93d Congress, 2c1 Session House Document No. 9~ 383

VETOING H.R. 12471, AMEND FREEDOM

OF INFORMATION ACT

MESSAGE

FROMf

THE PRESIDENT OF THE UNITED STATES

VETOING

H.R. 12471, AN ACT TO AMEND SECTION 552 OF TITLE 5,

UNITED STATES CODE, KNOWN AS THE FREEDOM OF

INFORMATION ACT

NOVEMBER 18, 1974.-Message and accompanying act ordered to be

printed as a House document

38-011 0

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1974

93d Congress, 2d Session House Document No. 9 -383
To the House of Representatives:

I am returning herewith without my approval H.R. 12471, a bill to

amend the public access to documents provisions of the Administrative Procedures Act. In August, I transmitted a letter to the conferees

expressing my support for the direction of this legislation and presenting my concern with some of its provisions. Although I am gratified

by the Congressional response in amending several of these provisions,

significant problems have not been resolved.

First, I remain concerned that our military or intelligence secrets

and diplomatic relations could be adversely affected by this bill. This

provision remains unaltered following my earlier letter.

I am prepared to accept those aspects of the provision which would

enable courts to inspect classified documents and review the justification for their classification. However, the courts should not be forced

to make what amounts to the initial classification decision in sensitive

and complex areas where they have no particular expertise. As the

legislation now stands, a determination by the Secretary of Defense

that disclosure of a document would endanger our national security

would, even though reasonable, have to be overturned by a district

judge who thought the plaintiff's position just as reasonable. Such a

provision would violate constitutional principles, and give less weight

before the courts to an executive determination involving the protection of our most vital national defense interests than is accorded determinations involving routine regulatory matters.

I propose, therefore, that where classified documents are requested the courts could review the classification, but would have to uphold

the classification if there is a reasonable basis to support it. In determining the reasonableness of the classification, the courts would consider all attendant evidence prior to resorting to an in camera examination of the document.

Second, I believe that confidentiality would not be maintained if

many millions of pages of FBI and other investigatory law enforcement files would be subject to compulsory disclosure at the behest of

any person unless the Government could prove to a court-separately

for each paragraph of each document-that disclosure "would" cause

a type of harm specified in the amendment. Our law enforcement

agencies do not have, and could not obtain, the large number of trained

and knowledgeable personnel that would be needed to make such a

line-by-line examination of information requests that sometimes involve hiridreds of thousands of documents, within the time constraints

added to current law by this bill.

Therefore, I propose that more flexible criteria govern the responses to requests for particularly lengthy investigatory records to

mitigate the burden which these amendments would otherwise impose, in order not to dilute the primary responsibilities of these law enforcement activities.

dal)

H.D. 383
Finally, the ten days afforded an agency to determine whether to

furnish a requested document and the twenty days afforded for determinations on appeal are, despite the provision concerning unusual circumstances, simply unrealistic in some cases. It is essential

that additional latitude be provided.

I shall submit shortly language which would dispel my concerns

regarding the manner of judicial review of classified material and for

mitigating the administrative burden placed on the agencies, especially our law enforcement agencies, by the bill as presently enrolled.

It is only my conviction that the bill as enrolled is unconstitutional

and unworkable that would cause me to return the bill without my

approval. I sincerely hope that this legislation, which has come so

far toward realizing its laudable goals, will be reenacted with the

changes I propose and returned to me for signature during this session of Congress.

GERALD R. FoRD.

THE WHITE HoUSE, October 17, 1974.

H.D. 383