with the bill that we have before us. Mr. Benjamin, would you like to sum up? `Mr. BENJAMIN. No. I think that Mr. Hanes has covered what we had to suggest, and as I `said before, either of us would be glad to answer any questions. Mr. Moss. Mr. Kass? Mr. K~&ss. Mr. Ilanes, I want to thank you for this excellent analy- si~ of the bill and the suggested changes. Mr. HANES. Thank you. Mr. KASS. Mr. Hanes, in the 19-year history of the Administrative Procedure Act, since 1946, has the public information section, section 3 of that act, been a true public records law in your opinion? Mr. HANES. It has not in my opinion, Mr. Kass, but I think that Mr. Benjamin is well documented on this subject because he has been working on an amendment of that section for many years. I think- and I am going to ask him to comment on it-I think it is true that the fact that it has not been a true public records law has been doc- umented time and time again by the Hoover Commission and by the hearings that were held on section 1663 last year and by the work of this committee itself since 1955. But Mr. Benjamin might like to add something to that. Mr. KASS. Mr. Benjamin? Mr. BENJAMIN. I would think that the primary source of the answer to that question is the work of this subcommittee, or at least as im- portant a source as any. And I should think a most important source. PAGENO="0110" 102 FEDERAL PUBLIC RECORDS LAW I think it is quite clear that since the Administrative Procedure Act has been in force, it has been used wore often as an excuse for not furnishing public information than as imposing an obligation to furn- ish information where I think it should be furnished. That is, I doubt that any information has been furnished except for publication in the Federal Register that would not have been furnished anyway if the Administrative Procedure Act had not been adopted, and I think it has been used as an excuse, that and the old section 22 were used as excuses for not furnishing information which, if they had not offered the sur- face excuse, might have been furnished. Mr. KASS. Mr. Benjamin, I had refrained earlier from asking you any questions because you said your doctor told you not to work. Mr. BENJAMIN. Oh, that is all right, I feel fine today. Mr. KAss, I hope these questions will be more enjoyable than work. Either Mr. Benjamin or Mr. Hanes, do you then think that an amendment to section 5, United States Code, title 22, the housekeeping statute, would be, for the purpose of establishing a: Federal piil~Tic records law, the better place for such a law than in the Adminis- trative Procedure Act? Mr. BENJAMIN. I think there are some advantages to including it in the Administrative Procedure Act. Mr. KAss. As a cross-reference? Mr. BENJAMIN. Yes, because whether it is adopted as this first, otherwsio I think it is less awkward to put it in a new Administrative Procedure Act than to repeal parts of the present Administrative Procedure Act, and I think the rest of section 3 of S. 1336 or S. 1668 of the last Congress in the Senath~ have other things to do with public information which are also important, and I think there is logic in hnv- ing them all in one section. But this seems to me the most important feature of S. 1066, I guess it is, in this Congress, which was S. 1666 in the last Congress. This is the mot important feature of it. I am in- formed it is 1166. Mr. KASS. For the record, S. 1666 referred to was the bill passed last year by the Senate to amend section 3 of the Administrative Procedure Act. For the record also, S. 1160 was the bill introduced this year by Senator Long to amend section 3 of the Administrative Procedure Act. Mr. BENJAMIN. There are a few minor differences in the new bill and the bill that passed the Senate last year. Mr. KASS. Yes, sir; there are. Mr. BENJAMIN. But they are not of great consequence. Mr. HANES. Mr. Kass, I just want to say~ supplementing what Mr. Benjamin has said, that while we think that the provisions of this present bill, which would replace subsection (c) of section 8 of the Administrative Procedure Act, are most important, it does seem to us that there are some advantages in having in the same bill complete provisions with regard to publications and complete provisions with regard to making available agency opinions and decisions, which would be in the first two sections of an amended section 3 of the Administra- tive Procedure Act. Mr. BENJAMIN. I do not think either of us wants to let that go wlthout saying that we would much rather have a separate bill like PAGENO="0111" FEDERAL PUBLIC RECORDS LAW 103 this, if there is any delay in the progress of S. 1166 in this Congress. Mr. HANES. Right. M. BENJAMIN. I mean this accomplishes the major part publica- tion in the Federal Register, rules publication is pretty good as it is now. This is the major change to be accomplished, and I would not want anything we say to act in the slightest as a drag on the progress of this bill either in the House or in the Senate. Mr. KAss. Mr. Benjamin, one of the reasons that the bill was in- troduced as an amendment to 5 U.S.C. `22 was that the Foreign Opera- tions and Government Information Subcommittee under the chair- manship of Congressman Moss sent out a questionnaire asking all of the agencies, departments, boards, and commissions in the Govern- ment-approximately 102-whether 5 U.S.C. 1002, section 3 of the Administrative Procedure Act was applicable to them. Despite the language of the Attorney General's Manual on the Administrative Procedure Act saying that section 3, the public information section, is applicable to every agency in the Government, many agencies have informed the subcommittee that, since they do not make rules and are not adjudicatory agencies, the section does not apply to them; and, therefore, there is no Federal public records law applicable to them. Mr. BENJAMIN. Well, I hope that would be changed by the adop- tion of 5. 1336, for example, or a like bill in the House. Mr. KASS. And this is why the language of H.R. 5012, this present bill, makes it clear that the word "agency" is to include each authority of the Government other than Congress and the courts. Mr. BENJAMIN. Yes. Mr. KASS. Mr. Benjamin, 2 days ago the subcommittee took testi- mony from Assistant Attorney General Norhert Schlei, and he re- ferred to the problem that this bill, in his opinion, was unconsti- tutional. Could you comment on that problem? Mr. BENJAMIN. Yes. I read Mr. Schlei's testimony. While he talked about the Executive privilege, he also said that the only way it could be really well exer- cised would be to leave each agency to deal with its own problems because they were the only ones that knew about it. Now it seems to me that a very important part of this whole ques- tion of Executive privilege is the answer to the question who deter- mines when it is to be exercised. Under President Kennedy that was quite clear as the chairman developed in his talk in 1962 to the Ameri- can Bar Section of Administrative Law; it was the President's decision. I do not believe there has yet been any announcement by President Johnson about what he is going to do about this. I would hope he would follow the same line. Certainly it would seem to me that if the President himself exercises judgment on what is an appropriate occasion for the exercise of Executive privilege, it would be most highly unlikely that he would exercise it in any instance that is not in effect covered by these exemp- tion provisions of subsection (c) as they now stand in H.R. 5012. If be did exercise it in a more far-reaching way, it is also perfectly clear to me that then there arises a question for the courts as to where that exercise of Executive privilege stands. PAGENO="0112" 104 FEDERAL PUBLIC RECORDS LAW That being a constitutional right of the President's, it is perfectly clear also that nothing in the statute can limit whatever his consti- tutional powers are in that regard, and any public information bill would necessarily be in recognition of the fact that the final ques- tion of whether the President's powers go further must be left to the future. But to try to draft a bill that over the years would always fit all the instances in which an informed President mi~'ht want to exercise the Executive privilege would be an absolute futility, it seems to me. There would be no chance of drawing such a bill, and I see no reason to take that defeatist attitude and not the best we can in trying to foresee the categories of things to which the exemptions should apply as this bill has done. Mr. Moss. It seems to me after 10 years of rather careful con~ sideration of this problem that there is never difficulty in finding it in. the public interest to withhold for good cause found. rllhere is a tent large enough to contain everything. I am not too concerned if the President exercises a judgment. Mr. BENJAMIN. No, and we are of course delighted to see that phrases like "in the public interest" or "for good cause" are not in this bill, nor were they in S. 2335 or the Senate bills. These get down to deal with particular reasons for allowing non- disclosure in specific kinds of cases where that is justified. Mr. Moss. It has been suggested we should go back to "public inter- est" or "for cause." But actually, we could change it and say "for any reason," could we not? Mr. BENJAMIN. Just about- Mr. Moss. And achieve the same i~esult? M. BENJAMIN. I once heard a comment by a man named Schump- eter, who was the last Minister of Finance in the Austrian monarchy,~ and who was a convinced monarchist, the only one I have ever heard carry this out philosophically. But he had a remark which was that every statesman, when he prays at night, say "Pray God save my country and to that end keep me in office." Well, it is very much the same thing when it comes to deciding what the public interest is when somebody wants to interfere with what you are doing a little bit by asking you to disclose it. Mr. Moss. Mr. Monagan, do you have some questions? Mr. MONAGAN. Thank you Mr. Chairman. I certainly subscribe to the second portion of Mr. Schumpeter's statement, from a personal point of view. I do want to compliment the American Bar Association, of which~ I am a member, on your appearance here today. I think it is a fine, public-spirited function, and I am glad that the public can under- stand that the association is engaged in activities such as this which are not immediately related to fees or perquisites of the members of the bar. Also, your suggestions I think have been very helpful and will aid us in going over this bill. There is just one point. On page 3, line 3, Mr. Hanes, you sug- gested putting in "security" instead of "defense", and also leaving out "or foreign policy". My question is, Would that not make this somewhat more limited,. because "security" does have the connotation of being connected with "defense"? Might there not be matters of foreign policy, such as trade PAGENO="0113" FEDERAL PUBLIC RECORDS LAW 105 or other nondefense areas that would be excluded if we changed this language? Mr. HANES. You mean, Mr. Monagan, such matters would be ex- cluded from the exemption; is that right? Mr. MONAGAN. Right. Mr. HANES. I think that is possible, and we debated considerably a~ to whether we should make this suggestion. Last year when we met with the staff of the Senate subcommittee, and subsequently when Mr. Benjamin testified on S. 1663, we had made this suggestion. At that time we were told by the counsel for the Senate subcom- mittee that it was his feelitig that the present language was more re- strictive than national security. Now, I think we could debate that at length as to which is less re- strictive or more restrictive. We do not have a strong feeling, at least I do not, and I believe Mr. Benjamin would echo this, that we do not have a strong feeling about this particular suggestion. But it did seem to us that the subject matter which is primarily intended to be included in the exemption is that which relates to national security. Mr. MONAGAN. That may very well be. Mr. HANES. Yes. Mr. MONAGAN. And I just wanted to clarify your thinking. Mr. HANES. I can conceive of circumstances in foreign policy when there might be something that for the advantage of the country should be subject to exemption that would not be included within national security. B~it, basically, I think what we are getting at is the national security. Mr. BENJAMIN. I would like to add to that that what we are talking about here is the permissible content of an Executive order, and I think it is well to be somewhat general in talking in those terms. We are assuming now that the President will exercise the Executive privilege to say that this is exempt from disclosure, and there are cer- tainly things that are referred to generally as internal security, for example, which he might well want to include, and which I would be the last to say he would be arbitrary in including. Therefore, I do not like to be quite as limiting, quite as much as of limitation on the presidential powers as suggested by these two categories which I think do not quite cover the field that he might well take into account. Mr. Moss. I would suggest that the amendment proposed does broaden it rather than limit. The counsel for Treasury, in an appear- ance before the committee, recommended that it be broadened by changing "defense" or "foreign policy" to "security". We discussed it at length then because the present Executive order 10501, which was originally issued by President Eisenhower, relates to defense, and authorizes, of course, the three categories of classification and the pro- cedures for protecting information. We were actually drafting a bill.in conformity with that Executive order. But I think that the security does broaden here, because cer- tainly the sec~urity of the Nation is more than just protecting it from any overt action. Mr. MONAGAN. Oh, yes. Mr. Moss. It is the financial security, the well-being of the Nation~ Mr. MONAGAN. I think we have covered the point anyway. Thank you. 45-213---65-pt. 1-~---8 PAGENO="0114" 106 FEDERAL PUBLIC RECORDS LAW Mr. BENrAMIN. I am interested in knowing that the Treasury has made this suggestion, because I get a little weary sometimes of being set up, the American Bar Association, by some of the agency witnesses as if we were concerned only with our clients. In some cases you might think they were saying that all we were trying to do is to make trouble for the agencies, and I would like to point out, as I did in an article in law and contemporary problems about the ABA program, that very often our suggestions are in the agency interest, and this is an instance; I mean the suggestion here is obviously not to get at more documents. We are making a suggestion to make it perhaps more likely that something will be exempted by presidential order. But it seems to us, it seems to me at any rate, that that ~s a reasonable agency con- ceri~i, and where there are reasonable concerns, we try to pay attention to them. There is also a reference in this article of mine to the English experience of making reports available that has not been available before, and suddenly finding that there had been considerable im- provement, according to one of the official witnesses, in their public relations. I think the agencies quite often overlook that, that some of this remedial legislation really helps them in helping their public relations, and in the end they will be better off and accomplish more than if they were successful in their complete opposition to a lot of this. Mr. Moss. I think there is great truth in that, and have frequently urged the agencies to consider the fact that they could improve ~their image by being a little bit more candid and a little freer. Frequently when they are trying to cover up by holding tight to the information, all they do is succeed in making an issue where one really did not exist. A little bit of fear perhaps, but that is about all. Mr. Monagan and I are going to have to go over and respond to this rolicall. The committee will recess. We will get back as quickly as we can. It should not be more than about 15 minutes. Would it be possible for you to remain so that when we get back Mr. .Kass can ask a couple of additional questions? Mr. BENJAMIN. I should think so, yes. (Recess.) Mr. Moss. The committee will resume. Mr. Kass, you had some additional questions. Mr. BENJAMIN. May I, before we begin, introduce Mr. Joseph B. Hyman, who does not need an introduction, I am sure. He has been working with the committee of which I am chairman, most usefully. He ~ot lost looking for room 2147 instead of 2247. Mr. Moss. This building is one where many are being lost today, in- cluding Members of the House. Mr. KAss. Mr. Hanes, H.R. 5012, section (b), gives an individual who has been denied information by an agency of the Government the right to go into court and seek judicial relief to obtain that infor- mation. Do you think, as a representative of the American Bar Association, That this would cause any problems for the courts? Do you favor this provision? PAGENO="0115" FEDERAL PUBLIC RECORDS LAW 107 Mr. HANES, Well, I might point out, and I believe this is correct, that when Mr. Benjamin testified earlier, and when we met with the committee staff, we suggested that the judicial remedy be of a general nature that would have application beyond the public information provisions of section 3 of the Administrative Procedure Act and that section 3 not contain a separate, special judicial remedy. Now I realize this bill is being considered separately and apart from the rest of the changes in the Administrative Procedure Act, and you would have to include a judicial remedy here if you intend to make dear that it is available. I am not quite certain I understand, Mr. Kass, whether you are ask- ing whether there should be standards spelled out in here which would be employed by the courts, or whether you are asking whether or not I think the judicial remedy would create a substantial voume of litigation. Mr. KASS. This is the thrust of the question. Mr. ITANES. Yes. Mr. KASS. The last part. The agencies have come up and stated that they felt the bill, if enacted, would in effect clutter up the dockets of the court. Do you think that this would be a problem? Mr. HANES. It would be my guess that it would not increase the volume of litigation in the courts substantially. I think in most cases, once the bill were enacted, information that was desired would be made available. In the beginning there would probably be some test cases which would test the specific exemptions in the act. But I would not think it would create any major volume of litigation. Mr. BENJAMIN. I think that is correct. I think our experience in New York might be relevant. In New York almost any administrative agency proceeding, whether or not there is a formal hearing requirement, is reviewable by the courts; if there is no hearing requirement, by a proceeding in the nature of man- damus to review. And theoretically there are hundreds of thousands of agency determinations that are subject to review if there is merit to them. But we have not found at all that that has overburdened the courts. The same argument was made where we recommended in S. 2335 that there be a proceeding to enjoin, a court proceeding to enjoin a~u~geney proceeding clearly in excess of jurisdiction, which is very much like the old proceeding growing out of the writ of prohibition that we have in New York. Again, while the agencies in opposing our proposal here say that the courts would be swamped, it certainly has not been found to be true in New York under the available proceeding in the nature of pro- hibition. I do tiot think it would be here. I think once the thing is spelled out, people generally acquiesce. For one thing, it takes so much more effort to constantly litigate that I think the tendency ultimately is to stop it where you are not getting anywhere, and I think gradually at least, if not to begin with, the lines of action would be so clear here that there would not be anything to go to court about. PAGENO="0116" 108 FEDERAL PUBLIC RECORDS LAW Mr. KASS. Mr. Benjamin, this bill has removed the criteria that persons must be properly and directly concerned, and substituted for that criteria the nature of the information itself. Do you agree with this criteria? Mr. BENJAMIN. No, 1 agree with the change. Mr. KAss. With the change? Mr. BENJAMIN. I think the criterion was a mistake, and in the same general direction we have tried in our legislation, as has the Sen- ate committee dealing with it, to get rid of some of the `extremes of the doctrine of standing to sue. 1 think, generally speaking, the question should be, what are you trying to review and not, who is trying to review it. You get so caught up in technicalities on finding out who is affected and this and that, that you get again a great waste of time, and second, denial of any relief to somebody who ought to have it. Mr. KAss. I have no further questions, Mr. Chairman. Mr. Moss. Mr. Rumsfeld. Mr. RUMSF~ELD. I would like to apologize for my absence during a portion of your testimony because of the debate on the floor of the House, and just make sure that I understand what your previous testi- moiiy was. Is it correct to say that you have indicated your conviction that the bill as before you is constitutional? Mr. BENJAMIN. I would put it this way: I would say yes, but then~ I would say that the question of constitutionality is always one of the application of a statute, and it may very well be that something that is not spelled out here may be within the constitutional executive privi- lege of refusing information. But I think it would be a waste of time to try to forecast what the details of that are, and I think the bill would certainly be constitutional in almost all, if not all, of its applications. And if it is held to be constitutionally inapplicable to a particular at- tempt of the executive to rely on the executive privilege, that is not a criticism, a legitimate criticism of the bill. It seems to me any good piece of legislation always presents that possibility around the fringes of its application, and that is quite proper that it should. Mr. RUMSFELD. I thank you, and I might say I certainly agree with what you have said. A previous witness indicated that because of this question of execu- tive privilege, that this bill in his words should contain reference to executive privilege. Now at that time I believe I made the comment that because this concept of executive privilege would flow from the Constitution, I could not see why any such provision should be put in or even would be desirable to have in. Is this your conclusion also? Mr. BENJAMIN. Yes, I think it is perfectly obvious that the execu- tive privilege is there, whatever the limits are that the courts will set out, and the legislative history will make it clear that the Congress had that in mind. But to try to spell it out any more would be futile, I think. Mr. RUMSFELD. I quite agree, thank you. Mr. Moss. Gentlemen, I want to express my thanks and that of the subcommittee for your very constructive suggestions and your helpful interest in this legislation. PAGENO="0117" FEDERAL PU~3LIC RECORDS LAW 109 Mr. }{ANES. We want to thank the subcommittee. Mr. BENJAMIN. We want to thank the subcommittee for giving us ~this opportunity to take part. Mr. Moss. Our next witness is Mr. John Colburn, editor and pub- lisher of the Wichita, Kans., Eagle and Beacon, representating the American Newspaper Publishers Association. Mr. Colburn is an old friend of the subcommittee who has been most helpful from the very beginning sessions back in 1956, I believe. Mr. Colburn, do you have a statement ~ STATEMEI~T OP JOHN H. COLBURN, EDITOR AND PUBLISHER, WICHITA (KANS.) EAGLE AND BEACON, REPRESENTINC+ THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION Mr. COLBURN. Thank you, Mr. Chairman. My name is John H. Colburn. I am editor and publisher of the Wichita (Kans.) Eagle and Beacon. Today I represent the American TNewspaper Publishers Association (ANPA), an organization of more than 920 daily newspaper members with 90 percent of the total daily newspaper circulation in the United States. ANPA advocates favorable action on House bill H.R. 5012. This measure to require Government agencies to make "records promptly available to any person" is of vital public interest. Certainly~w~ were delighted to see the testimony of the distinguished gentleman from the American Bar Association, and I think con- structive suggestions for improving this legislation even further. Most of my 35 years as a reporter, foreign correspondent, and editor have been dedicated to keeping the public informed as to how Gov- ~ernment affairs are conducted. Since World War II especially, I ~have been more and more concerned by efforts of Government agencies to deprive the people of legitimate information, which they need to properly exercise their role as responsible citizens. Before I became a member of the ANPA Federal Laws Committee, I had the privilege of serving as chairman of the Freedom of Infor- ~mation Committees of the American Society of Newspaper Editors and the Associated Press Managing Editors Association. I am per- sonally aware, as the chairman noted, of the excellent work done by Congressman Moss, his subcommittee and staff of experts, which has certainly been an excellent service in exposing example after example of unjustified Government secrecy in the conduct of the people's affairs. Senate passage last year of 5. 1666, the "Right to know" bill, re- flected a growing conviction among Members of the Congress that such legislation is necessary. It also reflected a determination to recognize the concern among informed people that Government sec- recy has exceeded proper bounds. It is gratifying to our ANPA membership to note the strong bi- partisan support already accorded the legislation you are considering today. In our view, the amendments needed to implement an effective Fed- eral public records law are badly needed. They are long overdue. This is amply demonstrated by the sorry record of experience with the secrecy loopholes in section 3 of the Administrative Procedure Act since 1946. PAGENO="0118" 110 FEDERAL PUBLIC RECORDS LAW Let me emphasize and reiterate the point made by others in the past: Reporters and editors seek no special privileges. Our concern is the concern of any responsible citizen. We recognize that certain areas of information must be protected and withheld in order not to jeopardize the security of this Nation. We recognize legitimate reasons for restricting access to certain other categories of informa- tion, which have been spelled out clearly in the proposed legislation. What disappoints us keenly-what we fail to comprehend is the continued opposition of Government agencies to a simple concept. That is the concept to share the legitimate business of the public with the people. It is not a new concept. It was the basis for enactment of the Administrative Procedure Act in 1946. Senatpr McCarran, chairman of the Conunittee on Judiciary, in reporting the measure to the Senate, put the concept in these words: The section (see. 3) has been drawn upon the theory that administrative operations and procedures are public property which the general public, rather than a few specialists or lobbyists, is entitled to know or have ready means of knowing with definiteness and assurance. This simple concept would take much of the mystery and the secrecy out of Government operations. It was needed in 1946 beoa~use Federal regulatory agencies had abused their power through arbitrary, capri- cious, and oppressive action, action that was protected then by a policy of secrecy and still is protected today. But what happened? The results under section 3 were far different from that conceived by its framers. Instead of opening channels of information, section 3, as interpreted in practice, did precisely the opposite. The Senate Committee on the Judiciary, in its 1964 report recommending passage of S. 1666, noted that section 3, now "is cited as statutory authority for withholding of virtually any piece of information that an official or an agency does not wish disclosed." Please note that this is not a complaint of some newspaper organiza- tion or public group. This is the conclusion of a responsible and respected committee of Congress. It is concerned with the need for a better informed public. It is significant that the committee indictment went on to say: Under the present section 3, any Government official can, under eovi~r of law, withhold almost anything from any citizen under vague standards-or, more precisely, lack of standards-in section 3. It would require almost no in- genuity for any official to think up a reason why a piece of information should not be withheld (1) as a matter of "public Interest", (2) "for good cause found", or (3) that the person making the request is not "properly and directly con- cerned". And even if his reason has not a scintilla of validity, there is abso- lutely nothing that a citizen seeking information can do because there is no remedy available. Here is ample reason, based on careful evaluation of testimony and research, why amendments are needed. Our citizens are being de- prived of fundamental rights. As Government has grown bigger and more complex, information manipulation and control has become more sophisticated. Access to news sources, reports, findings, depart~ment rulings and opinions, comes under tighter restrictions. A gigantic information screen, that can be penetrated only by time- consuming diligence or connivance, shields Government departments and agencies. PAGENO="0119" FEDERAL PUBLIC RECORDS LAW 111 This screen of secrecy is a barrier to reporters, as representatives of the public-to citizens in pursuit of information vital to their busi- ness enterprises-and is a formidable barrier to many Congressmen seeking to carry out their constitutional functions. Many loyal, con- scientious Government employees share our concern. They recognize the right of a taxpayer to know how his money is being spent; to know how public business is conducted; the reasons for decisions that affect the lives, businesses and future of our people. A the Senate Committee on the Judiciary found in 1946 and found again in 1964, and as this subcommittee has reported in the past, there is no justification for most of the secrecy. If permitted to continue, this policy of secrecy will lay the foundation for a totalitarian bureauc- racy, that will be an even greater threat to public welfare. This subcommittee I hope will share our concern for the future as well as the present. Well-educated citizens already tend to regard problems of Government as too technical and too complex to follow closely. Their apathy has grown with the more intense manipula- tion and control of information and the frustrations of trying to cope with Government redtape. Donald N. Michael, a social psychologist and a resident fellow of the Institute for Policy Studies here in Washington, makes some pertinent points about the future in a new book, "The Next Generation." He notes that our concerned young people and adults will continue to feel frustrated and inadequate in the face of complexities and secrecies. He foresees a mounting trend toward developing policies through a technique of rationalization., which may be based more on technologi- cal factors than on wisdom. These techniques of rationalization can have good andbad consequences. At their worst, Dr. Michael says, they could lead to a garrison state. (Parenthetically, we might point out that in the hearings on Senate bill S. 1666, the "right-to-know" bill, Government agencies appeared to utilize rationalization rather than wisdom to justify policies deny- ing access to information.) Some time ago in a paper presented to a symposium at the Battelle Memorial Institute in Columbus, Ohio, Dr. Michael, who is an ex- pert in the study of cybernetics, raised other questions about bow com- puter techniques may affect demooratic processes. These same ques- tions also concern the public interest in how Government decisions are reached. "Roughly, the situation to be faced," said Dr. Michael, "is that so- cial problems to be met will require the increasing application of com- puters by the Government to clarify the problems and opportunities, and to design and implement effectively the needed programs for social betterment." Ho notes that often defense and foreign policies are formulated through analysis of data processed by computers and that the basis for these decisions are "only dimly apprehended by the informed pub- lic and totally beyond the comprehension and often the interests of the general public." Then Dr. Michael asks, "How, then, wilT the interested layman be able to find out what `models' were used that provided the `facts' or interpretations on which the policy is based ~" These are vital public questions as to how Government decisions are reached. They will grow in importance as so-called "thinking ma- PAGENO="0120" 112 FEDERAL PUBLIC RECORDS LAW chines" are used more and more in decision-making processes. Such questions make it all the more imperative that in the future there be greatei~ access to information in our Government agencies. The new technology is not limited to agencies charged with making defense and foreign policy. It is being utilized also by the agencies concerned with education, welfare, highways and natural resources, agencies that are not entitled to secrecy protection on the grounds of security. Who is responsible for the computer programing? Who is responsible for the selection of raw material fed into the computer? Who is responsible for the analysis that goes to our policymakers as a study report or policy recommendation? These questions concern social and political scientists, other in- formed citizens, the press, and they puzzle many Members of Congress. But there are more obvious cases involving denial and manipulation of information that have nothing to do with new technology, with security or any other legitimate reasons. The pattern is clear from reams of previous testimony. Earlier, I mentioned barriers faced by Congressmen, as representatives of the people. Let's take a look at the Congressional Record for April 21, 1964, by two Members of Congress with offices just down the hall from this hearing room. A member of the House Subcommittee on Defense Appropriations, Congressman William E. Minshall, of Ohio, expressed dismay con- cerning changes made in Department testimony under the guise of security. After rechecking the original transcripts that were locked in the subcommittee safe, Mr. Minshall said: More times than not the only security involved was the political security of the present administration. it was political censorship, not flational security, that was the guideline in determining what should be left for you to read in the final printed copies of the hearings. The printed hearings only hint at what Secretary McNamara actually said about the interlocking of our defense and foreign policies. Congressman Minshall contended further that half of Gen. Curtis LeMay's testimony was censored, not because of any security data that was disclosed but, because "his remarks did not happen to agree with Secretary McNamara's views." Out in Wichita we are somewhat prejudiced in favor of the Boeing Co. We have felt, oü the basis of the McClellan committee findings, that the people would have been better served-and their tax dollars better utilized-if Boeing had received the contract to build the TFX, or what is now know as the new F-ill plane. Mr. McNam.ara and his able press controller-and he is very able at manipulating the news-Arthur Sylvester, gave the public and the press a real "snow job" to support the decision to award this contract to General Dynamics. Congressman Melvin Laird of Wisconsin, whose office is right next door, pinpointed the prnbleim of news manipulation, in the TFX afFair with this statement during debate on defense appropriations: Regardless of the kind of statement which has been issued, I have a confidential memorandum from Arthur Sylvester dated March 5, 1964, in which he dictates policy in the Department of Defense regarding the TFX * * * lie dictates what the Navy, the Air Force, and their contractors must say about the TFX and its development. Congressman Laird inserted in the record the memorandum issued by Sylvester. It is rigid co~itrol guideline making clear that the PAGENO="0121" FEDERAL PUBLIC RECORDS LAW 113 public would be given no information on troubles being experienced with the TFX ship. You get, in other words, oniy what the Defense Department wants to show u~ as favorable news; and nothing that concerns examples of faulty judgment or worse, political influence. The Defense Department is not the only culprit. Other administra- tive and regulatory agencies follow similar policies, as the Moss sub- committee has reported in the past. These agencies publicly avow great interest in the public's right to know, but in practice they use every conceivable excuse to deny the public information. There is an ironic note to this widespread agency policy of restrict- ing the right of the citizen to find out how the public business is con- ducted. The irony is that while Mr. Citizen finds it more difficult to surmount the walls of bureaucracy, the agents of Government pry more and more into the lives of the private citizen and his business. Many agencies have adopted a system of "snooping espionage." Some use bugging devices and other esoteric products of our new tech- nology. The operators of these devices have violated the privacy and individual liberties of citizens and Government employees suspected of "leaking" legitimate information to responsible people. The Department of Justice in the past 10 years has undertaken the responsibility of protecting individual and civil rights in certain areas of our society. However, as the legal representative of Government departments it has consistenly ignored the citizen's rights and, in fact, and again this week has continued to oppose efforts by the public to learn more about agency operations. Congress has consistently sought to broaden access to information, but the Attorney General's office has just as consistently advised Government agencies, in effect, to impose a policy of secrecy. These policy guidelines come from the Attorney General's manual, which advised in part that "the great mass of material relating to the inter- nal operation of an agency is not a matter of official record." For example, access to budget information on how the taxpayer's money is spent is denied on the grounds of the Attorney General's interpretation that this is merely an internal "budget procedure." The manual advises that each agency can be the sole judge of whether a person has a legitimate interest in inspecting official records. This has led to such ridiculous rulings as that by the Controller of the Currency denying a private citizen the right to examine blank- yes, blank-forms used by his agency. Now the Department of Justice again contends that the court en- forcement provision of the proposed Federal records law is unfair. Why? Because this provision would put on the agency the burden of proof to show why it restricted access to specific items of information. Under the present arbitrary policy of secrecy it is absolutely neces- sary that there be some remedy outside the executive branch of Gov- ernment. Due process of law is the obvious remedy. This proposal that you are considering this afternoon would arm the district court with injunctive and contempt power to make available information that is not specifically restricted by this legislation. This is reason- able and fair for all concerned, as previous witnesses from the bar association pointed out. Inevitably there will be areas of legitimate doubt and misunder- standing as to whether certain information should be released. But PAGENO="0122" 114 FEDERAL PUBLIC RECORDS LAW the question should be settled by due process and not by some bureau- crat's whim. The Department of Justice philosophy seems to be in sharp contrast to that of the American Bar Association, that the burden of proof should lie with the citizen, and not the agency, is understandable in ~t totalithrian system. There the people are servants of the state. The Department of Justice philosophy is an absurd contention in a democratic system where the people are the masters and the state the servant. All citizens must have the right of legal recourse. Once this fundamental right is denied, then we do move closer to the garri- ~on state. In summary, what we are advocating is the right of the individual citizen to have access to accurate and freely available information about the Government of the United States. Eight legitimate cate- gories of information are exempted from the disclosure requirements. These cover the vital areas of national defense and foreign policy, documents related solely to internal personnel rules and practices of agencies, personnel and medical files, privileged trade secrets, com- mercial and financial information, memorandums dealing with matters of law or policy, and investigatory files compiled for law enforce- ment. We do not take issue with these provisions. We also want to emphasize that the legislation does not give the mischievously curious individual a "fishing license" to dip into gov- ernment files for secrets about his neighbor's business or abont policies that would aid a potential enemy. You may be told that reporters are looking for scandal to sell newspapers. Only a small percentage of our total newspaper cir- culation in this country is based on casual sales.. Our products are delivered morning and afternoon to the homes of U.S. citizens, who must be better informed if they are to fulfill their responsibilities as citizens. We do not seek sensationalism. We, as newspapermen rep- resenting the public, seek facts. Concealment of legitimate facts by government agencies often can be more detrimental to our welfare than their disclosure, as was pointed out in the testimony earlier this afternoon. We are interested in good government, in better government, and the protection of every citizen's rights. Good government in these complex periods needs the participation, support, and encouragement of more responsible citizens. Knowing that they can depend on an unrestricted flow of legitimate informa- tion would give these citizens more confidence in our ae'encies and pol~cymakers. Too many no~v feel frustrated and perplexed. Therefore, it is absolutely essential that Congress take this step to further protect the rights of the people, also to assure more ready access by Congress, by adopting this disclosure law. ANPA strongly favors enactment of the legislation, but we also recognize that it will impose on our reporters and editors a greater responsibility to keep the public more fully informed. Five years ago, Lyndon Baines Johnson, as Vice-President-elect, made this state- ment in speaking to the convention of the Associated Press Managing Editors Association in Williamsburg. These are his words: In the vear~ ~heacl, those of us in the exoenttc~e branch must see that there is no smokescreen of secrecy The people of a free country have a right to know about the conduct of their public affairs. PAGENO="0123" FEDERAL PUBLIC RECORDS LAW 115 There is no reason to believe that, as President, Mr. Johnson has changed his view. It is a view that was shared by the late President Kennedy, who said: Within the rather narrow limits of national security the people of the United States are entitled to the fullest possible information about their Government, and the President must see that they receive it. Thus, gentlemen, in conclusion: "No smokescreen of secrecy, the fullest possible informati'on"-these are pledges to the people from our Nation's leaders. Congress can support the executive branch in keeping faith with the people by enacting an effective disclosure act to replace a "smokescreen of secrecy." Mr. Moss. Mr. Rumsfeld. Mr. RuMsvi~w. I have no questions, Mr. Chairman, other than to say it was a very forceful statement. Mr. Moss. I want to express my pleasure for your appearance and for your support. I would like to take the opportunity to restate something I have on many occasions tried to make very clear. This committee-no member of this committee-has any desire to require information to be made available if it would be damaging to the security of this Nation. Over the years, in dealing with the press, I have seen no evidence of any movement in the press to require that type of disclosure. I think the record of the American press in coop- erating with Government to protect very sensitive areas in times when such protection was necessary in the interests of our security has been an excellent one, one to which the press can point with pride. Their performance during World War II under voluntary conditions was outstanding. Again, Mr. Colburn, we thank you for your statement and for your support. Mr. COLBURI~. Mr. Chairman, I would like to make just one foot- note comment to that excellent point that you made, and that is, I think that in our work together over the years in tracking down some of these items that may have been borderline or even perhaps violated certain areas of security, it has been our finding that these have been leaked by Government people in both administrations, Democrat and Republican, for personal influence or to influence some act of Congress~ and in that case these people were responsible and not the press. Mr. Moss. I think the leak is a good bipartisan tool of propaganda effectively employed for many years. Mr. CoLBtmN. Yes. Thank you very much. Mr. Moss. Our next witness is Mr. Richard Smyser, who is chair- man of the Freedom of Information Committee of the Associated Press Managing Editors Association. Mr. Smyser. STATEMENT OP RICHARD D. SMYS~R, CRAIR1VEAN, PREEDOM OP ThTh'ORMATION COMMITTEE OP TEE ASSOCIATED PRESS MANAG~ ING EDITORS ASSOCIATION Mr. SMYSER. Mr. Chairman, I have a statement. Mr. Moss. You may proceed. PAGENO="0124" 116 FEDERAL PUBLIC RECORDS LAW Mr. SMYSEE. I am Dick Smyser, managing editor of the Oak Ridger, a newspaper in Oak Ridge, Tenn., and chairman of the Freedom of Information Committee of the Associated Press Managing Editors Association. The Associated Press Managing Editors Association believes, as might be expected, in freedom of the press. But it is no accident that the name of the committee of that organization of which I am chair- man for this year is the "Freedom of Information" Committee. The choice of name is quite deliberate. It might be even more appropriately titled the "Public's Right To Know Committee." For "freedom of the press" and "freedom oL information" are simply means, not ends. The end is protection of the "public's right to know." The press-and the term is used broadly to include all media that gather and disseminate the news-is the public's chief source of infor- mation about its Government. Therefore, the "public's right to know" cannot by guaranteed without "freedom of the press." Too often, however, we think of "freedom of information" as some- thing important only to the economy of a newspaper. I agree, and my publisher agrees even more intensely, that `the ecoubmy of a news- paper is important. However, this is not the primary reason why APME hopes that House bill 5012, and the companion bill in the Senate, will be adopted by this session of Congress. Rather, APME would like to appear a champion for a public right rather than a lobbyist for a private privilege, this notwithstanding the fact that last year's similar bill, `Senate bill 1666, had become well known within the trade as "Sweet Sixteen Sixty-Six." We hear much these days about "big Government." All partisan arguments aside, it is true. Our Federal structure is growing rapidly. Its size, functions, and, inevitably, its powers are expanding yearly. We do not argue the merits of this growth. APME does, however, feel strongly `that this trend makes it more and more imperative that information about the Federal `Government be made increasingly available. For, as the Government grows, it becomes proportionately more im- portant that the public be kept aware `of what it is doing. It also follows that the larger the government, the greater the chance of it becoming incomprehensible, inaccessible to the public. Ours is still a system of checks and balances, Therefore, as the balance of government weighs more and more heavily on the Federal side, the check of public awareness must be sharpened. There is acertam basic rightness in the giving of information. It reflects a faith in the goodness of truth and the essential wisdom of a concensus of the public. It is the hallmark of honesty, po'sitiveness,~ confidence. There is a certain basic wrongness in the withholdiiig `of informa- tion. It manifests a mistrust, a lack of faith in the ability of the public to examine the facts and come to a reasonable conclusion. It is the `badge of cynicism, pessimism. It is the habit of those who patronizer-who assume for themselves some sort of privilege status. It is quite often the mask for corruption. But aside from the moral grounds for the public's right to know, there is also a very practical ground for candor, especially in Federal Government operations, but also in government at all levels. PAGENO="0125" FEDERAL PUBLIC RECORDS LAW 117 My newspaper has had some little experience with the Federal Government. Oak Ridge, Tenn., is probably the country's most fed- eralized city outside the District of Columbia. In Oak Ridge's very early days there was, necessarily, very little "freedom of information." It was, of course, one of the most secret operations undertaken by any nation ever. But secret or not, this did not inhibit the rugged east Tennessee mountain men from spec- ulating as to what was going on down there at the "project," as it was termed by the natives. The story is told of the farmer who commented to one of the resi- dents of nearby Norris, to whom he regularly brought eggs, "I don't know what the Government's makin' down there, but from all the stuff they're building, it seems to me it'd be a lot cheaper to just go out and buy it." This gentleman, obviously, did not have the benefit of "freedom of information." Therefore, he was not able to make a valid judg- ment on his Federal Government. And this it seems is more than just. a good story. It illustrates the basic point I would make-that the more information the public has about its own Government, the more valid will be its judgments, the more effective then can be Federal operations. Of course, it was imperative in those early days of Oak Ridge- 1943, 1944-that neither this particular east TFennessee farmer nor any- one else have full "freedom of information." It was vital that they not know that what they were building down there at "the project" were huge facilities to make the tiniest quantity of 13235_something that the Government could not just go out `and buy. And perhaps the whole secret of Oak Ridge is an example of how well a proper military secret can be kept, even with a free press. For indeed, there are many stories told of voluntary censorship which the press particularly in the immediate Oak Ridge area, accepted and followed on request of Government officials during those hectic early times of the nuclear effort. There was a whole city and industrial complex built within months where before there had `only been farmland. And yet the secret was exceedingly well kept. History is full of such evidence of a free yet responsible and patriotic press. All the years of World War II pro- vide instance after instance of how well voluntary censorship works. Indeed, freedom of the press is an inducement to responsibility as it creates an atmosphere of mutual trust. The situation relative to information in Oak Ridge has, thank- fully, changed. For now while, to be sure, there are still many vital atomic secrets, secrets our newspaper would never want to infringe, there are also many areas of nuclear information that are consciously available to all. More than that, in Oak Ridge I believe we have had a unique information experience in the community's transition from a city completely owned and operated by a Federal agency to one with the highest percentage of individual home ownership anywhere. We also now have a thriving, vibrant self-government. The Oak Ridge has been given considerable credit for aiding with this unprecedented transition. PAGENO="0126" 118 FEDERAL PUBLIC RECORDS LAW I mention this not primarily as a chamber of commerce-type plug for Oak Ridge or my newspaper, but rather to point out that one of the big reasons this massive transition has worked well was because the public involved was given maximum information all during the process. The Atomic Energy Commission, citizen groups and news media, working together, usually in harmony, told, often in the minutest detail, each step of the extremely involved arrangements for selling a whole city's housing within a matter of months. And, most familiar with the situation agree that it just could not have happened had not citizens been so completely and promptly informed. What does this have to do with House bill 5012? Just this. There is every reason for House bill 5012 to be thought of as legislation aimed at assisting Federal agencies to do a better job-this in contrast to the generally accepted notion that this and similar bills are designed primarily to assist the press, and through the press the public. How help the agencies? Simply as H.R. 5012 is an inducement to these agencies to make full- est information available to the public. The fuller the information available, inevitably the better understood will be the agencies' pro- grams, policies, and purposes. And once understood by the public, then these policies, programs, and purposes are inevitably strength- ened. This may sound like a rather grand oversimplification of an over- optimistic view. Rather, it is a very realistic view and it has been proven time after time. The great public concensus-so long as it is a well-informed concensus-has historically shown itself to almost always ultimately be on the side of wisdom, else how does a democratic society progress, survive? In two very current instances this philosophy has proven itself. The U~S. Information Agency, all during the recent unpleasantness in Selma, Ala., told the story promptly, fully throughout the world. Why this unpleasant chapter of U.S. history related to the peoples of other nations by our very own national information facilities? Why not? It happened. It is truth, fact, reality. Second, it was being told and is still being told by many other nations' information agencies-or, more properly, propaganda agen- cies. And it was being exploited to the maximum, as are all of our current racial problems, by the Communists. Essentially, of course, the USIA and its Voice of America is a public relations more than a strictly news agency of the United States. Its purpose, avowedly, is to advance the best interest of the United States through the giving of information to those in other countries. However, as many a good public relations man, or at least what I think of as a good public relations man, will vouch, the best way to advance the best interests of the United States, or whatever nation, company, or organization, is simply to tell the truth, give the news, make the truth, the news, available readily. It is a misguided philosophy to assume that either distorting or withholding information will do you client good. Inevitably such practices backfire. Just tell the people, fully, factually, promptly. PAGENO="0127" FEDERAL PUBLIC RECORDS LAW 11~ Tell them when it is good. Tell them when it is bad, or at least open the channels of information so that they may find out for themselves. Trust the people with the truth and they will seldom betray your trust. Mistrust them, deny them the truth, and you will reap what you sow. Tell the truth yourself before someone else has a chance to step in and mislead and gain credence for their misleading in that you have been negligent, less than frank. In the long run, the self-admission of the United States about Selma will pay dividends. For indeed, although many parts of the story are painful, many other aspects show America at its very best as it struggles, within itself, for justice. The other example is that of the recent U.S. space shots, particu- larly the live television pictures from Ranger 9 as it zoomed down on the moon on March 24. Seldom before has the individual citizen felt so much a part of a Federal program. Undoubtedly there is now a well of public support for the space effort like seldom before, simply because so much in- formation has been fully, freely available. Two exceptional events have been cited here. However, the same principles are applicable to why the Agriculture Department should tell fully the situation relative to farm surpluses or the Federal Com- munications Commission should make available its records on the allocations of television or radio channels and frequencies. We have attempted here to make primarily a positive rather than a ne~'ative case for freedom of the press, freedom of information, the public's right to know. However, the negative may help complete the argument. For if one asks, "Why should the public be given every last detail about a Federal agency's workings?" then one must also ask "Why not?" Because the agencies feel that dispensing information is distracting, takes too much time? Because the agencies feel that they are entitled to some measure of administrative arbitrariness? Because the agencies feel that full access will reveal instances of incompetency, even corruption, and therefore, distract and discredit the agency's work? None of these are valid arguments. Indeed all, as they may reflect attitudes of some agency administrators, are powerful arguments for insisting on fullest information. For such attitudes must surely be counteracted. Information should be restricted because the uninhibited giving of information may endanger military secrets or diplomatic tactics? Of course such information should not be given, and H.R. 5012, as do all responsible freedom of information proposals, clearly excepts "matters-specifically required by Executive order to be kept secret in the interest of national defense or foreign policy." Present laws on Federal information are inadequate because they are attuned to the philosophy that the public and the press must make a case when they feel that information is being withheld. ER. 5012 would change this misdirected emphasis. H.R. 5012 would provide that the obligation is on the agency rather than the public seeker of PAGENO="0128" 120 FEDERAL PUBLIC RECORDS LAW the information. The agency should do the explaining, and in Federal court if necessary, when it chooses to withhold. The public and the press should not have to apologize for or justify its asking. The Tennessee Press Association has a slogan that I would quote here: "What the people don't know will hurt them." Indeed, it is so very true. But what the people do not know about the Federal Government will ultimately hurt the Federal Government and its officials too, for of course, the two are inseparable. The Fed- eral Government draws its powers from the governed. And the gov- erned are only governed as well as they give. The Associated Press Managing Editors Association, therefore, through its Freedom of Information Committee, wholeheartedly com- mends those Congressmen, such as Representative John Moss in par- ticular, who are champions of the public's right to know. And APME commends them specifically for the drawing of H.R. 5012 and earn- estly urges its passage. Enactment of this bill, APME is convinced, will help guarantee maximum public awareness of its Government and, therefore, better government. I have spoken here primarily of H.R. 5012. All that I have said, however, is equally applicable to the Senate bill of Senator Edward Long to establish a Federal public records law. APME was most active last year in working for passage of Senator Long's 5. 1666. I would close by quoting APME's current president, George Beebe, managing editor of the Miami Herald. In a recent letter to his fellow Floridian, Representative Dante Fascell, he wrote: There has never been a period in our history when it is so vital that the people know what Is going on in their country and the world. Disturbing indeed has been the trend to close more and more doors and records to the press, although there are few instances where this privilege has been abused. There is not a responsible editor In the Nation who does not willingly practice self- censorship in matters of national security. There is not an editor who would argue against suppression of news affecting national security. But news sources are drying up that have nothing to do with security, and to which you and I and everyone should have access. As president of the Associated Press Man. aging Editors Association, an organization made up of the leading editors of the country, I commend your courage and aggressiveness in introducing this important bill. On behalf of the APME I thank you for this opportunity to express the organization's position on this important pending legislation. Mr. Moss. Mr. Rumsfeld. Mr. RUMSFELD. I would certainly like to thank the gentleman for his very fine statement, and concur in what he has said. I would also make this comment in passing, that we have just received your testi- mony, the Associated Press Managing Editors Association. We have heard from Mr. Colburn, American Newspaper Publishers Associa- tion. We have heard from representatives of the Press Photographers Association, and in each case what has been said about the need for the public to know in our system of government has been forceful and very appropriate and correct. The thrust of the proposal coming before this committee, as the testimony has, has been toward the desirability of Government making available information. There is a reverse thrust. There is a great burden also on your association, on the press throughout the country, and the press pho- PAGENO="0129" FEDERAL PUBLIC RECORDS LAW 121 tographers throughout the country to report fairly and responsibly, and as thoroughly as possible. Naturally it is not surprising that there has been very little men- tion of this in these statements. I would say that with the availability of more information from government, puts an even greater burden on those of you in your field, and there would be a great responsibility to report accurately and as thoroughly as is humanly possible. Mr. SMYSER. I would certainly, agree with that. I would perhaps mention that within the APME, the organization that I represent, freedom of information is only one of the committees. It has about eight others that are directed specifically toward the very fine point that you make, toward more responsibility, more effectiveness in fairly and fully reporting the news, and I think this is true of the other organizations, too. Mr. RUMSFELD. Thank you. Mr. Moss. I want to say that I think your statement was a most excellent one. Certainly it illustrates quite clearly the need to keep the press well informed if the press is to be equipped to voluntarily cooperate in periods of crisis, and it has always given such cooperation. I think we have another problem, all of us, in Government and in the press-that is how to handle this great mass of information, which grows every day-Mr. Colburn mentioned the use of computers in solving many of our problems. In my State I believe that my govern- ment has recently given some pilot contracts to some of the aerospace industries, to encourage them to employ their know-how and their talent to aid in the solution of problems. We are going to be doing a lot of programing into computers. We are going to come up with answers, and none of us are going to understand them too clearly. If we have everything available, it is going to be difficult to under- stand. Where our primary business is keeping informed, it is going to be difficult to keep informed. Already in many disciplines in this Nation and around the world the problem is how to store and retrieve information, how to keep on top of it. And yet we expand govern- ment, not only in responsibilities in science as we increasingly tend to fund research, but within the past week we enacted here one major program in the House and we are going to have another one in another week or two that require closer cooperation from each citizen, and we all know how very difficult it is to get the public attention. As a candidate for office, I am always amazed at how frequently my name appears in print and how many people never heard of me. And so to a public somewhat lethargic, where we try to get attention, and to inform, it is vital that those media employed in disseminating information to them have available every detail consistent with our security, and consistent with the real needs of our Government for withholding-reasons which I think are possible of definition. I hope we can do it with this bill. I want to thank you for your appearance and for the cooperation of your APME Freedom of Information Committee over the years. Mr. SMYSER, Thank you very much, sir. Mr. Moss. The subcommittee will now stand adjourned until 2 p.m. tomorrow afternoon. (Whereupon, at 4 p.m., the subcommittee adjourned, to reconvene at 2 p.m., Friday, April 2, 1965.) 45-2i3-G~5-Pt. 1--9 PAGENO="0130" PAGENO="0131" FEDERAL PUBLIC RECORDS LAW (Part 1) FRIDAY, APRIL 2, 1965 HousE o~ REPRESENTATIVES, FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE OF THE CoMMrr'rEE ON GOVERNMENT OPERATIONS, Wa$hington, D.C. The subcommittee met, pursuant to recess, at 2 p.m. in room 2241, Rayburn House Office Building, Representative John E. Moss (chair- man of the subcommittee) presiding. Present: Representatives John E. Moss, John S. Monagan, and Don- ald Rumsfeld. Also present: Samuel J. Archibald, chief, Government Information; David Glick, chief counsel; Benny L. Kass, counsel; Jack Matteson, chief investigator, and J. P. Carlson, minority counsel. Mr. Moss. The subcommittee will be in order. Before we hear from our first witness this afternoon, I would like to insert in the record a letter which I have received, as chairman of this subcommittee, under date of April 2, 1965: Prn~ WHITE HousE, Washington, April 2, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operations and Government Information 1~1ubcommittee of the Committee on Government Opera~tions, House Office Building, Wash- ington, D.C. DEAR Mn. CHAIRMAN: I have your recent letter discussing the use of the claim of "Executive privilege" in connection with congressional requests for documents and other information. Since assuming the Presidency, I have followed the policy laid down by, Presi- dent Kennedy in his letter to you of March 7, 19~2, dealing with this subject. Thus, the claim of "Executive privilege" will continue to be made only by the President. This administration has attempted to cooperate completely with the Congress in making available to it all information possible, and that will continue to be our policy. I appreciate the time and energy that you and your subcommittee have devoted to this subject and welcome,the opportunity to state formally my policy on this important subject. Sincerely, * LYNDON B. JOHNSON. The letter is in response to one-and I have supplied copies to repre- sentatives of the press present here at this time and copies are available to anyone who wants them-I addressed to the President on March 31 of this year. 123 PAGENO="0132" 124 FEDERAL PUBLIC RECORDS LAW FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE OF TIlE COMMITTEE ON GOVERNMENT OPERATIONS, March 31, 1965. Hon. LYNDON B. JOHNSON, President of the United ~S'tates, The White House, Washington, D.C. DEAR MR. PRESIDENT: The use of the claim of "Executive privilege" to with- hold Government information from the Congress and the public is an issue of importance to those who recognize the need for a fully informed electorate and for a Congress operating as a coequal branch of the Federal Government. In a letter dated May 17, 1954, President Eisenhower used the "Executive privilege" claim to refuse certain information to a Senate subcommittee. Iii a letter dated February 8, 1962, President Kennedy also refused information to a Senate subcommittee. There the similarity ends, for the solutions of "Execu- tive privilege" problems varied greatly in the two administrations. Time after time during his administration, the May 17, 1954, letter from President Eisenhower was used as a claim of authority to withhold information about Government activities. Some of the cases during the Eisenhower admin- istration involved important matters of Government, but in the great majority of cases executive `branch employees far down the administrative line from the President claimed the May 17, 1954, letter as authority for withholding informa- tion about routine developments. A report by the House Committee on Govern- ment Operations lists 44 cases of executive branch officials refusing information on the basis of the `principles set forth in President Eisenhower's letter. President Kennedy carefully qualified use of the claim of "Executive privilege." In a letter of February 8, 1962, refusing information to a Senate subcommittee, he stated that the "principle which is at stake here cannot be automatically applied to every request for information." Later, President Kennedy clarified his position on the claim of "Executive privilege," stating that- ~ * * `this administration has gone to great lengths to achieve full co- operation with the Congress in making available to it all appropriate docu- ments, correspondence, and information. That is the basic policy of this administration, and it will continue to be so. Ea~ecutive privilege can be invoked only by the President and will not be used without specific Presi- dential approval. As a `result of President Kennedy's clear statement, there was no longer a rash of "Executive privilege" claims to withhold information from the Congress and the public. I am confident you share my views on the importance to oui~ form of government of a free flow of information and I `hope you will reaffirm the principle that "Executive privilege" can be invoked `by you alone and will not be used without your specific approval. Sincerely, JOHN. II. Moss, Uhctirntan. I think that this correspondence represents a continuity in policy which should provide for the greatest cooperation between the Execu- tive and the Congress, and in my judgment it represents the proper scope of executive privilege. We are very pleased to have as our first witness this afternoon, Mr. Creed Black, managing editor of the Chicago Daily News, and chair- man of the American Society of Newspaper Editors Freedom of Information Committee. As chairman, I would like to acknowledge the many contributions made by ASNE's work with this committee, from the very first step we took after being chartered back in June 1955. In an entirely strange area to me, I was able to turn to the chairman o'f ASNE's Freedom of Information Committee, Russ Wiggins, editor of the Washington Post, for some very wise, instructive counsel. I appre- ciated it then, as I have appreciated working with each chairman, including the man who will now give the committee the benefit of the views of his organization. Mr. Black, will you introduce the other gentlemen accompanying you? PAGENO="0133" FEDERAL PUBLIC RECORDS LAW 125 STATEMENT OP CREED BLACK, MANAGING ~DITOR, CflICA'GO DAILY NEWS, AND CHAIRMAN, AMERICAN SOCIETY OP NEWSPAPfl EDITORS' FREEDOM OP INFORMATION COMMITTEE; ACCOMPA- NIED BY WILLIAM P. ROGERS, COUNSEL; AND EUGENE PATTER- SON, EDITOR, ATLANTA CONSTITUTION, COMMITTEE MEMBER Mr. BLACK. Thank you, Mr. Chairman. With me today are our counsel, Mr. William P. Rogers, and Mr. Eugene Patterson, editor of the Atlanta Constitution, who is a member of our Freedom of Inf or- mation Committee, and who will be the next chairman of this committee. I appreciate your comments, sir, about the FOl Committee of the ASNE, and I might reciprocate them, for this committee has found very helpful the work of your own group. I appear here today simply as the latest in a long line of editors representing this organization who have worked with the committee, and who have, throughout this time, been very interested in legislation aimed at the problem we are discussing. I'm sure you've known and worked with a number of these men. This is still a relatively new committee, as unbelievable as it may sound, in the ASNE. It goes back to the time when Mr. Basil Walters, of the paper I now represent, the Chicago Daily News, became its first chairman. Since then, I'm sure you've had contact with Mr. James Pope, of Louisville, Mr. Wiggins, whom you've named, Mr. Herbert Brucker, of Hartford, Mr. Eugene Pulliam, of Indianapolis, and Mr. John Colburn, whom I think you heard yesterday, as a representative of the ANPA. We have expressed our views so many times that I think they are well known to this committee; they are on the record, and rather than burden you today with another statement, I thought it might be more helpful for us simply to restate our views informally, particularly in relation to what has been said here earlier in these hearings. We are especially interested in the statement made the first day by Mr. Schlei, and I would, just briefly, like to comment on his position in restating the position that the ASNE has strongly taken iii respect to legislation of this kind. Mr. Schlei, in his prepared remarks, confined himself to rather general and broad statements, and so I would like to do the same in responding. He said, early in his statement, that the basic thrust of this bill- is to eliminate any application of judgment to questions of disclosure or non- disclosure, and to substitute therefor a simple, self-executing legislative rule which would automatically determine the availability to any person of all records in the possession of ~tll agencies, except Congress and the courts. The position of the ASNE is that the legislation now being consid- ered does nothing of this kind. We feel, rather, that it narrows the discretion, and properly so, which the administrative agencies could exercise. One of the lessons that has become increasingly apparent to us in experience with the Administrative Procedure Act in particular is that too much discretion was left in the hands of the individual agen- PAGENO="0134" 126 FEDERAL PUBLIC RECORDS LAW cies. You are familiar, I know, with the book by Dr. Harold Cross the definitive work on this whole subject "The People's Right To Know." Written under the auspices of our organization, it was pub-. Fished in 1953. It was written, obviously, a little before that, when the Administrative Procedure Act was still fairly young. Dr. Cross, however, in this book, which now goes back more than a dozen years, made the statement that unhappily, as soon as the act was adopted, erosion of its ideals set in. That erosion, as we all know, and as this committee has heard, con- tinued. The powers that were bestowed under this act for withhold- ing information have not been used as judiciously as we think the framers intended them to be used. We feel the ambigious phrases in the act provide, as I have indicated earlier, too much discretion, not too little, and we feel that the legislation of the general type which is being considered here does not provide any automatic solutions or determinations as Mr. Schlei indicated, but rather narrows the discre- tion. Even within the exemptions which are listed in the bill, there is still some discretion. Secondly, we think that it `brings into the picture a third party to adjudicate, when there are questions about the judgment and the dis- cretion which are used. We think it is unrealistic, under our present situation to have any officeholder in the executive department all the way down the line decide that information which he has and which somebody wants should not `be released and then be in a position of presiding over any appeal from that decision. We think the clause here which provides for court review of any such decision is sound and one of the basic parts of needed corrective legislation. The second position stated by Mr. Schlei in what he called a basic thesis is that there are no formal words that can protect the public interest well enough; that the fault is not with the draftsmanship of this proposal, but with its approach. With this position, we disagree very fundamentally, and we think this gets to the philosophic heart of the question `before this committee. Our own position is that the Administrative Procedure Act and the other laws which are on the books have been inadequate in one im- portant respect, and that is recognizing-writing into law-the pub- lic's right to know. The fact is that in the present situation, as we see it, the burden of responsibility for public knowledge of government affairs is fundamentally misplaced. It shouldn't be up to the Ameri- can public, and the press is simply their representatives, to fight daily battles just to find out `how the ordinary business of their government is being conducted. Rather, it should be the responsibility of their em- ployees, who conduct this business, to tell them. Now, this committee has heard many times of the inadequacies of the Administrative Procedure Act. We know how it has thwarted, oftentimes, rather than helped in the disclosure of information. But for all of its weaknesses, it has been stronger in respect to cert.ain in- terested parties, as they are described in the legislation than as a public information section, as it was originally called. Again referring to Dr. Cross, he found back in 1953, in the early history of this act, that it was too restrictive in limiting the avail- ability of information to persons "properly and directed concerned." PAGENO="0135" FEDERAL PUBLIC RECORDS LAW 127 It's not enough to open a proceeding and records only to litigants and their counsel. Dr. `Cross stressed this as one of the `basic defects of the act when he wrote- It is far from clear that the act adequately takes into account the matter of public Information in the sense of the right to know, which ought to `be stressed in the general public, that mass of citizens who may not meet the clescrlptioa of persons properly and directly concerned in administrative proceedings in that public's chosen organs of information. That appeared, as I say, in the book published in 1953. In 1959, when he took a new look, he concluded, "Whatever its usefulness to parties to administrative proceedings and their attorneys or to a few specialists or lobbyists, it is an abject failure as a means of freedom of information for the public." In this respect, I think it might be noted that the Federal Govern- ment is trailing far behind the States in this kind of "right to know legislation." Public records legislation, as we see it on the books to- day, dates back only to about 1945 in the States. That is roughly the time that the Administrative Procedure Act came into being, but today 37 States have open record statutes of some kinds on their books. Finally, I would say that we agree with Mr. Schlei that of course it is difficult to define precisely, to set out in specific language, in com- plete detail all the Government information that should be divulged and all that may properly be withheld. We are not wedded to the s~ecific language of this bill. We ap.