PAGENO="0001" FEDERAL PUBLIC RECORDS LAW' (PART 2~-AJPENDJX AND INDEX) HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATiONS HOUSE OF REPRESENTATIVES EIGHTY.NJNTH CONGRESS FIRST SESSION ON ILL 5012, ILR. 5013, ILR. 5014, ILR. 5015, ILR. 5016, ILR. 5017, ILR. 5018, ILR. 5019, ILL 5020, ILL 5021, ILR. 5237, ILL 5406, II.R. 5520, ILL 5583, ILL 6172, H.R. 6739, H.R. 7010, II.R. 7161 BILLS TO AMEND SECTION 161 OF THE REVISED STATUTES WITH RESPECT TO THE AUTHORITY OF FEDERAL OFFICERS AND AGENCIES TO WITHHOLD INFORMATION AND LIMIT TEE AVAILABILITY OF RECORDS Printed for the use of the Committee on Government Operations 0~ U.S. GOVERNMENT PRINTINQ OFFICE 45~213 WASHINGTON : 1965 PAGENO="0002" COMMITTEE ON GOVERNMENT OPERATIONS WILLIAM L. DAWSON, Illinois, Chairnvas~ CHET HOLIFIELD, California JACK BROOKS, Texas L. H. FOUNTAIN, North Caroitha PORTER HARDY, Ji~, Virginia JOHN A. BLATNIK, Minnesota ROBERT B. JONES, Alabama EDWARD A. GARMATZ, Maryland JOHN B. MOSS, Califotnia DANTE B. FASCELL, Florida HENRY S. REUSS, Wisconsin JOHN S. MONAGAN, Connecticut TORBEET H. MACDONALD, Massachusetts J. EDWARD ROUSH, Indiana WILLIAM S. MOORHEAD, Pennsylvania CORNELIUSE. GALLAGHER, New Jersey WILLIAM J. RANDALL, MissourI BENJAMIN S. ROSENTHAL, New York JIM WRIGHT, Texas FERNAND J. ST GERMAIN, Rhode Island DAVID S. KING, Utah JOHN 0. DOW, New York HENRY HELSTOSKI, New Jersey CHRIsTINE RAY DAVIS, Staff Director JAMES A. LANIOAN, General Counsel Mxi~sn Q. R0MNEY, Associate General Counsel J. P. CARLSON, Minority Counsel RAYMOND T. CoLLINs, Minority Professional Staff Foi~ui~r~ O~?ERATIONS AND GO~EIINMENT I1~xrollMATxoN SUBCOMMITTEIiI JOHN B. MO~S, California, tThairni~an PORTER HARDY, Ji~, Virginia ROBERT P. GRIFFLN, Miehigl~1 JOHN S. MONAGAN, Connecticut OGDEN 1~. REID, Ne~ York JOHN A. BLATNIK, Minnesota DONALD RUMSFELD, Illinois TORBERT H. MACDONALD, Massachusetts CORNELIUS B. GALLAGHER, New Jersey SAMuEx~ J. ARCHIBALD, CJ~ief, Got'ernnlent 1*/ormation Bsnuv L. KASS~, Counsel DAVID GLICK, Chief Counsel JACK MATTESON, Chief Investigator GLENNA 0. Do~r, Clerk CLARENCE J, BROWN, Ohio FLORENCE~ P. DWYER, New Jersey ROBERT P GRIFFIN, Michigan OGDEN R. REID, New York FRANK J. HORTON, New York DELBEW$~ L, LATTA, Ohio DONALD RUMSFEth, Illinois WILLIAM L. DICKINSON, Alabama JOHN N. ERLENEORN, Illinois HOWARD H. CALLAWAY Georgia EDWARD J. GURNEY, Florida II PAGENO="0003" CONTENTS Page Study of 5 U.S.C. 1002 277 Subcommittee questionnaire sent to Federal departments, agencies, boards, commissions, etc 277 Federal agencies queried 279 Narrative analysis of answers to questionnaire 281 Tabular analysis of operations under 5 U.S.C. 1002 292 REPLY FROM FEDERAL AGENCIES QUERIED Executive Office of the President 364 Bureau of the Budget 364 Office of Emergency Planning 364 Office of Science and Technology 365 Executive Departments_ 367 Department of Agriculture 367 Department of Commerce 371 Department of Defense - - - - 373 Department of Health, Education, and Welfare 376 Department of the Interior 380 Department of Justice 383 Department of Labor 389 Post Office Department , 391 Department of State 392 Peace Corps - 395 Agency for International Development 398 Department of the Treasury: Comptroller of the Currency 403 (Note: See subcommittee files for detailed responses covering 17 of- fices and bureaus of the Department.) Independent agencies 407 American Battle Monuments Commission 407 Atomic Energy Commission 408 Canal Zone Government 414 Civil Aeronautics Board 414 Civil Service Commission 420 District of Columbia Government 423 Export-Import Bank of Washington 424 Farm Credit Administration 424 Federal Aviation Agency 426 Federal Coal Mine Safety Board of Review 429 Federal Communications Commission 430 Federal Deposit Insurance Corporation 435 Federal Home Loan Bank Board -- - - 441 Federal Maritime Commission 444 Federal Mediation and Conciliation Service 445 Federal Power Commission 447 Federal Reserve System 448 Federal Trade Commission - 453 Foreign Claims Settlement Commission 456 General Services Administration 458 Housing and Home Finance Agency 460 Indian Claims Commission 464 Interstate Commerce Commission 465 National Aeronautics and Space Administration 471 National Labor Relations Board 474 National Mediation Board 476 National Science Foundation 476 III PAGENO="0004" IV CONTENTS Independent agencies-Continued Page~ Railroad Retirement Board 478 Renegotiation Board 480 Securities and Exchange Commission 482 Selective Service System 4S4 Small Business Administration 486 Tennessee Valley Authority~.~ - 488 U.S. Arms Control and Disarmament Agency 489 U.S. Information Agency- 492 U.S. Tarifr Commission - 49~ Veterans' Administration - 496 Selected Boards,. Committees, and Commissions 499 Advisory Commission on Intergovernmental Relations.~ 499 Civil War Centennial Commission~ - 499 Commission on Civil Rights 500 Committee. on Purchases of Blind-Made Products 501 Corregidor-Bataan Memorial Commission 502 Distinguished Civilian Service Awards Board 502 District of Columbia Redevelopment Land Agency~ - - 503 Federal Radiation Council 505 Foreign-Trade Zones Board 506 Ind~axi Ar~ts and Crafts Board 508 Interagency Committee on Oceanography 509 Interdepartmental Savings Bond Committee 510 Migratory Bird Conservation Commission 510 President's Missile Sites Labor Commission 511 National Agricultural Advisory Commission 513 National Capital Housing Authority 513 National Capital TransportatiGtL Agency 515 National Park Trust Fund Board 515 President's Committee on Employment of the Handicapped - 516 President's Committee on Equal Employment Opportunity 517 President's Committee on Equal Opportunity in Housing 517 President's Committee on Juvenile Delinquency and Youth Criine-~. 518 President's Committee for Traffic Safety~ - - 518 President's Council on Aging 519 President's Council on Physical Fitness 519 President's Foreign Intelligence Advisory Board 520 Resources Advisory Board (Atlanta, Ga.) 520 Veterans' Day National Committee 521. Washington Metropolitan Area Transit Commissi~n~ - 522 LATE COMMENTS FROM DEPARTMENTS AND AGENCIES ON FEDERAL RECORDS LAW LF~GISLATION Executive 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 Ps~tt 2-Appendix and index (analysis of agency operations under 5 U.S.C. 1002) 217-528 PAGENO="0005" APPENDIX TO HEARINGS ON H.R. 5012 ET SEQ. HELD BY FOREIGN OPERATIONS AND GOV~ ERNMENT INFORMATION SUBCOMMITTEE MARCH 30, 31, APRIL 1, 2, AND 5, 1965 STUDY OF 5 U.S.C. 1002 Studies of information practices of Federal departments and agen- cies over the past 10 years have indicated that section 3 of the Adminis- trative Procedure Act (5 TJ.S.C. 1002), though labeled a "public in- formation" section, is so burdened with broad exceptions that it has become the major statutory authority on which the executive branch relies to withhold information. In order to evaluate properly the ef- fect of the "public information" section, the subcommittee, on February 12, 1965, asked about 105 Federal departments, agencies, boards, com- missions, etc., 15 specific questions covering their operations under the section. The questionnaire followed a pattern established by a task force of the Hoover Commission: the Legal Services and Procedures Task Force of the Commission on Organization of the Executive Branch of the Government. The task force report, completed in De- cember 1954, was not published. SUBCOMMITTEE QUESTIONNAIRE SENT TO FEDERAL DEPARTMENTS, AGENCIES, BOARDS, COMMISSIONS, ETC. FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SuBCOMMITTEE, COMMITTEE ON GOVERNMENT OPERATIONS, Washington, D.C., Februa~ry 12,1965. DEAR Mn. The Foreign Operations and Government Information Subcommittee has been studying the availability of information from Federal departments and agencies for nearly 10 years. The studies have indicated that section 3 of the Administra- tive Procedure Act of 194G (5 U S C 1002) though labeled a public information section," iS so burdened with exceptions that, In reality, it has become one of the major authorities on which the executive branch relies to control information. In order to evaluate properly the effect of the public information section since Its enactment 18 years ago, the subcommittee needs anSwers to the following questions Inquiries concerning the questions may be addressed to the Foreign Operations and Government Information Subcommittee staff, code 180, extension 3741 It would be appreciated if you will inform the subcommittee of the name and telephone number of the official of your agency with whom liaison can be maintained to help develop comprehensive answers to the questions. 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? 2 In what official or unofficial publication and at what Intervals does your Egency publish: (a) Descriptions of its central and field organization (see sec. 3(a) (1) of the Administrative Procedure Act); 277 PAGENO="0006" 278 ~FEDERAL PUBLIC RECORDS LAW (b) Statements of the general course and method by which its functions are channeled and determined (see sec 3(a) (2) of statute), (c) Substantive iules adopted as authorized by law (see sec 3(a) (3) of ~statute); (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statut6) ; and (e) Rules addressed t~ and served upon named persons in accoidance with law (see sec. 3(a) (3) of statute)? 3 Please describe the manner in which your agency publishes or in accord ance with published rule makes available to public inspection all final and interim opinions or orders in the ad~uthcation of cases puisuant to section 3(b) of the Administrative Procedure Act or other authoilty 4 In what types of cases does your agency iefraln from publishing interim and final opinions or orders wheie in the opinion of your agency good cause requires they be held confidential pursuant to section 3(b) of the Administrative Procedure Act or other authority? 5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings.? 6. What is the procedure for making available to the general public the records and files interpretations and legal opinions of your agency? 7 What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice? 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Fed- eral Register ~ (See sec 3(a) of the Administrative Procedure Act) 9 In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest pursuant to section 3(1) of the Administrative Procedure Act or other authority? 10 In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency manage ment pursuant to section 3(2) of the Administrative Procedure Act or other authority? 11. What is your ageney'~ definition of "official record" as used in section 3(c) of the Administrative Procedure Act? Please provide two copies of every regulation, directive, order, or other docu- ment issued by your agency to implement 5 U S C 1002 It is requested that your answers be submitted to the subcommittee no later than March 15, 1965. Sincerely, JoHN B. Moss, Cha4rma,n. PAGENO="0007" FEDERAL AGENCIES QUERIED EXECUTIVE OFFICE OF TIlE PEESIDENT Bureau of the Budget Office of Emergency Planning Office of Science and Techr~ology EXECUTIVE DEPARTMENTS Department of Agriculture Department of Commerce Department of Defense Department of Health, Education, and Welfare Department of the Interior Department of Justice Department of Labor Post Office Department Department of State Peace Corps Agency for International Development Department of Treasury: Comptroller of the Currency (Note: See subcommittee files for detailed responses covering 17 offices and bureaus of the Department.) INDEPENDENT AGENCIES American Battle Monuments Commission Atomic Energy Commission Canal Zone Government Civil Aeronautics Board Civil Service Commission District of Columbia Government Export-Import Bank of Washington Farm Credit Administration Federal Aviation Agency Federal Coal Mine Safety Board of Review Federal Communications Commission Federal Deposit Insurance Corporation Federal Home Loan Bank Board Federal Maritime Commission Federal Mediation and Conciliation Service Federal Power Commission Federal Reserve System Federal Trade Commission Foreign Claims Settlement Commission of the tJnited States General Services Administration Housing and Home Finance Agency Indian Claim Commission Interstate Commerce Commission National Aeronautics and Space Administration National Labor Relations Board National Mediation Board National Science Foundation Railroad Retirement Board Renegotiation Board St. Lawrence Seaway Development Corporation Securities and Exchange Commission Selective Service System 279 PAGENO="0008" 280 FEDERAL PUBLIC RECORDS LAW Small Business Administration Smithsonian Institution Subversive Activities Cotitrol Board Tariff Commission Tennessee Valley Authority U.S. Arms Control and Disarmament Agency U.S. Information Agency Veterans' Administration SELECTED BOARDS, COMMITTEES, AND CoMMIsSIONs Administrative Committee of the Federal Register. Advisory Commission on Intergovernmental Relations. Board on Geographic Names. Civil War Centennial Commission. Commission on Civil Rights. Comtuission on International Rules and Judicial Procedure. Commission on Purchases of Blind-Made Products. Commnnity Relations Service. Corregidor-Bataan Memorial Commission. Distinguished Civilian Service Awards Board. District of Columbia Redevelopment Land Agency. Federal Council for Science and Technology. Federal Fire CounciL Federal Radiation Council. Federal Records Council. Foreign Trade Zones Board. Indian Arts and Crafts Board. Interagency Committee on Oceanography. Interdepartment Radio Advisory Committee. Interdepartmental Savings Bond Committee. Marine Corps Memorial Commission. Migratory Bird Conservation Commission. Missile Sites Labor Commission. National Agricultural Advisory Commission. National Archives Trust Fund Board. National Capital Housing Authority. National Capital Planning Commission. National Capital Transportation Agency. National Forest Reservation Commission. National Historical Publications Commission. National Monument Commission. National Park Trust Fund Board. Office of Economic Opportunity. President's Advisory Committee on Labor-Management Policy. President's Commission on the Status of Women. President's Committee on Em~do'yment of the Handicapped. President s Committee on Equal Employment Opportuiuty President's Committee on Equal Opportunity in Housing. President s Committee on Juvenile Delinquency and Youth Crime President's Committee on Migratory Labor. President's Committee for Traffic Safety. President's Council on Aging. President's Council on Physical Fitness. President's Foreign Intel'igence Advisory Board. President's Science Advisory Committee. 13.5. Advisory Commission on International Educational and Cultural Affairs. 13.5. Advisory Commission on Information. U.S. Study Commission on the Savannah, Altam.aha, St. Marys, Apalachicola- Chattahoochee, and Perido-Escambia River Basins and Intervening Area. U.S. Territorial Expansion Memorial Commission. Veterans Day National Committee. Washington Metropolitan Area Transit Commission. PAGENO="0009" FEDERAL PUBLIC RECORDS LAW 281 NARRATIVE ANALYSIS OF ANSWERS TO QUESTIONNAIRE The answers to the questionnaire were analyzed by Lester S. Mittle- man, General Accounting Office attorney, who also prepared tables setting forth operations under 5 U.S.C. 1002. Following is the analy- sis of the pertinent questions: QUESTION 1 The applicability of 5 U.S.C. 1002 to the departments and agencies was one of the most important questions. Ceiltral to the protection of the rights of citizens is the provision on public information. The Attorney General's manual de- scribed it as follows: "The purpose of section 3 is to assist the public in dealing with administrative agencies by requiring agencies to make their administrative materials available in precise and current form. Section 3 should be construed broadly in the light of this purpose so as to make such material most useful to the public. * * * This section is applicable to all agencies of the United States, excluding Congress, the courts, and the governments of the territories, possessions and the District of Columbia. Every agency, whether or not it has rulemaking or adjudicating func- tions must comply with this section" (p. 17) [emphasis supplied]. Considering the broad emphasis that the Attorney General gives to section 3 and the importance to the public of the applicability of this section, it is to be specifically noted that the following agencies assent that section 8 of 5 U.S.C. 1002 is not applicable to them: 1. Department of Commerce-Bureau of Public Roads. 2. Department of Commerce--Office of General Counsel. 3. Department of the Treasury-U.S. Coast Guard (generally applicable except: war plans branch, divisions of intelligence, operational readiness, etc.) 4. Department of the Interior (applicable except: 30 U.S.C. 483-making of an order of withdrawal pursuant to title II of the Federal Coal Mine Safety Act). 5. Indian Claims Commission. 6. U.S. Civil Service Commission-Applies to two areas only-in the adjudication of cases and rulemaking to carry out the provisions of the Federal Employees Health Benefits Act of 1959. 7. Farm Credit Administration-Extremely limited.. The following are boards, committees, and commissions which state that sec- tion 3, 5 U.S.C. 1002, is not applicable to them: 1. Advisory Commission on Intergovernmental Relations. 2. Civil War Centennial Commission. 3. Commission on International Rules and Judicial Procedure. 4. Committee on Purchases of Blind-Made Products. 5. Distinguished Civilian Service Awards Board. 6. District of Columbia Redevelopment Land Agency. 7. Federal Radiation Council-Applicable only to those reports whIch have been approved by the President. .8. Indian Arts and Craft Board. 9. Interdepartmental Savings Bond Committee. 10. Migratory Bird Conservation Commission-Applicable in one area only; matters of official record. 11. National Agriculture Advisory Commission. 12. National Capital Transportation Agency. 13. National Forest Reservation Commission. 14. National Park Trust Fund Board. 15 President s Commission on the Status of Women 16 Presidents Committee on Employment of the Handicapped 17. President's Committee on Equal Employment Opportunity. 18. President's Committee on Equal Opportunity in Housing. 19. President's Committee on Juvenile Delinquency and Youth Crime. 20. President's Committee for Traffic Safety. 21. President's Council on Aging. 22. President's Council on Physical Fitness. PAGENO="0010" 282 FEDERAL PUBLIC RECORT~S LAW 23. President's Foreign Intelligence Advisory Board. 24. U.S. Advisory Commission on International Educational and Cul- tural Affairs. 25. Veterans Day National Committee~ 26. Washington Metropolitan Area Transit Commission. 27. Corregidor-Bataan Memorial Commission. 28. National Capital Housing Authority-Asserts that its functions fall within second exception to 5 U.S.C. 1002. In contr~idiction of the Attorney General's statement that every agency whether or not it has rulemaking or adjudicating functions, must comply with the act, these selected boards, committees, and commissions exempt themselves on the basis that they are not a rulemaking, ratemaking, license-issuing agency within the objectives of the Administrative Procedure Act. In the Executive Office of the President the Bureau of the Budget states that 5 U.S.C. 1002 is not applicable because they are covered by exception No. 2 of the act, The Office of Emergency Planning states that the act applies to them with the exception of section 3(b). Furthermore, the Office of Science and Technology stated that the act applies where applicable (except published reports of advisory studies and congressional communication). QUESTION 4 In what types of cases does your agency refrain from publishing in- terim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Administrative Procedure Act or other authority? The agencies and departments which described limitations pursuant to ~ues~ tion 4 fall into a basic pattern of three areas: Inimical to the public interest: The disclosure of information may cause prejudice, undue hardship, injurious to applicant or enrollee, discredit or injure innocent people, internal advisory opinions, protecting individual privacy. Required by statute or involving national security: Negotiations with foreign countries, involving any function of the United States requiring secrecy in the public interest or relating solely to internal management. Confidential treatment: Pending matters, security of department's functions, information of a commercially confidential. nature publication of which gives undue advantage of a private business nature. QUESTION 5 In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? Of those agencies and departments which stated that the act applies to them, all but the following, answered question 5 as "none~" A. Department of Commerce: 1. Patent Offtce.-35 V.5.0. 122, requIres pending patent cases to be exempted from publication and Inspection. B. Department of Defense.-Opinions and orders that are unpublished and are not available for public inspection are not cited or used as precedents In other proceedings. C. Department of the Interior.-In opinions or orders In adjudication of cases, there may be cited as precedents unpublished opinions or orders; however, they are made available for inspection. P. Department of Labor.-Guidance in responding to requests for Informa- tion and interpretations. E, Department of ~tate.-Applicab1e only to the issuance of U.S. passports. 1. Peace Corps.-The Office of General Counsel does from time to time cite its prior opinions. All opinions are unpublished and almost all unclassi- fied and hence available to persons properly and directly coneerned. Most of these opinions relate to internal management. F. Department of the Treasury: 1. 0/flee of Foreign As~et$ Contro~.-As policy precedents in the proc- ess of determining the disposition of related or simlliar applications; are not disclosed to persons other than the particular applicants. 2. Bureau of Cu~toms.-Generajly none; however, may serve as precedents in arriving at a decision In a matter before it; may be aided by results of its previous consideration of similiar matters. PAGENO="0011" FEDE:RAL PUBLIC RECORDS LAW 283 3. Bureau of the Public Debt.-NOne ; however, in some instances eases that have been decided by courts of record or authoritative bodies (except Comptroller General of the United States, Attorney General, Internal Rev- enue Service). G. Post Office Department-None; other than those made available for in- spection in accordance with published rule. H. General Services Administration-May be given consideration in other proceedings involving internal management affairs (except personnel actions). I. U.S. Civil Service Uommission.-State and local employees being removed under section 12 ~f the Hatch Act and hearing examiners being removed under section 11 of the Administrative Procedure Act; in cases not subject to Admin- istrative Procedure Act grievances and appeals from employees. j. Small Business Administration,-Did not answer question. QIJESTION 6 What is the procedure for making available to the general public tJ~e records and files, interpretations, and legal opinions of your agency? The agencies and departments state that their legal opinions are published in bound volumes. Records and files are usually furnished upon request, except In some cases only to persons properly and directly interested or concerned. In all other cases records and files are available for inspection only after permis- sion has been granted by some top official. In still other cases, application must be made by written request for inspection of records and files. In a few instances legal opinions are furnished only ob a need-to-know basis. Some agencies and departments claim they have no formal procedure for furnish- ing Information. Quasriox 7 What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice? This question points up the exceptions the departments and agencies set forth for denying access to the general public of records and files. The agencies and departments have included almost everything in their files under some statute, rule, or practice, Executive or administrative order to withhold information. Even when in doubt the custom or rule seems to be to classify the information as not available, The authorities for withholding most often cited are 18 U.S.C. 1905 (28 agezi- den) and Executive Order No, 10501 (19 agencies). In addition, almost every agency cites its own rules and regulations of procedure (usually published in the Federal Register and codified in the Code of Federal Regulations) as authority to withhold information. DnPAEPMItNTS Department of Agriculture.-18 U.S.C. 1905; 5b U.S.C. app. 2155(e). 12 U.S.C. 1141 J(d) ; Internal Rules and Regulations. Department of. Commerce (summary) .-18 U.S.C. 1905; Executive Order No. 10501; Administrative Orders Nos. 201-13, 203-1, and 202-22. Bureaus of Department of Commerce: Area Redevelopment Administration-iS U.S.C. 1905; records and files on loan applications-includes confidential business information. Business and Defense Services Administration.-18 U.S.C. 1905; 5 U.S.C. 176(a) and 705(e); Executive Order No. 10501; Operating In- struction No. 17. Office of Business Economics.-.'-18 U.S.C. 1905; 22 U.S.C. 286 F, Bret- ton-Woods Agreement. Bureau of the Censns.-18 U.S.C. 1905; Executive Order No. 10501; 13 U.S.C. 9, 302; Decennial census-Presidential Proclamation No. 3337. Coast and Geodetic Survey.-No citations. Community Relations Serviee.-Section 1003(b) of the Civil Rights Act. Bureau of International Commerce.-18 U.S.C. 1905; 15 U.S.C. 176(a); Export Control Act of 1949, as amenfled, section 6(c) ; paragraph 382.14 of comprehensive export schedule; Administrative Order Nos. 202-20 and 203-1. Office of Management and Organization-Great I~akes Pilotage Adminie- tration.-Department of Commerce Order No. 64. PAGENO="0012" 284 FEDERAL PUBLIC RECORDS LAW Maritinie AdmiinSstration.-5 U.S.C. 1002 3(b); 18 U.S.C. 1005; Attorney General s Manual on the Administrative Procedure Act pages 24 25 Rules of Practice and Procedure section 2014 Administrators Order Nos 153 and 202-22 section 201 151, Rules of Practice and Procedure 29 F R 14475 Office of Mana~rement and Organization. New York World's Fa'tr.-No citations. Patent Offioe.-5 U.S.C. 122; Rule 2 and Rule 14 of Practice and Proce- dure-Relates to pending patent applications and cases. Bureau of Public Roads.-No citations. St. Lawrence Seaway Derelopment Corporation.-Department of Com- merce Order No. 04. Office of the General Uounaei.-No established procedure. National Bureau of Standard$.-18 U.S.C. 1905; Executive Order No. 10096; Public Law 776,81st Congress. Weather Bureau.-Department of Commerce Administrative Order No. 207-0. Office of Management and Organization -18 U SO 1905 section 313 of Federal li~egister. Department of Defense-5 U S C 1002 section 3 (1) and (2) 18 U S C 1905, Executive Order No 10501 Public Law 86-36 Atomic Energy Act of 1954 section 2011-2281 DOD Directive 52001 Army Regulation 380-5 Navy Regu lation 551018 Air Force Regulation 2051, DOD Directive 52000 Army Regu lation 345-15 Navy Regulation 5570 2A Air Force Regulation 11-30 Department of Health, JJJdvcation and Welfare.-Sectiou 1106 of Social Secu- rity Act; section 301(g) of Federal Food, Drug, and Cosmetic Act; section 4(h) of Federal Hazardous Substances Labeling Act; section 408(f) of Federal Food, Drug, and Cosmetic Act; 18 U.S.C. 1905; section 121.51 (f) and (h) of Federal Food, Drug, and Cosmetic Act. Department of the Intertor.-30 U.S.C. 483; Executive Order No. 10501; 18 U.S.C. 1905; 30 U.S.C. 641-646; 16 U.S.C. 742(c). Depairtment of Justice -Executive Order No 10501 Department Order 279-02 40 O.P.S. A.G. 45 (1941); 340 U.S. 462; 18 U.S.C. 1905; 26 U.S.C. 7213(a); 26 U S C 7237(e) Executive Order No 10450 28 CFR 16 (1963) 27 FR 11002 11003 157 F Supp 939 (1958) 5 U S C 139(b) 829 U 5 495, 8 U S C 1304(b), section 264(b) of Immigration and Nationality Act 8 U S C 1226(a) 83d Con gress 1st session Ser 2 pt 2 2433 (1953) Civil Litigation 80th Congress 2d session, reprint March 1960. Department of Labor.-18 U.S.C. 1905; 5 U.S.C. 139(b); 27 P.R. 1505; 29 CFR 24 26 29 56, 20 CFR 121 122, 5018 880 F 2d 610 820 F 2d 561 312 F. 2d 14. Post Office Department.-Executive Order No. 10925; Post Office Rules and Regulations 1235 1145 17333 records of postal inspection service money or der records; postal saving records; mail matter records; names of post office box holders; postal inspection service record. Department of State.-Executive Order No. 10501 or when publication would be prejudicial to national interest. Agency for international Devetopment.-Executive Order No. 10501; 18 U.S.C. 1905; Attorney General's Manual of the AdminIstrative Procedure Act (1947), page 25. Peace Corps.-Executive Order No. 10501; Foreign Affairs Manual Cir- cular No. 117, section 3, of April 9,1963. Department of the Treasury: Office of the Secretary.-18 U.S.C. 1905; 5 U.S.C. 139(b); 20 U.S.C. 6103, 6104, 6106, 7213; 20 U.S.C. 7237(e); 12 U.S.C. 77; 18 U.S.C. 1906; Execu- tive Order No. 10501; 1 U.S.C. 1904; 46 U.S.C. 643(f); 46 U.S.C. 284; 46 U.S.C. 784; Export Control Act 1949, 50 U.S.C. App. 2020(c); Outlined in 31 CFR 1.2(e); 18 U.S.C. `793, 794, 798; miscellaneous information. Office of the Assistant Sec'retai-y for International Affairs.-Sam,e as that listed for Office of the Secretary. Office of fiscal Assistant Secretary.-Same as that listed for Office of the Secretary and outlined in 31 OFR 1.2(e). Office of Domentic Gold and Silver Operations.-31 CJ3'R 1.2(a) (i) ; 81 OFE 93.16(a). Office of Foreign Assets Control.-31 OFR 1.2 (e). Office of Law Enforcement Ooordination.-81 OFR 1.2(e); see Office of the Secretary. PAGENO="0013" FE~DE~RAL PUBLIC RECORI~S LAW 285 Office ~f the Direotor of Praotice.-S1 CFR 10, sections 10.90, 10.91. Bureau of Custoins.-18 U.S.C. 1905; 19 OFR 20. Bureau of JJMgraving and Prln~tin9.-31 OFR 1.2(e); (see Office of th~ Secretary). Bureau of Aocounts.-31 CER 270.2; relates to personnel financial trans~ actions of Individuals and corporations. Office of the Treasurer of the United States.-31 C1~R 351.2, personnel financial transactions of individuals and corporations. Bureau of the Public I?ebt.-31 CFR 323.2. Internal Revenue $ervice.-Internal Revenue Code (1954) sections 6013, 6014, 6016, 7213; 18 U.S.C. 1905; 26 CFR part 301, 6103, 0104, 6106; 26 U.S.C. 7213(b). Bureau of the Mint.-31 CFR Cum. Supp. 92.23. Bureau of Na'rcotic8.-31 CFR 1.2(e) (1) and (6) and 21 CFR 301.11; section 3(1) of Administrative Procedure Act; section 3(c) of Admin- istrative Procedure Act; Executive Order No. 10501; 31 CFR subpart A; 26 U.S.C. 72~7(e); 26 U.S.C. 4773; 26 OFR 150.10, 151.377, 151.479; 152.104; 21 CFR 307.83(c) ; 21 U.S.C. 198 (2) and (4) ; 21 OFR 301.8; 21 CFR 301.11. U.S. Coast Guard.-5 U.S.C. 1002, 3 (1) and (2); 40 U.S.C. 234; 46 U,S.O 643(f); Executive Order No. 10501; 18 U.S.C. 1905; 5 U.S.C. 22. U.S. Secret Ser'vice.-Only those limitations enumerated in the Athnln- istrative Procedure Act itself. Comptroller of the Currency.-12 CFR 4.13, 4.14; 18 U.S.C. 1906. INI)EPENDENT AGENCIES American Battle Monuments Commission.-No cita dons. Atomic Energy Commission.-Rules o1~ Practice, section 2.790(b); 18 U.S.C. 1905; Executlye Order No. 10501; 10 CFR 2.790(b); Inter- and intra-agency communications. Civil Aeronautics Board.-Executive Order No. 10501; 204(a) of Federal Avia- tion Act; 14 013'R 302.39(b) ; 14 CFR 302.314; 14 CFR 311. E~vport-Import Bank of Washington.-12 CFR 401-402. Farm Credit Administration.-0 CFR 4.2; 6 CFR 4.4, 4.5, 4.8 (a) to (e). Federal Aviation Agency.-49 U.S.C. 1504; 49 U.S.C. 1472(f); 14 CFR 185. 15. Federal Communications Convmission.-47 U.S.C. 154(j); 47 U.S.C. 213(f); 47 U.S.C. 412; 47 U.S.C. 605; 47 U.S.C. 606; 5 U.S.C. 100~; 18 U.S.C. 1905; 5 U.S.C. 631. Federal Coal Mine Safety Board of Review.-No citations. Federal Deposit Insurance Corporation-Rules and Regulations, section 809.1 (a) (b). Federal Deposit Insurance Act, sec. 7 (a) (1) and (2). Federal Home I~oan Bank Board.-18 U.S.C. 1905; 12 OF]i 505.12. Federal Maritime Commission.-Eule~ of Practice and rrocedure 502.~. Federal Mediation and Conciliation Servvice.-29 CFR 12, pt. 1q01. Federal Power Commission.-Federal Power Act, section 301(b); Natural Gas Act section 8(b) ; 18 CFR 1.36(c) ; 18 CFR 1.86(d). Federal Reserve System.-12 O.F.R. 261.2; Banking Act of 1933, sectIon 30; 12 U.S.C. 248(1); 18 U.S.C. 1905; applicable sections of Administrative Pro- cedure Act. Federal Trade Commission.-18 U.S.C. 1905; 15 US.C.A. 4~3F; sectIon 6 af Federal Trade Commission Act; also see section 10 of act. Foreign Claims Settlement Commission of the United States.-No citations. General Services Administration.-41 CFR 101-12. 101.3; 41 OFB 101-7, 101-8, 101-7, 101-4; 41 CFR 101-9, 103; 41 CFR 101-10. 101-2, 101-10. 202-4, 101-10, 042-2; 41 CFR5-60.209(c). Housing and Home Finance Agenoy.-18 11.5.0. 1905; 12 U.S.C. 1701(d)-3(d); 5 U.S.C. 139(b) Executive Orders Nos. 10450, 10501, and 10561. Interstate Commerce Commission.-Interstate Commerce Commission Act, sec- tion 20(7) (f), 222(d); 317(e), 421(e), 218(a), 15(11); 49 U.S.C. 320(a); 344 U.S. 298, 220 F. 2d 501; 49 CFR 206.7; 45 11.5.0. 88, 40, 41;, 49 OFE 125.9; 49 CFR 194.1; 49 CFR 195; 49 U.S.C. 1002. National Aeronautics and Space Admlnistration.-Executive Order No. 10501; 18 U.S.C. 1905. PAGENO="0014" 286 F&OERAL PUBLIC RECORDS LAW 2~Tatio~a~Z ~T~abor Relations Board.-Records and information, sectious 102.117, 102.118. Nationa~l Mediation Board.-Part 120215 of Board's ruie~, National Science Foundation.-18 U.S.C. 1905. Railroad Retirement Board.-45 U,S.C. 362 (d) and (n) ; 5 U.S.C. 139b(a), Renegotiation Board.-18 U.S.C. 1905; Rules and Regulations, part 1480. Securities and Ea'change Commission.-No citations~ Selective Service System.-32 CFR 1606.31; 32 CER 1606.32 (1), (2), (3), (4), (b), (c), (d). Tennessee Valley Autl~ority.-18 CFR 301.1. U.S. Arms Control and Disarmament Agency.-18 U.S.C. 37; 42 U.S.C. 2247, 2277; 22 U.S.C. 2551. U.S. Civil Service Commission,-5 U.S.C. 632; 5 U.S,C. 2251; 5 U.S.C. 851. U.S. Information, Agency.-Executive Order No. 10501; Foreign Services Act, section 612. U.S. Tariff Commission.~-18 U.S.C. 1905. Veterans' Administration.-38 U.S.C. 3301. Small Business Administration,.-Executive Order No. 10501; section 1700 of S~nall Business Administration rules and regulations. SELECTED BOARDS, COMMITTEES, AND COMMISSIONS Federal Radiation Council.-No citations. Federal Trade Zones Board.-Section 400.605 of Board's regulations; section 3(c) of 5 U.S.C. 1002. Interagency Committee on Oceanography.-No citations. Migratory Bird Conservation Commission.-No citations. Missile Sites Labor Commission.-No citations. National Forest Reservation Commission,-No citations. President's Committee on Equal Employment Opportunity.-Must be in fur- therance of E.O. 1114. President's Foreign Intelligence Advisory Board,-Executive Order No. 1050i~ National Capital Housing Ant hority.-No citations. U.S. Commission on Civil Rights.-45 CFR 704.2 of chapter VII section 102.1 of Commission's statute. EXECUTIVE OFFICE OF T~E PRESIDENT Office of Emergency Planning-S U.S.C. 1002; 18 U.S.C. 1905; Executive Order No. 10501; Executive Order No. 10480; 50 U.S.C. App. 2155(2). QUEsTION 8 In what circur~istances are private parties dealing with your agency * required in any manner to resort to organization or procedure not pub~ lished in the Federal Register (see sec. 3(a) of the Administrative Procedure Act)? The answers to this question were about 100 percent In agreement with each other; namely, nohe. There were, however, a number of exceptions, which are as follows: A. Department of Agriculture.-Insofar as there has not been time to modify the pablic organizational description or statement of functions and procedures to conform with changes made In the organization and procedure. B. Department of Health, Education, and Welfare.-Applic~nts for certain types of grants may have to refer to manuals or kits published specifically for their guidance and which contain more detailed instructions on the grant applica- tion procedures. 0. Department of Tred~sury: 1, Bureau of Accounts.-None, except rules addressed to and served upon named persons in accordance with law. 2, Internal Revenue Service.-Revenue procedures of limited application; however, they are published in Internal Revenue Service bulletins and in the technical information releases. D. Nq~tional Science Foundation~.~.-None except all of the material in the Fed- eral Register has gone out of date. B. Tennessee Valley Authority.-TVA and contractor may resolve any con- troversy through successive appeals to the contracting officer and the TVA Gen- PAGENO="0015" FEDERAL PUBLIC RECORDS LAW 287 ~ral Manager; entire procedure is stated in "disputes" provisiou included in each ~ontract. F. ~7.S. Civil Service Commission.-In c~ircum~tances nOt subject to Adminis- trative Procedure Act-appealing a rating assigned in a Civil Service Examina- tion and where an annuity should follow in a so-called. Hiss Act case under 5 u.S.C. 2281. 0. U.S. Information Agency.-Procedure for applicants for employment in the lVoreign Service Of the Agency, or for service in a binational center abroad. H. Small Business Administration.-Did not answer. I. National Capital Housing Authority.-Private parties are given appropriate Information at the time of business contact. QiJESTION 9 In what types of cases has your Agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Adminis- trative J?rocedure Act or other authority? Once again the great majority answered "None." However, there were a great number of exceptions where the Agency refrained from publishing rules pursuant to section 3(1) of the Administrative Procedure Act or other authority. They are as follows: A. Department of Commerce: 1. Maritime Administration.-The administration and the Maritime Sub- sidy Board would refrain from publishing any rules concerning security investigation or involving classified information. B. Department of Defense.-Rules which are classified in accordance with Executive Order No. 10501, DOD Directive 5200.1 and implementing regulations of the military departments, because they involve functions of the United States requiring secrecy in the public interest; they are, however, frequently pub- lished in classified form and made available to persons who are determined to have a "need to know." C. Department of Justice.-Emergency chain of authority in case of civil do- fense or other emergency which prevents the operation of the Department at the seat of government. D. Post Office Department-Only in the case of certain national emergency planning. E. Department of the Treasury: 1. Office of the Secretary.-Where rules involve infoi~mation classified pursuant to Executive Order No. 10501. 2. Internal Revenue Service.-Emergency relocation planning; this is not subject to disclosure under Executive Order No. 10501. 3. Bureau of Narcoticr.-Information deemed classified under Executive Order No. 10501; information related to security investigations under Executive Order No. 10450; security-type information; informatioa related to narcotic law enforcement. 4. U.S. Coast Guard.-Military readiness and war planning; port and harbor security regulations; law enforcement activities, quarantine, customs and neutrality; ocean stations relating to research and national defense; shipping laws when related to national defense. 5. Comptroller of the Uurrency.-Where it would conflict with public in- terest in proper administration of responsibilities as Supervisor of National Banks, 12 CFR 4.13(b) (1) and 4.13(b) (2). F. Atomic Energy Csinmission.-Certain restricted data and defense informa- tion are not available to the public except in accordance with access per~mits. 0. Federal Home Loan Bank Board.-Emerge~cy preparednesis regulations for ~continuity of government. H. Federal Reserve System.-Discount rates, reserve requirements, and margin requirements. I. Interstate Commerce Commission.-Transportation of explosives for the Armed Forces by Railway Express Agency, Iuc., en passenger trains in time of war or a national emergency proclaimed by the President. J. National Aeronautics and Space Ad.ministra4ion.-National defense and security. K. Renegotiation Board.-Contractor or subcontractor, renegotiation of which would jeopardize secrecy required in the public interest. PAGENO="0016" 288 FEDERAL PUBLIC RECORDS LAW L. Small Business Aclministration.-Dld not answer; however, one circum- stance woud be official Information and records classified under Ihecutive Order No. 10501. M. National Forest Reservation Commission.-If information is released pre- maturely on purchase and exchange proposals (purchase units), land values and prices might become inflated, with consequent added cost to the Government. N. President's Foreign Intelligence Advisory Board.-Board's reports to the President deal with highly sensitive matters involving the national defense and security and accordingly, are classified pursuant to Executive Order No. 10501. The pattern appears to cover official information and records classified under Executive Order No. 10501 and emergency chain of authority in case of civil defense or other emergency which prevents the operation of the Department at the seat of government~. The other areas concern themselves principally with investigative matters kept secret in the Government's and the public's interest. Quzsr~o~ 10 In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? This question was answered in four distinct patterns. Some agencies answered the question by stating "All"; others answered "None"; some answered "Not applicable"; and still others gave definite circumstances. The following is a categorized list of the answers: "All" A. Department of Agriculture. B. Department of Commerce.-Departmental summary. 1. Business and Defense Services Administration. 2. Office of Management, Great Lakes Pilotage Administration. 3. Maritime Administration. C. Department of State. 1. Peace Corps. D. Department of the Treasury. 1. OffIce of Law Enforcement Coordination. 2. Bureau of the Public Debt. 3. Comptroller of the Currency. 4. Bureau of Engraving and Printing. E. Civil Aeronautics Board, F. Federal Ho~ne Loan Bank Board. G. Federal Power Commission. II. Federal Reserve system. I. Federal Trade Commission. J. Interstate Commerce Commission. K. Railroad Retirement Board. L. Securities and Ewehange Commission. K Selective Service 5ystein. N. Tennessee Valley Authority. 0. U.S. Civil Service Commission. P. Small Business Administration. Q. Farm Credit Administration. R. Bureau of the Budget. S. Post Ojfloe Department. T. Federal Aviation Agency. U. Office of Emergency Planning. "None" A. Department of Commerce. 1. Area Redevelopment Administration. 2. Bureau of International Commerce. 3. Patent 0/flee. 4. Office of Management and OrOanization. PAGENO="0017" FBDERAL PUBLIC RECOItDS LAW 289 B. Department of Health, Education, and Welfare.-The Department's in- ternal operating procedures are not published; however, these do not constitute rules in the sense intended by 5 U.S.C. 1002. 0. Agency for International Development. D. Department of the Treasury: 1. Office of Director of Practice. 2. U.S. Secret Service. E. American Battle Monuments Commission. F. Atomic Energy Commission. G. Federal Maritime Commission. H. Federal Mediation and Conciliation Service. I. Foreign Claims Settlement Commission of the United States. J. Housing and Home Finance Agency. K. NationalLabor Labor Relations Board. L. National Mediation Board. M. National Science Foundation. N. U.S. Information Agency. 0. U.S. Tariff Commission. P. Committee on Purchases of Blind Make Products. Q. Federal Counsel for Science and Technology. R. Federal Radiation Council. S. Federal Trade Zones Board. T. President's Committee on Equal ~mployment Opportunity. U. President's Science Advisory Committee. V. U.S. Commission on Civil Rights. W. Office of Science and Technology. "Not applicable" A. Department of Commerce: 1. Office of Business Economics. 2. Community Relations Service. 3. Office of Management and Organization.-New York World's Fair. 4. Bureau of Public Roads. 5. Office of General Counsel. 6. National Burean of Standards. 7. Weather Bureau. B~ Ecoport-Import Bank of Washington. 0. Interagency Committee on Oceanography. D. Migratory Bird ConservatiOn Commission. 131 Missile Sites Labor Commission. F. National Forest Reservation Commission. G. National Park Trust Fund Board (National Park Service). H. Corregidor-Bataan Memorial Commission. QUEsTION 11 What Is your agency's definition of "official record" aS used In sec- tion 3(c) of the Administrative Procedure Act? An analysis of the answers to this question indicateS that there l~ no clear definition of the term "official record" in spite of the fact that a ~clear under- standing of the types of material covered by restrictions on public access Is basic to the operation of the statute. The majority of the agencies stated they have no definition of the term or that they use as a guide the text on page 24 of the Attorney General's Manual (1947) or they follow 44 U.S.C. 366. Neither of these sources defines "official record." The statute defines only the word "records," and the definition is by example. The Attorney General's Manual also lists some examples and states that "each agency must examlue Its func- tions and the substantive statutes under which It operates to determine which of its materials are to be treated as matters of official record." Agencies which do not rely on these two weak definitions referred only to a Code of Federal Regulations citation. Some of the answers were so general that 45-213-65--Pt. 2--2 PAGENO="0018" 290 FEDERAL PUBLIC RECORDS LAW the definition would encompass every document handled by the agency. Follow- Ing are the major categories of the answers to question U: I. No. Definition A. Department of Commerce: 1. Area Redevelopment Administration. 2. Business and Defense Services Administration. 3. Office of Business Economics. 4. Bureau of International Commerce. 5. Office of Management and Organization, Great Lakes Pilotage Admin- istration. 6. Office of Management and Organization, New York World's Fair. 7. Bureau of Public Roads.-Not applicable. B. Federal ifome Loan Bank Board. C. Small Business Administration.-Did not answer. D. Advisory Commission on Intergovernmental Relations. B. Committee on Purchases of Blind-Made Products. F. Federal Council for Science and Technology.-Not applicable. G. National Parks Trust Fund Board (National Park Service). H. President's Committee on Employment of the Handicapped. I. President's Committee on Equal Employment Opportunity. J. President's Sci~nce Advisory Uommittee.-.Not applicable. K. Uorregidor-Bataan Memork&l Commission. L. National Capital Housing Authority. M. Bureau of theBudget. N. Office of Emergency Planning. 0. Office of Science and Technology.-..Not applicable. II. No Definition, but the Attorney General's Manual (1947), Page 24, on the APA Is Used as a Guide A. Department of Agriculture. B. Department of Commerce. 1. Maritime Administration. 0. Department of Defense. D. Department of the Interior. B. Department of Justice. F. Department of Labor. 41 Department of State. 1. Agency for InternationalDevelopment. 2. Peace Corps. 11. Department of the Treasury. 1. Office of the Sebretary. 2. Office of the Assistant Secretary for Internationaj Affairs. 3. Office of Fiscal Assistant Secretary. 4. Office of Foreign Assets Control. 5. Bureau of CustQms. 6. Bureau of Narcotics. 7. U.S. Coast Guard. 1. Housing and Home Finance Agency. J. U.S. Ar,ne Control and Disarmament Agency. PAGENO="0019" FEDERAL PUBLIC RECORDS LAW 291 III. No Definition, but 44 U.S.C. 866 Is Used as a Guide A. Department of Commerce (departmental summary): 1. Bureau of the Census. B. Department of Health, Education, and Welfare. C. National Aeronautics and Space Administration. D. National Science Foundation. "Citations to the Code of Federal Regulations." A. Department of the Treasury: 1. Office of Domestic Gold and Silver Operations.-31 OFE 93,15 which includes: Application for gold licenses; gold licenses; applications or end use certificates; reports by gold licensees and depositors of silver; audit re ports of silver refining companies; affidavits and statements accompanying deposits of gold and silver; transcripts of hearings and other supporting documents; correspondence relating to each of the above; Investigative reports. 2. Office of Law Enforcement Coordination.-31 CFR 1.2(d), records re~ lating to administration of Treasury Department laws. 3. Bureau of Engraving and Printing.-31 CER 1.2(d), records relating to administration of Treasury Department laws. 4. Bureau of Accounts.-~--31 CFR 270.2 which includes appropriation ac- eounting records; collection and disbursing accounting records; records re~ lating to investment accounts. 5. 0/flee of the Treasurer of the United States.-31 CFR 531.2 which in~ eludes paid checks and records; records relating to coin, bullion, and cur- rency, etc. 6. Internal Revenue Scrvice.-26 CFR 601.701 which includes final opin- ions in tax matters such as records of assessment, credit, refund, offers in compromise, levies, etc.; documents submitted by public (except tax returns, information returns, claim for credit, refund, etc.). 7. Bureau of the Mint.-31 CFE Corn. Supp. 92.22. 8. Comptroller of the Currency.-No definition but, see 12 CFR 4.13. B. Atom'k~ Energy Com'mission.-No definition but, generally follows 10 CFR 9.3 subject to exceptions in section 9.4. C. Federal Power Commission.-No definition but, see 18 CFR 1.36(c). D. General Services Administration.-41 CFR 101-11.101~-3, 101-12.101-1, which includes books, papers, maps, photographs, etc., made or received by any agency of the U.S. Government in connection with the transaction of public businesses preserved as evidence of the agencies functions, policies, decisions, procedures, etc. B. Securities and Ecehange Commission.-See 17 CFR 201.25; 17 CFR 200.80. F. Tennessee Valley Authority.-18 CFR 301.1(a) which includes maps, plans, and diagrams, bids and awards, easements and rights-of-way, etc. G. Farm Credit Administration.-6 CFR 4.1 to 4.10, which includes documents, ~etc.; this section includes practically everything handled by the agency. H. U.S. Commission on Civil Riglvts.-45 CFR 704.2 of chapter VII. PAGENO="0020" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002 Executive Office of the President (1) Applicability of ~5 U.S.C. 1002 (2)(a) (2)(b) (2)(c) (2)(d) (2)(e) Official or unofficial publication Organization, sec. 3(a)(l) Statement of tune- tions, sec. 3(a)(2) Substantive rules, sec. 3(a)(3) General policy for public, sec. 3(a)(3) Rules served on named persons in accordance with law, see. 3(a)(3) Bureau of the Budget No; covered by ex- ception No. 2 in sec. 3. U.S. Government Organization Manual. U.S. Government Organization Manual. None. None. None. Office of Emergency Planning~. Yes; except sec. 3(b). 1. Federal Register. 2. U.S. Government Organization Manual. Federal Register. Federal Register. Federal Register. Not applicable. Office of Science and Technology. Where applicable, yes. 1. U.S. Government Organization Manual. 2. Federal Register. 1. U.S. Government Organization ManuaL 2. Federal Register. Not applicable. Not applicable. Not applicable. PAGENO="0021" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Executive Office of the President (3) Publications-Availabifity of final and interim opinions or orders, sec. 3(b) (6) Procedure for making available records, ifies, and legal opin- ions (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents Bureau of the Budget None. None. None. None. Office of Emergency Planning~~~~ . Not applicable. Not applicable. Not applicable. In those programs having a public concern the procedures for mak- ing available connected materials are contained in the published regulations applicable to such programs. This includes the grounds of legitimate interest on the part oftheindividualrequest- Ing the material and the limita- tions contained in sec. 3 of the AdministrativeProcedure Act. Office of Science and Techno1ogy~ ~ 1. Published reports of advisory studies. 2. Congressional communication: a. Testimony presents an cx- tensive supplementary record of the ways in which the Ex- ecutive Office science struc~ ture fulfills its advisory and staff functions. Not applicable. Not applicable. Same as answer 3. PAGENO="0022" TABULAR ANALYSIS OF OPERATION S UNDER 5 U.S.C. 1OO2~Coutinued Executive Office of the President (7) . Limitations on availability of records and files (8) Private partiesresorting to unpublished orga- nlzation or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy in public interest, sec. 3(1) (10) Refrained from publish-. ing rules-Matters re- lating to internal agency management, sec. 3(2) (11) Definition of "official record" Bureau of the Budget None. None. None. All. None. Office of Emergency Plan- ning. 1. 5 U.S.C. 1002. 2. 18 U.S.C. 1905. 3. 50 U.S.C. app. 2155(e). 4. Executive Order No. 10480. 5. Executive Order No. 10501. None. . None. All-Examples: 1. Personnel rules. 2. Budget rules. 3. Travel regulations. None. ~ Office of Science and Tech- nology Not applicable. ~ Not applicable. None. None. Not applicable. PAGENO="0023" 0 00 Not usually published in Federal Register but, rest for their legal effect on actual notice. (See sec. 3(a)(3) of Ad- ministrative Pro- cedure Act). TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (1) Applicability of 5 U.S.C. 1002 (2)(a) (2)(b) (2)(c) (2)(d) (2)(e) Official or unofficial publication Organization, sec. 3(a)(l) Statement of func- tions, sec. 3(a)(2) Substantive rules, see. 3(a)(3) General policy for public, sec. 3(a)(3) Rules served on named persons in accordance with law, sec. 3(a)(3) Department of Agriculture Yes. 1. Federal Register. 2. Code of Federal Regulations. 1. Federal Register. 2. Code of Federal Regulations. 1. Federal Register. 2. Pamphlets. 3. Trade journals. 4. Press releases. 1. Federal Register. 2. Pamphlets. 3. Trade journals. 4. Press releases. 1. Agricultural dcci- sions. 2. Federal Register. Department of Commerce (departmental summary). Yes. Federal Register. Federal Register. Federal Register.. Federal Register. None. Area Redevelopment Administration. Yes. Federal Register. Federal Register. Federal Register. Federal Register. None. Business and Def~nse Services Administration. Yes. Federal Register. Federal Register. Federal Register. Federal Register. Office of Business Eco- nomics. Yes. Federal Register. Federal Register. Not applicable. Not applicable. Not applicable. PAGENO="0024" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (1) Applicability of 5 U.S.C. 1002 (2)(a) j (2)(b) J (2)(c) (2)(d) (2)(e) Official or unofficial publication Organization, sec. 3(a) (1) Statement of func- tions, sec. 3(a) (2) Substantive rules, sec. 3(a)(3) General policy for public, sec. 3(a) (3) Bureau of the Census Yes. Federal Register. Federal Register. Federal Register. Same as (2)(c). Not applicable. Coast and Geødetlc Survey Yes. Federal Register. Federal Register. Not applicable. Not applicable. Not applicable. Community Relations Serv- ice. Yes. Federal Register. Federal Register. Not applicable. Not applicable. Not applicable. Bureau of luternational Commerce. Yes. Federal Register. Federal Register. 1. Federal Register. 2. Comprehensive Export Schedule and supple- merited by cur- rant export bulletins, 1. Federal Register. 2. Comprehensive Export Schedule (annual). 3. Summary of U.S. export control regulations, 4. Quarterly report on export con- trol (to the President and Congress). 5. International commerce. 6. Current export bulletins. 1. Federal Register. 2. Comprehensive Export Schedule 3. Quarterly report on export~control. 4. Current export bulletins. 5. By letter to parties involved. See par. 382.14 of Comprehensive Export Schedule. Rules servedon named persons In accordance with law, sec. 3(a)(3) t~i Q C) 0 CI) Office of Management and Organization (Great Lakes Pilotage Adminis. tration). Yes. Federal Register in 1960; 1962, amend- ment in Federal Register. Federal Register and codified in the Code of Federal Regulations. Federal Register and codified in the Code of Federal Not required to any significant degree; no such publication Have not been Issued to date. PAGENO="0025" Maritime Adm1nistration~.. Yes. Federal Register. Federal Register. Federal Register. Exception: Pro- grams of subsidy and mortgage In- surance (J)ublished in Federal Register or through circular letter to interested parties. Not commonly Is- sued; however, when Issued pub- lished in Federal Register. Not normally pub- lished; however, as a matter of policy made avail- able to public through agency's Offices of Public information Office of Management and Organization (New York, World's Pair). Yes. Not applicable. Not applicable. Not applicable. Patent Office ~ ~ Yes. . . Not applicable. Only adjectival rules and regulations are published in Fed- eral Register and~ Official Gazette of U.S. Patent Office and incorporated in title 37 of Code of Federal Regula- tions. Official Gazette of U.S. Patent Office. Not applicable. Bureau of Public Roads No; Public Roads does not deal di- reetly with public. Internal issuances (administrative memorandums) (relate solely to internal manage- ment.) . Same as (2)(a). Policy and procedure memorandums to implement title 23, U.S.C. These go to Bureau field offices and to sev- eral State highway organizations which may make them available to public, Sec. (3)(a)(3) of Administrative Procedure Act (term "person" In- cludes State high- way organizations. Not applicable. Same as (2)(c). PAGENO="0026" TABULAR ANALYSIS 01? OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (1) Applicability of 5 U.S.C. 1002 (2)(a) (2)(b) f (2)(c) (2)(d) (2)(e) Official or unofficial publication Organization, sec. 3(a)(1) . Statement of func- tions, sec. 3(a)(2) Substantive rules, sec. 3(a)(3) General policy for public, sec. 3(a)(3) Rules served on named persons in accordance with law, sec. 3(a)(3) St. Lawrence Seaway De~ velopment Corporation. Yes. 1. Government Or- ganization Man. ual (annually). 2. Originally in the Federal Register. Government Organi. zation Manual (annually). 1. Federal Register. 2. Press Releases. 3. Mailing lists. 4. Communication with those af. fected by therules. Corporation manual (internal use only). None. Office of General CounseL..~.. Not applicable. Not applicable. Not applicable. Not applicable. Not applicable. Not applicable. National Bureau of Stand- ards. . ~ Questionable. . 1. Federal Register. 2. National Bureau of Standards Hand. book 44. 1. Federal Register. 2. Technical High- lights of the National Bureau of Standards. 3. Technical News Bulletin. 4. Other National Bureau of Stand. ants publications. Not applicable. Weather Bureau Yes. Governed by Department of Commerce Order No. 138 and by 28 U.S.C. 1783 (legal status of certified copies of Weather Bureau records). Office of Management and Organization. Questionable, but would appear to be yes. Federal Register, Dec. 35, 1964, for the handling of con- tract appeals. None. See. 3.13, of Federal Register of Dec. 30, 1964 (referred to as decisions). PAGENO="0027" Department of Defhnse Yes; except the Na- 1. 13.5. Government 1. U.S. Goc'ernment 1. U.S. Govetnment 1. U.S. Government These rules are not tional Security Organization Organization Organization Organization published in ac Agency which is Manual. ManuaL Manual. Manual: cordance with sec. exempted by the 2. Code of Federal 2. Code of Federal 2. Code of Federal 2. Code of Federal 3(a)(3) of the Ad- provisions of Public Regulations Regulations Regulations Regulations ministrative Pro- Law 86-36. (title 32). (title 32). (title 32). (title 32). cedure Act. 3. Federal Register. 3. Federal Register. 3. Federal Register. 3. Federal Register. 4. Available to public 4. Available to public 4. Available to public 4. Available to public upon.request or upon request or upon request or upon request or inquiry. inquiry, inquiry, inquiry. Department of Health, Educa- tion, and Welfare. ~ ~ ` Yes. ~ 1. Federal Register. 2. U.S. Government Organization Manual. 3. Congressional Directory. 4. Various publica- tions of the oper- ating agencies of the Department. . 1. Federal Register. 2. Code of Federal Regulations. 3. Various publica- tions of the oper. ating agencies of theDepartment. 1. Federal Register. 2. Code of Federal Regulations. 3. Various publica. tions of the oper- ating agencies of the Department. 1. Federal Register. 2. Code of Federal Regulations. 3. Various publica- tions of the oper- ating agencies of the Department. 4. Handbooks and manuals. 5. Announcements, application kits, brochures, peri- odicals. 1. Federal Register. . Department of the Interior Yes. Exception: See 30 U.S.C. 483: Mak- jug of an order of withdrawal pur- suant to title 11 of the Federal Coal Mine Safety Act. I. U.S. Government Organization Manual. 2. Federal Register. 1. Titlesl8, 25, 30,32, 32A, 36,41,43,49, and 50 of the Code of Federal Reg- ulations. 2. Representatives of the States have been furnished a copy of the Fed- eral Aid Manual. None. Department of lustice . Yes. Federal Register (daily edition). Amendments, Code of Federal Regula- tions. Annually in Govern- ment Organization Manual. Federal Register (daily edition). Revisions, annually in Code of Federal Regulations. Government Organi- zation Manual (op. erations of units). Federal Register. Code of Federal Regulations. Federal Register. Code of Federal Regulations. Not applicable. PAGENO="0028" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (1) Applicability of 5 U.S.C. 1002 (2)(a) J (2)(b) (2)(c) (2)(d) (2)(e) Official or unofficial publication Orgunization, sec. 3(a)(1) Statement of func- tions, see. 3(a)(2) Substantive rules, sec. 3(a)(3) . General policy for public, sec. 3(a)(3) Rules served on named persons in accordance with law, sec. 3(a)(3) Department of Labor Yes. ~ ~ Government Organi- zation Manual cdi- tion of Federal Register (annually). ~ . Federal Register and as amendments occur to Code of Federal Regulations. . Code of Federal Reg- ulatlons. Printed copies available upon request when substantial public interest Is Involved. ~ Same as (2)(c). 1. Copies of Wage De. terminations for Laborers and Me. chanles served upon agency let. ting or adminis- taring construe. tion contracts. 2. Copies of Wage De. terminations re- viewed by De- Tpartment of Labor's Wage Appeals Board are published in 29CFR,pt.7; public inspection and distributed widely to inter- ested groups. Post Offica Department Yes. 1. Federal Register. 2. U.S. Government Organization Manual. 3. Oh. 8, Postal Manual. 1. Federal Register. 2. Code of Federal Regulations. 3. Postal Manual. . I. Federal Register. 2. Code of Federal Regulations. 3. Postal Manual. 1. Federal Register. 2. Code of Federal Regulations. 3. Postal Manual. ~ 1. Postal Bulletin. Department of State Yes. 1. U.S. Government Organization Manuak 1. Federal Register. 2. Department's man- uals of regula- 1. Federal Register. Not applicable. 1. U.S. Government Organization Manual. PAGENO="0029" 2. Federal Register. 2. Department'S regu- tions. lations. Agency for International Yes. 1. U.S. Government 1. Federal Register. 1. Federal Register. 1. AID small business 1. Generally none. Development. Organization 2. Code of Federal 2. AID manual or- memos. 2. If done, then pub- Manual. Regulations. ders. 2. BulletIns. llshed in AID 2. Federal Register. 3. AID smallbusiness 3. Federal Register. small business 3. Code of Federal memos. memos. Regulations. 4. Co'nmerèe Busi- ness Daily. Peace Corps Yes. 1. U.S. Government 1. Peace Corps Re- 1. Peace Corps Re- 1. Peace Corps Re- None. Organizational presentatives' presentatives' presentatives' Manual. Manual. Manual. Manual. 2. Federal Register. 2. Peace Corps Hand- 2. Peace Corps Hand- 2. Peace Corps Hand- book. book. (State it book. is not clear that 3. Peace Corps yearly they adopt sub- congressional stantive rules presentation. withinthe mean- 4. Peace Corps annual ing of Adminis- report to Con- trative Procedure gress by the Act, sec. 3(a)(3)). PresIdent. 5. Peace Corps Facts Book. II. Peace Corps pro- gram descrip- tions. 7. Peace Corps infor- mational bro- chures. Department of the Treasury: Office of the Secretary Yes. 1. Federal Register. Same as 2(a). 1. Federal Register 1. Federal Register None. 2. U.S. Government and codified in and codified in Organization the Code of Fed- the Code of Fed- Manual, 1 CFR eral Regulations. eral Regulations. 31.1. 2. Annual reports of 3. Annual reports of Secretary of the the Secretary of Treasury. the Treasury. 4. Treasury orders. PAGENO="0030" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (1) Applicability of (2)(a) (2)1b) (2)(c) (2)(d) (2)(e) Official or unofficialpublication Organization, Statement of func. sec. 3(a)(l) tions, see. 3(a)(2) Substantive rules, see. 3(a)(3) General policy for public, sec. 3(a)(3) Rules served on named persons in accordance with law, sec. 3(a)(3) Office of the Assistant Secretary for Interna- tional Affairs. Yes. i. Federal Register. 2. Annual Report of the Secretary of the Treasury (3. U.S. Government Organization Manual). None. None. Office of Fiscal Assistant Secretary. Yes. i. U.S. Government Organization Manual (annually), in that portion relating to the Secretary of the Treasury. bureau of the Public Debt~ Yes. 1. Federal Register. 2. U.S. Government Organization Manual 1. Federal Register. 2. U.S. Government Organization Manual 3. Departmental cir- culars. 1. Department Circu- lar No. 300 (31 CFR 306). 2. Federal Register. 3. Other departmen- tal circulars, None. None. Internal Revenue Service Yes. i. Federal Register, vol 26, p. 6372, July 15, 1951. 2. Internal Revenue Bulletins. 3. Organization and functions of the Internal Rev- enueliervice. 4. Tax reporters. 1. Code of Federal Regulations, 2. Federal Register. 3. Internal Revenue Bulletin. 4. Tobacco Tax. Guide. 5. Tax reporters. I. Federal Register, as "Treasury Decisions." 2. Internal Revenue Bulletin. 3. Technical informa- tion releases. 4. Tax reporters. 1. Internal Revenue Bulletin. (taxpayer rul- ings). 2. Technical Informa- tion releases. 3. Farmers Tax Guide. 4. In some cases Fed- eralRegister. None. Bureau of the Mint Yes. U.S. Government Organization Manual. 1. U.S. Government Organization Manual 1. Federal Register. 2. Code of Federal Regulations. I. Federal Register. 2. Code of Federal Regulations, None. PAGENO="0031" 2.31 CFR cum. supp. 92. C) C) 0 f/I None; only open to inspection. (See 12 CFR 4.13 (a)(2) and (b). Bureau of Narcotics Yes. 1. U.S. Government Organization Manual. 2. Narcotic Regula. tion No. 5. 1. U.S. Government Organization Manual. 2. Traffic in opium and other dangerous drugs. Code of Federal Regulations. 1. Traffic in opium and other dangerous drugs. 2. Pamphlet N~o. 56, "Prescribing and Dispensing of Narcotics Under Harrison Narcotic Law." None. U.S. Coast Guard 1. Generally, yes. Exceptions: War Plans Branch, Divisions of In. telligence, Opera- tional Readiness, etc. ~ 1. U.S. Goyernment Organization Manual. 2. Federal Register. 3. Various pamphlets. 4. 33 and 46 CFR. ~ ~ ~ 1. U.S. Goyernment Organization Manual. 2. 33 CF R and 46 CFR. 3. Federal Register. ~ 1. 31 CFR, pt. 3, 33 CFR, ch. 1, 41 CFR, ch. 31, 46 CFR, ch. 1. 2. Handouts, notices, pamphlets, cir- culars. 3. Federal Register. 1. 33 CFR, ch. 1, 46 CFR, ch. 1. 2. Federal Register. 3. 33 CFR, pts. 2, 85, 86, 91, and 96. 4. Notices, pamphlets, etc. 1. When necessary, these rules are published in the Federal Register (to have uniform. ity in the stand- ards of inspection and administra- tion). U.S. Secret Service Yes. . 1. Sept. 11, 1946, issue of Federal Regis- tar. 2. U.S. Government Organization. Manual. None. . 1. Federal Register. 2. Code of Federal Regulations. ~ 1. Federal Register. 2. Code of Federal Regulations. Other than these, none. None. Comptroller of the Cur- rency. Yes. 1. Federal Register and in letters to national banks. 2. U.S. Government ~Organization Manual. 3. Annual Report of the Comptroller of Currency. 4. Code of Federal Regulations, 5. Commercial publi- cations. 1.Procedures and fiduciary powers of national banks and collective funds. 2. Manual for Repre. sentatives in Trust. 3. Comptroller policy guidelines for national bank directors. 4. Etc. I. Federal Register. 2. Code of Federal Regulations. 3. Letters to national banks. 1. Federal Register. 2. Code of Federal Regulations. 3. National Banking Review. 4. Letters to national banks. 5. Manual for na- tional banks. PAGENO="0032" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. lO02-Continued Department -~- (1) Applicability of 5 U.S.C. 1002 ..* -- .~_._. ._ .~. ..~__ --- -~ ..~ .__. .__*. ... .*~._ .*_ -- --C ~ *. .~. ~. (2)(a) {2)(b) (2)(c) (2)(d) (2)(e) Of~lcial or unofficial Organization, see. 3(a)(1) Statement of func- tions, sec. 3(a)(2) publication Substantive rules, sec. 3(a)(3) General policy for public, see. 3(a)(3) Rulesserved on named persons in accordance Bureau of Customs Yes. 1. Federal Register. 2. Oustom regula- tions (19 OFR, pt. 1). 1. Federal Register. 2. Codified in 19 Code Federal Regulations, ch. 1. 3. Treasury De- cisions (weekly pamphlet). 1. Federal Register. 2. Treasury De- cisions. 3. Customs regula- tlons. 4. Notices or rulings. Same as 2(c). ~ with law, sec. 3(a)(3) None. Bureau of Engraving and k~rinting. ~ Bureau of Accounts Yes. Yes. u.s. Government Organization Manual. None. None. None. Such rules are not published. u.s. Government Organization Manual. 1. U.$. Government Organization Manual. 2. Code of Federal Regulations. I. Federal Register. 2. Code of Federal Regulations. 1. Federal Refister. 2. Code of Federal Regulations. PAGENO="0033" 5-pt. 2-8 PAGENO="0034" Area Redevelopment Administration. Business and Defense Serv- ices Administration. ci C) C) 0 w TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-.--Continued . Department (3) Pubilcations-Availabilityof final and interim opinions or oTders, sec. 3(b) (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions Department of Agriculture ~ 1. Agricultural decisions. 2. Matters of public record avail, able for examination. 3. Public inspection. 4. Interested person entitled to copy of the record. None. None. ~ 1. Published and located in legal branch of Department's ii. brary. General policy state- ments. 2. Legal opinions. Request made to librarian of legal branch and to hearing clerk. 3. Inspection. (See 7 CFR, pt. 1, subpt. (a), as amended.) 4. Internal memorandums avail. able at proper showing of in. terest. Department of Commerce (Departmental summary). No formal procedure. Persons making requests are furnished all available information as war~ ranted. Final dispositions of applications for financial assistance, 42 U.S.C. 2517. Those approved are available for public. inspec- tion. Final disposition of applications for financial assistance which are disapproved. None. See answer 3. Available to public on request. Press releases issued each month. I. Foreign excess property cases. Made available to public by inspection but'not published. 2. Requiredby~statute~or in- volves national security. None. Federal Register, governed by Business and Defense Services Administration. Register No. 7 (17 F.R. 3648) Business and Defense Services Administra- tion doesn't'issue legal opin- ions. Available by inspection to public. PAGENO="0035" Office of Business Econornies. Not applicable. ~ ~ Not applicable. Not applicable. Not applicable. Economic data and analysis is published in Survey of Current Business and the Surveys family of weekly and periodic major supplements. Bureau of the Census Not applicable. Not a~pp1icaile. Not applicable. Federal Register. Coast and Geodetic Survey~ Not applicable. Not applicable. ~ Not applicable. No express procedure; however, unless Information is confidential jn nature it is available to public. Community Relations Serv- ice. ~ Not applicable. . Not applicable. Not applicable. Office of Media Relations to extent possible under confidential re- triction. Does release to media and inquiring parties information regarding organization, mission, and general activities. Bureau of International Commerce. I. Federal Register. 2. A listing of licenses issued is published daily, and is available for inspection in Office of Export Control, Department Field Offices, and may be subscribed to at an annual fee. 3. Mobile Trade Fair Act con- tract awards published in International Commerce and press releases. 4. China Trade Act certificates are available fo public inspection. Material other than described In 2(e) and 3 is not available. Where publication would re- suit in disclosure of informa. tion entitled to confidential treatment by operation of law; 18 U.S.C. 1905 or sec. 6(c) of Export Control Act of 1949, as amended. Not applicable. 1. Federal Register. 2. Comprehensive Export Sched. isle. 3. Summary of U.S. Export Con. trol Regulations. 4. Quarterly Report on Export Control (to President and Congress). 5. International Commerce. 6. Current export bulletins. 7. Press releases. . ~ PAGENO="0036" Available for public inspection, rule 2.27 of the Trademark Rules of Practice of the Patent Office, 37 CFR 2.27. Also rule 2.81, issued patents, open to public ~37 CFR Lii). 35 U.S.C. 122, requires pending patent cases to be exempted from publication and inspec- tion. Not applicable. See sec. 707.06 of Manual of Patent Examining Procedure, 3d edition, Nov. 1961, U.S. Department of Com- merce. 1. Official Gazette of U.S. Patent Office. 2. U.S. Patent Quarterly. 3. Bulletin of American Patent Law Association. 4. Trademark Reporter. 5. Trademark Rules of Practice of Patent Office, 37 CFR 2.27. TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-.Continued Department ~ (3) Publications-Availability of final and interim opinions or orders, see. 3(b) (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, dies, and legal opinions Office of Management and Organization (Great Lakes Pilotage Administration). Available as public records pur- suant to Department of Com- merce Order 64. Parties to the matters are addressed and served personally. None. None. All records, files, and interpreta- tations are available to the public pursuant to Department of Coiiinierce Order No. 64. Maritime Aclmlnjstratlon 1. Rules of Practice and Pro- cedure, 29 F.R. 14475, eec.~ 201.4(c), inspection at Washington office of the Administration. 2. Other matters: Secretary makes available to public through Office of Public Information all final orders, etc., of Maritime Acimini- stration and Board. None. None. ~ Department of Commerce Order No. 64; DeDartment Admin- trative Orders Nos. 202-22, and 202.19 sec. 6.08 (revised), Maritime Administrators Order No. 153; and Rules of Practice and Procedure, 29 P.R. 14475, sec. 201.4 Office of Management and Organization (New York World's Pair). Not applicable. No applicable. Not applicable. N~otMng published and Record available upon request. Patent Office PAGENO="0037" PAGENO="0038" (3) Publications-Availability of final and Interim opinions or orders, sec. 3(b) Department TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. (5) Department of Defense `(4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) Unpublished cited or' 1. Does not publish opinions and orders which are made ble pursuant to rule. If they I the Opinionsandorderspublishedin- 1. Court martial reports. 2. Digest of opinions. 3. Contract appeals decisions. 4. Public inspection. (See title 32 of Code. of Federal Regula- 5. Q I. ~ e ~~.catIon of s submitted defense i~ 6. PAGENO="0039" rective 6040.2 which prescribes the condition under which personar medical records are made available to persons properly and directly con- cerned. 1. See question 3. 2. Persons properly and directly concerned may inspect perti- nent official files and records, ~ and interpretations and legal ~j opinions of this Department ~ upon written application to ~ the Secretary: a. For pertinent procedure ~ * see2OCFR4Ol;21 t' CFR 4; 42 CFR 1; 42 CFR 300; 45 CFR 5; 45 `~ CFR 211.14, 212.9. a a 0 Department of Health, Educa- tion, and Welfare. 1. Social Security Rulings; also a quarterly bulletin, 2. Notices of judgment under the Federal Food, Drug, and Cosmetic Act, a. Publishes notices of proposed rulemaking. b. Also available for public inspec- tion. c. Transcripts of public hearings available. 3. Final orders and opinions of Secretary under Federal Food, Drug, and Cosmetic Act are available for public inspection. 4. Other records are available for inspection. Social Security Administration refrains from publishing only those opinions and orders which lack precedent value or which would, from the peculiar facts involved, identify the individ- usals concerned. None. ~ Department of the Interior 1. Decisions of the Department of theinterior. 2. Subscription serviceis offered. 3. Quarterly Index Digest (pub- lished and unpublished deci- sions). 4. File of all final decisions are open toinspection. 5. See sec~ 2.5 of title 43 of Code of Federal Regulations. 1. Denials of applications for ex- ploration project contracts, 30 U.S.C. 641-646. 2. Disapproval of equipment sub- mitted for investigation and tests for permissibility by the Bureau of Mines. 3. Denial of applications for loans for financing and refinancing of operations, maintenance, re- placement, repair, and equip- ment of fishing gear and ves- sels. SealS U.S.C. 742(e). In opinions or orders in adjudica- tion of cases, these may be cited as precedents unpublished opin- ions or orders. However, they are made available for inspec- tion. Upon request to the Department or to the bureau or office having custody, records and files are made available subject to limi- tations set forth in question 7. ** PAGENO="0040" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (3) Publications-Availability of final and Interim opinions or orders, sec. 3(b) (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions Department of Justice 1. Administrative decisions on the immigration and nation- ality laws of the United States, inspection in all field offices (interim decisions). 2. Interim and final decisions of Board of Parole available on request. 3. Interim and final decisions of Office of Alien Property avail- able for public inspection. Orders of Board of Parole in pa- role and revocation cases are not published; not In public interest. (Exception: Party in interest, 28 CFR 2.48.) ` None. . Opinions of the Attorney General. Recent opinions available upon request. Official records available only in accordance with published rules. Department of Labor . Available during business hours upon written request (29 CFR 2.7). Some orders published by private labor law reporting services. None. ~ Guidance in responding to re- quests for information and interpretations, 1. Code of Federal Regulations. 2. Letters to members of public and by answers to oral in- quiries. 3. Trade associations, employee organizations, Government agencies, and interested per- sons. Also, commercialreport- ing services. 4. Written request to Department (unless it is confidential). 5. Copies of accounts, letters, rec- ords, etc., furnished only by solicitors permission, 29 OFR 1.15, 2.4, 2.6, 2.7, and 2.9; and 20 CFR 501.8. 6. Office of Labor Management, welfare-pension reports; copies of reports may be obtained at 25 cents per page. C) 0 PAGENO="0041" 1. Orders issued by the Depart- ment in administrative fraud, lottery, and obscenity pro- ceedings, and in proceedings relating to the issuance and revocation of 2d-class snail- lug permits are available for public inspection in the Dc- partrnent's law library. 2. Public inspections. 1. Letters to members of the public frequently contain interpreta- tions and legal opinions. 2. Bound volumes of the Depart- ment's chief legal offIcer up to 11151. 3. Postal publications may be pur- chased from the Superintend- ent of Documents, U.S. Gov- ernment Printing Office. 4. Formal records of a proceeding in which a hearing has been held or offered may be in- spected by persons have a proper interest in them. 5. All other records may be in- spected by persons if per- snitted to do so by the head of a bureau or office in the Post Office Department. In such circumstances a number of items are taken into con sideration. Post Office Department None. None-other than those made available for inspection in ac cordance with published rules. Department of State All passport regulations having as their basic opinions, orders, and precedents are published in the Federal Register. ~ Interpretations and legal opinions generally are for use of the Secre- tary and other officials. Applicable only to the issuance of U.S. passports. Historical records: 1. Transmitted to National Archives. 2. Foreign relations of the United States. 3. American Foreign Policy. 4. U.S. treaties and other inter- national agreements. Interpretations and opinions: 1. Inquiries fronipublic treated on ad hoc basis. 2. Information available de- pending on nature of in- quiry. Agency for International De- velopment. . L Public inspection. 2. Code of Federal Regulations 3. The Government contractor. 4. Federal Register. 5. LIst of ineligible supplies. None. None. 1. Information staff office. 2. Businessmen's information ecu- ter. 3. Documents available for inspec- tioii. 4. Inquiries. PAGENO="0042" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued 1. Information submitted in con- fidence to Treasurer. 2. Information relating to a finan- cial matter between Govern- ment and an individual or corporation disclosure of which would cause prejudice. 3. Security of Department's functions. 4. Negotiations with foreign countries. 5. Information made confidential bylaw. 6. Information which would be ininilcalto thepublicinterest. (See 31 CPR 1.2(e).) 1. Requests from members of the public to see Peace Corps ~ records and files should be ~ addressed to the Director of ~ the Division of Public Infor- ~ mation, Office of Public Affairs. 2 Requests to see legal opinions t~ should be addressed to Gen- eral Counsel of the Peace Corps. 3. Sec. IV(4) of the "Standards of W Conduct for Peace Corps Em- ployees," issued Oct. 19, 1961. Q 0 ri~ Outlined in detail in 31 CFR 1.2 (f) to (h): (f) 1. Application for Informa- tion by request. (g) 1. Determination of whether request is available for disclo- sure made by the ad- ministrative assistant to the Secretary (or the Secretary of the Treasury, the Under Secretary and Assistant Secretary, the Fiscal Secretary, or the Gen- eral Counsel). (h) Copy of said official rec- ords will be rurnished the party requesting the same. (3) (4) (5) (6) Department Publications-Availability of final and interim opinions or orders, sec. 3(b) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) Unpublished opinions and orders cited or used as precedents ~ Procedure for making available records, files, and legal opinions Peace Corps Not applicable. None and not applicable. 1. See answers 3 and 4. 2. However~ the Office of General Counsel does from time to time cite its prior opinions. All opinions are unpublished and almost all unclassified . and hence available to per- sons properly and directly concerned. Most of these opinions relate to internal management. Department of the Treasury: Office of the Secretary Published rule 31 CFR 1.2 (a) and (b), final orders only are available for inspection on re- quest in Washington, and copies of documents may be furnished on request. None. PAGENO="0043" 1. Personal Inspection at place where document Is normally kept. 2. Reasonable fee may be charged for same. L~ 0 1. See 26 CFR 601, 702(a). 0 2. Generally, records not treated as 0 confidential, pursuant to stat. ~ utory prohibitions, are made ~ available for inspection at ~ offices of district directors. Matters of official record in which procedure for inspec- tion is not set out should be submitted to Commissioner of Internal Revenue, Washing- ~oD~C~26 CFR6OI.702(d). Office of the Assistant Secretary for Interns- tional Affairs. None. Not applicable. Not applicable. Outlined in detail In 31 CFR 1.2 (f) to (h). (Same as that listed for Office of the Secretary.) Office of Fiscal Assistant Secretary See 31 CFR 1.2 (1) to (h). (Same as that listed for Office of the Secretary.) Bureau of the Public Debt~. None. None. None. Only cases that have been decided by courts of rec- ord, authoritative bodies, cx- cept Comptroller General, At- torney General, Internal Rev- enue Servjce. 1. Submit applications In any case to Bureau of Public Debt, Washington, D.C. 2. Depending on the subject mat- tar, submit applications to different branches listed in 31 CFR 323. Internal Revenue Service..~.... 1. See 26 CFR 601, 702(b). 2. Federal Register. 3. Examination of the Public In- formation Division of the na- tional office. 1. Sec. 7213 of Internal Revenue Code (information obtained from public). (See also 18 U.S.C. 1905.) 2. Other confidential matters such None. 702(b) (See 26 CFR 601, (5).) * 4. Inspection at the Office of As- as referred to in 26 CFR sistant Regional Commis- sioner (alcohol and tobacco ~tax~. 601.701 and 601.702. 