for the recovery of only the direct costs of search and duplication and not including costs for examination of the records. In addition, the conference retained a Senate provision allowing an agency to furnish documents without charge or at a reduced cost if it determined that such action would be in the public interest. This provision was designed to allow the agencies to facilitate F.Ò.I. requests made by the indigent or by groups serving the public interest through nonprofit activities. Discretion on such matters would lie with the agencies.

Court review

The conference report states:

"The conference substitute follows the Senate amendment, providing that in determining de novo whether agency records have been properly withheld, the court may examine records in camera in making its determination under any of the nine categories of exemptions under section 552(b) of the law. In Environmental Protection Agency v. Mink, et al., 410 U.S. 73 (1973), the Supreme Court ruled that in camera inspection of documents withheld under section 552(b)(1) of the law, authorizing the withholding of classified information, would ordinarily be precluded in Freedom of Information cases, unless Congress directed otherwise. H.R. 12471 amends the present law to permit such in camera examination at the discretion of the court. While in camera examination need not be automatic, in many situations it will plainly be necessary and appropriate. Before the Court orders in camera inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. The burden remains on the Government under this law."23

Response to complaints

The House version provided that the defendant to a complaint under the F.O.I. law must make a responsive pleading within 20 days after service, unless the court should direct otherwise for good cause shown. The Senate version contained a similar provision but allowed the defendant 40 days. The conference adopted a 30-day responsive pleading timeframe, granting the court discretion to direct otherwise for good cause shown. The desired effect underlying the provision was to expedite litigation with definite time requirements regarding responsive pleadings. Expedited appeals

The Senate version contained a unique provision to give precedence to appeal cases brought under the F.O.I. law, except as to cases on the docket which the court, in its discretion, considers more important. The conference adopted this provision urging judicial expedition of F.O.I. litigation. The language merely begs court attention for this class of cases and leaves the discretion for quick adjudication with the court.

Attorney fees and costs

The conference adopted language from the Senate version applying to cases in which the complainant had "substantially prevailed" and allowing the court to award costs and attorney fees to the successful litigant. Criteria for the awarding of such monies was eliminated from the final bill by the conference "because the existing body of law on the award of attorney fees recognizes such factors," and it was felt that "a statement of the criteria may be too delimiting and is unnecessary." 24 Discretion for such awards lies with the court which, as noted, must be guided by precedents in case law and statutes.

Sanction

The Senate version of the amendments contained a unique provision authorizing the court in F.O.I. cases to impose a sanction that would entail a suspension of no more than sixty days from employment against a Federal employee or official whom the court finds to have been responsible for withholding requested records without a reasonable basis in the law. The conference modified this sanction, authorizing the court merely to determine if an "arbitrary or capricious" withholding by a Federal employee or official did occur and requiring that the Civil Service Commission promptly initiate a proceeding to determine whether dis

23 U.S. Congress. House. Freedom of Information Act Amendments: Conference Report. Washington, U.S. Govt. Print. Off., 1974. (93rd Congress, 2d session. House. Report No. 93–1380), p. 9.

24 Ibid., p. 10.

ciplinary action is warranted in the event of such a finding. The findings of the Commission and its recommended action are to be submitted to the administrative authority of the agency and to the responsible official or employee, “and the administrative authority shall promptly take the disciplinary action recommended by the Commission."

Administrative deadlines

In an attempt to expedite F.O.I. requests within the Executive Branch agencies, the conference adopted administrative action deadlines recommended by the Administrative Conference of the United States and contained in both versions of the amendments. These timeframes allow 10 days-excepting Saturdays, Sundays, and holidays-for responding to an initial request for records under the F.O.Í. law and 20 days for response to an appealed request. In addition, the conference adopted a Senate provision granting a 10-working-day extension for "unusual circumstances," where an agency may be required to retrieve documents from a field facility separate from the office processing the request, where more than one agency may be involved in responding to the request, or where voluminous records are being sought. The 10-day extension may be invoked only once during the course of action on a request at either the initial or the appellate stage.

