December 7, 1971
Page 45152
By Mr. MUSKIE:
S. 2965. A bill to provide greater access to Government information, and for other purposes. Referred to the Committee on Government Operations.
TRUTH IN GOVERNMENT ACT OF 1971
Mr. MUSKIE. Mr. President, our democratic system depends upon the vigorous interaction of three branches of government amongst themselves and with the press and the public. The interaction – so vital to our freedom – is threatened with serious imbalance as the power of the executive branch grows. A great part of that power stems from the executive branch's ability to withhold information from Congress and the public.
With the growth of the security classification system, of normal bureaucratic maneuvering, and of formal use of executive privilege, the executive branch can hide from Congress, the press, and the public information that is absolutely crucial for responsible decision making. This is not the result of a plan or plot, or even a policy. More accurately, it is the inevitable result of the changes that have taken place in our Federal Government over the past two decades.
Engaged in a cold war, we needed a permanent Military Establishment of major size and an elaborate classification system. As the size and complexity of our Government grew, information became more important and complicated. Information became harder to find and easier to hide. As issues and events began to move more rapidly, fewer institutions like Congress or the press could by themselves keep track of the essential knowledge of Government policy.
The executive branch alone now has the resources to assemble the detailed knowledge needed to formulate public policy in our technological society. And in a natural attempt to increase its leverage, the Executive withholds that information to further its own policies. Information is hidden to hide mistakes and blunders. Adverse information is hidden to preserve political reputations and promote policies. Dissenting opinion is hidden to mute opposition.
The new power of the Executive and the importance of the information transforms what was once an effort to put the "best foot forward" of an administration into an ability to control what Congress and our people will know about many key Government decisions and policies. The public and the press often no longer have enough facts to make responsible judgments about the course of Government. And Congress often does not have the information essential for it to carry out its constitutional responsibilities.
The Pentagon papers are the best example of this problem. Material that is essentially historical was denied to the public on national security grounds. That information, had it been known at the appropriate time, may have substantially changed the course of events in Vietnam. Even after it was too late to affect our policies, but when it could have served to inform us about past errors in order to avoid a tragic repetition of Vietnam, the Pentagon papers were still denied to the American people and their representatives.
Just last month citizens had to go to court – where they were largely unsuccessful – in order to attempt to obtain basic factual data about the potential environmental impact of the Cannikin test. Most of this information was unavailable to Congress. It was not made available before an irrevocable decision to go ahead with the test was made.
A battle in Congress of several years over the SST went on while key evaluations of the effect of the craft on the environment, the economy, our balance of payments, and so on were denied to Congress – even though Congress had to decide on whether to fund the project or not.
These are just a few of the many examples that demonstrate a need for fundamental reform. We must get the facts about our Government and its policies to the people and to Congress. Only in this way can our citizens and their representatives judge and, when they feel it is appropriate, oppose the policies of our Federal Government. This is the way we will restore some balance between the powers of the executive branch and the rest of our Government. It will also restore trust in our Government by removing much of the credibility gap.
In order to provide the essential information about our Government needed by Congress and the public, I am introducing today the Truth in Government Act. It creates a Disclosure Board which will supply Congress and the public adequate information about the policies of Government. It will also provide independent control over our classification system to end its abuses. Such an independent agency can judge amongst the competing claims of Congress' need to know and the Executive's need for secrecy to protect national security. This legislation creates a seven-member Disclosure Board. Its members are selected by the President with the advice and consent of the Senate. They would serve staggered 15-year terms.
In order to insure a diversity of views one member must come from a background in the American diplomatic corps, one from the military, one from the press, one from Congress and one from the legal profession. The Board is given the power to subpena any Government document in order to fulfill its functions. Its reports and decisions are to be publicly printed.
The first responsibility of the Board is to supervise the security classification system. The Board is granted the power to issue rules and regulations governing classification and the power to enforce them. Classification is required to be made subject to stringent principles restricting its use to cases of demonstrated need. Classification of documents is limited to a period of years according to their nature. Extension of that period is not automatic; the official requesting an extension must prove to the Board that it is consistent with the principles limiting classification.
The Board has the power to investigate any cases of misclassification or overclassification; to declassify documents; and to order agencies to modify their methods of classification to conform to the Board's rules and regulations.
The President has 45 days to review these decisions, orders, or regulations of the Board. If he modifies them, he must give a public, written explanation of the modification.
This part of the bill will take the classification system away from those who use it to protect themselves instead of secrets. It will allow an impartial Board to review the case for secrecy – so that secrecy when needed will be kept and, when unneeded, it will be efficiently swept away. It will give all Americans reassurance to know that the stamp "secret" will be restored to its rightful place.
A second major responsibility for the Board will be to provide Congress documents it needs to fulfill its Constitutional responsibilities. Congress needs sufficient information to make reasoned choices about appropriations, new legislation, and required oversight. Without this information, our system of checks and balances breaks down.
Just as important, Congress, as elected representatives of the people, can reflect their interest in light of information that cannot be made available to the general public. This will allow a broader check on the Executive, while preserving needed confidentiality.
This legislation creates a system to accomplish this by allowing either House of Congress, 10 Senators or 43 Representatives, or any congressional committee to request from the Board executive documents that have been refused to them. When such a request is made, the Board will hear from the requesting party why the documents are needed by Congress and then will hear the justification for the refusal to produce them from the relevant agency or department. The department could rely upon any of the traditional reasons for executive privilege: National security, diplomatic need, the privacy of personnel, the needs of criminal investigation, or the protection of candid advice to superior. The Board would balance these two needs and provide a written decision. The Board would be able to release the documents under a protective order requiring their secrecy and restricting their availability.
The decisions of the Board can be modified by the President if he invokes executive privilege with a written order. Both the Board's and the President's decisions are appealable to the U.S. Court of Appeals and then the Supreme Court by the original parties.
In the normal course of events the Board under these provisions will reject and accept many requests for documents. Undoubtedly, many documents will be sent to Congress with limitations upon their distribution. In the case where the Board rejects a serious and strong claim of executive privilege, the President could overturn or modify the decision, while publicly stating his reasons for so doing. Decisions by the Board, modified or unmodified, would go to the court of appeals and then the Supreme Court. The Court would review the reasonableness of the decision below – in effect re-weighing the constitutional balance.
Although this is unusual, I think it is highly appropriate for the courts to make this type of decision. They have the institutional neutrality that is needed. They have the expertise. in balancing these types of competing constitutional claims. And they have the perspective to ensure that the entire democratic system will be served by the decision.
