of policy and interpretations which have been adopted by the Commission and are not published in the Federal Register." 22 The Commission's regulation also specifies that the Commission will consider exempt from the reach of the act (under exemption 4 dealing with trade secrets and commercial and financial information) "information obtained in connection with interpretative letters or no-action letters which is deemed to have been submitted in confidence unless the contrary clearly appears."

11 23

In the past the Commission has followed the policy of from time to time issuing releases concerning the interpretations or policies which have developed in connection with its implementation of the securities laws. At the spring symposium, the Chairman of the SEC indicated that the Commission was considering the publication of summaries of important staff interpretations in specific situations," an approach which may contribute significantly to solution of some of the problems suggested above.

Administrative manuals.-Questions have been raised with respect to the implementation of the FOIA's requirement that "administrative staff manuals and instructions to staff that affect a member of the public" be made available. Certain agencies are said to have produced for public use "cleaned up" manuals which omit material contained in the manual regularly used by staff. Authority for such deletion is apparently based on the Attorney General's memorandum. Focusing on the limiting effect of the word "administrative" in the phrase "administrative staff manuals" and on relevant legislative history, the memorandum cautions agencies against unwarranted revelations of tactics, operational procedures, and the like through production of manuals and instructions.25 Agencies are also relying on exemption 2 with respect to matters "related solely to the internal personnel rules and practices of an agency." [Emphasis added.] This exemption has been interpreted to authorize nondisclosure of such materials as instructions to negotiators with respect to agency acquisition of property or instructions to auditors with respect to the timing of spot inspections. Professor Davis urges that the staff manual requirement should be interpreted so as to require disclosure of all instructions to the extent that they reflect matters of substantive or procedural law." Some judicial light in this particular area is to be anticipated. A suit is presently pending in the U.S. District Court for the District of Columbia to compel production by the Department of Defense under the FOIA of the complete Defense Contract Audit Manual.28 The Defense Contract Audit Agency, having republished this manual in two volumes, formally refused to make available volume 1 on the ground that it is intended only for the internal guidance of Government personnel.

Subsection (a) (3) (other agency records).-5 U.S.C. § 552 (a) (3) (§ 3 (c) of the FOIA) states:

"Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules *** shall make the records promptly available to any person."

Implementation of this requirement is in part reflected in the record of litigation under the judicial review provision for its enforcement. As of the close of February 1968, at least 18 suits had been brought. Six have been decided, two of these by formal opinion, only one of which is thus far reported, Barceloneta Shoe Corp. v. Compton.29 There, the plaintiffs, under investigation on charges

22 17 CFR section 200.80 (b) (2) (iii) (32 F.R. 9829, 29, July 6, 1967).

23 17 CFR section 200.80 (c) (4) (i) (32 F.R. 9829, July 6, 1967).

24 See 20 Administrative Law Review 20 (1967). It is understood that this matter is still under consideration.

25 Attorney General's memorandum at 17. The memorandum states:

All agencies should reexamine all manuals, handbooks, and similar instructions to staff which had been used only internally, to ascertain whether they include standards and instructions which necessarily cannot be disclosed to the public. After any confidential standards and instructions are deleted, documents containing 'essential information' of the kind sought to be made available to the public by sec. 3(b) (C) should be included in the public index and made available for public inspection and copying, or published and offered for sale, unless they come within one of the exemptions of subsection (e)." (Ibid.) 20 Id. at 31.

27 Davis, supra note 3, at 778-780.

28 Cuneo v. McNamara, Civil Action No. 1826-67. In practice, Government representatives are making vol. 1 of the manual available to Government contractors on an individual basis.

20 271 F. Supp. 591 (D. Puerto Rico 1967). The other decided cases are Shell Oil Co. and Shale, Inc. v. Udall, Civ. Action No. 67-C-321 (D. Colo. 1967) (plaintiff's request for reports of field examiners who inquired into the validity of a mineral rights land patent granted); Kovic v. Gardner, Civ. Action No. 2008-67 (D.D.C. 1967) (request for disability claim file of social security claimant including tape of hearing Government motion to dismiss granted); Bandy v. Commissioner of Immigration and Naturalization

of unfair labor practices, requested the NLRB regional director to supply them with statements or evidence received by him in the course of his investigation, including statements of persons interviewed by Board agents. The Director refused, taking the position that such affidavits and statements would be made available during the hearing after the witness had testified. Plaintiffs sought relief under the FOIA.

Proceeding promptly to disposition, the court denied the requested relief on the ground that the material came within the act's exemption 7 (5 U.S.C., sec. 522(b) (7)), which immunizes "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency."

Comparing the FOIA to the Jencks Act, the court stated:

"To me, it is inconceivable that by the new act Congress intended to give private parties-employers, unions, or employees charged with the violation of Federal regulatory statutes any greater right to inspect investigative file material, than has been granted to persons accused of violating Federal criminal law." (271 F. Supp. at 593.)

