appointed by the administration, which might go the same way in his reasoning, be inclined to, I mean; I still do not know how to have an umpire or a referee, or whatever you might want to call him who will be much more helpful than the head of a department.

Mr. Moss. I would suggest, Mr. Hoffman, that if we can go along in these hearings, and have the opportunity to hear from the agencies, we will come up with a better understanding that will enable us to propose legislation.

I know from the cooperation we have received so far in the work of this subcommittee from representatives of the press here today and others who were unable to attend, that we can look to them for suggestions, and I think we will be better informed on the overall problem than any of us are at the moment. Then we can make recommendations which will be well supported by the record of the hearings and the testimony that we have been able to develop.

Mr. HOFFMAN. I just wanted to let the members of the panel know that we had had trouble trying to solve this thing in the past.

Mr. POPE. I would like to let Mr. Hoffman know, and he asked me a question a while ago that I could not answer, about the situation in Michigan: I believe the situation there is good.

Mr. HOFFMAN. Will the gentleman who spoke on behalf of Florida please take note of that?

Mr. Moss. Are there any further questions?

If not, I would like to thank each member of the panel for taking the time to come here and to aid this committee to get a better understanding, and for bringing us full information as regards the situation.

Mr. HOFFMAN. Mr. Chairman, may we expect them from now on, until the end of the hearings, to come up with very helpful suggestions to the committee?

Mr. Moss. I understand that they will probably do that.

The subcommittee will stand adjourned now until 10 o'clock tomorrow morning.

I wish to insert, at this point, an additional statement which Harold L. Cross will prepare for the hearing record.

STATEMENT OF HAROLD L. CROSS, FREEDOM OF INFORMATION COUNSEL FOR AMERICAN SOCIETY OF NEWSPAPER EDITORS

This statement is made in response to the subcommittee's suggestion that I file for the record of the hearings any comments I wish to make on suggested new statutes or amendments to existing statutes connecting access by the public, including the press, to public records and proceedings of the executive departments and administrative agencies.

It is made in my individual capacity as a citizen, lawyer, and author of the book, The People's Right To Know-Legal Access to Public Records and Proceedings. It has not been approved by, and is not to be taken as representing the views of, or as binding upon, the American Society of Newspaper Editors (for which I am freedom of information counsel) or of any other client of myself or my law firm, Messrs. Brown, Cross & Hamilton, 154 Nassau Street, New York, N. Y.

Inasmuch as further subcommittee hearings are contemplated, this statement is of interim or tentative nature and, accordingly, is subject to amendment or enlargement following the conclusion of the hearings. It is made in the light of the following premises and circumstances:

"The people, in our American democracy, have a constitutional right to factual information concerning the plans, policies, and actions of their Government. The burden of proof as to the need for withholding this information should, by every basic American principle, rest upon the agency or official who has deter

mined to hold back the facts. *** I think the recent statement of principles, made last month at the National Editorial Association convention in Chicago, clearly points up the problem. The NEA freedom of information committee stated: "The right of the people to know is basic to the preservation of our freedom and fundamental to our American way of life. The infringement of this right, whether by government or by groups or by individuals, no matter in what measure it may begin, will lead to tyranny and to the death of liberty.'" 1 This constitutional right arises from the basic nature of our Government and of the Constitution and from the provisions of the 1st, 5th, 9th, and 14th amendments." "It was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people peaceably to assemble and petition for the redress of grievances." "It goes to the heart of the natural right of the members of an organized society, united for their common good, to impart and acquire information about their common interests." "A people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or tragedy or both." "The aim of the historic struggle for a free press was to establish and preserve the right of the English people to full information in respect to the doings or misdoings of their Government. That is the tradition behind the first amendment." "

Freedom of information in the form of access to public records and proceedings is a constituent part-is indeed the very foundation stone of freedom of speech and of the press under our 1st amendment, is one of the basic liberties safeguarded under our 5th amendment, is a right retained by the people pursuant to the 9th amendment and must receive due process under the 14th amendment."

The history of the struggle for freedom of speech and of the press as an overriding principle of democracy vested in every man bars any notion that the men of 1791 intended to provide for freedom to disseminate information of Government activities but at the same time to allow Government to deny freedom to obtain such information. Our forebears' purpose was to prevent "any action of Government" by means whereof it might prevent free and general discussion. They intended the inclusion of a right of access without which the freedom to print could be fettered into futility.

