exemptions of the Freedom of Information Act—that is, that documents withheld under any exemption could be examined by a court in camera. But on that day the Supreme Court, in the Mink case, ruled 5 to 3 (Justice Rehnquist not participating) that any information specifically classified pursuant to executive order and withheld under section 552 (b) (1) is exempt from disclosure whether or not it should have been classified under the relevant standards, and that courts are not entitled to review the property of the agency decision to classify the information. Given the extensive abuses of the classification system that have come to light in recent years (see, e.g., Executive Classification of Information, H.R., Rept. 93-221, Committee on Government Operations, 93rd Cong., 1st Cong.. 1st Sess., May 22, 1973, p. 40) the courts at the least should be vested with authority to review security classification where an agency acted without reasonable grounds to assign a classification to a particular document. The proposed amendment to section 552(b)(1) is designed to give the courts that authority by permitting them to examine the documents in light of the Executive order or statute cited to justify withholding.

The Supreme Court indicated that the existing language of exemption (b)(1) does not permit in camera inspection of withheld documents, if classified, even to sift out "nonsecret components," The court then observed:

Obviously this test was not the only alternative available. But Congress chose to follow the Executive's determination in these matters and that choice must be honored. (410 U.S. at 81.)

In concurring with the majority decision in Mink, Justice Potter Stewart stated that Congress "has built into the Freedom of Information Act an exemption that provides no means to question an executive decision to stamp a document 'secret', however cynical, myopic, or even corrupt that decision might have been." He said further that Congress "in enacting section 552(b) (1) chose ... to decree blind acceptance of exceutive fiat." (410 U.S. at 95). As Congresswoman Mink observed in her testimony before the subcommittee, "Under the slipshod and illicit procedures devised by the executive to withhold information under the national defense exemption, an army of bureaucrats have been allowed to classify and withhold information at will." (Hearings, vol. I at 370.) New York Times vice president Harding Bancroft put the position of the press thusly:

It is of fundamental importance that a court have the power to review the contents of records sought by newspaper reporters and that courts not be bound by a security classification placed upon documents up to 30 years ago by a cautious civil servant-let alone a "cynical, myopic, or even corrupt" one. (Hearings, vol. I at 162.)

Other witnesses, including Senator Harold Hughes, retired Air Force analyst William Florence, Professor Earl Callen, and Dr. Daniel Ellsberg, also attacked existing practices as harmful both to public knowledge of government policy and to expert inquiry into scientific matters. (Hearings, vol. I at 259-68, 285–308. 421-70.) And as Congressman Moorhead said, "In our many days of hearings on classification we saw many cases where the use of the classification stamp was simply ridiculous." (Id. at 180).

Such abuse of security rationales to forestall or prevent disclosure was not the intent of the authors of the FOIA in 1966, and S. 2543 makes it clear that such is not the intent now. The addition of the words "and are in fact covered by such order or statute" to the present language of section 552 (b) (1) will necessitate a court to inquire during de novo review not only into the superficial evidence-a "Secret" stamp on a document or set of records- but also into the inherent justification for the use of such a stamp. Thus a government affidavit certifying the classification of material pursuant to executive order will no longer ring the curtain down on an applicant's effort to bring such material to public light.

Some proposals that have been made to amend subsection (b) (1) would require the court to analyze whether the document withheld would, if disclosed. endanger the national defense or interfere with foreign policy. Under this approach, any classification of the document under an Executive order or statute would be irrelevant. Congress could leave ultimate classification decisions to the courts, under only a general national-defense or foreign-policy standard, but the committee prefers to rely on de novo judicial review under standards set out in Executive orders or statutes.

The courts, in order to determine that the information actually is "covered" by the order or statute, will ordinarily be obliged by S. 2543 to inspect the material in question and, from such an inspection, to determine whether or not the classification was imposed by an official authorized to impose it and in accordance with the standards set forth in the applicable executive order. Moreover, courts facing a (b) (1) exemption claim will have to decide whether or not a classification imposed some time in the past continues to be justified.

A Department of Defense witness told the subcommittee:

I do not believe that the Department of Defense would object to permitting the judge in some circumstances, rare circumstances, I would hope, to examine such a document should he have reason to believe, grounds to believe, or probable cause to believe, that there may have been an improper classification, but we would think that it would be in the court's interests as well as in the interests of everyone, including the executive branch, not to involve the courts in a wholesale review of classified documents. (Hearings, vol. II at 87.)

