October 17, 1974
Page 36083
FREEDOM OF INFORMATION ACT
Mr. MUSKIE. Mr. President, the Senate and House have sent to the President a bill to insure greater openness and public knowledge about the way our Government is run. The amendments to the Freedom of Information Act of 1966 are a most significant product of this post-Watergate period because they will bring the people closer to the materials, facts and documents on which officials in the Government base their decisions and policies.
That legislation may be in jeopardy. While it was sent to the President on October 9, we must still await a decision whether he will sign the measure into law or return it to the Congress with a veto. Unfortunately, should the Congress recess before midnight Saturday, President Ford could simply let the bill sit on his desk to die by the pocket veto.
This would be a serious blow to our Government as we attempt to restore public confidence through more open processes.
Congress cannot override a pocket veto. Instead we would have to wait until next session and begin again with a new bill.
We must not delay the people's opportunity to know more about their Government. Already that right has been eroded by too little candor and too much secrecy.
It would be a regrettable irony if a decision to deny the people greater access to their Government is decided without further debate behind closed doors of the White House by a new administration, only recently pledged to openness and candor.
I want to take this opportunity to extend my congratulations and appreciation to my friend and able colleague the senior Senator from Massachusetts (Mr. KENNEDY) for the dedicated contribution he has made to these important improvements of the Freedom of Information Act.
No one can underestimate the diligence and concern with which he, the other members of the Committee on the Judiciary, and the Senate and House conferees have worked to insure that the changes made in the 1967 act will, in fact, further the vital work of making Government records readily available for public scrutiny and making the conduct of the public business a subject for informed public comment.
This has been a very rare and important opportunity to correct the defects we discovered in the administration of the act during joint hearings I conducted with Senator KENNEDY and Senator ERVIN last year. In many important procedural areas the conference report on H.R. 12471 will close loopholes through which agencies were evading their duties to the public right to know.
The price of a court suit has too long been a deterrent to legitimate citizen contests of Government secrecy claims. This legislation will enable courts to award costs and attorneys' fees to plaintiffs who successfully contest agency withholding of information. Additionally, these changes will require agencies to respond promptly to requests for access to information. They will help bar the stalling tactics which too many agencies have used to frustrate requests for material until the material loses its timeliness to an issue under public debate. And they provide long-overdue assurance that agencies will report to the Congress on their policies and actions in handling Freedom of Information Act cases.
In one major respect this legislation responds to a weakness in the existing law which was illustrated in the case of Environmental Protection Agency against Patsy T. Mink, and others, decided by the Supreme Court on January 22, 1973.
In that case, 32 Members of Congress, bringing suit as private citizens, sought access to information dealing with the atomic test on Amchitka Island in Alaska.
A U.S. court of appeals directed the Federal district judge trying the case to review the documents in camera to determine which, if any, should be released. This seemed an appropriate step since the act now provides for court determination of the validity of any executive branch withholdings.
The Supreme Court was asked to review that order and reached a decision in that case which was somewhat tortuous. The Court held that in camera review of material classified for national defense or foreign policy reasons was not permitted by the act. The basis of this decision was the exemption of the act which permits withholding of matters authorized by Executive order to be kept secret in the interests of national defense or foreign policy.
The Supreme Court decided that once the executive had shown that documents were so classified, the judiciary could not intrude. Thus, the mere rubber-stamping of a document as "secret" could forever immunize it from disclosure. All the Court could determine was whether it was so stamped.
The measure before the President would specifically overrule that holding. And it is that provision which seems to cause him the greatest difficulty.
When the Freedom of Information Act amendments were considered by the Senate, I offered a change which would authorize the courts to conduct in camera a review of documents classified by the Government to determine if the public interest would be better served by keeping the information in question secret or making it available to the public.
My amendment was a response to the increased tendency of former administrations to use national security to shield errors in judgment or controversial decisions.
It was a response as well to the mounting evidence, more recently confirmed in tapes of Presidential conversations, that national security reasons were deliberately used to block investigations of White House involvement in Watergate.
Finally that amendment reflects confidence in the Federal judiciary to review determinations to classify secret documents and to decide whether the greater public interest rests with public disclosure or continued protection.
I cannot understand why we should trust a Federal judge to sort out valid from invalid claims of executive privilege in litigation involving criminal conduct, but not trust him or his colleagues to make the same unfettered judgments in matters allegedly connected to the conduct of national defense or foreign policy.
As a practical matter, I cannot imagine that any Federal judge would throw open the gates of the Nation's classified secrets, or that they would substitute their judgment for the head of an agency without carefully weighing all the evidence in the arguments presented by both sides. It is doubtful that there is any Federal judge in the country that would not give weight to an affidavit from the head of an agency which argues the merits for classifying a particular document without giving that affidavit a special status.
If we construct the manner in which courts may perform this vital review function, we make the classifiers privileged officials, almost immune from the accountability we insist on from their colleagues.
An editorial in the New York Times today refers to reservations the President reportedly has expressed about this legislation on national security grounds.
I believe as the editorial states that the Congress has "made an extraordinary legislative effort to balance the public's right to information with the Government's need to protect its legitimate secrets," and I would strongly urge the President to sign this important bill into law.
If he cannot sign it, he should so state his reasons and offer the Congress an opportunity to accept or reject the veto by a two-thirds vote in both Houses.
I ask unanimous consent that the October 17, 1974, New York Times editorial, "More Open Government," be printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
[From the New York Times, Oct. 17, 1974]
MORE OPEN GOVERNMENT
The Freedom of Information Act was passed by Congress in 1966 on the assumption that the public should have broad right of access to information about the workings of its Government.
The act hasn't functioned particularly well since it went into effect because of the Federal Government's use of a variety of obstructionist tactics ranging from forcing those seeking information into long and costly litigation to plain old bureaucratic foot-dragging.
Congress has now passed and sent to the White House a number of amendments designed to make the law work more effectively, including a provision that would subject to judicial review decisions on the classification of information. Other amendments would open up noncriminal investigatory files for the first time and would award attorney's fees to successful public litigant.
The Department of Justice is reported to have recommended that President Ford veto this legislation. The President himself has reportedly expressed reservations about the bill on national security grounds.
Mr. Ford's concern appears misplaced. Congress, in developing the new amendments, made an extraordinary legislative effort to balance the public's right to information with the Government's need to protect its legitimate secrets. Unless the President feels that the Federal judiciary is insensitive to national security or is incapable of handling such issues appropriately, he can have no justifiable fears about the law's adequacy to protect legitimate national secrets.
The ability to preserve free and responsive government depends in large measure on the preservation of open government to the greatest possible degree. That is the principle that animated the Congress in passing the amendments. It is the motivation that should lead the President to sign them into law.