"(f) LIMITATION OF EXEMPTIONS.-Nothing in this section authorizes withholding of information or limiting the availability or records to the public except as specifically stated in this section, nor shall this section be authority to withhold information from Congress. "(g) PRIVATE PARTY.-AS used in this section, 'private party' means any party other than an agency. "(h) EFFECTIVE DATE.-This amendment shall become effective one year following the date of the enactment of this Act." Approved July 4, 1966. Legislative History: House Report No. 1497 (Committee on Government Operations). Congressional Record: Vol. 111 (1965): Oct. 13, considered and passed Senate. STATEMENT BY PRESIDENT JOHNSON UPON SIGNING PUBLIC LAW 89-487 ON JULY 4, 1966 The measure I sign today, S. 1160, revises section 3 of the Administrative Procedure Act to provide guidelines for the public availability of the records of Federal departments and agencies. This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. At the same time, the welfare of the Nation or the rights of individuals may require that some documents not be made available. As long as threats to peace exist, for example, there must be military secrets. A citizen must be able in confidence to complain to his Government and to provide information, just as he is-and should be-free to confide in the press without fear of reprisal or of being required to reveal or discuss his sources. Fairness to individuals also requires that information accumulated in personnel files be protected from disclosure. Officials within Government must be able to communicate with one another fully and frankly without publicity. They cannot operate effectively if required to disclose information prematurely or to make public investigative files and internal instructions that guide them in arriving at their decisions. I know that the sponsors of this bill recognize these important interests and intend to provide for both the need of the public for access to information and the need of Government to protect certain categories of information. Both are vital to the welfare of our people. Moreover, this bill in no way impairs the President's power under our Constitution to provide for confidentiality when the national interest so requires. There are some who have expressed concern that the language of this bill will be construed in such a way as to impair Government operations. I do not share this concern. I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted. I am hopeful that the needs I have mentioned can be served by a constructive approach to the wording and spirit and legislative history of this measures. I am instructing every official in this administration to cooperate to this end and to make information available to the full extent consistent with individual privacy and with the national interest. I signed this measure with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded. COURT CASES ARISING UNDER THE FREEDOM OF INFORMATION ACT A. DECIDED CASES 1. Barceloneta Shoe Corp. v. Compton, 271 F. Supp. 591 (1967). U.S. District Court for the District of Puerto Rico, decided July 31, 1967. Complaint by employer for injunction enjoining National Labor Relations Board from withhold ing records and to order production of records which board had previously refused to make available to employer. A copy of the court's memorandum and order denying plaintiff's motion for injunction and dismissing the complaint follows: MEMORANDUM OF DECISION AND ORDER DENYING MOTION FOR INJUNCTION AND DISMISSING COMPLAINT On July 20, 1967 Plaintiffs filed a Complaint seeking to enjoin the Defendant from withholding Agency records and to order the production of Agency records which Defendant had previously refused to make available to Plaintiffs herein upon their request. The Complaint is brought pursuant to the Public Information Section of the Administrative Procedure Act, Public Law 89-487 (80 Stat. 250, revising 5 U.S.C. 552, formerly section 3 of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. 1002, (1964 Ed.)) which was thereafter codified by Public Law 90-23 (81 Stat. 54), to amend section 552 of title 5, United States Code. In the alternative, Plaintiffs seek an order enjoining Defendant from opening the Board's hearing on an unfair labor practice complaint issued by Defendant and scheduled to begin on August 1, 1967, until such time as this Court rules on the merits herein. Defendant entered a voluntary appearance by counsel, and filed an Answer and Motion to Dismiss on July 26, 1967. Defendant also filed an amendment to the Answer on July 28. A memorandum was filed on July 28, 1967 by Defendant and both parties argued the matter orally on that same day. The undisputed facts are that Plaintiffs were charged by Sindicato de Trabajadores Packinghouse, Distrito 9, Food and Allied Workers of Puerto Rico, with violations of the Labor Management Relations Act of 1947, as amended. While the investigation of these charges was in progress, Plaintiffs on May 2, 1967 wrote to Defendant requesting that he turn over to them or permit the inspection of "any statements or evidence" received by him during the course of his investigation of the alleged unfair labor practice. Defendant denied the request formally by a letter to Plaintiffs dated June 13, 1967. In addition to a lengthy explanation for his denial, Defendant maintained that the Agency would follow its normal procedures making investigation affidavits and statements of witnesses available to Plaintiffs during any hearing before the Agency but only after the witnesses had testified on direct examination. Following the July 4, 1967 effective date of the new Public Information Section of the Administrative Procedure Act, Plaintiffs brought this proceeding. In view of the need for an immediate disposition of the pending motions prior to August 1, 1967 when the Board's hearing is scheduled to begin, the Court is compelled to issue this abbreviated Memorandum of Decision and Order rather than write a formal opinion discussing the overall impact of the new statute