"(B) WITHHOLDING OF CERTAIN INFORMATION.-Upon request of the organization submitting any supporting papers described in subparagraph (A), the Secretary or his delegate shall withhold from public inspection any information contained therein which he determines relates to any trade secret, patent, process, style of work, or apparatus, of the organization, if he determines that public disclosure of such information would adversely affect the organization. The Secretary or his delegate shall withhold from public inspection any information contained in supporting papers described in subparagraph (A) the public disclosure of which he determines would adversely affect the national defense. "(2) INSPECTION BY COMMITTEES OF CONGRESS.-Section 6103 (d) shall apply with respect to— "(A) the application for exemption of any organization described in section 501 (c) or (d) which is exempt from taxation under section 501 (a) for any taxable year, and "(B) any other papers which are in the possession of the Secretary or his delegate and which relate to such application, as if such papers constituted returns." (b) ANNUAL INFORMATION WITH RESPECT TO TOTAL CONTRIBUTIONS.-Section 6033 (b), (relating to returns by certain exempt organizations) is amended by striking out "and" at the end of paragraph (6), by striking out the period at the end of paragraph (7) and inserting in lieu thereof a comma and the word "and", and by adding after paragraph (7) the following new paragraph: "(8) the total of the contributions and gifts received by it during the year." (c) EFFECTIVE DATE.-The amendments made by subsection (a) shall take effect on the 60th day after the day on which this Act is enacted. The amendments made by subsection (b) shall apply to taxable years ending on or after December 31, 1958. B. THE NATIONAL AERONAUTICS AND SPACE AGENCY On July 29, 1958, the 85th Congress created a new civilian agency of government called the National Aeronautics and Space Administration. The legislation included a section entitled "Access to Information" which specifically guarantees the right of the public and the Congress to information developed by the new agency. Early in May 1958, Congressman John W. McCormack, chairman of the Select Committee on Astronautics and Space Exploration, and Congressman John E. Moss, chairman of the Special Subcommittee on Government Information, conferred about an information section to be incorporated in legislation creating the new space agency. As a result of the conference, and of discussions between the staff's of the select committee and the subcommittee, proposed language for the information section was drafted. Following the cooperative effort, Congressman McCormack wrote to Congressman Moss: I want to take this opportunity to tell you how much the committee and I, personally, appreciate the splendid help you have given us and our staff in drafting a suitable provision on freedom of information. As you have undoubtedly heard by now, our committee has approved an Access-to-Information provision, substantially in the form in which it was submitted by you. I think that in so doing the committee has made a significant step forward in advancing the people's right to know what is going on in their government. I know we will have your support in obtaining approval of this very important provision when the space bill comes before the House. The Special Subcommittee on Government Information also contacted the Senate Special Committee on Space and Astronautics re garding information provisions in Senate proposals for a new space agency. The correspondence follows: Hon. LYNDON B. JOHNSON, HOUSE OF REPRESENTATIVES, Chairman, Special Committee on Space and Astronautics, Senate Office Building, Washington, D. C. DEAR MR. CHAIRMAN: I recently had occasion to read your report and bill creating the National Aeronautics and Space Act of 1958. I note that you have incorporated section 302 in your bill entitled "Access to Information." I also note that you have in section 103 (a) (1) (C), entitled "Functions of the Agency," set forth a clear mandate for the dissemination of information. Both you and the staff are to be congratulated upon the clear-cut, affirmative declaration of the intent of Congress in the field of information. For the past 2 years I have become increasingly disturbed by the fact that executive departments and agencies have had a tendency to refuse information to Congress and congressional committees on the flimsiest of excuses, and that many committees have not had available to them the legal analysis on this very important subject matter. Your report and bill make it crystal clear that information will not be withheld from Congress and congressional committees. Please be assured that this subcommittee and its staff are available for any assistance in the field of information you may desire. Sincerely, JOHN E. Moss, Chairman. UNITED STATES SENATE, Hon. JOHN E. Moss, SPECIAL COMMITTEE ON SPACE AND ASTRONAUTICS, Chairman, House Government Information Subcommittee, June 23, 1958. DEAR MR. CHAIRMAN: I sincerely appreciate your kind letter of June 19 concerning certain sections of the National Aeronautics and Space Act as passed by the Senate. Dissemination of scientific information is the lifeblood of scientific developments; widest possible public access to general information, within security limitations, is the hallmark of a democracy; and the availability of all information to congressional committees is mandatory to the fulfillment of their legal responsibilities. The Senate committee felt that it was important to make these points clear. I should be pleased to receive your further observations and suggestions at any time. With warm regards, I am, LYNDON B. JOHNSON, Chairman. The result of careful congressional consideration of the need for a free flow of