The committee feels that this exception is necessary. Without it section 1905 of title 18 might be held to prevent disclosures of information when such disclosures are essential in order to successfully accomplish the objectives of this legislation.

The report also explained why a penalty provision was not necessary in the new information provision:

The provision in Public Law 256, 83d Congress, contained a penalty applicable to officers or employees publishing or disclosing information in violation of the provision. The committee is of the opinion that no criminal penalty is needed in case of the paragraph (4) put into the committee substitute. When a statute requires information to be withheld it may be expected to carry its own penalties, as section 1905 of title 18 does, if penalties are appropriate.

The report also clarified authority to restrict information "to protect the national security":

By virtue of clause (B) of the first sentence of the proposed paragraph (4), information furnished under this proposed legislation would not be required to be available for public inspection if it is "classified in accordance with law to protect the national security." This refers to information classified for security purposes under specific statutory authority (such as that contained in present sec. 15 of the National Science Foundation Act), or under the authority of Executive Order 10501, which is the order dealing generally with the authority of Federal departments and agencies to classify information for security purposes.

The report made clear the fact that Federal officials do not have authority to withhold information from Congress:

Paragraph (4) shall not authorize the withholding of information from any regularly constituted committee of the Senate or House of Representatives, or joint committee of the two Houses.

The section of the report explaining the new information provision also placed the burden of proof on the Federal official who determines that a specific item of information should be restricted:

It is important to have the widest possible dissemination of information on weather modification, both to the public and to scientists working in this field, although it is realized that it may be necessary in some instances to withhold certain information from public disclosure. The committee feels, however, that any person who makes information available under the new section 14 which the bill proposes to add to the National Science Foundation Act should have the privilege of filing with the Director written objection to making the information available for public inspection, stating the ground for such objection. In such a case the Director should determine whether the objection is well founded. If he finds that the objection is well founded and that the information should be withheld from public inspection, he should render a decision to that effect, citing the statutory authority for his determination, and, in addition, he should make his decision available for public inspection.

D. THE OFFICE OF STRATEGIC INFORMATION

Early in the 1st session of the 85th Congress, the House Appropriations Subcommittee on Commerce and Related Agencies, under Congressman Prince H. Preston, Jr., of Georgia, considered a Presidential budget request for $105,100 to operate the Office of Strategic Information, which had been set up by the executive branch in the Department of Commerce. The House Government Operations Committee had recommended, the previous year, that the OSI be abolished since its existence could not be justified "either for the purpose of restricting unclassified information from within the Government or controlling unclassified information from outside the Government" (H. Rept. 2947, July 27, 1956). The committee's conclusion was based on hear

ings held on April 19 and 23, 1956, by the Special Subcommittee on Government Information, looking into charges that the OSI had been set up to censor nonmilitary public information.

In a later report, the committee repeated its recommendation, pointing out that the OSI "continues the expenditure of public funds on a function which makes no discernible contribution to governmental efficiency and economy" (H. Rept. 157, February 22, 1957).

Congressman Preston's subcommittee eliminated the entire $105,100 requested for the OSI. The Appropriations Committee and the House of Representatives supported this action. The Senate also followed the recommendation that OSI be abolished. The agency, which had attempted to restrict nonsecurity information, went out of business on July 30, 1957. (See also H. Rept. No. 2578, 85th Cong., 2d sess., August 13, 1958, p. 13.)

E. LABOR LEGISLATION

Labor legislation considered during the 85th Congress emphasized that full public disclosure is the best protection against possible abuses. One measure enacted by the Congress permits public access to information about employee welfare and pension programs. Another measure passed by the Senate would require the Labor Department to make public the union financial reports filed under the National Labor Relations Act.

The Welfare and Pension Plans Disclosure Act (Public Law 85836) states that recent growth of employee welfare and pension plans, coupled with a lack of information, requires full public accounting to protect the beneficiaries and the public.