on the work of administrative law enforcement agencies such as the National Labor Relations Board. In fact the Court has had just one working day between the day of the argument on this Petition for an injunction and the day of the hearing before the Board, which Plaintiffs are seeking to enjoin. There is no dispute between the parties as to the nature, content or location of the documents being requested by the Plaintiffs from the Defendant. They consist of affidavits and statements forming a part of an investigatory file in the possession of the Defendant. They are statements of persons who were interviewed by Board agents in connection with the investigation of the unfair labor practice charges filed with Defendant by the Packinghouse Workers Union, and the contents thereof are related to the allegations of said charges. Plaintiffs content that they are entitled under the new statute to copy or inspect these documents prior to the opening of the Board's hearing. Defendant concedes that Plaintiffs have a right to inspect the statements of witnesses who have already testified on direct examination at the Board's hearing, for purposes of impeachment. Defendant contends, however, that his refusal to allow the Plaintiffs' request for inspection or copying of statements prior to the hearing is supported by the specific exemption contained in the new Act, particularly Sections 3 (e) (7) and (4). The new statute places the burden on the Agency whose records are requested to sustain its action. The Court is satisfied that Defendant has met this burden. I conclude that subsection 3(e) (7) of the new Act grants the Board an exemption from the disclosure requirements with respect to its investigatory file materials in this type of proceeding. I also conclude that there is no Law within the meaning of subsection 3 (e) (7) which requires the production of said materials prior to the holding of the Board's hearing. In the Jencks Act (18 U.S.C. 3500), Congress indicated that criminal law enforcement agencies of the Government are not required to produce the statements of witnesses obtained during the investigation of alleged criminal violations prior to the trial of the accused. Congress intended that said statements would be available to the accused during the trial but only after the witness has given direct testimony against him. To me, it is inconceivable that by the new Act, Congress intended to give private parties-employers, unions or employees— charged with the violation of Federal regulatory statutes any greater right to inspect investigative file material, than has been granted to persons accused of violating Federal criminal law. In general terms I agree with the Attorney General's analysis of the nature and scope of the exemption, in his Memorandum on the Public Information Section of the Administrative Procedure Act, dated June 1967, wherein he states at p. 38: "The effect of the language in exemption (7), on the other hand, seems to be to confirm the availability to litigants of documents from investigatory files to the extent to which Congress and the courts have made them available to such litigants. For example, litigants who meet the burdens of the Jencks statute (18 U.S.C. 3500) may obtain prior statements given to an FBI agent or an SEC investigator by a witness who is testifying in a pending case; but since such statements might contain information unfairly damaging to the litigant or other persons, the new law, like the Jencks statute, does not permit the statement to be made available to the public. In addition, the House report makes clear that litigants are not to obtain special benefits from this provision, stating that “S. 1160 is not intended to give a private party indirectly any earlier or greater access to investigatory files than he would have directly in such litigation or proceedings." (H. Rept., 11.)" As I suggested before, Congress could not have intended to grant lesser rights of inspection and copying of witnesses' statements to persons who are faced with the deprivation of their life or liberty, than to persons faced only with remedial administrative orders under regulatory statutes. Defendant also urges that the investigation material in question is exempted from the disclosure requirements of the new Act by the provisions of subsection 3(e) 4 of that Act. This subsection deals with documents, given by persons to government agencies, which are of a privileged or confidential nature. I find that statements of persons given in confidence to Board agents in connection with the investigation of unfair labor practice charges fall within the scope of the exemption contained in subsection 3 (e) 4 of the new Act. I conclude that such information retains its confidential nature, and need not be disclosed by the Board to the public until the persons giving the statements have testified at a hearing. The reasons urged by the Plaintiffs to support their request for the production of these documents prior to the Board hearing are outweighed by the reason urged by the Defendant for withholding the documents at this time. It cannot be denied that if disclosure, as urged by Plaintiffs, is allowed, persons interviewed by Board Agents in future investigations will not be as cooperative as they are now if they know that the information they give to the Board agents would be subject to public disclosure at any time before they have actually testified at a public hearing. The hampering effect which this would have upon the Board's investigations is obvious. This is particularly true in situations where employees, who are still working for an employer charged with unfair labor practices, are being interviewed by Board agents. Under these circumstances the Defendant herein has shown a better right to keep his commitment to the persons giving such confidential statements, than have Plaintiffs made for the disclosure of said documents prior to the hearing. On the basis of the foregoing findings and conclusions, I deem it unnecessary to decide the jurisdictional questions raised by the Defendant