The American Civil Liberties Union spokesman observed on this point:

I don't think there is a danger the courts will be flooded with litigation. To the contrary, what this statute would do, I think, together with Congress' movement in the classification area in general, would be to place a realistic deterrent on over-classification. Those few litigants who were able to go into court and demonstrate that a document was improperly classified should be entitled to compel its release, but I don't think you will have a flood of persons going in. (Hearings, vol. II at 37.)

The committee realizes that such an examination of sensitive, and quite probably, complex material may impose an additional burden on judges. And the committee would expect judges, in such circumstances, to give consideration to any classification review of the material being sought already conducted within the executive branch. An interagency committee to conduct such reviews has been established pursuant to Executive Order 11652 of March 8, 1972, and courts judging the propriety of classification in a given case should be able to accord the deliberations of that committee-to which requests for declassification are supposed to be appealed-appropriate consideration.

It is essential, however, to the proper workings of the Freedom of Information Act that any executive branch review, itself, be reviewable outside the executive branch. And the courts-when necessary, using special masters or expert consultants of their own choosing to help in such sophisticated determinations-are the only forums now available in which such review can properly be conducted. The judgments involved may often be delicate and difficult ones, but someone other than interested parties-officials with power to classify and conceal information-must be empowered to make them. It is the committee's conclusion that the courts are qualified to make such judgments. Unless they do, citizens cannot be assured that the system for classifying information is not, as Justice Stewart suggested it could be, "cynical, myopic or even corrupt."

[Exhibit 64]

EXCERPT FROM CONFERENCE REPORT (SENATE REPORT) No. 93-1200 ON FOIA AMENDMENTS, 1974

COURT REVIEW

The House bill clarifies the present Freedom of Information law with respect to de novo review requirements by Federal courts under section 552 (a) (3) by specifically authorizing the court to examine in camera any requested records in dispute to determine whether the records are as claimed by an agency-exempt from mandatory disclosure under any of the nine categories of section 552 (b) of the law.

The Senate amendment contained a similar provision authorizing in camera review by Federal courts and added another provision, not contained in the House bill, to authorize Freedom of Information suits to be brought in the Federal courts in the District of Columbia, even in cases where the agency records were located elsewhere.

The conference substitute follows the Senate amendment, providing that in determining de novo whether agency records have been properly withheld, the court may examine records in camera in making its determination under any of the nine categories of exemptions under section 552 (b) of the law. In Environmental Protection Agency v. Mink, et al., 410 U.S. 73 (1973), the Supreme Court ruled that in camera inspection of documents withheld under section 552 (b) (1) of the law, authorizing the withholding of classified information, would ordinarily be precluded in Freedom of Information cases, unless Congress directed otherwise. H.R. 12471 amends the present law to permit such in camera examination at the discretion of the court. While in camera examination need not be automatic, in many situations it will plainly be necessary and appropriate. Before the court orders in camera inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. The burden remains on the Goyernment under this law.

RESPONSE TO COMPLAINTS

The House bill required that the defendant to a complaint under the Freedom of Information law serve a responsive pleading within 20 days after service, unless the court directed otherwise for good cause shown.

The Senate amendment contained a similar provision, except that it would give the defendant 40 days to file an answer.

The conference substitute would give the defendant 30 days to respond, unless the court directs otherwise for good cause shown.

EXPEDITED APPEALS

The Senate amendment included a provision, not contained in the House bill, to give precedence on appeal to cases brought under the Freedom of Information law, except as to cases on the docket which the court considers of greater importance.

The conference substitute follows the Senate amendment.

NATIONAL DEFENSE AND FOREIGN POLICY EXEMPTION (B) (1)

The House bill amended subsection (b)(1) of the Freedom of Information law to permit the withholding of information "authorized under the criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy."

The Senate amendment contained similar language but added "statute" to the exemption provision.

The conference substitute combines language of both House and Senate bills to permit the withholding of information where it is "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense for foreign policy" and is "in fact, properly classified" pursuant to both procedural and substantive criteria contained in such Executive order.

When linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of contested records as part of their de novo determination in Freedom of Information cases, this clarifies Congressional intent to override the Supreme Court's holding in the case of E.P.A. v. Mink, et al., supra, with respect to in camera review of classified documents. However, the conferees recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making de novo determinations in section 552 (b) (1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.

Restricted Data (42 U.S.C. 2162), communication information (18 U.S.C. 798), and intelligence sources and methods (50 U.S.C. 403(d) (3) and (g)), for example, may be classified and exempted under section 552(b) (3) of the Freedom of Information Act. When such information is subjected to court review, the court should recognize that if such information is classified pursuant to one of the above statutes, it shall be exempted under this law.

