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On July 4, 1966, the Freedom of Information Act was signed into law. The act, which became effective on July 4, 1967, was designed to reverse earlier law under which government agencies considered themselves free to withhold information from the public under whatever subjective standard could be articulated for the occasion. Most importantly, the Freedom of Information Act (FOIA) set a standard of openness for government from which only deviations in well-defined areas would be allowed. The FOIA then went on to define those areas in a series of nine "exemptions.” Finally, it provided a remedy for the wrongful withholding of information: the person requesting information from the government could take his case to court.
President Lyndon B. Johnson, in his bill-signing statement, articulated the spirit which the Freedom of Information Act was intended to instill in all areas of government:
This legislation springs from one of our most essential principles : a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull the curtains of secrecy around decisions which can be revealed without injury to the public interest. * * * I signed this measure with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded. But, as recognized by Congress and the Executive, and as spelled out by Attorney General Ramsey Clark in a memorandum explaining the Act, the law "is not wholly self-explanatory or self-executing. Its efficacy is heavily dependent on the sound judgment and faithful execution of those who direct and administer our agencies of government.”
Because the execution of this law by "those who direct and administer our agencies of government” has been substantially less than “faithful,” testimony at recent hearings of the Subcommittee on Administrative Practice and Procedure on Freedom of Information 3 has suggested “that the act has become a 'freedom from information' law, and that the curtains of secrecy still remain tightly drawn around the business of our government.” Judicial decisions and recent House subcommittee hearings and report substantiate this conclusion.*
In his 1953 book entitled "The People's Right to Know,” Harold L. Cross, writing for the Committee on Freedom of Information of the
15 U.S.C. $ 552 (printed below in full at p. 11).
Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act. U.S.
Dept. Justice, June 1967 (printed below at page 194). * Executive Privilege, Government Seorecy and Freedom of Information. Hearings before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Committee on the Judiciary and the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, U.S. Senate, vol. I (April 10, 11, 12. May 8, 9, 10 and 16, 1973), vol. II (June 7, 8, 11 and 26, 1973), and vol. III (Appendices).
*0.8. Government Information Policies and Practices--Administration and Operation of the Freedom of Information Act, Hearings before the Subcommittee on Foreign Operations and Government Information, Committee on Government Operations, House of Representatives, 92d Congr., 2d Sess. (parts 4-6): Administration of the Freedom of Information Act, H. Rept. No. 92-1419, Committee on Government Operations, 92d Cong., 2a Sess., Sept. 20, 1972 ; see summaries of court decisions below in part II.
American Society of Newspaper Editors, observed "the dismaying, bewildering fact” that “in the absence of a general or specific act of Congress creating a clear right to inspect ... there is no enforceable legal right in public or press to inspect any federal non-judicial record.” The FOIA not only created this “clear right” in the public and press, but also made it enforceable. Thus the Act provided that whenever a person believed his request for information was wrongfully denied, he could take his case to the federal courts. The law specifically provides :
On complaint, the district court of the United States . . , has Jurisdiction to enjoin the agency from withholding agency records and to order the production on any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee. ...
In May 1968 this Subcommittee published a "Ten Months Review" of the Freedom of Information Act, in which it observed that a pattern of court decisions under this act had not yet emerged although, of the eleven cases decided, "four have held in favor of disclosure and seven against.” Now, some six years after the effective date of the FOIA, over two hundred suits have been filed under the act. Summary briefs of the substantive decisions handed down under this Act are contained in this volume in part II.
A House Subcommittee, analyzing the decisions under the FOIA, observed that the courts have generally been reluctant to order the disclosure of government information falling within the first exemption of the act, information “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and within the seventh, “investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.” On the other side, courts have generally ruled against government withholding of information alleged to fall within the fourth and fifth exemptions relating to trade secrets and internal communications. Nonetheless, in his general observations concerning the cases decided under the FOIA, Attorney General Elliot Richardson, appearing before the Senate Subcommittee on Administrative Practice and Procedure, observed that "the courts have resolved almost all legal doubts in favor of disclosure.” 7
It should be emphasized that the exemptions in the FOIA were not intended by Congress to be used either to prohibit disclosure of inforimation or to justify automatic withholding of information. Rather, they merely mark the outer limits of information that may be withheld where the agency makes an affirmative determination that the public interest and the specific circumstances presented dictate that the information should be withheld. Agencies have been slow to adopt this attitude, but enlightened judicial decisions reflect this approach to interpreting the force of the FOIA exemptions.
Most significantly, the courts appear to adopt and reinforce at each opportunity the congressional intent underlying passage of the Freedom of Information Act. For example, one Court of Appeals, after
5 The Freedom of Information Act (Ten Months Review), Comm. Print Submitted by the Subcommittee on Administrative Practice and Procedure to the Committee on the Judiciary of the U.S. Senate, 90th Cong., 2d Sess., May 1968.
6 H. Rept. No. 92–1419, supra note 4 at 71. ? Hearings, supra note 3 at vol. II, p. 215.
ordering disclosure of documents requested by the plaintiff but withheld by the government in a recent case, observed :
Congress passed the Freedom of Information Act in response to a persistent problem of legislators and citizens, the problem of obtaining adequate information to evaluate federal programs and formulate wise policies. Congress recognized that the public cannot make intelligent decisions without such information, and that governmental institutions become unresponsive to public needs if knowledge of their activities is denied to the people and their representatives. The touchstone of any proceedings under the Act must be the clear legislative intent to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests. The policy of the Act requires that the disclosure requirement be construed broadly, the exemptions narrowly.8
Bills have been introduced in the 93rd Congress, in both the House and the Senate, to strengthen and clarify the Freedom of Information Act. Even with such legislation, it is clear that the public will have to approach government agencies armed with a thorough knowledge of the Act and the interpretations thereunder, and will on occasion continue to have to resort to the courts for enforcement of congressional disclosure mandates. This Source Book is designed to provide the public with the arsenal necessary to obtain maximum disclosure from the departments and agencies of government. Part I contains legislative history materials: the text of the act, references to each stage of the legislative proceedings leading to enactment, the full text of the House and Senate reports, and a brief discussion of the legislative history. Part II contains comprehensive indices and cross-references to cases construing the act and summary briefs of the substantive decisions under the FOIA through February 1974. Part III contains a selected bibliography of articles discussing the Freedom of Information Act, the Attorney General's memorandum on the act, and reprints of three comprehensive discussions of the act. Part IV contains the FOIA Regulations of the Department of Justice, which were promulgated as models for agency regulations generally. The subcommittee intends to update this Sourcebook periodically; comments, suggestions, and references useful to this objective are invited.
& Soucle v. David, 448 F. 2d 1067, 1080 (D.C. Cir. 1971). .H.R. 5425; H.R. 4960; S. 1142; H.R. 12471 ; S. 2543. On February 21, 1974, the House Committee on Government Operations reported favorably H.R. 12471 to the House of Representatives. On February 26, 1974, the Senate Subcommittee on Administrative Practice and Procedure reported favorably s. 2543 to the full Judiciary Committee.