~ peared in testimony before the Senate committee when similar legisla- tion was being considered there. We know the objections that were taken into account. We know that this committee has heard various views on modifications which might `be made. We recognize that even when language which these committees can think would take care of these situations as comprehensively as possible is written, there are going to be situations which still have not adequately been prescribed for in every detail. But, as I indicated earlier, there are provisions in this legislation for resolving those questions by a third party and while it is not possible to legislate in every detail the kind of language that would tell you exactly and precisely what is to be withheld and what is to be divulged, we do think it's possible, as Mr. Wiggins has said, in his book on this subject, to describe the spirit, the climate, the atmosphere that ought to pervade the government of a country that is democratically ruled. "All the employees of government, elected and appointed, ought to be imbued with the feeling that the government does indeed belong to the people who therefore have a right to know about all its transactions except for those expressly reserved to ac- credited persons by law or regulations." In the belief that legislation with the intent of this before us would encourage such a climate, I encourage its favorable consideration. Thank you. Mr. Moss. Well, thank you, Mr. Black. And I want to say that I am not wedded to the language of this bill, but I am wedded very strongly to the objectives of the bill. We are going to attempt to get the views of all interested parties, proponents and opponents, and those in the middle, and see if we can't come up with something that represents substantial progress in recognizing a public need. At this time I will recognize Congressman Rumsfeld. PAGENO="0136" 128 FEDERAL PIJBLIC RECORDS LAW Mr. RTJMSFELD. Thank you, Mr. Chairman. I certainly want to join the other members of the subcommittee in welcoming all three of these distinguished gentlemen to the committee today. I am certainly proud to have a prominent resident of Ihe 13th Dis- trict to join us. I have one or two questions. Do you feel that this bill adequately describes the climate that you feel should exist in government? Mr. BLACK. Well, let me say first- Mr. RUMSFELD. Or better yet, do you have specific suggestions for language revisions in the draft of the bill? Mr. BLACK. Well, let me say first in responding to your remarks, that I am glad to see the Congressmen from my own district taking interest in legislation of this kind. I think the legislation goes far in th~ right direction. Whether you can say "adequately" is something that I think will depend on the final bill you draft. I think the im- portant thing is that it turns the situation around and puts a respon- sibility on the agencies to justify their suppression or withholding of information. The problem now-as has been pointed out by a number of people in the past, including Congressman Moss-is that the legislation which is on the books often has done just the opposite of what it was in- tended to do. Instead of disclosing information it has been used as a means of stifling information. The provisions in the original act have been cited as a basis for withholding. The housekeeping statute situation was pretty well cleared up as a major obstacle, but then so many times the provisions of the Administrative Procedure Act, which were intended to make information available have been used for just the opposite. I think there are perhaps more qualifications in here than ideally most newspaper editors would like to see. On the other hand, we rec- ognize the justification of some of-or most of-the claims for exemp- tions that are made here. The important thing, I think, is that you do have some recourse, or you would have under legislation of this kind, which is not presently available. Mr. RUMSFELD. You read the Department of Justice's testimony here, and, of course, the essence of that was, No. 1, that such a bill could not be drafted. It simply could not put words on paper to cover the circumstances, and No. 2, that if the bill was drafted, it was un- constitutional. You've addressed yourself to those two points some- what. I wonder if you could comment on something that came up subsequent to that testimony about press photos and the desirability of permitting greater freedom of information in terms of press photos, which is not specifically covered in this bill. Do you feel that this is an area where the Government denies access to premises so that photos can be taken, which is somewhat in the same area, but not directly in point, because the opportunity to take a picture isn't really a public record as such. Mr. BLACK. I don't see that really as a part of this problem. It is a large problem in itself, but it relates primarily to the courts. We have had the same problem in connection with some of the administrative agencies which have quasi-judicial authority, but that is another ques- tion which I think should not be involved in this legislation. PAGENO="0137" FEDERAL PUBLIC RECORDS LAW 129 Mr. RUMSPELD. The only other point I would like to comment on; it's been suggested that there would be a rash of nuisance suits or nui- sance requests or frivolous requests for great volumes of material, and in this connection, it was discussed that some sort of reasonable user's fees would possibly be appropriate and conceivably might reduce the number of frivolous requests for information. Do you have any thoughts on the concept of user's fees? Mr. BLACK. Well, I don't see the possibility of a rash of nuisance suits as a very real threat, and I think before you impose any user's fee, it would be advisable to have some experience. It's possible that it may be a nuisance to some agencies or officials who would rather not divulge this information at all, but looking at it from the standpoint of the public, I don't think that anybody who doesn't have a legitimate interest in these records is going to the trouble or the expense of bringing a suit just to be a nuisance. The term, I guess, is relative, and it depends on whether you are an official who doesn't want to be bothered or whether you are a repre- sentative of the public who has a legitimate interest in some records which are being denied. But I can't see any ordinary citizen or or- ganization spending a lot of time or a lot of money going around pry- ing open records just to be doing it. I think that people would have a leg1timate interest before they asked to see it, and certainly, before they go the full route of bringing a suit. Mr. RtTMSFELD. Thank you, Mr. Chairman. Mr. Moss. Mr. Griffin. Mr. GRIFFIN. I want to join, Mr. Black, in welcoming you and those who are accompanying you to our hearing. Mr. BLACK, Thank you. Mr. GRIFFIN. And this, fortunately, is one of those matters where there is bipartisan support of this ~legislation. I think, following along the question that Mr. Rumsfeld asked, we have, in this bill, the requirement that all records be made promptly available to any per- son, and we have had criticism from some of the witnesses that maybe this is too board. There has been a suggestion that it should be limited to any citizen, and, of course, the witnesses from the departments have asked that it be limited to any person who has a proper interest or something of that nature. I take it that you feel that it should be this very broadest language, or do you have any comment on that aspect of the- Mr. BLACK. I think it should be as broad as it can reasonably be made without inviting any particular problems which perhaps have been called attention to here in previous testimony but which doesn't occur to me at the moment. I think that one of the problems of the present legislation, as I said, is this reference to interested persons or the proper persons. This leaves too much discretion and leeway in the hands of the agencies to decide who ha~ a proper interest. Our position is that a citizen of the United States-and this is his Government-has a proper interest in knowing what is going on. I might say that this has been one of the experiences that has oc- curred In States in the adoption of open record legislation. I can recall that I was with a newspaper in Tennessee when legislation of this kind was first proposed there, and there were all sorts of dire warnings PAGENO="0138" 130 FEDERAL PUBLIC RECORDS LAW about opening up all the records to people who were going to be coming in, riffling through them all day just for their gossip value or curiosity. But these predictions never materialized. It just doesn't work that way. People are not going to take the time and the trouble and particularly the expense that we are talking about here in going all the way to the point of bringing a suit in matters they are not interested in, and I think that basically the citizens of the United States have a right to information unless it's something which for very sound reasons should be withheld. The exemptions which are listed in this present legislation as now proposed cover most of those which could reasonably be justified, and beyond that I think you should make it as broad as possible in letting the people have access to information. After all-as I)r. Cross pointed out in his book-Congress has been able to legislate in the past in pretty clear language on what information it thinks should not be made public, and now a further attempt is being made. With this kind of legislative provisions and judicial review, we are not going to have a lot of abuses or nuisances or any other problems from citizens overrunning the files of the Government. Mr. GRIFFIN. Both the witness from the Department of the Treas- ury and the Justice Department, Attorney General's Office argued strongly that this legislation would be unconstitutional. You have very able counsel at your side there to consult with, who is in a some- what different position than he was a few years ago. I wonder if his advice and counsel that-~--with his advice and counsel that you are satisfied that this statute now is constitutional. Mr. BLACK. Yes, I think it's constitutional. I think that the issue raised by the Attorney General's Office in testimony in these hearings was rather extraneous. We are not talking here, really, about execu- tive privilege, as I see it. We are talking rather about the public's right to certain information. Executive privilege, as President Johnson pointed out in the letter which was read here by Chairman Moss at the start of the hearing, is something that he alone is going to exercise. The thing we are con- cerned about is having every officeholder and bureaucrat in every agency across the country also exercising his own executive privilege. I don't see it as a constitutional question. I think, after all, the very existence of the Administrative Procedure Act as it now stands on the books pretty well eliminates that question of whether it's a constitu- tional issue. In that act there are certain exemptions. The legisla- tion before us at this time is a refinement and modification of the legis- lation now on the books, but I don't see that it makes changes that would pose a fundamental constitutional question. Mr. GRIFFIN. Thank you very much, Mr. Black. Mr. Moss. Mr. Kass. Mr. KASS. Mr. Black, there is a current controversy raging between the press and the bar on the right of the Justice Department and other agencies involved in law enforcement to withhold information relative to pretrial publicity. Exemption No. 7 in the bill would exempt from disclosure investiga- tory files compiled for law enforcement purposes, except to the extent available by law to a private party. Do you, as spokesman for the ASNE, feel that this is a wise exemption? PAGENO="0139" FEDERAL PUBLIC RECORDS LAW 131 Mr. BLACK. Well, again, I think that to some extent this is like the question of photographs. It's such a broad question in its own right- this whole matter of pretrial publicity-that I wouldn't want to get too deeply involved in it here. But so far as I know, newspapers have not asserted the right to get investigatory files of the kind which would be exempt under the legislation proposed here. Mr. KASS. Mr. Black, wouldn't that statement that you made that newspapers would not be interested in getting these files apply to all these exemptions but primarily such things as state and m1l1tary secrets? Mr. BLACK. I think so. I don't think newspapers have ever com- plained about legitimate security classifications, for instance. Our big complaint has been when such legitimate classifications are used as a basis for withholding information which really doesn't merit that kind of classification. Mr. KAss. Thank you, Mr. Chairman. Mr. Moss. Well, I want to thank you very much. Mr. RUMSFELD. Mr. Chairman, could I ask a question of Mr. Rogers before- Mr. BLACK. Mr. Rogers- Mr. RUMSFELD. If not, fine. Mr. BLACK. Well, it's up to him. He is here as our counsel, and if he wants to field a question, fine. Mr. RuMsri~LD. Let me ask you, then- Mr. BLACK. Ask me, and I will consult with him. Mr. RCMSFELD. In Mr. Schlei's testimony, and Mr. Griflin men- tioned this tangentially, he referred to the 1958 amendment which the President signed only upon assurances that the amendment did not upset or diminish any power of the Executive privilege which he derived from the Constitution. I ~Ion't recall that circumstance, but it strikes me that such assur- ances on the part of the President weren't necessary. Certainly, something passed by the Congress could not really diminish anything that flows from the Constitution to the President, and by the same tken, the gentleman from the Justice Department then stated on page 9 in his testimony that if we entered this area, if the Congress did, in fact, enact a bill, it would have to specifically refer to the concept of Executive privilege. It seems to me that this is not correct, and I would think that Ex- ecutive privilege would exist from the Constitution to the extent that it does exist, if it does exist, completely apart from anything we do in this bill. Is this your understanding? Mr. ROGERS. I think you should say yes. [Laughter.] Mr. BLACK. Yes. [Laughter.] Mr. RIJM5FELD. I thank both of you. Mr. Moss. I would like to say that I find most intriguing as a sub- ject for thought and study, the little statute passed in the second Washington administration. Here were all of the men who were con- temporary to the creation of the Republic and the framing of its Constitution where intent could probably be pretty well established by discussions. Congress gave to the Executive the authority to pre- scribe rules and regulations for the custody, use, and preservation of PAGENO="0140" 132 FEDERAL PUBLIC RECORDS LAW records. It was an idle act, if all records were covered by inherent executive rights, a necessary one if they were not. Apparently at the time it was the consensus that it was necessary, and agencies operated under that authority for many years. I think it's one of the best bits of law we can pick up to support a congressional right to prescribe these rules and regulations. Mr. RtTMSFELD. As a cosponsor of this bill, I certainly agree with you. Mr. Moss. I am told that was the very first session of Congress, so at the beginning we exercised that right. We certainly have grand- father rights in this field of legislation. I want to thank you, Mr. Black and Mr. Rogers and Mr. Patterson for your appearance here today. Mr. BLACK. Thank you, Mr. Chairman, for inviting us. Mr. Moss. We will now hear from Mr. Dale W. Hardin, manager of the Transportation and Communication Department of the Cham- ber of Commerce of the United States. He is accompanied by Mr. Verne R. Sullivan, his assistant. STATEMENT 0]? DALE W. HARDIN, MANAGER, TRANSPORTATION AND COMMUNICATION DEPARTMENT, CHAMBER OP COMMERCE OP THE UNITED STATES; ACCOMPANIED BY VERNE R. SULLIVAN, ASSISTANT MANAGER, TRANSPORTATION AND COMMUNICATION DEPARTMENT Mr. HARDIN. Since this is the first expression on the record by the Chamber of Commerce of the United States on this subject, I do have a prepared statement that I would like to read, with the chair- man's permission. Mr. Moss. You may proceed. Mr. HARDIN. I am Dale W. ilardin, manager of the Transportation and Communication Department of the Chamber of Commerce of the United States. With me today is Verne R. Sullivan, assistant man- ager of the Transportation and Communication Department. We are appearing in support of ER. 5012. The Transportation and Communication Committee, through its Subcommittee on Communications, initiated the national chamber's position on this bill. It is a 62-man committee, composed of repre- sentatives of all modes of transportation and communication, includ- ing magazine and newspaper publishers, radio and television broad- casters, and the general business public. The committee has studied the testimony taken last year on a similar bill in the Senate and it has discussed the proposal at some length as well as making inquiries as to its effect on some segments of the busi- ness community. H.R. 5012, as we understand it, would: 1. Require every agency of the Federal Government to make all its records promptly available to any person; 2. Identify eight specific categories of sensitive information which are to be protected from disclosure; 3. Permit persons seeking Government information to file suit in a U.S. district court to have an agency produce records im- properly withheld; and PAGENO="0141" FEDERAL PUBLIC RECORDS LAW 133 4. Give the district courts power to punish agency officials for contempt if they refuse to disclose the records. In other words, the bill would provide the right of access by the public to all nonsensitive areas of Government information. A free flow of information from and concerning all branches of Government at all levels is a right of the public and is essential to our democratic society. The freedom of the Nation depends on an electorate well informed by a free press, as guaranteed by the Consti- tution. It is a responsibility of Government to protect and preserve this constitutional guarantee by a policy of full disclosure of information. Except for matters clearly affecting national security or otherwise covered by statute, all business of Government should be fully dis- closed to the public and the burden of proof must rest with Government in every instance to justify withholding any information. This is a set. of principles adopted by a membership vote, at our annual meeting in April 1964, and reaffirmed by the board of directors as recently as February of this year. The national chamber has not, so far as I know, been wrongfully denied any in-formation it has sought. However, in the interest of assuring the free flow of information so necessary if we are to have a well-informed public, we believe that broad, but effective, guidelines must be laid down. Certainly the examples cited by some witnesses are inexcusable. The injury that may derive from the denial to the public of legit- imate information is of more importance than any purpose that might be served by withholding information for such reasons as concealing embarrassing mistakes or irregularities. We believe H.R. 5012 will help to make more effective the principles approved by national chamber's members, and we are therefore glad to endorse it and to urge its enactment. Mr. Chairman, we appreciate this opportunity to express our views on this proposal.. If there are any questions, I would be glad to try to answer them for you. Mr. Moss. Thank you. Mr. GRIFFIN? Mr. GRIFFIN. No questions. Mr. Moss. Mr. Rumsfeld? Mr. RUMSFELD. I would be curious to know if the chamber has in re- cent years had occasions when they were unable to get information that they felt they needed to become well informed on a particular problem or activity or subject and then communicate with the chamber members on that? Mr. HARDIN. There haven't been any that I know of myself. I checked with a few of the people in the national chamber offices. I don't know of any personally. Mr. RUMSFELD. Thank you. Mr. Moss. Mr. Kass? Mr. KASS. Thank you, Mr. Chairman. Mr. Hardin, the bill specifically exempts from disclosure a number of sensitive items of information, among them trade secrets and com- mercial or financial information obtained from the public and priv- ileged or confidential information. Do you, as a representative of the PAGENO="0142" 134 FEDERAL PVBLIC RECORDS LAW chamber, feel that this adequately protects information which business throughout the country gives to the Government for the various pur- poses that the Government may desire? Mr. HARDIN. In this connection, Mr. Kass, we asked a couple of the trade associations that are members of the national chamber whether this bill would have any detrimental effect on them, insofar as it relates to material that they are required to file with Government agencies and departments. The two associations that we heard from stated that in their opinion this would not prejudice the protection afforded to business in trade secrets or properly confidential matters. These were trade associations speaking for their members in response to our specific question. So in my judgment, the bill appears to offer adequate protection. Mr. I(ASS. Thank you, Mr. Hardin. No further questions, Mr. Chairman. Mr. Moss. Mr. Hardin, I want to thank you and Mr. Sullivan for your appearance and support of this legislation. Thank you. Mr. HARDIN. Thank you. Mr. Moss. Our next witnesses will be Mr. Julius Frandsen and Mr. Clark Mollenhoff, chairman and vice chairman of Sigma Delta Chi's Committee for Advancement of Freedom of Information. STATEMENT OP JULIUS PRANDSEN, CHAIRMAN, SIGMA DELTA CHI'S COMMITTEE POR ADVANCEMENT OP PREEDOM OP INFOR- MATION; ACCCOMPANIED BY CLARK R. MOLLENHOFF, VICE CHAIRMAN Mr. FRANDSEN. Mr. Chairman, aside from my capacity as chair- man of the Sigma Delta Chi's Freedom of Information Committee, I ~m here also as the Washington manager of United Press Interna- tional. If I may, before we proceed to the Sigma Delta Chi state- nient, I would like to present a very short statement if behalf of UPI. As you know, UPI is an American corporation engaged in the col- lection and dissemination of news throughout most of the world. Since the day of its inception as United Press Associations in 1907, UPI has been a leader in combating all manner of barriers to the free flow of news-whether by exclusive contractual relationships~ peace- time censorship, or, in the area with which 11.11. 5012 comes to grips, the withholding of U.S. Government information at the source. UPI does not presume to comment on the legal concepts of the bill at hand or the scope of the eight specified exceptions, although some of the latter would seem to be susceptible to rather broad interpreta- tions. The management of United Press International, however, has di- rected me to say that it fully supports the objective of the bill, which as we understand it is to promote the freest possible flow of Federal Government information consistent with national security and those individual rights that must remain inviolate. Our editor, Mr. Earl J. Johnson, expressed hope that the bill could have an affirmative preamble to the effect that it is the intent of Congress that the maximum of public business-and of course, Gov- ernment is public business-be conducted in public. I do not know whether the legislative format permits such a declara- tion, but I would like to commend his suggestion to you. PAGENO="0143" FEDERAL PUBLIC RECORDS LAW 135 That is my statement on behalf of United Press InternationaL Now, on behalf of Sigma Delta Chi, let me say first that Sigma Delta Chi, despite its partially Greek name7 is not a fraternal or a social organization; it is a professional society of 17,000 active members. We are engaged not only in the newspaper business but in all forms of communications-broadcasting, magazines, and so on. Sigma Delta Chi has been, I think, the leader for many years in campaigning in the States for enactment of open records and open meeting laws. As I believe Mr. Black noted, there are now 37 States that have at least relatively satisfactory open records laws and 29 States that have open meetings laws, and we are very hopeful that the legislative season in the States this year will bring at least 2 or 3 or more of those along. So, with our longstanding interest in this, we are, naturally, greatly pleased that this committee is now working on getting an appropriate Federal law. I would like, also, to express at this time our great ad- miration and thanks for the work of the chairman of this committee and the other members and your staff, Mr. Chairman, for the great help that you've been to all of us over these several years now, in the workthatyou've done. Now, as you mentioned, I have with me the distinguished Washing- ton correspondent, of the Cowles publications, Mr. Clark Mollenhofi, who has been active in this field for many years, and lie is prepared to discuss a statement which has been filed with you on behalf of the national president of Sigma Delta Chi, Mr. Ralph Sewell, who could not be here. This statement was prepared by Mr. Sewell in collaboration with Mr. Mollenhoff. Mr. Moss. Well, I am very pleased to recoc~nize Mr. Mollenhoff. It's been my privilege to work very closely wit~ him as chairman of this committee during the past 10 years, and I recognize that in undertak- ing the role of the spokesman here, he is qualified not only as a jour- nalist, but also as a member of the bar, and it is always a pleasure to welcome him to the committee. Mr. MOLLENHOFF. Mr. Chairman, it's good to be here. Sometimes one wonders how much progress we have made in the past years in these areas, but I guess we make a little progress from time to time. This statement is for the Sigma Delta Uhi, and it is not my personal statement, which would probably embrace a few other things. We are in favor of the legislation introduced by the chairman, and the legis- lation introduced by Senator Long. It clarifies the right of the public to information, and when it stays within that framework, we are for it. We urge passage of this bill, even though at the same time we urge that the committee take a closer look at some of the language covering exceptions. We are particularly pleased with those sections of the legislation that are designed to make it possible for the citizen or representative of news media to go into the Federal court to force the production of information that is not covered by one of the eight exempted areas. Thjs has been something that has come up in the courts a good many times in the past few years, and there are a number of examples where persons in Government or people dealing with the Government have been unable to obtain information simply because there was .no mecha~ PAGENO="0144" 136 FEDERAL PTJBLIC RECORDS LAW nism for obtaining it, and certainly, the news media has no mechanism until such time that you get that through. Of course, it would be preferable if there were no exempted areas of information and if this legislation could be drawn to force all gov- ernment to be handled in the open. We are realistic about the need for some exemptions, but believe that the list of exemptions should be as small as is possible and as specific as possible. If the categories of exemptions are spelled out in too vague a man- ner, we know from past~ experience that there will be great danger that some bureauctats will use these new laws to make broad new claims of a legal right to unjustified secrecy. While we understand the arguments behind each of the eight ex- empt areas, we wish to point out at this time that it is likely that there will be abuse and distortion of these exemptions unless the legisla- tive history is so clear that it cannot be misinterpreted. This would be a good time to recall that the so-called housekeeping statute, 5 U.S.C. 22, was not intended to be a law to authorize the withholding of in- formation from the press or the public. However, a survey by House and Senate committees a few years ago demonstrated clearly that offi- cials of the executive branch of Government were taking a few phrases in that law and twisting them into misguided legal opinions authoriz- ing the withholding of Government information and documents. Regardless of the intent of Representative Moss and Senator Long in introducing this legislation, we know that it is possible that this legislation can be warped into something not intended by the men who introduced it. It will take considerable diligence on the part of the Congress, the public and the press to avoid misuse of the proposed legislation being discusssed here today. There will always be a few political figures who wish to stretch or distort the law to hide their crimes or mismanagement. There will al- ways be some bureaucrats who will take the view that the Government agency that pays their salaries has become their personal property, and is not subject to examination and criticism by the public, Congress or the press. With that reality in mind, let us examine each of the categories of exception. Certainly we could not quarrel with a provision that permits the withholding of information when it is deemed essential for the protec- tion of the national defense or foreign policy. However, even as we agree that this secrecy is needed, we should understand that the claim of "national security" has been used to hide crime and mismanagemc~nt in the past. All of us can remember some incidents when national security demanded that there be no discussion of certain information when disclosure tended to embarrass an administration. However, we have seen the same type of information distributed freely by a Presi- dent, a Defense Secretary, or a Secretary of State when it served the political purposes of the incumbent administration. This is the reality of history that should be kept in mind as we discuss this particular exception to the open information philosophy of the legislation. The second exception relates to the internal personnel rules and practices of an agency of Government. There are many personnel cases, and there are some rules and practices that probably should not be made a matter of public discussion. However, this appears to be a PAGENO="0145" FEDERAL PUBLIC RECORDS LAW 137 broad exception that could be stretched to hide all types of arbitrary and unfair activities in the handling of Government personnel. I might say on this point, a woman came to me who was employed by a Government agency, and she was examined, given a physical ex- amination, and then she was discharged a short time thereafter. She was never told why. Her lawyer and doctor tried to obtain access to this personnel material to find out what was wrong with her and so they could meet it. She was put into a position where she was being arbitrarily discharged, and she was never able to come to grips with this. This is the kind of cruel situation where this woman was up to my office week after week, month after month, asking help on her case. Her lawyer told her that it would be a very expensive venture for him to try to carry a fight for access to her records and she didn't have the money. I say this is cruel, where a rule which is intended for a good purpose, to protect the Government employee, is distorted into a pro- tection for the bureaucracy. I might add that there are a good mai~y of the same cruelties inherent in the handling of the Otepka case by the Sthte Department at the present time. This is another case where an agency of the Government is using secrecy to protect itself in the handling of Government personnel. The third exception deals with protecting those matters which are "specifically exempted from disclosure by statute." This is less sus- ceptible to any general misinterpretation since the withholding is under specific statutes. The fourth exception deals with "trade secrets and other information obtained from the public and customarily privileged or confidential." This provision would seem to follow an agreed area, but the phrase "customarily privileged or confidential" could certainly be interpreted broadly by the bureaucrat who has a motive for wanting to broaden the area. The fifth exception would exempt "intra- or inter-agency mem- orandums or lt~tters dealing solely with matters of law or policy." Even if this is closely restricted in its application, it can be used to hide a great deal of information dealing with legal opinions and policy. It is often the erratic policy papers or the cleverly worded legal opinion that is the key document in such controversies as the tax scandals, the Dixon-Yates scandal, the stockpiling scandals, or the Billie Sol Estes scandals. The danger of the broadest secrecy flowing from this exception should be apparent to anyone who has examined the details of these scandals. The argument that all agency business cannot be carried on "in a goldfish bowl" may have some merit from a standpoint of efficiency. However, it is a `short step to the philosophy that secrecy promotes efficiency, and that therefore secret government is something that should be promoted. It is pre- cisely that philosophy that we are `trying to end `by supporting the pending legislation. Exception 6 is for the purpose of protecting "personnel files, medical files, and similar matter, the disclosure of which would constituted a clearly unwarranted invasion of personal privacy." We have no quarrel with the exception if administered within `the spirit of the report issued by the Senate Judiciary Committee last year, but we are aware of how this so-called protection of personnel files has been 45-213-65--pt. 1--lO PAGENO="0146" 138 FEDERAL PUBLIC RECORDS LAW twisted in the past. The secrecy is for the purpose of protecting the individual Government employee from embarrassment and from "un- warranted invasion of personal privacy." Yet, the secrecy on person- nel files has often been used to the detriment of the individual Gov- ernment employee who has been barred from seeing his own file, and has been prevented from letting his own lawyer or doctor exanilne his personnel files. It is well to keep some of those more unfortunate experiences in mind as classic examples of what should not be done in administering the exceptions. There is no quarrel with the exemption for "investigatory files until they are used in or affect an action or proceeding or a private party's effective participation therein." This exception No. 7 has justifica- tion, particularly when there is a limitation in time of application. However, I say again, this can be made too broad in its application, and there were some questions by Mr. Kass earlier relative to this whole matter, how it would affect the material that was released at the time that a man is indicted, or other matters of this type. Exception 8 deals with the insuring of a secrecy on reports sub- mitted by financial institutions to the Government agencies respon- sible for regulating and supervising these financial institutions. This would appear to be a reasonable exception to assure the banking in- stitutions that the information submitted on a confidential basis to a regulatory authority will not be distributed publicly to the detriment of the firm submitting the material. Of course, there are instances when the whole problem o~ reports must be made public-as in the current McClellan subcommittee in- vestigation of the events surrounding the closing of the San Francisco National Bank, and also of events dealing with the First National Bank of Marlin, Marlin, Tex. However, this information should be secret until such unusual circumstances exist that require a full re- view of all acts by Federal bank examiners and all information sub- mitted by bank officials. We realize that' it would be impossible to draw legislation that would be a certain safeguard against all of those tendencies toward excesSive secrecy that prevail. We hope that the warnings we have given on possible misuse of this legislation will be helpful, and will alert the Senate and the House to make the strongest possible legislative history in opposition to the philosophy of broad withholding. It is the opinion of Sigma Delta Chi that this legislation should state clearly that nothing in its language shall be authority for withholding any information from the properly authorized committees of the House and Senate. If this legislation spells out clearly the right of Congress to obtain even the information in the eight excepted cate- gories, then there will be assurance that the proper committees of Con- gress will have a specific statutory authority to examine any informa- tion being withheld to determine if it is actually within the eight cate- gories listed in this legislation. Sigma Delta Chi is in agreement with what you are trying to do with this legislation, and we are hopeful that it will achieve the goals it is designed to achieve. However, the value of this legislation will not be known until we see how it is administered. It is the responsibil- ity `of each of us to observe it carefully to make certain it does what it is intended to do-to create a more orderly government with less secrecy. PAGENO="0147" FEDERAL PUBLIC RECORDS LAW 139 Mr. Moss. Thank you very much. Mr. Griffin? Mr. GRIFFIN. I am particularly interested in the suggestion about an amendment spelling out the right of Congress to have access even to the information that has exemptions. It certainly is clear that this bill would not, in any way, limit the right of congressional commit- tees to information. As stated by the chairman, the executive has stated over and over again, as this proceeds through the legislative process, I think we ought to give some consideration to possible amendment of the bill. Mr. Mollenhoff, there was a witness here the other day for the Mediation and Conciliation Service, pleading for a special exemption for them, saying that they operated in the capacity of something similar to a lawyer and client, and that in order for them to perform their function they had to keep information from the public. They operate, of course, in trying to arbitrate as a conciliation service be- tween labor and management in negotiations and so forth. I wonder if you have any quarrel with that situation? Mr. MOLLENHOFF. Where they make decisions, where any agency makes decisions, those matters that affect that decision, unless they involve national security or some of these trade practices and the like, should be on the table. During the process, I don't get into any fuss with any of the agencies on the process during the decision period. This is like when the Defense Department is making a decision on a contract. They can't have someone come in for any agency and examine, even where national security is involved, come in at every point where they are making a determination of the contract, look over their shoulder to see every paper that comes across the desk. That isn't what your legislation is intended to do. Your legislation is~in- tended to make all the pertinent information dealing with any Govern- ment decision available at some subsequent stage, as I understand it. Mr. GRIFFIN. Take the situation of the steel negotiations coming up, or the big automobile companies involved in negotiations, and in the process the mediator tries his best to gain the confidence of both sides, and the only way he can gain that confidence is to assure each side that what he is told will be kept in confidence and any information that they give him, may give him, about their profits and so forth, to assure him that their claim of what they are saying is justified. And he may go back, and without divulging that information, try to con- vince the other side that the other side is dealing in good faith, and all types of things like this. The parties would hesitate to divulge this information if they thought it was going to be made public at any time by the mediator. Mr. MOLLENHOFF. Frankly, I don't really buy that all the way. I think that they are assuming they are getting all kinds of secret in- formation. I don't think that either the union or the management is giving to this mediator some of this supersecret material upon which their future hinges, which must be kept secret. They are both playing a game. I am just not very sympathetic with it. He is there for a purpose, and there is a period of time when he is negotiating where I don't think he should be forced to come in before a committee of Congress. If he has a quasi-judicial capacity at that stage, when he is negotiating, he PAGENO="0148" 140 FEDERAL PUBLIC RECORDS LAW shouldn't be forced to come before this committee or any other com- mittee and divulge anything that takes place. But 2 weeks afterward I think he should come before this committee or any committee, because it wouldn't be the first time there was fraud, or deception, or improper activity in such operations. They are not above the law any more than anyone else. Mr. GRIFFIN. Of course, if there were some reason to believe that there were any fraud or something of that type, I don't think there would be any question but that the committee of Congress ought to be able to investigate that Agency of Government like any other agency. But the question of whether all of this should be made public is a difficult one. Mr. MOLLENITOFF. They are supposed to be dealing with each other in good faith. Mr. GRIFFIN. Yes. Mr. MOLLENHOFF. They are supposed to be relying upon facts that they can support, and they are not supposed to be dealing in any way that would really embarrass them if their hand really showed, either. If there is some kind of trickery that they want to cover up in this matter, if our people who are engaged in these negotiations are in- volved in some kind of trickery that they don't want to show, because it would be embarrassing to the Agency or one of the parties, I wouldn't be a party to covering it up or arguing for it in any respect. Mr. GRIFFIN. Jt is a game that they play; there is no question about it. The ôrginial demands made, and the position that the management takes in the first instance, and what they will eventually settle for and all these things, it is a game; there is no question about it. Mr. MOLLENHOFF. I don't think it should be hidden any more than what is in the court record, in a court case. But in most eases, even what the judge takes before him in chambers, would be available here or would be available to reporters at a subsequent stage, except in rare cases. Take, for example, the Hoff a trial in Chattanooga, or something like that, where you had the assassination plot and all this type of material. It would have been highly prejudicial had it come out. in public during the trial. They took it in chambers. When the trial was over with, they laid it on the line. It was all there. It was highly embarrassing to a lot of people. I don't think that these people in the mediation service, concilia- tion service-merit exemption from the law. I just don't bleed for them at all. If they handle their job properly, with the idea that what they do may become subject to public scrutiny, I think they will prob- ably operate in a better fashion. Mr. GRIFFIN. No further questions, Mr. Chairman. Mr. Moss. Mr. Reid? Mr. REID. Thank you, Mr. Chairman. Mr. Mollenhoff, I would like to compliment you again on your statement. It is most interesting about 2 years a.go, and I hope we can start to make a little progress. PAGENO="0149" FEDERAL PUBLIC RECORDS LAW 141 I quite agree with one of your opening comments, with regard to the highly repugnant and continuing Defense Department directive. It would be my hope that this subcommittee would take a clear, forth- right, unequivocal position again, and more firmly, directing and requesting the Department of Defense to rescind that directive which 1 think does affect access to the news and indeed can be a censorship of news at the source. With regard to the several points you raised, I would like to ask you quickly three questions, if I may. In exception No. 2, related solely to internal personnel rules and practices of any agency, do you have any suggestions for different language there? Mr. M0LLENJIOFF. The only thing that I would suggest there is this: That there~ might be some language which would say this is solely for the protection of the Government employee. This isn't for the protection of the bureaucracy. I have never heard anyone make the argument-well, once in a while-I will take that back. But I have never heard it argued in any spoken form that this was for the protection of the bureaucracy so they wouldn't have to divulge what they were doing with their employees. It has always been put forward on the other side. The Truman directive relative to personnel files in 1948 was all with the premise that you were protecting the individual Government employee. Cer- tainly, when it is taken in turn clear around the other way, it is wrong. I think something could be put in this provision to make it clear that it is for that purpose. Mr. REID. I take it the point you are making, which is a good one, would apply with equal force to exemption 6? Mr. MOLLENHOFF. Yes. In the medical files. In fact, one might even write in a specific provision that these files should be made avail- able to the individual employee and his properly designated lawyer and doctor, because these are people who have a right to examine these files. Mr. REID. The other question you raised, I think, of particular per- tinency, was No. 5. The question, of course, is "solely with matters of law or policy," that they could be a bushel basket to cover quite a few signs. Do you have a suggestion as to how that could be redrafted? Mr. M0LLENII0FF. Probably more limited. Of course, this will run into a real fuss within the agency, because they want it as broad as possible. They will kick up a real fuss over this. I would limit that, really, to those matters where the Government is a party to a suit from the outside. Mr. REID. Also, it seems to me, if it is a matter affecting national defense or something, that is one thing. If it is just bureaucratic bungling, that shouldn't be shielded. Mr. MOLLENHOFF. Yes. Even if you would get only a couple of little changes in here, the one thing that really will be the saving thing in this whole matter will be spelling out the right of Congress. The Congress has that right as I view it now. I am sure it has that right as the chairman of this committee and most members of this committee view it. PAGENO="0150" 142 FEDERAL PUBLIC RECORDS LAW However, when one gets into the executive branch one finds different views. The gentleman who was a short time earlier sitting in the chair that I am sitting in was a member of the executive branch and he then had a distinctly different viewpoint on many matters when he was in the executive branch than he had in the period prior to that, and I assume that he has now. And the only time he was wrong was when he was in the executive branch. [Laughter.] There is a tendency on the part of the executive branch, and the lawyers for the executive branch, to look at themselves as advocates for the executive branch, and to stretch the law as far as possible. That gentleman, as a lawyer, did that. He was for the executive branch at that stage. We have to guard against that. From the standpoint of the com- mittees, I think that here, regardless of which side of the aisle one is on, at any specific time, that there has to be more of a view to guarding the rights of Congress. Because if you have a right to access, then we of the press can have a right to access. Even though three-fourths of you may get bound up with the political party in power at some stage, there is always the chance that a few of you will be in there pitching to get the material free for us. Mr. Moss. Will the gentleman yield? Mr. REID. Yes. Mr. Moss. I think that the comment you just made illustrates the fact that this is not a partisan question. It never has been; it isn't today. It is a political question, God knows, but not partisan. On the matter of the access of the rights of the Congress, don't you think we would limit, if we had to point to a statute as the basis for the congressional right? Haven't we clearly, at least as clear as you can, haven't we a constitutional right to any information we require in the discharging of our duties as legislators? Mr. MOLLENHOFF. I agree with you completely on that, Mr. Chair- man. And one might handle this through the legislature and run into someone saying you have limited yourself because you only said you had this. However, you might, in the legislative history, make this absolutely clear. Mr. Moss. I would make it very clear. Mr. MOLLENHOFF. This is one of the things you can't repeat too often in the light of much that we hear from the other end of Pennsylvania Avenue in recent years. You must keep in mind that some of the times, when you have been able to get information from the other end of the avenue, on crucial matters, where there were big political fusses involved, it has been only because there was a specific right and you do have specific rights spelled out for the Joint Committee on Atomic Energy, the Joint Committee on Internal Revenue, the House Ways and Means Committee, and the Senate Finance Committee, they have the right to access to tax returns spelled out specifically for those com- mittees, even though those are generally denied to Congress. In the case of the AEO, in the Dixon-Yates case, establishing the facts, there were two or three committees that had an interest in some aspect of that particular transaction. PAGENO="0151" 1~'EDERAL PUBLIC RECORDS LAW 143 The other committees were unable to get access to the information. The only committee that was able to get the access was the Joint Com- mittee on Atomic Energy. One can't overlook the fact that specific statutory authority can be mighty helpful. If you have it spelled out, and in the executive branch, I know some of the lawyers never look at the legislative his- tory. They look around and find one little phrase that indicates that they might be able "in the public interest" to hide public business than they figure that their own political interests are the public interest and proceed from there. I think there would be a great deal gained by putting something in your reports, making it absolutely clear that you believe that the Congress has a right to everything. Mr. Moss. I wouldn't want to base a congressional right on statute. I think it is inherent. We can continue, in the gray areas, to try our strength with the executive. Mr. MOLLENHOFF. The Court has been actually pretty clear on this subject over a long period of time. Somehow the word doesn't get around in the executive branch. MeGrain versus Dougherty, coming out of the Teapot Dome scandals are absolutely clear. It had been a little hazy. And a number of cases in recent years, have supported the right of Congress to full access, even where the basic decision of the Court raised some question about the jurisdiction of the House Un-American Activities Committee. The Court raised some questions, but this was not where it involved inquiries into Government. This is where it involved inquiries into people outside of Government, and it raised questions there as to whether the committee was operating within its jurisdiction, whether it had been made absolutely clear to the witness that that witness was answering the question that was pertinent to the inquiry. Within the same decisions they said "But, of course, if these ques- tions were being asked of a governmental official on governmental operations, they should be answered." I say I still think the Court stands above the Justice Department le- gal opinions, whether written in the Truman administration or the Eisenhower administration, Kennedy administration or Johnson ad- ministration. Mr. REID. Mr. Chairman? Mr. Moss. Mr. Reid. Mr. REID. I have One final question. The language in the bill, the top of page 2, makes pretty clear the proposition that every agency shall, in accordance with public rules, et cetera, "make all its records promptly available to any person." And subsequently, paragraph (c) : "This section does not authorize withholding information from the public." Do you think it would be helpful in the general language of the bill to put in-and this is an idea, not the language-something dealing with the public's affirmative right to know, and try to make clear the idea that poiiti~s and bureaucracy should not be confused with security? Mr. MOLLENHOFF. I think that is the only problem. Some of that language in the bill is excellent, You should, if anything~ merely reiterate and make stronger the language in the report that goes along with it as part of the legislative history. PAGENO="0152" 144 FEDERAL PUBLIC RECORDS LAW I make reference to this area, a specific thing with regard to the personnel files. If one can button that down solely for the protection of the governmental employee, even these records made available to the employee himself, his properly authorized lawyer or doctor. What I am getting at is this-and I have seen a little of this in the executive branch as well as the legislative: The facts of the matter generally are that the public is ahead of government, and properly so. The tendency of government is to withhold, often, rather than to make available. It sems to me that the burden should be on making it available, and that there ought to `he some idea in here, perhaps in the language of the bill, that you can't just withhold it under the general heading of security when what you are really talking about are political or per- sona.l or embarrassing situathms, not really matters of security. I think-and I haven't looked at the legislation `saying where this should be, but it certainly wouldn~t `hui~t to have in there that the burden of proof shall be upon the government when it withholds. The chamber of commerce said today, and I was delighted to' see th~ cham- ber of commerce-I think this is the `first time that they have been involved here as witnesses on this type of legislation and there has been some reluctance sometimes in the past relative to those business prac- tice areas. Mr. REID. Thank you. Thank you. Mr. Chairman. Mr. Moss. Mr. Rumsfeld? Mr. RUMSFELD. Thank you, Mr. Ohairman. I certainly want to thank both `of these prominent and very experi- enced members of the press. I was particularly pleased, Mr. Fraud- sen and Mr. Mollenhofi!, that the comments you have made have been to the point and included some specific instances of withholding which I think is very valuable to have in the record, and also your suggestions as to improvements in the bill. I quite agree that the public's business should be conducted in public if `our system is go'ing to function. I am also disturbed about this particular provision on national defense and national security, This being the era of the concensus, it would seem that that which might disrupt the the consensus conceivably could in some people's minds endanger the solidarity of the U.S. position and, to that extent, con- ceivably jeopardize our national security. In previous testimony it was mentioned that some testimony before a congressional committee by, I believe, General LeMay, was classified. rrhe conclusion was that the only conceivable reason for such classifica- tion was not that it was secret or classified or it would endanger na- tional interest, but that it was in conflict with the administration's position. I think that lacking some provision to the effect that the burden of proof would be on the administration, the bill as it stands really wouldn't solve the problem. Mr. MOLLENKOFF. I think it is going to be very confidential with regard to the national security area to limit it much more than you have in the bill. That is about all you can do with that. From there on out, it is a matter of responsibility of Congress to supervise in those areas where security is stretched. This committee has done consider- PAGENO="0153" FEDERAL PUBLIC RECORDS LAW 145 able work in this field in the past, and some other committees have gotten into it. I don't think any of us have done enough in this area. But there have been some committees even in the Defense Establish- ment that have been set up during the Eisenhower administration, I thing it was the Coolidge Committee. This was set up within the Defense agency itself and it was in 1956 or 1957. They made a report relative to the overelassification and the tremendous cost that there was in overelassification because of the difference in storage costs when you overelassify a document, and the type of safes and locks you have to provide and the types of guards and everything. They reported this overclassified paper was piling up not because of real security, but simply because someone wanted to hide something that might be a little embarrasing, or it was found more convenient to just put a security stamp on it than not put a stamp on it. This Coolidge Committee, which was within the executive branch, was highly critical of what had taken place in this area. This com- mittee also wrote some reports that touched on this. Mr. GRIFFIN. Would the gentleman yield? Mr. RUMSFELD. Certainly. Mr. GRIFFIN. In view of the couple of questions and responses, there may be a question as to where and how we place the burden on the Government to sustain its action in denying information. The record ought to indicate clearly, I think, that in the bill itself, lines 11 and 12 of page 2, that once the question is brought into court that the agency does clearly have the burden to sustain its denial of information-- Mr. MOLLENKOFF. That is one of the most important things in the bill, I think, from the standpoint of the mechanism we would have here for the first time to get into court on these things. There have been a number of instances where newspapers have tried to get into court and were merely knocked out because there wasn't the mechanism available. Mr. Moss. I would like to say that on this matter of the classified nature of testimony of a general officer appearing before a congres- sional committee, I think that the executive department may advise the committee of its desires in classification. But I think the commitee has the right and the responsibility to persist on its own. In this subcommittee in 1956, we explored rather carefully the ques- tions of whether the executive could require the Congress to have its staff cleared by the executive for access to information. It was my position they could not. These things the executive may advise the Congress on, but the Con- gress is also an independent and coequal branch of Government. We may or may not recognize a clearance by an executive depart- ment. But once we give them the authority to clear, and to determine our classification, we have given them the authority to control our staffs, and I don't think we can ever afford to do that. Mr. RUMSFELD. As a practical matter, from my limited experience it would seem that there has been general acceptance when the agency comes down and says this is classified; there is no question; there is no pursuing of it as to whether or not it should be classified. I think we have developed a bad pattern. Mr. Moss. I think it is a major error on the part of Congress. PAGENO="0154" 146 FEDERAL PUBLIC RECORDS LAW Mr. RUMSFELD. I think you have made a good point. Mr. Moss. We wrote into the statute, the basic statute originating the National Aeronautics and Space Administration, a clear policy for free information to the American public. As you recall, just a few weeks ago we filed a report reflecting the investigative hearings of this committee last year criticizing the Space Administration for its failure to carry out the responsibilities placed on it by law and, in fact, dele- gating them to the Defense Department. Mr. RUMSFELD. I think this is a good argument for better staffing by congressional committees. If we stopped the witnesses every time something was classified in our committee, and pursued it as to whether or not it properly should have been classified, we wouldn't get much work done. Mr. MOLLENIIOFF. Mr. Chairman, let me say that there two classic cases: The firing of MacArthur and the TFX investigation from the standpoint of procedure to get around this. Those cases demonstrated a really effective check. In the firing of MacArthur, you had two committees on the Senate side that met together to take up the inves- tigation. All of the testimony was taken in executive session because there was a great deal of classified material. Then you had this testimony cleared by the Pentagon the same day, but you had both Democrats and Republicans there to make sure that it wasn't warped one way or the other in the clearance. The same thing was true in the TFX investigation. McClellan's committee held hearings behind closed doors on a new weapons system, and yet that same day that transcript was cleared and it came back so that we had access to a cleaned-up transcript at the end of the day. There was the check there of Democrats and Republicans who could raise their complaints if they thought something was improperly de- leted from the transcript. I say this is probably the ultimate in fairness. Mr. Moss. My point is that it is the congressional responsibility. They can take the advice of the Executive, but they are not bound by it. Mr. RUMS~ELD. I have a question that relates to the subject that has not been brought up at all in this series of hearings we have been holding. One hears from time to time about circumstances where members of the press-and I suppose other people, lobbyists, Members of Congress, and others-receive information from employees of the executive branch of the Federal Government under circumstances where the individual receiving the information is well aware that he is not to have that information, and it comes as a favor to the individual whether for friendship (some quid pro qua) or simply because the employee has an axe to grind. I don't know how widespread this is. I would be curious to know if you could give us some feel for it. Mr. FRANDSEN. Mr. Chairman, I certainly don't have any knowl- edge of any cases in which information was obtained for money or gifts. Mr. RUMSFELD. For friendship? Mr. FRAND5EN. Maybe other people do, but I don't know of any. But, obviously, when there are areas of contention going on within an agency, and information is perhaps not available now-to the extent that it would be if this legislation is passed-certainly people PAGENO="0155" FEDERAL PUBLIC RECORDS LAW 147 who are arguing for one policy as against another, and think their side is not getting any public attention because the boss is on the other side, and the information that has leaked out is all on one side-of course, very frequently, those people are going to provide some infor- mation to the reporter that they perhaps know, and I think it would be dreadful if any effort were made to overcome that by this bill. I hope that nothing in this bill would ever be construed as meaning that only the records will be available after they are approved. Mr. RUMsFEW. My point was that when someone sets a speed limit too low, it is frequently broken, or as in prohibition, it simply turns out to be irnenforcible; it is very frequently violated. I was wondering if by providing a bill such as this there would be less of the type of thing going on. Mr. FRANDSEN. I wouldn't think so. Mr. Mow~NrioFr, I don't think it would make any difference. I might say, this is thoroughly proper in my view. I have a constant flow of information coming to me from people in the executive branch of the Government who call me and say they have information, and it will be their job if they oppose the position of the people on top. They don't give it to me to use for a story immediately. I don't take it and write it just because they tell me this. But I use it as a tip, and sometimes I use it myself; sometimes I investigate up to a com- mittee of Congress. I am doing this almost every day, and I am going to keep on. At any time where they get to the point where they put the lid on, so these people are afraid to talk, I am going to be concerned. And that is the very thing that I am concerned about in this directive of Sylvester's over at the Pentagon. This is a directive that is intended to make sure that they know every person who talks to a reporter. And I have heard a lot of reporters over there who complained a great deal about this to start with, who haven't complained too much recently. They say: "Well, it is there, but they are not enforcing it very much; or a lot of people are talking to me anyway and they just don't report to Sylvester." This is fine. But the rule is merely being violated. This doesn't mean that Sylvester can~t impose that rule, because that rule still stands as an order by an Assistant Secretary of Defense that can be used as grounds for disciplining any person in that Department who is caught not reporting that he talked to a reporter. I say I want to get around that type of thing and I am going to do it every day of the week. Mr. RTTMSFELD. Certainly the passage of a bill along the lines we. are considering here today would put the employee in a position, and the agency in a position, and you in a position- Mr. MOLLENHOFF. Have you read the Otepka case? You ought to read it. Mr. RUMSFELD. I know about it. Mr. MOLLENHOFF. Here is an effort by an executive agency to bar the Congress from testimony that was pertinent. This man delivered three documents to a Senate committee that were highly pertinent, and he is being fired for it, and this is, again, one of those cases of stretch- ing an order. PAGENO="0156" 148 FEDERAL PUBLIC RECORDS LAW The three documents that he delivered only proved that his superior gave untruthful testimony. He committed the crime of not going to his superior and say: "See, boss, I want to take these three documents up that will prove that you were untruthful under oath." The committee on that said-I might say, is unanimous that this man had the responsibility and the right when his own integrity was in question, to produce the records that proved he was telling the truth-to produce the records that proved that his superior was not telling the truth. However, our State Department takes an entirely different position on this, and is pressing forward to try to fire this man even today. At the same time the State Department still has in its employ one of the men who lied under oath. Mr. GRIFFIN. They haven't promoted him yet, have they? Mr. MOLLENHOFF. No, but that will come. [Laughter.] Mr. RUMSFELD. I want to thank both of you, and also to congratulate you on the excellent job you continue to do in your field. Mr. GRIFFIN. I think that we probably have to recognize, though, that in the first couple of lines, on page 2, you say "Every agency shall, in accordance with its published rules, stating the time, place, and procedure to be fol1owed, make its record available." That insofar as the agency setting up procedures, I suppose even along the lines that Sylvester has set up, this bill as it now is written isn't going to affect that. Mr. MOLLENHOFF. I think that's correct. I would think that in your explanation of that you should make it clear that-I think your intent on this is that they shall say records will be available from 9 to 5 in rooni 304, and that you don't. take them out, or if you want an extra copy you have to pay 25 cents for it. I am assuming that is what you have in mind relative to the making of the records available, as would be the normal procedure over at SEC, any of the regulatory agencies where you just go there and exam- ine the file or copy the files. I would think that in your legislative history, again, this is not intended to limit access except to make it reasonable access withiii working hours and that- Mr. RUMSFELD. If the gentleman will yield, that is an excellent point. I have come across situations where specifications on procure- ment matters have been made available, but they are quite lengthy and they have not been permitted to photocopy them, they have had to send someone in physically to copy these lengthy documents, which of course is tantamount to denying them access to them for all practical purposes. Mr. Moss. I think that by the time this legislation is complete, that the history of the intent will be very clear. I think the whole tenor of the hearings here, any report, any debate, will make it very clear that the objective here is a much freer flow of information, and we are talking here of procedures to make promptly available records which the Government has. The problem, as I observed the other day to the counsel for the Department of the Treasury, is that at the time of a legislative hearing the agencies are inclined to very narrowly interpret these exceptions, very narrowly. When they start to administer them, they interpret them very broadly. PAGENO="0157" FEDERAL PUBLIC RECORDS LAW 149 If we could have a more consistent pattern of interpretation, it would make it much easier for us to do the job of drafting legislation that would anticipate problems. I think that there is no question of the extreme difficulty in drafting language covering exceptions in the field of records. For instance, ideally I would like to see the internal working papers made available following any official action, based upon those records. Once the action is taken, we should be able to examine the material that went into the decision. I see no reason why that wouldn't be good policy. I don't think it possible at this time to go that far in drafting language. I hoped that the appearance of the Department of Justice here the other day would have been in the vein of discussing these exceptions and constructively recommending changes to the committee. Regret- ably, that was not the type of testimony we received. I am hopeful that we can go back now and perhaps get sonn~ thinking, that there is a little change in their views after they ap- peared before the