Washington, DC, 4 July 2006 - Forty years ago
on July 4, 1966, Lyndon Johnson signed the landmark Freedom of
Information Act while vacationing at his Texas ranch. But the
event does not even appear on LBJ’s
Daily Diary, which is the first indication (the dog that didn’t
bark) that something was amiss on the Pedernales.
Documents from the LBJ Library show that the
normally gregarious President, who loved handing out pens at bill
signings, refused even to hold a formal ceremony for the FOIA,
personally removed strong openness language from the press statement,
and only agreed to approve the bill after the Justice Department
suggested the tactic that has become President Bush’s favorite
– a signing statement
that undercut the thrust of the law.
This back story behind Johnson’s grudging signature
highlights some constants – the government’s resistance to outside
scrutiny – and some surprising role reversals, featuring then-congressman
Donald Rumsfeld as a FOIA champion and then-White House aide Bill
Moyers as a FOIA opponent, at least for a time.
A Democratic congressman from Sacramento, California,
the late John Moss, was the real hero of the Freedom of Information
story. Supported by extensive press coverage and active lobbying
by newspaper editors, Moss led hearings beginning in 1955 that
documented and denounced excessive government secrecy. But as
long as Eisenhower was president, Moss could hardly find a Republican
co-sponsor for his proposed openness reforms.
Republicans became more interested during the
Kennedy and Johnson presidencies, especially after LBJ’s landslide
victory in 1964. As a young Republican from Illinois assigned
to Moss’s subcommittee, Rumsfeld signed up as a leading co-sponsor
(see Document 9,
page 14) of the Moss
bill for freedom of information, and denounced what he called
the Johnson administration’s “continuing tendency toward managed
news and suppression of public information that the people
are entitled to have.” (Less than 10 years later, Rumsfeld as
White House chief of staff, and his deputy Richard Cheney, would
lead President Ford’s effort
to veto the strengthening amendments to the FOIA, but they
would lose.)
Moss himself, as a member of the Democratic
House leadership in 1965-66, had to pretend the President was
on board; but he told his staff (after cleaning up the expletives
from the original) what LBJ’s real reaction was: “What is Moss
trying to do, screw me? I thought he was one of our boys, but
the Justice Department tells me his goddamn bill will screw the
Johnson Administration.” [See George Kennedy, “How Americans got
their right to know,” www.johnemossfoundation.org/foi/kennedy.htm]
All through 1965, the administration stalled
Moss’s bill. All 27 federal agencies and departments that
presented testimony opposed the bill. An August 1965 Bureau
of the Budget analysis noted that the Justice Department considered
the bill unconstitutional, and remarked, “The requirement that
information be made available to all and sundry, including the
idly curious, could create serious practical problems for the
agencies.” Out to the side, Moyers scribbled “True!” and on the
cover note he wrote:
“I agree with BOB’s objections and believe we should continue
to oppose the legislation.”
But by the spring of 1966, the Senate had passed
its own version of Moss’s legislation and Moyers had heard unanimous
support from the journalists he was dealing with as press secretary. Other
White House staff were getting the idea that the train was leaving
the station. White House counsel Milton
Semer talked directly with Moss, connected Moss with Moyers,
and even suggested
to Moyers that he “exploit the fact that the President is under
pressure from the bureaucracy to veto,” as a way of arguing
that the bill would actually help the President bring the “permanent
bureaucratic interest” more under control.
By May and June 1966, the White House documents
show quiet lobbying by Moyers in favor of the legislation, advising
the newspaper editors (see Document
9, page 2) what
kind of “sharply briefed exhibit” of editorials would have the
most impact, and forwarding quotes to White House staff from previous
Johnson speeches about the perils of secrecy and the virtues of
openness.
Behind the scenes, the Justice Department prevailed
on Moss to create a new
House report on the bill with government-produced language
that rolled back the Senate interpretations (even though the language
of the two bills was identical). The new report added numerous
specific examples of information that would be exempt from disclosure,
and emphasized “broader protection for the internal working papers
of executive agencies.” The agencies told Justice the new language
“clarifies the bill and substantially relieves our earlier concerns.”
