THE FREEDOM OF INFORMATION ACT

MONDAY, MAY 7, 1973

HOUSE OF REPRESENTATIVES,

FOREIGN OPERATIONS AND

GOVERNMENT INFORMATION SUBCOMMITTEE

OF THE COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:05 a.m., in room 2203, Rayburn House Office Building, Hon. William S. Moorhead (chairman of the subcommittee) presiding.

Present: Representatives William S. Moorhead, Bella S. Abzug, and Frank Horton.

Also present: William G. Phillips, staff director; Norman G. Cornish, deputy staff director; Harold F. Whittington, professional staff member; L. James Kronfeld, counsel; and William H. Copenhaver, minority professional staff, Committee on Government Operations. Mr. MOORHEAD. The Subcommittee on Foreign Operations and Government Information will please come to order.

This morning we begin the second day of our hearings on legislation to strengthen and improve the Freedom of Information Act. At our opening day of hearings last week, we received testimony on the current status of the public's access to information and the right to know. Witnesses were a distinguished group of media experts, all of whom had testified at subcommittee hearings in 1955, 1963, and 1965 on this same subject. Their support and effort during that period was most helpful in the eventual enactment of the Freedom of Information Act in 1966.

It was likewise stimulating and helpful to have their comments on the current government information situation. We were pleased to have their enthusiastic support for pending legislation to further expand the people's right to know by plugging loopholes and making other needed improvements in the recent law.

Well over 60 of our colleagues in the House and another 20 in the Senate have cosponsored the two bills before this subcommittee, H.R. 5425-which is also S. 1142-and H.R. 4960.

This morning we are pleased to have a number of these Members with us to testify. Other cosponsors have indicated that they will file statements in support of the legislation.

Our first witness this morning will be our able colleague on the committee, the gentleman from New York, Mr. Horton, who has served with us for many years on this subcommittee, and who is now ranking minority member of the full committee. Mr. Horton is the principal sponsor of H.R. 4960.

You may proceed, Mr. Horton. We are pleased to have you with us.

(75)

STATEMENT OF HON. FRANK HORTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. HORTON. Mr. Chairman, thank you. I am pleased to be before this very important Subcommittee of Government Operations.

Mr. Chairman, I welcome your scheduling of hearings on H.R. 4960 and H.R. 5425 to amend the Freedom of Information Act. Both H.R. 4960, which I cosponsored with you and several other Members, and H.R. 5425, which you have authored, are designed to strengthen the public's right to be informed of their government's activities. Nothing can be more essential to the safeguarding of our democratic societynow in the midst of a severe shock.

George Washington stated that secrecy was a form of deceit. How true those words ring today when executive privilege, security classification, executive secrecy, and harassment of newsmen have been orchestrated to a degree unknown before in our society in an effort to conceal wrongdoing from Congress and the public.

Our form of government-in fact the foundations of our societyrest upon an informed citizenry and their representatives in Congress. To participate effectively in the decisionmaking process and to maintain a watchful eye over those who administer the laws, Congress and the public require access to information which they believe necessary and pertinent. This is even more true today than it was 100 or 200 years ago because the management of our society has come to be centered to an increasing degree in the Federal executive branch. What is worse, perhaps, is that until recently, at least, there has developed an acceptance in the public and in many Members of Congress that secrecy in government-not to mention central direction of government-are good and essential activities.

I hope that this state of mind will now change in light of current events and that Congress and the public will now exert their rights fully-as conferred upon them under the Constitution-to obtain all the information they require.

To this end this subcommittee has held a series of hearings recently on legislation coauthored by Congressman Erlenborn and myself which sets necessary and narrow limits on the use of executive privilege. Soon this subcommittee plans to issue a report recommending changes in the security classification system. And, here today, in these hearings, we are exploring the means in these hearings to strengthen the hand of the people to find out what their government is doing.

Some 7 years ago our Government Operations Committee initiated the Freedom of Information Act. This law provides that all information in the possession of Federal agencies shall be made available to the public except information falling within nine specific categories— for example, classified data, internal communications, investigatory files, trade secrets. This constituted an important breakthrough-one not yet attempted by any other country, if I am not mistaken. In hearings held last Congress which explored the administration of this act, we were informed that the act has served the public well on many occasions. Without question, vastly greater amounts of information are now being made available to the public than occurred prior to the law's passage. But, the hearings also brought to light many problems

and failures in the administration of the act. Among these failings

were:

1

Serious bureaucratic delays in responding to requests for information:

Need of individuals to pursue cumbersome and costly legal remedies;

Inadequate recordkeeping by agencies;

Undue specificity required in identifying records;

Narrow interpretation of the act, thereby excluding greater amounts of information from disclosure;

Imprecise wording of statutory language, leading to inconsistency in interpretation and a restrictive interpretation of the act's provisions;

Promulgation of legally questionable regulations; and

Overclassification of millions upon millions of Government

documents.