committee, or while they were here before the committee. Mr. Kass, do you have any questions? Mr. KASS. Thank you, Mr. Chairman. Yes, I do. Mr. Moilenhoff, news to a newspaperman, to the press in general, is a very timely mat- ter. How would the court access provision allowing the reporter who had been denied information to go in the court and file a suit really help him in getting the news for the purpose that he needs it? Mr. MOLLENHOFF. From the standpoint of the specific story, prob- ably not, because in the first place you would give away your story the minute you started filing suit. From the standpoint of a lever, if it is there and if someone brings a suit, we all have an interest. Sometimes I think that we are too much to go alone on these things. If one does bring a suit and is successful, it helps the whole profession in this respect and makes the agency a little less inclined to withhold. The same thing is true when something is withheld and we come up here to the Congress and manage through a committee of Congress to pull out the same material, even reluctantly, most reluctantly some- times, that it makes the executive officials less likely to withhold at a subsequent stage. Mr. FRANDSEN. May I comment on that? Mr. KASS, Yes. Mr. FRANDSEN. News, of course, by definition is timely. News is also not news until it is reported. Some of the best stories are about things that happened a year ago that you are just able to pin down now. Mr. KASS. I was about to ask, in light of Mr. Mollenhoff's statement, whether you believe that a lot of needless litigation, as Mr. Rumsfeld asked earlier, would result if the court access provision were retained in the bill if enacted? Mr. M0LLENIJ0Iir. I don't think needless litigation- Mr. KASS. Excessive litigation? Mr. MOLLENHOFF. Litigation is expensive. I don't think news- papers are going to engage in any more litigation than they have to for access. And I don't think that you are going to have a lot of citi- zens around filing law suits. PAGENO="0158" 150 FEDERAL PUBLIC RECORDS LAW You may have suits that are not justified. You have suits filed in the Federal courts, State courts, every day that are not justified. But I wouldn't look for this litigation to bring any great harassment of the Great Society. Mr. KASS. You mentioned-~ Mr. MOLLENHOFF. Or other society. Mr. KASS. You mentioned earlier the problem that is raging now between the free press and the fair trial idea. Mr. MOLLENHOFF. Yes. Mr. KASS. Do you think that the bill adequately protects, on the one hand, the investigatory files that properly should be withheld pending the time the case is brought to trial and, on the other hand, the right of a newspaper, or the right of the public, to get information that they need? Mr. MOLLENH0FF. There are certain types of investigatory files, the raw investigatory files, that really should not be made public. I see that when it serves the purpose of the administration, that some of those files are accumulated and distributed to some colummst and others. Don Reynolds, is an example, which is the most recent memory. Here is a principle that was absolutely wrong. But because it serves somebody's purpose politically, this material from the Reynolds files was distributed from the Defense Department and the State Depart- ment investigatory files. It was not even substantiated information but merely rumor. That shouldn't be distributed by Government under any circumstances and information but should have access to it. There are certain types of carefully evaluated reports that should be prepared and submitted within the department. They should not contain those things that are pure rumor and hearsay. If they tend `to be sloppy about that and get their rumor mixed up with the fact, that is the fault of the investigative agency. This will be a matter of careful administration of report prepara- tion. It is going to be a matter that will require close supervision by the proper committee of Congress to see how the agencies are ad- ministering this over a period of time. Mr. Kass. Mr. Mollenhoff, you referred to a lady who came to you after she had been discharged, she and her attorney and the doctor couldn't get the record. What type of records do you feel should not be made available? What type of personnel records should not be made available to individuals, to the press, or to anybody else? Mr. MOLLENHOFF. For example, I don't believe the loyalty-security thing should be made available to the press. I don't hold the Con- gress out of that, though, I think the Congress has been lax in letting the executive branch get by with holding that material away from it. Mr. KASS. Excluding for the time being the right of Congress to get the information. I am talking about the executive- Mr. MOLLENHOFF. The press shouldn't have the right to get loyalty files or the medical files of the individual. I don't think we should necessarily have the rating files of the individual, unless there is a specific reason. We should have their salaries and their positions. That is about all we are really entitled to on the individual, unless there is a real reason br yanking someone back, demoting him a couple of grades, or the like. I think we should be given at least a summary of that reason. PAGENO="0159" FEDERAL PUBLIC RECORDS LAW 151 Mr. KASS. Would a definition of personnel rules include, in your estimation, instructions to FBI agents, or instructions to Secret Serv- ice agents, as exempt from disclosure? Mr. MoLI~ENno~. I think those should be exempt. Mr. KAss. They should be exempt? Mr. MOLLENHOFF. Yes. I don't think that that particular area is something that we should want to get into. The only time that that should be gone into is extraordinary circumstances where a proper committee of Congress would feel there is something wrong with the way it is being handled. Mr. KASS. But as to the relationship between the executive and the public, they should not be given even that information? Mr. MoIi.nNnoFr. No. Mr. KAss. Exemption No. 6 states: "Personnel and medical files and similar matters, the disclosure of which would constitute a clearly un- warranted invasion of personal privacy." It was objected to by the Counsel for the Treasury Department. He objected to the word "clearly." Do you feel, as a lawyer, that the word "clearly" is a problem? Mr. MOLLLNHOFF. It is a problem for them, because they want it fuzzily, so they can put on any kind of interpretation they want to. This is like saying the burden of proof is on them. That means some- thing in the law, and they don't want the burden of proof. They want a nice, fuzzy word that they can interpret as they see fit. I think "clearly" should stay in there, and I don't care what the Treasury Counsel says. `I understand his problem. But it is not a problem that involves the public interest. Mr. KAss. In reference to exemption No. 5, on inter-agency and intra-agency memorandums or letters dealing solely with matters of law or policy, many agencies have objected that they cannot clearly, if you will, separate on the one hand, those memorandums dealing solely with fact, and on the other hand those memorandums dealing solely with matters of law or policy outside the public reach. How would you interpret that? Mr. MOLLENHOFF. I think there is some question in my mind about putting questions of law and policy. The idea here is that these agencies, dealing with the public, set their policy out so that the public knows what they can depend upon, and that whatever decisions they make are decisions that are made upon what is clearly published in the Federal Register, clearly avail- able to the person who has any business with the Government. There may be unusual circumstances which I can't think of offhand, where you don't put out the legal opinion. I think that the business of covering legal fines gives them much too broad a sphere. When you go back to the tax scandal cases, you find legal opinions within the agencies were the whole root of the evil. They were ruling one way in one legal opinion and another way in another legal opinion, within a period of a few weeks or a few months. Of course, I am getting into an area here where I think we are cov- ered by tax laws. We are denied access to tax return information under section 55, and the legal opinion dealing with specific cases. That comes under another exception as specifically set out in law. PAGENO="0160" 152 FEDERAL PUBLIC RECORDS LAW Mr. KASS. Mr. MollenhofF, one further question. In your statement you said- There is no quarrel with the exemptioh for investigatory files until they are used in or affect an action or proceeding or a private party's effective partici- pation therein. This exception No. 7 has justification, particularly when there is a limitation in time of application. Mr. MOLLENHOFF. If the files all become available at a subsequent stage, it lessens the problem of misuse of secrecy. This would apply when it was an investigation where the Government had to bring things up to a certain point, and try the case without laying their whole hand on the table before trial. Often as Soon as that case is over with they can make this public. This is frequently the. situation that you as congressional investiga- tors run into. You have a case that you want to put on up here. They sa~y we have that case in process of adjudication at the present time and we can't lay it on the line. You abide by that. I would, and I think most people would, during that period of time. But after they get that case settled, then there is no real reason for secrecy unless there continues to be an overriding reason that falls within one or the other exceptions. Mr. KASS. In this matter there are certain Federal rules which allow for discovery and disclosure to the parties in question, for ex- ample, the attorney and his client. Should that information, once available to the attorney and his client, be given also to the general public? Or would there be a further time of application pending, maybe the completion of the lawsuit? Mr. MOLLENITOFF. I would rather not get into that. I haven't thought that through from the standpoint of the mechanics of how that would operate. I would prefer not to get into that. Mr. KAss. Thank you, gentlemen. No further questions, Mr. Chairman. Mr. Moss. Are there further questions? If not, I want to thank both of you gentlemen for your appearance here this afternoon. Mr. MOLLENXIOPF. Thank you very much. Mr. Moss. The subcommittee will now stand adjourned until 2 p.m. on Monday. (Whereupon, at 4:10 p.m., the subcommittee was adjourned, to re- convene on Monday, April 5, 1965, at 2 p.m.) PAGENO="0161" FEDERAL PUBLIC RECORDS LAW (Part 1) ]VIONDAY, APEIL 5, 1985 HOUSE OF REPRESEi~TATIVES, FOREIGN OPERA~rIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE OF TIlE COMMITTEE ON GOVERNMENT OPREATIONS, Wa8hington, D.C. The subcommittee met, pursuant to recess, at 2:10 p.m., in room 2247, Rayburn House Office Building, Representative John Moss (chairman of the subcommittee) presiding. Present: Representatives John E. Moss, John S. Monagan, and Donald RumsfeH. Also present: Samuel J. Archibald, chief, Government Information; David Glick, chief counsel; Benny L. Kass, counsel; Jack Matteson, chief investigator, and J. P. Carison, minority counsel. Mr. Moss. rfhe meeting will be in order. I'm very pleased to wel- come as our first witness this afternoon my colleague, Congressman John Wydler. STATEMENT OP HON. IOHN W. WYDIZR, A REPRESENTATIVE iic CONGRESS PROM THE STATE OP NEW YOItB Mr. WThLER. Thank you, Mr. Chairman. The statement I have to make today is going to be very short and brief, but I couldn't let this opportunity go by without making a statement to the committee, and it is in the form of a protest, I suppose, but I think it has a bear- ing on what your subcommittee is doing. First of all, I want to say that I commend your committee on the efforts it is making in these fields. I think that, generally speaking, there is too much secrecy in Government matters. This is particularly true in the executive branch. Where the need for secrecy, whereas it is-secrecy is used for a cover, I believe, in many cases for matters which would be embarrassing and don't necessarily have to be secret in nature. I think we in Congress may be guilty of it at times ourselves as well, and I have suggested that this is particularly true in regard to the files of those matters concerning ourselves which are the ones, naturally, that are kept by the House Administration Committee, and so forth, that I think that these files should be, of all files, made public so that no question of impropriety could ever be raised con- cerning them, but my real purpose for appearing here today is to bring to the attention of this committee, which is seeking, as I under- 153 45-215~ ~65-pt. 1-11 PAGENO="0162" 154 FEDERAL PUBLIC RECORDS LAW stand it, to get more information Ito the public in general. The treat- ment that I received-as a Meirtber of Congress, I was afforded last year on the committee on which I served and on which I was denied a nonsecurity, nonsensitive matter, vital for proper consideration of an authorization request which our committee was studying. I found this most remarkable, because I found in general the Government agencies that I have dealt with will make available to me and have made available to me the files that they have concerning Government matters. This is true in both the General Services Administration and the usual authority, but in regard to the Space Administration, last year our committee was considering the question of the location of an electronic research center, and this question had created a great deal of heat, some political undertones and overtones, and in the course of the hearings a great many questions were raised, and 1 asked the agency to produce for me and make available to me their files concerning this question, and it was refused, and actually, the procedure that was followed was the committee chairman asked the agency head whether he wished to make these files available to me, giving him the choice of whether he wanted to do that or not. The result of the whole thing was that the files-the access of tbese files were refused to me. I was never allowed to have the information, although a budget line item was contained in the budget concerning this very matter which I was supposed to pass on in my capacity as a Congressman. NOW, it appears to me that if the committee is to obtain any public type of dissemination, the first place where we should be able to get information is from our position as Congressmen, because we, in effect, in many cases, are the link between the public in general, and the executive branch of the Government. We are the people being told to get results for our constituents from this bureaucracy that they must face, and if we are going to be denied the access to this type of information, I don't see how the public is ever going to get the information, and I think this is a step in the wrong direction, and I have to say quite sadly, although I asked the Speaker of the House to intercede on this matter in my behalf because I felt my prerogatives as a Congressman were certainly being trampled on. I could not get him to even answer my request in one way or another, which disappointed me greatly, but I would like to say Mr. Chairman, that we should attempt to do something about this type of with- holding of information that belongs to Congress and make sure that that part of our public information department is in order before we worry about the public in general. It appears to me that that is our first order of priority. This is, in my opinion, completely improper denial of information, and I wanted to make it known to this committee. Whatever action they can take on it to see that such action doesn't happen in the future- Mr. Moss. Well, I certainly appreciate your concern when con- fronted with a refusal of information you feel essential in your dis- charge of responsibilities as a Member of Congress. That it should be the Space Administration is very disturbing, in view of the fact that this committee was responsible for having section 303 included as part of the Public Law 85-568, which is the act creating the space agency. It was one of the first clear provisions, in an organic act, PAGENO="0163" FEDERAL PUBLIC RECORDS LAW 155 making it very clear that the agency was to affirmatively undertake a policy of the widest spread of information. It provided also a dis- claimer that nothing in this act shall authorize the withholding of information by the Administrator from the duly authorized com- mittees of the Congress. I don't recall definitely, but did this com- mittee receive a complaint at that time? Mr. WYDLER. Mr. Chairman, I can't really say that I can assure you that I did, but I have only a recollection that I did write some corre- spondence to somebody on the committee in that connection, but I do not remember exactly. Mr. Moss. We will check. I have no recollection of having re- ceived a complaint on this matter. Your committee, did it act to require the production of the information? Mr. WYDLER. Well, actually, what happened in this connection was this: I made the request of the agency and they wrote me, in effect, and said they would not grant me this right as an individual Congressman, but, of course, they would be willing to meet a request of the commit- tee. I thereupon made the request-I objected to that procedure, No. 1, but I thereupon made that request at a subcommittee meeting and was told that only the full committee could pass on it, and we there- upon took it up at a full committee meeting, and the chairman of the full committee refused to make the request on my behalf, but, of course, this was held under the most unusual circumstances. We had the head of the agency testifying before us at the time the chairman of the committee came into the subcommittee meeting and took a chair and they more or less agreed that I would not be able to see the files on that. I personally never did see the relevance to the facts that I as a member of the committee wanted to see the files that I had to have a full committee to request to see them. There was never a vote taken on the matter. The chairman just indicated that he wouldn't request it and that seemed to end the matter there. Mr. Moss. Subsection B provided that nothing in the act shall per- mit the withholding of information by the Administrator from the duly authorized committees of the Congress, and then, on page 23 of House Report No. 1770 of May 24, 1958, is this language: This section provides that all information concerning the new agency's activi- ties shall be made available to the public, except information required or author ised by Federal statute to be withheid (such as trade secrets) and 1nforma~ tion classified to protect the national security. Nothing in the act, however, would prohibit the Administrator from furnishing information to the Senate au~ Ilouse and the various committees of Congress. It was the desire of the select committee to include in the bill a positive alflrmation of Congress intent that the people be enabled to know what is going on in their Government, subject, of course, to national security restrictions. And the discussions at that time spell out rather clearly the in- tent of the Congress that there be a maximum of availability of in- formation to Congress. Now, in the hearings 2 years ago, this committee was critical of NASA for its failure to accept responsibility for determining the scope of information which would be available to the public. It seemed to delegate that decision, at least, to the Department of Defense. In a report which was filed in the last month, we reiterated our criticism of PAGENO="0164" 156 FEDERAL PUBLIC RECORDS LAW the agency for its failure to accept the responsibility for a positive in- formation policy. Mr. W~YDLER. I can oniy assure the chairman that there was no question of natural security involved in this matter whatsoever, and, quite frankly, I am pleased to hear what the chairman has to say. Do I understand by that the agency should make matters in its files of a nonsecurity nature available to Members of Congress? Because this question is actually recurring to some extent this year. I find that when I make requests for certain documents, such as engineer's reports, the chairman of the subcommittee asks the aoency whether they want to make them available to me or not, and find it a re- markable way to try to get to the information of what the agency is really doing when they decide whether they will show you their records or not. Mr. Moss. Well, section 303 of the act is rather clear: Information obtained or developed by the Administrator in the performance of his function under this act shall be made available for public inspection except (A) Information authorized or required by Federal statute to be withheld, and (B) Information classified to protect the national security. Those are the two categories of exemptions granted under section 303 of Public Law 85-568, which is the act creating the space agency. Mr. RUMSFELD. Mr. Chairman, could I make a comment here? Mr. Moss. Certainly. Mr. RUMSFELD. I happened to serve on the full committee and the subcommittee that Mr. Wydler is referring to, and I know him to be a diligent and hardworking member of that committee, and I recall this situation, and it certainly was my understanding that there was nothing of a security nature involved, and by the same token, there was nothing that would fall within the other exemption. Do you, Mr. Chairman, know of any situation which would permit an agency of the executive branch of the Federal Government to draw a distinction as between a committee and an individual member? The comment was made by Mr. Wydler that they would not give it to him, but in the event that it was requested by the chairman of the full committee, it would be supplied. Is this your recollection? Mr. WYDLER. "By the committee," they put it, but that is it in substance. Mr. RIIMSFELD. And the chairman indicated that he didn't want to request that information? Mr. Moss. There are many, many precedents which could be cited where agencies have refused information to individual members but have agreed that they would make it available upon the request of the committee. Remember here, the minute we move into a con- test between the executive and the Congress, we are in one of the gray areas of the Constitution. From the administration of General Wash- ington on down, there have been occasions when Congress has re- quested information from the executive and it has been refused; not only individual Members, but committee have had refusals, and this continues, and in the bill before us now, this is not dealt with. Mr. WYDLER. I understand that, sir. Mr. Moss. I think we would make a mistake to try to spell out by statutes the rights of Congress. I think the rights of Congress are in the Constitution where we created three coequal branches. I would PAGENO="0165" FEDERAL PUBLIC RECORDS LAW 157 always hope that they would be cooperatively coequal. Sometimes tbey tend to deal at arms length in a manner that would indicate that there are certain hostilities between the two, but this, again, is part of the pattern of many, many years. The committee is always mter- ested in being helpful to any member. We can't guarantee that our efforts will succeed in producing the information. Again, we could cite precedents where we have been successful, and those wherewe have had rather remarkable failures, but at least the effort to be helpful will always be made for any Member. Mr. Wmiam. It would be rather inconsistent to grant greater rights to the public in general than to Members of Congress or personalize Members of Congress, and this may very well be the situation you will find if the situation I have described is allowed to continue, because if we are going to leave it up to the agencies and just agency heads to make these decisions as to what they consider should be privileged, then, of course, our powers are really nil as far as any real investiga.. tion of them is concerned. They are the judges of what we are to be allowed to examine. We can obviously do nothing to examine there- after. Mr. Moss. Well, on occasions, the ~J~ngress has had to resort to rather extreme measures to get information. I recall when we created the Office of Inspector General in the Agency for International De- velopment in an effort to bring about the production of information for the Congress. By the legislation before us now we propose to spell out a public route, and leave it to the Congress to continue in using its own powers to try to accommodate with the demands of the executive As I have said earlier, I think this would be a mistake to try to spell out by statute congressional right. I think that instead, we should firm up the public right and thereby strengthen the right of everyone who has a need for information. Mr. GRIrnN, Mr. Chairman, could I make a statement? Mr. Moss. Certainly. Mr. GRm?IN. Well, I want to thank our colleague for coming before the subcommittee, and although I didn't hear all the statement, I understand the thrust of it, and I think he has made a good point. Surely, an individual Member of Congress must stand at least as high as the public, generally, and this subcommittee is concerned with mak- ing sure that information is available not only to the Congress, but to the public, and the President has advised this committee in writing that the so called executive pnvilege of withholding information from the Congress will not be exercised except upon his own personal deter- mination. I would suggest that if you have further situations like this that arise and you feel that they do not fall within the exemp- tions to which the chairman has referred to in the statute, that you file a written complaint with this subcommittee and I thini~ it would be oar usual procedure to make some inquiry into it. Mr. W~m~ER. I thank the chairman. Mr. GRIFFIN. And hopefully, I think that would help you, as well as the purpose. Mr. RuMs~w. Mr. Chairman, one last thought. You might be interested in seeing, and I think the staff could supply you with a copy of this letter from the President concerning executive privilege. PAGENO="0166" 158 FEDERAL PUBLIC RECORDS LAW I think after reading it you may come to the tentative conclusion that in the instance you have described the concept of executive privil~g~ was invoked not by the President, not even by an agent of the Presi~ i dent, but by a bureaucrat in that hearing. You may very well ~come to the conclusion that the treatment that you received was not con- sistent with the statements which are claimed by the President in this letter, and it might be well to document this case you've brought before the committee and bring it before this committee. Mr. Moss. There is a law, you know, that permits a member of the House to file a privileged resolution, calling upon an agency to pro- duce records. It then brings the matter before the House and permits the House to act on it, particularly if it is a matter not presently being considered by a committee. Mr. W~mi~n. Well, that is a good piece of information to have. Unfortunately I didn't have it at the time that I could have utilized it, obviously, because I would have. However, what I did do, I went before the Appropriations Committee, who is considering the appro- priations for this item to tell them about the matter, but if I had known about this privilege motion-I thank the meffibers of the com- mittee very much for their time. Mr. Moss, All right. Thank you. The next witness is Mr. Walter Potter, publisher of the Star-Ex- ponent, Culpeper, Va., and representing the National Editorial Asso- ciation, and he is accompanied by Ted Serrill. You have a statement? Mr. Porr~n. Yes, I have, sir. STATEMENT OP WALTER B. POTTER, PUBLISHER, CULPEPER STAR- EXPONENT, REPRESENTING THE NATIONAL EDITORIAL ASSO- CIATION Mr. POTTER. My name is Walter B. Potter. I am publisher of the daily Star-Exponent in Culpeper, Va. I am appearing for the Na- tional Editorial Association, of which I am a director and chairman of its legislative committee. I am accompanied by Theodore A. Serrill, executive vice president of the National Editorial Association. Organized in 1885, the National Editorial Association is a trade association of hometown newspaper publishers and editors from all 50 States. NEA membership includes more than 6,600 newspapers, more than 5,800 of which are weeklies or semiweeklies and 800 daily newspapers. Forty-four State newspaper associations are affiliated with NEA. Headquarters of the association are here in Washington. NEA strongly supports the public records bill you are considering. In 1963, when a similar bill, S. 1666, was receiving active consideration in the Senate, our association adopted a formal resolution in support of that bill, and recommended its enactment. Mr. Serrill and I testi- fled in favor of that bill at hearings in October, 1963, before the Senate Subcommittee on Administrative Practice and Procedure. That bill, sponsored by Senator Edward V. Long, was passed unanimously by the Senate in 1964, with only minor changes. I might add that at the time I spoke in support of this bill, I quoted Representative John E. Moss, the chairman here, and chairman of the House Government Information Subcommittee which has done so much for the cause of freedom of information, and gave an example of PAGENO="0167" FEDERAL PUBLIC RECORDS LAW 159 this as testimony. He told how a public housing authority in Pennsyl- vania was investigated by the Federal Public Housing Authority, which kept its report secret, saying local officials could make the report public if they chose. In other words, the officials whose own conduct was investigated were given the power of censorship over a report on their own performance. Naturally, they chose to suppress the report. NEA has kept its membership informed in every possible way about the progress of this legislation. Through weekly and monthly news- letters to our members, through the pages of NEA's fortnightly news- paper, Publishers' Auxiliary, and the NEA monthly magazine, Na- tional Publisher, the hometown press has been constantly informed about the progress of this pending legislation. NEA regards the Long and Moss bills as perhaps the most important legislation affecting the press now pending before Congress. In 1964, NEA instituted an award of merit. The first recipient ~was Representative John E. Moss, who was singled out for his long fight for freedom of information. Last week this award was made (br the second time and the recipient was Senator Edward V. Long, aI~o for his right-to-know efforts. These awards should signify bow imt~ortant NEA regards leadership roles in the struggle to achieve frec~dom of information at all levels. N~A believes that there is a crying need for legislation to force the FMeral Government to cease suppression of information which ç the public has a right to know. This bill is a step in that direction. We of the press wish it were stronger and did not contain so many exceptions, some couched in broad language which we feel would allow bureaucrats to withhold what they should reveal. We realize, however, that any change at all is difficult to achieve and if it is the judgment of this subcommittee and the Congress that this is the strongest free- dom of information bill that can become law, we will support that decision and back the pending bill without strengthening amendments. NEA was distressed by the testimony presented to your subcom- mittee by a Justice Department spokesman on March 30. An Assistant Attorney General presented 10 pages of testimony to this body, the first 3½ pages devoted to honeyed words about "a steady flow of in- formation" being "truly the lifeblood of our democratic system." These were fine assertions and we heartily concur. However, the Department of Justice official after completing his remarks in tribute to the cause of freedom of information negated his position by devoting the final six and one-half pages of his presenta- tion to telling you the bill might be tmconstitütional, that its whole approach is "impossible" and would "adversely, affect the public in- terest." In short, the Assistant Attorney General argued against any law that would substitute for "executive judgment and discretion." Of all the untenable positions for a Federal official to take. Of all the affronts to sincere men like Congressman Moss who have been turning up instance after instance of suppression of informa~tion, for the convenience of the bureaucrats, and contrary to the public interest. The Justice Department concedes the public has the right to know, but only what the departmental executive chooses to reveal. What an insult to Congress. What an invitation to you gentlemen to pass a strong bill and put a powerful, headstrong bureaucracy in its place. Apparently the administration does not take this legislation seri- PAGENO="0168" 160 FEDERAL PUBLIC RECORDS LAW ously despite its three dozen sponsors in Congress, and despite unani- mous Senate passage last year of an aimost identical bill. Apparently the strategy of delay will be utilized, the Assistant Attorney General having told you it would take a long time to prepare some of the answers that ought to have been available last Tuesday. Your record of this hearing on HR. 5012 already contains a state- mont made by our President, Lyndon B. Johnson, when he was vice- president-elect at a meeting in Williamsburg, Va., of the Associated Press managing editors. We refer to his clear enunciation of his views at that meetingS years ago: In the years ahead, those of us in the executive branch must see that there iS no smokescreen of secrecy. The people of a free country have a right to know about the conduct of their public affairs. Only last Thursday, April 1, the President at a swearing-in cere- mony for Henry H. Fowler, Secretary of the Treasury, in the White / House, reiterated his feelings in this regard by saying in part: I want the press to have all the truth, the whole truth, and nothing but ~ truth. We are proud to read this statement into your record. This subcommittee has been preparing to pass such a bill as ER. 5012 for a decade. The departments and agencies have been ~ven ample opportunity to work with you to improve the bill. Youe ques- tionnaire has gone unanswered by such a key agency as the Bud~et Bureau, along with numerous others. The attorney from Justice even suggested that there were economy reasons for no greater outcry against this bill from Government agencies and departments. So far, my comments have been confined to the testimony of the Department of Justice representative. As inconsistant as that state- ment was, it was topped by that of the Treasury Department spokes- man. He told you that the bill would be seriously prejudicial to the effective conduct of the Government and damaging to many private individuals.. He even ironically charged that passage of the bill would mean the Government will be unable to prevent invasions of the privacy of individuals. A bill designed to assert the public's right to know has now been characterized as harmful to the public's right to privacy. A country boy like myself has difficulty under- standing this reasoning. As I am sure all members of this subcommittee know, the eight ex- emptions contained in the bill have been worked out over a period of years in a sincere effort to strike .a proper balance between informa- tion legitimately withheld for good reason that few would question, and on the other hand nonsecurity information suppressed simply for the convenience of appointed officials. Nobody wants defense secrets revealed. Nobody wants business trade secrets unveiled. Nobody wants an unwarranted invasion of personal privacy. Nobody wants law enforcement hampered by undue disclosure of investigatory information. All of these matters are safeguarded by the bill. It is obvious that even if the list of exceptions were stretched from 8 to 80, opponents could still find reasons for complaining the list was neither long enough or broad enough. . This suggests a future course for this subcommittee which the National Editorial Association rec- ommends for your consideration, as follows: 1. Listen, but for a reasonable time only, to demands for expandmg the exemption list or changing the wording. PAGENO="0169" FEDERAL PUBLIC RECORDS LAW 161 2. After weighing the evidence and making whatever changes seem necessary, report and pass the bill, and pass it this year. 3. Let those agencies which contend hardship under a Federal public records law then come to Congress and a~k for legislation in specific instances where disclosure can be proved to be contrary to the public interest. This subject has had a full airing. The laws of this country are made by Congress and it is high time that secrecy-minded Federal officials are given a reminder of that fact. You have been challenged with the claim that the department and agency officials can best decide what the country should know and what it should not be told. Now is the time for Congress to refute that claim by rebuffing pressures \ from selfish interests and making a law for the public good. If you will meet this challenge, you will have the support and the \ gratitude of the grassroots press of America. ~ Thank you very much for hearing this plea. \ Mr. Moss. Thank you very much. Mr. Griffin ~ ~Mr. GRIFFIN. I have no questions, Mr. Chairman. ~{r. Moss. Mr. Macdonald. M~. MACDONALD. I have no questions, Mr. Chairman. Mr. Moss. Mr. Rumsfeld. Mr. RUMSFELD. I have no questions, Mr. Chairman. Mr. Moss. We seem to be plagued by rollcalls. I want to assure you that we are going to listen very carefully and we are going to weigh the evidence, and I hope that we pass the bill, and I hope we pass it this year. I again thank you for your appear- ance here and your association for its support of the legielation. Thank you. Mr. PorrEn. Thank you very much, Mr. Chairman. Mr. Moss. We will recess until 3 p.m. (There was a short recess.) STATEMENT OP JOHN A. MeOARZ OPER~.TIONS ~IW~TOB~, GOVERNMENT EMPLOTE~S' OOUNCIt~, A~'Z-O~O Mr. MCCARP. Mr. Chairman and members of the subcommittee, I am John A. McCart, Operations Director of the Government Elu- ployees' Council, an organization comprised of 30 AFL-CIO ui~ions representing employees in the wage board, classified, and postal services of the Federal Government. We subscribe to the basic purpose of the bill under consideration today-providing the public with the maximum information possible about the operations of their National Government. Attaimnent of this objective is essential if citizens are to mike intelligent decisions about the degree of efficiency of Government activities. The first section of the bill enunciates this principle, outlines the steps to be taken by Federal agencies in di~ciosing such information, and the means available to the public to insure access to the informa- tion prescribed by the bill. Following this general statement, H.R. 5012 then lists eight ex- ceptions to the general disclosure principle. A.s the representative of unions and individuals employed by the Federal Government, the PAGENO="0170" 162 FEDERAL PUBLIC RECORDS LAW council is concerned about two of these classes of records not subject to the full disclosure requirement. Exception (2) deals with matters "related solely to the internal personnel rules. and practices of any agency." We find difficulty in understanding the justification for authorizing Federal installations to refuse disclosure of their basic personnel policies upon request. We believe policies governing promotions, training, discipline, processing grievances~ appeals, labor-management cooperation, job classification, wage rates, and similar personnel mat- ters should be supplied when requested. The only possible exception would occur when national security is involved. The current situation evidences a lack of consistency. For example, the Federal Personnel Manual, containing the personnel laws, policies, rules, and regulations governing Federal civil service, may be pur- chased through the Government Printing Office through subscrip- tion. Similarly, the Postal Manual, which includes that Depart-~ ment's personnel program can be obtained at the Government Printing' Office. Standards developed by the Civil Service Commission f&r classifying Federal white-collar positions can be secured in the book- store at GPO when they are in print. But the situation in other Federal agencies differs marked1y~; A request for one or more copies of a department's personnel mahual or even chapters of it may elicit several types of responses. When the entire manual is asked for, the answer is usually that the agency does not maintain extra copies for general distribution. When asked why this is so, the most frequent reply is that there are insufficient funds for printing such material. Copies of particular sections of personnel volumes can be obtained without as much difficulty. But when the request exceeds one or two copies, the "supply is exhausted" and "no funds for printing" re- sponses are common. If the indvidual seeking the information offers to purchase the document involved, he is advised that the agency is not authorized to sell the material. For these reasons, the council believes that official personnel policies ~houid not be excluded from the disclosure requirement applicable un- der the general provisions of the bill. There is one other comment pertinent to the language in exception (2). The term "personnel practices" seems somewhat indefinite. Our view is that a practice can represent an application of policy to par- ticular individuals or situations, or a custom which has evolved inde- pendently of agency policy. Assuming this interpretation accurate, the exception described in H.R. ~O12 lacks the specificity usually found in such measures. Exception (6) presents a somewhat different problem. We feel strongly that an individual employee's personal files should not be open to public scrutiny. To do otherwise would represent a serious invasion of privacy. But a question arises about the right of the employee to review his own personnel record. Agencies generally follow a policy of per- mitting employees to examine that portion of their personnel folders not containing investigatory material pertaining to loyalty~ security, and qualifications. To our knowledge, however, the individual does not have access to this nonsecurity material as a matter of right. PAGENO="0171" FEDERAL PUBLIC RECORDS LAW ~piJ and med being. ~ medical informa mental ~ on the employee, his representative s~. p~.ed to examine the information. Mr. Chairman, we appreciate the subcommittee's review of this im- portant phase of the Government-citizen relationship and the oppor- tunity to emphasize the legitimate interest of Federal employees in the pending bill. Mr. Moss. I am going to ask the remaining witnesses to submit their statements for the record. The record at this point will receive several additional statements which have been filed with the subcommittee and they will be included as part of the record. The subcommittee will now adjourn. We will hold the record open the balance of this week. (Whereupon, the hearing in the above-entitled matter was ad- journed at 3:20 p.m.) PAGENO="0172" PAGENO="0173" Letters and Statements in Support of Federal Public Records Law Legislation Submitted for the Record MEMBERS OF CONGRESS STATEMENT OF HON. EDWARD V. Loxo, A U.S. SENATOR FROM THE SPATE OF Missouai Mr. Chairman, your bill, H.R. 5012, is to be commended as is your entire undertaking. I have long been interested in this subject, and during the last \ session of Congress, as chairman of the Senate Subcommittee on Administrative ~ractice and Procedure I was fortunate In having an opportunity to try and do sdfri~thing about undue secrecy in Government, Since the original introduction of the freedom of information bill in the Senate, instances of spurious withholding of information by Government agencies have reemphasized this important problem. Free institutions are in danger of col- lapse without the informed criticism of an electorate. The people only control their Government so long as they have a voice in its decisions; and if this voice Is to be meaningful and constructive, the people must have a way of informing themselves of governmental activity. The two go hand in hand. It was gratifying that S. 1666 of the 88th Congress successfully passed the Senate. It was an important first step; but only a first step. Because of this fact, it is imperative that the similar objectives and mutual cooperation continue between our respective subcommittees. The support and, assistance of the Senate subcommittee shall continue until the idea of the free flow of information is made part of the law of the land. Action of these measures may not be too far off. There is growing public indignation and frustration over the wrongful withholding of Government records. One proof that this situation exists, is the large number of Senators and Congressmen that have already pledged their support for this legislation. Fully 21 Senators cosponsored S. 1160, the current Senate freedom of informa- tion bill. They include the Honorable Senators Anderson, Bartlett, Bayb, Boggs, Burdick, Case, Dirksen, Ervin, Fong, Hart, Metcalf, Morse, Moss, Nelson, NeU- berger, Proxmire, Ribicoff, Smathers, Symington, Tydings, and Yarborough. In addition, I understand that 15 of your colleagues, Mr. Chairman, have intro- duced legislation touching on this same subject. A few words should be said about our program in the Senate. S. 1160, of course, amends section 3 of the Administrative Procedure Act. A separate bill, S. 1336, has been introduced by Senator Dirksen and me. This bill is a complete revision of the entire act. The provisions of section 3 of S. 1336 are identical with those of S. 1160. Additionally, section 3 is controlled by other sections of the act in that it is the only section which applies to the whole Federal Gov- ernment rather than to administrative agencies exclusively; and section 3 also borrows its definitions from the more complete text. We have announced bear- ings In the Senate on the entire revision on May 12, 13, and 14. This session, It will be fortunate, Mr. Chairman,. to have the benefit of your studies, and we are optimistic that through our combined efforts this legislation will be passed in the very near future. The records of the House of Representatives are replete with instances of your fine work in the freedom of. information field, Mr. Chairman, and there is little that I can add that will embellish the record of those years of important public service. It is known that the work which~ you have done and are now doing will add immeasurably to the fund of knowledge which exists on access by the public to Government Information. It, was never the intention to thrust upon any Government agency a `poorly drawn public information policy. The Senate has exhaustively studied every comment and criticism which came to its attention. However, your Informed judgments are most welcome and will surely aid in ferreting out any deficiencies which may still exist in the texts of the various proposals. 165 PAGENO="0174" 166 FEDERAL PUBLIC RECORDS LAW STATEMENT OF HON. SAM J. ERVIN, 1R., A U.S. SENATOR FROM THE STATE OF Nonru C~noLINA Mr. Chairman, the Federal Government can no longer afford to operate without the guideline of an effective Federal public records law such as this subcommittee is considering. And in the face of an increasingly more complex and enlarging Federal Government, the American people can no longer afford to be without the healthy countervailing force which is set in motion by a policy of free-flowing of Government information. Yet, despite the fact that the sponsorship for these measures represents all sections of the country, the proposals introduced in the last several Congresses to achieve this end have met considerable opposition. The sponsors have, in my opinion, made every effort to accommodate the agencies and departments. It appears to me that every legitimate need for protection of any records or in- formation in the custody of departments or agencies has been considered In the House and Senate measures. The eight exceptions to disclosure allow ample authority for the executive branch to limit availability of materials relating to (1) national defense or foreign policy; (2) internal rules and practices; (3) matters exempted from disclosure by statute; (4) confidential trade secrets and commercial or financial information; (5) memorandums and letters dealing with law or policy; (6) personnel and medical files; (7) investigatory files for law enforcement, and (8) reports regarding regulation or supervision of financial institutions. There is no validity therefore to the frequently heard argument that these proposals impinge on executive privilege for they would not affect the proper exercise of authority of the President and department heads. I have cosponsored similar legislation in the Senate for several years, and have found solid and widespread support for it, especially in my State. Hun- dreds of letters have come in from newspaper editors and publishers, owners of radio and television stations, businessmen and lawyers, and many other citi- zens with no special interest beyond their determination that Government officials shall not deny, distort or delay Government information. In view of the human element in public administration, there will always be some in- stances of this type of withholding information, and no open-records law, bow- every carefully tailored, is going to cure every problem of this sort. Under a government by law, however, what we can prevent is withholding which is based on any loose statutory authority or which is done at an administrator's discretion in the absence of specific guidelines defining his duties in this area. Officials can find no refuge in the arguments that such a proposal would over- burden them with paperwork, and would violate the privacy of those with whom Government has dealings. A number of States have adopted the model Sigma Delta Chi freedom of information law, which defines the public's ri~ht to know, and others have some form of inspection of records statutes. We are fortunate that we have the benefit of State experience with such laws for I think all reports of this experience have shown that the public's right to full information about government is consistent with our democratic traditions. If, indeed, this proposal might entail a bit more paperwork, require a little more time on the part of our civil servants, I think the principle involved here far outweighs these considerations. Certainly, throughout the Federal bureauc- racy which has enveloped our daily activities, time and money is expended every day to much less advantage than implementing the citizen's right to know. Much is being said these days about the press and its invasion of the privacy of the individual. There are many knowledgeable people who believe that the scales are weighted in favor of the press, and that an effective public records law will but further the imbalance. But I do not agree with their premise. This legislation should indeed help the newspaperman who is charged with ferreting out the news and conveying it to the public through whatever media he works for. More important, though, is the leverage it will give the private litigant whose case depends upon information in the hands of the Government, or the attorney whose duty it is to be informed on certain matters, or the businessman, who must rely on agency decisions, or all the other millions of Americans who have dealings with the Federal Government. The value of the individual's privacy in our society can have meaning only as long as we have a free society, and we shall enjoy such a society only as long as the Congress, the press, and the public have complete access to informa- PAGENO="0175" FEDERAL PUBLIC RECORDS LAW 167 tion about the activities of the executive branch of our Federal Go'~~ernment. Everything in our common law heritage and the history of our Constitution demands that this be recognized as a "right to know," endorsed by Congress, that it not be a privilege granted at the passing whim of Government officials. For this reason, I support the purpose of H.R. 5012 and similar measures pending before this subcommittee. STATEMENT OF How. FRANK B. Moss, A U.S. SENAToR FROM THE SPATE or UTAH ~ Mr. Chairman, please accept my sincere appreciation for allowing this state- ment to be placed in the record. I firmly support H.R. 5012, the Federal public records law sponsored by Representative Moss, of California, and others. As you may know, I am cosponsoring similar legislation in the Senate. Secrecy in Government can be a major tool of incompetence, corruption, and tyranny. We are told ti~at eternal vigilance is the price of liberty. This vigi- lance is to no avail if Government bureaucrats are able to hide their operations and activities behind a wall of secrecy. When the bureaucrat is `allowed to interpret congressional action and twist the meaning of past legislation to serve his own purpose in hiding facts which deserve the light of day, then the people of this great land are thwarted in exercising properly corrective action at the polls. Secrecy in Government operations at all levels of our society is not a new problem, nor is it one which we will be able to eliminate through passage of more clarifying legislation. But, I feel we must be continually vigilant in our efforts to give the people all information which they have a right to possess. Secrecy protects the relatively few in Government who betray a trust, or fail to measure up to the responsibilities given them. The tendency to cover up for a slight error in judgment only makes it easier to continue covering up for later and greater errors. The vast expansion of the activities of the Federal Government in the last half century has given a new urgency to the efforts to protect the peoples' right to know. In 1946, Congress amended the Administrative Procedures Act to make more Information available to the public, only to have the exceptions included in the act perverted into an excuse by some bureaucrats and agencies to withhold every- thing not chosen to be disclosed. A few years ago, Congress tried again, by making it more clear that records should be made more available to the public. This effort, too, proved futile. We know from our own experience and the continuing complaints from constituents that the amendments have bad virtually no effect in Increasing the availability of information to newsmen and the public. Departments and agencies have simply resorted to other equally indefensible excuses for withholding their records. The bill now before your subcommittee makes the best possible delineation of the different classifications of exempt information which an agency may with- hold. Naturally, I will not support an individual or agency desiring informa- tion on personnel records for other than investigations conducted by official sources, nor will I support prying into records for political purposes. By the same tokens, our fiational security cannot be jeopardized by forced release of information which will compromise this country's position militarily or inter- natiobally. I~et~rmined resistance to the clearly expressed will of Congress has forced us to bring more pressure to make a reality the right of the people to know what their Government is doing. This bill now before the subcommittee, and the bill which I am cosponsoring, will remove the umbrella under which bureaucrats may hide. The bill enforces the right of access to Government information by providing action through the courts, to force production of agency records requested by a citizen. This provision gives an opportunity to correct erroneous interpreta- tions and applications of the statute which may be applied by the individual in Government service. It will also provide a forum in which the validity of the claim of "executive privilege" can be challenged and its limits defined. We must stimulate compliance with congressional directives by passage of this bill, so the people may know what their Government is doing and will then be able to judge and police its performance far more effectively. Thank you, again, for allowing my remarks to be submitted for the record being made by the subcommittee. PAGENO="0176" 1.68 FEDERAL PUBLIC RECORDS LAW I~wm~ ~1~an~~t HON. E. L. BARPr~nTT, A U.S. SENATOR FROM THE STATE OF ALASKA U.S. SENATE, CoMMITTz~ ON APPROPRIATIONS, April 1, 1965. lion. JOhN l~. Moss, Chairman, Subcommittee on Government Information and Foreign Operations, House of Representatives, Washington, D.C. Dn~ut MR. Moss: Let me emgratuiate you ami your subeommittee for car1~ ing On the struggle for an adequate Federal statute to insure freedom of iafor- `~ mutton for all'citizens in their d~aIings `wIth the Goverilment. This is a struggle wbi~h has gohe on for long and in recent ~rears leadership has been given by you, Senators Tom Henniugs and John Carroll and for this we are In your debt. You are now holding hearings on HIt. 5012, a bill whose companion measure l~ S. 1'66~ in the Senate. It is similar to S. 1160 of the last session of the Congress. I was a cosponsor of this bill in `the 88th Congress and I am again a cosponsor in the 89th Congress. I ~5hould like to give the subcommittee ~o1ne comments on the proposal which is n~w before it. The Government is a servant of the people. It was designed as such by our Pounifing i~athers and every generation of Americans has treasured this prin- ciple. We do not ser\re the Government, the Government serves us. It is im- portant that the people know what their Government is doing and In a free country such as ours the people should have this information available to them as a matter of right, not as a matter of privilege. The struggle of the Congress to see that the public and Its elected representa- tives have free and full access to the actions of their Government is as old as the republic itself. All too often this intent has been evaded by bureaucracy anxious to hide its errors or to avoid awkward inquiries. Whatever laws the Congress has passed to insure free access have been given such limited interpretation by Government agencies so as to often render these laws almost useless. It Is this history which emphasizes the importance of seeing to it that what- ever law you recommend to insure freedom of information, it should be as clear, as direct, as forceful, as simple and as understandable as possible. It is, of course, easy to say thiS and difficult to write such a law. I commend your sub~ committee, however, for making the effort. Let the subcommittee make it clear that access to information is the ordi- nary; that denial is the extraordinary. Let the subcommittee make clear that it is not for the Citizen's to explain `his interest in having the information; it is instead for the Federal agency to explain Its denial of the citizen's request. Let us put the onus of proof on the agency, not on the citizen. My best wishes to the subcommittee and Its Important work. Sincerely yours, B. L. BAETLR~rT. STATEItENT OF HON. Lzn METCALF, A U.S. SENAI'OR FROM THE STATE OF MONTANA It is a pleasure to support H.R. 5012 and related bills which are similar to a bill which I sponsored tç~ establish a Federal public records law. The Federal Government has much to learn from `the State governments about access to public information. Let me illustrate with some of the acee~s-to- information statutes in the State of Montana, where the entire spectrum of public decisionmaking-from agency ñles to legislative proceedings-is as open as Montana's wide-open spaces. One of our statutes (sec. 93-100~1-4), Revised Codes of MOntana, 1947, Anne- tated) states that "every citizen has a right to inspect and take a copy' of any public writing of this State except as otherwise expressly provided by statute." Tids is not an empty statute, for the next paragraph (93-1001-4) spells' out how the public official must produce certified copies of public records demanded by a~y citizen. Another section (59-512) states that "public records and other matters in the office of any officer are at all times during office hours, open to the inspection of any person." Only two exceptions to this statute are given-cases of attachment in possession of the clerk of court before filing of a return of service, and child adoption files. In each of these exceptions, access to the records still is possible under certain conditions. PAGENO="0177" FEDERAL PUBLIC RECORDS LAW 169 Montana leads mast States in the types of proceedings which are declared open to ~mwspaper reporters. While some States limit reporting of meetings, Mon- tana permits fair and true reporting of legislative Judicial and "other public official proceedings" (Rev. Codes of Mont., Ann., 1947, sec. 94-2807). We can learn some lessons from the experience of a State with. open access laws. The first lesson is that these and other liberal access statutes, do not hinder the efficient operation of government. As a former Montana Supreme Court justice, I can say that rarely has the administration of justice been hampered by these access statutes. In fact, Montanans are well informed about their State government. Through the efforts of the wire services, newspapers, and radio and television, all of our citizens~-1iving in the largest inland State in the Union-can be immediately informed about the workings of their legislature, courts, numerous State boards, public meetings, hearings, and other State and local matters. The second lesson we can learn from Montana is that democracy is helped, not hindered, by open access laws. I can declare without reservation that Montana is one of the most politically viable States in the Union. There are no "safe" districts in Montana. There are no party machines In Montana. This is due, largely I believe, to Montana's relatively well-informed citizens who cannot be fooled by backstage political string pulling. Surely, there are abuses of the public trust; certainly, I do not always agree with the actions taken and decisions made by some State officials. But I am always comforted by the fact that these abuses, actions, and decisions-and facts surrounding them-are generally known to the majority of Montana's electorate who may then act to correct the mistakes. I only wish that Montanans had the same access to records of their Federal Government as they do of their State government. This leads me to the third lesson that we can learn from Montana's experience. In my State there Is little distrusts of the State government. There is always criticism-most of it intelli- gent and knowledgeable-but there is little, if any, cynicism. When the cit1ze~ becomes separated from his government and Its activities, a sense of di~trust develops. I am convinced that much of the anti-Federal reaction in the West comes partly from some citizens of good will who have experienced arbitrary and unexplained actions by Federal officials in the State-actions from which the citizens felt they have had no recourse. For the good of our Republic and to rekindle a sense of particIp~ttion in our Federal Government, I believe an im- portant step would be the passage of a Federal public records law. With this legislation, it would be possible for the citizen to take recourse against arbitrary administrative decisions. He could demand and receive information on decisions made at the Federal leveL With this Information he could more adequately challenge arbitrary bureaucratic acts. If he Is denied information, he can seek a judicial judgment with the Federal agency carrying the burden of proof. In this process, the privacy of the individual records in the Government can be protected while the information concerning bureaucratic mistakes will be opened. The result, I believe, will be a healthier confidence in the Federal Government. The result, then, is a more efficient Federal Government. H.R. 5012, and my companion bill which I cosponsored in the senate, would make information in Federal Government agencies more readily available and would sharply define the purposes for which information may be legitimately withheld. Let me illustrate this with one example. It took the House Government In- formation Subcommittee 4 years to force the Bureau of Land Management to make public the reports by BLM engineers on the value of public lands for which applications had been filed. At first glance this may seem to be a small matter, but those of us from the fast-growing West recognize the Importance of the public lands held in stewardship by the Federal Government. In Montana, 30 percent of the State's land is federally controlled. In other Western States the per- centage is also high. As the pressure for settling these public lands has in- creased in recent years, there have been complaints about Bureau of Land Man- agement decisions on applications for priv~te use of the land. Only by making available the records of the Bureau's actions could the complaints be silenced. But for a number of years the basic documents showing land examiner's valua- tions of parcels of public lands were withheld from the public. Today, those reports are public records, and there is more public confidence In the Bureau of Land Management decisions on these applications. 