" (1) Any function of the United States requiring secrecy in the
public interest." This would include the confidential operations of any agency, such as the
confidential operations of the Federal Bureau of Investigation and the Secret Service and, in general,
those aspects of any agency's law enforcement procedures the disclosure of which would reduce the
utility of such
[Page 18]
procedures. It is not restricted, however, to investigatory functions. The Comptroller of the
Currency, for example, may have occasion to issue rules to national banks under such circumstances
that the public interest precludes publicity.
It should be noted that the exception is made only "to the
extent" that the function requires secrecy in the public interest. Such a determination must be
made by the agency concerned. To the extent that the function does not require such secrecy, the
publication requirements apply. Thus, the War Department obviously is not required to publish
confidential matters of military organization and operation, but it would be required to publish the
organization and procedure applicable to the ordinary civil functions of the Corps of Engineers.
"(2) Any matter relating solely to the internal managementof an agency." This exception is in line with the spirit of the public information
requirements of section 3. If a matter is solely the concern of the agency proper, and therefore does
not affect the members of the public to any extent, there is no requirement for publication under
section 3. Thus, an agency's internal personnel and budget procedures need not be published (e.g.,
rules as to leaves of absence, vacation, travel, etc.). However, in case of doubt as to whether a matter
is or is not one of internal management, it is suggested that the matter be published in the Federal
Register, assuming it does not require secrecy in the public interest.
"Internal management of an agency" should not be construed
as intra-agency only; it includes functions of internal Federal management, such as most of the
functions of the Bureau of the Budget, and interdepartmental committees which are established by
the President for the handling of internal management problems.
It should be understood that the following discussion of the requirements
of section 3 is not applicable to the above italicized functions since they are expressly exempted from
the section.
Section 3(b) provides that "Every agency shall publish or, in
accordance with published rule, make available to public inspection all final opinions or orders in the
adjudication of cases (except those required for good cause to be held confidential and not cited as
precedents) and all rules." Section 3(b) does not require publication of these materials in the
Federal Register or in any other prescribed form. Regular publication of decisions in bound volumes
or bulletins, as many agencies are now doing, will suffice; in such cases, however, the agency should
publish a rule stating where copies of such orders and opinions may be obtained or inspected during
the interval prior to publication. It should be noted that the materials specified by section 3(b) need
not be published at all if, in accordance with the agency's rule published in the Federal Register
pursuant to section 3(a) (1), they are available for public inspection. It is suggested that to the extent
section 3(b) is complied with by making materials available for inspection, such inspection be made
possible, where practicable, in regional offices as well as in the agency's central office.
The scope of the phrase "opinions or orders in the adjudication of
cases" is governed by section 2(d) and, accordingly, includes orders or opinions issued with
respect to licenses. Adjudicatory orders and opinions which are not "final" need not be
published or made available for inspection. However, where intermediate orders and opinions would
be useful to the public as, say, procedural precedents, agencies may wish to publish them or make
them available for inspection in the same manner as final orders and opinions.
An agency may withhold from publication or inspection final orders and
opinions "required for good cause to be held confidential and not cited as precedents."
If it is desired, however, to rely upon the citation of confidential materials, the agency should first
make available some abstract of the confidential material in such form as will show the principles
relied upon without revealing the confidential facts.
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The last three words of section 3(b) "and all rules" include
"rules addressed to and served upon named persons in accordance with law" which are
excluded from the publication requirement of section 3 (a) (3). See H.R. Rep. p. 50, fn. 7 (Sen. Doc.
p. 284). Thus rules involving corporate mergers and reorganizations where all the parties are served
need not be published in the Federal Register pursuant to section 3 (a) ; instead the provisions of
section 3 (b) apply. It is sufficient, therefore, if such rules are made available for public inspection.