March 8, 1973
Page 6929
By Mr. MUSKIE (for himself, Mr.BIBLE, Mr. CHILES, Mr. EAGLETON, Mr. GRAVEL, Mr. HART, Mr. HUGHES, Mr. HUMPHREY, Mr. JAVITS, Mr. KENNEDY, Mr. METCALF, Mr. MONDALE, Mr. PERCY, and Mr. RIBICOFF)
S 1142. A bill to amend section 552 of title 5, United States Code, known as the "Freedom of Information Act." Referred jointly, by unanimous consent, to the Committee on the Judiciary and the Committee on Government Operations.
FREEDOM OF INFORMATION ACT
Mr. MUSKIE. Mr. President, I introduce today a bill to amend the Freedom of Information Act of 1967 and ask unanimous consent that it be referred to the Committee on the Judiciary and the Committee on Government Operations.
The PRESIDING OFFICER. Without objection, it is so, ordered.
Mr. MUSKIE. Mr. President, these amendments, which are cosponsored by 13 Senators from both sides of the aisle respond to a call many of us have heard for full implementation of the people's right to know the way in which they are governed. This bill, the result of intensive investigation in the 92d Congress by Representative WILLIAM MOORHEAD's Subcommittee on Foreign Operations and Government Information, is a major contribution to answering that demand.
We are the best-informed of nations and the worst-informed. Americans in 1973 have access to more data, statistics, studies and opinions than the citizens of any other democracy, including their own, have ever had before. In theory, our people have available to them all the information they need to make wise and intelligent choices on public policy.
In practice, however, the flow of vital information from the governors to the governed is controlled and restricted by considerations that are alien to our concept of open democracy. The Executive asserts the power to withhold from the people and from the Congress some or all of the expert advice it receives and acts on. A President or his spokesman can make public those facts which best support a decision he has already made and can conceal arguments for alternatives he has rejected.
One branch of the Armed Forces can keep its research secret from the others, putting its competitive drive for appropriations ahead of the public interest in efficiency. Officials in charge of regulating prices or communications or pollution or consumer safety can be subjected to secret influences whose power to affect decisions is increased by their ability to operate behind closed doors and to lock their advice into closed files.
Arguments made in private may be persuasive. They may even be correct. But where the public interest is at stake, argument must be open so that it can be rebutted. To be enforceable in a society built on trust, decisions must be reached in a manner that permits all those concerned to have equal access to the decision makers.
These amendments go far to remove obstructions which many Federal agencies have put in the way of those citizens who seek to know. They provide that judges shall question the reasons asserted by an executive agency for claiming the privilege of secrecy for its records and shall examine the records themselves to see how reasonable each claim is. They affirm the right of Congress to have access to the information on which the Executive deliberates and acts.
I am proud to bring this legislation before the Senate at the same time it goes before the other body. Together we can examine the problems which have arisen in implementing the sound purpose of the Freedom of Information Act and can work to strengthen that purpose and our democracy.
Mr. President, I ask unanimous consent that an analysis of these amendments and the text of the bill be printed in the CONGRESSIONAL RECORD at this point.
There being no objection, the analysis and bill were ordered to be printed in the RECORD, as follows:
ANALYSIS OF AMENDMENTS TO THE FREEDOM OF INFORMATION ACT OF 1967
Amendments to Section 552(a)
(1) agencies would be required to "publish and distribute" their opinions made in the adjudication of cases, policy statements and interpretations adopted, and administrative staff manuals and instructions to staff that affect the public, rather than merely making them "available for public inspection and copying," as provided in the present law.
(2) agencies would be required to respond to requests for records which "reasonably describes such records." This language is substituted for the term "identifiable records," which has been used by the bureaucracy in many cases to avoid making information available.
(3) agencies would be required to respond to requests under the Act within 10 days (excepting Saturdays, Sundays, and legal public holidays) after receipt of the request and within 20 days (with the same exceptions) on administrative appeals following denials to the requesting party.
These time periods are the result of a 1971 study and recommendations on improving the operation of the Act as adopted by the Administrative Conference of the United States and would provide a positive mechanism to correct one of the most glaring deficiencies uncovered during oversight hearings – that of agency stalling and foot-dragging tactics to avoid public disclosure.
(4) the Government could be required by the courts to pay "reasonable attorney fees and other litigation costs" of citizens who successfully litigate cases under the Act. This amendment is directed toward another major deficiency of the present law revealed during the hearings – the high costs to the average citizen when attempts to obtain records under provisions of the Act are frustrated by arbitrary or capricious acts of the bureaucracy or by foot-dragging tactics. Such assessment would be at the option of the court and has been successfully used in numerous civil rights cases in past years.
