Clearinghouse Review

Volume VI, Number 1-10

May 1972-73

Knowledge is Power: Poverty Law and the Freedom
the Freedom of Information Act

by Stephen R. Elias and Trudy Rucker, Staff Attorneys,
Center on Social Welfare Policy and Law

Information-public versus classified-has recently
aroused widespread interest and controversy, particularly
since the Pentagon papers case. The public is now keenly
aware that there are literally tons of government documents
withheld from the public domain in the secret preserve of
government officials. Although the act of divulging such
"secret" documents has become heroic, since the Freedom
of Information Act1 was passed in 1967 any member of the
American public has been entitled to inspect millions of
documents which hundreds of government agencies cur-
rently consider beyond their reach. It is conceded that the
precise records obtained by Daniel Ellsberg might not be
obtainable under the Freedom of Information Act.2 How-
ever, vast amounts of records of the same public impor-
tance are obtainable under the Act, and the fruit, in a
manner of speaking, is ripe for the picking.

This article and the Freedom of Information Act are
both slanted toward the view that all government records
should presumptively be disclosed. Poverty lawyers and
their client groups-welfare rights, tenant and consumer
organizations-have always taken the position that where a
benefit exists it should be utilized, and that where a benefit
might be obtained through political action or litigation,
that benefit should be pursued. In the case of the Freedom
of Information Act, there is a large volume of information
which if made public or available to the poor would help
them obtain their rights. Legal Services lawyers should seek
this information aggressively.

This article is concerned with the uses of the Federal
Freedom of Information Act3 and the problems likely to

5 U.S.C. §552 (b) (1) appears to exempt such records. But
see Mink v. EPA, 40 U.S.L.W. 2233 (D.C. Cir., Nov. 2, 1971),
review granted, 40 U.S.L.W. 3428 (U.S. Sup. Ct., Mar. 6, 1972).
3. The Act applies only to federal agencies; however, a number
of states have their own freedom of information acts and in one
recent case, a state court used federal case law to interpret the state
statute. Citizens for Better Care v. Reizen, No. 13166-C (Mich. Cir.
Ct., Feb. 23, 1972), available from the Clearinghouse, Clearinghouse
No. 5827. For an exhaustive listing of the freedom of information
laws of each state, see HOBSON, THE DAMNED INFORMATION:
ACQUIRING AND USING PUBLIC INFORMATION TO FORCE
SOCIAL CHANGE, Washington Institute for Quality Education,
available at a cost of $2.00.

This article will not discuss the Federal Register
requirement. Further, although at times it will discuss the
types of information which must be indexed and kept
available in libraries, it will not examine all possible
problems in the area in detail. (This subject is appropriate
for additional extensive investigation and analysis.) The
primary thrust of this article, therefore, is a discussion of
the Act as it relates to records which are likely to be of help
to poverty lawyers.

U. CHI. L. REV. 761 (1967), for an explanation and interpretation
of these first two requirements.

legitimate interest in the document, and the agency in
possession of the document was entitled to withhold the
document if, in the agency's judgment, the release of the
document would be contrary to the public interest. Judicial
review, to the extent it existed, consisted of an equitable
balancing of interests between the parties-the needs of the
plaintiff as opposed to the needs of the agency and the
possible harm to the public interest. Recognizing that in
practice this "equitable" system favored the agency over
the citizen, Congress spent 12 years formulating the present
Freedom of Information Act.

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made available for inspection and copying upon request
unless specifically exempted by the Act. The Act specifies
nine exemptions (discussed below) and then states: "This
section does not authorize withholding of information or
limit the availability of records to the public, except as
specifically stated in this section." The Senate report
section pertaining to this statutory section reads:

K14
A8

2.6
20170

"13

The purpose of this subsection is to make it
clear beyond doubt that all materials of the
Government are to be made available to the
public by publication or otherwise unless ex-
plicitly allowed to be kept secret by one of the
exemptions in subsection (e).14

Despite clear congressional intent that the specifically
enumerated exemptions be the sole determinants as to
whether records may be withheld, a threshhold debate
arises concerning whether Congress intended to strip the
district court of its equitable powers. One commentator
argues that a court may balance the equities among the
parties and refuse to order disclosure of records not
exempted by the Act if it finds that the harm to the public
interest would be greater than the plaintiff's need for the
record. Most of the cases, however, have concluded that
Congress intended to do its own balancing, and that the
court's sole responsibility is to examine the exemptions
(interpreting them in favor of disclosure) to see if a record
has been properly withheld. The debate is most clearly
presented in Soucie v. David, where the majority held
that the Act stripped the courts of their equitable juris-
diction (based on the legislative history indicating Congress'
intent to do its own balancing) and on the clear wording
of §552 (c) quoted above. Judge Wilkes, while concurring,
argued that the courts retain their equitable power and
may, if they choose, uphold an agency's decision to
withhold records even though such records are not within
one of the specific exemptions. Concerning congressional
intent, the more recent case of Wellford v. Hardin has
noted: "It is not the province of the Courts to restrict that

Margaret V. Johnson

Mary Ader

Prof. Robert W. Bennett

Lawrence S. Denne

...

Sharon Data & William Mosley

The National Clearinghouse for Legal Services operates
pursuant to a grant between Northwestern University and the
Office of Economic Opportunity, Executive Office of the
President, Washington, D.C., 20506. Publication of the
Clearinghouse Review does not imply endorsement of its
contents by either Northwestern University or any agency of
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National Clearinghouse for Legal Services, at the address
shown above. Copyright 1972 by Northwestern University.
All rights reserved.

17.

S. REP. NO. 813, 89th Cong., 1 st Sess. 10 (1965).
Davis, supra, note 9 at 767.

448 F.2d 1067 (D.C. Cir. 1971).

The Senate Report makes clear in a number of instances that
the statute does the balancing. For example, in referring to phrases
found in the former Act, such as "requiring secrecy in the public
interest" and "required for good cause to be held confidential" the
Report states:

It is the purpose of the present bill to eliminate such phrases,
to establish a general philosophy of full agency disclosure
unless information is exempted under clearly delineated
statutory language. S. REP. NO. 813, supra, note 14.
And, the Report continues:

18.

It is not an easy task to balance the opposing interests, but it
is not an impossible one either. It is not necessary to
conclude that to protect one of the interests, the other must,
of necessity, either be abrogated or substantially subordi-
nated. Success lies in providing a workable formula which
encompasses, balances, and protects all interests, yet places
emphasis on the fullest responsible disclosure. S. REP. NO.
813, supra, note 14 at 3.

448 F.2d at 1080 (D.C. Cir. 1971).

INDIANA UNIVERSITY LIBRARY

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