available to the public. However, I cannot perceive any national interest to be served by disclosing the identity of the reporting firms and the commercial proprietary information contained in their reports. I should reiterate that I do not base my position on any claim of executive privilege, but rather on the exercise of the statutory discretion conferred upon me by the Congress."

Thus, the Secretary is arguing that furnishing the materials to Congress is "publishing or disclosing" within the prohibitions of section 7(c) of the Export Administration Act of 1969. Section 7(c) [50 USC App. 2406 (c)] provides :

"No department, agency, or official exercising any functions under this Act shall publish or disclose information obtained hereunder which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless the head of such department or agency determines that the withholding thereof is contrary to the national interest."

The predecessor of this section was first enacted into law in section 6(c) of the Export Control Act of 1949 and the wording of the section has not changed with subsequent reenactments. The 1949 House Report, in referring to this section, merely repeats the language of the statute. The Senate Report is silent on the provision. Subsequent reenactments have not discussed the section under consideration. The legislative history, therefore, offers no support for the Secretary's position but does not dispose of the issue of whether furnishing the materials to Congress is "publishing or disclosing."

The Securities and Exchange Commission, in addition to supplying this Subcommittee in the past with confidential information, has also made materials available to other Congressional committees and subcommittees. Senator Church, for example, asked for certain materials which a number of large oil companies had filed with the Commission pursuant to the confidential treatment provisions of the Securities Exchange Act of 1934. Some of the companies volunteered in advance that the material could be made available to Congress; some did not. The Commission advised those who had not volunteered that it intended to make the materials available to the Senator and his Committee regardless of their concurrence. All companies then agreed to the Commission making the material available.

We have had instances of the Federal Trade Commission providing materials to the Subcommittee which were not public and which were covered by Section 10 of the Federal Trade Commission Act, described in the next section of this memorandum. Those have included the investigation of the American Gas Association and the major natural gas producers, the ITT-Continental investigation, and the beer investigation.

APPLICABLE LAW

Section 7(c) is not an absolute prohibition against disclosure of the boycott reports. The Secretary of Commerce is specifically authorized to determine that withholding of the reports is contrary to the national interest and thus he may make any or all such reports public as he, in his discretion, determines. The form on which boycott requests must be reported to the Department specifically provides: "information furnished herewith is deemed confidential and will not be published or disclosed except as specified in Section 7(c) of the Export Administration Act of 1969." (Emphasis added) Thus, no one filing such a report can reasonably claim that he relied upon an assurance of absolute confidentiality when he filed his report.

The limited granting of confidentiality to these reports is similar to the granting of confidential treatment by various other governmental agencies and Departments. For example, the Federal Trade Commission Act has a provision whereby "any officer or employee of the Commission who shall make public any information obtained by the commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor . . . ." (Section 10). The Commission has interpreted this section to apply to trade secrets and other proprietary information.

Similarly, Section 24 of the Securities Exchange Act of 1934 provides for the granting of confidential treatment of "trade secrets of processes. Traditionally, the Federal Trade Commission and the Securities and Exchange Commission have made materials available to the House Commerce Committee on request which might otherwise have been given confidential treatment.

There are instances in which the Congress had limited its access to materials filed with an executive department or agency. The Internal Revenue Code, for example, limits Congressional access to income tax returns to the House Committee on Ways and Means, the Senate Finance Committee, the Joint Committee on Internal Revenue Taxation or a select committee of either House "specifically authorized to investigate returns by a resolution of the Senate or House, or a joint committee so authorized by concurrent resolution." (26 USC 6103).

Each of the six statutes administered by the Securities and Exchange Commission authorizes confidential treatment in one form or another. In only one instance, however, is there any limitation on the right of Congress to access to Commission information. Section 210 of the Investment Advisers Act of 1940 prohibits disclosure without Commission approval, of certain information but further declares: "the provisions of this subsection shall not apply . . . in the case of a resolution or request from either House of Congress." In this single instance, the right of a Congressional committee with legislative oversight jurisdiction over the Commission might be limited to that specific regard.

Since Congress has specifically provided for limitations on its right to information, the absence of a stated limitation can only be interpreted as meaning that Congress has not limited itself and is therefore entitled to access to information. This interpretation is a well-established principle of statutory construction.

CONGRESSIONAL RIGHT TO KNOW

The right of Congress to investigate cannot be questioned. The Supreme Court, in May of this year, again recognized the well-established principle that Congressional subpoenas are a legitimate use by Congress of its power to investigate. Thus, in Eastland v. United States Servicemen's Fund (No. 73-1923, May 27, 1975), the Court stated:

The power to investigate and to do so through compulsory process plainly falls within that definition. This Court has often noted that the power to investigate is inherent in the power to make laws because “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change."

The Court went on to note that the Congressional right to investigate without limitation is intended to "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." Accordingly, the Secretary of Commerce may not oppose the Subcommittee's subpoena by court action. See also, Oklahoma Press v. Walling, 327 U.S. 186 (1946); McGrain v. Daughtery, 273 U.S. 135 (1927).