In those decisions where the argument for secrecy is weakest, the Board would release documents to Congress without protective order; they would become public. This would be the major avenue for making information public.
But to provide another route for public access to information, the Truth in Government Act substantially liberalizes the provisions of the existing Freedom of Information Act, which now provides for private suit in court for the release of Government documents. Under the law, all documents must be made available save those that fall into one of many broad categories of exemptions. To date this legislation has not provided major access to Government documents. In order to strengthen the act, my legislation would amend it to:
Provide attorney's fees for those who win a suit to force an agency to release documents it has improperly held;
Allow courts to judge the reasonableness of a claimed exemption from the Freedom of Information Act – overruling Einstein v. Resor, 421 F. 2d 230 (1970) ;
Make determinations by the Board that a document should be declassified a prima facie case that the document is not within the national security secrecy exemption of the Freedom of Information Act; and
Permit a district court in a Freedom of Information Act case to seek an advisory opinion from the Board.
Thus private citizens, using the Freedom of Information Act, will be able to affect the flow of vital information to the public.
This entire bill is structured to restore balance to our system. Properly administered, it can provide greatly increased information for the public. Congress will have a reasonable way to obtain the information it needs in order to play its role in our constitutional system.
Yet this legislation does not go too far. It preserves a classification system in competent hands. It gives ultimate control over that system to the Commander in Chief. It creates an orderly procedure for releasing documents to Congress that does not ignore the legitimate needs of executive privilege. Contemporaneous documents and the advice of aides are absolutely protected.
I suggested this proposal for an independent declassification board last summer during the heightened concern over Government secrecy caused by the Pentagon Papers controversy. The reaction to it across the country was enormously favorable. I ask unanimous consent that editorials about the board printed last summer be placed in the RECORD at this point.
There being no objection, the editorials were ordered to be printed in the RECORD, as follows:
(From the Vallejo (Calif.) Times-Herald, June 25, 1971]
BEATING THE SECRECY LABEL
It was unfortunate the showdown between the press of America and the United States Government happened in the case of the government charging the New York Times with endangering the country's security by publishing a series of articles based on what was said to be a secret study of the Vietnam War in 1964.
All of this could have been prevented if someone had come up with the idea years ago as proposed by Sen. Edmund S. Muskie the other day. He said he would introduce legislation to create an independent board with authority to lift secrecy labels from government documents.
Under Muskie's plan, the board could make a document public after a lapse of two years. And at anytime, this board could send relevant documents to the appropriate committee of the Congress.
"Whatever the facts are," Muskie said, "they cannot inflict more damage than a rising tide of disbelief. We must give people a reason to believe anew in their ability to control the great events which shape and alter their fate. And that is why the board must be an independent board in appearance as well as in fact," he added.
Muskie said his plan would give the president and the departments the strongest incentive to be frank about the facts, which would in any case be made public almost immediately or soon afterwards. And at this same time, an independent board could protect the national security without using it as an excuse to hide blunders or launch covert policies.
Muskie's plan appears to have merit. With an independent board working unfettered and unbiased and holding allegiance to neither the government nor the people, showdowns can be avoided. All showdowns, and in this instance the word is used all-inclusive, are damaging because there can be only one winner. In some instances, however, both sides come out the loser when the showdown is resolved.
Congress should take a careful look at Muskie's plan in the not too distant future.
[From the Rock Island (Ill.) Argus, June 22, 1971]
OVERCOMING SECRECY ABUSE
Democratic Sens. Edmund Muskie and George McGovern have made a timely suggestion in connection with the New York Times publication of official Vietnam War documents – require that any "national security" stamp put on an official paper be subject to periodic review.
Sen. Muskie proposed the establishment of an independent board which after two years would be allowed to make public any paper classified as secret.
Because a paper so labeled won't always be known to exist, any department or agency classifying a document as top secret should be made to come before the board within a specified time and justify continued classification if this was intended.
But why not a shorter time period for nondefense agencies? Yes, a lot of documents are suppressed by these agencies, often to cover up official blunders.
Newspapers believe there has been far too much secrecy, but have no desire to publish facts that are harmful to the nation; in fact, they have often withheld such information when stumbling upon it. In the present dispute the Times has taken pains to delete references that might harm the U.S. in its relations with other nations.
[From the Lewiston Daily Sun, June 23, 1971]
SECRECY AND DEMOCRACY
The most positive and important development to come out of the current imbroglio among the federal government, The New York Times and the Washington Post, over the publication of secret papers on the origin of the Vietnam War and high level discussions and decisions about it has come from our junior United States Senator, Edmund S. Muskie. While some office holders on both sides of the political fence have been seeking to make political capital of the situation, to embarrass present or past Presidents, our senator has come up with a concrete proposal which is meritorious. He plans to file legislation to create an independent, bipartisan board with authority to lift secrecy labels from government documents.
Secrecy and democracy are antithetic, on the surface, at least. How can there be government "of the people, by the people and for the people" if the people are denied information by a stamp of secrecy placed on documents on public affairs by officials who may or may not have good reason? But even in democracy, there must be some secrecy. It is necessary for national security, particularly, and extends into other fields such as trade, research and even planning at times.
Secrecy should serve the interests of the public and not be a cloak to protect officials against the disclosure of their honest mistakes, nonfeasance or misfeasance.
The use of the secrecy stamp in Washington is regulated by an Executive Order issued by the late President Dwight D. Eisenhower in 1953. It set up three classifications, of declining importance: Top Secret, Secret, and Confidential, and vested the power to classify in the heads of the various departments. The power in turn could he delegated to appropriate officials. Provision is made for downgrading of classifications after a period of years leading to final declassification. The latter may require 25 to 30 years, when Top Secret papers are involved. Great Britain recently adopted a 30-year regulation, while France continues a 50-year rule.
An independent board, such as proposed by Senator Muskie, could make periodic reviews of classified material to determine whether the reason for secrecy remained valid. We agree with the senator that such a system "would give the President and the departments the strongest incentive to be frank about the facts.” At the same time an independent board could protect national security without using it as an excuse to hide blunders or launch covert policies.
[From the Lincoln (Nebr.) Journal June 22, 1971]
MERIT IN DECLASSIFYING BOARD
A sensible and unemotional suggestion was offered by Sen. Edmund S. Muskie, D-Me., in the highly explosive situation of the publication of the Pentagon papers. He will propose legislation to create a seven-member independent board responsible for declassifying secret government documents.