information in the space age is apparent in section 303 of Public Law 85-568 signed into law by the President on July 29, 1958. ACCESS TO INFORMATION SEC. 303. Information obtained or developed by the Administrator in the performance of his functions under this Act shall be made available for public inspection, except (A) information authorized or required by Federal statute to be withheld, and (B) information classified to protect the national security: Provided, That nothing in this Act shall authorize the withholding of information by the Administrator from the duly authorized committees of the Congress. In House Report No. 1770, May 24, 1958, the Select Committee on Astronautics and Space Exploration made the intent of Congress clear in the following language appearing on page 23: ACCESS TO INFORMATION This section provides that all information concerning the new agency's activities shall be made available to the public, except information required or authorized by Federal statute to be withheld (such as trade secrets) and information classified to protect the national security. Nothing in the act, however, would prohibit the Administrator from furnishing information to the Senate and House and the various committees of Congress. It was the desire of the select committee to include in the bill a positive affirmation of Congress' intent that the people be enabled to know what is going on in their Government, subject, of course, to national security restrictions. The statutory language protecting the right to know was not recommended by the executive branch of the Federal Government. On the contrary, legislation originally submitted by the Budget Bureau would have applied extreme restrictions on the flow of necessary information. Senator Clinton P. Anderson discussed the President's draft legislation in the Senate and among other comments, made the following observations on the need for a positive information policy: The draft legislation of the Bureau of the Budget provides for the new agency to report to the President annually. This is a strange provision because one would expect the President to be kept informed on what is taking place within his executive family. The channel in which reporting breaks down is between the executive branch and Congress. While it is called upon to appropriate billions of dollars of public money, Congress must often proceed with the scantiest of information. It would have been more thoughtful of the draftsmen to provide some reporting mechanisms to Congress but surely we can arrange in our committees to provide for a semiannual report to us. The Bureau of the Budget's draft provides criminal penalties for disclosures of information and violation of the Space Agency's security regulations. We have learned that penal provisions of a substantive nature in new laws weaken the basic statutes like the Espionage Act of 1917 and the Atomic Energy Act of 1954 and confuse an already confused field. In a more positive sense, I think the provision is unwise insofar as it accents security provisions rather than encourages the new agency to conduct its scientific and technical research to the fullest extent practicable in an atmosphere of free information exchange. In the atomic-energy program we learned that the strongest of security measures and building forts around our laboratories did not halt scientific progress elsewhere in the world. The delusion cost us many millions, if not billions of dollars; and, as I look back upon it, I only wish that this money had been spent on basic research. If it had, the benefits which would have accrued to the United States would have been vast (Congressional Record, p. 7291, May 6, 1958). [Italic added.] The effect which the freedom of information provision, written into law by the Congress, can have is set forth in an article entitled "Meeting the Challenge of Space" in the magazine Aviation Week, June 16, 1958, page 70: Major keynote of the new national space policy sounded by a special House committee headed by Majority Leader John McCormack is for freedom of information gained by space exploration. This positive policy of widespread dissemination of data gained by exploratory effort is a long needed reversal of the dark secrecy policy generated by the Atomic Energy Commission that has done so much to slow the United States rate of technical progress. The policy of a maximum flow of scientific space data is vital to maintain maximum progress across the board in this field. The committee members deserve commendation for the thoughtfulness of this approach to the problems of creating a national space agency, their earnest efforts to achieve some semblance of technical literacy and understanding of the basic issues involved plus the speed and decisiveness with which they acted. Their performance in this area is heartening reassurance that the democratic process can really cope with modern technical problems when given positive and enlightened leadership. [Italic added.] C. WEATHER MODIFICATION RESEARCH During 1958, the House Interstate and Foreign Commerce Committee considered a Senate-passed bill to authorize the National Science Foundation to undertake a research program in weather modification. The proposal on the subject not only would have given Federal officials extreme authority to restrict information gathered by the Agency, but also would have imposed a $5,000 criminal penalty for unauthorized release of information. The information restrictions originally appeared in Public Law 256 of the 83d Congress, which set up an advisory committee to evaluate public and private experiments in weather control. Under the proposed new Federal weather-research program, the functions and duties of the Advisory Committee on Weather Control would have been transferred to the National Science Foundation, along