PART I-CONTENTS

Legislative History of the Freedom of Information Act

Discussion of Legislative History.

Summary of Legislative History.

Text of Freedom of Information Act..

Legislative materials: Senate and House reports and debates___

(5)

Page

6

10

11

13

DISCUSSION OF THE LEGISLATIVE HISTORY OF THE

FREEDOM OF INFORMATION ACT

Recognition of the people's right to know what their government is doing by access to government information can be traced back to the early days of our nation. For example, in a letter written by James Madison in 1822 the following often-cited expression can be found:

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance; And the people who mean to be their own Governors, must arm themselves with the power, which knowledge gives.1

A case has even been made that at the time our Constitution was written the people's "right to know" was such a fundamental right that it was taken for granted and not explicitly included therein, and that some express terms in the Constitution nevertheless can be pointed to as demonstrating an intent to keep secrecy in government at a minimum and implying a recognition of the people's right to information about their Government.2

The first Congressional attempt to formulate a general statutory plan to aid in free access occurred in 1946 with the enactment of section three of the Administrative Procedure Act.3

The Congressional intent seems apparent from the report of the House Judiciary Committee:

The section has been drawn upon the theory that administrative operations and procedures are public property which the general public, rather than a few specialists or lobbyists, is entitled to know or have ready means of knowing with definiteness

assurance.*

The section was to become effective on September 11, 1946. On July 15, 1946, the Department of Justice distributed to all agencies a twelve-page memorandum interpreting this section. In 1947, this memorandum, together with similar memorandums interpreting other sections of the act, were issued in an Attorney General's Manual and declared in that aim of this section was "to assist the public in dealing with administrative agencies to make their administrative materials available in precise and current form."5 Significantly, it noted that Congress had left up to each agency the decision on what information about the agency's actions was to be classified as "official records." " Soon after the 1946 enactment, it became apparent that, in spite of the clear intent of the Congress to promote disclosure, some of its provisions were vague and that it contained disabling loopholes which

1 Letter from James Madison to W. T. Barry, Aug. 4, 1822, in The Complete Madison (Padover ed. 1953) at 337.

2 Hennings, Jr. Constitutional Law: The People's Right to Know, 45 A.B.A.J. 667 (1959). 3 June 11, 1946 ch. 324, Section 3, 60 Stat. 238, reprinted below at page 114.

H. Rep. No. 752, 79th Cong. 1st Sess. 198 (1945). See also, S. Rep. No. 752, 79th Cong.

1st Sess. 12 (1945) and H.R. Rep. No. 1980, 79th Cong., 2d Sess. 17-18 (1946).

5 Attorney General's Manual on the Administrative Procedure Act (1947) at 17. • Id., at 24.

made the statute, in effect, a basis for withholding information. Critics pointed to the broad standards of the section, such as, "[a]ny function requiring secrecy in the public interest," "any matter relating solely to the internal management of an agency" "required for good cause to be held confidential," "matters of official record," "persons properly and directly concerned" and "except information held confidential for good cause found" as leaving the departments and agencies in a position to withhold information for any purpose." One commentator has attributed the failure of the 1946 enactment to two reasons:

First, the former section three failed to provide a judicial remedy for wrongfully withholding information, thus allowing capricious administrative decisions forbidding disclosure to go unchecked. Second, and more importantly, section three of the APA imposed several major restrictions on free disclosure. Acting under "color of law," an administrator was empowered to withhold information "requiring secrecy in the public interest;" when the person seeking disclosure was not "properly and directly concerned," or where the information was "held confidential for good cause found;" and "when the information sought was related to the internal management" of a government agency or department. These four restrictive and nebulously drafted clauses provided agencies and departments with pervasive means of withholding information." 8

The Administrative Procedure Act had been in operation less than ten years when a Hoover Commission task force recommended minor changes in the public information section. Two bills were introduced in the 84th Congress to carry out the minimal task force recommendations, but the bills died without even a hearing. In the 85th Congress, the first major revision of the public information provisions was introduced,10 based on a detailed study by Jacob Scher, Northwestern University expert on press law, who was serving as special counsel to the House Government Information Subcommittee. No action was taken on these bills, but in 1958 a statute was passed amending the Federal "housekeeping" statute, which provides that the head of each department may prescribe regulations not inconsistent with law for governing his department, so as to provide that the statute does not authorize withholding information or records from the public. In the 86th and 87th Congresses, a number of versions of these bills were introduced,12 and although interest was aroused and some hearings held, none appear to have received serious considerations in either house.