Modification of national defense and foreign policy exemption (5 U.S.C. 552(b) (1))

The conference adopted language from both the House and Senate versions of the amendments which would permit the withholding of information where it is "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "is in fact properly classified pursuant to such Executive order." The conference report explains that both procedural and substantive criteria are intended. The statement in the conference report goes on to declare:

"When linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of contested records as part of their de novo determination in Freedom of Information cases, this clarifies Congressional intent to override the Supreme Court's holding in the case of E.P.A. v. Mink, et al., supra, with respect to in camera review of classified documents.

"However, the conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making de novo determinations in section 552 (b) (1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.

"Restricted Data (42 U.S.C. 2162), communication information (18 U.S.C. 798), and intelligence sources and methods (50 U.S.C. 403 (d)(3) and (g)), for example, may be classified and exempted under section 552(b)(3) of the Freedom of Information Act. When such information is subjected to court review, the court should recognize that if such information is classified pursuant to one of the above statutes, it shall be exempted under this law."25 Investigatory records

The Senate version of the amendments contained a unique provision added on the Senate floor by Sen. Hart during debate of the proposal. This language pertained to exemption (b) (7) regarding law enforcement files. As adopted by the conference, the provision would permit an agency to withhold investigatory records compiled for law enforcement purposes only to the extent that their production would (1) interfere with enforcement proceedings, (2) deprive a person of a right to a fair trial or an impartial adjudication, (3) constitute unwarranted invasion of personal privacy, (4) disclose the identity of a confidential source, (5) disclose investigative techniques and procedures, or (6) endanger the life or physical safety of law enforcement personnel. The conference added language also protecting confidential information compiled from a confidential source by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation.

25 Ibid., p. 12.

The attempt here was to protect Federal Bureau of Investigation records, Central Intelligence Agency records, and the files of other Federal law enforcement agencies. Safeguards were extended to law enforcement personnel and informants aiding law enforcement agencies. "National security" was to be strictly construed to refer to military security, national defense, or foreign policy. The term "intelligence" was intended to apply to positive intelligence-gathering activities, counter-intelligence activities, and background security investigations by governmental units authorized to perform such functions.

Segregable portions of records

The conference adopted another unique Senate provision specifying that any segregable portion of a sought record shall be provided after deletions of portions that may be withheld under the exemption of section 552(b).

Annual reports of F.O.I. activity

The conference adopted language from both versions of the amendments, essentially requiring from each agency an annual report on activity and operations under the F.Ó.I. Act and specifying certain details that must be included in the report.

Expansion of agency definition

Adopting language from the House version, the conference expanded the definition of "agency" for F.O.I. Act matters expressly to cover those entities encompassed by 5 U.S.C. 551 and others, including the U.S. Postal Service and the Postal Rate Commission, as well as Government corporations or Governmentcontrolled corporations now in existence or created in the future.

"With respect to the meaning of the term 'Executive Office of the President' the conferees intend the result in Soucie v. David, 448 F. 2d 1067 (C.A.D.C. 1971). The term is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." 1726

With these differences resolved," the report of the conference was made to each chamber.28 The report was adopted by voice vote in the Senate on October 1 20 and the House followed on October 7 with a 349-2 roll call vote in favor of adoption.30 The following day the bill was sent to the Chief Executive for signature. Presidential veto

In the midst of the conference deliberations, President Nixon had resigned his office. Vice President Gerald Ford, succeeding to the Presidency, had sent a letter to the conferees indicating his reservations with regard to certain provisions of the bill.31 On October 17 he returned the bill to the House without his approval. The Chief Executive's accompanying message opposed three main provisions of the bill: (1) Allowing courts to inspect classified documents, (2) abridgement of confidentiality in law enforcement records, and (3) defining specified timeframes for action in F.O.I. Act requests. In addition, the President called the bill “unconstitutional and unworkable." 32

Veto overridden

In an attempt to meet the objection of the President to the F.O.I. Act Amendments, the Senate Minority Leader, Sen. Hugh Scott (R.-Pa.), offered a revised bill (S. 4172) on November 19.33 Efforts to override the veto, however, were already underway at this time. On November 20 the House voted 371-31 to override, and with a two-thirds vote in favor thereof, the President's objections were rejected.34 The Senate completed action on the matter on November 21, voting 65-27 to override.35 The bill thereby became a public law (P.L. 93-502), the amendments becoming effective on February 19, 1975.