(May 13, 1966 NLRB
to Justice)
By the time the House passed the bill on June
20, 1966 (the vote was 307 to zero) and sent it on to LBJ, only
one agency (Health, Education & Welfare) still recommended
a veto. Semer summed up the government’s position in his July
1 memo to LBJ: “The departments and agencies have been
concerned about this bill for many years, but have come around
to the view that they can live with it, and the attached agency
reports do not recommend disapproval (with the minor exception
of HEW).”
But the agencies were certainly not enthusiastic. Of
the 14 that weighed in, 5 had
“no recommendation,” 4 had “no objection,” only 3 noted “approval,”
HEW concluded “disapproval would best serve public interest,”
and Justice’s tortured language perhaps best captured the ambivalence: “Does
not urge withholding of approval (signing statement attached).”
President Johnson clearly shared those very
mixed feelings – he personally handwrote “No ceremony” across
the bottom of a June
24 memo about the possibility of a signing event with leading
editors and legislators.
Because Congress had adjourned, Johnson had
to act by Monday, July 4, or the bill would fall victim to a pocket
veto. On July 2, the head of the American Society of Newspaper
Editors wired Moyers
in San Antonio (LBJ was at the ranch for the July 4 weekend, so
the White House press briefings took place 70 miles away in the
closest city with hotels): “press of America concerned legislation
overwhelmingly adopted by Congress may die through inadvertence.”
Moyers responded
the same day, “Inadvertence not our habit. Thank you for your
telegram.”
The last drama of the Freedom of Information
signing saga was over the president’s statement. As Justice recommended,
it endorsed the rollback House report with three paragraphs
of cautionary language about military secrets, personnel files,
confidential advice, executive privilege, and investigative files. In
fact, the signing statement includes more about the need to keep
secrets than the urgency of openness.
But Moyers had also included several ringing
phrases, such as “I signed this measure with a deep sense of pride
that the United States is an open society in which the decisions
and policies – as well as the mistakes – of public officials are
always subjected to the scrutiny and judgment of the people.”
This version actually reached the press corps in San Antonio,
only to be withdrawn after a phone call between LBJ and Moyers
on the morning of July 4. In the files is Moyers' draft with LBJ's
own edits (see Document
31, page 5), as
well as a copy of the statement that already had been given to
the press, the latter
featuring Moyers’ dark ink pen slicing through the clause about
decisions and policies and mistakes, which went missing from the
final language, and changing a reference to the “whim of public
officials” into “the desire of public officials or private citizens.”
Moyers later
remarked that LBJ’s language was “almost lyrical – ‘With a
deep sense of pride that the United States is an open society
in which the people’s right to know is cherished and guarded.’…
But I knew that LBJ had to be dragged kicking and screaming to
the signing… He hated the very idea of the Freedom of Information
Act; hated the thought of journalists rummaging in government
closets and opening government files; hated them challenging the
official view of reality. He dug in his heels and even threatened
to pocket veto the bill after it reached the White House. And
he might have followed through if Moss and [Russell] Wiggins and
other editors hadn’t barraged him with pleas and petitions.
He relented and signed ‘the damned thing,’ as he called it (I’m
paraphrasing what he actually said in case C-Span is here).”
Today the U.S. government answers more than
four million FOIA requests a year, the majority from veterans
and senior citizens seeking information about their benefits and
service records. In 1966, the U.S. law was the third in world
history, after Sweden and Finland; but today, more than 60 other
countries (most recently Uganda and Germany) have enacted similar
laws that open access to government information (see www.freedominfo.org
for the new 2006 global survey).
[Special thanks to Mary Knill, Will Clements,
Laura Harmon, and the other highly professional and responsive
archivists at the Lyndon Baines Johnson Library in Austin, Texas,
who located, copied, and helped explain these documents.]
Documents
Note:
The following documents are in PDF format.
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Source:
Lyndon B. Johnson Library, Office Files of the White House Aides,
Harry McPherson, Special Assistant, 1965-1966, Box 22, “Executive
Privilege”
Document 1: Memorandum from Lee White to Bill Moyers, August
13, 1965, Annotated by Bill Moyers, Includes Attachments “Mr.