The new law requires complete descriptions and annual financial reports to be filed with the Secretary of Labor. Administrators of the plans are required to send copies of the descriptions and the financial reports to all beneficiaries. The Secretary of Labor is required to file copies of the plan descriptions and the annual financial reports "in the public document room of the Department of Labor." The value of full disclosure is explained in the House Education and Labor Committee report on the subject:

By requiring the filing of copies of such plans and annual report, the committee felt that two objectives might be accomplished: (1) the participant or beneficiary who, for any reason, was reluctant to ask the employer or employee organization for copies of the plan or annual report could obtain them from the Secretary of Labor, and (2) the fact that copies of the description of the plan and the annual report have to be filed with the Secretary of Labor might act as a deterrent to false reporting (H. Rept. 2283, July 28, 1958).

Another information development in the field of labor legislation was Senate passage of Senate Joint Resolution 94, based upon hearings held by the Senate Select Committee on Improper Activities in the Labor or Management Field. The resolution was adopted by the Senate on August 23, 1957, but no action was taken on it by the House. The National Labor Relations Act requires union officials to file detailed reports on financial activities, but the Department of Labor has made the reports available only to selected individuals and to certain Government agencies. Although no law prohibits the Labor Department from making the reports publicly available, the Department has determined it will not release the information without a specific legis

lative directive. In commenting on the legislation, Secretary of Labor James P. Mitchell stated:

Recent investigations and hearings by the Select Committee on Improper Activities in the Labor or Management Field have revealed serious misuses of union funds. One means of meeting this situation would be a requirement that all unions file comprehensive statements of their finances which could be made available to the public. A first step in this direction would be to authorize the public disclosure of the financial and other information filed by unions under the National Labor Relations Act. This information includes, among other things, statements of salaries and allowances of union officers and employees, and union receipts, disbursements, assets, and liabilities. This information cannot now be made public, without legislative authorization. Direction to do so such as provided in Senate Joint Resolution 94 would appear to be the most desirable and expeditious way of accomplishing this objective (S. Rept. 1042, August 19, 1957).

F. ADVISORY COMMITTEES

The House Government Operations Committee for years has been concerned about restrictions on information resulting from the Government's increased use of advisory committees. In July, 1956 the committee recommended a relaxation of secrecy which has surrounded the work of advisory committees. The committee called for advance announcements of advisory committee meetings, publication of the names of committee members and public availability of the minutes of meetings with deletions when national security is involved (H. Rept. 2947, July 27, 1956). Earlier the Executive and Legislative Reorganization Subcommittee sent 22 questions on advisory committee practices. In 1957 the committee approved H. R. 7390 by Congressman Dante B. Fascell of Florida to require an estimated 1,700 advisory committees to follow standard practices. The bill was passed by the House of Representatives on July 10, 1957, but no action was taken on it by the Senate. The committee report on the bill stated:

The committee is in full accord with the basic theory behind the advisory committee system, but it also realizes that under the veil of secrecy which now surrounds the activities of these groups, it is possible and entirely probable that some of them are established not for the primary purpose of giving advice (H. Rept. 576, June 17, 1957).

In explaining the purpose of the legislation, the committee stated that

it will serve to create and maintain a factual record from which the Congress may be kept informed and, therefore, may be better able to give intelligent consideration to the possible necessity for further legislation in this area.

The House-passed bill would require, among other things, a report to Congress before an advisory committee is established and an annual report from the President on the functions and membership of advisory committees. Complete minutes of all advisory committee meetings would have to be kept. The report on the bill explains:

It is intended that such official records shall be available to the public, subject only to security and other restrictions specifically provided by law, and shall so be available to the Congress, the Department of Justice, the General Acyunting Office, and law-enforcement agencies of the Government (H. Rept. 576, June 17, 1957).

G. REORGANIZATION OF THE DEFENSE DEPARTMENT

The President in 1958 asked Congress to enact legislation to reorganize the Department of Defense and, among other things, to abolish the so-called safety-valve provision of the National Security Act of 1947. This provision states that nothing in the laws organizing the Defense Department can

prevent a Secretary of a military department or a member of the Joint Chiefs of Staff from presenting to the Congress, on his own initiative, after first so informing the Secretary of Defense, any recommendations relating to the Department of Defense that he may deem proper.

The 1947 law intended that the Congress receive full information about Defense Department activities for which it appropriates money. It has served as a safety valve to permit the Nation's military experts, even if their views conflicted with those of the Secretary of Defense and the President, to lay the facts before the Congress-facts which the Congress must have to carry out its constitutional duty "to provide for the common defense" and "to make rules for the Government and regulation of the land and naval forces."