The

"Freedom of the press," though shared by, is not confined to newspapers and periodicals or news media or to those who own or control printing presses. term "press" in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion." Similarly, freedom of speech, though shared by, is not confined to persons who happen to own or control auditoriums or public address systems. These rights are vested in all persons, in each of us. The remedial legislation here suggested is advocated in behalf of the people, not of any news media alone.

Nevertheless, while newspapers and their makers have no special rights or privileges, it is the fact that their continuously exercised functions create in them an interest and concern in and understanding of any abridgement of the freedom of information referred to which are not shared so continuously or acutely by most individual citizens. "One of the demands of a democratic society is that the public should know what goes on in the courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right." 10 "A vigorous and dauntless press is a chief source feeding the flow of democratic expression and controversy which maintains the institutions of a free society * By interpreting to the citizen the policies of his Government and vigilantly scrutinizing the official conduct of those who administer the state, an independent press stimulates free

1 Congressman John E. Moss, subcommittee chairman, hearing, November 8, 1955. 2 Cross, Harold L.. The People's Right To Know-Legal Access to Public Records and Proceedings, Columbia University Press, New York, N. Y., 1953, especially pp. 124-132. 3 Thomas v. Collins, 323 U. S. 516, 530 (1944).

4 Grosjean v. American Press Co. et al., 297 U. S. 233 (1936).

5 James Madison, quoted p. 63. Laswell, National Security and Individual Freedom, McGraw-Hill, New York, N. Y., 1950.

See note 4, at p. 247, Justice Douglas.

See note 2.

8 See notes 2 and 4.

Terminiello v. City of Chicago, 337 U. S. 1, annotation in 93 L. Ed. 1131, at p. 1153. 10 State of Maryland v. Baltimore Radio Show, Inc., et al., 338 U. S. 912, 920, Justice Frankfurter on denial of certiorari.

discussion and focuses public opinion on issues and officials as a potent check on arbitrary action or abuse." 11 "To allow the press to be fettered is to fetter

13

Information brought to light in the subcommittee hearings from November 7, through 10, 1955, and in the "replies from Federal agencies to questionnaire submitted by the Special Subcommittee on Government Information of the Committee on Government Operations" demonstrates the need for legislation by Congress to implement these rights, to abate their abridgment. "The power of Government over the sources of information tends to grow. Hence the misuse of the power by Government becomes a more and more serious danger ***. What is significant is the enormous recent expansion of the subjects which officials are seeking to hide from publication until they give the signal." It is the fair consensus of Washington press correspondents that abuses of the power in Federal agencies to suppress information were never so rampant as now, that this widespread abuse of power is exercised in the great majority of instances on matters having nothing whatever to do with national security and that these abuses have curtailed the power of Congress and the press to be of service to the people and have advanced to the point where the civil liberties of the people are threatened." "Congressman William L. Dawson, the distinguished chairman of the House Committee on Government Operations, yesterday pointed out that if the present trend toward secrecy in the Federal executive agencies is not stopped, we will pay, and pay dearly, for the enforced ignorance of the American people."

15

The nature of the necessary remedial legislation by Congress is conditioned by the nature and extent of the abuses and the nature of the law as at presently declared under the color whereof the secrecy is sought to be justified. The prime need is substantial reduction of the very widespread area wherein a subjective, judicially unreviewable cfficial discretion prevails whereunder disclosure of information is a matter of grace, indulgence, or unrestrained discretion and Congress, public and press are reduced to the status of silent men and suppliants for the favor of their public servants; and the substitution therefor of an objective judicial discretion whereunder denials of freedom of information may be tested by due process of law.

The state of the law as at present declared is not what it should be in the interest of the people's rights to know or as it would be were it to be challenged on proper constitutional grounds or were Congress to exercise its lawmaking powers or were the courts freed to determine, as matters of law and justice, whether the nature of the information withheld lawfully comes within the scope of the privilege invoked against its disclosure to Congress, people, press, or litigant.