(5) agencies would be required to file answers and other responsive motions to citizens' suits under the Act within 20 days after receipt. Under normal rules of Federal civil procedure, the Government is given 60 days to file such responses, although the private citizen has only 20 days to respond to Government motions; this amendment would plug a major loophole used by the Government and revealed in the hearings, involving cases where repeated filing of delaying motions by the Government stalled court consideration of Freedom of Information Act cases for as long as 140 days. Such stalling tactics make a mockery of the law and often make the information, if finally made available to the citizen, virtually useless to him.
(6) new provisions proposed to Section 552(a) would clarify the original intent of Congress in connection with the interpretation of the "de novo" requirements placed on the courts in their consideration of cases under the Act. Such amendment is made necessary by the Supreme Court's decision in the case of Mink v. EPA, (410 U.S. _____) decided on January 22, 1973, when the Court held that judges may not examine in camera documents in dispute where the Government claims secrecy by virtue of exemption 562(b) (1), dealing with the national defense or foreign policy, and are not required to exercise such in camera judgment in cases involving exemption 552(b) (5), dealing with inter-agency or intra-agency memorandums. The amendments make it clear that Congress intended and still intends that "de novo" as used in the law means that since the burden of proof for withholding is on the Government, courts must examine agency records in camera to determine if such records as requested by the plaintiff in a suit under the Act, or any part thereof, should be withheld under any of the nine permissive exemptions of 552(b). It also makes it clear in cases where exemption 552(b) (1) is claimed by the agency, the court must examine such classified records to see if they are a proper exercise of such Executive Order classification authority and that disclosure of the information requested would actually be "harmful to the national defense or foreign policy of the United States."
Amendments to Section 552(b)
(1) permissive exemption (b) (2) would be amended to require disclosure of information about an agency's internal personnel rules and internal personnel practices, so long as such disclosure would not "unduly impede the functioning of such agency."
(2) permissive exemption (b) (4) would be amended to modify the exemption for trade secrets by requiring that such types of information be truly privileged and confidential, as is already provided in the case of commercial or financial information under this exemption.
(3) permissive exemption (b) (6) would be amended to limit its application to medical personnel "records," instead of "files" as in the present law; this would close another loophole in the Act whereby releaseable information is often commingled with other types of information in a single "file", and therefore withheld.
(4) permissive exemption (b) (7) would also be amended to substitute the word "records" for "files" as in (b) (6) for the same reason – to curb agency commingling of information to avoid public disclosure. The amendment would also narrow the exemption to require that such records be compiled for a "specific law enforcement purpose, the disclosure of which is not in the public interest." It also enumerates certain categories of information that cannot be withheld under this exemption such as scientific tests, reports, or data, inspection reports relating to health, safety, or environmental protection, or records serving as a basis for a public policy statement of any agency, officer, or employee of the United States, or which serve as a basis for rule-making by an agency.
Amendment to Section 552 (c)
(1) the amendment proposed to Section (c) clarifies the position that Congress, upon written request to an agency, be furnished all information or records by the Executive that is necessary for Congress to carry out its functions. Language in the present law merely states that the Freedom of Information Act does not authorize "withholding of information from Congress."
New Section 552 (d)
(1) establishes a mechanism for Congressional oversight by requiring annual reports from each agency on their record of administration of the Act, requiring certain record of administration of the Act, requiring certain types of statistical data, changes in their regulations, and similar types of information.
S. 1142
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. (a) The fourth sentence of section 252 (a) (2) of title 5, United States Code, is amended by striking out "and make available for public inspection and copying" and inserting in lieu thereof ", promptly publish, and distribute (by sale or otherwise) copies of".
(b) Section 552(a) (3) of title 5, United States Code, is amended by striking out "on request for identifiable records made in accordance with published rules stating the time, place, fees, to the extent authorized by statute, and procedure to be followed," and inserting in lieu thereof the following: "upon any request for records which (A) reasonably describes such records, and (B) is made in accordance with published rules stating the time, place, fees, to the extent authorized by statute, and procedures to be followed,".
(C) Section 552 (a) of title 5, United States Code, is amended by adding at the end thereof the following new paragraph:
"(5) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall–
"(A) determine within ten days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor;
"(B) in the case of a determination not to comply with any such request, immediately notify the person making such request that such person has a period of twenty days (excepting Saturdays, Sundays, and legal public holidays), beginning on the date of receipt of such notification, within which to appeal such determination to such agency; and
"(C) make a determination with respect to such appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal.
Any person making a request to an agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with subparagraph (A) or subparagraph (C) of this paragraph. Upon any determination by an agency to comply with a request for records, such records shall be made available as soon as practicable to such person making such request.”
(d) (1) The third sentence of section 552 (a) (3) of title 5, United States Code, is amended by inserting immediately after "the court shall determine the matter de novo" the following: "including by examination of the contents of any agency records in camera to determine if such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) and the burden is on the agency to sustain its action."
(2) Section 552(a) (3) of title 5, United States Code, is amended by inserting the following new sentence immediately after the third sentence thereof: "In the case of any agency records which the agency claims are within the purview of subsection (b)(1), such in camera investigation by the court shall be of the contents of such records in order to determine if such records, or any part thereof, cannot be disclosed because such disclosure would be harmful to the national defense or foreign policy of the United States."
