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FOIA COMMENTARY BY ACCESS REPORTS

II. HISTORY

Prior to Congress' passage of the FOIA, public access to records of federal agencies was governed by Section 3 of the Administrative Procedure Act, which had been interpreted as giving agencies unlimited discretion to withhold such records. Efforts to amend this system began as early as 1955 but were not successful until 1966 when P.L. 89-487, the original Freedom of Information Act, was enacted.

It went into effect on July 4, 1967, but did not generate an immediate flurry of activity. In 1972 a House oversight subcommittee, chaired by Congressman Moorhead, conducted extensive hearings at which there was voluminous testimony about bureaucratic resistance to compliance with the FOIA's requirements. These hearings, together with the concern about excessive government secrecy which resulted from the Watergate investigations, led to Congress' passage of the 1974 Amendments to the FOIA (P.L. 93-502).

These amendments took effect February 19, 1975. They were aimed primarily at imposing procedural requirements on agencies to insure their compliance with the FOIA's substantive requirements. They also revised two of the exemptions from mandatory disclosure, (b)(1) and (b)(7), to overturn judicial interpretations of those exemptions which Congress believed to be contrary to its original intent.

In 1976, because of its dissatisfaction with judicial interpretations of Exemption 3, Congress amended that exemption in the Sunshine Act (P.L. 94-409). As explained in the Introduction, in 1978 Congress added a conforming amendment to 5 U.S.C. §552(a)(4)(F) which was necessitated by the Civil Service Reform Act's division of the Civil Service Commission into the Office of Personnel Management and the Merit Systems Protection Board. The Special Counsel was part of the latter. It is now an independent office.

In October 1984, after much controversy, Congress enacted legislation (P.L. 98-477) designed to provided increased protection for the CIA's "operational files," and to settle a long-standing argument by decreeing that the Privacy Act is not an Exemption 3 statute under the FOIA. This legislation took the form of amendments to the National Security Act of 1947 and the Privacy Act, but it has a significant effect on administration of the FOIA.

The Anti-Drug Abuse Act of 1986 (P.L. 99-570) contained significant amendments to: (1) the provisions relating to agencies' charging of fees for complying with FOIA requests; and (2) Exemption 7's provisions relating to law enforcement records, and added a new subsection (c), which provided that certain records were to be treated "as not subject to the requirements of [the FOIA]."

A. The 1966 Act: Legislative History

The following is a list of the texts of legislative history references of (I) P.L. 89-487, Freedom of Information Act of 1966 amending Section 3 of the Administrative Procedure Act; (II) P.L. 90-23, to codify the provisions of P.L. 89-487.

(I) Text of Freedom of Information Act (before codification), 80 Stat. 250 (P.L. 89-487, 89th Congress, S. 1160, July 4, 1966).

S.Rept. No. 812, 89th Cong., 1st Sess., Committee on the Judiciary, Oct. 4, 1965.

H.Rept. No. 1497, 89th Cong., 2d Sess., Committee on Government Operations, May 9, 1966.

Congressional Record References on S. 1160 (89th Congress):

Considered and passed Senate Oct. 13, 1965, 111 Cong. Rec. 26820.

Considered and passed House, June 20, 1966, 112 Cong. Rec. 13007.

Hearings:

Senate Committee on the Judiciary. Hearings on S. 1666, Oct. 28, 29, 30 and 31, 1963 (88th Congress).

Senate Committee on the Judiciary. Hearings on S. 1663, July 21, 22 and 23, 1964 (88th Congress).

Senate Committee on the Judiciary. Hearings on S. 1160, May 12, 13, 14 and 21, 1965 (89th Congress).

House Committee on Government Operations. Hearings on H.R. 5012, March 30 and 31, April 1, 2 and 5, 1965 and Appendix (89th Congress).

Senate Action -- 88th Congress:

S.Rept. No. 1219, 88th Congress, 2d Sess. (S. 1966).

Considered and passed Senate, July 28, 1964, 110 Cong. Rec. 17086.

On motion to reconsider, July 31, 1964, 110 Cong Rec. 17666.

II. Text of Freedom of Information Act (codification). 5 U.S.C. 552 (P.L. 90-23, 90th Congress, H.R. 5357, June 1967).

Committee Reports on H.R. 5357 (90th Congress):

H.Rept. No. 125, 90th Cong., 1st Sess., Committee on the Judiciary, March 14, 1967.

S.Rept. No. 248, 90th Cong., 1st Sess., Committee on the Judiciary, May 17, 1967.

Congressional Record References on H.R. 5357 (90th Congress):

Considered and passed House, April 3, 1967, 113 Cong. Rec. 8109.

Considered and passed Senate, amended, May 19, 1967, 113 Cong. Rec. 13253.

