Pam tile CONTENTS Page Giannella, Donald A., "Agency Procedures Implementing the Katz, Joan M., "The Games Bureaucrats Play: Hide and Seek 350 Koch, Charles H. Jr., "The Freedom of Information Act: Sug- INTRODUCTION On July 4, 1966, the Freedom of Information Act was signed into law. The act, which became effective on July 4, 1967, was designed to reverse earlier law under which government agencies considered themselves free to withhold information from the public under whatever subjective standard could be articulated for the occasion. Most importantly, the Freedom of Information Act (FOIA)1 set a standard of openness for government from which only deviations in well-defined areas would be allowed. The FOIA then went on to define those areas in a series of nine "exemptions." Finally, it provided a remedy for the wrongful withholding of information: the person requesting information from the government could take his case to court. President Lyndon B. Johnson, in his bill-signing statement, articulated the spirit which the Freedom of Information Act was intended to instill in all areas of government: This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull the curtains of secrecy around decisions which can be revealed without injury to the public interest. *** I signed this measure with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded. 2 But, as recognized by Congress and the Executive, and as spelled out by Attorney General Ramsey Clark in a memorandum explaining the Act, the law "is not wholly self-explanatory or self-executing. Its efficacy is heavily dependent on the sound judgment and faithful execution of those who direct and administer our agencies of government." Because the execution of this law by "those who direct and administer our agencies of government" has been substantially less than "faithful," testimony at recent hearings of the Subcommittee on Administrative Practice and Procedure on Freedom of Information 3 has suggested "that the act has become a 'freedom from information' law, and that the curtains of secrecy still remain tightly drawn around the business of our government." Judicial decisions and recent House subcommittee hearings and report substantiate this conclusion.* In his 1953 book entitled "The People's Right to Know," Harold L. Cross, writing for the Committee on Freedom of Information of the 15 U.S.C. § 552 (printed below in full at p. 11). 2 Attorney General's Memorandum on the Public Information Section of the Administrative_Procedure Act. U.S. Dept. Justice. June 1967 (printed below at page 194). 3 Executive Privilege, Government Secrecy and Freedom of Information. Hearings before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Committee on the Judiciary and the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, U.S. Senate, vol. I (April 10, 11, 12, May 8, 9, 10 and 16, 1973), vol. II (June 7, 8, 11 and 26, 1973), and vol. III (Appendices). AU.S. Government Information Policies and Practices-Administration and Operation of the Freedom of Information Act, Hearings before the Subcommittee on Foreign Operations and Government Information, Committee on Government Operations, House of Representatives, 92d Congr., 2d Sess. (parts 4-6): Administration of the Freedom of Information Act, H. Rept. No. 92-1419, Committee on Government Operations, 92d Cong., 2d Sess., Sept. 20, 1972; see summaries of court decisions below in part II. (1) American Society of Newspaper Editors, observed "the dismaying, bewildering fact" that "in the absence of a general or specific act of Congress creating a clear right to inspect . . . there is no enforceable legal right in public or press to inspect any federal non-judicial record." The FOIA not only created this "clear right" in the public and press, but also made it enforceable. Thus the Act provided that whenever a person believed his request for information was wrongfully denied, he could take his case to the federal courts. The law specifically provides: On complaint, the district court of the United States . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production on any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee. 9 ... In May 1968 this Subcommittee published a "Ten Months Review" of the Freedom of Information Act," in which it observed that a pattern of court decisions under this act had not yet emerged although, of the eleven cases decided, "four have held in favor of disclosure and seven against." Now, some six years after the effective date of the FOIA, over two hundred suits have been filed under the act. Summary briefs of the substantive decisions handed down under this Act are contained in this volume in part II. A House Subcommittee, analyzing the decisions under the FOIA, observed that the courts have generally been reluctant to order the disclosure of government information falling within the first exemption of the act, information "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and within the seventh, "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." On the other side, courts have generally ruled against government withholding of information alleged to fall within the fourth and fifth exemptions relating to trade secrets and internal communications. Nonetheless, in his general observations concerning the cases decided under the FOIA, Attorney General Elliot Richardson, appearing before the Senate Subcommittee on Administrative Practice and Procedure, observed that "the courts have resolved almost all legal doubts in favor of disclosure.” 7 6 It should be emphasized that the exemptions in the FOIA were not intended by Congress to be used either to prohibit disclosure of information or to justify automatic withholding of information. Rather, they merely mark the outer limits of information that may be withheld where the agency makes an affirmative determination that the public interest and the specific circumstances presented dictate that the information should be withheld. Agencies have been slow to adopt this attitude, but enlightened judicial decisions reflect this approach to interpreting the force of the FOIA exemptions. Most significantly, the courts appear to adopt and reinforce at each opportunity the congressional intent underlying passage of the Freedom of Information Act. For example, one Court of Appeals, after 5 The Freedom of Information Act (Ten Months Review), Comm. Print Submitted by the Subcommittee on Administrative Practice and Procedure to the Committee on the Judiciary of the U.S. Senate, 90th Cong., 2d Sess., May 1968. H. Rept. No. 92-1419, supra note 4 at 71. |