3. Bureau of theMint None. None. None. Matter falling within the jurisdic- tion of the Office of General Counsel. I. PAGENO="0044" PAGENO="0045" 1. Does not Issue interpretations or legal opinions. 2. Procedures used for making ~j records and files available. ~ See3l CFR 1.2 (c), (f), (g), (h). ~ 1. Matter which falls within the jurisdiction of the Office of ~ General Counsel. 2. See 31 CFR 270.2 a. Request for Information. b. Copy furnished to party re- -questing same. c. Partymust have proper Interest. ~ L~J C) 0 See 31 CFR 351. Matter falls ~ within jurisdiction ot the Office ~ of General Counsel. a. Requests for information. b. Copy furnished to party re- questing same. c. Partymust have proper interest. Bureau of Customs.,,... 1. Pt. 26 of the customs regula- tions (19 CFR, pt. 26), particularly sec. 26.1(a). 2. Interim opinions of orders are not usually issued. 1. ConfIdential treatment of custom records and docu. ments. See sec. 26.4 of custom regulations (19 CFR 26.4). 1. Generally none. 2. However, may serve as pre. cedents in arriving at a de- cision in a matter before it; may be aided by results of Its previous consideration of similar matters. See sees. 26.1 to 26.7 of the ens- tome regulations (19 CFR 26.1 to 26.7. Bureau of Engraving and Printing. None. None. None. Bureau of Accounts 1. Certificates of authority issued to certain corporations are publisbedin Federal Register. a. Also published as a Treasury Department Circular. b. Furnished to Federal bond- approving officers and other ersonsupon~equcst,~ Issues no final or interim orders or opinions. None. - - - None. . Office of Treasurer of the United States. Office of Domestic- Gold - and Silver Operations, None. k. ~pecifie requestand-a showing of legitimate interest therein, 2. Rulings and opinions of general applicabifity are available to public upon written request to Director. 3. Neither final or interim opinions are published. - - None. 1. Final and interim opinions are not published. 2. Matters involving gold licenses are subject to the require- merits of 31 CFR 93.16(b). . -- - None. None.---- 1. By requeatingtheDireetorof- Office of Domestic Gold and Silver Operations. a. Applicant must have an In. terest in subject matter. 2. If Director in hts discretion permits, documents may be - - sent toapplicant~ for a - - reasonable fee. . ~ . - - 1' PAGENO="0046" TABULAR ANALYSIS OF OPERATIONS UNDER~ VSC:~ 1OO2~.Conthiued I. Department (3) Publications-Avallabilityof final and Interim opinions or orders, sec 3(b) (4) When does agency refrain from publishing for "Good cause- Confidential sec 3(b) (5) Unpublished opinions and orders cited or used as precedents (~) :~: Procedqre for making available records;flle;nnd~1eglil opinions Office of Foreign Assets Con. trol. See answer to question 4. Interim and final actions on mdi- vidual license applications are nut published on the ground that they are required for good cause to be held confidential pursuant to exemption in 3(b) of Administrative Procedure Act and rule of Office of Secre- tary of Treasury 31 CFR pt. 1. Aspolicy precedents in the process of deteriillhiitlië~dik~iOllltItib of related or similar applications are not disclosed to persons other than the particular appli- cants. Office of Law Enforcement Coordination. None. .. None. None. 1. Does notissue interpretations or legal opinions. 2. Procedures for making records and ifies available to public set out in 31 CFR 1.2(c), (0, (g), and (h). Office of Director of Practice.. 1. 31 CFR pt. 10, sec. 10.90. 2. Internal Revenue Bulletin, notices of suspensions and disbarments of enrolled at~. torneys and agents (these are published), 1. 31 CFR pt. 10, sec. 10.90. 2. Where reprimand is imposed by a hearing examiner or by Director of Practice or for denial of application for enrollment. 3. Record of proceedings to sus- pend or disbar. 4. No announcement is made of final orders as it will be in- jurious to enrollees and applicants. None. ~ 2. 1. Governed by 31 CFR pt. 1 of OOTlitretsi'.y uf TreaSury. 2. 29 P.R. 3443, public may in general secure any information :~ or make submittals, requests, or petitions by correspondence or telephone or by coming in person or sending a representa- tive, either to central office in Washington or Federal Re- serve Bank of New York. s~ Cli 1. Available for public inspection at thO Office of Director of ~ Practice. Public may secure information from, or make inquiries in writing to Director of Prac.~ tice. a. Should state information desired, interest of appli- cant in subject matter, and purpose; 31 CFR subtitle A, pt. 10, sec. 10.90(a). 3. Roster of persons enrolled to practice. 4. Roster of persons disbarred or suspended from practice. PAGENO="0047" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued L~i None; however, deflnl- tion as used in 44 U.S.C. 366 is followed. ~ Department (7) Limitations on availability of records and files (8) Private parties resorting to unpublished organ- ization or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy in public interest, sec. 3(1) (10) Refrained from publish- ing rules-Matters re- latitig to internal agency management, sec. 3(2) (11) Definition of "ofilcial record" Department of Agriculture 1. 12 U.S.C. 11411(d) prediction with re- spect to cotton prices, 2. 78 Stat. 703 (Food Stamp Act). 3. 50 U.S.C. app. 2155(e)~ Defense Produc- ISon Act, 1950-National defense. 4. 18 U.S.C. 1905; trade secrets, processes, operations, etc. 5. Instructions implementing regulations to availability of records and files to the public, 6. Internal memoranda. 7. Mattersreferred to Department of Justice for prosecution. Insofar as there hasn't been time to modify the public organiza- tional description or statement of func- tions and procedures to conform with changes made In the organization and procedures. None. Generally ali. ~ None; however, uses At- torney General's Man- ual on the Adminis- trative Procedure Act, p. 24, as a guide. Department of Commerce (departmental summary). I. National Defense Security, Executive Order No. 10501. 2. Confidential bylaw, 18 U.S.C. 1905. 3. Precluded by reason of national interest except investigative reports, pro- posed or pending legislation; admims- trative Orders Nos. 201-13 and 203-1. 4. Internal management, Administrative Order No. 202-22. None. ~ None. ~ Does not publish any rules. ~ Area Redevelopment Administration, Records and files on loan applications not available to public. Confidentialbusiness information, 18 U.S.C. 1905. None. ~ None, ~ None. ~ PAGENO="0048" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002.-Crntinued Department (7) Limitations on availability of records and files (8) Private partlesresorting to unpublished organ- ization or procedure, sec. 3(a) (9) Refrained from publish- Ing rules-Secrecy in public interest, see. 3(l) (10) Refrained from publish- lug rules-Matters re- lating to internal agency management, sec. 3(2) (11) Definition of "official record" Business and Defense Services Adrnln- istration. 18 U.S.C. 1905; 15 U.S.C. 176(a) and 705(e) of Defense Production Act; disclosure of business Information obtained in confi- dence. 2. National security Executive Order No. iosoi. 3. Business and Defense Services Admin istration Operating Instruction No. 17; data received frombusiness or industry. 4. Internal memorandum and work papers preparatory to final action. None. * None. ~ Internal management ordinarily not pub. llshed; however, these documents are not classified and are available for inspec- tion as needed. Office of Business Economics, Identifiable information obtained on a co- operative basis from various businesses or industries, 18 U.S.C. 1905, and certain items pertaining to investment as detailed in Bretton Woods agreement, 22 U.S.C. 286F. Not applicable. See No, 7. . Not applicable. 1. Confidentiality of records under 13 U.S.C. 9, 302 and 18 U.S.C. 1905. 2, Decennial census, Presidential Proclama- tion No. 3337, before every census to protect against disclosure of informa- tion furnished. Published in Federal Register, Mar. l~, 1960. Not applicable. Not applicable. Day.to-day internal operations. None; however, defini. tion in 44 U.S.C. 366 is used. Bureau of the Census.~. PAGENO="0049" PAGENO="0050" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Department (7) Limitations on availabifity of records and files (8) Private partiesresorting to unpublished organ- ization or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy in public Interest, sec. 3(1) (10) Refrained from publish- big rules-Matters re- lating to internal agency management, sec. 3(2) (11) Definition of "official record" Maritime Admiflis- tratlon. 1. Sec. 3b of Administrative Procedures Act (good cause). 2. Sec. 201.4 if Rules of Practice and Pro- cedure (Maritime Subsidy Board and Maritime Administration, good cause). 3. Administrator's Order No. 153: Informs- thin not disclosed to anyone not officer or employee of Maritime Administra- tionor Maritime Subsidy Board, except by authorization. 4. 180.8.0, 1905, internal memos and reports for use within agency. 5. Attorney General's manual on the Ad- nainistrative Procedure Act (1947, pp. 24,25), lists of priority ships for national defense purpOses. 6. Sec. 201.151, Rules of Practice and Pro- cedure, 29 P.R. 14475-Confidential statistics of evidence taken during a heaiing. 7. Administrative Order 202-22, personnel matters. 8. Administrative Order 202.19, claims of employees compensation for disability or death. None. ~ . None. Exception: Maritime Adminis- istration and Marl- time Subsidy Board would refrain from publishing any rules concerning security investigation or in- volving classified information, . ~ ~ All matters that relate sOlely to internal management. ~ ~ None; however, At- torney General's Manual on the Ad- ministrative Pro- cedures Act (1947) (pp. 23, 24) used for excluding materials relating to internal operation of the agency. ~ ~ Office of Management and Organization (New York World's Pair). None. ~ Not applicable. Not applicable. ~ Not applicable. ~ Patent Office 1. 35 U.S.C. 122. No circumstances. No types of cases. No circumstances. Spelled out in relevant 2. Rule 11, decisions by the Patent Office In None, statutes of patent laws pending patent cases. and practice of the PAGENO="0051" 1. Documents. 2. Correspondence. Lu 3. Accounting and finan- ~ clal records. 4. Legal. 5. Administrative. 6. Operating. 7. Construction data as 1:1 referred to in De. ~ partment of Corn- merce Order No. 64. ~ Lu 0 (p 3. Index of pending applications including name, address of applicant, etc., not available until after filing. 4. Rule 14, patent applications preserved in a. All information or papers relating thereto. b. Abandoned applications. Office. Bureau of Public Roads Secrecy in the public interest may be Lu. volved, or to matters relating solely to internal management. Not applicable. Not applicable. Not applicable. Not applicable. St. Lawrence Seaway Development Ocr. poration. 1. Certain personnel records under orders by the Civil Service Commission or the Bureau of Employees Compensation, Department of Labor. 2. Inforinationsubmttted in support of tolls or other studies by trade or industry under agreement to hold confidential. ~ None. None. Instruction Manual for employees relating solely to internalman- agenient, which a1~ though not published, is available to all em- ployees and to others upon request. (Only exception to 515.5.0. 1002.) Office of General CounseL There are no limitations. ~ There are no procedures. Not applicable. Not applicable. Any paper of the U.S. Government. National Bureau of Standards. ~ 1. Reports prepared of contracts for other Government agencies. 2. Internal administrative progress reports on project activity. 3. Preliminary reports. 4. Non-National Bureau of Standards re- ports. 5. Reports pertaining to tests and calibra- tions. 6. Patent records, patent applications, reports to Commissioner of Patents. 7. Underlying record Involving inventions. 8. Proprietary information. 9. Certain technical and administrative working papers prior to final form. 10. See title 18, U.S.C. 1905. None. ~ . Not applicable. ~ . Not applicable. ~ 1. Books. 2. Papers. 3. Maps. 4. Photographs. 5. Functions. 6. Policies. 7. Procedures. 8. Operations, etc. ~ ~ ~ PAGENO="0052" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued I. Sec. 3 of Administratiye Procedure Act, exceptions. 18 U.S.C. 1905; Atomic EnergyAct of 1954, sees. 2011-2281; Pub- Law 86-36; Executive Order No. 10501. IL Classified Information-DOD Directive 5200.1-Executive Order No. 10501: a. Top secret, secret, or confidential (includ- ing confidential, modified handling au- thorized) except combat or combat-re- lated operations-war, intelligence op- erations, defense plans, scientific devel- opment, etc. A Army-Regulations 380-5. 1. Top secret: Defense information which couldresult in exceptionally grave dam- age to the Nation. 2. Secret: Serious damage to the Nation. a. International relations of the United States. b. Effectiveness of a program of vital impor- tance to the National defense, 1. Records and infor- mation which per- tain to individuals such as personnel records, medical records, investiga- tive reports, etc. 2. Advance information on proposed plans to procure, lease, or otherwise acquire or dispose of ma- terials, real estate, facilitiesoffunctions, which would pro- vide undue or dis- criminatory ad- vantage to private or personal in- terests. 3. Preliminary docu- L~i None. Generally, how. ~ ever, all records per- ~ taming to our activities ~ are considered official ~ records, exceptmaterial related exclusively to ~ internal operations. ~ *0 1. No single, all-inclu- sive definition of TJ~ the term. 2~ Follows the guidance ~ of the Attorney General's Manual ~ on the Adminis- strative Procedure Act, pp. 24-25. 3. P. 25: Great mass of material relating to the internal opera- tion of ab agency is not a matter of "official record." 4. For purposes of re- lease and authenti- cation. (See DOD Directive 5015.1 for definition of the term). Department (7) . Limitations on availability of records and files (8) Private parties resorting to unpublished organ- Ization or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy In public interest, see. 3(1) (10) Refrained from publish- lug rules-Matters re- lating to Internal agency management, sec. 3(2) (11) Definition of "official record" Weather Bureau . Classified material and material marked "For official use only" (Department of Commerce AO-207-6) Nontechnical files only limited to extent of normal administrative practice, Not applicable. Not applicable. Not applicable. Approved or authorized materials, published or unpublished, which serve to document the plans, programs, op- erations, and outputs of Bureau activities. Office of Management and Organization. 1, See sec. 3.13 of Federal Register. 2. All decisions open to inspection except those required for good cause to be held confidential to the parties. 3. See answer 4 4. 18U.S.C. 1905. None. None. None. Department of Defense None. Rules which are classi- fied In accordance with Executive Order No. 10501 as amended, DOD Directive 5200.1, and imple- menting regulations oftheznilitary depart- ments, because they involve functions of the United States requiring secrecy In the public interest. They are, however, frequently published In classified form and made available to persons who are de- termined to have a "need to know." (See par. IV C 2,3, 4, PAGENO="0053" c. Scientific developments important to na- 9, and 10 of DOD Di- snents relating to tional defense. rective 5200.6.) proposed plans or d. Intelligence operations, policy deyelopment 3. Confidential: Condition In question 7, when premature sheet 8. disclosure would a. Defense information and material, the adversely affect unauthorized disclosure of which could morale, efficiency, be prejudicial to the defense interests of or discipline. the Nation. 4. Examination ques- 4. Confidential: Authorized handling an- tions or answers to thorized, except: be used in training a. Training, field, and technical manuals. courses, entrance b. Photographs, negatives, etc. of models of to duty, or promo- material. tion. c. Defense procurement plans and related 5. Conversations or matters. commmunlcations d. Coniniunications material and messages. between members e. Military maps and aerial photographs. of Department of f. rntor~ation received from international Defense, or be- organizations, such as NATO, SEATO, twcen such meni- and CENTO. bers and represen- g. Combat, combat related information. tatives of other 5. Restricted data and formerly restricted as agencies of the cx- defined in Atomic Engery Act, 42 ecutive branch, U.S.C. 2011. which are merely B. Department of the Navy Regulation advisory or pre- 5510.IB and Air Force Regulation2oS-1 liminary in nature nrc same as Army. and which do not IlL Unclassified official information, DOD represent any final Directive 5200.6: official action. 1. Records and information pertaining to 6. Permissible price individuals, latitudes for depart- 2. Information furnished in confidence from ment negotiators in industry, firms, organizations relating cost-plus-fixed-fee to trade secrets, bids, proprosals, inven- contract negotia- tions, discoveries, etc. -- tion. 3. Information connected with any antic!- pated or pending litigation before Fed- eral or State courts. 4. Proposed plans or policy developments. 5. Examination questions and answers to be used in training courses. 6. Information received from other Govern~ ment agencies for official use of Depart- ment of Defense. 7. Information furnished in confidence by foreign nations to the United States. These regulations are implemented by the Department of Army, Regulations 345-IS, Department of Navy Instruction 6570.2A, and Department of Air Force Regulation 11-30. PAGENO="0054" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002.-Continued Department (7) ~ Limitations on availability of records and files ~ ~ (8) Private partlesresorting to unpublished organ- ization or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy in public interest, see. 3(1) (10) Refrained from publish- ing rules-Matters re- lating to internal agency management, sec. 3(2) (11) Delinition of "official record" Department of Health, Education, and Welfare. ~ 1. Official personnel records; medical and clinical records of patients; information obtained under an assurance of con- fidentiality for purposes of research, survey, investigation; `proceedings of public advisory committees, etc. (See pertinent procedures cited in question 6.) 2. Sec. 1106 of Social Security Act; also sec. 20 CFR 401. 3. Sec. 3010) of the Federal Food, Drug, and Cosmetic Act and sec. 4(h) of:the Fed- eral Hazardous Substances Labeling Act: Methot of procem whtch as a trade secret is entitled to protection. 4. Sec, 408(p) of Federal Food, Drug, and Cosmetic Act. All data submitted to the Secretary or to an advisory com- mittee in support of a petition is con- sidered confidential until published. 5. Sec. 121.51 ~1) and (h) of Federal Food, Drug, and Cosmetic Act. Trade secrets not disclosed in a food additive petition. 6. Civil Service Commission: Safeguarding of examination papers and other ma- terial attached to applications. Applicants for certain types of grants may have to refer to man- uals or kits published specifically for their guidance and which contain more detailed instructions on the grant application procedures. ~ None. None. The Depart- ment's internal oper- ating procedures are not published but these do not consti- tute rules in the sense intended by 5 U.S.C. 1002. ~ Uses the term set forth in 44 U.S.C. 366. Department of the Interior_ 1. National security. None. None. 1. Regulations with None. Follow Attor- 2. Information provided by individuals or regard to person. ney General's Manual business firms for use in preparation of nd matters are on the Administra- industrywide reports. contained in De- tive Procedures Act, 3. Certain information incident to procure- partment manual p. 24. ment and contracting. and Supplement to 4. Information pertaining to fiduciary rela- Federal Personnel tionsbip with individuals not in employ Manual, and of Department. Se6retary's orders, PAGENO="0055" 1. National defense, Executive Order No. No. 10501, Department of Justice order No. 279-62. 2. Confidential informants, 40 Ops. A. G. 45 (1941); 340 U.S. 462.~ 3. Criminal offenses to divulge, Rules of Criminal Procedure, 6(e); 18 U.S.C. 1905; 26 U.S.C. 7213(a); 26 U.S.C. 7237(e). 4. Departmental functions, security investi- gations, Executive Order No. 10450 (18 P.R. 2489). 5. Pardon attorney, files available only to ~ffieials concerned, 28 CFR 1.6 (1963). 6. Administrative matters, 27 F. R. 11002, 11003; 157 F. Supp. 919 (1958). 7. Attorney-client privilege, canon 37, Canons of Ethics, 5 U.S.C. 139(b) (1958) 129 U.S. 41)5. S. Allen registration and fingerprintrecords, 8 U.S.C. 1304(b). Immigration and Nationality Act, see. 264(b). Also, 8 U.S.C. 1226(a); hearings in exclusion cases. 9. Civil litigation. (See 83d Cong., 1st sess., series 2, pt. 2,2433 (1953); 86th Cong., 2d sess. (committee print, March 1960). These, however, are available to general public upon request. Department of Justice Index to Orders and Memorandums, 1964. Exceptions: 28 CFR pts. 15, 42, 44, and 46. However, even these rules not published because publicusually not interested. 1. Budget. 2. Fiscal and account- ing procedures. 3. Personnel matters. 4. Property administra- tion. 5. See answer 4 (or complete list. Department of Justice None. Emergency chain of au- thority in case of civil defense or other emer- gency which prevents the operation of the Department at the seat of government. Follows Attorney Gen- eral's Manual on the Administrative Proce- dure Act (1947) pp. 24, 25. w 0 0 0 50 Department of Labor 1. Generally: No limitations to which sec. 3 applies-"official records." 2. Other records: Solicitors discretion ap- plies (27 F.R. 1505). Information oh- tamed in confidence is not available to public. 3. Limitations upon availability of files and records to public. (See 29 CFR 2.4, 2.5, 2.6, 2.9, 5.6; and 241 SFR 1.21, 1.22, and 501.8. Also see 18 U.S.C. 1905 and 5 U.S.C. 139(b).) 4. "Investigatory files compiled for law en- forcement purposes" is buttressed by the common law informers pledge. (See cases cited, 330 F. 2d 610; 326 F. 2d 561; 312 F. 2d 14.) None. None. By which employees of the Department are to carry out their du- ties; i.e., how an in- vestigator should look for minimum wage violations or what as- signments require spa- cial priority. None; however, p. 24 of the Attorney General's Manual on the Admin- istrative Proceedings Act is used for a guide. PAGENO="0056" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Agency for Interna- tional Development. Has not formulated a comprehensive defini- ~ tion, but sec. 204.24 of ~ Post Office rules and ~ Regulations defines of- ~. ficial record as (1) t-~ pleadings; (2) orders; (3) exhibits; (4) trans- ~d scripts of testimony; ~ (5) briefs, decisions, ~ and other documents t~ died in the proceed- ~ ing. 1:1 0 09 Follows Attorney Gen- eral's Manual on the Administrative Pro- cedure Act (1947), p. 24. Department - (7) ~ Limitations on availability of records and files (8) Private parties resorting to unpublished organ- ization or procedure, seC. 3(a) (9) Refrained from publish- jug rules-Secrecy in public interest, see. 3(1) (10) Refrained froni publisb- ing rules-Matters re- lating to internal agency management, see. 3(2) (11) Definition of "official record" Post Office Department... 1. Reports of postal inspectors, except in discrimination cases arising under Ex- utive Order No. 10925. 2. Records of the Postal Inspection Service. 3. Names of post-office-box holders. 4. Namesand addressesofpostofficepatrons and former patrons, except when cor- recting mailings lists or when furnish- ing changes of address to election boards or registration commissions as pro- vided in 123.5. Intormatlon on change of s~ddresa orders may be revealed to the American Red Cross during times of natural disaster, pursuant to 114.5. 5. Records regardi g mail matter. 6. Recordsregardjng postal savings accounts, except a& provided in 173.33. 7. Records regarding money orders. None. Only in the case of cer- tam national emer- gency planning. All; however, those reg- ulations are published in the Postal Bulletin, Postal Manual, Re- gional Manual, and various handbooks, which are available for public inspection. Department of State Recordsor files: 1. Not available to general public when pub- lication would be prejudicial to the na- tional interest in foreign affairs or con- trary to Executiye Order No. 10501, as atnevXled. None. Not applicable. Generally all. Follows Attorney Gen- eral's Manual on the Administrative Pro- ceclure Act, p. 24. 1. Classified information, Executive Order No. 10501. 2. PersQnnel flIes. 3. Personnel files of AID foreign personnel. 4. 18 U.S.C. 1905, trade secrets, etc. 5. Requests for access to files and records. AID considers: None. None. None. PAGENO="0057" PAGENO="0058" f DObt° the PUbli0 ~AI~LTLAR ANAL~I8 0 F 5 tT *C. PAGENO="0059" ernment owned corpo- rations and transac- tions in connection therewith. Internal Revenue Service, 1. Disclosure of Federal tax returns. a. See sees. 6103,6104,6106, and 7213 oil In- ternal Revenue Code, 1954, 18 U.S.C. 1905. b. 26 CFR 301.6103, 301.6104, 301.6106. 2. Information obtained by officer or em- ployee in discharge of his official duties may not be divulged or made known by him In any manner, 26 U.S.C. 7213(b). 3. Internal management records, Investiga- tive reports and exhibits for criminal and civil prosecution. Revenue procedures of limited application; however, they are published in Internal Revenue Bulletin and in the technical infor- mation releases. Emergency relocation planning. This is not subject to disclo- sure under Executive Order No. 10501. 1. Personnel practices and procedures. 2. Fiscal and budgetary procedures which do not affect public, 3. Policies with respect to tolerances, inves- tigativetechnh~pies. 1. Documents submitted by public (tax re- turns, information returns, claim for credit, refund, etc.). 2. See 26 CFR 601.701, which includes final opinions in tax mat- terssuchasrecordsof assessment, credit, refund, offers in compromise, levies, etc.). Bureau of the Mint..~. . 31 CFR cum. supp. 92.23, records, files, and interpretations in general are not made available to general public. None. None. 1. Employees in per- forming their func- tions. 2. Pergonnel matters. a. Vacation periods. 3. Transportation to be used in official traveL See 31 CFR cum. su~ip. 92.22. Bureau of Narcotics..... 1. Criminal records and ifies. 2. Name of informants, sources of supply of narcotic drugs, investigations. 3. "Classified" criminal files, Executive Order No. 10501. 4. FBI identification records. 5. 26 U.S.C. 7237(e). 6. 26 U.S.C. 4773. 7. Manufacture of narcotic drugs for scien~ tide purpose. 8. 21 U.S.C. 198 (2) and (4). 9. Furnishing State and local law officials with addicts and narcotic law offenders. . None. 1. Information deemed classified under Executive Order No. 10501. 2. Information related to security. Inves- tigations, Execu- tive Order No. 10450. 3. Security-type information. 4. Information related to narcotic law enforcument, (Any rules pub- lisbed are distrib- ute4 to Bureau of Narcotics employ- ass only.) 1. All material pub- lisbed is distrib- uted to Bureau of Narcotics employ- ees only. ~ ~ 1. Follows definition in Attorney General's Manual on Admin- strative Procedure Act, p. 24. ~ 3. Internal management. in in in 0 in in 0 in 06 PAGENO="0060" PAGENO="0061" FEDERAL PUBLIC RECORDS LAW 333 PAGENO="0062" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002.-Continued Department (7) Limitations on availability of records and files . (8) Privatepartiesresorting to unpublished organ- Izatlon or procedure, sec. 3(a) (9) Refrained from publish- lug rules-Secrecy in public Interest, sec. 3(1) (10) Refrained frompublish- lug rules-Metters re- lating to internal agency management, sec. 3(2) (11) Definition of "official record" Office of Law Enforce- ment Coordination. See 31 CFR 1.2(e). (See Office of Foreign Assets Control.) . ~ None. None; 31 CFR 1.2(a). Matters relating solely to internal manage- ment (all). Defined in 31 CFR 1.2(d). (Records relat- lug to administration of Treasury Depart- ment laws.) Office of Director of Practice. 1. Roster of persons whose applications for enrollment have been denied. (Not open to public inspection.) 2. See 2, 3, 4, under answer 4. 3. See 31 CFR, pt. 10, sec. 10.91. The official records of the investigation of applicants for enrollment of proceedings to suspend or disbar and the grounds for suspension or disbarment. ~ ~ ~ None. ~ None. ~ None. 1. Applications of per- sons seeking en- roilnient; rosters of persons enrolled, disbarred, or sus- pended; roster of persons denied en- roliment. 2. Pleadings, trans- scripts, exhibits, documents received in evidence, de- rogatory informs- tion concerning applicants. 3. Orders of the Secre- tary and decisions of the Director of Practice. 0 0 0 PAGENO="0063" L Refrained from pub- lishing only rules which do not re- quire or prohibit action by members of the public or otherwise affect their rights. Sec. 31 CFR 271L2. 1. Appropriation ac- counting records. ~ 2. Collection and dis- bursing accounting ~ records. 3. Records relating to investment ac- counts, etc. 0 0 Bureau of Customs. 1. See 18 U.S.C. 1905. 2. 19 Code of Federal Regulations, pt. 26. 3. "Confidential for good cause" is applica- ble to all requests for information or for inspection of final opinions, orders, or official records. None. None. None. P. 24 of Attor- ney General's Manual on the Administrative Procedure Act is followed. Custom regulations sec. 26.2, 19 CFR, 26.2 Bureau of Engraving and Printing. See 31 CFR 1.2(e). (See Office of Foreign Assets Control.) None. None. Does not publish rules involving matters re- lating solely to inter- isal management (all). See 31 CFR 1.2(d). (Rec- ords relating to ad- ministration of Tress- ury Department laws.) Bureau of Accounts 31 CFR 270.2. Relates to the personal fi- nancial transactions of individualsor cor- poration, because the disclosure of the in- formation would clearly be inimical to the public interest. None, except rules addressed to and served upon named persons in accord- ance with law, None. Does not publish rules relating to internal matters, personnel matters, vacation periods, methods of transportation to be used in official travel, etc. Office of Treasurer of the United States. 21 CFR 351.2. 1. Relates to personal financial transactions of individuals or corporations because the disclosure of the information would clearly be inimical to the public interest. None. None. Proceduralmatters to be followed by employ- ees, personnel matters such as vacation pe- nods, methodoftrans- portatlon to beused in official travel. 31 CFR 351.2. 1. Paid checks and rec- ords. 2. Records relating to coin, bullion, and currency, etc. PAGENO="0064" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued a 0 No. Provisions of Administrative Procedure Act are not applicable to Canal Zone Government, Sec. 2 of 5 U.S.C. 1001 "agency" is defined to exclude "governments of the possessions, territories, or the District of Columbia. However, regulations of the Canal Zone Government which affect the public, such as regulations pertaining to exclusion and deportation of persons from the Canal Zone, air navigation, and customs, are published in the Federal Register, Code of Federal Regulations, and U.S. Government Organization Manual. Independent agency (1) Applicability of 5 U.S.C. 1002 (2)(a) (2)(b) (2)(c) (2)(d) (2)(e) Official or unofficial publication Organization, see. 3(a)(1) Statement of func- tions, sec. 3(a)(2) Substantive rules, sec. 3(a)(3) General policy for public, sec. 3(a)(3) Rules served on named personsin accordance with law, see. 3(a)(3) American Battle Monuments Commission. ~ Yes. 1. Federal RegIster at such mire- quent intervals as changes may occur. 1. Federal Register at such Infre. quent Intervals as changes may occur. 1. Federal Register at such infre- quent intervals as changes may occur. Federal Register at such infrequent intervals asehanges may occur. None. Atomic Energy Commission_ Yes. 1. Federal RegIster. 2. Code nt Federal Regulations. 3. Atomic Energy Commission Manual. 4. Subscription serv- ice (rules and regulations). 1. Code of Federal Regulations. 2. Federal Register. 1. Code of Federal Regulations, (41 CFR ch. 9.) 2. Federal Register. 1. Federal Register. 2. Pt. 8 of Atomic Energy Corn- mission regula- tions, "Interpre- tations." 3. Atomic Energy Commission Manual. 4. Publie document room. None. ~ Canal Zone Government Civil Aeronautics Board Yes~ 1. Federal Register. 2. Code of Federal Regulations. (cx- cept for public notices). 3. Agency regula- tions. 1. Federal Register. 2. Many agency reg- ulations. 3. Code of Federal Regulations, cx- cept for public notices. 1. Code of Federal Regulations. 2. Board regulations. 1. Code of Federal Regulations. 2. Board policy state- ments. Generally none; how- ever, `when done they are available for public inspection. PAGENO="0065" Yes. 1. Federal Register. 2. U.S. Government Organizational Manual. 1. Federal Aviation 1. Public Notice. Regulation of the Code of Federal Regulations. 1. Not published but, ~ open to public ~ inspection. 0 L~J O 0 00 District of Columbia They are exempted in 5 U.S.C. 1001(a) from the provisions of the act. Export-Import Bank of Wash- ington. ~ Farm Credit Administratlon~ Rules and regulations as published in the District Register and then consolidated in the Code of District of Columbia Regulations-subscription service also. Federal Aviation Agency Yes. 1. Federal Register. 2. 12 CFR 401-402. 1. Federal Register. 2. 12 CFR 401-402. 1. Federal Register. 2. 12 CFR 401-402. 1. Federal Register. 2. 12 CFR 401-402. 1. Federal Register. 2. 12 CFR 401-402. Generally, yes; but extremely limited. Federal Register. Federal Register. Federal Register. Federal Register. Not available. 1. Federal Register. Federal Coal Mine Safety Board of Review, Specifically exempted under 66 Stat. 700; However, still adheres to the pro- visions. 1. Federal Register. None. None. Federal Communications Coni- mission. Yes. Federal Communica- tions Commission Rules arid Regula- tions. Pt. 1, Federal Com- munications Com- mission Rules and Regulations. 1. Code of Federal Regulations. 2. Federal Register. Federal Register. Ordinarily not pub- lished. Federal Deposit Insurance Corporation. . Yes. 1. U.S. Government Organization Manual. 2. Federal Register. 1. Code of Federal Regulations. 2. Federal Register. ~ 1. 12 Code of Federal Regulations Ch. IlL 2. Federal Register. 3. Annual report of Corporation. 1. Federal Register. 2. Corporations annual report. 3. Pamphlets. None. Federal Home Loan Bank Yes. 1. Federal Register. Board, 2. Manual and pamphlet. 3. Code of Federa 1 Regu lations. 1. Federal Register. 2. Manual and pamphlet. 3. Code of Federal~ Regulations. 1, Federal Register. 2. Manual and pamphlet. 3. Code of Federal Regulations. 1. Federal Register. 2. ManuaL 3. Code of Federal Regulations. None. PAGENO="0066" 1. Federal Register. 2. Code of Federal Regulations. 3. General orders. 4. Circular letters. I. Code of Federal Regulations. 2. Facts behind the headlines in labor-manage- ment disputes. 3. Answers to your questions about Federal tion and Concil- iation Service. Generally, none. 2. Where multiple sons involved and/or matter of public interest. 3. Federal Register. General policy for Rules served on named public, sec. 3(a)(3) persons in accordance with law, sac. 3(a)(3) a 0 C/I 1. Federal Register. ~ 2. Code of Federal Regulations. 3. Federal Power Commission re- ports. 1. Federal Register. None. 2. Code of Federal Regulations. 3. Board's Federal Reagrv~ Bulle- (1) Independent agency Applicability of 5 U.S.C. 1002 TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. lOO2-.-..Continued (2)(a) (2)(b) Organization, sec. 3(a)(l) (2)(c) Official or unofficial publication Statement of fune- Substantive rules, tions, sec. 3(a) (2) sec. 3(a) (3) (2)(d) (2)(e) Federal Maritime Commission.~ Yes. 1. Federal Register. 1. Manuel of Orders. 1. Federal Register. 2. Commissions' 2. Federal Register. 2. Code of Federal Manual of Or- 3. Commissions' gen- Regulations. ders. eral orders. 4. Federal Reports Act. Federal Mediation and Condilla- Yes. tion Service. Annual report to the Congress. 1. Code of Federal Regulations. 2. U.S. Government Organization Manual. 3. Facts behind head- lines in labor- management dis- putes. Code of Federal Rag- ulations. ~`ederal Power Commission Yes. I. Federal Register. 2. Code of Federal Regulations. ~derai Reserve Sys~esn Yes. 1. Federal Register. 2. Code of Federal Regulations. 3. Federal Power Commission re- ports. 1. Federal Register. 2. Code of Federal Regulations. 3. Federal Power Commission re- ports. I. Federal Register. 2. Code of Federal Regulations. 3. Federal Power Commission re- ports. 1. Federal Register. 2. U.S. Government Organization Manual. 3. Board's rules of 1. Federal Register. 2. U.S. Government Organization Manual. 1. Federal Register. 2. Code of Federal Regulations. 3. Board's Federal PAGENO="0067" Federal Trade Commission - Yes. 1. FTC manual. 2. Federal Register. 1. FTC manual. 2. Federal Register. 1. Federal Register. 2. Pamph1ets. 3. Press releases. 4. Mailing lists, 5. Code of Federal Regulations. 1. Federal Register. 2. Press notices 3. Copies obtainable at public docket room. None. Foreign Claims Settlement Commission of the United States. Questionable. 1. Federal Register. 2. U.S. Government Organization Manual. 3. Semiannual reports to the Congress. I. Semiannual reports to Congress. None. None. I. Federal Register. General Services Adminis- tration. Yes. 1. Federal Register. 2. Code of Federal Regulations. 3. U.S. Government ~ Organization ~ Manual. I. Federal Register. 2. Code of Federal Regulations. 3. U.S. Government Organization Manual. 4. Leaflets and bro. chures. 1. Federal Register. 2. Code of Federal Regulations. 3. Federal Procure- ment Regulations prescribed by GSA are pub- lished in looseleaf forniby GPO. Same as (2)(c). Not applicable. Rousing and Rome Finance Agency. Yes. 1. Federal Register. 2. Code of Federal Regulations. 3. HUFA annua1 report. 4. U.S. Government Organization Manual. 5. HUFA chart book. (I. FNMA informa- tion circular. 1. Federal Register. 2. Urban renewal manual. 3. Information fact sheets. None. However, sub- stantive matters dealing with general public appear in Federal Register. 1. Federal Register. 2. Urban renewal manual. Not applicable. organization and organization and procedure. procedure. tin. 4. Boards annual report. tin. 4. Published inter- pretations of Board. a 0 C12 Indians Claims CommiSsion. Do not issue regular reports or publications; however, findings of fact and opinions are sent to all interested parties and ~ are available to public if they call at the office. No secret or confidential opinions. No; work is entirely judicial. PAGENO="0068" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002.-Continued Independent agency (1) Applicability of ~ U.S.C. 1002 (2)(a) J (2)(b) (2)(c) (2)(d) (2)(e) Official or unofficial publication Organization, sec. 3(a)(l) Statement of func- lions, see. 3(a)(2) Substantive rules, sec. 3(a)(3) Genera1 policy for public, sec. 3(a)(3) Rules served on named persons in accordance with law, sec. 3(a)(3) Interstate Commerce Commis- SiGn. Yes. ~ Federal Register. 1. Commissions orga- nization minutes published in Federal Register. 2. Code of Federal Regulations. 1. Federal Register. 2. Code of Federal Regulations. Same as (2) (b) and (c). 1. Printed volumes of the Commis- sion. National Aeronautics and Space Administration. ~ Yes. 1. U.S. Government Organization ManuaL 2. NASA Manage- ment Manual. 1. NASA Manage. ment Manual. None. 1. Federal Register. 2. NASA issuance System. Not applicable. . National Labor Relations Boar& Yes. 1. Federal Register. 2. Local publicity, I. Board's rules and regulations (statements of procedure). 2. Federal Register. 1. Bound volumes of the Board's de- cisions. 2. Legal reporting services. I. Board's decisions. None. National Mediation Board Yes. 1. Federal Register. 2. Code of Federal Regulations. 3. Annual report of the National Mediation Board. 1. Federal Register. 2. Code of Federal Regulations. 3. Annual report of the National Mediation Board. 1. Federal Register. 2. Code of Federal Regulations. 3. Annual report of the National Mediation Board. 1. Federal Register. 2. Code of Federal Regulations. 3. Annual report of the National Mediation Board. None. 0 8 rr.~ PAGENO="0069" Q 1. Public inspection. ~ 2. Published for gen- L~i eral distribution. C~l 3. Mailed out on 0 request. 1. Federal Register. I. Federal Register. 1. Fedetal Regula- 1. Federal Regula- 1. Federal Register. 2. 13 CFR 1. 2. 13 CFR 1. tions. tions. 2. 13 CFR 1. 2. 13CFRI. 2. I3CFR1. a. Small Business Administration's annual report to the President and the Congress containing agency programs, activi- ties, and actions, also Small Business Administration's financial and administrativematters. b. Agency actions providing financial assistance and small business investment company licenses granted are generally announced by way of press releases by Small Business Administration's Office of Public Information. ~ National Science Foundation~.. Yes. 1. U.S. Government Organization Manual. 2. Annual report of National Science Foundation. 1. U.S. Government Organization Manual. 2. Annual report of the National Science Foundation. 1. Federal Register. None. Not applicable. Railroad Retirement Board Yes. 1. Federal Register. 2. U_S. Government Organization Manual. I. Federal Register. 2. Code of Federal Regulations. 1. Federal Register. 2. Code of Federal Regulations. 1. Federal Register. 2. Code of Federal Regulations. None. Renegdtiation Board Yes. 1. Federal Register. 2. U.& Government Organization Manual. 3. Renegotiation Board regula- tion& 4. Field office pam- phiete. 1. Federal Register. 2. Renegotiation Board regula. tions. 3. Pamphlets. 1. Renegotiation Board regula- tions. 1. Federal Register. 2 Renegotiation rul- ings and rene- gotiation bulle. tins. None. Securities and Exchange Com- mission. . Generally, yes. 1. Federal Register. 2. Code of Federal Regulations. 3. Pamphlet form. 4. Individualreleases. 1. Federal Register. 2. Code of Federal Regulations. 3. Pamphlet form. 4. Individual releases. 1. Federal Register. 2. Code of Federal Regulations. 3. Pamphlet form. 4. Individual releases. 1. Federal Register. 2. Code of Federal Regulations. 3. Pamphlet form. 4. Individual releases. Selective Service System.. Yes. 1. Federal Register. 2. U.S. Government Organization Manual. 1. Federal Register. 2. U.S. Government Organization Manual. 1. Executive order in the Federal Register. 2. Code of Federal Regulations. None. None. Small BusinessAdministration Generally yes-Fol- lows guidelines on this section as set forth in the Attor~ ney General's Manual. PAGENO="0070" 1. Alleged political activity on the part of officers or employees of State or local agencies whose principal em- ployment is connected with a Federal fi- nanced activity and discharge of examiners ap- pointed pur- suant to 5 U.S.C. 1010. Hatch Act decisions None. of the U.S. Civil Service Cornmis- sion. TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C~ 1OO2-~Continued Independent ageucy (1) Applicability of 5 U.S.C. 1002 (2)(a) (2)(b) (2)(c) (2)(d) J (2)(e) Official or unofficial publication -~ Organization, sec. 3(a)(1) Statement of fune- tions see. 3(a)(2) Substantive rules, see. 3(a)(3) General policy for public, sec. 3(a)(3) Rulesserved on named persons in accordance with law, sec. 3(a)(3) Tennessee Valley Authority Yes. - 1. U.S. Govermnent Organization Manual. 2. Federal Register. 1. U.S. Government Organization Manual. 2. Federal Register. None. 1. Federal Register. 2. Code of Federal Regulations. None. U.S. Arms Control and Disarm- ament Agency. Yes. 1. U.S. Government Organization Manual. 2. Federal Register. 1. U.S. Government Organization Manual. 2. Federal Register. None. None. None. U.S. Civil Service Commission. ITJ L~J C) C) 0 rr.z 1. U.S. Government 1. U.S. Government 1. 5 CFR 151. Organization Manual. ~ Organizatioa Manual. 2. Sec. 12, Hatch Political Activi- ties Act, as amended, 5 U.S.C. 118k. PAGENO="0071" C) C) 0 (p 2. Rulemaking to carry out the provisions of the Federal Em- ployees Health Benefits Act of 1959. U.S. Information Agency Yes. . ~ 1. U.S. Government Organization Manual. 2. Federal Register. 3. U.S. education, science, and cultural motion pictures and filmstrips se- lected and avail- able for use abroad. 4. Code of Federal Regulations. Same as (2)(a). ~ Not applicable except as stated in (2) (a) and (b). ~ U.S. Tariff Commission Yes. ~ 1. U.S. Government Organization Manual. 2. Federal Register. 1. Code of Federal Regulations. 2. Federal Register. None. None. None. Yeterans' Administration Yes~ . ~ 1. U.S. Government Organization Manual. 2. Federal Register. 1. Federal Register. 2. Veterans' Admin- istration procure- meat regulations. 3. Code of Federal Regulations. 1. Federal Register. - 2. Veterans' Admin- istration procure- inent regulations. 3. Code of Federal Regulations. i. Federal Register. 2. Veterans' Admin- istration procure- meat regulations. 3. Code ~f Federal Regulations. None. PAGENO="0072" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Independent agency (3) Publications-Availability of final and interim opinions or orders,. sec. 3(b) (4) When does agency refrain from publishmg for "Good cause- Confidential," see. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions American Battle Monuments Commission, None. None. Not available. Upon request to persons having a proper and direct concern. Atomic Energy Commission 1. "Opinions and Decisions of the Atomic Energy Commis- sion." 2. Service on the parties of record. 3. Distribution to the press. 4. Duplicate in public documents room. Adverse employee personnel ac- tions. None. 1. Public documents room on re- quest. 2. Copies, fee charged for repro. duction. Canal Zone Government No. Provisions of Administrative Procedure Act are not applicable to Canal Zone Government. Sec. 2 of 5 U.S.C. 1001 "Agency" is defined to exclude "governments of the possessions, territories, or the District of Columbia. However, regulations of the Canal Zone Government which affect the public, such as regulations pertainine to exclusion and deportation of persons from the Canal Zone, air navigation, and customs, are published in the Federal Register, Code of Federal Regulations, and U.S. Government Organization Mauual. C) C) 0 1. Sec. 1.6(b) of Public Notice 15, written request to Secretary. 2. Sec. 442.3, public information ~4 in regular course of business. ~s- 3. Legal process, sec. 442.4. 4. Economic proceedings. 5. 14 CFR 389. 6. "List of Publications." )f Columbia Official records areinade available to members of the press and the general public upon a showing of sufficient purposeful reasons as contrasted to reasons of curiosity. Does keep some matters confidential. .)ort Bank of Wash. Not applicable. Not applicable. Not applicable. 12 CFR 401.3(1). Civil Aeronautics Board 1. Served upon all parties to pro. ceeding. 2. Docket card is open to public inspection. 3. Open to the press. 4. Subscription service. 5. CAB reports. 1. See. 1001 of Federal Aviation Act, in matters relating to national defense. 2. Alsosee sec. 1104 of Federal Aviation Act. None. PAGENO="0073" Records, 6 CPR 4.10. In the custody of the FCA or of a particular bank or association may be made available to persons directly and properly concerned upon written application to the FCA or the particular bank or association. 2. Production credit associations and Federal intermediate credit banks may issue lists of borrowers and loans for the information of buyers, warehousemen, and others dealing in produce of live- stock of the type securing such loans. Cl O 09 Farm Gredit Administration Not available. Not available. Not available. Federal Aviation Agency 1. Title VI of Federal Aviation Act of 1958. 2. Sec. 609, Federal Aviation Act (de novo review). 3. Civil penalty cases and certif- icate actions placed in public docket at FAA Building. 4. Decisions of Contract Appeal Board open to public inspec- tion. 1. When secrecy is requisite on grounds of national de- fense. No such instance has occurred. None. ~ 1. No specific procedure. 2. Agency accepts individual re- quests and decides on case- by-case basis whether ma- terial should be made avail- able. 3. Files on rulemaking are held open to public inspection. Federal Coal Mine Safety Board of Review, 1. Served upon the parties and their representatives, 2. Entered upon the official record which is open to pub- lie at the Board's offices. 3. Cqpies of all decisions are dis- tributed to interested persons. None. None. 1. Any person at all may examine the transcripts and complete official records at Board's office in all cases. 2. See answer 3. Federal Communications Corn- mission. 1. Application file available to public. 2. Docket file available to public. 3, Some texts of orders and opto- ions are published in Federal Register. 4. Decisions published in Federal Communications Commis- sionileports. None. ~ ~ None. I. Procedures for records access set forth in 47 CFR 0.401. 2. General policy and interpreta- tions published in Federal Register. 3. Legal opinions not made public. . PAGENO="0074" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1fl02-..Continued 1. No formal method. 2. Federal Register. 3. Available to members of public upon written request. 4. Generally. (See sec. 309.1 of ~ corporations rules and regu- ~ lations.) Chiefs of divisions is1 have wide discretion. 0 t.i 0 1. Inspection at Washington. 0 2. Purchase of Maritime Commis- ~ sion reports. 3, Examination of Individual deci- ~ aioqs. Independent agency (3) PublIcatIons-Availability of final and interim opinions or orders, sec. 3(b) - (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions Federai Deposit Insurance £)orporatioj~, *. -- i. News releases of selected weekly actions by the Board and applications received for consIderation. 2. Approved applications for Federal deposit Insurance, consent to establish branches, consent to change bank loca~ tion, consent to exercise trust powers. - 1. 12 U.S.C. 1815. 2. 12 U.S.C. 1818 (a) and (e). 3. 12 U.S.C. 1823 (c) and (e). 4. 12 U.S.C. 1828 (c) and (d). 5. 12 U.S.C. 1829. 6. Sections 327.2(c) and 303.7 of rules and regulations. 7. Sections 328.1(b), 328.2(a), 328.2(c)(2), and (2)(10) and 303.8 of rules and regulations. None. See section 309.2 of Corporations rules and regula- tlons. -~ Federal Home Loan Bank Boarth 1. No publication. 2. Public inspection. Confidential, where Board has net held a hearing or other public proceeding prior to the issuance of its order. None. 1. On request, always. Federal Maritime Commission. - , 1. Served on all parties. 2. Available to anyone upon re- quest. 3. Open for public InspectIon in docket room. 4. Federal Maritime Commission reports. None. ~ . None. JFederal Mediation and Conellia- ~tion~Service. Not applicable. Not applicable. Not applicable. 1. Written notices of disputes, parties at interest received certified copies. 3. Arbitration awards released for publication whereparties don't object. a.) Inspection in officeof General Counselwherelegitimate in- terest. b.) See 29 C1I'R ch. 12 pt. 1401. PAGENO="0075" 1. Release to public immediately None. uponissuancein Commission's Office of Public Information. 2. Mailing list. Every order or opinion cited or used as precedent is available to public in printed or other form. 1. 18 CFR 1.36 (c), (d)-All mat- ters of official record shall be available for public reference. 2. Public records available for public reference. ci w 0 L~i C) 0 (/2 I Federal Power Commission Federal Reserve System 1. Press release. 2. Federal Register. 3. On file and available at Board's office or a Federal Reserve bank. 4. Board's monthly bulletin. 5. A weekly 11.2 and I~. 3 list. Proceeding conducted persuant to section 30 of Banking Act of 1933 for removal of directors and/or officers of State member banks, ~ None. 1. See answer 3. 2. Matters of official record, rules soon available for inspection, study and copying in Board's office. 3. Publications Services Unit. 4. Mailing list. 5. Press release. Federal Trade Commission 1. FTC decisions. 2. Available on request. 3. Public docket room. 4. Federal Register. None. None. 1. Federal Register. 2. See answers to questions 2(c) and 2(d). Foreign Claims Settlement Corn- mission of the United States. 1. Public dockets of claims. 2. Decisions on claims are posted on public bulletin board. 3. Decisions available for public Inspection upon request. 1. Where Commission determines them to be held confidential. ~ None. 1. Files on particular claims avail- able for inspection only by claimant involved or author iced representative. 2. Legal opinions and decisions available to public in Com- mission offices, request. 3. MinImum charge, copies of opinions and decisions. General Services AdministratIon~ ~ 1. Board of Contract Appeals De- cisions, published by Corn- merce Clearinghouse. a. Available for public inspection. 2. The Government Contractor. 3. FederaLnontract reports. None. ~ May be given consideration in other proceedings involving in- ternal management affairs, such as personnel actions. I. Current GSA records, records in National Archives, records in Presidential Libraries, etc., may be requested of a desig- natedofficial and to explainbis interest. 2. Al claimant's request records can be copied. PAGENO="0076" TABULAR ANALYSIS OF OPERATION S UNDER 5 U.S.C. 1OO2~Continued Independent agency (3) Publications-Availability of final a~id interim opinior~s or orders, sec. 3(b) (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions Housing and Home Finance Agency. None. None. NoRe. ~ . 1. Fully available upon request. 2. Local newspapers (publication of a "Redevelopers State- ment"). 3. FNMA publications. 4. Office inspection to interested groups or individuals. Indian Claims Commission Do not Issue regular reports or publications; however, findings of fact gnd opinions are sent to all interested parties and are available to pubic if they call at the office. No secret or confidential opinions. Interstate Commerce Commis- sion. 1. Served upon the parties per- son~lly or by mail. 2. Copies are available at Corn- mission office at time of service upon parties to a proceeding. 3. Purnlshed public on request. 4. Office dockets of Commission. 5. ~eder~l Register. In wartime when natlona~ secu- rity requires secrecy. None. 1. Releases by Commission (press). 2. Request for information. 3. Reports and orders, public inspection, sold in advance sheet form. 4. Inspection of records. 5. Request to inspect records. 6. Certified copies of records. 7. Freight commodity statistics, carrier traffic reports. National Aeronautics and Space Administration. . . 1. Legal and proqurernent pub- liuntions. 2. Meinorandupi of decision are evnilabie to public. 3. Semiannual reports of NASA to Coi~gress. 4. Press releases. 5. Congressional hearings and reports. None. None. Persons property and directly concerned. PAGENO="0077" Public inspection at any time upon request. (See answer 3.) National Labor Relations Board.. 1. Labor relations reporter. 2. Commerce Clearing Rouse. 3. Prentiss-Hall. 4. Made available to public In Washington orregionalofilces. 5. News media. 6. Copies by request. 7. Weekly summary uponrequest. None. None. National Mediation Boar&..~..... See answer 6. Pt. 1202.15 of Board rules outlines the policy and practice. None. Files, records, and opinions which result frcrin public hearings in connection with the Board's activities are available without restriction to the general public National Science Foundation None. None. None. 1. "Federal Council for Science and Technology," Feb. 11, 1963. 2. Foundation's grant booklet. Railroad Retirement Board ~ Legal principals are summarized in the- 1. "Administrative Rulings and Court Review." 2. Board's annual report. 3. Railroad Retirement Board- Legal opinions. 1. Final orders in the adjudica- tion of individual claims for benefits under acts it admin- isters. None. ~ 1. See answer 3. 2. Opinions furnished to any in- terested persons upon request and records and files avail- able to inspection subject to limitations of answer 7. t4 0 O 0 1. Legal opinions by renegotia- tion rulings and renegotia- ~S tion bulletins. 2. Records; person'directly con- cerned may apply in writing to the Secretary for access. 3. See answer 3(1). Renegotiation Board . 1. Any person may inspect dur- big business hours in Wash-. lngton, any official Board ac- tions (transcripts) granting contract exemptions. a. Can BB livid lloliildefltlal for good cause. 1. Opinions and orders; held con- fidential by reason of the cdnfldontlal data furnished by contractors and relating to their business. 2. Order; agreenvent to eliminate excessiveprefits. None. PAGENO="0078" 0 1. Press releases. 2. Major policy decisions, by speeches, press releases, asici promulgation in Federal regulations. 3. Directives and Interpretations which are not published are made available upon request to interested persons. 4. Information available concern- ing particular Small Busi- ness Administration actions such as size determinations 1. Agency actions involving financial assIstance, and small business investment company licences granted announced by means of press releases. 2. Small business investment company matters; Small Business Administration issues to all licensees and to other interested persons who request it a "guide" which contains pertinent Small TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued -~--Independentagern- - - (3) PublicatIons-AvaIlabilIty of -final and interim opinions or orders, sec. 3(b) (4) When does agency refrain from publishing for "Good cause- Confidential," sec. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions ~ Securities and Exchange Corn- mission. - - - 1. Published. 2. Public inspection, 3~ Public reference rooms. 4. Code of Federal Regulations. ~ ~ 1. Nonpublic opinions due to ad- verse publicity, . ~ None. 1. Inspection in public reference rooms. 2. Copies and transcripts may be purchased. 3. Published Secretary decisions and substantive rules. 4. Speeches, briefing conferences, and law review articles. Selective Service System - -- 1. Posting in a conspicuous place at the office of each local board (classifications), 2~ Record maintained. ~ Not applicable. * ~ ~ None. . 1. Records and files, a. Registrant or any person having written authority dated and signed by registrant 2. Legal representative of a de- ceased or incompetent regis- trant. 3. Selective Service System per- sonnel. 4. Any other agency official or employee. 5. U.S. attorney. SznaUB-usiizess Administrat-ioss_ 0 hi (~1 rI) See answer 7. Did not answer. PAGENO="0079" liusiness Administration rules, etc. 3. Prepares and distributes fact sheets and leaflets on Small Business Administration programs and operations. 4. Small Business Administration Manual; banks and finan- cially interested persons may obtain certain data about firms receiving loans from Small Business Administra- tion. Names of borrowers or other recipients of Small Business Administration assistance, ~ amount, and types of loans ~ approved or other assistance ~, furnished, number of em- ployees, type of business, general purpose of assistance. ~ ci 0 0 0 Records and files only.~ 1. Available to persons properly and directly concerned. 2. Documents. on disarmament I> publication~. a. Mailing lists. b. Libraries throughout United States. 3. Academic Institutions, research centers. 4. Technical abstract bulletin. 5. Biweekly catalog. Wide circu- lation. See Small Business Administra- tion regulations, see. 1704.01. 5. Tennessee Valley Authority 1. 18 CFR 301.1. None. None. See answerS. . 2. Requests made in writing. 3. Available to persons properly and directly concerned. 4. Inspection. . . U.S. Arms Control and Disarma- None. None. None. meat Agency. I. PAGENO="0080" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued I Subject to Administrative Procedure Act. a. See answerS. Not subject to Administrative Procedure Act. a. Federal Register. b. Commissions personnel manual; available at public ~ request and copies may be ~ ordered and sent to otber ~ agencies. 0 C) nI Independent agency (3) Publicattons-Availabiityof final and interim opinions or orders, sec. 3(b) (4) When does agerycy refrain from publishing for "Good cause- ConfidentIal," see. 3(b) (5) Unpublished opinions and orders cited or used as precedents (6) Procedure for making available records, files, and legal opinions U.S. Civil Service CommissIon...... ~ 1. Public Inspection. 2. Pt. 2 of the book, "A Case- book on Commission Decisions." None. ~ 1. State and local employees are being removed under sec. 12 of the Hatch Act and hear- ing examiners being removed under sec. 11 of the Ad- ministrative Procedure Act. 2. In cases not subject to Ad- ministrative Procedure Act grievences and appeals from employees. 2. U.S. Information Agency Not applicable. Not applicable. Not applicable. 1. Confine to persons demon- strating a legitimate need for information contained in such records. 2. Research study only at places designated by Agency. 3. Application for access to Agency records. U.S. Tariff Commission None. None. None 1. Federal Register. 2. Code of Federal Regulations. 3. Information and reports by per- sons concerned on request to the Secretary of the Commis- sion. Veterans' Administration Files, records, reports, documents pertaining to claims, 1. Claimant or his duly author- Ized agent or representative as to matters concerning himself alone. 2. Required by process of a U.S. court. 3. Department or other agency of U.S. Government. 4. Amount of pension, compen- sation made known to any person who applies for such (of any beneficiary). Determinations of Veterans' Ad- ministration in individual cases become a part of the rec- ord in that case, and are con- sidered confidential. See 38 U.S.C. 3301. None. 1. Administrator's decisIons in printers volumes. 2. Formal opinions of the General Counsel, supplied to persons, organizations, or agencies when general counsel or serv- Ice concerned decides public interest justifies. PAGENO="0081" I ~ American Battle Monu- merits Commission. TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1OO2-.~-Continued Independent agency (7) Limitations on availability of records and files (8) Private parties resorting to unpublished organ- Ization or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy in public interest, sec. 3(a)(1) (10) Refrained from publish- ing rules-Matters re- lating to internal management, sec. 3(2) (11) Definition of "official record" Names and addresses of next of kin of the dead entered in the cemeteries or com- memorated on the walls of the memorials under its jurisdiction. None. None. None. 1. Paper. 2. Document pertaining to business. Atomic Energy Commls. sioa. 1. See "Rules of Practice:" a. Sec. 2.790(b). b. 18 U_S.C. 1905. 2. Personnel matters. 3. Intra-agency and Interagency communi- cations. 4. Transcripts of Atomic Energy Conunis- sion meetings. 5. Correspondence between Atomic Energy Commission and foreign government. 6. Records and reports of investigations. 7. Restricted data, Executive Order 10501. 8. Congressional correspondence. 9. Internal agency management. 10. Individuals who have received exposure to radiation. 11. See [0 CFR 2.790(b), to protect trade secrets. None. Generally none. Cer- tam restricted data and defense informa- tion, are not made available to the public, except In accordance with access permits. None. None. Generally fol~ lows 10 CFR 9.3, sub- ject to exceptions in sec. 9.4. ~ Canal Zone Government.... No. Provisions of Administrative Procedure Act are not applicable to Canal Zone Government. Sec. 2 of 5 U.S.C. 1001 "agency" is defined to exclude "governments of the possessions, territories, or the District of Columbia. However, regulations of the Canal Zone Government which affect the public, such as regulations pertaining to exclusion and deportation of persons from the Canal Zone, air navigation, and customs, are published in the Federal Register, Code of Federal Regulations, and U.S. Government Organization Manual. ci t~4 C) Il~J C) 0 Cs) 0-I PAGENO="0082" TABULAR ANALYSIS OF OPEItATIONS UNt)ER 5 U.S.C. 1002-Continued Indepeisdent agen~y (7) . Llinit8tions gin availability tff records and flies (8) Ebrlvate partIes resorting to slnpublishfid organ- iiation or ptdeedure; sec. 3(a) (P) Refrained from publish- ing rules-Secrecy in public Interint, see; 3(a)(i) (10) Refrained from publish- big rules-Matters re- lating to internal nianagement, sec. 3(2) (11) Definition of `tofficlal recOrd" (Jivi! Aeronautits Board.... I. National defense. 2. Records, letters, etc., connected with offipial dutits. 3. Sqe. 204(a) of Federal Aviation Act. 4. CI~ssifl&~igin o~ documents (secrecy and natidnal defense, Execptive Order 10501). 5. Whereintormation would adversely agect tin interests of such perSonS; 14 CFR 1302.311(b). 6. Ndnp~xbl1clnvestlgaticns, 14 CFR 302.314; mail rate donferen&. - 7. Afrcraft accidents, 14 CFR 311. 8. Accoimt8, reCords; etc., of companlT. Nón~. * None; . Nothing is published involving internal ditectives (all). 1. Documents. 2. Material filed in ad- judicatory, investi- gative or rulemak- ing procedure. 3. Public notices, re- ports, tabulations, etc., authorized by Board for public release. 4. Approved minutes of Board meetings, except portions re- lating to pending matters. (See see. 1103 of Federal Aviation Act.) - District of Columbia ~ Official records are made available to mem- hers of the press and the general public upon a showing of sufficient purposeful reasons as contrasted to reasons of curi- osity. Does keep some matters conS- dential. Has given extensive attention to its administrative procedures and has developed a thorough coverage designed expressly for its type of activities. Export-Import Bank of Washington. 1. National defense or foreign policy. 2. Internal management. 3. ConThiential information submitted by applicants for bank loan and guarantee assistance. None. Not applicable. Not applicable. 1. All agulications and documents, for banks' assistance in financing and facili- tating exports and imports, and docu- meats embodying bank decisions. ci 0 0 PAGENO="0083" None. Not available. All. flecords. 1. 6 CFR 4.2, contents of reports by farm credit examiners. 2. 6 CFR 4.4, lists of borrowers, unless such release is approved. 3. 6 CFR 4.5, all information regarding the character, credit standing, and property of borrowers and applicaiits for loans. 4. 6 CFR 4.8, lists of employees shall not be release& Approval of the Governor, a Deputy Governor, or a service clirec- tor having general supervision over such office or bank concerned.. 5. See exceptions to above in 6 CFR 4.8 (a) to (e). 0 C I. All papers ified by ce the parties. 2. Board notifications by ~,. the parties. 3. Official acts of the Board, including all orders, opinions, and findings. Farm Ciredit Administra- tion. Include those documents and information with which 6 CFR 4.1-4.10 are concerned. (This includes practically everything.) Federal Aviation Agency ~ ~. 1. 4915.8.0.1504, any personrequiredto sub- mit Information to FAA may object to its disclosure and the Administrator shall withhold i~ when it would ad- versely affect the interest olthe person. a. 49 U.SC. 1472(1), criminal penalty for disclosureof suchinfermation un- less Administrator directs it, or a court of competent jurisdiction. 2. Documents and records in legal proceed- ings between private litigants may be released only after review by a member of Office of General Counsel. None. None. Nothing is published involving internal directives (all). 1. Records in hearing cases. 2. Exchanges between parties and FAA in any adjudications. 3. Rulemaking dockets. 4. Rules, orders, dcci- sinus. 5. Reports filed with FAA. 6. Correspondence with public. Federal Coal Mine Safety Board of Review, . . 1. Th~teraal documents: a. Interagency memo. b. Executive communications that are privileged. o. Documents relating to personnel security. None. None. . Those listed in an- swer 7. ~ PAGENO="0084" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued Federal Home Loan Bank Board. 1. l~ U.S.C. 1905: a. Trade secrets. b. Processes. c. Operations. Emergency preparedness All. regulations for con- tinuity of Govern- ment. Independent agency (7) Limitations on availability of records and files (8) Private part es resorting to unpublished organ- iza~i~n or procedure, sec. 3(a) (9) Refrained from publish- ing rules-Secrecy in public interest, sec. 3(a) (I) (10) Refrained from publish- ing rules-Matters re- lating to internal inanagethent, sec. fl(2~l (11) . Definition of "official record" Federal Communications Commission 1. 47 U.S.C. 154(j) on national defense mat- ters. 2. 47 U.S.C. 213(f) permits Commission to order restrictions on records and data. 3. 47 U.S.C. 412 permits secrecy abOut con- traCts relating to foreign communica- tion. 4. 47 U.S.C. 605 prohibits divulging infor- mation obtained while monitoring. 5. 47 U.S.C. 6o6gives war emergency powers to the President. 6. 5 U.S.C. 1002. 7. 18 U.S.C. 1905. 8. 5 U.S.C. 631 restricts employee in'gesti- gatory material. 9. Various regulations spell out statutory restrictions. None. . None. Inter-office mempranda affecting internal aciministiation. None. - Federel Deposit Insurance Corporation. 1. Confidential information and records, sectioli 309.1(a) of Oatporation's rules and regulations. a. Rgports of investigations or examina- tions of any bank. b. Applications, statements, and reports to the Corporation by any bank, c. Proceedings for the termination olthe insured status of any bank. d. Internal operations of the FDIC. None. . None. 1. Travel regulations. 2. Leave regulations. 3. Reporting working time and attend- ance. 4. Performance ratings. 5. Incentive and award guides. 6. Auditors manual. 7. Manual of exami- nation policies. 8. Budgetary rules, etc. Has not formulated a definition. Uses pt. 309 of rules and regula- tions of Corporation as a guide. tt~j 0 00 None. None. PAGENO="0085" t.4 a 0 P2 d. Confidcnti~l statistical data, etc. 2. 12 CFR 306.1~: i~. Privileged and confidential records and documents. Federal Maritime Corn- mission. 1. Files and records inspected and copies in Commission's discretion upon written request. 2. Orders, rules, opinions, held by Coin- mission to be confidential. None. None. None. 1. Pleadings, transcripts of testimony, ax- hibits, all documents received in evidence. Federal Mediation and Conciliation. Service, Information dislosect to Conmaisston~rs or other employeesin official duty will not be divulged, 29 CIFR ch. 12, pt. 1401. None. . None. None. 1 Documents, forms, and reports. 2. Mediator's reports on his activities. 3. Request that personal services of a Federal mediator may be needed. Federal Power Commis- sion. 1. Information obtained during examination of books and accounts of respondent conipanies not divulged by members, odigers, or employees except as directed by Commissioner or a court. 2. Other records not available except upon good cause shown. None. None. All. None. However, see 18 CFR 1.36(c). Federal Reserve Systeim.... I. Proece4ings for the removal of director~ or o~eere of member banks. 2. Credit ani:l nioneta~y policies in national monetary field. ~. Federal R~erve getions relating to- rrgorve requirements, margin re- quirements, and discount rates. 3. Financial and business information re- garding particular persons or institu- tions. 4. Defense material. None. 1. Discount rates. 2. Reserve requirements. 3. Margin requirements. All. All materials in the Board's possession cx- capt those relating to internal operation. PAGENO="0086" TABULAR ANALYSIS OF OPERATIONS UNDER 5 u.S.C. 1002-Continued None. However, where None. EPA programs In- volve dealing with the public, they are Tndependent agency (7) , Limitations on avallabifity of records and files (8) 1~rlvatepart1esresort1ng to unpublished organ- ization or procedure, sec. 3(a) (9) Refr-alne4~rom publish- lug rules-Secrecy in public interest, sec. 3(a)(l) (10) Refrained from publish- ing rules-Matters re- lating to Internal management, sec. 3(2) (11) Definition of "official record" Federal Trade Commission 1. Trade secrets and names of customers as shall be deemed expedient In public Intere8t. 2. See 15 U.S.C.A. 46 F. 3. Discretion of FTC. 4. Investigatory and Internal records and files; public Interest is controlling ele- ment of such discretion. None. ~ None. ~ . All. ~ None. However, con siders all acquired in formation as such, ox cept materials relating to internal manage- merit and personnel. Foreign Claims Settlement Commission of the United States. 1. Records and files not made available to public, except to claimants or duly authorized representatives. None. None. None. General Services Admin- istratlon. 1. Solely to internal management or nondis- closure in the public interest, 2. National Archives records (Imposed by law). 3. Record in Federal Records Centers (Ins- posed by agency whose records are involved). 4. Presidential libraries (imposed by depos- itors, or where disclosure would preju- dIce national interest or security), 5. Appeal case records relating solely to internal management. None. None. ~ 1. Personnel manage- ment matters. 2. Ancilliaryjnatters re lated to published rules which concern agency procedures on filing, distribu- tion, reviewing, preparation, and the like. 1. Document. 2. Publication 3. Decision or record ~ utilized bythe Com- ~ mission in determin- C~ ing validity and amount of the claim. ~ 8 I. Books, papers, maps, photographs, etc, made or received by co any agency of U.S. Government in con- nection with the transaction of public business is preserved as evidence of the agencies, functions, policies, decisions, procedures, etc. 2. See 4ICFR1OI-ll, 101-3, 101-12, 101-1. Housing and Home Finance Agency, 1. 18 U.S.C. 1905, trade secrets, operations, etc. a. Fianclal statements, manulac- t~~ng processes. None. Attorney General's Manual on the Ad- ministrative Procedur8 Act, p. 24. PAGENO="0087" 2. 12 U.S.C. 1701(d)-3(d), information from individuals or groups. 3. 5 U.S.C. 139(b), informatIon from another agency. 4. Executive Order No. 10450, natIonal se- curity. 5. ExecutIve Order No. 10501, defense infor- mation. (I. Executive Order No. 101161, officIal per- sonnel folders. 7. Operation flies, unreviewed audit, and Investigatory reports. 1. Tariffs, rate sched- ~ ules, powers of attorney, etc. 2. Annual and other ~ periodic reports ified. 3. Annual reports, maps, profiles. etc. 4. Docket files, includ- ~ ing, pleadings, depositions, 0 exhibits, etc. 02 covered in the Federal RegIster. Indian Claims Comnits- sion. Do not issue regular reports or publications; however, findings of fact and opinions are sent to all Interested parties and are available to public if they call at the office. No secret or confidential opinions. Interstate Commerce Commission, 1. Examination and inspection of carrier records. 2. Investigatory files (of carriers). 3. Filing of contracts by motor carriers except as part of record at formal pro- ceeding. 4. 1-percent waybill sample. 5. Routing of any property delivered to common carrier, 6. Impede administration of Interstate Commerce Commission Act. 7. Carriers filing supplemental traffic re- ports. 8. Accident reports of carriers. 9. Excess hours of service of drivers avail. able only upon written request. 10. Internal memorandum. None. ~ . Transportation of cx. plosives for the Armed Forces by Railway Express Agency, Inc., on pas. senger trains in time of war or a national emergency pro- claimed by the President. All. National Aeronautics and Space Administration, 1. Executive Order No. 10501, interest of national security, 2. Trade secrets and confidential financial information, 18 U.S.C. 1905. 3. Security and personnel records and re- ports. None. ~ . National defense and security, Publication has been selective on the grounds that the bulk of regulations is of little concern to pub. lic. Generally, all regulations are pub- lished as part of the NASA issuance system. See 44 U.S.C. 366. ~ PAGENO="0088" TABULAR ANALYSIS OF OPERATIONS UNDER 5 U.S.C. 1002-Continued a a C w Independent agency (7) Limitations on availability of records and files (8) Private partiesresorting to unpublished organ- Ization or procedure, sec. 3(a) (9) Refrained from publish- lag rules-Secrecy in public interest, sec. 3(a)(1) (10) Refrained from publish- big rules-Matter sre- lating to internal management, sec. 3(2) (11) . Definition of "official record" National Labor Relations Board. See. 102.117-Records and information. 1. If General Counsel or Regional Director find good cause: 2. Final opinions end orders for good cause shown. 3. Records, files, memorandum, reports relating to internal management or lnvestigations Ste. 14l2.118~-Emp1oyee cannot testify or produce files, etc., In any cause pending in bnhaU of a party without written consent of the Boa~i Or Chairman of the Board. None. None. None. 1. Charge upon which the complaint is issued. 2. Complaint and any amendments thereto. 3. Notice of hearing. 4. Answer. 5. Motions, rulings, orders. 6. Stipulations, exhibits. 7. Depositions, docu- mentary evidence, etc. National Mediation Boarth Mediation function in assisting labor and manage~nent is such that by its very nature certain information and conflden- tialreports lb the Board's files are not open to public inspection. See pt. 1202.15 of hoard's rules. None. None. None. Pt. 1202.15 of Board's rules and regulations. National Science Founda- tion. 1. Generally, none. 2. 18 U.S:O. 1905; disclosure of confidential information by Federal offices or emj~loyees. None; except all the material In Federal Register has gone out of date. None. ~ None. See 44 U.S.C. 366. . Railroad Retirement Board. 1. Those recprds which identify the mdi- v1du~l concerned. 2. Constgia of medical information. 3. Recot4s rticeived from Social Security A~gftcy or Veterans' Administration. 4. See *5 U.S~C. 362(d) and (ii), 5 ~T3:B.O. 139b(a). None. None. All. Board's records and files. PAGENO="0089" Renegotiation Board I. Pt. 1480 of Renegotiation Board regula. tions. 2. FedefM tax retutna, Fedst~t tax data~ reseinse agents reports, in Renegotia- tion Board'e cust6~ty. 3. Executive~ Ordet No. 10501; top secret. confidential, restricted data. 4. 18 U.S.C. 1985; trade secrets~ operations, procesies, etc. 5. Internal memorandum. None. . Contracts or subcon- tracts, renegotiation of which would jeop- ordize secrecy re- quired in the public interest, See rule 1480.4(a) of Renegotiation Board regulation. 1. General orders. 2, Operational bulle- tins. 3. Administrative orders. 1. Agreements, orders, reports, records, ifies, correspond- ence, meruoran- dums and other data, documents relating to any re- negotiation pro- ceeding. Securities and Exchange Commission. 1. Investigatory files. 2. Informants as to violations of law. 3. All material treated as nonpublic--to facilitate free communication among Government officials and to protect members of psiblie from unfair injury. None. None. All. See 17 C.F.R. 201.25, 17 C.F.R. 200.80, rule 25 of the Commis- sion's Rules of Prac- tice. Selective Service System... . 1. 32 CER 1606.31. 2. 32 CER 1606.32 (1), (2), (3), (4) (b), (c) (d). 3. Person must be properly identified as a person, or as an authorized representa- tive of an agency entitled to so obtain such information. 4. Reason for above-personal nature of information. None. None. All. Small Business Adminis- tration. . 1. Generally; r~euWds and files not available to piibltb. 2. Official infdrniation and records classified uhdtr Exddutltré Order No. 10501. 3. Material slitmiitted to Small Business Administration in confidence in order that Small Busfisess Administration may determine whether financial or other assistance should be granted; such disclosure abuld Injure reputation of the affectdd firili, especially if denied assistance. 4. Sec. 17~00 of Small Business Admlnistra- tionregulations. Did nat answ0r. - Did not answer. How- ever, onecircumstance wouldbe: Official information and records classified under Executive Order No. 10501. Generally all. Did not answer. Is- Records and files cre- ~~tj ated or obtained In carrying out its func- tions with respect to e-i registration, exam!- 0 nation, classification, selection, etc. 0 00 I, PAGENO="0090" Notsubject toAdministrative Procedure Act. 1. Examination questions. - 2. Ratings made by Individual examina- tions. 3. Records and flies not relating to actions or eases subject to the Administrative Procedure Act. 4. Investigative file. 5. Retirement records. 6. Medical records. 7. Inspections of agency operations. 1. Subject to Adminis- trative Procedure Act. 1. None. 2. Not subject to Ad- ministrative Pro- cedure Act. a. Appealing a rat- ing assigned to a Civil Service examiner. Record relating tq an action or case that is subject to the provi- sions of the Adminis- trative Procedure Act. TABULAR ANALYSIS OF OPERATIONS UNIiER 5 U.S.C. IOO~-Cont!nuec1 Independent agency (7) Limitations on availability of records and files (8) Private parties resorting to unpublished organ- ization or procedure, sec. 3(a) (9) Refrained from publish- big rules-Secrecy in public interest, sec. 3(a)(l) (10) Refrained from publish- lug rules-Matters re- lating to internal management, sec. 3(2) (11) Definition of "official record" Tennessee Valley Author- Ity. ~ . 1. 18 CFR 301.1. 2. Matters relating solely to internal man- agement. 3. Information held confidential for good cause foujid. Tennessee Valley an- thority and contractor may resolve any con- troversy through sue- cessive appeals to the contracting officer and the Tennesee Valley Authority General Manager. Entire procedure Is stated in "disputes" provision included in each con- tract. None. All. Publication for employees only, 18 CFR 301.1(a). Maps, plans, and diagrams, bids and awards, ease- ments, and rights-of- way, etc. U.S. Arms Control and Disarmament Agency. 1. 18 U.S.C. 37. 2. 42 U.S.C. 2247, 2277, and Implementing Executive orders. 3. Controlled in the interest of the nation- al defense or foreign policy. 4. Security-requIrements, None. None. 1. Handling of docu- ments. 2. Securityclassification procedures. 3. Duties of certain officers. 4. Personnel matters. 5. Supplies and services. None. Howôver, uses Attorney General's Manual on the Ad- ministrative Pro- cedure Act (1947), p. 24, as a guide. U.S. Civil Service Commission. None. All. PAGENO="0091" 8. 5 U.S.C. 632. 9. 5 U.S.C. 2251. 10. 5 U.S.C. 851. b. Annuity should follow In a so- called Hiss Ad case under 5 U.S.C. 2281. Books, papers, maps, photographs, etc., made or received by an agency of the IJ.S. Government in cotmection with the tranJaction of public ~ business, etc. See L~J Records Disposal Act ~ of July 7, 1943, amended July 6, 1945, ~ 44 U.S.C. 366. a a 0 Books, papers, maps, photographs, so on, made or received by any agency of U.S. Government In con~ nection with the trans- action of public bus!- ness. See sec. I of the Records Disposal Act (44 U.S.C. 366). U.S. Information Agsncy 1. Executive Order No. 10501 safeguarding official information in the interest of national defense. 2. Foreign Service Act 5612. 3. Classified records. 4. Restricted records, e.g., materials which might give offense to other national!, ties or individuals. 5. Records relating to unsettled claims. 6. Personnel records, etc. Procedures for app!!- cants for employ- ment in the Foreign Service of the Agency, or for service in a binational center abroad. . None. Generally, none. U.S. Tariff Comxnlsslon,~ 1. Reports to the President, either or both Houses of Congress or to committees of Congress release of which has not been authorized, 2. Confidential business data. a. Trade secrets 18 U.S.C. 1905. b. Processes. e. OperStions. d. Style of work, etc. ~ None. None. . None. ~ 1. Formaldocumentsfiled with Commission. 2. Reports to the Presi- dent, Congress re- lease of which has been authorized. 3. Transcripts of testi- mony and exhibits submitted at hear- Ings. Veterans' Administration,. Sec. 3301 of title 38, United States Code. All files, records, reports, and other papers and documents pertaining to any claim under any of the laws administered by the Veterans' Administration sball be con- fidential, etc., except for: See answer 3. None. None. Generally, detailed re- quirements of internal procedure and ad- ministration are pub- lished in manuals and other agency issues. PAGENO="0092" REPLIES TO QTJESTIONNAIRE EXECUTIVE OFFICE OF THE PRESIDENT Ri~pLy FROM `rin!