[Exhibit 65]

EXCERPT FROM ATTORNEY GENERAL'S MEMORANDUM ON 1974 AMENDMENTS TO FOIA, FEBRUARY 1975

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 substantive classification review of the records, regardless of their age. The records should also be reviewed for conformity with the procedural requirements of the Order, and any irregularities should be corrected.

When it is not possible to make the necessary determination within the time limits established by 1974 Amendments, because of the volume, the complexity, or the inaccessibility of the records encompassed by the request, it will frequently be desirable to negotiate a time arrangement for processing the request mutually acceptable to the requester and the agency. (See Appendix III-B for discussion of time limits.) If in such circumstances a requester is unwilling to enter into an arrangement of this nature, an agency will be compelled to rely upon the original classification marking until classification review can be accomplished. Such review must proceed as rapidly as possible.

The primary substantive criteria presently incorporated by the amended exemption appear to be section 1, 4(C) and 5(A), (B), (C), (D), and (E) of Executive Order 11652. The remaining provisions of the Executive Order constitute the procedural criteria. The mandatory review provisions of the Order are not directly affected by the amendment to exemption 1 and should continue to be applied when a member of the public specifically requests classification review under those provisions. However, absent such specific request, the provisions of the Freedom of Information Act, rather than the mandatory review provisions of the Executive Order, will govern the processing of the request.

Under Executive Order 11652, information originally classified by an agency ordinarily can be declassified only by the same agency. There is nothing in the amendments or their legislative history which displays any intent that this disposition be reversed-resulting in a requirement that HEW, for example, make the decision as to whether a document classified by the State Department is "properly" classified. To the contrary, the legislative history recognizes the primacy in this area of those agencies "responsible" for national defense and foreign policy matters. (Con. Rept. p. 12.) In order to reserve the decision to the classifying

21-656-78- 40

agency, it is necessary to consider documentary material contained in one agency's files which has been classified by another agency as being an “agency record” of the latter rather than the former. This seems a permissible construction, since the phrase is nowhere defined and it is unrealistic to regard classified documentary material as "belonging" to one agency for the purposes here relevant when primary control over dissemination of its contents, even within the Government, rests with another agency. Thus, when records requested from one agency contain documentary material classified by another agency it would appear appropriate to refer those portions of the request to the originating agency for determination (as to all matters) under the Act. When such referral is made, the agency to which the request was directed retains its obligation to comply with the Act as to those portions of the request which have not been referred; and the agency receiving the referral has that obligation with respect to the remainder. For purposes of the time limits of the Act, it is consistent with the foregoing analysis to consider the date of receipt of referred portions of a request to be the date on which they are received by the agency to which they are referred (or the date on which they would have been so received, with the exercise of due diligence by the referring agency). Every effort should be made, however. to comply with the limits computed from the date of receipt by the referring agency; and referred requests should be accorded priority.

When requested records contain information classified by the agency receiving the request, but as to which one or more other agencies have a subject matter interest, the agency receiving the request must process and act upon it without referral. Any interagency consultation required by the Executive Order or otherwise desired must be completed within the time limits established by the Act.' Agencies consulted in such circumstances must provide guidance to the primary agency as rapidly as possible in view of the time constraints.

IN CAMERA INSPECTION WITH RESPECT TO EXEMPTION 1

The terms of the amended Act authorize a court to examine classified records in camera to determine the propriety of the withholding under the new substantive standards of the exemption. The Conference Report makes clear, however, that "in camera examination need not be automatic" and that before a court orders in camera inspection "the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure." (Conf. Rept. p. 9.) The Conference Report also emphasizes congressional recognition that:

"[T]he Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particularly classified record. Accordingly, the conferees expect that Federal courts. in making de novo determinations in section 552(b) (1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." (p. 12)

A recent Court of Appeals decision-not involving a Freedom of Information Act request, but taking account of the amendment of exemption 1 and the new provision for in camera inspection-comports with this legislative view. It affirms the need for judicial restraint in the field of national security information and the appropriateness of judicial deference to classification decisions made and reviewed administratively in accordance with the provisions of Executive Order 11652, particularly decisions reflecting the expertise and independent judgment of the interagency review body established under that Order."

In his veto of the 1974 Amendments, accompanied by suggestions for acceptable revisions, the President had expressed concern that the Amendments posed serious problems, including a problem of constitutional dimensions, to the extent that they authorized a court to overturn an Executive classification decision which had a reasonable basis. To avoid this difficulty, the President proposed: "that where classified documents are requested, the courts could review the classification, but would have to uphold the classification if there is a reasonable basis to support it. In determining the reasonableness of the classification, the courts would consider all attendant evidence prior to

1 The Amendments do, however, provide that such consultations may constitute "unusual circumstances" for which the time limits may be extended for a maximum of 10 working days.