Washington, D.C., November 23, 2004 - President Gerald R. Ford wanted to sign the Freedom of Information Act strengthening amendments passed by Congress 30 years ago, but concern about leaks (shared by his chief of staff Donald Rumsfeld and deputy Richard Cheney) and legal arguments that the bill was unconstitutional (marshaled by government lawyer Antonin Scalia, among others) persuaded Ford to veto the bill, according to declassified documents posted today by the National Security Archive to mark the 30th anniversary of the veto override.

The documents include President Ford's handwritten notation on his first legislative briefing document after succeeding President Nixon in August 1974, that "a veto [of the FOIA bill] presents problems. How serious are our objections?" White House aide Ken Cole wrote Ford on September 25, 1974, "There is little question that the legislation is bad on the merits, the real question is whether opposing it is important enough to face the political consequences. Obviously, there is a significant political disadvantage to vetoing a Freedom of Information bill, especially just before an election, when your Administration's theme is one of openness and candor."

On November 20, 1974, the House of Representatives voted to override Ford's veto by a margin of 371 to 31; on November 21, the Senate followed suit by a 65 to 27 vote, giving the United States the core Freedom of Information Act still in effect today with judicial review of executive secrecy claims. [i]

The 1966 Freedom of Information Act

After almost eleven years of congressional investigations, reports, and hearings, the 89th Congress passed the Freedom of Information Act (FOIA). [ii] Signed into law on July 4, 1966 by President Lyndon Johnson , the FOIA established the publics right to access government information. Ironically, the landmark legislation was not signed into law on that day for its historic significance, but because the ten-day period in which President Johnson had to sign the law had run out. As President Johnsons then press secretary Bill Moyers recounted: LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House. [iii]

Government Agencies Hinder the FOIAs Goals

Passage of the FOIA did not lead to a new era of open government. In a series of oversight hearings from 1972-1974, Congress heard extensive testimony describing bureaucratic resistance to the FOIA. For example:

The cost of copying documents was as high as $1 per page and the cost of searching as high as $7 per hour; [iv]

A requester was assessed a search fee when he asked an FAA official for the names of the 26 people who directly reported to him ; [v]

A requester was told that his request was not specific enough, but when asked if agency indices could be used to better identify the records was told that indices were unavailable as they were intra-agency memoranda ; [vi]

Agencies were using the contamination tactic  mixing confidential, exempt materials with non-exempt materials in the same folder and refusing to expend resources sorting out releasable materials. [vii]

Congress was told that the FOIA only worked when people resorted to costly litigation:

Mr. Malvin Schecter, a senior editor of Hospital Practice Magazine , was denied reports on nursing homes from the Social Security Administration (SSA). After suing and gaining access to the reports, he later requested similar reports from the SSA, was once again refused access, and had to return to court; [viii]

Mr. Peter Schuck of the Center for Study of Responsive Law successfully sued the U.S. Department of Agriculture (USDA) to obtain meat inspection reports. But when a successor tried to access similar reports, the USDA replied that they were exempt. It was only through the efforts of Mr. Schucks attorney that the USDA was convinced that they had previously committed to the release of the reports. [ix]

The House Subcommittee on Government Information identified a number of general problems with the FOIA, including:

Excessive delays in responding to document requests;

Excessive fees for searching and copying documents;

Burdensome and costly legal remedies after exhaustion of administrative remedies;

News media opting not to use the FOIA due to excessive delays and burdensome appellate procedures; and

Inappropriate and inadequate agency regulations and policies regarding the FOIA, poor administration and recordkeeping regarding FOIA processes and a failure to inform members of the public of their rights under the FOIA. [x]

