November 21, 1974
Page 36875
Mr. ERVIN. Mr. President, the executive agencies of the U.S. Government remind me of a young lawyer in Charlotte, N.C. Years ago he brought suit for damages against Western Union Telegraph Co. Mr. C. W. Tillotson, a very eminent lawyer, represented the telegraph company, and he filed a motion to require the plaintiff to make his complaint more specific.
The judge who had to pass on the motion happened to see this young lawyer and suggested to him that he go ahead and make his complaint more specific in the respects that had been asked for. The young lawyer told the judge he would not do it.
He said:
If Mr. Tillotson is going to want me to tell him what this lawsuit is all about he is just a damn fool.
Every time Congress or the American people or the American press seek information from the executive branch of Government they have an equivalent reply in most cases from the executive branch of the Government.
For some reason that begs understanding, the executive branch of the Government thinks that the American people ought not to know what the Government is doing.
I have been a believer in the right of the people to know what the truth is about the activities of their Government. For that reason I supported the original Freedom of Information Act of 1966.
We had a good bill when we started out. But, as a result of the limitations and exemptions that were inserted in the bill and, as a result of the reluctance of the executive branch of the Government to observe that part of the bill which survived, the existing law is totally ineffective for the purpose that was sought to be accomplished.
Now, the distinguished Senator from Massachusetts just stated what I think is the truth about this matter. Every one of the objections which were set forth by the President in his veto message was considered at length by the Senate committee during the original hearings on the bill. They were considered minutely and carefully by the conference committee. Every one of these legislators who, after all, are the people who are supposed to enact our laws, came up with, a majority of them came up with, the conclusions that these objections did not merit the defeat of the bill or the alteration of the bill.
I ask unanimous consent that a copy of the letter written on October 31, 1974, by the distinguished Senator from Maryland (Mr. MATHIAS), the distinguished Senator from New Jersey (Mr. CASE), the distinguished Senator from New York (Mr. JAVITS), the distinguished Senator from Tennessee (Mr. BAKER), the distinguished Senator from Massachusetts (Mr. KENNEDY), the distinguished Senator from Maine (Mr. MUSKIE), the distinguished Senator from Michigan (Mr. HART), and myself be inserted in the RECORD at this point.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
WASHINGTON, D.C.,
October 31, 1974.
DEAR COLLEAGUE: We are enlisting your support to override President Ford's veto of the Freedom of Information Act Amendments (H.R. 12471) when the Congress returns from the current recess. We believe that this veto is unjustified and urge that the legislation be enacted as previously approved by Congress.
The 1966 Freedom of Information Act has worked neither efficiently nor effectively. There are loopholes in the statute. Agencies have engaged in delaying and obstructionist tactics in responding to requests for government information. The Freedom of Information Act Amendments will facilitate public access to information, while preserving confidentiality where appropriate.
The President has proposed numerous specific changes to this legislation. Similar proposals were made by government agencies time and again over the past year and a half. These proposals were considered, they were debated, and in the end they were rejected during the legislative process.
The President has suggested that the Freedom of Information Act Amendments pose a threat to our national security because they do not sufficiently restrict federal court review of executive classification decisions. As an alternative, the President has proposed that courts be allowed to require disclosure of classified documents only if the agency had no reasonable basis whatsoever to classify them. We do not believe a secrecy stamp should be that determinative.
We believe that the approach taken in the Amendments is the correct one. Federal courts should have the authority to review agency classification of documents and make their findings on the weight of the evidence.
The Executive writes the classification rules, since documents are classified under an Executive order, not a statute. A federal judge should be empowered to review classification decisions as an objective umpire, and he should determine whether Executive branch officials have complied with their own rules. This is consistent with administrative due process and the tradition of checks and balances. We are confident that the legislation poses no threat to this nation's security interests.
The President has also decried the possibility of an administrative burden placed on law enforcement and other agencies by the new amendments, although we are pleased to note that he did not object to the opening of some new investigatory materials to the public. We believe, however, that the additional delays, charges, and exclusions requested by the President do more than alleviate administrative burdens – they would effectively bar access to some records by the press, the non-affluent, and the scholar.
Freedom of Information is too precious a right to be sacrificed to false economy. Like due process, it may carry some cost; but that is a cost to be borne by all Americans who would keep or government open and accountable and responsible.
Government agencies universally opposed original enactment of the Freedom of Information Act in 1963, and they likewise opposed enactment of amendments to the Act this year. As a practical matter, with our heavy workload for the remainder of this session and continuing agency hostility to any strengthening of the Information Act, failure to override the President's veto next month will result in postponement of any improvements to the Act for a substantial period of time.
We have too recently seen the insidious effects of government secrecy run rampant. Enactment of HR. 12471 can do much to open the public's business to public scrutiny, while providing appropriate safeguards for materials that should remain secret. We therefore urge you to join us when Congress returns in voting to enact the Freedom of Information Act Amendments over the President's veto.
Sincerely,
Charles McC. Mathias, Jr., Clifford P. Case, Jacob K. Javits, Howard H. Baker, Jr., Edward M. Kennedy, Edmund S. Muskie, Philip A. Hart, Sam J. Ervin, Jr.