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"(4) 'United States person' means a citizen of the

United States or an alien lawfully admitted for perma

nent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(20)), an unincorporated association a substan

tial number of members of which are citizens of the United States or aliens lawfully admitted for perma

nent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association that is a foreign power, as de

fined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a));

“(5) 'working days' means every day excluding Saturdays, Sundays, and Federal legal holidays; and

"(6) organized crime' means those structured and disciplined associations of individuals or of groups of individuals who are associated for the purpose of obtain

ing monetary or commercial gains or profits, wholly or in part by illegal means, while generally seeking to protect and promote their activities through a pattern

of graft or corruption, and whose associations generally

exhibit the following characteristics:

"(A) their illegal activities are conspiratorial,

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"(B) in at least part of their activities, they commit acts of violence or other acts which are

likely to intimidate,

"(C) they conduct their activities in a methodical or systematic and in a secret fashion,

"(D) they insulate their leadership from direct involvement in illegal activities by their organizational structure,

"(E) they attempt to gain influence in government, politics, and commerce through corruption, graft, and illegitimate means, and

"(F) they engage in patently illegal enterprises such as dealing in drugs, gambling, loansharking, labor racketeering, or the investment of illegally obtained funds in legitimate businesses.".

Senator HATCH. We will call upon our first witness, Mr. Jonathan Rose, the Assistant Attorney General in charge of Federal information policy. It is only appropriate that we begin these hearings with the Assistant Attorney General, Jonathan Rose, whose service as the head of the Office of Legal Policy has been a critical component of the effort to forge a beneficial balance in FOIA reform.

Mr. Rose came from his partnership in Jones, Day, Reavis & Pogue to his present position. In earlier administrations, however, he had served with distinction as an Associate Deputy Attorney General and as Deputy Assistant Attorney General for Antitrust. We look forward, John, to hearing from you for the third time in this cycle of hearings leading up to a sensible FOIA reform. So, we will turn the time over to you.

STATEMENT OF JONATHAN C. ROSE, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF JUSTICE

Mr. ROSE. Well, thank you, Mr. Chairman. I notice you have a long list of witnesses this morning, so I will try to briefly summarize my prepared statement and ask that you insert the full statement in the record.

I am pleased to appear before you today in support of S. 774, a bill to amend the Freedom of Information Act. I am very hopeful, with the efforts at compromise that you have described on the part of you and Senator Leahy, that this year we will finally see a bill enacted into law.

I appeared before this subcommittee twice in 1981 to discuss the administration's proposed amendments to the FOIA, and it was for the reason that you had worked so diligently and so hard with your colleagues to produce a compromise that the administration did not resubmit a new bill this year, but rather deferred to the work that you had already done in the last Congress.

I told you then and I emphasize today that this administration is firmly committed to the faithful implementation of the Freedom of Information Act by all Federal agencies. We strongly support the basic purpose and philosophy of the act to inform the public as fully as possible about the conduct of its Government in order to protect the integrity and effectiveness of the Government itself. We are fully committed to carrying out the philosophy and spirit of the act.

As you know, there is a long history of proposals to amend the FOIA. In the years following the substantial broadening of the act in 1974, the Department of Justice and the Government as a whole began to experience serious problems with some of the requirements and language of the FOIA.

In 1979, following testimony before the Congress, the Carter Department of Justice prepared a series of proposed amendments to the FOIA, recommending very substantial changes in the act.

When this administration assumed office, the Department of Justice began an independent review of the problems that FOIA has raised. We concluded that the FOIA has indeed created serious problems for the Federal Government.

However, we also found, as serious as these problems were, that the problems tended to be narrow ones that could be remedied without a wholesale revision of the act. Accordingly, in October 1981 I appeared before this subcommittee to present the administration's proposed amendments.

Many of the administration's proposals were soon incorporated into the existing FOIA reform legislation, S. 1730, that you had introduced only 1 month before. Commendably, you carefully engrafted our proposals onto the provisions of S. 1730, producing a set of proposed amendments to the FOIA that were drawn as narrowly as possible.

You were ably assisted in this effort by Senator DeConcini and others, who shared our concern that our efforts to correct the deficiencies of the act should not inadvertently infringe upon the overriding purpose of the act.

