May 28, 1974
Page 16390
FREEDOM OF INFORMATION ACT AMENDMENT NO. 1356
(Ordered to be printed and to lie on the table.)
Mr. MUSKIE (for himself, Mr. ERVIN, Mr. JAVITS, Mr. SYMINGTON, Mr. HART, Mr. CHILES, Mr. HUMPHREY, Mr. McGOVERN, Mr. GRAVEL, Mr. CLARK, Mr. TUNNEY, Mr. METCALF, Mr. MONDALE, Mr. RIBICOFF, Mr. MATHIAS, Mr. HATHAWAY,
Mr. PERCY, and Mr. BURDICK) submitted an amendment intended to be proposed by them jointly to the bill (S. 2543) to amend the Freedom of Information Act.
Mr. MUSKIE. Mr. President, the Freedom of Information Act provides that agencies are permitted to withhold from the public classified information relating to national defense or foreign policy (exemption 1). The amendment I submit today to S. 2543 would in no way alter that protection for sensitive military or diplomatic data. It would only provide that suits contesting the propriety of agency claims under the first exemption would be handled by Federal judges in the same way as cases challenging the validity of claims under the eight other permissive exemptions from the act's disclosure standards.
The purpose of the deletion I propose is to preserve for judges the freedom to conduct complete de novo review of Freedom of Information Act cases in which information is withheld by agencies under the claim that it falls within exemption 1 of the act, permitting withholding for material "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy" – that is, classified information. The language of section (b) (4) (B) (ii) would, if left in the statute, give a special status to exemption 1 material, unlike that accorded any other claimed Government secrets. The subsection would substitute for de novo judicial review of the Government's case for withholding (with the burden on the Government to sustain its action) an arrangement shifting that burden to a judge to decide whether or not the contested secrecy compiled with the undefined "reasonableness" standard.
If an agency head certified that classified material being withheld is properly classified, the judge – even after in camera examination – may only reject such certification by finding the withholding to be "without a reasonable basis" under the criteria of the Executive order authorizing Government-wide classification practices. There is no definition in the bill or the accompanying report of what such a reasonable basis would be.
I believe there is no reason to require the courts to accord such special status to cases involving classified secrets, as opposed to other types of sensitive information the Government seeks to withhold. The standard of full de novo review should be the same in all Freedom of Information Act cases.
Mr. President, I ask unanimous consent that a detailed memorandum further explaining the provisions of S. 2543 and my objections to subsection (b) (4) (B) (ii) be included in the RECORD at this point.
There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:
BACKGROUND
On January 22, 1973, in Environmental Protection Agency v. Patsy Mink, the Supreme Court held that the Freedom of Information Act was so worded as to bar in camera judicial examination of documents which officials certified were exempt from disclosure as being "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." (The first of the nine permissive exemptions in the Act.) "We do not believe," Justice White held for the six-member majority, "that Exemption 1 permits compelled disclosure of documents ... classified pursuant to this Executive Order. Nor does the Exemption permit in camera inspection of such documents to sift out socalled 'non-secret components.' Obviously, this test was not the only alternative available. But Congress chose to follow the Executive's determination in these matters and that choice must be honored."
Later, in his opinion, Justice White added: "Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures – subject only to whatever limitations Executive privilege may be held to impose upon such congressional ordering." In his concurring opinion Justice Stewart held that 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."
Responding to this decision – and the effect it had of denying Representative Mink and her co-plaintiffs access to classified information dealing with the controversy over the nuclear tests in the Aleutians – Senator Muskie and Representative Moorhead jointly introduced legislation which would have required in camera inspection of documents claimed to be exempt from disclosure under any of the nine exemptions. In the case of Exemption 1 claims, the original bill would have had judges, after in camera examination, "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."
The thrust of this proposal, and of all the considerable dissatisfaction with the Mink ruling, was the conviction that someone other than the classifiers themselves – i.e., judges – must look behind the fact of classification to weigh its validity.
In the version of the bill passed by the House the requirement for in camera inspection became specific permission ("may examine the contents of any agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b)."). Additionally, the language of the first exemption was changed by the insertion of the underlined words to make the Act not apply to matters: "(1) authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy."
The sponsors of the House bill (approved 383-8 on March 14, 1974) felt they had accomplished their purpose of overruling the Mink decision. John Moss, who sponsored the original FOI Act, said on the floor, "Two amendments to the Act included in this bill are aimed at increasing the authority of the courts to engage in a full review of agency action with respect to information classified by the Department of Defense, the Department of State, and other agencies under Executive order authority ... It is the intent of the committee that the Federal courts be free to employ whatever means they find necessary to discharge their responsibility. This was also the intent in 1966 when Congress acted, but these two amendments contained in the bill before you today make it crystal clear." (Emphasis added.)
Provisions of S. 2543
As reported out of the Subcommittee on Administrative Practices and Procedures, S. 2543 was substantially parallel to the House provisions to permit in camera review without telling judges how to conduct such review nor, in any detail, what weight to accord Executive Branch testimony as to the legitimacy of a classification. "In such a case," the Subcommittee version of the bill said, "the court shall consider the case de novo, with such in camera examination of the requested records as it finds appropriate to determine whether such records or any part thereof may be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action." (Emphasis added.)