4~-21~-~3~5-pt. 1-12 PAGENO="0178" 170 FEDERAL PUBLIC RECORDS LAW 3lifi this subcommittee cannot alone break the curtain of secrecy and with- holding. It can only handle specific cases over a long period of time. A Federal pi~blie records law is necessary to counteract the massive, agency-by-agency with- holding. `Such a law will make it unprofitable for agencies to withhold when in doubt. With the threat of a judicial judgment, many routine records will be available, and many others will be open with far less effort than it takes today. The great strength of democracy in Montana is that it does not operate behind~ closed doors. Access to State records is not enough. We have delegated to' Federal agencies authority to spend billions of dollars each year. The work of Federal regulatory agencies affects consumers' expenditures of billions more for light, heat, transportation, communications, securities, and in trade. Tt assure prudent expenditure of Federal funds and to guarantee fair rates for consumers, we must supervise the work ~f our public servants on the Federal lö~rel. Super~vision muSt be based on knowledge. A press release is' not enough. The records kept by our public agencies must be public records. The orders and rult~s, opinions, and decisions of our regulatory agencies are public business. And public records they should be. I urge quick passage of H.R. 5012 so that the Senate may consider its com- panion bill promptly. STATEMENT OF HON. THOMAS L. Asur~n~, A ~EPRE5ENTATIVE TN CONGuESS FRoM THE STATE OF OHIO For the record, Mr. Chairman, I would like to say that I originally had in- tended to appear before the Subcommittee on Government Information and For- eign Operations `tO testify in favor of the so-called freedom of information legislation. At the time I was scheduled to make my presentation, however, I was attending an International Maritime Conference in London at the request of the State. Department. Nevertheless, I wish to briefly state my support for this legislation to clarify and protect the right of the public to Government information. The issue which Ii.R. 5012, which I have cosponsored, seeks to resolve is where Government secrecy ends and public accountability begins, of finding the right combination o'f freedom and security. Many States have a public records statute which gives the citizen a right to inspect public records, and specifies the only information which officials can with- hold. The Federal Government, unfortunately, has no such public records statute, and in recent years officials In the executive departments and agencies have ap- peared confused as to what authority they have either to give or withhold infor- mation. Contrary to the intent of Congress', they frequently rely on a section of the Administrative Procedure Act to withhold information from the Congress, the press, and the public. The qualifications of section 3 of the Administrative Procedure Act have en- abled agencies to assert the power to withhold practically all the information they do not see fit to disclose. Investigations by this subcommittee show that that sec- tion of the law, meant to be a disclosure statute, has been repeatedly used as a shield of secrecy. "Vbe legislation now being considered is in essence nothing more than a house- keeping measure to clarify existing law and to put a brake to a growing penchant for secrecy among Government officials. It would eliminate many of the vague phrases in the present statute, set up workable standards for making records open to public inspection, eliminate the test of who has the right to different informa- tion and give a remedy in court to any aggrieved person, with the burden of prov- ing the legitimacy of withholding on the agency. To protect information which should be kept secret, the measure makes exceptions for matter exempted from disclosure by statute, state and military secrets and matter relating to national defense, and matters relating solely to internal personnel rules and practices. Material specifically covered by executive privilege would not be affected by the bill. STATEMENT OF HON. ED EDMONDSON, A REPRESENTATIVE IN CONGRESS FRoM THE STATE OF OKLAHOMA I want to commend Mr. Moss for his long and fruitful record of interest in the principle of freedom of information, and in `this bill `to establish a meaningful PAGENO="0179" FEDERAL PUBLIC RECORDS LAW 171 Federal public records law, which it is my privilege to join him in sponsoring in the House of Representatives. Of all the constitutional guarantees which protect `the American people, per- haps the most `fundamental is the guarantee of `a free `press-and with It the guarantee of full reporting of the Government and its function. There has been a problem in protecting the public's right to know what t'he Federal departments and agencies are doing, and it is my strong feeling that Mr. Moss' `bill `provides `an effective solution `to the problem `by placing the burden of proof in the courts that information should be withheld upon the agency which wants to withhold it. This bill takes away the agency's right to decide what is and what is not `the public's business, a right `which has sometimes been abused. This bill reinfdrces the American people's guarantee to a free press and `a free flow of information from the Government, and it is `my sincere hope `that it wins early congressional approval. _______ LETTER FROM HON. WRIGHT PATMAN, A REPERSENTATIVE IN CoNGRESs FROM THE STATE OF TEXAS lion. JOHN B. Moss, CJic~irman, Government Information ~bcommittee, Rayburn House Office Bt~ilding. DEAR JOHN: All of us owe you a debt of gratitude for your 10-year effort to remove the barriers to a free flow of Government information. In particular, I recall, with the greatest admiration, the successful fight you waged in 1958 to make available to the public applications for tax exemption. As you well know, the area of tax-exempt foundations is one of the areas that truly needs full disclosure. This Is supported not only by your work but also by investigations conducted by the House Small Business Committee, which has, since 1962, been engaged in a factflnding study of the impact of privately con- trolled, tax-exempt foundations on the Nation's economy-dealing, in part, with foundation-controlled enterprises in competition with taxpaying businessmen. During the course of our study, I have urged the Treasury Department to make available to the public all information on tax-exempt foundations. We' have been able to get some reforms in this area, and certain information that was formerly classified as confidential is now available to the public. For example, foundations owning 10 percent or more stock in a corporation are required to attach a list to tax return form 990-A showing (1) the name of the corporation, (2) the number of shares of each type of stock owned (including information indicating whether the stock is voting or nonvoting), and (3) the value of the stock as recorded in the foundation's books. Until 1962, the Treas- ury Department followed a policy o'f nondisclosure of such information. Since then, such ownership of corporate stock by tax-exempt foundations has been made available to the public. In addition, the Treasury has amended its regulations to permit the public to obtain photocopies of portions of foundation tax returns which were not previously available to the public. However, there is still one area of information which certain Treasury bureau- `crats want to hide from public view. That ~trea deals with the names' and ad- `dresses of donors and the amounts they contribute to foundations. Yet, those officials well know that any number of foundations~ voluntarily place such in- formation in the portions of their tax returns that are open to public Inspection. Under present Treasury regulations, a foundation's tax return is divided into two parts. One part is known as the "public portion" and the other section Is termed the "private portion~" The public po'rtion is open to inspection at the district offices of the Internal Revenue Service and Washington, D.C. The names and addresses of the donors and the amounts contributed by them is the only information that does not appear in the public portion. Except for this, the public and private portions of a foundation's tax returns are identical. The names and addreses of donors and their contributions are omitted from the public portion because the Internal Revenue Service maintains that such dis- closure is prohibited by law. There is considerable inconsistency in the Internal Revenue Service reasoning. On the one hand, the Internal Revenue Service says that, based on its interpretation of the law, names and addresses of donors and the aniouilts they contribute cannot be made available to the public. But, on the other band, the same Internal Revenue Service officials testified at our hear- ings last year that such information is definitely open to public inspection if a foundation records it in the public portion of its tax return. Yet, the present PAGENO="0180" 172 FEDET~AL PUBLIC RECORDS LAW law does not say that such information is pubUc if it is recorded in the public portion o~f a tax return. Tb~re is no earthly reason why there should not be i~ull disclosure to the pub- lie-that is, the names and addresses of donors and the amounts of their con- tributions should be open to public inspection. The public is entitled to know who is supporting the foundations. If there is any hanky-panky going on, the public would thus be informed as to who is carrying it on. If, for exazpple, `hot money is finding its way into tax exempt foundations certainly the public should know about it. By making it mandatory that the public be informed, potential hanky-panky may be avoided. Public disclosure of donor-information can serve as a restraint upon unfair, self-dealing practices. Douglas* Dillon, former Secretary of the Treasury, ad- mitted before our subcommittee last July that a foundation can be a source of unfair competition arising from active use of foundation assets by donors or trustees for private business ends. The Secretary agreed that a foundation could be used as a device for engaging in various trade practices which might be in violation of certain statutes administered by the Federal Trade Commission or the Antitrust Division. Contributions received from persons or organizations that supply goods or services to a company interlocked with a foundation, or contributions received from persons or organizations that buy goods or services from a company interlocked with the foundation constitute one of the areas of possible violation of such statutes. The Secretary agreed that this is one of the problem areas that should be considered in drafting legislation which would prohibit self-dealing. Mortimer M. Caplin, former Commissioner of the Internal Revenue Service, is well aware of the problems involved in barring the public from donor informa- tion. Mr. Caplin testified that "there should be the greatest of disclosure by foundations to the public. Exemption is an extremely preferred status under our tax system." He also suggested that there should be a careful examination of that portion of the law which permits contributions from one foundation to another. and from that foundation to another foundation. The late President Kennedy bad assured me that he favored public inspection of all information contained in foundation tax returns. But, unfortunately, certain Treasury officials now consider that the public, which pays their salaries and subsidizes foundations, is not worthy of learning the names and addresses of donors and the amounts they contribute to foundations. Those officials have apparently even managed to sell Secretary Dillon on the desirability of concealing these vital facts from the public. During the course of our hearings of last July, Secretary Dillon agreed that the names and addresses of donors to a foundation should be open to public inspection. However, at a later date, when the Secretary reviewed the transcript, he completely changed his earlier answer by stating: "I think it quite proper that the names and ad~ dresses of the original creators of a foundation should be made public at the time the foundation receives its tax exemption." At the same hearing, Secretary Dillon agreed that all matters relating to the granting or denial of tax exemp- tion as well as revocations and penalties should be made public. However, subsequently when the Secretary reviewed the transcript, he qualified his earlier answer by saying: "I would not object to public disclosure with respect to a foundation `~ application for exempt status or the statutory grounds upon which a foundation's exemption was revoked. Of course, I do not think that it would be wise, frdm an overall viewpoint, to open internal memorandums and reports to public Inspection." The position of those officials is somewhat ridiculous when you consider that anyone can pick up a newspaper any day of the week and find a story stating that M~r. Donald Dill Pickle III has proudly contributed $100,000 to the Founda- tion for the Preservation of Dill Pickles. Hence, the name of the donor and the recipient of the gift are proudly displayed for all to see. And, let us suppose that the Foundation for the Preservation of Dill Pickles contributed to the Foundation for the Preservation of Sweet Pickles. Under the law, the Foundation for the Preservation of Dill Pickles is required to list on its tax return the amount contributed and the name and address of the recipient, which, in this case, would be the Foundation for the Preservation of Sweet Pickles. Since such information is open to public Inspection at the Inter- nal Revenue Service offices, there is no secret about the fact that the Founda- tion for the Preservation of Sweet Pickles received a gift from the Foundation for the Preservation of Dill Pickles. PAGENO="0181" FED~EAL PUBLIC 1~ECORDS LAW 173 in addition, the trade publication' of the tax-exempt fonndatiofls, 1~oundation News, which is published bimonthly by the Foundation Library Center of New York Oity, records in each issue the names of numerous donors making gifts of ~10,000 or more, as well as the names of the recipients and the amounts received. Thus, there is nothing secret about the donors listed in Foundation News. A~ a matter of fact, only 1 foundation-out of almost 600 under study- has complained to us about the fact that names of its donors and the amounts they contributed were made public. That foundation is the American Enter- prise Institute for Public Policy Research, Washington, D.C., which asked us to withhold such information from the press. My answer was "No." This foun- dation seems to be particularly concerned about. our making pfibIic its donors for fiscal year ending ~une 30, 19fi4, and has thus far failed to furnish us a copy of its form 990~-A tax return for that year. There is no doubt but that, in a democratic society, secrecy can be destructive to the whole body politic. Secrecy in tax-exempt foundations-which are given their special privilege by the representatives of the American people in the Congress of the United States-is altogether out of tune. It is the public that pays for foundation tax exemption. Every single tax exemption creates nn additional burden for those who do have to pay taxes. Therefore, in my view, the American people are entitled to complete-I wish to emphasize that word "complete"-information regarding the operations of tax-exempt foundations. I believe in freedom of information. But I believe that public information extends not only to the government in power and to all branches of it, but to those instrumentalities such as tav exempt foundations which are given extraor- dinary privileges in our society. The privilege of exemption from taxation bears with lt a great responsibility. It is the responsibility to let the people know who gives what for what. Hence, I think that I am not asking too much ~or freedom of information regarding tax-exempt foundations. The source of their funds is of great interest to the press and public. I believe the American people ought to know, because they are paying the burden out of their pocket- books. The public interest will be well ser~ed if the House Government Information Subcommittee will give consideration and approve the need for making such donor information available to the public. Sincerely yours, WRIGHT PATMAN. STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN Oo~iGnnss FlioM `run STATE OF FL0nIDA I appreciate the opportunity to present my views to the subcommittee, not only because one of the bills you are considering was introduced by me but also because I have a deep, personal interest in the people's right to know. That interest Is based on nearly 10 years of service with ~ohn Moss as a member of this subcom- mittee and as a member of its predecessor which initiated the study of informa- tion problems-the study which resulted in the bills now before this subuom- mittee. I address you as a partisan-not in the political sense but In the moral sense. Access to Government information is not an issue based on political parties; it is based on a concept of government By conviction and by virtue of many years experience fighting for the people's right to know, I am strongly partisan in favor of the Federal public records law which would be established by the bills before this subcommittee. I am surprised-and a little saddened-at the opposition which has developed to a Federal public records law. I note that a number of the Nation's major civic and professional organizations support the proposal, bttt I also note that nearly all of the departments and agencies of the Federal Government take the opposite side. They are strongly opposed to a Federal public records law as set forth in the bills before this subcommittee. These bills are not an offhand development; they are the result of many years work by this subcommittee, by its counterpart in the Senate, by dedicated newsmen and by many Federal Government officials. I had thought that, over the years, there might be a change of heart by those secrecy-minded bureaucrats who contended that they- and they alone-knew what information is good for the American people. I am nfraid that is not the case. When legislation similar to the bills before you was ~considered by the Senate, that body took into account complaints by Federal PAGENO="0182" 174 FEDERAL PUBLIC RECORDS LAW officials that certain categories of Government information must not be released. Each valid complaint was answered, I believe, by the legislation passed by the Senate and introduced in the House by myself and a number of my colleagues. But still the proposed Federal Public Records Law is not weak enough for most Federal departments and agencies. Yesterday you heard witnesses seriously urge that the proposed Federal public records law be weakened further; today I would like to discuss some of those suggestions for a weaker law. This Subcommittee was urged to disapprove legislation which would make the records of the Federal Government "promptly available to any person." Instead, witnesses said, the present law should be left as it is-information need be made available only to "persons properly and directly concerned." What a misused provision of law this hasbeen over the years. A Government employee decides whether a citizen, petitioning the Government, has a proper right to information. We heard just such an argument in the very first hearings held by this subcommittee in 1955. We heard the Civil Service Commission Chairman argue that he would disclose the names and salaries of Government employees only to a "legitimate" reported who wanted the information for a "reasonable" purpose. And why did be arrogate unto himself the power to determine the legitimacy of a request for Government information? He testified, in explana- tion, that "we do not want to wash our dirty linen in public." Government information should be available to "any person" for a very good reason-it is the character of the information that determines its availability, not the character of the person requesting it, The Government-and it~ em- ployees-have no right to discriminate between citizens who seek the facts of Government. If the particular item of information is of the type which must be kept within the official Government family-and that includes the Congress- it should be withheld from all the public. It should not be made available to the favored few as the present law permits. One witness before this subcommittee used, as an example of the type of in- formation which would be disclosed under the proposed Federal public records law, the studies being prepared for Congress in connection with the coin shortage. The General Counsel of the Treasury Department said that misuse of the study- which, he contended, they would be forced to disclose-would lead to hoarding of coins and profit by speculators. The Treasury Department could not be further from the fact. I speak not only as an author of the bills which the Department criticized but also as chairman of another subcommittee of the Rouse Government Operations Committee which has just issued a report on the coin shortage problems. Certainly a communica- tion between the Treasury Department and the Congress on the policy problems of the coin shortage should be protected from premature disclosure. And it would be protected by a provision of the legislation which protects interagency messages on matters of policy. Just as certainly, the Treasury Department would have the necessary power under the proposed law to protect other information which has, in the past, permitted coin speculators to gain an unfair advantage. The report by my subcommittee urged, for instance, that the Treasury Department halt the publication of monthly reports on coin production in the Nation's two mints. These reports have been used by speculators to gain knowledge of when to hoard coins produced in small amounts during any 1 month. Following my subeommitte~'s suggestion, the monthly coin production reports were abolished and the Treasury Department could take exactly the same action under the pro~ posed Federal public records law. One provision of the proposed legislation ex- empts from disclosure "conditions reports prepared by * * * any agency respon- sible for the * * * supervision of financial institutions." Certainly, the reports to which my subcommittee objected fall in this category. Thus, I do i~ot believe the Treasury Department can use this example as valid grounds for opposing a Federal public records law. It has been my experience that the Federal agencies can always come up with an excuse for secrecy. If the laws passed by Congress and signed by the Presi- dent do not give them the power they seek, they fall back on their interpretation of the Constitution. And the opponents of the proposed Federal public records law are doing just that. They are arguing that such a law would be uncon- stitutional-that the Congress does not have the power to tell the executive branch of Government to open its files to the citizens of our Nation. This argument has all the aspects of a ghost I thought we had laid to rest while I served on this sub~ committee. It is the dead Issue of "executive privilege" wrapped in a new wind- ing sheet. PAGENO="0183" FEDERAL PUBLIC RECORDS LAW 175 Time after time Federal officials far down the administrative line from the President raised the cry of "executive privilege" when faced with a demand to disclose the facts of Government. Time after time they held up their inter- pretation of the Constitution as a shield against public knowledge of their ac- tivities. They relied on their interpretation-not the Court's interpretation, nor the laws spelling out the Constitution. They said that article II of the Constitu- tion, granting the "executive power" to the President and charging him to "take care that the law~ be faithfully executed" gave the whole range of bureaucracy the power to ignore the laws of the laud. This claim of "executive privilege" was cut back to size in 1962 when the Pr,ésident said be, and be alone, would decide in each and every case whether such a privilege would be claimed against th~ Congress. Now the issue is raised again by representatives of Federal Departments who claim that Congress does not have the power, under the Constitution, to enact the proposed Federal public records law. What they are claiming, of course, is that Congress does not have the authority to enact a public records law which is not acceptable to them. Certainly a public records law can be enacted, and it has been-it is the weak provision under which the Federal agencies now determine how much the public shall know about their operations. But just as certainly the Congress has the authority to enact a strong Federal public records law. In fact, Congress has the duty to enact such a law. The proposal before you is just such a measure. I urge upon you its approvaL STATEMENT OF HON. SAM M. GIBuONS, A REPRESENTATIvE IN CoNGREss Fuo~ THE STATE OF FLORIDA Mr. Chairman, and members of the Subcommittee on Foreign Operations and Government Information, I am pleased to have this opportunity to present my views on the right of all Americans to know what their Government is doing and legislation which has been introduced to safeguard this cherished right, The "right to know" is one of the very basic of all American rights under the OonStiltution of the United States. It is the cornerstone of our great democracy. It must be preserved at all costs. With the great growth of our Federal Government, and government at all levels, for that matter, it is increasingly important that the right of all of our citizens to have free access to certain information be not diminished, but en- hanced. Not weakened, but improved. I, along with several other of my colleagues, have introduced bills to require every Federal agency to make all its records, with certain exceptions, readily available to any interested citizen of this country. If such an individual felt he were being denied access to Government information to which he felt juatly entitled under this legislation, he could go into a Federal district court and force the appropriate Federal officials to produce the data or show sufficient cause why they were deemed "privileged." Under the Administrative Procedure Act of 1947, Federal agencies were re~. quired to make official information availaiMe to the Congress and the American people under certain conditions. Unhappily, the plain truth of the matter is that the act has aided the various Federal departments and agencies to maintain a tight lid of secrecy over records which clearly should nbt be so labeled. The problem, I believe, arises from wording in the 1947 act too vague for effective public access to exist. I submit that the language in the present law which allows each agency to withhold certain information and records at its own discretion, under the guise of "secrecy in the public interest" must be changed. And changed during this session of the Congress, if we are to preserve our precious heritage of the right of the individual to be ais well informed as he wishes to be on certain matters. Presently, every last one of our various agencies and departments on the Fed- eral level are allowed to set their own guidelines as far as determining just what "secrecy in the public interest" means. In fact, what one agency determines as fitting in that category may not be so judged by another agency. What we need is uniformity established by the Congress, which would tighten up this clause in the Administraltive Procedure Act to establish two objectives: (1) clearly define where the security of the United States stops and the right of every AmeriCan to know what his Government is doing, and (2) provide an effective judicial remedy in a Federal district court for every U.S. citizen who PAGENO="0184" l7~ FEDERAL PUBLIC RECORDS LAW feels t~hat he has a legitimate right to certain Federal records and information and has been ~1enied it. Now, no one wants to unduly hamper or restrict any Federal agency or any Federal official in the proper performance of their official responsibWties, but on fte other hand, let us all remember that what we are talking about is part and parcel of the great American Revolution of 1776. This country did not fight the tyranny of a George III to have its citizens, nearly 200 years later, be at the mercy of a huge bureaucracy with no adequate means with which to defend themselves. It has often been said that "knowledge is power" and particularly is this true with respect to the individual versus the power of the state. Thi.s right to know is one of the most fundamental of all those guaranteed us by the Constitution and the Bill of Rights. What my bill, H.R. 5237, and the others Introduced at this session of the Congress by interested colleagues, would do Is place the burden of proof on the Federal agency or department concerned in cases of alleged denial of Information. Accordingly, any Federal agency would have to prove its right to deny specific information and records in a Federal court. This would be a great improve- ment, in my judgment, over the existing system whereby all an agency has to do is to say, "Why, we cannot divulge this information, because It falls in the `secrecy In the public interest,' or `confidential for good cause found' categories." While I am strongly In favor of this legislation and the principle which it represents, at the same time, I do not want to do anything which will jeopardize the security or well-being of the United States. Clearly, we must draw a line somewhere, and I would be the first to admit that unlimited access to each and eveny governmental secret or piece of Information would be both foolishly un realistlé and anarchical. No, we do not want that. To safeguard this area of national security, my bill would exempt from the disclosure requirement the following obviously sensitive areas: National defense and foreign policy secrets specifically protected by Executive order; documents relating to internal personnel rules and practices of an agency; information specifically protected by other laws; privileged private commercial Information obtained from the public such as trade secrets; agency memorandums dealing solely with matters of law or policy; personnel and medical files; files of law enforcement agencies dealing with Investigations, and reportsof financial institu- tions submitted to regulatory agencies. The measures we are discussing today have been labeled "freedom of informa- tion" legislation. What more appropriate designation could be found? A de- mocracy will survive only as long as her people are free to determine for them- selves her future course. In the darkness of secrecy can only be found the seeds of tyranny and ultimate disaster. The right to know, one of our most cherished possessions and one of our most cherished Inheritances from the Founding Fathers, can be further safe- guarded by enactment of this legislation. I strongly urge such action by this subcommittee and the full House Government Operations Committee. STATEMENT OF HON. RICHARD D. MCCARTHY, A REE'RESENTATIVE ix Coxonass FRoM THE STATE or Nnw YORK Mr. Chairman, I am pleased to have this opportuhity to comment in behalf of the proposed Federal public records law. I think that my background-I once was a reporter for a daily newspaper- gives me a basis for understanding the necessity for this legislation. Because of the statutory void In this area, I feel strongly that a Federal records law is vitally needed-and I have introduced a bill (H.R. 5020) similar to the one sponsored by my distinguished colleague, Congressman Moss~. It is a truism that a democratic society cannOt function without an informed citizenry. And an informed citizenry must rely on the Federal Government for much of the information it needs. It also is obvious that disclosure of some kinds of information by the Federal Government would be harmful to our society. It seems to me that the Congress should attempt to strike a reasonable balance between the public's need to know what its Government Is doing and the equally important need to maintain secrecy in some areas. Tn my opinion, the proposed legislation-by establishing procedures for court enforcement of the right to know, and by specifying categories of information that would be exempt from disclosure requirements-would meet this objective. PAGENO="0185" FEDERAL PUBLIC RECOEt~S LAW 177 LETTER FROM HON. JAOX EDWARDS, A REPRESENTATIVE IN CONGRESS FROM PIlE STATE OF ALABAMA CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., April 5, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operations and Government Information Subcommittee, Committee on Government Operations, House of Representatives. DzA1~ COLLEAGUE: Thank you very much for your letter of April 1, InvIting me to appear before your subcommittee in support of my bill, H.R. 0739, having to do with making available Federal public records. My bill is very similar to other bills introduced on this same subject, the primary difference being that the othei bills provide that any `person may have access to certain records. My bill provides that any "citizen" may have access to certain records. I urge the subcommittee to favorably report this bill using the word "citizen" rather than the word "person" for obvious reasons. I am taking the liberty of writing you since I will be out of town on April 5. Please make this letter a part of the record. Sincerely, JACK ERwABDS. LzrcTrn FROM HON. ROBERT E. JONES, A REPRESENTATIVE IN CONGRESS FROM TEE STATE OF ALABAMA CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., March 31, 1965. Congressman JOHN B. Moss, Chairman, Foreign Operation and Government Information Subcommittee, House of Representatives. DEAR ME. CHAIRMAN: As you know, Congressman Jones Is recovering from major surgery at the Bethesda Naval Hospital. Although he is making the normal anticipated recovery following such an operation, it is expected that he will have a prolonged convalescence and, therefore, will not return to his official duties for several weeks. We are pleased with the manner in which he has responded and are hopeful that he will be released from the hospital within the next 2 or 3 weeks. In Congressman Jones' absence, I am taking the liberty of writing to you regarding certain portions of H.R. 5012, now under consideration by your subcommittee. I believe, and I am certain that Congressman Jones would be in complete agreement, that the following provisions do not strike a proper balance between the interest of the public in obtaining information and the interest of the Federal Govei nment in the efficient operation of its various agencies Obviously these stiggested changes would not materially alter the purpose of the bill to which I subscribe. 1 Exemption No (5) on page 3 exempts intra agency or Interagency memo~ rancla or letters dealing solely with niatter~ of law or policy. Most legal or policy memoranda must of necessity deal to some extent with facts Thus inclusion of solely' largely nullifies any practical effect of the exemption I believe "solely", as it appears in line 9, should be deleted. 2. None of the present exemptions cover reports or investigations of accidents or other materials pertinent to litigation which, if disclosed, could adversely and unfairly affect the government's position in lawsuits. Where litigation is concerned, there appears to be no reason for treating a Government agency differently from a private party in making pertinent information available. The availability of such materials is already covered and should continue to be covered by the rules of discovery. It is suggested, therefore, that number `(8) `In line 14 on page 3 be changed to (9) and a new exception be Ipserted which shall read as follows * * * materials pertinent to litigation except to the extent they would be available under established rules of discovery in the Federal courts." 3. The remedy provided in subsection (b) on page 2 for persons to whom disclosures have not been made refers in line 10 to "~ * * reeord~ or Information PAGENO="0186" 178 FEDERAL PUBLIC RECORDS LAW improperly withheld." Inclusion of the words "or information" appears to to be inconsistent with the rest of the subsection and creates ambiguity. It is suggested that these words be deleted in the interest of clarity. Any consideration that you may give to any one or all of these suggested changes in H.R. 5012 will be greatly appreciated. With every good wish, I am Sincerely, GEORGE MIL5TEAD. STATEMENT OF HON. CHARLOTTE T. REID, A REPRESENTATIVE ~N CONGRESS FROM THE SPATE OF ILLINOIS Mr. Chairman, I am indeed delighted that your subcommittee is giving consid- eration to legislation dealing with the orderly disclosure of public information by Government agencies, and it is a pleasure to have an opportunity to present this brief statement concerning H.R. 5021, a bill which I introduced in the House of Representatives on February 17, 1965, to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. Let me say at the outset that my purpose in sponsoring this legislation is not to unduly shackle any Government agency, improperly restrict its administrative authority, or invade the constitutional privacy of any in~tividual. On the con- trary, my bill would designate eight specific categories f information which should be protected from indiscriminate disclosvre. Considered in this light, it is my belief that H.R. 5021 would facilitate rather than hinder any agency in determining the proper policy for the release of public data. Although this bill may not be the perfect panacea, I do believe it will go a long way toward allevi- ating a rather perplexing problem. The public records debate is by no means a new one, but it seems to me that the continuing growth of the Federal executive establishment gives the question a new perspective. The trend toward bigger government multiplies rather than dimin- ishes the need for disclosure and the necessity for supplying information to the people. Certainly no one can dispute the fact that access to public records is vital to the basic workings of the democratic process, for it is only when the public business is conducted openly, with certain exceptions, that there can be freedom of expression and discussion of policy so vital to an honest national consensus on the issues of the day. It is essential that free people be well informed, and we need only to look at some of our international neighbors to see the unhappy con- sequences of the other alternative. The need for a more definitive public records law has been apparent for a long time. The Federal Register and Code of Federal Regulations created by the Con- gress in 1935, although most helpful, did not provide for detailed rules for the issuance of other forms of information or for regulations `to assist agencies in formulating such procedures. Recognizing this, the Congress provided section 3 of the Administrative Procedure Act of 1946, relating specifically to public infor- mation. But now we can see that the language of this section was much `too broad; and the intent of Congress, which I believe was then as it is now that Federal agencies take the initiative in informing the public, can be misconstrued anti misinterpreted so as to render the provision virtually ineffective. Since the ques- tion here involves the intent of Congress, and if perchance the intent of Congress as stated in section 3 is ambiguous and, therefore, subject to n~isinterpretation, then it is our duty to spell out this intent in more direct terms. In my judgment, the ultimate responsibility lies with the Congress, and this is one of the considera- tions which prompted me to introduce II.R. 5021. In looking at the existing law, it is not difficult to see how the intent of Congress could easily be circumvented by any agency desiring to do so. Section 3 of the Administrative Procedures Act includes withholding information in the public interest, yet executive agencies have wide discretion in interpreting this term "public interest." Matters relating to the internal management of an agency are also exempt under section 3, but certainly taxpayers have a right to be concerned as to how their tax money i~ being spent by agency managers. Section 3 also pro- vides that official records must be made available in accordance with published rules of the agency, but does not direct that such rules actually be published. Section 3 also refers to "matters of official record," but the Congress did not define what is meant by "official record." Section 3 also directs that public records be made available to "persons properly and directly concerned," but here again an agency has wide discretion in interpretation. Further, information may be held confidential for good cause, but this, too, is a wide discretionary area. PAGENO="0187" FEDERAL PUBLIC RECORDS LAW 179 It is not illogical to assume that many in the Government having the duty to release public information might naturally be inclined to be more guarded in these releases rather than perhaps running the risk of being charged by su- periors with releasing too much, and I think a more explicit law would remedy this situation. H.R. 5021 would direct hands of departments to prescribe reg- ulations for the conduct of their departments and make all records available to any person in accordance with published rules. Persons denied access to au- thorized records could file suit in a U.S. district court which would have the authority to order that such records be produced. The eight specific categories of sensitive Government information which would be protected from disclosure ander H.R. 5021 are as follows: (1) National defense and foreign policy secrets specifically protected by Executive order; (2) Documents related solely to internal personnel rules and practices of an agency; (3) Information specifically protected by other laws; (4) Privileged trade secrets, commercial or financial information obtained from the public; (5) Agency memorandums dealing solely with matters of law or policy; (6) Personnel and medical files; (7) Investigatory files compiled for law enforcement; and (8) Examination, operating, or condition reports used by agencies re- sponsible for the regulation of financial institutions. Since coming to Congress, I have become increasingly aware of the lack of information disseminated to the American people on many phases of Government operations. I think the people have a definite right to know what their Govern- ment is doing in nonsensitive areas and that the news media should likewise have full access to such records. I do not believe that any agency of Government would argue in good faith against the intent of this proposed revision, for the bill contains sufficient safeguards for protecting vital defense information and other sensitive data. It would make it possible for all agencies to follow a uniform system to insure adequate dissemination of authorized information, thereby removing some of the confusion resulting from differing policies. Gov- ernment by secrecy, whether intentional or accidental, benefits no one and, in fact, Injures the people it is designed to serve. Thts legislation under con- sideration today will establish a much needed uniform policy of disclosure with- out impinging upon the rights of any citizens. Thomas Jefferson once said, "A popular government without popular in- formation or the means of acquiring it, is but a prolog to a farce or a tragedy, or perhaps both." The responsibility belongs to the Congress, and I therefore hope that your committee will give favorable consideration to this legislation. Thank you again for inviting me to present my views here today. PAGENO="0188" PAGENO="0189" ORGANIZATIONS AND INDIVIDUALS STAT~MENT OF JOHN F. GRINER, PRESIDENT, AMERICAN FEDERATION OP GOVERNMfiN!1~ EMPLOyEES The primary objectives of lLR. 5012, the bill under con~iderat1on by this com- mittee, is desirable. However, the American Federation of Government Employ- ees is concerned with several exceptions to the application of the proposed enactment which should be modified In the interest of many Federal employees who may be affected by its provisions. Maximum information about the operations of the Federal Government Is a worthwhile objective. We believe that information which is legitimately sought and which does not involve national security should be made available. T~ that extent, we believe H.R. 5012 should receive our indorsement. However, we are in disagreement with two of the eight exceptions to the gen- eral principle of disclosure as enunciated in this measure. First there is excep~. tion (2) which concerns matters "related solely to the internal personnel rules and practices of any agency." It is certainly not defensible for Federal agencies or installations to refuse to disclbse their basic personnel policies and yet that has happened altogether too often in years past, as evidenced by comments we have received from time to time from our members. It is, therefore, wrong in our opinion to write into law justification for such a practice. Publications containing such statements of overall Federal personnel policy as the Federal Personnel Manual, Civil Service Commission Position Classifica- tion Standards, and the Handbook X-118, stating qualification standards for Classification Act positions are available upon subscription from the Govern- ment Printing Office. The same is true of the Postal Manual which contains the personnel policy and regulations of the Post Office Department. Personnel manuals of other individual agencies are not so easily obtainable. Requests for copies of small sections of manuals are frequently complied with, but not for copies of an entire manual other than a single copy intended for a union's natlinal office. The response usually will be that the limited supply does not permit dis- tribution to that extent. It is also our belief that the personal file of a Federal employee should not be made available for public inspection. This situation relates to exception (6) which is included in this bill. Maintaining limited availability of an employee's personal file suggests two related aspects of the problem of obviating the invasion of individual privacy. First, to what extent should inspection of such a file be permitted? It Is our view that such inspection should be permitted only to authorized representatives of the employing agency management. Inspection beyond that limit should be predicated only on considerations of national security. Unless withholding of information In an employee's own personal file would be detrimental to his physical or mental health, we believe the employee has an unquestioned right to know its contents. Agencl~s usually withhold that por- tion of the file having to do with qualifications or material relating to investiga- tion of loyalty or security matters. The employee should have the right to In- spect the nonsecurity contents of his file. Inspection of a personal medical file is a more complex problem. The ability of the individual employee to examine his medical file meaningfully may be open to question as would be the desirability of the employee perusing medical findings which could be emotionally disturbing or physically harmful. In such instances, the employee's physician or attorney should be permitted to examine the file and advise the employee of the contents to an extent which will assure the protec- tion of his interests and yet not adversely affect his health. Thank you, Mr. Chairman, for the opportunity to comment on H.R. 5012. 181 PAGENO="0190" 182 FEDERAL PUBLIC RECORDS LAW LETTER FEOM RALPH F. FUCHS, INDIANA U~ VEESITZ SCHOOL OF LAW BLooMINGToN, INn., Marclv 30,1965. Hon. JOHN E. Moss, Hoi~tsc of Repre.~entatives, Wa~&hington, D.C. Mx Diaa~n CONGRESSMAN Moss: I have read with interest your letter of March 15 and the memorandum of the staff of the Foreign Operations and Gover~nment Information Subcommittee, dated February 1, 1965, wl~ich accompanied tt. It Is good to know of the present status of the measure which is now H.R. 5012. Bills to the same general effect have been quite thoroughly explored previously, of course, and I doubt whether I can add significantly to what has been said. There is no doubt, I think, that additional legislation is needed to procure ade- quate access to information from Federal agencies. The preyailing deficiencies in this regard relate both to adequacy of access by news media and to oppor- tunity for persons involved in administrative proceedings to ascertain policies which are likely to determine agency decisions in these proceedings. H.R. 5012 makes commendable progress in defining the proper scope of the obligation to disclose. I note that it is substantially identical to paragraphs 3(c) and 3(e) of the latest draft by the staff of the Subcommittee on Administrative Prac- tice and Procedure of the Senate Committee on the Judiciary of a proposed revi~ sion of the Administrative Procedure Act. One major question presented by HR. 5012 Is whether a judicial remedy against nondiSclosure should be provided. I think that clear'y it would be bet- ter to provide other means of achieving compliance, if it could be done effectively, both to prevent unnecessary burdens on the cQurts and to avoid the risk of undue interference with agency operations by unjustified demands. With the establishment of an administrative conference, suitably staffed, through which inquiries into inadequate agency functioning can be carried on, it seems to me that it would be better to refrain at this time from creating a new ground of liti- gation directed against the agencies. If additional legislation should define agency obligations as clearly as this bill, I believe there is reason to have confi- dence that genuine improvement would take place without direct judicial inter- vention. The Administrative Conference Act, however, confers authority only in relation to compliance with the Administrative Procedure Act. Therefore, new legislation providing for disclosure should perhaps be attached to the Ad- ministrative Procedure Act. The principal question that remains with respect to the desirable scope of agency obligations to disclose information involves internal documents that arise when an agency is developing a policy or compiling evidence in an investigation. Item 7 in lines 12-14 on page 3 of the bill seems unduly narrow in this regard, since it refers only to investigatory files compiled for "law enforceemnt pur- poses." Many proceedings hardly fall in this category; yet the accumulation of evidence, only some of which will be used, is necessary in connection with these as well. I therefore suggest that after the word "purposes" in line 13 there be added, followed by a comma, the words, "or for use in agency proceedings." I recognize that there should be an agency duty to disclose evidence which is in- tended for use in later agency proceedings under many circumstances; but this duty should, it seems to me, be imposed by provision for discovery at the in- stance of private parties to proceedings, and not in the present bilL The wording in line 3 on page 2 in paragraph 161(b) of HR. 5012, which re- quires each agency to make "all" Its records promptly available to any person, seems somewhat inconsistent With the exceptions recognized in paragraph 161 (c). Especially if judicial enforcement of the obligation to disclose is provided, I think the bill should be quite explicit in this regard. Therefore I suggest that, instead of the wording in line 3 on page 2, preceding the period, the following be substituted: "provide for its records to be made promptly available to any per- son to the extent required by this act." The language in lines 8-12 which follow would then lend specifically to tlie duty imposed. Minor differences of wording between H.R. 5012 and the corresponding para- graphs of the Senate Judiciary Committee staff draft need hardly receive atten- tion here. I am sure the staff of your subcommittee will choose among these alternatives according to which are preferable. They all seem to involve expres- sion, not substance. If any additional comments from me might be helpful, please let me know. Sincerely yours, RALPH F. FUCHS. PAGENO="0191" FEDERAL PUBLIC RECOEDS LAW 183 LETTER F~OM C~iu~ L. Snipns~, ATTORNEY, SHIPLEY, AKERMAN & rIO]~ETT, WASHINGTON, D.C. Re statement on H.R. 5012. APRIL 2, 1965. Hon. Jonu K. Moss, (Jha~irman, Foreign Operations and Government Information ~ubeommittee, House Government Operations Committee, House of Representatives, Washington, D.C. DEAR CHAIRMAN Moss: Our law office represents many persons and companies in administrative or judicial proceedings involving the Federal Government. The ends of justiee are frequently thwarted by the refusal of agencies of the Federal Government to make records promptly available, even though such records are public information and should be treated as such. Very often em- ployees of the Federal Government are able to misuse their authority and thwart the legitimate claims of citizens against the Government by refusing to make available records which should be available. At the moment, there is no recourse for the aggrieved citizen whose rights have been denied by the arbitrary action of some Federal agency. The enact- ment of HR. 5012 will be a long step toward correcting this inequitable situation, and will strengthen our form of government. However, HR. 5012 can be strengthened by including a provision to protect individuals and businesses from the abuse of nonpublic information. Some Fed- eral agencies, like the SEC, have been authorized by Congress to regulate highly sensitive segments of the national economy. The SEC deals with that extremely fragile state of mind known as investor confidence, which is the very lifeblood of the securities industry. Through such devices as news "leaks," public statements of its staff, articles in trade journals, speeches to trade associations, publicized correspondence, and unofficial disclosure of proposed investigations, the SEC sometimes indirectly seeks to extend its regulatory authority into areas or over subject matter which Congress has not authorized by an abusive disclosure of nonpublic information. This, in turn, gives rise to adverse comment in trade journals, financial columns, and other news media, and undermines investor confidence in a segment of the industry or a particular business entity in the securities industry. Under the Federal Constitution, Congress Is the policymaking branch of the Government, and no matter with what good faith Federal agencies may seek to extend `their authority, the prejudicial use of nonpublic information to coerce compliance with either policies or regulations which Congress has not authorized, is contrary to the national interest and should be brought to a halt through ap- propriate provisions in 11.R. 5012. Very truly yours, CARL L. SHIPLEY, STATEMENT OF G. B. BUENHAM, PREsIDENT, J3URNHAM CHEMICAL Co. My name is George B. Burnham and I'm president of the l3urnham Chemical Co. The experience of the Buruham Chemical Co. at the hands of Government officials who withheld information from the public is a good example of why the freedom of information bill should become law. To illustrate the point, only one example is given. In 1927 the sodium leasing laws of the United States provided that a patent (transfer of land title) could not be issued on lands which contained salines such as borax. On January 7, 1927, a Government mine inspector, Leroy A. Palmer, sent a report to the Commissioner of the General Land Office concern- ing the discovery of enormous borax deposits in the Kramer District of Cali- fornia. In spite of Palmer's report, the Department of the Interior granted patents (title) to these deposits to competitors of the Burnhata Chemical Co. The commissioner of the Court of Claims reported: "This substituted statement [by prospectors] was a falsification of which the General Land Office had notice but which it ignored." 1 Issuance of the patents by the Department of the Interior prevented the Burn- ham Chemical Co. from obtaining leases on part of the Kramer District land. 1 Report of commissioner, U.S. Court of Claims, Case No. 66-55, FindIng No. 19. Copy in committee files. PAGENO="0192" 184 FEDJDRAL PUBLIC R~f4~~R~S LAW Moreover, the borax coml~ine obtained a monopoly on the deposit and forced competitors out of business. As a result of this granting of patenth by the Department of the Interior both the Federal Government and the State of California were cheated out of royalties on the borax production as provided b~ the leasing law. How did the Government get away with this costly "mistake"? On each of the 10 pages In the Palmer report there is stamped the following (photocopied from the original): I ~ 1 CONFIDENTIAL I - NOT FOR PUBUC.INSPEc~J In 1950, 23 years later, the Department of the Interior put that confidential document in the National Archives. In late 1953 I found the Palmer report. Attorneys for the Burnbam Chemical Co. then filed a suit in the Court of Claims early in 1955. After the trial, the court dismissed the case because of the statute of limitations. If the Palmer report had not been suppressed, the Burnbam Chemical Co. would not now be trying to secure legislation to have the statute of limitations waived and the case adjudicated on its merits. SUPPLEMENTARY STATEMENT On May 6, 1957, the Interior Department gave my attorney a certified photo- stat copy of a report Leroy A. Palmer, a Government mine inspector, bad made on January 7, 1927, to the Commissioner of the General Land Office concerning the discovery of borax deposits in the Kramer District of California. This cer- tified copy shows that each of the 10 pages of the report bore a stamped notation "Confidential. Not for Public Inspection." On March 29, 1965, I went to the National Archives to get more certified photostat copies of the Palmer report. I applied to Mr. Prank ID. Bridgers for a card of admission to the search rooms. Mr. Bridgers asked me for what pur- pose I wished the admission card and I informed him I wanted to get copies of certain documents to submit to a congressional committee that was about to hold hearings. I saw the report again on that day and oil each of the 10 pages was the stamped notation "Confidential. Not for Public Inspection." I ordered from Mr. Foster, four copies of the report. I told him I wanted the copies as soon as possible for congressional hearings which were being held soon. I received these certified photostat copies of the report on April 7, 1965, from the National Archives. The words "Confidential. Not for Public Inspection" had been covered up when the photostat pictures of the Palmer report were taken. This was true of each of the 10 pages of the report. STATEMENT OF ANDREW J. BII3IMILLER, DIRECToR, DEPARTMENT OF LEGISLATION, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS Mr. Chairman, I apreclate this opportunity to present to your subcommittee these remarks on H.R. 5012 and related legislative measures. In general, we support the principles and purposes of legislation to open up the processes of government to public view. In a democracy such as ours, the people must be fully informed if they are to make intelligent, rational decisions, If they are to govern themselves well and wisely. At the same time we recognize that certain kinds of information obtained by Government agencies must be kept in confidence to avoid defeating the reason for existence of such agencies. in our comments on i-I.fl. 5012 we have tried to keep these two basic principles in mind. HR. 5012 would affect the operation of virtually every Federal administrative agency and the administrative procedure of many executive departments, in- cluding such agencies as the National Labor Relations Board, the Federal Medin- PAGENO="0193" FEDERAL PUBLIC RECORDS LAW 185 tion and Conciliation Service, and the Department of Labor. These agencies engage in operations and proceedings that vitally affect labor unions and their members. Therefore, we have a strong and vital interest in the efficient, effective operation of these agencies. HR. 5012 would require every agency to make all of its records promptly available to any person, with certain enumerated exceptions. These exceptions include: "(4) trade secrets and commercial or financial information obtained from the public and privileged or confidential; (5) interagency or intraageney memorandums or letters dealing solely with matters of law or policy; and (7) investigatory files compiled for law enforcement purpose except to the extent available by law to a private party." Each of these exceptions contains broad loopholes through which information could be extracted from Government agencies or departments which could be used to delay or interfere with the expeditious disposition of agency actions or procedures. Furthermore, this legislation would require years of litigation before the scope and effects of the bill's imprecise language become clear and definite. For example, clause (4), which purports to exempt from disclosure informa- tion obtained from the public which is "privileged or confidential," would not appear to exempt wage data submitted to the Bureau of Labor Statistics, and the Wage and Hour Division of the U.S. Department of Labor in confidence and used by them in preparing and publishing wage studies and surveys. This loop~ hole is serious because these wage studies and surveys are used by the Depart- ment as a basis for the prevailing wage determination which the Department is required to make under the Waish-Healey apd Davis-Bacon Acts. Unless the Bureau of Labor Statistics can continue to assure those from whom wage data are obtained that these data will be kept confidential, the Bureau's sources of information in these vital fields could be seriously jeopardized. As presently drafted, clause (4) would also seriously interfere with the effective enforcement of the Fair Labor Standards Act, the Labor-Management Reporting and Disclosure Act, and the Welfare and Pension Plans Disclosure Act. Clause (5) contains another broad loophole. It fails to exempt interagency or intraagency memorandums or letters dealing with matters of fact. Indeed, the Senate Judiciary Committee, reporting on the similar bill which was before the Senate last year (S. Rept. 1219, 88th Cong., 2d sess.), stated specifically that while "the Government cannot operate effectively or honestly" if "opinions of the moment" of Government officials had to be spread on the public record, "there is no exemption for matters of a factual nature." Clause (5) is drawn in such a way, for example, that it would appear that memorandums prepared by agency employees for themselves or their superiors purporting to give their evaluation of the credibility of evidence obtained from witnesses or other sources would not be exempt from disclosure, even though the knowledge that their views may be made matters of public knowledge would inevitably interfere with their freedom of judgment and color their views. In addition, mem- orandums summarizing facts used as a basis for recommendations for agency action would likewise appear to be excluded from the exemption contained in clause (5). Clause (7) would open up investigatory files to an extent that goes far beyond anything required by the courts, including the decision of the Supreme Court in the Jenek8 case. This clause, for example which provide~ for disclosure of investigatory files as soon as they "affect an action or proceeding or a private party's effective participation therein" is susceptible to the interpretation that once a complaint of unfair labor practice is filed by the General Counsel of the National Labor Relations Board, access could be bad to the statements of all witnesses, whether or not these statements are relied upon to support the complaint. Furthermore, witnesses would be unwilling to give statements if they knew that their statements were going to be made known to the parties before the bearing. While witnesses would continue to be protected in testifying at the hearing, they would enjoy no protection prior to that time. Obviously, the Board's procedures could be substantially interfered with, and further delays to clog the Board's already overloaded docket would be encouraged. Substan- tial litigation would be required before the full scope and effects of clause (7) would be made clear. The foregoing points make it clear that HR. 5012 may have serious, adverse effects on the activities of administrative agencies and particularly those Fed- eral agencies engaged in operations and proceedings affecting labor unions and their members and working people generally. 45-213-65-pt. 1-13 PAGENO="0194" 186 FEDERAL PUBLIC RECORDS LAW H.R. 5012 is, in form, an amendment of section 22, title V, United States Code. The bill does not in terms amend section 3 of the Administrative Procedure Act. Section 2, however, provides that "all laws or parts of laws" inconsistent with the bill "are hereby repealed." While the term "all laws or parts of laws" is presumably designed to include section 3 of the Administrative Procedure Act, it is far from clear bow much of that section would in fact be repealed and bow much of it would be left intact. If section 3 of the Administrative Proce- dure Act is to be amended or repealed, which would appear to be necessary if the bill is to have any significance, this should be done specifically, rather than Inferentially or indirectly, as provided in 11.11. 5012. If this is not done, the bill can only result in even greater confusion and uncertainty than already exists. While, the beneficial purposes of thO bill should certainly be kept firmly in mind, the foregoing serious deficiencies should be corrected before the bill is forwarded to the House of Representatives. It is suggested that the following amendments would take care of the more egregious deficiencies in H.R. 5012. 1. Amend clause (4) to read as follows: "(4) Trade secrets and information obtained from the public in confidence or customarily privileged or confidential or information acquired during media- tion or conciliation of labor disputes." 2. Amend clause (5) to read as follows: "(5) Interagency or lntraagency memorandums or letters." Alternatively, this clause might be amended to read as follows: "(5) Interagency or intraagenc~ memorandums or letters dealing with matters of fact, Jaw, or policy". 3. Amend clause (7) to read as follows: "(7) investigatory files." Alternatively, it is suggested that the rule enunciated in the Jenoks case might well be written into the bill. This could be done by amending clause (7) to read as above, by inserting a new clause (8), and by renumbering the present clause (8) as clause (9). The new clause (8) would read as follows: "(8) Statements of agency witnesses until such witnesses are called to testify in `an action or proceeding and request Is timely made by a private party for the production of relevant parts of such statements for purposes of cross examina- tion." Enactment of legislation along the lines of H.R. 5012 Is sought principally by the American Bar Association and the American Newspaper Publishers Associa- tion, which claim that it is neces~ary to correct certain interpretations of section 22, title V, United States Code, and section 3 of the Administrative Procedure Act. They claim that these provisions have been relied upon by executive departments and agencies to withhold information to which parties to actions or proceedings before such departments or agencies or the public are entitled. They claim, the provisions in question, `and particularly section 3 of the Administrative Proce- dure Act, which were designed as disclosure statutes, have in fact become prin- cipal bulwarks of nondisclosure. As I said at the beginning of this statement, we support the principle under- lying this H.R. 5012, the principle that the full disclosure of the operations of the agencies of Government is in the public interest, but we also insist that another Important principle be maintained, the principle of m~aintainiflg the Integrity of purpose of Government agencies and avoiding adverse effects resulting from dis- closure of confidential information. We believe disclosure of information that jeopardize the purpose of a Govern- ment agency, and particularly the purposes of those Government agencies with which we are most familiar, is wrong and contrary to the intent of the Congress In setting up those agencies. Therefore, we urge this subcommittee to give very serious attention to the points we have made in this statement and to the changes we have recommended. STATEMENT OF KERMIT OVERBY, DIRECTOR, LEGISLATION AND REsEARCh DEPART- MENT, RURAL ELECTRIC C0OrERATIVE ASSOCIATION, WASHINGTON? D.C. Hon. JOHN E. Moss, T7.~. HoRse of Representatives, Washington, D.C. Da~n CONGRSSSMAN Moss: As the national trade and service organization of nearly 1,000 rural electric cooperatives which depend for their financial well- PAGENO="0195" FEDERAL PUBLIC RECORt~S LAW 187 being upon the operation and policies of the Rural Electrification Administra- tion, NRECA is very much interested in H.R. 5012, which would amend title 5, section 22, of the United States Code to increase availability of information. The Rural Electrification Administration is continuously engaged in obtaining many types of data from all of its borrowers, including the most intimate details of the borrower's financial position and wholesale power costs. We are very hopeful, therefore, that the current legislation will not confer a legally enforcible right on the general public to require disclosure by REA of data which would enable rival power companies the means with which to destroy our program. H.R. 5012 would require every agency to "make all its records promptly avail- able to any person" subject to eight enumerated exceptions. It appears that the language, if not carefully circumscribed and interpreted, would endanger the security of our member systems. The critical language of H.R. 5012 appears in section 1(0) (4) which exempts from the disclosure mandate "trade secrets and commercial or financial informa~ tion obtained from the public and privileged or confidential." This exemption, if adequately interpreted by committee report language, would achieve the objec- tive which we seek. We, therefore, respectfully urge the inclusion in the com- mittee report of the following language to protect REA borrowers: Exemption No. (4) of subsection (c) is intended to apply among other situa- tions, to financial and commercial records of REA borrowers, including the system audits and loan surveys, of such borrowers, and all information disclosed to RBA by borrowers for the purpose of obtaining REA loans. * If your committee desires to protect REA borrowers through the language of the bill itself, we suggest that section 1(C) (4) be amended to read as follows: "Trade secrets and commercial, and technical, and financial information sub- mitted and received as privileged or confidential." We would welcome any opportunity to confer with you personally on any facet of this problem which affects our membership. Very sincerely yours, KERMIT OvERBY, Director, Legislation and Research Department. LETTER FRoM AMERICAN TRIAL LAWYERS AssocIATIoN, AVIATION LAW SECTION, NEw YORK, N.Y., TO SENATOR EDWARD V. LONG AND CONGRESSMEN JOHN E. Moss AND OGDEN H. Rnrn, APRIL 5, 1965 APRIL 5, 1965. Re Federal public records law bill, S. 1160, H.U. 5012. Hon. EDWARD V. LONG, U.S. Senate, Warhingten, D.C. Hon. JOHN Moss, House of Representatives, Washington, D.C. Hon. OGDEN R. REID, House of Representatives, Washington, D.C. DEAR SENATOR LONG AND CONGRESSMEN Moss AND REID: In behalf of the Ameri- can Trial Lawyers Association, I certainly appreciate your cooperation in for- warding copies of the bills, a press release, and the hearings conducted last year. I understand that hearings will be conducted next week with regard to this legislation, but trial commitments preclude my personal attendance despite an earnest desire to express the views of the association. Perhaps you are aware that ot~r association represents approximately 18,000 trial lawyers who specialise in civ'il tort litigation, Our publication, Trial, has a circulation of 50,000 trial lawyers. We strongly support passage of this legislation, with two reservations. The principle of full disclosure by governmental agencies cannot be seriously disputed, A problem, however, arises in formulating and articulating the exceptions to the general principle. The proposed legislation would establish a general rule requiring every agency to disclose "all its records." Eight exceptions to the general rule are specified. Our association favors and strongly supports exceptions (1), (3), (4), and (6) through (8). We have, however, serious reservatl~ns concerning the scope of two exceptions, (2) and (5). Exception (2) would preclude the disclosure of matters "related solely to the Internal personnel rules and practices of any agency." Exception (5) PAGENO="0196" 188 FEDERAL PUBLIC RECORDS LAW would preclude the disclosure of matter relating to "interagency or intra-agency memorandums or letters dealing solely with matters of law or policy." The United States of America has frequently been involved in civil tort litigation wherein it is claimed that Government personnel carelessly performed their duties in such a way as to cause damage to others. The Federal courts are vested with exclusive jurisdiction in such suits against the United States. The F'ederal Rules of Civil Procedure are, therefore, applicable and `they adopt the principle of broad disclosure. Rules 34 and 26(b) provide the district court in which an action is pending with the discretion to direct any party to the litiga- tion to produce documents which are relevant to the issues. Such documenta- tion is discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence, even though the documents sought are not in and of themselves admissible. In the past, the Federal district courts have required the United States to produce for discovery in such litigation material related to the operational practices of the governmental agency involved, interagency and intra-agency memorandums and letters dealing with the policy affecting such operational prac- tices. For example, the United States of America has been a party to litiga- tion based upon the carelessness of Federal Aviation Agency employees in the manner in which they provided air traffic control over aircraft. In such litiga- tion the Government has been required to produce personnel memorandums, and directives, manuals, and related matter which established the standards of op- eration governing the manner In which FAA personnel were obligated to per- form their duties In controlling aircraft. The language of exceptions (2) and (5) is such that, if broadly construed, a district court might be required to prevent disclosure of documents obtained in the past pursuant to the Federal Rules of Civil Procedure. Exception (2) excludes from disclosure matters related to internal personnel rules and practice's. In view of the general principle adopted by the bill, we are confident that it is not intended to embrace FAA manuals, and all person- nel memorandums which set the standards pursuant to which Government per- sonnel perform their duties in relation `to the public. Exception (5) suffers from the same criticism bceause letters which establish policy to guide opera- tional personnel may thereby be excluded from discovery. We are frank to admit that we are unable to formulate a change in the lan- guage of exceptions (2) and (5) which would enable the discovery of material previously available, but at the same time prevent disclosure of purely internal matter not related to operational activities affecting the public. We do, however, suggest that an attempt be made to modify exceptions (2) and (5) with the above-mentioned comments in mind. One solution might be to amend the bill to include a statement of principle which would make clear that the exceptions are to be construed narrowly and that matter previously dis- coverable should continue to be discoverable. Another suggestion is that excep- tIon (2) be confined to "internal personnel rule,~ related to hiring, firing, dis~ ciplinary action, promotion and demotion" thereby deleting "and practices of any agency." The "practices" portion of exception (2) might be construed to relate to practices or operation affecting the public. Exceptioh (5) might, per- haps, be amended to add a clause so that it reads: "interagency or intra-agency memorandums or letters dealing solely with matters of law or policy, but not of operational practices affecting members of the public." We truly appreciate the opportunity to express these views. We are confident they will receive your prudent consideration. Respectfully yours, LEE S. ]~EEINDLEE, Cha4rman, Aviation La~w Section. LETTER FROM MAGAZINE PUBLIsHERS AssocIATIoN, INC., Nxw Yonrc, N.Y., TO HON. JOHN B. Moss APRIL 12, 1965. Hon. JOHN B. Moss, OluIirn,an, Subcommittee on Foreign Operations and Government Information, Convmittee on Government Operations, House of Representatives. Das~n Mn. Moss: On behalf of the Magazine Publishers Association and. the American Society of Magazine Editors which represent 113 companies publishing PAGENO="0197" FEDERAL PUBLIC RECORDS LAW 189 over 300 magazines in the United States, I would like to add our voice in support of JT.R. 5012, pending before your subcommittee. Magazine publishers and editors believe that there should be the maximum interchange of information between the Government and the people and that the magazines of our Nation are effective disseminators of information to the people. The purpose of ILR. 5012 is to require Government agencies to make "records promptly available to any person" unless that information falls within certain specified exempted categories. For too long, too many Government agencies have unduly restricted the availability of information. Much of this has been to protect officials from criticism in the press without any Subst~nti~l security reason for withholding the information. When the Administrative Procedure Act (5 U.S.C. 1001 et seq.) was enacted in 1946, the Senate Judiciary Committee described the basic intent of the public infoirmaition section of that act as follows: * * * that administrative operations and procedures are public property which the general public * * * is entitled to know or l~ave the ready means of knowing with definiteness and assurance. (S. Doe. 248, 79th Cong., 2d sess., p. 198, 1946.) The House Judiciary Committee explained that, * * * all administrative operations should as a matter of policy be d~s~ closed to the public except as secrecy may obviously be required, (Id., pp. 251-252.) The work of your committee in the past has resulted in disclosure of many misinterpretations by Government agencies of this section of the APA and of title 5 United States Code, section 22, the general housekeeping statute, which have resulted in a withholding rather than a disclosure as intended by Congress. The latter was amended through the efforts of this committee to preclude re- liance on that section when information was withheld. H.R. 5012 would further amend that act to affirmatively require disclosure except for certain exceptions and provide judicial relief where there was an unlawful withholding. Magazine publishers and editors seek no special privileges on access to Gov- ernment information. We recognize the need for restriction of certain informa- tion for security purposes. However, we believe that all categories of informa- tion which are not specifically exempted under the Constitution or the provisions of H.R. 5012 should be available to the public and the press. The enactment of H.R. 5012 would recognize the right of the public to informa- tion relating to the operation of its Government, We support its enactment. Sincerely, CuAlmEs P. Ani~uw. STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIvIL LIRERTIES UNION Mr. Chairman, the American Civil Liberties Union supports the general aim and purpose of H.R. 5012 which would establish a Federal Public Records Law, by amending section 3 of the Administrative Procedure Act of 1946. The aim of this legislation is to protect the right of the public to information and is designed to regulate the policies of the various administrative agencies, departments, and bureaus of the Federal Government. Our organization believes that access to the records of Government agencies by public and press is vital to the continued functioning of the democratic process. During the 88th Congress we testified in hearings before the Subcommittee on Administrative Practice and Procedure of the Committee of the Judiciary of the U.S. Senate on S. 1666, a similar bill. During our testimony we pointed out some of the inadequacies of the present law which had come to our attention and expressed concern about various provisions of S. 1666 as introduced. A number of changes were made in S. 1666 which are reflected in the present bill, HR. 5012. Nevertheless, we are still concerned about some of the exemptions set forth in subsection (e~. In our oral testimony before this committee last week we referred to the ex- cellent memorandum by Deputy Assistant Secretary of Defense, Security Policy, Walter P. Skallerup, 3r., which was sent to each of the Under Secretaries of the services on November 26, 1962. This memorandum covers the subject of civil and private rights during security investigations and hearings and sets forth guidelines to bar improper questions. A copy of the memorandum is attached to this statement. PAGENO="0198" 190 FEDERAL PUBLIC RECORDS LAW The memorandum recommends that each of the three military services adopt regulations to implement the policy set forth in the memorandum. Up until now we have been unsuccessful in obtaining copies of their regulations. Each of the three services, in response to our inquiries, has stated that it would not supply them to us because they were "internal management guides." Our interest was prompted, not by reason of idle curiosity (which should not make the slightest difference) but because we have had a nupiber of cases involving individuals interviewed by Investigators reported to us in which the strictures of the Skallerup memorandum have been most flagrantly violated. The Subcommittee on Constitutional Rights of the Senate Judiciary Committee has recently conducted extensive correspondence with all agencies concerning their practices in permitting individuals being interviewed to have with them counsel or friends or relatives. Practices very tremendously according to a monthly report of the subcommittee. Nevertheless, the few attempts we have made to obtain the specific regulations from each of the agencies governing this extremely impottant constitutional right have been fruitless. Whether exemption (e) (2) which exempts matters "related solely to the internal personnel rules and practices of any agency" would give the power to the three services to withhold the regulations under which their investigators are now operating is unclear. Likewise, it is unclear whether exemption (e) (5) "inter-agency or intra-agency memorandums or letters dealing solely with mat- ters of law or policy" would have this effect. We would like to see a clear ex- pression of legislative intent that would insure that all regulations and instruc- tions to investigators covering their practices and procedures during interviews would be available as public record. The revocation of a security clearance to a Government employee or military personnel is an extremely serious matter. Nevertheless, present practices and procedures leave much to be desired. Individuals who have their security clear- ance revoked are not entitled to know the basis for the revocation. To give one illustration: An Army private, after undergoing extensive training for over 6 months with the U.S. Army Security Agency, was unaccountably removed from the training in January 1964. Since then be has persistently attempted to find out the reason for his removal from training. The Chief of the Personnel Clearance Division of 0-2 not only refused to give him any information but also stated that regulations forbade him from doing so. Efforts by a Congressman for further information were equally unsuccessful. We were finally able to obtain some more information concerning the reason for the revocation but this was almost on a "favor" basis. In addition, we wrote for a copy of the Army regulations which allegedly pro- hibit disclosure of the basis for denial or withdrawal of security clearance. We have not been able to obtain them. We have been informed that "current Army regulations on this point have been given differing interpretations. The regula- tions are being amended to provide in all cases for disclosure to the subject and an opportunity for rebuttal, except when to do so would jeopardize national security." Of course, the adoption of these regulations would be a major im- provement over present procedures; nevertheless, we still cannot see any basis for withholding copies of the current Army regulations. Exemption (e) (6) of the bill providing "personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" would seem to be a desirable exception. It should mean, as in this case, that the individual directly involved would be able to obtain information concerning his case but other individuals could not. It would seem that this Is a necessary distinction that must be drawn in any freedom-of-information bill. Although the distinctions between the right of an individual to obtain particular records involving himself and that of the general public and the press should be kept at a minimum, there are, it seems clear, situations In which the individual distinction should be made. We are particularly pleased to see that this bill eliminates a provision in prior bills permitting "secrecy in the public interest." This has been changed to exemption (e) (1) covering matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreigii policy." This may he too broad. Although there is a surface appearance that particular information could only be kept secret by Executive order, as a practical matter it would appear that the determination would be made by lower echelon administrators. This could become a potential loophole to enable officials to foreclose vital sources of information by claiming that the requested information pertains to "national defense or foreign policy." For example, several years ago the polls conducted PAGENO="0199" FEDERAL PUBLIC RECORDS LAW 191 by the U.S. Information Agency overseas were kept secret ~n the grounds that to publicize them would affect our foreign policy. The A(JLU at that time failed to see any justification for this position. This particular section might afford a carte blanche for Executive decisions of that kind. Although some of the exemptions set forth in subsection (e) are capable of abuse, nevertheless it is apparent that H.R. 5012 would be a major step forward. Ac~ordingly, we give It our support. NOVEMBER 26, 1962. Memorandum for- The Under Secretary of the Army. The Under Secretary of the Navy. The Under Secretary of the Air Force. Subject: Civil and private rights. In order to insure that inquiries and interrogations conducted in the course of security investigations and adjudicative proceedings do not violate lawful civil and private rights, or discourage lawful political activity in any of its forms., or intimidate free expression or thought, it is necessary that investigators and members of security review boards have a keen and well-developed awareness of and respect for the rights of the subjects of inquiries and of other persons from whom information is sought. Initially, this is a matter of proper indoctrination and training, and subsequently a matter of careful guidance and supervision. The civil and private rights of both the subjects of inquiries as well as of others to whom inquiries are addressed deserve equal concern and consideration on the part of Department of Defense personnel. It is recognized that the military departments of necessity should learn a great deal about a person before a proper determination can be made with respect to entrusting him with classified defense information or placing him in an otherwise sensitive position. This applies to civilian employees of the Depart- ment, members of the Armed Forces, and employees of defense contractors. In making inquiries upon which security decisions are based, the Department of Defense usually enjoys the cooperation of all persons who reasonably may be expected to possess information bearing upon the reliability and trustworthiness of the subjects of such inquiries. This cooperation is based, we believe, in a large part upon the American public's understanding of the Government's pur- pose and interest in making the inquiries. Questions which are irrelevant or inconsistent with established testimonial privileges or constitutional considera- tions serve only to detract from the effectiveness of the security program of the Department of Defense. Persons conducting security investigations and inquiries normally have broad latitude in performing these essential and vital functions. This places a high premium upon the exercise of good judgment and commonsense. While it is virtually impossible to establish elaborate rules which will provide satisfactory guidance in all circumstances, there are certain basic principles which have general application. Care must be taken not to inject improper matters into security inquiries whether in the course of security investigations or other phases of security pro- ceedings. For example, religious beliefs and affiliations or beliefs and opinions regarding racial matters, political beliefs and affiliations of a nonsubversive nature, opinions regarding the constitutionality of legislative policies, and affiliation with labor unions are not proper subjects for such Inquiries. Inquiries which have no relevance to a security determination should not be made. Questions regarding personal and domestic affairs, financial matters, and the status of physical health, fall in this cateogry unless evidence clearly indi- cates a reasonable basis for believing there may be illegal or shbversive activi- ties, personal or moral irresponsibility, or mental or emotional instability in- volved. The probing of a person's thoughts or beliefs and questions about his conduct, which have no security implications, are unwarranted. Department of Defense representatives always should be prepared to explain the relevance of their inquiries upon request. Adverse inferences cannot properly be drawn from the refusal of a person to answer questions the relevance of which has not been established. It is requested that your Department review its applicable regulations and instructions, and those portions of its training and refresher courses for in- vestigators and adjudicators, which deal with civil rights and individual private rights, to determine the propriety of their content. We would appreciate receiv- ing within 30 days a description of the steps your Department may have taken PAGENO="0200" 192 FEDERAL PUBLIC RECORDS LAW IA this a~ea. Inasmuch as it is contemplated that the attached list of prohibited qd~tioii~ may be incorporated in a DOD directive, your comments with respect to them would be appreciated. Any suggestions you may wish to offer along these general lines would be welcome. WALTER P. SKALLERUP, Jr., Deputy Assistant $ecreta'ry of Defense, &~curity Policy. TYPES OF Qunsriov~ REGARDED AS IMPROPER on IRRELEVANT IN SECURITY INVES- TIGATIONS AND ADJUDIcATIoNs WHETHER DIRECTED TO THE SUBJECV on ANOTHER INDIVIDUAL A. Religious matters 1. Do you believe in God? 2. What is your religious preference or affiliation? 