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Freedom of Information - General (2)
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23932824
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Freedom of Information - General (2)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
National Security Council. Central Intelligence Agency. (09/18/1947 - 12/04/1981)
Freedom of information
Legislation
Public records
Privacy, Right of
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1975-08-01
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1974
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The original documents are located in Box 17, folder "Freedom of Information - General
(2)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 17 of the Philip Buchen Files at the Gerald R. Ford Preside
THE WHITE HOUSE
WASHINGTON
P.B
2 with Nino bAdd on
"cone" M hr terpectation. weak.)
white agree House office- -
premary (The argument b
(Dably has a copy } Nino's memo)
P.A.
GERALD n. FORD LIBRARY
ASSISTANT ATTORNEY GENERAL
Department of Justice
Mashington, D.C. 20530
FEB 26 1975
MEMORANDUM FOR THE HONORABLE PHILIP W. BUCHEN
Counsel to the President
Re: Applicability of the Freedom of Information
Act to the White House Office
This is in reply to your recent request for our
views regarding the applicability of the Freedom of
Information Act (FIA), as amended, to the White House
Office.
Summary
The legislative history of the Freedom of Informa-
tion Act Amendments of 1974 makes clear that some
entities within the Executive Office of the President
are not "agencies" for purposes of the FIA; but it does
not provide clear guidelines for determining which they
are. In our opinion, it is proper to conclude that
generally speaking the components of the White House
Office, in the traditional or budgetary sense, are not
"agencies." The more difficult questions relate to the
status of other entities within the Executive Office,
such as the Domestic Council or the National Security
Council.
Statutory Provisions
Prior to adoption of the 1974 Amendments, coverage
under the FIA, 5 U.S.C. 552(b), depended entirely upon
the definition of "agency" contained in the Administra-
tive Procedure Act (of which the FIA is a part). The
APA definition is not particularly helpful with respect
to the present issue. That definition (5 U.S.C. 551(1)
reads as follows:
FORD 2 LIBRA&
(1) 'agency' means each authority of the
Government of the United States, whether or not
it is within or subject to review by another
agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C)
...
(H) [six other specific excep-
tions, none of which refers to the
President or the White House Office].
The 1974 Amendments, which took effect on February 19,
1975, add a special definition of "agency" applicable
only to the FIA portion of the APA. Section 3 of the
Amendments adds the following provision to 5 U.S.C. 552:
(e) For purposes of this section, the term
'agency' as defined in section 551 (1) of this
title includes any executive department, mili-
tary department, Government corporation,
Government controlled corporation, or other
establishment in the executive branch of the
Government (including the Executive Office of
the President), or any independent regulatory
agency.
While the statutory language itself does not differenti-
ate among the various parts of the Executive Office of
the President, the legislative history makes clear that
some parts are not intended to be covered. Before turn-
ing to the legislative history, it is necessary to
discuss the most prominent feature in its background,
which was a District of Columbia Circuit Court decision
under the original definition of "agency."
Soucie V. David
Soucie V. David, 448 F.2d 1067 (D.C. Cir. 1971),
involved an FIA request for a document of the Office of
Science and Technology (OST), a unit within the Executive
Office of the President, but not part of the White House
Office. The principal issue in the case was whether OST
was an "agency" within the meaning of 5 U.S.C. 551(1).
- 2 -
In resolving this issue in the affirmative, the
court adopted a functional approach to the Act. 1/ It
stated that "the APA apparently confers agency status on
any administrative unit with substantial independent
authority in the exercise of specific functions." 448
F.2d at 1073 (footnote omitted). The court's reasoning
with respect to OST was explained, in part, as follows:
If the OST's sole function were to advise
and assist the President, that might be taken
as an indication that the OST is part of the
President's staff and not a separate agency.
In addition to that function, however, the OST
inherited from the National Science Foundation
the function of evaluating federal programs.
When Congress initially imposed that duty on
the Foundation, it was delegating some of its
own broad power of inquiry in order to improve
the information on federal scientific programs
available to the legislature. When the respon-
sibility for program evaluation was transferred
to the OST, both the executive branch and mem-
bers of Congress contemplated that Congress
would retain control over information on fed-
eral programs accumulated by the OST, despite
any confidential relation between the Director
of the OST and the President--a relation that
might result in the use of such information as
a basis for advice to the President. By virtue
1/ In a recent case involving the applicability of the
FIA to certain advisory committees of the National
Institute of Mental Health, the court, in holding that
the advisory groups are not "agencies," used a similar
functional approach. Washington Research Project, Inc.
V. Department of Health, Education and Welfare, 504 F.2d
238, 246 (D.C. Cir., 1974).
- 3 -
of its independent function of evaluating fed-
eral programs, the OST must be regarded as an
agency subject to the APA and the Freedom of
Information Act. 448 F.2d at 1975 (footnotes
omitted).
Thus, the principal basis of the court's decision was the
fact that OST was not limited to advising and assisting
the President, but also had an independent power dele-
gated by Congress
The legislative history of the 1974 Amendments
The bill to amend the FIA reported by the House
Committee on Government Operations in March 1974 con-
tained a provision regarding the meaning of "agency"
which was essentially the same as the provision ulti-
mately enacted. 2/ H.R. Rep. No. 93-876, 93d Cong., 2d
Sess. (1974), p. 29. Like the enacted provision, the
House version expressly referred to the "Executive
Office of the President."
The expanded definition of "agency" was explained
as follows in the House report (p. 8):
For the purposes of this section, the defi-
nition of 'agency' has been expanded to include
those entities which may not be considered
2/ The only difference between the House version and
the final version related to the introductory phrase.
The House version stated: "Notwithstanding section
551(1), for purposes of this section, the term 'agency'
means any executive department ... [etc. ]." The pro
vision which was enacted states: "For purposes of this
section, the term "agency" as defined in section 551 (1)
of this title includes any executive department
...
CALD ? FORD
[etc. ]."
- 4 -
agencies under section 551(1) of title 5, U.S.
Code, but which perform governmental functions
and control information of interest to the
public. The bill expands the definition of
'agency' for purposes of section 552, title 5,
United States Code. Its effect is to insure
inclusion under the Act of Government corpora-
tions, Government controlled corporations, or
other establishments within the executive
branch, such as the U.S. Postal Service.
The term 'establishments in the Executive
Office of the President,' as used in this
amendment, means such functional entities as
the Office of Telecommunications Policy, the
Office of Management and Budget, the Council of
Economic Advisers, the National Security
Council, the Federal Property Council, and
other similar establishments which have been or
may in the future be created by Congress
through statute or by Executive order.
Thus, the report's explanation did not refer to the
President or to the White House Office. It should be
noted that the Department of Justice had sent the House
committee a bill report which asserted that it would be
unconstitutional for Congress to extend the FIA to the
President's staff. House report, p. 20.
During House debate on the bill, Congressman
Erlenborn paraphrased the committee report's discussion
of the Executive Office of the President. Then he asked
the floor manager, Congressman Moorhead, if it was cor-
rect that "it [the bill's definition of agency] does not
mean the public has a right to run through the private
papers of the President himself." 120 Cong. Rec. H 1789
(daily ed., Mar. 14, 1974). Congressman Moorhead
replied that Congressman Erlenborn's view was correct,
i.e., that no right of access to the private papers of
the President was intended. The precise meaning of this
exchange is not entirely clear. However, taken in con-
BERALD
- 5
nection with the silence of the House report regarding
the President, the exchange should establish that the
House bill was not intended to make the FIA applicable
to the President himself.