(e) Section 552(a) (3) of title 5, United States Code, is amended by adding at the end thereof the following new sentence: "Notwithstanding any other provision of law, the United States or an officer or agency thereof shall serve an answer to any complaint made under this paragraph within twenty days after the service upon the United States attorney of the pleading in which such complaint is made. The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the United States or an officer or agency thereof, as litigant, has not prevailed."
SEC. 2 (a) Section 552(b) (2) of title 5, United States Code, is amended by inserting "internal personnel" immediately before "practices", and by inserting "and the disclosure of which would unduly impede the functioning of such agency" immediately before the semicolon at the end thereof.
(b) Section 552(b) (4) of title 5, United States Code, is amended by inserting "obtained from a person which are privileged or confidential" immediately after "trade secrets", and by striking out, "and" the second time that it appears therein and by inserting in lieu thereof "which is".
(c) Section 552(b) (6) of title 5, United States Code, is amended by striking out "files" both times that it appears therein and inserting in lieu thereof "records".
(d) Section 552(b) (7) of title 5, United States Code, is amended to read as follows:
"(7) investigatory records compiled for any specific law enforcement purpose the disclosure of which is not in the public interest, except to the extent that–
"(A) any such investigatory records are available by law to a party other than an agency, or
"(B) any such investigatory records are–
"(i) scientific tests, reports, or data,
"(ii) inspection reports of any agency which relate to health, safety, environmental protection, or
“(iii) records which serve as a basis for any public policy statement made by any agency or officer or employee of the United States or which serve as a basis for rule-making by any agency”.
SEC. 3. Section 552 (c) of title 5, United States Code, is amended to read as follows:
"(c) (1) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.
"(2) (A) Notwithstanding subsection (b), any agency shall furnish any information or records to Congress or any committee of Congress promptly upon written request to the head of such agency by the Speaker of the House of Representatives, the President of the Senate, or the chairman of any such committee as the case may be.
" (B) For purposes of this paragraph, the term 'committee of Congress' means any committee of the Senate or House of Representatives or any subcommittee of any such committee or any joint committee of Congress or any subcommittee of any such joint committee."
SEC. 4. Section 552 of title 5, United States Code, is amended by adding at the end thereof the following new subsection:
"(d) Each agency shall, on or before March 1 of each calendar year, submit a report to the Committee on Government Operations of the House of Representatives and the Committee on Government Operations of the Senate which shall include–
"(1) the number of requests for records made to such agency under subsection (a);
"(2) the number of determinations made by such agency not to comply with any such request, and the reasons for each such determination;
"(3) the number of appeals made by persons under subsection (a) (5) (B);
"(4) the number of days taken by such agency to make any determination regarding any request for records and regarding any appeal;
"(5) the number of complaints made under subsection (a) (3);
"(6) a copy of any rule made by such agency regarding this section; and
"(7) such other information as will indicate efforts to administer fully this section during the preceding calendar year."
SEC. 5. The amendments made by this Act shall take effect on the 90th day after the date of enactment of this Act.
Mr. KENNEDY. Mr. President; James Madison once wrote:
Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.
These words were quoted upon introduction and reporting of what is now the Freedom of Information Act, legislation intended to provide the citizenry with the "means of acquiring" information from its government.
Congress' overriding concern in passing the Freedom of Information Act – FOIA – was that disclosure of information be the general rule, not the exception. The act reversed previous law and practice in that it provided that all persons have equal rights of access and that the burden be placed on government to justify refusal to disclose information, not the person requesting it.
Finally, the act allowed persons wrongfully denied access to documents the right to seek injunctive relief in the courts.
After almost 6 years of operation the FOIA has not fulfilled Congress’ objectives or aspirations. Bureaucrats who simply feel more comfortable laboring behind closed doors and officials who desire to cover up inefficiency, ineffectiveness, laziness, and even corruption have joined to frustrate the intent and circumvent the mandates of the act. Vague or ambiguous exemptions have been stretched to shield disclosure of even the most innocuous documents, while delays and runarounds are employed to dampen the ardor of public inquirers.
Clearly the time has come for a new look and update of the FOIA. The amendments developed from extensive hearings in a House Government Operations Subcommittee during the last Congress provide an excellent starting point to initiate this revision. I am pleased to join with Senator MUSKIE and others today in introducing these amendments.
The original FOIA was developed from extensive hearings and deliberations by the Senate Subcommittee on Administrative Practice and Procedure, which I now chair. Because the amendments being introduced here cover not only areas presently included in the FOIA, but also matters relating to disclosure of previously classified materials and to access by Congress to documents in agency files, a joint referral has been arranged to both the Judiciary and the Government Operations Committees. I will look forward to coordinating the efforts of my subcommittee with those of Senators MUSKIE and ERVIN, so that we might develop unified positions with regard to the important problems addressed by these amendments.