November 27, 1973
Page 38117
FREEDOM OF INFORMATION
Mr. MUSKIE. Mr. President, a distinguished group of constitutional scholars, judges, lawyers, journalists, and congressional aides met for 2 days last June in the Chief Justice Earl Warren Conference on Advocacy to consider various problems relating to Government and the first amendment. Their conference, sponsored by the Roscoe Pound-American Trial Lawyers Foundation, has now issued its report in which are included 12 specific recommendations dealing with access to Government information. Many of the recommendations are similar to those contained in S. 1142, a bill I introduced in March of this year, to amend the Freedom of Information Act. I believe the conference's dozen recommendations and the helpful commentary on each one can be of assistance to the Congress as we consider ways to make the Freedom of Information Act a more effective instrument for open, responsive Government, and I ask unanimous consent that the recommendations be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
[Final Report: Annual Chief Justice Earl Warren Conference on Advocacy in the United States, June 8-9, 1973, sponsored by The Roscoe Pound-American Trial Lawyers Foundation]
RECOMMENDATIONS DEALING WITH ACCESS TO GOVERNMENT INFORMATION
XI
Government agencies should be required to respond to requests for access to public records within 10 to 20 days.
(Unanimously adopted).
Commentary: One of the major problems with the operation of the Freedom of Information Act is the time that it takes to answer a request through the administrative process. It is not uncommon for an agency to take from two weeks to six months to act upon a request under the Freedom of Information Act. As a result, the Act has been, to a large extent, futile and unused by the news media, which needs information on a deadline basis. By setting a time period of 10 to 20 days, this problem would be resolved.
A Chief Public Information Officer should be placed in each government agency to be responsible for handling Freedom of Information Act matters.
(Narrowly Adopted)
Commentary: A Public Information Officer (PIO) is sensitive to the needs and interests of both citizens and the news media in connection with obtaining information from the agencies.
However, some Conferees stated that the job of the PIO might be to make the agency look good in the eyes of the public and that a PIO would be reluctant to release information that showed the agency in an unfavorable light. Others believed that a PIO would restrict the flow of information in certain circumstances.
XIII
The Freedom of Information Act should apply to Congress.
(Adopted by substantial majority)
Commentary: If the Freedom of Information Act is to secure the people's right to know the actions of their government, this should extend to the legislative as well as the executive branch. Congress has attempted self-reform in connection with public access, but it is coming too slowly and in piecemeal fashion.
Some Conferees felt that legislators need confidentiality especially in mark-up sessions and in meetings with staff, and to make the Act apply to Congress would be to cut off some of the valuable internal discussions that take place.
XIV
The principles of the Freedom of Information Act should be extended to the states.
(Adopted unanimously)
Commentary: It was recognized that each state has different statutes and conditions governing access to state and local information. But information in the possession of state and local governments affects very closely the lives of the governed. Therefore, the Conferees felt that all states should adopt laws similar to the federal Freedom of Information Act so that the public will be informed about government actions at all levels.
XV
Courts should be permitted to assess the government for court costs including legal fees incurred by successful plaintiffs in taking Freedom of Information Act cases to court.
(Adopted by substantial majority)
Commentary: The public and members of the press, who are without great financial resources, have been unable to avail themselves of the judicial review provided by the Freedom of Information Act because of the high cost of legal fees. The costs can run more than $1,500 for even the simplest of cases. Public use of the Act would not normally result in financial gain and there are few individual citizens who can afford to bring a case under the Act under such circumstances. It was pointed out that only when an agency is subject to court review does it begin to comply with public access requirements in any meaningful way. Granting legal fees to a successful plaintiff was seen as a means of bringing more cases to court and thereby improving agency compliance. Paying legal fees also was seen as a penalty against agencies for wrongfully withholding documents.
XVI
Sections of government records which are the final work product of a professional, should be a public record and should not be withheld as an internal memorandum.
(Adopted by substantial majority)
Commentary: Under Section (b) (5) of the Freedom of Information Act "interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency" may be withheld from public disclosure. Large numbers of government documents contain factual information intertwined with opinions or recommendations and these documents – usually in the nature of inter- or intra-agency memoranda – often are withheld solely because of opinion content, not because of the facts.
When these documents are the end product of the work of a government professional, the final written work should be a public record regardless of the opinion content, thus making the public aware of the basis for government actions and permitting a meaningful evaluation of government decisions.
XVII
(Note: The following are interrelated recommendations.)
A. There should be special counsel, acceptable to the plaintiff, who will meet security clearance qualifications of the government, with the cost of clearance borne by the government.
B. Any attorney may seek a security clearance without connection to particular case so that the attorney may be able to participate in any future in camera proceeding involving classified documents while representing a plaintiff.
(Adopted by substantial majority)
Commentary: The obvious problems of allowing counsel to participate in camera so that, if extremely sensitive documents are determined by the court to be properly withheld, they should not be shown to persons not "cleared" to see them. To avoid this problem the Conferees adopted proposals to have attorneys "qualified" to participate in in camera inspection.