This board should be free from government control and pressure from the news media. Too often government officials have put on the classified stamp to avoid embarrassment or to cover up incompetence or worse when national security is not involved.
There should be stronger regulations about putting classified papers in code. Coding of documents which later can be declassified leads to the claim that declassification gives foreign agents an opportunity to break the codes.
Loose regulations about coding in itself lead to locking history into secrecy, giving government officials too much latitude to keep their operations from the people who have a right to know and from the press which has a right to print except when national security is threatened.
If the country is to remain strong and free the people must have faith in the government and in the press to protect their right to know what government is doing and is up to.
Congress should give strong consideration to the proposal of Sen. Muskie. An independent board should have wide authority and cover both the executive and legislative branches. Secrecy is not confined to any one segment of government.
One of the administration's arguments against the printing of the documents by the New York Times and Washington Post is that this will cause concern abroad and the loss of confidence in the United States. It is doubtful that the United States will lose face with other nations if it keeps faith with its people at home.
If it can't have it both ways, then if the government of the United States of America is to survive as it was conceived, it must make the choice of being trusted at home.
[From the Minneapolis (Minn.) Star, June 22, 1971]
THOSE SECRECY LABELS
Outrage over deceit on U.S. involvement in Vietnam, as disclosed in the secret "Pentagon Papers," appears to be widespread. There is probably less outrage, however, and more puzzlement, over the government's practice of classifying documents "secret" and "top secret."
John Kenneth Galbraith, in the letter reprinted on this page, asks a critical question about this practice: Against whom was this secrecy employed? He charges, with some validity, that it was used against Congress, "our own people and our friends," and that it protected "the freedom to make catastrophic mistakes."
It is obvious that there has been a loosening of long-standing security practices during the course of the Vietnam War. Officials who have become disenchanted with U.S. policies have leaked information, or, once having left office, have rushed into print with their own versions of what has happened. At the same time, there has been a tendency, by many in high office, to over-classify information, to stamp ordinary documents and study papers "secret" and keep them so classified for long periods. One result is that a good deal of information, often common knowledge to our foes, is kept from the public.
Sen. Edmund Muskie, D-Maine, says he will introduce legislation to create an independent board with power to lift secrecy labels from official documents. The board would be able to make documents public after a two-year waiting period, and send others to committees of Congress while they were still classified.
Muskie's proposal is a laudable one, but we would prefer to see a board responsible to the public – in other words, made up of elected officials – rather than one appointed by, and responsible only to the president. Only in this way can the public's right to know, rather than the actions of high officials be protected.
[From the Hackensack (N.J.) Record, June 25, 1971]
ESCAPE HATCH FOR TRUTH
The first proposal for adjusting the machinery of government to prevent unwarranted classification of official documents has come from Sen. Edmund S. Muskie.
Details are sketchy. The Maine Democrat outlined the plan at a party fund-raising dinner, a forum hardly conducive to dispassionate consideration of important innovations. The plan has promise none the less.
Sen. Muskie would create as independent seven-member board to review secret documents two years or more after their original classification and to make public those whose disclosure it deems to pose no threat to the nation's security or diplomatic relations.
Under present law the authority to declassify such documents is vested in the authors who declared them secret originally or their successors in office.
The membership of Sen. Muskie's board would presumably include neither the authors nor the subjects of the reports under its scrutiny. There would be less temptation to keep the lid on merely to cover up ineptitude or outright malfeasance. And the public's essential right to know what its government is doing would be enlarged.
This is all to the good. As Sen. Muskie put it: "We must give people a reason to believe anew in their ability to control the great events that shape and alter their fate."
One potential danger in the plan is that it might encourage a reluctance to put certain sensitive considerations in writing or a tendency to confine them to unofficial memorandums.
Sen. Muskie should be encouraged to consider this possibility and prepare his plan for formal congressional consideration promptly. National concern over how much the people are entitled to know about this government has never been more intense.
[From the New York (N.Y) Post, June 23, 1971]
HOW HUMAN ARE JUDGES?
(By Max Lerner)
In the three federal court cases hogging the news – guess which – there are at least 20 federal judges involved. Within the week the nine Supreme Court judges will probably have been drawn in, to get the cases settled for good.
This is a vast expenditure of judicial energies and brains, but the issues are worth it. Everyone agrees that we are now involved in a crisis of belief – in the government and in the press. Which means that we can't depend on the officials of either of them to settle it, since each has an ax to grind – drastic secrecy rules in one case, and an absolute freedom of press in the other. At this point only the judiciary and the judicial mind can serve as arbiters.
Are the high federal judges qualified for this role? They cannot be wholly qualified – no one can be – for to be above all human bias and passion they would have to be men like gods. I know more about the Supreme Court judges than I do about the Federal District and Appeal judges, but they are all very human, with their own biographies, preferences, ambitions, values. The glimpses we get of them, as each moves into the public spotlight for his brief intense moment of exposure, show up the human qualities and perhaps some of the frailties.
Many years ago, when my innocence about the judicial process was first breached, it occurred to me that judicial decisions are not babies that come into the world conveyed by storks, but that they come out of the travail and conflict of opposing interests, power systems, world views. That is still true. But it is also true that there has to be something special about the way judges operate that sets them off from those other government servants, the political men.
The something is what we mean by the judicial mind. Either it is there or it isn't, and in too many cases it isn't. But it had better be there in the high judicial posts. For if we are in a crisis of belief about politicians and about the media, it would be catastrophic if our belief in the judiciary were also under siege.
I read an account the other day of a federal judge. It said that his friends thought of him as a man who knows his own mind, and has no hesitation in speaking it. I should like such a man for a friend. But a judge must not only know his own mind, like the rest of us. He must be able to transcend it, in the sense of transcending his own preferences. He must reach out to reconcile the claims of conflicting groups, and do it clearly enough, in long-range terms, so that men will know where they stand in the sight of the law, and feel that it deals fairly with them, and that they can live out their lives in a rapidly changing world with some measure of order and security.
The trouble is that many judges see this as their self-image, and hide their own partisan views behind it. FDR understood this about the conservatives on the Supreme Court who blocked the New Deal legislation, and he was so angry that he made the mistake of blasting them out of the way by a court-packing threat.
The judges of the Warren Court were just the opposite. They were impatient with the slow pace of change in giving all men greater access to equal life chances, and in protecting the obscure.