The House Armed Services Committee on May 27, after lengthy hearings on the President's proposals, rejected his request for repeal of the safety-valve provision. The committee approved the Department of Defense reorganization bill of 1958 with the old provision intact.

The next day, on May 28, the President issued a strong statement to the press objecting to some of the committee's actions, including its failure to repeal the safety-valve provision. He described the provision as "legalized insubordination" and "bad concept, bad practice, bad influence within [the] Pentagon." (See exhibit I.)

On June 12, the House of Representatives followed the committee's recommendations and passed the bill with the provision still intact. The Special Subcommittee on Government Information, in public hearings in March 1957, had gone extensively into the problem of possible restrictions on what the Nation's military and civilian leaders can tell the Congress. A report on the subject, adopted by the House Committee on Government Operations on June 16, 1958, concluded:

The Department of Defense has evolved a policy under which the Department is seeking to require the Congress to justify a need to know, and officials of the Department are claiming the right to determine what the Congress shall and shall not have. Such a policy is a serious threat to the proper functioning of the American form of government.

After arriving at this conclusion, the committee recommended:

The Congress should reaffirm and strengthen provisions in the National Security Act giving positive assurance to the Secretaries and the military leaders of the services that they will not be penalized in any way if, on their own initiative, they inform the Congress of differences of opinion after a policy decision has been made (H. Rept. 1884, June 16, 1958).

On July 17, the Senate Armed Services Committee reported the defense reorganization bill with a different version of the safety-valve provision (S. Rept. 1765):

No provision of this Act shall be so construed as to prevent the Joint Chiefs of Staff or any member thereof from presenting to a committee of the Congress, on his own initiative, after first so informing the Secretary of Defense, any recommendations concerning the security of the United States.

The following day, the Senate approved the Senate committee's provision. In conference on July 23, the Senate adopted the House provision. The Defense Reorganization Act of 1958, which became Public Law 85-599 on August 6, therefore retains the old safety-valve provision intact and military and civilian leaders of the Nation's military services are thus assured that they will not be penalized for giving information to the Congress even if their views conflict with policy.

III. THE FIRST FREEDOM OF INFORMATION LAW

Near the end of the 85th Congress both the House of Representatives and the Senate enacted, without a dissenting vote, the first law devoted solely to freedom of information. The bill, H. R. 2767, by Congressman John E. Moss, added a simple, 19-word amendment to the Federal Government's 169-year-old "housekeeping" law. The amendment declares:

This section does not authorize withholding information from the public or limiting the availability of records to the public.

The amendment is an addition to the one-sentence "housekeeping" law enacted in 1789 to give the newborn Government agencies under General Washington's administration the authority to regulate the business of the agency and to set up filing systems and keep records. The "housekeeping" statute-section 22 of title 5 of the United States Code which was codified in 1875 as Revised Statutes 161-stated:

The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.

The "housekeeping" statute was never intended to give Federal officials authority to keep their records hidden from public view. As J. Russell Wiggins testified before the Special Subcommittee on Government Information:

There was no history-making debate over title 5, United States Code, section 22, because it was not a history-making statute, it was not a history-making bill, it was not a history-making proposal. If it had proposed secrecy, it would have been history making. But it didn't. It was just a housekeeping statute and, as such, raised none of the great issues that would have aroused Madison, Jefferson, Monroe, and the rest of the statesmen who put so much trust in popular rights to information (subcommittee hearings, p. 3359).

But the subcommittee's study of current information activities of Federal agencies disclosed that title 5, United States Code, section 22, had been repeatedly misused to conceal information. (H. Rept. No. 1461, March 6, 1958.)

Although each of the 10 cabinet-level Federal departments opposed the freedom-of-information amendment, the bill was passed by a unanimous vote in the House on April 16, 1958, and in the Senate on July 21, 1958. The new law merely prohibits further misuse of the "housekeeping" law for purposes of secrecy; it has no effect on the more than 70 other laws which, in one way or another, restrict public access to certain kinds of records such as income-tax returns, trade secrets, etc.

Many of the departments, in their written opposition to the amendment, advanced a claim of executive power to restrict information