If special counsel is determined to be necssary, because of the government's argument that cases involving security information cannot be argued unless all participants are cleared for access to security information, the government should bear the cost of the clearance regardless of the outcome of the case.
XVIII
In order to withhold any part of any government document from the public, the government should justify the withholding of that part of the document, and should not merely assert that the specified document contains "secret" material.
(Adopted by substantial majority)
Commentary: One of the greatest problems in government classification of and refusal to release documents is overclassification. Normally, whenever any document contains any reference sentence, or phrase, deemed "secret" by the government the whole document is classified and any derivative documents which come from or refer to the original document receive the same classification as the initial document, even though they may not refer to the particular item which necessitated the classification. In this way, millions of documents which have no justification for classification, and which deserve only partial classification, are fully classified.
XIX
The court system should have the following powers:
A. To exercise a de novo review under the Freedom of Information Act of the classification of records which are withheld from the public in the name of national defense or foreign policy.
B. To examine, in camera, the content of such documents to determine the propriety of classification.
C. To order the release of classified information when the classification is considered improper.
(Adopted by substantial majority)
Commentary: This recommendation resulted from a discussion of the recent Supreme Court decision in Environmental Protection Agency v. Mink, 410 U.S. 73, (1973). In that decision the Court stated that, under the Freedom of Information Act, the district court could do no more than determine whether the document sought was classified by the agency pursuant to executive order.
If an agency certified by affidavit that the document was in fact classified, the Supreme Court held that the district court's review could not review or assess the propriety of the classification.
In reference to 5 U.S.C. 552 (b) (1) which permits withholding of matters that are specifically required by executive order to be kept secret in the interest of the national defense or foreign policy, Justice Stewart stated in his concurrence:
... It (Congress) has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document 'secret', however cynical, myopic, or even corrupt that decision might have been. 410 U.S. 73 at 95."
The preceding recommendation is an attempt to provide the courts with the means to review the decisions of agencies which withhold documents under Section (b) (1) of the Freedom of Information Act. Section (a) (3) of the Act directs that district courts determine cases de novo with the burden on the government agency to sustain its withholding. The recommendation would clarify the Congressional intent to apply the court's de novo review powers to matters under Section (b) (1). The question was raised whether a district court judge is competent to review questions of major national and international importance. The Conferees determined that, even though there might be some difficulties with court review, it would be better than the present system of unchallengeable Executive power in withholding government records in the name of national defense or foreign policy. The district court in its review should be able to develop standards of what should be classified without having to rely solely upon the standards provided by the President in current Executive orders.
XX
Adversary counsel should be present at in camera proceedings.
(Adopted by substantial majority)
Commentary: This is necessary to protect the rights of plaintiffs to guarantee that the court receives full benefit of arguments from both parties. If counsel for plaintiff is not allowed to participate in camera, he can only argue abstract theories of law before the court since he will not know the contents of the documents that the court is reviewing.
The Conferees discussed the proposal that a review by the court of the documents should be exclusively in camera, without counsel, but with government representatives that the judge deems necessary.
The Conferees felt strongly that counsel for plaintiff should be permitted to participate in proceedings in camera so that he can adequately advocate the position of his client. The Conferees did not find it an acceptable alternative to have in camera inspection conducted by the court and any outside expert that the court may wish to include. To do so might tend to deprive the plaintiff's counsel from knowing all of the facts so he can fully advocate his client's position.
XXI
Specific intent to harm the nation's security should be retained as a basic element of the federal espionage laws.
(Adopted unanimously)
Commentary: U.S. Senate Bill 1400 (93rd Congress, First Session, an administration-sponsored recodification of the U.S. Criminal Code, would make release of classified information a criminal offense whether or not the releaser had intent to harm the United States or had reason to believe the release would be harmful. The Conference agreed that a person should be guilty of the crime of espionage only when specific intent to harm the nation, or reason to believe there would be harm, could be clearly shown.
The Conference agreed that the President should establish rules for protection of security informatlon within the administrative structure of the Executive Branch but that the rules would have no force of law outside the Executive Branch. The Conference discussed and defeated a recommendation on whether Congress should by statute, establish a system for classification and protection of national security information to include penalties for overclassification and underclassification.
XXII
A government agency should be established by Congress, independent of the Executive Branch, to review national security documents and report to a congressional committee on the use and abuse of the classification system and on the operations of the Freedom of Information Act.
(Adopted overwhelmingly)
Commentary: This agency would function in much the same way as the General Accounting Office, being responsible to Congress but not acting as a super-agency whose judgments would be binding on Congress or the courts.
At present, there is no method of overseeing the system for classifying and protecting national security information, and the major implementation of the Freedom of Information Act covering non-classified documents is handled by the small staff of the Foreign Operations and Government Information Subcommittee.