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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
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:
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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