3. Are you anti-Semitic, anti-Catholic or anti-Protestant? 4. Are you an atheist or an agnostic? 5. Do you believe in the doctrine of separation of church and state? B. Racial matters 1. What are your views on racial matters such as desegregation of public schools, hotels, eating places, etc.? 2. Are you a member of NAACP or CORE? 3. Do you entertain members of other races in your home? 4. What are your views on racial intermarriage? 5. Do you believe one race is superior to another? C. Personal and domestie matters 1. How much income tax do you pay? 2. What is the source and size of your income? 3. What is your net worth? 4. What contributions do you make to political, charitable, religious or civic organizations? 5. Describe any physical ailments or diseases you may have. 6. Do you have any serious marital or domestic problems? 7. Are you or have you been a member of a trade union? 8. Is there anything in your past life that you would not want your wife to know? D. Political matters 1. In political matters do you consider yourself to be a liberal or conservative? 2. Are you registered to vote in primary elections? 3. Did you vote in the last National, State, or municipal election? 4. Are you a member of a political club or party? 5. Have you ever signed a political petition? Explain. 6. Do you write your Congressman or Senator about issues in which you are interested or to obtain assistance? 7. What are your views regarding the decisions of the U.S. Supreme Court? (i.e., the prayer in public schools, desegregation, and Communist party eases). 8. What are your views on the constitutionality of proposed or existing legislation? STATEMENT OF VINCENT P. WA5ILEW5KI, PRESIDENT, NATIONAL AssOcIATION OF - BnoADcAsruRs This statemeiit is presented by Vincent T. Wasilewski as president of the National Asociation of Broadcasters. The National Association of Broadcasters, or NAB, is a nonprofit corporation whose niembers include 2,140 AM, 837 FM, and 461 television stations, and all the national radio and television networks in the United States. The NAB suports HR. 5012, introduced by Chairman Moss of this subcom- mittee, and identical bills introduced by other members of the House of Rep- resentatives. This proposed legislation would define clearly the authority of Federal officers and agencies to withhold information from the public, and it would provide a procedure to compel the production of information improperly withheld. The National Association of Broadcasters and its Freedom of Inforthation Committee have long been opposed to all barriers to a free flow of information PAGENO="0201" FEDERAL PUBLIC RECORDS LAW 193 from Government to the American people. As responsible journalists, broad- casters are closely identified with the interest of the public in gaining access to information that is, or of right ought to be, public. While it is recognized that one of the basic purposes of the Administrative Procedure Act was to require agencies to keep the public informed about the proceedings of the several agencies, there has been legitimate concern over the years that the exceptions and qualifications in the public information section of the act have served in some cases to supress information in which the public has a legitimate interest, rather than to make it available as the Congress intended. The problems of the handling and dissemination of news by the Govern- ment have been before the Congress for several years. In the 85th Congress an amendment to the "housekeeping" statute (5 U.S.C. 22) was enacted to prevent agencies from using this statute as a basis for withholding information. NAB endorsed and actively supported that measure, but efforts to enact legislation defining in adequate terms a general public information policy for Government agencies have not been successful. An informed people, capable of self-government, is the cornerstone of Ameri- can democracy. Not only must voters have information upon which to judge the qualifications of their elected representatives, they must also know about the affairs of government in order to render other vital judgments. Under our constitutional system not all powers are granted to government. Many are retained by the people. Supergovernment, the star chamber, and bureaucratic intrigue are foreign to the genius of America. We recognize the need for carefully designed exceptions which HR. 5012 includes. The NAB does not propose, and no responsible journalist proposes, that our Govrnment lay the national security bare to potential enemies. Neither do we seek to disrupt the orderly procedures of government to expose information which is private in nature. Thus we view section 161(c) (4) as an essential part of the bill. In the broadcasting industry, there are increasing demands from the licensing agency for information of a confidential business nature. This information concerns financial activities and business operations. At present under section 0.417 of the rules of the Federal Communications Commission such information is not open to public inspection. This policy has the same logical basis as that expressed in section 6103 of the Internal Revenue Code which provides that, for reasons of public policy, tax returns are not open to examination and inspection. The subcommittee should make clear its intent in approving this legislation that section 161(c) (4) excepts from operation of the act all information submitted in confidence pursuant to statute or administrative rules or regulations, the dis- closure of which would be a violation of personal privacy. Over the years there have been numerous instances of unjustifiable withhold- ing of information by governmental offices. Some cases are very serious-others simply ludicrous. The natural enemies of an informed public are secrecy with- out legitimate reason, automatic overclassification, "leaks," anonymous spokes- man, "handouts" that do not tell the whole story, and old-fashioned laziness. Some officials find it easier to draw the blinds than to keep the house in order, and complaisant newsmen find it easier to rely on handouts and leaks than to seek the whole truth. The spirit of the proposed law, we believe, is far more important than its letter. In some way there must be infused into all branches of government a dedication to disclosure of the truth to the American people. Every officer of government should know that it is his duty to conceal only that which the law law requires be concealed All else belongs to the people. The doctrine of freedom of information ought to be confirmed in law. LETTER FRoM GREEN BAY PRESS-GAZETTE, GREEN Bar, IVis. March 2, 1965. Hon. JOHN B. Moss, Old House Office Building, Waslthi.gton~ D.C. DEAR Mn. Moss: The Green Bay Press-Gazette, for many years, has insisted that public agencies should have no secrets from citizens except under very limited circumstances spelled out as specifically as possible. PAGENO="0202" 194 FEtERAL PUBLIC RECOR]~S LAW In view of the recent introduction of legislation in ~he Congress to establish a Federal records law, I thought you would be interested in the enclosed copy of am editorial which supports such legislation. I am hopeful that your colleagues in both the Senate and the House also will support the legislation whose need has become ever more evident as the Federal Establishment has grown and increased in complexity. Thank you. Sincerely, DAviD A. YUENGER, Managing Editor. LETTER FROM ALLIED DAILy NEWSPAPERs OP WASHINGToN March 24, 1965. Hon. JouN E. Moss, Chairman, Foreign Operations and Government Information Subcommittee, U.S. House of Representatives, Washington, D.C. DEAR REPRESENTATIVE Moss: In behalf of the daily newspapers of the State of Washington, I write in support of H.R. 5012. We are confident that Congress supports the principle of freest possible access by the public to information about government at all levels. This support can be manifested in passage of your bill. By recognizing under (c) those circumstances In which public release would be against national interests, or otherwise violate the law or the rights of individuals, you have provided ample safeguards against unreasonable applica- tion of the statute. By providing for prompt review of secrecy rulings, you give the public a realistic right of access to Information. I might add that the executive departments should not feel they have been singled out for public exposure. Our State press organizations and our indi- vidual newspapers maintain a constant vigil over the public's right to know about the activities of State and local government. We ask simply that the Federal Establishment, with its vast and pervasive authority over the lives of all citizens, be equally as open, and responsible, to the public as are lesser levels of government. Respectfully submitted. Sincerely, PAUL CONRAD, Secretary-Manager. LETTIIR FROM MARITIME ADMINISTRATION BAR AssocIATIoN Washington, D.C., March 25, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operatians and Government Information Subcommittee, Com- mittee on Government Operations, Washington, D.C. M~ DEAR Mn. Moss: Thank you for your inquiry of March 11 addressed to Mark P. Scblefer. The Maritime Administrative Bar Association does Indeed have an abiding Interest In resolving problems concerning the availability of information at the Federal maritime agencies. As you know, testimony on behalf of the association was presented by Mr. Schlecfer at `the Senate hearings on freedom of information legislation during the last session of Congress. Hearings before the Subcommittee on Adininis- trative Practice and Procedure of the Senate Committee on the Judiciary (88th Cong., 1st sess. 1963) at pages 124-135. There is little that we can now add to that testimony; consequently, we do not plan `to file `a separate statement on H.R. 5012. If, however, it will be of any assistance `to the subcommittee, we should be pleased to have our previous s!tatenment made a pai4 of the record of the subcommittee's hearings. Sincerely yours, WARNER W. GARDNER. LETTER FROM RAILWAY LABOR EXECUTIVE'S AssodlArrox Washington, D.C., April 1, 1965. lion. JOHN E. Moss, U.S. House of Representatives, Washington, D.C. DEAR CoNGRxssMAN Moss: This will confirm telephone reference to your letter of March 11 regarding hearings which your subcommittee now has underway PAGENO="0203" FEDERAL PUBLIC RECORDS LAW 195 on H.R. 5012 and related bills. The Railway Labor Executives' Association has no objection to HR. 5012 and therefore finds it unnecessary to file a statement, Your thoughtfulness in recalling our Interest in this legislation is most appre- ciated. Sincerely yours, G. B. LEIGIITY, Chairman. LETTER FROM THE MERIDEN Rnconn Co. MERIDEN, CONN., April 9, 1965. Hon. JoHN Moss, Chairman, House Operations and Government, Information Subcommittee, House Office Building, Washington, D.C. DEAR CoNGREssMAN Moss: Will you please record the Meriden, Conn., news- papers, the Record and the Journal, as strongly in favor of your bill H.R. 5012, Federal public records. As you know, we have campaigned successfully for the passage of similar legislation in the State of Connecticut and are constantly striving to strengthen the laws. They have proved very helpful in gathering and disseminating public information through the newspapers, and I am sure the Federal public records bill will be equally beneficial on the national level. We realize there must be certain exceptions from public Information, but will you please explain the following two exceptions in your bill: "Related solely to the internal personnel rules and practices of any agency. "Interagency or intra-agency memorandums or letters dealing solely with matters of law or policy." Best of luck in securing passage of your legislation. Cordially yours, THE MERIDEN RECOnD-J0URNAL, CARTER H. WHITE, General Manager. LETTER FROM HIDALGO PTJBLISIIING Co., INC. EDINEUnG, TRx., March 20, 1965. Hon. JOHN B. Moss, Chairman, House Informatithi Subcommittee, House Office Building, Washing- ton, D.C. Dz~a REIIIE5ENTATIVE Moss: I am now publisher and editor of the Edinburgh Daily Review and the Mission Times in the Rio Grande Valley, Tex. I am not sure that any subcommittee or anyone in Washington cares what I think about House Resolution 5012 and related bills. We worry more here about freezes and the length of carrots than we do what Government agency denies what to a reporter. However, I am still convinced that we need legislation such as House Resolu- tion 5012. In 7 years of Washington reporting, part of this time as chairman of the Washington chapter, Sigma Delta Chi, freedom of information subcom- mittee, I encouraged many instances of arbitrary and illegal suppression of legitimate news. Much of this is a matter of record with your subcommittee. At times your staff helped solve problems, and at other times they were blocked as well as we here in the absence of legal cures. I know of only two ways to prevent governments from abusing freedom of information. First, there is the great outcry by all the press that forces release of much Information. Secondly, there is the one you propose in court procedures. The only positive method of compelling a Government agency is through a court order. Feel free to enter this letter in any record that might help. If you wish, I will write more detailed support of the legislation. Sincerely, JAMES V. MArms, Editor and Publisher. PAGENO="0204" PAGENO="0205" Biographical Data of Witnesses BIOGRAPHICAL DATA OF NORBERT A. SCHLEI, ASSISTANT ATTORNEY GENERAL (OFFICE OF LEGAL COUNSEL) U.S. DEPARTMENT OF JUSTICE Born: Dayton, Ohio, June 14, 1929. Education: Ohio State University, B.A., 1950; Yale, LL.B., magna cum laude, 1956. Military service: Midshipman, TJSNR, 1946-5Q; ensign, USN, 1950-52, on board TJ.S.S. Albany (CA-123) in Atlantic and Mediterranean Fleets; lieutenant (j.g.), USN, 1952-53, aide to Rear Adm. E. H. von }leimburg, USN, commander, Train- ing Command, U.S. Atlantic Fleet. Released to inactive duty June 5, 1953; now lieutenant, USNR. Experience: 1954, law clerk with Dinsmore, Shohl, Sawyer & Dinsmore, Cin- cinnati, Ohio; 1955, special duty with International Law Branch, Office of the Judge Advocate General of the Navy, Washington, D.C.; 1956-57, law clerk to Associate Justice John M. Harlan, Supreme Court of the United States; 1957-59, attorney-associ~~~ with O'Melveny & Myers, Los Angeles, Calif.; 1959-62, mem- ber of the firm of Greenberg, Shafton & Schlei, Los Angeles; 1961, George S. Leatherbee lecturer, Harvard Graduate School of Business, Cambridge, Mass.; 1961-62, lecturer in law, University of Southern California, Los Angeles. In present position since August 6, 1962. Memberships: Ohio Bar, District of Columbia Bar, State Bar of California, American Bar Association, Los Angeles Bar Association, San Fernando Valley Bar Association, American Judicature Society, Urban League, Town Hall, Publications: Associate author of McDougal & Associates, "Studies in World Public Order," Yale University Press, 1961; author of "State Regulation of Corporate Financial Practices: The California Experience," Harvard University, 1962, and articles in legal periodicals. Served as editor in chief, Yale Law Jour- nal, 1955-58. BIOGRAPHICAL DATA OF FEED BURTON SMITH, DEPUTY GENERAL COUNSEL (ACTING GENERAL COUNSEL), TREASURY DEPARTMENT Graduate of: Princeton University (1937), Syracuse University College of Law (1940). Admitted to practice in New York State October 1940. Member of the Legal Division of the Treasury Department Continuously Since February 1943. Mr. Smith is accompanied by Mrs. Charlotte P. Lloyd, Special Assistant to the General Counsel and Chief of the Legal Opinion Section, U.S. Treasury Depart- ment. Mrs. Lloyd is a graduate of Vassar College and Columbia Law School and a member of the New York, District of Columbia, and Virginia bars. She ha~s been in the Office of the General Counsel since 1901 and previously was 10 years in the Solicitor's Office of the Interior Department. BIOGRAPHICAL DATA or H. T. IJEIBUCK, GENERAL COUNSEL, FEDERAL MEDIATION AND CONCILIATION SERVICE Born: New York, N.Y., April 24, 1920. Education: Hamilton College, Clinton, N.Y., 1942, B.S.; Cornell Law School, Ithaca, N.Y., 1948, LL.B. Professional experience: Associate in Paul, Weiss, Rifkind, Wharton & Gar- rison, New York City, August 1948 to May 1950. Solicitor's Office, U.S. Depart- ment of Labor, Washington, D.C., August-Octo~~~ 1950. National Labor Relations Board, 1950-57: Legal Assistant to Chairman Herzog, October 1950 to November 1952; attorney, Office of General Counsel, November 1952 to February 1954; 197 PAGENO="0206" 198 FEDERAL PUBLIC RECORDS LAW attorney, Advice Section, February-October 1954; trial attorney, Seattle regiona. office, October 19154 to January 1957. Labor attorney, Westinghouse Electric Corp., Pittsburgh, Pa., February 1957 to May 1961. Assistant to Assistant Secre- tary of Labor, U.S. Department of Labor, Washington, D.C., May 1961 to Oc- tober 1963. Executive Secretary, Atomic Energy Labor-Management Relations Panel, June 1962 to present. General Counsel, Federal Mediation and Conciliation Service, October 1963 to present. Business address: 14th and Constitution Avenue NW. (1219 Labor Department Building), Washington, D.C., 20427. Phone: 961-3513. Residence: 1308 Popkins Lane, Alexandria, Va., phone: 765-3697. BIOGRAPHICAL DATA OF GILEERT J. SELDIN, ASSISTANT DIR1~CT0R OF MEDIATro~ ACTIVITY, FEDERAL MEDIATION AND CONCILIATION SERVICE Born: Newark, N.J., October 19, 1910. Education: B.A., City College, New York, N.Y.; LL.B., Brooklyn Law School, New York. Membership: New York State Bar Association. Professional experience: Assistant employment interviewer, New York State Employment Service. Wage `arid hour investigator and supervisor, Wage and flour Division, New York. Liaison officer with War Labor Board, Wage and flour Division, Washington, D.C. Attorney, Solicitor's Office, U.S. Department of Labor, New York. Liaison officer, Wage Stabilization Board, Washington, D.C. Mediator, Federal Mediation and Conciliation Service, Cleveland, Ohio. Teaching: Taught labor relations at Western Reserve University, Cleveland, Ohio~ Varied employment prior to Government employment, including a short period with Local 66, ILGWU. Business address: 14th and Constitution Avenue NW. (1210 Labor Department i3uilding), Washington, D.C., 20427, phone: 961-3505. Residence: 9312 Piney Branch Road, Silver Spring, Md., phone: 434-7181. i3IOGEAPHICAL DATA OF JOSEPH COSTA, CONSULTANT IN VIsUAl. COMMUNICATIONS, AUTHOE AND LECTUIiEE Born in Caltabellotta, Sicily, January 3, 1904. Joseph Costa came to New York with his parents when he was 3 years old. A press photographer for more than 40 years, Costa worked on the old New York World, the New York Daily News `and `at Icing Features Syndicate where he was photo supervisor and chief photographer of the Sunday Mirror Magazine, until the `demise of that paper in October 1963. He has covered most `of the major news events since 1920, and won almost every important award in the field `of photojournalism. Cofounder, first president, and 18-year chairman of the board of the National Press Photographers Association and executive editor of the National Press Photographer, the official monthly publication of the NPPA. Author and lecturer on photojournalism, he is known on every college and university c'ampus where journalism is taught. Has devoted more than `a quarter century working for the improvement of technical competence of all news photographers an'd fighting for equal rights of the news camera in communicating today's world by news media, in the public interest. He is a member of the guiding faculty of the Famous Photographer's School of Westport, Conn., and `a member of the Freedom of Information Center Advisory Committee, Columbia, Mo. BIOGRAPHICAL DATA OF JOHN A. MCCART, OPERATIONS DIRECTOR, GOVERNMENT EMPLOYEES COUNCIL, AFL-CIO Education: St. Joseph's College, Philadelphia, Pa. (1935-39), B.S.; graduate work, Temple University, Philadelphia; Columbus University School of Law, Washington, D.C. PAGENO="0207" FEDERAL PUBLIC RECORDS LAW 199 Work: Employed at Philadelphia Naval Shipyard (1940-50), clerical and in- dustrial relations work. Legislative representative, American Federation of Gov- ernment Employees, AFL-CIO (1950-62). Operations director, Government Em- ployees' Council, AFL-CIO (1963 to present). BIOGRAPHICAL DATA OF CHI5MAN HANES, AMERICAN BAR AssocIATIoN Born Pine Hall, N.C., on May 26, 1909. Duke University, A.B., 1930, LL.B., 1933; Harvard Law School, 1930-31. Practice of law in Raleigh, N.C., 1933-34; member Legal Division, Recon- struction Finance Corporation, 1934-36, 1937-42; assistant to Chairman, Attorney General's Advisory Committee on Crime, 1936-37; special assistant to Execu- tive Director, Office of Defense Plants, Reconstruction Finance Corporation, 1945- 46; practice of law in Washington, D.C., 1946 to present; partner in Klagsbrunn & Hanes. Served in U.S. Army Air Forces, 1942-45; attained rank of major. Member of North Carolina Bar Association,. Bar Association of the District of Columbia, Federal Power Bar Association, and American Bar Association. Contributor to legal periodicals. BIOGRAPHICAL DATA OF JoHN H. COLBTJRN, AMERICAN NEWSPAPER PTJELISHEBS' AssoCIATIoN John H. Colburn has been editor and publisher of the Wichita Eagle and the Wichita Beacon since February 1, 1963. Formerly he was managing editor of the Richmond (Va.) Times-Dispatch for 14 years. Mr. Colburn has been in newspaper work since 1930. He began as a cub re- porter-copy boy for the Columbus (Ohio) Dispatch. He joined the Associated Press in Columbus in 1935. During World War II, Mr. Colburn was an AP cor- respondent in Europe. After the war, he was named executive editor of the AP World Service in Lon- don and secretary of Associated Press, Ltd. He later was transferred to head- quarters in New York, where he became a general executive. Mr. C~1burn is a member of the Federal Laws Committee of the American Newspaper Publishers' Association. Mr. Colburn is a member of the board of directors of the American Society of Newspaper Editors and former chairman of the Freedom of Information Committee of that organization. He received the University of Arizona John Peter Zenger Award for "effective work in support of the freedom of the press," January 12, 1963, and in October was given a certificate of recognition by Southern Methodist University and the Dallas Press club for "distinguished service to journalism as a vigilant crusader for freedom of information." Mr. Colburn was president of the Associated Press Managing Editors' Asso- ciation in 1960. In 1961-62, Mr. Colburn directed a study by a group of edi- tors who drafted a code, "What Makes a Good Newspaper," designed to help the public and press evaluate newspapers. BIOGRAPHICAL DATA or RICHARD D. SMYSER, MANAGING EDITOR, THE OAK RIDGER, OAK RIDGE, PENN. Born, York, Pa., 1923. Graduate of Pennsylvania State University, B.A. in journalism, 1944. Served with U.S. Army, 1943 to 1945. Reporter, Chester, Pa., Times, 1946 to 1949. Managing editor, the Oak Ridger, Oak Ridge, Penn., from the paper's inception in 1949 to the present Currently a member of the board of directors and chairman of the Freedom of Information Committee of the Asso- ciated Press Managing Editors Association. BIOGRAPHICAL DATA OF DALE W. HARDIN, U.S. CHAMBER OF COMMERCE Marital status: Married, two children. Present position: Manager, Transportation and Communication Department, Chamber of Commerce of the United States, since September 1963. PAGENO="0208" 200 FEDERAL PUBLIC RECORDS LAW Born: September 9, 19~2, in Peoria, Ill. Education: LB. (1949) and LL.B. (1951) degrees, George Washington Uni- versity. Prior employment: 1951, private law practice; 1951-54, special agent, Federal Bureau of Investigation; 1954-63, congressional liaison officer, Interstate Com- merce Commission. Military service: On active duty with U.S. Marine Corps, 1942-46~ Organizations: Phi Delta Phi Law Fraternity; Federal Bar Association; Na- tional Lawyers Club; Society of Former FBI Agents; Virginia and District of Columbia Bars. BIOGRAPHICAL DATA OF JuLIus FRANDSEN,, WASHINGTON MANAGER, UNITED PRESS INTERNATIONAL; CHAIRMAN, FJmEOM OF INFORMATION COMMITTEE OF SIGMA DELTA Cm; AND THE NATIONAL PROFESSIONAL JOURNALISTIC SOCIi~TY Graduated from the University of Nebraska in 1927. Began work with United Press (now UP1) in New York in 1929. News editor Of the Washington bureau, 19~9-64. Washington manager of UPI since September 1, 1964. BIOGRAPHICAL DATA OF CLARK R. MOLLENHOFF, WASHINGTON CORRESPONDENT, COWLES PUDLICATIONS; AND VICE CHAIRMAN, FREEDOM OF INFORMATION COM- MITTEE OF SIGMA DELTA Ciii LI~.B. from Drake University, Des Moines, 1944. Reporter for Des Moines Register and Tribune, 1941-50 (except for wartime duty in Navy) ; Washington bureau since 1950. Recipient of Pulitzer, Raymond Clapper, Heywood Broun, and Sigma Delta Ciii for awards for distinguished Washington and national correspondence. BIOGRAPHICAL DATA OF WALTER B. POTTEn. CIJLPEPER, VA., NATIONAL EDITORIAL ASsoCIATIoN Mr. Potter Is editor, publisher, and owner Of the Culpeper, Va., Star-Exponent, a community daily newspaper, and is publisher and owner of the Emporia, Va., Independent-Messenger, weekly newspaper. Past president, Virginia Press Association; director of National Editorial Asso- ciation and chairman of its legislative committee; director of Virginia State Chamber of Commerce; vice president of Jefferson Savings & Loan Association, Graduate of Washington and Lee University, B.A., magna cum laude, and Phi Beta Kappa. Five years active duty, World War II, and now lieutenant colonel, U.S. Army Reserve, with Bronze Star, Combat Infantry Badge, two invasion arrowheads and five battle stars. Director and first president of Culpeper Industrial Corp. and Cuipeper Develop- ment Corp.; past president, Culpeper Chamber of Commerce; past president, Culpeper Lions Club; past director, Culpeper Retail Merchants Association; member, board of stewards and past chairman, board, Culpeper Methodist Church, past director, Cuipeper Memorial Hospital, and Culpeper Country Club; member, the Moose, Veterans of Foreign Wars, American Legion, Omicron Delta Kappa, Phi Eta Sigma, Sigma Delta Ohi, and Kappa Sigma. Married to the former Miss Alice Katherine Hudson, of New Orleans, they have two sons, Walter, Jr.. 15, and Robert McLean. 12. BIOGRAPHICAL DATA OF LAWRENCE SPEIsisa, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION Members of the bars of the U.S. Supreme Court, the District of Columbia, and the State of California. In addition to his responsibility in keeping abreast of legislation affecting civil liberties, he handles much of the ACLU's legal work in the District of Columbia. Mr. Speiser has specialized in litigation involving the testing of the constitutionality of various laws. and governmental actions in- fringing on civil liberties and civil rights (freedom of speech, press, religion, due process, and equal justice under law). He has argued and won a number of cases PAGENO="0209" FEDERAL PUBLIC RECORDS LAw 201 before the U.S. Supreme Court. Prior to COThing to Wnah~~L ~, he was the staff Counsel of its northern ~ Born in T education at the Uni- versity of C ~e has also attended Brandeis University in ed one of the first Florina Lasker fellow5hi~5 in Civil Mr. Speiser has 5poken before numerous civic grou1 as Well as Ofl radio and teJevisl0~ on civil liberties matters and i extensively for legal Periodicals. also PAGENO="0210" Additional Clarification of Department of Justice on "Executive Privilege" U.S. DEPARTMENT OF JUsTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, Washington, D.C., May 5, 1965. Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: I wish to refer to my letter to you of April 12, 1965, forwarding a copy of the testimony of Assistant Attorney General Schlei of March 30, 1965, on H.R. 5012. There is one portion of Mr. Schlei's testimony which I feel should be amplified. I refer to the second paragraph of page 8 wherein Mr. Schlei stated that executive privilege had never been used during this administration and that it would not be asserted except in situations where the President personally reviewed the matter and authorized its use. Mr. Schlei's reference to executive privilege related solely to inquiries directed by the Congress or its committees to the executive branch. While I think it clear that, when read in context, Mr. Schlei's reference was limited to congressional inquiries, it seemed to me desirable that this point be made explicit. Sincerely, RAMSEY CLARK, Deputy Attorney General. 202 PAGENO="0211" Comments From Departments and Agencies on Federal Public Records Law Legislation LEGISLATIVE BRANCH REPLY FROM GENERAL ACCOUNTING OFFICE COMPTROLLER GENERAL OF THE UNITED STATES, Washington, D.C., March 25, 1965. Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: Reference is made to your letter of February 19, 1965, requesting our comments on H.R. 5012 which proposes to amend section 161 of the Revised Statutes (5 U.S.C. 22) with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. The proposed legislation apparently is designed to permit any person to examine the records of every Federal agency except for those records which fall within the eight categories listed in the proposed subsection (c). The bill also provides that upon complaint of a person denied access to any public record, the appropriate Federal district court shall have jurisdiction to order the production of any agency records or information improperly withheld from the complainant. We are in general agreement with the concept that governmental information and records should be made available at the request of the public to the maximum reasonable extent, under appropriate safeguards. However, we believe the ref- erence to "any person" is too broad. This language would make it mandatory for an agency to open its records to subversives, aliens-~-even enemy aliens, to claim hunters, and to others whose Interests might be adverse to the Government. We think that the individual being given access to Government records should, at least, be citizens of the United States, and demonstrate that their interest in the records is not adverse to the Government's intereSt. We believe, also, that It should be made clear either in the law or its legisla- tive history, that the agency may require in its regulations an identification of documents to be produced; that it may postpone production of documents which are necessary to the Government's current consideration of a matter; that the records are to be made available only for inspection, their custody remaining in the Government agency; and that a reasonable charge may be made for services rendered the public. We have no basis for estimating the additional cost which might result from servicing legislation such as this, but we would expect that a charge for the service might discourage frivolous requests and at the same time conform with the policy of section 501 of the act of August 31, 1951, 65 Stat. 290, 5 U.S.C. 140. In addition to the above general comments, we have some question as to how several of the eight stated exceptions would apply to several categories of files maintained by the General Accounting Office. In this connection the divisions and offices of the General Accounting Office prepare and maintain certain records which we believe should be exempted from public disclosure requirements. These include: 1. Memorandums between or within divisions concerning legal or policy matters, reviews of drafts or audit reports, letters to congressional commit- tees and Members of the Congress, letters to heads of agencies and others, and preliminary drafts of decisions of the Comptroller General. 2. The working files relating to the material contained in the audit and report manuals and the manuals themselves. 3. Personnel and administrative files relating to such things as assign- ments, promotions, and performance of staff members. 4. Audit and investigative working papers. 203 PAGENO="0212" 204 FEDERAL PUBLIC RECORDS LAW While items in the first category usually relate to matters of law and policy, there would be many cases where they would not be solely related to such matters. In addition we do not believe drafts of decisions of the Cbmptroller General should be made available to the public. Accordingly, we recommend that the word "solely" be deleted from the exception set out in subsection (c) (5) of the bill and that the words "and preliminary drafts of decisions" be inserted after the word "letters" in subsection (c) (5). Items in categories 2 and 3 above apparently would be exempt from the provi- sions of the bill by reason of exclusions provided in subsections (c) (5) and (c) (6), respectively, the internal policy instructions for our personnel contained in our audit and report manuals being intra-agency memorandums dealing with policy within subsection (c) (5). We, therefore, make no recommendations in regard thereto. We do believe, however, that the language in subsection (c) (6) "the disclosure of which would cor1~titute a clearly unwarranted invasion of personal privacy" is so indefinite that the legislative intent should be clearly set out in the committee reports. Audit and investigative working papers referred to In category 4 above ap- parently would not be exempt from public examination under the language of the proposed legislation. Audit working papers, while primarily an accumulation of factual information obtained from the records of agencies and contractors, also contain analyses, records of discussions with individuals, person~U opinions of individuals, potential audit leads, all of which may not be confirmed on further examination and thus the disclosure of which may lead to erroneous judgments by uniformed readers or may be harmful to the individuals involved. Moreover, disclosure of informa- tion in audit files may jeopardize the Government's position in situations in which there may be legal actions contemplated or in process. With respect to audits of contractors, our working papers often times will include information that could be eonstrt~ed as trade secrets and commercial or financial information of a privileged or confidential nature. While it would appear that this type of information would be excluded from the coverage of the bill by subsection (c) (4), there is no assurance that the courts would agree. Many files also include identification of informants, the source of allegations made in confidence, and requests for information by the Congress, its committees or its Members, the disclosure of which might be harmful to the informants, or in the case of requests from Congress, its committees, or its Members, the disclosure of such requests may not be desired by the congressional interest. The files also often contain references to individuals and officials of agencies and contractors which may or may not appear in the finally issued report. However, their mere inclusion in working papers and the context in which they appear may be detrimental to the individuals or violate a confidence of an individual if made available to the public at large. Our audit working papers many times will also contain information which is specifically exempted from release to the public by the proposed bill. Screening of the working papers to exclude such information would be impractical and costly. Also, exhaustive screening would not assure the removal of all such information. Under the provisions of 49 U.S.C. 66 payment for transportation services fur- nished the United States is made upon presentation of bills therefor, prior to audit and settlement by the General Accounting Office. The right is reserved, however, to set off any overcharges thus made from any amount subsequently found to be due the carrier; 49 U.S.C. 66 also imposes a 3-year limitation upon setoff action by the General Accounting Office and a like period during which claims may be filed by carriers. Any claim not filed prior to the expiration of the period of limitation is forever barred. During the fiscal year 1964 we audited over 4.8 million Government bills of lading on which over $897 million were paid and on which there was found a total of over $9.8 million in overcharges. Undue interference with the orderly and timely audit of transportation accounts because of the demand of persons wishing to examine vouchers and related records could delay our settlement of transportation accounts beyond the 3-year period, thus depriving the Government of recovery of overcharges. A general requirement that all transportation records be made available for examination by the public could generate large-scale demands by commercial rate auditing organizations, in order that they might develop undercharge claims against the United States, determine the practices and traffic distribution pat- terns of common carriers, or to secure possible future clients from our list of PAGENO="0213" FEDERAL PUBLIC RECORDS LAW 205 carriers indebted to the Government. In this connection, we understand it is the usual practice for such organizations to share any recovery of undereharges on a 50-50 basis. A similar situation could result with respect to the records maintained in our Claims Division in that there could arise a rash of "fishing expeditions" into those files by attorneys and others in search for bases for claims against the Government. These files of settled claims contain much information within the exceptions contained in this bill the separation of which before permitting exam- ination would be a costly and time-consuming operation. However, we are making no recommendation with respect to the exclusion of our transportation and claims records from. the bill except to the extent they are within the general exclusions recommended herein or presently contained in the bill, but wish the committee to be aware of the possible results if the legislation is enacted in, its present form. For the reasons stated above, we recommend strongly that our working papers be excluded from the provisions of this bill. To accomplish this, we propose language along the following lines as an additional exception under section 161(c): Investigatory and/or audit files compiled for the purpose of complying with requests for information by the Congress, its committees, or its Mem- bers or for the purpose of reporting to the Congress on investigations or audits made pursuant to law. The inclusion of an exception of this nature should preclude us from being required to make information available to individuals that would be detrimental to the interests of the Government since, in our opinion, all of the work of the accounting and auditing divisions is, as required by law, basically for the pur- poses of reporting to the Congress, its committees or Its members. We believe that this premise should be brought out in the committee's report on this bill. In addition to the reasons stated above for the exclusion of information fur- nished by informants or otherwise submitted in confidence, it is evident that if such information and its sources are divulged to the public, information from such sources would no longer be available to the Government, Accordingly, we recommend that an additional exception be added to subsection (c) to the effect that disclosure is not required as to information submitted in confidence pur- suant to statute or published rule or regulation or it be made clear in the legis- lative history that such information is of a "privileged or confidential nature" as that term is used in subsection (c) (4). It should also be made clear that sub- sections (c) (3) or (c) (4) include any information the disclosure of which would be a violation of 18 U.S.C. 1905. We would like to point out that a number of files consisting of accountable officers' accounts containing such items as vouchers, contracts, etc., are in the technical custody of the General Accounting Office but actually in the physical possession of the various agencies. We assume that the responsibility of com- plying with the proposed legislation with respect to those files would be the responsibility of the agencies having physical possession of such files and that we could so provide in our regulations under subsection (a). Tn order to assure that the authority of the General Accounting Office or other Federal agencies to examine agency records is not impaired by the exclu- sions set out in subsection (c), we suggest that there be included in section 2 of the bill a provision reading that- Nothing contained in this Act shall be construed as in any way diminish- ing the authority of any Federal agency to examine the records or files of any other agency subject to the provisions of this Act. Your letter of February 19 also requested our comments on H.R. 50~3 through ILR. 5021 and your letters of February 24, 26, and March 2 and 15, 1965, re- quested our comments on HR. 5237, H.R. 5406, H.R. 5520, H.R. 5583, and H.R. 6172. Since the above-mentioned bills are identical with I{.R. 5012 considered above, the comments contained herein are likewise applicable to those bills. Sincerely yours, JosnrH CAMPBELL, Comptroller General of the United States. PAGENO="0214" PAGENO="0215" EXECUTIVE OFFICE OF THE PRESIDENT REPLY FROM BUitEAU o~ `rrn~ BuJxiiiT EXECUTIVE OFFICE OF THE Pniisirnmr, BUREAU OF THE BUDGET, Washington, D.C., March ~3O, 1965. Hon. WILLIAM L. DAWSON, Chairman, Committee on Go'vernment Operations, House of Representatives. DEAR Mn. CHAIRMAN: This letter responds to your request for the views of the Bureau of the Budget with respect to H.R. 5012 and a number of other idèn- tical bills to amend section 161 of the Revised Statutes with respect to the au- thority of Federal officers and agencies to withhold information and limit the availability of records. Under the provisions of HR. 5012 every agency of the Federal Government except Congress and the courts would, in accordance with published rules stat- ing the time, place, and procedure to be followed, be required to make all its records promptly available to any person except to the extent that records re- lating to certain matters are specifically exempted from disclosure under pro- visiOns of the bill. Upon complaint of withholding, a district court would have jurisdiction to compel the production of records, and the burden would be on the agency to sustain Its action. Failure to comply with a court order would be punishable as contempt. The records specifically exempted from disclosure under HR. 5012 would be those matters that are "(1) required by Executive order to keep secret in the interest of national defense or foreign policy; (2) related solely to the in- ternal personnel rules and practices of any agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial Infor- mation obtained from the public and privileged or confidential; (5) interagency or intra-agency memorandums or letters dealing solely with matters of law or policy; (6) personnel and medical files and similar matters the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory flies compiled for law enforcement purposes except to the extent available by law to a private party; and (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions." The Bureau of the Budget i~ committed to the principle of freedon of infor- mation. We believe that an informed public is essential to our democrr~tic system, and we support full disclosure of Government information insofar as such disclosure is consistent with the public interest. We reluctantly conclude, however, that H.R. 5012 does not adequately protect the public interest. Agency reports on the bill cite a variety of instances where disclosure of their records would be required contrary to the public Interest. In its consideration of S. 1666, a similar bill in the last Congress, the Senate committee gave careful consideration to the examples then cited by agencies, and amended the bill in an effort to take account ol! these examples. Agency reports on the current bill, however, now cite other examples, thus showing the difficulty of dealing with this problem through a series of exemptions. Another problem is the rigidity inherent in the elimination of all discretionary authority in the heads of agencies with respect to the time at which information can appropriately be released. We do not see how legislation can be drafted to take account of rapidly changing circumstances-circumstances which deter- mine in many instances the time at which or the conditions under which dis- closure of specific records would or would not be in the public interest. Prema- ture disclosure in many instances would confuse, rather than enlighten, the public. If H.R. 5012 were applicable to the Bureau of the Budget, the major adverse effects which it would have on the Bureau are discussed below: 207 PAGENO="0216" 208 FEDE1~ PUBLIC RECORDS LAW 1. Internal agency working papers are protected from disclosure only if they are "interagency or intra-agency memorandums or letters dealing solely with matters of law or policy." Few, if any, letters or memorandums are solely limited to matters of law or policy, and many working papers which primarily involve policy issues are not prepared in the form of letters or meniorandums. Furthermore it is not ap- parent to us how there could be worthwhile discussion of law or policy unrelated to a specific sot of facts. The effect of the above language would be to require disclosure of mos.t Bureau records, even though they relate only to internal matters of a nonpublic nature~ It would also fail to recognize the confidential relationship between the Bureau and the President which is essential to serving the needs of the Presidency. In summary, this provision does not recognize that free interchange of infor- mation and views among officials and staff of the executive branch is essential and is possible only if purely internal staff documents are protected from routine public scrutiny. 2. All agency records not exempted from disclosure would have to be made promptly available "to any person." The Bureau makes an earnest effort to comply with individual requests for information when compliance is consistent with the broader public interest. We believe, however, that the public's right to effective, orderly, and impartial exe- cution of the laws far outweighs any benefits which might result from having its records open indiscriminately to anyone who requests access, The provision requiring information to be made available to any person fails to recognize this overriding public right. The practical problems involved are made graphic In considering the steps necessary to meet this requirement in a secured building like the Executive Office Building. Either copies of most of the Bureau's records would have to be made available in an unsecured place or the Executive Office Building would have to be opened up "to any person" seeking access to its records. Finally, we believe that the committee must give serious consideration to the question of whether legislation along the lines of H.R. 5012 would not violate the doctrine of separation of powers. In this connection we call your attention to a report of the Department of Justice to the Subcommittee on Administrative Practice and Procedure of the Senate Oommittee on the Judiciary last year with respect to comparable provisions of S. 1663. The Department stated: "The revision [of sec. 3(c) of the Administrative Procedure Act] would appear to violate the doctrine of separation of powers, since it would interfere with the constitutional responsibility of the President to preserve the confidentiality of documents and information tbe disclosure of which would not be in the public interest. Under the revision the `standards governing disclosure would be set by Congress rather than the Pr~sb1~jnt, except that the President would be au- thorized to direct withholding of information `required to be kept secret for the protection of the national security or foreign policy.' Such limitation of the Executive's authority in the area of public information is without `basis in con- stitutional law. "The issue was extensively debated 6 years ago in connection with the act of August 12, 1958, Public Law 85-619, 72 Stat. 547, amending Revised Statute 161, 5 U.S.C. section 22, the so-called housekeeping statute. On that oecasion the Senate recognized the power of the President under the Constitution to with- hold information on `the ground that its disclosure would be contrary to the public interest and that this authority rested on the constitutional principle of separation of powers." For reasons set forth above the Bureau of the Budget strongly recommends against enactment of H,R. 5012, Sincerely yours, PRILLIP S. HUGHES, A.i.~istant Director for Legislative Reference. PAGENO="0217" EXECUTIVE DEPARTMENTS REPLY FRoM DEPARTMENT OF AGRICULTURE DEPARTMENT OF AGRICULTURE, Washington, DXI., March 19, 1965. Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, House of Representatives DEAR Mn. CHAIRMAN: This is in reply to your request of February 19, 1985, for a report on HR. 5012 through 5021, identical bills to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. Your letters of February 24, 26, and March 2, 1965, request reports on bills, HR. 5237, HR. 5406, H.R 5520, and H.R. 5583, ureasures which are also identical to HR. 5012 through 5021. The Department recommends that these bills be not passed. Subsection (a) of the proposed amendment of section 161 of the Revised Statutes deletes from the existing section 161 the sentence which provides that: "This section does not authorize withholding information from the public or limiting the availability of records to the public." Subsection (b) of the proposed amendment provides that every agency shall, in accordance with published rules stating the time, place, and procedure to be followed, make all its records promptly available to any porson. The subsection also confers on the US. district court "in which the complainant resides, or has his principal place of business, or in which the agency records that the complainant seeks are situated" jurisdiction to enjoin the agency from the withholding of agency records and information and to compel production "of agency records or information improperly withheld." En such cases the court shall determine the matter de novo and the burden of proof to sustain its action is placed on the agency. In the event of noncompliance with the court's order, the court may punish the responsible officers for contempt. Proceedings before the district court authorized by subsection (b) are given precedence on the docket over all other causes except those which the court deems of greater importance. The term "agency" is defined to mean "each authority (whether or not within or subject to review by another agency) of the Govern- ment of the United States other than Congress or the courts." Subsection (c) of the proposed amendment provides that the section does not authorize withholding information from the public or limiting the availability of records to the public except with respect to those matters which are set forth in eight specific categories as follows: (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 any agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and com- mercial or financial information obtained from the public and privileged or con- fidential: (5) inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy; (6) personnel and medical files and similar matters 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 private party; and (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of. or for the use of any agency responsible for the regulation or supervision of financial institutions. We believe the eight grounds for withholding information raise a number of questions of interpretation and in general may be too restrictive, with the result that agency information, records, and determinations may be required to be made available to persons which should be withheld in the public interest. We are not aware of any abuse of the "good cause to be held confidential" test in the Adminis- trative Procedure Act which suggests the need for the more restrictive exceptions now proposed. 209 PAGENO="0218" 210 FEDERAL PUELIC RECORDS LAW The proposed broadening of availability of agency records to "any person" would, in our judgment, go too far in the direction of opening up Government files for general inspection. The Department has a policy of making its official records available to the public to the maximum extent possible. The major exceptions are instances where, by direction of the President, the Congress, or other authorities, the Department is required to withhold information from the public. These cases fall essentially within the eight specific categories in the proposed subsection (c). There are, however, certain additional categories of records, all set forth In departmental regulations (see 7 OFE 1.4), which the Department has determined must be made available in a manner that will protect the public welfare as well as avoid giving undue advantage to any person or to the representatives of special interests. As we construe the proposed sub- section (c), these regulations of the Department would be inconsistent there- with. There is a serious question whether legislation which would attempt to deny to the Executive branch the right by appropriate published rule to keep certain information confidential in the public interest would not invade the executive power of the President under the Constitution and the separation of powers provided therein. Aside from this question, however, it seems that purely as a matter of good business management and efficiency, it would be undesirable to require, for example, everything reduced to writing other than those memo- randa or letters "dealing solely wih matters of law or policy" by every agency official to be made available to any person presently or anytime in the future. Such persons would, of course, include private counsel, Government contractors, speculators, the press, or anyone else. One result would be a serious interference with internal exchanges because officials could well become reluctant to reduce many matters to writing. Moreover, much of the Department's research data are voluntarily supplied to the Department on the basis of our assurance that it will not be disclosed except as part of summary tables and figures. Inability to make such a commitment would result in drying up our sources of information and would cause inestimable harm to research programs which are based on confidence built over many years. The Department receives many Informal complaints in regulatory matters on a confidential basis, and reports of possible fraud or other violations of law from individuals who desire their identity to be protected. In addition, frequently interested members of the public furnish information in confidence to the Department which is of aid to the Department in more effectively carrying out the objectives of Department programs. Such information is, of course, not used as a basis for any determination which may adversely affect an indi- vidual under our programs. However, it does indicate areas needing investiga- tion to determine facts upon which informed judgments and determinations can be made. General knowledge that the Department could not keep this information confidential would tend to eliminate an important source of informa- tion necessary to carrying out the Department's responsibilities under the law. The Department undertakes programs of broad economic impact with respect to which care must be taken in the timely release of information to the public. Access to the records, as this proposed bill would permit, would result in advance "leaks," before timely public release should be made. In addition, this Depart~ ment's activities include Investigations which may be undertaken for other than strict law enforcement purposes the results of which should be held confidential in the public interest. Furthermore, many matters relating to examination, operating or condition reports are prepared by, on behalf of, or for the use of a number of Department agencies such as the Rural Electrification Admin- istration and the Farmers Home Administration which, although not relating to the regulation or supervision of financial instittuions, require secrecy in the public interest. Section 2 of the bill provides for the repeal of all laws or parts of laws in- consistent with the amendments made by the first section of the bill. This lan- guage would create confualon and place in doubt the continued effectiveness of section 3 of the Administrative Procedure Act (5 U.S.C. 1002), which excepts from the publication requirements of that act "(1) any function of the United States requiring secrecy in the public Interest of (2) any matter relating solely to the internal management of an agency." For example, the exception in sub- section (c) of the bill numbered (1) is limited to matters involving functions of the United States requiring secrecy to protect the "national defense or foreign policy" and the matters must be specifically exempted from disclosure by Execu- PAGENO="0219" FEDERAL PUBLIC RECORDS LAW 211 tive order. A great deal of material which may require secrecy in the public in- terest but which does not relate to the national defense or foreign policy unless specifically exempted from disclosure by statute, might become subject to being made available as a result of section 2 of the bill; e.g., matters relating to domes- tic affairs that require secrecy at least for specific periods to avoid harm to the public interest generally. The extent to which matters "relating solely to the internal management of an agency" could be withheld would also be open to serious question. For the foregoing reasons, it is our opinion that the public information re- quirement must preserve to the agencies, or at least to this Department, discre- tion to withhold from random public inspection that which the public interest requires to be withheld, including information relative to international operations. The Bureau of the Budget advises that there is no objection to the presenta- tion of this report from the standpoint of the administration's program. Sincerely yours, OVEILLE L. FREEMAN. REPLY FROM DEPARTMENT OF COMMERCE GENERAL COUNSEL OF TIlE DEPARTMENT OF COMMERCE, Washington, D.C., March 30, 1965. Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, house of Representatives. DEAR Mn. CHAIRMAN: This is in reply to your request for the views of this Department concerning H.R. 5012 and a number of identical bills to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. These bills would amend section 161 of the Revised Statutes (5 U.S.C. 22) by adding two new subsections. New subsection (b) would require every agency in the executive branch, in accordance with published rules stating the time, place, and procedure t~ be followed, to make all its records promptly available to any person unless specifically excepted by new subsection (c). It further provides that the U.S. district courts may enjoin an agency from the withhold- ing of agency records and information and order the production of any agency records and information improperly withheld from a complainant. In such cases the court would determine the matter do novo and the burden would be upon the agency to sustain its action. Subsection (c) does authorize withholding of records and information on the following eight grounds: Specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy; internal per- sonnel rules and agency practices; specifically exempted from disclosure by statute; trade secrets and commercial or financial information obtained from the public and privileged or confidential; interagency or intraagency memo- randums or letters dealing solely with matters of law or policy; personnel and medical files and similar matters, the disclosure of which would clearly con- stitute invasion of privacy; investigatory files compiled for law enforcement purposes; and examination, operating, or condition reports used by agencies responsible for the regulation or supervision of financial institutions. We are in accord with the view that Information in Government agencies should be made available to the public, but only to the extent that making infor- mation available will not unduly disrupt the operation of Government, result in damage to innocent members of the public, or otherwise result in more harm than good. It is our view that HR. 5012 insufficiently safeguards these interests and we are therefore unable to recommend enactment of this legislation. Sections 1(c) and 2 of the bill would in effect repeal sections 3(b) and 3(c) of the Administrative Procedure Act (5 U.S.C. 1002 (b) and (c)) relating to availability of final opinions, orders, and other official records. Section 3(c) provides that save as otherwise required by statute, matters of official record shall be made available to "persons properly and directly concerned except In- formation held confidential for good cause found." The determination at present of what persons are properly and directly concerned and what agency records are confidential for good cause found are left to agency discretion. H.R. 5012 would remove these matters from agency discretion. We seriously question the desirability of removing this discretion from agencies and requiring them PAGENO="0220" 212 FEDERAL PUBLIC RECORDS LAW as proposed in HR. 5012 to make all their records availal?le to anyone upon demand except within the framework of the exceptions in subsection (c) thereof. We think it would be disruptive to the conduct of the Government's business, particularly in view of the provision for private suit in district courts, to com- pel production of records in which the agency concerned would have the burden of sustaining its action and the responsible officers thereof be punished for con- temp in event of noncompliance of the court's order. We believe a judgment on the merits of H.R. 5012 must involve a thoughtful balancing between the bill's objective on the one band, and on the other the public interest in efi~cient and effective management of the Government's business. H.R. 5012 presents a number of problems with respect to specific activities of this Department. 1. We assume that the exception in subsection (c) (3) for items "specifically exempted from disclosure by statute" is intended to preserve the protection now accorded information obtained in confidence from members of the public under such provisions as section 6 of the Export Control Act, section 705 of the Defense Production Act, 15 U.S.C. 176a and other similar statutory provi- sions. We urge that the legislative history be made clear on this point. It is not clear what the relationship of section 2 of the bill is to 18 U.S.C. 1905, a penal statute which prohibits the unauthoiized disclosure of any information relating to trade secrets, confidential business data and the like which have been received by any Federal employee in the course of his official duties. 2. The requirement that records be made promptly available to any person ignores such fundamental questions as the need to know, citizenship, and age of the individual. It would leave the agency defenseless against unnecessary and unreasonable demands. Also, no provision is ulade to recover costs of fur- nishing the records, which could be very large, as, for example, in cases where ex- tensive reference to old, archived records. were sought. 3. In the Area Redevelopment Administration certain confidential informa- tion is obtained from applicants as part of an application for financial assist- ance. These records are considered confidential because they contain financial data and individual trade information. Section 18(b) of the Area Redevelop- ment Act prohibits disclosure of unauthorized information concerning any future action or plan of the Secretary which might affect the value of securi- ties and section 20 provides that the Secretary shall maintain and make avail- able certain specific information about applications as soon as they are approved. It is not clear whether the exception in subsection (c) (4) relating to "trade secrets and commercial or financial information obtained from the public and privileged or confidential" would exempt the records of loan and grant agencies from public disclosure, especially where the enabling legislation of such agencies clearly spells out what information is to be made public, as is the case with the Area Redevelopment Administration. At the very least internal evaluations of applications for loans and grants should be clearly exempt from public disclosure. 4. The relationship between the proposed section 161(c) (3) and section 2 of the bill is ambiguous. For example, section 2 of the bill might be interpreted to repeal 35 U.S.C. 122, which presently preserves the confidential status of patent applications. Even if 35 U.S.C. 122 is not repealed, proposed section 161(c) (3) may not protect patent applications. It can reasonably be argued that patent applications are not "specifically exempted from disclosure by statute," be- cause 35 U.S.C. 122 allows disclosure of such applications under certain cir- cumatanes and thus does not fully exempt them from disclosure. Furthermore, 35 U.S.C. 122 allows disclosure of patent applications when "necessary to carry out the provisions of any act of Congress" and HR. 5012, if enacted, can be in- terpreted tobe just such an act. Enactment of H.R. 5012 may well result in a flood of litigation against the Patent Office by persons seeking to gain the use of inventions not yet protected by patent. The outcome of such litigation cannot be predicted because of these problems outlined. 