Congress Acts to Fix the FOIA

Although the Watergate break-in that led to the resignation of President Richard Nixon took place in 1972, the controversy surrounding the event gained momentum through 1973, when numerous top administration officials were investigated and disputes emerged over access to the White House tape recordings made by President Nixon. It was against this background that real movement was achieved regarding the FOIA. At the beginning of the 93rd Congress in 1973, Representative William S. Moorhead (D-PA), chair of the Subcommittee on Foreign Operations and Government Information, and ranking Republican Representative Frank Horton (R-NY) each introduced a bill to amend the FOIA. [xi] By January 1974, a cooperative piece of legislation, H.R. 12471, was put forward in the House of Representatives. It passed the House on 14 March 1974 by a vote of 383-3. With one exception, the House legislation was focused on administration of the FOIA rather than substantive changes to the exemptions. It required public indices of agency information, timeframes for agency action on FOIA requests, appeals and litigation, recovery of reasonable attorney fees and costs, annual reporting on administration of the FOIA, and an expanded definition of an agency. The exception was in response to the Supreme Court decision in EPA v. Mink, 410 U.S. 73 (1973). In Mink, the Supreme Court held that an agencys claim of withholding documents based on the national defense or foreign policy exemptions of the FOIA could be sustained with an affidavit from the government that the materials were properly classified. The court found that Congress had not empowered judges to question executive classifications and therefore conduct in camera review of those classifications. It essentially gave the executive carte blanche to rubberstamp a document as classified, exempting it from disclosure, and a court would be able only to verify that it was in fact stamped as classified . The House bill expressly gave judges the ability to review classified documents in camera to assure that materials were properly classified. [xii] Senator Edmund Muskie (D-ME) introduced a companion bill in the Senate . [xiii] After the hearings, Senator Edward Kennedy (D-MA) introduced S. 2543, which included important differences from the legislation passed by the House. The most striking of these were: permitting venue in the District of Columbia District Court for a requesters lawsuit; permitting courts to impose sanctions on agency personnel who wrongfully withheld information; clarifying a request for identifiable records as one that reasonably describes such records, thus making it easier for requesters to perfect a proper request; and requiring non-exempt portions of documents to be released. The bill also included attorney fees, indexing of agency records, and annual reporting requirements, and it expanded the definition of an agency. [xiv]

Initially some federal agencies tried to restrain congressional zeal by proposing compromise language that would limit the reforms. As the legislative proposals were working their way through Congress, however, the administrations opposition to the proposals began to solidify. The Central Intelligence Agency was particularly concerned with the in camera review provision and its effect on the CIAs statutory obligations for the proper handling of sensitive information. The Department of Justice likewise had concerns. In addition to the in camera review provision, the DOJ also took issue with the investigatory files exemption, administrative time limits, sanctions, and the limited time in which to answer a requesters complaint in court. Negotiations between congressional offices and the administration stalled. Thomas Susman, a key member of the congressional staff working on the 1974 FOIA amendments as counsel to Senator Kennedy, later learned that the FBI ceased its negotiations with Congress because it wanted the bill to be as bad as possible to make the case stronger for presidential veto. Clearly, some of President Nixons advisors saw such tactics as a way of ensuring any veto would not be overridden.

The administrations inflexibility emboldened the Senate, leading to introduction of substantial amendments on the Senate floor to FOIA exemptions 1 and 7 that were not in either of the legislative proposals. Senator Muskie introduced an amendment to strengthen court review of classification determinations through in camera review. If the issue of classification could not be determined by affidavit, the court was empowered to ensure that documents were properly classified according to current statute or Executive Order . [xv]

Senator Muskies amendment was agreed to by a vote of 56-29. [xvi]

Senator Phillip Hart (D-MI) proposed an amendment that defined the instances when the investigatory files exemption (5 U.S.C. § 552(b)(7)) could be used: when the release of records would interfere with enforcement proceedings; deprive someone of a fair, impartial trial; constitute a clearly unwarranted invasion of personal privacy; disclose the identity of an informer; or disclose investigatory techniques and procedures. [xvii]

The FBI criticized Senator Harts amendment and predicted ominous effects. Senator Harts amendment was agreed to, 51-33. [xviii]

At the close of debate, the text of the amended Senate bill was substituted for the text of the House bill (H.R. 12471). [xix]

H.R. 12471 was then passed by a vote of 64-17. [xx]

The Conference Committee Retains Most Reforms

The conference committee met on August 6, 13, 20, and 21 to reconcile the differences in the House and Senate bills. [xxi] The conference delayed activity a week to allow President Ford, who had assumed the presidency on August 9, an opportunity to present his views on the bills. Ford sent a letter to conference committee leaders on August 20 expressing concerns over five provisions of the bills . [xxii] The president was concerned that (1) judicial imposition of sanctions was unprecedented and unwise; (2) judges could disclose military or intelligence secrets through in camera review; (3) the investigatory files exemption would hamper law enforcement by disclosing sources of information and would violate individual privacy; (4) attorneys' fees and costs would subsidize corporate interests; and (5) administrative time limits were too restrictive. Once the conference committee concluded its work, Senator Kennedy and Representative Moorhead sent a letter to President Ford on September 23 in response. On the other side of the debate, the conference received a letter from public interest lawyer Ronald Plesser, justifying and supporting administrative deadlines, sanctions, and amendment of the (b)(7) exemption.

The conference agreed on important changes to exemptions from disclosure under the FOIA: [xxiii]