Archibald’s Letter of August 2 on the Federal Public Records Bill,”
“Public Information,” and News Clipping “White House Opposition
Stalls Information Bill”
Source:
Lyndon B. Johnson Library, White House Central Files, 1963-1969,
Legislation (LE), Box 44, “GEN LE/FE 14-1”
Document 2: Memorandum from Milton P. Semer to Henry Wilson,
“Moss—Freedom of Information,” March 31, 1966
Document 3: Letter from Frank W. McCulloch, Chairman National
Labor Relations Board, to Attorney General Nicholas deB. Katzenbach,
May 13, 1966
Document 4: Memorandum for Bill Moyers from Milton P. Semer,
“Freedom of Information Bill (S. 1160),” June 15, 1966
Source:
Lyndon B. Johnson Library, Special Files, 1927-1973, Statements
of Lyndon B. Johnson, Box 195, “7/4/66 Statement by the President
upon Signing the Freedom of Information Act”
Document 5: Memorandum for Will Sparks and Bob Hardesty from
Robert E. Kintner, “Remarks for the President on Signing Freedom
of Information Bill, June 21, 1966
Source:
Lyndon B. Johnson Library, Special Files, 1927-1973, President’s
Night Reading, Box 3, “June 1966”
Document 6: President’s Night Reading , June 21, 1966
Document 7: President’s Night Reading, June 24, 1996
Source:
Lyndon B. Johnson Library, Special Files, 1927-1973, Handwriting
File—Lyndon B. Johnson, Box 15, “June 1966 (Notes, Instructions,
Doodles)
Document 8: Memorandum for the President from Robert
E. Kintner, “Signing of Information Bill,” June 24, 1966
Lyndon
B. Johnson Library, White House Central File, 1927-1973,
Legislation (LE), Box 44, “EX LE/FE 14-1”
Document 9: Memorandum from Bill Moyers to Edward Murray,
The Arizona Republic, June 27, 1966, Includes Annotated Memorandum
from Edward Murray to Bill Moyers and Newspaper Clippings
Document 10: Telegram from Robert C. Notson to Bill
Moyers, July 2, 1966
Document 11: Telegram from Bill Moyers to Robert C.
Notson, July 2, 1966
Lyndon
B. Johnson Library, Records of White House Offices, 1963-1969,
White House Press Office Files, Press Secretary’s News Conferences,
Box 28, “July 1966”
Document 12: Transcript. “News Conference at the White
House with Bill Moyers,” 10:00 a.m. CST, July 2, 1966
Source:
Lyndon B. Johnson Library, Special Files, 1927-1973, Reports on
Enrolled Legislation, Box 36, “P.L. 89-487, S.1160, 7/4/66”
Document 13: White House, Memorandum for the President
from Milton P. Semer, “Enrolled Bill S. 1160—Disclosure of Government
Information, Senator Long (Mo.) and Mr. Moss (Calif.),” July 1,
1966
Document 14: Memorandum for the President from Wilfred
H. Rommel, Bureau of the Budget, June 28, 1966
Document 15: Letter from Deputy Attorney General Ramsey
Clark to Charles L. Schultze, June 28, 1966, Includes Attachments
“Draft Approval Statement to Be Issued upon the Signing of S.