11

7 Caron, Jr., Federal Procurement and the Freedom of Information Act, 20 Fed. B.J. 271 (1968). Also, see S. Rep. No. 1219, 88th Cong., 2d Sess. 10 (1964).

Comment, The Freedom of Information Act: A Critical Review, 38 Geo. Wash. L. Rev. 150. 151-152 (1969).

S. 2504, 84th Cong.. 1st Sess. (1955) introduced by Senator Wiley, and S. 2541, 84th Cong., 1st Sess. (1955) introduced by Senator McCarthy.

10 H.R. 7174, 85th Cong.. 1st Sess. (1957) introduced by Representative Moss; S. 2148. 85th Cong.. 1st Sess. (1957) introduced by Senator Hennings; and S. 4094, 85th Cong., 2d Sess. (1958) introduced by Senators Ervin and Butler.

11 P.L. 85-619, 72 Stat. 547 (1958), now found at 5 U.S.C. section 301 (1970).

12 For example, S. 186, 86th Cong., 1st Sess. (1959) introduced by Senator Hennings (this bill was the same as S. 4094. 85th Cong.), S. 1070. 86th Cong., 1st Sess. (1959) introduced by Senators Ervin and Butler: S. 2780. 86th Cong., 2d Sess. (1960) introduced by Senator Hennings (a revision of S. 186): S. 1887, 87th Cong., 1st Sess. (1961) introduced by Senator Ervin; S. 1567. 87th Cong., 1st Sess. (1961) introduced by Senators Hart, Long, and Proxmire; S. 1907, 87th Cong.. 1st Sess. (1961) introduced by Senator Proxmire: S. 3410, 87th Cong., 2d Sess. (1962), introduced by Senators Dirksen and Carroll; and H.R. 9926, 87th Cong., 2d Sess. (1962) introduced by Representative Walter.

In the 88th Congress, the movement to amend section 3 can be said to have begun in earnest. On June 4, 1963, two bills were introduced in the Senate. The first of these was S. 1663 13 which, if it had passed, would have replaced the entire Administrative Procedure Act. The second bill S. 1666 14 was identical to section 3 of S. 1663, and aimed at amending only section 3 of the Act. The reason for introducing both bills was to focus attention on the need to make the revision and to expedite action in that regard.15 Senate hearings were held on S. 1666 and section 3 of S. 1663 in October, 1963.16 To remedy the weakness of existing law, the Senate Report stated the purpose of S. 1666 as: "... to eliminate such phrases, to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld." 17 Following the 1963 hearings, several revisions were made in S. 1666, and after additional hearings were conducted in July of 1964,18 the bill underwent further modifications.19 This revised version of S. 1666 was passed by the Senate on July 28, 1964,20 but no action was taken by the House thereon before adjournment. In the 89th Congress, on February 17, 1965, a further modified form of S. 1666 was introduced in the Senate as S. 1160 21 and in the House of Representatives as H.R. 5012.22 The House held hearings on March 30, 31, April 1, 2, and 5, 1965 23 and the Senate on May 12, 13, 14, and 15, 1965.24 The Senate passed S. 1160, as amended, on October 13, 1965.25 The House of Representatives then passed this bill on June 20, 1966.26

The House Report on S. 1160 27 stated what the House considered the purposes and intentions of the bill, but appears at places to be

13 S. 1663, 88th Cong., 1st Sess. (1963) introduced by Senators Dirksen and Long.

14 S. 1666, 88th Cong., 1st Sess. (1963) introduced by Senator Long and co-sponsored by Senators Bartlett, Bayh, Boggs, Case, Dirksen, Ervin, Fong Gruening Hart, Keating. Kefauver, Metcalf, Morse, Moss, Nelson, Neuberger, Proxmire, Ribicoff, Smathers, Symington, and Walthers.

15 109 Cong. Rec. 9958 (1963) (remarks of Senator Long).

16 Hearings on the Administrative Procedure Act Before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 88th Cong., 1st Sess. (1963).

17 S. Rep. No. 1219, 88th Cong., 2d Sess. (1964); 110 Cong. Rec. 17089 (1964) (remarks of Senator Mansfield).

18 Hearings on the Administrative Procedure Act Before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (1964).

19 Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame L. 417, 419 (1965).

20 110 Cong. Rec. 17089 (1964).

21 S. 1160, 89th Cong., 1st Sess. (1965) introduced by Senators Long. Anderson, Bartlett, Bayh, Boggs, Burdick, Case. Dirksen. Ervin, Fong, Hart. Metcalf, Morse, Moss, Nelson, Neuberger. Proxmire. Ribicoff Smathers. Symington, Tydings, and Yarborough.