In the process they moved so passionately and unwarily in the field of criminal law that they aroused the rage of a large segment of opinion which felt they were unjudicial, and that they had ignored the everyday fact and fear of crime. Thus with the best of motives one of the most creative courts in American history ended with what Fred Graham has called a "self-inflicted wound," and witnessed another crisis of belief in the judicial mind.
On the vexed problem of how to declassify secret government documents Sen. Muskie's suggestion of a blue-ribbon civilian commission, to review the classification after two years, makes considerable sense. Somehow we shall find a better way than the present one.
Even the problem of the credibility of government officials can be solved by changing them. But the belief in the fairness of judges goes deeper than either of these. In a Time of Troubles like the present we need constantly to renew a kind of social contract between struggling groups, and it is the courts that must have credibility as the keeper of that contract.
[From the Scranton (Pa.) Times, June 23, 1971]
A "DE-SECRETING" BOARD MUCH NEEDED
Both of those masters of satire, Russell Baker and Art Buchwald, whose columns appear on this page, have had their fun with the government's tendency to withhold information by way of classifying even apparently harmless documents with graded variations of secrecy.
Their caustic wit on this subject was prompted by the Justice Department's attempt to halt further publication of the Pentagon Papers, as the McNamara study of our escalated commitment to the Vietnam War has come to be known.
And both the Pentagon Papers and the satirical commentaries point up a need for some means of prodding governmental departments into releasing or else justifying the continued hiding of information about subjects which have universal impact on the quality and direction of life in the United States.
The only recommendation we have seen put forth publicly thus far is that of Maine Sen. Edmund Muskie. He has proposed that legislation be enacted which would establish an independent board with authority to declassify secret government documents in the public interest. The board would be authorized to act after the documents had been withheld from Congress and the public for two years.
It is significant that congressional committees have not been able to get requested information from the executive branch because of the screen of official secrecy, including the Pentagon Papers. The need for an independent agency to monitor these documents is apparent when it is realized that without such a board the very existence of vital documents is little known. An independent board also would be less likely than the executive branch to make the covering up of administrative ineptitude the test of whether a document should be placed in the public domain.
[From the Providence (R.I.) Journal, June 23, 1971]
TOO MUCH SECRECY
The furor over the Pentagon papers that have been published thus far has pointed up the growing problem of secrecy in government. The practice of classification has long since bureaucratized the concealment of government decisions and information embarrassing to officials, far beyond the requirements of national security. Once classified and filed away from public scrutiny, papers tend to stay buried for years on end. That is why the proposal of Sen. Edmund S. Muskie for creation of an independent declassification board finds a receptive public today.
If such a board had the power to make a document public after a two-year waiting period, as suggested by Senator Muskie, there would be strong pressure on top officials to be more open and honest about their policies and actions. There would be less incentive to try to hide the facts, since the secrecy label would not cover them for long. Presumably, the executive department would have full opportunity to oppose lifting of the secrecy curtain and to convince the board, perhaps in private hearing, of the necessity for continued classification.
But an independent board, whose directive was to release as much as possible, would have a very different approach from a bureaucracy whose tendency is to file and forget – or to release only what is favorable to its interests. If the board's work were carried out in the spirit of full information for the people, there would be much less chance for suits against newspapers or other media for publishing information that had been classified, justifiably or without sound reason.
If very much of the material in dispute in the cases of The New York Times and The Washington Post were clearly harmful to national security, there would have been much less controversy over its publication, perhaps none at all. Of all those who have commented on the security aspect, the most convincing is Sen. Stuart Symington of Missouri. When he asserts that the disclosures were not harmful to national security, he speaks from the experience of long years in the Senate, preceded by service as a top defense official – secretary of the air force. "It's obvious to us for many years," said Symington, "that the executive department has been taking advantage – as it is today – in classifying in order to cover up various matters they do not want the people to know."
A declassification board which cannot release documents to the public for two years may not solve the problem posed by an executive who holds out on the people or feeds them misleading information to keep them quiet. A feature suggested by Senator Muskie, permitting the board to furnish documents to appropriate congressional committees during the two-year period, would go part-way toward solving that problem. Beyond that, top officials must begin working to restore the attitude of trust between the people and the government – between Congress and the executive – that existed in a less turbulent time of our history. The simplest way to do that is to "level" with the people. As Senator Muskie said Sunday, "Whatever the facts are, they cannot inflict more damage than a rising tide of disbelief"
[From the Houston, (Tex.) Chronicle, June 23, 1971]
MUSKIE ON OFFICIAL SECRECY
The continuing controversy over publication of the Pentagon papers has focused attention on the manner in which the government classifies "secret" information.
The Pentagon papers, portions of which have been published by the New York Times, the Washington Post and the Boston Globe, are indeed classified as "secret." But the editors of those three newspapers published the information anyway – not because they are unpatriotic or desirous of causing this nation harm but rather because they believed the secret classification in this case is not justified.
Government officials have a natural inclination to put the secrecy stamp on anything which might be embarrassing. It is far more human to attempt to hide mistakes and blunders than it is to publicize them.
If publication of the Pentagon papers is harmful to the nation's security, as the government contends, then we doubt seriously that the editors of three great newspapers would seek to publish the documents.
The U.S. Supreme Court ultimately will have to decide who is right in this controversy, one of the most important issues of press freedom in this country's history.
Meanwhile, Secretary of Defense Melvin Laird has directed his Pentagon censors to declassify as much of the lengthy report as possible.
It should be kept in mind that we are not dealing here with current military plans which might if disclosed jeopardize the safety of our military personnel. Rather we are dealing with high government decisions, policies and contingency plans which occurred at least four years ago and as far back as the Truman administration. This is history, and in such a case Americans can justifiably wonder why the "secret" classification still applies.
Sen. Edmund S. Muskie, in a speech over the weekend, observed that "countless citizens no longer believe in their government... What they do believe is that the government lies, and this disbelief has reached a new high with this week's publication of the Pentagon papers. They are the daily front-page story and the urgent concern of anyone who cares about the trust that binds Americans together."
He said that this danger of loss of trust in the government and this "corrosion of ideals" is so great that specific steps must be taken to prevent any government from operating in so secret a fashion in the future.
Muskie proposes to introduce legislation to create an independent seven-man board with the authority to declassify secret government documents after a waiting period of two years.
"This system," Muskie argues, "would give the President and the departments the strongest incentive to be frank about the facts, which would in any case come out almost immediately or very soon."