The Secretary has suggested that he would surrender certain information contained in the "boycott reports" provided he could delete material which might identify the person or entity submitting the reports. This would not satisfy the investigative needs of the Subcommittee. The reports were requested for the pur pose of identifying those who have been approached to participate in the boycott. These will provide fundamental leads from which the staff could begin interviews and conduct a full investigation.

In addition to providing leads, the full reports are needed so that the Subcommittee may determine the areas of commerce affected by the boycott and the extent of the boycott. We are also interested in examining copies of any compliance documents required by the Arabs to determine whether secondary boycotts are being required as a condition to doing business. Furthermore, a substantial percentage of those filing reports have not indicated whether or not they are complying with the boycott. This is a question which the Department, in its form, permits the one filing the report to leave unanswered. Because of the materiality to the Subcommittee's investigation of the compliance or non-compliance with the boycott request, the Subcommittee may desire to have more complete information. This cannot be done without full access to the reports. Consequently, complete access to the reports is necessary and in furtherance of a legitimate Subcommittee investigation.

APPENDIX K

THE LIBRARY OF CONGRESS,

CONGRESSIONAL RESEARCH SERVICE,

Washington, D.C., September 19, 1975.

To: Hon. John Moss, Chairman, Subcommittee on Oversight and Investigations, Committee on Interstate and Foreign Commerce.

From: American Law Division.

Subject: Analysis of Attorney General opinion advising Secretary of Commerce that he need not comply with a congressional committee subpoena.

This is in response to your request that we analyze and comment upon an opinion of the Attorney General of the United States, issued September 4, 1975, which advised the Secretary of Commerce that he need not comply with a subpoena of the House Interstate and Foreign Commerce Committee directing him to produce certain reports filed with the Department pursuant to section 4(b) of the Export Administration Act of 1969, 83 Stat. 841, as amended, 50 U.S.C. App. 2403(b), on the ground that the confidentiality requirement of section 7(e) of that Act extends to the Congress and its committees as well as the general public. The section in question provides :

"(e) No department, agency, or official exercising any functions under this Act [sections 2401 to 2413 of this Appendix] shall publish or disclose information obtained hereunder which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless the head of such department or agency determines that the withholding thereof is contrary to the national interest."

The Attorney General's conclusion is not based upon any constitutionally based privilege. Rather, it is founded upon the following line of reasoning: Restrictions against agency disclosure of information "are presumptively binding even with respect to requests or demands of congressional committees." That this assumption accords with "general legislative intent" is demonstrated by (1) the existence of confidentiality statutes which explicitly except congressional requests for information; (2) the legislative history of the subject Act; (3) the "apparently consistent administrative construction" of the provision that Congress was not entitled to information gathered under the Act; and (4) congressional reenactment of the provision with knowledge of the aforementioned administrative construction.

Close analysis of the opinion reveals, however, that no basis exists for the Attorney General's basic presumption in the circumstances of this case. Further, the legislative history of the Act does not support the so-called "standard interpretation" but rather appears to point to an opposite conclusion. And, finally, the administrative construction of the provision has been neither consistent nor accepted by the Congress.

Under the circumstances of the instant situation, if one accepts the validity of the assumption that a confidentiality statute which does not explicitly except the Congress from its reach thereby precludes it from seeking information covered by that statute, one must also accept the proposition that Congress may be divested of its constitutional prerogatives by implication. Such a proposition appears contrary to widely accepted canons of constitutional construction, past congressional practice, and sound reason.1a

There can be no doubt that a broad oversight capability is a constitutional prerogative of the Congress. Although there is no express provision of the Constitution which specifically authorizes the Congress to conduct investigations and take testimony for the purpose of performing its legislative functions, the practice of the British Parliament and several decisions of the Supreme Court of the United States have firmly established that the invesigatory power of Congress is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress. McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360

1 See, e... In re Chapman, 166 U.S. 661. 671-72 (1897); Jurney v. MacCracken, 294 U.S. 125 (1935); Seymour v. U.S., 77 F.2d 577, 579 (8th Cir. 1935).

U.S. 109 (1959); Eastland v. United States Servicemen's Fund, U.S.- (No. 73– 1923, May 27, 1975). Chief Justice Warren speaking for the Court in Watkins described the power as follows:

"We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is the power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. . . . Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself, it must be related to, and in furtherance of, a legitimate task of the Congress." 354 U.S. at 187.

Legitimate legislative tasks have been defined as activities that are "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625 (1972). See also, Doe v. McMillan, 412 U.S. 306, 313 (1972).

More recently the Court has reiterated its view that the power of effective congressional inquiry is an integral part of the legislative process :

"The power to investigate and to do so through compulsory process plainly falls with [the Gravel definition of legitimate legislative tasks]. This Court has often noted that the power to investigate is inherent in the power to make laws because '[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.' McGrain v. Daugherty, 273 U.S. 125, 175 (1927) Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate . . .'

"[W]here the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, as some means of compulsion are essential to obtain what is needed.' McGrain v. Daugherty, supra, 273 U.S. at 175.