The bill reported by the Senate Judiciary Commit-
tee expanded the existing definition of "agency" in
some respects (e.g., by adding an express reference to
the Postal Service), but did not deal expressly with
the status of the Executive Office of the President.
The Senate report did refer, with approval, to the
decision in Soucie V. David. S. Rep. 93-854, 93d Cong.,
2d Sess. (1974), p. 33.
The only other pertinent item in the legislative
record is the conference report, S. Rep. No. 93-1200,
93d Cong., 2d Sess. (1974), pp. 14-15. That report
described the differences between the House and Senate
provisions regarding "agency" and stated (p. 14) that:
"The conference substitute follows the House bill." It
then continued (p. 15):
With respect to the meaning of the term
'Executive Office of the President' the con-
ferees intend the result reached in Soucie V.
David, 448 F.2d 1067 (C.A.D.C. 1971). The
term is not to be interpreted as including
the President's immediate personal staff or
units in the Executive Office whose sole func-
LIBRARY GERALD ? FORD
tion is to advise and assist the President.
Apparently, the conference committee read Soucie
to mean that, if the functions of OST had been limited
to advising and assisting the President, OST records
would not have been subject to the FIA. The correctness
of this interpretation of Soucie is questionable, for
the court specifically stated that it found it unneces-
sary to decide that issue. 448 F.2d at 1073. Still,
the main consideration here is not what the Soucie court
stated, but what Congress intended.
- 6 -
Interpreting the legislative history
It can be argued that on the point at issue here
the language of the 1974 Amendments ("any
estab-
lishment in the executive branch of the Government
(including the Executive Office of the President)") is
absolutely clear and thus permits no resort to legisla-
tive history. See, e.g., Caminetti V. United States,
242 U.S. 470, 490 (1917). If the parenthetical phrase
"(including the Executive Office of the President)"
clearly modified the word "establishment," that might be
the case. However, its position in the sentence indi-
cates that it modifies the word "Government"--which
would leave for determination what units, within the
Executive Office of the President, constitute "estab-
lishments" within the meaning of the Act, compelling
examination of evidence of legislative intent. More-
over, any reading which would place the entire Executive
Office within the Act would include the President him-
self, who is the head of that office; and since this
would raise the most serious constitutional questions,
an interpretation would be sought to avoid it--again
compelling resort to legislative history. In short, we
have no doubt that courts will not adopt the blanket
view that all parts of the Executive Office are covered
but will examine the legislative history to clarify the
point.
The exact meaning of the legislative history, as
described above, is unclear. As noted, the House report
listed a number of entities within the Executive Office
that were to be covered by the bill ("the Office of
Telecommunications Policy, the Office of Management and
Budget, the Council of Economic Advisers, the National
Security Council, the Federal Property Council, and
other similar establishments"). The conference report
took an entirely different approach to the issue, seek-
ing to clarify the meaning of "Executive Office" by
principle rather than by example. The term "Executive
Office" was not meant to include "the President's
immediate personal staff or units
whose sole
&
FORD
- 7 -
GERALD
LIBRARY
function is to advise and assist the President." Be-
cause of this basic difference in approach, it is
impossible to tell whether the conference committee
agreed or disagreed with the House report. Tending to
show agreement is the statement in the conference
report that "the conference substitute follows the
House bill"--but this is a reference to the language of
the bill, and goes no further than the statute itself
toward showing that the House committee's intent was
adopted. This issue of the relationship between the
House and conference committee reports is relevant but
not crucial to the present determination; it will be
absolutely central when we come to consider the status
under the Act of units named in the House report.
Constitutional Considerations
It is a settled rule of statutory construction that
an interpretation that raises substantial constitutional
questions will not be adopted where another reading of
the statute is possible. See, e.g., Crowell V. Benson,
285 U.S. 22, 66 (1932). This principle is pertinent
here. For the Congress to subject the President, or
that portion of the Executive Office that functions as
a mere extension of the President, to the requirements
of the FIA (including its provisions for judicial
review) seems inconsistent with the doctrine of separa-
tion of powers. Cf. Myers V. United States, 272 U.S.
52 (1926). Moreover, the exemptions of the FIA do not
necessarily correspond to the scope of Executive
privilege, a privilege grounded on the Constitution.
United States V. Nixon, 42 Law Week 5237 (1974).
Finally, the practical burdens resulting from applica-
tion of the FIA to the President and his staff,
including the provisions for judicial review and sanc-
tions, might unduly interfere with the President's duty
under Article II, § 3 to execute the laws.
These considerations weigh heavily against any
interpretation of "agency"--if another is feasible under
the statute and its history--which would apply it to
what might be termed the nucleus of the Presidency
FORD
- 8 -
GERALD
LIBRARY
General Conclusions
On the basis of the language of the statute, its
legislative history (which includes reliance upon the
Soucie case) and the constitutional issues involved, we
are of the view that the following factors should be
determinative of whether a unit within the Executive
Office is covered by the Act:
1. Functional proximity to the President. A
unit such as the Office of Telecommunications
Policy, which ordinarily reports through one or
another Presidential Assistant, is more likely to
be covered than a unit such as the Domestic
Council, which has regular direct access.
2. Authority to make dispositive determina-
tions. A unit such as OMB, which regularly makes
Executive branch decisions is more likely to be
covered than a unit such as the Council of Eco-
nomic Advisers, which only makes recommendations
to the President.
3. Constitutional basis for the functions
performed. A unit such as the Office of Eco-
nomic Opportunity, which is meant to achieve
goals established under the Constitution by the
Congress, is more likely to be covered than a
unit such as the National Security Council,
which performs a function directly assigned to
the President by the Constitution.
4. Manner of creation. A unit such as the
Council on Environmental Quality, originally
established by statute, is more likely to be
covered than a unit such as the Federal Property
Council, established by Executive Order on the
basis of inherent Presidential authority.
Needless to say, no single one of these factors is
determinative.
- 9 -
FORD is LIBRARY
The status of the White House Office
Your immediate inquiry is whether the "White
House Office" is covered by the Act. We are not en-
tirely clear what that phrase is meant to include. The
United States Government Manual (1974-75) lists offi-
cials who are in the White House Office (p. 81) and
contains a chart (copy attached) showing the relation
of that Office to other parts of the Executive Office
of the President (p. 80). The Executive Office Appro-
priation Act for 1975 (and for prior years) contains
a separate line item for that unit. 3/ Public Law 93-
381 (1974), Title III. However, more recently, a
revised chart showing the organization of the "White
House Staff" was issued (copy attached). 4/ That chart
does not use the term "White House Office," and appears
to give parallel treatment to units that are in our
view not at all comparable for present purposes. We
assume that your inquiry relates to the White House
Office as shown in the Government Organization Manual
and as separately funded in the Budget.
It is clear from the legislative history that the
FIA does not embrace the "President's immediate personal
staff.' " This phrase is used in the conference report,
but is not explained. Presumably, it means that records
maintained in the President's own offices or maintained
3/ Other line items within the Executive Office in-
clude the CEA, Domestic Council, NSC, OMB and OTP.