We think Muskie's plan is a sound one. Incidentally, a husband and wife team were the ones who blocked efforts to declassify the Pentagon papers. Dennis J. Doolin, deputy assistant secretary of defense for international security in charge of East Asian affairs, had the responsibility of periodically reviewing the 46-volume report. He was assisted by his wife, who is deputy director of the office of special considerations in the U.S. Department of Health, Education and Welfare.
[From the Salt Lake City (Utah) Deseret News, June 22,1971]
TOO MANY SECRETS? LET'S TAKE A LOOK
A few days ago this page called for a review of the government's classified documents and reports to determine which ones need no longer be kept secret.
We did so because America might have been spared some embarrassment if the report leaked to the New York Times regarding the origins of the Vietnam war had been released instead by the government itself. Maybe the government couldn't have released all of that report, but it could have made public substantial portions of it without impairing national security.
We did so because too much information is kept secret by the government not to protect national security but to guard against the exposure of official bungling and deceit.
We did so because the public must be given the facts – no matter how distressing or distasteful the facts may be – if the people are to pass sound judgments on how well its public servants are actually serving it.
So it was encouraging to read Sen. Edmund S. Muskie's announcement the past weekend that he will introduce legislation to create an independent board with authority to lift secrecy labels from government documents after two years.
Of course, there's room for differing with Senator Muskie over the size and composition of the board. He suggests a board of seven members, which isn't large considering the volume of classified documents it would have to review. But the smaller the board the better it would be from the point of view of making sure that legitimate secrets remain secret.
Moreover, would the five private citizens he wants on the review board – in addition to a member from the government and one from the press – really possess enough expertise to handle the job?
As a case in point, take the secret study leaked to the New York Times and the Washington Post.
Would such review board members be in a position to know on their own that some of the material was originally coded and that its publication could help other nations decipher other messages of the same period that might so far have eluded translation? Would the reviewers know on their own that same of the material can enlighten foreign analysts on how U.S. Intelligence operates, together with some of its strengths and weaknesses?
Or would the reviewers have to take the Pentagon's word on such matters? If so, wouldn't such a board be independent in name only and wouldn't we all be right back where we are now?
Certainly the mere existence of such a board could help heal some of the deep wounds that are summed up in the term "credibility gap" as well as restore confidence that this is, indeed, a government of the people.
[From the Salt Lake City (Utah) Tribune, June 22, 1971 ]
MUSKIE DECLASSIFICATION PROPOSAL WOULD BURY "CREDIBILITY GAP"
Sen. Edmund S. Muskie's proposal that an independent board be created to declassify government documents after two years is basically sound. It is about time that some machinery be provided to protect the American public's right to know what its government is doing. The Maine Democrat's proposal contains the basic blueprints for such long overdue protection.
If any member of Congress has any doubts that there is a need for such a declassification, he should turn to the Senate Armed Services Committee record and review those portions where Defense Secretary Melvin Laird refused to give the committee the now disputed Pentagon papers, even after they had been published in the New York Times. Secy. Laird's reason for refusing the committee's request was that the papers were still "classified." Despite the fact the papers were public information, the secretary still exercises his executive prerogatives and won't let the committee have the papers.
Over the years similar actions have prevented Congress from getting information it deemed necessary for thoughtful consideration of legislation. The Muskie plan for a "public-centered" declassification would not only keep the public informed but give Congress vitally needed information.
A potential pitfall of the proposal is that the board instead of hastening the release of information to the public, might end up restricting its flow. Conceivably the board, after hearing only the highly persuasive arguments of government agencies on a declassification issue, might slap its own security stamp on the questioned documents. To avoid this spectacle of doubly classified information, Congress must provide for mandatory public hearings on these matters.
Any declassification board must also include some type of appellate procedure which would allow persons denied access to government information means of adjudicating their complaints. Government information classification is now pretty much a one-way street. There are many ways information may be classified and virtually none to force declassification. Inclusion of some appellate process would assure that inappropriate "secret" labels that the board overlooked, or even avoided investigating, would be tested in public.
The term "credibility gap" has become one of the more distasteful idioms of the American language. The Muskie plan is a positive step toward giving the phrase the swift and proper burial it has long deserved.
[From the Norfolk (Va.) Ledger-Star, June 21, 1971 ]
WAY OUT OF A DILEMMA
If we were to wager on the outcome of the confrontation between the government and The New York Times, the money would be on permission to publish the rest of the stolen or purloined Pentagon Papers.
For the horse is out of the barn, and what the Times was saying (through James Reston) last week – that the papers were practically floating around Washington – is perhaps true enough this week.
The Washington Post had begun publishing its own version of the papers and all of the columnists with pipelines are busy calling the principals – such as the Bundys, former Defense Secretary McNamara and Averell Harriman – to get their versions. Gentlemen involved in the frequent conferences that drafted position papers and plans quite naturally will be doing their own explaining, sooner or later.
Meantime, the confrontation is in the federal courts, specifically in two Courts of Appeals; the Post case is before the District of Columbia Circuit and the Times case before the Second District Circuit. The next steps, if any, must be appeals by the losers to the Supreme Court.
There is one Constitutional point in these cases that badly requires solution; that is, the right of the government to prevent publication of documents that it believes may injure negotiations of this country with others; and the right of any member of the press to unilaterally declassify government documents on ground that the people have a right to know what their government is doing.
We do not see how anyone can argue that the North Vietnamese, sitting across the table at Paris, will have benefitted less than the people of the U.S. by these revelations.
Nonetheless, what damage is to be done will be done before this is over. All these secrets will come out.
Therefore, it seems to us that the Nixon administration would be wise now to declassify these Pentagon Papers on its own part, and throw them open to the public by way of the entire press, television and radio.
Then a second step, like the proposal of Senator Muskie, seems sound and wise to us. That is, create an independent board empowered to lift security labels when their declassification is overdue. Senator Muskie would wait two years; perhaps a shorter period might suffice, or a longer, depending upon the circumstances. The board ought to be composed of appointees from the Executive, the Legislative and the Judicial Departments of the government. Surely no one will argue that all three are not involved in this present confrontation.
But, that is for the future. For the present, President Nixon ought to see that these papers about which so much controversy swirls now, are released to all interested in delivering them to the public.
