Public Law 90-23 90th Congress, H. R. 5357 An Act To amend ection 552 of title 5, United States Code, to codify the provisions of 81 STAT. 54 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That section 552 of Public infortitle 5, United States Code, is amended to read: "8 552. Public information; agency rules, opinions, orders, records, and proceedings "(a) Each agency shall make available to the public information as follows: "(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public "(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; "(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and mation. 80 Stat. 383. Publication in Federal Register. "(E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the Exception. terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. "(2) Each agency, in accordance with published rules, shall make Inspection and available for public inspection and copying "(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; "(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public; copying. unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency also shall maintain and make available for public inspection and copying a current index providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. A Conditions. final order, opinion, statement of policy, interpretation, or staff manual 81 STAT, 55 Exceptions. Nonapplicability. Congressional reservation. Pub. Law 90-23 - 2 June 5, 1967 or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if— "(i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof. (3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of 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, and in the case of a uniformed service, the responsible member. Except as to causes the court considers of greater importance, proceedings before the district court, as authorized by this paragraph, take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way. "(4) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding. "(b) This section does not apply to matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy; "(2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; "(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; "(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; "(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency; "(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or "(9) geological and geophysical information and data, including maps, concerning wells. "(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress." SEC. 2. The analysis of chapter 5 of title 5, United States Code, is amended by striking out: "552. Publication of information, rules, opinions, orders, and public records." and inserting in place thereof: "552. Public information; agency rules, opinions, orders, records, and proceedings." SEC. 3. The Act of July 4, 1966 (Public Law 89-487, 80 Stat. 250), is repealed. SEC. 4. This Act shall be effective July 4, 1967, or on the date of enactment, whichever is later. Approved June 5, 1967. 80 Stat. 380. Repeal. Effective date. From: American Law Division. THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, June 7, 1971. Reference is made to your inquiries as to whether the President has the constitutional power, commonly referred to as "executive privilege," to withhold information from Congress. If so, who may exercise it and what circumstances? To whom may it be delegated, and how? To what extent may it be invoked by officials in independent regulatory agencies? Inasmuch as the question whether the President, or any other person in the Executive Branch, may withhold information from Congress has not been adjudicated, it is impossible to give a definitive answer to any of these questions. The best we can do is to analyze various theories advanced as the basis for the alleged right to withhold information and to cite some instances illustrative of each. Although some Members of Congress have defended the right to withhold in specific cases, in general, the history of this issue has been that of the Executive Department asserting the right to withhold, Congress challenging his assertion, and the result determined by negotiation or political pressure, but without an authoritative decision of the validity of either position. The term "executive privilege" is frequently used to justify the withholding of information from Congress under varying circumstances which may raise diverse legal issues. Such withholding may rest upon at least three different bases: (1) that Congress has no power to demand the information sought, because that information is not relevant to any matter within its constitutional powers (2) that the doctrine of separation of powers disables Congress from demanding information which, even though relevant to performance of its functions, would hinder the Executive in the discharge of its constitutional responsibilities (3) that the Executive may refuse to disclose to Congress material which is privileged under the law of evidence. An early example of refusal to furnish information to one House of Congress on the ground that the subject matter was beyond its constitutional power arose in the administration of George Washington. The House of Representatives sought, in 1796, to obtain the correspondence, documents and instructions to John Jay respecting negotiation of the Jay Treaty. Washington refused to furnish this information on the ground, inter alia, that "the inspection of the papers asked for can[not] be relative to any purpose under the cognizance of the House .. except that of an impeachment; which the resolution has not expressed;" 5 Annals of Congress 761 (1796). The House, after extensive debate, adopted a resolution insisting on