4/ 10 Weekly Compilation of Presidential Documents
1588-89 (Dec. 23, 1974).
FORD
- 10 -
GERALD
LIBRARY
5/
by his closest aides are beyond the scope of the FIA.
This would seem to include the records of the four
cabinet-rank advisers listed on the recent chart
(Messrs. Buchen, Hartmann, Marsh and Rumsfeld); and
those of the units listed as White House Operations,
Counsellor to the President (Mr. Marsh), Office of
the Press Secretary, Counsellor to the President
(Mr. Hartmann), and Office of the Counsel. It would
appear that the White House Office includes all of the
aforementioned entities. They all perform staff func-
tions for the President, and they do not appear to have
OST-type independent functions. In our view they all
must be considered as "advising and assisting" the
President, even if that phrase is narrowly construed.
5/ That the President himself is not an "agency" for
purposes of the FIA should follow, a fortiori, from the
expressed intent to exclude the President's immediate
staff. See also the Erlenborn-Moorhead exchange (dis-
cussed above).
It may also be noted that the recent opinion of the
U.S. District Court for the District of Columbia (Judge
Richey), dealing with access to White House tapes and
other material compiled during the Nixon Administration,
stated that the "Office of the President" is not an
"agency" and that records of the "President and his
immediate aides" are not subject to the FIA. Nixon V.
Sampson, Civ. Action No. 74-1518, D.D.C. (Jan 3, 1975),
p. 69. The court supported its conclusion by reference
to the legislative history of the 1974 Amendments, i.e.,
the conference report. (The effect of this opinion
has been stayed by the Court of Appeals.)
is
FORD
- 11 -
GERALD
LIBRARY
We are expressing no opinion at the present time
as to the application of the FIA to other units of
the Executive Office, such as OMB, 6/ NSC, 7/ CEA,
and the Domestic Council. Each of those units must be
considered separately, and the question can be reserved
for consideration when requests addressed to each of
them are received.
As a matter of sound planning, we urge that two
steps be taken for the future:
(1) Any functions performed by those units
described above as being within the White House Office
which do not consist of "advising and assisting" the
President should, if possible, be located within another
Executive Office unit. If this is not possible, then
a segregable subunit of the White House Office unit
should be created.
6/ On February 19, 1975, OMB published an FIA regula-
tion implementing the view that some, but not all, of
OMB's functions are subject to the FIA. See 40 Fed.
Reg. 7346, 7347.
7/ The recent FIA regulation published by the NSC staff
contains language which seeks to leave open the question
of coverage. See 40 Fed. Reg. 7316 (Feb. 19, 1975).
- 12 -
BENALDY
FORD
LIBRARY
(2) The concept of a separate "White House Office"
should be fostered and strengthened in as many ways as
possible. Any future organizational charts should
clearly indicate the existence of such a unit separate
and apart from the rest of the Executive Office. Judi-
cial acceptance of such a functional division can
greatly simplify our FIA problems with respect to the
Executive Office.
Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
R.
GERALD
FORD
LIBRARY
- 13 -
THE WHITE House
WASHINGTON
2/28/75
Phil,
Per your request.
/
Bill Min Casselman
FORD is LIBRARY 078830
Center for National Security Studies
122 Maryland Avenue, N.E.
Washington, D.C. 20002
February 7, 1975
(202) 544-5380
On February 19, 1975 the recently passed amendments to the
Freedom of Information Act go into effect. Among the important
changes in the Act are the setting of short mandatory. time limits
for response to requests and a change in the wording of the exemp-
tion for national security information. These new provisions, par-
ticularly in light of changing attitudes about secrecy, should make
it possible to secure the release of current newsworthy information
about defense and foreign policy.
In order to assist journalists, scholars, and other citizens
in using the amended FOIA, the ACLU Foundation and the Center for
National Security Studies have established a Project on Freedom
of Information and National Security. The Project has just pub-
lished a pamphlet explaining what the Act means and how you can
use it. A copy is enclosed. Please let me know if you would like
additional copies or know of others who might find the pamphlet
useful.
Meetings to provide additional information about the Act and
to answer questions will be held at 122 Maryland Avenue, N.E. on
Thursday, February 13th and on Friday, February 14th at 10:00 am.
You and any of your colleagues are invited to attend.
If you are contemplating using the Act and would like assis-
tance or advice, please do not hesitate to call or write to me at
this address.
Sincerely yours,
most Malpure
Morton H. Halperin
GER
mhh/cmm
A project of the fund for peace.
The New
Freedom Of
Information Act&
National Security
Information
What the Act says
How you can use it
Where to get help
Project on Freedom
of Information and
the National
Security
Center for National
ACLU
Security Studies
Foundation
GERALD & FO D LIBRARY
This pamphlet is published by the
Project on Freedom of Information and
National Security sponsored jointly by
the American Civil Liberties Union
Foundation and the Center for National
Security Studies. The aim of the project
is to secure the release of information
needed for an informed public debate
on matters of national defense and for-
eign policy. The activities of the project,
in addition to the preparation of this
pamphlet, include requesting informa-
tion on national security matters, par-
ticularly information which reveals how
the secrecy system works, making that
information available to the public, and
assisting journalists, professors, and
members of the public to use the
amended Freedom of Information Act.
Additional copies of this pamphlet
and assistance in using the FOIA may
be obtained from the project office or
from the ACLU Foundation. Inquiries
should be addressed to:
Project on Freedom of
Information and National Security
122 Maryland Avenue NE
Washington DC 20002
202-544-5380
Mr. John H.F. Shattuck
Staff Counsel
FORD i LIBRARY GERALD
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
212-725-1222
February 1975
The Freedom of Information Act and
National Security Information
In November 1974 Congress amended the Free-
dom of Information Act over President Ford's veto.
New provisions of the Act create the possibility of
requiring the Executive Branch to disclose informa-
tion of importance to public debate on current
national security issues. The amendments, which
become effective on February 19, 1975, will be
important only if members of Congress, the press
and the public make use of them. This pamphlet
seeks to facilitate the release of information by: (1)
explaining the provisions of the amended Act as they
relate to national security information; (2) describing
in detail how to request information under the Act;
and (3) offering the assistance of the ACLU Founda-
tion and the Center for National Security Studies to
persons seeking to use the Act.
Provisions of the Amended FOIA
1. Criteria for Withholding Information
The Freedom of Information Act provides that all
records in the possession of the government must be
provided to anyone on request unless they are spe-
cifically exempted from disclosure by the Act (title 5
U.S. Code, section 552(b)). The national security
information exemption is contained in subsection
(b)(1). In the original Act as passed, this subsection
exempted information:
specifically required by Executive order to be kept
secret in the interest of the national defense or
foreign policy.
In interpreting this exemption the Supreme Court
in 1973 held that Congress had provided only for
very limited judicial review of classified documents
(E.P.A. V Mink, 410 U.S. 73 (1973)). Following Mink,
all that the courts could do was to determine if a
document was in fact classified; it could not deter-
mine whether the classification was sound or even
whether the decision to classify was, in the words of
Justice Stewart, "cynical, myopic or even corrupt."