"It has also been held that the subpoena power may be evercised by a committee acting, as here, on behalf of one House . . . Without such power the Subcommittee may not be able to do the task assigned to it by Congress." (Eastland v. U.S. Servicemen's Fund, supra, slip opinion at pp 12-13.)

Thus, it would appear clear that the Subcommittee's broad oversight mandate entitles it to exercise plenary investigative and information gathering authority: and since that authority is constitutionally based it may be limited or waived only by some other explicit statutory restricion or consitutional privilege.

Careful examination of section 7(c) reveals that neither its express language nor any necessary implication from that language restricts access by duly authorized committees of Congress to information held by the Department of Commerce. Indeed, it would be highly unusual for Congress to limit or divest itself of its constitutional and statutorily mandated oversight functions1 by indirection. To the contrary, in the past Congress has shown that it is fully capable of limiting its access to information from the Executive to certain committees or, in rare instances, to the Congress as a whole, in a clear and explicit

manner.

For example. § 1 of Pub. L. 92-403, 1 U.S.C. 112h. limits congressional access to international agreements, other than treaties, where in the opinion of the President, public disclosure would be prejudicial to the national security of the United States. In that event such agreements "shall not be so transmitted to the Congress but shall be transmitted to the committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives

1 See 2 U.S.C. 190d (Supl. III, 1973).

under an appropriate injunction of secrecy to be removed only upon due notice from the President."

Similarly, the Internal Revenue Code limits inspection of tax returns to the Senate Finance Committee, House Ways and Means Committee, and the Joint Committee on Internal Revenue Taxtion or any select committee "specifically authorized to investigate returns by a resolution of the Senate or House." 26 U.S.C. 6103 (d), 6104(a)(2). Also, the Atomic Energy Act contains an express provision respecting access to "restricted data" and creates a Joint Committee on Atomic Energy which exclusively receives information from the various agencies with respect to the activities and responsibilities of such agencies in the field of atome energy. See 42 U.S.C. 2161-2166, 2251–2257, 2277.

Finally, several provisions of the United States Code expressly limit certain types of information available to Congress generally. For example, under 50 U.S.C. 402 g, j(b), the Congress' ability to obtain information about the Central Intelligence Agency, particularly with regard to expenditures, is severely limited.

The alleged presumption, even if valid, is rebutted by reference to another provision of the Export Administration Act. Under section 8 of the Act, 50 U.S.C. App. 2407, the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, are made specifically applicable to the functions of the Act:

"The functions exercised under this Act are excluded from the operations of sections 551, 553–559, and 701-706 of title 5, United States Code".2

The FOIA requires executive agencies to make available to the public all of their identifiable records except those involving matters which are within nine specifically stated exemptions in 5 U.S.C. 552(b), two of which (numbers 3 and 4) may be applicable to the information covered by § 7(c). Indeed, the Supreme Court's recent decision in Administrator, Federal Aviation Administration v. Robertson, 43 U.S. L.W. 4833 (1975), makes it clear that section 7(c) is the type of provision that falls within exemption 3 as a matter that is "specifically exempted from disclosure by statute." Further, during the course of its opinion the Court noted that there are nearly 100 statutes or parts of statutes which restrict public access to specific government records. See, House Committee on Government Operations, Federal Statutes on the Availability of Information, 86th Congress, 2d Sess. (1960). Each of these statutes were declared covered by exemption 3.

But the FOIA makes all the exemptions inapplicable to Congress. Section 552 (c) states: "This section is not authority to withhold information from Congress."

The import of this is plain. It is highly unlikely that Congress, with one hand, would have made applicable to the functions under the Act a disclosure statute which expressly reserved its right to obtain information from the Executive Branch, and with the other hand divest itself of such right by implication. Such a conclusion is demonstrably incongruous since that would mean the same result (by implication) would obtain with regard to nearly 100 other similar statutes. The effect of such construction, then, would be to allow different parts of the Export Administration Act to conflict and negate one another. It would also effectively turn the FOIA on its head and vitiate a substantial portion of Congress' oversight jurisdiction. None of these consequences appears clearly intended by Congress.

The Attorney General's reliance on the legislative history of the Act would also appear ill-founded. He correctly points out there was no consideration of section 7(c)'s application to Congress during the passage of the 1969 Act. However, this particular provision can be traced back to section 6(c) of the Export Control Act of 1949, 63 Stat. 7. where it appears in identical form. Senate Report No. 31. 81st Cong., 1st Sess. (1949) states:

"Section 6 of the bill furnishes the usual administrative powers of investigation, subrena, and the authority to require testimony under oath. . . . They are required for the prevention and discovery of such abuses. . . Ample safeguards

2 Section 8 is in virtually the same language as it appeared in the Export Control Act of 1949. Pub. L. 11, 81st Cong., 1st Sess., and has the exact same effect.

35 U.S.C. 552(b) (3) exempts matters that are "specifically exempted from disclosure by statute" 552(b)(4) exempts "trade secrets and commercial or financial information obtained from a person and privileged or confidential." Both exemptions may be arguably invoked against any public request for information.