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FOIA author John Moss speaking at 1964 Democratic Convention. LBJ looms. (Credit - John Moss Foundation).
Freedom of Information at 40

LBJ Refused Ceremony, Undercut Bill with Signing Statement

Censored Moyers’ Openness Language on July 4, 1966

National Security Archive Electronic Briefing Book No. 194
Edited by Thomas Blanton

For more information contact:
Thomas Blanton - 202/994-7000

Posted - July 4, 2006

For a Complete Legislative History of the FOIA - click here

Read about 40 great FOIA news stories from 2004-2006

In the news

"LBJ loath to approve information act in 1966"
By Ted Bridis
Associated Press via Boston Globe
July 5, 2006

"The U.S. president worried about giving up secrets -- 40 years ago"
By Ted Bridis
Associated Press via Pittsburgh Post-Gazette
July 5, 2006

"LBJ had doubts about the Freedom of Information Act"
By Ted Bridis
Associated Press via Houston Chronicle
July 5, 2006


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.
You will need to download and install the free Adobe Acrobat Reader to view.

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.

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