However, the Supreme Court also noted in Mink
that "Congress could certainly have provided that
the Executive Branch adopt new procedures or it
could have established its own procedures
"
Congress in 1974 responded to this invitation. The
(b)(1) subsection as amended exempts national
security records only if they are:
(a) specifically authorized under criteria established
by an Executive order to be kept secret in the inter-
est of national defense or foreign policy, and (b) are
in fact properly classified pursuant to such Executive
order.
The House-Senate Conference Report notes that
this revised provision requires that "both procedural
and substantive criteria" contained in the Executive
order be followed. The relevant order is Executive
Order 11652 on "Classification and Declassification
of National Security Information and Material"
issued by President Nixon on March 10, 1972. The
preamble of the Order notes that
T here is some official information and material
which, because it bears directly on the effectiveness
of our national defense and the conduct of our for-
eign relations, must be subject to some constraints.
The Order provides that such information shall be
classified "Top Secret," "Secret," or "Confidential."
To be properly classified under the Order, informa-
tion must at least fit the criterion of "Confidential,"
which reads as follows:
The test for assigning "confidential" classification
shall be whether its unauthorized disclosure could
be reasonably expected to cause damage to the
GERALD FORD LIBRARY
national security.
An implementing directive issued by the National
Security Council on May 19, 1972, provides that
If the classifier has any substantial doubt as to
which security classification category is appropriate,
or as to whether the material should be classified at
all, he should designate the less restrictive treatment.
Thus the relevant minimum substantive criterion
for proper classification appears to be:
No substantial doubt that release of the informa-
tion could be reasonably expected to cause damage
to the national security.
The Executive Order also provides that informa-
tion shall be declassified as soon as it no longer fits
the criteria for classification. Thus to withhold infor-
mation under the (b)(1) exemption, the agency
possessing the records must make a new determina-
tion, at the time of the request, that the information
is still properly classified; it cannot rely on a deter-
mination made in the past.
Furthermore, for the amended FOIA (b)(1) exemp-
tion to apply, the procedures of the Executive Order
and implementing directive must have been fol-
lowed. These include:
1. Limiting classification authority to designated
agencies.
2. Indicating on a document whether it is subject
to the Declassification Schedule.
3. Indicating on each document the office of
origin and the date of classification.
4. "To the extent practicable marking the docu-
ment to indicate which portions are not
classified."
The Order and implementing directive also pro-
vide for automatic declassification of information
according to a fixed schedule unless it is exempt
from the declassification procedures.
If either substantive or procedural requirements
of the Order are not met, files may not be withheld
under section (b)(1). However, national security
information which is not exempt under amended
FORD & GERALD LIBRARY
subsection (b)(1) of the FOIA may nevertheless be
exempt under other subsections of the Act. Those
most likely to be relevant are subsection (b)(3) relat-
ing to information exempted from disclosure by
statute, which would apply to Atomic Energy infor-
mation, cryptographic information, and, perhaps,
to intelligence sources and means; subsection (b)(5)
which excludes intra- and inter-agency memoranda
containing only advice on policy matters (the advice
would be exempt, but not factual material included
in the same memorandum if it were separable); and
subsection (b)(7) which exempts "investigatory files
compiled for law enforcement purposes," including
those relating to "lawful national security intelli-
gence investigations." Under these exemptions, it
should be noted, documents may still be released
through agency discretion, although they are pro-
tected from required disclosure. Matters not spe-
cifically excepted from disclosure by the FOIA
exemptions may not be withheld for any reason.
2. Requesting a File from an Agency
Description of Record:
The Act provides that upon request by any person
an agency shall make a record available if it is not
exempt from release. The request must be honored
under the 1974 amendments if it "reasonably de-
scribes such records." The original FOIA provided
for release of "identifiable" records. In changing the
language, Congress indicated that it expects the
agency to locate the records requested if it can do so
with a reasonable amount of effort. The agency is
not, however, required to compile information not
already contained in a document; the FOIA is in
reality a public records law rather than literally an
information law.
Partial Exemption:
If parts of a record are exempt from release "any
reasonably segregable portion of a record" must be
released after the exempt material is deleted.
Fees:
FORD is LIBRARY GENALD
The Act provides that requests must conform to
rules established regarding procedures and fees.
Fees are limited to "reasonable standard charges for
document search and duplication." Thus no fees
may be charged for assessing whether previously
classified documents should now be de-classified, in
whole or in part. The amended Act also provides that
fees may be reduced or waived when the agency
determines that release of the information can be
considered as primarily benefiting the general
public.
Time Limits:
Under the original Act, agencies often took many
months to respond to a request. Recognizing the
frequent need for timely release of information,
Congress laid out in the 1974 amendments very de-
tailed time limits for responding to requests.
A request for information must be answered within
10 working days. If some or all of the requested
information is denied, the individual must be in-
formed of his right to appeal and given the name of
the person to whom the appeal is to be addressed.
If a denial of information is appealed, a final deter-
mination must be made within 20 days. Either time
limit may, upon written notice to the requester, be
extended for a combined total of up to 10 additional
days, but only under three specific instances of
"unusual" circumstances specified in the Act. These
are (1) records are located in separate offices, (2) a
voluminous amount of material from separate files
must be examined, or (3) a need to consult with
other agencies or other components of the same
agency. No other circumstances justify a delay.
If a request is denied or if there is no response
within either specified time periods, the person
making the request may take his case to a federal
District Court. A complaint in court must be an-
swered by the government in 30 days unless the
Court grants a delay upon a showing by the govern-
ment that there are exceptional circumstances and
LIBRARY GERALD FORD
that the agency is exercising due diligence.
3. The New Role of Judicial Review
The Act provides that a District Court in the District
of Columbia (or the district in which the complain-
ant resides or the records are kept) may, on com-
plaint, order the disclosure of records improperly
withheld. The Act reads:
In such cases the court shall determine the matter de
novo, and may examine the contents of such agency
records in camera to determine whether such
records or any part thereof shall be withheld,
and,
the burden is on the agency to sustain its action.
This means that the government must persuade
the Court that the information is properly classified
under the Executive order. In order to reach a deter-
mination the Court may, if it feels it necessary,
examine the disputed documents in secret.
The conference report comments as follows on
these provisions:
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 with-
holding 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 examinations need not be automatic, in
many situations it will plainly be necessary and ap-
propriate. Before the court orders in camera inspec-
tion, the Government should be given the opportu-
nity to establish by means of testimony or detailed
affidavits that the documents are clearly exempt from
disclosure. The burden remains on the Government
under this law.
However, the conferees recognize that the Execu-
tive 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. Accord-
ingly, 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
FORD is LIBRARY 07V839
concerning the details of the classified status of the
disputed record.
In a major FOIA case, decided before the Act was
amended, the Court of Appeals for the District of
Columbia Circuit spelled out in detail the burden on
the government to demonstrate that a particular
document or parts of it were in fact exempt (Vaughn
V. Rosen, 489 F.2d 820 (1973)). The Court held that
there must be (1) a detailed justification for any with-
holding, not simply a conclusory opinion, (2) speci-
ficity, separation and indexing so that the court could
release one or more parts of a document, even if
some information in the document is exempt, and
(3) adequate testing, perhaps by the appointment of
a special master.