The state of the law is that, in the absence of general or specific acts of Congress creating a clear enforceable right to inspect and such acts, relatively are not numerous-there is no right in people or press or Congress itself to inspect any Federal nonjudicial record. The results are that in wide areas of the dynamically expanded governmental activity those seeking information are denied due process of law, Federal public business has ceased to be the public's business except as officialdom is disposed to be gracious and the right of inspection has become the relatively rare exception in dramatic contradistinction from State and municipal levels where the right of inspection is the relatively general rule by statute and common law. The kind of records that, by virtue of law, lie open in glass bowls in State and municipal offices are very frequently indeed and for no sufficient reason-whisked behind curtains of secrecy in Federal offices."

16

This state of the law is due, very largely, though not wholly, to three factors, which are:

First, legislation by Congress consisting of two acts of general application which sanction denial of information either in express terms or by language so

Chafee, Zechariah, Jr., Government and Mass Communications, vol. I (Chicago University Press, 1947), pp. 12-13. In the same quotation Professor Chafee said: "Military Information was always guarded from the enemy, and bureaucrats have often invoked Plic safety as a protection from criticism."

Raymond, Allen, report to American Civil Liberties Union, October 24, 1955, p. 65. "Subcommittee hearing, November 8, 1955.

Cross, Harold L., subcommittee hearing, November 7, 1955; see also note 2.

See note 2, especially statutes and city charter provisions cited in appendix 3, pp. 337 et seq., and compare with 5 U. S. C. A. 22 and 5 Ü. S. C. A. 1001-1011. For a specific example see contrast between Federal Power Commission and New York public-service law cited in said book at pp. 243–244.

loose, vague, and destitute of standards as to give full sweep to the exercise of official grace and discretion. These are Volume 5, United States Code Annoted, section 22, and Volume 5, United States Code Annoted, sections 1001-1011-the Administrative Procedure Act.18

Second, the fact that Congress in so many areas has not legislated at all, thus leaving this vast expanse of governmental activities-most of them in no way related to national security-wide open to executive occupation."

Third, a series of Executive orders, directives, and letters signed by the President or by his authority. These include particularly Executive Order 10450, Executive Order 10501, directive of March 13, 1948, and letter of May 17, 1954 and memorandum.20 Incredible as it may seem, one of these letter of August 5, 1948-purports, and is cited to have the effect, to bar certain information from Congress on the strength of statements made by President Truman at "his press conference" of that date.

It will be found upon analysis of these documents that they derive much of such legal effect as they may eventually be determined to have from legislation enacted by Congress and article II, section 3, of the Constitution which provides in part that the President "shall take care that the laws be faithfully executed." It is noteworthy, first, that these documents relate in large part to matters of national security which, however great their importance, constitute only a part of the enormous volume of governmental activities and, second, that a very large part of all the precedents cited to support them related to matters in respect of which Congress had passed no laws.

For the sake of completeness, other factors contributing to the state of the law as appears on its face should be noted. The first is a series of specific acts of Congress which attach secrecy to, or otherwise restrict, freedom of information concerning particularly designated records." The second is a series of specific acts of Congress which attach a public character to a variety of specific types of information." While the first-mentioned acts are susceptible of diminution and clarifying amendments and the second type should be greatly enlarged, this legislation constitutes decisive evidence that whenever Congress found need of justification for secrecy of records or for removing secrecy from records it, as the lawmaking power, had no hesitation in taking action and no difficulty in finding language appropriate to its intention. It used no such language in title 5, United States Code Annotated, section 22, or in some parts of title 5 United States Code Annotated, sections 1001-1011, though executive departments and administrative agencies have interpreted them as sanctioning the withholding of practically all information the officials do not see fit to disclose.

The third factor of this type is legislation by Congress on what may be called a departmental or agencywide basis. It will serve no useful purpose here to attempt exhaustive citations of these statutes. Many of them are cited in the Federal agencies' replies to the subcommittee's questionnaire. One example is volume 49, United States Code, Annotated, section 19a (e), Transportation, Interstate Commerce Commission, which gives the Commission a power construed in effect to create a full discretion that "puts an end to the claim to examine the data on the naked ground that they are public documents." 23 Another is volume 12, United States Court of Appeals, section 248 (1), which, by empowering the Board of Governors of the Federal Reserve System to "make all rules and regulations necessary" to perform its statutory duties, is claimed to sanction secrecy for a wide variety of official information and even to justify a regulation so majestic that it bars information "whether or not a matter of official record within the meaning of the Administrative Procedure Act." Other examples range through the alphabet in the replies from agriculture to weather control.

