Although many of the provisions that are now before you in Conference will be expensive in their implementation, I believe that most would more effectively assure to the public an open Executive branch. I have always felt that administrative burdens are not by themselves sufficient obstacles to prevent progress in Government and I will therefore not comment on those aspects of the bill. There are, however, more significant costs to Government that would be exacted by this bill-not in dollar terms, but relating more fundamentally to the way Government, and the Executive branch in particular, has and must function. In evaluating the costs, I must take care to avoid seriously impairing the Government we all see, to make more open. I am concerned with some of the provisions which are before you as well as some which I understand you may not have considercd. I want to share my concerns with you so that we may accommodate our reservations in achieving a common objective. A provision which appears in the Senate version of the bill but not in the House version requires a court, whenever its decision grants withheld documents to a complainant, to identify the employee responsible for the withholding and to determine whether the withholding was "without (a) reasonable basis in law" if the complainant so requests. If such a finding is made, the court is required to direct the agency to suspend that employee without pay or to take disciplinary or corrective action against him. Although I have doubts about the appropriateness of diverting the direction of litigation from the disclosure of information to career-affecting disciplinary hearings about employee conduct, I am most concerned with the inhibiting effect upon the vigorous and effective conduct of official duties that this potential personal liability will have upon employees responsible for the exercise of these judgments. Neither the best interests of Government nor the public would be served by subjecting an employee to this kind of personal liability for the performance of his official duties. Any potential harm to successful complainants is more appropriately rectified by the award of attorney fees to him. Furthermore, placing in the judiciary the requirement to initially determine the appropriateness of an employee's conduct and to initiate discipline is both unprecedented and unwise. Judgments concerning employee discipline must, in the interests of both fairness and effective personnel management, be made initially by his supervisors and judicial involvement should then follow in the traditional form of review. There are provisions in both bills which would place the burden of proof upon an agency to satisfy a court that a document classified because it concerns military or intelligence (including intelligence sources and methods) secrets and diplomatic relations is, in fact, properly classified, following an in camera inspection of the document by the court. If the court is not convinced that the agency has adequately carried the burden, the document will be disclosed. I simply cannot accept a provision that would risk exposure of our military or intelligence secrets and diplomatic relations because of a judicially perceived failure to satisfy a burden of proof. My great respect for the courts does not prevent me from observing that they do not ordinarily have the background and expertise to gauge the ramifications that a release of a document may have upon our national security. The Constitution commits this responsibility and authority to the President. I understand that the purpose of this provision is to provide a means whereby improperly classified information may be detected and released to the public. This is an objective I can support as long as the means selected do not jeopardize our national security interests. I could accept a provision with an express presumption that the classification was proper and with in camera judicial review only after a review of the evidence did not indicate that the matter had been reasonably classified in the interests of our national security. Following this review, the court could then disclose the document if it finds the classification to have been arbitrary, capricious, or without a reasonable basis. It must also be clear that this procedure does not usurp my Constitutional responsibilities as Commander-in-Chief. I recognize that this provision is technically not before you in Conference, but the differing provisions of the bills afford, I believe, grounds to accommodate our mutual interests and concerns. The Senate but not the House version amends the exemption concerning investigatory files compiled for law enforcement purposes. I am concerned with any provision which would reduce our ability to effectively deal with crime. This amendment could have that effect if the sources of information or the information itself are disclosed. These sources and the information by which they may be identified must be protected in order not to severely hamper our efforts to combat crime. I am, however, equally concerned that an individual's right to privacy would not be appropriately protected by requiring the disclosure of information contained in an investigatory file about him unless the invasion of individual privacy is clearly unwarranted. Although I intend to take action shortly to address more comprehensively my concerns with encroachments upon individual privacy, I believe now is the time to preclude the Freedom of