Washington, D. C. Metropolitan area (including Montgomery and Prince Georges Counties, Maryland; Arlington and Fairfax Counties, Virginia; and the city of Alexandria, Virginia) under the jurisdiction of U. S. Civil Service Commission, Washington 25, D. C. DEAR MR. TRUNG: In addition to the items which the Ciril Service Commission already has provided at the request of the House Government Information Subcommittee during the bearing on November 8. I note in checking the tran script of bearing a number of other requested items. They are: 1. Mr. Meity was requested to provide the citation and explanation of the Supreme Court ruling which he said held that the Civil Service Commission is a "Department" under the language of 5 U. 8. C. 2. 2. Mr. Mey. at your suggestion, was to submit "an opinion representing the legal philosophy" of the inherent powers of the Civil Service Commission to with boud informatio 3. On November 9, the following request was made to the Post Office Depart ment: "Maybe you have some statistics that you could cite for us indicating the number of applicants prior to the date you stopped announcing the names of the eligibles and the figures on the number of applications after this policy changed." The Post Office Department representative stated that they did not have the information but the Civil Service Commission does have it and the subcom mittee staff was requested to seek the information from the Civil Service Commission. It will be greatly appreciated if you will provide the three items requested so that the hearings can be printed. For your guidance, a copy of the hearing transcript for November 8 is included and should be returned as soon as possible. Sincerely yours, JOHN E. Moss, Chairman. Staff Director. EXHIBIT 4 Hon. JOHN E. Moss, UNITED STATES CIVIL SERVICE COMMISSION, Chairman, Special Subcommittee on Government Information of the Committee on Government Operations, House of Representatives. DEAR CHAIRMAN Moss: There is transmitted herewith the memorandum requested by you during the course of the hearing held on November 8, 1955, which undertakes to answer the following questions: 1. Is there a legal basis for the Commission's assertion that it has authority to deny information to the press and public, "based on the inherent power of the executive branch of the Government derived from the Constitution, to enable it to carry out its administrative functions, and the power granted the Commis sion by Congress to make and issue regulations as may be necessary and proper in the administration of those laws within its jurisdiction?" 2. Is the Civil Service Commission a "department" within the meaning of R. S. section 161 (5 U. S. C. A. 22)? 3. What is the scope of executive authority under R. S. section 161? By letter dated December 15, 1955, Mr. Samuel J. Archibald, staff director, requested me to furnish the subcommittee with certain information relating to the number of applicants for postmaster examinations. The addendum to the memorandum contains the information requested and includes statisticn which cover the period from 1950 to 1955. Sincerely, PHILIP YOUNG, Chairman. MEMORANDUM On November 8, 1955, during the course of a hearing before the Subcommittee on Government Information of the House Committee on Govenment Operations, the committee requested the Civil Service Commission to furnish it with a memorandum on the following three questions: I Is there a legal basis for the Commission's assertion that it has authority to deny information to the press and public, “"based on the inherent power of the executive branch of the Government derived from the Constitution, to enable it to carry out its administrative functions, and the power granted the Commission by Congress to make and issue such regulations as may be necessary and proper in the administration of those laws within its jurisdiction?" 1 II Is the Civil Service Commission a department within the meaning of Revised Statute section 161 (5 U. S. C. A. 22)? III What is the scope of executive authority under Revised Statute section 161? Before proceeding with a discussion of the foregoing questions, it would be helpful to define the meaning of the word “inherent" as used by the Commission in reply to question 2 of the subcommittee's questionnaire, appearing on page 83 of the committee print. Question 2 of the Commission reply reads in part, as follows: Question 2: "On what do you base authority for denying access to or not making available such information." (Types of information listed under question 1 of the questionnaire.) Answer: "The authority of the Commission is based on the inherent power of the executive branch *** derived from the Constitution, to enable it to carry out its administrative functions, and the power granted the Commission by Congress to make and issue such regulations as may be necessary and proper in the administration of those laws within its jurisdiction." As here used, the word "inherent" is intended to mean "implied"; therefore, if the words "implied power" are substiuted for the words "inherent power," the meaning of the Commission's reply emerges more plainly. Moreover, a careful analysis will reveal that the following propositions are implicit in the foregoing answer: 1. Under article II, section 3, of the Constitution, the President has the express power to "take Care that the Laws be faithfully executed." 