The courts are instructed by the amended Act to
expedite hearings. in such cases so that the usual
lengthy delays encountered by civil litigants may be
avoided. If the documents are ordered released the
court may order the government to pay court costs
and attorneys' fees. Decisions of the District Court
may be appealed by either party.
FORD it LIBRARY CERALD
Using the Act
If you want information related to national security
that the government has not released, you should
ask for it. Here is how to do that.
Written Request:
The first step is to write a letter to the official desig-
nated by the agency having the records to receive
such requests or, if his identity is not known, to the
General Counsel of the agency. (A list of designated
officials for FOIA requests of the major national
security agencies is on the back cover.) If you are not
sure which agency has the information write to the
most likely one; your letter will be forwarded if
necessary.
The letter should begin by invoking the provisions
of the Freedom of Information Act as amended (sec-
tion 552 of title 5, United States Code) and indicating
that this is a request for information under the Act.
The letter should then describe the information
requested in as much detail as possible. If known,
the location and specific identification of the file
or record should be given. However, you should not
hesitate to write because you lack information on
the whereabouts of the material you seek. You need
only "reasonably describe" the records you are
requesting. You need not give any reason for re-
questing the information, but if you have a specific
interest you may wish to state it.
The writer should indicate a willingness to pay
reasonable fees for locating and copying the re-
quested files. If the documents you are requesting
may be particularly voluminous, you can request a
cost estimate before the actual location and copying
is performed. You may be able to cut costs by volun-
BERALD FORD LIBRARY
teering to view originals rather than paying for
copies of all requested documents. You may wish to
request a reduction or waiver of these fees on the
grounds that release of the information would
benefit the general public. If so, you should state the
nature of this benefit and summarize any other
factors, such as indigency, which might influence a
reduction in fees.
The letter should request release of the informa-
tion within 10 working days, as provided by the
amended Act. You may wish to give your telephone
number and suggest that matters relating to identi-
fication of records, clarification of the scope of the
request, and negotiation on the reduction of fees be
handled by telephone to save processing time. The
letter should indicate that, if any or all of the infor-
mation is not released, the writer wishes to know
what exemption is being relied on. It might also state
that if any parts of a document are not exempt they
should be forwarded immediately, without prejudice
to a right to appeal for the entire document. (A
sample letter is on page 14.)
Appeal:
If a written refusal is received, an appeal letter
should be sent. If you do receive a written rejection,
you must appeal before going to court, even if you
are confident of a rejection on appeal. If you receive
no response to the original request in 20 days (or up
to thirty days if you are advised of unusual circum-
stances) you may wish to immediately file a com-
plaint in a federal district court, or file an appeal
letter, or do both simultaneously. If a refusal is re-
ceived, the letter should advise you of the person to
whom an appeal should be addressed. If it does not
or if you have not received a letter, the appeal should
be addressed to the head of the agency.
The appeal letter should repeat the description of
the requested information and indicate that release
&
FORD
was denied. It should request a final decision within
20 working days as provided in the Act. A copy of the
previous exchange of letters should be included for
GERALD
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the agency's convenience. You may wish in the ap-
peal letter to comment on or refute the reasons for
the denial if they have been given to you. In many
instances, it may be possible to persuade a senior
official to release information which a more junior
official has denied you. If you wish to make such a
case, you may increase your chances of success by
seeking help at this stage. If you intend to go to
court if your request is denied, you should so state in
your appeal letter. Also, if you believe that a denial
of the record is "arbitrary or capricious," you should
state this in your appeal letter, since these terms are
used in the law and provide for possible administra-
tive sanctions against officials so acting. (Sample
letters are on pages 15 & 16.)
You may also wish to send copies of your corre-
spondence to the Senate Subcommittee on Admin-
istrative Practice and Procedure (Sen. Kennedy,
Chairman) and the House Subcommittee on Govern-
insure #
ment Information (Cong. Bella S. Abzug, Chair-
person), which oversee and monitor agency imple-
mentation of the FOIA. These subcommittees may
be able to assist you in pressing your request with the
agency.
Going to Court:
If this appeal is denied, or if no answer to the
appeal is received within 20 days-or, at most, 30
days if the agency has informed you of a delay be-
cause of unusual circumstances-a suit may be
brought in a Federal District Court.
At this point, if not earlier, advice should be sought.
as to how to proceed without counsel or how to
obtain counsel.
FORD is LIBRARY 07/830
Getting Help
The American Civil Liberties Union Foundation
and the Center for National Security Studies have
jointly established a Project on Freedom of Informa-
tion and National Security. The aim of the Project is
to promote the use of the FOIA to obtain the release
of information related to national security matters.
The Project staff is available to provide assistance at
every stage and to arrange for legal assistance
through the ACLU Foundation when necessary. The
staff will also refer you to other organizations pre-
pared to help.
To enable us to monitor the functioning of the Act
in this area, we would appreciate receiving copies of
correspondence with agencies requesting national
security information under the FOIA.
If you would like more specific information about
using the FOIA or help in getting national security
information from the Executive Branch, contact:
In Washington:
Morton H. Halperin
Center for National Security Studies
122 Maryland Avenue, N.E.
Washington, D.C. 20002
(202) 544-5380
In New York:
John H. F. Shattuck
National Staff Counsel
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
(212) 725-1222
is LIBRARY OFRALD
FOIA Exemptions
1. Records "specifically authorized under
criteria established by an Executive order to
be kept secret in the interest of national
defense or foreign policy" and which are
"in fact properly classified pursuant to such
Executive order."
2. Matters concerning "internal person-
nel rules and practices" that do not affect a
member of the public.
3. Matters exempted from disclosure by
statute.
4. Trade secrets and commercial or finan-
cial information that a person has given to
the agency and that are privileged or confi-
dential.
5. Inter-agency or intra-agency com-
munications, such as memoranda showing
how individual decision-makers within an
agency feel about various policy alterna-
tives.
6. Personnel and medical files, which
could not be disclosed without a "clearly
unwarranted invasion" of someone's
privacy.
7. Investigatory records compiled for law
enforcement purposes (such as files com-
piled by the F.B.I. in a criminal investiga-
tion)-but only if the production of such
records would (a) interfere with law en-
forcement, (b) deprive a person of a fair
trial, (c) constitute an unwarranted invasion
of personal privacy, (d) disclose the identity
of a confidential source and, in criminal and
lawful national security intelligence investi-
FORD is LIBRARY GERALD
gations, confidential information furnished
only by such a source, (e) disclose investiga-
tive techniques, or (f) endanger the life or
safety of law enforcement personnel.
8. Reports prepared by or for an agency
responsible for the regulation or supervision
of financial institutions, such as reports pre-
pared by the Securities and Exchange Com-
mission concerning the New York Stock
Exchange.
9. "Geological and geophysical informa-
tion and data, including maps, concerning
wells." This refers to reports based on ex-
plorations by private gas and oil companies.
For further discussion of these exemp-
tions and other provisions of the Act see the
ACLU pamphlet, "Your Right to Govern-
ment Information" (revised ed. January
1975).
GERALD LIBRARY = FORD
SAMPLE Request Letter
Center for National Security Studies
122 Maryland Avenue, N.E.
Washington, D.C. 20002
(202) 544-5380
February 19, 1975
The Assistant to the Director
Central Intelligence Agency
Washington, D.C. 20505
Dear Sir:
This is a request under the Freedom of Information Act as amended
(5 U.S.C. 5552).