5. The Patent Office, pursuant to 35 U.S.C. 31, 32 investigates the character and reputation of attorneys and agents desiring to practice before it, It appears that H.R. 5012 would not maintain the present secrecy of the Patent Office files on its attorneys and agents, who are not Patent Office employees. If such files were to be opened to the public, it would become very difficult for the Patent Office to obtain the information it needs to effect the mandate of 35 U.S.C. 31 6. We would oppose placing the burden upon the agency to sustain its action In withholding information. In order to sustain its burden in showing that PAGENO="0221" F1~JDERAL PUBLIC RECORDS LAW 213 its records contain matter exempt from disclosure under this bill, an agency would have to prove the contents of such records and thereby negate the intended protection of such records 7. We raise the question as to whether an amendment to section 101 of the Revised Statute is the most appropriate method of accomplishing the purposes of HR. 5012. It would appear more appropriate if legislation is enacted to amend section 3(c) of the Administrative Procedure Act. Jn this connection it is noted that during the 88th Congress bills (S. 1666 and S. 1663) containing provisions somewhat analogous to H.R. 5012 did provide for amendment to the Administrative Procedure Act. In view of the above and for the reasons set forth in the attached comments from the Department's Patent Office, Maritime Administration, Bureau of Public Roads, and the Assistant Secretary for Administration, this Department recom- mends against the enactment of HR. 5012. We have been advised by the Bureau of the Budget that there would be no objection to the submission of our report from the standpoint of the adminis- tration's program. Sincerely, Ro1ms~RT B. GILE5. PATENT OFFIcE COMMENTS ON H.R. 5012 There are listed below those instances when materials In the possession of the Patent Office are kept confidential. Those instances which are justified on the bases of statute and executive order are listed separately from those instances justified on other bases. Presumably, those instances relying on statute or Executive order would be treated under H.R. 5012 as exceptions under (c) (1) or (c) (3) although the express repealer of section 2 of the bill creates an ambiguity with respect to laws relied upon as providing an exception. There is presented a much more serious question as to whether the other listed instances, not relying on statute or Executive order, would be exempted from the coverage of the bill. As indicated, in connection with each item, there appears satisfactory and reasonable bases for treating this material in a confidential manner with safeguards against abuse. Examination of these items raises questions concerning the appropriateness of a categorical directive such as would be provided by the bill, which does not allow that distinction and choice of administrative action which appears to be so necessary and proper. I. INFORMATION RESTRICTED BY LAW OR EXECUTIVE ORDER A. Applications for patents are directed by law to be kept in confidence by the Patent Office (35 U.S.C. 122). Some discretion is allowed to be exercised in this matter by the Commissioner of Patents "in, such special circumstances as may be determined by" him. The Commissioner is circumspect in the exer- cise of this authority because of danger that property rights in patents may be jeopardized by disclosure. Other exceptions expressly provided by the statute are the disclosure under authority of the applicant or owner, and disclosure necessary to carry out the provisions of any act of Congress. B. When publication or disclosure by the grant of a patent on an invention might, in the opinion of the head of designated agencies, be detrimental to the national security, it is ordered to be kept secret and violation of such an order is punishable by fine or imprisonment or both. The owner of a patent application may appeal such an order to the Secretary of Commerce (title 35 of the United States Code, ch. 17, sec. 181-188). C. If agreements in connection with or in contemplation of the termination of a patent interference are riot filed with the Patent Office, the agreements and patents involved are not enforceable. If any party filing such an agreement so requests, the agreement shall be kept separate, from the file of the interference, and made available only to Government agencies on written request, or to any person on a showing of good cause. Occasion for the exercise of this discretion on the part of the Commissioner has not as yet arisen. Exercise of this dis- cretion would be reviewable by the courts. The statute was recently enacted (Oct. 15. iftt;2: Public Law 87-~3i : 35 U.S.C. 135). I). Executive Order 0421 of February 18, 1044 (3 CFR 1943-48 Comp.) provides for the establishment of a register for the recording of all licenses, assignments or other interests of the Government in or under patents or patent applications. PAGENO="0222" 214 FEDERAL PUBLIC RECORDS LAW In accordance with that order and regulations of the C~nnmissioner (37 CFR 7.1-7.7), this register is not open to public inspection. It is available for ex- amination and inspection by duly authorized representatives of the Govern- ment; an exception is made as to those instruments which the department or agency of origin has authorized in writing as available for public examination. In the latter event, the instrument Is made available generally. II. INFORMATION PRESENTLY RESTRICTED FOR OTHER REASONS A. The Secretary of Commerce by Executive Order 10930 was assigned re~ sponsibility for carrying out the functions set forth in Executive Order 100943 as they relate to the overseeing of agency determinations of the rights of the Government and its employees to the property in inventions made by Federal employees. These functions are to be performed by the Commissioner of Patents pursuant to a delegation of authority by the Secretary (Mar. 24, 1961, 26 P.R. 3118). In the course of these determinations, it may be necessary for the employee- inventor and/or the employing agency to disclose in some detail the subject matter and circumstances of the discovery. This same information is or may become the substantive material in a patent application before the Patent Office (see 87 CFR 300.7) which is to be held in confidence (35 U.S.C. 122, and see item I. A. above). For the reasons that provide the basis for the direction of 35 U.S.C. 122 re- lating to confidentiality of patent applications, the same information contained in the documents used in the determinations under Executive Order 10096 should be maintained confidential subject always to the conclusive discretion of the Federal Government and the employee-inventor acting jointly until such time as the right to the property in the discovery is resolved. The program established by Executive Order 10096 for determination of rights to the property in an invention is not based on a specific statute directed to this end and neither the order nor a statute provides specifk~ally for restricting access to such documents. The documents providing details concerning the dis- covery of an employee-inventor should, in our opinion, be kept confidential until a patent issues or is refused on the subject matter of the determination. Consistent with the treatment accorded patent applications, such documents have been kept confidential. B. Section 31 of title 35 of the United States Code authorizes the Commissioner of Patents to prescribe regulations governing the recognition and. conduct of agents, attorneys, or other persons representing applicants before the Patent Office, and to require them to show that they are of good moral character and reputation. Papers received by the Commissioner in his efforts to carry out this function are held confidential to assure the availability of information and to protect a candidate for recognition to practice against unwarranted Invasion of his privacy. These attorneys and agents are not "personnel" of the Office so as to come within the exceptions provided by subsections (c) (2) and (c) (6). C. In the exercise of his authority to inquire into the qualifications of attorneys and agents to enable them to render valuable service, advice, and assistance (35 U.S.C. 31), in the presentation or prosecution of applications for patents, the Commissioner gives examinations to test these qualifications. By regulation, review of a determination by the Commissioner based on such an examination Is available by petition to the Commissioner (37 CFR 1.341 (i)). By provisions of section 32 of title 35 of the United States Code, a person "so refused recogni- tion" because of his failure to attain a passing mark may have recourse to the US. District Court for the District of Columbia to determine if the Commissioner had a reasonable basis for his determination. (See Local Civil Rule 95.) Pend- ing such an action before the court, the test papers are preserved in secrecy, a practice accepted by the court (Guppies v. Marzaii, Uomr. Pats., Jan. 9, 1952; 92 USPQ 169, 171). A contrary practice would be disruptive of the orderly operation of the Patent Office. These attorneys and agents are not "personnel" of the Office so as to come within the exceptions provided by subsections (c) (2) and (c)(6). D. In the exercise of his authority to suspend or exclude, either generally or in a particular case, from practice before the Patent Office any agent or attorney shown to be incompetent, or guilty of improper conduct (35 U.S.C. 32, and see further 37 CFR 1.348), the Commissioner receives complaints concerning alleged misconduct of agents and attorneys and makes Inquiries and Investiga- PAGENO="0223" FEDERAL PUBLIC RECORDS LAW 215 tions of such complaints. These complaints may involve unsupportable allega- tions. Responses to inquiries may be given In conf1dence~ All actiofls attendant upon such an investigation should, in our opiniOn, be kept confidential, certainly during the development stage. in the event of an appeal from the Oommissioner's final decision, which is made with the procedural safeguards of the Administra- tive Procedure Act (37 CFR L348), the court action involves additional consider- ations. These attorneys and agents are not "personnel" of the Office so as to come within the exceptions provided by subsection (c) (2) and (c) (6). E. The Conuaissioner in his discharge of his general responsibility for the issuance of patents and the registration of trademarks and for the conduct of proceedings before the Patent Office (35 U.S.C. 6) has directed that complaints against examiners and other employees of the Offi~e be communicated separately from papers relating to other business before the Office (37 OFR 1.3). To assure orderly disposition of such complaints, and as a safeguard against the dissemination of unwarranted allegations, the present practice of maintaining such complaints and papers involved in the investigations of such complaints confidential should be continued. F. Patent applications are ordinarily acted on by the Office in the order in which they are filed or amended. Under certain circumstances the examina- tion of an application is advanced (37 CFR 102). One such exception involves a petition of a prospective manufacturer who, if the patent issues, plans to use or make the patented item. Certain business information such as how much money has been, expended in the manufacture of the device, the number of the devices manufactured, and the extent to which manufacture has affected the employment of labor is provided the Office as a justification for the request for special treatment. It is the practice of the Patent Office to preserve the confidential s'tatns of such information. Despite the statutory confidentiality of pending applica- tions (35 U.S.C. 122), such information is not made of record in the case look- ing to the time when the patent may issue and the file become available for public examination. G. Pending applications for trademark registrations are promptly indexed with all the important information Including a reproduction of the mark, date of use and use in commerce, date of filing and class of goods on which used. This index is available to the public as promptly as it can be assembled, about 3 to 4 weekS after receipt of the application. The entire application is available upon publication of the mark for opposi- tion. Prior to such publication, which normally is made 5 or 6 months after receipt, the application is made available to examination upon written request (37 CFR 2.27). This latter `technique is used as a matter of administrative convenience to minimize disruption of the files. These essential Information Is available In the index. We believe the public right to know is satisfied by the index and the avail- ability of the application upon written request prior to publication and the continuation of the requirement of a written request during this period is needed in the interest of orderliness. MARITIME ADMINISTRATION COi~tMENTS ON H.R. 5012 For the following reasons we recommend against favorable consideration of the bill. H.R. 5012 sets the limits' of disclosure for beyond those necessary `to realize a practical balance between the confidentiality of Government records and freedom of information to the public'. H.R. 5012 is also subject to other specific objections. Under the bill, the first step in resolving any dispute is to file a complaint in a Federal district court. No provision is made for an intermediate step or agency determination with the result that every close question will be brought immediately to the district court. In fact most denials of information would probably result in a lawsuit. This would add to the already crowded dockets and might embroil every agency in a deluge of litigation. Enhancing the probability of litigation are the numerous ambiguous terms set out in the statute such as "memorandums or letters" contained in exemption No. 5. It is impossible to delineate with any accuracy the scope of such words. Do they include maps' or plans? Are work papers or Informal notes, within the exception? PAGENO="0224" 216 FEDERAL PUBLIC RECORDS LAW The use of the word "solely" in exceptions 2 and 5 for all practical purposes emasculates the two exceptions. These exemptions presently provide that exempted documents are those ~ * * related solely to the internal personnel rules and practices of any agency * * ~" and any "~ * * interagency or intra~ agency memorandums or letter dealing solely with matters of law or policy * * Since most documents would not meet such absolute standards, the exemptions would be virtually nonexistent. It would be better to insert in lieu of "solely" the words "insofar as" or their equivalent permitting partial disclosure of documents of a mixed nature. Lastly, it should also be noted that H.R. 5012 presently amends 5 U.S.C. 22. Since HR. 5012 deals with the same subject matter as section 3 of the Adminis- trative Procedure Act of June 11, 1946 (60 Stat. 238), questions will arise as to what extent ll.R. 5012 amend section 3. Since the obvious intent of H.R. 5012 is to change the existing law embodied in the Administrative Procedure Act, it is suggested that the changes if approved specifically amend section 3 rather than 5 U.S.C. 22. While we desire to insure the free flow of information between the Government and the public, H,R. 5012 as it is presently written contains many drawbacks and we, therefore, recommend against favorable consideration. BUREAU OF PUBLIC RoADs COMMENTS ON H.R. 5012 This bill would add two new subsections, (b) and (c), to section 22 of title 5, United States Code. These subsections would require every Federal agency to make all of its records promptly available to any person under rules of procedure which it shall make. The Federal district courts would have jurisdiction to enjoin the withholding of agency records, with the burden of proof upon the Federal agency to justify its withholding, and contempt procedures for non- complying Federal officers. Eight categories of exceptions to this requirement of availability are made; however, because of the indefiniteness of these cate- gories it is impossible to tell exactly which of this Bureau's records would be covered by the bilL H.R. 5012 does not require the party seeking information from a Government agency to specify with any particularity what information is sought. This, taken together with a lack of a requirement of bonn fides in the person seeking inspection of records, would invite fishing expeditions and harassment without a corresponding public benefit. Even in the case where a person was seeking particular information in good faith, the exceptions governing records which need not be disclosed are sufficiently vague to be productive of a vast volume of litigation. We are not able to ascertain, for example, whether appraisals and other materials related to real property acquisition and In the ~ms~ssdy of Public Roads would be required to be disclosed to the public. Because of the sweeping and indefinite nature of this propasal, the Bureau of Public Roads recommends against its enactment. ASSISTANT SECRETARY FOR ADMINIsTRATIoN COMMENTS ON hR. 5012 Insofar as the bill would be applicable to the Department of Commerce, and particularly to the activities under my supervision, it is my view that the bill is unsatisfactory, and I therefore recommend against its enactment in its present form. My reasons may be summarized as follows: 1. The enumeration of specific classes of information In the proposed section 161 (c) of the Revised Statutes i~ not sufficiently inclusive of the types of infor- mation for which the need for an exemption can be anticipated at this time. For example, (a) Item (6) should be broadened to read as follows: "(6) personnel, medical, seov~rity, a~ut investigative files and similar matters the disclosure of which would constitute a clearly unwarranted invasion of personal privacy ;" (new language italicized). (b) A new item (9) should be added to read substantially as follows: "(9) All budget estimates and supporting materials submitted to the Bureau of the Budget, and decisions of the President as to his budget recommendations and estimates until they are made public by the President." (See Bureau of the Budget Circular No. A-10 (revised), dated January 18, 194E4. 2. The enumeration of specific classes of information in the proposed section 161 (c) is not sufficiently comprehensive or flexible to provide appropriately for PAGENO="0225" FEDERAL PUBLIC RECORDS LAW types of information nondisclosure of which would be warranted in the public interest but the nature of which cannot now be foreseen. Notwithstanding every reasonable effort at this time to anticipate all types of information for which exemption from the statutory requirement would be justified, it is possible-and even probable-that some types of information may arise in the future which are outside the scope of the specific classes which it is possible to enumerate at this time in the statute. While we do not recommend that the public officials be authorized to Did info aiatiou except for most compelling reasons we thank the statute s REPLY FROM DEPARTMENT OF DEFENSE GENERAL CoUNsEL OF THE DEP~RTMENT OF DEFENSE, Washington, D.C1,, Mare/i, 30, 1965. Hon. WIlLIAM L. DAWSON, Chairman, Coinimittee on Government Operations, House of Representatives. Dn&n MR. CHAIRMAN: This is in response to your reciuest for `the views of the Department of Defense on H.R. 5012 and identical bills, to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limIt the availability of records. rrhe following comments addressed to H.R. 5012 apply equally to the 14 identical bills on which the views of the Department were requested. The provision's of section 2 of the bill by which all laws or parts of laws inconsiStent with section 1 are repealed has the effect of amending sectIon 3(c) of `the Administrative Procedure Act (5 U.S.C. 1002). Thus, H.R. 5012 is similar to S. 1666 of the 88th Congress and S. 1160 of the 89th Congress to the extent that they explicitly sought or seek to amend section 3(c) of the Administrative Procedure Act. It is also similar with regard to Its effect on the protection of public records to the proposed revision of section ~ of the Administrative Pro- cedure Act contained in S. 1663 of `the 88th Congress. Under the current provisions of section 3 of the Administrative Procedure Act, official records are made available in accordance with published rules to all persons properly and directly concerned, unless restricted by statutory provision or unless held confidential for good cause found. In addition, official records need not be made available if `they involve "(1) any function of the United States requiring `secrecy in the public interest or (2) any matter relating solely to the internal management of an agency." H.R. 5012 has the apparent purpose of denying to Defense officials, along with the officials of all other agencies~ a great deal of the diserdtion which they may exercise under the existing provisions of the Administrative Procedure Act and of limiting them in withholding official records to `the eight exceptions set forth in section 1(c) of the bill. Moreover, section 1(b) apparently permits any per- son, whether properly or directly concerned or not, to seek in atly district court of the United States an affirmative injunction against the agency which would be required to produce its records for the complainant's examination and use, unless the record or information involved fall's clearly within `one of the eight exceptions listed in section 1(c). In such `a ease, which would be determined de novo by the court, the burden would be upon `the agency to sustain its refusal to produce the record or information. Failure to produce a record or information at the direc'tion of the court is made an explicit basis for contempt proceedings againSt `the responsible officer of the ageiicy involved. In general, the Department of Defense is opposed to the whole concept of limiting, by the 1ogi~1ative imposition of specific categories of privileged informa- `tion, the discretion of Defense officials to provide appropriate protection for the `~"~ "~`~" records whioli 5re in their custody nnd for which they nrc 217 43-2l3-65-Dt. 1-15 PAGENO="0226" 218 responsible. i/ui. of J lion le c( were set forth in the comments on section 3 of S. 1 fly- ing the letter of August 10, 19C4, from the AssiStant Attorney General, C of Legal Counsel, Norbert A. Schlei, to the chairman of the Subcommittee on Ad- ministrative Practice and Procedure, Committee on the Judiciary, U.S. Senate. The opinion states that such legislation has the effect of violating the basic principle of `separation of powers by taterfering with the constitutional responsi- bility of the President to protect from public disclosure in the public interest records whose protection is essential to the performance of his constitutional responsibilities. As a further general comment we question the wisdom of the provision of H.R. 5012 by which all other statutes that are inconsistent wfth section 1 of H.R. 5012 would be repealed, presumably including sectIon 3 of the Administra- tive Procedure Act. If section 3 of. the Administrative Procedure Act is to be amended, this should be accomplished `by changing its language wIth full regard for the effect of these changes on all other provisions of that aCt. E.R. 5012 has the unhappy result of making it the responsibility of `the executive and judicial branches to determine where inconsiStency may exist. That this would be a confusing responsibility is clearly revealed by section 1(c) (3) of ER. 5012 which exempts from the general limitation on using this section to authorize withholding of information from the public `those matters which are "specifically exemr~ted from disclosure by statute." It could be argued, for example, that section 3 of the Administrative Procedure Act specifically exempts those "matters of official record * * * held confidential for good cause found" as well as those matters involving "(1) any function of `the United States requiring secrecy in the public Interest or (2) any matter relating solely to the internal management of an agency." The question thus becomes how specific must a "specific exemp- tion" be under `section 1(c) (3) of H.R. 5012 to come within its terpis. This circuitous result could be avoided by a more direct approach at amending spe- cifically any existing statutes that have proved objeCtionable. Finally, by way of general observation, we note that H.R. 5012 seems to suffer from a difficulty that is similar to' that found In other bills dealing with the same subject; namely, the intended distinction, If any, between record and information. The fundamental legislative inutrudtion in ll.R. 5012 is an affirma- tive requirement in section 1(b) that every agency "make all its records promptly available to any person" [emphasis `supplied]; yet in the second sentence of the same subsedtion dis'tridt courts of the United States are given jurisdiction to enjoin `the agency from withholding "agency records and information and to order th~ production of any agency record or information improperly withheld from the complainant" [emphasis supplied]. This inconsistency provides a basis for concluding that there could be no improper withholding of information under the statute, since the only obligation of the agency is `to make it~ records avail- able to any person. If `there is no such obligation, an agency needs no specific authority to withhold information from `the public and the exceptions of sub- section (c) need apply only to records. Thus, subsection (c) of section 3 of the Administrative Procedure Act (5 U.S.C. 1002) govern's the avalla'bllity of "public records." The Attorney Gen- eral's Manual on the Administraitive Procedure Act (1947), p'age 25, concludes that internal memorandums are not considered "official records." Similarly, section 1(c) (5) of H.R. 50Ct2 provides an exception to the availabilIty require- FEDERAL PUBLIC RECORDS LAW ton is made w'~ depend on the 4/' ectionable by the fact that such rencé `~ courts in the Defense PAGENO="0227" FEDERAL PUBLIC 1~ECOEDS LAW 219 ments ~or some kinds of interagency or lntra-agency memorandums. Therefore, there are inconsistencies between the terms of the bill and srubsection 3(e) of the Adrnini~trative Procedure Act and a further ii~ternaI ineons~steney withiii the hill, in that eourbs are given authority to require production of infOrnUl4iOfl/ Presumably ineluding internal memorandums, whereas internal memorandums are exemi~t from produdtion under ~e~tion 1 (c) (5) of the bill and under section 3(c) of the existing Administrative Procedure Act, arid the obligation to "make available" extends only to records' under section 1(b) of the bill. As indicated, in the foregoing general comments subsection (b) is objectionable to this department because it would require Defense officials to carry the burden of justifying the withholding of Information or records and to suffer the punish- ment for contempt in the event of noncompliance with a court order. This pro- vision of the proposed law ignores the fact that the ultimate responsibility for the conduct of the executive branch rests with the President. The employees of the executive branch work for the President and should not be subject to con- tempt of court when performing an official act in accordance with directives of an agency head. Certainly it is not conducive to good government to have a statute that purports to place a subordinate in the position of being in contempt of court in the performance of an official act; nor, as an alternative, furnishing documents in direct violation of an order of the agency head. If, in fact, subsection (b) is intended to provide a contempt penalty for a subordinate who withhold's information at the direction of the President or a department head, the subsection is of questionable legal validity. In this con- nection see In re Timbers (226 Fed. 2d 301 (1955)), and cases therein cited. Subsection (c), in `setting forth `specific exceptions for the general requirement that all records and information must `be made available on request to any person, no matter how trivial or sinister his purpose, raises a host of unre- solvable issues and problems. Section 1(c) (1) authorizes withholding of information or records only if "specifically required by Executive order [italic snpplied3." Employment of this exception, therefore, apparently requires a presidential decision in the form of an order that can be cited and interpreted by a subordinate. Whether an official forced to defend himself in a court action brought `under section 1(b) need only cite the E~xecutive order in justifying his decision to withhold or whether the order itself must be `sustained is not determinable from `the language. The phrase "by Executive order" seems to prevent delegation, and the word "specifically" invites claims of invalidity if any attempt to withhold information or records by category is made. The impossible burden that would be placed on the President if he were required to make individual judgments in the case of every document that is to be treated as privileged Is apparent. Although the second exception for "Internal personnel rules and practices of any agency" is desirable as far as it goes, it makes no provision for the many other kinds of internal rules and practices equally deserving of protection and of no legitimate interest outside the agency. Moreover, it raises a question concerning the status `of matters which cannot satisfy the requirement of relating "solely" to personnel rules and practices `but involving other matters as well. It appears `to be the intent of the provision to give no protection to those portions of records which relate to internal rules and practices of an agency when they are mixed with other information. An example of the kind of internal manage- ment rule that would receive no protection under section 1(c) (2) of H.R. 5012 is found in DOD Directive 4105.46 which prescribes the permissible price latitudes for DOD negotiators in cost-plus-fixed-fee contract negotiations'. The undesira- bility of making such information generally available is obvious, but HR. 5012 provides no basis for not doing so. If we assume that section 2 h'as no't repealed `all `statutes which specifically exempt information or record's from disclosure, then the exception provided in section 1(c) (3) is reasonably clear. Since section 2 repeals only those statutes or parts of statutes that are inconsistent with section 1, It could reasonably be concluded that statutes which specifically exempt from disclosure certain kinds of information are compatible with section 1. The exception in section 1(c) (4) for "trade secrets and commerci'al or financial information obtained from the public and privileged or confidential" is difficult to interpret. cRequiring that trade `secrets and commercial or financial Informa- tion obtained from the public be privileged or confidential before `they are entitled to protection begs the question of how that kind of Information achieves the status of privilege or confidentiality, if not by this subsection. Should the intent PAGENO="0228" ~aren ied ny m morandum the effect of either deny! .~i to n~. protected or promoting memorandums factual ~ randums cross-referenced to ~ ~ or legal menu ~ same subject. The extra administrative burden of the second r Memo~ randums dealing with both law and policy would ~ 5 of paragraph 1(c) and would have to be split before the p~ ~o. Although the exception provided by section 1(c) (~, desirable, the burden in the event of legal challenge of proving in a 13 t that revela- tion of the record or information would constitute a "~ `~warranted invasion of personal privacy" is a heavy one. Discretion of `~`~`~y to determine what is "clearly unwarranted" when privacy is invaded ~ I be subject to the review of any district court judge before whom an action f~r production of the record or information was initiated, Furthermore, unless some provision is made for examination of the information or record by the court in camera, such as that in section 3500, title 18, United States Code, the invasion of privacy ~rould occur in the course of the very litigation that attempts to prevent it. Again, the exception provided in section 1(c) (7) for investigative files indi- cates recognition of the necessity for protecting such Information, but the limitation on the protection significantly reduces its beneficial effect. There are many Investigative tiles compiled and held by the Department of Defense for other than "law enforcement purposes" which nevertheless require the same protection. For example, investigative files compiled for the purpose of deter- mining whether an individual is to receive a personnel security clearance for access to classified information often contain highly personal and sometimes prejudicial information (perhaps even inaccurate) that should not be available to the general public. The reasons for thIs are much the same as for those which justify the privilege for investigative files compiled for law enforcement purposes. The necessity of treating such files as privileged has been endorsed by several Presidents of the United States and has generally been respected by Congress. (See, for example, President Truman's memorandum of March 13, 1948, addressed to all officers and employees in the executive branch of the Government, who are directed to decline to furnish information, reports, or files dealing with the employee loyalty program.) Other investigatiye files such as aircraft accident investigation reports also contain invaluable information that is obtained only by the assurance that it will be treated as privileged. Judicial recognition of the necessity for protect- ing such information in aircraft accident investigation reports is found in such cases as MacMn v. Zuckert, 316 Pd. 2d 336 (C.A.D.C.), 1963, where the legiti- mate Interests of the Government in promoting air safety was recognized by the court as a valid reason for denying to the litigants access to the accident report. Other inspection and survey reports of investigation are also dependent on full and frank exchanges between investigators and the persons questioned, and the continued protection of the information obtained in the course of these exchanges is absolutely essential to the continued flow of information vital to the effective and efficient management of the Defense Establishment. Some additional examples of the kinds of information or records which the Department of Defense now considers It essential to treat as privileged but which might not receive protection under IJ.R. 5012 are the following: 220 `~e to FEDERAL PUBLIC RECORDS LAW p-~-de protetion for information of f~ ~type obtal: PAGENO="0229" FEDERAL PUBLIC RECORDS LAW 1. Reports of proceedings pertaining to the conduct of, or the manner of per~ formance of duties by military and civilian personnel and the names of persona who participated in the investigation or adjudication of any particular case. 2. All reports, records, and files pertaining to individual cases in the military, civilian, and industrial security programs, including the names of individuals who participated in the consideration and disposition of any particular case and the decisions made. 3. Examination questions and answers to be used in training courses or in a determination of the qualifications of candidates for employment, entrance to duty, advancement, or promotion. 4. Information as to the identity of confidential sources of information and information furnished in confidence. 5. Information which is, or reasonably may be expected to be, connected with any pending or anticipated litigation before any Federal or State court or regu- latory body, until such information is presented in evidence or is determined to be appropriate for public disclosure. 6. Advance information on proposed plans to ii ~a whet, can achieve e ntended result. Department notes with interest that several of the eminent legal experts serving as members of the Board of Consultants and Review of the Adminis~ trative Procedure Act, established by the Senate Subcommittee on Administra- tive Practice and Procedure, indicated their serious reservations about many of the provisions of S~ 1663, 88th Congress, that are comparable in purpose and in language to ER. 5012. We invite your atention particularly to the com- ments of Marvin B. Frankel and Walter Gelihorn of the Columbia University Law School which begin at page 678 (as par. 4 of those comments) of the hearings of July 21, 22, and 23, 1964, before the Subcommittee on Administrative Practice and ProcOdure of the Committee on the Judiciary, U.S. Senate, 88th Congress, 2d session. In associating himself with the comments of Professors Frankel and Geilborn, Prof. Clark Hyse of the Harvard Law School stated in his letter of July 1 to the chairman of the Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, U.S. Senate (appearing on p. 593 of the hearings of July 21, 22, and 23, 1964) several observations which this Department would endorse as equally applicable to H.R. 5012. These include the comment that: It is my judgment that improvement in the administrative process is more likely to be achieved by detailed, ongoing studies by an administrative conference than by legislative enactment of S. 1663. and the statement- Because it does not appear that the proponents of the changes proposed by S. 1663 have used the "method of patiently pursuing the facts and pre- paring remedial measures In light of the specific evil disclosed." I hope that the subcommittee will proceed with caution. Even Prof. Kenneth Culp Davis of the University of Chicago, a vigorous pro- ponent of revision of many portions of the Administrstive Procedure Act, indi- cated his opposition to section 3(c) of S. 1663, on which H~FL 5012 is based. The reasons for this opposition are clearly set forth on pages 247 through 249 of the hearings of July 21, 22, and 23, 1964, supra. Of particular interest are the fol- lowing comments of Professor Davis which summarize his viev~s: But section 3(c) in its present form will do little if any good, and it will do an immense amount of harm. It will prevent agencies from receiving 221 PAGENO="0230" 222 FEDERAL PUBLIC RECORDS LAW confidential information in writing from private parties, and for that reason it will not have the effect of opening up the confidential information to the public. It will cause working papers within an agency to be destroyed, but it will not cause them to be made public. It will cause exchanges of ideas and false starts to be made orally instead of in writing, but the effect will not be to make anything of this sort public * * The public interest will suffer when administrators are forced to transact the public business without written records. The public will gain little or no increased information. For the reasons set forth above, the Department of Defense is strongly op- posed to the enactment of ILR. 5012, The Bureau of the Budegt advises that from the standpoint of the President's program, there is no objection to the submission of this report. Sincerely, L. NIRDIIELRIINER, Acting GeneraZ Connsel. REPLY FROM DEPARTMENT OF THE INTERIOR, OI~'IcE OF THE SECRETARY APRIL 29, 1905. Hon. Wiu~t~ L. DAWSON, Cha~irman, Oomsnitte on Goi,erneien.t Operations, Hons~e oy Representatives, Wasli4ngton, D.C. DEAn Mn. DAwsox: Your committee has requested our report on H.R. 5012, a bill `to amend section 101 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information `and limit `the avail- ability of records. Reports have also been requested on H.B. 5013, H.R. 5014, HR. 5015, H~R. 5010, H.R. 5017, H.R. 5018, H.R. 5019, ~R. 5020, H.R. 5021, H.R. 5237, H.R. 5400, H.R. `5520, H.R. 5583, and II.R. 0172, identical bills. ILR. `5012 amends section 161 of the Revised Statutes, as amended (5 U.S.C. 22). `Section 161 now reads as follows: `The head of Sach department is authorized to prescribe regulations not in consistent with law for the government of his department the conduct of its officers and clerks the diStribution and performance of its business and the custody use and preservation of the records papers and property appettatnang to it This section does not authorize withholding information from the public or limiting `the availability of records `to the public." `H.R. 5012 retains all of the words of the present Rev. Stat. 101, but adds to the last sentence a series of eight exceptions. It thereby changes the Last sentence from a disclaimer which states that nothing in that particular section authorizes a withholding of information, into a limitation which provides that only the excepted information n~ay be wIthheld `and that all other information must be made available. H.R. 5012 also `transfers frocin `the executive branch `to the judicial branch the authority to determine whether particular information is or is not excepted even though the determination involves an exercise of judgment or discretion which is permitted `by the legislative rule. The Department of Justice has advised the committee that these bills contra- vene the separation of powers doctrine and would `be unconstitutional since they Impinge upon the constitutional authority of the Executive to withhold docu ments in the executive branch where in ins discretion, he determines that the public Interest requires that they be withheld. For similar reasons, the Justice Department has also advised that the provision transferring such authority to the judlici'al branch would also be unconstitutional. Aside from these constitutional objections, the Justice Department has `pre- sented to the committee the reasons for the administration's conclusion `that the bill's `are unwise. We concur in the statement presented by Assistant Attorney General `Sclilei on March 30. Although we recommend against `the ena~tment of the bill, the following `tech- nical deficiencies in the bill are listed for your information: 1. Rev. Stat. 161 ~ppiies only to the 10 executive departments enumerated in Rev. Stat. 158. It does not apply to `all Federal `agencies. PAGENO="0231" FEDERAL PUBLIC RECORDS LAW 223 2. The bill ~mend~ Rev. Stat. 1~1 in ~t manner that makes }t incons~tstent with section. ~3 of the Administrative Procedures Act, without specifically repealing the latter section. 3. The reference in the bill to internal personnel rules and practices does n~t cover investigatory files relating to personnel actions. It should cover them. 4 The reference in the bill to matters specifically excepted from disclosure by statute is ambiguous in its application to a statute that prohibits a Federal official from disclosing particular information unless authorized by law. 5. The reference to trade secrets, etc., apparently contains a drafting error. The words "and privileged or confidential" should be "which is privileged and confidentiaL" 6. The reference to memorandums and letters dealing solely with matters of law or policy does not expressly include working papers, preliminary drafts, and records of advisory committee meetings. The Bureau of the Budget has advised that there is no objection to the presen- tation of this report from the standpoint of the administration's program. Sincerely yours, D. OTIs BISASLEY, Assistant AS~eoretary of the Interior. REPLY FROM DEPARTMENT OF LABOR, OFFICE OF THE SECRETARY Arain 7, 1065. Hon. WULIAM L. DAwsox, C1z~airman, Committee on Government Operations, House of Represent atives, Wash4ngtoe~, D.C. Dnsii Ma. CHAIRMAN: This is in reply to your request for our views on H.R. 5012-5021, identical bills to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold Information and limit the availability of records. This Department supports the principle of providing citizens with maximum disclosure of information by their Government. We have therefore cooperated fully with congressional committees seeking information and have readily re- sponded to requests for information by individual citizens. For the past several years, our disclosure policies and practices have been under study for the pttrpose of improving and refining them wherever possible In our experience present law has served well to protect both the citizens' right to know and the need for limited withholding of information in `order to assure adequate performance of our statutorily prescribed duties. A major defect in the proposed legislation is its inherent inflexibility H H 5012-5021 would require every agency to make all its records available to any person, with certain specifically enumerated exceptions. In our view, it would be Impossible to anticipate at this time all specific items which should be justi- fiably withheld in the public Interest Because of the potentially severe and disruptive effects which this legislation could have on our operations, we would be opposed to its enactment. In addition to our general opposition to these bills, several specific difficulties arise in connection with certain provisions. It is our understanding that section 1(c) is iittended to exclude from this broad disclosure requirement certain records, including business or financial Information obtained in confidence and Investigatory files compiled for law enforcement purposes. Section 1(c) should be modified to state directly that the specified Items are excluded from the re- quirements of section 1(b). Even with this change, `however, we would be seri- ously concerned about the practical effect of the proposal, particularly on our statistical, enforcement, and other operating programs. Section 1(c) (4) is apparently designed to exempt from the disclosure require- ment trade secrets and commercial and financial information obtained from the public, and privileged or confidential. The term "commercial and financial" may well not include wage and employment data, industrial injury statistics, social and economic data and other information furnished the Department in confidence. The Department operates under arrangements which provide in many cases for the voluntary submission of statistical data by all types of business firms throughout the country. This information, as well as informa- tion In connection with other programs of the Department, is obtained with the understanding that portions of it will not be publicly disclosed or identified in any way. Disclosure of this information could jeopardize the entire statisti- PAGENO="0232" FEDERAL 224 cal and other c In view of the objectionable features of this le enactment. The Bureau of the Budget advises that there Is n of this report from the standpoint of the administrat Sincerely, W. WILr~am I REPLY FRoM Post OFFICE DEPARTMENT APRIL 23, 1965. Hon. WILLIAi~ L. DAWSON, Chairman, Committee on aovernment Operations, House of Representatives, Washington, D.C. Dm&n Mn. CHAIRMAN: This is in reply to your request for a report on the bills H.R. 5012 through H.E. 5021, H.R. 5237, H.R. 5406, tLR. 5520, and lIE. 5583, all of which are Identical. They propose to amend section 161 of he Revised Statutes with tespect to the authority of Federal officers and agencies to withhold infor- mation and limit the availability of records. Subsection (b) of the proposed amendment would require every agency to "make aU its records promptly available to any person" (italic supplied). This language would permit any crank or individual with some prejudice or complaint in a given matter to demand that the Department make available all its records, which, in some cases might go back 50 to 100 eyars. Of primary importance to the Department is the exemption contained in item (7) of section 1(c), relating to Investigatory files compiled for law enforcement purposes. The conditions under which statements and evidence can be furnished defendants is presently prescribed by section3500 of title 18, United States Code. Our Bureau of the Chief Postal Inspector, in the conduct of its operations, com- piles a number of records and reports that are not related to law enforcement because criminality is not involved. We believe that it would not be in the public interest to release such reports for reasons that (1) from the standpoint of man- agement they have greater value when the investigator knows that his conclu- sions are immune from public disclosure, (2) patrons in many instances volunteer information of considerable value in service investigations when they have as- surance that their information will not be revealed, and (3) investigations in- volving local disputes become further aggravated when the opinions of local citi- zens are publicly disclosed. We additionally feel that the exemptions (4) and (5) of section 1(c) are too restrictive. We believe, for example, that In such matters as the negotiation of contracts and service arrangements, the Department should be on the same footing as a private party so far as disclosure of its position is concerned in order that it may be assured of the benefits arising from competition. As a matter of fair- ness and right, private business information should be appropriately protected at least from competitors. We find no authority in the proposed legislation to pre- vent the curious from access to information received by the Department in con- fidence from private firms in connection with service negotiations. PAGENO="0233" FEDERAL PUBLIC RECORDS LAW It is our view that any public information requirement must preserve to the agency discretion and the right to determine the extent to which it is feasible, or in the public interest, to make its records available for random public inspection by persons who have no direct concern. Exercise of such discretion with respect to the disclosure of information is inherent in the administrator's role. To re~ move the administrator's discretion and judgment in the information field would be inconsistent with his responsibilities and the public interest. For the above-stated reasons, the Department opposes the enactment of this legislation. The Bureau of the Budget has advised that from the standpoint of the admin- istration's program there is no objection to the submission of this report to the committee. Sincerely yours, Department s conclusion that the material must be witbh~i in t_ interest of our foreign policy. Whether or not safe- guards are inserted to limit the court's access to the nature of the information and its independence of judgment, once the judiciary has been interjected into this sphere, it is uncertain whether its rulings will accord with the Department's appraisal of what must be withheld in furtherance of the conduct of our foreign policy. It should therefore be sufficient for the Department to enter a cate- gorical defense that the Secretary has determined that disclosure of the material would adversely affect the foreign policy of the United States. Subsection (b) would also grant any person, irrespective of his relationship, If any, to the material requested or the effect of the Information on his pecuniary or other legally protected interests to seek any and all information in which he may have a capricious curiosity. It could thus encourage fishing expeditions of the widest range, which could impose severe burdens of time, money, and per- sonnel on an agency whose operations are as fartlung and decentralized through- out the globe as the Department of State's, merely in order to satisy a com- plainant's idle whim. The phrase "improperly withheld" appears to be the only restraint upon such a complaint and its generality is totally undefined. Indeed, 225 JOHN A. GiioNouslcl, Postmaster General. REPLY FROM DEPARTMEI~ PAGENO="0234" 226 FEDERAL PUBLIC RECORDS LAW the subsection is broad enough to permit representatives of foreign governments to roam through the Department's files to meet their intelligence requirements. Subsection (c) falls to define "records" other than by the list of exclusions. Given the vernacular understanding of what constitutes a record, the duty to dis- close would include all documents embodying foreign policy recommendations in the executive branch, unless they fall within the exclusions. If anything, by attempting to define the term through a list of exclusions, the risk of harmful dis- closure is aggravated. Thus, for example, does the fact that (e) (5) specifies "interagency or intra-agency memoranda" imply, on the basis of the "inclusio unius, exclusio alterius" maxim, that intergovernmental memorandums are not protected? What is meant by the language "solely with matters of law or policy ?" Is the implication that If any other matter is contained in a memorandum or let- ter that the entire document must be disclosed? That only the material not of law or policy must be disclosed? How does one separate out such material and who has the final word on which category particular information falls within? Similar questions arise as to each of the exclusions In which this Department has an interest. The exclusion In subsection (c) (1) would not meet the Department's needs. The exclusion appears to contemplate an itemized listing in advance of every aspect of foreign policy for which secrecy Is required. This requirement mis- conceives the nature of foreign policy, its variety in application to particular circumstances, and its fluidity in the face of rapidly changing events. Further- more, to insist on a priori catalog of every conceivable circumstance requiring secrecy will inevitably lead to gaps and vexatious problems of interpretations of the scope ott individually listed items, particularly in view oct the statutory con- dition that the matter be "specifically" required to be kept secret. Furthermore, we question the feasibility of handling this problem by Executive order; amend- ment is diffienltand cumbersome and lacks the flexibility and speed demanded by the series of ad hoc decisions which of necessity offer the only method for safe- guarding the meticulous protection of foreign policy in this context. It will be noted that the comparable exemption under the Administrative Procedure Act currently reads "any function of the United States requiring secrecy in the public Interest." The determination of whether secrecy is dictated by the public interest is made by the agency concerned. If the committee believes that stand- ard too sweeping, the Department would have no objection to a standard which reads, "required to be kept secret in the interest of the national defenseor foreign policy as determined by the President or his delegee." Finally, it is our view that subsection (c) (2) should be broadened to include "any matter relating solely to the internal management of an agency," the standard incorporated in the preSent AdmInistrative Procedure Act. There are obviously a numixmr of internal matters which are not solely related to personnel rules and practices; e.g., budget and fiscal qt~ stions, and hence are not covered by the proposed standard in the subject bills. Since almost any piece of paper may be held to constitute a record, this material would comprehend voluminous and scattered rules, regulations, delegations of authority, and many more in- rormal documents. To require their disclosure would impose an onerous burden on the Department's personnel and facilities which would either disrupt our services to the public, or result `In a large increase in personnel, facilities, and appropriations, with relatively little corresponding benefit to the public. The Bureau of the Budget advises that from the standpoint of the adminis- tration's program there is no objection to the submission of this report. Sincerely yours, Douoi~&s MACARTIIUB II, Assistant Secretary for Congressional Relations. REPLY FROM DEPARTMENT OF THE TTtEASURY DEPARTMENT OF THE TREASURY, Washington, D.C., March 26, 1965. Hon. WILLIAM H. DAwsox, Chairman, Committee on Government Operations, Ho'uae of Representatives. DEAR Mn. CHAIRMAN: Reference is made to your requests for the views of thIs Department on HR. 5012 through H.R. 5021, H.R. 5237, H.R. 5406, H.R. 5520, HR. 5583, and HR. 6172, to amend section 161 of the Revised Statutes with re- PAGENO="0235" FEDERAL PUBLIC RECORDS LAW 227 spect to the authority of Federal officers and agencies to withhold Information and limit the availability of records. The Treasury Department agrees with the objective of Increasing public knowl- edge of Government operations which affect the public. The Department objects, however, to legislation in the form of the present bills which would require un- warranted disclosure to any person of Government files. Under such a require- ment the public interest would suffer and private persons would be unnecessarily injured. A memorandum stating our more specific objections to this kind of legislation is attached. The Department has been advised by the Bureau of the Budget that there is no objection from the standpoint of the administration's program to the submis- sion of this report to your committee. Sincerely yours, FEED B. SMITH, Actiag Genera,i Co'an8et. DEPARTMENT OF THE TREASURY MEMORANDUM ON H.R. 5012 AND OTHER IDENTICAL BILLS, TO AMEND SECTION 161 or THE REVISED STATUTES WITH RESPECT TO THE AUTHORITY OF FEDERAL ~FFICRRS AND AGENCIES TO WITHHOLD INFORMATION AND LIMIT THE AVAILABILITY O~3' RECORDS H.R. 5012 and other identical bills are designed to substitute a revised section 161 of the Revised Statutes, as amended (5 U.S.C. 22), generally known as the housekeeping statute, for the access to records section of the Administrative Pro- cedure Act (sec. 3(c), 5 U.S.C. 1002(c)). The amendment takes the form of the addition of new subsections. Subsection (b) would require each agency to "make all its records promptly available to any person," and would invest the district courts of the United States with jurisdiction to enjoin an agency from withhold- ing records or information improperly withheld. Subsection (c) would provide that the housekeeping statute shall not authorize withholding information from the public or limiting the availability of records to the public except matters that fall within eight specified categories. Section 2 of the statute would repeal In- consistent laws, presumably section 3(c) of the Administrative Procedure Act. This memorandum is an analysis of the Department's specific objections to legislation of this type The objectiOns of the Department are discussed under the four following major topics I DISCLOSURE OF ALL EROORDS TO ANY PERSON Subsection (b) of the bills would require the Treasury to make all of its records (not covered by the specific exemptions) promptly available to "any per- son." The damaging and even absurd results of such a provision are illustrated by Prof. Eenneth Oulp Davis of the University of Chicago, an out- standing expert on administrative law, in his testimony In the July 1964 hear- ings on S. 1663 before the Senate Subcommittee on Administrative Practice and Procedure. Concerning this requirement in section 3(c) he said that the Presi- dent would have to honor a request of high sChool children "playing games" to make available all White House records "minus the seven exceptions"; the De- partment of Fustice would have to provide to a mentally disturbed person all correspondence relating to a judicial appointment, etc. (at 247, 248). Other ad- ministrative law scholars said that section 3(c) "takes too little account of the individual citizen's interest in nondisclosure of public records pertaining to him" (Frankel and Gellhorn, at 678). The inappropriateness of the proposed provi- sion with respect to many Treasury records is indicated by the specific recogni- tion of the confidentiality of the records of various Treasury offices in the Federal Reports Act of 1942 (5 U.S.C. 130-139(f)). The legislative history of this act shows that the reason for this confidentiality was both the private character of much of the information in the records, and the injury to essential Governmept operations which would result from indiscriminate disclosure. Furthermore, Congress should be aware of the enormous burden subsection (b) of the House bills would place on the taxpayers. 1~he result of the proposed requirement might well be that all major agencies wo~ild require additional ap- propriations to maintain legal and administrative personnel engaged principally in determining disclosure requirements; this would add significantly to the ex- pense of the Government. PAGENO="0236" departments and they are inadequate. I on of part .r exemptions i: insuring the public interest I ~closure. For example, under u tion could the Government I its civil litigation files from adverse ii - gants? or its own trade secrets in the production of inks and paper for its currencies from counterfeiters? or its instructions to law enforcement agents from criminals? The answer is: Under no exception. The Executive has throughout our constitutional history been recognized as having the duty and authority to determine when records and information should be protected from disclosure in the "public interest." The scope of the Executive's duty and authority should continue to be recognized. It is attractive to think that a statute can be drafted which clearly delimits all of the areas which should be protected from disclosure and then compels the disclosure of all the rest. But no draftsman, howsoever ingenious, can realisti- cally hope to foresee all of the circumstances which will arise in the future or, indeed all of the consequences of such a disclosure policy even as applied to present problems. There will always be situations arising in which the common consensus clearly would be that nondisclosure is in the public interest; and the Government should not be compelled to disclose in such circumstances merely because a statute has not foreseen the circumstances. EcoempUon (1).-Turning to the text of the exemptions, in. the first exemption the term "national defense" should be changed to read "national security" since the broader term is needed, particularly In certain financial areas. In order to protect exchange stabilization fund activities which help preserve the value of the dollar, the nondisclosure must be assured of exchange stabilization arrange- ments and reports. These arrangements and reports may not be comprehended 228 As stated, rr FEDERAL PUBLIC RECORDS LAW records often contain information about private citizens. - - ~ Treasury would have to make these records t EDIATE JUDICIAL I (b) of the F PAGENO="0237" FEDERAL PUBLIC RECOItDS LAW 229 by a court to be within the term "foreign policy" but may well be considered within the standard "national security," since the insurance by executive action of the basic economic strength of the country has been stated to be in the in- terest of national security. (See 19 U.S.C., Supp. V, 1862, a part of the Trade Expansion Act of 1962,) Furthermore, the requirement that an Executive order be used as the mechan- y which the executive branch carries out its necessary and important .ons in this regard adds a heavy and unnecessary burden upon the Fresi- and an intolerable one if the particular matter has to be specifically iden- tified in the order. E~remption (3) .-This exemption reduces the existing exemption for matters "relating solely to the internal management of an agency" to matters related "solely to internal personnel rules and practices." It reflects the view that all other internal management operations of the Government should be disclosed to any person at alL But internal operations include many matters which are of no public interest or which should not be made readily available, as a few examples will illustrate. As we read the present exemption, it would not protect the Treasury Depart- ment if it refused to detail in advance the method it intended to employ in pro- tecting the movement of currency from the Bureau of Engraving and Printing to its own cash room in the main building, Apparently, upon demand, the Treas- ury would have to supply the records of how it proposed to use its guard force. Nor is our concern In this area merely speculative. The Washington Post of March 13, 1965, carrIed an article which dealt with the question of whether the White House has a musical "jamming" system with which the President can foil attempts at electronic eavesdropping of his telephone conversations. The arti- cle quotes a highly placed source as saying, "Look, if there were such a device it isn't likely we would talk about It." The proposed legislation would ap- parently make the executive branch talk about It. The Department recommends that this exemption be revised to exempt any matter r'~ ~ ~"~`~- ~ the internal management or procedure of an agency. Esjemption ( ~~ri exempts from disc1-~ ~-"~--`~ tion that Is "~ nal is an authorization by information otherwise ~ ~ U.S.C. 1905 and 26 U,S.C. 7213 (a) and (b)-18 U.S.C. 1905 should not be destroyed. Since its enactment in 1894 it has been essential to the administration of Federal laws. The pro- hibition in 26 U.S.C. 7213, with the limitations in 26 U.S.C. 6103, has been essen- tial in the administration of our self-assessment tax system since the first income tax in 1913. Taxpayers place confidence in the protection it affords to the fi- nanclal information they readily disclose. It is urged that exemption (3) cover matters that are "prohibited from disclosure by statute," and that the leg- islative history should show that these two penalty statutes remain effective. Ecvemption (4).-This exemption is helpful but, as has been indicated, does not include the trade secrets of `the Government which are `the fruit of its research, development, and manufacture. Moreover, as respects private information, it is not clear how its status as privileged or confidential is determined. It should be pointed out that the word "privilege" commonly relates to a circumstance arising out of a relationship between persons. It does not normally relate to the status of the facts themselves. Thus, information given by client to his attorney, or by a patient to his doctor, is privileged because of the relationship between the parties-not because of the nature of the information. If the bill means that in- formation obtained by the Government under a pledge of confidentiality, or in- formation which is tendered to the Government in confidence, should be treated in such a way that the confidence should be respected, this should be made clear. If it does not mean this, whatever else it means should be ma Ea~emption (5) .-Thls exemption for interai~ -- dums or letters dealing "solely" with law or polh useless as an exemption. Most interagency a PAGENO="0238" 230 FEDERAL PUBLIC RECORDS LAW necessarily include facts as well as law and policy. Policy is made in the light of facts, and even purely legal memorandums contain analyses of factual situations which must necessarily be incorporated in the memorandums. Litigation files en- compass law and fact inextricably. Moreover, those memorandums which deal with factual matters should 1e equally protected from indiscriminate disclosure, as they have been in the past A factual report of a Treasury agent or informer which may not be part of an investigatory file protected by exemption (7) Is as worthy of protection as a purely legal memorandum The privilege against dis closure of communications, whether dealing with fact, law, or policy, within an agency or between agencies of Government is not only recognized and pro~ tected by the courts but supervised by them to prevent unjustified withholding. See Kenneth Oulp Davis, "Administrative Law," volume I, sections 3.13, 8.15. Clearly preferable would be an exemption of "communications between `officers or employees of the U.S. Government relating to the internal operations of the Government, excepting communications which are solely compilations oct fact not otherwise confidential under this section." Ea~emption (6).-The Department believes that the modifier "clearly" in this exemption should be deleted since it seems to contemplate some unwarranted disclosure and to encourage disclosure of personal files which until now have been kept confidential If any unwarranted disclosure occurs one result may be to expose the United States under the Federal Ports Claims Act 28 U S C 2~i74 to liability for a tortious invasion of personal privacy See Harper and James The Law of Ports sections 95-97 On the whole it would be preferable sim ply to exempt personnel and medical files and similar private personal matters Ea~emption (7).~-The limitation on disclosure of investigatory files compiled for law enforcement purposes is interpreted to mean that private parties cannot obtain information from such files except in the context of discovery proceedings in litigation as now provided by law. But the bill does not make this clear, as it should. Anything less th'an such protection for criminal investigations would disrupt law enforcement, expose informers to reprisals, and harm innocent cit- izens However more than this protection is needed both with respect to law enforcement and to the investigation of civil matters which should be kept con- fidential until the responsible agency has `reached a decision. With respect to the investigation of crime, effective law enforcement requires withholding from indiscriminate disclosure the overall plans, procedures, and Instructions of Government agencies on law enforcement matters as, for example, iii cofinection with the organized crime drive. It should also be apparent that the investigation by an agency,' in other than criminal matters, of appropriate means to carry out a statutory responsibility may also need to be withheld from indiscriminate disclosure until the investigation culminates in a final decision, such as a report to Congress. One clear example of this is `the investigation by the Treasury of the most practical and appropriate changes in the silver content of coinage to be recommended to Congress. As pointed out in connection with exemption (5), these internal matters would no't `be protected under `that exemp~ lion since they necessarily deal with factual problems. Ea'emption (8) .-Phe Treasury Department considers this exemption necea oary. IV. REPEAL OF INCONSISTENT PROVISIONS Section 2 of the House bills repeals all laws or parts of law's inconsistent with `the requirement that every agency make all of its records promptly available to any person. except records or information within the eight enumerated exemp~ tions. But the instant repeal of such laws might throw doubt on the continuing validity of regulations on disclosure of national defense and foreign policy mat- ters until further Executive orders and guidelines could be issued. Also a gen- eral repealer is often uncertain in its effect until after litigation. Therefore, it is the Department's view that no amendment of section 3 of the APA should apply until after a reasonable period of adjustment and that, in `the interest of clarity and to preclude any future misunderstanding, the provisions and parts of provi- sions repealed `should be explicitly indicated in a repeal provision. ConcZuaion.-It should be stressed that the foregoing discussion of the provi- sions of the legislation should not be taken as suggesting that if the deficiencies which are pointed out are remedied, the bills would then be acceptable. Our basic position is that the discretion of the Executive must, in the last `analysis, continue to exist The President charged as he is by the Constitution with the duty of proper enforcement of the laws cannot have his constitutional duties curtailed by legislation which would substitute another judgment for his PAGENO="0239" INDEPENDENT AGENCIES REPLY FROM ATOMIC ENERGY COMMISSION U.S. ATOMIC ENERGY COMMISSION, Washington, D.C., May 6, 1965. Hon. JoHN E. Moss, Chairman, Subcommittee on Foreign Operations and Government Operations, Committee on Government Operations, House of Representatives. DEAR MR. Moss: Thank you for your letter of March 25, 19G5, requesting the comments of the Atomic Energy Commission on H.R. 5012, a bill to amend sec- tion 161 of the Revised Statutes with respect to the authority of Federal ofilcers and agencies to withhold information and limit the availability of records. The Commission is in sympathy with the underlying policy of the bill in favor of full availability of information to the general public, but believes that its adop- tion in its present form might create problems in the Commission's performance of its statutory duties. The bill would in effect amend section 3(c) of the Administrative Procedure Act, 5 U.S.C. 1001. We believe that it is more appropriate that any modification of section 3(c) be accomplished by an amendment of the Administrative Proce- dure Act. The bill would deprive agencies of the authority under section 3(c) to hold information confidential, "for good cause found," pursuant to declared and just!- fiable agency policy. The areas of exemption as enumerated in the bill are in our view too narrow and specific to permit the Commission, with its diverse functions, to perform its various statutory duties effectively. Some of the categories of in- formation subject to withholding and which might be required to be made matters of public record, to the prejudice of legitimate public and private interests are: confidential information which ofilcers or employees are forbidden to divulge by 18 U.S.C. 1905, the scope of which does not appear to be identical with the excep- tion for trade secrets in H.R. 5012; confidential information received from edu- captional and other nonprofit institutions; confidential memorandums and reports prepared as part of the adjudicatory process; information on unclassified patent applications, contracts, and selection of contractors in advance of formal an- nouncement, and other information which might assist a person to benefit im- properly from a Commission program; and information withheld selectively from foreign nations in the overall interest of the United States in order to achieve more favorable information exchange arrangements with other countries, and withheld pursuant to agreements with other countries. Possibly some information within these categories could be construed as falling within the areas of exemption enumerated in the bill. We note that the bill would permit suit in any district court even by citizens or residents of foreign countries. We note also that the bill would afford no protec- tion for information which has been given to an agency with the understanding that it would be treated confidentially. Appendix A, which is attached, explains our comments in greater detail. For your convenience, I am also enclosing a copy of part 9 of our regulatlons~ The Bureau of the Budget has no objection to the submission of these comments from the standpoint of the administration's program. Cordially, Dr. GLENN P. SEABOEG, Chairman. 