its right to receive this information, 5 Annals of Congress 782-783 (1796). James Madison was one who defended the President's right to withhold information. At this time Washington furnished the information to the Senate for its use in deliberations on ratification of the treaty. But the President has not always conceded the right of the Senate to demand documents pertaining to the negotiation of a treaty. A sharp debate on this point was precipitated in 1930 when the Senate demanded all papers relating to the negotiation of the London Treaty for the limitation and reduction of naval armament. Because some of the documents contained very frank comments on officials of other governments, the President declined to transmit all of the requested materials. Senator McKeller introduced a resolution "requesting" the President to submit all such papers to the Senate. Senator Robinson of Arkansas offered an amendment adding the clause "if not incompatible with the public interest." This amendment was adopted, 73 Congressional Record 86 (1930). However, in the debate on it more Senators defended the right of the Senate to demand the documents than denied it. Senator McKellar took the position, id. at pages 25, 35, that "Under the Constitution, the President and the Senate have equal rights in the treaty-making power. Naturally, they have a right to all the facts and information; and all the facts and information that one has the other is entitled to." * "Mr. President, it seems to me that this resolution should be passed without amendment. It means no disrespect to the President, not a particle. Mr. Hoover is the President of this entire country, and he is entitled to the respect of all persons in the Senate and out of it, and no disrespect is meant to him by this resolution. It is a question of the Senate's right; it is a question of our equality of power under the Constitution; it is a question of devotion to the Constitution; it is a question of whether we are going to override the Consitution, or are going to stand by the Constitution as we understand it." Senator (now Mr. Justice) Black argued, id. at pages 40-41, that "So, Mr. President, I assert, and I do not believe it can be successfully refuted, that the communications, the documents, the written evidence of all kinds and all character which might throw light upon the circumstances which brought about the making of this treaty and which gave it birth are relevant and pertinent as evidence to be considered by this body before it reaches a conclusion as to whether it will approve or disapprove the treaty. "Going a step further, I assert this principle, which I believe can not be denied it certainly can not be denied without admitting that the creature itself is greater than its creator: The Department of State was created by act of Congress. It could be abolished to-day by the Congress. Every particle of authority it has could be taken away from it by the two bodies of Congress with the approval of the President, and if he disapproved it could be done over his veto with a two-thirds vote. Therefore the Department of State is a creature of this body. If a question comes up as to any irregularity there, for instance, we have the right to call for the files. They are kept under authority of law for the conveniency of the Government and for the use of the representatives of the people in the performance of their duties. "Therefore, when these documents are placed on file in that office they are subject to the call of this body. If they are not, then what would be the situation? If the head of the department can shield himself by stating that the President has directed him, he can do it in another. If an irregularity was thought to exist in the accounts of some member of that department and this body should seek to obtain the evidence, if the rule which is sought to be invoked here is correct, all that would be necessary for that official to do would be to say, "It would not be compatible with the public interest to turn over these papers," and in that way carry out still further the growing power of bureaus, their greedy absorption of power. The hands of the people would be tied and their representatives would be helpless to avenge their wrongs." Senator Shipstead also defended the right of the Senate to obtain all papers relating to the negotiation of the treaty, saying, id. at page 55 "If the Senate is coordinate with the President in the treaty-making power-and the Senate is coordinate with the President in the making of treaties-it naturally follows that the entire subject matter, all the facts in the case, must be in the hands both of the President and of the Senate; there must be joint ownership and joint custody of these documents if the two branches of the Government are to coordinate and agree. With that joint ownership and custody must naturally go a joint responsibility for the disposition of the documents and the decision whether they shall be made public or whether they shall be kept confidential. "It seems to me, on that basis, it would be improper for either the President or the Senate to make these documents public without the consent of the other branch of the treaty-making power; but the question of the right of the Senate to have these documents in its possession can not be questioned in the light of all the history that has gone by in the past in connection with the treaty-making process of the Government of the United States. "I have failed to find one single instance where the Chief Executive has ever refused the Senate documents that it requested during the process of negotiating or making a treaty." On the other hand, Senator Robinson of Arkansas took the position id. at page 46 that |