24

A set of "legal doctrines" which this writer stated at the November 7, 1955, hearing of the subcommittee are stated and analyzed in his book.” These consist quite largely of official positions taken by the Attorney General, derive much of such validity as they may have from the absence of legislation by Congress and their relation to considerations of national security and of Presi

18 See note 2 and analysis of each of these statutes therein, chs. XV and XVI. 10 See note 16.

20 See replies to subcommittee questionnaire, pp. 532-552.

21 See note 2, pp. 231-234.

22 Ibid., pp. 235-236.

22a Ibid., pp. 214, 226, 228.

23 U. S. ex rel. St. Louis Southwestern R. Co. v. Interstate Commerce Commission, 264 U. S. 64, 44 S. Ct. 294, 68 L. Ed. 565 (1924).

24 See note 2, p. 245; 12 C. F. R., 1949 edition, pt. 261.

See note 2, ch. XIV.

dential "head of state" power, and rest quite largely on assertion of official opinion rather than judicial sanction."6

Avenues of approach by remedial legislation are both numerous and open to long-distance travel before meeting constitutional roadblocks. The United States Supreme Court has pointed out: "The founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice." 27 In approaching remedial legislation it must be borne in mind continuously that (1) the withholding by officialdom from the people of factual information concerning the plans, policies, and actions of their Government flows largely, insofar as such secrecy has legal sanction, from (a) existing legislation by Congress and (b) the absence of legislation; (2) that secrecy is practiced largely, though not wholly, by means of regulations and administrative determination setting up a subjective, official discretion flowing from legislative language which is loose, vague, and destitute of standards or from congressional silence; (3) in the presence of official discretion there is no enforceable legal right—no due process of law-no judicial determination of the justice of the secrecy-inasmuch as the courts will not review the exercise of such discretion or substitute judicial discretion therefor by issuance of remedial process such as mandamus, prohibition, or mandatory injunction and (4) legislation which removes official discretion does not ipso facto create an absolute right but brings into operation, for the protection of the public interest, the exercise of an objective judicial discretion.

The avenues of approach include these:

Amendment of existing statutes, including especially volume 5, United States Code, Annotated, section 22, volume 5, United States Code, Annotated, section 1001-1011, and the departmental legislation referred to above.

Repeal of some of the existing statutes attaching secrecy to, or otherwise restricting freedom of information concerning particularly designated records." New legislation opening to Congress, public, and press existing records to be particularly designated-this by way of enlargement of the types of existing records now in that status."

New legislation opening to Congress, public, and press records which will come into existence under legislation now pending or hereafter proposed.

Amendment of some existing statutes, repeal of others, and new legislation so as to provide for congressional, public, and press access to public proceedings. And, in addition, of transcendent importance, new legislation concerning congressional power to extract from executive departments and administrative agencies information pertinent to its lawmaking power. This writer has no special competence in this field and, aside from expressing a profound conviction that Congress has "the right to know" and a deep concern over current abridgments of that right, refrains from specific suggestions.

AMENDMENT OF EXISTING STATUTES

(1) Volume 5, United States Code Annotated, section 22

This provides that the "head of each department is authorized to prescribe regulations, not inconsistent with law, for *** the custody, use, and preservation of the records, papers and property appertaining to it."

Held constitutional, this "housekeeping" statute, destitute as it is of all vestige of definitions and standards, has been tortured (as it is susceptible of being), with some judicial sanction it must be admitted, into sanction for nonuse by the people whose servants these departments are of the records and papers evidencing governmental action and for a claim of official discretion against disclosure and inspection so all encompassing that it may fairly be said that there is no hope of obtaining inspection of a public record not specifically opened by Congress except through "the courtesy of the Government." " Whatever may be the extent of the grace extended to Congress, public, and press and of the information "handed out" in pursuance thereof, this statute and the mass of regulations thereunder, so far as the matter of right is concerned, make a mockery of that "free examination of public characters and measures and of free communication

Ibid.

Ibid., p. 247; and "steel seizure case" cited.

See note 2, pp. 231-234.

See note 2, pp. 235-236.

*See note 2, p. 215.

See note 2, chs. XV and XVII.