ATTORNEY GENERAL'S MEMORANDUM ON THE 1974 AMENDMENTS TO THE FREEDOM OF INFORMATION ACT A MEMORANDUM FOR THE EXECUTIVE DEPARTMENTS AND AGENCIES CONCERNING THE AMENDMENTS TO THE FREEDOM OF INFORMATION ACT (5 U.S.C. 552, SOMETIMES REFERRED TO AS SECTION 3 OR THE PUBLIC INFORMATION SECTION OF THE ADMINISTRATIVE PROCEDURE ACT) EFFECTED BY P.L. 93-502, ENACTED NOVEMBER 21, 1974, AND EFFECTIVE FEBRUARY 19, 1975 Citations: This Memorandum may be cited as "A.G.'s 1974 FOI Amdts. Mem." The June 1967 Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act is cited herein as "A.G.'s 1967 FOI Mem." (For the form of citation of legislative reports on the 1974 Amendments as used herein, see Appendix III-A, below.) UNITED STATES DEPARTMENT OF JUSTICE February 1975 FOREWORD When the Freedom of Information Act was enacted in 1967, Attorney General Clark issued a memorandum on its application and interpretation for the guidance of all Federal departments and agencies. The 1974 Amendments to the Act represent a less fundamental change from existing practice than did the Act itself; yet in several respects they pose legal and administrative problems of great complexity. For that reason, and because of the high public importance of the program which the Amendments affect, I have thought it appropriate to meet their enactment with guidelines similar to the 1967 memorandum. Despite the short time available, an extensive consultative process has been followed in the preparation of these guidelines, including the solicitation of advice from those concerned with Freedom of Information matters in many agencies of the Government, and from the professional staffs of the congressional committees responsible for the Amendments. The guidance does not purport to be exhaustive, and I invite further comments from the agencies, and from the public, which may assist in achieving effective administration of the Act. The President has asked me, in issuing these guidelines, to emphasize on his behalf that it is not only the duty but the mission of every agency to make these Amendments effective in achieving the important purposes for which they were designed. The Department of Justice will continue to regard the encouragement of sound and effective implementation of the Freedom of Information Act as one of its most important responsibilities. Eduard H. Fari EDWARD H. LEVI, (iii) TABLE OF CONTENTS Part I. Amendments pertaining to the scope and application of the A. Changes in exemption 1 (classified national defense and foreign policy records) and the provision concerning in camera inspec- tions__ B. Changes in exemption 7 (investigatory law enforcement records). C. The provision on the availability of "reasonably segregable" portions of a record containing exempt matter. Part II. Amendments pertaining to administration and other matters.......- A. Legislative history chronology and citations. B. Attorney General's December 11, 1974 "Preliminary Guidance" Memorandum, including attachments thereto (attachment C of the December 11th memorandum is the text of the Freedom of Informa- (V) PART I. AMENDMENTS PERTAINING TO THE SCOPE AND APPLICATION OF THE EXEMPTIONS I-A. CHANGES IN EXEMPTION 1 (CLASSIFIED NATIONAL DEFENSE AND FOREIGN POLICY RECORDS) AND THE PROVISION CONCERNING IN CAMERA INSPECTIONS The 1974 Amendments modify the national defense and foreign policy exemption of the Act, 5 U.S.C. 552(b) (1), and add an express provision concerning in camera judicial inspection of records sought to be withheld under any exemption, including exemption 1. The change in exemption 1 primarily affects the procedures and standards applicable to an agency's processing of requests for classified records. The provision concerning in camera judicial inspection affects the manner in which a court may treat classified records which an agency seeks to withhold. AMENDMENT OF EXEMPTION 1 Exemption 1 of the 1966 Act authorized the withholding of information "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." As amended, exemption 1 will permit the withholding of matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." The previous language established a standard which essentially was met whenever a record was marked "Top Secret," "Secret," or "Confidential" pursuant to authority in an Executive order such as No. 10501 or its successor, No. 11652. The more detailed standard of the amended exemption limits its applicability to information which, as noted in the Conference Report, "is 'in fact, properly classified' pursuant to both procedural and substantive criteria contained in such Executive order." (Conf. Rept. p. 12.) Consequently, a Freedom of Information request which encompasses classified records will require, at both the initial and appellate stages, an administrative determination that the records warrant continued classification under the criteria of Executive Order 11652 or any subsequent Executive order governing the protection of national security information. This determination must be based upon 1 |