~ BUREAU or ~rirn BUDGET EXECUTIVE OrrICE or nn~ PRESIDENT, BUREAU OF TEE BUDGET, Washington, D.C., March 19, 1965. Hon. Joi~i~r B. Moss, Chairman, Foreign Operations and Government Information Subcommittee, Committee on Government Operations, House of Representatj~~~, Washing. eon, D.C. DEAR MR. CHAIRMAN: This is in response to your letter of February 12, 1965, regarding the practices and procedures of the Bureau of the Budget under section 3 of the Administrative Procedure Act (5 U.S.C. 1002). The activities of the Bureau of the Budget have never been regarded as fall- ing within the scope of section 8 of the Administrative Procedure Act. Our activities do not directly aftect the public, and they have always been Considered to be covered by the exception in section 3 for matters relating solely to internal management. Since the Bureau is not subject to the publication requiremen~5 of section 3 of the act, we have no relevant answers to the specific questions in your letter. However, a statement of the Bureau of the Budget's organiza~i~~ and functions is published in the U.S. Government Organiza~j~~ Manual, which is issued annually as a special edition of the Federal Register. This statement appears on page 55 of the 1964-fj5 edition of that publication. Sincerely, KERMIT GORDON, Z~ireotor. REPLY FROM OFFICE OF EMERGENCY PLANNING EXECUTIVE OFFICE OF PER Orric~ or EMERG~CY PLANNING, Washington, D.C., March 17, 1965. Hon. JOHN B. Moss, Chairmon, Fore4yjn Operatio~g and Government In7or~tjon Subcommittee, Con~mittee on Government OperaDjon~, House of Representa~j~65 Washing.. ton, D.C. DEAR MR. Moss: In res~ouse to your request fo~ dnta relative to Federal agency practice under the "public information section's of the Administrative Procedure Act of 194(~ (5 U.S,C. 1002), I am pleased to submit the enclosed answers to the subcommittee's questi~n~air~, aloug With the requested documents. Although the broad definition of "agency" In the Administrative Procedure Act of 1946 inclnde~ the Ofilce of Emergency Planning the "public information section" of the act appears to be malitly applicable to those regulatory agencie~ having a direct involvement wIth the general public. Nevertheless, you may be assured of my complete cooperation in your sub- committee's study of this important phase of Government agency ope~-ation. If additionaj information may be needed, it will be furnished promptly. Sincerely, BUFORD ELLINGTON, Director. 364 PAGENO="0093" FEDERAL YIJBLIC RECORDS LAW 365 1. Generally, section 3 of the Administrative Procedure Act (5 U.S.C. 1002) applies to all functions of the Office of Emergency Planning. There are no divisions, bureaus, branches, or other constituent units of OEP to which it does not apply. However, section 3(b), in part, does not apply to OEP inasmuch as this agency does not render any "final opinions or orders In the adjudication of cases. * * ~" 2, (a) Federal Register, when a~ided or revised. U.S. Government organiza- tion manual, annually. (b) Federal Register, when added or revised. (c) Federal Register, when added or revised. (d) Federal Register, when added or revised. (e) Not applicable since OEP does not issue rules "addressed to and served upon named persons in accordatLee with law." 3. Not applicable, inasmuch as OUP does not render any final opinions or orders in the adjudication of cases, purstiant to section 3(b) of the Administra- tive Procedure Act or other authority. 4. Not applicable. (See No.3 above.) 5. Not applicable. (See No.3 above.) 6. SInce most of the programs administered by OEP have no direct effect upon the public the bulk of our records and files, interpretatIons and legal opinions relate solely to the internal operations of the agency, and would, therefore, not be made available to the general public in accordance with section 3(2) of the Administrative Procedure Act. In addition, classified information would not be made available pursuant to section 3(1) of the Administrative Procedure Act, and Executive Order 10501, 3 CFR 079 (195~). In those programs having a public concern, the procedures for making available connected materials, and also the llmitatiotks of availability, are contained in the published regulations applicable to such prqgrams. 7. The limitations placed upon the availability of records and files to the general public are those contained in 5 U.S.C. 1002; 18 II.S~C. 1005; 50 U.S.C. app. 2155(e); Executive Order 10480 (3 CFR 966 (1953)); Executive Order 10501 (3 CFR 979 (1953)). 8. In no circumstances are private parties dealing with OEP required in any manner to resort to organization or procedure not published in the Federal Register. 9. Since OEP has Issued no rules which involve any function of the United States requiring secrecy in the public interest, there has been no occasion to refrain from publishing such rules. 10. In no circumstances does OEP publish rules where there is involved any matter relating solely to internal agency management. Examples of mat- ters relating solely to Internal agency management are personnel rules, budget rules, travel regulations. 11. Because of the indirect concern to the public of the tnajority of OEP's functions, and also because of infrequency of requests, we have no formal definition of "official records." In the few cases where requests are made, therefore, the question of availability has been decided upon the grounds of legitimate interest on the part of the Individual requesting the material and the limitations contained in section 3 of the Administrative Procedure Act. REFL~r FROM OFFICE OF SCIENCE AND TECHNoLoGY Exzcvriva Orricu OF THiS PREsIDENT, OrirIcE or SOIENCE ~wr TECHN0LOOY, Washington, D.C., Mairch 15, 1965. Hon. JOHN E. Moss, Cha4rntan, Foveign Operations and Government Information gubcom~mittee, House of Representatives. DEAR C0NGIUS55MAN Moss: I am writing in response to your letters of Febru- ary 12, 1965, to the Chairman of the President's Science Advisory Committee and the Executive Secretary of the Federal Council for Science and Technology, in connection with your inquiry into the practices of Federal agencies for imple- menting the provisions of 5 U.S.C. 1002. Since I am Chairman of the President's Science Advisory Committee (P~AO) and the Federal Council for Science and Technology (FCST), and since the Office of Science and Technology (OST) of which I am the IMrector provides adminis- PAGENO="0094" 366 FEDERAL PUBLIC RECORDS LAW trative supi~o'rt for both activities, I am taking this opportunity to reply to both inquiries in a single letter My letter will consequently relate to the activities of all three organizations which operate together as a single integrated point for advice and staff assistance to the President on matters of a scientific and tech nological nature. My impression is that many of your specific questions are not strictly appli cable to the functions of the Federal Council, the President's Science Advisory Committee and the Office of Science and Technology By this, I mean that the nature of our work does not involve the administration of Government programs~ the determination of claims, or the formation of rules that directly affect the public. However, insofar as our activities are affected by 5 U.S.C. 1002, we comply fully with its provisions Descriptions of organization and functions a listing of key personnel, and the address of the FCST, PSAC, and OST are published annually in `the U S Government Organization Manual a special edition of the Federal Register. No claim of secrecy or relationship to internal management. is made to withhold publication of any information relevant to these matters. Doubtless you are also aware of the frequently published reports of advisory studies of the FCST PSAC and OST In addition since 1962 when the Office of Science and Technology was established by Reorgaplzation Plan No. 2, my predecessor, Dr. Jerome B. Wiesner, and myself have been in frequent com- munication with the Congress, and our testimony presents an extensive supple- mentary record of the ways in which the Executive office science structure fulfills its advisory and staff functions. I would be glad to provide you with any additional Information you may require. Your staff may also wish to contact Mr. Steven R. Rivkin, technical. assistant for legal affairs in the Office of Science and Technology, code 128 exten sion 28954, for such further materials as you may require. Sincerely, DONALD F. HoiuciG, Director. PAGENO="0095" EXECUTIVE DEPARTMENTS REPLY FROM DEPARTMENT OP AGRICULTURE DEPARTMENT OF AGRImYLTURE, Washington, D.C., March, 25, 1965. Hon. Jorn~ ~. Moss, Chairman, subcommittee an Foreign Operations and Government Information,. Committee on Government Operations, Manse of 1i~epresentatives, Wa.shi~n,g- ton, D.C. DEAR Mu. CHAIRMAN: This is in reply to your request of February 12, 1965,.. for answers to the 11 questions needed by your subcommittee in its evaluation of proposed amendments to section 3 of the Administrative Procedure Act (5 U.S.C. 1002). The person with whom liaison may be maintained by your subcommittee is Mr. Charles W. Bucy, code 111, extension 3463, and in his absence Mr. Elmer Mostow, code 111, extension 5565. The questions in your letter and the answers thereto are as follows: 1. Question. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? Answer. The provisions of 5 U.S.C. 1002 are applicable to all functions of this Department except the phases of functions dealing only with internal manage- ment or required to be kept secret in the public interest as provided in the intro- ductory exemptions from the section. There are no divisions, bureaus, branches, or other constituent units of this Department to which the section does not apply. 2. Question. In what official or unofficial publication, and at what intervals,. does your agency publish: (a) Descriptions of its central and field organization (see sec. 3(a) (1) of the Administrative Procedure Act); (b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute) (c) Substantive rules adopted as authorized by law (see see. 3(a) (3) of statute) (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statute) ; and (e) Rules addressed to and served upon named persons In accordance with law (see sec. 3(a) (3) of statute)? Answer. (a) (b). Wheu the Administrative Procedure Act became effective,. this Department published In the Federal Register a complete description of its central and field organization and a statement of the general course and method by which its functions are channeled and determined. From time to time, as changes are made, modifications of the organizational description and statement of functions are published in the Federal Register on as nearly current a basis as is practicable. In addition, where specific or formal procedures are prescribed in connection with any function or proceedings applicable to the public, they are promulgated as part of the general regulations relating to the functions or as separate rules of practice, and are published in the Federal Register at the timeS of issuance, and reprints thereof, in many instances, are made av~ilable to the public upon request. Such rules are also codified in the Code of Federal: Regulations. Answer (C) (d). Substantive rules adopted by this Department as authorized by law and statements of general policy and interpretations formulated and adopted by this Department for the guidance of the public are published in the Federal Register upon issuance. Amendments thereof are likewise so published. In most instances, pamphlets containing such rules, atatements of policy and interpretations relating to particular programs, and amendments thereof, are 367 PAGENO="0096" 368 FEDERAL PUBLIC RECORDS LAW also prhited as so&n as possible and made available to interested persons upon request, and in the ease of progra~ns involving registration o~ other forms of licensing, a copy of the printed pamphlet is furnished at the time of licensing or application for the license. In some instances substantive rules, or notices thereof, are also published upon issuance in newspapers or trade journals under the requirements of statute (e.g., see. 1 of the act of March 3, 1905, as amended (21 U.S.C. 123)), or the requirement of regulations issued by the Department (e.g., sec. 201.9 of the regulations under the Packers and Stockyards Act 9 CFR 201.9)). Press releases are generally Issued in relation thereto. Answer (e). The following rules which are addressed to and served upon named persons by this Department, are published as Indicated below: Rate orders under the Packers an4 Stockyards Act (7 U.S.C. 181 et seq.) are published in Agriculture Decisions, a monthly publication prepared by this De- partment which is obtainable from the Government Printing Office~ Orders post- ing and deposting stockyards under that act are published in the Federal Register upon issuance. Orders authorIzing the collection of brand in~pection fees under the act are published in the Federal Register upon issuance. Orders with- drawing such authorizations are published in Agriculture Decisions. Designations of contract markets under the Commodity Exchange Act (7 U.S.C. 1 et seq.) and orders vacating such designations, are published in the Federal Register ufion issuance. 3. Question. Please describe the manner in which your agency publishes, or, in accordance with published rule, makes available to public inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure or other authority. Answer. This Department publishes in agriculture Decisions all final opinions and orders in the adjudication of cases subject to sections 7 and 8 of the Admin- istrative Procedure Act except review proceedings with respect to acreage allot- ments before county review committees. In addition, such publication is wade in reparation proceedings. All opinions and orders in such cases, whether final or interim, are filed with the bearing clerk of the Department anti are matters of public record available for examination. The statement of the organization and functions of this Department published ii~ the Federal Register and the Administrative Regulations of the Department which appears in 7 CFR~ 1.4 give public notice that the opinions and orders filed with the hearing clerk shall be available to public inspection. In addition, the regulations (7 CFR, sec. 711.4) provide that the record of all applications and all proceedings relating to the review of marketing quotas and acreage allotments shall be available for public inspection at the office of the clerk who shall be the county office manager ancj section 7,11.26 of the regulations provide that any interested person shall be entitled to a copy of the record upon application and payment of the actual cost of supplying the copy. 4. Question. In what types of cases does your agency refrain from ppbilshing interim and final opinions or orders where, in the opinion of your agency, good cause requires they he held confidential, pursuant to section 3(b) of the Admin- istrative Procedure Act or other authority? Answer. There are rio instances in which this Department refrains from publishing or waking available to public inspection opinions or orders iii the adjudication of cases on the basis that they should be held confidential. 5. Question. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? Answer. The Department issues no opinions or orders in the adjudication of cases which are not published or made available to public inspection. 6, 7. Questions. What is the procedure for making available to the general public the records and files, Interpretations, and legal opinions of your ggency? What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice? Answer. Requests to inspect the public records and files and interpreta- tions of the Department are made to the person having custody thereof, as indicated by the published organization of the Department, and such docu- ments are made available for inspection, or access to them is denied, in accord- ance with the ai olicable statutes and re ~ulations of the Department includ- ing ~ A ~ lye Regulations l~ ~ 1 ~ ~ A, as amended. PAGENO="0097" FEDERAL PUBLIC RECORDS i~w 369 the librarian in charge of the Legal Branch of the library of the Department, and to the hearing clerk. All interpretaions and statements of general policy formulated for the guM- ~anee of the public are published. A current index of legal opinions and legal memorandums of the Office of the General Counsel of the Department is main~ tamed in the Legal Branch of the Department's library. The index Indicates which opinions and memorandums are confidential. The confidential ones are available only to employees of the Department with the approval of the General Counsel. The nonconfidential opinions and memorandums are generally avail- able only to employees of the Department. Nonconfidentlal opinions are Internal memorandums generally dealing with specific factual situations and, therefore, are no1~ available for general distribution. They are, however, made available on proper showi~ng of interest and where it is determined it will not be sims- ceptible of misinterpretation as to the general policy of the Department. They are not for quotation or reproduction in any case without permission. A current list of statutes which place limitations upon the availability of records and files to the general public is set out in exhibit 1 to 1 AR 537 of the general departmental regulations concerning restrictions on the `release of and requests for information (1 AR 505-585). Copies of these regulations and the exhibit are forwarded herewith. In addition to the statutes noted in the foregoing exhibit, the following addi- tional statutes place limitations upon the availability of records and files to the general public: 12 U.S.C. 1141j (d) which prohibits the inclusion in any governmental report, bulletin, or other such publication hereafter issued or published of any prediction with respect to cotton prices. Public Law 88-525, 78 Stat. 703 (Food Stamp Act). Section 8(b) re- strictS the use of information received from retailers or wholesalers relating to business of such firms "to purposes directly connected with administration and enforcement of the provisions of (the) act or the regualtions issued pur- suant to (the) act." Section 10(e) requires State plans of operation to contain provisions which among other things, provide safeguards which restrict the use or disclosure of information obtained from applicant house- b~lds to persons directly connected with the administration of the act or regulations issued pursuant to the act. Title 50 App. U.S.C. 2155(e) (Defense Production Act of 1950). SectIon 705(e) provides that information obtained under section 705, concernIng recordkeeping and furnishing of information and testimony in the enforce- ment or administration of the act, when deemed confidential by the President or person furnishing said information, shall not be disclosed or published unless the President determines that withholding the Information is con- trary to national defense. 18 U.S.C. 1905. This statute provides that any officer or employee Øf the United States who publishes or discloses, in a manner not atithorized by law, any information coming to him In the course of his official duties or employ- ment. which information concerns or relates (among other items) to trade secrets, processes, operations, style of work, or apparatus, or to the Identity, and confidential statistical data, shall be fined or Imprisoned and removed * from office. In addition, various agencies of the Department issue regulations or instruc- tions Implementing or supplementing the reculations and statutes noted above relating to the availability of records and files to the general public. Examples of such regulations and instructions are forwarded herewith and are separately listed in the attached schedule furnished In connection with our responsibility pursuant to your request for various documents on page 3 of your letter. The answers to these two questions are addressed to "official records" as in- dicated in the answer to question No. 11. S. Question. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not pub'~ lisl)ed in the Federal Register (see sec. 3(a) of the Administrative Procedure Act)? Answer. Private parties dealing with this Department are required to resort to organiaation or procedure not published in the Federal Register only insofar as there has not been time to modify the published organIzational description or statement of functions and procedures to conform with changes made in the or- 45-213-65-pt. 2--7 PAGENO="0098" 370 FEDERAL PUBLIC RECORDS LAW ganization and procedures. In such instances the person communicating with this t~epartment abottt any matter is notified as to any unpublished organisational or procedural changes affecting him. Where only gez~eral procedure is published, the person concerned is notified of specific detailed steps an4 procedures when need for recourse thereto arises. 9. Question. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy In the ptiblic interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. In no case has this Department refrained from publishing rules where there Is involved any function of the United States requiring secrecy in the public interest. 10. Question. In what circumstances has your agency refrained from publish- ing rules where there is involved any matter relating solely to internal age1ic~ management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer. This Department has refrained from publishing various instructions to its inspectors authorizing methods of treatment under plant quarantine regula- tions providing that treatment according to a method selected by an Inspector from administratively authorized procedures shall be a condition of the movement of certain products from areas regulated to prevent the spread of certain insect pests or plant diseases. The treatments that will be adequate vary greatly de- pending upon the circumstances involved in each particular shipment and formu- latiou of a general rule for publication in advance does not seem feasible. The published regulation gives notice to interested persons that treatment of some kind will be required and such persons are notified as to the specific treatment that will be approved for the particular shipment when they communicate with the inspector. Many other published rules of the Department are implemented by unpublished instructions to inspectors and other employees of the Department as to the procedures to be followed by them in administering such rules. Internal regulations relating to personnel, budget, and like matters are not published. 11. Question. What is your agency's definition of "official record" as used In section 3(c) of the Administrative Procedure Act? Answer. This Department has not made a general definition of "official record." However, in general, the Department has followed as a guide to the meaning of the term "official record," the Attorney General's interpretation thereof in the "Attorney General's Manual" on the Administrative Procedure Act as follows: "The term `official record' is difficult of definition. In general, it may be stated that matters of official record will include (a) applications, registrations, peti- tions, reports, and returns filed by members of the public with the agency pur- suant to statute or the agency's rules, and (b) all documents embodying agency actions, such as orders~ rules, and licenses. In formal proceedings, the plead- ings, transcripts of testimony, exhibits, and all documents received in evidence or made a part of the record are `matters of official record.' * * * * * * * "The great mass of material relating to the internal operation of any agency is not a matter of official record. For example, intra-agency memorandums and reports prepared by agency employees for use within the agency are not offic~i records since they merely reflect the research and analysis preliminary to official agency action. Intra-aetion reports of investigations are, in general, not matter of official record." We have been advised by your staff that it was not the intent of your commit- tee by its request for copies of the documents named on page 3 of your letter to impose the substantial burden of all rules, regulations, and other documents issued by this Department in implementing its responsibility under section 3, which in the case of this Department constitutes a substantial number of volumes of the Code of Federal Regulations, but rather the furnishing of examples of the documents as listed in the attached schedule would serve the committee's pur- poses. We are transmitting with this letter two copies of each document listed in the attached schedule as examples of documents issued and published under section 3. In addition, the function of decision in matters referred to the Department of Justice for prosecution or defense Is vested in that Department. Therefore, this Department does not release information pertaining to such matters referred to PAGENO="0099" FEDERAL PtBLIC RECORDS LAW 371 the Department of Justice which may affect the prosecution o~ defense of the cases referred without the approval of that Department. If we can be of any assistance, or if any further information is desired, please feel free to call upon us. Sincerely yours, ORvILLE L. FREEMAN, Secretary. Enclosures. SCHEDULE 0]? ENCLOSURES Title 1, chapter 9, Administrative Regulations, as amended, concerning restric- tions on release of, and request for, information. 7 CFR, subtitle A, part 1, subpart A, as amended, concerning official records and departmental proceedings. 29 P.R. 16210, December 3, 1964, relating to statement of organization and delegations. 29 P.R. 16210, December 3, 1964, relating to posted stockyards, identification of carcasses, and extension of period for emergency loans. 30 P.R. 2160, February 17, 1965, relating to establishment, organization, func- tions, and delegations of authority, concerning the consumer and marketing service. 30 P.R. 2207, February 18, 1965, relating to limitation of handling of navel oranges and regulation of quality and size oflimes. 30 P.R. 2207, February 18, 1965, amendment to part 201 of regulations under the Packers and Stockyards Act. 30 P.R. 3187, March 9, 1905, relating to handling of lemons~ order terminating a milk order in the Chicago area, an order amending a milk order for the north- western Indiana area, and regulations dealing with grain loans, purchases, and other operations. 9 CFR, chapter II, parts 201-203, as amended, pertaining to regulations, rules of practice, and statements of general policy under the Packers and Stockyards Act. REA Bulletin 20-12 (electric); REA Bulletin 320-16 (telephone), April 5, 1962, concerning public availability and release of information. FHA. Instruction 150.1, concerning availability of FHA. records and information. Pamphlet concerning the Packers and Stockyards Act, as amended, regulations and statements of general policy. Pamphlet concerning the Commodity Exchange Act, as amended, regulations under the act. General regulations with respect to marketing agreements and orders. Agricultural Decisions dated January 1965. County Administrative Handbook (ASOS County Committee) revision 1, con- cerning availability of records and information. CCC Board Dockets Handbook, as amended, concerning (in part) safeguard- ing docket material and information (pt. 2). RnpLT FROM DEPARTMENT OF COMMERCE THE AssIsTANT SECRETARY or C~MMREcE, WasMiagtoii, D.C., March 19, 1965. Hon. JOHN B. Moss, Cha'irma~, Fore'iç,e~ Operatioaa and Gavern'ment Thformation Subcommittee, Com- mittee on~ Government Operations, flouse of Representatives. DEAR Ma. Moss: This is in response to ~vour letter of February 12, 196~, to the Secretary of Commerce, requesting answers to a series of questions on the Department's actions to assure availability of Information, as provided in section 3 of the Administrative Procedure Act (5 U.S.C. 1002). There is attacbe4 hereto a volume containing- (a) A "Departmental Summary'~ which sets forth answers for the Depart- ment as a whole; and (b) A detailed response to applicable questions from each of our program bureaus or offices. The individual responses from each of our program offices and bureaus have been included in order to provide the $ubcommittee with a full explanation of the varying needs and requirements of different programs of the Department for making Information available to the public. PAGENO="0100" 372 FEDERAL PUBLIC RECORDS LAW As requested in the last paragraph of your letter, implementing documents have been included in the attached volume containing our response, If we can be of further assistance, please let us know. Sincerely yours, / HuimnaT W. KLOTZ, Auistawt &~cretary for Adm~inistration. DEPAIITMENTAL SUMMARY (Information in reply to questions concerning public information set forth in letter of February 12, 1965, from the Honorable John K Moss, chairman, Foreign Operations and Government Information Subcommittee of the House Com- mittee on Government Operations.) Each program bureau or office of the Department developed detailed replies to questions specifically applicable to its programs. A copy of these replies is being furnished the subcommittee along with this departmental summary. The information below comprises the Department's answer to those questions which apply to the Department as a whole. Question 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or ether constituent units of your agency to which the section does not apply? Generally, except to the extent exempted by 5 U.S.C. 1002 itself, the provisions of 5 U.S.C. 1002 apply to all functions and organization units of the Department of Commerce. Question 2. In what official or unoffcial publication, and at what intervals, does your agency publish (a) descriptions of its central and field organization; (b) statements of the general course and method by which its functions are channeled and determined; (c) substantive rules adopted as authorized by law; and (d) statements of general policy or interpretation formulated and adopted by the agency for the guidance of the public? All items referred to in the question are published in the Federal Register upon issuance. Question 2(e). In what official or unofficIal publication, and at what intervals does your agency publish (e) rules addressed to and served upon named persons in accordance with law? The Department does not centrally issue rules addressed to and served upon named persons in accordance with law. Questions 3, 4, and 5. Please describe the manner in which your agency publishes, or, in accordance with published rule, makes available to publie inspection, all final and interim opinions or orders in the adjudication or cases, pursuant to section 3(b) of the Administrative Procedure Act or other author- ity? In what types of cases does your agency refrain from publishing interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Administrative Procedure Act or other authority? In what circumstances are unpublished opinions and orders cited or used as precedents In other proceedings? The Department's practices regarding the availability to the public of opinions and orders in the adjudication of cases, which is the subject of these questions, are explained in the separate responses of the Department's program bureaus and offices. Question 6. What is the procedure for making available to the general public the records and files, interpretations and legal opinions of your agency? Therels no formal procedure imposed on the public for obtaining information from the records and files, interpretations, etc. Persons making individual requests are furnished all available information as warranted taking into con sideration the nature of the information requested and the concern of the re- questing party. Individual offices and bureaus make available their records under Department Order No. 64, as explained in the individual responses from offices and bureaus. Question 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or Practice? All information is made generally available to the public except to the extent of- (a) Motters of national defense security; e.g., Executive Order 10501, as amended; PAGENO="0101" FEDERAL PUBLIC RECORDS LAW 373 (b) Made confidential by law; e.g., 18 U.S.C. 1905; (c) Information precluded by reason of national interest e g investi gative reports and material received in confidence by the Department. For particular instances of regulatory or statutory restrictions, see individual bureau and office responses. In addition, certain matters relating to pro- posed or pending legislation and budget requests are required to be kept confidential, as set forth in Administrative Orders Nos. 201-13 and 203-1, copies attached; and (4) Certain matters pertaining solely to Internal management; e.g., work- ing papers and drafts, internal memorandums, individual personnel actions, and other individual personnel information. (See Administrative Order 202-22, attached.) Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not pub- lished in the Federal Register? (See sec. 3(a) of the Administrative Procedure Act.) We know of no case where private parties dealing with the Department are required in any manner to resort to organization or procedure not published in the Federal Register. Question 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? The Department has not refrained from publishing rules where there is in- volved any function of the United States requiring secrecy in the public interest. Question 10. In what circumstances has your agency refrained from. publish- ing rules where there is involved any matter relating solely to Internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? The Department does not publish rules involving any matter relatifig solely to internal agency management. Question 11. What is your agency's definition of "official record" as used ip section 3(c) of the Administrative Procedure Act? The Department, as such, has no definition of "official record." However, generally, we feel that the definition of "record" as used In the Federal Records Act (44 U.S.C. 366) defines the scope of "official record," as used in official functions of the Department. In response to the last paragraph of the letter of the subcommittee chairman, there are attached two copies of each document issued to Implement 5 U.S.C. 1002. These are: De~artnmnt Order No. 64, "Release of Information and Records." Administrative Order No. 201-13 (revised), "Legislative Activities." Administrative Order No. 201-22 (revised), "Clearance and Filing of Fed- eral Register Material." Administrative Order No. 202-22, "Release of Information and Records Relating to Personnel." Administrative Order No. 203-1, "Appropriations and Related Publ~e Funds Activities." -- Rrrn.ir FROM DEPARTMENT OF DEFENSE ASSISTANT SEcRETARY or DEFENSE, Wa8hington, D.C., Ma~roh 29,1965. Ron. Jorn~ Fl. Moss, Chairman, Foreign Operationa and Goverivment Information ~ubcoevniittoe, (Yommittee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: As requested in your letter of February 12, 1965, an- swers are supplied below for the 11 questions raised by you concerning the application of section 3 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002) by the Department of Defense. Question 1. Generally, to what functions of your agency does S U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? Answer. Section 1002 of title 5, United States Code (sec. 3 of the Adminla- trative Procedure Act), generally applies to all functions of the Department of PAGENO="0102" 374 FEDERAL PUBLIC RECORDS LAW Defense other than those of the National Security Agency which are exempted by the provisions of Public Law 86-36. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (a) Descriptions of its central field organization (see see. 3(a) (1) of the APA); (b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute); (c) Substantive rules adopted as authorized by law (see sec. 3(a) (3) of statute) (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statute); and (e) Rules addressed to and served upon named persons in accordance with law (see sec. 3(a) (3) of statute)? Answer. Descriptions of the central and field organization of the various comrn ponents of the Department of Defense are published annually in the Government Organization Manual, a special edition of the Federal Register, 1 CFR 31.1. In addition, various directives and regulations of the several components of the Department of Defense that contain descriptions of the organization and of the course and method by which its functions are channeled and determined, as well as substantive rules and statements of general policy, are published as the changes become~ effective. Most of these directives and regulations are available to the public upon request or inquiry unless they involve "any function of the United States requiring secrecy In the public interest or any matter relating solely to the internal management of an agency." Moreover, those directives and regulations which are formulated and adopted by the agency for the guidance of the public are normally published in the Federal Register and collected in title 32 of the Code of Federal Regulations. Rules addressed to and served upon named persons in accordance with law are not published in accordance with section 3(a) (3) of the Administrative Proce- dure Act. Question 8. Please describe the manner in which your agency publishes, or, in accordance with published rule, makes ~tvailable to public Inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the APA or other authority. Answer. Opinions and orders resulting from adjudication by the various corn- po~ents of the Department of Defense are found in the following publications: (a) "Court-Martial Reports" (Lawyers' Cooperative Publishing Co.). (b) "Digest of Opinions" (Lawyers' Cooperative Publishing Co.). (c) "Contract Appeals Decisions" (Commerce Clearing House). )Iules which govern the availability of opinions and orders for public inspec- tion are found in various sections of title 32, Code of Federal Regulations, where they are properly indexed in accordance with the function involved. Functions which may be considered adjudications Include those of the disability and dis- charge review boards, the boards for the correction of military records, the boards of review (of court-martial decisions), and the boards for the evaluation of appli- cations for security clearances submitted by employees of Defense/industry. The civil functions of the Corps of Engineers are governed by section 209.490 of title 33, Code of Federal Regulations. Generally, such opinions and orders are made available only to persons properly and directly concerned or at the request or with the authorization of such persons. These adjudications normally involve matters that will be reflected in personnel records and, if made available for public inspection, could result in an invasion of the privacy of the individuals affected. Qaestlon 4. In what types of caseS does your agency refrain from publishing interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the APA or Other authority? Answer. In accordance with section 3(b) of the Administrative Procedure Act, the Department does not publish opinions and orders Which are made available pursuant to published rule; nor are opinions or orders published if they involve "any function of the United States requiring secrecy In the public interest or any matter relating solely to the internal management of an agency." The "good cause" which most frequently precludes publication of opinions and orders Is the protection of individual privacy (see the last sentence of the reply PAGENO="0103" FEDEBAL PUBLIC fiECORDS LAW 375 to question 3 above). Availability in such cases is normally restricted to the persons directly involved in the adjudicatory procedure. Question 5. In what circumstances are unpublished opinions and orders cited or used as precedents In other proceedings? Answer. Opinions and orders that are unpublished and are not available for public inspection are not cited nor used as precedents in other proceedings. Questk~n 6. What is the procedure for making available to the general publie the records and files, interpretations and legal opinions of your agency? Answer. In addition to publications listed in the answer to question 3 above, records and files as well as interpretations and legal opinions of the Department are available to those members of the general public having a proper and direct concern in the subject matter. The procedures governing the release and authen- tication of Department of Defense records are set forth in DOD Directive 5015.1, ~2 OFR 285. Procedures for making Department of the Army files available are contained in Army Regulations 345-20 and 345-200,32 CFR 518. Department of the Navy procedures are contained in Navy Regulations 1048, article 1250-1252, and are compiled in part 71, title 32, Code of Federal Regu- lations. The procedures of the Department of the Air Force are contained in Air Force Regulation 11-22, part 804, title 32, Code of Federal Regulations. Question 7. What limitations are placed upon the availability of records and files general public, either by statute, rule or practice? Answer. Records and files of the Department of Defense are normally made available to any member of the general public having a diroct and proper con- cern in them. Limitations on availability are imposed pursuant to section 3 of the Administrative Procedure Act; section 1905 of title 18, United States Code; sections 2011 through 2281 of the Atomic Energy Act of 1054; Public Law 86-36 (50 U.S.C. 402 note); Executive Order 10501; and published directives of the Department of Defense, which are in turn implemented by regul~tions of the military departments. Requirements for the protection of classified information in the Department of Defense are set forth in DOD Directive 5200.1, which is implemented by the Army in AR 380-5, by the Navy In OPNAV Instruction 5510.IB, and by the Air Force in AFR 205-1. General policy guidance for the protection of most unclassified official Infor- mation that is not available to the general public is found in DOD Directive fi200.6, which is implemented in the Army by AR 345-15, in the Navy by SecNav Instruction 5570.2A, and in the Air Force by APR 11-30. Applications of the general policy set forth in DOD Directive 5200.6 for particular kinds of informa- tion are found in other directives and regulations, an example of which is DOD Directive 6040.2, which prescribes the conditions under which personal medical records are made available to persons properly and directly concerned. Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register (see see. 3(a) of the APA)? Answer. Private parties are not required to resort to unpublished organization and procedure. Question 9. In what types of cases has your agency refrained from publishing rules where there Is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the APA or other authority? Answer. Rules which are classified in accordance with Executive Order 10501, as amended, DOD Directive 5200.1 and the implementing regulations of the mili- tary departments are not published in the Federal Register because they involve functions of the United States requiring secrecy in the public interest. They are, however, frequently published in.a classified form and made available to persons who are determined to have a "need to know," and have been properly cleared for access to classified information. Examples of the types of unclassified rules that are not published and are not available to the general public involve functions which are described in para- graph IV-C 2,3,4,9, and 10 of DOD Directive 5200.6. Question 10. In what circumstances has your agency refrained from publish- ing rules where there is involved any matter relating solely to internal agency management, pursuant to sectlou 3(2) of the APA or other authority? PAGENO="0104" 376 FEDERAL PUBLIC RECORDS LAW Answer. Rules which involve matters relating solely to the internal manage- ment of some component of the directive are not normally published in the Federal Register. They may, nevertheless, be made available to the general public upon request or inquiry. Rules of internal management that are not made available to the general public concern subjects such as those described in paragraph IV-C 1, 5, 6, 7, and 8 of DOD Directive 5200.6. For example, DOD Directive 410546, which prescribes the permissible price latitudes for Department negotiators in cost-plus41~ed-fee contract negotiations falls within the guidance of paragraph IV-C 5, of DOD Directive 5200.6, and is circulated as a directive designated "For offictal use only." Rules formulated for the guidance of the public are published in the Federal Register and compiled in the Code of Federal Regulations. Doubts about whether a rule is for the guidance of the public or for internal agency management are in practice resolved in favor of publication in the Federal Register. See, for cx- ample, subchapter E of chapter V of 32 CFR related to the Organised Reserves. Question 11. What is your agency's definition of "official record" as used in section3(c) of the APA? Answer. The Department of Defense has no single all-inclusive definition of the term "official record" as used in section 3(c) of the Administrative Proce- dure Act. The Department, however, follows the guidance of the Attorney Gen- eral's Manual on the Administrative Procedure Act, pages 24 through 25, in de- termining which matters are of "official record." Of particular importance is the instruction in that manual that "[t]he great mass of material relating to the internal operation of an agency is not a matter of official record" (ibid. at 25). For purposes of release and authentication, DOD Directive 5015.1, 32 CFR 285.2, defines "official records" as including- * * * all papers, books, maps, photographs, and other documentary mate- rial regardless of physical form or characteristicS made or received in the Department of Defense, exclusive of the three military departments in pur~ suance of Federal law or In connection with the transaction of business as evidence of the organization, functions, policies, decisions, procedures or other activities because of the informational value of the data contained therein. Attached are two copies of DOD directives and military department regula- tions cited above which implement 5 U.S.C. 1002 within the Department of Defense. Sincerely, SoLIs ITonwrvz. (Norz.-Reference material in subcommittee files.) REPLY FROM DEPARTMENT OF HEALTH, EDUCATION, AND WELPARK SECREThRY OF HEALTH, EDUCATION, AND WELFARE, Washington, D.C., March 26, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operations and Government Information subcommittee, House of Representati'ves. DEAR Ma. CHAIRMAN: In accordance with your request of February 12, 1965, we are pleased to supply the enclosed statement setting forth the answers to the questions contained in your letter. The answers are keyed to the questions. The only regulation, directive, order, or other document issued by this Depart- ment to implement S U.S.C. 1002 is that set forth in 45 CFR 5. We assume that the Code of Federal Regulations is readily available to youi~ stag and we therefore do not need to reproduce thisdocument for your use. We shall be pleased to supply any additional information or copies of documents at your request Sincerely, ANTHONT J. CEI.RBREZZE, ~ecretary~ PAGENO="0105" FEDERAL PUBLIC RECORDS LAW 377 DEPARTMENT OP HEALTH, EDUCATION, AND WELFARE APPLICATION OF SECTION 8, ADMINISTRATIVE PROCEDURE ACT OF 1940 (5 tT.5.C. 1002) TO THE FUNCTIONS AND ACTIVITIES OF THE DEPARTMENT (Items keyed to questions in letter dated February 12, 1965, to the Secretary from Congressman John E. Moss, chairman, Foreign Operations and Government Information Subcommittee, House Committee on Government Operations) 1. Section 3 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002) ap~ plies to all functions of the Department of Health, Education, and Welfare. ~o divisions, bureaus, branches, or other constituent units of this Department are exempt. 2. (a) The Department publishes deedriptious of its central and field organiza- tion in the- (1) Federal Register, as changes occur. (2) United States Government Organization Manual, annually. (3) CongressIonal Directory, annually. (4) Various publications of the operating agencies of the Department, Is- sued irregularly. (b) The Department publishes statements of the general course and method by' which its functions are channeled and determined in the- (1) Federal Register, as such determinations are made or revised. (2) Code of Federal Regulations, as compiled by National Archives and Records Service. (3) Various publications of the operating agencies of the Department, issued irregularly. (c) The Department publishes substantive rules adopted as authorized by law in the- (1) Federal Register, as such rules are adopted or revised. (2) Code of Federal Regulations, as compiled by National Archives and Records Service. (3) Various publications of the operating agencies of the Department, is- sued irregularly. (d) The Department publishes statements of general policy and Interpreta- tions formulated and adopted by the Department for the guidance of the public in the: (1) Federal Register, currently as adopted. (2) Code of Federal Regulations, as compiled by National Archives and Records Service. (3) Various publications of the operating agencies of the Department, issued irregularly. In most of the functions of the Welfare Administration (the Federal-State public assistance programs under titles I, IV, X, XIV, and XVI of the Social ~ectLrity Act and the Federal-State grant programs of maternal and child health, crippled children, and child welfare services of title V of the Social Security Act) the "public" for which policies are prescribed are confined to State agencies. The policies, rules, and standards governing these programs are published In handbooks and manuals for use of appropriate State agencies and distributed to such agencies. An Interpretation of the Administrative Procedure Act by the Attorney General (Attorney General's Manual on the AdmthIstrative Procedure Act, 1947, p. 22) indIcates that materials of this type need riot be published in the Federal Register. In the child welfare research, training, or demonstration grants program, juvenile delinquency demonstration and training grants program and cooperative research and demonstration grants program statements of general policy or in~ terpretatlons are issued for guidance of the public, by means of announcements, application kits, brochures, periodic~ds, etc. (e) The Department publiehes rules addressed to and served upon named persons in accordance with law in the Federal Register *hen such rules pertain to suspension or withdrawal of new drugs utIder the tieW drug provisions of the Federal Food, Drug, and Cosmetic Act, and, when appropriate, in suspensions or revocations of licenses under the biological products control program (42 U.S.C. 262). 3. The Social Security Administration publishes selected final opinions or orders in social security benefit claims cases which are of precedeiit value and PAGENO="0106" 378 FEDERAL PUBLIC REOORDS LAW interest to the public in Social Security Rulings, a quarterly publication avail- able from the 15.5. Government Printing Office. (Na,znes and other information which would identify the individuals involved are omitted from the published opinion or order.) A cumulative bulletin prepared and issued annually contains all rulings issued in the preceding year, with a comprehensive subject matter index not only to the rulings in the particular cumulative bulletin but also to the same subject matter in prior cumulative bulletins.. The bulletin is also offered for sale by the U.S. Government Printing Offièe. The Social Security Administration maintains in every district office for inspection by the public copies of its regulations as well as copies of its various informational pamphlets. The Food and Drug Administration publishes summations of court cases in "Notices of Judgment Under the Federal Food, Drug, and Cosmetic Act," pub- lished pursuant to section 7Q5(a) of the Federal Food, Drug, and Cosmetic Act. The opinions and orders of Federal courts in which seizure, prosecution, and injunction cases are brought are also a matter of public record in the jurisdic- tions in which the uctions are consummated. After publishing notices of proposed rulemaking, the Food and Drug Adminis- tration makes available for inspection by Interested persons all comments and objections filed in relation thereto with the hearing clerk of the Department, as well as transcripts of public hearings~ etc. Final orders and opinions involving detentions of importations under the Federal Food, Drug, and Cosmetic Act, the Hazardous Substances Labeling Act, and the Federal Tea Importation Act are available for inspection at the offices of the Food and Drug Administration where issued, except those which are desig- nated for good cause to be confidential and not cited as precedents. Final orders and opinions of the Secretary issued under section 505 (d), (e), and (f) of the Federal Food, Drug, and Cosmetic Act involving new drug matters are available for inspection at the office of the hearing clerk, room 5440, Depart- ment of Health, Education, and Welfare, 330 Independence Avenue SW., Wash- ington, D.C., except those that are designated for good cause to be confidential and not cited as precedents. No such orders have been so designated to date. Records of current and completed seizure, prosecution, or injunction actions filed in the district courts under any of the laws enforced by the Administration are available for inspection in the Office of the Director of Public Information of the Administration. (No~s.-See also answer to question 6, below.) 4. The general policy of the Department provides for full disclosure of interim and final opinions; exceptions to this policy are extremely limited. Neither the Public Health Service nor the Food and Drug Administration authorizes any ex- ceptions. The Social Security Administration refrains from publishing only those opinions and orders which lack precedent value or which would, from the pe- culiar facts involved, identify the individuals concerned. 5. None. 6. In general, persons properly and directly concerned may inspect pertinent official records and files, and interpretations and legal opinions of this Depart- ment upon written application to the Secretary, or the head of the concerned operating agency. Such written application should include a statement of the interest of the applicant in the subject matter of the records sought to be in- spected. The Code of Federal Regulations sets forth the pertinent procedures (see 20 C.F.R. 401; 21 O.F.R. 4; 42 C.F.R. 1; 42 C.F.R. 300; 45 O.F.R. 5; 45 O.F.R. 211.14,212.9). (Novs.-See also answer to question 3, above.) 7. In general, the Department places certain specified limitations on the avail- ability to the general public of records and files in the following categories: official personnel records; medical and clinical records of patients; information obtained under an assurance of confidentiality for purposes of research, survey, investigation, or collection of statistical data; the proceedings of public advisory committees; Information concerning individuals, business enterprises, and public or private agencies obtained in the course of performing regulatory functione; informatiou obtained in connection with applications for employment, fellow- PAGENO="0107" FEDERAL PUBLIC RECORDS LAW 379 ships, traineeships, commissions, and grants. (See answer to question 6 for refer- ences to pertinent provisions of the Code of Federal Regulations.) In addition, there are certain statutory limitations: Section 1106 of the Social Security Act specifically prohibits disclosure of any return, file, record, report, other paper, or other information, obtained at any time by the Secretary or any officer or employee of the Department in the dis- charge of his duties under the Social Security Act, except as the Secretary may by regulations prescribe. Regulation No. 1 of the Social Security Administra- tion (20 C.F.R. 401) issued pursuant to section 1106 of the act states the circuni- stances under which disclosure is permitted. Broadly stated, the regulation permits disclosure of confidential information from social security records only for social security or related purposes, or where the national security is involved, except and Insofar as the individual directly concerned may authorize. Section 301(j) of the Federal Food, Drug, and Cosmetic Act and section 4(h) of the Federal Hazardous Substances Labeling Act prohibit the use by any person to his own advantage, or revealing (other than to the Secretary or officer or employee of the Department, or to the courts when relevant in any judicial proceedings under those laws) of any informatiOn acquired under sections 404, 408, 409, 505, 506, 507, 704, and 706 of the Federal Food, Drug, ~nd Cosmetic Act and section 11 of the Federal Hazardous Substances Labeling Act concerning any method or process which as a trade secret is entitled to protection. Section 408(f) of the Federal Food, Drug, and Cosmetic Act provides that all data submitted to the Secretary or to an advisory committee in support of a petition submitted pursuant to that section shall be considered confidential until publication of a regulation under section 408(d) (2) or (3). The Federal Food, Drug, and Cosmetic Act and section 121.51 (f) and (h) of this chapter provide that data in a food additive petition regarding any method or process entitled to protection as a trade secret will be held confidential and not revealed unless it is necessary to do so in the record of an administra- tive hearing preliminary to judicial proceedings under section 409 of the act. Other data in the petition (except for methods of analysis) will not be revealed to persons other than the petitioner and persons engaged in the enforcement of the act beyond that which is necessary to comply with section 409(b) (5) and 409(c) (1). The Civil Service Commission requires that agencies safeguard examination papers and other material attached to applications, and that they in no case permit an employee to inspect the confidential questionnaires furnished for use in evaluating his qualifications, and "obtained upon the Commission's assurance that the information is for inspection only of the Commission, the employing agency, and personnel of other agencies authorized to review the ConimissiOn's investigative material" (RPM 29&-8). The Commission authorizes agencies to release medical information with re- spect to entrance qualifications, fitness for duty, and other medical records in the official personnel folder only (1) in response to a subpena or (2) to non-Federal entity or individual upon written atithorization of the employee concerned, with certain reservations or safeguards or (3) to another Federal agency with- out restriction (FPM 339-5). 8. Applicants for certain types of grants may have to refer to manuals or kits published specifically for their guidance and which contain more detailed in- structions on the grant application procedure. 9. None. 10. None. (The Department's internal operating procedures are not pub- lished, but these do not constitute rules in the sense intended by 5 U.S.C. 1002.) 11. For purposes of general administration and records management, this De- partment uses the definition of the term "official record" set forth in 44 U.S.C. 366. Some of the operating agencies, In some Instances, use the definition set forth in the Attorney General's Manual on the Administrative Procedure Act, 1947, at page 24, which does not differ substantially. (Norn: Above-described material available in subcommittee files,) PAGENO="0108" 380 FEDERAL PUBLIC RECORDS LAW REPLY FROM DEPARTMENT OF THE INTERiOR U.S. DEPARTMENT OF THE Ixrnnion, Washington, D.C., March 18, 1965. Eon. JOHN B. Moss, 4jha4rnia'n, ~8wbcomm'ittee on Foreign Operations and Government Information of the Committee on Government Operations, House of Representatives. DEAR Mn. Moss.: There. is. attacld to tl~i~ letter answer to the qucitiona cop-~ tamed in your letter o1~ February 12 on section 3 of the Administrative Procedure Act. This response will also serve as a reply to your request of the same date to the Board on Geographic Names. Sincerely yours, D. OrIs BEASLEY, Assistant S'ecretary. 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches or other constituent units of your agency to which the section does not apply? Except as provided in 5 U.S.C. 1002 and as noted below, all functions of the Department of the Interior are subject to the requirements of that section. There are no divisions, bureaus, branches, or other constituent units, as such, at this Department to which the provisions of 5 U.S.C. 1002 do not apply. There is an express statutory exception (30 U.S.C. 483) of functions of the Department from the Administrative Procedure Act with respect to the making of an order of withdrawal pursuant to title II of the Federal Coal Mine Safety Act or to any proceeding for the annulment or revision of any such order. The provisions for making, revising, or annuling such orders are prescribed in detail by the statute-30 U.S.C. 473, 474,476,477,478. 2. In what official or unofficial publication, and at what intervals, does your agency publish: (a) Descriptions of its central and field organization (see sec. 3(a) (1) of the Administrative Procedure Act); (b) Statements of the general course and method by which its functions are channeled and determined (see see. 3(a) (2) of statute); (e) Substantive rules adopted as authorized by law (see see. 3(a) (3) of statute); (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see see. 3(a) of statute) ; and (e) Rules addressed to and served upon named persons in accordance with law (see sec. 3(a) (3) of statute). 2(a). Descriptions of our central and field organization (as required by see. 3(a) (1) of the Administrative Procedure Act) are published annually in the U.S. Government Organizational Manual, published by the Office of the Federal Register as a special edition of the Federal Register. Major organization changes which are made between issues of the manual are published as Secre-. tary's orders in the Federal Register. 2(b), 2(c), 2(d). Statements of the general course and method by which func- tions are channeled and determined; substantive rules adopted as authorized by law; and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public are published as regulations in titles 18, 25, 30, 32, 32A, 36, 41, 43, 49, and 50 of the Code of Federal Regulations. In addition to the regulations in 50 CFR, part 80, concernIng financial assistance to States for fish and wildlife restoration programs under the Pittman-Robinson Act of September 2, 1937, as amended (16 U.S.C. 669-669j) and the Dingell- Johnson Act of August 9, 1950, as amended (16 U.S.C. 777-777k), representatives of the States have been furnished a copy of the Federal Aid Manual which details procedure to be followed as to these programs. Two copies of the manual are enclosed. 2(e). "Rules addressed to and served upon named persons in accordance with law" are exempt from publication by section 3 of the act. The Department does not issue that type of rule. 3. Please describe the manner in which your agency publishes, or, in accordance with published rule, makes available to public inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure Act or other authority. PAGENO="0109" FEDERAL PUBLIC RECORDS LAW 381 In regard to opinions and oi~ders in the adjudication of cases, we have published the following regulation which is codified in section 2.5 ot title 43 of the Code of Federal Regulations: "(a) ]~lach bureau of the Department shall maintain, in the headquarters office of the bureau or in the field office In which final action Is taken, a file containing copies of all final opinions and orders issued by the bureau (including those approved by the Secretary) in the adjudication of cases, except opinions and orders which the head of the bureau or the Secretary may for good cause require to be held confidential and which are not cited as precedents. "(b) The Office of the Solicitor shall maintain a file containing copies of all final opinions and orders issued by the Secretary or the Solicitor in the adjudication of cases, except opinions and orders which the Secretary or the Solicitor may for good cause require to be held confidential and which are not cited as precedents. "(c) The files mentioned in this section may be Inspected by the public at any time during regular business hours." In addition to making such opinions and orders available for public in- spection, there are the published Decisions of the Department of the Interior which include the more important administrative decisions on appeals to the Secretary in land and Indian cases and contract appeals and the more Important legal opinions that are rendered by the Solicitor of the Department. Also included are decisions on the more important tort and Irrigation claims. These decisions are published monthly in preprints which are bound annually, and are for sale by the Superintendent of Døcuments U ~ Government Printing Office Also, a subscription service is offered by the Department, which service con- sists of monthly mailings of mimeographed copies of decisions on land appears to the Secretary, Indian appeals, contract appeals, and tort and irrigation claims, as well as opinions which are not included in the published Decisions of the Department referred to above. The Department publishes quarterly an index-digest which covers all the published and all the important unpublished decisions described in the preceding two paragraphs. The digest is cumulated annually. 4. In what types of cases does your agency refrain from publishing Interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Administrative Procedure Act or other authority? Except with respect to the matters noted below, I am not aware of any, in- stance in this Department In which iterim and final opinions or orders in the adjudication of cases are not published on the grounds of confidentiality pursuant to subsection (b) of section 3 of the Administrative Procedure Act or any other authority. While all interim and final opinions or orders in the adjudica- tion of cases are not published in bound volumes or a subscription service, as described in the answer to question 8, all such opinions or orders are available for inspection. For example, in Bureau of Land Management cases, the de- cisions of hearing examiners, land office managers, and the Appeals Officer are not published in bound volumes or a subscription service. Also4 the decisions of examiners of inheritance on Indian probate matters are not so published, They are, nevertheless, in accordance with published rule, made available for public inspection. Disapprovals of equipment submitted for investigation and tests for permis- 85-701 (30 U.S.C. 641-646) are not disclosed to the public. Disapprovals of equipment submitted for investigation and tests for permis- sibility by the Bureau of Mines pursuant to subchapters B, C, D, and E, of chaper I, title 30, Code of Federal Regulations, which fail to meet the require- ments of the regulations, are not disclosed to the public. Denials of applications for loans for financing and refinancing of operations, maintenance, replacement, repair, and equipment of fishing gear and vessels, pursuant to 16 U.S.C. 742c, are not made available to the public. 5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? In opinions or orders in the adjudication of cases, there may be cited as precedents unpublished opinions or orders. However, in such. situations, the unpublished opinions or orders are made available for Inspection. 6. What is the procedure for making available to the general public the records, and files, interpretations, and legal opinions of your agency? PAGENO="0110" 382 FEDERAL PUBLIC RECORDS LAW Upon request to the Department or to the bureau or office having custody, records and files are made available to the general public subject to the limita- tions set forth in reply to question No, 7. With regard to "interpretations" and legal decisions, see reply to qnestion No. 3. 7. What limitations are placed upon the availability of records and flies to the general public, either by statute, rule, or practice? The following categories of records and files are not made available to the general public: (a) Information classified for reasons of national security. (b) Information provided to the Department by individuals or business firms for use in the preparation of industrywide reports or statistics; Applications for exploration project contracts under Public Law 85-701 (30 U.S.C. 641-646); Data on tests of equipment submitted for investigation a~d tests for per- missibility by the Bureau of Mines pursuant to siibchapters B, C, D, a~nd B, of chapter I, title 30, Code of Federal Regulations; if the equipment fails to meet the minimum standards, neither the name of the company sub- mitting the equipment nor the identity of the equipment tested is disclosed to the public; Financial data contained in applications for loans for financing and refinancing of operations, maintenance, replacement, repair, and equipment of fishing gear and vessels, pursuant to 16 U.S.C. 742c; Certain information incident to procurement and contracting: (1) in sealed, competitive bids, information available to the public is, after bid opening and during evaluation of bids, restricted to the names of bidders, a copy of the invitation and specifications, and the amounts of the indi- vidual bids as received and publicly opened; (2) in negotiated contracts prior to award, no disclosure is permitted of the negotiations in progress; such as, prices quoted, the number of offers received, or the names of offerors; (3) also in negotiated contracts after award is made, only the names of successful contractors and the prices at which awards were made are disclosed (except as otherwise decided by the Office of the Secretary). (c) Information pertaining to fiduciary relation~hij~ with individuals not In the employment of the Department; i.e., individual Indians and Indian Tribes. The following categories of Information while not generally made available to the public may be made available at certain times and under certain con- ditions: (a) Information pertaining to budget estimates prior to their submis- sion to the Congress by the President. (b) Inter- and intra-agency memorafidums. (e) Information pertaining t~ an official action prior to the time a final decision has been made. (d) Files on investigation of alleged irregularities or misconduct of employees. 8. In what circumstances are private parties dealing with your agency re- ~piired in any manner to resort to organization or procedure not published in the Federal Register (see sec. 3(a) of the Administrative Procedure Act)? We are not aware of any instances in which private parties dealing with the Department of the Interior are required in any manner to resort to organi- zation or procedure not published in the Federal Register (sec. 3(a) of the Administrative Procedure Act). 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? The Department has not had any case where it refrained from publishing rules where a function requiring secrecy was involved. 10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency manage- ment, pursuant to section 3(2) of the Administrative Procedure Act or other authority? There are a number of rules and regulations relating exclusively to internal agency management which are not published but instead appear only in the departmental or bureau manuals or in the Secretary's orders. For example, regulations with regard to personnel matters are contained in the Departmental PAGENO="0111" FEDERAL PUBLIC RECORDS LAW 383 Manual and the supplement to the Federal Personnel Manual. These are, how- ever, available to the general public upon request. 11. What is your agency's definition of "official record" as used in section 3(c) of the Administrative Procedure Act? This Department has not had occasion to atteinp to formulate a definition of the term "official record." We agtee however with the following statement in the Attorney General's manual on the Administrative Procedure Act: "In general it may be stated that matters of official record will include (a) applications, registrations, petitions, reports, and returns filed by members of the public with the agency pursuant to statute or the agency's rules, and (b) all documents em- bodying agency actions; such as, orders, rules, and licenses. In formal proceed- ings, the pleadings, transcripts of testimony, exhibits, and all documents received in evidence or made a part of the record are `matters of official record.'" Please provide two copies of every regulation, directive, order, Or other docu- ment issued by your agency to implement 5 U.S.C. 1002. Enclosed are two copies of 303 Dlvi 1-3, Federal Register documents which detail the procedure to be followed in the publication of Federal Register docu- ments. Two handbooks were distributed with this internal manual release; two copies of "The Federal Register Handbook" are enclosed. The other handbook, "How To Prepare Federal Register Documents," used within the Department, contained samples of typical documents published by the Department. It is out of print, and is in the course of being rewritten. No copies are enclosed sinc&- except for the samplen-it merely consisted of material already enclosed (303 DM 1-3, and the 1 CFR quotations in "The Federal Register Handbook"). REPLY FROM DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE, Washington, D.C., March 16, 1965. Hon. JOHN B. Moss, Chairman, Foreign Operations and Government Information ~ubeommittee, Committee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: The Attorney General has asked me to respond on his behalf to your February 12, 1965, letter concerning the Justice Department's im- plementation of section 3, the public Information section, of the Administrative Procedure Act (60 Stat. 238, 5 U.S.C. 1002 (1958)). Answers to each of the questions submitted in your letter are set forth and explained separately In the enclosed response, In accordance with your request, two copies of each document issued by the Department to implement section 3 also are enclosed. These documents are listed in the appendix to the response. If additional information is needed, I shall be pleased to assist in any way I can. Sincerely yours, NORBIeRT A. SOHLEI, Assistant Attornel General, Office of Legal Counsel. 1. Question. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? Answer. Generally, section 3 of the Administrative Procedure Act applies, subject to the exceptions contained therein, to all functions of the Department of Justice. None of the divisions or units of the Department is exempt from the section. Eaplanation.-Section 3 is of universal application. It applies to every "agency" as that term is defined in section 2(a) ; that is, to "each authority (whether or not within or subject to review by another agency) of the Govern- ment of the United States other than Congress, the courts, or the governments of the possessions, territories, or the District of Columbia." It therefore ap- plies to all agencies of the Department of Justice. However, by its terms, sec- tion 3 does not impose disclosure requirements on an~r agency function to the extent that secrecy is required in the public interest, Because of the nature 15 U.S.C. 1001(a). 2 The legislative history explains that the term "public Interest" In the Introductory' exception to sec. 3 means "manifest need in order to achieve the due execution of authorized functions." El. Rept. No. 1980, 79th Cong., 2d sees,, p.22 (1946). PAGENO="0112" 384 FEDERAL PUBLIC RE:OORDS LAW of the functions of the Department, most of its activities involve records and information which cannot be made freely available to the public without in- jury to private or public interests and prejudice to the due execution of author- ized functions. The disclosure requirements of section 3, therefore, are of very limited application to the agencies of this Department. Nevertheless, sec- tion 3 is applicable to all units of the Department, and except to the extent that secrecy is required in the public interest, documents of the Department re- lating to all of its functions are published or are made available to the public in accordance with the disclosure requirements of that section. 2(a). Question. In what official or unofficial publication and at what in- tervals, does your agency publish descriptions of its central and field organiza- tion? (Sec.3(a)(1).) Answer. Descriptions of the central an~ field organization of the Depart- ment of Justice are published in the Federal Register, daily edition, and as changes in organization occur, the descriptions are revised by notice in the daily edition. The descriptions, as amended, are published in the Code of Fed- eral Regulations, which is revised annually (title 28, ch. I, pt. 0). Also, a complete description of the organization of the Department, together with an organization chart, is published each year in the U.S. Government Organization Manual, an annual special edition of the Federal Register. Ea~planation.-A complete description of the organization of the Department was most recently published in the daily edition of the Federal Register for June 1, 1962 (27 F.R. 5161-5176) as a revision of title 28, chapter I, part 0. Since that time, there have been 17 amendments to part 0, and each amend- ment has been published in the Federal Register. Complete descriptions, as amended, were published in title 28 of the Code of Federal Regulations revised as of January 1, 1963, and in title 28 of the code revised as of January 1, 1964. In addition, a complete description Is published annually in the Government Organization Manual, as indicated above (U.S. Government Organization Man- ual, 1964-65, pp. 208-222, 592~. 2(b). Question. In what official or unofficial publication, and at what intervals, does your agency publish statements of the general course and method by which its functions are channeled and determined? (Sec. 3(a) (2).) Answer. The general course and method by which the several functions of the Department of Justice are performed Is described in the daily edition of the Federal Register and annually in the revisions of the Code of Federal Regula- tions, title 8 and title 28, chapter I, parts 1-7, 10-12, 15, 16, 21, 41-44, and 49. General Information relating to the operations of the various units of the Depart- ment is included annually in the descriptions of the organim~tion of the Depart- ment contained In the U.S. Government Organization Manual. (See 2a. above.) Ea~p1anation.-In compliance with the requirements of section 3(a) (2), de- scriptions of the procedures of the Department are separately stated by func- tion or program, for the most part, in the Federal Register and Code of rederal Regulations. Included with these descriptions are rules of practice and pro- cedure and specific instructions issued for the guidance of the public. For a list of the subjects treated in the above-cited parts of title 28, chapter I, see 28 CFR (revised as of Jan. 1, 1964) page 3. 2(c). Question. In what official or unofficial publication, and at what intervals, does your agency publish substantive rules adopted as authorized by law? (See. 3(a) (3).) Answer. Substantive rules issued by the Department of Justice are published in the Federal Register at the time of issuance, and those of continuing applicabil- ity are codified in titles 8 and 28 of the Code of Federal Regulations, revised annually. E~vplanation.-Substantive rules and procedural rules relating to the same program or function of the Department are codified to the same part of title 8, chapters I and II, and title 28, chapter I. For a list of the functions or programs in the administration of which such rules are currently effective, see the list of sections by number and title which appears at the beginning of each part of titles 8 and 28. 2(d). Question. In what official or unofficial publication, and at what inter- vals, does your agency publish statement of general policy or interpretations formulated and adopted by the agency for the guidance of the public? Sec. 3(a) (3).) Answer. Policy statements and interpretations of the Department of Justice adopted for the guidance of the public are published in the Federal Register a~id, PAGENO="0113" FEDERAL PUBLIC RECORDS LAW 385 if of continuing applicability, are codified to titles 8 and 28 of the Code of Federal Regulations, revised annually. Esplanation.-Although part 50, chapter I of title 28 is entitled "Statements of Policy," all such statements are not collected in that part, but instead are gen- erally~codified to the part which pertains to the function or progam involved. For example, see 28 CFR 42.1, setting forth the equal opportunity employment policy of the Department. 2(e). Question. In what official or unofficial pubitcation, and at what in- tervals, does your agency publish rules addressed to and served upon named per- sons in accordance with law? (See. 3(a) (3).) Answer. Apparently the question is inapplicable to the Justice Department. None of its organizational units issues such rules. 3. Question. Please describe the manner In which your agency publishes~ or, in accordance with published rule, makes available to public inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure Act or other authority. Answer. Opinions and orders of the Board of Immigration Appeals and of the Immigration and Naturalization Service which are considered by those agencies to be of precedential significance are published in "Administrative Decisions on the Immigration and Nationality Laws of the United States" (now nine vol- iimes), available for inspection in all field offices of the Service, available in most law libraries, and on sale at the Government Printing Office. Such decisions issued since printing of the most recent volume are referred to as "interim deci- sbus" and are distributed to all persons on themailing list of the Im~iigration and Naturalization Service, and are available to any other persons through all offices of the Service. All interim and final opinions and orders of the U.S. Board of Parole granting or denying certificates of exemption under section 504 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 51G, 29 U.S.C. 504, and 28 CFR 4.15 are available upon request to any member of the public from the Board of Parole. Other decisions of the Board of Parole are available only to the persons concerned. All opinions and orders, interim and final, of the Office of Alien Property are available for public inspection in the Office of Alien Property. E~pZen,a43on.-Seetion 3(b), by its terms, applies only to agencies which con- duct cases of adjudication and prepare opinions or orders in their dééision of those cases. In the Department of Justice, only the Immigration and Naturaliza- tion Service, the Board of Immigration Appeals, the U.S. Board of Parole, and the Office of Alien Property are such agencies. Although the Immigration and Naturalization Service makes in excess of 13.000 determinations each year in ex- clusion and expulsion cases under 8 U.S.C. 1101, 1225(b), 1226, and 1252(b), the great bulk of these decisions are routine and of no precedential significance and are of interest only to the individuals involved. The same is true of the approxI- mately 1,200 decisions each year of the Board of Immigration Appeals. No pur- pose would be served by attempting to make all such decisions publicly available. Therefore, only those opinions and orders which may be useful to practitioners, aliebs, and others interested in the immigration laws are publicly available. The U.S. Board of Parole annually conducts some 13,000 parole and revocation hear- ings under 18 U.S.C. 420B, 4207, 5014, 5020, and 5037. Noopinions are prepared in these cases. The order in each case consists of a duplicated form, indicating only whether the application is granted or denied and is given only to the in- dividual concerned. However, certain eligibility and status information on Fed- eral prisoners and parolees is available in individual cases upon proper inquiry by a party in interest, as prescribed in 28 CFR 2.48. 4. Question. In what types of cases does your agency refrain from publishing interim and final opinions and orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Admin- istrative Procedure Act or other authority? Answer. To the end that the objectives of sound parole administration may be advanced and that protection may be afforded to Federal prisoners and offenders released on parole, orders of the Board of Parole in parole and revocation eases are not published. However, information relating to such orders is disclosed in individual cases upon proper inquiry by a party in interest, pursuant to 28 CFR, 2.48. Otherwise, no opinions or orders in the adjudication of cases by organiza- tional units of the Department are withheld because the Department foels that they are required to held confidential for good cause, within the meaning of sec- tion 3(b) of the Administrative Procedure Act, 45-213~-- 65-pt. 2-----8 PAGENO="0114" 386 FEDERAL PUBLIC RECORDS LAW 5. Que~tion. Iii what circumstances are unpublished opinions and orders cited ~ or used as precedents in other proceedings? Answer. None. E~rplana4ion.