Information Act from disclosing information harmful to the privacy of individuals. I urge that you strike the words "clearly unwarranted” from this provision. Finally, while I sympathize with an individual who is effectively precluded from exercising his right under the Freedom of Information Act because of the substantial costs of litigation, I hope that the amendments will make it clear that corporate interests will not be subsidized in their attempts to increase their competitive position by using this Act. I also believe that the time limits for agency action are unnecessarily restrictive in that they fail to recognize several valid examples of where providing flexibility in several specific instances would permit more carefully considered decisions in special cases without compromising the principle of timely implementation of the Act. Again, I appreciate your cooperation in affording me this time and I am hopeful that the negotiations between our respective staffs which have continued in the interim will be successful. I have stated publicly and I reiterate here that I intend to go more than halfway to accommodate Congressional concerns. I have followed that commitment in this letter, and I have attempted where I cannot agree with certain provisions to explain my reasons and to offer a constructive alternative. Your acceptance of my suggestions will enable us to move forward with this progressive effort to make Government still more responsive to the People. Sincerely, GERALD R. FORD. 47-217-75-25 D. HOUSE ACTION AND VOTE ON CONFERENCE REPORT, OCTOBER 7, 1974; PP. H10001-H10009 FREEDOM OF INFORMATION ACT AMENDMENTS Mr. MOORHEAD of Pennsylvania. Mr. Speaker, I call up the conference report on the bill (H.R. 12471) to amend section 552 of title 5, United States Code, known as the Freedom of Information Act, and ask unanimous consent that the statement of the managers be read in lieu of the report. The Clerk read the title of the bill. The SPEAKER. Is there objection to the request of the gentleman from Pennsylvania? There was no objection. The Clerk read the statement. [For conference report and statement, see proceedings of the House of September 25, 1974.] Mr. MOORHEAD of Pennsylvania. Mr. Speaker, since the text of the conference report has been printed with the amendment and also printed in the Congressional Record of Wednesday, September 25, 1974, I ask unanimous consent that the statement of the managers be considered as read. The SPEAKER. Is there objection to the request of the gentleman from Pennsylvania? There was no objection. Mr. MOORHEAD of Pennsylvania. Mr. Speaker, I yield myself such time as I may consume. (Mr. Moorhead of Pennsylvania asked and was given permission to revise and extend his remarks and include extraneous matter.) Mr. MOORHEAD of Pennsylvania. Mr. Speaker, on March 14 of this year this important bill to make a number of needed procedural and substantive amendments to the Freedom of Information Act of 1966 was considered by the House and passed by the overwhelming vote of 383 to 8. A Senate version of the bill was considered by that body and passed on May 30 by a vote of 64 to 17. The Senate bill contained several amendments not previously considerd by the House, two of which were of considerable significance. One dealt with the imposition of administrative sanctions against Government officials or employees for the improper withholding of information under the law and the second amendment tightens loopholes in the exemption dealing with law enforcement records. There were also a number of important differences in language between the two bills on amendments contained in both the House and Senate versions. The conference committee met on four separate occasions to resolve differences between the House and Senate bills, reaching final agreement on August 21, except for minor technical changes in language that were resolved after the Labor Day congressional recess. Mr. Speaker, I will now indicate the major changes in the House bill that have resulted from the conference: First, the conference version directs each Federal agency to issue regulations covering the direct costs of searching for and duplicating records requested under the Freedom of Information Act. It also provides that an agency may waive the fees if it determines that it would be in the public interest. Second, the Senate bill contained a provision authorizing Federal courts-in Freedom of Information Act cases-to impose a sanction of up to 60 days suspension from employment against a Federal official or employee which the court found to have been responsible for withholding the requested records without "reasonable basis in law." This amendment, the most controversial part of the conference committee's deliberations, was opposed by many House conferees on the grounds that it gave the court such unusual disciplinary powers over Federal employees. After extensive discussion over 3 days of meetings, the conferees reached a reasonable compromise-if the court finds for the plaintiff and against the Government and awards attorney fees and court costs, and if the court makes a written finding that circumstances surrounding the withholding raise questions whether the Federal agency personnel acted "arbitrarily or capriciously," the Civil Service Commission must initiate a proceeding to determine whether or not disciplinary action is warranted against the responsible Federal official or employee. The Civil Service