20 Ibid., p. 15.

On the deliberations and efforts to resolve differences between the two versions of amendments see Freedom of Information Act Amendments Conference Notes appended to this narrative.

28 U.S. Congress. House. Committee of conference. Freedom of Information Act Amendments. Washington, U.S. Govt. Print. Off., 1974. 15 p. (93rd Congress, 2d session. House. Report No. 93-1380); in the Senate (93rd Congress, 2d session. Senate. Report No. 93-1200).

29 Congressional Record, v. 120, October 1, 1974: S17828-17830, S17971-S17972.

30 Ibid., v. 120, October 7, 1974: H10001-H10009.

31 Ibid., v. 120, October 1, 1974: S17829; also Ibid., v. 120, October 7, 1974: H10002-H10003.

32 See Ibid., v. 120, November 18, 1974: H10705; U.S. Congress. House. Vetoing of H.R. 12471, Amend Freedom of Information Act: Message from the President of the United States... Washington, U.S. Govt. Print. Off. 1974. 5 p. (93rd Congress, 2d session. House. Document No. 93-383); Weekly Compilation of Presidential Documents, v. 10, October 21, 1974: 1318.

33 Congressional Record, v. 120, November 19, 1974: S19531-S19535.

34 Ibid., v. 120, November 20, 1974: H10864-H10875.

35 Ibid., v. 120, November 21, 1974: S19806-S19823.

B. CONFERENCE NOTES-THE FREEDOM OF INFORMATION ACT AMENDMENTS

[INTRODUCTORY NOTE: During the course of the conference proceedings, no official transcript was made. However, notes were taken by a staff member of the Senate subcommittee and are added to this narrative as unofficial staff observations. They do not constitute approved conference committee minutes and their inclusion in this document does not mean that they have been officially approved by either Subcommittee or either House or Senate Committee.]

On March 14, 1974, the House passed by a record vote of 383 to 8, H.R. 12471, amending the Freedom of Information Act (Volume 120, Congressional Record, H 1802-1803). On May 30, 1974, the Senate passed an amendment in the nature of a substitute to H.R. 12471 by a vote of 64 to 17 (Volume 120, Congressional Record, S 9343).

The House requested a conference on the legislation, and House Conferees were named on June 6, 1974 (Volume 120, Congressional Record, H 4811): (Holifield, Moorhead, Pa., Moss, Alexander, Horton, Erlenborn, McCloskey). Senate Conferees were named on June 10, 1974 (Volume 120, Congressional Record, S 10206): (Kennedy, Hart, Bayh, Burdick, Tunney, McClellan, Thurmond, Mathias, Gurney, Hruska).

The conferees met on August 6, 13, 20, and 21. At the first meeting Congressman Moorhead was elected conference chairman, and the conferees agreed to open their meeting to the public.

At the initial conference session the conferees agreed to use a series of draft staff compromise suggestions as the basic document of the conference. It was discussed in detail on August 6, certain changes were agreed to, and the conferees reached agreement on all issues under discussion with the exception of the sanction section contained in paragraph (4) (F) of the Senate version. No roll call votes were taken.

