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6 Clearinghouse Rev. 1 (1972-1973)

handle is hein.journals/clear6 and id is 1 raw text is: Volume VI, Number 1 May 1972 Knowledge is Power. Peverty Law and the Freedom of Information Act by Stephen R. Elias and Trudy Rucker, Staff Attorneys, Center on Social Welfare Policy and Law Introduction Information-public versus classified-has recently aroused widespread interest and controversy, particularly since the Pentagon papers case. The public is now keenly aware that there are literally tons of government documents withheld from the public domain in the secret preserve of government officials. Although the act of divulging such secret documents has become heroic, since the Freedom of Information Act' was passed in 1967 any member of the American public has been entitled to inspect millions of documents which hundreds of government agencies cur- rently consider beyond their reach. It is conceded that the precise records obtained by Daniel Ellsberg might not be obtainable under the Freedom of Information Act.2 How- ever, vast amounts of records of the same public impor- tance are obtainable under the Act, and the fruit, in a manner of speaking, is ripe for the picking. This article and the Freedom of Information Act are both slanted toward the view that all government records should presumptively be disclosed. Poverty lawyers and their client groups-welfare rights, tenant and consumer organizations-have always taken the position that where a benefit exists it should be utilized, and that where a benefit might be obtained through political action or litigation, that benefit should be pursued. In the case of the Freedom of Information Act, there is a large volume of information which if made public or available to the poor would help them obtain their rights. Legal Services lawyers should seek this information aggressively. This article is concerned with the uses of the Federal Freedom of Information Act3 and the problems likely to 1. 5 U.S.C. §552. 2. 5 U.S.C. §552 (b) (1) appears to exempt such records. But see Mink v. EPA, 40 U.S.L.W. 2233 (D.C. Cir., Nov. 2, 1971), review granted, 40 U.S.L.W. 3428 (U.S. Sup. Ct., Mar. 6, 1972). 3. The Act applies only to federal agencies; however, a number of states have their own freedom of information acts and in one recent case, a state court used federal case law to interpret the state statute. Citizens for Better Care v. Reizen, No. 13166-C (Mich. Cir. Ct., Feb. 23, 1972), available from the Clearinghouse, Clearinghouse No. 5827. For an exhaustive listing of the freedom of information laws of each state, see HOBSON, THE DAMNED INFORMATION: ACQ J(RING AND USING PUBLIC INFORMATION TO FORCE SOCIAL CHANGE, Washington Institute for Quality Education, available at a cost of $2.00. be encountered therewith. The Act identifies the type of material to be made available to the public, and the manner in which it must be made available. This includes infor- mation which must be printed in the Federal Register,4 information which the agency is required to index and keep available for public inspection (such as final opinions and statements of policy interpretations which have been adopted by the agency and are not published in the Federal Register), and administrative staff manuals and instructions to staff which affect a member of the public.5 Finally, the Act requires all other identifiable records to be disclosed upon request except as specifically exempted.6 The Act also provides for judicial review of an agency's failure to make the requested information public; it lists the types of records exempted from the Act's coverage (nine such exemptions in all);7 and it provides that no records shall be withheld except as specifically provided in the second part of the Act.8 This article will not discuss the Federal Register requirement. Further, although at times it will discuss the types of information which must be indexed and kept available in libraries, it will not examine all possible problems in the area in detail.9 (This subject is appropriate for additional extensive investigation and analysis.) The primary thrust of this article, therefore, is a discussion of the Act as it relates to records which are likely to be of help to poverty lawyers. The Act and Its History Until the Freedom of Information Act was passed in 1967, a citizen's right of access to public documents was largely in the realm of common law equitable principles. While a public disclosure section of the Administrative Procedure Act (APA) had been in force since 1946, 10 the Senate Judiciary Committee concluded that this older statute usually served the purpose of non-disclosure. This statute largely depended on traditional common law con- cepts. For example, a person had to have a proper and 4. 5 U.S.C. §552 (a) (1). 5. 5 U.S.C. §552 (a) (2). 6. 5 U.S.C. §552 (a) (3). 7. 5 U.S.C. §552 (b). 8. 5 U.S.C. §552 (c). 9. See Davis, The Information Act, A Preliminary Analysis, 34 U. CHI. L. REV. 761 (1967), for an explanation and interpretation of these first two requirements. 10. 5 U.S.C. § § 701 et seq.

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