2. Under the Civil Service Act, among others, the Commission has the express power to adopt appropriate regulations in administering that act. 3. The Commission, upon appointment, as prescribed by Congress, become Presidential agents, and as such, they serve under the President to "take Care that the Laws be faithfully executed." 4. Express power carries with it, by implication, the right to do any act, not prohibited, which may be found necessary to give effect to power expressly granted. 5. Therefore, the Commission, serving under the constitutional direction of the President, and, as part of its express statutory powers to "aid the President, as he may direct, in preparing suitable rules" to effectuate its statutory purpose, has the corollary, or implied power, to place reasonable restrictions upon the dissemination of information, if such restriction is deemed conducive to the public interest and the effective administration of the civil-service laws. (See United States ex rel Stowell v. Deming, 19 F. (2d) 697; Boske v. Comingore, 177 U. S. 459, and In Re Neagle, 135 U. S. 1.) 1 See p. 83 of the committee print, entitled "Replies From Federal Agencies to Questionnaire Submitted by the Special Subcommittee on Government Information of the Committee of Government Operations." I Question: Is there a legal basis for the Commission's assertion that it has authority to deny information to the press and public, "Based on the inherent power of the executive branch of the Government derived from the Constitution to enable it to carry out its administrative functions?" " We must concede that, as a creature of statute, the Commission can exercise no powers beyond those expressly or impliedly conferred upon it by Congress. We must further concede that Congress has enacted no statute which expressly authorizes the Commission to restrict, by regulation, the release of information. On the other hand, there is no statute which expressly forbids the Commission from imposing restrictions upon the release of information. However, before ascertaining the power of the Commission to limit the dissemination of information, the question which first arises is the right, if any, of the public to insist upon such information. But, since an amorphous public can enforce no right of which the courts can take juidicial cognizance, our inquiry must be limited to the right of one or more private citizens to receive such information; and, if a right does exist, whether it is a legal right, i. e., one capable of being enforced. In United States ex rel Stowell v. Deming, supra, the plaintiff sought a writ of mandamus to compel the Civil Service Commission to permit inspection of its records. Plaintiff contended that "except in confidential instances" he possessed the "inalienable right" of every citizen to be informed, or to be permitted to inform himself, as to the names of all persons holding office or employment under the Government. The Court rejected this contention, stating that "The exercise of such a right * must necessarily be subject to restriction and regulation; (that) (i)f relator is entitled to make an investigation of defendant's records, it follows that every other citizen may demand the same privilege." The Court held that the right asserted was not "clear and complete"; that since issuance of the writ would "work a public mischief, * * * prevention of public inconvenience" required denial of the writ. Although appellant's contentions were flatly rejected by the Court, the following extensive excerpt from the appellant's brief in the Deming case is of interest in that it sets forth most of the reasons generally advanced in opposition to nondisclosure of selective information by Government agencies. The appellant's brief contains this statement (pp. 35-38): "UNNECESSARY SECRECY CONTRARY TO THE CONSTITUTION AND PUBLIC INTEREST "If this court upheld the relator in his contention and require the Commissioners to drop the veil of secrecy so far as relates to those records, and require them to permit the relator to learn who have been employed temporarily by his Government, the result will be to break down the claim of the Civil Service Commission to exercise absolute discretion to hold any or all documents secret from the public. It will then be necessary for the Commission to recognize the evident distinction between the papers which should be open to inspection of the public and the others of a confidential nature, such as letters of recommendation which must be withheld. There is little enough light upon the manner in which public affairs are conducted in this Government of ours. Even when Congress, in the exercise of its inquisitorial functions, investigates some particular department, the public is often confused because of the mass of evidence and because of the partisan attitude assumed by the members of the investigating committees. It is, therefore, particularly important not to deprive the citizen of his most efficacious means of learning what the facts are in appropriate cases where he may rightly expect to receive information from the servants of the people appointed to serve the public interest. "It is true that the Attorney General and the district attorney of the District of Columbia, and other officers, assisted by the officers of the Department of Justice, may secure information and may initiate action for the protection of the public interest, but who will deny that such action