-Although, as is explained above, there are a great many orders of the Immigration and Naturalization Service, the Board of Immigration Ap~ peals, and the Board of Parole which are not published, none of these orders is cited or used as precedent in subsequent proceedings. 6. Question. What is the procedure for making available to the general public the records and files, interpretations and legal opinions of your agency? Answer. Interpretations and legal opinions of the Department of Justice which may be of general interest are published in the "Opinions of the Attorney General," available in most law libraries and on sale at the Government Printing Office. Recent opinions not yet included in the bound volumes are available to the public njDon request, to the extent of the available supply of pamphlet copies. Matters of official record are available to the public in accordance with published rules. (See 8 CPR pt. 2 (1953); 8 CFR 103.7, 282.1, 299.2 (1964 sripp.); 8 CFR 501.25(4), 503.1 (1958); 28 CFR 0.7, 3.600, 5.601, 10.10, 11.300, 12.40, 12.41 (1958).) Other information in the possession of the Department is made available to persons properly and directly concerned or to members of the general public, upon request to the Office of the Attorney General, except to the extent that secrecy is required in the public interest or informatiop contained therein is required by statute or other authority to be withheld. J~Ja,planations.-Phe Department of Justice is not an administrative agency in the sense contemplated by the Administrative Procedure Act. Unlike the major regulatory agencies, it is not engaged primarily in the receipt of applica- tions or complaints from the public, the conduct of public hearings thereon, and implementation of the laws committed to its administration through the issuance of rules and orders based upon the records of such hearings, Rather, the princi- pal functions of the Department of Justice include furnishing legal counsel and legal services to the President, the executive departments, and the Government generally, investigating and detecting violations of Federal laws and enforcing those laws, and representing the United States in court actions and appeals gen- erally. As a result, the records and files of the Department do not consist primarily of documents relating to administrative proceedings. Instead, be- cause of the nature of the Department's functions, most of its records Involve functions which require secrecy in the public interest and cannot be made freely available to the general public without injury to public or private interests and prejudice to the proper performance of necessary governmental functions. Nev- ertheless, in recent years the Department of Justice, through its Office of Public Information in the Office of the Attorney General, has made every effort to comply with every reasonable request for information. In furtherance of its policy to make information and records in its possession available to the public to the maximum extent possible? the Department not only makes matters of official record available to persons properly and directly concerned, as required by law. It also makes other information from records and files available to ~flch persons and to members of the public generally, including representatives of the communications media, where such information can be appropriately disclosed. 7. Question. What limitations are placed upon the availability of records and files to `the general public, either by statute, rule or practice? Answer. Certain information critical to the national defense is withheld from the public pursuant to Executive Order No. 10501 and Department of Justice Order No. 279-62, Investigative files and reports generally, including apy In- formation which may identify confidential informants, are not available to the public. (40 Ops. A.G. 45 (1941) ; To'uhy v, Ragan, 340 U.S. 462.) Information relating to the Department's presentation of matters to grand juries is kept secret pursuant to Rule 6(e) of the Rules of Criminal Procedure. A number Of statutes make it a criminal offense for an officer or employee of the Govern- ment to divulge information obtained by them In the course of their employment, or reports, returns, or records filed with their department. See, e.g., 18 U.S.C. 1905 (trade secrets) ; 26'U.S.C. 7213 (a) (income tax returns) ; 26 U.S.C. 7237(e) (narcotics tax returns). Various commercial information received or assembled in connection with departmental functions must be withheld pursuant to these requirements. Section 9(c) of Executive Order No. 10450, of April 27, 1953, 18 P.R. 2489, provides that the reports and other Investigative material and PAGENO="0115" FEDERAL PUBLIC RECORDS LAW 387 information developed in Government employee security investigations shall be kept confidential. 28 CJT'.11. L6 (1963 ed.) provides iii general that the files of the pardon attorney in this Department shall be made available only to officials concerned with the consideration of the petition. Part 1 of title 28, Code of Federal Regulations, was issued as a Department of Justice order with approval of the President (cf. 27 P.R. 11002, 11003). It is therefore more in the nature of an Executive order than of a mere departmental regulation. Internal mem- orandums, analyses, reports, and recommendations generally are treated as con- fidential in furtherance of the pirblic policy of open, frank discussion in the internal handling of administrative matters. See Kaiser Aluminum ci Chemical v. Reynolds (157 F. Supp. 939 (1958)). As legal advisers to the Attorney Gen- eral and to other Federal officials, attorneys in the Department of Justice are subject to Canon 37 of the Canons of Professional Ethics, pursuant to which they are obligated to preserve their client's confidences. Accordingly, a broad range of information which comes into the possession of the Department In con- nection with legal counsel and legal services `must be treated as confidential. (In this copne.ction, see 5 U.S.C. 139h (1958).) Similarly, internal legal advice is privileged from disclosure under the so-called "attorneys' work product" rule. (See Hickman v. Taylor, 329 U.S. 495.) Alien registration and fingerprint rec- ords are required `to be held confidential by section 264(b) of the Immigration and Nationality Act, 66 Stat. 224, 8 U.S.C. 1304(b). Since section 236(a) of that act (8 U.S.C. 1226(a)) provides that `hearings in exclusion cases shall be kept "separate and apart from the public," `information developed in such pro- ceedings is treated as confidential except to the extent that the respondent con- sents to its publication. As is indicated above, records and information relating to parole hearings are withheld from the public for the reasons set forth in 28 C.F.R. 2.48. Although `the settlement of civil litigation to which the United States is a party is made a matter of public information, and although papers filed in civil actions and criminal pr'osecutions are, of course, matters of public record, files, memorandum, and other documents relating to the Department's conduct of litigation on behalf `of the United States and agencies thereof are withheld to the extent that secrecy is required in `the public interest~ (See "Hearings Before the Special Subcommittee to Investigate the Department of Justice of the House Committee on the Judiciary," 83d Cong., 1st ses's., ser. 2, pt. 2, 2433 (1953). See also "Federal Statutes on the Availability of Informa- tion, House Committee `on Government Information Operations," 86th Cong., 2d sess. (Committee print, March 1960).) Ea,planation.-See the explanation which appears under 6, above. 8. Question. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not pub- lished in the Federal Register? (Sec. 3(a).) Answer. None. 9. Question. In what types of cases has your agency refrained from pub- lishing rules where there is involved any function of the United States re- quiring secrecy in the public interest, pursuant to section 3(1) of the APA or other authority? Answer. The Department of Justice has only one outstanding rule which has been withheld from publication because it involves a function of the United States requiring secrecy in `the public interest. This is an organizational order establishing the emergency chain of authority for the performance of the functions of the AttOrney General in the event of a civil defense or other emergency which prevents the operation of the Department at the seat of Government. Ea~planation.-The Executive Office for United States Attorneys, the Execu- tive Office for United States Marshals, the Federal Bureau of Investigation, the Immigration and Naturalization Service, the Board of Parole, the Bu- reau of Prisons, and other organizational units of the Department have issued extensive directives `and instructions to staff and field offices which are not publicly available and in many respects concern the performance of functions which require secrecy in the public interest. However, none of these is a rule which imposes obligations upon members of the public. Rather, they are in the nature of operating instructions to officers and staff of the Department. 10. Question. In what circumstances has your agency refrained from pub- lishing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of `the APA or other authotity? Answer. The Department of Justice "Index to Orders and Memoranda," 1964, lists the directives which have been issued by the Attorney General, the PAGENO="0116" 388 FEDERAL PUBLIC RECORDS LAW Deputy Attorney General, the Adn~nistrative Assistant Attorney General, and~ the beads of the Department's operating units. These directives cover the~ ~whole spectrum of "houseleeeping" functiQns, including budget, fiscal, and accounting procedures, personnel matters, property administration, operational instructions, and so forth. In some cases, rules relating to matters of internal management have been published. See, for example, 28 C.F.R. part 15 (defense of suits against Feleral employees arising out of their operation of motor vehicles), part 42 (equal employment opportunity policy and procedure), part 44 (employee-management cooperation in the Department), and part 46 (em- ployee grievance procedure), even though such rules govern only Federal agencies and employees. In most instances, such rules have not been published because they are of no interest to the general public. Eeplanation.-In many instanees~ directives issued by the Department are not "rules" within the meaning of APA section 2(c), since they do not "implement,. interpret, or prescribe law or policy or describe the organization, procedure, or practice requirements" of the Department. Instead, as in the case of the directives referred to in 9, above, they are merely instructions to staff. 11. Question. What is your agency's definition of "official record" as used in~ section 3(c) of the AP&? Answer. The "Attorney General's Manual on the Administrative Procedure Act," 1947, defines "official record" as follows (at pp. 24-25) * * * In general, it may be stated that matters of official record wilF include (a) applications, registrations, petitions, reports, and returns filed by members of the public with the agency pursuant to statute or the agency's rules, and (b) all documents embodying agency actions, such as orders, rules, and licenses. In formal proceedings, the pleadings, transcripts of testimony,. exhibits, and all documents received in evidence or made a part of the record are `matters of official record.' * * * * * * * The great mass of mate~ia1 relating to the Internal operation of an agency Is not a matter of official record. For example, Intra-agency memorandums and reports'prepared by agency employees for use within the agency are not official records since they merely reflect the research and analysis pre- liminary to official agency action. Intra-agency reports of investigatlona are, in general, not matters of official record; * * APPENDIX DOCUMENTS ISSUED nr THE DEPARTMENT or JUSTICE IMPLEMENTING SECTION 3 or THE ADMINISTEATIVE PROCEDURE ACT 1. Order 3695, supplement 7, December 21, 1948 (public inspection of registra- tion statements of certain organizations carrying on activities within the United States), 28 CFR 10.10. 2. Order No. 3229 (revised), January 13, 1953 (snbpena of information from the files of the Department of Justice (superseded by order No. 260-62, listed below), 18 F.R. 1368. 3. Order No. 3464, supplement No. 4 (revIsed), January 13, 1953 (release of certain information from the files upon specific authorization of the Attorney General only). 4. Memorandum of January 13, 1953; authorization under order No. 3464, sup- plement No. 4 (revised), (delegating to all attorneys of the Department of Justice In charge of litigation authority to reveal information from Department files to the extent necessary to discharge their duties). 5. Order No. 116-56, May 15, 1956 (cooperation with congressional committees). 6. Order No. 124-56, August 6, 1956 (registration of persons having knowledge of foreign espionage or sabotage and public examination of registration state- ments), 28 CFR 12.40 and 12.41. 7. Order No, 138-56, December 13, 19116 (registration of foreign agents and public examination of registration statements), 28 CFR 5.600 and 5.601. 8. Memo No. 243 to all U.S. attorneys, January 81, 1958 (production of state- ments and reports of witnesses in criminal cases under the Jeneks law). 9. Memo No. 276 to all U.S attorneys, March 24, 1960 (disclosure of informa- tion in FBI reports to Federal officials). 10. Order No. 246-61, June 29, 1961 (consent judgment policy), 26 FIt. 6026. 11. Order No. 250-61, October 8, 1961 (registration of Communist organizations and certain members thereof and public inspectioh of registers), 26 F.R- 9509. PAGENO="0117" FEDERAL PUBLIC ItECoItDS LAW 389 12. Order No. 260-62, January 19, 1962 (subpena of information in Department ~files), 27 P.R. 774. (See 17 below.) 13. Order No. 271-62, May 29, 19~2 (Department of Justice statement of orga- nization), 27 P.R. 5162. 14. Order No. 288-62, October 18, 1962 (executive clemency), 27 E~1~L 11002. 15. Order No. 291-62, December 13, 1962 (amendments to the Department's organization statements as It relates to the Antitrust Division), 27 P.R. 12617. 16. Order No. 308-63, December 12, 1963 (adding certain kinds of banks to those to which the FBI makes available fingerprint record information), 28 P.R. 13769. 17. Order No. 324-64, October 8, 1964 (superseding order No. 260-62 relating to the production of material in response to a subpena or other demand), 29 ~F.R. 14027. REPLY Fnoi~x DEPARTMENT OF LABOR U.S. DEPARTMENT or LABOR, OFFICE OF THE SECRETARx, Wa~hington, D.C., March 16, 1965. `Hon. Jo~x E. Moss, Chairman, Foreign~ Opera~tions and Government InformaUon Bubcommitt `cc, Oom~ mittee on Govern4nent Operati.on~, House of Representatives, Wathington, D.C. DEAR MR. CHAIRMAN: In accordance with the request in your letter of Feb- ruaryl2, 1965, we have prepared the attached material in response to the ques~ tions in your letter concerning the relationship of the programs within this Department's responsibility under the public information section of the Admin1s~ :`trative Procedure Act. If you need further information, we shall of course `be happy to provide it. Sincerely, W. W~LLAE5 Wnrrz, Secretary of Labor. MATERIAL RELATING TO CONGRESSMAN Moss' LETTER OF FEBETTAItY 12, 1965, FRoM THE Dmnu~PMENT o~ LABOR By way of introduction, `it is pointed out that the only exception `to section 3 of the Administrative Procedure Act `which affects the programs with which tliis Department is concerned is the one for "(2) any matter relating to the Internal management of an agency." Question 1. Generally, to what functions o'f your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of your `agency to which the section does not apply? Answer 1. `Section 3 applies to all rules of the kind described in subsection (a) ~`of that section which are issued by this Department to implement: (1)The Fair Labor Standards Act of 1938; (2) Federally administered acts affecting labor standards on public con- tracts; (3) `Title XV of the Social `Security Act; (4) Federally administered Workmen's Compensation Acts; (5) The Farm Labor Contractor Registration Act of 1963; (6) The Wagner-Peyser Act; (7) The Manpower Development and Training Act; (8) Title VI of `the Civil Rights Act of 1964; (9) The Trade Expansion Act of 1962; (10) The Welfare and Pension Plans Disclosure Act; (11) The Labor-Management Reporting and Disclosure Act of 1959; (12) The Area Redevelopment Act; and (13) The Economic Opportunity Act of 1964. Section 3 also applies to final opinions and orders in the adjudication of cases `issued to implement the statutes referred to in (1) through (11) above. Tbe1~e are no activities affecting the public to which the Section does not aptly. Inter- pretations, standards, and policies issued for the guidance of State governments under the Social Security Act, and the Federal Uneniplo~xnënt Tax Act are not considered rules issued for the guidance of the public. They are, therefore~ furnished directly to the appropriate State agencies and not otherwise published. PAGENO="0118" 390 FEDERAL PUBLIC RECORDS LAW Question 2. In what official or unofficial Publication, and at what intervals, does your agency publish: (a) Descriptions of its central and field organizatj~~ (see sec. 3(a) (1) of the Administrative Procedure Act); (b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute); (c) Substantive rules adopted as authorized by law (see sec. 3(a) (3) of statute) (d) Statements of general poUcy or interpretations formulated and adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statute) ; and (e) Rules addressed to and served upon named persons in accordance with law (see sec. 3(a) (3) of statute)? Answer 2(a). This information is published annually in the Government or- ganization manual edition of the Federal Register. Answer 2(b). They are published in the daily issues of the Federal Register and as amendments to the Code of Federal Regulations when issued. (See app. XI.) Answer 2(o). They are Published as amendments to the Code of Federal Reg- ulations when issued. Where substantial public interest is expected, printed copies are also made available upon request. (See app. II.) Answer 2(d). Same as (o). Answer 2(e). Copies of wage determinations for' laborers and mechanics to be employed under particular construction contracts are served upon the agency letting or administering the contract. Such agency includes the determinations in the advertisements for bids. Copies of wage deterrujna~jo~5 reviewed by the Department of Labor's Wage Appeals Board, the rules of which are published in 29 OFR part 7, are maintained for public inspection and are distributed widely to interested trade associations, employee organizations, governnjenta~ agencies, and other interested persons. No other rules of this kind are issued by this Department. Question 3. Please describe the manner in which your agency publishes, or, in accord~nce with pnbiishe~ rule, makes av~ailable to public inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure Act or other authority. Answer 3. In accordance with published rule (29 OFR 2.7), they are made available during business hours upon written request. Some orders are also published by private labor law reporting services. Question 4. In what types of cases. does. your~age1~y refrain from, publishing interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Admin- iStrative Procedure Act or other authority? Answer 4. None. Question 5. In what circumstances are unpublished Opinions and orders cited or used as precedents in `other proceedings? Answer 5. Unpuhlish~~ opinions are often used for guidance in responding to requests for information and interpretati~~5 Question 6. What is the procedure for making available to the general public the records and files, interpretations and legal opinions of your agency? Answer 6. Interpr~~al~io~.5 and legal opinions are made available through publication of interpretative bulletins in the Code of Federal Regulatio~s~ letters to members of `the public and by answers `to oral inquiries. Significant inter- pretation~s and legal opinions are given wide distribu~tion to various trade associations, employee organi~atjo~~ governmen~a~ agencies, and interested per- sons. Such Opinions and interpretations are also furnished t~ the various~ com- mercial reporting services. Arraugeme~~~ are made to permit inspection of a copy of a past interpretation or legal opinion upon written request to the Department. A record or file may likewise be inspected unless the Solicitor d~termines that it should be held confidential. Oopies of `accounts, letters, records, files, and other documents or papers are furnished only by permission of the Solicitor upon his consideration of an applieatio~ showing the reason why and the purpose for which the copies are desired. (See 29 OFE 1.15, 2.4, 2.6, 2.7, and 2.9, and 20 CFR 501.8; see app. I.) Reports required to be filed by the ~ Reporting and Disclosure Act of 1959 and Welfare and Pension Plans Disclosure Act are available for inspection in a public docu- ment room main'tajned by the Office of Labor M a~ge~ej~t and Welfare.pensjon PAGENO="0119" FEDERAL PUBLIC RhCORD~ LAW 391 Reports, and copies of such reports may be ordered at a cost of 25 cents per page, Question 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice? Answer 7. In general, no limitations are placed on the availability of "offi- cial records" of the kind to which section 3 applies. The Secretary's, Bureau Director's, or Solicitor's discretion applies with reference to other records (see delegation of authority of 27 FR. 1505). Information obtained in confidence is not made available to the public. More particularly, limitations upon availability of files and records to the general public are expressed in 29 CFR 2.4, 2.5, 2.6, 2.9, and 5.6 and 20 CFR 1.21 and 1.22, and 501.8 (see app. I). It is also considered that the Department is subject to the restrictions found in 18 U.S.C. 1905 and 5 U.S.C. 139b. Confiden- tial treatment recorded "investigatory files eothpiled for law enforcement pur- poses" (cf. ER. 5012) is buttressed by the common-law informers privilege. Wirt~ v. McDa4e, 330 F. 2d 610; Wirtz v. Continental Finance c~ Loan Co., 326 F. 2d 561; Wirtz v. B. A. C. Bteet PrOducts, 312 F. 2d 14. Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register (see see. 3(a) of the Administrative Procedure Act)? Answer 8. None. Question 9. In what types of cases has your agency refrained from publishthg rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer 9. None. Question 10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency man- agement, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer 10. Rules concerning the methods by which employees of the De~ partment are to carry Qut their duties are generally not made public (e.g, bow an investigator should look for minimum wage violations or what assignments require special priority). Question 11. What is your agency's definition of "official record" as used in section 3(e) of the Administrative Procedure Act? Answer 11. We have no established definition. however, page 24 of the At- torney General's Manual on the Administrative Procedure Act is used for guidance. REPLY FROM POST OFFICE DEPARTMENT Posr Orrion DEPARTMENT, OFFICE OF Ti~ GENERAL CouNSEL, Washington, D.C., April 5, 1965. Hon. 3~ou~ E. Moss, Chairman, Foreign Operations and Government Information ~S'ubcommittee, Com- mittee on Government Operations, House of Representatives. DEAR Mu. CHAIRMAN: This is in reply to your letter of Feburary 12, 1965, re- questing information with respect to the applicability of ~edtion 3 of the &dmin- istrative Procedure Act of 1946 to the functions and administration of this Department. The following are replies to the 11 questions submitted by your subcommittee: 1. Section 1002 of title 5, United States Code (1) requires the publication of organization, procedures, and substantive regulations in the Federal Register, (2) provides for the publication or inspection of orders in the adjudication of cases, and (3) makes official records available to the public. These provisions are considered applicable to the functions of this Department generally and to its Bureaus and other subdivisions. 2, (a) The Departmeut's central and field organization descriptions are pub- lislied in the Federal Register, the United States Government Organization Manual, and chapter 8 of the postal manual. (b), (o), (d) Statements of the general course and method in the channeling and determination of Department functions, substautive rules as adopted and PAGENO="0120" 392 FEDERAL PUBLIC RECORDS LAW authorized by law, and the Department's g~neral policy statements and interpre- tations formulated for public guidance are (1) published in the Federal Register, (2) codified in the Code of Recleral Regulations, and (3) published in the poStal manuaL (e) Rules addressed to and served upon named persons in aceordabce with law are in most instances published in the Postal Bulletin. A description of the De- partment's organization is published annually in the United States Qovernment Organization Manual. Changes In organization are shown as they occur in other publications. 3. Pursuant to rules published In 39 Code of Federal Regulations 201.33 and 204.25, orders issued by the Department in administrative fraud, lottery and obscenity proceedings, and in proceedings relating to the issuance and revocation of second-class mailing permits, are available for public inspection in the De- partment's law library. 4. None. 5. None, other than those made available for inspection in accordance with published rules. & The Department's procedure to make its records and files available to the public is outlined In sections 4.3 and 4.4 of title 39, Code of Rederal Regulations. Letters to members~ of the public frequently contain interpretations and legal opinions. No provision is made for disseminating current legal opinions, except to the extent that they are embodied in regulations published in the Federal Register and the postal manual. Selected opinions of the Department's chief legal officer. however, are available In bound volumes up to and including the year 1951. `t. Section 4.3 and 4.4 of title 39, Code of Federal Regulations, place the limita- tions on the availability of records and files to the general public. 8. None. i~. The Depaftment~has réfrahied froni~ publishing rules~on the grounds that they involve functions requiring secrecy in the public interest only in the ease Qf certain national emergency planning. 10. The Department has generally refrained from publishing rules In the * Federal Register on matters it considers relating solely to internal agency management. These regu'ations, however, are published in the Department's Postal Bulletin, Postal Manual, its Regional Manual, and various handbooks, which are available for public inspection. 11. The Department has not formulated a comprehensive definition of "of- ficial record" as used in section 3(c) of the Adhiinistratlve Procedure Act. There are enclosed two copies of each of the following: A. Parts 114 and 115 of the Postal Manual, which are identiaci to parts 4 and 5 of title 39, Code of Federal Regulations; B. Subsection (b) of section 201.200 of title 3D, Code of Federal Regulations; 0. Sections 201.32 and 201.38 of title 39, Code of Federal Regulations; and D. Sections 204.24* and 204.25 of title 39, Code of Federal Regulations. Sincerely yours, HARvEY H. HANNAh, Acting General Co'unaal. REPLY FROM DEPARTMENT OF STATE DEPARTMENT or STATR, WasMngton, D.C., Marc!,, 26, 1965. Hon. f0EN B. Moss, Chairman, ~ubcomin~ittee on Foreign Operations and Government Information, House of Representatives, Washington, D.C. DEAR CONGRESSMAN Moss: Further reference is made to your letters of Febru- ary 12, 1965, concerning agency compliance with the Administrative Procedure Act. The Department publishes or otherwise makes available to the public, rules, regulations, procedures, notices, and information which are considered of specific or ge~oral interest to, and affect tbe public, including protection and welfare of tt.S. citizens, their property and estates abroad, shipping and seamen, visas, nationality and passports, international educational exchange, economic, c~m- m~~ciaI, and civil aviation services, international tratlle in arms, and many, others. PAGENO="0121" FEDERAL PUBLIC RECORDS LAW 393 `There are, of course, a number of li~isions, offices, and bureaus in the Depart- ment which are engaged in certain activities falling within the e~ceptions con- tained in 5 U.S.C. 1002; i.e., (1) functions requiring secrecy in the public interest and (2) matters relating solely to' the internal management of the Department. The Department and its Foreign Service are concerned almost exclusively with the performance of foreign affairs functions which necessarily have a direct bearing on our relations with foreign governments, their citizens and representa- tives, and international organizations. The protection of sensitive information In the files of the Department and the maintenance of the sources which protide such information must be continued and judgment exercised in disclosing infor- mation relating to such matters. In addition, there is a considerable amount Of information, rules, regulations, and procedures in day-to-day use which axe con~ cerned solely with the internal management. Our replies to the specific questiOns raised are as follows: 1. Question. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, ox other constituent units of your agency to which the section does not apply? AnswerS 5 U.S.C. 1002 applies generally to all functions of the Department of State; there are no constituent units to which it does not apply. 2. Question. In what official or unofficial publication, and at what intervals. does your agency publish? (a) Descriptions of its central and field organization (see sec. 8(a) (1) of the Administrative Procedure Act. Answer. A description of the Department's organization is published from time to time in the U.S. Government Organization Manual. The Depart- ment of State's field organization is published in the Federal Register from. time to time as substantive changes are effected. (b) Statements of the general course and methods bl~ which functions are channeled and determined (see sec. 3(a) (2) of statute). Answer. Annually in the U.S. Government Organization Manual, and as necessary In the Department's regulations. (c) Substantive rules adopted as authorized by law (see see. 3(a) (3) of statute). Answer. Substantive rules of concern to the public adopted as authorized by law are published in the Federal Register. These rules and procedures are also published in the Department's manuals of regulations. (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statute). Answer. These statements are published in the Federal Register. (e) Rules addresed to and served upon named persons in accordance with law (see sec. 3(a) (3) of statute). Answer. Not applicable to the Departmentof State. 3. QuestIon. Please describe the manner in which your agency publishes, or, In accordance with published rule, makes available to public inspection, all final and interim opinions or orders In the adjudication of cases, pursuant to see. 3(b) of the Administrative Procedure Act or other authority. Answer. (Inserted after question 5.) 4. Question. In what types of cases does your agency refrain from publishing interim and final opinions or orders where, in the opinion of your agency good cause requires they be held confidential, pursuant to section 3(b) of the Admin- istrative Procedure Act or other authority? Answer. (Inserted after question 5.) 5. Question. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? Answer. Based on our discussion with `Mr. Archibald, questIons 3, 4, and ~ appear to be more applicable to agencies having broad domestic regulatory powers. The domestic administrative functions performed by the Department of State in the public's interest do not entail the use of precedents except as applicable to the issuance of U.S. passports. However, all passport regulations having as their basis opinions, orders, and precedents are published in the Federal Register. 0. Question. What is the procedure for making available to the general public the records and flies, interpretations and legal opinions of your agency? Answer. Historical reeord~ of the Department are madoavailable to the public when they are transmitted periodically to the National Archives. They are also made available to scholars at an earlier date. In addition, there are pub- lished from time to time volumes of Foreign Relations of the United States, PAGENO="0122" 394 FEDERAL PUBLIC RECORDS LAW American Foreign Policy, digests of international law, United States Treaties and Other International Agreements, and many other publications. Interpreta- tions and legal opinions of the Department are for the use of the Secretary and other officials and are not generally made available to the public. Interpreta- tions and opinions are often used or referred to in publications of the Depart- ment, however, in correspondence with the public, and in other ways. Inquiries from the public are treated on an ad hoc basis; information is made available depending on the nature of the inquiry and on whether making the information available would be in the national interest and not contrary to the provisions of Executive Order 10501, as amended. 7. Question. What limitations are placed upon the availability of records and files to the general public, either by statute, rules or practice? Answer. The Department does not make any records or files available to the general public when publication would be prejudicial to the national interest in foreign affairs or contrary to the provisions of Executive Order 10501, as amended. 8. Question. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not pub- lisbed in the Federal Register (see sec. 3(a) of the Administrative Procedure Act)? Answer. It has been the Department's policy to publish in the Federal Reg- ister all information needed by the public to deal effectively with the Depart- ment. We believe the Department has been successful in this endeavor, but in view of the subcommittee's interest, we are making a careful review to con- firm that no matter which should have been published in the Federal Register has been omitted. 9. Question. In what types of cases has your agency refrained from publish- ing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. Not applicable to the Department of State. 10. Question. In what circumstances has your agency refrained from pub- lishing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer. The Department has refrained from publishing in the Federal Reg- ister any rules relating solely to internal management unless required by statute. The Department's regulations for internal management contain rules and proce~ dures for the conduct of foreign affairs in the United States and abroad. They pertain, for example, to physical security practices, fiscal procedures, conduct of employees, personnel preformance measurement, buildings mam~agement, and reporting procedures. Although not in a form convenient for public distribution, the regulations are available for public review except where the security of the United States might be endangered by publicity of procedures designed to protect the national interests. 11. Question. What is your agency's definition of "official record" as used in ~section 3(a) of the Administrative Procedure Act? Answer. The Department follows the Attorney General's definition which Is as follows: "The term `official record' is defficult of definition. In general, it may be stated that matters of official record will include (a) applications, regia. trations, petitions, reports, and returns filed by members of the public with the agency pursuant to statute or the agency's rules, and (b) all documents embodying agency actions such as orders, rules, and licenses. In formal pro- ceedings, the pleadings, transcript of testimony, exhibits, and all documents received in evidence or made a part of the record are `matters of offlcial record.' The great mass of material relating to the internal operation of an agency is not a matter of official record." (See sec. 3(c) of the Attorney General's Manual on the Administrative Procedure Act) As requested in the last paragraph of your letter, I am enclosing two copies of the Department's regulation relating to 5 U.S.C. 1002. This regulation is extracted from volume 2 of the Foreign Affairs Manual, section 1120. Sincerely yours, DouGLas MACARTUTJR II, Assistant £4ecrctary for Congressionel Relations. PAGENO="0123" FEDERAL PtBLIC RECORDS LAW 395 Rnrix FROM PEACE CORPS APRIL 20, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operations and Government information ~ubeommittee, Committee on Gove~hmen~t Ofierofions, HoRse of Fepro~entcs~tives, Washing~ ton, D.C. DEAR Mn. CHAIRMAN: This is in response to your February 12, 1965, letter inquiring about the applicability to the Peace `Corps of section 3 of the Adminis- trative Procedure Act, 60 Stat. 238 (1946), 5 U.S~C. 1002 (1958). Permit me first to apologize for our delay in making this response. Question 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there `any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? Answer. Section 3 of the Administrative Procedure Act (APA) applies generally to all Peace Corps functions and all Its constituent units. By its terms, Administrative Procedure Act section 3 is not applicable to functions "requiring secrecy in the public interest" or to "matters relating solely to the internal management" of `the Peace Corps. (iSee answers to questions 9 and 10, below.) Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (a) Descriptions of its central and field organization. (See sec. 3(a) (1) of the Administrative Procedure Act.) Answer. The U.S. Government Qrganization Manual, published annually as a special edition of the Federal Regt~ter, lists the principal Peace Obrps officers (pp. 73-74 of the June 1, 1964, edition) and contains a description of the Peace ~Oorps' organization (pp. 92-93 of the June 1, 1964, edition) and an organization chart (p. 617 of the June, 1964, edition). The following Peace Corps delegations of authority have been published in the Federal Register: (1) Delegation of authority to the Directors of Contracts, Budget and Finance, and Administrative Services Divisions, as to contracts, leases, and so forth, 26 P.R. No. 52, page 2321 (Mar. 18, 1961). (ii) Delegation of authority to Peace Corps representatives overseas as to negotiating and signing certain contracts, leases, and so forth, 26 P.R. No. 126, page 5975 (July 1, 1961). (iii) Delegation of authority to the Associate Director for Peace Corps volunteers and the Director of the Division of Volunteer Support to approve and sign contracts to transport applicants for enrollment as Peace Corps volunteers, 28 F.R~ No. 238, page 13372 (Dec. 10, 1963). Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (b) Statements of the general course and method by which its functions are channeled and determined? (See sec. 3(a) (2) O~ statute.) Answer. The Peace Corps Representatives' Manual (in continuous revision) contains Peace Corps documents as to the general course and method by which Peace Corps functions are channeled and determined. The Peace Corps Hand- book also contains statements about such matters. It is primarily intended for distribution to Peace Corps volunteers and trainees. It is revised annually or biannually. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (c) Substantive rules adopted as authorized by law. (See sec.3(a) (3) of statute.) Answer. It is not clear that the Peace Corps adopts substantive rules within the meaning of the Administrative Procedure Act section 3(a) (3). certainly, it is doubtful if the Peace Corps engages in "rulemaking" within the meaning of Administrative Procedure Act sections 4 and 2(c). In any case, Adminis- trative Procedure Act section 4 is inapplicable to foreign affairs functions. Nevertheless, both the Peace Corps Representatives' Manual and the Peace corps Handbook contain comprehensive statements of general policies. Question 2. "In what official or unofficial publication, and at what intervals, does your agency publish: (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public. (See see. 3(a) (3) of statute.) Answer. See the answers to the preceding questions. In addition to the "Peace Corps Representatives' Manual" and the "Peace Corps Handbook," Peace Corps policies are also set forth in the Peace Corps' yearly congressional presentation; PAGENO="0124" 396 FEDERAL PUBLIC RE:COEDS LAW the Peace Corps annual report transmitted to the Congtess by the Presideulr pursuant to section 11 of the Peace Corps Act ; the "Peace Corps Facts" book (in continuous publication); Peace Corps program descriptions (describing par- ticular projects) ; and Peace Corps informational brochures (describing specific opportunities for service by persons with certain skills or backgrounds). Question 2. In what official or unofficial publication, and at what intervals,. does your agency publish: (e) Rules addressed to and served upon named persons in accordance with law? (See sec. 3(a) (3) of statuteS) AnswOr. The Peace Corps does not address rules to or serve them upon any persons. Question 3. Please de~cri'be the manner In which your agency publishes, or, in accordance with published rule, makes available to public inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure Act or other authority." Answer. FIrst, it should be noted that question 3, as well as questions 4 and 5, appear to be primarily applicable to agencies with broad domestic regu1atory~ funotions. The Peace Corps, of course, does not exercise any such functions. As to question 3, the exact meaning of "adjudication of cases" is not at all clear. In our best judgment, the Peace Corps does not engage in the "adjudica- tion of cases" as that term is discussed in the Attorney General's Manual on the Administrative Procedure Act (1947) and the Administrative Procedure Act, legislative history (S. Doc. No. 248, 79th Cong., 24 sess. (194(3)). Certainly,. the Administrative Procedure Aot, section 5 is generally Inapplicable to the~ PeaceCorps either `because few statutes require its adjudications to be deterinlued on a record or because of the foreign afilairs functions exception. Question 4. In what types of eases does your agency refrain from publishing interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to `section 3(b) of the Admin- istrative Procedure Act or other authority? Answer. The Peace Corps has made no determination as `to any types of cases in which It should refrain from publishing Interim and final opinions or orders where good cause requires that they be held confidential. (See answer to question 3.) Question 5. In what circumstances are unpublished opinions and `orders cited~ or nse~l as precedents in other proceedings? Answer. As we understand this question, it derives from the parenthetical' phrase in the Administrative Procedure Ant section 3(b). Therefore, `see answer to questions 3 and 4. In any case, `the Office of `the General Counsel of the Peace Corps doeS from time to time cite its prior opinions. All of its opinions are unpublished, `but almost all are unclassified and `hence available on request to persons properly and directly concerned. Most of these opinions, however, relate to the internal management of the Peace Corps. Question 6. What is the procedure for making available to the general public the records and files, interpretations and legal opinions of your agency? Answer. A request from a member of the general public to see Peace Corps records and flies should be addressed to the Director of the Division of Public Information, Office of Public Affairs. A request to see legal opinions should be addressed to the General Counsel of the Peace Corps. (See answer to~ question 7.) Question 7. What limitations are placed upon the availability of records and~ files to the general public, either by statute, rule, or practice? Answer. Section IV(4) of the "Standards of Conduct for Peace Corps Em- ployees," issued by the Director of the Peace Corps on October 19, 1961, states : "Employees must not withhold unclassified information from the press~ or public. Employees should be certain that information given to' the press or public is accurate and complete. The Chief of Public Information should, however, be consulted before any release of Peace Corps information." This standard appears to be more liberal than that required by section 3(c) of the Administrative Procedure Act which states that "matters of official record" shall be made available to "persons properly and directly concerned' except information held confidential for good cause shown." The Peace Corps~ is, of course, restricted from disclosing classified information to members of the general public by Executive Order No. 10501, as amended. In addition, the Peace Corps limits to official use certain matters of a type that depart- ments traditionally protect and must contihue to protect. See section 3 of Foreign Affairs Manual Circular No. 117 of April 9, 1963. In making informa- tion available to the public, consideration is sometimes given to the requester's PAGENO="0125" FEDERAL PUBLIC RECOE~S LAW 397 need and the :purpose to which he proposes to pt~t the requested information. Question 8. in what circumstances are private parties dealing with your ;agency required in any manner to resort to organization or procedure not pub- lished in the ]?ederal Register? (See see. 3(a) of the Administrative Procedure ~Act.) Answer. We presume that the basis of the question is the last sentence of1 ~the Administrative Procedure Act, section 3(a), which provides that no person shall in any manner be required to resort to organization or procedure not pub- lished in the Federal Register. We understand this requirement is intended to protect "the public from being required to pursue remedies that ~tre not generally known" (S. Doe. 24, 79th Cong., 2d, seas. (1946). To the best of our knowledge no such circumstances exist. We have been unable to con- ceive of a case where a private party, as opposed to a Peace Corps volunteer or trainee or a Peace Corps employee, must resort to Peace Corps organization or procedure not published in the Federal Register to protect his rights. We do intend, however, to review the Peace Corps contractipg procedures from the point of view of section 3(a). Question 9. In what types of cases ha~ your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. No such case is known. Question 10. In what circumstances has your agency refrained from publishing I rules where there is involved any matter relating solely to internal agency man- agement, pursuant to section 3(2) of the Administrative Procedure Act or other ~authority? Answer. As stated in the answer to question 2, it is not clear that the Peace Corps engages in "rulemaking" within the meaning of the Administrative Pro- cedure Act. In any event, the Peace Corps has generally published in the "Peace Corps Representatives' Manual," the "Peace Corps Handbook," and other Peace Corps documents referred to in previous answers, its important standards or procedures. rfhe Peace Corps does not, however, publish in the Federal Register material about any matter which relates solely to the internal management of the Peace Corps. Question 11. What is your agency's definition of "official record" as used lh ~section 3(c) of the Administative Procedure Act? Answer. The Peace Corps is guided by the Attorney General's explanation of "official record": "The term `official record' is difficult of definition. In general, It may be stated that matters of official record will include (a), applications, registra- tions, petitions, reports, and returns fUe~ by members of the public with the agency pursuant to statute or the agency's rules; and (b) all documenta embodying agency actions, such as orders, rules, and licenses. In formal proceedings, the pleadings, transcripts of testimony, exhibits, and all docu- `ments received in evidence or made a part of the record are `matters of official record,' "Section 3(c) does not purport to define `official record' Each agency must examine its functions and the substantive statutes under which it operates to determine which of Its materials are to be, treated as matters of official record for the purposes of the section. Indicative of the types of records which are considered official records by Congress are maps, plats, or diagrams `in the custody of the Secretary of the Interior (5 IJ.S.C. 488) ; records, books, or papers in the General Land Office (28 U.S.C. 672) ; and registration state- ments filed with the Securities and Exchange Commission under the Securi- ties Act (15 U.S.C. 77f). "The great mass of material relating to the internal operation of an agency is not a matter of official record, For example, Intra-agency memo- randuma and reports prepared by agency employees for use within the agency are not official records since they merely reflect the research and `analysis preliminary to official agency action. Intra-agency reports of in- vestigations are, In general, not matters of official record; in addition they usually involve matters of internal management anti, in view of their nattire, must commonly be kept confidential" (Attorney General's Manual on the Administrative Procedure Act 24 (1947)). In response to the request In the last paragraph of your letter, the Peace Corps has not established any regulation, directive, or order implementing Ad- ininistrative Procedure Act, section 3. But it follows the regulations established PAGENO="0126" 398 FBDERAL PUBLIC RE~CORDS LAW in this regard by the Department of State. (See 2 Foreign Affairs Manual, sec. 1120, a copy of which in attached.) I hope that the foregoing will provide the information you wish. Again please accept my apo1ogies~for our delay in responding to your February 12 letter. Sincerely yours, WILLIAM JOSEPHSON, General Counsel. REPLY FROM AGENCY FO~t INTERNATIONAL DEVELOPMENT AGENCY FOE INTERNATIONAL DEVELOPMENT, DEPAIiTMENP OF STATE, Washington, D.C., March, 24, 1965. Hon. JOHN B. Mosp, Chairman, Foreign Operations and Government Information ~ubeoinmittee, Conwnittee on Governxm~ent Operations, House of Representatives. DEAR Mn. CHAIRMAN: In further response to your letter of February 12, 1965, I am sending you herewith an AID staff paper which supplies answers to thefl questions set forth in your letter. Copies of the documents which you have~ requested are being sent to you separately. I appreciate the long interest of your subcommittee in promoting the avail- ability of information from Federal departments and agencies. In administer- ing the Agency for International Development it has been our objective to make - information available to the maximum extent possible. To this end and totally aside from the technical requirements of the Administrative Procedure Act, we have, for the guidance of persons dealing with AID, issued and disseminated to the general public as well as to specially interested segments of the public full information on Agency rules and requirements. This has been done not only through publication of the AID Regulations in the Federal Register, but through distribution of notices, circulars, press releases,. and brochures relating to special. subjects and desigr~ed to present infornration to interested persons and groups in the most practical and useful way. If we can render any further assistance in your subcommittee's review of this subject, we shall be happy to do so. Sincerely yours, WILLIAM S. GAUl), Acting Administrator. STAFF PAPER Before replying lo the individual questions on particular aspects of section 3 of the Athninistrative Procedure Act of 194G (5 U.S.C. 1002) and its application to the operations of the Agency for International Development it is appropriate to observe that the exact meaning and effect of section 3 is far from clear. Part of the difficulty is, no doubt, derived from its setting within the Administrative Procedure Act. Section 3 purports to be a general provision governing the publi- cation of information, rules, opinions, orders, and public records applicable to "every agency." Yet the Administrative Procedure Act in which it appears has primary sign4flcance for regulatory agencies as dintinguished from nonregulatory agencies sTh~lias AID.1 One eonsequeiiceof placing ~ection 3 as a general "public I the Attorney General has said, "The entire act is based upon a dichotomy between rulemaking and adjudication * * *. Rulemaking is agency action which regulates the future conduct of either groups of persons or a single person; it is essentially legislative in nature, not only because it operates in the future, but also because it is primarily concerned with policy considerations." "Adjudication," he has said, "was intended to include such proceedings as: "1. Froceedings instituted by the Federal Trade Commission and the National Labor Relations Board leading to the i~ssuance of orders to cease and desist from unfair methods of competition or unfair labor practices, respectively. "2. The determination of claims for money, such as compensation claims under the Longshoremen's and Harbor. Workers' Compensation Act, and claims under title II (old-age' and survivors' insurance) of the Social Security Act. "3. Reparation proceedings in which the agency determines wb~ther a shipper or other consumer is entitled to damages arising out of the alleged past unreasonableness of rates. "4. The detein4patipn of individual eltUnis for benefits, such as grants-in-aid and subSidies. "5. Licensing proceedings, including the grant, denial, renewal, revocation, suspension, etc., of, for example, radio broadcasting licenses, certificates of public convenience and necessity, airman certificates, add the like." PAGENO="0127" FEDERAL PUBLIC RECORDS LAW 399 Information section" in a statute concerned primarily with procedural require- ments for "rule making" and "adjudication" is uncertainty concerning the mean- ing of terms and requirements in section 3 and the extent to which section 3 should be construed in the light of other sections of the Administrative Procedure Act, e.g., section 4: "Rule Making" and section 5: "Adjudications." Section 3(a) (3) lays down requirements for publication of "substantive rules adopted as authorized by law." The act does not define such rules although It contains in section 2 a definition of "rule" which would appear to be broader than "substantive rule." On the other band, section 4, which lays down require- ments for "rule making," narrows the scope of rules involved by expressly exclud- ing from its application various U.S. "functions" (e.g., foreign affairs) and "mat- ters" (e.g., public loans, grants, benefits, and contracts). Section 3(b) lays down publication requirements for "all rules." These rules are presumably different from the "substantive rules" referred to in section 3(a) (3), but the point is not clear and the definition of "substantive rules" remains uncertain. The meaning of "adjudication" in section 3(b) likewise requires clarification. Section 2 of the `act defines "adjudication" very broadly as the Agency process for formulating an order which is defined as the "whole or any part of the final disposition * * * of any agency in any matter other than rule making but includes licensing". Section 3, however, does not refer merely to "adjudication" but to "adjudication of cases" which imports a more limited meaning than "adjudication" as defined in section 2. Section 4 in prescribing the require- ments for "adjudication" is even more limited, referring to "every case of adjudication required by statute to be determined on the record after opportunity for an agency bearing". The exact meaning of "adjudication of cases" in section 3(b) is not clear considered either as standing alone, or in conjunction with other sections of the act, or in the light of AID's operations which are so dissimilar from the proceedings described by the Attorney General as "adjudications." The definitions contained in the act are not precise. This was recognized by the Attorney General in commenting on a committee print of the bill which became the act: The definitions given in section 2 are of very broad character. It is believed, however, that this scope of definition will not be found to have any unexpected or unfortunate consequences in particular cases, inasmuch as the operative sections of the act are themselves carefully limited. (At- torney General's Manual on the Administrative Procedure Act, 1947, p. 120.) The operative sections of the act on "rulemaking" and "adjudications" and their limitations on definitions are not, however, incorporated in section 3 deal- ing with "public information" and are of questionable utility in clarifying the requirements of section 3. In summary we think the requirements of section 3 are neither clear nor beyond debate as they apply to the functions of AID and, probably, of other agencies as well. In interpreting these requirements for preparation of replies to the specific questions raised by the subcommittee we have relied upon the Attorney General's Manual on the Administrative Procedure Act (1947), and the Administrative Procedure Act, Legislative History, 79th Congress, 2d ses- sion (S. Doe. 248) as well as the language of the act itself. We believe our interpretations are sound, but we recognize that other interpretations could be made. Question 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches or other constituent units of your agency to which the section does not apply? Answer. We consider that section 3 of the APA (5 U.S.C. 1002) is generally applicable to AID and its functions save those expressly excepted by section 3; namely, functions requiring secrecy in the public interest or matters relating solely to the internal management of the Agency. There are, of course, many activities of the Agency which are not affected by particular parts of section 3. There are no divisions, bureaus, branches, or other constituent units of AID to which section 3 would not apply when they are engaged in functions or mat- ters coming within the purview of section 3. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (a) Descriptions of its central and field organization (see sec. 3(a) (1) of the APA)? Answer. Descriptions of central field organizations. A four-page summary of AID's organization structure appears in the United States Government Orga- PAGENO="0128" 400 FEDERAL PUBLIC RECORDS LAW nization Manual (in the 1964-65 edition, at pp. 88-92, with a detailed organiza- tion chart at p. 599), publlsbed annually as a special edition of the Federal Register. The most tborQugh and detailed description of AID's organizational framework may be found in the AID 1\~anual. These number several thousand pages; they are maintained on a current basis in looseleaf volumes which makes it practicable to indicate even minor organizational changes in the Agency. Further material referring to various segments of the AID organization may be found in the AID Delegations of Authority which appear in the Federal Register as they are issued; in Agency regulations published in the Federal Register and collated annually in titles 22 and 41 of the Code of Federal Regu- lations; and in the various reports, brochures, press releases, small business memos, indexes, and card catalogs published by different offices Within the Agency and made available to the public through circulation by mail and, upon request, at various AID offices and missions, at banks, and in the offices of certain other Federal as well as international agencies. Delegztions of authority,-Agency delegations of authority are always pub- lished in the Federal Register. They may also be found in the AID Manual (130 series). Descriptions of established places at which, and methods whereby, the public may secure information or make submittais or requests.-----These descriptions of places and methods may be found in a variety of AID publications dealing with various activities of AID. The publications include: AID regulations published in the Federal Register, the AID Manual, small business memos, small business circulars, the index and catalog of investment opportunities, press releases, and various brochures of such AID offices as the Office of Material Resources, the Office of Development Finance and Private Enterprise, the Office of Technical Cooperation and Research, etc. In addition, information concerning specific procurement matters or other items of trade interest appear regularly in trade journals, such as the Commerce Business Daily. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute)? Answer. AID Manual Orders contain comprehensive material on this subject. Acuncy regulations and special notices published in the Federal Register pre- scribe in detail requirements concerning formal procedures, forms to be used, and the scope and contents of papers. For a significant portion of its activities AID is governed by the Federal Procurement Regulations and, accordingly, uses the procedures and forms prescribed in chapter 1 of title 41, Code of Federal Regulations. The publications referred to in the answer to question 2(a) above further explain Agency procedures as well as the contents and scope of required forms, papers, and reports. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (c) Substantive rules adopted as authorized by law (see sec. 3(a) (3) of statute)? Answer. Substantive rules are contained in AID regulations which are pub- lished in the Federal Register at the timqs the rules are issued. Thereafter, they are also reproduced as AID Manual Orders. Information concerning pub- lished regulations, together with explanatory material, is then frequently published in AID small business memos and In other special pr~bllctttions of AID issued from time to time. Question 2. In wh'it official or unofficial publication, and at what intervals, does you a~rency publish: (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see see. 3(a) (3) of statute)? Answer. For this purpose AID makes use of small business memos which are published from time to time as policies or interpretations are formulated by AID for the guidance of the public. In addition, special notifications or bulletins are frequently issued at such times to segments of the commercial public having an Interest in an interpretation or policy statement (e.g., trade associations, industry groups, banks, and trade journal publishers). Important interpretive and policy matters of broad concern have also been published in the Federal Regist~r (see e.g., 28 Fed. Reg. 5376) contemporaneously with their adoption by AID. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (e) Rules addressed to and served upon named persons in accordance with law (see see. 3(a) (3) of statute)? PAGENO="0129" FEDEEAL PUBLIC RECORDS LAW 401 Allswer. AID does not genorally issue rules to named persons. The only aituation recalled where the i~suance of ~ch a rule may be c~nsidered to exist is where AID at the 1-equest of a commodity supplier modifies, with respect to that supplier, the AID origin requirements with respect to the components of commodities eligible for AID financing. AID decisions to permit modification are published in AID small business memos if they apply to an entire industry rather than to an individual supplier. Question 3. Please describe the manner in which your agency publishes, or, in accordance with published rule, makes available to public inspection, all final and interim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the APA or other authority. Answer. In AID operations "adjudication of cases" occurs in contract appeals, suspensions, or debarments of ineligible suppliers, and certifications of voluntary foreign aid agencies. Opinions and orders in the adjudication of contract appeals are made available to public inspection by the Board of Contract Appeals in accordance with published rule. The pertinent rule (published in 41 CFR 7-60.21). requires that all final or- ders and decisions of the AID Board of Contract Appeals (except those required for good cause to be held confidential) to be available for public inspection. This requirement has been in AID practice to include decisions issued by the General Counsel concerning the jurisdiction of the Board. AID has never withheld from public inspection any opinion or order in the adjudication of contract j appeals. The Executive Secretary of the Board of Contract Appeals maintains a file of opinions and orders which may bu inspected upon request by interested persons. Copies of opinions and orders are also sent to publishers for publication in reports of the Commerce Clearing House and in the Government Contractor. The Agency has established and published in the Federal Register procedures for the suspension or debarment of certain suppliers of commodities and related services. (AID Regulation 8, 29 Fed. Reg. 9534.) Suspension and debarment orders are not required by the regulation to be disseminated to the public. The person affected is, of course, notified, and his name is entered upon a "list of ineligible suppliers." This list is communicated to all banks engaged in financ- ing AID commodities in order to preclude the making of payments to persons on the list. AID may also direct the contents of the list to the attention of others such as aid recipient countries or importers in those countries. The certification of voluntary foreign aid agencies, which is a statutory pre- requisite for their participation in the food for peace and freight subsidy pro- grams (under sec. 216 of the Foreign Assistance Act and sec. 416 of the Agri- cultural Act of 1t~49 as amended by sec. 302 of Public Law 480) is governed by AID Regulation 3 (28 Fed. Reg. 2570). Notice of issuat~cë of such certificates and any. amendments to them is published In the 1~'ederal Register as prescribed by sections 203.4 and 203.5 of AID RegulatIon 3. Question 4. In what types of eases does your agency refrain from publishing int~tiaa and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the APA or ~t1ier authority? Answer. To our knowledge, there have been no such cases. Question 5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? Answer. None. Question 6. What is the procedure for making available to the general public the records and files, interpretations, and legal op~nlotis of y~Our agency? Answer. The Agency maintains an Information Staff O~Mce through which in- quiries for various types of information and documents are customarily routed. In addition, the Agency has established a Businessmen's Infertuation Center which services the widely differing Fequests of the busInes~s cothmunity for specialized types of information and data of special interest to bu5in~5smen. A specific inquiry for the files and records of a particular AID office is considered b~ the head of the office concerned. Each request Is examined on the basis of its compatibility with the criteria and considerations set out in the anSwer to ques- tion 7 herein. The Office of General Counsel is consulted for advice concerning the proper response to requests for files and records as well as interpretations and legal opinions. The general thrust of the AID review of a request is to make the documents available unless clear and strong reason dictates another course. Question 7, What limitations are placed upon the availability of records ~nd files to the general public, either by statute, rule, or practice? 45-213-65-pt. 2-9 PAGENO="0130" 402 FEDERAL PUBLIC RECORDS LAW Answer. Classified information Is not aceessthle to the general public (Ex- ecutive Order 10501) . Personnel files are controlled by the Civil Service Com~ mission and are not disclosed to the general public. The disclosure of personnel files of AID foreign service personnel is specifically prohibited by statute (see sec. 625(d) (2) of the Foreign Assistance Act and sec. 612 of the Foreign Service Act). The disclosure of trade secrets and certain other confidential information of a business or financial character, unless authorized by law, is prohibited by 18 U.S.C. 1905. In responding to requests from the general public for examination of agency files and records, AID takes into consideration the nature~of the request and the interest of the person making it, e.g., a litigant, research scholar, business coin- petitor, journalist, etc. In this connection AID takes guidance from the Attorney General in his comments on section 3(c) of the Administrative Procedure Act. "But even matters of official record need be divulged only to `persons profetly and directly concerned', It is clear that section 3(c) is not intended to open up Government files for general inspection. The phrase `persons properly and directly concerned' is descriptive of individuals who have a legitimate and valid reason for seeking access to an agency's records. See Tinited ,S'tates ea~ ref. ~towefl v. Dewing, 19 F. 2d, 697 (App. D.C., 1927), certiorari denied, 275 U.S. 531. Each agency is the primary judge of whether the person's interest Is such as to require it to make its official records available for his Inspection. "An agency may treat matters of official record as `confidential for good cause found' and upon That ground refuse to make them available for inspection. Information held `confidential for good cause found' may be either Information held confidential by reason of an agency rule issued in advance (for good cause) making specific classes of material confidential, or such Information as is held confidential for good cause found under a particular set of facts. The section does not change existing law as to those materials in Government files which have been heretofore treated as confidential. See Boske v. Co~n'iagore, 177 U.S. 459 (1900); Boehm v. TJnited Statea, 123 F. 2d 791, 805 (C.C.A. 8, 1941." (Attorney General's Manual on the Administrative Procedure Act (1947), p. 25.) Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register (see sec. 3(a) of the APA)? Answer. None appear to exist, The statutory requirement (sec. 3(a)) "pro- tects the public from being required to pursue remedies that are not generally known." (Administrative Procedure Act, Legislative History, 79th Cong., 2d sess., S. Doc. 24, p. 198.) When private parties, to pursue remedies or preserve rights, are required to resort to AID organization or procedure, the pertinent information appears In the Federal Register in AID regulations or notices. Question 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the APA or other authority? Answer. In no case has AID for reasons of secrecy required in the public interest refrained from publishing "substantive rules adopted as authorized by law" within the meaning of section 3(a) (3) of the act. Such substantive rules are contained in the AID regulations which are uniformly published in the Federal Register. Hence all rules of the Agency defining the rights or obligations of a private person or group oi! persons are published. Section 3(b) of the act calls for publication of "all rules" which probably embraces more than "sub- stantive rules adopted as authtrized by law" within the ineanitig of sec- tion 3(a) (3). But assuming this broader coverage, we are not aware of any instances where AID has refrained because of secrecy requirements from arti- culating and disclosing any rule. `The AID Manual, comprisIng 11 looseleaf volumes with thousands of pages, states many requirements which conceivably may be considered "rules" under section 3(b) of the act. Out of this massive compendium only three small manual orders have been classified and thus barred from disclosure to the public. The contents of these particular manual orders, however, are probably not "rules" within the meaning of section 3(b). In any event, they in no way affect the rights or obligations of private parties. Instead, they relate to internal man- agement (M.O.'s 524.2 and 631.4) or are statements of general policy' published not for the guidance of the public but for' the guidance of AID officials In administering a sensitive foreign program (M.O. 1461.1). Question 10. In what circumstances has your agency refrained from publish- ing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the APA or other `authority? PAGENO="0131" FEDERAL PUBLIC EECORDS LAW 4O~ Answer. None. Question 11. What is your agency's definition of official record as used iii section 3(c) of the APA? Answer. In explaining the meaning of, "official record," the Attorney General's Manual on the Administrative Procedure Act (1947) ,page 24, states: "The term `official record' is difficult of definition. In general, it may be stated that matters of official record will include (a) applications, registrations, petitions, reports and returns flied by members of the public with the agency pursuant to statute or the agency~s rules, arid (b) all documents embodying agency actions, such as orders, rules and licenses. In formal proceedings, the pleadings, transcripts of testimony, exhibits, and all documents received in evidence or made a part of the record are `matters of official record'. "Section 3(c) does not purport to define `official record'. Each agency must examine its functions and the substantive statues under which it operates to determine which of its matOrials are to be treated as matters of official record for the purposes of the section. Indicative of the types of records which are considered official records by Congress are maps,. plats, or diagrams in the custody of the Secretary of the Interior (5 U.S.C. 488), records, books or papers in the General Land Office (28 U.S.C. 672), and registration statements flied with the Securities and Exchange Commission under the Securities Act (15 U.S.C. 77f), "The great mass of material relating to the internal operation of an agency is not a matter of official record. For example, intra-agency memoranda and reports prepared by agency employees for use within the agency are not officinl records since they merely reflect the research and analysis preliminary to official agency action. Intra-agency reports of investigations are, in general, not matters of official record; in addition they usually involve matters of internal manage- ment and, in view of their nature, must commonly be kept confidential." AID would, of course, include as matters of official record those items listed in the first paragraph of the above statement. Excluded would be items de- scribed in the last paragraph. The net effect would be that "matters of official record" within AID for purposes of section 3 of the Administrative Procedure Act comprise (a) papers filed with AID pursuant to statute or AID rules; (b) all documents embodying agency actions such as orders,1 rules,2 and licenses,3 and (o) the pleadings, transcripts of testimony, and exhibits in formal proceed- ings. All documents reflecting research and analysis preliminary to official agency action (and these constitute "the great mass of material relating to the internal operation of AID) would not be included as matters of "official record." REPLY FROM THE COMPTROLLER OF THE CURRENCY ThE COMPTROLLER OF TIlE CURRENCY, Thn APMINI5tRAT0R or NATIONAL B4Nfc~ TVa~hIngton, D.C., March 19, 1965. Hon. JoHN E. MOss, Chairman, Foreign Operations and Oovermken~ Information S~ubcommittee,' Honse of Representative~. DEAR MR. Moss: Your letter of February 12, 1965, addressed to tile Secretary of the Treasury, asks a number of questions co~acern1ng the availabillty~ of in- formation from Treasury agencies and the eNtent to which such availability Is responsive t~ the requirements of the Administrative Proçedurç~ Act of 1946. This letter responds to such questions insofar as they relate to t)m Comptroller of the Currency. 1. In general, section 3 of the Administrative Procedure Act of 1946(5 UM.O. 1002) applies to the Comptroller of the Currency. 1 Defined by sec. 2 (d) of the act as "the whole or any part of the final d1spositio~i (whether a~flrmative, negative, injunctive, or declaratory in form) of any agency In any matter other than rulemaking but including licensing." 2 Defined by sec. 2(c) of the act as "the whole or any part of any agency statement of general or particular applicability and future effect designed to Implement, Interpret, Or prescribe law or policy or to describe the organization, procedure, or practice requirements of any agency." 8 Defined by sec. 2(e) of the act as "the whole or part of any agency permit, certificate, approval, registration, charter, membership, statutory exemption, or other form of permission." PAGENO="0132" 404 FEDERAL PUBLIC RE~OORDS LAW 2. (a) Descriptions of the central and field organization of the Office of the Comptroller of the Currency are published in the Federal Register and in letters to all national banks from time to time as changes are made. They are also published annually in the TLS. Government Organization Manual and in the annual report of the Cotuptroller of the Currency. This information is also published by various commercial publications. The Comptroller's regulations "Procedures~ (12 CFR 4) and "Fiduciary Powers of National flanks and Collec- tive Funds" (12 CFR 9)-which set forth the places and methods whereby the public may secure information or makes submittals or requests, are published in the Federal Ilegister, in the Code of Federal Regulations, in letters to all national banks and in the regulations sections of the Comptroller's Manual for National flanks and the Comptroller's Manual for Representatives in Trusts. (b) Statements of the general course and method by which the functions of the Comptroller are channeled and determined, including the nature and require- ments of all formal and informal procedures, forms, and instructions as to the scope and content of all papers, reports, or examinations are also set forth in the regulations, Procedures, and Fiduciary Powers of National Banks and Col- lective Funds. Additional detailed information on these subjects is contained in the Manual for Representatives in Trusts; Comptroller's Policy Guidelines for National Bank Directors; and Instructions, Procedures, Forms for National Bank Examiners. The first of these manuals is furnished to representatives in trusts and to nçttional banks authorized to exercise fiduciary powers. The other two manuals are furnished to national bank directors and national bank examiners for their guidance. All three are looseleaf manuals which are supplemented from time to time. (c) Substantive rules adopted as authorized by law are published as regula- tions in the Federal Register and in the Code of Federal Regulations (12 CFR 1-20), in letters to all national banks and in the regulations sections of the manuals for national banks and for representatives in trusts. (d) Statements of general policy and interpretation formulated and adopted for the guidance of the public are published as interpretative regulations in the Federal Register, in the Code of Federal Regulations (12 CFR 1.105 et seq.; 12 CFR 7), in letters to all national banks and in the regulations sections of the manuals for national banks and for representatives in trusts. Interpretative rulings arising out of individual inquiries from national banks have been generalized for the guidance of oflicials Of national banks and their counsel, national bank examiners and other members of the staff of the Comptroller of the Currency and are published in the rulings section of the manual for national banks or in the opinions section of the manual for representatives in trusts. Individual rulings which are particularly timely are distributed im- mediately in letters to all national banks. Significant rulings are also sum- marized quarterly in the National Banking Review. In addition to the sections on rulings and regulations, the Manual for National Banks, which is supple- mented at quarterly intervals, includes the text of the national banking laws and related statutes. The Manual for flepresentatives in Trusts also includes the text of the laws relating to the trust powers of national banks and instruc- tions, procedures and forms. The National Banking Review, a journal of policy and practice published quarterly by the Comptroller, provides a forum for the discussion of economic problems relating to banking. Members of the Comp- troller's economics staff and others interested in these problems contribute leading articles to the Review. Current statistical data and comment on economic, legal, and regulatory developments are regularly published in the National Banking Review. (e) Rules addressed to and served upon named persons in accordance with law are specifically excepted from publication requirements of section 3 of the Administrative Procedure Act (5 U.S.C. 1002 (a) (3)). Such rules are, in ac- cordance with published rule (1~ CFR 4.13(a) (2)), available for public inspec- tion except in such cases as the Comptroller determines (sec. 4.13 (b)) that disclosure would conflict with the public interest and the proper administration of his responsibilities. 3. The Comptroller of the Currency is required by 12 U.S.C. 1828(c) to include in his annual report to the Congress the basis for his approval of each merger, consolidation, acquisition of assets, or assumption of liabilities approved by him during the period covered by the report. Opinions iii such cases ai~e pub- lished in the annual report of the Comptroller. They are alsO released to the press through regular public information channels at the time the action is ~taken. Other rulings, final opinions, decisions, and orders of the Comptroller PAGENO="0133" FEDERAL PUBLIC RECORDS LAW 405 of the Currency are available for Inspection at the Office of the Comptroller during business hours to persons propefly and directly concerned in accordance with the provisions of the procedural regulation of the Comptroller (12 CFR 4.13). 4. Section 4.13(b) of the procedural regulation of the Comptroller defines confidential information, lists reasons for its nondisclOsure and sets forth the circumstances in which disclosure may be authorized by law and in the public interest. Opinions, decisions, and orders of the Comptroller are included (sec. 4.13~b) (2) (iii) within the definition of confidential information when the Comp- troller determines that disclosure would conflict with the principles set forth as reasons for nondisclosure in section 4.13 (b) (1). The Comptroller publishes biweekly a "Summary of Actions" which sets forth the disposition made of applications for charter, for a branch, for a title change, for a bead office relocation or a branch relocation. The "Summary of Actions" is distributed to all national banks, to approximately 2,500 business firms, law- yers, and other interested individuals who have requested to be notified of decisions. It is also released to the Washington press through public information channels and mailed to approximately 150 out-of-town newspapers and publica- tions. In addition, a public information officer responds to press inquiries con- cerning the filing and disposition of applications for new bank charters, branches, and mergers. 5. Unpublished opinions and orders are not cited or used as precedents in other proceedings. 6. Interpretations and legal opinions are published in the form of regulations in the Federal Register and the Code of Federal Regulations. Such regulations and more detailed interpretations and rulings are published for the benefit of the persons directly concerned with the national banking system in letters to all national banks and in the various Comptroller's manuals. Unpublished information, except that required for good cause to be held confidential is, in accordance with published rule (12 CFR 4.13 (a) (2)), available for inspection at the Office of the Comptroller of the Currency during business hours to persons properly and directly concerned. The rule provides that a request to examine such information or to obtain a copy or copies thereof must be submitted to the Comptroller of the Currency or to the Regional Comptroller of the Cur- rency for the region in which the request arises. Such request must be signed by the person making it or his duly authorized agent who must state the name and address of the person on whose behalf the request is made. The request must set forth the facts, if any, involved, the purpose for which the document or information contained therein will be used if made available, the nature of such person's interest in the matter and the reason or reasons why the request should be granted (12 CFR 4.13(a) (2) (ii)). 