I write to request a copy of the report on CIA domestic activities sent by
Mr. William Colby to President Ford on or about January 1, 1975.
To avoid any possible misunderstanding of what is being requested, I enclose
a copy of a newspaper story in which Presidential Press Secretary Ronald Nesson
states the t President Ford has received this report. My request includes any
and all appendices, annexes, or other materials attached to the copy of the
Report as transmitted to President Ford by Mr. Colby.
As you know, the amended Act provides that if some parts of a file are
exempt from release that "reasonably segregable" portions shall be provided. I
therefore request that, if you determine that some portions of the requested
Report are exempt, you provide me immediately with a copy of the remainder of the
Report. I, of course, reserve my right to appeal any such decisions.
If you determine that some or all of the Report is exempt from release,
I would appreciate your advising me as to which exemption(s) you believe covers
the material which you are not releasing.
I am prepared to pay reasonable costs for locating the requested file and
reproducing it.
As you know, the amended Act permits you to reduce or waive the fees if that
"is in the public interest because furnishing the information can be considered
as primarily benefiting the public." I believe that this request plainly fits
that category and ask you to waive any fees.
As provided for in the amended Act, I will expect to receive a reply
within 10 working days.
Sincerely yours,
$1
rurd
GERALD
LIBRARY
A project of the fund for peace.
SAMPLE Appeal Letter
(Simple Form)
Center for National Security Studies
122 Maryland Avenue N.E.
Washington, D.C. 20002
(202) 544 5380
Secretary of Defense
Department of Defense
The Pentagon
Washington, D.C. 20301
Dear Mr. Secretary:
This is an appeal pursuant to subsection (a)(6) of the Freedom
of Information Act (5 U.S.C. 552).
On
9
I received a letter from
of your agency denying my request for information and Indicating that
an appeal should be directed to you. This letter constitutes that
appeal. I am enclosing a copy of my exchange of correspondence with
your agency so that you can see exactly what files I have requested
and the insubstantial grounds on which my request has been rejected.
I trust that upon examination of my request you will conclude
that the information I have requested is not properly covered by
exemption (b) (1) of the amended Act and will make the information
promptly available.
As provided for in the Act, I will expect to receive a reply
within 20 working days.
If you are unable to order release of the requested information,
I intend to initiate a lawsuit to compel its disclosure.
Yours sincerely,
S
FORD
GERALD
LIBRARY
A project of the fund for peace.
SAMPLE Appeal Letter
(With Argumentation)
Center for National Security Studies
122 Maryland Avenue, N.E.
Washington, D.C. 20002
Secretary of Defense
(202) 544-5380
Department of Defense
The Pentagon
Washington, D.C. 20301
Dear Mr. Secretary:
We, the undersigned, pursuant to the Freedom of Information Act (5 U.S.C. 552),
hereby appeal the refusal of the Department of Defense to release to the public a
complete list of all armaments, munitions and war materiel supplied by our govern-
ment to the Republic of South Vietnam since the signing of the Peace Agreement on
January 27, 1973. We demand this information in the name of the public's right to
know.
On February 19, 1975, one of the signers of this letter sent you a letter re-
questing a list of all armaments supplied to the South Vietnamese government since
the cease fire agreement. The response denied this information, stating that it
was classified because its disclosure might be injurious to the government of
South Vietnam. We cannot accept this reason for withholding vital information re-
garding government operations from the American people. Surely the familiar jus-
tification of national security does not apply to the affairs of a country in which,
as we have repeatedly said, we have no military involvement. Any policy of with-
holding this information from the American public is made further unacceptable by
Article 7. of the Protocol to the Agreement Ending the War, which provides for the
supervision and control of arms replacements by the Two-Party Joint Military Com-
mission and the International Commission of Control and Supervision. Obviously,
this permits the spection of armaments, munitions and war materiel by persons
other than American citizens.
Why, once again, should the American public be the last to know what its own
government is doing?
As you no doubt know, the Freedom of Information Act places the burden of
proof for withholding such documents as these upon the administrative authority.
We hereby demand that you release this information within twenty working days
from the receipt of this letter, as provided in the amended Freedom of Informa-
tion Act. Otherwise, we intend to begin litigation.
Sincerely yours,
A project of the fund for peace.
Where to Write
Department of Defense:
Martin R. Hoffmann
General Counsel
Department of Defense
Washington, D.C. 20301
Department of State:
Mr. Daniel Brown
Director, Freedom of Information Staff
TA/FOI
Room 5835
Department of State
Washington, D.C. 20520
Central Intelligence Agency:
Mr. Angus MacLean Thuermer
The Assistant to the Director
Central Intelligence Agency
Washington, D.C. 20505
National Security Council:
Mrs. Jeanne W. Davis
Staff Secretary
Room 374
National Security Council
Old Executive Office Building
Washington, D.C. 20506
FORD & LIBRARY GERALD
THE WHITE House
WASHINGTON
P.B.
2 with Nino brad on
white agree House office-
premary (The constituted argument
"core" M he terpetation. is weak.)
(Dadley hro a Copy Rinos memo)
P.A.
FORD a LIBRARY GERALD
ASSISTANT ATTORNEY GENERAL
Department of Justice
Mashington, D.C. 20530
FEB 26 1975
MEMORANDUM FOR THE HONORABLE PHILIP W. BUCHEN
Counsel to the President
Re: Applicability of the Freedom of Information
Act to the White House Office
This is in reply to your recent request for our
views regarding the applicability of the Freedom of
Information Act (FIA), as amended, to the White House
Office.
Summary
The legislative history of the Freedom of Informa-
tion Act Amendments of 1974 makes clear that some
entities within the Executive Office of the President
are not "agencies" for purposes of the FIA; but it does
not provide clear guidelines for determining which they
are. In our opinion, it is proper to conclude that
generally speaking the components of the White House
Office, in the traditional or budgetary sense, are not
"agencies." The more difficult questions relate to the
status of other entities within the Executive Office,
such as the Domestic Council or the National Security
Council.
Statutory Provisions
:
FORD
Prior to adoption of the 1974 Amendments, coverage
under the FIA, 5 U.S.C. 552(b), depended entirely upon
LIBRARY
the definition of "agency" contained in the Administra-
tive Procedure Act (of which the FIA is a part). The
APA definition is not particularly helpful with respect
to the present issue. That definition (5 U.S.C. 551(1))
reads as follows:
(1) 'agency' means each authority of the
Government of the United States, whether or not
it is within or subject to review by another
agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C) ... (H) [six other specific excep-
tions, none of which refers to the
President or the White House Office].
The 1974 Amendments, which took effect on February 19,
1975, add a special definition of "agency" applicable
only to the FIA portion of the APA. Section 3 of the
Amendments adds the following provision to 5 U.S.C. 552:
(e) For purposes of this section, the term
'agency' as defined in section 551(1) of this
title includes any executive department, mili-
tary department, Government corporation,
Government controlled corporation, or other
establishment in the executive branch of the
Government (including the Executive Office of
the President), or any independent regulatory
agency.
