Knowledge is Power: Poverty Law and the Freedom the Freedom of Information Act
by Stephen R. Elias and Trudy Rucker, Staff Attorneys, Center on Social Welfare Policy and Law
Information-public versus classified-has recently aroused widespread interest and controversy, particularly since the Pentagon papers case. The public is now keenly aware that there are literally tons of government documents withheld from the public domain in the secret preserve of government officials. Although the act of divulging such "secret" documents has become heroic, since the Freedom of Information Act1 was passed in 1967 any member of the American public has been entitled to inspect millions of documents which hundreds of government agencies cur- rently consider beyond their reach. It is conceded that the precise records obtained by Daniel Ellsberg might not be obtainable under the Freedom of Information Act.2 How- ever, vast amounts of records of the same public impor- tance are obtainable under the Act, and the fruit, in a manner of speaking, is ripe for the picking.
This article and the Freedom of Information Act are both slanted toward the view that all government records should presumptively be disclosed. Poverty lawyers and their client groups-welfare rights, tenant and consumer organizations-have always taken the position that where a benefit exists it should be utilized, and that where a benefit might be obtained through political action or litigation, that benefit should be pursued. In the case of the Freedom of Information Act, there is a large volume of information which if made public or available to the poor would help them obtain their rights. Legal Services lawyers should seek this information aggressively.
This article is concerned with the uses of the Federal Freedom of Information Act3 and the problems likely to
5 U.S.C. §552 (b) (1) appears to exempt such records. But see Mink v. EPA, 40 U.S.L.W. 2233 (D.C. Cir., Nov. 2, 1971), review granted, 40 U.S.L.W. 3428 (U.S. Sup. Ct., Mar. 6, 1972). 3. The Act applies only to federal agencies; however, a number of states have their own freedom of information acts and in one recent case, a state court used federal case law to interpret the state statute. Citizens for Better Care v. Reizen, No. 13166-C (Mich. Cir. Ct., Feb. 23, 1972), available from the Clearinghouse, Clearinghouse No. 5827. For an exhaustive listing of the freedom of information laws of each state, see HOBSON, THE DAMNED INFORMATION: ACQUIRING AND USING PUBLIC INFORMATION TO FORCE SOCIAL CHANGE, Washington Institute for Quality Education, available at a cost of $2.00.
This article will not discuss the Federal Register requirement. Further, although at times it will discuss the types of information which must be indexed and kept available in libraries, it will not examine all possible problems in the area in detail. (This subject is appropriate for additional extensive investigation and analysis.) The primary thrust of this article, therefore, is a discussion of the Act as it relates to records which are likely to be of help to poverty lawyers.
U. CHI. L. REV. 761 (1967), for an explanation and interpretation of these first two requirements.
legitimate interest in the document, and the agency in possession of the document was entitled to withhold the document if, in the agency's judgment, the release of the document would be contrary to the public interest. Judicial review, to the extent it existed, consisted of an equitable balancing of interests between the parties-the needs of the plaintiff as opposed to the needs of the agency and the possible harm to the public interest. Recognizing that in practice this "equitable" system favored the agency over the citizen, Congress spent 12 years formulating the present Freedom of Information Act.
made available for inspection and copying upon request unless specifically exempted by the Act. The Act specifies nine exemptions (discussed below) and then states: "This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." The Senate report section pertaining to this statutory section reads:
The purpose of this subsection is to make it clear beyond doubt that all materials of the Government are to be made available to the public by publication or otherwise unless ex- plicitly allowed to be kept secret by one of the exemptions in subsection (e).14
Despite clear congressional intent that the specifically enumerated exemptions be the sole determinants as to whether records may be withheld, a threshhold debate arises concerning whether Congress intended to strip the district court of its equitable powers. One commentator argues that a court may balance the equities among the parties and refuse to order disclosure of records not exempted by the Act if it finds that the harm to the public interest would be greater than the plaintiff's need for the record. Most of the cases, however, have concluded that Congress intended to do its own balancing, and that the court's sole responsibility is to examine the exemptions (interpreting them in favor of disclosure) to see if a record has been properly withheld. The debate is most clearly presented in Soucie v. David, where the majority held that the Act stripped the courts of their equitable juris- diction (based on the legislative history indicating Congress' intent to do its own balancing) and on the clear wording of §552 (c) quoted above. Judge Wilkes, while concurring, argued that the courts retain their equitable power and may, if they choose, uphold an agency's decision to withhold records even though such records are not within one of the specific exemptions. Concerning congressional intent, the more recent case of Wellford v. Hardin has noted: "It is not the province of the Courts to restrict that
Sharon Data & William Mosley
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S. REP. NO. 813, 89th Cong., 1 st Sess. 10 (1965). Davis, supra, note 9 at 767.
448 F.2d 1067 (D.C. Cir. 1971).
The Senate Report makes clear in a number of instances that the statute does the balancing. For example, in referring to phrases found in the former Act, such as "requiring secrecy in the public interest" and "required for good cause to be held confidential" the Report states:
It is the purpose of the present bill to eliminate such phrases, to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language. S. REP. NO. 813, supra, note 14. And, the Report continues:
It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordi- nated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure. S. REP. NO. 813, supra, note 14 at 3.
448 F.2d at 1080 (D.C. Cir. 1971).
INDIANA UNIVERSITY LIBRARY
legislative judgment under the guise of judicially balancing
the same interests that Congress has considered." Get-
man v. NLRB 20 has fully concurred with the conclusions
of the Soucie and Wellford courts. It would seem, there-
fore, that despite dicta to the contrary 21 the weight of
authority clearly requires a strict reading of the Act. There
is no doubt that the burden of justification rests heavily on
the agency withholding the record after a proper request.
The Act is accompanied by a House and Senate
report comprising 95% of the relevant legislative history
and by a contemporaneous Attorney General's memo-
randum (hereafter called A.G. memorandum) which
purports to be an impartial analysis of the Act in light of
the relevant legislative history. The A.G. memorandum is
naturally biased in favor of the agencies, and in light of the
fact that the agencies were virtually unanimous in opposing
the statute, the memorandum constitutes a highly partisan
statement against full implementation of the Act. How-
ever, at least one court case has reminded us that the
Attorney General is not charged with administering the
Freedom of Information Act, and therefore the memo-
randum is not to be accorded the force and effect of law.
Furthermore, only the Senate report accompanied the bill
through both houses, and this report is true to the actual
language of the Act, whereas the House report (relied on
almost exclusively in the A.G. memorandum) so departs
from the language of the Act as to effectively "amend"
it.
In light of the fidelity of the Senate report to the clear
wording of the stature, conflicts between the Senate and
House reports should be resolved in favor of the Senate
report. Three cases have so specifically concluded.
Likewise, to the extent that the Attorney General's report
conflicts with the Senate report or the clear words of the
31 However, since the A.G.
statute, the latter should prevail.
memorandum is the advice of the agency's "lawyer," the
agencies should always at a minimum comply with the
interpretations therein. This background, as will be seen, is
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