Going perhaps further than the case required, the court also indicated that the requested files fell within exemption 4 ("trade secrets and commercial or financial information obtained from a person and privileged or confidential"). The court thus construed this exemption as applicable to material given in confidence to a Government agency, whether or not, strictly speaking, it constituted "commercial or financial information." The court also applied a balancing of the interests tests in justifying its result. It determined that the injury to the Board's investigatory functions which would arise from the requested disclosure outweighed the reasons urged to support the request for production. (271 F. Supp. at 594.) The court's willingness to balance competing interests is significant in view of the permissible equitable discretion of courts considering the imposition of the injunctive remedy.30

Other types of material being sought in cases pending, it is understood, include a compensation file on a deceased Government employee; an Army aircraft accident investigation report, and an investigation report compiled by the Federal Highway Administration. Medical records are being sought in actions against the Veterans' Administration and the Secretary of Labor. A jail prisoner is requesting a copy of his presentence investigation report. Examination papers used in testing patent examiners are the subject of another action.

Several interesting actions, both challenging FTC refusals to disgorge requested information, are presently pending in the Federal District Court for the District of Columbia. In The Tobacco Institute v. Federal Trade Commission (Civ. Action No. 3035-67), a complaint has been filed calling for the production of certain records relating to a Commission survey mentioned in a report of the agency to Congress made pursuant to the Cigarette Labeling and Advertising Act. Involved in the survey was a certain questionnaire sent by the FTC to various persons and organizations. The plaintiff requests access to records showing the identity of persons and entities to whom the questionnaire was sent; the identity of those who responded; and the manner in which the selection of addressees was made. Copies of responses to the questionnaire are also requested. As of this writing, the Government's response to the plaintiff's motion for summary judgment has been filed.

In Bristol Myers Co. v. Federal Trade Commission, Civ. Action No. 290567, the plaintiff is seeking a court order requiring the FTC to produce under the FOIA all records reasonably relevant to a proposed trade regulation rule respecting theadvertising of nonprescription, systemic analgesic drugs. Counts requesting the court to enjoin promulgation of the rule are also contained in the complaint. The Government has moved to dismiss the complaint, in part on the ground that the plaintiff has failed to request "identifiable records," as required by the FOIA.

Service, Civ. Action No. 2239-67 (D.D.C. 1967) (Pro se request for current address of plaintiff's allen wife; Government's motion to dismiss action as premature granted); Clement Brothers v. NLRB, Civ. Action No. 11174 (N.D. Ga. 1968) (complaint requesting employee affidavits of persons not called as witnesses in a terminated unfair labor practice proceeding dismissed); Benson v. General Services Administration, Civ. Action No. 7344 (W.D. Wash, 1968) (request for appraisal reports regarding a GSA transaction in which the plaintiff had an interest granted by district court).

30 See Attorney General's memorandum at 28; Davis, supra note 3, at 767.

92-089 0-68-14

EXEMPTIONS

While the reach of the nine exemptions is crucial to the operation of the FOIA, a detailed discussion of the manner in which individual exemptions are being interpreted is beyond the scope of this paper. It is worthy of note, however, that one of the major concerns to the practicing bar has to do with exemption 4. It is, somewhat ironically, not whether the exemption goes too far but whether it goes far enough and protects information submitted in confidence to an agency where the information is not "commercial or financial information." Professor Davis concludes that the answer should be "Yes," but that the statute gives no assurance that it is.” Agencies generally are being encouraged to read the exemption as going beyond business confidential information.

Exemption 4 (described above), exemption 5 ("interagency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency") and exemption 7 ("investigatory files complied for law enforcement purposes except to the extent available by law to a party other than an agency") appear likely to be used frequently as statutory bases for nondisclosure."

CONCLUSION

33

On the whole, the climate created by the FOIA appears to have already fostered a freer flow of administrative material. At the same time, as the foregoing comments suggest, complex issues of law and policy concerning the availability of certain types of material remain to be resolved. Their resolution in some cases may be aided by direct dialog between individual agencies and the administrative law section acting through its various committees. In this and other ways the section can play a significant role in encouraging agencies to implement the Freedom of Information Act in a fashion meaningful to members of the bar and the public alike.

31 Davis, supra note 3, at 787-792.

32 As indicated above, the court in Barceloneta Shoe Corporation v. Compton, supra note 29, the court relied upon exemption nos. 4 and 7. In Tobacco Institute v. Federal Trade Commission, supra p., the Government is asserting the confidentiality of the requested records under exemption 4, and in Bristol Myers Co. v. Federal Trade Commission, exemptions 4, 5, and 7 are called into play by the Government's motion to dismiss which contends that documents falling into those exemptive categories are embraced by the plaintiff's request.

33 See "FOI Cleanup Hitters With Good Follow-Through," speech by Representative Donald Rumsfeld, of Illinois, reprinted 114 Congressional Record S. 1550-1551 (daily edition Feb. 21, 1968):

"Events since the law's inception have shown that, far from being useless, it has already had a salutary effect on the executive branch. Most Federal officials have recognized and accepted the inevitability of conforming to the law, and nearly all Federal agencies and departments have rewritten their information regulations in keeping with the law's goal of disclosure."