While the statutory language itself does not differenti-
ate among the various parts of the Executive Office of
the President, the legislative history makes clear that
some parts are not intended to be covered. Before turn-
ing to the legislative history, it is necessary to
discuss the most prominent feature in its background,
which was a District of Columbia Circuit Court decision
under the original definition of "agency."
Soucie V. David
GERALD FORD LIBRARY
Soucie V. David, 448 F.2d 1067 (D.C. Cir. 1971),
involved an FIA request for a document of the Office of
Science and Technology (OST), a unit within the Executive
Office of the President, but not part of the White House
Office. The principal issue in the case was whether OST
was an "agency" within the meaning of 5 U.S.C. 551(1).
- 2 -
In resolving this issue in the affirmative, the
court adopted a functional approach to the Act. 1/ It
stated that "the APA apparently confers agency status on
any administrative unit with substantial independent
authority in the exercise of specific functions." 448
F.2d at 1073 (footnote omitted). The court's reasoning
with respect to OST was explained, in part, as follows:
If the OST's sole function were to advise
and assist the President, that might be taken
as an indication that the OST is part of the
President's staff and not a separate agency.
In addition to that function, however, the OST
inherited from the National Science Foundation
the function of evaluating federal programs.
When Congress initially imposed that duty on
the Foundation, it was delegating some of its
own broad power of inquiry in order to improve
the information on federal scientific programs
available to the legislature. When the respon-
sibility for program evaluation was transferred
to the OST, both the executive branch and mem-
bers of Congress contemplated that Congress
would retain control over information on fed-
eral programs accumulated by the OST, despite
any confidential relation between the Director
of the OST and the President--a relation that
might result in the use of such information as
a basis for advice to the President. By virtue
1/ In a recent case involving the applicability of the
FIA to certain advisory committees of the National
Institute of Mental Health, the court, in holding that
the advisory groups are not "agencies," used a similar
functional approach. Washington Research Project, Inc.
V. Department of Health, Education and Welfare, 504 F.2d
238, 246 (D.C. Cir., 1974).
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is
FORD
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LIBRARY
of its independent function of evaluating fed-
eral programs, the OST must be regarded as an
agency subject to the APA and the Freedom of
Information Act. 448 F.2d at 1975 (footnotes
omitted).
Thus, the principal basis of the court's decision was the
fact that OST was not limited to advising and assisting
the President, but also had an independent power dele-
gated by Congress
The legislative history of the 1974 Amendments
The bill to amend the FIA reported by the House
Committee on Government Operations in March 1974 con-
tained a provision regarding the meaning of "agency"
which was essentially the same as the provision ulti-
mately enacted. 2/ H.R. Rep. No. 93-876, 93d Cong., 2d
Sess. (1974), p. 29. Like the enacted provision, the
House version expressly referred to the "Executive
Office of the President."
The expanded definition of "agency" was explained
as follows in the House report (p. 8):
For the purposes of this section, the defi-
nition of 'agency' has been expanded to include
those entities which may not be considered
2/ The only difference between the House version and
the final version related to the introductory phrase.
The House version stated: "Notwithstanding section
551 (1), for purposes of this section, the term 'agency'
means any executive department
...
[etc. ]." The pro-
vision which was enacted states: "For purposes of this
section, the term "agency" as defined in section 551(1)
of this title includes any executive department
[etc. ]."
- 4 -
FORD is LIBRARY GERALD
agencies under section 551(1) of title 5, U.S.
Code, but which perform governmental functions
and control information of interest to the
public. The bill expands the definition of
'agency' for purposes of section 552, title 5,
United States Code. Its effect is to insure
inclusion under the Act of Government corpora-
tions, Government controlled corporations, or
other establishments within the executive
branch, such as the U.S. Postal Service.
The term 'establishments in the Executive
Office of the President,' as used in this
amendment, means such functional entities as
the Office of Telecommunications Policy, the
Office of Management and Budget, the Council of
Economic Advisers, the National Security
Council, the Federal Property Council, and
other similar establishments which have been or
may in the future be created by Congress
through statute or by Executive order.
Thus, the report's explanation did not refer to the
President or to the White House Office. It should be
noted that the Department of Justice had sent the House
committee a bill report which asserted that it would be
unconstitutional for Congress to extend the FIA to the
President's staff. House report, p. 20.
During House debate on the bill, Congressman
Erlenborn paraphrased the committee report's discussion
of the Executive Office of the President. Then he asked
the floor manager, Congressman Moorhead, if it was cor-
rect that "it [the bill's definition of agency] does not
mean the public has a right to run through the private
papers of the President himself." 120 Cong. Rec. H 1789
(daily ed., Mar. 14, 1974). Congressman Moorhead
replied that Congressman Erlenborn's view was correct,
i.e., that no right of access to the private papers of
the President was intended. The precise meaning of this
exchange is not entirely clear. However, taken in con-
- 5
FORD is LIBRARY GERALD
nection with the silence of the House report regarding
the President, the exchange should establish that the
House bill was not intended to make the FIA applicable
to the President himself.
The bill reported by the Senate Judiciary Commit-
tee expanded the existing definition of "agency" in
some respects (e.g., by adding an express reference to
the Postal Service), but did not deal expressly with
the status of the Executive Office of the President.
The Senate report did refer, with approval, to the
decision in Soucie V. David. S. Rep. 93-854, 93d Cong.,
2d Sess. (1974), p. 33.
The only other pertinent item in the legislative
record is the conference report, S. Rep. No. 93-1200,
93d Cong., 2d Sess. (1974), pp. 14-15. That report
described the differences between the House and Senate
provisions regarding "agency" and stated (p. 14) that:
"The conference substitute follows the House bill." It
then continued (p. 15):
With respect to the meaning of the term
'Executive Office of the President' the con-
ferees intend the result reached in Soucie V.
David, 448 F.2d 1067 (C.A.D.C. 1971). The
term is not to be interpreted as including
the President's immediate personal staff or
units in the Executive Office whose sole func-
tion is to advise and assist the President.
Apparently, the conference committee read Soucie
to mean that, if the functions of OST had been limited
to advising and assisting the President, OST records
would not have been subject to the FIA. The correctness
of this interpretation of Soucie is questionable, for
the court specifically stated that it found it unneces-
sary to decide that issue. 448 F.2d at 1073. Still,
the main consideration here is not what the Soucie court
stated, but what Congress intended.