The final version of S. 1730 was one of the most carefully drafted examples of remedial legislation that we have seen. We at the Department found that the bill redressed most, although not all, of the serious problems we had encountered with the FOĨA.

Similarly, the various interest groups that had opposed any amendments at all to the act seemed to concede that the bill was a responsible and even-handed approach to the reform of FOIA.

The best evidence of the success of Senators Hatch, DeConcini and Leahy came in May 1982 when the full Senate Judiciary Committee approved S. 1730 by a unanimous 17 to nothing vote.

The present bill, S. 774, is identical to your bill of the last Congress. We continue to strongly support this bill and believe it represents a successful compromise between the Government's need to maintain the confidentiality of important law enforcement information and the public's right to know about the operations of their Government.

S. 774 also contains many needed procedural reforms in the FOIA, including measures that would permit businesses that submit confidential information to the Government to receive notice of its impending disclosure, allow the Government to recoup a greater portion of the costs of processing the many FOIA requests, and create more realistic time limits for the Government to respond to FOIA requests.

Although all of these proposed amendments are familiar to the subcommittee, I would like to take a few minutes to summarize the need for just some of them.

On the subject of law enforcement, the FOIA has become a major problem. The FBI has found that 16 percent of the FOIA requests that it receives are from known or suspected criminals.

In the case of the Drug Enforcement Administration, this number is even higher. Fully 60 percent of the FOIA requests that the DEA receives are from imprisoned or known drug traffickers. The frequency with which criminals use the FOIA is an indirect indicator of its usefulness to them. However, there is also direct evidence of the harmful effects that the FOIA has had upon law enforcement.

In the course of the hearings held last Congress on S. 1730, the Department provided to the committee a list of over 200 document

ed cases where the FOIA had had a harmful effect on law enforcement activities.

Moreover, in an executive session of this subcommittee, Director Webster of the FBI provided many additional examples of the use of the FOIA by criminals, terrorist groups, and hostile foreign intelligence agencies.

In February 1982, the DEA released a study it had conducted that found that 14 percent of the DEA's investigations were aborted, narrowed, compromised, or significantly complicated by the FOIA.

With your permission, Mr. Chairman, I will submit for the record today copies of both the list of cases where the FOIA has harmed law enforcement as well as the DEA study.

The problems that the FOIA creates for law enforcement agencies become especially acute when organized crime uses the act to discover what the Government knows about it.

Organized criminal groups engage in a wide range of illegal activities and often have a long institutional memory. As a consequence, otherwise innocuous information that the Government discloses under the FOIA to a member of an organized crime family or a drug trafficking conspiracy can often be pieced together with information already known to the requester to form a mosaic that reveals the identities of the Government's confidential informants or the scope of the Government's investigation.

As explained more fully in the detailed analysis of S. 774 that accompanies my testimony, the Department of Justice believes that this bill will go a long way toward closing this very critical gap in the Government's ability to maintain the confidentiality of its law enforcement files.

Finally, Mr. Chairman, I will skip over to the bill's commercial provisions, which we find very salutary in that they, for the first time, will give a business the statutory right to label the information that it submits and receive notice and opportunity to contest the release of the information prior to its release.

There was one fairly famous example of the Monsanto Co. having an entire secret formula released inadvertently, I believe, by one Government agency. I think this is a minimal reform which is long overdue.

The FOIA's unrealistic time limits have also caused serious problems for the Government and FOIA requesters alike. The short 10day time limit imposed upon agencies responding to and processing requests often forces agencies to respond prematurely or hurriedly. FOIA requesters, too, are dissatisfied with the present time limitations which prevent agencies from meeting statutory deadlines and occasionally have caused needless litigation.

Moreover, the first in, first out system established by the FOIA requires agencies to place even small requests at the end of the agency backlog, preventing them from acting quickly even in cases where a timely response is necessary.

We endorse S. 774's approach to this problem, which establishes more realistic deadlines to guide agency conduct while simultaneously providing for accelerated consideration of FOIA requests made by the news media and others who can demonstrate a need for expedited access to Government records.

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