[Reprinted from the GEORGETOWN LAW JOURNAL, vol. 56:18 (1967)]
FREEDOM OF INFORMATION: THE STATUTE

AND THE REGULATIONS

The new Freedom of Information Act,' Congress' latest attempt at achieving a proper balance between the public's "right to know" and the Government's need for secrecy, arose out of the wreckage of Section 3 of the Administrative Procedure Act of 1946.2 The original section 3 had contained the first general statutory provision for public disclosure of administrative decisions and procedures, but, despite Congress' clear intent to promote disclosure, the vagueness of the statute and its abundance of loopholes prompted the Senate report on its proposed revision to flatly

state:

[S]ection 3... is of little or no value to the public in gaining access
to records of the Federal Government. Indeed, it has had precisely the
opposite effect: it is cited as statutory authority for the withholding of
virtually any piece of information that an official or agency does not
wish to disclose.

Almost immediately after the original enactment, demands were made for a tightening of section 3. Bills were routinely submitted to Congress and, due to agency pressure, just as routinely killed." But the practices of some agencies, many of which are described in the House Report on Public Law 89-487, made apparent the need for remedial legislation.

1 Administrative Procedure Act, S 3, 5 U.S.C. App. § 1002 (Supp. II, 1965-1966) (Pub. L. No. 89-487), as amended and codified, Act of June 5, 1967, § 552, Pub. L. No. 90-23, 81 Stat. 54 [hereinafter cited as Act of June 5, 1967, § 552, Pub. L. No. 90-23, 81 Stat. 54].

2 Act of June 11, 1946, ch. 324, § 3, 60 Stat. 238. This Act applies to "each authority of the Government of the United States, whether or not it is within or subject to review by another agency ... [except] (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia...." 5 U.S.C. § 551(1) (Supp. II, 1965-1966).

8 See S. REP. No. 752, 79th Cong., 1st Sess. 12 (1945); H.R. REP. No. 1980, 79th Cong., 2d Sess. 17-18 (1946).

4 S. REP. No. 813, 89th Cong., 1st Sess. 5 (1965) [hereinafter cited as S. REP.].

See S. 2504, 84th Cong., 1st Sess. (1955); S. 2541, 84th Cong., 1st Sess. (1955); S. 2148, 85th Cong., 1st Sess. (1957); S. 4094, 85th Cong., 2d Sess. (1958); S. 186, 86th Cong., 1st Sess. (1959); S. 1070, 86th Cong., 1st Sess. (1959); S. 2780, 86th Cong., 2d Sess. (1960); S. 1567, 87th Cong., 1st Sess. (1961); S. 1907, 87th Cong., 1st Sess. (1961); H.R. 9926, 87th Cong., 2d Sess. (1962); S. 3410, 87th Cong., 2d Sess. (1962); S. 1666, 88th Cong., 1st Sess. (1963).

6 H.R. REP. No. 1497, 89th Cong., 2d Sess. 5-6 (1966) [hereinafter cited as H.R. REP.]. One such example is the repeated refusal of the National Science Foundation to disclose the bid by the successful contractor in a multimillion-dollar deep-sea study. Only after the White House intervened was it learned that the contract had not been granted to the lowest bidder. Id. at 5.

The new Freedom of Information Act, amending original section 3, was fashioned to meet that need by replacing the vague language with precise and narrow phrases, thereby minimizing the possibilities of evading congressional intent."

A proper understanding of the Act requires a careful examination of its legislative history, the interpretive memorandum published by the Attorney General, and the implementing regulations promulgated by the various agencies. Since the Act makes virtually all agency records subject to disclosure unless they fall within one of nine specific exemptions," the effectiveness of the Act will depend upon how broadly these exemptions can or will be interpreted and implemented by the agencies. This forms the focus of this Note; but in order to better understand the exemptions, it is necessary to discuss at some length the other provisions of new section 3.

Section 552 (a) (1) requires each agency to "publish in the Federal Register for the guidance of the public," the following five types of material:

(A) descriptions of its central and field organization and established places at which, the employees. . . from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.10

7 See S. REP., supra note 4, at 3.

8 U.S. DEP'T Of Justice, ATTORNEY GENEral's MemorANDUM ON THE PUBLIC INFORMATION SECTION OF THE ADMINISTRATIVE PROCEDURE ACT (1967) [hereinafter cited as ATTORNEY General's MemoranDUM]. Though the memorandum is merely advisory, the courts are likely to give it strong consideration. It is well documented and helps clarify the Act's confusing legislative history. However, the Attorney General has the duty of defending the agencies in suits for disclosure, and consequently his interpretation often reflects the interests of the agencies.

Act of June 5, 1967, § 552(a)(3), Pub. L. No. 90-23, 81 Stat. 54; see notes 10-81 infra and accompanying text.

10 Act of June 5, 1967, § 552(a)(1), Pub. L. No. 90-23, 81 Stat. 54.