Commission would then investigate the circumstances, may hold hearings, and otherwise proceed in accordance with regular civil service procedures. The employee has full rights of due process and the right to appeal any adverse finding by the Commission. If the Commission's decision is against the Federal official or employee, it would submit its findings and disciplinary recommendations for suspension to the affected agency, which would then impose the suspension recommended by the Commission. Mr. Speaker, there has been some misunderstanding about this sanction provision and I trust that this explanation will help clarify our intent. I seriously doubt that such procedures will actually be invoked except in unusual circumstances. Its inclusion in the law will make it crystal clear that Congress expects that this law be strictly adhered to by all Federal agency personnel and that withholding of Government records be only when clearly authorized by one of the nine exemptions contained in the freedom of information law. Mr. Speaker, at this point in the Record, I would like to include a letter sent to all members of the conference committee by Mr. John A. McCart, operations director of the AFL-CIO Government Employees Council in which his organization-representing some 30 unions and 1.5 million Federal and postal employees-endorses the compromise sanction provisions contained in this bill: Hon. WILLIAM MOORHEAD, GOVERNMENT EMPLOYEES COUNCIL-AFL-CIO, U.S. House of Representatives, Washington, D.C. DEAR CONGRESSMAN MOORHEAD: Because of your membership on the conference committee on H.R. 12471 (Freedom of Information Act Amendments), we believe you will be interested in the views of our organization on the provision affecting Federal officers and employees in connection with alleged violations. Thirty AFL-CIO unions representing more than 1.5 million Federal and postal workers comprise the Council. Our concern with the original language in the measure is that it permitted Federal courts to impose administrative penalties on employees where violations were confirmed by the courts. This arrangement would deprive postal and Federal employees of due process permitted under existing laws governing disciplinary actions. Moreover, the language could open lower level employees to court imposed discipline, even though they were acting in keeping with instructions from higher level officials. Section A 4(f) of the measure agreed to by the conferees on August 21 is much less onerous. In cases where Federal courts find a violation exists and believe disciplinary action may be justified, the matter will be referred to the Civil Service Commission for processing through the employing agency. Under this procedure, we assume employees will be entitled to the appellate rights normally available in current statutes applicable to the Federal service. The Council urges acceptance of the conference agreement of August 21. JOHN A. MCCART, Finally, Mr. Speaker, another provision of the Senate bill, not previously considered by the House but included in the conference bill, is an amendment to section 552(b) (7), the exemption in the law dealing with law enforcement records. Under recent court decisions, the language of the present law has been interpreted as almost a blanket exemption against the disclosure of any "law enforcement files," even if they have long since lost any requirement for secrecy. The bill now contains modified language of the amendment sponsored by the Senator from Michigan, Mr. Hart, and adopted in that body by a vote of 51 to 33, which tightens up the loopholes of the seventh exemption by providing six specific areas of criteria under which agency withholding of information is permitted. Certain of these criteria were the subject of compromise language to accommodate unusual requirements of some agencies such as the Federal Bureau of Investigation. Mr. Speaker, before yielding to other members of the committee, I would like to refer briefly to communications between the conference committee on this legislation and President Ford. During the meetings of the committee and only a few days after his swearing in, President Ford requested a delay in our proceedings to give him an opportunity to study the bill and agreements already reached by the conferees. We unanimously agreed to this request. On August 20, President Ford sent a letter to the conference committee setting forth his views in four major areas-sanctions, the in camera review language that was virtually identical in both House and Senate bills, the law enforcement exemption amendment, and the provision for discretionary award by the courts of attorney fees and court costs to successful Freedom of Information Act plaintiffs. Mr. Speaker, the conferees seriously considered each of the points made by President Ford in his letter and have gone "more than half way" to accommodate his views. We modified the sanction provision of the bill. We included language on the in camera review part of the conference report to clarify congressional intent along the lines he suggested. We modified two provisions of the law enforcement exemption language to meet points he raised. We had already acted to clarify our intent that corporate interests not be subsidized by the award of attorney fees and court costs in freedom of information cases. The conference committee made every effort to cooperate with the President in our consideration of this measure and feel that we have acted |