231 PAGENO="0240" 232 FEDERAL PUBLIC RECORDS LAW APPENDIX A COMMENTS OF THE ATOMIC ENERGY COMMISSION ON HR. 5012, A BILL TO AMEND SECTION 161 OF THE REVISED STATUTES WITH RESPECT TO THE AUTHORITY OF FEDERAL OFFICERS AND AGENCIES TO WITHHOLD INFORMATION AND LIMIT THE AVAILABILITY OF RECORDS As we understand this bill, it would retain in section 161 of the Revised Statutes the present general authorization of departmental regulations governing the conduct of the various departments. It would delete the present second sentence of section 161, which was added by Public Law 85-619 (72 Stat. 547), effective August 12, 1958, and which provides: "This section does not authorize withholding information from the public or limiting the availability of records to the public." That sentence would be replaced by new paragraphs (b) and (e) which would govern not merely "departments," as does the present section 161, but would apply to all "agencies" as defined in the new paragraph (b) The proposed paragraph (b) of section 161 of the Revised Statutes would re- quire that every agency, in accordance with published rules, "make all its records promptly available to any person." The district court of the United States in which the plaintiff resides or has his principal place of business, or in which the records in question are situated, would be given jurisdiction to require the pro- duction of withheld records and information, The burden would be on the agency to sustain its action. Such proceedings would be given priority over all other cases "except as to those causes which the court deems of greater importance," and would be "expedited in every way." Under the proposed paragraph (c), it would be provided that the section does not authorize withholding information except: (1) As required by Executive order in the interest of the national defense or foreign policy; (2) related solely to internal personnel practices; (3) specifi- cally exempted from disclosure by statute; (4) trade secrets and privileged com- mercial and financial information obtained from the public; (5) intraagency and interagency communications, dealing solely with matters of law or policy; (6) documents the disclosure of which would constitute an unwarranted invasion of privacy; (7) investigatory files compiled for law enforcement purposes, except as available to a private party; and (8) certain documents concerning the regula- tion of financial institutions. We note that except for the definition of "agency," which is slightly different, the proposed paragraph (b) is identical with subsection 3(c) of the current S. 1336, a bill "To amend the Administrative Procedure Act, and for other pur- poses." S. 1336, as you know, is a proposed comprehensive revision of the Ad- ministrative Procedure Act of 1946, 5 U.S.C. section 1001 et. seq., and the excep- tions enumerated in the proposed paragraph (c) of HR. 5012 are identical with those enumerated in paragraph 3(e) of S. 1836. We note also that under see- tion 2 of H.R. 5012 all laws inconsistent with the proposed amendments would be repealed by the enactment of the bilL The Atomic Energy Commission is in sympathy with the underlying policy of the bill in favor of full availability of information to the general public, but believes that its adoption in its present form would constitute a serlons impedi- ment to the Commission's performance of its sbttutory duties. The Atomic Energy Commission was established by the Atomic Energy Act of 1946 (60 Stat. 755; 42 U.S.C. 1801 ct seq.) as amended by the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). The programs authorized by the 1954 act With respect to atomic energy are pro- grams: To conduct and assist research and development; to disseminate unclassi- fied scientific and technical information, and to control the dissemination and declassification of restricted data as defined in the act; to control the possession, use and production of atomic energy and special nuclear material; to encour- age widespread use of atomic energy for peaceful purposes; to engage in inter- national cooperation in order to promote the common defense and make available to cooperating nations the benefits of peaceful applications of atomic energy; and to conduct a program of administration consistent with the foregoing policies, and programs which will enable the Congress to be currently informed so as to take further appropriate legislative action. A considerable portion of the Com- mission's activities is concerned with the development and production of atomic weapons. In addition to administrative and executive functions of the Commission con- ducted under the General Manager, and licensing and other regulatory functions under the Director of Regulation, the Commission conducts the following types of PAGENO="0241" FEDERAL PUBLIC RECORDS LAW 233 adjudication on the record. Each Of these is subject to review by the Commis- sion, except for decisions of the Board of Contract Appeals and for security clearance determinations, (a) Licensing of production and utilization facilities (principally reactors), including construction permits and operating licenses, under 42 U.S.C. 2131-2140, 2231-2239; the hearings usually being conducted by atomic safety and licensing boards. (b) Licensing of source, byproduct and special nuclear material, under 42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2112, 2231, and 2239, in proceedings usually heard by hearing examiners. (c) Modification, suspension, or revocation of licenses, under 42 U.S.C. 2231, 2236, and 2239; the proceedings usually being conducted by hearing examiners. (d) Applications for just compensation for inventions or discoveries useful in nuclear weapons, or for awards for inventions or discoveries useful in producing or utilizing atomic energy, under 42 U.S.C. 2181-2188, 2223 and 2239 and 35 U.S.C. 183 and 188, in proceedings heard by the Patent Compensation Board, (e) Personnel security hearings under 42 U.S.C. 2201, conducted by personnel security boards which make recommendations to the General Manager. (j') Appeals from decisions of contracting officers under the disputes articles of contracts, in proceedings conducted by the Board of Contract Appeals or in certain cases by hearing examiners. (g) Hearings held upon termination of, or refusal to grant or to continue, Federal financial assistance pursuant to Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d). Vour subcommittee is respectfully invited to consider in this connection the more detailed discussion of the Commission's responsibilities as given in my letter of March 15, 1965, discussing the Commission's compliance with Section 3 of the Administrative Procedure Act. I believe that it is proper, however, to note specifically certain of the Commission's policies and practices. Section 3 of the Administrative Procedure Act, 5 U.S.C. 1002, is made ap- plicable to all functions of the Commission under the Atomic Energy Act of 1954 by the terms of section 181 of the 1954 act, 42 U.SC. 2231. The latter section provides for certain special procedures in the cases of agency proceed- ings or actions involving restricted data or defense information as defined in the Atomic Energy Act, sections 11(h) and 11(w) (42 U.S.C. 2014(h) (w)). Under the Commission's regulations, 10 CFR part 9, "Public Records," a wide variety of documents is included in the public records of the Commission. A copy of part 9 is attached for your information. The following categories are e~- eluded from the public records of the Commission: (a) Documents withheld, as a result of timely application by the submitting party, for good reason as determined according to section 2,790 (b) (see below) (b) Documents relating to personnel matters and medical and other personal information, which in the interest of personal privacy are not normally made public; (o) Intraagency and interagency communications, including memorandums, re- ports, correspondence, and staff papers prepared by members of the Commission, AEC personnel, or any other Government agency for use within the executive branch of the Government,; (d) Transcripts or other records of Commission meetings except those which constitute public hearings; (e) Correspondence between the AEC and any foreign government; (f) Records and reports of investigations; (g) Documents classified as restricted data under the Atomic Energy Act of 1954 or classified under Executive Order No. 10501 (except that documents clas- sified as restricted data which would otherwise be public records will be made available to Members of Congress upon authorization by the Commission, and to persons authorized under access permits issued pursuant to part 25 to the extent so authorized) (h) Correspondence received in confidence by the Commission relating to an alleged or possible violation of any statute, rule, regulation, order, license, or permit; (i) Correspondence with Members of Congress or congressional committees, except (1) correspondence released by the Member of Congress or congressional committee concerned, or (2) correspondence regarding the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or permit or regarding a rulemaking proceeding; 45-213-65-pt. 1----16 PAGENO="0242" 234 FEDERAL PUBLIC RECORDS LAW (j) Any other document involving matters of internal agency management; (k) Names of individuals who have received exposure to radiation. Part 9 is by its terms applicable to proceedings under Part 2: Rules of Prac- tice and Part 25: Permits for Access to Restricted Data, of the Commission's rules and regulations. It is the Commission's practice to apply the criteria of part 9 to the disclosure of information in other circumstances. You will note that in certain cases under 10 OFR 9.7, disclosure of documents held confiden- tial under section 9.4 may be authorized pursuant to subpena or, as required, to other governmental personnel. We believe that the adoption of H.R. 5012 would be unfortunate, particularly in view of the explicit terms of section 2 repealing all laws inconsistent with the proposed amendment Its effect would be to amend the e~dStlng terms of section 8(c) of the Administrative Procedure Act, and we believe that it is more appropriate that any modification of section 3(c) be accomplished by an amendment of the Administrative Procedure Act. The effect of the bill would be to deprive agencies of the authority, granted by section 3(c) of the Administrative Procedure Act, to hold information con- fidential "for good cause found," and would permit them to withhold from public inspection only records in the limited categories enumerated in the bill. These areas of exemption are in our judgment too narrow to permit an agency such as the Atomic Elnergy Commission, with its diverse functions, to perform its various statutory duties effectively. Section 9.4 of the Commission's regulations, enumerating the categories in which information may be withheld, corresponds to a considerable extent with the exceptions in HR. 5012. We believe that section 9.4 of our regulations is convincing evideiice of the Commission's agreement wjth the basic objectives of the bill, and consider that section 9.4 has gone as far In that direction as is con- sistent with the Commission's performance of Its duties. The bill does not leave room, as we believe it should, for the effectuation of declared and justifiable agency policy as a proper basis for withholding Information. While it may be useful to enumerate specific categories of documents to be excluded from records available to the public, it is of primary importance that, considering the diversity of functions of various agencies, particular agencies be given discretion to exclude documents which, in their informed judgement, should be held confidential even though they do not fall within one of the enumerated classes. It Is, therefore, Important that, even If such cate- gories are enumerated, there continue to be such a proy~sion as now exists in section 3(c) of the Administrative Procedure Act, permitting an agency to withhold from publication "information held confidential for good cause found." Such a course would permit the enumerated categories to furnish a guide for agency discretion, but would permit due regard for the flexibility necessary for the proper operation of individual agencies. The wisdom of retaining statutory authority in an agency to withhold infor- mation held confidential for good cause found, rather than attempting to enun- elate exhaustively the categories to be kept confidential, is illustrated by the provision of the Commission's regulations in section 9.4(k) that the names of persons exposed to radiation are not to be disclosed. It is not entirely clear that such information would fall within the sixth pro- posed exemption in `the bill, covering personnel and medical files and similar matters, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. But we believe that there would be general agreement that such an exception, which like others in section 9.4 Is for the benefit of the per~o'n affected, is highly consistent with the public interest. The bill would open up the possibility that anyone at all, including competi- tors of a firm which has furnished informution, could bring suit in a distant court to compel the disclosure of such information. It would not even be re~ quired that the complainant `be a citizen `or resident of the United States. The firm which had furnished the Information would presumably have the rIg~ht to intervene in the suit as an Interested party. In view of the nature of a good deal of the information in the hands `of the Commission, even such as is not classified as "defense information" or "restricted data," we feel that it is far more consistent with the ptrblic Interest to leave such disclosure to the' informed judgment `of the agency under published rules `such as part 9. In `the area of business confidential information, as was pointed out in my letter of March 15, 1905, the Atomic Fktergy Commission complies with 18 U.S.C. 1905., which pr~wides: PAGENO="0243" FEDERAL PUBLIC RECORDS LAW 235 "Whoever, being an officer or employee of the United States or `of any depart- medt or agency thereof, publishes, divulges, discloses, or makes known in any manner `or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examina- tion or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns `or relates to the trade secrets, processes, operations, style of work, or apparatus, or `to the identity, confidential statiStical data, amount or source of any income, profits, losses, or expenditures `of any per~on, firm, partnership, corpora- tion, or association; or permits any income return or q~~opy thereof or any `book containing any abstract or particulars thereof to `be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or im- prisoned not more than one year or both; and `shall be removed from office or employment." The proposed exception in H.R. 5012 for "trade secrets and commercial or financial information obtained from the public and privileged or confidential" covers something of the same subject matter as 18 U.S.C. 1905, but is less explicit than 18 U.S.C. 1905 and may be considered `to be different in scope. 18 U.S.C. 1905 appears to be a "specific exemption from disclosure by statute," and `there is no obvious indication in section 2 of H.R. 5012 of an intention to' repeal it. Under these circumstances, the coexistence `of 18 U.S.C. 1905 and the proposed ,fourth exemption in `the bill for `trade secrets would appear to present some pos~ sibili'ty of confusion. The fact `that Government employees are subject to crim- inal penalties under 18 U.S.C. 1905 suggests that the relation between that statute and the bill should be clarified. Moreover, the Commission often receives in confidence from educational and other nonprofit institutions information which is not trade secrets or commercial or financial information, but which, as in the case of the ideas of investigators for research projects, should be granted similar protection. We note that `the bill would not provide any exception for minutes of Commis- sion meetings, and it might be argued that under the terms of `the bill meetings of `the Commission which did not happen `to' deal with matters required by Execu- tive order to be kept secret in the interest of national defense or foreign security would `be available `to anyone. There may be grave doubt whether such minutes would fall within the exemption of "memoranda or letters dealing solely wi'th matters of law or policy", and we believe `that making such minutes matters of public record would seriously hamper the Commission's performance of its diverse `and important responsibilities. As another example of the inadequacy of the exceptions enumerated in the bill, it might be argued `that confidential memorandum's and reports prepared as part of the adjudicatory process, and circulated only among Commissioners and other personnel having adjudicatory duties, would also become matters' of public record. We believe that the `areas of exempted do'ctiments should include, as did S. 1666 of `the 88th Congress (a bill to' amend sec. 8 of the Administrative Pro~ cedure Act), `a category of internal memorandum's relating to the consideration and disposition of adjudicatory and rulemaking matters. One other class of documents which the Commission properly refrains from disclosing, and which might arguably be required `to be diSclosed under the bill, includes those enumerated in AEC manual, chapter 2104, discussed in my letter of March 15, 1965. In addition to staff papers submitted to the `Commission for consideration, chapter 2104 includes unclassified patent applications not yet released; informa- tion `concerning bills of material, time schedules', `anticipated requirements', new sites and selection o'f contractors in advance of formal announcement, or any other information which might assist a person to benefit improperly from a Commission program; and lists `of disqualified bidders and ineligible contrac- tors. We believe that these exceptions `are necessary to `the proper performance o'f the Commission's statutory duties. The bill does no't take into account the necessity for an agency `such as the Commission to withhold selectively information in the `overall interest of the United States in `order to achieve more favorable arrangements with ether coun- tries. For example, the Commission can save significant funds `and accelerate its technical program by entering into' information exchange arrangements with advanced nations under which certain unclassified technical information is pro- vided in exchange for comparable data from other countries. The negotiation of such arrangements would become much more difficult, if not impossible, if the Commission were required to disclose all its technological information "to anv PAGENO="0244" 236 FEDERAL PUBLIC RECORDS LAW [foreign] person" without reciprocal benefits. As a related point, the Commis- sion has established internal procedures governing the dissemination to foreign nations of unclassified published and unpublished AEC technical information. Under these procedures unusual requests from foreign nations; e.g., for large collections of engineering drawings on nuclear reactors, chemical processing plants, etc., are subject to careful examination, while the same information is not withheld from interested domestic parties. Under H.R. 5012, it would appear that such information is to be made available to anyone, since it is presumably not covered by the first exception, dealing with "foreign policy." In the case of certain Qf our exchange programs, we have agreed with the cooperating nations that some categories of information we receive from them, although unclassified, will be given only limited distribution by the Commission. The language of the bill does not make it clear that it would permit continuation of such arrangements. We believe that a question is raised by the word "solely," as It occurs in the second and fifth exceptions. A serious question of interpretation might arise if a court should be called upon to consider whether a document relates "solely" to the subjects discussed in those sections-internal personnel rules and practices, matters of law or policy. In view of the fact that the question whether a docu- ment falls within the excepted classes would be decided by litigation, we think that such language is especially troublesome. The exceptions for records and reports of investigation should not apply "to the extent available by law to a private party." We believe that the quoted language should be clarified and an objective standard enunciated in the bill itself, especially since an order directing the disclosure of information might lead `to irreversible prejudice to the public interest. REP1~Y FROM CIVIL AERONAtrTICS BOARD CIVIL AERONAUTICS BOAED, WasMn~ton, 110., Maro1~ 12, 1~)65. Hon. Wn~LL&M L. DAwsoN, Cha'irman, 0omn~ittee on Got,erntnen~t Operations, Hesse of Representatives. Da~ ME. Crnua~wr: This is In reply to your request for reports on H.R. 5012 through H.R. 5021, H.R. 5237, H.R. 5406, H.R. 5520, `and H.R. 5583, bills "To amend section 161 of the Revised Statutes with respect to the authority of Fed- eral ofilcers and agencies to withhold information and limit the availability of records." The proposed legislation would require every agency of the Federal Govern- ment to make all its records available to the public, except for those in specified categories. Persons denied access to records would be entitled to seek an order from a Federal district court convenient to them requiring the production of the records with the burden of proof to justify withholding being placed on the agency involved. It appears from statements made in support of the legislation when it was introduced that It is based on S. 1666, 88th Congress, a bill amending the Ad- ministrative Procedure Act. The Board is gratified that a number of provisions contained in S. 1666 to which it objected in a report to the Senate Committee on th.e Judiciary on October 23, 1963, have not been incorporated in the legislation, and that the scope of the provisions exempting materials from disclosure has been broadened. At the same time, however, the Board is concerned as to the effect of some of the provisions on its policies and procedures. Before discussing these provisions, the Board wishes to' point out that it recognizes the overall desirablity of making factual information available to the public to the fullest extent consistent with the effective discharge of the public business and the private rights of the persons from whom~ the information is obtained. In furtherance of this objective, the Board attempts to make factual information in its possession available to private persons to the fullest possible extent. Thus, the Board makes factual information relating to' aircraft accidents available for the use of private litigants when it cannot be obtained from other sources. The Board also makes available various statistical and other information relating to air carriers, and section 1103 of the Federal Aviation Act (49 U.S.C. 1503) specifies that most of the matters filed with the Board by air carriers and other persons be treated as public records. Conse PAGENO="0245" FEDERAL PUBLIC RECORDS LAW 237 quently, there is little in the way of factual information which is not now avail- able to the public. Indeed, the Board Is not aware of any complaints concerning its present informational policies with respect to basic factual matters. Turning to the provisions of the legislation, the Board assumes that the exemption from disclosure covering matters "specifically exempted * * * by statute" would be applicable to its procedures under sections 902(f) (divulging of information), 1001 (conduct of proceedings) and 1104 (withholding of in- formation) of the Federal Aviation Act (49 U.S.C. 1472(f), 1481 and 1504). Concerning the exemption for "inter-agency or intra~agency memorandums or letters dealing solely with matters of law or policy", the Board believes that there are documents of this nature not restricted to matters of "law or policy" which should not be disclosed to the public since many of them contain staff views and recommendations. It has long been recognized that the disclosure of internal governmental materials containing staff views and recommendations tends to destroy candor in presentation contrary to the public interest, and the courts have accorded a qualified public policy privilege to such materials for this reason. See Kaiser Aiutn4nsøn d~ CheinieaZ Corp. v. United States, 157 F. Supp. 939. As there stated by Mr. Justice Reed (at pp. 945-946): "Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It Is true that it now ~ubm1ts itself to suit but It must retain privileges for the good of all. "There is a publi~~ policy Involved lii this claim of privilege for this advisory opinion-the policy of open, frank discussion betWeen subordinate and chief * * *" The Board also believes that exempting from disclosure only "investigatory files compiled for law enforcement purposes" could impede and hamper the dis~ charge of certain of Its important functions. Although Investigatory files de- veloped in discharge of the Board's responsibility under section 701(e) of the act (49 U.S.C. 1441(e)) for ascertaining the cause of aircraft accidents, and making recommendations designed to avoid future such accidents, are not complied for "law enforcement purposes," such files contain staff views and statements. Thus, the opening up of these files would be contrary to the public interest as well as impede the discharge of the Board's responsibilities in this area. The Board further believes that permitting persons desiring access to records to select the judicial district most convenient to them for production of the records, rather than the district in which the records are located, could impose a severe administrative burden on It. In addition to the time and expense that would be required for travel bSr the ~13oard's employees to numerous points throughout the country, substantial costs and Inconvenience would be incurred by shipment of voluminous records to such points. Despite the fact that H.R. 5012 and the related bills constitute improvement over S. 1666; the Board is opposed to their enactment because it believes that its existing policies and procedures adequately provide the public with factual in- formation, and because of the undesirable eftects of certain provisions of the bills on the discharge of its functions. The Board has been advised by the Bureau of the Budget that there Is no objec~ tion to the submission of this report from the standpoint of the administration's program. For the Civil Aeronautics Board: HAROLD It. SANDEItSON, Secretary. REprx FRoM CIvth SERVICE CoMMIssIoN U.S. OlvIL Snnvicz CoMMIssIoN, Washington, D.C., March ii, 1965. Hon. WILLIA~r L. DAWSON, Chairman, Committee on Government Operations, House of Representatives. DEAR Mn. ~I-IAIRMAN: This is in further reply to your letters of February 19, 1965, February 24. 1965, February 26, 1965, and March 2, 1965, requesting the PAGENO="0246" 238 FEDERAL PUBLIC RECORDS LAW Commission's views on H.R. 5012 through 5021, Hit 5237, H.R. 5406, ER. 5520, and H.R. 5583, identical bills to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold Information and limit the availability of records. These identical bills would amend section 161 of the Revised Statutes (5 U.S.C. 22). Subsection (a) repeats present law. Subsection (b) requires every Federal agency, except Congress and the Courts, to make Its records promptly available to any person and authorizes recourse to the district courts to enforce this right. Subsection (c) provides certain exceptions under which an agency could withhold Information from the public or limit the availability of its records. The following are the excepted matters that are particularly of interest to the Commission: (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 any agency; (5) Inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy; (6) Personnel and medical files and similar matters, 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 private party. We would interpret the exception No. (2) as exempting matters relating solely to the internal personnel rules and practices of the Federal Government as a whole. This is consistent with the interpretation by the Department of Justice of similar language appearing in the Administrative Proceudre Act. The Civil Service Commission does not object to the enactment of the provi- sions contained in the Identical bills listed above. The Bureau of the Budget advises that from the standpoint of the Administra- tion's program there is no objection to the submission of this report. By direction of the Commission: Sincerely yours, Jonx W. MACY, Jr,, Chairman. REPLY FROM FEDERAL AVIATION AGENCY FEDERAL AvIATIoN AGENCY, Washinqton~, D.C., March11, 1965. Hon. WILLIAM L. DAwsoN, Ohairnva'n, Comrn4ttce on Govertvinent Operations, House of Representatives. Dn&u Mu. CHAIRMAN: This is in reply to your request for the views of this Agency with respect to H.R. 5012 tb~ough 5021, 5237, 5406, 5520, and 5583, iden- tical bills to amend section 1.1 of the Revised Statutes with respect to the au- thority of Federal officers and agencies to withhold information and limit the availability of records. The provisions of this bill raise a number of basic questions concerning the availability of Agency records and documents. The existing statute defining availability of Agency records, the Administrative Procedure Act, provides that only "matters of official record" need be made available only to "persons prop- erly and directly concerned" and that even these `documents may be held conS. fidential "for good cause found." The three quoted limitations operate to give agencies needed discretion as to what may be withheld. All three of the limita- tions are omitted from HR. 5012. In addition, a judicial procedure for com- pelling disclosure Is provided which begins with the presumption that the Agency has improperly withheld the information sought-a presumption which the Agency must overcome to vindicate Its nondisclosure. If a statutory change respecting availability of agency records and documents is thought desirable, the statute ouSht to be clear that only factual material need be made available. We suggest the word "factual" be inserted before the word "records" on page 2, lIne 3, of ER. 5012. On the same point, the eight exceptions listed in the proposed section 161 (c) are essential as they include those matters for which there is no legitimate disclosure need. We oppose the provisions In the proposed section 161(b) following the first sentence `In that section, which grant broad authority to district courts to compel disclosure of `agency materials. The underlying Issue here is where discretion should lie to decide what matters are pro~erIy withheld. The existing statute PAGENO="0247" FEDERAL PUBLIC RECORDS LAW 239 places that discretion in the agencies. ER. 5012 would in large measure place the discretion In the Federal district court. It is our belief that agencies are in a better position to determine the precise consequences of releasing a given document and for that reason should retstn initial discretion to decide what should be disclosed. Placing this discretion in the courts can only be justified by a clear showing that agenices are abusing their powers. It has not been our experience that such a charge has been or could be made. In view of the burden which will without question be placed on the courts by this proposal, and in rtew of the facility the proposal affords for unreasonable, dilatory and harassing requests, we would hope no shift of discretion would be made that is not founded on a well-docmnenthd case that the existing system is being abused. The Bureau of the Budget has advised that there is no objection from the standpoint of the administration's program to the submission of this report to your committee. Sincerely, N. E. HALABY, Adminiistrator. REPLY FROM FEDERAL COMMUNICAnONS COMMISSION Fimm~L CoMMuNIcArior~rs COMMISSION, Washington, D.C., April 2, 1965. Hon. WILLIAM L. DAWSON, Chairman, Committee on Government Operations, Honse of Representatives. DEAR Mn. CHAIRMAN: This is in reply to your request seeking this Commis- sion's comments on HR. 5012 to H.R. 5021, inclusive, and H.R. 5237, ER. 5406, H.R. 5520, ER. 5583, and H.R. 6172, identical bills to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records Enclosed please find copies ol! our comments on these bills. We are advised by the Bureau of the Budget that from the standpoint of the administration's program there Is no objection to the presentation of this report to your committee. Yours sincerely, E. WILLIAM HENRY, Chairman. CoMMENTs or THE FEDERAL CoMMUNICATIoNs COMMISSION ON ER. 5012 `ro H.R. 5021, INCLusIvE, AND H.R. 5237, H.R. 5406, H.R. 5520, H.R. 5583, AND H.R. 6172, IDENTICAL BILLS To AMEND SECTION 161 or' THE REVISED STATUTES Wirn REsPEcT TO THE AUTHORITY OF FEDERAL OFFICERS AND AGENCIES To WITHHOLD INFORMATION AND LIMIT THE AVAILABILITY 05' Rnconns Bills H.R. 5012, et al., would amend sectIon 161 of the Revised Statutes (5 U.S.C. 22) wIth respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. The bills provide, with eight specific exceptions,1 that every agency shall publish rules making "all its records promptly available to any person." They further provide for an action In a district court to require the agency to produce records improperly withheld. The basic statutory provision governing the availability of Commission rec- ords is section 3(c) of the Administrative Procedure Act (5 U.S.C. 1002(c)). That section provides: "Save as otherwise required by statute, matters of official record shall in accordance with published rule be made available to `The eight areas In which an agency may withhold Information from the public, or limit the availability of records to the public, are matters that are "(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 any agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from the public and privileged or confidential; (5) inter- agency or intra-ageney memorandums or letters dealing solely with matters of law or policy; (6) personnel and medical files and similar matters the disclosure of which would con- stitute a clearly unwarranted invasion of personal privacy; (7) Investigatory files compiled for law enforcement purposes except to the extent available by law to a private party; and (8) contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions." PAGENO="0248" 240 FEDERAL PUBLIC RECORDS LAW persons properly and directly concerned except information held confidential for good cause found." Section 4(j) of the Communications Act further provides in pertinent part: `"` * * Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of any party Interested. The Commission is authorized to withhold publication of records or proceedings containing secret information affecting the national defense." Sections 213(f) and 412 of the Communications Act (47 U.S.C. 213(f) and 412), give the Commission discretion to withhold specific types of information. The Commission has published rules and regulations which specify which of its records are open to public inspection and which are ordinarily not for public disclosure (sec. 0.417, 47 CFR 0.417). A copy of these rules is attached. This section of the rules also specifies procedures whereby interested parties may, at the Commission's discretion, gain access to those records not ordinarily avail- able for public inspection. The Commission agrees with the underlying purpose of these bills-that agen- cies should operate publicly. Section 2 of these bills would repeal all "laws or parts of laws inconsistent with the amendment made by the first section of this Act." Among the laws which would be affected is subsection 3(c) of the Administrative Procedure Act, 5 U.S.C. 1002(c), whIch permits matters of offi- cial record to be held confidential for good cause found. We believe that the general standard of subsection 3(c) has worked well, and that the Commision has fairly complied with it. flowever, should Congress find it desirable to enact legislation along the lines of H.R. 5012, this Commission does not anticipate any particular difficulty in administering a more specific statute. We do oppose certain features of the proposals in H.R. 5012 and should like to comment on these particular points. By requiring every agency to make all of its records, except those containing eight specified categories of Information, promptly available to any person, and by repealing all laws inconsistent with this requirement, these bills would sub- stantially enlarge the categories of material and records which would be open to the public. We believe that the bIli~ go too far in this direction. First, we believe that in the absence of good cause shown, it is sound public policy to exclude from public inspection matters prepared by agency personnel for use within the agency, such as memorandums and reports, as well as inter- agency memorandums, letters, and reports of investigations. (See generally, "Attorney General's Manual on the Administrative Procedure Act," pp. 24-2&) Subsection (c) (5), exempting from disclosure "interagency or intra-agency memorandums or letters dealing solely with matters of law or policy," would be difficult to interpret and would not protect all intra-agency memorandums. Most intra-agency memorandums of necessity deal with both facts and law or policy. Furthermore, subject to provisions of law governing separation of functions (§ 5(c) of the Administrative Procedure Act; § 400(e) (1) of the Communica- tion~ Act), the Commission should be able to receive memorandums and working papers from the staff without the need for disclosing such working papers. It is important to the effective functioning of the Commission that members of its staff who are called upon for advice and assistance may respond upon a confi- dential basis. If staff memorandums are to be examined almost routinely outside the Commission, staff advice and suggestions will inOvitably be inhibited. We stress that our position Is not premised on any desire to permit agencies to decide cases upon extraneous or incorrect bases (indeed, we must set out the factual and legal bases of all our actions and these bases are subject to review by the courts). Rather, our aim here is simpls' to permit the most effective and full exchange between the agency members and their staff-the very same type of exchange permitted, for example, between judges and their staffs. Finally, we point out that the same considerations apply to correspondence and memorandums exchanged with the executive branch (e.g., the Bureau of the Budget) or with other agencies (e.g., the Federal Trade Commission). Furthermore, the effect of the provisions of U.R. 5012 regarding secret matter is unclear to us. Under section 4(j) of the Communications Act, 47 U.S.C. 154(j), the Commission "is authorized to withhold publication of records or proceedings containing secret information affecting the national defense." See also section 3 of the Administrative Procedure Act, 5 U.S.C. 1002. A Commis~ sion rule promulgated pursuant to that authority currently provides that maps showing the exact location of submarine cables shall not be open to public inspec- tion (Commission rules, sec. 0.417, 47 CFR 0.417). Items on the Commission's PAGENO="0249" FEDERAL PUBLIC RECORDS LAW 241 classified agenda are also withheld under section 4(j) of the Communications Act because they contain "secret information affecting the national defense." We believe that subsection (c) (3) of H.R. 5012 providing an exemption for matter "specifically exempted from disclosure by statute" would be interpreted to include section 4(j) of the Communications Act. However, the provision of section (c) (1) of H.R. 5012 for an Executive order relating to secret matter might be deemed to repeal section 4(j) in light of the repeal provisions of sec- tion 2 of H.R. 5012. This question should be clarified so that the Commission's present authority under section 4(j) is retained, particularly since it is unclear whether a general Executive order or a series of particularized ones is con- templated. Subsection (c) (4) of the bills recognizes the necessity of protecting the con- fidentiality of trade secrets and "commercial or financial information" obtained by the agency from the public and "privileged or confidential." The (Jommis- sion receives information, which by rule is not available to the public, pertaining to such matters as reports, contracts, maps, etc., in connection with the valua- tion of common carrier property (47 U.S.C. 213); contracts relating to foreign wire or radio communications whose disclosure would place American com- munication companies at a competitive disadvantage (47 U.S.C. 412) ; and cer- tain technical data furnished the Commission by manufacturers of radio re- ceivers (Commission rules, sec. 0.417, 47 CFR 0.417). We believe it would be undesirable to make all of this Information automatically available to any per- son, rather than retaining the Commission's present discretion, It is not clear, however, whether the phrase "commercial or financial information obtained from the public and privileged or conflde~tial" [emphasis supplied] is broad enough to include all of the above-described information. We are also concerned with the meaning of subsection (c) (7), which exempts from public disclosure "investigatory files compiled for law-enforcement pur- poses except to the extent available by law to a private party." It is not clear at what point letters, memorandums, complaints, etc., become an "investigatory file" within the meaning of this provision. If this provision is not Intended to apply until an investigation is undertaken by the Commission staff, then the complaint initiating an investigation would have to be made public upon re- quest. Such a result would be highly undesirable. For example, the Commis- sion has received confidential information in the past from broadcast station employees who charged that the station was being operated in violation of the law or Commission rules or policies. Such information might not be forth- coming if it could not be supplied, initially at least, on a confidential basis. We also suggest that a ninth category be added to exempt from the broad disclosure provisions of these bills all material in adjudicatory cases, the proce- dure for which is governed by sections 5, 7, and 8 of the AdministrativeProcedure Act (5 U.S.C. 1004-1007). For example, in many hearing cases, especially those Involving license renewal or revocation, the Commission does not disclose the names of witnesses who have been subpenaed. Whether such information should be disclosed is a highly specialized question which we urge should not be dealt with in general public disclosure legislation. Finally, the proposed enforcement procedure also appears to be undesirable. It reverses the normal presumption that a Government agency has acted prop- erly and in accordance with law. We also believe that, with respect to this Com- mission at any rate, there is no need for creating a new cause of action in the district courts. A Commission refusal to make records available for public inspection should be reviewable by a person aggrieved in the same manner as other agency actions under section 402(a) of the Communications Act (47 U.S.C. 402(a)), and the Judicial Review Act of 1950 (5 U.S.C. 1031-1042). The latter statute contains ample provisions to insure a full and fair review of the agency~s actions, without the time-consuming and unnecessary resort to de novo trial of the entire matter. The statute limits, properly, we think, resort to the courts to those substantially affected by an agency order. If there were to be a dif- ferent standard as to standing to seek review, amendment of the above-cited provisions would be required.~ Attachment. Adopted March 31, 1965, Commissioner Loevinger absent. 2 Adoption of a different standard allowing any person to obtain review, irrespecti~e of his interest or aggrievesnent, would raise serious legal and policy questions. Cf. dissenting opinion of Douglas, J., &ripps.Howard Radio, Inc. v. Fed eral Oosnmunication,,s Commission, 816 U.S. 4. PAGENO="0250" 242 FEDERAL PUBLIC RECORDS LAW FEDERAL COMMUNICATIONS COMMISSION, RULES AND REGULATIONS Information § 0.411 Pu blie information Any person desiring to obtain information may do so by writing or coming in person to any of the Commission's offices. A broader range of information and more comprehensive information facilities are available at the Commission s maui office in Washington, D.C., however, and inquiries of a general nature should ordinarily be submitted to that office. § 0.418 General information o1~goe The Office of Reports' and Information is located in the New Post Office Build- ing Here the public may obtain copies of public notices of Commission actions formal documents adopted by the Commission and other public releases, as they are issued. Back issues of public releases are available for inspection in this Office. Copies of fact sheets which answer recurring questions about the Commis- sion's functions may be obtained from this Office. § 0.415 Public reference rooms Publie reference rooms are maintained by the Commission where the public may inspect any material which is available for public inspection in accordance with § 0.417. Unless otherwise indicated, these rooms are located in the New Post Office Building, 13th Street and Pennsylvania Avenue, NW., Washington, D.C. They are as follows: (a) The Broadcast and Docket Reference Room. Here the public may inspect all broadcast applications and files relating thereto, lists described in §~ 0.419, 0.421, and 0.425, dockets relating to all Commtsaion matters which have been designated for hearing or which are the subject of rule making proceedings, any other docketed matters, and undocketed petitions for rule making. (b) The public may inspect all safety and special applications and files relat- ing thereto at the offices of the Divisions of the Safety and Special Radio Serv- ices Bureau which process such applications. The categories of radio stations in the Safety and Special Radio Services, and the Divisions concerned therewith, are listed in § 1.951 of this chapter. The Marine Radio Division, the Public Safety Radio Division, and the Amateur and Citizens Radio Division are located in the 1101 Building, 11th Street and Pennsylvania Avenue NW., Washington, P C In addition a comple)te file concerning amateur radio operators is available for Inspection in the Amateur License Reference Room, which also Is located in the 1101 Building. (c) Information concerning applications filed by commercial radio operators may be obtained at the 1101 Building, 11th Street and Pennsylvania Avenue NW., Washington, D.C. (d) The Common Carrier Reference Rooms, located in the 1101 Building, 11th Street and Pennsylvania Avenue NW, Here the public may inspect the following: (1) All annual and other reports filed by common carriers pursuant to section 219(a) of the Communications Act. (2) The schedules for all charges for Interstate and foreign wire or radio com- munications filed pursuant to section 203 of the Communications Act. (3) Contracts, agreements, or arrangements between carriers filed pursuant to section 211(a) ocf the Communications Act. (4) All applications for common cavrier authorizations, both radio and non- radio, and files relating thereto. (e) The Experimental Services Branch of the Technical Division of the Office of the Chief Engineer. Here the public may inspect experimental license files. (f) The Frequency Registration and Notification Branch of the Frequency Allocation and Treaty Division, Office of Chief Engineer. Here the public may inspect the frequency records of the Commission. (g) The Technical Standards Branch of the Technical Division of the Office of the Chief Engineer. Here the public may inspect the Radio Equipment Lists (lists of type-approved and type-accepted equipment). § 0.417 Inspection of records (a) Subject to the provisions of sections 4(j) and 606 of the Communications Act of 1934, as amended, the following Commission records are open to public Inspection: (1) Tariff schedules required to be filed under section 203 of the Communica- tions Act, all documents filed in connection therewith, and all communications related thereto. PAGENO="0251" PEDERAL PUBLIC RECORDS LAW 243 (2) Valuation reports filed under section 213 of the Communications Act, including exhibits filed in connection therewith, unless otherwise ordered by the Commission, with reasons therefor, pursuant to section 213(f) of the Communica- tions Act. (3) Annual and monthly reports required to be filed under section 219 of the Communications Act. (4) Contracts, agreements, or arrangements between carriers filed pursuant to section 211(a) of the Communications Act, except for those kept confidential by the Commission pursuant to section 412 of the Act. The Commission will give appropriate consideration to a petition filed by any person showing that any such contract, agreement, or arrangement relates to foreign wire or radio com- munication; that its publication would place American communication companies at a disadvantage in meeting the competition of foreign communication com- panies; and that the public interest would be served by keeping its terms con- fidential. (5) All applications and amendments thereto filed under Title II or Title III of the Oommunications Act, including all documents and exhibits filed with and made a part thereof; all communications opposing or endorsing any such applica- tion; all pleadings, briefs, and other papers filed with the Commission with re- spect to such applications; transcripts of testimony, depositions, and exhibits pertaining to such applications; orders and other documents issued by the Commission or the presiding officer in proceedings thereon; and all authoriza- tions and certifications issued upon such applications. Pursuant to section 3(c) of the Administrative Procedure Act, however, the Commission may, upon a finding of good cause, either on its own motion or on motion of an applicant, permittee, or licesnsee, designate any of the material in this subparagraph as "not for public inspection". (6) All petitions for issuance, amendment, or repeal of any rule, including all documents or exhibits filed with and made a part thereof; all communications opposing or endorsing any such petition; all pleadings, comments, briefs, and other papers filed in rule making proceedings; transcripts of testimony, deposi- tions, and exhibits in such proceedings; and all orders and other documents issued by the Commission or the presiding officer in such proceedings. Pursuant to section 3(c) of the Administrative Procedure Act, however, the Commission may, upon a finding of good cause, either on its own motion or on motion of any participant Lu the rule making proceeding, desgnate any of the material in this paragraph as not for public inspection. (7) All minutes of Commission actions except for minutes oct classified matters (pursuant to section 4(j) of the Communications Act) and executive matters (pursuant to section 3 of the Administrative Procedure Act). (8) The Master Frequency Records (Standard Form 128). (9) Files relating to submarine cable landing licenses, except for maps show- ing the exact location of submarine cables, which are withheld from public inspection under section 4(j) of the Communications Act. (`b) Subject to statutory restrictions, the Commission may in its discretion open other records to public inspection, upon written request describing ifi detail the documents to be inspected and the reasons therefor. Normally, however, the following Commission records are not open to public inspection: (1) The information filed under § 1.611 of this chapter, and network and tran- scription contracts filed under § 1.618 of this chapter. See 18 U.S.C. 1905. (2) Information submitted by equipment manufacturers and other persons, in accordance with the provisions of §~ 2.577, 5.204, and 15.70 of this chapter. See 18 U.S.C. 1905. (3) Personnel files. See 5 11.5.0. 631. (Sees. 4, 213 412 and 606, 48 Stat. 1066, 1074, 1099 and 1104, as amended; 47 U.S.C. 154, 213, 41~ and 606. Sec. 1905, 62 Stat. 791; 18 U.S.C. 1905. Sec. 1753, Revised Statutes; 5 U.S.C. 631) REPLY FROM FEDERAL HOME LOAN BANK BOARD FamiliAL HOMS Lo~ BANK BOARD, Washington, D.C., March 80, 1965. lion. JOHN E. Moss, Chairman, Foreign Operations and Government Information Subcommittee, House of Representatives. DEAR Mn. CHAIRMAN: Reference is made to your request for comments on H.R. 5012 of the present Congress, which if enacted would amend section 161 of the Revised Statutes (5 U.S.C. 22). PAGENO="0252" 244 FEDERAL PUBLIC RECORDS LAW In its present form, that section provides in its first sentence that the head of each department is authorized to prescribe regulations, not Inconsistent with law, for (among other things) the custody, use, and preservation of the records, papers, and property appertalning to it. It further provides in its second sen- tence (added by Public Law 85-619, approved Aug. 12, 1958) that the section does not authorize withholding information from the public or limiting the availability of records to the public. HR. 5012 would retain the substance of the first sentence and would add two new subsections. The first of these, subsection (b), would provide that every agency-defined as each authority, whether or not within or subject to review by another agency, of the Government of the United States other than Congress or the courts-shall, in accordance with published rules stating the time, place, and procedure, make all its records promptly available to any person. The U.S. district court in the district where complainant resides or has his principal place of business, or where the records are situated, would have jurisdiction to enjoin the withholding of records and information. The bill provides that in such cases "the court shall determine the matter de novo and the burden shall be upon the agency to sustain its action." The other new subsection, subsection (c), would provide that the section does not authorize withholding information from the public or limiting the availability of records to the public except in eight specified categories, of which the last covers matters "contained in or related to examination, operating, or condition reports prepared by, on behalf, or for the use of any agency respon- sible for the regulation or supervision of financial institutions." As the agency responsible for the Federal regulatory and supervisory func- tions with respect to all Federal savings and loan associations and all savings and loan associations and similar institutions whose accounts are Insured by the Federal Savings and Loan Insurance Corporation, the Federal Home Loan Bank Board is of the view that all matters relating to the condition or affairs of financial institutions should be exempt from disclosure where the agency having authority with respect to the examination, regulation, or supervision of such institutions determines that disclosure would not be in the public interest. The present bill, by limiting the exemption to such matters as are "contained in or related to examination, operating, or condition reports" as set forth in the bill, falls short of what the Board believes is needed in thl~ connection for the protection of the public. Further, the Board is concerned that the bill appears to disregard the doctrine of executive privilege. While the Board recognizes that there are areas of disagreement over that doctrine, the Board also feels that the existence of this doctrine from the very founding of the Republic is evidence of the vital role it plays in protecting full freedom of discussion as the basis for administrative operations and decisionmaking. The exemption in the bill for "interagency or intra-agency memorandums or letters dealing solely with matters of law or policy" is far from an adequate expression of the scope of this doctrine. While a precise estimate is not possible, it is the Board's opinion that enactment ~f this bill would add substantially to the expenses of the Board and the Federal Savings and Loan Insurance Corporation in fulfilling their statutory obligations. For the foregoing reasons the Board is not In favor of the enactment of H.R. 5012. Informal advice has been received from the Bureau of the Budget that, from the standpoint of the administration's program, there is no objection to the submission of this report. Sincerely yours, JouN B. HOENE, Chairman. REPLY FROM FEDERAL MARIPIME CoMMIssIoN FEDERAL MARITmIE CoMMIssIoN, Washington, D.C., March fl~,1965. Hon. WUIaAM L. DAwsoN, Chairman, Committee on Government Operations, House of Representatives. DEAR Mn. CXIAIRMAN: The following comments are in response to your request of February 1~, 1965, for the views of the Federal Maritime Commission on PAGENO="0253" FEDERAL PUBLIC RECORDS LAW 245 H.R. 5012 through H.R. 5021, bills to amend section 11 of the 1~evised Statutes with respect to the authority of Federal officers and agenices to withhold infor- mation and limit the availability of records. The Commission supports the principle of public access to information and records held by a Federal agency. However, in terms of the statutory responsi- bility placed upon the Federal Maritime Oominission, we believe that provisions of these bills are open to ambiguous interpretations which could adversely affect this Oommisson's maintaining certain inforipation and records submitted by persons subject to the Commission's jurisdiction on a confidential basis. For example, in section 161(c) (5) and (7) the use of the words "soley" and "law enforcement" could raise serious problems in determining which records must be made available to the public. Additionally, particular care must be given to defining categories of information which would be made available to the public under the provisions of these bills in the light of the criminal penalty, for exam- ple, under section 1905 of title 18 applicable to Government employees who divulge certain information. The bill would require any agency to sustain in the courts its withholding of Information or records when a complaint is filed by a member of the public. It would seem more orderly to the administrative process if provisions were made for the complaint to specifically state the nature of the record desired and the reasons why the complainant believes it to be wrongfully withheld. By statute, certain information and records must be filed with this Commission by parties subject to its jurisdiction. In many cases this information is of a confid~rntial business nature involving competing carriers of waterborne com- merce. Confidential Information is also received in connection with the Commie. sion's investigatory functions. The Commission has no choice but to continue to withhold this information from public scrutiny. Under these bills, if the Commission were not to have the authority to define the material to be withheld within the Commission, then further classification and definition of the types of records to be withheld would be needed. We would desire to furnish specific language necessary to clear up these ambiguities so that the intent of the bills could be accomplished. The Bureau of the Budget has advised that there would be no objection to the submission of this letter from the standpoint of the administration's program. We call to your attention that the comments herein contained are applicable to similar requests of your committee on H.R. 5237, 5406, 5520, and 5583. Sincerely yours, Joux HAELLEE, Rear Admiral, UJ~1. Navy (Retired), Chairman. BEPLY FROM FEDERAL PowEit CoMMIsSIoN FrnmaAx. Powrn COMMISSION, TVashington, D.C., March .90, 1965. Re H.R. 5012 through H.R. 5021; KR. 5287; H.R. 5406; II.R. 5520; HE. 5583; HR. 6172, amE~nd section 161 of the Revised Statutes * * Hon. WILLIAM L. DAwsoN, Cha4rman, Committee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: In response to your requests for comments on the sub- ject bills, there are enclosed copies of the report of the Federal Power Commission. It is contemplated that this report may be released by the Commission to the public within 3 working days from the date of this letter unless there is a request that its release be withheld. Sincerely, JOSEPH C. SwIDr~un, Cha4rnmn. FEDERAL Powna COMMISSION REPORT ON KR. 5012, ET AL., 89TH CONGRESS A BILL To amend section 161 of the Revised Statutes with respect to the au- thority of Federal officers and agencies to withhold information and limit the availability of records The purpose of H.R. 5012 is to amend Rev. Stat. 161 (5 U.S.C. 22) to make agency records and information more readily available to the public and to PAGENO="0254" 246 FEDERAL PUBLIC RECORDS LAW delineate specific kinds of information which may be withheld. The ame~cIment, which would apply not only to the executive departmenth but to all Government agencies other than Congress and the courts, would have the effect of also amending section 3 of th.e Administrative Procedure Act (see 111 Congressio~ial Record (daily) 2856-57, Feb. 17, 1965). The proposed bill is identical to H.R. 5013-5021, 5237, 5406, 5520, 5583, and 6172. We have no specific objection or reservations to the provisions of this bill with the following two exceptions: 1 Under subsection (c) clause (5) would permit withholding of `interagency or intraagency memoranthima or letters dealing solely with matters of law or pol- icy." This language was developed by the Senate Judiciary Committee in S. 1666, 88th Congress, as it passed the Senate. July 31, 1964 (S. Rept. 1219, 88th Cong.) In the debate on this provision on the Senate floor, the then Senator Hum- phrey proposed adding to the exemption the phrase "matters of fact," but the amendment was laid aside at the suggestion of S6nator Edward V. Long, fio~r manager of the bill. Senator Long indicated that it was not the purpose of the bill to override normal privileges dealing with work products and other memoran- dums summarizing facts used as a basis for recommendations for agency action if those facts were otherwise available to the public (110 Congressi~na1 Record (daily) 17079, July 13,1964). Staff memorandums are normally an unavoidable mixture of law, policy, and fact, since it is almost never possible to discuss the law and policy relating to a particular matter except in its factual context. it appears that Senator Long's statement recognizes the impracticality of attempting to distinguish these three elements. Senator Humphrey's amendment would make explicit what Senator Long has suggested is implicit. Indeed, it is a necessary amendment if the committee Is seeking to avoid implied exceptions in addition to those which are express. We believe Senator Humphrey's proposal to broaden the exemption to In- dude "matters of fact" as well as matters of law or policy is sound in principal. However, since the broadened exemption would then cover virtually all Inter- agency or intra-agency memorandums or letters we suggest that the qualifying words are unnecessary and the exemption should simply read "(5) interagency or intra-agency memorandums or letters." This revision would clearly specify the material included in the exemption and would avoid implied exemptions In addition to those which are expressed. 2. Under subsection (c), clause (7) would permit withholding of "investiga- tory files compiled for law enforcement purposes except to the extent available by law to a private party." This phraseology was a Senate floor amendment of the language in S. 16641 as reported by the Judiciary Committee (See 110 Congressional Record (daily) 17079-80, July 31, 1964). The earlier language read: "investigatory files until they are used in or affect an action or proceeding or a private party's effective participation therein." Senator Humphrey contended that the earlier language opened up investigatory files beyond anything required by the courts, including Jencks v. United ,fitates, 353 U.S. 657 (1957). In proposing the new language, which was adopted, Senator Long said the purpose of the provision was to In- clude the substance of the Jencka rule in the bill. Unfortunately, the change in language to broaden the scope of the exemption may have resulted in limiting its scope in another area; namely, the express committee intention that the exemption should cover all agency Investigatory files regardless of the nature of the agency proceeding (S. Rept. 1219, supra, p. 14). The new language creates an ambiguity which could be of considerable significance. If the phrase is read narrowly it may be interpreted to exempt ot~ly investigations having an accusatory or disciplinary purpose. Thus, investiga- tory files relating to rate or certificate proceedings before the Federal Power Commission might enjoy no protection against disclosure, except to the extent that clause (5), supra (relating to internal memorandums), might afford some exemption. We believe the phrase "law enforcement" in this context was meant to be, and should be, the equivalent of administration of law. The Intent is to include in the exemption investigatory files in connection with all agency proceedings, Including the Commission's rate and certificate proceedings. This interpretation conforms both to the commIttee purpose to deal with investigatory files in general and to the Senate's purpose to narrow the divulgence of investi- PAGENO="0255" FEDERAL PUBLIC RECORDS LAW 247 gative file material to `the controlled circumstances permitted under Jeswks and 18 U.S.C. 3500 for the limited purpose of Impeachment of Government witnesses. In order to eliminate the existing ambiguity we recommend that the text of clause (7) be revised to read: "(7) investigatory files except to the extent available by law to a private party." RErI~~ FRoM FEDERAL RsslinvE BOARD BOARD OF Govnnxons OF THE FEDERAL RESERVE SYSTEM, Washington, D.C., Mare1i~ 10, 1965. Hon. Wn.IiAM L. DAwsox, Chairman, Committee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: This refers to your letters dated February 19, 1965, and February 24, 1965, respectively requesting a report and views on bills H.R. 5012 through 5021, and H.R. 5237, each identical with the others, all of which would amend section 161 of the Revised Statutes (5 U.S.C. 22) with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. For purposes of this reply, references to provisions of H.R. 5012, together with comments thereon, are Intended to apply equally to bills H.R. 5013 through 5021, and H.R. 5237. Subsection (a) of H.R. 5012 Is identical with the present language of the entire R.S. 161. In the interest of an ordered administration of Government Affairs consistent with the public interest the Board approves the provisions of sub- section (a) of H.R. 5012. With the exceptions of a portion of exemption numbered (4) (p. 3, lines 6 and 7 of H.R. 5012), exemption numbered (8) (p. 3, lines 14-17 of I-LR. 5012), and certain other minor variations, the combined subsections (b) and (c) of H.R. 5012 are identical with the provisions of section 3 (c) and (e) of S. 1663, 88th Congress, as revised `by the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary. Exemption numbered (4) in H.R. 5012 would authorize withholding from the public matters that are "trade secrets and commercial or financial information obtained from the public `and privileged or confidential." Exemption numbered (8) would authorize withholding matters "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions." The language of the latter exemption is Identical with language that the Board proposed be added to 5. 1663. This proposal, with explanatory comments, was submitted to Chairman Long of `the Senate Subcommittee on Administrative Prac- tice and Procedure, by letter of July 15, 1064. The Board considers the provisions of H.R. 5012 to be a vast improvement over the provisions of S. 1663 as originally introduced and, because of the presence In H.R. 5012 of the above-quoted portion of exemption numbered (4) and exemp~ tion numbered (8), to be an improvement over S. 1663 as revised. Nevertheless, the Board continues in its belief made known previously in its expression of views on 5. 1663, that the public's right of access to Government records and informa- tion is adequately and reasonably secured and served by the provisions of section 3(c) of the Administrative Procedure Act (5 U.S.C. 1002(c)). It is the Board's opinion that a combination of the provisions of section 3(c) of the Administra- tive Procedure Act with the court enforcement provisions proposed in H.R. 5012 would assure an equitable balancing of the need of Federal agencies to determine themselves what records and information a particular person should or need have, with the public's right to such records and information. Applied to this Board, there is reason to believe that a literal construction of the eight exemptions from disclosure contained in H.R. 5012 could leave exposed to indiscriminate public demand certain critical records and materials relating to the Board's credit and monetary policy functions, as well as to other of its statutorily directed functions. Such a result could Impair the Board's effectiveness both as an in- strument of national economic policy and as a regulatory body. Regarding the provisions In subsection (b) of H.R. 5012 whIch would enable a complainant to secure jpdicial relief when an agency wrongfully withholds records and information, the Board Is In sympathy with the need for a form of judicial enforcement, and is generally in accord with the means to this end PAGENO="0256" 248 FEDRRAL PUBLIC RECORPS LAW provided in subsection (b). Consistent with the Board's position earlier taken with reference to a similar provision in S. 1663, however, the Board opposes the provisions of subsection (b) which would permit "any person," whether or not properly and directly concerned, to have access to all agency records not specifi- cally exempted and, upon mere allegation of an improper withholding, would permit "any person" to bring suit to obtain a court order requiring production. While it is true that, under H.R. 5012, a court order requiring production of agency records would have to be based upon a finding that such records had been improperly withheld, it is believed that such requirement would have but a minimal deterrent effect on the potential number of baseless complaints that could be filed. In respect to cases filed, the agency is assigned the burden of sustaining its action in withholding records or information from "any person." Thus, in any case where the records sought do not fall within one of the eight exemptions set forth in subsection (c) of H.R. 5012, the agency, in attempting to sustain its action, would be denied the opportunity presently offered by section 3(e) of the Administrative Procedure Act of showing that the person demanding access to the agency records is not properly and directly concerned with the matter re- flected in such records. The Board is In accord with the purposes of subsections (b) and (c) of H.R. 5012, and, in reference thereto, finds reasonable the placing on the agency of the burden of sustaining its ~withholding action. However, that burden would be made unreasonable by retention in subsection (b) of the requirement that every agency shall make its recards available to "any person." Sincerely yours, WM. MoO. MARTIN, Jr. REPLY FROM GENERAL SERVICES ADMINISTRATION GENERAL SERVICES ADMINISTRATION, Washington, D.C., April 5, 1965. Hon. ~Tonx B. Moss, Chairman, $ubcommittee on Foreign Operations and Government Information, Committee on Governmental Operations, House of Representatives. DaAR Ma. Moss: Your letter of March 25, 1965, requested the views of the General Services Administration on H.R. 5012, a bill to amend section 161 of the Revised Statutes with respect to the authority of Federal o1~1cers and agencies to withhold information and limit the availability of records. The bill would, in effect, substitute for section 3(c) of tl~e Administrative Procedure Act (5 U.S.C. 1002(e)), new provisions, to be included in 5 U.S.C. 22, to govern the availability to the public of Government agency "records," providing jurisdiction in district courts of the United States to enjoin agency withholding of certain "agency records and Information," and providtu~ for cer- tain related aspects of judicial procedure, Including punishment for contempt of "responsible officers." The bill, which provides for eight categories of exception from a general information disclosure and records availability requirement, is similar to that portion of the proposal in S. 1336 and S. 1160 which would amend sec- tion 3(c) of the Administrative Procedure Act, and Is a refinement of similar provisions in S. 1666 and S. 1663 of the 88th Congress. The proposed bill is Intended to delineate more clearly Information and records access rights and to impose restrictions on the right of Government agencies to limit access to Government records and information. It would, in effect, circumscribe the present broad agency authority in section 3 of the Administrative Procedure Act to withhold information relating solely to agency "internal management," or information requiring nondisclosure "in the public interest" or "held confidential for good cause found," and would also, apparently, impose limitations on executive branch implied powers over records and information disclosure. We are naturally in agreement with the general objective of proper public access to Government records and information as a necessary characteris- tic of our free society. However, we think the bill would result, in some areas, in undesirable and perhaps unintended results adversely affecting both agency functions and reasonable rights of privacy of affected individuals. Past legislative efforts to deal with this problem appear to have been un- successful, primarily, we believe, because the remedy proposed was too sweep- PAGENO="0257" FEDEItAL I'IJBLIC RECOI~DS LAW 249 .ing to permit maintaining the delicate balance between the needs of effective Government and those of public information. Recognizing the extent of discretion over information disclosure and records access under present law, and to be constructive, we think It necessary to provide concrete suggestions as to types of Government information requir- ing special treatment as regards our agency functions. Specifically, we sug- gest that the following activities or matters should not bO open to general public inspection. 1. Property appraisals made by the Government for use in acquisition or ~disposal of prOperty, especially prior to consummation of the acquisition or disposal. (Disclosure would prejudice the Government's legitimate economic bargaining interests.) 2. Records related to evaluation of bidder responsibility, including finan- ~cial and credit information, especially prior to award. (Disclosure would make virtually impossible the orderly and fair conduct of contract award procedures; also, information on credit, integrity, etc., should be entitled to privacy In the interest of the affected individuals.) 3. Government (interagency) consolidated, as well as intra-agency, de- barred and suspended bidders lists; also, ex parte documents which reflect ad- versely on individuals. (These lists are maintained as a mechanism fo~ the conduct of a governmental proprietary function and general dissemination outside Government would serve no useful purpose and would be unfair and harmful to affected concerns because of the defamatory and "penal" impli- ~cations which would inevitably be drawn by many persons as a result of publicizing such lists. The individuals actually on the list are so advised and given opportunity to contest the debarment.) 4. Contract records in general, especially prior to award, but including after award, especially where the individuals seeking the information are not properly or directly concerned. (Indiscriminate access would be generally disruptive of the contracting process and promote unfair competitive actions among concerns doing business with the Government or otherwise. 