Letters, statements, etc., submitted for the record by-Continued Lampson, E. W., president, Ohio Newspaper Association: Statement of National Newspaper Association.. McCloskey, Paul N., Jr., a Representative in Congress from the State Miller, John T., Jr., chairman, section of administrative law, American Mollenhoff, Clark, Washington bureau chief, Des Moines Register: Excerpts from speech before the Houston Rotary Club meeting, Moorhead, Hon. William S., a Representative in Congress from the Excerpts from testimony of witnesses at earlier subcommittee 69-70 Exchange of correspondence between President Nixon and Robert 25-37 98-101 Text of section 2954 of title 5 of the United States Code-- Plesser, Ronald, Center for the Study of Responsive Law, statement 344-349 Scalia, Antonin, Chairman, Administrative Conference of the United 274-282 THE FREEDOM OF INFORMATION ACT. WEDNESDAY, MAY 2, 1973 HOUSE OF REPRESENTATIVES, GOVERNMENT INFORMATION SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, Washington, D.C. The subcommittee met, pursuant to recess, at 10:05 a.m., in room 2154, Rayburn House Office Building, Hon. William S. Moorhead (chairman of the subcommittee) presiding. Present: Representatives William S. Moorhead, Bill Alexander, Bella S. Abzug, James V. Stanton, John N. Erlenborn, Paul N. McCloskey, Jr., Gilbert Gude, Charles Thone, and Ralph S. Regula. Also present: William G. Phillips, staff director; Norman G. Cornish, deputy staff director; Harold F. Whittington, professional staff member; L. James Kronfeld, counsel; and William H. Copenhaver, minority professional staff, Committee on Government Operations. Mr. MOORHEAD. The subcommittee will come to order. I might open these hearings with the words "once upon a time," for to some Members of Congress and to some members of the press it was the dim and distant past when representatives of both groups first got together to consider the status of the people's right to know the facts of government. It was less than 18 years ago when this subcommittee held its first hearings. It was less than 7 years ago when Congress passed the Federal Government's first freedom of information law. That certainly is not a dim and distant past as time is measured by the calendar, but it seems a long time ago because there has been a great increase in the flow of Government information. Nearly 200 court cases under the freedom of information law, and thousands of other cases when the law has been used to break down Government secrecy without going to court, have made the difference. But the difference between the high wall of secrecy 18 years ago and the lower wall today is not nearly enough of a difference. In the first place, we are nowhere near the goal of a fully informed public in a democratic society which was the hope of those who started the freedom of information fight. In the second place, the freedom of information law did not become the weapon the free press needed to fight against secrecy. We may have fallen short of our goal of open government largely because the weapon was inadequate to accomplish the job we planned. The press has made little use of the law that they had a large share in creating. Part of the blame must be shouldered by the press, itself. A large share of the blame lies with the administrators of the freedom of information law. Not one executive branch agency, not one Government official testified in favor of the bill during the subcommittee's hearings prior to its passage in 1966. And we in Congress must share the blame. The freedom of information law was the product of legislative compromise and, therefore, it is not the perfect instrument that the representatives of the free and responsible press sought. That is why this subcommittee has called those representatives back again. One of the questions we want to direct to you gentlemen is whether the need for public access to Government information is as pressing today as it was in 1955. Our witnesses are a very distinguished panel: J. R. Wiggins, former editor of the Washington Post; former president of the American Society of Newspaper Editors; a participant in this subcommittee's very first hearings in November 1955. He is now the publisher of the Ellsworth-American in Ellsworth, Maine, and he is highly regarded as an historian and an author. Clark Mollenhoff also participated in the subcommittee's first hearings and, I sometimes think, almost every other hearing the subcommittee has held so far. He is by far the most outspoken opponent of government secrecy. He is now the head of the Des Moines RegisterTribune bureau in Washington. He has won almost every journalism prize available. He has written numerous books and has served in the White House early in the Nixon administration-long before Watergate. Herbert Brucker first appeared before this subcommittee formally in March 1963, but his personal advice and his books and articles had long provided guidance. He was then editor of the Hartford Courant and president of the American Society of Newspaper Editors. He has been a journalism educator on the east and west coasts and has recently published another book on information and democracy. Creed Black accompanied Herb Brucker in 1963, and he appeared before this subcommittee again in 1965, testifying on the freedom of information bill as a representative of the American Society of Newspaper Editors. He has been editor of a number of newspapers, served in the Department of Health, Education, and Welfare, and is now editor of the Philadelphia Inquirer. Richard Smyser testified in March 1965, on the bill which became the freedom of information law. He was speaking for the Freedom of Information Committee of the Associated Press Managing Editorsand is now a vice president-and was then, as now, editor of the Oak Ridger, Oak Ridge, Tenn. He, too, has advised the subcommittee at other times, particularly on the problem of anonymous news sources. Today, we will be discussing with these experts the broad problems of free information in a free society. The next 2 weeks we will be discussing the narrow details of legislation to help solve these broad problems. [The bills, H.R. 5425 and H.R. 4960, follow:] 93D CONGRESS 18T SESSION H. R. 5425 IN THE HOUSE OF REPRESENTATIVES MARCH 8, 1973 Mr. MOORHEAD of Pennsylvania (for himself, Ms. ABZUG, Mr. ALEXANDER, Mr. BADILLO, Mr. BURTON, Mr. CLAY, Mr. CONYERS, Mr. COTTER, Mr. DRINAN, Mr. ECKHARDT, Mr. EDWARDS of California, Mr. WILLIAM D. FORD, Mr. FRASER, Mr. FUQUA, Mr. GUDE, Mr. HARRINGTON, Mr. HECHLER of West Virginia, Mr. HOWARD, Mr. KOCH, Mr. LEGGETT, Mr. MCCLOSKEY, Mr. Moss, Mr. OBEY, Mr. REES, and Mr. REID) introduced the following bill; which was referred to the Committee on Government Operations A BILL To amend section 552 of title 5, United States Code, known as the Freedom of Information Act. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, SECTION 1. (a) The fourth sentence of section 552 (a) 3 4 (2) of title 5, United States Code, is amended by striking out 5 "and make available for public inspection and copying" and 6 inserting in lieu thereof ", promptly publish, and distribute 7 (by sale or otherwise) copies of". I 4 1 agency records which the agency claims are within the 2 purview of subsection (b) (1), such in camera investigation 3 by the court shall be of the contents of such records in order 4 to determine if such records, or any part thereof, cannot be 5 disclosed because such disclosure would be harmful to the 6 national defense or foreign policy of the United States." 7 (e) Section 552 (a) (3) of title 5, United States Code, is 8 amended by adding at the end thereof the following new 9 sentence: "Notwithstanding any other provision of law, the 10 United States or an officer or agency thereof shall serve an 11 answer to any complaint made under this paragraph within 12 twenty days after the service upon the United States attorney 13 of the pleading in which such complaint is made. The court 14 may assess against the United States reasonable attorney fees 15 and other litigation costs reasonably incurred in any case 16 under this section in which the United States or an officer or 17 agency thereof, as litigant, has not prevailed." 18 SEC. 2. (a) Section 552 (b) (2) of title 5, United States 19 Code, is amended by inserting "internal personnel" immedi20 ately before "practices", and by inserting "and the disclosure 21 of which would unduly impede the functioning of such 22 agency" immediately before the semicolon at the end thereof. 22 23 (b) Section 552 (b) (4) of title 5, United States Code, 24 is amended by inserting "obtained from a person which are 25 privileged or confidential" immediately after "trade secrets", |