1160” and “The Principal Problems Presented by S. 1160”
Document 16: Memorandum from Wilfred H. Rommel to William
J. Hopkins, June 29, 1966
Document 17: Department of State, Letter from Douglas
MacArthur II to Charles L. Schultze, June 23, 1966, Attachment
Not Included
Document 18: Letter from Cyrus Vance to Charles L. Schultze,
June 28, 1966
Document 19: Letter from Fred B. Smith, Treasury Department,
to Charles L. Schultze, June 23, 1966
Document 20: Letter from Secretary of Agriculture Orville
L. Freeman to Charles L. Schultze, June 23, 1966
Document 21: Letter from Robert E. Giles, Commerce Department,
to Charles L. Schultze, June 24, 1966
Document 22: Letter from Secretary of Health Education,
and Welfare John W. Gardner to Charles L. Schultze, June 23, 1966,
Includes Attachment “HEW Staff Memorandum on S.1160 (Enrolled)”
Document 23: Letter from Secretary of Housing and Urban
Development Robert C. Weaver to Wilfred H. Rommel, “S. 1160, 89th
Congress, Enrolled Bill,” June 22, 1966
Document 24: Letter from Atomic Energy Commission Chairman
Glenn T. Seaborg to Charles L. Schultze, June 24, 1966
Document 25: Letter from Civil Aeronautics Board Chairman
Charles S. Murphy to Wilfred H. Rommel, June 22, 1966
Document
26: Letter from Federal Power Commission Chairman Lee
C. White to Charles L. Schultze, June 23, 1966, Includes Attachment
“S 1160, 89th Cong.—“Freedom of Information”
Document 27: Letter from William Feldesman, National
Labor Relations Board, to Wilfred H. Rommel, June 22, 1966
Document 28: Letter from Securities and Exchange Commission
Chairman Manuel F. Cohen to Wilfred H. Rommel, “Enrolled Bill
S. 1160, 89th Congress,” June 23, 1966
Document 29: Letter from Robert C. Seamans, Jr., National
Aeronautics and Space Administration, to Charles L. Schultze,
June 29, 1966
Document 30: Letter from J.L. Robertson, Federal Reserve
System, to Wilfred H. Rommel, July 1, 1966, Includes Attachment
“Preliminary Memorandum on S. 1160,” Attached to Cover Memorandum
Document 31: Statement signed by Lyndon B. Johnson, “Statement
by the President,” Attached to Cover Note. Includes Variants,
(1): Unsigned Draft; (2) Draft II Annotated by LBJ
himself, (3) Annotated Draft with Handwritten Note from G.C.
Document 32: U.S. Congress. Senate. Committee on the
Judiciary, “Clarifying and Protecting the Right of the Public
to Information, and for Other Purposes,” 89th Cong.,
1st sess., October 4, 1965, Report 813
Document 33: U.S. Congress. House. Committee on the
Judiciary, “Clarifying and Protecting the Right of the Public
to Information, and for Other Purposes,” 89th Cong.,
1st sess., May 9,1966, Report 1497
Document 34: Freedom of Information Act of 1966, 89th
Cong., 2nd sess., S. 1160
Document 35: White House Press Release, “Statement by
the President upon Signing S. 1160,” July 4, 1966
Document
36: Letter from Department of State Legal Advisor Leonard
C. Meeker to Frank M. Wozencraft, “The Freedom of Information
Bill, S. 1160, to Amend Section 3 of the Administrative Procedure
Act” April 29 1966
Source:
Lyndon B. Johnson Library, Records of White House Offices, 1963-1969,
White House Press Office Files, Box 49, “6/30/66-7/15/66 PR 210a
– PR 2134a”
Document
37: White House Press Release, “Statement by the
President upon Signing S. 1160,” July 4, 1966
Source:
Lyndon B. Johnson Library, Records of White House Offices, 1963-1969,
White House Press Office Files, Press Release Drafts, Box 120,
“July 1966 [3 of 3]”
Document
38: White House Press Release, Annotated Draft, “Statement
by the President upon Signing S. 1160,” July 4, 1966,
Source: Lyndon
B. Johnson Library, Special Files, 1927-1973, Diaries and Appointment
Logs of Lyndon B. Johnson
Document
39: President Johnson’s Daily Diary, July 4, 1966
Source:
Lyndon B. Johnson Library, White House Central Files, 1963-1969,
Federal Government (FE), “GEN FE 14-1 Access to Records”
Document
40: Press Release from the Office of Congressman Donald Rumsfeld
(ILL.), July 7, 1966
Document
41: Letter from Donald Rumsfeld to Lyndon B. Johnson, July
11, 1966
Document
42: Memorandum from Henry H. Wilson, Administrative Assistant
to the President, to Donald Rumsfeld, July 12, 1966
Notes
1. For the complete Legislative History of the
FOIA - click
here.
FOIA author
John Moss speaking at 1964 Democratic Convention. LBJ looms. (Credit
- John Moss Foundation).