7. Many of the records and files of the Office of the Comptroller of the Cur- rency contain information which must be safeguarded in the public interest in order to protect the national banking system and to enable the Comptroller to administer properly his responsibilities. Such information is disclosed only to such persons and to the extent that the Comptroller determines that disclosure is autborPzed by law and is iri~ the public interest (12 CFR 4.13, 4.14). National bank examiners are forbidden by 18 U.S.C. 1906 to disclose the names of bor- rowers or the collateral for loans of banks examined by them to other than lroper officers of such bank without first having obtained the express permission in writing from the Comptroller of the Currency. 8. Private parties dealing with the Comptroller of the Currency are not re- quined to resort to organization or procedure not published in the Federal Register. 9. The Comptroller of the Currency does not disclose records, files, and other information where such disclosure would conflict with the public interest in the proper administration of his responsibilities as the supervisor of national banks. Some of the results which might flow from the improper disclosure of such infor- mation are set forth in section 4.13(b) (1) of the procedural regulation of the Comptroller. The nature of the information which is ordinarily not dis- closed is set forth In section 4.13 (b) (2). These considerations, however, do not require the Comptroller to refrain from the publication of rules. 10. Rules relating solely to internal agency management are ordinarily not published. 11. The Comptroller of the Currency does not define "official record" as used in section 3(c) Qf the Administrative Procedure Act. The standards set forth PAGENO="0134" 406 1~'EDERAL PUBLIC RECORDS LAW in the Comptroller's regulation relating to the disclosure or nondisclosure of information (12 CFR 413) does ~iot depend on whether the information is a matter of offlcial record or not. 12. In accordanôe with your request, there are submitted herewith two copies of Years of Reform A Prelude to Progress-The 101st Anni~al Report of the Comptroller"; the Comptroller's Manual for National Banks; the Comptroller's Manual for Representatives in Trusts the Comptroller s Policy Guidelines for National Bank Directors; Instructions, Procedures and Forms for National Bank Examiners the March issue of the National Banking Review pages 104 and 105 of the U.S. Organization Manual, 1904-OS; Notice of New Regional Organiza- tion, 27 Federal Register, 4530 and 4531, Friday, May 11, 1902; summary of actions; and a sample merger opinion.. Sincerely, JAMEs J. SAXON, Comptroller of the Currency. PAGENO="0135" INDEPENDENT AGENCIES REPLY FROM THE AMERICAN BATrLE MONUMENTS COMMISSION THE AMERICAN BATTLE MONUMENTS COMMISSION, Washington, D.C., March 1, 1.96d. Hon. JOHN Ill. Moss, Clwzirman, Foreign Operations and Government Information Ssbcommittee, Com- mittee on Government Operations, Ho'use of Representatives. DEAR Ma. CHAIRMAN: The American Battle Monuments Commission is pleased to make the following replies to the questions raised in your letter of Fthruary 12, 1965, regarding section 3 of the Administrative Procedure Act of 1946, in the order ~n which they are stated therein. 1. In general, the functions of the Commission to which 5 U.S.C. 1002 applies are: (a) Administration and maintenance of all permanent American mili- tary cemeteries and memorials in foreign countries and of memorials erected by the Commission in New York, N.Y., and `San Francisco, Calif.; also the national cemetery In Mexico City, Mexico. (b) Preparation of plans and estimates for, `and the erection of, suitable memorials to commemorate the `services of the American Armed Forces `since April 6, 1917. (c) Control as to materials `and `design and provision of regulations for the erection `o'f all memorial monuments and `buildings commemorating the services of the American Armed Forces erected in `any foreign; country or political division thereof which may authorize the Commission to perform these functions. (d) To cooperate with American citizens, States, municipalities, or as- sociations desiring to erect war memorials outside the continental limits of the United `States In such manner as may be determined~ `by the Commission. There are no subdivisions of this `agency to which section 3 does not `apply. 2 Material listed in subparagraphs a b c and d is published in the Federal Register at such infrequent intervals as changes in the Commission s functions may occur. It issues no rules addressed to and served upon named persons. 3. The Commission's functions generate no opinions or orders such as here contemplated. 4. Not applicable in view of 3 above. 5. Not applicable. 6. Upon request the Commission will make available to persons having a proper `and direct concern such information, a's may be available in its records and files. `7. The Commission will not furnish to the public the names and addresses of the next of kin of the dead interred in the cemeteries or commemorated on the walls of the `memorials under its jurisdiction. 8. None. 9. None. 10. None. 11. "Official record" Is defined by the Commission as any paper or document pertaining to its business. :12. Two copies of material issued by the Commission to implement 5 U.S.C. 1002 are enclosed. Sincerely, JACOB L. Dnvsas, Chairman, Generai, USA (Retired). 407 PAGENO="0136" 408 FEDERAL PUBLIC RECORDS LAW REPLY FROM ATOMIC ENERGY COMMISSION U.S. ATOMIC ENimoy COMMISSION, Washington, D.C., March 15, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operatjon~ and Government Information ~S'ubcommittee, House of Repres~ntatjves DSAR Mis. Moss: Your letter of February 12, 1965, presents 11 questions as to `the activities of the Atomic `Energy Commission apc~ its compliance with `section 8 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002). Section 3 requ~re~ that, `except for functions requiring secrecy in the public interest or matters relating solely to the irtternal managemen~t of an agency, every agency publish in the Federal Register (1) descriptions of its org~~ization and ~be methods by which the puhli~ may se'c1p-~ ipforma'tion or maj~e subnjittals and requests; (2) statements of the general `course ai~d method by which its functions' are channeled and determined; and (3) substantive rules, statements of general policy, and Interpretations. The section also requires that every agency publish or make `available to public inspection all final opiniohs or orders In `the adjudica- tion of cases (except those required for good cause to be held confidential) and all rule's, and make available to persons concerned matters of official record except as required by statute and except for information held cohfidentiaj for good cause found. The Atomic Energy Commission was established by the Atomic Energy Act of 1946 (60 S'tat. 755; 42 U.S.C. 1801 eQ seq.) as amen'ded 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 programs to conduct and assist research and development; to disseminate un- classified scientific and technical information, and to control the dissemination and declassification of restricted data as defiped in `the act; to control the possession, use and production of atomic energy and special nuclear material; to encourage widespread use of atomic energy for peaceful purposes; to engage in international 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 fore- going 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 Commission's actititien is concerned with the development and production of atomic weapons. In addition to adrninisftrafive and executive functions of the Commission conducted under `the General Manager, and licensing `and other regulatory fiinc- tions under the Director of Regulation, tile Commission conducts, the' following types of adjudication. Each of these is subject to renew by the Commission, except for decision's of `the Board o'f Contract Appeals and for security clearance determinations (a) Licensing of production and utilization facilities, `(principally re- actors), including construction permits and operating licenses, under 42 U.S.C. 213:1~2140, 2231-2239; `the hearings usually being conducted by atomic safety an'd licensing boards. (ii) Licensing of source, byproduct, and speCial nuclear matetial, under 42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2112, 2231, and 2289, 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. ~l81-2188, 2223, and 2239, and 35 U.S.C. 183 and 188, in proceedings heard by the Patent Com- pensation Board. (e) Personnel security hearings under 42 U.S.C. 2201, conducted by per- sonnel security boards which make recommendations to the General Manager. (f) Appeals from decision's of con'tracting officers under the disputes arti- cles 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 con- tinue, Federal financial assistance pursuant to title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d). PAGENO="0137" FEDERAL~ Pt~BLIC RECORDS LAW 409 The answer `t~ each of your specific questions Is given under the particular question. 1. Generally, to what functions of your agency does S U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? Is 5 U.S.C. 1002 applicable to all functions of the Atomic Energy Commission under the Atomic Energy Act of 1954? Section 181 of the Atomic Energy Act of 1954,42 U.S.C. 2231, provides that: The provisions of the Administrative Procedflre Act (Public Law 404 Seventy-ninth Congress, approired Iutie 11, 1946) shall apply to all agency action taken under this Act, and `th~ terms "agency" rind "agency action" shall have the meaning specified In the Administrative Procedure Act': Provided, however, That in the case of agency proceedings or actions which involve restricted data or defense information, the Commission shall provide by regulation for such parallel procedures as will effectively safeguard and prevent disclosure of restricted data or defense information to un- authorized persons with minimum impairment of the procedural rights which would be available if restricted data or defense information were not involved. The effect of the proviso in section 181 of the Atomic Energy Act quoted above should be noted in view of the definitions of "defense information" and "Re- stricted Data" in the Atomic Energy Act. "Defense information" is defined in section 11(h) of that act (42 U.S.C. 2014(h)), and "Restricted Data" is defined in section 11(w), 42 U.S.C. 2014(w) h. The `term "defense information" means any information in any cate- gory determined by any Government `agency `authorized to classify informa- tion, as `being information respecting, relating to, or affecting the national * defense. w. The term "Restricted Data" means all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) `the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant `tO section 142. There are no divisions, bureaus, branches or other constituent units of the Atomic Energy Commission to which section 3 does not apply. 2. In what official or unofficial publication, find at what intervals, does your agency publish: "(a) Descriptions of its central and field organization (see sec. 3(a) (1) of the Administrative Procedure Act) * * ~ The Atomic Energy Commission published comprehensive descriptions of its central and field organization in the Federal Register at 22 F.'R. 9972 on De- cember 12, 1957, and again at 26 F.R. 12729 on December 29, 1961. This material has been codified in 10 CFR, Chapter I, Part 1; "Statement of Organization Delegation, and General Information." Changes and additions have been pub- lished in the Federal Register as they have been authorized. Under arrangements with the Superintendent of Documents, the Commission published a compilation of its "Rules and regulations" in 1958 and again in 1962. This compilation, with published amendatory material, has been made available to the public on a subscription `basis. In addition, the Commission has adopted the practice of mailing `to its licensees copies of new regulations an'd amendments promptly upon publication in the Federal Register. The Com- mission is now changing to a subscription service which would include all cur- rently effective and proposed rules, with each effective rule fully referenced as to its original publication in the Federal Register. Statements of consideration published at the time of each adoption and amendment will `be included. Sup- plements will be issued as new rules, proposed and effective, are approved `by the Commission. Although it is not primarily intended for use by the general public, a more detailed description of the Commission's internal organization and activities is available to the public in the "AEC manuals', a copy of which is kept at the Commission's Public Document Room at 1717 H Street NW., Washington, D.C. Commission personnel are governed by the provisions of AiI~O manual, ~ection 3106-02 which states: It is the policy Qf the AEC to make available `to new~rncn and the geneFal public stkch nonclassifled (declassified and unclassified) and nonprivileged information as may be requested. Inquhies from newsmen and the. general public shall be answered as promptly as possible. In replying to inquiries PAGENO="0138" 410 FEDERAL. PUBLIC RECORDS LAW all useful assistance shall be given to the requestor in Identifying info'rma- tion that is pertinent to his request. "(b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute) * * *" In addItion to 10 OFR chapter I, part 1, the following parts of 10 CFR chapter I include some statements of the general course and method by which certain of the Commission's functions are channeled and determined.: Part 2: Rules of Practice. Part 3: Rules of Procedure in Contract Appeals. Part 4: Nondiscrimination in Federally Assisted Commission Programs. Part 5: Procurement Policy. Part 6: Security Policies and Practices Relating to Labor-Management Rela- tions. Part 7: Advisory Boards. Part 9: Public Records. Part 10: Criteria and Procedures for Determining Eligibility for Access to Re- stricted Data or Defense Information. Part 25 : Permits for Access to Restricted Data. Part 37: Radioisotope Research Support Program. Part 60: Domestic Uranium Program. Part 80: General Rules of Procedure on Applications for the Determination of Reasonable Royalty Fee, Just Compensation or the Grant of an Award for Patents, Inventions, or Discoveries. Revisions are published in the Federal Register as adopted. Although notice of proposed rulemaking is not required by section 4 of the Administrative Pro- cedure Act (5 U.S.C. 1003) for rules of agency organization, procedure, or prac- tice, the Commission generally does publish notice of proposed rulemaking in such cases as well as in others Miscellaneous notices dealing with various Com mission programs are published in the Federal Register from time to time. In a few instances, announcements of policies dealing with nonregulatory func- tions have been published as press releases. "(C) Substantive rules adopted as authorized by law (see sec. 3(a) (3) of statute) * * ~ Substantive rules adopted as authorized by law are published in the parts already mentioned and in the following parts of 10 CFR chapter I: Part 20: Standards for Protection Against Radiation. Part 30: Licensing of Byproduct Material. Part 31: Radiation Safety Requirements for Radiographic Operations. Part 40: Licensing of Source Material. Part 50: Licensing of Production and Utilization Facilities. Part 55: Operators' Licenses. Part 70: Special Nuclear Material. Part 71: Regulations to Protect Against Accidental Conditions of Criticality in the Shipment of Special Nuclear Material. Part 81: Standard Specifications for Granting of Patent Licenses. Part 83: Waiver of Patent Rights. Part 95: Safeguarding of Restricted Data. Part 100: Reactor Site Criteria. Part 110: Unclassified Activities In Foreign Atomic Energy Programs. Part 115: Procedures for Review of Certain Nuclear Reactors Exempted from from Licensing Requirements. Part 140: Financial Protection Requirements and Indemnity Agreements. Part 150: Regulatory Authority In Agreement States. Part 160: Trespassing on Commission Property. "Atomic Energy Commission procurement regulations" are published in the Federal Register and are codified in 41 CFR chapter 9. These rules are revised from time to time, after notice of proposed rulemaking and notice of rulemaking published in the Federal Register. "(d) Statements of general policy or lnterpretation~ formulated and adopted by the agency for the guidance of the public' (see sec. 3(a) (3) of statute) * * Statements of general policy or interpretations formulated, and adopted by the agency for the guidance of the public are published In the Federal Register as notices, in `the' text of the respective parts of the Commission's regulations, or in the statements of considerations which are published with the parts of specific regulatiOns. PAGENO="0139" FEDERAL PUBLIC RECOEDS LAW 411 Notices embodying certain specific statement's `of Commission policy, dealing al- most entirely with proprietary and other nonregulatory functions `of the Com- mission, have been published in the Federal Register and are compiled under the heading `~Miscellaneous Notices" in the Commission~s published "Rules and reg- ulations." A few interpretations ~f the Atomic Energy Act by the General Counsel are compiled as part 8 of the Commission's regulations, "Interpretations." Other statements of Commission policies and practices are set forth in the ABC manual, which is maintained for public access at the public document room in Washington. The facilities `of the public document room are utilized by the publishers of a number of periodicals which disseminate to the industry information available there, as well as by the general news media. Documents concerning hearings for the licensing `of nuclear facilities on the west coast are kept on file at `the Commission's offices at Los Angeles `and San Francisco as well `as at the public document room.. "(e) Rules addressed to and served upon named persons in accordance with law (`see sec. 3(a) (3) `of statute)." The `Commission has promulgated no rules addressed to and served upon named persons. "3. Please describe the manner in which your agency `publishes, or, in accord- ance with published rule, makes available to public inspection, all final and in- terim opinions or orders in the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure Act or other authority." The Commission publishes immediately opinions `and orders in the adjudica- tion of case's `by service on the `parties of record, by distribution to' the press', and by making them available in the public document room. Copies are furnished to the ptiblic on request. The Commission `publishes "Opinions `and Decisions of the Atomic Energy Commission." Volume 1 `covers the period from October 8, 1956, to December 31, 1961. Volume 2 is now in preparation, and will cover the period from January 1, 1962, to December 31, 1904. "4. In what types `of cases `does your agency refrain from publishing Interim and `final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Administrative Procedure Act or other authority?" The Commission publishes no orders `or opinions in `adverse employee personnel action's such as those i'nvo'lving removal, demotion ot' suspension without pay, or in procedures `involving the suspension, `denial, or revocation of `security clear- ance. The individual involved in any `such action is of course `permitted to di- vulge `the disposition or any other matter involved, subject to' restrictions on the communication `of restricted data and defense information. It will be noted that section `5 o'f the Administrative `Procedure Act (5 U.S.C. 1004) does not `apply to the selection or tenure of `an officer `or employee of `the United States, or the conduct of military or foreign affairs function's, among `other things. The Commission has never had occasion to use the exception provided in sec- tion 3(b) of the Administrative Procedure Act with respect to opinions and orders "required for good cause to be held confidential and not cited as precedents." "5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings?" There are no unpublished opinions and orders which are used as precedents in other proceedings. "6. What is the procedure for making available to the general public the rec- ords and files, interpretations and legal opinions' of your agency?" Records, files, interpreations, and legal opinions of the Commission available to the general public may be examined in the public document room on request, and copies may be obtained on the payment of prescribed reproduction fees. (See also the answers to questions Nos. 1 and 7.) "7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice?" In any proceedings subject to part 2, "Rules of Practice," or part 25, "Permits for Access to Restricted Data," of the Commission's rules and regulations, section 9.4 exempts from inclusion in the public records of the Commission: (~) Documents withheld, as a result of timely application by the submit- ting party, for good reason as determined according to section 2.790(b) (se~ below); PAGENO="0140" 412 FEDERAL PUBLIC RECORDS LAW (b) Documents relating to personnel matters and medical and other per- sonal information, which in the interest of personal privacy are not normally made public; (c) Intra-agency and interagency ~ommnnicat1ons, Including memoran- dums, reports, correspondence, and staff papers prepared by members of the Commission, ARC 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; (1) Records and reports of Investigations; (~y) Documents classified as restricted data under the Atomic Energy Act of 1054 or classified under Executive Order No. 10501 (except that documents classified as restricted data which would otherwise be public records will be made available to Members of Congress upon autborisation by the Commis- sion, 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 commit- tees, except (1) correspondence released by the Member of Congress or con- gressional committee concerned or (2) correspondence regai~ding the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or permit or regarding a rulemaking proceeding; (j) Any other document involving matters of internal agency manage- ment; (Ic) Names of individuals who have received exposure to radiation. Part 9 of the regulations applies to proceedings conducted pursuant to parts 2 and 25 (sec. 9.1). It is the Commission's practice to apply the criteria of sec- tion 9.4 to the disclosure of information in other circumstances. Under 10 CFR section 9.7, agency personnel are prohibited from producing or disclosing without Commission approval the contents of material defined in section 9.4. On finding that disclosure is not contrary to the public interest, the general manager or director of regulation may authorize disclosure of such documents pursuant to a subpena or to personnel of a Government agency or of any State or political subdivision thereof as required for the performance of their official duties. Under 10 OFR section 2.790(b) the Commission may withhold any document or part from public inspection: "if disclosure of its contents is not required in the public interest and would adversely affect the intotest of a person con- cerned." This section is generally intended to protect trade secrets. It is rarely in- voked. On a few occasions when it has been determined that the material in question did embody trade secrets and that the. conduct of a bearing would not be prejudiced, it has been withheld from public disclosure. In one case, the request for an applicant that certain material in a license application be with- held from public disclosure as embodying trade secrets was denied. The ap- plicant demanded a hearing, which was conducted in camera under part 2 of the Commission's regulations. On a determination of a hearing examiner that the matérial in question did not embody trade secrets which required withhold- ing under section 2.790, the material was disclosed in the public document room. Procurement instruction 9-53.103, which is published as a part of a supple- ment to the ABC Manual, promulgates the policy of the Commission that un- classified contracts which contain no confidential information are to be made available to other Federal agencies, to persons properly and directly concerned, and to others when the interested contractor does not object. The Commission's procurement regulations provide, in 41 CFR section 9-3.103, that in procuren~ont by negotiation the names of unsuccessful negotiators for contracts and the amounts and conditions of their proposals. or quotations ~lhal1 not be revealed. Chapter 2104 of the ABC Manual provides that nondefense information may be designated "official use only" with the approval of a headquarters divi- sion head or a manager of operations. The manual gives the following illustra- tions of the type of document which may~ be so marked; trade secrets of con- tractors or subcontractors; staff papers submitted to the Commission for consideration; Information which relates to the medical history, personnel, or PAGENO="0141" FEDERAL PUBLIC RECO~DS LAW 413 security records of any individual; unclassified patent applications not yet released; information concerning bills of material~ time schedules, antlc~ipated requirements, possible new sites, and selection of contractors in advance of formal announcement, or any other information which, while not affecting the common defense, might assist an individual or contractors to benefit improperly from a Commission program; lists of disqualified bidders and ineligible con- tractors; information obtained in the course of a privileged relationship, such as details of the financial position of a contractor; and public announcements which are in the process of preparation. The Commission conforms to the provisions of 18 U.S.C. 1905, which prohibit the disclosure, to any extent not authorized by law, of information received relating "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 private parties. "8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register (see sec. 3(a) of the Administrative Procedure Act) ?" No private party is required to resort to organization or procedure not pub- lished in the Federal Register. "9. In what types of cases has your agency refrained from publishing rules where there is invovied any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority?" Except to the extent specified in this letter, the Commission has not refrained from publishing rules on the ground that there was involved any function of the United States requiring secrecy in the public interest. Certain of the Commission's classification guides which identify restricted data and defense information, are not made available to the public, except in accordance with access permits issued under part 25, because they contain restricted data and defense information. A document prepared for the assistance of AED officials negotiating con- tracts, and dealing with criteria for negotiating fees in certain cost-type con- tracts, is designated as "official use only." The standards for the selection of contractors have `been published in the Commission's procurement regulations (41 CFR PL 9~-56). Certain very limited special instructions concerning criteria for the selection of contractors to operate Commission-owned facilities have been designated "official use only." ":10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency manage- ment, pursuant to section 3(2) of the Administrative Procedure Act or other authority ?" The Commission has not refrained from publishing rules on the ground that there was involved matters relating solely to internal agency management. "11. What `is your agency's definition of "official record" as used in section 3(c) of the Administrative Procedure Act?" The `Commission has no official definition of "official record." Under 10 CFR section 9.3, the "public records" of the Commission are defined to include, subject to the exceptions in `section 9.4 noted in the answer to question No. 7: (a) All filings in proceedings; (5) All correspondence or portions of correspondence to and from the AEC regarding the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or permit or regarding a rulemaking proceeding subject to part 2; (c) All correspondence or portions of correspondence to and from the AEC as to the interpretation or applicahility of any statute, rule, regula- tion, order, license, or permit; and letters of opinion as to such matters signed by the General Counsel; (d) All filings in court proceedings to which the AEC is a party and all `eorrspondence with the courts or clerks of the court; (e) Documents received or prepared as a result of prohibited ew parts communications relating to procedings on the record before the AEC: (1) All reports required by licenses, regulations or orders and filed by a licensee after September 1, 1963, with the regulatory staff and corre- spomlence between licensees and the regulatory staff concerning these reports; PAGENO="0142" 414 FEDERAL PtI3LIC RECORDS LAW (g~ Notices of alleged violations issued after September 1, 1963, to- gether with the licensee's reply, it any, and correspondence between licensees and the regulatory staff concerning alleged violations. * ~ou have requested that we provide two copies of each regulation, directive, order, or other document Issued by this agency to implement 5 U.S.C. 1002. En view of the relevance of so many of the parts of the Commission's regula- tions, we `believe that it would `be most `helpful to furnish complete copies of 10 CFR chapter I. We `have accordingly included two copies of each of the following: 1. Atomic Energy Commission "Rules and Regulations"; 2. AE'O Manual, chapters 2104 and 3106; 3. Procurement Tnstruction 9~-~5&103; 4. Procurement Regulations, 41 OFR section 9-3.103. We shall be pleased to cooperate with your subcommittee in the development of any further information you may wish to have concerning the subject of your inquiry. `Cordially, GtENN P. SRABORG, Chairmctn. Riipr4r FROM CANAL ZONE GOVERNMENT CANAL ZONE GOVERNMENT, Orrrcn OF THE GovuawoR, Balboa Heights, C.Z., March 16, 1965. Hon. Jonx E. Moss, Chairman, Foreign Operations and Government Information subcommittee, Committee on Government Operations, House of Representatives. DEAR Mn. Moss: This is in reply to your letter of February 12, 1965, setting forth a series of questions pertaining to the application and administration by the Canal Zone Government of section 3 ("public information section") of the Administrative Procedure Act of 1946 (5 U.S.C. sec. 1002). Inasmuch as the provisions of the Administrative Procedure Act are not ap- ~licable to the Canal Zone Government, it would appear that a detailed response to these questions would not be appropriate. Specifically, under section 2 of the act (5 U.S.C. 1001) "agency" is defined to exclude "governments of the posses- sions, Territories, or the District of Columbia." However, as a matter of possible interest to the subcommittee, it may be noted that regulations of the agency which affect the public such as regulations per- taining to exclusion and deportation of persons from the Canal Zone, air navi- gation and customs are published in the Federal Register and in title 35 of the Code of Federal Regulations. In addition, a statement of the organization and functions of the agency is published in the U.S. Government Organization Manual (1964 ed., p. 371). If you desire further information on this matter, we shall be pleased to pro- vide It. Liaison can be maintained with Mr. W. M. Whitman, Special Assistant to the Governor, 425 13th Street NW., Washington, D.C. (phone: DIstrict 7- 6984). Sincerely yours, ROBERT J. FLEMING, Jr., O~ovë,rnOr. REPLY FROM CIVIL AERONAUTICS BOARD CIvIL AERONAUTICS BOARD, Washington, D.C., March 16, 1965. Hon. Joux E. Moss, Chairman, Foreign Operations and Government Information $ubcommitte'e, CommIttee on Government Operations, House of Representatives. DEAR Mn. Moss: There is enclosed herewith the Board's reply to the questions concerning section 3 of the Administrative Procedure Act submitted to the Board by your letter of February 12, 1965. Also attached, pursuant to your PAGENO="0143" FEDE~RAL PUBLIC EBCO~PS 14W 415 request, are twQ cop1e~ of the Board regulations and directives relating to the diselo~ureo~ inforn~ation. HAROLD R. SANDERSON, S~ecret airy (For the Civil Aeronautics Board), PARR I-~AN$WERS TO QUESTIONS CONCEBNING THE AVAILABILITY OT INFORMATION FROM THE OIVIL AERONAUTICS BOARD 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches or other constituent units of your agency to which the section does not apply? Section 3 of the Administrative Procedure Act (APA) applies generally to all Board functions other than those specific actions which 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." The general functions of the Board, more particularly described in the enclosed Publh~ Notice PN-15, are the regulation of the economic aspects of domestic and inter- national air transportation, and the investigation of civil aircraft accidents and determination of the probable cause thereof. There are no divisions, bureaus, branches or other constituent units of the Board to which section 3 does not apply. 2. In what official or unofficial publication, and at what intervals, does yaur agency publish? (a) Descriptions of its central and field organization. Section 3(a) (1) of the Administrative Procedure Act requires each agency "to separately state and currently publish in the Federal Register * * * de- scriptions of its central and field organization including delegations by the agency of final authority and the established places at which, and methods whereby, the public may secure information or make submittals or requests." This informatio4 is currently contained in Public Notice PN-15, published in 26 F.R. 7231, and in the following sections of the Board's Organization Regu- lations: Part 385, "Delegations and Review of Action Under Delegation; Non- hearing Matters" (14 CFR 385); part 386, "Delegation and Review of Action Under Delegation; Determination of the Probable Cause of Aircraft Accidents" (14 CFR 386); and part 389, "Fees and Charges for Special Services" (14 CFR 389). Copies of these publications are enclosed herewith. These rules are published and distributed as they are issued or amended in the same manner as procedural rules (see answer to question 2(b)), with the single exception that public notices are not published in the Code of Federal Regu- lations. (b) Statements of the general course and method by which its functions are channeled and determined. Section 3(a)(2) of the Administrative Procedure Act requires every agency to "separately state and currently publish in the Federal Register * * * state- ments of the general course and method by which Its functions are channeled and determined, including the nature and requirements of all formal or in- formal procedures available as well as forms and instructions as to the scope and contents of all papers, reports, or examinations." The information re- quired by this subsection is found in the publications listed in the answer to question 2(a), and in the following additional regulations: "Rules of Con- duct in Board Proceedings" (pt. 300 of the Board's Procedural Regulations, 14 CFR 300); "Rules of Practice in Air Safety Proceedings" (pt. 301 of the Board's Procedural Regulations, 14 CFR 301); "Rules of Practice in Economic Proceed- ings" (pt. 302 of the Board's Procedural Regulations, 14 CFR 302); "Rules of Practice in Aircraft Accident Investigation Hearings" (pt. 303 of the Board's Procedural Regulations, 14 CFR 303) ; "Rules of Practice in Informal Nonpublic Investigations by the Bureau of Enforcement" (pt. 305 of the Board's Procedural Regulations, 14 CFR 305); and "Disclosure of Aircraft Accident Investigation Information" (pt. 311 of the Board's Procedural Regulation~s, 14 CFR 311). Copies of these regulations are enclosed. The publication of procedural rules in the Federal Register is governed by the Federal Register Act (44 U.S.C., 301 et seq.), which provides, inter alia, that rules required to be published by statute must be filed with the Division of the Federal Register before becoming effective. In addition to appearing in the daily issues of the Federal Register, these rules are also codified in the Code of Federal Regulations, which is revised as of January 1 of each year. More- over, copies of the rules are sent to all persons on the Board's mailing list, which generally includes persons subject to the rules involved and other persons PAGENO="0144" 416 ~RbERAL PUBLIC RECORDS LAW having an Interest. Fees and ehltrgaa for such service, if applicable, are set forth in part 389 of the Board's Organization Regulations, 14 CFR 389~ A looseleaf volume of the Board's regulations, composed of substantive, p~o~ cedural and organization rules, and policy statements is available from the Government Printing Ofhoe, and includes the transmittal of future amendments as adopted. The means by which this service may `be obtained is described in the Board's List of Publications, a copy of which is enclosed. In response to that part of the question concerning "intervals" of publishing rules, the process of publication and distribution described above is repeated, after the initial issuance of the rule, only In the event of amendments or revisions. (c) Substantive rules adopted as authorized by law. Section 3(a) (3) of the Administrative Procedure Act requires every agency to "separately state and currently publish in the Federal Register * * * substan- tive rules adopted as authorized by law." The substantive rules adopted by the Board are found in the following regulations: Part 200, et. seq., of the Board's Economic Regulations, 14 CFR 200, et seq.; part 320 of the Board's Safety In- vestigation Regulations, 14 CFR 820; and part 375, et seq., of the Board's Special Regulations, 14 CFR 375, et seq. As recpiired by section 4(c) of the Administrative Procedure Act (5 U.S.C. 1003(c)), substantive rules not exempted by that section are published or served not less than 30 days prior to the effective date thereof. Otherwise, the publica- tion, location, and `distribution is the same as that for procedural rules. (See answer to question 2(b).) (d) Statements of general policy or interpretations formulated and adopted by the agency of the guidance of the public. Section 3(a) (3) of the Administrative Procedure Act requires every agency to "separately state and currently publish in the Federal Register * * * state- merits of general policy or interpretations formulated and adopted by the agency for the guidance of the public." The Board's statements of policy are contained in part 399 o'f the Board's Policy Statements, 14 CFR 399. Publication and distribution of rules in this category are made in the same manner as for procedural rules. (See ansWer to question 2(b).) (e) Rules addres'sed to and served up'on named persons in accordance with law. Section 3(a) (3) of the Administrative Procedure Act e~tOmpts "rules ad- dressed to and served upon named persons in accordance with law" from the re- quirement that "substantive rules adopted as authorized by law," be currently published in the Federal Register. This exemption was intended to avoid filling the Federal Register with a great mass of particular rulemaking (see p. 22 of Attorney General's Manual on the Administrative Procedure Act) and accord- ingly the Board doe's not generally publish such rules. These rules', however, are made subject to the requirements of section 3 (`b) of the Administrative Procedure Act by the last three words of that section ("and all rules") and, accordingly, are served and made available for public inspection in the same manner as opinions and orders. (See answer to' question 3.) 3. Please describe the manner in which your agency publishes, or, in accord- ance with published rule, makes available to public inspection, all final and interim opinions and orders in `the adjudication of cases, pursuant to section 3(b) of the Administrative Procedure Act. Section 3(b) of the Administrative Procedure Act requires that "[e]very 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." All Board interim and final orders and opinion's (except those described in the answer to question 4) are mimeographed and served upon all parties to the proceeding, and entered on the docket card of the respqctive pro- ceeding which is open to public inspection at the Boards principal office in Washington. Copic's of the decision are available to any person asking therefor. Moreover, members of the public can subscribe to Board orders and opinions. The means of obtaining such service, and the fees therefor, is described in the Board's List of Publications and in par't 389 of the Board's Organization Reg- ulations, 14 CFR 389. All decision's are placed on a pres's table in the Board's Office of Public Informa- tion where they are regularly inspected and picked up by representatives of the news media. Major decisions `of the Board are accompanied by an explana- tory press release and are mailed to numerous members of the news media. Board decisions made after formal hearings are printed and published in a Series entitled "Civil Aeronautics Board Reports." Due to fiscal limitations PAGENO="0145" FEDERAL PUBLIC RECORDS lAw 417 these reports are currently 3 years In arrears, the latest voluffie covering cases through March 1962. 4. In what types of cases does your agency refrain from publishing interim and final opinions or orders where, In the opinion of your agency, good cause requires that they be held confidential, pursuant to section 3(b) of the Adniln- istrative Procedure Act or other authority. Section 3(b) of the Administrative Procedure Act exempts, from the require- ment that all final opinions and orders in the adjudication of cases be published or made available to the public, those orders or opinions "required for good cause to be held confidential." This authority is infrequently utilized by the Board, as evidenced by the fact that in the years 1959-04, less than two orders or opinions per year were withheld from publication. It is also noteworthy that, of the orders withheld from publication during this period, approximately half were eventually made public, usually within several weeks of their adoption. Orders withheld from publication have generally involved section 1001 of the Federal Aviation Act, permitting procedings to be closed to the public if the Board "determines that secrecy is requisite on grounds of national defense," or section 1104 of the act, which authorizes the Board to withhold information when its disclosure "would adversely affect the interests of such person [object- ing to the disclosurel and is not required in the interest of the public." 5. In what circumstances are unpublished opinions and orders used as pre- cedents in other proceedings? Whenever an agency withholds from publication final orders or opinions "required for good cause to be held confidential," section 3(b) of the Adiflin- istrative Procedure Act requires that such material not be cited as precedent in other proceedings The Board has never felt it necessary to rely on unpublished orders or opinions as precedents in subsequent proceedings and, therefore, prob- lems under this provision of the Administrative Procedure Act have not arisen. 6. What is the procedure for making available to the general public the records and files, interpretations, and legal opinions of your agency? Section 3(c) of the Administrative Procedure Act provides that "[slave as otherwise required by statute, matters of official record shall in accordance with published rule be made available to persons properly and directly concerned except information held confidential for good cause found." Section 1.6(b) of public notice PN-15 contains a list and description of "[plublic records available for inspection or copying during office hours upon application to the Secretary" of the Board. Section 1.6(e) of PN-15 provides that copies of documents which are available to the public "will, upon written request to the Secretary specifying the number of copies desired, be provided at the expense of the requestor." Furthermore, Section 1.5 (c) of PN-15 describes the Board documents and pub- lications which are duplicated and the means by which they are made available to the public~ Section 442 of the Board's administrative regulations, attached hereto, pre- scribes the procedures governing the disclosur~ of information, other than de- fense information, by employees and former employees of the Board. Section 442.3 describes the procedure for releasing public information in the regular course of business, while section 442.4 governs the disclosure of information pursuant to legal process. The handling and disclosure of limited informajion is covered by section 442.5 and 442.6. Section 302.19(g) of the Board's Procedural Regulations, 14 CFR 302.19(g), specifies the procedures by which the production of documentarY evidence in the custody of the Board may be requested in economic proceedings. The "List of Publications" is a booklet issued by the Board which contains the publications available to the public from the Board, the Government printing Office, and the Air Transport Association, and which describes the means by which they may be obtained. Part 389 of the Board's Organization Regulations, 14 C.F.R. 389, prescribes the fees and charges for the special services available with respect to documents subject to inspection. These services include the following: (a) Copying records and documents. (b) Certification of copies of documents under the seal of the Board. (c) Subscriptions to publications of the Board. (d) Transcripts of hearings. 7. What limitations are placed on the availability of records and files to the general public, either by statute, rule, or practice? 45-213-65-Pt. 2--1O PAGENO="0146" 418 FEDERAL PUBLIC RECORDS LAW Sectiop 3(c) of the Administrative Procedure Act provides that matters of official record shall be made available by agencies to persons properly atid directly concerned, except "as otherwise required by statute'~ and except for the "infor- mation, held confidential for good cause found." The requirements of section 3 are also inapplicable, by its own terms, to "any function of the United States requiring secrecy in the public interest", and to "any matter relating solely to the internal management of an agency." Additional authority for the with- holding of information Is found in sections 204(a), 902(f), 1001, and 1104 of the Federal Aviation Act, described in greater detail below. Records and materials in the possession of the Board which are not available for public inspection are described in section 1.6 (c) and (4) of the public notice PN-15 and generally include,: (1) Matters classified in the interest of national defense. (2) Records, letters, memorandums, files, and information created by or coming into the possession of~ or within the knowledge of the Board or its staff in the discharge of their official duties. Section 16(d) further provides, however, that material in this category "may be disclosed in response to a request to persons having a legitimate interest if the disclosure of such information is found by an authorized employee to be appropriate to the furtherance of the objectives of the act or is approved by the Board upon good cause shown. Information ordered by the Board to b~ withheld may be disclosed only by direction of the Board." Section 442 of the Board's administrative regulations describes the procedures governing the disclosure of information, other than defense information, by employees and former employees of the Board. The Board's general authority to classify its materials as. public and nonpublic, and to withhold information, stems from section 204(a) of the Federal Aviation Act (72 Stat. 743(a), 49 U.S.C. 1324(a) ), which authorizes the Board to promul- gate rules, regulations, and procedures necessary to the discharge of its duties. En addition, there follows a description of provisions of the Federal Aviation Act, and implementing Board regulations, which `authorize the withholding or pre- clude the revealing of information in specific areas. As provided by section 1001 of the Federal Aviation Act (72 Stat. 788, 49 U.S~C. ~1481), Board proceedings shall be open to the public unless the Board "determines that secrecy is requisite on grounds of national defense," in which latter case the record of such proceeding would not be available for public in- spection. As regards secrecy of documents on grounds of national defense, the Board's action is controlled by the more comprehensive provisions of Executive Order 10501, which requires classification of documents containing official infor- mation which requires protection in the interests of national defense, and regu- lates use of such documents. The Board is subject to section 2(b) of this order, making the Chairman the sole authority for classification of such documents which originate with the Board. Executive Order 10501 is implemented by section 441 of the Board's administrative regulations, attached hereto, which sets forth the procedures governing the classifying and protection of information in the interest of national defense. Section 1104 of the Federal Aviation Act (72 Stat. 797, 49 U.S.C. 1504) author- izes t)ie Board to withhold documents from the public where "a disclosure of sucl~ Information would adversely affect the interests of such person [objecting to the disclosure], and is not required in the interest of the public." This policy has been applied to written evidence and oral testimony in economic proceedings by section 302.39(b) of the Board's Procedural Regulations, 14 O.F.R. 302.39(b), and to information elicited in accident investigations by section 303.23 of the Board's Procedural Regulations, 14 C.F.R. 303.24. Part 305 of the Board's Procedural Regulations, 14 C.F.R. 305, which governs informal nonpublic investigations., provides that the "record of such proceedings shall constitute `internal Board documents which shall not be available to the general public" (pt. 305.10). See, also section 302.314 of the Board's Procedural Regulations, 14 C.F.R. 302.314, which precludes the disclosing of certain informa- tion by parties to mail-rate conferences. Section 701(e) of the Federal Aviation Act (72 Stat. 781, as amended, 49 U.S.C. 1441) provides that: No part of any report or reports of the Board relating to any [aircraft] accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports. PAGENO="0147" PEDE:RAL PUBLIC RECORDS LAW 419 To implement this provision, part 311 of the Board's Procedural Regulations, 14 O.F.R. 311, provides in substance that accidents reports and underlying j~apers must not be given out to third persons ~r otherwise made public, and that only factual data about the accident observed by Board personnel, and not their ~opiniofl5, suggestions or recommendations, shall be disclosed, upon formal inquiry or in court proceedings. Section 902(f) of the Federal Aviation Act (72 Stat. 784, as amended, 49 U.S.C. 1472) prohibits any member, officer o~ employee of the Board from divulging any fact or information obtained during the course of an examination of the accounts, records and memorandums of any carrier, or which is withheld from public dis- closure under section 1104, except as directed or authorized by the Board or a court of competent jurisdiction or judge thereof. This section does not, however, authorize the withholding of information from the duly authorized committees of Congress. 8. In what circumstances are private parties dealing with yonr agency required in any manner to resort to organization or procedure not published in the Federal Register? Section 3(a) of the Administrative Procedure Act provides that "[nb person shall in any manner be required to resort to [agency] organization or procedure" not published in the Federal Register. In dealing with the Board, private parties are no required to resort to any organization or procedure not so published. 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy In the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Section 3 of the Administrative Procedure Act requires agencies to publish Its rules except, inter `alia, "to the extent that there is involved (1) any function of the United States requiring secrecy in the public interest." The Board has not, however, utilized this authority to refrain from publishing rules. 10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency manage- ment, pursuant to section 3(2) of the Administrative Procedure Act or other authority? In addition to the "secrecy" exception discussed in the answer to question 9, section 3 of the Administrative Procedure Act also exempts, from its rule-pub~ lishing requirement, "any matter relating solely to the internal management of an agency." The general rules governing the Board's internal management are set forth in its administrative regulations as contained in the two volumes of the CAB Manual. Since these rules do not generally affect members of the public, they are not published in the Federal Register, in accordance with the underlying rationale of the section 3(2) exception. Those internal manage- ment regulations, however, relating to the providing of information to the public, are largely duplicated in Public Notice PN-15. 11. What is your agency's definition of "official record" as used in section 3(c) of the Administrative Procedure Act? Section 3(c) requires that, with noted exceptions, "matters of official record shall in accordance with `published rule be made available to persons `properly and `directly concerned" (emphasis added). While the B'oard ha's not specifically defined the term "official record," the records in the possession of the Board which are available for public inspection and copying `are described in Public Notice PN-15 and generally include: (1) Documents required or permitted to be filed with the Board by `the Federal Aviation Act, or any other statute or by any rule or order of the Board. (2) Material or record filed in any adjudicatory, investigative or rule& making procedure. (3) Public notices, compilations, tabulations, reports, and other materials published by the Board or authorized by the Board for publi'c release. (4) Approved `minutes of Board meetings, excep't portions relating to pend- `ing matters. (`This category of information is available only `to "persons properly and directly concerned with the subject thereof"). A provision of the Federal Aviation Act `w'hi'ch has a `bearing on this subject "is section 1103 (72 Stat. 797, 49 U.S.C. 1503), which designates as public' records "copies of tariffs, and of all contractS, agreements, understandings, and arrange- ~ments filed with `the Board as herein provided, and the statistics, table's `and figures `contained in `the `annual or other reports of `air carriers and `other persons PAGENO="0148" 420 FEDERAL PUBLIC RECORDS LAW made to the Board as required under the provisions of this act." See also ~ec'tion 1001 which provides that in proceedings before the Board `9e)very vote and offi- cial act of the Board * * * shall be entered of record." REPLY FROM `CIVIL `SERVICE COMMISSION U.S. CIVIL SEXRVI6E COMMISSION, Wa$Mngton, D.C., Marefl~ 15, 1965. Hom JoHN B. Moss, Cha4rman, Foreign Operations and Government fornat'io~ Subcommittee, Com- mittee on Government Operdtions, Hou.se of Representatives. DEAR Mn. Moss: This is in reply to your letter of FObruary 12, 1005, in which you present a number of questions on bow the Commission satisfies the require- ments of section 3 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002), ~nd ask for copies of every regulation, directive, order, or other document that the Commission has issued for this purpose, The `Commission's response to your letter is enclosed. If I can be of any further assistance in `this matter, please let me know. Sincerely yours, JOHN W. MACY, Jr., Chairman. ANSWEB OF THE CIvIL SERVIcE CoMMIsSIoN vo QUEsTIoNs ON APPLICABILITY OF SECTION 3 OF THE AOMINISTH&TIVE PROCEnURE ACT' (5 U.S.C. 1002) TO THE COMMISSION'S FUNCTIONS 1. Along with other agencies, the Civil Service Commission first published information in the Federal Register on September 11, 1946, to give effect to sec- tion 3 of the Administrative Procedure Act, Amendments of-and additions to- this materis~l were published in the Federal Register for February 1, 1947, Febru- ary 25, 1947, May 1, 1947, May 14, 1947, June 11, 147, November 5, 1947, and December 27, 1947. This material was designated as parts 01 and 02 of the Commission's regulations, and was scheduled for codification in chapter 1 of title 5 of the Code of Federal Regulations. However, the Commission published information in the Federal Register for October 22, 1948, indicating that parts 01 and 02 would not be codified, and that future amendments of this material would be published in the Notices section of the Federal Register. In the interim, the Attorney General's Manual on the Administrative Procedure Act was published in late 1947, and the interrpreta'tions provided in that manual indicated that few, if any, functions of the Civil Service Commission were sub- ject to any of the provisions of the Administrative Procedure Act. The Com- mission eventually adopted this position, with the major reasons for doing so being as follows: Section 3 of the act excepts "any matter relating solely to the internal management of an agency." The Attorney General's Manual on the Act indicates (p. 18) that this should be interpreted as excepting matters relat- ing to the internal management of the Government as a whole as well as matters relating to the internal management of individual agencies. Most of the Commission's operations relate to the internal management of the Government as a whole. Section 4 of the act specifically excepts "any matter relating to agency management or personnel." The Attorney General's Manual also interprets this phrase (p. 27) as applicable to the Government as a whole and not just to individual agencies. Section 5 of the act excepts matters relating to "the selection or tenure of an officer or employee of the United States other than examiners appointed pursuant to section 11." Accordingly, the Administrative Procedure Act affects the Commission's oper- ations as follows: (1) "In the adjudication of cases"-to those cases which involve (a) alleged political activity on the part of officers or employees of State or local agencies whose principal employment is in connection with a federally financed activity (sec. 12 of the Hatch Act, 5 U.S.C. 118k) and (b) the discharge of examiners appointed pursuant to section 11 of the Administra- tive Procedure Act (5 U.S.C. 1010) ; and PAGENO="0149" FEDERAL PUBLIC RECORDS LAW 42:1 (2) "In other areas"-ifl rulemaking to carry out the provisions of the Federal Employees Health Benefits Act of 159. (Members of the public may become "carriers" of health benefits plans under this act) Our answers to all of the subcommittee's questions are made on the basis of the above-described applicability of the Administrative Procedure Act to the Commission's operations. 2. The only actions of the type referred to in this question 2 which the Com- mission currently takes for the purpose of satisfying the requirements of section 3 of the Administrative Procedure Act relate to the specific areas described in our answer to question 1 as being subject to the Administrative Procedttre Act. Accordingly, the following further answers to this question are made with this fact in mind: (a) and (b). Annually, the Commission publishes information on its central and field organizations in the U.S. Government Organisation Manual which, we believe, contains substantially the same information required for publication in the Federal Register by section 3(a) (1) of the Administrative Procedure Act, e.g., this information appears in the 1964-t15 edition at pages 496-SOS. In addi- tion, this information contains some-but not all-of the information called for by section 3(a) (2) of the Administrative Procedure Act. (As indicated in the foreword of that manual, it is a special edition of the Federal Register but is not issued to satisfy the publication requirements of sec. 3 of the Admin- istrative Procedure Act.) (c) Under section 12~ Hatch Political Activities Act, as amended, 5 UJE~.C. 118k-Section 12(d) of this act states that "The Commission is authorised to adopt such reasonable procedure and rules and regulations as it deems necesssry to execute its functions under this section." 51c'tion 15 of the act states "The provisions of this act which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the U.S Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the Tlnitd States by the provisions of the civil service rules prohibiting such em- ployees from taking any active part in political managment or in political campaigns." On the basis of the provisions of sections 12 and 15, no rulemaking has been necessary~ other than the rules of practice for the adjudication of cases. These appear at 5 CFE part 151. Dicharge of ewaminers appointed pursuant to section 11 of the Administrative Procedure Act-The rules adopted by the Commission In this area appear at 5 CFR part 930 (Subpart B). Rulemaking to carry out the provisions of the Federal Employees Health Bene- fitS Act of 1959.-The rules adopted by the Commission in this area appear at 5 CFR Part 890. (d) In 1949, the Commission published a book entitled "Hatch Act Decisions of the U.S. Civil Sertice Commission," which was prepared by the then Com- mission Hearing Examiner who handled cases under section 12 of the Hatch Act. Among other things, this book contains information of the type referrOd to in this question; and members of the public who contact the Commission for infoririation on section 12 are advised of thO availability of this book through ~~`te Superintendent of Documents for $1~5O. (e) The Commission has not published any rules of this type. 3. Part 2 of the boOk referred to In our answer to question 2(d) is described as "A Case Book on Commission Decision," and outlines the final report and order in the significant section 12 casOs decided b~ the Commission up to that time. Otherwise, the Commission has not actually published its report and orders in these cases. However, the nuiterial published in the Federal Register during the 1946-47 period to give effect to section 3 of the Administrative ProcO- due Act (as described in the answer to question 1) contained a rule to the effect that the Commission would make final opinions and orders in these cases avail- able for public inspection, and the Commission has continued to do this sinCe that time. The Commissiob also does the same thing in removal-'of~heariflg examiner cases, but has not actually published a rule to that effect. 4. None. 5. Cases subject to the Administrative Procedure Act.-~--OpifliOns and orderS may be used and cited as precedents in cases in which State and local employees are being removed under authority of section 12 of the Hatch Act and `of hearing examiners being removed under section 11 of the Administrative Procedure Act. In so doing, the Commission does not cite or use opinions and orders as precedents PAGENO="0150" 422 FEDERAL PUBLIC RECORDS LAW in other proceedings which are not available to the public to the ex'tErnt described in the answer to question 3. Cases not subject to the Administrative Procednre Act.-The Commission's organization adjudicates numerous types of "appeals" from applicants for Fed- eral employment and from employees of other agencies. Typical of these cases are appeals from employees who have been discharged or subjected to other disciplinary actions that are subject to section 14 of the Veterans' Preference Act (5 U.S.C. Sup. 86g). In many of these cases, a Commission adjudicating office may decide a case on the basis of a precedent case which Is not published or otherwise available. 6. and 7. Records, files, interpretations, etc., in case's- subject to the Adminis- trative Procedure Act.-The Commission will make this material available to the general public on much the same basis that it makes opinions and orders available in eases under section 12 of the Hatch Act. (See answer to question 3.) Records, files, interpretations, etc., in cases not subject to the Ad~ninfstrative' Procedure Act.-The Commission publishes a large body of regulations in the Federal Register on how its operations are carried out (see chapter 1 of 5 CFR). It also publishes extensive supplementary information in the Com- mission's Federal Personnel Manual which reflects policies, procedures, inter- pretations, and legal opinions, The Commission-and Federal agencies gen- erally-ordinarily will make a copy of this manual available in their offices to members of the public on request, and any person may order a copy from the Superintendent of Documents. On the other hand, the Commission does not make available to the pablic on request the following: (a) Examination questions and other examining material. (b) Ratings made by individuals in civil service examinations. (c) Records and files not relating to actions or cases subject to the Administrative Procedure Act. (d) Information from the Commission's Investigative files. (e) Information from retirement records. (f) Information from medical records of applicants and employees. (g) Results of inspections of agency operations under delegation of authority. The Civil Service Act, 5 U.S.C. 632, et seq., and other statutes administered' by the Commission including the Civil Service Retirement Act, 5 U.S.C. 2251, et seq., and the Veterans' Preference Act of 1944, as amended, 5 U.S.C. 851, et seq., provide the bases upon which the Commission generally relies for the nondisclosure of information within the categories outlined above. Although the statutes do not expressly authorize the Commission to restrict, by regu- lation, the release of information, the Commission considers that it has the authority to do so if necessary in the public interest and the effective adminis- tration of the laws subject to its jurisdiction. S. Actions subject to the Admini~s-trative Procedure Act.-None. We believe (1) the rules of practice in actions proposed against State and local employees under section 12 of the Hatch Act (5 CFR, pt. 151) and hearing examiners ap- pointed under section 11 o'f the Administrative Procedure Act (5 CFR, pt. 930, subpart B) and (2) the rules to carry out the provisions of the Federal Employees Health Benefits Act of 1959 (5 CFR, pt. 890) satisfy the intent of the require- ments referred to here. Actions not subject to the Administrative Procedure Act.-.The Commission does not publish in the Federal Register the organization or procedure which an applicant for (1) Federal employment should follow when appealing a rating assigned in a civil service examination, and (2) annuity should follow in a so-called Hiss Act ease under 5 U.S.C. 2281, et seq. However, these applicants are given this information by other means. 9. None. 10. As indicated in our previous answers, the exception in section 3(2) of the Administrative Procedure Act is one of the major reasons why the Commission consider~ that most of its functions are not subject to the Administrative Procedure Act. 11. We consider that this term means a record relating to an action or case that is subject to the provisions of the Administrative Procedure Act. PAGENO="0151" FEDERAL PUBLIC RECORDS LAW 423 The material that we consider covered by the request contained In the last paragraph of the subcommittee's letter is as' follows: 1. United States Government Organization Manual for 1964-65 (pps. 496-505). 2. Book entitled "Hatch Act Decisions of the United States Civil Service Commission." 3. 5 OFR, part 151. 4. 5 CFR, part 890. 5. 5 CFR, part 930 (subpart B). 6. Material from Federal Register for September 11, 1946, February 1, 1947, February 25, 1947, May 1, 1947, May 14, 1947, June 11, 1947, November 5, 1947, December 27, 1947, and October 22, 1948. Copies of all except the publication described in 1 are attached. REPLY FROM THE DISTRICT OF COLUMBIA GOVERNMENT GOVERNMENT OF THE DISTRICT OF COLUMBIA, WasF~ingto'a, D.C., Maroh~ 10,1065. Hon. JOHN B. Moss, U.S. House ojl Representatives. DEAR Mu. Moss: This is in reply to your letter dated February 12, 1965, request- ing that we provide the Foreign Operations and Government Information Sub- committee with information on implementation by the District government of 5 U.S.C. 1002, the Administrative Procedures Act of 1946. Since the government of the District of Oulumbi'a is specifically exempted in 5 U.S.C. 1001(a) from the provisions of the act, I will not attempt to answer each of the 11 detailed questions of your letter. The District government has, nevertheless, given `extensive attention to Its administrative procedures and has developed, a thorough cove'rage designed ex- pressly for its type of activities. It is our belief, therefore, that adequate adminis- trative procedures are provided within the District government. For example, there are a number of special appellate groups that are designed exclusively to provide administrative remedies, such as the Contract Appeals Board, the Board of Appeals and Review, the Fire and Police Trial Boards, and the Motor Vehicle Owner s and Operators Appeals and Review Board In addition a number of District `agencies provide appellate procedures from actions taken by their own agencies such as the Department of Occupations and Professions, and the Alco- holic Beverage Control Board. l~w otices of rules and regulations are published in the District Register every 2 weeks and consolidated in the Code of the District of Columbia Regulations. Subscribers to a Regulation Code Amendment Service receive notice' of changes within a few days of their adoption. Official records are `made available to members of the press and the general public upon showing of sufficient purposeful reasons as contrasted to' reasons of curiosity. This applies to all matters Involving the conduct of public business but not records which, for the proper protection of the best interest of the' municipal corporation, are of a confidential nature. Should you wish to maintain liaison between your subcommittee and the District government in this matter, please contact Mr. Paul Flaberty on Code 137, extension 441. If you would like to discuss this matter further or wish additional Information, please let me know. Sincerely your~ WALTER N. Tomirxnu, President, Board of Commissioners. PAGENO="0152" 424 FEDERAL. PUBLIC RECORDS LAW REPLY FROM EXPORT-IMI?ORT BANK OF WASHINGTON EXrOET-flsPORT BANK OF WAs~TIN5~PON, Washington, D.C., Mecch 12, 1l~65. Hou. Jonu B. Moss Cha~irman, Foreign Operations and Government Information ffuhcemmittee, CoMmittee on Governmthrt Operations, Honse of Representatives. DEAR Mn. Moss: This is in response to your request of February 12, i9~35, con- cerning your study and evaluation of the a~ailab1ity of infOrmation from 13~ederal departments and agencies. Our replies to your numbered questions follow: 1. Section 1002 of 5 U.S.C. applies to all functiota of the Bank, There are no constituent units of the Bank to which sectioh 1002 does not apply. The Bank has no branches or field offices. Our only office Is in Whshlngton, D.C. 2. The basic principles by which the Bank is guided in its operations and the procedures for filing applications for loan and guarantee assistance were pub- lished in the Federal Register of August 24, 1957, on pages 6863-6865. (12 C.F.R. 401-402.) 3, 4, and 5. Not applicable since the Bank has no adjudicatory function. 6. Information is maintained and made available for public inspection as provided in 12 C.F.R. 401.3(f). 7. The only limitation upon the availablity of records and files is in regard to matters requiring protection of the national defense or foreign policy, mutters relating to internal management, including personnel rules and practices where personal privacy is a consideration and data submitted to us which is privileged or confidential. With respect to the latter, we believe it to be our responsibility to retain exclusive possession and control over privileged or ronfidential in- formation furnished by applicants for our consideration in evaluating requests for the Bank's loan and guarantee assistance. It is our concern that such in- formation be protected so that the Bank may obtain the submission of financial, production, cost, inventory, sales and other data with an assurance to the applicant that such information will be used only for the limitet and intended purpose of reaching a decision on the applicant's request for assistance. Where it to become known among the ITS. exporting community and foreign purchasers of U.S. goods and serrices that the Bank could not be relied upon to protect such data, our future ability to obtain fully documented applications would be seriously impaired. 8. In no circumstances are private parties required to resort to organization or procedure not published in the Federal Register, 9 and 10. Not applicable since the Bank has no adjudicatory functions. 11. The Bank regards as matters of official record all applications, and docu- ments in support thereof, for the Bank's assistance in financing and facilitating exports and imports as Well as doëuments embodying Bank decisions with re- spect thereto. There are enclosed two copies of 12 O.P.TI. 401-402 as well as two copies of selected Bank press releases during this fiscal year ahd our 19E~4 quarterly reports. We appreciate the opportunity afforded us to furnish the foregoing informa- tion. If anything further is required, we will be pleased to cooperate. Sincerely yours, ~IAROLD l~. LINnRR. REPLY FRoM FARM CREDIT ADMINISTRATION FARM OnEDIT AD~ISt1tATIO~~I, Washington, D.O., Aprii 1, 1965. Hon. JOHN B. Moss, Chairman, Foreign Operations and Government Information Fiubcommittee, Committee on Government Operations, House of Representatives. DEAR Mn. Moss: This refers to your letter of February 12, 1965, requesting that we furnish the Foreign Operations and Government Information Subcom- mittee answers to certain questions dealing with section 3 of the Administra- tive Procedure Act of 1946. Our answers are numbered as are the questions in your letter to which they relate. First, however, we wish to point out that the applicability of the PAGENO="0153" FEDERAL ]?UBLIC RECORDS LAW 425 Administi'ailve Procedure Act to the functions of the Farm Crt~dit Administra- tion is extremely limited. As required by section 3 of the act, the Admitilsira- tion publlshes in the Federal Register descriptiops of agency organization including delegations of final authority, and certain provisions' from our man- uals which are also included in the Code of Federal Regulations. However, we do not engage in public rulemaking, or conduct agency hearings, or issue final opinions or orders in the adjudication of cases. 1. The Farm Credit Administration supervises the 37 banks and about 1,209 associations that comprise the cooperative farm credit system. The United States is divided into 12 farm cr~dit districts. In each of these districts there is a Federal land bank which makes long-term land mortgage credit available to farmers, a Federal Intermediate credit bank which makes intermediate- and short-term credit available to them, and a bank for cooperatives which makes credit available to farmers' marketing, purchasing, and farm business service cooperatives. There also is a Central Bank for Cooperatives in the District of Columbia. In addition, there are in each dlstiict from 28 to 93 Federal land bank associations' and from 26 to 77 production credit associations, We have not had occasion to distinguish any of the functions of the Farm Credit Administration as not being subject to 5 USC. 1002 according to its terms, 2, The Farm Credit Administration publishes in the Federal Register tjiose matters with which your questions 2(a) through 2(d) are concerned, to the ex- tent applicable. The Administration does' not make rules as contemplated by question 2(e). Publications in the Federal Register are not made at any pre- determined intervals, but are made when necessary to amend, modify, or sup- plement existing rules, or to promulgate new ones. 3. The Farm Credit Administration does not engage in the `adjudication of cazes" and, therefore, has no occasion to publish such "final and interim opinions or orders." 4. See 3 above. 5. See 3 above. 6. Information contained in records of the Farm Credit Administration and of the banks and associations it supervises is made available to the general public and otherwise as provided in 6 OFE 4.1-4.10. The latter section is as follows: § 4.10 OffIcial records generally The Farm Credit Administration and the several banks or associations under its supervision keep confidential the classes of records enumerated in sections 4,2, 4.4, 4.5, and 4.8. Information contained in other official records in the custody of the Farm Credit Administration or of a particu- lar bank or association may be made available to persons directly and properly concerned upon written application to the Farm Credit Adminis- tration or the particular bank or association. Such application must identify the specific information sought and must show bow the applicant is concerned therewith. Such applications with respect to official records in the custody of the Farm Credit Administration may be granted by the Governor or any Deputy Governor or by the director or other division head in charge of the functions to which the records relate. Such applications with respect to official records in the ciistody of a particular bank or association may be granted ~y the chief executive officer of the bank or association in accordance with the provisions of this part. 7. See 6 above. 8. There appears to be no such circumstances. 9. No such cases have arisen. 10. In general, the Farm Credit Administration does not publish rules dealing with matters of internal management where these are solely its concern and do not affect the members of the public to any extent. 11. Official records are considered by this agency to include those documents and information with which 6 CUR 4~1-4.10 are concerned.' The codified rules or documents issued by the Farm Credit Administration to implement 5 U.S.C. 1002 are published as chapter `1 àf title 6 of the Code of Federal Regulations, and amendments thereto (29 F.R. 2739. 4925, 6380, 6517, 7017, 7857, 7983, 11167, 11971, 12436, 12596; 30 FR. 915, 200,2). Codification of organization statements and delegations (12 FR. 2679) was discontinued PAGENO="0154" 426 FEDERAL PUBLIC RECORDS LAW in 1948 (18 F~R. 5803) but changes are published in the Federal Register (29 P.R. 12486, 11167,4925; 28 P.R. 11937; 26 P.R. 115). For any liaison that may be deemed necessary, our general counsel, Paul 0. Bitter, may be consulted (code 111, extension 5891). Very truly yours, R. B. ToorzLI~, Governor, REPLY FROM FEDEaAL AVIATION AGENCY FEDRRAL AVIATION Aa~Ncr, Washington, D.C., March 17, 1965. Ron. JouN E. Moss, Chairman, Foreign Operations and Goverr&ment Information BubcomsnAttee, House of Represent atices. DEAR Mn. CHAIRMAN: This is in response to your letter questionnaire of Feb- ruary 12, 1965, regarding the applicability of section 3 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002) to this Agency's operations. The follow- ing numbered responses correspond to your numbered questions. 1. In general, section 3 of the Administrative Procedure Act applies to alt func- lions of the FAA, to the extent that performance of the function affects the public. There are no divisions o~ bureaus to which the section does not apply per se. Of course, there are units of the Agency which deal primarily with internal matters, such as the Office of Management Services and the Office of Headquarters Operations. However, to the extent that these and any other units deal with the public, their actions must conform to section 3. 2. (a) The FAA publishes an organization statement in the Federal Register which is subject to amendment from time to time to keep it current. The or- ganization and functions of FAA are also briefly stated in the U.S. Government Organization Manual, a Federal Register publication. (b) The general course and method b~r which FAA's functions are channeled are stated in the organization statement. Insofar as these functions involve rulemaking, they are also reflected in the Federal Aviation Regulations, chapter I of title 14 of the Code of Federal Regulations. The subchapter headings in- ilicate the Agency activities to which the regulations pertain; namely: Subchapter A-Definitions, part 1. Subchapter B-Procedural rules, parts 11-15. Subchapter C-Aircraft, parts 21-49. Subchapter D-Airmen, parts 61-67. Subchapter E-Airspace, parts 71-77. Subchapter F-Air traffic and general operating rules, parts 91-105. Subchapter G-Alr carrier and commercial operator certification and operation, parts 121-135. Subchapter H--Schools and other certificated agencies, parts 141-149. Subchapter I-Airports, parts 151-165. Subchapter J-Navlgational facilities, part 171. Subchapter K-Administrative regulatiQns, parts 181-187. (e) Substantive rules are adopted; anlended, and repealed from time to time as required under statutory standards by developments in aviation. This is a continuing process but action does not occur at regular intervals. The FAA follows a policy of giving public notice of rulemaking under section 4, Adminis- trative Procedure Act even in most instances where notice is not required by law. The publication requirements of the Administrative Procedure Act and the Federal Register Act are fully complied with. (6) Statements of general policy and interpretations for the guidance of the public are adopted from time to time as required by Agency business, and pub- lished in the Federal Register, (e) Rules addressed, to and served upon named persons are not published but are open for public inspection. 3~ The Agency conducts an extensive program of licensing airmen, aircraft, and other aviation facilities under title VI of the Federal Aviation Act of 1958. Licensing falls within the definition of adjudication of the Administrative Pro~ cedure Act, section 2(d). No formal proceedings are required by law. PAGENO="0155" FEDERAL PTJBLIC RECORJ)S LAW 427 Adjudicative action for cause affecting outstanding certificates is authorized by section 609 of the Federal Aviation Act. Tho statute does not require formal hearings by FAA under sections 5, 7, and 8 of the Administrative Procedure Act in such cases but provides for de novo review by the Civil Aeronautics Board of FAA actlou amending, modifying, suspending, or revoking any certificate. Part 13 of the Federal Aviation Regulations and part 301 of the Procedural Regula- tions of CAB apply to these proceedings. Under the Federal Airport Act, FAA administers a program of Federal aid to public airports. Grants are made for specific construction projects and, under a recent amendment to the act, for advance planning and engineering pro- posals, when all statutory and policy standards are met. The Federal Airport Act provides that FAA action take the form of a grant agreement. Such grant agreements may constitute adjudication under section 2(c) (d) Administrative Procedure Act. Under section 901(a) (2) of the Federal Aviation Act, FAA is authorized to compromise civil penalties for violations of certain provisions of the act and the Federal Aviation Regulations. Copies of all final actions involving civil penalty compromises and certificate actions are placed in the public docket which is located in the FAA Building and which is available for Inspection by the public. Thiese documents include in civil penalty cases, civil penalty letters, and letters of acceptance, and in certificate caSes notices of proposed certificate action and orders of suspension of revocation. Since the enforcement actions are not of the type required to be held under the provisions of the Administrative Procedure Act, the main- tenance of the public docket Is not required by the Administrative Procedure Act. The public docket is maintained for the convenience of the public, and no rule has been published concerning it. FAA is an allotting agency under the defense materials system. Allotments may constitute adjudication under the Administrative Procedure Act. While there are no formal published rules regarding accesS to these adjudica- tory findings, all of them are available through the FAA Washington office or the appropriate regional office. in the civil rights field, FAA has certain policing functions. Under the regula- tions of the President's Committee on Equal Employment OpportunitY, 41 CFR part 60-1, as reflected in FAA regulations, the FAA prosecutes violations of the equal opportunity clause by contractors engaged in work under Government contracts let by FAA and under federally assisted construction contracts let under programs administered by FAA. The rules provide for impostioll of sanc- tion, partly with and partly without the concurrence of the President's Com- mittee. No such case has yet occurred. Under title VI of the Civil Rights Act of 1964 and the Implementing FAA regulation, 14 CFR part 15 which was approved by the President, FAA prose- cutes and adjudicates (subject to judicial review) proscribed discriminatory action by recipients of FAA financial assistance vis-a-vls ultimate beneficarles of such assistance. Part 15 provides for formal hearing proceedings in such cases at the option of the respondent. Detailed procedural rules authorized by part 15 have not yet been adopted. It may be that action in the direction of uniformity of Agency procedures in the civil rights field will be taken under the auspices of the President's Coun- cil on Equal Opportunity (Executive Order 11197) or otherwise, and that the matter of publication of adjudication of violations will be taken up in that context, but we have no present information to this effect. The FAA also has a contracts appeals panel which decides contractor claims under FAA contracts to the extent authorized by the disputes clause of a con- tract. Decisions in these cases are not adjudicatory within the definition of section 2(d) of the Administrative Procedure Act. However, the decisions are available for public inspection. 