5. Internal guidelines for Government use in dealing with contractors, such as architect-engineer fee curves. (Disclosure would prejudice the Govern- ~uent's legitimate e1~orts to negotiate effectively. The Government does not have equal access to contractor's private profit objectives in contract negotia- tion.) 6. Results of tests of contractor products by persons other than the manu- facturer or vendor. (Access to detailed test results by competitors would be unfair and potentially harmful to the producers or vendors of products which may be excellent products though not meeting particular Govern- ment specification requirements.) 7. Information which the Government is contractually bound to with- hold from dissemination. (Primarily technical data, manufacturing or proc- ess type information but not necessarily covered by category (4) of the bilL) 8. Budget, fiscal, and Government project information. (Proposed agency budget, until released by the President; proposed public buildings projects prior to submission to Congress, etc.) 9. Agency planning and other internal agency management documents, especially those which may give competitive advantage or would otherwise be prejudicial to the interests of persons similarly situated but who are with- out such information or which would adversely affect morale or effectiveness. (The proposed implied repeal of the present exception for any matter relating to "the internal management of an agency," would have particular Govern- ment disruption potential.) 10. Information which would prejudice the Government's bargaining position in business transactions, such as expected prices on stockpile sales, expected realization estimates on Government mortgage foreclosures, expected ultimate purchase or sale prices, etc. 11. Records and information representing preliminary and deve1opmenta~ processes in arriving at final decisions, including such matters as evalua- 1ion~ by subordinates looking toward recommendations for age~cv action (whether or not it falls within category (5) of the bill), including factual data which is not "law or policy." 12. Business, company, or other information furnished the Government In ~confidence, whether or not it falls technically within category (4) of the bill. (This principle is ingrained in both common law and statutory law, inelud. 45-213----65---pt. 1-IT PAGENO="0258" ~5Q FEDERAL I~U13LIC RECORDS LAW i~g prior acts of Congress such as 18 U.S.C. 1905; 18 U.SAJ. 605; 15 U.S.C. 190; 13 U.S.C. 9; 5 U.S.C. 13Db, etc.) 13~ AU categories of custo~~ry privileged matters within the conimon law context (doctor-patient, attqrney-eljent, clergy-parishioner, etc.), ~hetber or not it comes within categories ~4) or (6) of the bill, and including internal ~ private inat~tei~s of private parties not otherwise a matter of public information, 14. Records and information involved in current or pending claims and litigation and investigative records not related to "law enforcement." (This a needed addition to "law enfor~enient" under category (7) of the bill.) 15. Records and information, the nondisclosure of which Is directed by the President in the national interest. (Needed to preserve constitutional autbor~ jty of the executive branch, as more fully discussed below.) 16. I~ecords and information where the scope or nature of the request is of such character as does not reasonably permit compliance, by the agency because of the unavailability of manpower, or the particular skills needed to segregate or compile the information. (This has nothing to do with "with- 1~olding" the information, but simply the capability, administratively, to cope with the request to obtain a massive amount of information or specialized information requiring unavailable skills.) Except as the context of each item enumerated Qtherwise suggests, as for example privileged or proprietary information, or information withheld at the direction of the President, there would normally be no objection to furnishing information in the above categories to Congress., the Comptroller General, or any other authorized governmental source which would reasonably be expected to avoid indiscriminate publication or access. Unlike the ~dministrative Procedure Act which calls for the disclosure of `information to "persons directly and properly concerned," the proposed bill makes no distinction as to the status of persons seeking the information. The public interest in seeking a broad policy of liberal Government information dis~ closure should, it is believed, be balanced by an equal solicitude for avoidihg the release of Information in such way or ih such circumstances as would promote the mischievous purposes of lntermeddlers, idle curiosity seekers, Smut peddlers, persons with irrelevant prejudicial motives, and others having no reasonably legitimate interest in the information. An illustrittion of this principle is con- tained in the above Item suggesting the need to furnish information on the results of product tests to the product owner, but not to his cgmpetitors. ~I'be bill, imposing, as it does, significant disclosure requirements on tI~e execu- tive branch, naturally raises questions involving application of the basic principle of the equal and coordinate status of the three branches of the Federal Govern- ment under which no one branch may encroach upon the constitutional pre- rogatives of the others. In this respect, category (1) of the bill, for example, appears to contravene this principle by irnposing limitations on the executive branch, excepting only matters "to be kept secret in the interest of the national defense or foreign policy." (See, in this regard, Department of Justice comment on the Apr. 20, 1964, Subcommittee Revision of S. 1663, 88th Cong., 2d sess., Administrative Procedure Act hearings before the Senate Judiciary Committee, Subcommittee on Administrative Practice and Procedure, 88th Cong., 2d sess., ~n S. 1668, July 21, 22, 23, 1964, at p. 208, with particular reference to sec. 3 of that bill; also, the Department of Justice statement of Mar. 6, 1958, before the Subcommittee on Constitutional Rights, Senate Judiciary Committee, on "inquiry by the Legislative Branch Concerning the Decision Making Process and Docu- ments of the Executive Branch.") In this connection, the provisions of the bill providing jurisdiction for obtain- ing injunctions to require disclosure and authorizing the district court "to punish the responsible officials" for contempt, raises serious problems of fundamental conflicts between the executive and judicial branches of government. It is not unlikely that such a provision would respit in Government employees finding themselves on the horns of a dilemma: noncompliance with a court order, and a prison sentence for contempt, on the one hand-or, on the other hand, compliance with the court order and made the subject of disciplinary proceedings or other prejudicial consequences for failure to carry out an order issued by an authorized official of the executive branch. Also, to be noted here, is the inconsistency in terminology In proposed section (b) as regards the requirement simply to "make all its records available promptly" but providing a judicial remedy addressed more broadly to "records and information." PAGENO="0259" 1~1~rL~L 1?tTELIC IIECOBbS' LAW 251 Although th~ proposed section ~,) of the bill deals with "infonnatión" and "reeords,° category (5) of the bill speaks ori~r off interagency or intra-agency "memoranda or letters." It would appear appropriate to add the words "or other matters," in ordOr to make this category coextensive with the section subject tmttter. In category (2) of the bill the reference to internal personnel "rules and prac- tices" would appear to be narrower than the subject matter of the section which, as above indicated, deals with "information" and "records." Thus, it would appear desirable to add the word "matters," a term employed in a similar context in the Introductory portion of section 3 of the Administrative Procedure Act. Subsection (b) of the proposed 5 U.S.C. 22 provides for agency publication of rules stating the "time," place, and procedure to be followed in making its r'eco~ds available. If, as we would definitely recommend, it is the purpose of the reference to "time" to permit agencies to distinguish between availability of records before and after an event, then we recommend this be clarified. For example, if it is intended to permit an agency to withhold bid or negotiation information at least until after award, this is not entirely clear although we would be inclined so to construe it since such construction would contrib~ite to the workability of the criteria. It is worth noting that the subject matter of the bill is one which has heretofore been an integral part of the general structure of the Administrative Procedure Act, dealing with the broad subject of administrative procedure, authority, and limitatlons~ It would appear desirable that the subject matter of this bill renwin under section 3 of the Administrative Procedure Act since that section dea1~ with the entire subject of "public information," and there Is recognized inter- dependence and overlapping between subsection 3(c), proposed to be transferred to 5 U.S.C. 22, and subsections 3 (a) and (b), which would remain in the Ad- ininistrative Procedure Act. Based upon the foregoing considerations, the General Services Administration is opposed to enactment of H.R. 5012 in its present form. We recognize that perhaps some clarifying improvements in section 3 of the Administrative Pro- cedure Act may be desirable although we believe it has been generally reasonably construed. If legislation similar to the proposed bill is to be enacted, we recom- mend consideration of the adoption of amendments which will adequately re- flect the suggestions above outlined. The financial effect of the enactment of this measure cannot be estimated by GSA. However, substantial cost attributable to administration of such a meas- ure is inevitable. The Bureau of the Budget has advised that, from the standpoint of the ad- ministration's program, there Is no objection to the submission of this report to your committee. Sincerely yours, LAWSON B. KNOTT, Jr., Actin~~ Administrator. REPLY FROM HOUSING AND HOME FINANCE AGENCY HotrsxNo AND HOME FINANCE AGENCY, Ornicu on ma AsMINxsTnAToa, Washi~ng'ton, .b.C., Mar'o1i~ 23,1965. Subject: H.R. 5012, lIlt. 5018, lIlt. 5014, H.R, 5015, lIlt. 5016, H.R, 5017, lIlt. 5018, Rift. 5019, ELR. 5020, HR. 5021, lIlt. 5237, H.R. 5406, lilt. 5520, lilt. 5583,89th Congress. Hon. WILLIAM L. DAwSON, Chairman, Com~nittee o~ G erument Operatlon,s, House of Representatives. DEAR MR. CIL&IEMAN This is in further reply to your request for our vlew~ on the above-captioned identical bills "To amend section 161 of the Revised Stfatutes with respect to the authority of Pectoral officers and agencies to withhold and limit availability of records." These bills would amend existing law relating to the withholding of informa- tion from the public or limititig the availablll~y of records to the public by ~ederal agelicies. They would require each agene~, in accordance with pub- lished rules concerning the thne, place, and procedure to be folloWed, to "make PAGENO="0260" 252 FEDE'1~AL PUBLIC RECORDS LAW all its records promptly available to any person," except as to matters that are (1) specifically required by Executive Order to be lçept secret in the interest of national defense of foreign policy; (2) related solely to the internal personnel rules and practices of any agency; (3) specifically exempted from disclosure by statute (4) trade secrets and commercial or financial Information obtained from the public and privileged or confidential; (5) Inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy; (6) per- sonnel and medical files and similar matters the disclosure of which would con- stitute a clearly unwarranted invasion of personal privacy; (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a private party; and (8) contained in or related to examination, operat- ing, or condition of reports prepared by, on behalf of, or for the use of, any agency responsible for the regulation or supervision of financial institutions. These bills would also provide that upon complaint by a person seeking agency records, Federal dlistrict courts would have jurisdiction to enjoin the agency involved from withholding such records and to order the production of improperly held records. In such cases, the burden of sustaining any with- holding of records would be on the agency involved and district courts would be authorized to punish agency officers responsible for noncompliance with court orders. In addition, such actions would take precedence on district court dockets over all other actions except those deemed by the court to be "of greater importance." tinder the present law, matters of official record are required to be made avail- able "to persons properly and directly concerned," except for matters "requiring secrecy in the public interest," "relating solely to the internal management of an agency", or "held confidential for good cause found" (section 3 of the Adrnin- istrative Procedure Act). The proposed bills would require disclosure "to any person" of "all its records". The only exceptions would be material which the agency finds by published rule qualifies within one of the eight categories of records specified above. The Housing Agency believes this enlargement of the public records re- quirements would not benefit persons seeking Information from proprietary agencies such as HHFA, but would be very burdensome for the Agency. The great majority of our papers relating to agency operations concern preliminary processing of applications for mortgage insurance or loans or grants authorized by the various programs administered by the Agency. These papers are not a matter of official record and are not now required to be made available even to persons directly concerned. Taken literally the phrase `all its records' would seem to require disclosure to any person of all intra-agency reports and recommendations and other in- ternal memoranda (except those dealing "solely with matters of law or policy") involving the exchange of preliminary views, as contrasted to final action by authorized officials. This would hinder the free and candid exchange of preli- minary views within the Agency. In addition, the disclosure would often not be In the best interest of the ap- plicants for benefits under our programs. In the urban renewal program, for example, the local public agency applying for a loan or grant would not wish such background information as appraisals of property to be acquired in the project area to be zuade a matter of public record by a Federal agency which is not itself responsible for the acquisition under State or local law. The Agency might bring some of such material under the exception provided for records such as "intra-ager~y memorandums or letters dealing solely with matters of law or policy." However, in many cases it is a difficult task to determine whether a particular matter is one of law or fact, or a combination of law or fact. To be required to do so on a piecemeal basis would be a considerable administrative burden, and an unnecessary one in the light of the effectiveness of the present general provisions relating to public disclosures by agencies acting in a proprie- tary, rather than a regulatory, capacity. The Housipg Agency recognizes the continuing need to study and improve the administrative process relating to the disclosure of public records by Federal agencies. However, we recommend against the changes proposed in these bills. We believe they would needlessly encumber and delay our work, and would often hurt rather than protect those with whom we deal. The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration s program Sincerely yours, Ronzar C~ WuAvan, Adm~inSstrator. PAGENO="0261" FEDERAL PUBLIC RECORDS LAW 253 REPLY FRoM INTERSTATE COMMERCE COMMISSIO* INTERSPATE CoMMERCE CoMMISsIoN, Washintiton, D.C., March ~4, 1965. Hon. WILLIAM L. flAwsoN, Chairman, Committee on Goeernm~ent Operations, HOUSe of Representatives. Dxs~n CHAIRMAN DAwsoN: This is in response to your letter of March 15, 1965, requesting a report on a bill, ER. 5012, introduced by Congressman Moss, to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of ret~. ords. This matter has been referred to our Committee on Legislation and I am authorized to submit the following comments in its behalf: Section 161 of the Revised Statutes (5 U.S.C. § 22) applies only to the heads of the departments enumerated in 5 U.S.C. § 1. Since the Interstate Commerce Commission is not one of the agencies named therein, section 161 of the Revised Statutes does not now apply to the Commission. However, ELR. 5012 would define the term "agency," as used in section 161 of the Revised Statutes, to include each authority of the Federal Government other than the Congress or the courts. In the performance of its duties under the Interstate Commerce Act, the Commission traditionally has favored disclosure of information to the public except in those instances where specific statutory requirements or national security considerations prohibit such disclosure. In this connection, section 17(3) of the Interstate Commerce Act requires that every vote and official act of the Commission be made a matter of record and available to the public on request. Although most of the Commission's records are now open to the public, the changes proposed by HR. 5012 would prevent the Commission from withholding a limited amount of information which, for sound reasons of administration or public policy, ought not to be disclosed. Since the term "record" is not defined, we presume that the bill is intended to cover all papers which an agency preserves in the performance of its functions. Because of such an all-inclusive definition of the term "records," broader exemp- tions should be provided in proposed section 161(c) in order to permit agencies to exercise some rule of reason in regard to the disclosure of information. For example, the fifth exemption in proposed section 161 (c) (p. 3, lines 7-9) is not broad enough to protect from disclosure communications between mem- bers of the Commission and its staff in the internal decisional processes, coin- municatlons between the Commission, on the one hand, and the President and the Congress on the other, and communications between the Commission and other persons unrelated to the Commission's decisional processes. The phrase, "inter~agency or intra-agency memorandums or letters dealing solely with mat- ters of law or policy," would not enable the Commission to withhold staff memo- randa dealing primarily with the analysis of the facts involved in particular cases, as distinguished from legal and policy issues. Moreover, parties to Commission proceedings involving rates would be able to demand memoranda from the Commission's cost finding section advising the Commission of the cost of performing the particular movements involved. If the Commission made such information available, the parties presumably would have an opportunity to comment upon the advice given to the Commission by its own cost experts. If the Commission refused to make such memoranda available, the parties to these rate proceedings could then go to court with the result that further action in the case. by the Commission would be delayed while the matter was pending in court. Thus, regardless of whether the Commission disclosed or refused to disclose intra-agency memoranda not dealing "solely with matters of law or policy," a serious delay in the disposition of cases would occur. The term "inter-agency or intra-agency memorandums or letters" is not broad enough to cover correspondence between the Commission and committees of the Congress or individual Members of Congress. The term "agency" is defined in proposed section 161(b) to exclude the Congress. We have always believed that letters from the Commission to congressional committees or to individual Mem- bers of the Congress should not be disclosed by the Commission, but the dis- closure of such reports and correspondence is a matter for the committees of the Congress and the Members of the Congress to decide. We do ~ot meau to suggest that our correspondence~ with congressional committees or with Members of the PAGENO="0262" 254 FEDERAL PUBLIC RECORDS `LAW Congress would reveal any improprieties, but we do believe that If were required to disclose such correspondence to any person who might ask for it, that its publication out o~ context might seriously embarrass the Congress and its M~mbèrs. In addition, the bill is deficient in that it fails to exempt from compulsory idiselosure the thmmission's records and correspondence with carriers subject ~to its jurisdiction. For example, we do not believe that we should honor a request of a student who seeks to exatsine all of the correspondence between the ~Commission and a lai~ge railroad over a 5-year period. Even if there were only ~a relatively few such requests, the burden of the Commission would be latole~- able and far out of the proportion to any benefit to the person receiving such Information. As we read the judicial enforcement provisions of proposed new section 161 (b), unless the record denied were within one of the enumerated exceptions, the district court would hate no discretion in ordering disclosure, regardless of `how slight the complainant's justification may be when eousidered against the incon- venience and expense to the agency. As a minimum, the court should be em- powered in its dis~r~tion to require a complainant to justify his demands. For the reasons set forth ahote, we are opposed to the enactment of ER. 5012 in its `present `form. Respectfully submitted. CHARLES A. Wrns, Chairman, Comnrlttec on Legisktion. CIIARLES A. Wnnn, Jonx W. BUSH, EvERETT HUTOHINSON, REPLY FROM NATIONAL AERONAUTICS AND SPACE ADMINISmATTON NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Washington, D.C., Maij 6, i~65. Hon. JOHN E. Moss, Chair~ma~n, Foreign Operations and Government Information Suboomvvittee, Com~ mittee on Government Operations, House of Representatives, Washington, D.C. DuAn Mn. CHAIRMAN: This is in further reply to your letter of March 25, 1965, requesting comments by the National Aeronautics and Space Administration on IT.R. 5012, a bill to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and limit the availability of records. Subsection (a) of section 166 of the Revised Statutes (codified at 5 U.S.C. 22), as it would be amended by the bill, gives the bead of each Department authority to prescribe `regulations for the conduct of the Department's business: it Is appropriate "housekeeping" legislation and follows the language of the first sente'nce of the existing statute. The important new provisions of the bill are those which' set out the eondi~ tions under which agencies of the Government may be compelled to produce records otherwise withheld. Federal district courts would have the power to compel agencies to produce records under the sanction of contempt charges. Action could be initiated by a complaint after which the agency would bear the burden of sustaining its action. The court could, in its discretion, give precedence on its d~cket to complaints filed under the authority of the proposed bill. The provisions appear to be unnecessary, particularly In their application to the National Aeronautics and Space Administration. In a letter addressed to the subcommittee wider date of March 17, 1965, this agency stated: "NASA's' official policy is that no limitations are placed upon the availability of records `to `the f~ublic except those which are Imposed pursuant to Enecutive Order No. 10501, as amended, pertaining to the disclosure of information classi- fled in the Interest of national security. In addition, `however, limitations are placed upon the disclosure of information submitted by inditiduals and firms which is proprietary, or consists of trade secrets, Or confidential financial infor- mation. In this latter connection, 18 U.S.C. 1905 impOses criminal penalties upon - employees of. the Government who disclose such Information without authority 01! law~ The availability of security and perSonifel records and reports is like~ wise limited in many Instances In order to protect the sources of the Government's PAGENO="0263" FEDERAL PUBLIC RECORDS LAW 25~ information as well as the legitimate right of privacy of the Individuals con- cerned." It should be noted that all classes of records excepted from NASA's general policy as stated above, under subsection (c) of the proposed legislation, would be privileged. The legislation would Impose undue burdens on the Government and its officials in carrying out its business. The courts have long recognized the necessity for officials of the Government to exercise their duties unembarrâsseci by lawsuits in respect of actions taken in the performance of their work---suits which would consume time and energies that would otherwise be devoted to governmental services. Barr v. Matteo, 360 U.S. 564, 571 (1959); Gregoire v. Riddle, 177 F. 2d 579, 581. There is no precise meaning ascribed to the term "records" as it appears in Subsection (b). It could mean any document or item containing information in the possession of the agency including such diverse objects as contracts, invoices, transcription belts, and tape recordings. Moreover~ there later appears in sub- section (b) the phrase "records and information." It is not clear whether the term "records," when it first appears, is intended to encompass "information," nor is it clear what "information" would mean as opposed to "records." If it means something different from records, then It would not be available under agency procedures which only encompass means of acquiring "records," leaving "information" to be acquired through court process. There is no requirement that one requesting records identify the desired item or make a showing that he has a legitimate need for them. Anyone, merely out of idle curiosity, could compel an agency to produce all of its records except for lhose classes of items withheld pursuant to subsection (c) of the proposed legis- lation. The expense and administrative burden stemming from that type of re- quest could seriously impair the operations of any agency, including NASA. Shifting the burden of proof to the agency for sustaining its decisions with respect to withholding creates additional problems. There would be evidentiary questions, such as the extent of the showing an agency would have to m&ke to sustain its actions and the extent to which a court would be permitted to go behind an administrative determination that records should be withheld because they deal with exempt categories of information. From the foregoing it appears that, not only is the proposed legislation un- necessary in that its purposes can be, and, in fact, are being, accomplished under existing law, the administration of them would result in confusion and unneces~ sary expense of time and money. Accordingly, the National Aeronautics an~l Space Administration recommends against the enactment of H.R. 5012. This report has been submitted to the Bureau of the Budget which has advised ~that, from the viewpoint of the program of the President, there is no objection to its submission to the Congress. Sincerely yours, RICHARD L. CALLAGHAN, Assistant Administrator for Legiidativc Affairs. REPLY FROM NATIONAL LABOR RELATIONS BOARD NATIONAL LADOR RELATIONS BOAED, Washi'itgton, D.C., March ~5, 196g. Hon. JOHN E. Moss, ~Chairman, ~ubeommittee on Foreign Operations ~nd Government Information of the Committee on Government Operations, Ilonse of Representatives. DEAR CoNGREsSMAN Moss: It Is our understandIng, based on communications with Mr. Benn~t Kass of the subcommittee staff, that hearings will soon be held on H.R. 5012, a bill to amend section 161 of the Revised Statutes with respect to the authority of ]l'ederal offlcer~ and agencies to withhold information and limit ,~the availability of reeord~, and that you would be interested in having an expres- sion of the views of the NatiOnal Labor Relations Board respecting the Impact this bill would have upon its operations. At the outset, permit me to state that we do not challenge the general purposes of the bill to assure access by the public, to the fullest extent practicable, to, information concerning the operations of administrative and other governmental ~tgencies. In our view, however, the proposal contains a number of serious defi- PAGENO="0264" 256 FEDERAL PUBLIC RECORDS LAW ciencles which, if enacted into law, would hamper this agency l~ carrying out: its functions effectively and in the best interests of the public. The proposeU subsection (b) of section 161 would require agencies to make their records "available to any person." The phrase "any person" is unduly embracive and could lead to a disruption of the Government's business by open- ing the door to unjustified requests for information by curiosity seekers and irre- sponsible persons. (See testimony of Prof. Kenneth C. Davis, hearings before- the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, 88th Cong., 2d sess. of S. 14363, July 23, 1964, pp. 247-248.) Consideration should be given to some words of limitation, such as "persons properly and directly concerned" (as presently contained in section 3 of the Administrative Procedure Act, 5 U.S.C. 1002), or "person~ with a legitimate interest." The district court procedure set out in subsection (b) to restrain the with- holding of agency records provides for a de iiovo determination by the court. However, where the alleged withholding has taken place in an administrative proceeding it would appear that the normal procedure for judicial review of final agency orders should be followed and would provide an adequate remedy. In~ the case of this agency, section 10(f) of the National Labor Relations Act pro- vides that any party aggrieved by a final order of the Board may obtain review of such order in an appropriate U.S. court of appeals. Subsection (b) also provides that in suits to compel disclosure of records "the burden shall be upon the agency to sustain its action." This is contrary to the ordinary civil discovery procedure; rule 34 of the Federal Rules of Civil Procedure provides that a court may order production of books and papers upon motion of "any party showing good cause therefor." There would appear to be no good reason to reverse the procedure when an agency of the Government is the holder of the records sought by a litigant. Subsection (c) (2) excepts from the provisions of subsection (b) matters that are "related solely to the internal personnel rules and practices of an agency." The language of this exception appears to be unduly restrictive. We see no good reason for departing from the exception now provided in section 3 of the Admin- istrative Procedure Act-i.e., "any matter relating solely to the internal manage~ ment of an agency," and this language should be substituted. Subsection (c) (3) excepts matters that are "specifically exempted from dis- closure by statute." The use of the narrow term "statute" fails to take into account the law in this area created by sound judicial decisions. The substitu- tion of "law" for "statute" would preserve the carefully considered principles established in such landmark cases as U.E~. v. Morgan, 313 U.S. 409, 422; Hick- man v. Taylor, 329 U.S. 657; Kaiser Aluminum Co. v~ U.B., 157 F. Supp. 939 (Ct. Cl.), and Roviaro v. U.$., 353 U.S. 53, 59L~62. Subsection (c) (4) excepts matters that are "trade secrets and commercial or financial information obtained from the public and privileged or confidential." The phrase "commercial or financial" unnecessarily limits this exception. The equivalent exception in 5. 1666 (88th Cong., 2d sess.), as passed by the Senate (110 Congressional Record 17080), contained more preferable language, i.e., "trade secrets and other information obtained from the public and customarily privileged or confidential." Subsection (c) (5) excepts "interagency or intra-agency memoranda or letters dealing solely with matters of law or policy." There is infrequent occasion to~ deal with abstract legal or policy questions; most agency internal communica- tions relate to legal or policy issues based upon a specific set of facts or to mixed questions of law, policy, and fact. In view of the limited nature of the exception: provided by (5), an agency would thus be required to make available virtually all of its internal documents, since most of them would deal to some extent with' facts. This would include internal staff memoranda containing advice and rec- ommendations relative to pending cases, working papers, tentative draft deci~ sions, etc. All of these documents tend to reveal the mental processes of decision makers and their staffs in arriving at determinations in specific cases and are entitled to be privileged against disclosure. See Morgan v~ U.s., supra, and Raiser Aluminv,m. Co. v. N.L.R.B., supra. In sum, if internal reports are to be' worth anything, they must be based on facts rather than abstractions, and they- PAGENO="0265" FEDERAL PUBLIC RECORDS LAW 257 must be the free expressions of those who prepare them an~i not something "cleared for publication." As the Supreme Court said in Hickman v. Taylor, suprcb, "Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney." This is to say nothing of the mental processes of the decisionmakers themselves. It is sug- gested, therefore, that this exception be broadened to read as follows: "inter- agency or intra-agency memoranda, letters, or other papers." Subsection (c) (6) excepts "personnel and medical files and similar matters the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." While there is some ambiguity here, we construe this as providing an unqualified exception for personnel and medical files, the limiting phrase "the disclosure of which, etc.", modifying only "similar matters." There is no reason why only personnel and medical files should be generally excepted. In any event, the requirement of a "clearly unwarranted invasion of personal privacy" would appear to be unduly restrictive and to offer insufficient protection to a right highly valued in our democratic society. Consideration should b~ given to the deletion of the underlined phrase. Subsection (c) (7) excepts from availability "investigatory files compiled for law enforcement purposes except to the extent they are available by law to a private party." This provision would appear to permit a Board respondent to obtain the affidavits taken from employees and other persons in the course of the preliminary investigation of an unfair labor practice case, even though those persons may never be called as witnesses in the proceeding. For, "to the extent * * * available by law to a private party," could well encompass the discovery procedures of the FOderal Rules of Civil Procedure, and such affidavits would be obtainable under those procedures. To permit the dis~losure of pre- trial statements of persons who may never be called as witnesses would unduly interfere with the administration of the National Labor Relations Act, for these persons, who are generally employees, would be reluctant to give statem~rnts if they knew that their statements could be revealed to a hostile employer or union in a position to take retaliatory action affecting their economic welfare,. even though they may not be called to testify. In recognition of this fact, the courts have held that it is an interference with employee rights under the act for an employer to ask employees for copies of statements which they have giyen to Board agents, and about the matters contained in those statements. Teras Industries v. N.L.R.B., 336 F. 2d 128 (C.A. 6); the-prenant Mfg. Go. v. 1%T.L.R.B., 58 LRRM 2484 (O.A. 6); N.L.R,B. v. Winn-Dio~ie, 58 LRRM 2475 (C.A. 6). Under the more limited Jeneks rule, which is applicable to Board proceedings, pretrial statements are made available, but only in the cases of those persons who have been called as witnesses in the Board proceeding. Accordingly, it is suggested that the exclusion in (7) be amended as follows: "(7) investigatory files, Including statements of agency witnesses until such witnesses have been called to testify in an action or proceeding and request is timely made by a private party for the production of relevant parts of such statements for pur- poses of cross-examination." Finally, the proposed subsection (a) of section 161 authorizes "the head of each Department to prescribe regulations * * * for the government of his Department." This has been interpreted as not being applicable to, and thus not vesting this authority in, heads of "agencies" as distinguished from "De- partments." A recent decision of the U.S. Court of Appeals for the Ninth Ci~- cult so held; General En~yineering, mc,, and Harvey Aistminum v. National Labor Relations Board, 58 LRRM 2432 (C.A. 9). There is something of an anomaly in using a statute which is otherwise not applicable to "agencies" to prescribe rules relating to the availability of their records. It is suggested that consid- eration be given to clarifying the applicability of section 161(a) to make it clear that heads of agencies are also included. In view of the above comments, this agency would be opposed to the enact- ment of H.R. 5012 in its present form. We would appreciate having this report included In the record of the bearings on this bilL The Bureau of the Budget has advised that it has no objection to the sub~ mission of this report to your committee. Sincerely yours, WILLIAM FELDESMAN, Flolicitor. PAGENO="0266" 258 FEDERAL PUBLIC RECORDS LAW REPLY FRoM SECURITIES AND EXCHANGE CoMMIssIoN Snounirins AND EZC~IANGD COMMISSION, Washington, D.C., March 19,1965. Re H.R. 5012, ER. 5013, H.R. p014, H.R. 5015, ER. 5016, ER. 5017, ER. 5018, ER. 5019, ER. 5020, ER. 5021, HR. 5237, ER. 5400, ER. ~20, ER. 5588, ER. 6172, 89th Oongress. lion. WILLr~&M L. DAWSON, Chairman~, Uovwinittee on Government Operations, House of Representatives. Dnsn Mn. OHAIEMAN: The Bureau of the Budget has advised that from the standpoint of the administration's program it has no objection to the comments in the Commission's memorandum on the above bills. Sit~cerely yQurs, HUGH F. OwENs, Commtssioner. MEMORANDUM ON ER. 5012, 89rn CoNGREss The provisions of H.R. 5012 are intended "ftjo make sure that the public gets the information it Is entitled to have about public business * * * 1 by amend- in~ section 161 of the Revised Statutes of the United States (5 U.S.C. 22), com- monly known as the Federal "housekeeping" statute. To accomplish this pur- pose the bill would require that all agency records, with certain limited ex- ceptions, be made available for inspection by any person. This Commission agrees that unnecessary secrecy in the operation of the Government should be eliminated and that Government agencies should at- tempt to facilitate the securing of information by members of the public having a legitimate interest therein. Indeed, the enactment of the statutes administered by this Commission was in large part motivated by the desirability of making information available to members of the public which might be pertinent to their investment decisions. Accordingly, the vast bulk of material contained in this Commission's files is public and the Commission makes every effort to have it readily available to the press and to individual members of the public.2 The Commission attempts to comply not only with the letter of section 3 of the Administrative Procedure Act, dealing with public information, but also with the spirit of that section. Rule 25(a) of the Commission's Rule.s of PractIce pro- vides that all information contained in documents filed with the Commission is public unless otherwise provided by statute or rule or directed by the Commis- sion. In addition to complying with the publication provisions of section 3 of the Administrative Procedure Act, the Commission seeks to assure wide dis- semination of its rule proposals, rules, opinions and interpretations adopted f9r the gnidance of affected persons by furnishing copies of this material to the press, making it available for public inspection at the Commission's oflices and sending~ copies to numerous persons on mailing lists which the Commission maintains. These mailing lists include persons who are directly subject to regu- lation by the statutes we administer ns well a~ those who have requested certain elasses of material from the CommissIon. The latter category alone includes more than 35,000 names. On the other hand, the Commission treats certain types of matters as non- public, including documents afforded confidential treatment pursuant to schedule A, paragraph 30 of the Securities Act of 1983, section 24 of the Securities Ex- change Act of 1934, section 22(b) of the Holding Company Act of 1985, section 45(a) of the Investment Company Act of 1940, and sectiOn 210 of the Investment Advisers Act of 1940, and proceedings in connection therewith, material obtained in any nonpublic proceeding, inter-agency and Intra-agency correspondence, memo- randums and working papers, documents relating to internal matters, prelim- inary copies of proxy material, correspondence with the public, and classified material. Th~ major difficulties that wou1~ be ci'eated far this Oauunission by enactment è~f ~ 5012, would ~ow from posstiide arguments that various of the eieeept4s~ns from the general disclosure requirements are mat sufficiently broa4 to permit 1 S~e remarks of Congressman Fascell when introducing ER. 5013, an identical bill. 111 Congressional Record 2857 (1965). 2Tbe breadth of the material available to the public Is demonstrated by the list which the Cbnimlsslon has prepared and issned to the public entitled "Compilation of Documnentary Materials Available in the SBC," a copy of which is attached. PAGENO="0267" FEDERAL PUBLIC RECORDS LAW 259 `confidential treatment of some types of information that we believe should not be made generally public. We are of the view that there are important considerations why certain material in the Commission's files should not be subject to general public scru~ `tiny, as where disclosure of the material would impair the advice and assistance we render to persons seeking to comply with the statutes we administer, where it would unfairly injure members o~ the public, or where it would interfere with free communication between Government officials with respect to the most efficacious manner of administering the law. Certain of these considerations are recognized in the legislative history of the Administrative Procedure Act, which points to the problem of publicity which might "reflect adversely upon `any person, organization, product or commodity" prior to "actual and final adjudication" by an agency. (H. Rept. 1980, 79th Cong., 2d ses's~ (1946), p. 40.) The importance of these considerations `may vary in different situations. Thus, information sought in a congressional investigation or pertinent to the deter- mination of a lawsuit might properly be made available despite counteravailteg considerations which would be sufficient to refuse to make the information avail- able to casual inquirers. We would emphasize that, as to a large part of the material in the Commis- sion's files which is not made public, the primary reason for privacy is to, protect the rights and interests of private persons having business before the Commission. The statutes administered by the Commission have an impact on a wide variety and great number of business transactions and arrangements; consequentl~~, businessmen very often must determine the effect of these statutes upon proposed transactions and arrangements and the steps necessary to be taken in planning and executing them so that there will be no delays resulting from questions that might otherwise be raised as to full compliance with the securities law. Po en- able these matters to be resolved properly, full details of proposed transactions such as mergers, acquisitions, and financing plans are given to and discqssed with the Commission's staff, often substantially in advance of the consum~natlon of the transactions. Businessmen expect, and we believe have a right to expect, that their confidence in disclosing these matters will be respected; otherwise the administration of the Federal securities laws would be greatly complicated and the ability of American and international business organizations to plan and execute impor~ant transactions within time scbedule~ required ~by economic circumstances would be impaired. These transactions may be of international importance and sometimes directly involve foreign governments. Without these informal discussions by which business problems are resolved in a businesslike `way, administration of the securities laws would be greatly impaired and, indeed, it is doubtful that these laws could be effectively administered. The Commission `has repeatedly been commended for evolving such informal procedures for advis- ing persons seeking to comply with the law. Professor Loss has stated: "This practice-which a task force of the second Hoover Commission reported as `having been `most effectively used' by the SIIIC 4~_j~ an essential a~d popular ~service with the bar and the securities industry. Thousands of such opinions are given each year." Privacy is essential to this process. Businessmen should not be compelled to give premature publicity to proposed business transactions which they would otherwise keep strictly confidential for the protection of their business, simply because, as a practical matter, it is necessary that they consult the Commi~sion in advance. Moreover, premature and unplanned disclosure of contemplated business transactions which are discussed with the Commission could affect the markets for the securities of the companies involved5 and afford an ep- portunity to overreach the investing public to those persons who first gained ac- cess to the information. Similarly it would be impossible as a practical matter for the Oommissiou `to enforce its proxy rules if it were unable to keep preliminary proxy material `nonpublic. The Commission's proxy rnles~ which relates to corporate election~ and corporate actions requiring the vote of security holders and which a~e applicable to all corporations listed on national securities exch~ngos as well as `to numerous other companies, provide that material to be sent to stockholders 3 Loss, "Securities Regulation" (1961), p. 1895. Commission on Organization of the Executive Branch of the Government, Tasl 11'orce Report on Legal ~ej~vices and Procedures (1955) i~9. ~ See ltepott, of Special Study of the 8ecu~,1tIes Markets of the Securities and Exchange ~Comm1ssien, H. Doe. 95, pt. 8, 88th Cong., 1st sass. (1q68), pp. 7'o-e3. PAGENO="0268" 260 FEDERAL PUBLIC RECORDS LAW shall be filed first in preliminary form with this Commission. The examining staff make certain suggestions so that the material will not be in any way misleading and it is only after the participants have had an opportunity to make the changes suggested by the staff that the definitive material is sent out to shareholders. By reason of the nonpublic nature of the preliminary material we have been able with a minimum of litigation to see to it that American in- vestors have had fairly presented to them the matters upon which' they must vote. Were the preliminary material public and susceptible to being reprinted in the press, there would be no opportunity for staff processing of the material and the Commission's only remedy would be to seek injunctive relief in the courts. That alternative, besides being time consuming and expensive, can rarely provide full relief and may require postponement of corporate meetings and generally disrupt the affairs of the business community. Accordingly, while we believe that the foregoing types of information, as well as the staff's work product in connection therewith, are intended to be in- eluded in exemption (4) of the bill for matters that are "trade secrets and commercial or financial information obtained from the public and privileged or confidential," we urge that this be made clear. Other material in the Commission's files is nonpublic primarily to protect persons against the possibility of adverse publicity if it should ultimately be determined that charges against them have not been substantiated. In the~ event that charges should not be proved in such cases, not even the Commis- sion's, opinion would be made public. We are concerned about possible argu- ments that such material is not "specifically exempted from disclosure by statute" (exception (3)) or otherwise exempted. Where the Commission in- stitutes proceedings pursuant to rule 2(e) of its rules of practice to disqualify a practitioner before it, the proceedings are nonpublic. With respect to pro- ceedings for the revocation or denial of registration of brokers and dealers in securities or of investment advisers, section 22 of the Securities Exchange Act of 1934 and section 212 of the Investment Advisers Act of 1940 have been interpreted to permit private proceedings for they say that hearings ordered by the Commission thereunder "may be public." 6 Whether the Commission makes these revocation or denial proceedings public depends upon considerations present in the particular situations. Thus, broker and dealer denial or revoca- tion proceedings may be made public where they are based upon facts established in public records, as for example, where proceedings are based upon an injunc- tion, a criminal conviction, or a prior determination by the Commission in an order or decision which has become public that violations were committed by a particular person. If the Commission has previously determined in a revoca- tion or denial proceeding that a particular individual willfully violated the Securities Act or the Securities Exchange Act, a subsequent proceeding arising, out of an application for registration by that person or a proceeding involving a registrant controlled by or controlling such person and based upon the prior finding as to that person, would normally be public. The proceedings may be~ made public because substantial charges of fraud are involved or it otherwise appears that the investing public should be alerted to the situation prior to the completion of the proceedings. Another reason for ordering public proceedings may be to alert Injured investors to the possibility of a civil remedy prior to the running of the statute of limitations. Likewise, proceedings may be made public to alect the securities industry to the fact that the Commission has taken action with respect to the particular practices to be involved in the proceedings. It should be noted that where the Commission directs that a proceeding be non- public the privacy can, of course, be waived by the subject of the proceeding. The American Bar Association has Indicated its view that such Cômmission proceedings should be made public only on an even more limited basis and should' normally be nonpublic. It has urged the Commission "~ * * to provide that disciplinary proceedings involving brokers, deelors, or other rersons eng'i tied in the securities business will be conducted in private and without publicity as to~ their pendency or the facts developed therein * * n" except where the Com- mission has determined in an independent private proceeding that the discipli- nary proceeding should be conducted publicly. See Resolution IV, February 17,. 1964, House of Delegates, American Ear Association. We are also concerned that it might be argued that exception (5) for "interag~ney or intra-agency memorandums or letters dealing solely with matters ~ See also sec. 10 of the Public Utility Holding Company Act of 1985, sec. 320 of the Trust Indenture Act of 1939, and sec. 41 of the Investment Company Act of' 1940.. PAGENO="0269" FEDERAL PUBLIC RECORDS LAW 261 o~fla~W or pOlicy" is siet applicable if such documents deal with law or policy in the context of specIfic facts. This argument would convert such work product of the professional staff of the Commission, and of the Commissioners themselves, into public documents. We do not see what purpose would be served by giving the general public access to such material or to such other memorandums as those recor~ling conferences among the Commissioners, between the Commission and the staff, or between representatives of this and those of other agencies, such as the Department of Justice, relating to specific factual situations. We can see no reason why such memorandums exchanged between Commissioners and the staff should be treated differently from those between Federal judges and their assistants. The proposed amendments also would authorize district courts to order the production of information improperly withheld from any person. We assume no change is intended in the normal requirement of exhaustion of administrative remedies, for surely a refusal by the staff where Commission review is available but not invoked should not support interfeyence by a district court. We also assume that the provision entitling a person to a district court trial de novo of the propriety of an agency's withholding of requested material is not `to be construed to defeat confidential treatment where properly given. Thus, we ~would suppose `that any examination of the information sought would consist of an in-camera inspection by the judge. Finally, we suggest that subsection (a) of the bill be amended by inserting the words "and Agency" immediately after "Department" in the' first line thereof (line 5, p. 1 of the bill) and inserting the words "or Agency" immediately after * "Department" in the third line thereof (line 7, p. 1). This suggestion is made on the assumption that subsection (c) is intended to permit agencies as well as departments to maintain the confidentiality of material in the exempted cate- gories. The present structure of the bill may give rise to arguments that the ~authority for nondisclosure provided in subsection (c) relates only to govern- mental bodies to which subsection (a) applies. Should the foregoing views not be adopted, the Commission would feel con- ~strained to oppose the bill in its present form. Th~i'iiv' FROM SELECTIVE SERVICE SYSTEM SELE0'rxvu Snuvica SY5TRM, Washington, D.C., May 7, 1965. ~EIon. JOHN E. Moss, ~Chairman, Foreign Operations and Govtrrnm,ent Information ~ubooinemittee of the Committee on Gavern0nent Operations, Raylurn House Office BwtZding, WashinUton, D.C. DEAR Mu. CHAIRMAN: I am pleased to furnish my comments as you reqmtested `in your letter of March 25, 1965, on H.R. 5012, a bill to amend section 161 of `the Revised Statutes with respect to the authority of Federal officers and agen- des to withhold information and limit the availability of records. The Selective Service System has in the past pointed out that legislation `in this area would jeopardize Selective Service operations unless it contained an exception for the material in the files of registrants obtaine~1 in confidence and heretofore protected from disclosure by law or regulation. ILR. 5012 includes an exception from disclosure of personnel and medical `files and sitnilar matters the disclosure of which would constitute a clearly un- warranted invasion of personal privacy. That language appears to assure the confidentiality of registrant files essential to the continued operation of Selective `Service. With that exception included, the bill, if it became law, would permit the Selective Service System to continue to obtain from registrants the information ~necessary for their proper classification which is basic to the proper selection of individuals for service in the Armed Forces as needed. In another respect, `however, a provision of the bill would so adversely affeCt "the operations of the System that I have to oppose its enactment. The bill would protect from disclosure only those internal agency working papers which are interagency or intraagency memorandums or letters dealing solely with matters `of law `or policy. This restriction is far too narrow. It would leave `available to the pttblic practically everything reduced to writing other than such PAGENO="0270" 262 FEDERAL PUBLIC RECORDS LAW memorandums or letters. Any reference or statement in a memorandum or letter concerning any matter other thah law or policy would apparently remove it from protection. The Bureau of the Budget has advised that it has no objection to the submis- sloa of this report to your committee. Sincerely yours, Lnwis B. }Iunsnrv, Director. VETERANS' ADMINISTRATION VEThRANS' ADMINISTEATION~ Washington, D.C., March 15, 1965. Hon. WILLIAM L. DAwsox, ChoArman, Committee on Government Operations, Honse of Representatives. DEAR Mn. CHAIRMAN: This is in response to your request for a report b~ the Veterans' Administration on H.R. 5012, H.R. 5013, H.R. 5014, H.R. 5015, H.R. 5016, H.R. 5017, H.R. 5018, H.R. 5019, H.R. 5020, and ILR. 5021, identical 89th Con- gress bills, each entitled "A bill to amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold in- formation and limit the availability of records." These bills would amend section 161 of the Revised Statutes of the United States (5 U.S.C. 22) by adding thereto new subsections (b) and (c). Subsection (b) would provide that every agency "shall, in accordance with published rules stating the time, place, and procedure to be followed, make all its records promptly available to any person." In addition, it would provide for judicial enforcement, vesting jurisdiction in the district courts of the United States to enjoin an agency from withholding records or information, other than records or information specifically excluded from the scope of the bill, deter- mining the matter de novo, with the burden upon the agency to sustain its ac- tion. It further specifically authorizes punishment of responsible officers for contempt where there is noncompliabee with the court's order and gives proceed- ings under this section precedence on the docket over all other causes, except such other causes as the court deems of greater importance. Subsection (c) would authorize withholding information from the public or limiting the availability of records to the public in eight instances; specifically matters (1) that are required by Executive order to be kept secret in the in- terest of the national defense or foreign policy; (2) related solely to the internal personnel rules and practices of the agency; (3) exempted from disclosure by statute; (4) trade secrets and commercial or financial infOrmation obtained from the public and privileged or confidential; (5) interagency or intrangency memorandums or letters dealing solely with matters of law or policy; (0) per- sonnel and medical files and similar matters, 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 private party; and (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. Under the provisions of these bills, veterans' claims matters would continue to be exempt from disclosure because of section 3301 of title 38, United States Code, whiçth provides in part: "All files, records, reports, and other papers and documents pertaining to any claim under any of the laws administered by the Veterans' Administration shall be confidential and privileged, and no disclosures thereof shall be made except as follows." Following the quoted language, certain specific exemptions are made under which material otherwise confidential may be released. In general, these pertain to disclosures to the claimant or his duly authorized agent or representa- tive as to matters concerning himself alone, or when information is required by process of a U.S. court or by any department or other agency of the U.S. Government. One exemption is the requirement that the amount of pension, compensation, or d~pendency and indemnity compensation of any beneficiary shall be made known to any person who applies for such information. Likewise, these bills would exempt from disclosure internal rules and practices dealing with personnel and internal communications dealing solely with matters of law or policy. PAGENO="0271" FEDERAL PUBLIC RECORDS LAW 263 While the exceptions provided in these bills remove many of the areas of major concern, it is believed tha.t, if enacted into law in their present form~ there would be a resultant adverse impact on this agency. Purely as a matter of good business managemetit and efficiency, it would be undesirable to create a situation under which agency officials would be reluctant to redu~e anytldng to writing unless it was so innocuous that It could be made available to any person including the press, private counsel, spect9ators, Government contractors, or even the idly curious, at any time, present or future. It would seriotLsly impede the effectiveness of administrative investigations, the successful con- duct of which is no less dependent on their confidential nature, than an inveøti- gation conducted for law enforcement purposes. It is difficult to conceive a successful procurement program were contractors to be afforded access to the agency's records, such as estimates of costs, prior to bidding. Administratively it is believed that, if enacted into law, these bills would give rise to many complex and costly prolbems. They are so broad in scope that they could, and probably would, create excessive demands on an agency for information, requiring costly duplication and transfer of records in order to make them available. Further, the easy access to the courts provided in the bill could give rise to extenSive litigation, which in many instances, would be unwarranted by the circumstances. The impact of this problem is great- ly magnified by the failure of the bill to limit in any way the persons to whom the records must be made available, subjecting the agency to requests which could be frivolous, without purpose, and in some cases, made for the purpose of harassment only. The Veterans' Administration is not opposed to the principle of furnishing to the public as complete information concerning our operations as is feasible. To the contrary, we take great pains to see that information of interest to the public is made available. The policy of the Veterans' Administration is set out in Veterans' Administration manual MP-1, chapter 4, section 405.01 provid- ing: "Both the veteran and the public are entitled to full information about VA. The Administrator's policy is that VA will release all available informa- tion about its activities, freely and frankly, to all information media. This policy must be carried out." If a bill, such as those under consideration, is to be enacted into law, it is urged that consideration be given to the following changes: The phrase "any person" appearing in line 8, page 2, of the proposed~ sub- section (b) of section 161 of the Revised Statutes be defined to include only those having a demonstrated legitimate interest in the records requested and the phrase "and the burden shall be upon the agency to sustain its ac- tion." appearing in lines 12 and 13, page 2 thereof, be deleted. The exception appearing in proposed subsection (c) (2), lines 3 and 4, page 3, be amended to read, "related solely to the internal personnel rules, and management practices of any agency," and proposed subsection (c) (7), lines 12, 13, and 14, page 3, be amended to read, "Investigatory files com- piled for law enforcement or administrative purposes except to the extent available by law to a private party,". It must be our view that any public Information requirement must preserve to the agency's discretion the right to determine the extent to which it is feasible or in the public interest to make its records available for random public inspec- tion. Consequently, we cannot recommend favorable consideration of these bills by your committee. We are advised by the Bureau of the Budget that there Is no objection from the standpoint of the Administration's program to the preseiitatlon of this report to your Committee. Sincerely, W. J. DarvuR, Admin'L~trc4or. PAGENO="0272" PAGENO="0273" Analysis of Agency Comments on S. 1666 During the 88th Congress the Administrative Practice and Proce- dures Subcommittee of the Senate Judiciary Committee held hearings on S 1666 During the hearings many objections were advanced by executive branch agencies to the bill as introduced These objections were based on the variety and types of Government information which the agencies claimed would be open for disclosure should the bill, in its original form, become law. Following are tables listing the major recognizable types of Govern- ment information listed in statements and testimony of Government witnesses at hearings before the Subcommittee on Administrative Practice and Procedure, October 28-31, 1963. (See the subcommit- tee's hearings, 88th Cong., 1st sess., pp. 161-166, 194-205, 224-320.) The tables list seven major categories of information which Gov- ernment agencies contended should not be disclosed. Since each cate gory is based on the agencies' own statements and testimony, there is some overlap and duplication of categories. In order to reflect as much of the context of the agencies' comments as possible, little at- tempt has been made to draw up a systematic table of mutually exclu- sive Government information categories. The duplication is based on the differences of perspective, emphasis, and context in the statements of the various agencies. The seven major categories of information in the table are: (1) Per- sonnel records; (2) intra-agency and interagency internal opinions, recommendations, and advice; (3) instructions to employees; (4) iri~- vestigation informatipn; (5) voluntarily reported information; (6) business, financial data, and income tax information; and (7) foreign, diplomatic, and international affairs information. These categories which represent the general thrust of the Government objections to S. 1666 were developed from the more or less specific examples given during the testimony, or in the form of agency comments, to the Senate subcommittee. Under "Personnel records," for example, are listed medical records of inmates, medical records of personnel in the Armed Forces, and medical records of all Government personnel; general record; family, financial, and salary information which can be found in Government personnel files; character and reliability evaluations; aptitude test re- suits; information gathered in Government recruitment of personnel; physical examination records; efficiency ratings; personnel review files.; memorandums on personnel; Veterans' Administration claims and records. Those specific and general examples of Government information which Government witnesses felt were threatened by S. 1666 in the category of "Instructions to employees," include instructions to in- vestigators; directions to be used for contract negotiations; GovernS ment examination questions and answers; internal management direc- tives, Internal Revenue Service manuals, and Secret Service files.~ 265 45-2i3----e5--'pt. i-iS PAGENO="0274" 266 FEDERAL PUBLIC RECORDS LAW "Intra-agency and interagency internal opinion, recommendations and advice" examples are staff views of investigations required by law (such as investigators' views in airplane accident investigations); procurement planning records; correspondence with other Govern- ment agencies; votes in courts-martial, selection boards, and the like; preparation for legislation and/or budget, internal opinion and advice memorandums; intra-agency memorandums,; candid advisory papers; correspondence and memorandums between agencies; attorney-client confidence with the Government as client, litigation files, legal re search and advice, litigation regarding coults martial, pending hti gation, and proposed and actual enforcement proceedings Investigation files Government witnesses thought threatened by S 1~66 include information leading to detection of violations; investiga- tive activities; interviews in investigations; uncorroborated and Un- evaluated information; investigatory techniques; preemployment in- vestigation files; advice, communications, and intelligence regarding possible orders to show cause; the names of informants and/or corn- plaintants; information derived by investigations required by law; personnel investigations and employee authorizations. Witnesses argued that voluntary reporting programs would be threatened by the passage of S 1666 by revealing, in their opinion, lending and licensing information; statistics from commercial or in- dustrial firms; complaints from the public; information on contract bids; confidential information from private sources and medical and other records of nonemployees. Trouble in the business world as well as possible inefficiency in tax collection would be the result of S. 1666, some Government agency representatives claimed. They cited the following business, financial, and income tax information which the bill would disclose prematurely: trade secrets; lending and leasing policies; commodity market infor- mation; interest rates and good transactions; support purchases; sci- entific reports; the value of securities; patent~ applications and pro- curement and/or disposal plans. Other areas of financial infor~nation which Government agencies felt threatened by S. 1666 include mat- ters regarding financial institutions; tests made for private companies by Government agencies; details of proposed transactions such as mergers, acquisitions, financing plans; proxy files in corporate elec- tions; Internal revenue records not otherwise protected by specific statute; information derived from ftdministration of retail and excise taxes; information on savings-bonds holders and Government secrets in the production of currency. A variety of foreign and diplomatic information would be threat- ened by 5. 1666, agency representatives claimed. These are: advice to the President on foreign air transportation; individual trade date; unclassified information from foreign governments; information ~regarding diplomatic affairs; information from foreign banks. In, each of. the categories, agencies cited statutes authorizing con- fidentiality which witnesses felt would either be overruled by, or at least put in doubt by, S.1666. Each of the following tabl.es covers one of the seven major cate- gories. A "X" in the column identifying specific information indi- cates that the department or agency identified in the left-hand column claimed that type of information should be exempt from disclosure. PAGENO="0275" Personnel records Medical records of in- mates Family, financial, and salary informs- tion Character and re- liability evalua- tions Aptitude test results Armed Forces "2Oi'~ and other files Inlor- mation gathered in recruit- meat Physical exami- nation records Efficiency ratings General and medical records - Personnel review board files Memo- randums on per- sonnel Statute authorizes confiden- tiality of record 1 Veterans' Adminis- tration claims and records Executive departments: Department of Agriculture Department of Commerce Department of Defense Department of the Interior Department of Justice Department of State Department of Treasury Independent agencies: U.S. Atomic Energy Commission~... Civil Aeronautics Board U.S. Civil Service Commission Federal Aviation Agency Federal Coal Mine Safety Board of Review Federal Communications Commis- sion Federal Ilome Loan Bank Board. Federal Reserve System Federal Trade Commission General Services Administration Interstate Commerce Commission... - National Aeronautics and Space Ad- ministration National Mediation Board Post Office Department U.S. Railroad Retirement Boarth SecuritiesandExchangeCommission Selective Service System Tennessee Valley Authority Veterans' Administration x X~ X . - .---- -----. X X .---- X --- X X X . X . .~-~---_-. X - X .--------. ~ - - -. - X X X X X X . - . . - .~* . .. . x --------. . . . - - .~. ~ - . - X X . - . - - . - ~ *~. . - .-----~-- . - - . . .~. ~ . . .~ ~ -- X . - . . ._~____. .-------. . ~ - - - . . ---- -----. . *---- ~_. ~--. - - - - - - . . . *~* ~ . . - X - - X . - . X - X ---. . X~ ;::~::~ . . . .~. . .~-- .---- X 1Sec. 7 of Public Law 26. PAGENO="0276" instructions to employees x Secret Service plans for Presiden- tial safety t2j t"l w 0 0 Department Agriculture Department of Commerce iicpar~mcna 01 csate x x x Instructions to investigators Directions for contract negotiations * Government examination questions and answers Internal management directives Internal Revenue Service manuals Executive departments: Department of Defense - Department of the Interior Department of Justice Department of Treasury Independent agencies: U.S. Atomic Energy Commission Civil Aeronautics Board U.S. Civil Service Commission . ---- - ~_ - .---- - .~ . ~. Federal Aviation Agency Federal Coal Mine Safety Board of Review - Federal Communications Commission Federal Home Loan Bank Board Federal Reserve System Federal Trade Commission - . X . - . General Services Administration Interstate Commerce Commission National Aeronautics and Space Administration National Mediation Board Post Office Department U.S. Railroad Retirement Board Securities and Exchange Commission Selective Service System Tennessee Valley Authority Veterans' Administration . . - . - - . . . ~- . . .---- *---- .---- . - .---- . X - .---- . . . . ~--- x PAGENO="0277" (I) Intra-. and inter-agency internal opinion, recommendations, advice Staff views of investiga- tion required Procure- ment planning Prelimi- nary mem- oranda and logs Corre- spondence with other agencies Votes Statutes authorize or direct confiden- tiality of records 1 Prepare- tion for legislation and/or budget Courts- martial Selection boards Discharge review boards Records corrections boards In relevant agency Executive departments: Department of Agriculture Department of Commerce Department of Defense Department of the Interior Department of Justice Department of State Department of Treasury Independent agencies: ILS. Atomic Energy Commission Civil Aeronautics Board U.S. Civil Service Commission Federal Aviation Agency X X X - X X X X X X - X X - - X - - - - - Federal Coal Mine Safety Board of Review - - Federal Communications Commis- sion____~ Federal Home Loan Bank Board Federal Reserve System Federal Trade Commission General Services Administration Interstate Commerce Commission National Aeronautics and Space Administration National Mediation Board Post Office Department U$. Railroad Retirement Board Securities and Exchange Commis- sion Selective Service System Tennessee Valey Authority Veterans' Administration.. x . X x -- x X x - -, - - - - - - - - - - - - - - - - See footnotes at end of table, p 270. PAGENO="0278" (I) Intra- and inter-agency internal opinion, recommendations, advice-Continued Internal opinion/ advice memo- randa Intra- agency memo- randa In-agency reports Candid advisory papers Corre- spondence, memo- randa between agencies Attorney- client confidence