[From the Washington Evening Star, June 22, 1971]
THE CLASSIFICATION GAME
The loud debate over the significance of the Pentagon Papers seems destined to last at least through the 1972 elections. The government's legal assault on freedom of the press promises to be rattling around the courts for some time as well. But even before the political and juridical questions are finally resolved, there is at least one tangential issue that can be settled now.
The process by which official documents are classified and stay that way can be seen for what is: An unholy mess.
Abuse of the classification is no new thing. It has existed at least since the invention of the rubber stamp and has been the subject of periodic protests in Congress and the press. The present controversy has, however, focused public attention on the classification game as never before and has produced the best hope for ending the practice of sweeping political dirt under a security rug.
Few would deny the government's need to carry out many of its military moves and some of its diplomacy in secrecy. Nor is there any serious questioning of the government's obligation to protect its legitimate secrets for as long as the national security is involved. But the method by which documents are now classified carries with it a virtual guarantee of misuse.
No one, government officials included, likes to have a past mistake paraded in public. But unlike the run-of-the-mill goof-off, the upper-level government type can arrange to have the documentary evidence of his errors hidden from public view until the heat is off. And there is more at fault with the present system than the common human inclination to keep skeletons hidden. There is the common human disinclination to invite trouble.
The original decision as to how a given document is to be classified is, generally speaking, left up to a low or middle-echelon officer. The obvious way to invite trouble is to stamp a really hot secret "Confidential." The instinct for survival dictates that the highest classification possible is the one that will be chosen.
The same rule applies to declassification: When in doubt, keep it hidden. Theoretically, the classification is supposed to have a set life span designated by a number code signifying automatic declassification by a certain date. But again, that system depends on a government agency's desire to follow its own guidelines as to when the security blanket should be abandoned.
It doesn't work.
There are alternatives to the present system. One that deserves serious consideration has been suggested by Senator Muskie, who proposed that all classified material should be reviewed by an independent board after two years. The board could declassify the material and release it to the public. It could also at any time make classified documents available to appropriate committees of Congress.
It might be advisable to change the proposed legislation so that all documents would automatically be declassified after two years, unless an independent board should approve a government request for an extension. In any event, some such system of review would constitute a major improvement over the present setup. It would insure eventual public exposure. And such assurance would tend to curb the excessive use of the Top Secret stamp as a cloak for wrongdoing, incompetence or political embarrassment.
Mr. MUSKIE. Mr. President, the proposal just introduced is new and unprecedented. I am certain that during its consideration, it can be improved. There may be questions about whether the Board as structured will attract members of sufficient caliber. The scope of Presidential review of the Board may need to be modified. The provisions for judicial review of its decisions must be tested against the profound and difficult constitutional issues which are involved. While I believe the legislation is both constitutional and wise, I think it deserves close scrutiny in Congress and the executive.
I have offered this legislation in an effort to assure the public and Congress of greater access to information they should have. It necessarily entails a lessening of a President's powers. And clearly a President would have to voluntarily cooperate with legislation such as this – to accept it and agree to procedures that circumscribe his power. I hope that this will be done, not as a forced limitation of the President's power, but as a voluntary Presidential decision that limits his power because he feels it is best for our constitutional system.
We need to end bureaucratic secrecy and provide the people with the facts about our Government. If we do not, our system of government will continue to be weakened. If we do, we shall begin to restore trust and truth in our Government.
I ask unanimous consent that the bill be printed, in the RECORD at this point along with an outline of its proposals.
There being no objection, the bill and outline were ordered to be printed in the RECORD, as follows:
S. 2965
A bill to provide greater access to Government information, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
TITLE I – DISCLOSURE BOARD
SEC. 101. This Act may be cited as the "Truth in Government Act of 1971".
ESTABLISHMENT
SEC. 102. There is established an Independent board to be known as the Disclosure Board (hereinafter referred to as the "Board").
SEC. 103 (a) The Board shall consist of seven members to be appointed by the President, by and with the advice and consent of the Senate.
(b) Two of the original members of the Board shall be appointed for a term of 3 years, two for a term of 7 years, two for a term of 11 years, and one for a term of 15 years. Their successors shall be appointed for a term of 15 years each, except that any individual appointed to fill a vacancy shall be appointed only for the unexpired term of his predecessor and subject to the limitations with respect to party affiliation. No member shall serve for more than one term, but a member may serve until his successor has been appointed and qualified. No more than four of the members shall at any one time be affiliated with the same political party.
(c) One member of the Beard shall have a background in the diplomatic corps, one shall have a background in military or intelligence work, one shall be from the news media, one shall be a former member of Congress, and one shall be a member of the bar.
ADMINISTRATION
SEC. 104. (a) The President shall designate one of the members of the Board as Chairman and one as Vice Chairman. The Vice Chairman shall act as Chairman in case of the absence or disability of the Chairman. Four members of the Board shall constitute a quorum. Except as provided in Section 202 (a) (6), decisions of the Board shall be made by a majority of the members present.
(b) Members of the Board shall be responsible for maintaining the security of classified material in their custody, and all security procedures prescribed by law and Executive order shall be followed.
(c) In addition to other penalties provided for by statute, the disclosure of material classified or other by any member or employee of the Board shall be punishable by a fine of not to exceed $15,000 or imprisonment for not to exceed ten years, or both, unless such disclosure is made in accordance with the provisions of this Act.
(d) (1) No member of the Board shall actively engage in any business, vocation, or employment other than that of serving as a member of the Board.
(2) Section 5313 of Title 5, United States Code, is amended by adding at the end thereof the following new paragraph:
"(21) Members, Freedom of Information Board."
POWERS
SEC. 105. The Board is authorized to–
(1) adequate measures to guard the physical security of the documents be taken; (2) issue subpoenas duces tecum to all custodians of classified and other official government information for the purposes of compelling production of such information excepting none whatever for in camera inspection by the Board or its staff in order to carry out the purpose of the Act and the duties of the Board under section 552 (d) of title 5, United States Code or for release of such documents in accordance with the terms of any decision of the Board under this Act; (3) hold hearings, administer oaths, take testimony, and require persons to appear and furnish information relevant to the Board's duties; (4) make such rules and regulations as may be necessary to carry out its duties; and (5) appoint counsel when appropriate for indigent private parties appearing before the Board under section. 202(a) (6) of this Act or under section 552 (d) of title 5, United States Code.
RECORDS
SEC. 106. The Board shall print a record of its decisions, orders, reports, rules and regulations for public use, and shall keep on file for public use a record of its proceedings and hearings. Portions of the proceedings may be classified in accordance with the principles set forth under section 204 of this Act.
