REDEFINITION OF AGENCY 25 of the Government (including the Executive Office of the President), or any independent regulatory agency." There were certain differences between the definitions of "agency" in the House and Senate bills. The Conference Report (pp. 14-15) explains that the conferees followed the House bill, and throws considerable light on the meaning of "agency" in the amended Act, as follows: "The conferees state that they intend to include within the definition of 'agency' those entities encompassed by 5 U.S.C. 551 and other entities including the United States Postal Service, the Postal Rate Commission, and government corporations or government-controlled corporations now in existence or which may be created in the future. They do not intend to include corporations which receive appropriated funds but are neither chartered by the Federal Government nor controlled by it, such as the Corporation for Public Broadcasting. Expansion of the definition of 'agency' in this subsection is intended to broaden applicability of the Freedom of Information Act but it is not intended that the term 'agency' be applied to subdivisions, offices or units within an agency. "With respect to the meaning of the term 'Executive Office of the President' the conferees intend the result reached 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." It seems clear from the legislative history that the new provision of the Act defining "agency" is intended chiefly to clarify and expand the class of organizational entities to be deemed "agencies" so that their records will be subject to the Act. In fact, however, the issue of what is an "agency" will be confronted only rarely in the context of whether particular records are covered, but will arise more often in determining whether the various requirements of the Act applicable to concededly covered "agency" records must be complied with by a lesser or greater organizational unit within the particular Governmental entity. (See, e.g., subsections (a)(1), (a)(2), (a)(3), (a) (4) (A), (a) (4) (B), (a)(4)(F), (a)(5), (a)(6)(A), (a) (6) (C), (b) (2), (b)(5), (b) (7) (D), and (d).) The amendment apparently did not intend to affect this aspect of the matter 13 and it is left in the same uncertainty that existed under the previous law. 5 U.S.C. 551 specifies that an authority is an agency "whether or not it is within or subject to review by another agency." Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971), cited with approval in the excerpt from the Conference Report quoted above, states that agency status is "apparently" conferred on "any administrative unit with substantial 13 See the last sentence of the first paragraph quoted from the Conference Report. independent authority in the exercise of specific functions." In other words, particularly in some of the larger Government departments, there may be "agencies" within "agencies." Despite its theoretical perplexity, this issue has rarely been a source of substantial practical difficulties. The principle which has evolved is that it is for the over-unit-the higher-level "agency"-to determine which of its constituent parts will function independently for Freedom of Information Act purposes. It is sometimes permissible to make the determination differently for purposes of various provisions of the Act-for example, to publish and maintain an index at the over-unit level, while letting the appropriate subunits handle requests for their own records. Giving variable context to the term "agency" in this fashion often furthers the purposes of the Act-as, in the example just given, by speeding up responses to requests (handled at the lower organizational level) while making the index of documents available at a larger number of "agency" offices or reading rooms (those of the higher organizational unit). As long as the overunit makes a good-faith disposition of this issue which does not needlessly impede the purposes of the Act, it seems unlikely that its decision will be reversed. II-F. CONTENTS OF DENIAL LETTERS Any denial under the amended Act must include: (a) The reasons for the denial, with appropriate references to the exemptions involved; (b) The name and title of the person or persons responsible for denying the request (presumably the official who signs the letter unless otherwise indicated); and (c) A statement to the requester complying with the Act, 5 U.S.C. 552(a) (6) (A), describing his administrative appeal rights. A letter on administrative appeal that affirms a denial in whole or part must contain a statement to the requester complying with 5 U.S.C. 552(a)(6)(A) describing his judicial review rights. Of course it should also set forth the reasons for affirmance (which may be merely "the reasons stated in the denial" if that is the case) and the name and title of the person responsible for the affirmance. Part III: APPENDICES III-A: LEGISLATIVE HISTORY CHRONOLOGY AND CITATIONS September 20, 1972 Moorhead Report (House Report No. March 5, 1974 House Report No. 93-876 on H.R. 12471. This report includes the text of the bill as it was passed by the House on March 14, 1974. March 14, 1974 House Debate on H.R. 12471, 120 Cong. Rec. pp. H1787-H1803. (All references to page numbers in the Congressional Record are to the page numbering in the daily editions.) May 16, 1974 Senate Report No. 93-854 on S. 2543. May 30, 1974 Senate Debate on S. 2543, 120 Cong. Rec. pp. S9310-59343. This debate includes the text of several floor amendments to S. 2543 which were adopted before that bill was inserted into H.R. 12471 as a substitute for the text of the latter bill and then passed as H.R. 12471. August 20, 1974 President Ford's letter to conferees. October 1, 1974 Conference Report (Senate Report No. 93-1200). October 1, 1974 Senate passes conference version, * These legislative reports on the 1974 Amendments to the Freedom of Information Act are cited in the foregoing memorandum as "H. Rept.", "S. Rept.", and "Conf. Rept.", spectively. re Cong. Rec. pp. H10001-H10009. 10. October 17, 1974 President Ford's Veto Message. Weekly Compilation of Presidential Documents, Vol. 10, No. 42. 11. November 20, 1974 House Override Debate, 120 Cong. Rec. H10864-H10874. 12. November 21, 1974 Senate Override Debate, 120 Cong. Rec. S19806-S19823. III-B: ATTORNEY GENERAL'S DECEMBER 11, 1974 "PRELIMINARY By action of the Senate on November 21st in overriding the President's veto of the enrolled bill H. R. 12471, several important amendments have been made to the Freedom of Information Act, 5 U.S.C. 552. Most of these will have some effect upon your agency. The new amendments (hereinafter the "1974 Amendments") will become effective on February 19, 1975. It is essential that every agency take certain actions as soon as possible, as discussed below, in order to be in compliance with the 1974 Amendments when they become effective. 4. 5. Time Limits for Agency Determinations Uniform Agency Fees Procedures on Requests for Classified Records Requirements for Annual Report |