4. Interim or final opinions and orders in adjudication would be held con- fidential when secrecy is requisite on grottnds of national defense. We are not aware of any such instance since FAA was created in 1958. 5. UnpublIshed opinions or orders are not cited as precedents in any proceed- ings under the Administrative Procedure Act. 6. For tile most part, the Agency has no specific procedures for making records, files, opinions, and interpretations available to the general public. The Agency accepts individual requests for such materials, and decides on a ease-by-case basis whether the materials should be made available. It Is the policy of the PAGENO="0156" 428 1'~EDEEAL `PUBLIC RE'OORl~S LAW Agency in these cases to make factual information, available to persou~ who are properly and directly concerned. The Agency operates on the principle that the FAA exists to serve the public and that a free sharing of information with the public i~ generally in the public interest~ Official flies pertaining to rulemaking are held open to inspection in accordance with Agency regulation,~. 14 CFR 11.11 requires that these files be maintained in docket form in the Office of the General Counsel, and be made available to any interested person. 7. Soe't~on 1104 of the Federal Aviation Act (49 1IJ.S.C. 1504), provides that, if any person is required to submit disclosure of it and the Administrator shall then withhold this information from `the public, when it would adversely affect the interest of the person and is not required in the interest of the public. This section reads as follows: Any person may make written objection to the public di~closure of in- formation contained in any application, report, or document filed pursuant to the provisions of this Act or of information obtained by the Board or the Administrator, pursuant to the provisions of this Act, stating the grounds for such objection, Whenever such objection is made, the Board or Admin- istrator `shall order such information withheld from public disclosure when, in their judgment, a disclosure `of such information would adversely affect the interests of such p'erson and is hot required in the interest of the public. The Board or Administrator shall be responsible for classified information in accordance with appropriate law: Provided, That nothing in this section shall authorize the withholding `of~ information by the Board or Adtnin- istrator from the duly authorized committees of the Congress. 49 U.S.C. 1472(f) provides a criminal penalty for the disclosure of such informa- tion unless directed `by the Administrator Or a court of competent jurisdiction. Agency regulations (14 CFR 185.15) deal specifically wRb the question of disclosing FAA documents and records in legal proceedings `between private li'ti~ gants. Such records may be released only after appropriate review by a member of the Office of the General Counsel. Guidelines for the release `of information in these and other circumstances are set forth in Agency Handbook OA P 1200.2 entitled, "Release of Information by FAA Employees." Further guidelines on the release of information marked "Top Secret," "Secret," "Confidential" "For Official Use Only," "NATO," "SEATO," "CENTO," and "AEC Restricted" are contained in Agency Handbook OA P 1600.2 and Agency order AD 1600.3. Copies of these regulat~ons and internal directives are enclosed. 8. Private parties are not required to resort to FAA organization or procedure not published in the Federal Regi'ster. 9. There are no rules in effect which were not published because they involved a function of the United States requiring seCrecy in the public interest. 10. The FAA h'as `a b'ody of internal directives which relate solely to internal Agency management. They are addressed to FAA officers and employees only and do no't prescribe the conduct or determine the rights or liabilltie~ of any members of the public. They are, therefore, not public rules and they are not published. 11. This Agency considers as "matters of official record" the records in hearing cases; exchange's between parties and FAA in any adjudications; the rulemaking dockets; and all FAA rules, orders, or decisions, with supporting opinions (if any), which determine rights or liabilities, `or prescribe `the conduct, of melnbers of the public, `or inform `the public of FAA policy. Also included are reports filed wi'th the FAA and FAA correspondence with members of the public. However, any `such materials either withheld from public disclosure under section 1104 of the Federal Aviation Act because disclosure would adversely affect `the interests of the per~on submitting the information `and is not required in the interest of the pub'ic, or kept secret on grounds of national defense, are not considered "matters of official record" in the sense of "public records" as used in `section 3(c) Ad~niuis'trative Procedure Act. Disclosure of any fact `or information which was gathered during the course of an examination of the accounts, records, or memorandums of an air carrier, is prohibited by section 902(f) of the Federal A~via'tion Ac't excepted as directed by the Administrator. Information collected or developed b~r FAA for the purpose of dis~emination to `the public (section 311 of the Federal Ayiation Act) is, of ~ours~ çwailable PAGENO="0157" FEDERAL ?IJBLIC RECORDS LAW 429- to the public but is not considered as technically within the scope of the term "official record." Sincerely, HAROLD W. GRANT, Lieutenant General, U.S. Air Force, Deputy Administrator. REPLY FROM FEDERAL COAL MINE SAFETY BOARD OF REVIEW FEDERAL COAL MINE SAFETY BOARD OF REVIEW, Washington, D.C., February 33, 1965. Hon. IonN E. Moss, Chairman, Foreign Operations and Government Information~ Subcommittee, Committee on Government Operations, House of Representatives. DEAR Mn. Moss: Reference your letter dated February 12, 1965, relating to the public information policies and practices of this agency, the following an- swers to your questions are submitted: 1. The proceedings of the Board are specifically exempted from the application of the Administrative Procedure Act under section 213 of the Federal Coal Mine Safety Act (66 Stat. 709). However, as a matter of comity, the Board uniformly adheres to the provisions of the Administrative Procedure Act, in- cluding section 3 thereof, to the extent that the Administrative Procedure Act is not inconsistent with the express statutory requirements of the Federal Coal Mine Safety Act. (There are no subordinate divisions, bureaus, branches, or other constituent units in this agency.) 2. The Board publishes in the Federal Register its statement or ogranization and rules of procedure, and amendments thereto, as required by section 3 (a) (1), (a) (2), and (a) (3) of the Administrative Procedure Act. (The Board does not issue statements of general policy or Interpretations, or rules addressed to and served upon named persons.) Moreover, the Board furnishes copies of these statements and rules, without charge, to all interested persons ahd to any other member of the public who so requests. Also, all interested persons are promptly advised by information circular, or other notification, When amendments to the statement of organization or rules of procedure are issued. These materials are published at such intervals as the need therefor demands. 3. Pursuant to sections 205(f) and 207(i) of the Federal Coal Mih~ Safety Act (06 Stat, 698, 702), and sections 401.34 and 401.38 of the Board's rules of procedure (30 CFR 401.34, 401.38), which are consonant with section 3(b) of the Administrative Procedure Act, all final and interim opinions and orders of the Board are served upon the parties and their representatives, and are entered upon the official record, which is open to the public at the Board's offices. More- over, copies of all substantive decisions of the Board are distributed, without charge, to all interested persons and to any other member of the public who requests a copy. 4. Ih no case does the Board refrain from publishing interim and final opinions or orders. 5. No unpbblished opinions Or orders of the Board are cited or used as prece- dents' in other proceedings. 6. Any person who desires may examine the transcripts and complete official records in all cases at the Board's offices. In addition, as already indicated, the Board's decision in each case is supplied to any person who requests a copy thereof. 7. The general public has access to all records and files of the Board, except internal documents, such as intra-agency memorandums relating to the de- termination of particular Board eases; executive communications which have been designated as "privileged"; documents relating to personnel security, re- ceived from and stamped "confidential" by Government investigative agencies; and other personnel records on file with this agency. 8. Under no circumstances are private parties dealing with the Board required in any manner to resort to organization or procedure not published in the Federal Register. 9. There are no types of cases in which the Board has refrained from pablish~ ing rules where there is involved any function of the United State's requiring secrecy in the public interest. PAGENO="0158" 430 FEDERAL PUBLIC RECORDS LAW 10. The Board ha's deemed lit unnecessary to publish rules concerning matters referred to in the answer to question 7, above, because the confidentiality of such documents is Well recognized `in `a quasi-judicial agency like the Board, or because the inaccessibility of `such documents is dictated by the requirements of other departments or agencieS. 11. The term "official record," which appears in section 3(c) of the Admin- istrative Procedure Ac't, is likewise adverted to in sections 205(f) and 207(i) of the Federal Coal Mine Safety Act (66 Stat. 698, 702) ; in sections 401.34 and 401.38 of `the `Board's rules of procedure (80 CFR 401.34, 401.38) ; and in section 5 of they Board's statement of organization. Pursuant to the' requirements of these provisions, the Board includes in such records' all papers filed by the parties, all Board notifications to' the parties', and all other official acts of the Board, including all findings, orders, and opinions issued in the case. As you requetsed, enclosed `are `t*o copies of `the following Board publications: Statement of Organization, as amended; Rules of Procedure, `as amended; Infor- ination Circulars Nos. 1, 2, and 3; and Change of Address Notification. Copies o'f Board `decisions are also available, if you `so desire. For the Board. Sincerely yours, ROBERT J. FREEnLING, General Counsel. RFJPLY FROM Fi~mi~L C0MMuNIOAPIONS CoMMIssIoN Fzmnaiu. CoMMuxIcAnloNs CoMMIsSIoN, Washington, D.C., April ~8, 1965. Hon. Joux E. Moss, Chairman, Foreign OperGtions and Government Information Subcomm%ttee, Committee on Go'eern,men,t Operations, House of Representatives, Was1ting~ ton, D.C. DEAR Mn. OnAIRMAN: This is in further reply to your letter of February 12, 1965, in which you request answers to a number of questions concerning public' information practices to aid in your subcommittee's study of section 3 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002). The information you requested is as follows: 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, brancheS, or other constituent units of your agency to which the section does not apply? As 5 U.S.C. 1002 applies to all functions of the Commission, there are no units of the Commission to which this section does not apply. 2. In what official or unofficial publication, and at what intervals, does your agency publi~b- (a) Descriptions of its central and field organization (see sec. 3(a) (1)' of the Administrative Procedure Act); (b) Statements of the general course and method by which its functiofis are channeled and determined (see sec. 3(a) (2) of statute) (o) Substantive rules adopted as authorized by law (see sec. 3~(a) (3) of statute) (d) Statement of'general ~oIicy or interpretations formulated and adopted by the agency for the gitidance of the' public (see sec. 3(a) (3) of statute) and ` (e) Rules addressed to and served upon named persons' in accordance With law (see s~c. 3(a) (3)' of statute)? The Information referred to in this question `is prthi,arll~t contained in the rules and regulations of the Commission. Rules of general appllc~'bility, except those dealing `with ratemaking, are published in the 1~'ederal `Register as they are issued or amended, and also in `the `Code of Federal Regulations (47 O1~'R). A looseleaf rules service is available from the Government Printing Office in 10 separate volumes. The rules pertaining to radio are also printed In Pike and Fischer, "Radio Regulation," a private SOr~rice. Ctmmission rulemaking do'cu- ments, such as notices of proposed rulemaking, `and reports and orders, are pub- lished in the Federal Register and are also available from the Comtnission's Office of Report's and Information. This Is not `true, however, of ratemaking and certain rules of special applicability, such as those prescribing depreciation rates. Decisions in rulemaking cases involving rate's and similar matters are PAGENO="0159" FEDERAL PUBLIC RECORDS LAW 431 ordinarily published in the FCC reports and ~re available at the Information Office. Publication of rules and rulemaking documents in the Federal Regi~ter occurs within 7-~-1O days after their adoption. Important final rulemaking docu- ments are published in the FCC Weekly Reports, available from the Government Printing Office. In addition, all rulemaking do'ckets (containing all documents issued by the Commission, pleadings and correspondence pertaining to each rub. making proceeding) are available for public inspection at the Conimission's public reference room. (a) Descriptions of the central and field organization are published in detail in subpart A of part 0 of the Commission's rules and in outline in the Com- mission's annual reports. General descriptions are also available in the U.S. Government Organization Manual published by the Government Printing Office. Delegations of authority are contained in subpart B and the places at which and the methods whereby the public may secure information or make submittals for requests are stated in subpart `0 of part 0 of the rules. Some Instructions given in connection with *this `delegation, such as the delegation involving general processing of applications, are contained in notations to the minutes and are nOt made public. We are reviewing the matter to consider whether such notational material should also be made public. Any action taken `by the `Oo'mmission itt this respect will `be immediately brought to the attention of the `subcommittee. (b) Statements of the general course and method `by `which the Oommission's functions are channeled and determined are contained in part 1, Rules of Prac- tice and Procedure (and, to some extent, pt. 0). A very `brief outline of Com~ mission functions, procedures, and organization is contained in an informational bulletin, ~`An ABO of the FCC," available through the Commission's Office of Reports `and Information. (o) Substantive rules are published and otherwise made available as In- dicated above. (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public are published in the Federal Reg- ister, generally in the form of a public notice. They are also available when issued from the Office of Reports and Information. Many such statements are also printed in the official reports of the CommissIon and in Pike and Fischer, "Radio Regulation." They are not ordinarily codified or published as a part of the rules and regulations. Whenever it is considered useful to do so, however, they `are included with the rules (see, e.g., app. B to pt. 1, 47 CFR pt. 1, app. B). In common carrier cases, general policy interpretations often appear In the n~emorandum opinions and orders or Commission decisions In such matters. `(e) Ordinarily the Commission does not publish rules addressed to and served upon named persons. 3. Please describe the manner in which your agency publishes, or, in ac- cordance with published rule, makes available `to public inspection, all final and interini opinion's or orders In the adjudication of cases, pursuant to section 3(b) ~f the Administrative Procedure Act or other authority. When' an application is' received, an application file is established. All orders attd opiniolni pertaining to the application are placed in that file, which is avail- able for public inspection. Public notices listing applications ready and avail- able for processing are' published in the Federal Register. In the case of broadcast applicants, notice of the filing Of the application, as well as~notice of any designation of the `application for hearing must be given by the applicant in the local community pursuant to section 311 of the Communications Act and sections' ~,58O and 1~594 Of the `Commission's rules. Orders issued after designation and prior to hearing and some orders issued prior to designation are published In the Federal Register. Upon designation of an application for hearing (or~in any other hearing matter) a docket file is established, in which all orders, opinions, and other papers pertaining to the hearing proceedings are filed. This file also is avail- able for public inspection. The texts of ordera and opinions in adjudicatory hearing proceedings are made available `by the Commission but are published in the Federal Register only if they have general applicability or legal effect- i.e., if they may affect persons other than parties of record. Copies of all orders and opinions are mailed to counsel for `parties. In matters of adjudication, final declsion$ of the Commission and of the review board, initial decisions which become finai, and significant reports and memorandum opinions are published weekly in pamphlet form, and semiannually PAGENO="0160" 432 FEDERAL PUBLiC RECORDS LAW in bound volumes, as the Federal Communications Commission reports. These documents are not ptiblished in the~Fefieral Register. Decisions afid opinions pertaining to ~radio are also printed commercially In Pike~ and Fischer, "Radio Regulation." Public notice is given of all final and interim orders involved in the adjudication of cases, and they are available to the public through the Office of Reports and Information. 4. In what types of cases does your agency refrain from publishing interjm and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) ~f the AdminiStrative Procedure Act or other authority? The Commission has not refrained from publishing interim and final opinions or orders on the grounds that they are confidential for good cause found. 5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? All opinions and orders are announced by the Commission and published in the sense of being made publicly available at the Commission's 0111cc of Reports and Information. In addition, those opinions and orders which the Com- mission feels are of special significance are printed in the FOC reports. The Commission, therefore, ordinarily cites no opinions and orders as precedent which have not been made publicly available, and, in most instances printed in its reports.~ The Commission believes that in every instance where an opinion or order might have precedential value, it should be printed in the Federal Communications Commission reports (aS well as made public at the 0111cc of Reports and Information) and has so instructed the staff preparing the reports. G. What is the procedure for making available to the general public the records and files, interpretations and legal opinions of your agency? Sections 0.401-0.431 (47 CFR 0.401-0.431) of the Commission's rules describe the records and files which are open to public inspection, the places where they may be inspected, and the procedures to be followed. (For further details, see answer to question 7.) In addition, these sections set out the procedure whereby interested parties may request the Commission to inspect those records which are not generally made available to the public. Moreover, much of the informa- tion available for Inspection at times and places designated by the Commission is also published in such documents as the Federal Register, Corppdssion public notices, the Commission's annual report, and the weekly and semiannual compila- tions of FCC docket case decisions which are printed and sold by the Government Printing Office. With respect to agency interpretations, pursuant to section 3 of the Admin~ istrative Procedure Act we publish in the Federal Register statements of general policy or interpretations formulated by the agency for the guidance of the public~ In addition, we have published inthe Federal Register other general policy state- meats Which, although not reqnired to be published, are of sufficient importance in oar opinion to justify `publication (e.g~, "Political Broadcast Primer"; "Fair- ness Primer"). We have also adopted a policy of pi~blishing such statements in the FCC reports. Ptirther, as to all interpretations having general applicability, the Commission issueS public notices which m~y be obtained at the Commission's Office of Reports and Information. The Commission does not ordinarily isSue legal opinions as such. Its opinions and orders, made public as discussed above (see especially the answer to ques- tion 3) dO, of cOurse, often re1~er to the legal basis and reasons for the Commis- sion's decision. Legal opinions of the' Gommission's General Coua~el or other staff attorbeys are generally prepared for the guidance of the Commission and are not made public. On occasion, the legal opinion of the Oommissipn~ or its General Counsel, is requested by a committee of Congress, in which event any further dls~em1nation of the matter rests in the discretion of the congressional committee. 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice? The following limitations are placed upon the availability of records and files to the general public: 1 One notable exception is that from 1950 to 1951, the FCC reports were not printed due to a lack of funds, although opinions and orders issued during that period continue to be cited as precedent (with citations t~* Pike and Fischer, "Radio Regulation"). Funds have been obtained, and we are now in the process of issuing Federal Communicatlotis ~Commis- sion reports covering the above-noted years, PAGENO="0161" FEDERAL PUBLIC RECORDS LAW 433 A. ISY 5TATTJTE 1. The Comms4n4CatiOsi$ Act (a) Section 4(j) (47 U.S.C. 154(j)) provides in part that the Commission "5 * * is authorized to withhold publication of records or proceedings contain- ing secret information affecting the national defense." (b) Section 213(f) (47 U.S.C. 213(f)) provides that the Commission may make rules and regulations for the purpose of administering that section and states: "* * * Unless otherwise ordered b~r the Commission, with the reasons therefor, the records and data of the Commission shall be open to the inspection ahd ex- amination of the public * * *." This provision has been interpreted as giving the Commission discretionary authority to withhold from public inspection re- ports required by that section. (c) Section 412 (47 U.S.C. 412) provides that the Commission may, if the public interest will be served thereby, keep confidential nny contract, etc., re- lating to foreign wire or radio communication wheft the publication of such would place American communication companies at a disadvantage in meeting the coin- petition of foreign communication companies. (d) Section 605 (47 U.S.C. 605) prohibits the Commission from publicly divulging information obtained in the course of its mopitoring activities, except, of course, in the instance where there is involved the question of a violation of the Communications Act of 1934, as amended, or sections 1343 or 1464 of title 18 of the United States Code. (e) Section 606 (47 U.S.C. 606) gives certain war emergency powers to the President. 2. The Administrative Procedure Act (a) Section 3 (`5 U.S.C. 1002) of the Administrative Procedure Act provides that an agency need not publish or make available the information otherwise required to be published or made available for inspection if it involves any funC- tion of the United States requiring secrecy in the public interest or concerns any matter relating solely to the internal management of an agency. In addition, subsections (b) and (c) of that section permit an agency to hold confidential for good cause found all final opinions or orders in the adjudication of cases and matters of official record. 3. 18 United States Code 1905 Under this penal statute, certain confidential information relating to business operations, trade secrets, etc., which an officer or em~$oyee of the United States obtains in the course of 1ii~ einlloyment or official duties is prohibited from disclosure. 4. 5 U.S.C. 631 Pursuant to that provision, Executive Order No. 10450 provides that with respect to Government personnel, certain reports and investigative material developed by investigations described in that Executive order shall be maintained in confidence. B. AGENCY IIULE 1. Section 0.403 (47 CFR 0.403), by providing that the offices of the Commis- sion are open from 8:30 a.m. to 5 p.m., Monday through Friday, excluding legal holidays, limits the hours when the records made available by section 0.417 (47 CFR 0.417) to the public at the offices in the Commission designated by sections 0.411, 0.413, and 0.415 (47 CFR 0.411, 0.413, 0.415) may be inspected. 2. Section 0.417 provides, with some limitations, that Commission records are open to public inspection. The limitations are based on `the statutory nections set out above. Subsection (a) provides that all Commission records which are available for public inspection are subject `to the security provisions set out in sections 4(j) and 606 of the Communications Act. Paragraph (2) gives access to valuation reports filed by commoti carriers un- der section 213 of the Communications Act, except those designated by the Com- mission as confidential. Paragraph (4) provides for public inspections of contracts', agreements, or arrangements between carriers filed pursuant to section 211 (a) of the Communi- cations Act, except for those kept confidential by the Commission pursuant to section 412 of the act because their disclosure would place American communica- 45-2l3-65-~pt. 2-li PAGENO="0162" 434 FEDERAL PUBLIC RECORDS LAW tion companies at a disadvantage in meeting the competition of foreign com- munication companies. Paragraphs (5) and (6) permit inspection of all documents filed in connection with applications under title II and III of the Communications Act and all doct~- ments filed in connection with rulemaking proceedings except when the Com- mission for good cause found under section 3(c) of the Administration Procedure Act designates them as not for public inspection. Paragraph (7) permits public inspection of all minutes of Commission actions, except for minutes of classified matters held confidential pursuant to section 4(j) of the Communications Act, and minutes of the executive agenda dealing with internal management, or other matters which the Commission holds con- fidential for good cause found pursuant to section 3 of the Administrative Pro- cedure Act. Paragraph (9) allows the public to inspect files relating to submarine cable landing licenses, except for maps showing the exact location of submarine cables, which maps are withheld from public inspeç~tion under section 4~j) of the Com- munications Act. Also, subsections (b) (1), (2), and (3) provido that financial information filed by broadcasting stations, network and transcription contracts, information filed by equipment manufacturers and personnel files are not normally open to public inspection. Statutory authority for these provisions are 18 U.S.C. 1905 and 5 U.S.C. 681. C. AGENCY PRACTICE Other than the limitations placed upon the availability of records and files to the general public by statute or agency rule, the Commission has no practice pre- venting the disclosure of information to the general public. 8. In what circumstances are private parties dealing with your agency re- quired in any manner to resort to ~organization. or procedure not published in the Federal Register (see sec. 3(a) of the APA)? We know of no circumstance in whic1~ p~ftate parties dealing with this Com- mission are required to resort to organi~atjon or procedure not published in the Federal Register. 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to ~ection 3(1) of the APA or other authority? We know of no instance in which the Commission has refrained from publish- ing rules under section 3(1) of the APA or other authority, on the basis that there is involved a function of the United States requiring secrecy in the public interest. 10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency manage- ment, pursuant to section 3(2) of the APA or other authority? Generally, administrative orders and interoffice communications affecting the Internal administration of the Commission (e.g., personnel matters, handling of security information) are not published, although some are available for in- spection in the Commission's minutes and those having general public interest (e.g., governing employees' conduct) have been made available for public in- spection. 11. What is your agency's definition of "official record" as used in section 3(c) of the APA? Because the Commission follows a policy of making its records generally available, with the exceptions and for the reasons stated in response to the above questions, it has not bad occasion to formulate a definition of "official record" under section 3(c) of the APA. Enclosed are two copies of parts 0 and 1 of the Commission's rules and reg- ulations. We believe the rules contained therein implement fully 5 U.S.C. 1002. Also enclosed are copies of several informational bulletins which are designed to inform the general public as to how it may obtain information as to the Com- mission's activities. This letter was adopted by the Commission on April21, 1965. By direction of the Commission, E. WItIIAM HENRY, Chairman. PAGENO="0163" FEDERAL PUBLIC RECORDS LAW 435 REPLY FROM FEDERAL DEPosIT INSUR&NCRI CoRPon~TIow FEDERAL DEJ?OSIT INSURANCE CORPORATION, Was*ington, D.C., MarcJ~ 17, 1~965. Bon. JOHN B. Moss, Ukairman, Fo'reign Operations and Government Information ,S'ubcommittee, House of Representatives. Dn~&n Mn. CHAIRMAN: In your letter of February 12, 1965, vou requested that ~re answer a list of questions relating to the publication of information concern- ing the operations and functions of the Corporation in order to facilitate a study that was being conducted to evaluate the effect of the "public information" section of the Administrative Procedure Act (5 U.S.C. 1002). Those questions and our answers thereto are set forth below in the same sequence the questions were presented in your letter. Before turning to these questions and answers, however, it is quite appro- priate to reflect for a moment upon the concept of confideutiality which has tradi- tionally attended the exercise of supervisory powers over banks in general. From the outset, it must be understood `that it is essential to the effective supervision of banks that the contents of repoi~ts of examination and other records in the adjudication of cases be held privileged and confidential, This proposition aems from very valid reasons. The reports of examination and other records containing information from such reports necessarily deal to a considerable extent with the private and personal business affairs of the banks involved, of their borrowers, and of other customers of the bank. The impor- tance of public confidence in banking institutions cannot be overs'tressed, and the privileged manner in which banking records are maintained plays an essential and key role In this confidence. Disclosure of information from examination reports and collateral records could have a serious adverse effect upon the financial interests of the bank, its depositors, and its borrowers. In addition to the various details relating to loans and other matters, the examiner is required to set forth his conclusions and opinions which many n~t be full~y `shared by others. Because of the understanding that the contents of such examination reports and such other records will be held confidential, the officials of the bank feel free to disclose to the examiner facts having a bearing upon the bank's loans, general condition, problems, operating and investment practices, and loan and credit policies. As a result of this relationship, `the examiner feels free to offer suggestions, comments, and criticisms on the affairs of the bank, its per- sonnel, and problems. This freedom of expression on the part of both the banker and the examiner would be destroyed if the records should be circulated outside of the cuStomary bank supervisory channels. The privileged and confidential nature of the examination reports and other records, including information from examination reports, has been consistently observed by the bank supervisory authorities and recognized in enactments b~ Congress and by the courts. The Federal Deposit Insurance Act clearly implies such confidentialitY by specifically providing in section 7(a) (2), that this Corpo- ration may furnish examination reports to the Comptroller of the Cbrrency, to any Federal Reserve bank and to any commission, board, or authority having supervision over a State bank which is not a member of the Federal Reserve System. The same provision authorizes the Corporation to have access to reports of examination made by the Comptroller of the Currency or any Federal Reserve bank. This Corporation and other Federal banking agencies are expressly au- thorized under such conditions as they may prescribe upon the request of the Farm Credit Administration to make available to the Farm Credit Administra- tion or any district bank or district corporation operating under its supervision, in confidence, all reports, records, or other information they may have relating to the condition of any Institution to which the Administration, such district bank, or corporation has made or contemplates making loans or for which It has dis- counted or contemplates discounting paper, or which it is using or contemplates using as a custodian of securities or other credit instruments, or as a depository (12 U.S.C. 1095). A similar authorization for furnishing the Securities and Exchange Commission with reports, records, and other information includes the following provision (15 uSC. 77 uuu (b)) Notwithstanding any provision of this subchapter, no report, record, or other information made available to the Commission under this subsection, no report of an examination made under this subsection for the use of the Commission, no report of an examination made of any trustee or prospective PAGENO="0164" 436 FED1I~RAL PUBLIC RECORDS LAW trustee by any Federal, State, Territorial, or district authority having juris- diction to examine or supervise such trustee, no report made by any such trustee or prospective trustee to any such authority, and no correspondence between any such authority and any such trustee or prospective trustee, shall be divulged or made known or available by the Commission or any member, officer, agent, or employee thereof, to any person other than a member, offi- cer, agent, or employee of the Commission: Provided, That the Commission may make available to the Attorney General of the United States, in confi- dence, any information obtained from such records, reports of examination, other reports, or correspondence, and c~eemed necessary by the Commission, or requested by him, for the purpose of enabling him to perform his duties under this subchapter. En this connection, attention is called to section 1906, title 18, of the United States Code, which makes it a penal offense for an examiner to disclose the names of borrowers or the collateral for loans of an insured bank except under the cir- cumstances described in the statute. In the case of 1~ank of Am~erioa National Trust d Savings 4ssooi~ation v, Doug- las, 105 F. 2d 100, 103-105 (1939), the U.S. Court of Appeals for the District of Columbia considered the authority of the Secretary of the Treasury to furnish the Securities and Exchange Commission copies of the examiners' reports to the Comptroller of the Currency and the question was whether, if there was authority, the information must be held in confidence. The court in its opinion clearly recognized the confidentiality of bank reports in unequivocal language. In order to protect records and information relating to insured banks, the Corporation has prescribed regulations relating to confidential and privileged records and information of the Corporation pursuant to sections 7(a) (1) and (2) and 9 Tenth of the Federal Deposit Insurance Act. These regulations are discussed in the answers to questions 3, 4, 7, and 10 below. Question 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other constituent units of yuur agency to which the section does not apply? Section 3 of the Administrative Procedure Act (5 U.S.O. 1002) applies to all functions of the Corporation. Consequently, there are no divisions, bureaus, branches, or other constituent units of the C~rporatlon to which this section of the Administrative Procedure Act does not apply. Question 2(a). In what official or unofficial publication and at wi2at intervals does your agency publish description of its central and field organization? The central and field organization of the Corporation is published annually in the Annual U.S. Government Organization Manual, Office of the Federal Register. Any changes in these organizations, and also the established places whereby the public may secure information or make submittals or requests, are published in the Federal Register. All delegations of final authority by the Board of Directors of the Corporation within the meaning of the Administrative 1~rocedure Act have been published in the annual report of the Corporation as well as in the Federal Register as required by the act. Consequently~, any other final delegations of authority or functions which maybe made in the future will also be accomplished by publication in the Federal Register as required by the act. Question 2(b). In what official or unofficial publication, and at what intervals, does your agency publish statements of general course and method by which its functions are channeled and determined? In accordance with section 3(a) (2) of the Administrative Procedure Act, statements of the general course and method by which the Corporation's func- tions With respect to deposit Insurance are channeled and determined, including the nature and requirements of formal and informal procedures available as well as forms and instructions as to the scope and contents of papers and reports, are published in the Code of Federal Regulations (12 CFR Chapter III) and the Federal Register. Question 2(o). In what official or unofficial publication, and at what intervals, does your agency publish substantive rules adopted as authorized by law? All substantive rules adopted by the Corporation are separately stated and published in the Code of Federal Regulations (12 CFR Chapter III) and are currently published in the Federal Register pursuant to section 2(a) (3) of the Administrative Procedure Act. Any substantive rules or amendments to existing rules adopted during a calendar year are published in the annual report of the Corporation for that year. PAGENO="0165" FEDERAL PUBLIC RECOEDS LAW 437 Question 2(d). In what official or unofficial publication, and at what intervals, does your agency publish rules addressed to and served upon named persons in lated and adopted by the agency for the guidance of the public? Statements of general policy and interpretations formulated arid adopted by the Corporation for the guidance of the public are currently published in the Federal Register and in the Corporation's annual report. The Corporation also publishes from time to time in pamphlet form general interpretations with respect to deposit insurance coverage for the guidance of the public. Question 2(e). In what offical or unofficial publication, and at what intervals, does your agency publish rules addressed to and served upon named persons in accordance with law? At present, the Corporation does not issue or formulate, and therefore does not publish, rules which are served upon and addressed to named individuals. Question 3. Please describe the manner in which your agency publishes or, in accordance with published rule, makes available for public inspection, all final and interim opinions or orders in the adjudication of cases pursuant to sec- tion 3(b) of the Administrative Procedure Act or other authority. A review of the opinions and orders previously made by the Board of Directors of the Corporation in the adjudication of certain cases relating to licensing, super- vision, investigation, termination of insured status, payment of insured deposits, and the administration of liquidations and receiverships, has disclosed that their publication is not necessary under the Administrative Procedure Act, inasmuch as these opinions and orders are not cited as precedents in other proceedings and, because of their nature, are required, for good cause, to' be held confidential. However, certain of these orders and opinions are published as described in the answer to question 4. In addition, where such opinions and orders in the future are to be cited as precedents and are not required, for good cause, to be held con- fidential, such opinions will be published and made available for public inspec- tion. (See opening general comments and section 3092 of the rules and regula- tions of the Corporation adopted pursuant to sections 7(a) (1) and (2) and 9 Tenth of the Federal Deposit Insurance Act (12 U.S.C. 1817 and 1819).) Question 4. In what types of cases does your agency refrain from publishing interim and final opinions and orders, when, in the opinion of your agency, good cause requires they be held confidential pursuant to section 3(b) of the Adminis- trative Procedure Act or other authority? The Federal Deposit Insurance Corporation does not publish interim and final opinions or orders in the following types of cases because they are held to be confidential for good cause pursuant to section 3(b) of the Administrative Pro- cedure Act and sections 309.1 and 309.2 of the Corporation's rules and regu- lations: (1) Determinations of whether to approve or disapprove an application of a State or territorial nonmember bank for deposit insurance. (Sec. 5 of the Fed- eral Deposit Insurance Act; 12 U.S.C. 1815.) (2) Determinations of whether an Insured bank has continued unsafe or unsound practices or permitted violations of laws or regulations and whether the insured status of a bank shall be terminated. (Sec. 8(a) of act; 12 U.S.C. 1818(a).) (3) Determinations of whether an insured trust company is doing deposit banking and, if not, to terminate its insured status. (Sec. 8(c) of act; 12 U.S.C. 1818(c).) (4) Determinations of whether the Corporation should make a loan to, pur- chase the assets of, or make a deposit in, an insured bank to prevent its closing, or permit it to resume business when its operation is essential to provide ade- quate banking services. (Sec. 13(c) of act; 12 U.S.C. 1823(c).) (5) Determinations of whether a loan should be made on the security of, or to purchase, any of the assets of a closed insured bank. (See. 13(d) of act; 12 TJ.S,C. 1823(d).) (6) Determinations of whether a loan or purchase will reduce the risk or avert a threatened loss to the Corporation and facilitate a merger or consolida- tion of two insured banks or the sale of the assets of an insured bank to and the assumption of its liabilities by another insured bank. (See. 13(e) of act; 12 U.S.C. 1823(e).) (7) Determinations of whether an insured bank may merge with a noninsured bank or institution, assume payment of any liabilities of a noninsured bank or institution, or transfer assets to any noninsured bank or institution in consideration of the assumption of insured deposits. (Sec. 18(c) of act; 12 U.S.C. 1828(c).) PAGENO="0166" 438 FEDERAL PUBLIC RECORDS LAW (8) Determinations of whether to permit a conversion, merger, consolidation, or assumption when the capital stock and surplus of resulting nonmember insured bank are thereby diminished. (Sec. 18(c) of act; 12 U.S.C. 1828).) (9) Determinations of whether a State nonmember bank may reduce or retire any amount of its capital stock, notes, or debentures. (Sec. 18(c) of act; 12 U.S.C. 1828(c) .) (10) Determinations of whether a nonmember insured bank may establish a new branch or move its main office or branch. (Sec. 18(d) of act; 12 U.S.C. 1828(d).) (11) Determinations of whether any person who has been convicted of any criminal offense involving dishonesty or a breach of trust shall be permitted to serve as a director, officer, or employee of an Insured bank. (Sec. 19 of act; 12 U.S.C. 1829.) (12) Determinations of whether a State nonmember insured bank may extend its corporate or charter powers. (Sections 333.2 and 303.6 of rules and regula- tions.) (13) Determinations of whether to permit a bank to continue or resume in- sured status. (Sections 327.2(c) and 303.7 of rules and regulations.) (14) DetermInations of whether to permit use of other than official sign or ex~empt1on from advertising requirements. (Sections 328.1(b), 328.2(a), 328.2 (c) (2),and (2) (10), and 308.8 of rules and regulations.) In connection with then adjudicatory powers of the Corporation, It may be of interest to the C~inmlttee to note the following excerpt from the monograph of the Attorney General's Committee on Administrative Procedures relating to Federal control of banking, the Comptroller of the Currency. and the Federal DepoSIt Insurance Corporation, at page 42, Part 13 of Senate Document No. 186, 76th Congress, 3d session (1940): The value of banking and of the public interest In banks shape the pro- cedural aspects of banking supervision in forms different from those en- countered hi other branches of administrative regulation. By reason of the fact that few banks operating at a profit can, upon demand, pay off their depositors in cash, there has been traditionally a policy of with- holding from the public all information which, either with or without jus- tification, might provoke a depositors' run on a bank. Accordingly, deposi- tors are not expected to exercise an informed individual judgment concerning the soundness of the bank in which they have deposited their funds, but must rely upon the vigilance and competence of the supervising authorities. As a corollary, the exercise of supervisory powers over banks has tradi- tionally been attended by a secrecy antithetical to the publicity which marks most regulatory activities. In view of this reasoning and for the reasons noted in the opening general comments, most of the opinions and orders relating to determinations in the above types of cases are, in the opinion of the Corporation, for good cause held confidential, and therefore are not cited as precedents~ However, each week there is published a news release by the Corporation which summarizes selected weekly actions of the Board of Directors of the Corporation which affect the status of commercial and mutual savings banks. These published actions are: (1) Approved applications for Federal deposit insurance. (2) Approved applications for consent to establish branches. (3) Approved applications for consent to change bank location. (4) Approved applications for consent to exercise trust powers. A1~o published in this weekly news release are notice of applications received for consideration and approved applications for consent to consolidate, merge, or purchase assets and assume liabilities under section 18(c) of the Federal Deposit Insurance Act. Denials of the above applications are not published for the general information of the public, since it is believed that the resulting harm to the banks and depositors outweighs the public's need to know of the denials. However, such denials and decisions in proceedings to terminate the insured status of a bank are, of course, furnished to the bank and the appropriate super- visory authority in accordance with sections 308.12 and 308.14 of the Corpora- tion's regulations. In addition, notice of decisions in the adjudication of other cases is mailed to the bank and the appropriate supervisory authority in accord- a flee with section 803.11 of the Corporation's rules and regulations. On August 20, 1964, Public Law 88-467 was enacted into law, providing that the powers, functions, and dnties vested in the Securities and Exchange Com- mission to administer certain registration, reporting and disclosure provisions PAGENO="0167" FEDERAL PUBLIC RE:CORDS LAW 439 of the Securities and Exchange Act of 1934 be vested in the Corporation with respect to securities issued by insured State banks which are not members of the Federal Reserve System. In general, the statute imposes four requirements on insured State nonmember banks having assets of at least $1 million and a minimum of 750 stockholders. (The minimum number of stockholders will be reduced in the future to 500.) These reporting requirements are: (1) The filing of an initial registration statement containing information of a financial, legal, administrative, and historical nature; (2) the filing of supplemental and amenda- tory documents to the original registration statement, as well as annual and periodic reports; (3) the submission, before use, of proxy information, and (4) the filing by certain stockholders, directors and officers of a monthly report listing changes in their security holdings~ Pursuant to the provisions of this new law and consistent with its purpose and intent, the Corporation has forniu- lated and adopted implementing rules and regulations. Part 335 of those regula- tions provides that all information filed with the Corporation pursuant to the new statute will be available for public inspection at the central office of the Corporation in Washington, D.C. This information will also be available for public inspection at each of the Federal Reserve banks throughout the 12 Federal Reserve districts. Question 5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? As indicated in the answer to question 4, the Board of Directors endeavors to be consistent and uniform in deciding matters by applying the same principles and standards in similar situations. Practically all adjudieatlon~ of the Corpora- tion are based on matters to be decided in the particular case, and are decided on a case-by-case basis. As a result, and because certain opinions and orders of the Board of Directors are held confidential for good cause, those orders and opinions are not cited as precedents. (See section 300.2 of the Corporation's rules and regulations.) In this connection, it should be noted that, pursuant to section 18(c) of the Federal Deposit Insurance Act, as amended in 1960, the Annual Report of the Corporation contains a description of each merger, consolidation, acquisition of assets or assumption of liabilities approved by the Corporation during the re- ported calendar year. Each of these published descriptions contains the name and total resources of the bank involved, a summary report of the Department of Justice and the reasons for and basis upon which the Board of Directors of the Corporation made the particular approval. Question 6. What is the procedure for making available to the general public the records and files, interpretations, and legal opinions of your agency? There are no set or established procedures available to the general public whereby the records and files of the Corporation .can be examined or obtained. (See opening general comment and answer to question 4.) Interpretations for- mulated and adopted by the Corporation for the guidance of the public are published in the Federal Register. (See answer to question 2d.) However, advisory interpretations and legal opinions relating to a specific set of facts are available to members of the public upon written request to the Corporation. Question 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule or practice? In order to protect records and information relating to insured banks, the Corporation has prescribed regulations relating to confidential and privileged records and information of the Corporation pursuant to sections 7(a) (1) and (2) and 9 Tenth of the Federal Deposit Insurance Act. (See also the related statutory provisions and case law precedents cited in the opening general statement.) Section 300.1(a) of the Corporation's rules and regulations provides as follows: (a) Confidential information and records. All files, documents, reports, books, accounts, and records (collectively referred to as "records" in this section) pertaIning to any bank, or the internal operations and affairs of the Corporation, in the possession or under the control of the Corporation or any officer, employee, or agent thereof, Including but not limited to (1) re- ports of examinations or investigations of any bank, (2) applIcations, state- ments, and reports to the Corporation by any bank, (3) proceedIngs for the termination of the insured status of any ba~k, or (4) the internal operations of the Corporation, including minutes of the meetings of the Board of Direc- tors and authorized committees and exhibits filed therewith, and all facts or information contained in such records or acquired by the officers, em- PAGENO="0168" 440 FEDEBAL PUBLIC EECO'RDS LAW pioyees, or agents of the Corporation in the performance of their official duties (collectively referred to as "information" in this section) are conil- `dential and privileged. Disclosure of such confidential or privileged records by any officers, employees, or agents of the Corporation is prohibited except as provided in the regulations of the Corporation (sec. 809.1(b) (1)). The Chief of any Division of the Corpora- tion may furni~h any records or information in his custody, other than records enumerated (1), (2), (3) `and (4) above `and information acquired in reference thereto, to any State or Federal governmental agency for its official use, and to any other person with a substantial interest therein where the release or dis- closure to such person is not detrimental or prejudicial to the bank or person from whom the records or information was obtained or received nor contrary to public interest (see. 309.1(b) (1) (1)). The Ohief of the Division of Examination may furnish to any bank copies of any reports of examination or investigation of such bank and other information pertaining to its affairs with the understanding that `such records or information shall under no circumstances be made public in any manner (`see. 300.1(b) (1) (ii)). The Chief of the Division of Examination may also furnish to `the Comp~ trol'ler `of the Currency, to any Federal Reserve bank and to `any commission, board, or authority having supervision of a State bank which i's not a member of the Federal Reserve System and in certain circnmstances to the successor agency of the Reconstruction Finance Corporation, copies `of reports of examina- tion and other information pertaining to insured banks which are not members of the Federal Reserve ~ysteni for use in the exercise `of their `official duties with the understanding that reports of examination or information shall under no cir- cmust~ux~es be disclosed or made public in any manner (see. 309,1(b) (1) (iii)). The Chief of the Div,ision of Examination ~ay ,als~ furn~sh to any official of the Department of Justice or any State prosecuting authority any inform~tion re- garding defalcations, burglaries, or robberies affecting insured banks when there is urgent need for immediate action (sec. 309.1(b) (1) (iv)). The Chief of the Division of Research and Statistics may furnish to the Comp- troller of the Currency, to any Federal Reserve bank and to any commission, board, or authority having supervision of a State bank which is not a member of the Federal Reserve System copies of reports of conditi'qu made by insured banks with the understanding that the contents of such reports shall under no circum- stances be made public except in the publication of general statistical reports (see. `800.1(b) (1) (v)). The General Counsel of the Corporation may disclose to the proper Federal or State prosecuting authorities any and all records and information relating to irregularities discovered in open and closed insured banks believed to constitute violations of any Federal or State statute (sec. 309~1(b) (1)'(vi)). The General Counsel may also authorize the production of any record, the disclosure of any information `and the giving of any testimony with respect thereto by any officer, employee, or agent of the Corporation upon any proceeding, hearing, or trial, civil or `criminal, in any Federal or State court `or before any administrative board, commission, `or committee, on behalf of or at the request of the Corporation, the United States, or State prosecuting `official or the bank or person from whom such `confidential or privileged records or information was received or obtained (see. 300.1(b) (1) (vii)). The Chairman of the Board of Directors may authorize the production, exami- nation, or inspection of any records or the furnishing of copies thereof or the disclosure of any information or may direct the General Counsel or the Chief of any division to refuse to permit the production, examination, or inspection of any records, or this furnishing of copies thereof or the disclosure of any inforina- tion if he shall find such action to be in the best interest of the Corporation and consistent with the public interest (sec. 309.1(e))' `t'he Board of t~irectors or the Chairman thereof may from time to time authorize and direct the publica- tion for public distribution of information `and data compiled from the records of the Corporation (see. 309.1(f)). Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register? None. Question 9. In what types of cases has your agency refrained from publish- ing rules where there is involved any function of the United St ates requiring secrecy in the public interest pursuant to section 3(1) of the ~PA or other authority? PAGENO="0169" FEDEItAL PUBLIC R13~CORDS LAW 441 None, since information from the Corporation Is not restricted upon security grounds. Section 2(a) of Executive Order 10561 of November 5, 1953, provIdes that in those departments and agencies having no direct responsibility for na- tiOnal defense there shall be no authority for original classification of information or material. Question 10. In what circumstances has your agency refrained from pub- lishing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the APA or other authority? The following rules are not published by the Coporation for the general Information of the public since they relate solely to the internal management of the Corporation: (1) Travel regulations (2) Leave regulations (3) Instructions on reporting working time and attendance (4) Performance ratings (5) Incentive award guides (6) Manual of Examination Policies (7) The Auditor's Manual (8) Other internal instructional guides for Corporation personnel such such as (6) and (7) above (9) Budgetary rules (10) Security regulations (11) Approval of official travel (12) Order of approval of overtime and transportation reqtiests (13) Standards of conduct for officials and employees of the Corporation (14) Employment Policy I~egu1ations. Question 11. What is your agency's definition of "official record" as used in section 3(e) of the APA? The Corporation has not attempted to formulate or adopt a definition of "official record" as that phrase is used in section 3(c) of the Administrative Procedure Act. Part 300 of the rules and regulations of the Corporation con- tains a general description of materials which would fall within the phrase "matters of official record" as that phrase is used in the act. Within this framework, "matter of official record" of the Coporation can be defined as: All files, papers, reports, books, accounts, statements, transcripts, exhibits, rules, regulations, Interpretations, opinions, letters, minutes of meetings, applications, ratings, decisions, appointments, and other documents pertain- ing to any banking organization, or the affairs, duties, responsibilities, and internal operation of the Corporation, in the possession or under the con- trol of the Corporation or any officer, employee, or agent thereof. If there Is any additional information on this matter we can furnish, please let us know. Sincerely yours, JOsEPH W. BARR, Chairman. Riirrx FRON FEDERAL HOME LOAN BANK BOARD FEDERAL HoME LOAN I3ANE BOARD, Washington, DXI., March, 12, 1965. Hon. JOHN B. Moss, (Yka/irman, Bnbeommittee on Foreign Operations and Government Information, Conrmittee on Government Operations, House of Representatives. DEAR Mu. CHAIRMAN: This is in reply to your letter of February 12, 1965, requesting this Agency's response to 11 questions with respect to section 3 of the Administrative Procedure Act of 1946, (5 U.S.C. 1002), the Public Infor- mation section. In response to your request, I am designating Mr. George Murphy as the official with whom liaison can be maintained. Mr. Murphy can be reached by telephone on code 129, extension 3994. For purposes of clarity, I will deal with the subcommittee's questions in the order which they were posed. The numbered paragraphs correspond to your numbered questions. 1. Generally speaking, 5 U.S.C. 1002, applies to all functions of the Board in the administration and enforcement of the Federal Home Loan Bank Act (12 U.~S.O. 1421 et seq.), the Home Owners' Loan Act of 1933 (12 USC. 1462 PAGENO="0170" 442 FEPERM4 PUBLIC RECORDS LAW et seq.) ftnd'Title IV of the Natiomil Housing Ac~ (12 U.S~C. 1724 et seq.) not e~cepted by section .1002. Specific functions of the Board to which section 3 of the APA would be applicable would be in connection with the chartering and regulation of Federal savings and loap associations and, through the Federal Savings and Loan Insurance Corporation, the regulation of certain aspectS of the operations of institutions insured by the Corporation. The 12 Federal Home Loan Banks are, as you know, subject to the jursidiction of the Board. The Board establishes policies, issues regulations, and supervises the operations of these Banks and, in connection therewith, is subject to the requirements of the Administrative Procedure Act. The APA, however, is inapplicable to the Banks in theIr dealings with their member institutions. 2. With respect to question 2, subdivision (a) through (d), the Board utilizes the Federal Register and, in addition, publishes a manual and pamphlet copies of its rules and regulations for distribution to interested persons. The pamphlets, copies of which are attached, are freely distributed, The manual is Issued on a registered basis and a copy has previously been furnished the committee. The most recent description of the central and field organization of the Board (APA, § 3(a) (1)) was adopted by the Board on September 23, 1964 and published in the Federal Registerc~n October 1, 1964 (29 F.R: 13544). Statements of the general course and method by which the Board's functions are channeled and determined (APA § 3(a) (2)) appear in the Board's General Regulations (12 CFR, Pt, 501 et seq.), the regulations for the Federal Home Loan System (12 CFR, Pt. 521 et seq.), the Rules and Regulations for the Federal Savings and Loan System (12 OFIt, Pt, 541 et seq.), and the Rules and Regulations for Insurance of Ac- counts (12 CFR ~Pt 561 et seq.). With respect to subdivisions (o) and (d) of question 2, the substantive rules and statements . of general policy or Interpretation adopted by the Board are published in the Federal Register promptly upon adoption by the Board. Both regulations and Board rulings are, of course, incorporated in the pamphlets and the manual hereinabove referred to. Insofar as subdivision e, is concerned, I know of no instance in which the Board has adopted rules addressed to and served upon named persons. Further, section 3 of the Administrative Procedure Act does not require the publication of any such rules. 3. The Board does not publish final opinions or orders in the adjudication of cases. However, section 505.13 of the General Regulations of the Board (12 CFR, 505.13) provides for public inspection of all final opinions or orders in the adjudication of cases at the Office of the Secretary, Federal Home Loan Bank Board, Federal Home Loan Bank Board Building, 101 Indiana Avenue, NW.. Washington, D.C. 20552. 4. Section 505.14 of the Board's General Regulations (12 CFR 505.14) permits the classification of interim and final opinions and orders as confidential only by the Baord or its designee. As hereinabove indicated, Interim and final orders are not published but, in accordance with Administrative Procedure Act § 3(b), are made available for public inspection. The instances in which the Board has classified final opinions or orders as confidential have generally been limited to cases where the Board has not held a hearing or other public proceeding prior to the issuance of its order. Thus, if a Federal association applies for a branch office and for supervisory reasons relating to the condition or affairs of the insti- tution the application is denied, the order would be treated as confidential. 5. Question 5 relates to the circumstances under which unpublished opinions and orders are cited or used as precedents in other proceedings. The Board does not cite or use as precedents unpublished opinions or orders of the Board in other proceedings. 6. and 7. Question 6 deals with the procedure for making available to the gen- eral public the records and files, interpretations and legal opinions of the agency. Question 7 is concerned with the limitations placed upon the availability of records and files to the general public. Insofar as interpretations and legal opinions are concerned, they are customarily made available on request and, if of general applicability, they are always made available. Limitations are placed upon the availability of records and files to the general public both by statute and by regulation. As you are aware, section 1905, title 18, U.S. COde, provides as follows: Whoever, being an officer or employee of the United States or of any depart- ment 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 PAGENO="0171" FET~E~EiAL PUJ3L~tO RECORDS i~w 443 examination or investigation made by, or return, re~Ort or record made to or filed with, such department or agency or officer or employee thereof, which in- formation 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 person, firm, partnership, corporation, or association; or permits any incoule return or copy 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 ~ll,OOO, or imprisoned not more than one year, or both; and shall be removed from office or employment. In carrying out its responsibilities, it is, of course, Incumbent upon the Board not only to avoid any violation of the law but to conduct its activities in a manner consistent with the intent of the law. The Board is responsible fo~ the examination or regulation, directly or indirectly, of some 4,500 financial institutions. As a result, the Board's records contain confidential informa~ tion relating to specific institutions. Under these circumstances, the Board's general regulations provide for the confidential character of its records in section 505.12 (12 CFR 505.12), as follows: SncTIoN 505.12. CoNFxnzNTt~ oHAnAcTEn.-The giving out of any such records or information, or documents relative thereto, by any of the persons referred to in sections 505.10 and 505.11 is held to be contrary to public policy by reason of its privileged and confidential character invctving delicate and sensitive matters relating to the condition and affairs of financial institutions and not to be permitted. In all cases where any such documents or records, or copies thereof, are desired by, or on behalf of, any private party, or parties to a suit, whether in a court of the United States or any other, such information or copies shall be furnished only upon the written authoriza- tion or approval of the Board, or such person or persons as may be author- ized by it to grant such authorization or approval. 8. In response to your question 8, I do not believe that private parties deal- ing with the Board are required in any manner to resort to organization or pro- cedure not published In the Federal Register. As previously stated in response to question 2, the Board utilizes the Federal Register to promulgate descrl~~ tions of Its central and field organizations, statements of the general course and method by which its functions are channeled and determined and substan~ tive rules and statements of general policy. 9. The only instance in which the Board has refrained from publishing rules where there is involved a function of the United States requiring secrecy In the public interest is in connection with the Emergency Preparedness Regula- tions for Continuity of Government. These regulations, while in existence, will not be effective unless.a need for their utilization arises. 10. In connection with internal agency management, there is no publication In the Federal Register of regulations governing personnel security, regulations concerning the Board's personal management system, adopted in accordance with criteria prescribed by the Bureau of the Budget, and Chairman's orders (which have the character of regulations), adopted under various reorgani- zation plans. To the extent, however, that the Chairman's orders have an effect upon the public dealing with the agency, such orders are published in accordance with the requirements of the Administrative Procedure Act. 11. Your 11th question deals with the Board's definition of the term "official record" as used in section 3(c) of the Administrative Procedure Act. As herein- above indicated, the Board's records are declared by section 505.12 of the General Regulations (12 CFR 505.12) to be confidential. The rea5onn for this confidentiality are set forth in the answer to question 7. The Board has no definition of the term "official record," as such. In each Instance when per- sons properly and directly concerned seek access to specific records, a determina- tion is made by the Board whether to release the records in question. In accordance with your request, two copies of the Board's general regula- tions, the regulations for the Federal Home Loan Bank System, the rules and regulations for the Federal savings and loan system, the rules and regulations for insurance of accounts and the most recent statement of the organization and functions of the Board are enclosed. Sincerely, TOHN E. Honwu, Chairman. PAGENO="0172" PAGENO="0173" FEDERAL PUBLIC RE;CORDS LAW 445 6-7. The precedure for making available to the general public the records and files of this agency and the limitation placed upon this availability is governed by rule 502.5 of the Rules of Practice and Procedure which provides; "(a) The files and records of the Commissicu, except those held by the Com- mission for good cause to be confidential, shall be open for inspection and copying as follows: "(1) Tariffs and agreements flied with the Commission pursuant to stat- ute or rule or order of the Commission may be inspected and copied during business hours in the Commission's offices at Washington. "(2) All pleadings, depositions, exhibits, transcripts of testimony, excep- tions, and briefs in any statutory proceeding befOre the Commission may be inspected and copied at the Washington office of the Commission. Available volumes of Federal Maritime Commission reports may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. Copies of individual decisions may be secured from the Commission upon request, or may be examined in the regional offices of the Commission. "(3) Other files and records may be inspected and copied in the discretion of the Commission upon written request to the Secretary describing in detail the documents of which inspection is desired, and setting forth the reasons therefor. "(b) Orders, rules, rulings, opinions, and decisions (initial, recommended, tentative, and final) may be inspected at the Washington office of the Commission, except those held by the Commission for good cause to be confidential and not cited as precedents." 8. Private parties dealing with this Commission are not required to resort to organization or procedure not published in the Federal Register. 9. This Commission has bad no occasion to refrain from publishing rules in the interest of secrecy required by the public interest. 10. No circumstance has arisen in which this Commission has had to refrain from publishing rules on any matter relating to internal agency management. 11. In formal proceedings, the pleadings, transcripts of testimony, exhibits, and all documents received in evidence or made a part of the record are matters of "official record." I wish to express my appreciation in having been afforded the opportunity to assist the subcommittee in its evaluation of section 3 of the Administrative Procedure Act, Should any additional information be desired you may be assured of our full cooperation. Sincerely yours, JOHN HAELLEE, Rea~r Admirai, U.S. Ywy (Retired), Chairnuzn. R~rLr FROM MEDIATION AND CONCILIATION SERVICE FEDERAL MEDIATION AN~ CONCILIATION SERvICE, Washington, D.C., March 15, 1965. Hon. JouN Fl. Moss, Chairman, Foreign Operations and Government Information Subcoin'mSttee, Committee on Government Operations, House of Representatives. DEAR CONGRESSMAN Moss: This will reply to your February 12, 1965, letter by providing answers to the 11 questions posed regarding the availability of information from Federal departments and agencies. Such additional information as may be needed by the committee may be ob- tained through my designated liaison representative, Mr. Willoughby Abner, special assistant, code 100, extension 3511. Answers are provided in the numerical sequence used in your letter. 1. The provisions of 5 U.S.C. 1002 are applicable to the sole function of this Service, which is one of providing assistance to parties involved in the settle- ment of labor-management disputes. Because of its small size and unilateral function, the usual definitions pertaining to division, bureau, branch, and unit are not applicable within the scope of your inquiry. PAGENO="0174" 44& I~ED1~RAL PUBLIC RECORDS LAW ~ 2.: (a) (1) Amendments~ d~1etions, or addjtjo~ are pub1jsJ~ed in. the F~dera1 Rogiater,, as needed, Code ~f Federal Regulations (29 CFR, ch. XII, pt. 1401-1404) (2) Annual report to the Congress (available to the public). (A copy of the annual report for fiscal year 1968 is enclosed A copy of the 1964 annual report will be submitted as soon as it is received from the printer.) (b) (1) Code of Federal Regulatjo~~ (29 CFR ch XII, pt 1403) (2) U.S. Government Organ~jza~io~ Manual. Published annually. (3) Pamphlet: `Pacts Behind the Headlines in Labor~Manage~0~~ Disputes," 1961 (a copy of the pamphlet Is encloSed). (c) Code of Federal Regulati~n~ (29 CFR oh XII pts 1402-1404) (4) (1) Code of Federal Regulations (29 CFR ch XII pts 1402-1404) (2) Pamphlet Facts Behind the Headlines in Labor Management Disputes 1961. (3) Pamphlet: "Answers to Your Questions About the Federal Mediation and Conciliation Service," 1961 (a copy of the pamphlet is enclosed). (e) None-not applicabl~~ 3. Not applicab1~_the Service issues no interim Opinions or orders; mediation is a voluntary process. 4. Not applicable. ~l. Not applicable. 6. (a) Section 1401.4 of the Service's regulation provides, in part (29 CFR, ch. XII, pt. 1401); "IV. Disp~t5 n~ot4ces are nOnoonfldentjaZ~.Wrltten notices of disputes received pursuant to section 8(d) (3) of the Labor Management Rela tions Act 11)47 as amended are not confidential records of the Service Parties at interest have the right to receive certified copies of such notice of dispute upon written request to the reglonaj director of the region in which the notice is filed." (b) Arbitration awards in cases administered through the Service are re- leaue4 for publication by the three major services (Bureau of National Affairs Commerce Clearing House and Prentice Hall) provided that the parties and. the arbitrator advise the Service that there is no objection to such publication The decision as to publication of such cases Is made in each instance by the editor of the services to which such cases are released Arbitration awards as to which the parties and the arbitrators do not object to publication may be inspected in the Office of the General Counsel by any person having a leg1tim~te interest in such Inspection, until such time as they are disposed of in accordance with the regulati~~5 governing the disposition of outdated files. 7 Section 14013 of the Services Regulati~~ (29 CFR ch XII Pt 1401) pro vides that all files, reports, letters, memoranda, documents, or other papers in the official custody of t~ie Service or any of its employ~~ relating to or acquired in its or their official activities under title II of the Labor Manageme~~ Relations Act; 1947, as amended, are declared to be "confidential" for good cause shown. The confidentiality of such information is based on the public po1lc~ requiiing that in order successfully to effectuate the Services mission Commissioners and employees must maintain a reputation for impartiality and integrity which in turn rests upon the confidence of labor and management, or other interested par ties, that information disclosed to Commissioners or other employees of the Service will not subsequently be divulged. 8. None. 9. None. 10. None. 11. All documents, forms, and reports related to a labor dispute in which tl~e Service has received due notice, request, or statement implying that the personal services of a Federal mediator may be needed; written evidence that a mediator has been assigned to provide assistance mediator reports on his activity and participation and the report indicating that his asslgim~en~ has been concluded Sincerely, Wintx.a~ B. Siinciw, Director. PAGENO="0175" FEDERAL PUBLIC `RECORDS LAW 447 REPLY FRONr FEDERAL POWER Oo~MIssIoN P~O~RAL Po~nRCoM~n5~IOw, Washington, ~ Mare/v 12,1965. Hon. JOHN E. Moss, Chairman, Foreign Operations and Government Information ~ubcoovnvittee, Com- mittee on Government Operations-, JIomse of Representatives. DSAR Mn. CHAIRMAN: In further response to your letter of February 12, the following are our answers to the questions there asked with respect to the pub- lic availability of information in the Federal Power Commission. 1. Generally, the provisions of section 3 of the Administrative Procedure Act (5 U.S.C. 1002) are applicable to all Federal Power Commission functions'. There are no constituent units of the Commission to which the section does not apply. 2. The several items referred to in this question are published as follows: (a) Description of organization published originally in the Federal Register of September 11, 1946, 11 P.R., pt. 2, p. 487 (18 CFR, 1946 supp., pt. 01). The latest complete revision was issued April 30, 1962, published in the Federal Register of May 4, 1962 (27 P.R. 4276) and rec~dif1ed in 18 CFR, pt. 3, where it is continuously available. Amendments or revisio~vs are similarly published as occasion demands, e.g., § 3.1 amended and § 3.7 added by order No. 259, issued December 21, 1962 (27 P.R. 12927, 28 FF0 1097, 18 OFR 3.1, 3.7). (b) A statement of the course and method of operation was published Sept. 11, 1946, 11 P.R., pt. 2, p. 489 (18 OFR, 1946 supp., pt. 02). RevIsions or amendments are published as described above, in the Federal Register, the FPC reports and the OFR. (o) The term "substantive rule" is not defined by the Administrative Procedure Act. However, either notice of the adoption or the full text of all rbles affecting the public are published in the Federal Register as adopted. See 18 C1~R 1.36 re public access to opinions, orders and rules. In addition, all Commission opin- ions, all rules and orders of general applicability and many of its orders, both final and interlocutory, are published In the Federal Power Commission Reports (FF0) which include tables and indices. This publication presently consists of 29 permanent bound volumes and 8 monthly preliminary prints which contain permanent pagination. All of the foregoing are available to the public, upon issuance and upon request, in the Commission's 0±11cc of Public Information in its Washington office. (4) Statements of general policy or interpretation are published in the Federal Register, as and when adopted, and are codified in 18 CFR, part 2. They are also published in the FPO Reports describe4 above in (e). (e) Insofar as rules addressed to and served upon named individuals are final orders they are published or otherwise made available as described in (o), above. Procedural orders such as orders to show ea~ise, ordém~ instituting In- vestigations, orders firing date of hearing, and Ord~r~ of a "nbtice" nature are, as a mile, published in full in the Federal Registeratid often, as'well, in the FPO Reports. 3. In accordance with published rule (18 CFR 1.36 (b)), all final and interim opinions and orders in the adjudication of cases and in rulemaking proceedings are released to the public immediately upon Issuance in the Commission's Office of Public Information. In addition, the Commission issues, for convenience only, a list of formal documents issued which includes all orders, rules, opinions, interim decisions, notices, and interlocutory orders (setting for hearing, or on motions, etc.) issued on a particular day. This list is available upon request and a mailing list therefor is maintained. A mailing list of persons desiring to receive the Commission's opinions is likewise maintained and mailing lists tied to Individual cases or doekets by virtue of which a person is sent all of the formal documents issued during the course of a particular proceeding. 4. The Commission has not withheld publication of any opinions or orders on the ground that they should, for good cause, b~ held confidential. 5. As noted above, all Commission opinions are printed (published) in the FF0 Reports. Although every Commission order Is not so printed, all are avail- able for public inspection upon issuance. Consequently, every order or opi~lau cited or used as a precedent is available to the public in either printed or other form. PAGENO="0176" 448 FEDERAL PUBLIC RECORDS LAW 6. The Commission's rules relating to public and other records, 18 CFR 1.36 (c), (d), provide, in general, that all matters of official record shall be available for public reference. These include all matters flied with the Commission under the provision of any order, rule, or regulation, as well as matters embodying offi- cial Commission action, including all the docket records relating to public pro- ceedings. To the extent that legal interpretations and Opinions are contained in staff memoranda which have never been approved by the Commission, they are not tiormally available to the public unless issued for public consumption by order of the Commission. 7. By statute, Federal Power Act, section 301(b); Natural Gas Act, section 8(b), information obtained during examination of books and accounts of respond- ent companies may not be divulged by members, officers, or employees of the Commission, except as directed by the Commission or a court. By 18 CFR 1.36(c) the Commission's public records are available for public reference. By 18 CFR 1.36 (d), other records are not available except upon good cause shown. The Commission may, by order, direct that they be disclosed upon application. 