House agreed to Senate amendments, May 25, 1967, 113 Cong. Rec. 14056.

B. The 1974 Amendments: Legislative History

Committee Reports on H.R. 12471 and S. 2543:

H.Rept. No. 93-876, 93rd Cong., 2d Sess., Committee on Government Operations, March 4, 1974.

S.Rept. No. 93-854, 93rd Cong., 2d Sess., Committee on the Judiciary, May 16, 1974.

H.Rept. 93-1380, also published as S.Rept. 93-1200, Conference Committee Report of 1974 Amendments to the Freedom of Information Act, Sept. 25, 1974 and Oct. 1, 1974.

Congressional Record References on 1974 Amendments to the Freedom of Information Act:

House debate and vote, March 14, 1974; pp. H1787-H1803.

Senate debate and vote, May 30, 1974; pp. S9310-S9343.

Senate action on Conference Report, Oct. 1, 1974; pp. S17828-S17830 and S17971-S17972.

House action on Conference Report, Oct. 7, 1974; pp. H10001-H10009.

Preliminary House action on Presidential veto, Nov. 18, 1974; pp. H10705-H10706.

A message from the President of the United States vetoing H.R. 12471, to amend the Freedom of Information Act (H.Doc. 93-383), Nov. 18, 1974 (also contained in compilation of Presidential documents).

House action and vote on Presidential veto, Nov. 20, 1974; pp. H10864-H10875.

Senate action and vote on Presidential veto, Nov. 21, 1974; pp. S19806-S19823.

Oversight Hearings:

Hearings, "U.S. Government Information Policies in Practice -- Administration and Operation of the Freedom of Information Act." Foreign Operations and Government Information Subcommittee, House Government Operations Committee. March and April, 1972. Volumes 4, 5 and 6.

Hearings before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations and in the Subcommittees on Separate Powers and Administrative Practice and Procedure of the Committee on the Judiciary on S. 858, S.Con. Res. 30, S.J.Res. 72, S. 1106, S. 1142, S. 1520, S. 1923 and S. 2073, April 10, 11, 12; May 8, 9, 10, 16; June 7, 8, 11 and 26, 1973 (hearings contained in Volumes 1 and 2; Volume 3 contains appendix), 93rd Cong., 1st Sess.

House Hearings on H.R. 5425 and 4960 (which were reintroduced for action as H.R. 12471, the House Freedom of Information bill). House Committee on Government Operations. Hearings on H.R. 5425 and H.R. 4960, May 2, 7, 8, 10 and 16, 1973, 93rd Cong., 1st Sess.

Congressional Oversight Reports and Materials:

Administration of the Freedom of Information Act (H.Rept. 92-1419), Sept. 20, 1972.

Freedom of Information Act Source Book: Legislative Materials, Cases, Articles: Subcommittee on Administrative Practices and Procedures of the Committee on the Judiciary of the United States Senate, Document No. 93-82, 1974 (93rd Cong., 2d Sess.).

Freedom of Information Act Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts and Other Documents; Joint Committee print, Committee on Government Operations, U.S. House of Representatives, Subcommittee on Government Information and Individual Rights and the Committee on the Judiciary, U.S. Senate, Subcommittee on Administrative Practices and Procedures, March 1975 (94th Cong., 1st Sess.).

C. Central Intelligence Agency Information Act

Hearings:

Senate Select Committee on Intelligence. Hearings on S. 1324, June 21, 28, 1983 (98th Congress).

House Permanent Select Committee on Intelligence, Subcommittee on Legislation. Hearings on H.R. 3460, H.R. 4431, Feb. 8, 1984 (98th Congress).

House Government Operations Committee, Subcommittee on Government Information, Justice and Agriculture. Hearings on H.R,. 5164, May 10, 1984 (98th Congress).

Committee Reports:

S.Rept. 98-305 to S. 1324, 98th Cong., 1st Sess., Senate Select Committee on Intelligence, Nov. 9, 1983.

H.Rept. 98-726, Part 1 to H.R. 5164, 98th Cong., 2d Sess., House Permanent Select Committee on Intelligence, May 1, 1984.

H.Rept. 98-726, Part 2 to H.R. 5164, 98th Cong., 2d Sess., House Committee on Government Operations, Sept. 10, 1984.

Congressional Record References:

Senate passed S. 1324, Nov. 17, 1983; pp. S16742-S16746.

House passed H.R. 5164, Sept. 19, 1984; pp. H9817-H9818.

Senate passed H.R. 5164, Sept. 28, 1984; pp. S12395-S12397.

D. The 1986 Amendments: Legislative History

See Reference File, II 330-1 et. seq.

Next Section: III. SUMMARY