22 H.R. 5012. 89th Cong., 1st Sess. (1965) introduced by Representative Moss. The following identical bills were also introduced in the House on the same day or early in the session : H.R. 5013. introduced by Representative Fascell: H.R. 5014 by Representative Macdonald; H.R. 5015 by Representative Griffin: H.R. 5016 by Representative Reid; H.R. 5017 by Representative Rumsfeld: H.R. 5018 by Representative Edmondson: H.. 5019 by Representative Ashley; H.R. 5020 by Representative McCarthy; H.R. 5021 by Representative Reid; H.R. 5237 by Representative Gibbons: H.R. 5406 by Representative Leggett: H.R. 5520 by Representative Scheuer: H.R. 5583 by Representative Patten: H.R. 6172 by Representative Mosher; H.R. 6739 by Representative Edwards; H.R. 7010 by Representative Widnall; and H.R. 7161 by Representative Erlenborn.

23 Hearings on Federal Public Records Law Before a Subcommittee of the House Committee on Government Operations. 89th Cong., 1st Sess. parts 1 and 2 (1965).

24 Hearings on Administrative Procedure Act Before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965). See S. Rep. No. 813, 89th Cong., 1st Sess. (1965).

25 111 Cong. Rec. 26821 (1965).

26 112 Cong. Rec. 13661 (1966).

27 H.R. Rep. No. 1497, 89th Con., 2d Sess. (1966), reprinted below at page 22.

inconsistent not only with the Senate Report but also with the explicit language of the statute. Professor Kenneth Culp Davis, a leading commentator on the Freedom of Information Act, observed that "In general, the Senate committee is relatively faithful to the words of the Act, and the House committee ambitiously undertakes to change the meaning that appears in the Act's words. The main thrust of the House committee remarks that seem to pull away from the literal statutory words is almost always in the direction of nondisclosure." 28 Professor Davis continues:

A fundamental question about legislative history, affecting almost all the use of legislative history of this Act, is whether the House report, written after the Senate had passed the bill and therefore not taken into account by the Senate, can be given the same weight as the Senate report, known to both the Senate and the House. The question takes on added importance because of the sharp differences between the two reports and because of the constant reliance by the Attorney General's Memorandum on the House report. Two courts so far have passed upon this question, both taking the same view. One said that the House report "represents the thinking of only one house, and to the extent that the two reports disagree, the surer indication of congressional intent is to be found in the Senate report, which was available for consideration in both houses." "The other said that it "accepts the Senate reading of the statute since its report was before both houses of the Congress." P.L. 90-23, 81 Stat. 54, was enacted on June 5, 1967 in order to incorporate into title 5 of the United States Code, with.out substantive change, the provisions of P.L. 89-487.31 Technical changes in language were made to conform therewith.

In June, 1967, the Attorney General issued a detailed and comprehensive memorandum for the executive departments and agencies to assist them in fulfilling their obligation under the new Act and to correlate the text thereof with its relevant legislative history.32

It has been observed that the Attorney General's Memorandum relies primarily on language of the more restrictive House report. One court observed:

The Attorney General's conclusions do not have the weight of a contemporaneous administrative interpretation since he is not charged with administering the Act. He recognized, moreover that devinitive resolution of some ambiguities— perhaps those presented here-would have to await court rulings. The analysis of exemption (2) by the Attorney General fails to discuss the Senate Report. (Footnotes omitted.) 33

Thus while the Attorney General's Memorandum is instructive on many points of interpretation of the Act, it should properly be considered not part of the legislative history but only an excellent secondary source.

28 Davis, K. C.. Administrative Law Treatise (Supplement) § 3A.2.

Benson v. General Services Administration. 289 F. Supp. 590, 595 (W.D. Wash. 1968), affirmed on other grounds, 415 F. 2d 878 (9th Cir. 1969).

30 Consumers Union of United States v. Veterans Administration, 301 F. Supp. 796, 801 (S.D.N.Y. 1969).

31 S. Rep. No. 248, 90th Cong., 1st Sess. (1967). The complete text of 5 U.S.C. section 552 (1970) is reproduced below at page 11.

32 Attorney General. United States Department of Justice. Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (June 1967), reprinted below at nage 194.

33 Consumers Union of United States v. Veterans Administration, 301 F. Supp. 796, 801 (S.D.N.Y. 1969): see Benson v. General Services Administration, 289 F. Supp. 590, 595 (W.D. Wash. 1968), aff'd on other grounds. 415 F. 2d 878 (9th Cir. 1969); Soucie v. David, 448 F. 2d 1067, 1077 (D.C. Cir. 1971). See also Getman v. NLRB, 450 F. 2d 670 (D.C. Cir. 1971).