On August 13 the conferees met to discuss the sanction provision. An amendment in the nature of a substitute to paragraph (4) (F) was offered by Mr. McCloskey, but failed to be adopted by either side. Telephone calls from the Attorney General and the Deputy Attorney General to conference committee members requesting a delay on final action were relayed to the conferees, and the conference recessed for one week on motion of Senator Kennedy. (The delay was requested to provide President Ford time to review the previous agreements reached by the conferees, since President Nixon had resigned on August 9 and Ford was sworn in that day).

On August 20 Mr. McCloskey and Mr. Kennedy proposed various alternative sanction provisions. The House conferees agreed to a modified McCloskey proposal, but the Senate conferees by a divided vote (5-5) failed to adopt the McCloskey provision and again by a divided vote to adopt a Kennedy amendment to the McCloskey provision.

Also at the conference session on the 20th Senator Kennedy and Congressman Moorhead received letters from President Ford raising specific concerns with five issues in the proposed conference bill. The conferees scheduled a meeting the following day to complete action on the sanction provision and to consider the issues raised by the President's letter. (At this meeting, the conferees agreed to permit television coverage of the committee deliberations by the Westinghouse Group W Network). On August 21 the House conferees voted 4-3 to propose a revised McCloskey compromise on the sanction provision. The Senate conferees unanimously agreed to accept this compromise if modified in three respects, pursuant to amendments proposed by Senator Kennedy. The House conferees accepted the modifications and the final language of paragraph (4)(F) of H.R. 12471 was agreed to.

The conferees then opened discussion on the issue of de novo review of classification provided under section (b)(1) of the new law, as amended. Since there was no basic disagreement among the two houses in the bills as passed, the conferees considered themselves bound to the original language. However, the conferees agreed that language relating to this issue as proposed by Senator Hruska should, with some modifications, be included in the Joint Statement of Managers.

The Conferees proceeded to discuss the language of the seventh exemption which had been agreed to at the first conference session. To accommodate the President's request, the conferees reopened discussion on this provision and agreed to amend the language of the exemption further by amending clause (C)

by changing "a" to "an" and deleting the word "clearly" and by amending clause (D) to exempt from disclosure confidential information in investigatory records in narrowly drawn circumstances.

During the course of the four conference sessions, the conferees agreed that, in addition to the language proposed by Senator Hruska on the de novo provision, language should be included in the Joint Statement of Managers as follows:

(1) Language similar to that deleted from paragraph (4) (E) of the bill, relating to standards for the court in the discretionary award of court costs and attorney fees to plaintiffs in Freedom of Information cases.

(2) A discussion that the "denial" of records be interpreted as including both the initial denial, as well as subsequent denials on appeal.

(3) An explanation and intent of the conferees of the language in section 2(a) of the bill, relating to the amendment to subsection (b)(1) of the Act-the national defense and foreign policy exemption.

(4) A discussion excluding the President's personal staff from the definition of "agency" in section 3 (e) of the bill.

(5) A discussion of intent that agencies adhere to the objectives of the Bayh amendment in the Senate version, making public those documents ordered disclosed which involve matters of general public concern.

Reference to the President's concern with inflexible time limits was made in the final conference, pursuant to which the conferees subsequently agreed to the reinclusion of Senate language that courts may retain jurisdiction to allow agencies additional time to respond in particular situations.

Further technical changes were made in the report, and upon the initiative of the House Conferees, clause (D) of the amended seventh exemption was further extended and clarified.

The Conference Report and Joint Statement of Managers on H.R. 12471 was subsequently agreed to by all House Conferees and by a majority of Senate Conferees. It was filed by Congressman Moorhead in the House on September 25, 1974 (Report No. 93–1380) (Volume 120, Congressional Record, H 9525) and by Senator Kennedy in the Senate on October 1, 1974 (Volume 120, Congressional Record, S 17828). The Senate acted first, agreeing to the Conference Report by voice vote on October 1, 1974 (Volume 120, Congressional Record, S 17971). The House agreed to the Conference Report by roll call vote of 349 to 2 on October 7, 1974 (Volume 120, Congressional Record, H 10008), and the following day H.R. 12471 was sent to the President.