8. No circumstances have been brought to the Commission's attention in which private parties have had to resort to organization or procedure not published in the Federal Register and/or the CFR. 9. The Commission has no unpublished rules or regulations of general applicability. 10. None of the Commission's rules relating to internal management and house- keeping, issued as administratire orders or instructions, are published. 11. FPC rules do not define "official record," as such. However, 18 CFR l.36(c) lists 12 categories of material which, for all practical purposes, corn- pri~es "matters of official record" referred to in section 3(c) of the Administrative Procedure Act. T~ansrnitted herewith are two copies of those two sections of the Commission's Rules of Practice and Procedure which implement 5 U.S.C. 1002. The basic rule is in sections 1.96 and 1.1(f) defines the terms therein used. The foregoing, I believe, is completely responsive to the questions asked but If the subcommittee desires any further information do not hesitate to call upon us. Sincerely, JO5~r~ C. SWIDLER, Uhairmaa. REPLY FROM FEDERAL RESERVE SYSTEM BOARD OF GOVERNORS OF THE FEDEJ~AL RE5m~vE SYSTEM, Wa$hington, D.C., March 15, 1965. flon. 1011N E. Mo~s, Chairman, Foreign Oper4tj~ and Governm~ Inf o~mat ion S~bcom~ajttee, (3cm- m4ttee on Governn~t QperGtjon8, Honse of R8prese,vtatjvee, Wc~.s*ington, D.C. DEAR MR. CHAIRMAN: This Is In response to your letter dated February 12, 1965, advising that the Foreign Operations and Government Information Sub- committee is in the process of determining the extent to which Federal depart~ ments and agencies are making information available to the public pursuant to section 3 of the Administrative Procedure Act (5 U.S.C. 1002). In order to evaluate the effect of section 3 of the act on the extent to which information has been made available by departments and agencies, you have asked that the Board respond to a Series of questions set forth in your February 12 letter. The Board's responses to your questions are set forth below, each immediately following the numbered question or series of questions to which it relates. 1. Generally, to what functjon~ of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branc~hes, or other Constituent units of your agency to which the section does not apply? The Board Construes the provisjQns of 5 U.S.C. 1002 (hereinafter "section 3 of the act" (Administrative Procedure Act)), as applying to the entire range of lts functions, which relate to credit and monetary policy determinations and to bank supervision and regulation. There are no divisions, bureaus, branches~ or other Constituent units of the Board to which section 3 of the act does not apply. PAGENO="0177" FEDERAL PUBLIC BECORDS LAW 449 2. In what official or unofficial publication, and at what intervals, does your ageiicy publish? (a) Descriptions of its central ançl ~1eld organization (see sec. 3(a) (1) of the Administrative Procedure Act). (b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute). A description of the Board's organization and statements of the general course and method by which the Board's functions are channeled and determined are set forth in the Board's Rules of Organization and Procedure, publication of which is he:reafter discussed, and are generally described in the U.S. Government Orga~ nization Manual, the official organization handbook of the Federal Government. There is not any predetermined interval at which the aforesaid description and statements are published by the Board. Broadly stated, pursuant to the require- ments of section 3 of the act for current pi~blication, the Board effects publica- tion of section 3(a) (1) material as follows: At such times as there occur change~ in the general course and method by which the Board's functions are channeled and determined, including the nature and requirements of all formal or in- formal procedures, forms, and outstanding instructions, these changes are pub- lished in the Federal Register as amendments to the particular rule affected. As these amendments cumulatively represent a major revision in the Board's rule, the total of such amendments is published in the Federal Register as a revision to the rule. Thus, specific amendments to the Board's Rules of Organization and Procedure were published in the Federal Register at various intervals from 1940 through 1901. Effective December 15, 1961, the Rules of Organization and Pro- cedure were wholly revised to include the amendments previously made and pub- lished, and also to change certain procedural provisions to reflect more clearly and accurately then current practices. The revised rules were published in the Federal Register. As revised, the Board's Rules of Organization and Procedure are divided into four separate rules, as follows: (1) Rules of organization~ (2) Rules regarding information, submittals, and requests, (3) Rules of procedure, and (4) Rules of practice for formal hearings. Rules (2), (3), and (4) above, currently appear, respectively, as parts 201, 262, and 203 of title 12, Code of Pederal Regulations. The Rules of Organization, rules (1) above, setting forth the Board's composition and location, identifying the makeup of its organization, and setting forth briefly the nature of the Board's functions, are published in the U.S. Government Organization Manual, the official organization handbook of the Federal Government. The Rules of Organization and Procedure are also available in pamphlet form at the Board's otilce or through the 12 Federal Reserve banks. Amendments in these rules occurring subsequent to the last-mentioned major revision have been published In the Federal Register and are reflected in appropriate provisions of the Code of Federal Regulations and the Government Organization Manual as revised June 1, 1964. 2(c). Substantive rules adopted as authorized by law (see sec. 3(a) (3) of statute). As applied to the Board, "substantive rules adopted as authorized by law" are represented almost exclusively by the Board's regulations as to which the Board follows the rulemaking procedures set forth in section 4 of the act as to giving notice of published rulemaking, affording interested persons an opportunity to participtte in the rulemaking function, and the giving of required prior notice of the effective date of such rule. Once adopted, regulations are published In the Federal Register and, in due course, appear in the Code of Federal Regula- tions. They also are published in pamphlet form available t~ the public. Adopted or amended regulations also appear as promptly as possible following Board action in the Board's Federal Reserve Bulletin, a monthly publication. Promulgation of a new' regulation or an amendment to an existing regulation is at times accompanied by the issuance of a press release ezplaining the nature and purpose of the Board's action. Finally, a record of Board actions in respect to promulgation of new regulations or amendments of existing regulations is contained in the Board's annual report transmitted to the Speaker of the House of Representatives pursuant to the requirements of section 10 of the Federal Reserve Act (12 U.S.C. 247). 2(d). Statements of general policy or interpretations formulated and `adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statute). 45-213-- 65-pt. 2----12 PAGENO="0178" 450' FEDERAL PUELIO R~JORDS LAW Statem~nt~ o*f general policy ~r interpretations formulatecl~and ad'o~ed by the Board for the guidance of the public are publie]aed initially in ~ the Federal Register and later in thëOede of Federal Regulations. Federal Register publica- tion oceure a~ soon after Board action as practicable. The fact and content of Board Interpretations, rules, and certain policy statements receive further pnblic dissemination by appearance in the Board's Federal ReserVe Bulletin and by publication in printed looseleaf form in `a volume of Published Interpretations of the Board. The Published Interpretations were originally compiled and pub- lished as of January 1, 1961, and contained the full text `of then currently eftective interpretations and rulings issued by the Board since October 1, 1937, as well as digests of certain additional interpretations and rulings published before that date. The volume of Pixblished Interpretations has been kept current by means of supplements issued at yearend 1961 and 1962, and most recently by a supple- ment issued in July 1964 wbi~h included published interpretations, rulings', and related actions of the Board through March 31, 1964. 2(e). Rules addressed to and served upon named persons in accordance with law (see sec. 3(a)(3) of statute). As' `a genreal rule, the Board does not publish in any official or unofficial publica- tion "rules addressed to and served upon named persons In accordance with law." Section 3(a) (3) of the act exempts such rules from the requirement of separate statement and current publication. The Board's reliance on this exemption, is premised upon a judgment that publication of such rules might be detrimental to a particular bank or to individuals concerned. 3. Please describe the manner in which your agency publishes, or, in accordance with published rule, makes available to public inspection, all final and interim opinions or orders in the adjudication of cases, purnuant to section 3(b) of the Administrative Procedure Act, or other authority. In its adjudication of cases the Board does not utilize a procedure involving interim or tentative opinions, decisions, or orders. As to final orders of the Board, the manner in which these are published differs with the nature of the adjudication, the following examples bei~ng generally representative of the method of publication employed. Your attention is directed to the fact that the term "adjudication of cases," as applied to the Board's function's, relates almost exclusively to Board process respecting the grant, denial, renewal, withdrawal, limitation, extension, or modification of a license or similar permission. Purenant to section 3(a) of the Bank HoMing Company Act of 156 (1,2 U.S.C. 1842(a)), the Board's prior approval must be, given to `the formation of a bank holding company and to action's propoaed by an established bank holding com- pany that would result in the expansion of its holding company system. Section 18(c) of the Federal Deposit Insurahee Act, as amended (1,2 U.S.C. 1828(c)), requires the Board's prior written consent to certain bank mergers, consolida- tions, assets acquisitions, or assumptions of liabilities. Board action, either of approval or denial, on an application filed pursuant to either of the above pro- visions of law is publ1sh~d in the following manner: Following Board action on an application, there is issued a press release announcing `the action, accompanied by a copy of the Board's order and statement in support thereof. If there are dissenting statements of individual Board members, copies of the dissenting statements accompany the press release, Board order, and statement. In each case the order is published in the Federal Register. The pubjished order is accompanied by the statement that copies of the Board's statement, and any dissenting statements, are on file at the Office of the Federal Register, and are available at either the Board's office or the Federal Reserve bank in the district where the applicant is located. The materials accompanying the aforementioned press release are published also' in the Board's monthly bulletin. Tn respect `to certain applications, public hearings are conducted by hearing examiners selected afld design&ted by the Civil Service Commission. In such cases the hearing examiner's report and recommended decision, filed with the Board prior to the Board's final action on the application, is also distributed to the public and published in the Federal Reserve Bulletin. It should be noted that the monthly issues of the bulletin are published in paperback form and, subsequent to yearend, are bound in a single volume. These bound volumes are numbered consecutively, Identified by date, an'd are made available to the public. Board actions in regard to applications having unusual significance or interest are also summarized or commented upon in the Board's annual report. Additional selected examples of applications received whereby Board approval is requested are applications (1) for membership in the Federal Reserve System PAGENO="0179" FEDERAL PUBLIC RECORDS LAW 451 pursuant to `section 9 of the Federal Reserve Act (12 U.S~O. 321); (2) for with- drawal from membership in the system (12 U.SC. 328); (3) for the establish- ment of a domestic 1~rancbby a State member bank pursuant to section 9 of the Federal Reserve Act (12 tLS~Q. 321); (4) to carry reduced reserves pursuant to section 19 of the Federal Reserve Act (12 U.S.C. 462) ; (5) for the establish- ment of an oversea branch pursuant to section 25 of `the Federal Reserve Act (12 U.S.C. 601); (6) for the organization of, or investment in, a corporation doing foreign banking pursuant to sections 25 or 25(a) of the Federal Reserve Act (12 U.S.C. 601 and 611) ; and (7) for a general voting permit pursuant to section 5144, Revised Statutes (12 U.S.C. 61). In respect to the several types of applications mentioned above, the fact of the Board's receipt thereof and, in addition, the fact and nature of the Board's action thereon are made known to the public in a weekly 11.2 list published by the Board. The 11.2 list shows the names and locations of institutions involved, the date of receipt of an application and its nature, and the date and nature of the Board's action on the application. The Board also makes known through a published weekly K.3 list the fact and effective date of consummation of certain of the proposals first identified in an 11.2 list. 4. In what types of cases does your agency refrain from publishing interim and' final opinions or orders where, In the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Administrative Procedure Act or other authority? The only type of case adjudication as to which the Board would refrain from publishing notice of its action, either in the form of an order or otherwise, would be a proceeding conducted pursuant to section 30 of the Banking Act of 1933 (12 U.S.C. 77) for the removal of directors and/or officers of State member banks. Section 30 expressly forbids disclosure to the public of the Board's order or of the findings of fact upon which such order is based. 5. In what circumstances are unpublished opinions and. orders cited or used as precedents in other proceedings? There have been no proceedings in whleh the Board has had occasion to cite or use as a precedent unpublished opinions and orders relating to an earlier proceeding. It is conceivable, however, that~ a need for such citation or use might arise. For example, in a section 30 adjudication (see answer to question 4, sm~pra) facts that might be in issue in a pending proceeding could parallel in major respects facts that bad been the subjeç~t of a previous section 30 adjudication by the Board. In such a case, the Board's action in the earlier case, reflected in an unpublished order, might reasonably be cited or used as a precedent in the later proceeding. In such a case, the respondent in the later proceeding would be given ample notice of the Board's intention to use Its earlier action as a precedent, and would be afforded full opportunity to challenge the applicabilty of the precedent cited, or to otherwise argue againut use of such precedent. 6. What is the procedure for `making available to the general public the records and files, interpretations and legal opinions of your agency? A general description of the procedures whereby certain of the Board's records such as interpretations, opinions, orders, ~nd other materals are made known and available to the public has been given In answers to other questions. As to Board records and files generally, the same are made available to the general public pursuant to the Board's rules regarding information, submittals, and requests (12 CFR 261), and the Board's rules of procedure (12 CFR 262). Briefly summarizing certain of the more salient provisions of these rules, matters of official record are made available to persons properly and directly concerned through the office of the secretary. Under the secretary's direction and supervision, the records section has responsibility for maintaining custody of and providing reference service to official records of the Board. Matters of official record such as published Board orders, statements, and interpretations are available for studying and copying in the Board's office during regular business hours. Also available for similar purposes are the administrative records of public proceedings or hearings conducted by the Board. Upon request, arrangements can be made for the reproduction at the Board's office of these public records. Within the Board's Division of Administrative Services there is operated a publications services unit that has the responsibility of furnishing to the public Board publications and published Information and data. The materials handled by publications services are made available either on specific request or through PAGENO="0180" 452 EIIaERAL PUBLIC RECOr~s LAW Use of currently maintained mailing lists. Information as to available publica- tions and published information, including the Federal Reserve Bulletin, the Board's regulations, rules of organization and pvocednre, and pUbilshe~j in- terpretations, is set forth in the Federal Reserve Bulletin. Two members of the Board's official staff are assigned the responsibilty of facilitating the furnishing to and interpretatjo~ for the press and the public matters of public interest occurring in the course of the Board's performance of its functions. Board members, members of the off1ci~l staff, and other author- ized employees daily transmit to the public through various communication media portions or summaries of and views on the Board's official records. T. What limitations are placed upon the availability of records and files to the general public, either by statute, rule or practice? The limitations which the Board has placed upon the availability to the gen- eral public of Its records and files are set forth in the Board's Rules Regarding Information, Submittais, and Requests (12 CFR ~61.2). The principal classes of records and files as to which public access Is limited are as follows: (1) Information covered by specific legal prohibition against disclosure. Thus, public disclosure of findings of fact and orders issued lU Proceedings for the removal of directors or officers of member banks is expressly tot- bidden by Section 30 of the Banking Act of 1983. (2) Information with respect to the determination of credit and monetary policies in the national monetary field, premature disclosure of which could very well play into the hands of speculators or public groups with a resulting disruption of markets. Federal Reserve actions relating to discount rates, reserve requirements, margin requirem~~~~, and like matters have, in par- ticular, a direct effect on financial markets. (3) Confidential Information obtained by the Board In the discharge of its supervisory function. Authority for nondisclosure of the categories of information referred to above, and more fully described in the Board's Rules Regarding Information, Submit- tals, and Requests, is based upon the Provisions of sectIon 8 of the Administra. tive Procedure Act which permit nonpublic~tlon and nondisclosure of any in- formation to the extent that it involves functions requiring nondisclosure in the public interest or matters which for good cause found are held confidential. In addition, as earlier mentioned, section 30 of the Banking Act of 1933 ex- pressly provides that the Board's order and findings of fact in any proceedings for the removal of directors or officers of member batiks shall not be made public or disclosed to anyone except the director or officer involved and the directors of the bank involved. The Board of Governors is authorized by statute to make rules and regulations necessary to enable it effectively to perform Its dutIes and functions or services (12 1LS.C. 248(1)). Except as provi~e~ by law, employees of the United States are prohibited by statute (18 U.S.C. 1905) from disclosing financial or business information regarding particular persons or institutions. Pursuant to authority granted by statute, the Board has promulgated rules relating to the maintenance of the confidential character of System affairs. In respect to employe~~ who are authorized to handle classified defense material, the Board has issued "Regulatjon~ Relating to the Safeguarding of Defense Information." The foregoing summary reflects the limitations which have been placed by statute, rule, or Practice on the availability to the general public of the Board's records and files. 8. In what circumstances are private parties dealing with your agency re- quired In any manner to resort to organization or procedure not Published in the Federal Register (see section 3(a) of the APA)? The Board believes that its procedures for making public its Rules oct Orga- nization and Procedure, including but not limited to publication oct the same in the Federal Register, are calculated to apprise the public adequately of existing requirements in dealing with the Board. In no known circumstances have pri- vate parties dealing with the Board been required to resort to organizati~~ or procedure not published in the Federal Register pursuant to section 3(a) of the act~ On the other hand, there have been numerous occasions when, in the interest of facilitating a course of action initiated by a private party dealing with the Board, the Board has excused failure to comply with published orga- nizational or procedural rules. PAGENO="0181" ]!EDEBAL PUBLIC RECORDS LAW 453 9. In what types of eases has your agency refrained from publishing roles where there Is involved any function of the United States requiring secrecy In the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Applying to the word "cases" a broader meaning than that generaUy applied in the context of the provisions of the act, th~ Board has refrained from publish- ing rules In regard principally to actions taken in the course of formulating and determining discount rates, reserve requirements, margin requirements, and similar actions calculated to have a direct effect on financial markets. The Board's action in refraining from publishing rules incident to the foregoing functions is taken pursuant to section 3(1) of the act. 10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? The Board has followed what it has construed to be the intent of section 3 of the act in refraining from publishing rules of internal management and opera- tion not affecting the members of the public to any extent. Rules relating to the organization of the Board's staff, the assignment and designation of staff responsibilities and functions, and general housekeeping functions, including budget procedures, are considered to be purely matters of internal management and operation, and thus to be exempt from the publication requirement of section 3 of the act. 11. What is your agency's definition of "official record" as used in section 3(c) oce the Administrative Procedure Act? As related to the Board's functions, the term "official record" refers to and in- cludes all materials in the Board's possession save those relating to the internal operation of the Board. Pursuant to your request for two copies of every regulation, directive, order, or other document issued by the Board to implement section 3 of the act, two copies of the following documents are enclosed: 1. Board's Rules of Organization and Procedure 2. Board's Regulations Relating to the Safeguarding of Defense Informa- tion. 3. Board's Rules Relating to the Maintenance of the Confidential Char- acter of System Affairs, etc. Many of the publications hereinbefore discussed exemplify the steps taken by the Board in implementing the directives of section 3 of the act. Most illustrative of this implementation are believed to be the following documents, published at or for the dates noted, two copies of which are enclosed :, the Fiftieth Annual Report of the Board, covering operations for the year 1963; the February 19135 issue of the Federal Reserve Bulletin; a reprint from the December 1904 Federal Reserve Bulletin containing a list of all Federal Reserve Board publications; the Board's 11.2 list reflecting applications received, or acted on by the Board during the week ended March 6, 1965; and the Board's K.3 list reflecting con- summation of various proposals by State member banks as of the week ended March 6, 1965. Should your subcommittee desire other of the documents herein mentioned than those enclosed, upon request copies of such documents will be furnished. Sincerely yours, (Signed) WM. MoO. MARTIN, Jr. REPLY FROM FEDERAL TRADE COMMISSION FEDERAL TRADE CoMMIssIoN, Washington, DXI., Merely 22, 1965. Hon. Joux E. Moss, Chairman, Foreign Operations and Government Information ~ubcovvm%ttee, Com- mittee on Government Operations, House of Representatives. DEAR Ma. CHAIRMAN: This letter replies to your request for answers to a ques- ~ionnaire which you transmitted to me on February 12, 1965. In accordance with the last paragraph of your letter, there are attached hereto two copies of the publication "Organization, Procedures, Rules of Practice, and Statutes" of the Federal Trade Commission. The volume was published in August 1063 and is available on request from the Government Printing Office. The same material has been published in the Federal Register at the time it was adopted. PAGENO="0182" 4~4 h~E1~ERAL ~TThLXCEP~1OR1~S LItW The .quésti~éus w~il& you posed do not seem to inquire `what other means the Commission might ado~it to bring to the attention of. interested parties its proec- d'ures; opinions, arders~ and general ~5etivity. The Commission constantly issues press notices of its opinions and orders and copies of the documents themselves. At all times, official statements, opinions, orders, interpretations, and the like are available to the public at the information counter of the Commission's docket room. In addition, a series of "Advertising Alerts" are published to call atten- tion to certain cases recently decided by the Commission, and a newsletter is circulated to a mailing list to apprise the public of specific actions which the Commission has taken in the recent past. The Commission, acting in the public interest, is constantly attempting to inform both professional counsel and the lay public of its activity. Your questions and my answers are attached. PAUL RAND DIxoN, Chairman. Question 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches or other constituent units of your agency to which the section does not ~tpply? Answer. Section 3 of the Administrative Procedure Act, entitled "Public In- formation," cited in your letter as 5 U.S.C. 1002, applies to all Federal Trade Commission functions. There are no divisions, bureaus, branches, or other con- stituent units of this agency to which the section does not apply. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (a) Descriptions of Its central and field organization (see see. 3(a) (1) of the APA); (b) Statements of the. general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute) (c) Substantive rules adopted as authorized by law (see sec. 3(a) (3) of statute) (d) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see see. 3(a) (3) of statute) and (e) Rules addressed to and served upon named persons in accordance with law (.see see. 3(a) (3) of statute)? Answer. (a) This agency published its description of all its organization in its baste manual in August 1963. Two copies are transmitted herewith. See pages 1 through 6. Copies of this volume are available from the Government Printing Office. The, basic material was also published in the Federal Register and from time to time, when changes or additions might be made, such changes and additions are likewise published. (b) See answer to question (a) above. See also manual pages 7 through 32. (o) This agency promulgates substantive rules In aceordance with authority granted by Congress In the following acts: Section 6, Wool Products Labeling Act of 1939, 54 Stat. 1131, 15 U.S.C.A. 68d; section 8(b), Fur Products Labeling Act, 65 Stat. 179, 15 U.S.C.A. 69f; section 5(a), Flammable Fabrics Act, 67 Stat. 112, 15 U.S.C.A. 1194; sectIon 7(e), Textile Fiber Products Identification Act, 72 Stat. 1721, 15 U.S.C.A. 70e. The rules, when promulgated, are published in the Federal Register and in pamphlets, and are announced by press releases to the trade and public. Every known member of the affected industries is mailed an Individual copy of the rules. They are also published in the Code of Federal Regulations. (d) In the event statements of policy for the guidance of the public were to be promulgated they would, in accordance with Rule 1.182(4) of the General Procedures of the Commission, page 27 of the manual, be published in the Federal Register. In addition press notices would be distributed to the public and to those most interested therein. Copies of the statements would be made available on request to the Secretary and at the information counter of the Commission's public docket room. Rule 1.132(4) of the General Procedures also provides that administrative interpretations be published in the Federal Register. The additional methods mentioned above would also be used. (e) This agency does not use a method which involves the type of rule here envisioned. Question 3. Please describe the manner In which your agency publishes, or, in accordance with published rule, makes available to public inspection, all final PAGENO="0183" FEDERAL PUBLIC RECORDS LAW 455 and interim opinions or orders in the adjudication of cases, pursuakt to section 3(b) of the ~,dminlstrativ~ Procedure Act or other authority, Answer, "The decisions of the Commission in adjudicative proceedings and in proceedings disposed of by the entry of consent orders to cease and desist and texts or digests of selected advisory opinions are published periodical1~V in official reports under the title `Federal Trade Commission becisions'." The rule here quoted is 1,132, public information, subparagraph (3), page 2~ of the manual. IntOrim and final orders are also published in the Federal Register. Slip copies of opinions and orders are also available on request when the orders originally issue and are always available in the public docket room. Texts or digests of selected advisory opinions have not yet, at the time of this writing, been published. Question 4. In what types of cases does your agency refrain from publishing interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Admin- istrative Procedure Act or other authority? Answer. It has not yet been necessary to issue an order or opinion which is retained in camera for cause. Question 5. In what circumstances are enpublished opinions and orders cited or used as precedents in other proceedings? Answer. In no circumstances. Question 6. What is the procedure for making available to the general public the records and files, interpretations, and legal opinions of your agency? Answer. For records and files generally, see answers to questions 7 and 11. The records and files of this agency are, by statute and subject to the discretion of the Commission, confidential. A procedure for the release of confidential information is provided in rule 1.134 on page 28 of the manual. Interpretations are published in the Federal Register in accordance with rule 1.132(4). See also answers to questions 2(c) and 2(d) above. Legal opinions are published in accordance with rule 1.132(3). See also an- swer to question & above. Question 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule, or practice? Answer. (a) The Commission is limited by the Federal Trade Commission Act in its power to make available its records and files to the general public, as follows: SEC. 6. That the Commission shall also have power- * * * * * * * (f) To make public from time to time such portior~s of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest * * ~" (15 tT.S.C.A. 46(f)). (b) The members of the Commission individually and the menTbers of the stafe are limited by the Federal Trade Commission Act as follows: Sno. 10. Any officer or employee of the Commission who shall make public any information obtained by the Commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and, upon con- viction thereof, shall be punished by a fine not exceeding $5,000, or by im- prisonment not exceeding 1 year, or by fine and imprisonment, in the discretion of the court. (C) There is also a rule making Commission information confidential, as well as a rule describing procedure for the release of such information. Rule 1.133 describes Commission information and establishes that a portion of It, described in rule 1.132, shall be considered public without further determination. Other information is available in the discretion of the Commission if application is made for its release under the provisions of rule 1.134. See pages 26, 27, and 28, of the manual. (d) As a matter of practice, the Commission exercises its discretion with re- gard to confidential information in its possession, its investigatory, and internal records and files, to the end that the greatest possible disclosure, consistent with prudence, good judgment, and reasonable care to avoid injury to private persons, may be made to Interested members of the public. Public interest is the con- trolling element In the exercise of such discretion. QuestionS. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register (see sec. 3(a) of the Administrative Procedure Act)? PAGENO="0184" 456 FEDERAL PUBLIC EJIXJORDS LAW Answer. Private parties dealing with this agency are not required in any man- ner to resort to organ1za~~~ or procedures not published in the Federal Register. Question 9. In what tyj~e~ of cases has your agency refrained ftom ~ubllshing rules where there is involved any function of the United States requiring secrecy ill the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. In all cases in which this agency has made rules pertaining to any of its functions, excepting matters of internal management (see the answer to question 10), such rules have been published. Question 10. In What circumstances has your agency refrained from publish- ing rules where there is involved any matter relating Solely to internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer. Section 3(2) of the Administrative Procedure Act makes an exception from publication of those rules which concern any matter relating solely to the internal management of an agency. This agency has issued instructions to Its staff in a number of areas concerned with internal management. They are: Managem~n~, budget and finance, general services, personnel, and special instruc- tions. Special instructions pertain to the preparation and routing of Internai paperwork. All these instructions in these areas are contained in this agency's administrative manual, which is distributed throughout bureau and division offices of the Commission for use by all of the staff. In the general category of personnel instructions, the agency has established grievance and appeal procedures. These may be construed to be rules. While these rules have been circulated among the staff members who are affected, or Who may be affected, the Commission has refrained from publishing them to the public at large. Question 11. What is your agency's definition of "official record" as used in section 3(c) of the Administrative Procedure Act? Aflswer. This agency has not adopted a specific definition of the term "official record." It considers all its acquired information to be matters of Official record. However, not all of these matters are public, nor are all of them required to be by the Administrative Procedure Act. The agency has provided by rule that many of the matters are public without further determination, and the remaining matters upon proper application and in the public Interest may be disclosed to the public or properly interested persons. See rules 1.132 through 1.134, pages 26, 27, 28, of the manual. Statutory limitations on disclosure are observed. See sections 6 and 10 of the Federal Trade Commission Act, 15 U.S.C.A. 46, 50. The Commission does not consider the following as matters of official record: materials relating to internal manageme~f and personnel, personnel actions, internal memorandums and reports by employees and individual Com- missioners which reflect study, research, and analysis of acquired facts. REPLY FROM FOREIGN CLAIMS SEITLEMENT COMMISSION FommIoN CLAIMS SETTLEMnNP COMMI55i~~ or pun UNIPED SPATES, Washington, DXL, March 15, 1965. Hon. Jo~w E. Moss, Chairman, Foreign Operations and Governmeat Information S~ubcommjttee Com- mittee on Goiernme~ Operations, Hoit~ø of Eepresenta,tjveg ITJRAR Mn. CHAIRMAN: In response to your letter of February 12, 196~, con- cerning the Study by your subcommittee on the availability of information from Federal depar~ents and agenci~~ under section 3 of the Administrative Pro- cedure Act of 1946 (5 U.S.C. 1002), the Foreign Claims Settlement Commission submits the following answers to your questions, Should questions arise with respect thereto, they should be directed to Mr. Andrew T. McGuire, general counsel, code 128, extension 3125. 1. The functions of the Commission are performed in their entirety pursuant to specific Statutory grants of authority to receive and determine certain claims of nationals of the United States for certain property losses in foreign countries. These functions are performed solely by the three Commissioners, who are appointed by the President by and with the Consent of the U.S. Senate. PAGENO="0185" FEDERAL PUBLIC RECORDS LAW 457 Under the grants of authority the Commission is authorized to prescribe such rules and regulations as may be necessary to carry out its functions. Regula- tion~ established pursuant to the statutes are discussed and approved by the Commission itself at regular Commission meetings, are published in the Federal Register and become effective upon such publication. These regulations are entirely procedural or interpretive in nature. Covered therein, are matters regarding the time when and the limit of time within which claims may be filed, the receipt, administration and establishment of standards for the exam- ination of claims and granting of awards, conduct of hearings, submission of evidence at hearings and related matters pertaining to the process of disposing of claims. The Commission is not a public regulatory agency and its rules and regula- tions do not affect the public at large. Under the language of the statutes which it administers authorizing the issuance of rules and regulations, the Commission is not absolutely required to issue such rules and regulations, with the possible exception of notice of the period of time within which claims must be filed. They are designed for the convenience of the Commission and claimants before the Commission and to give order and direction to the work of the Commission. An example of the general grant of authority to prescribe rules and reg- ulations is found in sectIon 2(b) of the War Claims Act of 1948, as amended (62 Stat. 1240: 50 U.S.C. App. 2001-2016), which provides as follows: (b) The Commission may prescribe such rules and regulations as may be deemed necessary to carry out its functions, and may delegate functions to any member, officer or employee of the Commission. A similar provision is contained ~n section 3(c) of the International Claims Settlement Act of 1949, as amended (64 Stat. 12; 22 U.S.C 1621). Typical of the authority of the Commission regarding claims filing periods, is the following provision of the War Claims Act of 1948, as amended by Public Law 87-846, approved October 22, 1962 (76 Stat. 1107 (1962) 50 U.S.C. App. 2017). Therein it is stated: Sue. 210. Within sixty days after the enactment of this title or of leg- islation making appropriatiqns to the Commission for payment of admin- istrative expenses incurred in carrying out its functions under this title, whichever date is later, the Commission shall give public notice by publica- tion in the Federal Register of the time when, and the limit of time within which claims may be filed, which limit shall not be more than eighteen months after such publication. 2. (a) Descriptions of the Commission's central and field operations are published In the Federal Register: U.S. Government Organization Manual; and semi-annual reports to the Co~igress. (b) Statements of the general course and method by which the Commission's functions are carried out are generally published in the Commission's semi- annual reports to the Congress. (c) Substantive rules are not macic and issued. (ci) Statements of general policy or interpretations required only at congres- sional hearings or in response to specific requests. (e) Rules governing the general decisional process are published in the Fed- eral Register. Rules are furnished directly to specific parties in question. Since these rules are applicable for internal guidance only, public notice is not required. 3. Rules governing the availability for public inspection of opinions and orders are merely administrative determinations designed for the implementation of Bxecutive Order No. 10501, November 5, 1953. The Commission maintains pub- lie dockets of claims. Notice of the issuance of decisions on claims are posted on a public bulletin board and the decisions are available for public inspection upon request. 4. The Commission does not issue Interim or final decisions in any cases which are held to be confidential. All proposed and final decisions and opinions are a matter of public record and are available for inspection upon request. 5. The Commission does not utilize unpublished opinions or orders in any of its proceedings. 6. The records and files of the Commission are not made available to the general public. Files on particular claims are available for inspection only by the claimant involved therein or his authorized representative. Legal opinions and decisions are available to the general public in the offices of the Coinmi~ sion and upon request and payment of minimum charge for duplication services copies of such opinions and decisions aie furnished PAGENO="0186" PAGENO="0187" FEDERAL PUBLIC RECORDS i~w 459 6. The procedure varies somewhat, under the pr~scribeU rules, for the kind of records involved-current GSA records (41 CFR 101-12.101-4), records in the National Archives (41 CFR 101-7.101, 101-7.104), records in Federal records centers (41 CFR 101-9.103), records in Presidential libraries (41 OFR 101-10.102, 101-10.202, 101-10.302, 101-10.402), and records for contract appeals (41 4J11'R 5-60.209). Copies of these rules are attached. Basically, the procedures require the applicant to request specified records of a designated official and to explain his interest. The official weigb~ the matter and, if he denies access, explains why to the applicant. Provision is also made for copying and authenticating records at the request of the applicant. 7. As shown in the attached rules, certain limitations are placed on the avail- ability of records to persons otherwise properly concerned. Current GSA records thus exclude those relating solely to internal management or requiring non- disclosure In the public interest (41 OFR 101-12, 101-3). National Archives records are subject to restrictions imposed by law, Executive order, the trans- ferring agency, or the Archivist In Restriction Statements (41 CFR 101-7.101-3, 101-7.101-4). Records in Federal records centers are subject to restrictions imposed by the agency whose records are involved, the GSA Regional Adminis- trator, law, or regulations pertaining to the centers (4~ C1~'R 101-9.103). Records in Presidential libraries generally are subject to restrictions imposed by deposi- tors, the Archivist, law, Executive order, or where disclosure would prejudice national interest or security (41 CFR 101-10.101-2, 101-40.202-4, 101-10.302-4, 101-10.042-2), Appeals case records exclude those relating solely to internal management, confidential by law, security classified, or where otherwise not in the public interest (41 CFR 5-60,209(e)). 8. None, ~. None. 10. Personnel managemen~ matters, and ancillary matters related to published rules where these matters concern agency procedures on filing, distribution, re- veiwing, preparation, and the like. 11. All books, papers, maps, photographs, or other docthnentary materials, regardless of physical form or characteristics, made or received by any agency of the U.S. Government in pursuance of Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or Its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, of other activities of the Government or because of the informational value of data contained therein. Library and museum material made or acquired and preserved solely for reference or ex- hibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not in- cluded within the ~1efinition of the word "records." (41 CFR 101-11.101-3, 101-12.101-1). Records, for contract appeal cases only, include, but are not limited to, docu- ments, papers, books, and letters (41 CFR 5-60.209(d)). The GSA directives for implementing 5 U.S.C. 1002 are GSA Order DOA 5410.1, CIIGE 114, September 11, 1964, particularly paragraphs 4, 5, 6, 13b and 15; GSA Order ADM P 2800.1, CHGE 47, October 29, 1904, particularly § 5-60.209 of the attachment (published in the Federal Register of Nov. 4, 1954, p. 14930); arid Federal Property Management Regulations Amendment No. B-i, December 22, 1964, particularly the sections appearing in the attachment which are cited in answer to questions 6 and 7 (which sections were published in the Federal Register of Dec. 8, 1964, p. 16797 et seq.), There is also enclosed Federal Procurement Regulations Amendment No. 5, December 22, 1964, the attachment to which was published in the Federal Regis- ter of December 29, 1964, page 18477. The latter attachnient together with the attachments to GSA Order ADM 2800.1, ORGE and Federal Property Manage- ment Regulations Amendment No. B-i, Illustrate the cardinal regulations of GSA, viz the Federal Property Management R~gulatious, the Federal Procure- ment Regulations, and the Geperal Services Administration Procurement Regulations. Two copies of these documents are enclosed as requested. PAGENO="0188" PAGENO="0189" FEDEBAL PUBLIC RECORDS LAW 461 3.100 et seq.) URA r~Ies and regulations other than those dealing with reloca- tion payments do not affect the public but inste~td l~ave g~neral application only to state and local governmental bodies or their instrumentalities with which URA enters into contractual relationships. Program guides and information sheets describe procedures applicable to particular programs. 2(d). Statements of general policy or interpretations for the guidance of the public appear in the Federal Register (see citations under sections 2(a) and 2(c), supra), and the Urban Renewal manual. Manuals, program guides, and information sheets are available for all Agency programs to acquaint prospective applicants with administrativ~ interpretations and details. It should be noted that a majority of Agency programs do not involve dealing with "the public" but with State and local governmental bodies and their instru- mentalities, i.e., local housing authorities (PHA), and local urban renewal au- thorities (URA). As to such programs the provisions of section 3(a) (3) of the Administrative Procedure Act would appear to be inapplicable (see Attorney General's Manual on the Administrative Procedure Act (Department of Justice, 1947) 22). 2(e). Not applicable to our functions, which are contractual, rather than regu- latory. 3. It is assumed that the information requested relates to adjudications re- quired by statute to be determined on the record after opportunity for Agency hearing (5 U.S.C. 1004). This Agency has no adjudicatory functions of this nature. 4. None. 5. None. However, URA. has made numerous rulings in connection with relocation claims which have been collated for use as precedents in the interpretation of relocation regulations, Arrangements are. now being made to disseminate these interpretations to local public agencies so as to assure uniformity of interpreta- tion throughout the country. Certain basic interpretations of the relocation payment regulations have already been assembled in an Urban Renewal Service Technical Guide which has been distributed to local public agencies and is also available for distribution to any interested person on request. URA and PHA, in deciding issues that arise in administering the urban renewal and public housing programs, apply criteria, standards, and principles which are set forth in written material furnished directly to local public author- ities in the form of manuals, bulletins, handbooks, circulars, and similar publi- cations. 6. It is Agency policy to make records and files fully available to the general public upon request except as explained in our answer to question 7. With respect to PITA practices see 24 CFR 200.185, 186. PHA regulations pertaining to this question are contained in 24 CFB 1500.1 et seq. Certain documents relating to urban renewal projects are specifically re- quired to be made available to the public. For example, section 105(e) of title I of the Housing Act of 1949, as amended, requires a local public agency to make publte certain information relating to a prospective redeveloper prior to the execution of a contract or understanding for the disposition of project land. This requirement is implemented by section 14-4-1 of the Urban Renewal Manual which requires the publication of a redeveloper's statement for public dis- closure in a local newspaper. Another example may be found in section 16-1 of the Urban Renewal Manual, which requires that a local public agency make the "relocation program" for an urban renewal project available at its office to any interested groups or individuals during a certain period prior to the public hear- ing on the project. The requirement contained in section 105(d) of title I prohibiting acquisition of land for an urban renewal project until after a p~bl1c hearing has been held by the local public agency, also provides the public with access to Information pertaining to each urban renewal project, FNMA operates on the principle of complete disclosure of all material infor- mation to all persons actively or prospectively interested in the corporation. Complete disclosure means the disclosure of all information germane to the trans~ action at hand, revealed in accordance with generally accepted corporate practices. For example the corporation makes prompt and timely publication to all con tractors (and to noncontractors upon request) in connection with- (1) changes that occur in standard requirements for doing business with the corporation The corporation also uses newspaper dissemination PAGENO="0190" 462 FEDERAL PUBLIC RECORDS LAW to in~form the public generally of mortgage price changes and other develop- ments affecting the ope~at1ohs oi~ the corporation; (2) changes that occur in the financial condition of the corporation's operations (all financial statements on FNMA's operations are a matter of public record); and (3) newly adopted programs, such as the recent creation of the Gov- ernment mortgage liquidation trust. Copies ot' typical FNMA publicatious iii each of these catogories are enclosed. 7. The availability of agency records to the general public Is limited by the provisions of 18 U.S.C. 1905, 12 `U.S.C. 1701d-3(d), 5 U.S.C. 139b; and ExOcu- tive Orders 10450, 10501, and 10561. Title 18 U.S.C. 1905 forbids the disclosure of information which. relates to "trade secrets, processes, operations, style of work, or u4paratus, or to `the identity, confidential statistical data, ~amount or Source ot~any income, profits, Ioss~s, or expenditure of any person, firm, partnership, corporation, or association." This statute appears to prohibit generally making available to the public credit ratings, investment holdings, and other matters involving the personal and financial affairs of applicants, contractors, and others. It also appears to prohibit di~- closure of financial statements or information relating to operating technique, maniffaOtiiring ~h~ocë~ses secret Or confidential devices, plans, or formulas and other secret or confidential data furnished by an applicant, borrower, grantee, or contractor except to the extent authorized by law or as n result of appropriate principles of statutory construction as exemplified by 41 Ops. Att'y Gen. 166 (1953). Title 12 tT.S.C. 1703d-3(d) provides that the Rousing and Home Finance Administrator, in undertaking housing research, is authorized to request and receive "such information or data as he deems appropriate from private individ- uals, organizations, and other public agencies." However, "any such informa- tion or data shall be used only for the `purposes for which It is supplied, and no publication shall be niade by the Administrator whereby the Information or data furnished by any particular person or establishment can be Identified, except with the consent of such person or estab1i~bment." Title 5 U.S.C. 139b, section 4 of the Federal Reports Act of 1942, provides that, when information obtained in confidence by one Federal agency is released by that agency to another Federal agency, the provisions of law relating to the unlawful disclosure of that information apply to the second agency to the same extent as the first. Executive Order No. 10450 (18 P.R. 2489' (1953), reprinted in Federal Per- sonnel Manual Supp. 99G-I, p. Il-iT), dealing with security requirements for Government employment, provides that reports and other investigative materials and information shall remain the property' of the investigative agencies conduct- ing the investigation, but may, subject to considerations of the nation security, be retained by the department or agency concerned; and that such reports and other Investigative material and Information shall be maintained in confidence, and no access shall be given thereto, except with the consent of the investigative agency concerned, to other departments and agencies conducting security pro- grams, as may be required for the effIcient conduct of Government business~ Executive Order No. 10501, as amended (18 P.R. 7049 (1953)), which author- izes the classifying of defenSe information or material by specified categories of agencies and Ia certain ways, provides that knowledge or possession of classi- fied defense information shall be permitted only to persons who, official duties require such access in the interest of promoting national defense and only if they have been determined to be trustworthy. It also prohibits the dissemination of classified Information outside the bxecutive branch except under conditions and through channels authorized by the head of the disseminating agency. Also, in general, it prohibits the dissemination of classified defense information origi- nating in another agency without the consent of the originating agency. The Civil Service Commission, acting under the authority of Executive Order No. 10561 (19 P.R. 5963 (1954); also in Federal Personnel ]~anual Supp. 990-1, p. 11-25) has issued inStructions to agencies to control the review of restricted material in official personnel folders, including examination papers and other material attached to applications, and medical documents. See Federal Per- sonnel Manual, chapter 23, section 2-5. The great majority of papers in agency operation files concern preliminary processing of applications. Most of these materials are not matters of official record and are, therefore, not generally available to the public. For e±ample,, PAGENO="0191" FEDERAL PUBLIC RE:CORDS LAW 463 URA files might contain acquisition or disposition appraisals of property or the contents of certain market or economic studies. Premature disclosure of these materials could have an adverse effect on program operations. Files also contain intra-agency reports and recommendations and other internal memorandums involving the exchange of preliminary views, as contrasted to action by author- ized officials. Investigative reports and preliminary unreviewed au it reports are not gen- erally disclo~ed to the public. Such reports contain raw nd unevaluated investi- gative material, including the napies of persons furnisbi g the Information. On many occasions such information is obtainable only in strict confidence. Fur- thermore, these reports reflect research and analysis w ich is only preliminary to formal agency action which will result in an official re ord. 8. Private parties deal directly with this agency only o a very limited extent. URA and PHA deal directly with State and local gover mental bodies ap~d their instrumentalities. To the extent that CPA program (e.g., college housing, housing for the elderly) involve dealing with the pu lie, such programs are covered in the Federal Register (44 CFR 701.1 et seq.). All PHA programs are d~scribed in the Federal Register (24 CFR 200.1 et seq.) The OA has delegated most of its operational pro ram authorities to the Oommissioners who head the constituent units of the gency (OFA and URA). However, there are four operating programs in the OA hich require discussion. The Urban Mass Transportation Act of 1964 (49 U. .C. 1601-10) authorizes loans and grants to States or local public bodies or agencies. Thus, private parties are not involved in this program. Informati ii is made available to participants through information and fact sheets, prog am guides, and manuals. The mass transportation demonstration grant prog am (42 U.S.C 1453(h); 49 U.S.C. 1605) authorizes the Housing Administrate to undertake research, development, and demonstration projects in all phases f urban mass transporta- tion, which demonstrations will assist in the reductio of urban transportation needs, the improvement of mass transportation servic , or the contribution of such service toward meeting transportation needs at inimum cost. Althotigh there is no statutory limitation on the parties with bich the Administrator may enter into contracts, it has beOn administratively etermined that contracts should be entered into only with public bodies or a encies. As in the other transportation programs, full information about the program is available to potential participants. The low-income housing demonstration program (4 U.S.C. 1436) authorizes grants for the purpose of developing and demonstrating new and improved theans of providing housing for low-income persons and famili a. The statute authorizes the Administrator to contract with public oi~ private odies or agencies; it has been administratively determined that private indivi uals are not eligible for grants. Although there has been no publication in he Federal Register con- cerning this program, there has been wide circulati n of the Program Guide which describes the program. Each grant is announc d publicly and there has been substantial newspaper publicity about the progr in. Procedures to be fol- lowed in carrying out a demonstration are set forth n a Low-Income Housing Demonstration Manual which is furnished to all app icants whose applications for grants are approved. In both the mass transportation demonstration gr nt program and the low- income housing demonstration grant program, pot ntial participants are a relatively limited class of local public bodies or tee nical groups which have special competence in the two fields Involved. Such potential participants, be- cause of their special competence, axe already famil ar with the opportunities to participate in the two programs~ The community disposition program Is authorized by the Atomic Energy Com- munity Act of 1955, as amended (42 U.S.C. 2301). Under Executive Orders 10657 (21 P.R. 1063 (1956)) and 11105 (28 ~R. 390 (1963)), the Administra- tor is responsible for the sales and financing functio s under the act. The sale of property in Oak Ridge, Penn., is complete, and t at in Richland, Wash., is virtually so. Sales of property in Los Alamos, N. M x., have not yet begun, but it is expected that the procedures used in the earlier d~spositions will be followed there. The AEO, pursuant to statute, establishes a system of priority rights applicable to the sale of the Government-owned prope ty (42 U.S.C. 2332). These priorities are published in the Federal Register (see 10 CFR 130.1 et seq.) and, in Oak Ridge, were distributed on a house-to-house basis by the AEC. Lists showing the appraised value of each parcel of prope ty to be offered for sale to PAGENO="0192" 464 FEDERAL PUBLIC RECORDS LAW priority purchasers are required b~ law to be available for public inspection at the ARC office in the community (42 U.S.C. 2824). In the case of Oak Ridge, a genqral statement of policy governing the sales dis- posal was contained in a leaflet of May 11, 1956, "Information for Prospective Purchasers of Government~Owned Single-Family and Duplex Houses and Resi- dential Lots in Oak Ridge, Tenn." Notice of the availability of this informa- tional p~unphlet was given through news items in the Oak ~Flidge newspaper well in advance of the commencement of the sales program. The newspaper advised its readers that copies of the pamphlet Were available to anyone upon request at the community diSposftioij office. In addition, the general conditions for the sale of the properties were carried verbatim in the newspaper and a number of copies of these conditions were posted in public places wherever a general offering was made of a particular block of properties. 9. In no case has this agency refrained from publishing a rule on the ground that there was involved any function of the United States requiring secrecy in the public interest. 10. Although the agency has no rulemaking powers as that term is defined by 5 U.S.C. 1003 (see question 2c., supra), there are a number of Internal agency policies which have general applicability and future effect. These include such matters as travel and leave policies, budget controls, stenographi~ procedures, personnel standards, and priorities in correspondence~ Most of these policies for the OA, CPA, and URA are set forth in the OA manual series, Volume II: Policies and Procedures of the Administrator, Part 3. The other constituent agencies describe their internal policies by means of similar issuances. A cOpy of volume II of our manual series will be made available to your subcommittee on request. 11. In defining the term "official record" this agency relies generally on the interpretation in the Attorney General's Manual on the Administrative Pro- cedure Act (Department of Justice, 1947) 24, 25. The definition which PEA has adopted is typical of the general agency policy: * * * documents which embody the official acts of the PEA and the documents which are filed with the PEA pursuant to statute, PEA regula- tions, or contract with the PEA, as determined by the Chief of the Records Administration Section, Office Services Branch. It does not include memo- randums and other reports which reflect research and analysis Preliminary to official action or which are otherwise merely part of the background upon which official action is predicated (24 CFR 1500.1 (a) (2)). For example, In the CPA, the entire project file, consisting of the loan or grant application, supporting documentation, project summary, loan or grant' agree- ment, and the entire bond or mortgage txanscript would be considered as "official records." REPLY l~ROM INDIAN CLAIMS COMMISSION INDIAN CLAIMS COMMISSION, Waa%ington, D.C., February 18,1965. Eon. Jo~x B'. Moss, Chairman,, ~eboom~mfttee o'a Foreign Ope tien~~ and GoDemn,men,~ Information, Hou~~e of Repre3entatj4,e~. ThSAR OHAInMAN Moss: This will acknowledge receipt of your letter of Feb- ruary 12, regarding your study of the Administrative Procedure Act and listing a number of questions on the public information section of that act. I have gone over the questions presented and am convinced that tbi~ regula- tion has very little, if any, application to this Commission. Our work is en- tirely judicial since the Commission Is an Indian court Which hears the claims of tribes, bands, or identifiable groups of Indians against the U.S. Government for land taken without compensation. We do not issue regular reports or publications, but our findings of fact and opinions are sent to all interested parties and are available to the public if they call at the office. We have no secret or confidential opinions and we have no field offices, so no publications are issued'for this Commission from any sonrce outside of Washington, D.C. Under the circumstances I do not believe a more detalind answer to your ques- tions is necessary, but If you need more information than I have given, I will be glad to try to supply it. Sincerely. ~ V. WATKINS, Chief Co1n4nj$s~O'n,e~~ PAGENO="0193" FEDERAL PUBLIC RECORDS LAW 465 REPLY FROM INTERSTATE COMMERCE CoMMissIoN INTERSTATE COMMERCE CoRrMIssIoN, Washington, D.C., March 15, 1965. Hon. JOHN B. Moss, Chairman,, Foreign Operations and Government Information Subcommittee, Corn- mittee on Government Operations, House of Hepresentatives. DEAR CHAIRMAN Moss: This letter responds to your letter of February 12, 1965, requesting answers to the questions contained therein no later than March 15, 1965. The answers are attached to this letter. In addition, I am including two copies each of the description of central and field organization of the Com- mission revised as of January 1, 1964, the Commission's General Rules of Prac- tice, and the organization minutes of the Commission. I assume that the above attachments are the documents which you are interested in rather than the mass of substantive rules which have been published in title 49 of the Code of Federal Regulations. If there is any further information which you desire from the Commission, please let me know. Sincerely yours, CHARLES A. WEBB, Chairman. Question 1(a). Generally, to what functions of your agency does 5 1J.S.C. 1002 apply? Answer. In the administration of the Interstate Commerce Act and related acts, the Commission performs rulemaking, adjudicatory, and administrative functions. The provisions of 5 U.S.C. section 1002 apply to each of these func- tions in varying degree depending upon the subject matter, the applicable sub- stantive law and the type of proceeding in which the subject matter is developed before the Commission. In this connection it must be observed that the Commis- sion in keeping with its organic act, more specifically section 17(3) 49 ILS.O. section 17(3) which requires that every vote and official act of the Commission be made a matter of record and available to the public on request, traditionally has favored disclosure of information to the public except in those instances where specific statutory requirements or national security inhibit disclosure. Examples of the former are the accident reports filed by motor carriers (see. 220(f) of the Interstate Commerce Act 49 U.S.C. sec. 320(f)), and by rail car- riers (see. 4 of the Accident Reports Act 45 U.S.C. sec. 41). (See answer to No. 7 below.) Additionally there are several sections oi~ the Interstate Commerce Act relating to inspection of records and accounts of carriers which specifically prohibit any employee of the Commission from disclosing information gained in such Inspec- tions except as directed by the Commission or by a court. See sections 20(7) (f), 322(d), 317(e), and 421 (e) of the Interstate Commerce Act 49 U.S.C. sections 20(7) (f), 322(d), 917(e) and 1021(e). (See also answer to No. 7 below.) On rare occasion and when specifically requested by the Department of Defense in the interest of national security temporary motor carrier authority has been issued without publication to permit the performance of highly classi- fied transportation. Question 1(b). Are there any divisions, bureaus, branches, or other constituent units of your agency to which the section does not apply? Answer. There are no areas of the Commission to which the provisions of 5 U.S.C. section 1002 do not apply. Question 2. In what official or unofficial publication, and at what intervals, does your agency publish: (a) Descriptions of its central and field organization (see sec. 3(a) (1) of the APA). Answer. The Commission's description of its central and field organization is published in the Federal Register. Amendments to the description are pub- lished in the Federal Register from time to time as changes are made. After the issuance of a number of amendments, then the Commission republishes the entire description Incorporating the amendments. The last complete revision occurred January 1. 1964, and superseded the 1962 description. (b) Statements of the general course and method by which its functions are channeled and determined (see sec. 3(a) (2) of statute). Answer. Statements of the general course and method by which the Com- mission's fimctioi~s are channeled and determined may be found in its descrip- 4ZS-213--65---pt. 2--13 PAGENO="0194" 466 PAGENO="0195" FEDERAL PUBLIC RECORDS LAW 467 Question 6. What is the procedure for making available to the general pub- lic the records and files, interpretations, and legal opinions of your agency `1 Answer. The procOdure for making available to the general public the Com- mission's records and files, interpretations and legal opinions ave set forth in section 2 of its Description of the Central and Field Organization. Section 2 provides: "2. Public information: "(a) Releases by the Commission.-~-All releases to the public and press are issued through the Office of the Secretary, which is the first point of contact for information relating to any matter or proceeding pending before the Commission. "(b) Requests for inforrnation.-Requests for information or advice con- cerning any matter within the jurisdiction of the Commission may be addressed to the Secretary, the Director of the bureau or office which handles the par~lc- ular subject matter, or to field offices of various bureaus to the extent stated in the description of bureau organization. "(e) Reports and orders-The reports and orders of the Commission are nil- tially prepared for service upon the parties to the procee,iings In duplicated form~ Copies of all such reports and orders are made available for public inspection at the time of issuance through the Secretary's office and, to the ex- tent that copies are available, are furnished to interested persons without charge. "The more important reports of the Commission are printed and sold in ad- vance sheet form and in bound volumes by the Superinte~~dent of Documents, Government Printing Office, Washington, D.C., 20402. Reports concerning other than valuation and motor carrier application matters are published in volumes entitled "Interstate Commerce Commission Reports," commonly cited "- ICC -." Reports concerning motor carrier application matters are pub- lished in a separate series of reports entitled, "Interstate Commerce Commis~ sion Reports, Motor Carrier Cases," commonly cited "- MCC -." The first 21 volumes of reports relating to valuation matters are included in the "T~C" series of reports, but beginning with Volume 22, these reports are published in a separate series entitled, "Interstate Commerce Commission Valuation Re. ports," commonly cited "- Val Rep -." "Copies of reports and orders, including those printed as described above may be examined at the Washington office of the Commission. "(d) Inspection of records. "(1) The following specific files and records in the custody of the Secretary are available to the public (sees. 16, 204, 816 and 417 of the act, 49 U.S.C. 16, 304, 916, and 1017), and may be inspected at the Commission's office hi Wash- in~ton, upon reasonable request: "(I) Copies of tariffs, rate schedules, section 22 quotations or tenders, i~lass1- flcations, powers of attorney, concurrences and contracts filed with the Com- mission pursuant to sections 6, 22, 217, 218, 306. 405, and 409 of the act (49 U.S.C. 6,22, 317,318,906, 1005, and 1009). "(ii) Annual and other periodic reports filed with the Commission pursuant to sections 20, 220, 313, and 412 of the act (49 U.S.C. 20, 320, 913, and 1012). "(ill) Annual reports, maps, profiles, and other data filed with the Commis- sion pursuant to section 19a. "(iv) All docket files, including pleadings, depositions, exhibits, transcripts of testimony, recommended and proposed reports, exneptlons, briefs, and reports and orders of the Commissioii In any proceeding. "(v) File of instruments or documents recorded pursuant to section 20c and index thereto. "(vi) Other files and records, depending on their nature, niay be available for public inspection where the disclosure would be consistent with the pUblic interest and the duties of the Commission. "(2) Requests to inspect records.-Reqnests to inspect public reCords should be made at the Secretarl's office or at one of the public reference rooms, in the Commission's Washington office. Copies of certain rate schedules, tariffs, reports and operating authorities filed by and applicable to motor carriers are available for inspection at field offices where personnel of the Bureau of Motor Carriers are located. "(3) Certified copies of records, etc.