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Interpreting the legislative history
It can be argued that on the point at issue here
the language of the 1974 Amendments ("any ... estab-
lishment in the executive branch of the Government
(including the Executive Office of the President)") is
absolutely clear and thus permits no resort to legisla-
tive history. See, e.g., Caminetti V. United States,
242 U.S. 470, 490 (1917). If the parenthetical phrase
"(including the Executive Office of the President)"
clearly modified the word "establishment," that might be
the case. However, its position in the sentence indi-
cates that it modifies the word "Government"--which
would leave for determination what units, within the
Executive Office of the President, constitute "estab-
lishments" within the meaning of the Act, compelling
examination of evidence of legislative intent. More-
over, any reading which would place the entire Executive
Office within the Act would include the President him-
self, who is the head of that office; and since this
would raise the most serious constitutional questions,
an interpretation would be sought to avoid it--again
compelling resort to legislative history. In short, we
have no doubt that courts will not adopt the blanket
view that all parts of the Executive Office are covered
point. but will examine the legislative history to clarify the
The exact meaning of the legislative history, as
described above, is unclear. As noted, the House report
listed a number of entities within the Executive Office
that were to be covered by the bill ("the Office of
Telecommunications Policy, the Office of Management and
Budget, the Council of Economic Advisers, the National
Security Council, the Federal Property Council, and
other similar establishments"). The conference report
took an entirely different approach to the issue, seek-
ing to clarify the meaning of "Executive Office" by
principle rather than by example. The term "Executive
Office" was not meant to include "the President's
immediate personal staff or units
whose sole
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function is to advise and assist the President." Be-
cause of this basic difference in approach, it is
impossible to tell whether the conference committee
agreed or disagreed with the House report. Tending to
show agreement is the statement in the conference
report that "the conference substitute follows the
House bill"--but this is a reference to the language of
the bill, and goes no further than the statute itself
toward showing that the House committee's intent was
adopted. This issue of the relationship between the
House and conference committee reports is relevant but
not crucial to the present determination; it will be
absolutely central when we come to consider the status
under the Act of units named in the House report.
Constitutional Considerations
It is a settled rule of statutory construction that
an interpretation that raises substantial constitutional
questions will not be adopted where another reading of
the statute is possible. See, e.g., Crowell V. Benson,
285 U.S. 22, 66 (1932). This principle is pertinent
here. For the Congress to subject the President, or
that portion of the Executive Office that functions as
a mere extension of the President, to the requirements
of the FIA (including its provisions for judicial
review) seems inconsistent with the doctrine of separa-
tion of powers. Cf. Myers V. United States, 272 U.S.
52 (1926). Moreover, the exemptions of the FIA do not
necessarily correspond to the scope of Executive
privilege, a privilege grounded on the Constitution.
United States V. Nixon, 42 Law Week 5237 (1974).
Finally, the practical burdens resulting from applica-
tion of the FIA to the President and his staff,
including the provisions for judicial review and sanc-
tions, might unduly interfere with the President's duty
under Article II, § 3 to execute the laws.
These considerations weigh heavily against any
interpretation of "agency"--if another is feasible under
the statute and its history--which would apply it to
what might be termed the nucleus of the Presidency.
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General Conclusions
On the basis of the language of the statute, its
legislative history (which includes reliance upon the
Soucie case) and the constitutional issues involved, we
are of the view that the following factors should be
determinative of whether a unit within the Executive
Office is covered by the Act:
1. Functional proximity to the President. A
unit such as the Office of Telecommunications
Policy, which ordinarily reports through one or
another Presidential Assistant, is more likely to
be covered than a unit such as the Domestic
Council, which has regular direct access.
2. Authority to make dispositive determina-
tions. A unit such as OMB, which regularly makes
Executive branch decisions is more likely to be
covered than a unit such as the Council of Eco-
nomic Advisers, which only makes recommendations
to the President.
3. Constitutional basis for the functions
performed. A unit such as the Office of Eco-
nomic Opportunity, which is meant to achieve
goals established under the Constitution by the
Congress, is more likely to be covered than a
unit such as the National Security Council,
which performs a function directly assigned to
the President by the Constitution.
4. Manner of creation. A unit such as the
Council on Environmental Quality, originally
established by statute, is more likely to be
covered than a unit such as the Federal Property
Council, established by Executive Order on the
basis of inherent Presidential authority.
Needless to say, no single one of these factors is
determinative.
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The status of the White House Office
Your immediate inquiry is whether the "White
House Office" is covered by the Act. We are not en-
tirely clear what that phrase is meant to include. The
United States Government Manual (1974-75) lists offi-
cials who are in the White House Office (p. 81) and
contains a chart (copy attached) showing the relation
of that Office to other parts of the Executive Office
of the President (p. 80). The Executive Office Appro-
priation Act for 1975 (and for prior years) contains
a separate line item for that unit. 3/ Public Law 93-
381 (1974), Title III. However, more recently, a
revised chart showing the organization of the "White
House Staff" was issued (copy attached). 4/ That chart
does not use the term "White House Office," and appears
to give parallel treatment to units that are in our
view not at all comparable for present purposes. We
assume that your inquiry relates to the White House
Office as shown in the Government Organization Manual
and as separately funded in the Budget.
It is clear from the legislative history that the
FIA does not embrace the "President's immediate personal
staff." This phrase is used in the conference report,
but is not explained. Presumably, it means that records
maintained in the President's own offices or maintained
3/ Other line items within the Executive Office in-
clude the CEA, Domestic Council, NSC, OMB and OTP.
4/ 10 Weekly Compilation of Presidential Documents
1588-89 (Dec. 23, 1974).
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5/
by his closest aides are beyond the scope of the FIA.
This would seem to include the records of the four
cabinet-rank advisers listed on the recent chart
(Messrs. Buchen, Hartmann, Marsh and Rumsfeld); and
those of the units listed as White House Operations,
Counsellor to the President (Mr. Marsh), Office of
the Press Secretary, Counsellor to the President
(Mr. Hartmann), and Office of the Counsel. It would
appear that the White House Office includes all of the
aforementioned entities. They all perform staff func-
tions for the President, and they do not appear to have
OST-type independent functions. In our view they all
must be considered as "advising and assisting" the
President, even if that phrase is narrowly construed.
5/ That the President himself is not an "agency" for
purposes of the FIA should follow, a fortiori, from the
expressed intent to exclude the President's immediate
staff. See also the Erlenborn-Moorhead exchange (dis-
cussed above).
It may also be noted that the recent opinion of the
U.S. District Court for the District of Columbia (Judge
Richey), dealing with access to White House tapes and
other material compiled during the Nixon Administration,
stated that the "Office of the President" is not an
"agency" and that records of the "President and his
immediate aides" are not subject to the FIA. Nixon V.
Sampson, Civ. Action No. 74-1518, D.D.C. (Jan 3, 1975),
p. 69. The court supported its conclusion by reference
to the legislative history of the 1974 Amendments, i.e.,
the conference report. (The effect of this opinion
has been stayed by the Court of Appeals.)
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We are expressing no opinion at the present time
as to the application of the FIA to other units of
the Executive Office, such as OMB, 6/ NSC, 7/ CEA,
and the Domestic Council. Each of those units must be
considered separately, and the question can be reserved
for consideration when requests addressed to each of
them are received.
As a matter of sound planning, we urge that two
steps be taken for the future:
(1) Any functions performed by those units
described above as being within the White House Office
which do not consist of "advising and assisting" the
President should, if possible, be located within another
Executive Office unit. If this is not possible, then
a segregable subunit of the White House Office unit
should be created.
6/ On February 19, 1975, OMB published an FIA regula-
tion implementing the view that some, but not all, of
OMB's functions are subject to the FIA. See 40 Fed.
Reg. 7346, 7347.
7/ The recent FIA regulation published by the NSC staff
contains language which seeks to leave open the question
of coverage. See 40 Fed. Reg. 7316 (Feb. 19, 1975).
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(2) The concept of a separate "White House Office"
should be fostered and strengthened in as many ways as
possible. Any future organizational charts should
clearly indicate the existence of such a unit separate
and apart from the rest of the Executive Office. Judi-
cial acceptance of such a functional division can
greatly simplify our FIA problems with respect to the
Executive Office.
Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
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