REPORTS
SEC. 107. The Board shall report not later than sixty days after the close of each fiscal year to the Congress and to the President concerning its activities under titles 2, 3, and 4 of this Act. Each such report shall contain a register of the employees of the Board and their positions, duties, and salaries, and shall contain an accounting of all funds expended by the Board during the preceding fiscal year. The report shall contain an evaluation of the Board's efforts to achieve the purposes of this Act and may contain such recommendations for legislation or other governmental action as the Board determines to be appropriate.
TITLE II – SUPERVISION OF THE SECURITY CLASSIFICATION SYSTEM GENERAL DUTIES
SEC. 201. The Board shall be responsible for the supervision and review of the security classification system of the executive branch. It shall insure that classification of information is kept to an absolute minimum consistent with the needs of national security.
SPECIAL DUTIES AND AUTHORITY
SEC. 202. (a) The Board shall–
(1) conduct a thorough and continuing investigation and appraisal of the standards and practices of classifying official information in the executive branch;
(2) promulgate rules and regulations, in accordance with section 553 of title 5, United States Code, and in conformity with the general principles under section 204 of this Act, designating: (A) Classification categories for all official Government information; (B) the titles or positions of Government officials authorized to classify Government information; (C) criteria for declassification and for the downgrading or upgrading of the classification of all Government information; (D) standards for permitting access to classified information; (E) rules regulating the use of derivative classification; and (F) any other matters necessary to carry out the purposes of this Act;
(3) provide for the automatic expiration of classification of particular items or certain categories or subcategories of items of information after periods ranging from two years from their production in the case of the least sensitive information to twelve years from their production in the case of the most sensitive information;
(4) within a reasonable period of time to be determined by the Board, provide for the mandatory reclassification and the expiration for such classification not to exceed twelve years or for the declassification of all information which was classified prior to the effective date of the rules and regulations promulgated under this Act;
(5) declassify or reclassify all information classified or reclassified after the effective date of the rules and regulations promulgated under this Act which is not classified in conformity with said rules and regulations;
(6) investigate upon the motion of three or more of its members or upon inquiries initiated by Members of Congress, private citizens, or officers or employees of the Government, any allegation of improper classification of information, or upon the failures of any Federal agency to comply with the provisions of this Act and with the rules and regulations promulgated hereunder, and publicly issue a report describing the results of each such investigation; and
(7) order a lower or higher classification, or a declassification of information, or direct any department or agency of the executive branch to modify its classification procedures or practices to conform with the rules and regulations of the Board upon a finding by the Board of improper classification pursuant to the proceeding clauses.
(b) All information in the executive branch shall be subject to the procedures prescribed under clause (3) or (4) of subsection (a) of this section. The Board is authorized to extend for a period of not to exceed 10 years the classification of any item of information if the Board determines, upon written application and a showing by the official authorized to classify that item, that–
(1) such extension is required for purposes of national security; and
(2) Such extension is consistent with the provisions of section 204 of this Act.
PRESIDENTIAL REVIEW
SEC. 203. Any rule, regulation, decision, or order issued by the Board under this title shall become final unless, within 45 days of receipt of the Board's written rule, regulation, decision, or order, the President issues an order overruling or modifying that rule, regulation, decision, or order setting forth in writing his reasons for such action. Any such order of the President shall be final and published in accordance with section 105 of this Act, except that the title or other identifying features of the information involved may be deleted at the request of either the Board or the President.
CLASSIFICATION PRINCIPLES
SEC. 204. In carrying out its duties under this title, the Board shall be subject to and guided by the following principles–
(a) The American public and press need to be fully informed concerning the policies, decisions, and operations of the Federal Government in order to participate intelligently in and report responsibly on the democratic processes.
(b) The Congress, as the elected representatives of the people, need even greater access to information concerning the policies and operations of the Federal Government in order to determine the need for new legislation, assess the appropriate level and distribution of appropriations, and exercise its oversight responsibilities.
(c) The legitimate needs of Congress, the public and the press require that classified security classification information be imposed only where its protection for national defense is demonstrably necessary. Classification of information shall be limited to information the declassification of which would clearly and directly threaten the national defense of the United States.
(d) Classifications should be removed when the passage of time eliminates the requirement for security, and information of a historical nature should not be or remain classified unless a clear relationship to current national defense interests can be demonstrated.
(e) Procedures governing classification and derivative classification should insure that each classification decision be the carefully considered act of a responsible official, whose accountability for the classification decision is a matter of record.
(f) No information should be classified for the purpose of preventing embarrassment to any official of any branch of government, or for the purpose of concealing incompetence or misconduct.
TITLE III – CONGRESSIONAL ACCESS TO DOCUMENTS
GENERAL DUTIES
SEC. 301. The Board shall be responsible for providing Congress, upon request, certain information necessary for Congress to discharge fully and properly all its constitutional responsibilities.
SPECIAL DUTIES AND AUTHORITY
SEC. 302. (a) The Board shall receive and act upon any requests submitted to it for the issuance of an order directing any department or agency of the Executive Branch to transmit one or more documents held by such department or agency to
(1) either House of Congress if such request was made pursuant to a majority vote of the Members of such House;
(2) any standing or special committee of either House of Congress if the requested document or documents relates to its jurisdiction; or
(3) either House of Congress if such request is made pursuant to a petition signed by not less than 10 members of the Senate or not less than 43 Members of the House of Representatives, as the case may be.
(b) Any request made to the Board under subsection (a) shall state with reasonable particularity (1) the document, documents, or category of documents requested, (2) the constitutional or other need for access to the document or documents requested, and (3) the previous efforts made to obtain access to the document or documents requested.
SEC. 303. (a) Upon receipt of such a request, the Board shall immediately advise the head of the appropriate Federal department or agency and the President of that request, subpoena the document or documents and solicit the reasons of that department or agency for its refusal to transmit the requested document or documents to the Congress, a committee thereof, or members, as the case may be.
(b) The Board shall conduct an investigation to determine whether such documents shall be transmitted to the Congress. The Board may order an evidentiary hearing with oral argument before the entire Board in any such case. Upon concurrence of five members, such a hearing shall be closed. In making this determination, the Board shall weigh the respective constitutional authorities and duties of the parties, including–
(1) the extent to which disclosure would impede the orderly administration of the executive branch; and
(2) the extent to which the information contained in each documents is necessary for the performance of legislative functions.