-Copies of and extracts from public records will be certified by the S~cretgry, under the seal of the Commission. Persons requesting the CotamissiOn to prepare such copies should cletirly state the material to be copied, and whether they shall be certified. A charge will be made for certification and for the preparation of copies." PAGENO="0196" 468 FEDEIIAL PUBLIC REiCORDS LAW Question 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule or practice? Answer. Pursuant to the Intent of Congress as set forth in several statutes including section h of the Administrative Procedure Act which are referred to below, 1irnitation~ are placed upon the availability of specific records and files to the general public. The Congress has imposed several specific restrictions upon disclosure of inforthation by the Commission. Perhaps the most important of these pro- visions is contained in section 20 of the act. It empowers the Commission and its employees to inspect and copy carriers' records and to inspect car- riers' physical properties. Section 20(7) (f) provides that it shall be a crim- inal offense for a COffimisajon employee to knowingly and willfully divulge any fact or information ~thlch comes to his knowledge in the course of any ex- afuination or Inspection made pursuant to section 20, unless be is directed to do so by the Commission or by a court or jl4dge. Similar provisions appear in sections 222(d), 317(e) and 421(e) of the Interstate Commerce Act. Those statutory provisions provide part of the basis for the Commission's policy of withholding its investigatory files from public inspection. A further dis- cussion of the withholding of such investigatory files follows later. Section 220(a) (49 ILS.C. § 320(a)), concerning the filing of contracts by motor contract carriers, provides in part: "The Commission shall not, however, make public any contract, agreement, or arrangement between a contract carrier by motor vehicle and a shipper, or any of the terms of conditions thereof, except as a part of the record in a formal 9 proceeding where it considers such action consistent with the public interest: Provided, That if it appears from an examination of any such contract that it fails to conform to the published schedule of the contract carrier by motor vehicle as required by section 218(a), the Commission may, in Its discretion, make public such of the provisions of the contract as the Commission conslder~ neces- sary to disclose such failure and the extent thereof." Section 15(11) of the act provides that it shall be unlawful for a rail carrier or its employees to disclose without the consent of the shipper or consignee: "~ * * any information concerning the nature, kind, quantity, destination, consignee, or routing of any property tendered or delivered to such common car- rier for intersta~ transportation, which information may be used to the detri- ment or prejudice of such shipper or consignee, or which may improperly disclose his business transactions to a competitor; and it shall also be unlawful for any person or corporation to solicit or knowingly receive any such information which may be so used: Provided, That nothing in this part shall be construed to pre- vent the giving of such information in response to any legal process Issued under the authority of any State or Pederal Court, or to any offtcer or ag'ent of the Government of the tJnite4 States, or of any State or Perritory, in the exercise of his powers * * In accordance with this legislative purpose to protect shippers and consignees, the Commission does not make available for public inspection the 1 percent waybill sample which it requires railroads to file with it for statistical purposes. In addition to express statutory restrictions upon the disclosure of informa- tion, the Commission may prohibit disclosure of information which would impede effective administration of the act. Section 17(3) provides that "The Commis- sion shall conduct its proceedings under any provisions of law in such manner as will best conduce to the proper dispatch of business and to the endsi of justice." Section 204(a) (6) provides that "It shall be the duty of the Cox~imjssion * * * to administer, execute, and enforce all provisions of this part Ipt. II relating to motor carriers] to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration." Com- parable rulemaking provisions are found in section 304(a) (in pt. III of the act, relating to water carriers) and in section 403(a) (in pt. IV of the act, relating to freight forwarders), The broad scope of the rulemaking power which Congress has conferred upon the Commission In section 204(a) (s), for example, is illustrated by the Supreme court's decision in American Trucking Association, Inc. v. United States, 344 U.S. 298, 311-312. It has been held that under a general grant of rulemaking power such as that contained in section 204(a) (a), an independent regulatory commis- sion may prescribe regulations governing the custo4y and use of its records, Appeal of Securities an~t Ikrchange Commission, 22f1 P. 2d 501, 516~-51~ (CA. 6, 1955). PAGENO="0197" FEDERAL PUBLIC RECORDS LAW 469 In aecordanëe with the Commission's rules regarding freight commodity statis- tics of motor carriers (49 C.F.R. 20G.7, Dee. 1G. 191E14) the reports of individual motor carriers pertaining to traffic for the year 19G5 will be open to public in- spection. However, carriers may file supplemental reports not open to public inspection on traffic involt~ing less than three shippers. These reports may be inspected upon approval by the Commission. Another area related to disclosure or withholding of information concerns the Commission's investigatory files. These files contain the results of investi- gations of possible violations of the statutes administered by the Com~nission. This material consists primarily of complaints against persons subject to the jurisdiction of the Commission and of information obtained by the Commission's agents from examination of carriers' reeords and equipment and from other sources. It is the Commission's practice not to make such investigatory files available for public inspection for several reasons. First, disclosure of such files would reveal the identity of certain sources of information which would become unavailable to the Commission under a general practice of disclosure. It is well established that law enforcement agencies may treat as privileged or confidential the identity of persons who furnish information as to possible viola- tions of law. Second, sections 20(7) (f) and 222(d) of the Interstate Commei~ce Act provide that It shall be a criminal offense for an ~tgent, accountant, or an examiner of the Commission to knowingly or willfully divulge any fact or in- formation which comes to his knowledge during the course of any examination or inspection made under the authority of section 20 or 220, except as he may be directed by the Commission or by a court. Third, indiscriminate disclosure of such files which sometimes contain unevaluated raw material would oft~m produce injustice to innocent persons by permitting publicity of groundless charges against them. Another area concerns the legal power and the policy of the Commission with respect to the disclosure or nondisclosure of accident reports which carriers are required to file with the Commission. The Accident Reports Act requires rail carriers to submit monthly accident reports, empowers the Commission to investigate and make reports on accidents, and provides: That neither said report nor any report of said investigation nor any part thereof shall be admitted as evidence or used for any purpose In any suit or action for damages growing out of any matter mentioned in said report of investigation, 45 U.S.C. 38,40,41. Similarly, section 220(f) of the Interstate Commerce Act provides that: No report by any motor carrier of any accident arising in the course of the operations of such carrier, made pursuant to any requirement of the Com- mission, and no report by the Commission of any investigation of any such accident, shall be admitted as evidence, or used for any other purpose, in any suit or action for damages growing out of any matter mentioned in such report or investigation. The Commission's regulations with respect to railroad accident reports (49 CFR 125.9) provide that: Accident reports made by railroads in compliance with these rules shall be for the information of the Commission and shall be open to public in- spection only upon prior approval of an application by this Commission. Applications for public inspection will be granted if the CommissiOn is satis- fied that such inspection will not result in a violation of section 4 of the Accident Reports Act and is for the purpose of obtaining information to be presented before Federal and other governmental bodies, or which will contribute to the promotion of safety in railroad operations. The Commission's regulations with respect to motor carrier accident reports (49 CFR 194.1) provide that: - - e with these regula- - shall PAGENO="0198" 470 FEDERAL PUBLIC RECORDS LAW The hours of service regulations, 49 CFR 195, require that certain motor carriers must file ep each month with respect to excess hours of service of drivers The minute of division 1. entered December 1~3, 1956, provides that the reports will be made available only upon a request, in writing to be approved by division 1. The information in such reports is of value only to the Com- mission staff, and the restriction is imposed to encourage full and accurate re- porting by carriers. As a matter of fact, since 1956, th~ date the restriction was imposed, there has been only one request for making a report available. This request~ was approved. Certain internal administrative records, such as payroll, budget, personnel, fiscal and related materials are not available to the public since these records are within the exemption of the introductory provision of 49 U.S.C. 1002. Likewise the internal memorandums between members and employees of the Commission are not available to the public. Correspondence dealing with any of the docket proceedings is made a part of the correspondence section of the docket `and iS available to inspection by the public. With respect to general correspondence unrelated `to any speefic proceeding, such correspondence may be available for public inspection where disclosure would not be inconsistent with the public interest and the duties of the Commission, Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not pub- lished in the Federal Register (see see. 3(a) of the Administrative Procedure Act)? Answer. There are no circumstances where private parties dealing with the Commission are required in any manner to' resort to unpublished organization or procedure. Question 9. In what types of cases ~ your agency refrained from publish- ing rules where there Is involved any function of the United States reqtiiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. The Commission has refrained from publishing rules only with re- spect to the transportation of explosives for the Armed Forces by Railway Ex- press Agency, Inc., on passenger trains in time of war or a national emergency proclaimed by the President. See 49 CFR 75.675(a), exception No.2. Question 10. In what circumstances has your agency refrained from publish- ing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer. The Commission does not publish any `of its rules relating to per- sonnel, payroll, budget, fiscal and related materials. Question 11. What is your agency's definition of "official record" as used in section 3(c) of the Administrative Procdure Act? Answer. The "official record" of the Commission as used in section 3(c) of the Administrative Procedure Act Is set forth in section 2(d) (1) of the descrip- tion of the central and field office of the Commission and is as follows: "2(d) (1) "(1) Copies of tariffs, rate schedules, section 22 quotations or tenders, classi- fications, powers of attorney concurrences and contracts filed with the Com- mission pursuant to sections 6, 22,' 217, 218, 306, 405, and 409 of the act (49 U.S. Code 6, 22, 317,318,906, 1005, and 1009). "(ii) Annual and other periodic reports filed with the Commission pursuant to sections 20, 220, 313, and 412 of the act (49 U.S. Code 20, 320, 913, and 1012). "(iii) Annual reports, maps, profiles, and other data filed with the Commis- sion pursuant to section 19a. "(iv) All docket files, including pleadings, depositions, exhibits, transcripts of testimony, recommended and proposed reports, exceptions, briefs, and re- ports and orders of the Commission in any proceeding. "(v) File of instruments or documents recorded pursuant to section 20c and Index thereto." The practical effect of the foregoing is to classify as "official records" all documents which are required to be filed with the Commission and all docu- ments which are filed as a part of the record in Commission proceedings. As noted above, there are statutory restrictions upon the disclosure of certain types of information filed with or obtained by the Comm PAGENO="0199" FEDERAL PUBLIC R~1CORDS LAW 471 REPLY FROM NATIONAL AERONAUTICS AND SPACE ~&DMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Waslvtngton, D.C., Maroh 17, t965. Hon. JoHu E. Moss, Chairman, Foreign Operations and GovernQnent Inform~ation ~S'ubeominSttee, Committee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: The following constitutes the replies to the questions posed in your letter of February 12, 1965, concernIng the interpretation, and implementation by the National Aeronautics and Space Administration of section 3 of the Administrative Procedure Aèt (5 U.S.C. 1002) pertaining to public information: Question 1. Generally, to what functions of your agency does 5 U.S.C. 1002 apply? Are there any divisions, bureaus, branches, or other consistuent units of your agency to which the section does not apply? Answer. Information pertaining to all NASA activities is either published or is otherwise generally available to the public. No organizational element, activity, or function of NASA is considered exempt from section 3 of the Ad- ministrative Procedure Act. In this regard, we note that two sections of the National Aeronautics and Space Act of 1958, as amended, impose upon NASA disclosure requirements at least as extensive as those imposed by section 3 of the Administrative Procedure Act. Section 203(a) (42 U.S.C. 2473(a)) provides: "The administration, in order to carry out the purpose of this Act, shall- * * * * * * * "(3) provide for the widest practicable and appropriate dissemination of in- formation concerning its activities and the results thereof." In addition, section 303 of the National Aeronautics and Space Act (42 U.S.C. 2454) provides: "Information obtained or developed by the Adthinistrator In the performance of his functions 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: Provided, That noth~ ing in this Act shall authorize the withholding of information by the Adminis- trator from the duly authorized committees of the Congress," Question 2. In what official or unofficial publication, and at what intervals, does your agency publish; (a) Descriptions of its central and field organization (see section 3(a) (1) of the Administrative Procedure Act). (b) Statements of the general course and method by which its functions are channel and determined (see s~iction 3(a) (2) of statute) (a) Substantive rules adopted as authorized by law (see section 3(a) (3) of statute) (4) Statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public (see sec. 3(a) (3) of statute) ; and (e) Rules addressed to and served upon named persons in accordance with law (see sec. $ (a) (3) of statute). Answer. (a) Descriptions of organizational elements of NASA headquarters and field installations are published in the U.S. Government Organization Manual and the NASA Management Manual, both of which publications are available to the public. (b) The missions and procedures of NASA headquarters offices and field in- stailatlons, and subdivisions thereof, are described in detail in the NASA Man- agement Manual or other directives published as part of the NASA issuance system. These issuances are available to the public. Descriptions' of functions and procedures are published and incorporated into the issuance system as changes occur. (a) Unlike the various regulatory agencies, NASA is not empowered with formal rulemaking authority pursuant to which a certain segment of private activity is regulated. NASA does not promulgate "rules" as that term is used in section 3(a) (3) of the Administrative Procedure Act. (4) Statements of NASA policy interpretations and procedures which affect the public, including the entire "NASA procurement regulations," are published in the Federal Register. Any other statement of policy- or implementation thereof is incorporated into the NASA issuance system. PAGENO="0200" PAGENO="0201" FEDERAL PUBLIC RECORDS LAW 473 Answer. Private parties are not required to deal with NASA pursuant to procedures not published in the Federal Register. NASA's programs come into contact with the public most frequently in the area of procurement. All applicable procurement regulations are published in the Federal Register. Other procedures formulated with a view to guidance of the public, e.g., settlement of tort claims, procedures before NASA boards, and patent waiver regulations are also published in the Federal Register. In instances where a member of the public wishes information or otherwise desires to deal with NASA for a purpose not covered by a formally established procedure, his request will be channeled to the cognizant office. However, in no instance will the request of a private individual be refused for failure to comply with a procedure not published in the Federal Register. Question 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. The only circumstances under which NASA has refrained from pub- lishing regulations, pursuant to section 3(1) of the Administrative Procedure Act, are those related primarily to the national defense and security. Question 10. In what circumstances has your agency refrained from publish- ing rules where there is involved any matter relating solely to internal agency management, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer. All regulations established by NASA are published as part of the NASA issuance system regardless of whether they affect only the actions of NASA employees or whether, in addition, they may have `a direct effect upon members of the public. Thus, regulations on personnel, financial management, security, administrative operations, programs, etc., are published in the NASA Management Manual or other NASA `publications concerned specifically with a particular subject matter. Publication in the Federal Register has heretofore been selective on the ground that the `bulk of regulations concerned solely with administrative operations is of little concern to the general public. However, regulations of greater interest to the public or which affect private rights and obligations have been published in the Federal Register, e.g., procurement, tort claims, patent waivers, procedures before NASA hoards, real property man- agement, etc. Question 11. What is your agency's definition of "official record" as used in section 3(c) of the Administrative Procedure Act? Answer: No guidelines are established in the Administrative Procedure Act for determining what is meant by "official record." However, NASA is subject, along with other agencies, to the statutes governing the disposition of public records which ~ippear in chapter 10 of title 44 of the tinited States COde. 44 U.S.C. 366 defines "records" to include "all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received `by any agency of the U.S. Government in pursuance of Federal law or in connection with the transaction of public `business and preserved or appropriate for preservation by that agency or its legitimate successor as evi- dence of the organization, functions, policies, decisions, procedures, oferations, or other activities of the Government or because of the informational value of data contained therein." NASA would apply the same definition to the term "official record" as used in section 3(c) of the Administrative Procedure Act. Enclosed herewith are two co'pie~ of a memorandum by the Administrator, NASA, and a policy directive specifying uniform criteria for the publication of materials within the NASA issuance system. These enclosures do not cover the subject of poliles and procedures for the publication of regulations hi the Federal Register, which will be the subject of a forthcoming issuance, a CODY of which will he forwarded. Sincerely yours, RIOHAnD I~. OALLAGIIAN, Assistant Administrator for Legislative Affairs. PAGENO="0202" FEDERAL PLY FRoM NATIONAL LABC PAGENO="0203" FEDFIhAL PUBLIC RECORDS LAW 475 the Division of Information. Regional offices make copies available to the public by placing them on a table at or near the entrance to the regional office for a period of approximately 30 days; thereafter, copies arefurnished on request. The Division of Information also issues and distributes a weekly summary of NLRB eases, which includes a digest of every unfair labor practice case decision and order of the Board. Any interested individual or organization may receive the weekly summary upon request. The weekly summary contains the notice that a full text copy of any case summarized may be requested from the Division of Information. Question 4 In what types of cases does your agency refrain from publishing interim and final opinions or orders where, in the opinion of your agency, good cause requires they be held confidential, pursuant to section 3(b) of the Admin- istrative Procedure Act or other authority? Answer. This is not applicable since the agency does not classify any of its decisions as confidential. Question 5. In what circumstances are unpublished opinions and orders cited or used as precedents in other proceedings? Answer. There are no circumstances In which unpublished Board decisions or orders are cited as precedent for other proceedings. Question 6. What is the procedure for making available to the general publlc the records and files, interpretations, and legal opinions of your agency? Answer. The official records and formal files of this agency are available for public inspection at any time upon request-see section 102417 of the rules and regulations. We do not have any special issuances of "interpretations and legal opinions" as such, although they may be contained in Board decisions (in which case, see Item 3 above). Question 7. What limitations are placed upon the availability of records and files to the general public, either by statute, rule or practice? Answer. Limitations placed on the availability of files, records, etc. are set forth in sections 102.117 and 102.118 of the Board's Rules and Regulations (as authorized by ~30 Stat. 237, 1946, 5 U.S.C. sec. 1001 et seq.). Question 8. In what circumstances are private parties dealing with your agency required in any manner to resort to organization or procedure not published in the Federal Register (see sec. 3(a) of the Administrative Procedure Act? Answer. None. Question 9. In what types of cases has your agency refrained from publishing rules where there is involved any function of the United States requiring secrecy in the public interest, pursuant to section 3(1) of the Administrative Procedure Act or other authority? Answer. None. Question 10. In what circumstances has your agency refrained from publishing rules where there is involved any matter relating solely to Internal agency man- agement, pursuant to section 3(2) of the Administrative Procedure Act or other authority? Answer, None. Question 11. What is your agency's definition of "official record" as used In section 3(c) of the Administrative Procedure Act? Answer. The designation of the "official record" as used by this agency is de- fined in sections 102.45 and 102.68 of the Board's Rules and Regulations as follows: 102.45(b). The charge upon which the complaint was issued and any amendments thereto, the complaint and any amendments thereto, notice of hearing, answer, and any amendments thereto, motions, rulings, orders, the stenographic report of the hearing, stipulations, exhibits, documentary evi- dence, and depositions, together with the trial examiner's decision and ex- ceptions and any cross-exceptions or answering briefs [as provided in 102.46] shall constitute the record in the [unfair labor practice] case. 102.68. The record In the [representation] proceeding shall consist of: the petition, notice of hearing with affidavit of service thereof, motions, ruling, orders, the stenographic report 0± the hearing and of any oral argu- ment before the regional director, stipulations, exhibits, documentary evi- dence, affidavits of service, depositions, and any briefs or other documents submitted by the parties to the regional director or to the Board, and the decision of the regional director, if any. PAGENO="0204" PAGENO="0205" FEDERAL PUBLIC RECORDS LAW 477 of the Foundation for 1964, beginning on page 89. Further discussion of this point appears in Item 8, below. (c). The issuances which we consider to be substantive rules of the Founds- tion are published in the Federal Register. Thus, in the Federal Register of Octo- ber 28, 1964, beginning on page 14540, the Foundation published its "Procedures and Criteria for Resolving Questions Involving Moral Character or Loyalty of Applicants for and Holders of National Science Foundation Fellowships." In addition, on December 4, 1964, the Foundation published in the Federal Register, beginning on page 16305, its regulation to effectuate the provisions of title VI of the Civil Rights Act of 1964. (d). The Foundation has not bad occasion to develop statements of general policy or interpretations for the guidance of the public. (e). This item is not applicable to the Foundation. 3. The Foundation does not have occasion to adjudicate cases or to issue opinions or orders. 4. This is covered by item 3 above. 5. This item is also covered by 3 above. 6. The primary guidelines used by the Foundation for making available to the general public the records and files of the Foundation are set forth In a state- ment of the Federal Council for Science and Technology of February 11, 1963, entiled "Statement Relating to the Release of Information on Grants or Grant- type O~ntracts Made in Support of Non-Classified Basic Scientific Research at Non-profit Institutions," as amplified by the Foundation's letter to you of April 5, 1963. As indicated in that letter, a statement has been included in the Foun- dation's grant booklet pointing out that proposals submitted to the Foundation may be made publicly available. In. addition, the procedures set forth in the letter relating to the release of information are being followed by the Foun- dation. The Foundation does not have occasion to render legal opinions affect- ing the general public so that the question of the availability of such opinions does not arise. 7. In general, the answer here would appear to be covered by the comments set forth in item 6. There are no limitations imposed upon such availability, either by statute, rule, or practice, except those limitations imposed by statutes of general applicability to Federal agencies as, for example, 18 iJ.S.C. 1905, re- luting to disclosure of confidential information by Federal offices or employees. 8. As indicated earlier, some oragnizational information about the Foundation is presently published in two places. In 1951, such information also was pub- lished in the "Notice" section of the Federal Register. As you may know, no- tices filed at that time were never codified, although present practice is to do so. Through an oversight, this material was allowed to go out of date. We appreci- ate your bringing the matter to our attention and are arranging to have orga- nizational information about the Foundation republished in the Register in the near future. Along with this material we will include the republishing of information re- lating to fellowships and grant programs of the Foundation, originally pub- lished in the Register in 1951 and 1955 but removed from the Register In 1900 because of its need for extensive revision. I understand that it was planned that the material would be updated and republished at tlmt time, Such revision was unfortunately overlooked, in part due, I believe, to organizational changes which were taking place in the Foundation. I might point out, however, that information on Foundation grant and fellowship programs is distributed on an extremely wide basis. For example, announcements of the Foundation's Summer Fellowships for Secondary School Teachers of Science and Mathematies are mailed to every chief State school officer In the United States, to the principles of all secondary schools in the United States and to the presidents, graduate deans and science deans in colleges apd universities supporting post-baccalaure- ate studies in science and mathematics. Furthermore, press releases explain- ing the program are provided to science and education journals which publish this information. In addition, 10,000 or more copies of our brochure on fél- lowships and traineesbips are sent out in response to requests. Appropriately wide distribution is given to announcements and brochures relating to our other programs. 9. In no case has the Foundation refrained from publisbin~ rules because of possible secrecy requirements. 10. Tui rio circumstances has the Foundation refrained from publishing rules on the basis that the matter related solely to internal agency management. PAGENO="0206" 478 PAGENO="0207" FEDERAL ?UBLIC EE:CORDS LAW 479 of the acts which the Board administers. Examples of substantive rules may be found, however, in sections 250.1-250.6 and 345 of the regulations (20 CFR 250.1-250.6 and 345). (e) Although there may have been a few rare instances, we are not aware of any Board rules having been addressed to and served upon named persons in accordance with law; if there have been any such rules, they have not been published. Rules of this nature might possibl~y be issued under sections 250.1- 250.6 of the regulations (20 013'R 250.1-250.6), but In practice general instructions to all employers have been released, together with copies of the Board's regula- tions, and individual formal demands for particular compliance have not been necessary. (Copies of such instructions accompany the copies of the regula- tions we are submitting in compliance with the final paragraph of your letter.) 3 and 4. For the reasons mentioned in the answer to question 7, below, the Board does not publish its final orders in the adjudication of individual claims for benefits under the acts it administers. The legal principles forming the bases for Its decisions are published in the regulations, and with respect to specific points of general Interest legal principles are summarized in the administrative rulings and court review section of the Board's annual report, in the Board's monthly review in earlier years, and in Railroad Retirement Board-legal opinions with respect to some recent years. 5. Unpublished opinions and order.s of the Board are not cited or used as precedents in other proceedings. 6. tn addition to the methods noted in answer to question 3, above, opinions on particular questions are furnished to any interested persons upon request, the requirements noted in answer 7, below, having first been complied with, and the Board's records and files are available to inspection subject to the same requirements. 7. The availability of records and files to the general public is limited by the prohibition of disclosures from Board records appearing in section 12 (d) and (n) of the Railroad Unemployment Insurance Act (45 U.S.C. 362 (d) and (n)) and section 262.16 of the Board's regulations (20 CFR 262.16). The in- formation and records not available to the public upon request are those which identify the individuals concerned and which consist either of medical informa- tion or any other information if its disclosure would not be in the interest of the individual, In addition, records (usually medical) received froin the Social Security Agency or the Veterans' Administration are subject to any limitation upon disclosure imposed by the acts administered by those agencies (5 U.S.C. 139b(a)). 8. Private parties dealing with the Board are not required in any manner to resort to organization or procedure not published in the Federal Register. This may be qualified by noting that in infrequent cases the parties request the Board to vary its procedures, particularly appeal procedures, or the Board may suggest such a variance subject to agreement by the parties. It may also be noted that the instructions to employers, referred to In answer 2(e), above, do not appear in the Federal Register, but these are designed primarily to assist employers in complying with the requirements of the published regulations. 9. The Board has had no occasion to refrain from published rules involving any function of the United States requiring secrecy in the pt~blic interest, whether pursuant to section 3(1) of the Administrative Procedure Act or other authority. / 10. Rules governing personnel activities and instructions to e1i1plo~ees, ad- ministrative manuals, operating manuals, etc., concerning the manner in Which the employees are to carry on their functions, are the types of materials relat- ing solely to internal agency management which, pursuant to section 3(2) of the Administrative Procedure Act, are not published by the Board. 11. The Board's records and files maintained in the administration o~f the Rail- road Retirement and Railroad Unemployment Insurance Acts are considered to be within the official record designation used in section 3(c~) of the Administra- tive Procedure Act. In compliance with the request in the final paragraph of your letter, I am transmitting herewith two copies of the Board'~ regulatIons (20 CFR 20~J-395) and the accompanying instructions to employers, together with two copies of the statement in the U.S. Government OrganizatiOn Manual describing the central and field organization of the Board. Sincerely yours, HowAun W. HABERMSYEn, Chairman. PAGENO="0208" 480 FEDERAL PUBLIC RECORDS LAW REPLY FROM THE RENEGOTIATION BOARD Tim RRNEGOTIAPION BOARD, Washington, D.C., March ~9, 1965. Hon. JonN E. Moss, Chairman, Foreign Operations and Government Information subcommittee, Committee on Government Operations, Rouse of Representatives. DEAR Mn. CHAIRMAN: This is in response to your letter dated February 12, 1965, requesting information on the relation of section 3 of the Administrative Procedure Act (5 U.S.C. 1002) to the activities of this agency. The paragraphs that follow are numbered to correspond with the questions in your letter. 1. The only functions of the Renegotiation Board are those delineated in the Renegotiation Act of 1951. Section 111 excludes such functions from the operation of the Adminis~ative Procedure Act, except as to the require'men~~ of section 3 thereof. Thus, section 3 applIes to all the functions of this agency. There are no divisions, bureaus, branches, or other constituent units of this agency to which the section does not apply. 2. (a) Official descriptions of the central and field organization of the Board are published in the Federal Register in the form of Renegotiation Board Regulations from time to time, as changes are made, and annually in the U.S. Government Organizati~~ Manual. Publication thereof is also made in the Renegotiation Board Regulations manual printed by the Government Printing Office and available to the general public by subscription. The central and field organization is also described in a pamphlet entitled ~ It Is, How It Works," available to the general public. (b) Statements of the general course and method by which the functions of the Board are channeled and determined are published officially in the Federal Register in the form of Renegotiation Board Regulations, as adopted from time to time. Publication thereof is also made in the manual of such regulations, referred to in (a) above. Explanations thereof are also furnished to the gen- eral public in a booklet entitled "Instructions for Filing Renegotiation Reports" and the' pamphlet entitled "Renegotjation~wh5~ It Is, How It Works." (c) Substantive rules adopted as authorized by law are published officially in the form of Renegotiation Board Regulations, as adopted from time to time. Publication is also made in the manual of such regulations. (d) Statements of general policy and interpretations formulated and adopted by the Board for the guidance of the public are publlshed officially in the Federal Regis~e~ In the form of Renegotiation Board Regulations, as adopted from time to `time. They are also `published in the manual of such regulations. Additional guidance to the public is issued from time to time in the form of renegotlatjo~ rulings and renegotiation bulletins~ (e) The Board does not publish its orders to or agreements with contractors for the elimination of excessive profits (see 3 and 4, below). 3. The extent to which the Board makes Its records available for public in- spection is described in its regulatio~~, as follows: (a) Section 1480.4(a) of the Renegotiation Board Regulations provides: (a) The public.--Upon request to the Secretary of The Renegotja~jo~ Board, Washington, D.O.,~ any person may inspect during usual business hours, at the office of the Secretary, a copy of the `transcript of any official Board actions granting e~cemptio~s of contracts from renegotja~io~ under the act, except in cases where such Board action is of a nature required to be held confidential for good cause. The purpose of this paragraph (a) is to make available for public `inSpection Board actions on applications for ex- emptions, when such actions are not issued as regn~ati~ns and are not re- quired to be held confidential for goo4 cause. (b) Section 1480.8 of the Renegotiation Board Regulations provides: OpinSons and Orders.-Except as authorized in section 1480.4(a), opinions and orders will not be published or made available to the public under sec- tion 3(b) of the Administrative Procedure Act, inasmuch as they are re- garded as confidential for good cause shown, by reason of the confidential data furnished by contractors and relating to their business, and included therein. For the purposes of this paragraph, the term "opinion" Includes a statement furnished pursuant to `part 1477 of this subchapter and the term "order" includes an agreement to eliminate excessive profits, as well as a unilateral determination. Opinions and orders are not cited as precedents in any renegotiatjo~ proceedings. PAGENO="0209" FEDERAL PUBLIC RECORDS LAW 481 .. The Board conducts only one type of case. All of its cases are proceed- ings to determine and eliminate excessive profits, if any, under the Renegotiation Act of 1951, as amended. Its practice with respect to the publication of interim and final opinions or orders is described In paragraph 3 above. 5. Opinions and orders of the Board are not cited, nor are they used, as con- trolling precedents in any renegotiation proceedings (see RBR 1480.8, quoted in paragraph 3 above, and RBR 1460.2(d)). 6, RBR 1480.4(d) provides that persons properly and directly concerned with any renegotiation proceeding, or their duly authorized representatives, may apply in writing to the Secretary to the Renegotiation Board for access to records of such proceeding, and that access will be granted at times and places which are convenient in the light of the physical location of the records to which access is sought. The procedure for obtaining access to actions of the Board granting ex- emptions of contracts from renegotiation is described in paragraph 3 above. Interpretations and legal opinions of the Board on particular matters are made available to the general public by the issuance of renegotiation rulings and renego- tiation bulletins. 7. Part 1480 of the Renegotiation Board Regulations provides that renegotia- tion agreements, reports, records, files, correspondence, memorandums, and all other data, documents, and material which have been transferred to, or have been prepared by, the Board in connection with any renegotiation proceediug are not to be distributed, nor are their contents to be revealed, to any person other than as provided in such regulation or as may be prescribed by the Board in any specific instance. Limitations are imposed by the regulation upon the availabil- ity of the Board's records and files to the general public as follows: (a) Pursuant to section 55(f) (1) of the Internal Revenue Code, access is not afforded to copies of Federal tax returns, revenue agents' reports, or other Fed- eral tax data in the custody of the Board. (b) Access is not afforded by the Board to any information or material classi- fied as "Top Secret," or "Secret" or "Confidential" within the meanings assigned to those terms in Executive Order 10501 dated November 5, 1953 (18 P.R. 7049), or to any "restricted data" as that term is defined in the Atomic Energy Act of 1946, as amended. (c) Pursuant to 18 U.S.C. 1905, access is not afforded to information which 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 contractor. (4) When access is granted to "persons properly and directly concerned" in any renegotiation proceedings, pursuant to RBR 1480.4(d) (referred to in para- graph 6 above), this does not include access to "memoranda and reports pre- pared by Government employees for use within the Government or to any other material which, in the opinion of the Board, should be held confidential for good cause." 8. Private parties dealing with this agency are not required to resort to or~ ganization or procedure not published in the Federal Register. 9. Section 106(d) (4) of the Renegotiation Act of 1951 authorizes the Board to exempt from some or all of the provisions of the act, any contract or sub- contract the renegotiation of which would jeopardize secrecy required in the public interest. Contracts and subcontracts exempted pursuant to this provision are not available for inspection under RBR 1480.4(a), quoted in paragraph 3 above. 10. Internal management instructions and directives of the Board are not available to the general public. These are of three types, as follows: (a) Ge~veral orders.-These are directives of the Board with respect to internal procedures relating to the operation of the renegotiation process. (b) Operational bulletina.-These contain technical instructions by staff units of the Board to their own personnel. (c) Administrative orders.-These provide instructions and procedures on matters not related to the renegotiation process, such as personnel, property, and funds. 11. The term "official record," as used in section 3(c) of the Administrative Procedure Act, in relation to this agency, is considered to mean all agreements, orders, reports, records, files, correspondence, memoranda and other data. docu- ments or material relating to any renegotiation proceeding. Two copies of the Boards regitiatiorts, as aniemied ~.o (late, are funiislwd herewith. Sincerely yours, LAwRENCE E. ITARTWIG, Cilia friui (in. 45-213--CS-pt. 2----14 PAGENO="0210" 482 FEDERAL PUBLIC RECORDS lAW REPLY FROM SECURITIES AND EXChANGE CoMwssIoN SECURITIES AND EXCHANGE COMMISSION, Washington, March 17, 1965. lion. JOHN E. Moss, Chairman, Foreign Operations and Government Information ~ubcommitt'ee, Corn- mitte~ on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: This is in response to the inquiries in your letter of February 12, 1965, concçning the operation of section 3 of the Administrative / Procedure Act, 5 U.S.C. 1002, with respect to the activities of this Commission. In addition to the answers below, we are providing copies of the Commission's recent comments to the Committee on Government Operations on H.R. 5012, which provide additional information relevant to the subject inquiries. 1. Congress has assigned to this Commission the responsibility of administering the Securities Act of 1933, the Securities Exchange Act of 1934, the Public Utility Holding Company Act of 1935, the Trust Indenture Act of 1939, the Investment Company Act of 1940, and the Investment Advisers Act of 1940. The Commission's functions under these statutes to which section 3 of the Administrative Procedure Act, 5 U~S.C. 1002, applies include ru1em~king, adjudication, and examination of the various filings made with the Commission by private persons such a registra- tion statements relating to public offerings of securities, broker-dealer registra- tions and reports and issuer reports. The Commission also has certain advisory functions to the courts in corporate reorganizations under chapter X of the Bank- ruptcy Act; the Commission adopts no substantive rules, opinions, or orders there- under within the meaning of section 3 of the Administrative Procedure Act. As shown more fully below and in the attached comment on H.R, 5012, the Commission makes public all of the information required by section 3 to be public and keeps private only materials permitted by that section or other statutes to be nonpublic. 2 (a), (b), (o), and (d). Descriptions of the Commission's central and field organization, statements of the general course and method by which its functions are channeled and determined, substantive rules, statements of general policy, Interpretations, and amendments to the foregoing are published in the Federal Register, the Code of Federal Regulations (17 CFR Parts 200-286), and in pamphlet form and as individual releases made available to the public. Changes in the above~described material are published in the Federal Register promptly upon adoption, are reflected in the supplements to and revisions of the Code of Federal Regulations, and are promptly distributed as individual releases, copies of which are included in pamphlet copies of rules and are also distributed by commercial publishers. 2(e). Pursuant to rule 25(e) of the Commission's Rules of Practice, 17 CFR 201.25(c), all final opinions, orders and rules, including rules that are addressed to and served upon named persons in accordance with law, are released for gen- eral public publication except where confidential treatment has for good cause been directed by the Commission. As rule 25(c) provides, copies of such material are published, mailed out on request and made available for public inspection. See attached comment on ER. 5012 at page 2. Normally rules addressed to named persons take the form of "orders" entered on "opinions" rendered in proceedings conducted under various provisions of the Public Utility Holding Company Act of 1935 or the Investment Company Act of 1940. Such opinions', together with `the Commission's, other opinions, are published for general distribution and in bound volumes. 3. As described in answer 2(e), supra, pursuant to rule 25(e) of the Commis- sion's Rules of Practice 17 OFR 201.25(c), all final opinions and orders are pub- lished, except where confidential treatment has for good cause been directed by the Commission. These are widely distributed. Interim opinions and orders are published or made available for public inspection in all except nonpublic proceedings. The Commission maintains public reference rooms where the public may examine all public documents; a detailed description of the material and the manner in which it is made available is published in 17 CFR 200.80. 4. As described in detail in the attached comment on H.R. 5012 at pages 2, 3, and 9, certain proceedings and opinions and orders therein are nonpublic These Include proceedings pursuant to specific statutory provisions requiring confidential treatment of documents tiled by members of the public and cer- tain proceedings of a disciplinary nature, where the unfairness of adverse PAGENO="0211" I~EDE1~AL PUBLIC RECORDS LAW 483 publicity ~hou1d charges not be proved appears to outweigh possible disadvan- tages to the public. 5. The Commission does not cite or use unpublished opinions or orders as precedents in other proceedings. The Commission's staff renders interpretative and advisory assistance to the public, as described in 17 OFR 202.2. Where there have been numerous in- terpretations dealing with a particular subject, the Commission sometimes pub- lishes summaries of the views expressed. See answer No. 6, infra. On at least one occasion some years ago a brief submitted on behalf of the Commission in litigation referred to a body of such interpretations, even though they had not yet been summarized in a document made publicly available. 6. Public material in the Commission's records and files may be inspected In the Commission's public reference rooms during regular business hours. Copies of such material are sold to any person. Transcripts of public hearings may be purchased by anyone. See 17 CFR 200.80, rule 25 of the Commission's Rules of Practice, 17 CFR 201.25, and answer No. 3, supra. Interpretations and legal opinions are expressed in Commission's decisions and substantive rules and also in briefs filed in courts on the Commission's behalf. When proposed substantive rules are published for public comment, interpretations or legal opinions are occasionally included with the explanation of the proposed rule. As described in answer No. 5, supra, and in the attached comment on H.R. 5012 at pages 4 and 6, the Commission's staff renders inter- pretative and advisory assistance to members to the public, as does the Com- mission itself on occasion, and summaries of a body of these interpretations are sometimes published for the general public. See, e.g., Statement of the Commission Regarding Limitations of the Availability of So-called "Private Offering Exemption," Securities Act Release No. 4552, November 6, 1962, 27 Fed. Reg 11316. See generally, 17 CFR 211, 231, 241, 251, 261, 271, 276, and 281. Commissioners and senior members of the staff also express their interpretations of statutes and rules in speeches, briefing conferences, law review articles, etc. 7. The past 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. With respect to section 3 of the Administrative Procedure Act, we attempt to comply not only with the letter of its provisions but with the spirit thereof, as is shown in answers 2, 3, and 6, supra, and in the attached comments on EI.R. 5012 at pages 1-2. We are of the view, however, that certain material in the Commission's files should not be subject to general public scrutiny and limitations on its availability are accordingly imposed. Some material is accorded confidential treatment under certain statutory procedures, as described in the attached comment on H.R. 5012 at pages 2-3. Certain other material is treated as nonpublic to further the use- fulness of the advisory assistance provided by the Commission's staff,,to protect members of the public from unfair Injury and to facilitate free communication among Government officials, all as described in the attached comment at pages 3-9. In addition, the Commission's Investigatory files are treated as nonpublic to protect innocent persons, those who provide ihforniatlon concerning possible violations of law and the efficacy of our investigative and prosecutive activities. 8. The Commission does not require private parties dealing with it to resort to organization or procedure not published in the Federal Register. 9. The Commission does riot titilize the provision In section 3 of the Administra- tive Procedure Act that excuses the publication of rules where there is involved a function of the United States requiring secrecy in the public interest. 10. The Commission does not publish its directives to the staff concerning internal agency management relating to such subjects as budgetary matters, travel, personnel administration and building, equipment and supplies manage- ment. 11. The materials which are available to the public as being matters of official record within the meaning of section 3(c) of the Administrative Procedure Act are described in answers numbers 3 and 6, supra, in rule 25 of the Commission~s Rules of Practice, 17 CFR 201.25, and at 17 C13'R 200.80. In addition, see the itemization of public materials In the enclosed list which the Commission has prepared and issued to the public entitled "Compilation of Documentary Materials Available in the SEC." You have also asked us to provide two copies of every regulation, directive, order or other document Issued by the Commission to implement 5 U.S.C. 1002. For the most part section 3 of the Administrative Procedure Act merely codified procedures that had already been followed by this Commission. Therefore the PAGENO="0212" 484 FEDERAL PUBLIC RECORDS LAW Commission has not found it necessary to issue directives to Implement that section's provisions. The classification of types of documents as public or non- public, the procedures under which public material is available to members of the public and related matters are set forth in various pamphlets, entitled "Orga- nization, Procedures and Rules of Practice," at pages 16-18, "Rules of Practice and Rules Relating to Investigations," at pages 16-17 and 23, "United States Securities and Exchange Commission-Its Functions and Activities," at pages 25-30, as Well as the aforementioned "Compilation of Documentary Materials Available in the SEtL" Two copies of each of the foregoing are included herewith. Sincerely yours, BYRON D. WoonsInE, Coinnvtssioner. REPLY FROM SELECTIVE SERVICE SYSTEM J NATIONAL HEADQUARTERs, SELECTIVE SEnVWE `SYSTEM, Washington, D.C., March 15, 1965. Hon. JOHN El. Moss, Chairman, Foreign Operations and Government Information ~ubcommSttee, Committee on Government Operations, House of Representatives. DEAR Mn. CHAIRMAN: The following is presented in response to your letter of February 12, 1965. Two copies of every regulation, directive, order, or other document issued by this agency to implement 5 U.S.C. 1002 are enclosed. The functions performed by the `Selective Service System are excluded from the operation of the Administrative Procedure Act, except as to the requirements of section 3 of such act, by the provisions of section 13(b) of the Universal Military Training and Service Act, as amended. Male persons registered with the Selective Service `System are classified as available or not available for military service on `the basis of information furnished to local boards `by `or on behalf of the individual registrants. Registrants are classified by some 4,000 local boards, subject to appeal to State appeal `boards, and in some instances to the National `Selective Service Appeal Board which acts for the PresIdent. The classifying boards do nOt write opinions concerning their determination of these classifications. There are approximately 30 mIllion men registered with the Selective `Service System and over 2 million individual classifications are deter- mined annually by the local boards and appeal board's. We submit the `following answers `to the questions asked in the subcommittee's letter. T~e answers have been given `the same numbers as the questions. 1. Generally, section 3 of the Administrative Procedure Act applies to all functions of the `Selective `Service `Sys'tem with respect to the registration, exam- ination, classification, seleCtion, assignment, `delivery for Induction, and mainte- nance of records of the men registered under the Universal Military Training and Service Act, as amended. There are no segments of the System to which section 3 does not apply. 2. (a) Descriptions `o'f the central and field organization of `the System~ are published in the Federal Register as changes occur therein. These are published both in the form of `regulations and as a statement of organization. These descriptions are also published annually in the U.S. Government Organization Manual. (b) `Statements of the general course and method `by which the functions of the `Selective Service System are channeled aHd determined are published in the same publications and in `the `same manner as are descriptions of its organization, as explained in 2. (a), above. (c) Rules and regulations for the `administration of the Universal Military Training and `Service Act, as amended, and the Selective `Service System are prescribed `by the President In Executive orders and in proclamations fixing the ages and times for registration. These are published in the Federal Register. Included in such regulations are descriptions of the organization of the System and statements of the general course and methods `by which its functions are carried out~ The President has delegated to the Director of Selective Service authority to prescribe regulations goveriithg the internal management of the System such as personnel and fiscal matters and `the `maintenance of its records. PAGENO="0213" FEDERAL PUBLIC RECORDS LAW 485 These regulations, when codified, are also `published in the Federal Register. (4) Since its substantive regulations are prescribed by the President, the Selective Service System has not formulated or adopted any statements of general policy or interpretations for the guidance of the public. (e) `The System issues n~ rules addressed to and served upon named persons. 3. The Selective Service System does not adjudicate cases which require the preparation of final or interim opinions or orders. As mentioned previously, over 2 million ipdlvidual cla,~sifications of registrants are determined annually by local and `appeal boards. Section 6(h) of the Universal Military Training and Service Act, as amended, provides in part as follows: * * * There shall be posted in a conspicuous place at the office of each local board a list setting forth the names and classifications of those persons who have been classified by such local board. * * * A record of classifications is maintained at each local board, which is open to the public. 4. Since the System does not prepare interim or final opinions or orders in the adjudication of cases, this question is not applicable to its operations. 5. There are no cases in which opinions or orders in other proceedings are cited or used as precedents. Section 6(h) of the Universal Military Training and Service Act, as amended, provides that no deferment from induction into the Armed Forces "shall be made in the case of any individual except upon the basis of the status of such individual." Thus, the classification of a registrant must be determined solely on the basis of his own status without giving con- sideration to matters arising out of the cases of other registrants. 6. Since the System does not issue interpretations or legal opinions, there would remain the records and files of individual registrants which would be of interest to the public. There are available in the manner described in 7, below. There is no restriction on the availability of other files or records and requests that they be made available are seldom received. 7. Limitations have been placed upon the availability to the general public of the records and files of individual registrants because of the personal nature of the information contained therein involving ~ucb matters as the registrant's income and property, his family and marital status, hi~ physical and mental condition, and that of members of his family, and other personal information required for the determination of his classification on the basis of his individual status. Limitations placed upon the availability of records are prescribed by sections 1606.31 and 1606.32 of the Selective Service Regulations (32 OFR 1606.31 and 1606.32), as follows: "1606.81. What records conftdential.-Except as provided by law or by the regulations in this part, the records in a registrant's file and the information contained in such records shall be confidential, "1606.82. Ana%iabilitY and nse of confidential records and in! ornsation.-(a) Information contained in records in a registrant's file may be disclosed or furnished to, or examined by, the following persons, namely: "(1) The registrant, or any person having written authority dated and signed by the registrant: Provided, That, whenever the time of the expiration of such authority is not specified therein, no information shall be disclosed, fur- nished, or examined under that authority after the expiration of a period of one year from its date. "(2) The legal representative of a deceased or incompetent registrant, or where there is no legal representative appointed for the estate of a deceased reg- istrant, his next of kin: Provided, That proof of the registrant's death and proof of the relationship of the next of kin to the registrant have been submitted and are in his file. For the purpose of this subparagraph, the next of kin to the registrant shall be limited to his widow, child, mother, father, brother, or sister. "(3) All personnel of the Selective Service System while engaged in carrying out the functions of the Selective Service System, "(4) Any other agency, official, or employee, or class or group of officials or employees, of the United States or any State or subdivision thereof upon written request in individual cases, but only when and to the extent specifically au- thorized in writing by the State Director of Selective Service or the Director of Selective Service. "(b) Information contained in records in a registrant's file may be disclosed or furnished to, or examined by, a United States Attorney and his duly authorized representatives, including agents of the Federal Bureau of Investigation, when- PAGENO="0214" 486 FEDERAL PUBLIC RECORDS LAW ever the registrant has been reported to the United States Attorney as a de- linquent or for prosecution for violating the Universal Military Training and Service Act, as amended, or the rules, regulations, or directions made pursuant thereto. "(c) Notwithstanding any other provisions of the regulations in this part, information contai~ied in an~~ record in a registrant's file may be disclosed or furnished to, or examined by, any person having specific written authority from the Director of Selective Service. No person shall use any information so dis- closed, furnished, or examined for any purpose other than that designated in such written authority. "(d) No Information shall be disclosed or furnished to, or examined by, any person under the provisions of this section, until such person has been properly identified as a person, or as the authorized representative of an agency, entitled to so obtain such information." 8. There are no circumstances under which private parties dealing with the Selective Service System would be required in any manner to resort to organi- zation or procedure not pttbllshed In the Federal Register. 9. The System has had no eases involving any function of the United States requiring secrecy in the public interest. 10. No rules or regulations prescribed by the Director of Selective Service which relate solely to the internal management of the Selective Service System are published in the Federal Register. Copies of such rules are distributed to all offices of the System and made available to its officers and employees. 11. The term "official record" as used in section 3(c) of the Administrative Procedure Act has been de1~ned within the Selective Service System as meaning those records and files created or obtained by the System in carrying out its functions with respect to the registration, examination, classification, selection, assignment, and delivery for induction of perso~is registered under the Uni- versal Military Training and Service Act, as amended. These official records are contained in the individual files of registrants. Transmitted herewith are copies of each of the following: 1. Presidential registratio~n proclamations. 2. SelectIve Service regulations. 3. Statement of organization-Federal Register. 4. Statement of organization-U.S. Government Organization Manual. If I may be of further service, please call on me. Sincerely yours, Lnwis B. HnnsHflv, DirectorS REPLY FROM SMALL Busnni~ss ADMINISTRATION SMALi~ BUsINESS AnMINI5TRATI0N, Washington, D.C., March 29, 1965. Hon. JOHN B. Moss, Chairman, Foreign Operations and Governiment Information ~S~ubcommittee, Committee on GoDernment Operations, House of Representatives. DEAR CONGRESSMAN Moss: This is in further reply to your letter of February 12, 19Gb, inquiring `about interpretations and practices of the Small Business Administration under section 3 `of the Administrative Procedure Act (5 U.S.C. 1002), the public information section. With respect to the legal interDreta'tlon of `section 3, SEA generally follows `the guidelines on this section set forth in `the Attorney General's Manual on the Administrative Procedure Act. Our policy i's to release all agency informa- tion, except that required to be kept confidential to protect the public Interest. INrOEMATI0N PtJRLISH15~ SBA regulations are codified in 13 Code `of Federal Regulations, chapter 1. The agency publishes in the Federal Register from time to time (as changes occur) `the following: (a) Descriptions `of it~ central and field `organizations; (b) Statements of the general course and method by which its functions are channeled an'd determined, including delegations of `authority and location of field offices; (c) Substantive rules adopted as authorized by law; PAGENO="0215" FEDERAL PUBLIC RECO~DS LAW 487 (d) Statements of general policy and Interpretations formulated and adopted by the agency for `the guidance of the public; (e) "Show cause" orders and other regulatory proceedings concerning small business investment companies licensed by `the agency; (f) Disaster declarations for financial assistance purposes under section 7(b) of the Small Business Act; and (g) Exemptions from `the antitrust laws provided for joint actions by small business concerns under sectionS 7(a) (6), 9(d), and 11 of `the act. Another important `publication is SEA's annual report to the President and the Congress. This contains much data concerning agency programs, activities, and actions, as well as information on SBA's financial `and administrative matters. Agency actions providing financial assistance, and `small `business investment company licenses granted, are generally `announced by means of press releases issued by SBA's Office of Public Information. Major policy determinations also are sometimes publicized `by this means (and in speeches by agency officials) as well as by formal promulgation in `the Federal Register. SEA also publicizes in appropriate localities, pursuant `to Public Law 88-273, certain `data relating to so-called conflict of interest `transactions affecting small business investment company licensees. INF0nMATI0N MADE AVAILAflLE Except for matters involving solely internal agency management, current SBA rulings, directives, and interpretations (such as tho~e contained in agency manuals, handbooks, or `opinions) which are not published, are made available upon reques't `to interes'ted persons. This data is generally available both in Washington, D.C., and at SBA field offices throughout `the country. With respect to small `business investment company matters, the agency issues to all such licensees and to other interested persons who request it, a "guide" which contains pertinent SEA rules, interpretations of broad applicability, and policy and pro- cedural information. SBA's Office of Public Information maintains constant contact with members of the daily and business press corps, trade associations, chambers of commerce and similar groups in order to keep them Informed of the agency's programs and objectives; issues news releases and reports' on SEA programs and opera- tions; and answers questions from the press on Agency activities. The Office also prepares and distributes fact sheets and leaflets on SBA programs, and informa- tional materials to be issued locally by field offices of the agen~y. Information is also available concerning particular SEA actions such as size determinations (whether a firm is a "small business" for purposes of SEA legis- lation), and procurement and technical assistance provided. Additionally, in circumstances set forth in agency manual SBA-100, chapter XVII (copy en- closed), banks and other financially interested persons may obtain certain data from SBA about firms receiving loans from the agency. INI?ORMATION NOT MADE AVAILAflLE SBA does not make its records and files generally available to `the public. The bases and necessity for this limitation are set forth in the attached agency reg- ulations and manual provision concerning disclosure of information. Neither does SBA disclose identifying information concerning applicants for assistance when such assistance was not granted by the agency. It is believed that such disclosure could injure the reputation of `the affected firm. Copies are enclosed herewitb of part 102 and part 105 (sec. 105.6) of SBA reg- ulations, and of chapter XVII of the SBA-100 manual. I hope this information will be of assistance to the subcommittee. If any further data is needed, please contact Mr. Philip F. Zeidman, our General Counsel. Sincerely, EUGENE P. Pon~, AdministratOi~. (NOTE.-Reference material in subcommittee files.) PAGENO="0216" 488 FEDERAL PUBLIC RECORDS LAW REPLY FRo~x TENNESSEE VALLEY AUTHORITY TENNESSEE VALLEY AuTnoRm~, OFFICE OF THE BOARD OF Dutacrons, Knoci'vlZle, Tenn., March 11, 1965. Hon. JOHN E. Moss, Chairman, Foreign Operations and Govern~ient Information Suboomm~ttee, Committee on Government Operations, House of Representativer. DEAR Mn. Moss: This is in response to your letter of February 12, 1965, con- cerning section 3 of the Administrative Procedure Act of 1946. Before answering the specific questions raised in your letter, we should like to explain that TVA engages in very few activities of the type to which the Administrative Procedure Act is directed. The only area jn which TVA exercises regulatory authority with respect to members of the general public is in the administration of section 26a of the Penne~see Valley Authority Act. Under this section, the TVA Board reviews and approves plans for the Construction, operation, and maintenance of structures across, along, or in the Tennessee River or its tributaries which would affect navigation, flood control, or public lands or reservations. TVA's procedures for the administration of section 26a were published in the Federal Register and are included in the Code of Federal Regu- lations (18 C.F.R. 301.2-301.3). TVA has also issued regulations giving effect to title VI of the Civil Rights Act of 1964~ These regulations were published in the Federal Register of January 9, 1965 (30 P.R. 311). The answers to your specific questions are as follows: 1. Title 5, United States Code, chapter 1002 applies to all the funcions of TVA, except those within the specific exceptions stated in that section. There are no TVA divisions, bureaus, branches, or other units to which section 1002 does not apply. 2. (a) A description of TVA's central and field organization is included in the U.S. Government Organization Manual, which is published annually by the office of the Federal Register as a special edition of the Federal Register. (b) Same as 2(a) above. (c) TVA has not published such substantive rules. (d) The limited amount of such material which TVA issues is published in the Federal Register and in the Code of Federal Regulations. Changes or revi- sions are published In the same manner. (e) TVA does not issue rules addressed to and served upon named persons. 3. TVA's procedure for making available the 1nforrnatio~ described in ques- tion 3 is stated in 18 CFR 301.1, a copy of which is enclosed. 4. TVA has not had a case such as that described in question 4. 5. PVA has not had a case which involved the situati~n described in ques- tion 5. 6. TVA's procedure for making available the information described in ques- tion 6is stated in 18 CPR 301.1, a copy of which is enclosed. 7. The limitations which are placed upon the availability of TVA's records and files to the general public are stated in 18 CFR 301.1, a copy of which is enclosed. 8. Many of TVA's procurement contracts contain a disputes provision which establishes a. procedure whereby the contractor and TVA may resolve any con- troversy through successive appeals to the contracting officer and to the TVA General Manager or his representative. The entire procedure is stated in the disputes provision which is included in each contract to which it is to apply. This procedure is not published in the Federal Register since, in our opinion, it is not the type of procedure contemplated by section 3(a) of the Administrative Procedure Act. 9. TVA has not had a case which involved the situation described in question 9. 10. TVA makes internal publication of an administrative release system which contains a large number of TVA policies, procedures and rules to guide the offi- cial actions expected of TVA. employees. Also, many TVA offices and divisions issue instructions to guide the employees of that office or division. These docu- ments are not published in the Federal Register because they relate solely to TVA's internal management. A copy of the TVA administrative relesse system is available at TVA's Washington office. We would be glad to make it available for examination by a member ?~ your staff, if you so desire. PAGENO="0217" FEDERAL PUBLIC RECORDS LAW 489 11. The only definition which TVA has made of the term "official record" as used in section 3(c) of the Administrative Procedure Act Is contained in 18 CFR 3011(a), a copy of which Is enclosed. We are enclosing two copies of the documents requested in the last paragraph of your letter. Miss Marguerite Owen, TVA's Washington representative (tele- phone 343-4537), will obtain for you any further information which you may wish to have. If we can be of further assistance, please let us know. Sincerely yours, Aunnux J. WAGNER, Chairman. TITLE 18-CODE OF FEDERAL REGULATIONS CHAPTER Il-TENNESSEE VAu~Er AuTHoRITY PART 301-PROCEOiJRES Sec. 301.1 Public records. 301.2 Obtaining of approval for construction in the Tennessee River system. - 301.3 Drawings, plans and designs. Aurrroairr: §~ 301.1 to 301.3 issued under 48 Stat. 58, as amended; 16 U.S.C. 831-881dd. Statutory provisions interpreted or applied are cited to text in parentheses. ~ 301.1 Public records. Matters of official record of TVA shall be made available to persons properly and directly concerned, excepting matters relating solely to the internal man- agement of TVA and excepting information held confidential for good cause found. (a) Scope. Subject to the limitations stated above, matters of official record of TVA include invitations for the procurement of material or for construc- tion, bids, and awards; maps, plans and diagrams of reservoir areas and other real property held by TVA, including easements and rights of way; and final decisions of the Board of Directors in regard to proceedings under section 26a of the Tennessee Valley Authority Act. (b) Requests. Requests for such information shall be made in writing to the "Director of Information, Tennessee Valley Authority, Knoxville, Tennessee," and shall contain sufficient information (1) to identify the matter of official rec- ord sought to be made available, and (2) the circumstances which make the per- son making the request one who is properly and directly concerned. (c) Action upon requestr. Upon receipt of such a request, TVA shall promptly determine whether the matter can be made available under the provisions of this section and shall notify the person making the request (1) where and when the matter can be made available, or (2) that the matter is not available, giving the reasons therefor. (d) Manner of making avcAkible. TVA shall not be required to make and furnish copies of such matters, but shall fulfill its obligation by making the mat- ter available for inspection; where, however, for reasons of convenience or ne- cessity TVA determines that it is more practicable to fulfill its obligation by furnishing a copy of the matter, TVA may fulfill its obligation by furnishing a certified true copy thereof. [11 P.R. 177A-749, Sept. 11, 1946, redesignated at 13 P.R. 6749, Nov. 18, 1948] REPLY FROM U.S. ARMS CoNTRoL AND DISARMAMENT AGENCY U.S. ARMs C0Nm0L AND DISARMAMENT AGENCY, Washington, March 16, 1965. lIon. JOHN B. Moss, Chairman, Subcommittee on Foreign Operations and Oovernment Information, House of Representatives. DEAR Mn. CHAIRMAN: I enclose detailed answers to the 11 questions posed in your letter of February 12, 1905. That letter also requested two copies of any written document implementing 5 U.S.C. 1002, which deals with the publication of information, rules, opinions, orders and public records. ACDA has not issued such a document. None has been deemed necessary because ACDA is a small agency (opproximately 200 PAGENO="0218" 490 FEDERAL PUBLIC RECORDS LAW employees) with only a handful of employees directly' concerned with matters that might fall within the terms of 5 U.S.C. 1002. Those employees are, of course, fully aware of the requirements imposed by that statute. Before issuance, all rules of the Agency are checked to determine whether publication in the Federal Register is required. In addition, periodic reviews of the Agency's activities and rules are undertaken to ii~sure that the require- ments of 5 U.S.C. 1002 are being met. As the subcommittee's staff has already been informed by telephone, liaison with respect to the questions in the letter may be maintained with Mr. Alan Washburn, code 182, extension 7788. Sincerely, WILLIAM C. Fosran. 1. The provisions of 5 U.S.C. 1002 apply to all functions of the U.S. Arms Control and Disarmament Agency (hereafter referred to as the Agency). There are no divisions, bureaus, branches, or other constituent units to which that section does not apply. 2, (a) and (b). The Agency annually publishes in the United states Govern- ment Organization M~tnual a description of its organization and a stateme'nt of the general course and methods by which its functions are channeled and determined. Comparable information, along with a statement of the means by which the public can obtain information, has been submitted to the Federal Register. Changes will be published in the Federal Register when they are made. 2 (c). The Agency has not yet published any substantive rules. Except as indicated below with respect to its contracts, the Agency has adopted no substan- tive rules applicable to the public. The Agency operates under the extensively detailed ~Federal Procurement Regulations, which have been published (41 CFR subtitle A). A few special Agency rules appropriate for publication and imple- menting or supplementing the Federal Procurement Regulations are in the process of formulation. Such Agency rules will be published In the Federal Register when ready In definitive form. Under an agreement with the Agency, the Atomic Energy Commission is responsib'e fo~ screening the results of security investigations of contractors' personnel. ABC actions on behalf of the Agency are taken in accordance with the established ABC procedures published in 10 CFR part 10. By contract provision and by other means, the Agency's contractors are informed of the applicability of the procedures in 10 CFR part 10. It has, therefore, not been deemed necessary for the Agency to republish those procedures. 2. (d) and (e) The Agency has not. had any occasion to formulate and adopt statements of general policy or Interpetations for the guidance of the public or to issue rules addressed to and served upon named persons. Consequently, no such documents have been published. 3, 4, and 5. The Agency has not adjudicated any cases and therefore, has not issued Interim or final opinions or orders or used any such documents In other proceedings. 6 and 7. The Agency has not issued any interpretations or legal opinions. The following statements thus apply to the Ageay's records and files. The only statutes limiting the availability of the Agency's records and files to the public relate to security classification (18 U.S.C. 37, 42 U.S.C. 2274~ 2277, and implementing Executive orders). Because the Agency functions in a highly sensitive area of foreign affairs and national defense, an appreciable portion of the Agency's records is classified because of security requirements. There are no rules limiting the availability to the public of those portions of the Agency's records and files not controlled in the interest of the national defense or foreign policy. The practice is to make those portions freely available to persons properly and directly concerned. Except as described below, there are no formal procedures by which the Agency's records and files are made available. Since the Agency has barely 200 employees and only a single office in the United States, no such procedures are deemed necessary. Persons seeking information or documents are easily referred to the appropriate official. Pursuant to section 2 of the Arms Control and Disarmament Act (22 U.S.C. 2551), the Agency is charged with ensuring "the dissemination * * * of public information concerning arms control and disarmament." To discharge this duty, as well as to provide maximum availability of information in conformity with the spirit of the Administrative Procedure Act, several procedures have been established for giving the public access to those portions of the Agency's PAGENO="0219" FEDERAL PUBLIC RECORDS LAW 491 records and files not controlled in the interest of the national defense or foreign policy. The most significant proposals and statements of the United States and `other nations on arms control and disarmament are published in the annual publica- tions, Documents on Disarmament. Various specific aspects of arms control and disarmament are also dealt with in other Agency publications. All these publications are widely distributed. They are sent to the persons and institu- tions, including public and institutional libraries, on a long mailing list. The publications are distributed free on request to the extent that the stockpile permits. They are also distributed through the Government Printing Office, and their availability from that source Is announced in GPO catalogs. The Agency's files also contain the verbatim reports of the Conference of the 18 Nation Disarmament Committee in Geneva. Arrangements are being made to have copies of those reports placed in depository libraries throughout the United States. It is the Agency's practice to make wide distribution of the reports rendered to the Agency by research contractors and grantees. The procedure is to mall any of those reports not controlled in the interest of the national defense or foreign policy to the names on a mailing list that includes leading academic insti- tutions, research centers, and 20 public depository libraries throughout the United States. The mailing list also Includes the Defense Documentation Center, which publishes information about the research reports in the Technical Abstract Bulletin sent to Government agencies and contractors. The procedure then is for the Defense Documentation Center to forward reports to a Clearinghouse for Federal Scientific and Technical Information, maintained by the Department of Commerce. The Clearinghouse publishes information about the research re- ports in a biweekly catalog to which the public can subscribe. The Clearing- house, on payment of the costs, will furnish copies of the research reports to the public. Arrangements are also being made to have the Government Printing Office catalog, which is widely distributed, list all reports mentioned in the catalor' issued by the Commerce Department's Clearinghouse. To the extent that the Agency's stocks will permit, the practice is to give free to the public upon request any research report not controlled in the interest of national defense or foreign policy. 8. In no circumstances are private parties dealing with the Agency required in any manner to restort to organization or procedure not published in the Federal Register. 9. The Agency has had no occasion to refrain from publishing rules where there was involved a function of the United States requiring secrecy in the public interest. 10. The following are illustrativeof the types of rules the Agency has refrained from publishing on the ground that they involve only internal `management: (a) Handling of documents, e.g., procedures for signing congressional mail; authorization to sign cables and correspondence; identification of papers and memoranda; clearance of telegrams referring to State Department or White House personnel or functions; procurement of reprints of published articles; distribution of action documents. (b) Security classification procedures, e.g., automatic, time phased, down- grading, declassification, and decontrol of classified and administratively con- trolled documents; authorization to originate top secret classification; special rules for access to atomic weapons data. (o) Duties of certain officers, e.g., duty officer procedures nonfinal delegations of authority. (d) Personnel matters, e.g., compensation; attendance and leave; grievances; incentive awards; conduct of employees (including conflicts of interest, outside employment, writing for publication, privilege of joining employee organizations). (e) Supplies and services, e.g., official long-distance telephone calls; requisi- tioning procedures. The Agency has also Issued a number of instructions regarding the Agency's contracting program, for example, on the submission of proposals for and admin- istration of research grants. Agency practice has been to make these instruc- tions available to any contractor or prospective contractor that requested them or whom the Agency believed might have an interest in them. These instruc- tions are being reviewed to determine which points, if any, should be Incorporated into the forthcoming procurement regulations, which will be published in the Federal Register. PAGENO="0220" 492 FEDERAL PUI3LIC RE~CORDS LAW 11. The Agency has taken as its guide on the meaning of "official record," as used in the Administrative Procedure Act of 1946, the following statement from the Attorney General's Manual on the Administrative Procedure Act (1947): The term "official record" is difficult of definition. In general, it may be stated that matters of official record will include (a) applications, registrations, petitions, reports and returns filed by members of the public with the agency pursuant to statute or the agency's rules, and (b) all docu- ments embodying agency actions, such as orders, rules and licenses. In formal proceedings, the pleadings, transcripts of testimony, exhibits, and all documents received in evidence or made a part of the record are `matters of official record.' * * *~ The great mass of material relating to the internal operation of an agency Is not a matter of official record. The Agency has no matters of "official record" within the guidelines thus established. It has, therefore, not been necessary to formulate a precise definition. The fact that the Agency has no matters of official record does not mean that public access to the Agency's files and records has been precluded. Some of the steps taken with respect to making files and records of the Agency available to the public are discussed above in response to questions 6 and 7. REPLY FROM U.S. INFORMATION AGENCY UxiTzD STATES INF0nMATI0N AGENcY, Washington, 1~.C., March 15, 1965. Hon. Jonx El. Moss, Chairman, Po'reign Operations and Government Information /S'ubcommittee, Honse of Representatives. DEAR MR. Moss: I am enclosing the information requested in your letter of February 12, to assist you in evaluating section 3 of the Administrative Proce- ure Act of 1946 (5 U.S.C. 1002). While the Agency has not issued any specific regulation, directive, or order to implement 5 U.S.C. 1002, the Office of Administration is responsible, generally, for its implementation. Miss June Miller, code 182, extension 3120, has been designated liaison officer for any additional information that you may require. Sincerely yours, STANLEY PLE5ENT, GeneraZ Counsel and Congressional Liaison. 1. Generally, 5 U.S.C. 1002 applies to the following functions of the U.S. In- formation Agency: (a) Informational Media Guaranty program. (b) Contract and Procurement operations. (e) Program facilitating the circulation abroad of U.S. visual and auditory materials of an educational, scientific and cultural character. (d) Federal Tort Claims procedure. There are no elements or units of the Agency to which the section does not apply. 2. (a) Section 3(a) (1) of the APA: A description of the Agency's central and field organization is published annually in the U.S. Government Organiza- tion Manual. The Federal Procurement Regulations (FPR), by which the Agency is guided In its contract and procurement operations, are published in the Federal Register. The Agency implementation of the FPR was initiated by publication of 41 CFR 19-1,000 through 19-1.108-2. Delegations of authority for procurement trans- actions to certain officials of the Agency are also published in the Federal Register. The place and method whereby the public may secure information or make requests pertaining to the program listed in paragraph i.e. above were published in the Federal Register on December 24, 1953, 22 CFII 502. For distribution abroad by USIS posts to ministries of education, heads of audiovisual centers, universities, professional organizations. etc., the Agency compiles and publishes a catalog entitled "U.S. Educational, Scientific, and Cultural Motion Pictures PAGENO="0221" FEDERAL PUBLIC RECORDS LAW 493 and Filnistrips Selected and Available for Use Abroad" The history of the catalog is as follows: Motion picture Catalog, April 1950. Motion Pictures and ~`ilmstriPs: Supplement, June 1951. July 1952. Supplement, May 1954. Science section, December 1956. Education section, July 1959. Science section supplement (currently being prepared). Cultural section (currently being prepared). Procedures pertaining to the Informational Media Guaranty program were pub- lished in the Federal Register on December 2, 1953, 22 OFR 501. Procedures under the Federal Tort Claims Act were published in the Federal Register 011 August 10, 1955, and September 22, 1955, 22 CFR 511. Both 22 CFR 501 and 502 are being updated. (b) Section 3(a) (2) of the APA: See paragraph 2(a) above. (c), (d), and (e), Section 3(a) (3) of the APA: Substantive rules adopted as authorized by law and statements of general policy or interprGt~tti0flS formu- lated and adopted by the Agency for the guidam~6 of the public, but not rules addressed to and served upon named persons in accordance with law. Not applicable, except as stated in paragtapb 2(e) above. 3, Not applicable. 4. Not applicable. 5. Not applicable. 6. See paragraph 7 below. 7. LimitationS placed upon the availability of records and files to the general public are contained in the Agency's Manual of Operations and Administration, MOA 111-526, NonoffiCial Use of Records for Research Purposes, and MOA ITIII-136, Dissemination of Classified Information. Copies of the pertinent sections are attached. The regulations pertaining to classified material are de- signed to carry out the requirements of E.O. 10501 which relates to 5afeguarding official information in the interest of the defense of the United States. The Foreign Service Act of 1946, as amended, section 612, also limits the availability of certain records and files to the general public. A. copy of section 612 is attached. 8. ProcedureS for applicants for employment in the ~3'oreign Service of the Agency, or for service in a Binatioflal Center abroad have not as yet been pub- lished in the Federal Register. 9. None. 10. The Agency issues a Manual of Operations and Administration for the guidance of Agency personnel in the performance of their duties covering such subjects as commufllCatiohls and records, administrative services, personnel, finance, media operations, etc. The Agency also issues circulars and announce- ments that are for internal Agency manageflient and information. 11. The Agency uses the definition in the Records Disposal Act of July 7, 1943, and amended July 6, 194~; i.e., the term "records" includes all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the U.S. Government in 1mrsuanCe of Federal law or in connection with the transaction of public business and preserved or appropriate for preservatiofl by that agency or its legitimate successor as evidence of the organization, functions, policies, decisiofis, pro- cedures, operations, or other activities of the Government or because of the informational value of data contained therein. As used In section 3(c) of the Administrative Procedure Act, material relating to the internal operation of the Agency is not considered "official records." FonnIGN SnavIon Aen or 194(3, AS AMENDED TITLE vi_PERSONNEL ADMINISTRATION Section 612-To Whom Records Shall Be Available The correspondence and records of the Department relating to the officers and employees of the Service, including efficiency records as defined in section 601(1) but not including records pertaining to the receipt, disbursement, and accounting for public funds, shall be confidential and subject to inspection only PAGENO="0222" 494 FEDERAL PVBI4IC RECORDS LAW by the President, the Secretary, the Under Secretar~y, the Counselor of the De- rartment, the legislative and Appropriations Committees of the Congress charged with considering legislation and appropriations for the Service or rep- resentatives duly authorized by such committees, the members of the Board of the Foreign Service, the Director General, and such officers and employees of the Government as may be assigned by the Secretary to work on such records. Under such regulations as the Secretary may prescribe and in the interest of efficient personnel administration, the whole or any portion of an efficiency rec- ord shall, upon written request, be divulged to the officer or employee to whom such record relates, REi?LY FROM U.S. TARIYF COMMISSION V.5. TArurv COMMTS$IQN, lVain.qtan, D.C., March16, 1t~65. Hon. JOHN E~ Moss, C1wirnva~, 1~oreifm Operations and Government Information bcomwitt~~e, Commtttee on GOvernment Operations, .t.fovse of Representatives, DzAim Mn. CHAnmMAN The following paragraphs contain the answers of the U.S. Tariff Commission to the questions concerning the effect of section 3 of the Administrative Procedure Act of 1946 (5 U.S.C. 1002) submItted in your letter of February 12, 1965, The numbering of the answering paragraphs corresponds to that of the questions. 1. It is the opinion of the Commission that those requirements of the public information section of the Administrative Procedure Act which are directed to an "agency" Of the Government of the United States apply to the U.S. Tariff Com- mission, but that those requirements concerned with publicity to be given "sub- stantive rules" or "final opinions or orders" are not so applicable. These latter requirements do not apply to the Commission, because it generates neither sub- stantive rules nor final opinions o~ orders in the adjudication of cases. The primary duty of the Commission is to investigate and report upon tarW and foreign trade matters, as required by statute. It makes such investigations and reports at the request of the President, either branch of the Congress, the House Committee on Ways and Means, or the Senate Committee on Finance. Investigations into the effects on domestic industries of Increased Imports re- sulting from trade agreement concessions may be Initiated by an industry, firm, group of workers, or other interested parties. The Commission also makes studies, surveys, or investigations on its own initiative. The facts found by the Commission In the course of these investigations may serve as the basis for a rule or order issued by some other arm of the Government. In some cases determination of a certain nature by the Commission is a prerequisite to affirma- tive action by ~the ENecutive. It~ all of these cases, however, the affirmative action is by others, and the factflndlng by the Commission is in no sense an order or rule. The Tariff Commission has no div1s1ons~ bureaus, branches, or other con~ stituent units to which the public information section does not apply to the degree stated above. 2. The Tariff Commission :publlsbes in official and unofficial publications materials at the intervals described below: (a) A description of the central and field organization of the Tariff Commission was published in 14 F.R. 7300 (1949). A description of the organization of the CommissiOn and Its functions also appears annually in the U.S. Government Organization Manual. (b) Statements of "the general course and method" by which the "functions" of the Tariff Commission are "channeled and determined" appear in the Com- mission's Rules of Practice an