Following closely on the heels of these findings was the Supreme Court decision in EPA v. Mink. This decision, in my opinion, sadly misinterpreted the Freedom of Information Act and the intent of Congress in enacting it. Two exemptions incorporated into the act provide that a Federal agency has the discretion to withhold information if it is classified for national security purposes under statute or Executive order or if it constitutes an internal agency communication which would not have to be disclosed in a court of law. Overturning a lower Federal court order upholding a request by 33 Members of Congress for information in the Government's possession concerning the Amchitka nuclear test explosion, the Supreme Court held (1) that the lower court's finding that the exemption could not be used as a shield for withholding was erroneous and that the Government agencies involved could withhold such information on the basis of the above two claimed exemptions and (2) that the lower court could not challenge an agency's classification of documents and was not required to challenge an allegation that documents were properly withheld on the basis of the internal communication exemption.

This decision of the court cannot be allowed to stand, nor can we continue to permit the Freedom of Information Act to be administered in its present form.

To meet these objections, I have introduced H.R. 4960.

Title I of this bill overturns the Mink decision and directs a Federal court to look behind an agency's claim of security classification or internal communication and decide for itself whether a requested document meets the narrow requirements of the law regarding exemption from public disclosure. Moreover, the title seeks to put a stop to the practice of some agencies which have commingled exempt material with nonexempt information in order to screen the entire lot from public view. The courts are authorized to make those portions of a document public which are not covered by an exemption unless to do so would seriously distort the meaning or seriously jeopardize the integrity of the exempt provisions.

Title I also amends three existing exemptions under the Freedom of Information Act to further narrow their application and to further clarify their meaning.

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One such amendment would restrict trade secrets and other commercial or financial information to those instances in which some other law specifically confers an express grant of confidentiality and in which the agency in receipt of the information specifically confers an express written pledge of confidentiality. This amendment is designed to overcome the practice under the existing exemption to, first, confer confidentiality on the basis of the Freedom of Information Act itself; second, to exercise the exemption in cases of other types of confidential or privileged information; and, third, to extend confidentiality solely on the basis of a claim for protection made by the supplier of information rather than under an express grant of confidentiality. At this point, Mr. Chairman, I urge your subcommittee to seek the views of other witnesses on the ramifications of my proposed amendment on the protection of trade secrets.

A second amendment narrows the internal communication exemption which has been widely used to date to withhold information from the public. The amendment would limit the exemption to internal memos or letters which contain recommendations, opinions, and advice supportive of policymaking processes. This is the primary area, I believe, which such an exemption is designed to protect.

The third amendment seeks to alter the exemption on investigatory records compiled for law enforcement purposes. This exemption has also been widely used to conceal information by extending its coverage to include inactive or closed investigative material, as well as that which, if revealed, would not hinder effective law enforcement. The amendment narrows coverage under the exemption of investigatory records to the extent that their production would constitute a genuine risk to enforcement proceedings, or a clearly unwarranted invasion of personal privacy, or a threat to life.

Improving the contents of a law without enhancing enforcement procedures will be of little or no benefit, however. To accomplish the latter, therefore, title II of H.R. 4960 creates a seven-member Commission-four members to be appointed by Congress and three by the President for a term of 5 years-to assist the Federal courts in determining whether requested information is being properly withheld by an agency under the Freedom of Information Act. As has been requested by courts and other authorities, such assistance is essential because the courts at present lack sufficient time or expertise in many instances to enforce the act effectively. In addition to the courts, the bill also authorizes Congress, committees of Congress, the Comptroller General of the United States, and Federal agencies to petition the Commission for a review of an agency's denial of information. An individual citizen may also obtain a review by the Commission if three members of the Commission agree to such a review. Authority to enforce the Freedom of Information Act would remain with the courts and the findings of the Commission would only be advisory.

However, a Commission finding that an agency has improperly withheld information from the public shall constitute prima facie evidence before the court that information has been improperly withheld. This shall have the effect of placing the burden of proof upon the agency in the court proceeding to show that its action in refusing to make information available is consistent with the law.