with the Advisory Commmittee's information-control powers, as follows: Information obtained under this act which the committee deems confidential for purposes of national security or other reasons or with reference to which a request for confidential treatment is made by the person or agency furnishing such information, shall not be published or disclosed unless the committee determines that the withholding thereof is contrary to the purposes of this Act, and any member or employee of the committee wilfully violating this provision shall, upon conviction, be fined not more than $5,000. Congressman George Rhodes, of Pennsylvania, submitted a report from the House Interstate and Foreign Commerce Committee explaining committee amendments to the original bill (H. Rept. 1695, May 7, 1958). The report pointed out that the information-control provisions originally proposed gave Federal officials the power to withhold information under the broad excuse of "other reasons” and even permitted withholding on the basis of a simple request from the person or agency furnishing information. The negative character of the information section, which would have been put into effect by the original bill, was clearly explained in the House committee report: In general, the committee feels that all information furnished should be available for public inspection unless there is some good reason to the contrary. The paragraph above quoted, from Public Law 256, seems not to have been written with this object in mind. Its emphasis seems to the committee to be on keeping information secret rather than on disclosing it whenever reasonably possible. The committee is in full agreement with the need to keep information confidential if disclosure would conflict with national security. However, the provision permitting the agency to keep information confidential for "other reasons," which in practice might be any reason at all, no matter how insubstantial, would give far too much undefined and unlimited power to the agency. Furthermore, the committee does not think that the agency should be compelled to treat information as confidential, solely because the person who furnished it asks that it be so treated, if keeping it confidential would be contrary to the purposes of the legislation. During consideration of the legislation by the House Interstate and Foreign Commerce Committee, a number of conferences were held between committee members and staff members and Congressman John E. Moss and staff members of the Special Subcommittee on Government Information. The result of the cooperative effort was a new information section in the weather modification research law as finally passed by the Congress, Public Law 85-510: (4) Information contained in any statement, report, record, or other document furnished pursuant to this subsection shall be available for public inspection, except (A) information authorized or required by statute to be withheld, and (B) information classified in accordance with law to protect the national security. The foregoing sentence shall not be interpreted to authorize or require the publication, divulging, or disclosure of any information described in section 1905 of title 18 of the United States Code, except that the Director may disclose information described in such section 1905, furnished pursuant to this subsection, whenever he determines that the withholding thereof would be contrary to the purposes of this section and section 3 (a) (9) of this Act. The report of the House Interstate and Foreign Commerce Committee explained the amendments to the orginal weather modification bill (H. Rept. 1695). The explanation of clause (A) sets forth clear guidance to read the new information section in conjunction with section 1905 of title 18 of the United States Code: By virtue of clause (A), information will not be required to be available for public inspection if it is "authorized or required by statute to be withheld." Section 1905 of title 18 of the United States Code is one statutory provision (and probably the principal one) which might "authorize or require" such information to be withheld. This will depend on the character of the information. The text of section 1905 is as follows: "g 1905. DISCLOSURE OF CONFIDENTIAL INFORMATION GENERALLY. "Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment." [Emphasis supplied.] The proposed subsection (f) (4) contains a second sentence which reads in part as follows: "The foregoing sentence shall not be interpreted to authorize or require the publication, divulging, or disclosure of any information described in section 1905 of title 18 of the United States Code. * * *" This language is included because of the clause shown in italic type in section 1905, as quoted above. The sole purpose of this language is to make it clear that the first sentence of the proposed subsection (f) (4) is not intended to give the kind of authorization referred to in the language of section 1905 so italicized. Thus, with respect to information furnished to the National Science Foundation under this proposed legislation, section 1905 will in practical effect (with a single exception, explained below) forbid the publication, divulging, or disclosure thereof if it "concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures, of any person, firm, partnership, corporation, or association. * * In the preceding paragraph reference is made to an exception to the operation of section 1905 of title 18. This is contained in the second sentence of the proposed paragraph (4), in that part which provides that “*** the Director may disclose any information described in such section 1905, and furnish pursuant to this subsection, whenever he determines that the withholding thereof would be contrary to the purposes of this section and section 3 (a) (9) of this Act." |