may be influenced by political considerations, or that the officials may err in deciding when or how to act. The result may be, through such mistakes in judgment, or even possibly through corrupt methods, to defeat citizens zealous for the public good in their legitimate purpose of learning the facts, which will make it possible to know whether the law has been duly observed or set at defiance. In order to keep this Government 2 Discussion of this question does not touch upon the President's power to withhold, or deny access to, information in the files of executive departments and agencies. For a full discussion of that subject, see the letter of May 17, 1954, from President Eisenhower to the Secretary of Defense. a government of laws and not to let it degenerate into a bureaucracy, which signifies a government of men, there must be some check upon official action outside of that directed by the very members of the official group. It is absolutely essential for the protection of American liberties that a citizen have the right himself to learn, without let or hindrance from any official, whether the law has been fulfilled in regard to matters of a purely ministerial character. This necessity has been well recognized by the jurisprudence of certain States, and in others it is not so necessary because the district attorneys or atttorneys general are themselves elected and not appointed. As a consequence popular influence is more directly felt than is likely to be the case with the Department of Justice. It is of paramount importance that the right of the citizen to watch over the conduct of his Government be not destroyed and in its place the bureaucratic care of the Department of Justice substituted. "The Constitution in its preamble and the courts upon many occasions have proclaimed that this was a government established by the people as sovereign and that they have the right collectively and severally to know how their affairs are being conducted by the officials of their government. Unnecessarily to throw a veil over their acts is to go counter to the very fundamental principles of our policy. Bureaucratic secrecy can have no effect but to build up a government of men in place of a government of laws. It is, therefore, a fundamental principle of the Government which deserves the sympathy and support of the court that this veil of secrecy be broken down when in the case of an appropriate request for writ of mandamus, this will be the result. The officers of the Federal Government are the agents of a sovereign people, and as such, in accordance with the elementary controlling principles of agency, owe an accounting to the sovereign people collectively, according to the means provided, and severally in appropriate instances. Insofar as the Constitution and legislation under it have established means by which this accounting may be rendered they are only supplemental, but cannot do away with the fundamental obligation. It will not be contended that the right of inspection exists when the Constitution and legislation under it have permitted the official to hold secret his acts, or when the practice of the office through a sufficient period of time has indicated the practical advantage or necessity of such a course, or even when in the legitimate exercise of executive discretion it has been determined to be appropriate, but this right to deny inspection cannot extend to a case in which it is obviously to the advantage of the public to secure the information requested and in regard to which no adequate reason for secrecy can be offered. In such a case the primary right of the individual to an inspection of the acts of his agents stands forth incontrovertibly." See Frothingham v. Mellon (262 U. S. 447, 487), denying the right of a taxpayer to maintain a suit to enjoin the expenditure of Federal funds because of her "comparatively minute and indeterminable interest." Since there is no statute which expressly empowers the Commission to withhold information, how then can it assume that power? The answer is plain : The Commission is a creature of statute, with express powers to attain certain ends, the "(e) press power, granted by statute, to do a particular act, carries with it, by implication, the right to do any act, not prohibited, which may be found reasonably necessary to give effect to a power expressly granted" (City of New York v. Davis, 7 F (2d) 566). Moreover, that it is within the province of executive agencies to determine whether the release of information from its files would be consistent with the public interest has long been recognized in principle. It was well stated in House Report No. 141, 4th Congress, 3d session, as follows: "Somebody must judge upon this point. It clearly cannot be the House or its committee, because they cannot know the importance of having the doings of the executive department kept secret. The head of the executive department, therefore, must be the judge in such case to decide it upon his own responsibility." In Touhy v. Ragen (340 U. S. 462, 468), the Court said: "When one considers the variety of information contained in the files of any Government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U. S. C. § 22, to prescribe regulations not inconsistent with the law for 'the custody, use, and preservation of the records, papers, and property appertaining to' the Department of Justice, to promulgate Order 3229." |