(c) The Board shall not be empowered to transmit documents which the Board finds (1) were initially prepared within two years of the date of the request or (2) are interagency or intra-agency memoranda or correspondence consisting principally of advice, recommendations, or opinions prepared in connection with policy determinations of a department or agency of the Executive Branch.
(d) The Board is authorized to enter an order in any such case granting or denying the request, or granting the request upon such terms and conditions as may be necessary to protect the security of the documents, including but not limited to terms and conditions requiring that–
(1) adequate measures to guard the physical security of the documents be taken;
(2) access to the documents be given only to Members of Congress or only to certain Members of Congress whose responsibilities require access to the documents;
(3) all discussion concerning the documents take place in executive session of committees and closed sessions of either the Senate or the House of Representatives.
(e) Any decision made under this title shall be in writing and shall set forth in detail the reasons for (1) granting any request, (2) subjecting the request to an appropriate protective order, or (3) denying the request.
(f) The fact that a document requested is classified shall not, in itself, be a reason for denying Congressional access to such document.
PRESIDENTIAL REVIEW
SEC. 304. Any decision of the Board under this title may be modified in whole or in part by order of the President within 30 days of publication of the Board's written decision. No modification of a decision by the Board which restricts the release of documents to Congress shall be made unless the President invokes executive privilege. Any order of the President modifying a decision of the Board shall be written and shall be published in accordance with Section 105 of this Act. If the President invokes executive privilege, the written order shall explain the necessity for such invocation.
APPEALS
SEC. 305 (a) Any decision rendered by the Board under Section 303 shall become final unless, within 30 days after publication, the President orders a modification of the decision in accordance with Section 304 or either party files an appeal with the United States Court of Appeals for the District of Columbia Circuit. Any Presidential order modifying a decision of the Board under Section 304 shall become final unless, within 30 days after publication, either party files an appeal with the United States Court of Appeals for the District of Columbia Circuit.
(b) For purposes of this Section, a party eligible to appeal a decision of the Board under Section 303 or an order by the President under Section 304 shall be (1) the party which requested the documents in question under Section 302, or (2) the agency or department which submitted reasons opposing such request under Section 303(a).
(c) The Court of Appeals shall determine whether there is substantial evidence on the record as a whole to sustain the action of the Board or the President, having due regard for the need and right of the Congress to obtain information in order to fulfill its constitutional duties and the privilege of the Executive to withhold information under executive privilege. The court may, if appropriate, order the production of classified documents from the Board or from any department or agency. The party aggrieved by the decision of the Court of Appeals shall have an appeal as a matter of right to the United States Supreme Court.
TITLE IV – PUBLIC INFORMATION
PUBLIC INFORMATION AMENDMENTS
SEC. 401. (a) Section 552 (a) (3) of title 5, United States Code, is amended by inserting after the second sentence thereof the following sentence: "The court shall award reasonable attorney's fees and costs to the complainant if it issues any such injunction or order against the agency."
(b) Section 552(b) of such title is amended by inserting at the end thereof the following:
"In any case in a district court under paragraph (3) of subsection (a) of this section, the court shall have jurisdiction to determine whether any exception provided by this subsection, if asserted by the agency, has been reasonably asserted, and for this purpose the court may compel the production of the records in camera. The declassification of records under title II of the Truth in Government Act of 1971 constitutes a presumption, rebuttable only by clear and convincing proof, that such records are not within the purview of clause (1) of the first sentence of this subsection."
(c) Section 552 of title 5, United States Code, is amended by adding at the end thereof the following new subsection:
" (d) Any case in a district court under paragraph (3) of subsection (a) of this section, the court may request an advisory opinion from the Freedom of Information Board on the reasonableness of any assertion of any exception provided by subsection (b) of this section.
TITLE V – AUTHORIZATION OF APPROPRIATIONS
SEC. 501. There are authorized to be appropriated such sums as are necessary to carry out the provisions of this Act.
TITLE VI – SEPARABILITY
SEC. 601. The sections, subsections, paragraphs and provisos of this Act are hereby declared to be separable, and if any one or more of the sections, subsections, paragraphs, or provisos of this Act, or the application thereof to any person or circumstance, should be held to be unconstitutional or invalid for any reason, the validity of other sections, subsections, paragraphs, and provisos of this Act, and the application thereof to other persons or circumstances, shall not be affected thereby.
OUTLINE OF MUSKIE TRUTH IN GOVERNMENT BILL
TITLE I – DISCLOSURE BOARD
Establishes a seven-member Board appointed by the President with the advice and consent of the Senate. The seven have staggered terms; one each shall be from the American diplomatic corps, the military, the press, Congress, and the law. Special security provisions are provided for the Board and its staff. The Board has the power to subpoena all documents needed to carry out its duties. Decisions and orders of the Board must be publicly printed.
TITLE II – SUPERVISION OF CLASSIFICATION
The Board is granted the authority to supervise the security classification system. It has the power to promulgate rules and regulations governing classification and to enforce adherence to them. Classification of documents is required to automatically expire; extension of classification requires officials to prove to the Board that further classification is needed to protect national security. The Board can investigate charges of over-classification from public and private persons. The President is given power to review the Board's decisions on classification.
The Board is required to administer the classification system according to principles in the legislation restricting secrecy to cases of demonstrable need.
TITLE III – CONGRESSIONAL ACCESS TO DOCUMENTS
A House of Congress, a Congressional Committee, or ten per cent of a House of Congress (10 Senators or 43 Representatives) can request the Board to release to it a document that the Executive has refused to release to Congress. In such cases, the Board holds a hearing of those requesting the documents and the agency or department refusing to release the documents. The Board weighs the Congressional need for information versus the claim of executive privilege and decides the issue in a written opinion. No documents of an advisory nature or less than two
years old are subject to release. Documents given to Congress can be subject to protective orders of the Board to retain their confidentiality. The President can modify these decisions. Board decisions and any Presidential modifications of them are subject to appeal to the US. Court of Appeals and then the Supreme Court.
TITLE IV – PUBLIC ACCESS TO DOCUMENTS
In order to increase direct access to government documents by the public, the bill liberalizes the Freedom of Information Act by:
1. Providing reasonable attorney's fees for those who successfully seek the release of documents in court under the Freedom of Information Act;
2. Granting the courts the power to review the reasonableness of a claim of executive privilege under the Freedom of Information Act;
3. Making declassification by the Board a prima facie case that the information being sought under the Freedom of Information Act was not subject to executive privilege.