in his motion to dismiss the Complaint. Quite apart from the rights claimed by the Plaintiff under the new statute, I do not find any ground for the exercise of the Court's inherent equitable powers to interfere with the Board's proceedings at this time. I am, therefore, denying Plaintiffs' motion for injunctive relief and granting the Defendant's Motion to Dismiss the Complaint on the merits. IT IS SO ORDERED. This 31st day of July 1967 at San Juan, Puerto Rico. Hiram R. Cancio (Signed) HIRAM R. CANCIO, Chief Judge, U.S. District Court for the District of Puerto Rico. 2. Shell Oil and Shale, Inc. v. Udall, Civil Action No. 67-C-321, U.S. District Court for the District of Columbia. Plaintiff sought reports of field examiners who inquired into the validity of a mineral rights land patent. The court granted plaintiff's request on September 18, 1967. Notice of appeal was filed by the United States on September 25, 1967. Appeal pending. A copy of the order and judgment of the court follows: IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 67-C-321 SHELL OIL COMPANY, AND D. A. SHALE, INC., PLAINTIFFS v. STEWART L. UDALL, SECRETARY OF INTERIOR, AND E. I. ROWLAND, STATE DIRECTOR, COLORADO STATE OFFICE, BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR OF THE UNITED STATES OF AMERICA, DEFENDANTS Order and Judgment This action having come on for hearing on the motion of plaintiffs for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the Court having considered the pleadings and the affidavits and memoranda of law on file herein, and the Court having heard oral argument, and having found that there is no genuine issue of fact to be submitted to the Court, and having decided that the plaintiffs are entitled to judgment as a matter of law, it is hereby ORDERED, that plaintiffs' motion for summary judgment be, and the same hereby is, granted, and it is further ORDERED, that defendants' motion to dismiss, or in the alternative for summary judgment, be and the same hereby is denied, and it is further ORDERED, ADJUDGED AND DECREED that defendants be, and hereby are, (a) enjoined from withholding and (b) ordered to make available to plaintiffs for inspection and copying the following: (1) The portions of the reports of field examinations of the Mountain Boy Nos. 1, 6 and 7, the Harold Shoup Nos. 1 through 4, and the K. C. Schuyler Nos. 2 and 3 placer mining claims located in Garfield County, Colorado, which have not been made available to the plaintiffs, including specifically: (a) Portions of p. 1 of the attachment to the Report dated November 19, 1959, by W. R. Sholes-Mountain Boys 1-8. (b) Portions of pp. 1, 2, 4, 6, 7 and 8 of the Report dated December 3, 1959 by Frank W. Kuehnel-Mountain Boys 1-8. (c) Portions of p. 1 of the Supplemental Report dated December 14, 1959 by Frank W. Kuehnel-Mountain Boys 1-8. (d) Portions of pp. 1, 2 and 3 and the caption to photograph 5 of the Supplemental Report dated November 15, 1962 by Frank W. Kuehnel on Mountain Boys 1, 6 and 7. (e) Portions of pp. 1, 2, 3, 4, 5, 6, 7 and 8 of the Report dated December 4, 1963 by James F. McIntosh on Mountain Boys 1, 6 and 7. (f) Portions of pp. 2, 3, 7, 9, 26, 27, 29, 30, 33, 34, 41, 45, 46, 47, 48, 49 and 50 of the Report dated January 18, 1963 by Ralph G. Spengler on K. C. Schuyler Nos. 2 and 3 and Harold Shoup Nos. 1 through 4. (g) Portions of pp. 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of the Report dated February 25, 1964 by James F. McIntosh on K. C. Schuyler Nos. 2 and 3 and Harld Shoup Nos. 1 through 4. (h) Portions of pp. 1, 2, 11 and 12 of the Report dated September 22, 1964 by Danield Y. Meschter on Mountain Boys 1, 6 and 7. (2) Any other portions of or attachments to the reports of field examinations described in paragraph (1) of the above-named placer mining claims which have not been made available to the plaintiffs. IT IS FURTHER ORDERED, that no proceedings shall be taken for the enforcement of this order until ten (10) days after its entry; provided, that nothing herein contained shall prejudice defendants' right to apply to this Court or any other Court for a further stay. Dated at Denver, Colorado, this 18th day of September, 1967. The foregoing judgment is approved as to form. United States District Judge. TWEEDY, MOSLEY, ALEY & YOUNG, Attorney for Plaintiff D. A. Shale, Inc. LAWRENCE M. HENRY, Attorney for Defendants. 3. Clement Bros. Co., Inc. v. NLRB, Civil Action No. 11174, U.S. District Court for the Northern District of Georgia. Plaintiff sought disclosure of employee affidavits of those not called as witnesses in a terminated unfair labor practice proceeding. Defendant's motion to dismiss was granted on February 6, 1968. The order of the court follows: U.S. DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA, Re: Clement Brothers vs. NLRB, C.A. No. 11174. Assistant Counsel, Committee on the Judiciary, Subcommittee on Administrative DEAR MR. OHLHAUSEN: In compliance with your letter of March 14, 1968, we are pleased to forward you herewith a copy of the Court's opinion in the aboveentitled action. NATIONAL LABOR RELATIONS BOARD, AN AGENCY OF THE UNITED STATES OF AMERICA, DEFENDANT The plaintiff in the above-styled action brought suit against the National Labor Relations Board under the Public Information Section of the Administrative Procedure Act in an effort to compel the N.L.R.B. to permit the inspection and copying of documents obtained by the Board in its investigation of alleged unfair labor practices arising out of a representation election. Presently before the Court are motions for summary judgment filed by both the plaintiff and the defendant, and alternative motions for a judgment on the pleadings filed by the plaintiff and a motion to dismiss filed by the defendant. In connection with its attempt to obtain the statements of its employees given to the Board, the plaintiff seeks to enjoin the Board from continuing with all action regarding representation proceedings presently being conducted by it. The defendant's motions cover both of the counts brought by the plaintiff. |