Additionally, S. 2543, as reported by both Subcommittee and Committee, amends exemption by adding the underlined words so that it reads: "(1) specifically required by an Executive order or statute to be kept secret in the interest of national defense or foreign policy and are in fact covered by such order or statute." Even if the wording is different from the House bill in detail, the purpose of S. 2543, before amendment in full Committee, was obviously identical to the purpose of the House authors – to overrule Mink and leave the courts free to conduct in camera scrutiny of classified material, if judges found such examination necessary to their rendering a decision on the validity of the exemption claim.
Indeed, the draft report language in the Committee Print on S. 2543 of January 15, 1974, said, "By expressly providing for in camera inspection regardless of the exemption invoked by the government, S. 2543 would make clear the congressional intent – implied but not expressed in the original FOIA – as to the availability of in camera examination in all FOIA cases. This examination would apply not just to the labeling but to the substance of the records involved." (P. 18, emphasis added.) Later (p. 28), the draft report added, "It is essential ... to the proper workings of the Freedom of Information Act that any executive branch review, itself, be reviewable outside the executive branch. And the courts – when necessary, using special masters or expert consultants of their own choosing to help in such sophisticated determinations – are the only forums now available in which such review can properly be conducted.
While there is no indication in the full Committee report (No. 93-854 of May 18, 1974) of any roll-call or other vote in Committee changing the Subcommittee draft, S. 2543 as unanimously approved is a clean bill with an entire new subsection, 4(B) (ii), which would radically change the circumstances under which in camera review of classified material could be conducted. The new language in Exemption (1) is retained and the draft report language from page 28 now appears on page 31, but the effect of the new subsection is to foreclose de novo review of Exemption 1 cases and to introduce a new and special standard for court consideration of classified material.
When Exemption 1 is asserted, the bill provides, "a court may review the contested document in camera if it is unable to resolve the matter on the basis of affidavits and other information submitted by the parties. In conjunction with its in camera examination, the court may consider further argument, or an ex parte showing by the Government, in explanation of the withholding. If there has been filed in the record an affidavit by the head of the agency certifying that he has personally examined the documents withheld and has determined after such examination that they should be withheld under the criteria established by a statute or Executive order ... the court shall sustain such withholding unless, following its in camera examination, it finds the withholding is without a reasonable basis under such criteria." (Emphasis added.)
The report on S. 2543 is frank to admit that these sentences scrap the premise that classified material can be treated like other records claimed to be exempt from disclosure. On page 16, the report says:
"This standard of review does not allow the court to substitute its judgment for that of the agency – as under a de novo review – but neither does it require the court to defer to the discretion of the agency, even if it finds the determination not arbitrary or capricious. Only if the court finds the withholding to be without a reasonable basis under the applicable Executive order or statute may it order the documents released." (Emphasis added.)
In short, before conducting an in camera examination of classified material, judges may weigh opposing arguments. Once they proceed to the in camera scrutiny, however, the Government gets special permission to make an ex parte showing in its own behalf. And if, for example, the head of the Export-Import Bank, where 13 officials now have classification authority or of the United States Information Agency (where 387 officials have original classification authority) or of any of the 23 other government agencies or 11 designated offices in the Executive Office of the President is willing personally to vouch for the propriety of a secrecy marking, judges may only overrule that voucher on the basis of an undefined reasonableness standard.
Objections to section 4(B) (ii) of S. 2543
1. The provisions of 4(B) (ii) are so weighted in favor of classification markings as to make it almost impossible for judges, even after conducting in camera review, to overrule any secrecy stamp the government wishes to keep in place. When a plaintiff seeks classified material, he is automatically at a disadvantage in arguing his case in that he cannot know the contents of the records he seeks and cannot show affirmatively that the public might benefit from their disclosure. In the FOIA generally, the burden of proof to sustain withholding is put on the government, but in dealing with classified material, the requester may have no effective way to dispute a government assertion: "It's secret, because it's secret." Thus, it is important for judges to use all the resources they can summon to judge the delicate matter of secrecy. S. 2543 would oblige them to give extra weight to official sources and, by inference, make it harder for them to employ outside experts, if such could be found.
2. This heavy presumption given official testimony perpetuates the almost mythical status of classified information as a category of secret exempt from the regular provisions of the FOIA. Review, the report makes clear, would not be de novo in Exemption 1 cases; it would be a special animal, as though documents marked Secret by the General Services Administration were automatically entitled to different consideration than those claimed to be "geological and geophysical information and data" by the Federal Power Commission (Exemption 9) or "trade secrets" by the Patent Office (Exemption 4).
3. It is inappropriate – if not obnoxious – to provide judges such detailed instructions on how to conduct their inquiry in a case before them. One wonders how the authors of 4(B) (ii) would react to statutory stipulations on the evidence admissible in a closed hearing on an accused juvenile delinquent or to such a weighting of the scales in favor of the government in an anti-trust proceeding. One also wonders at the apparent contempt shown for Federal judges in so narrowly demarcating the bounds of their conduct in cases which might conceivably deal with information on codes used in the Civil War – a subject area still treated as classified.
Recommendation
Section 4(B) (ii) should be struck from S. 2543. Without it, judges will be able – though not required – to conduct whatever in camera review of classified documents they may find necessary to determining the propriety of a classification marking. They will be able to accord – and it should be assumed that faced with such a delicate task, they will accord – whatever weight is fitting to government arguments in favor of continued secrecy. But they will also be able, should they wish, to seek and give credence to the impartial counsel of qualified outsiders, not plaintiffs or defendants, to help them with their task. They will, in short, be able to behave like judges.