Senator HATCH. Go ahead, Mr. Taft.

STATEMENT OF WILLIAM H. TAFT IV, GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE

Mr. TAFT. Well, thank you very much, Mr. Chairman. I will be brief and perhaps we will be able to get in any questions that you have. I have a short statement which I would like to submit for the record, and I will make it even shorter.

Senator HATCH. Without objection.

Mr. TAFT. I am very pleased to appear before you today, and I want to especially express the appreciation of the Department of Defense for the work that you, Mr. Chairman, and Senator Leahy and the other members of the committee have done on this extremely difficult subject over the past year.

I must say that I have followed the act for quite a while and I would not have predicted that any legislation would have been possible last year, although we hoped for some. You have developed an excellent bipartisan bill in the subcommittee. We strongly support it; we supported it last year and we support it this year.

We remain committed in the Department of Defense to the principles underlying the FOIA. Our record is, as you have kindly said, we think a good one, and we have attempted to preserve the proper balance between the public access to Government operations that is reflected in the current law and the need for the efficient running of the public's business and the preservation of national security.

The compromise bill, we think, improves that balance, and that is why we support it. I would like to address just a few of the general legal and operating concerns under the FOIA that we have.

In processing FOIA requests, a request most likely will find its way across the desk of at least one substantive expert in the Department and, in addition, perhaps consultation with other experts and with lawyers.

Costs are incurred in this process for computer research time, reproduction and the manpower resources allocated to the substantive review, search, legal consultation and response cycle.

While the act provides that only standard document search and duplication fees may be charged to the requester, the actual costs to the Department annually, based on the 1982 report to the Congress, were approximately $8.8 million last year, and that was up from the year before by a considerable amount.

The minimal cost recoupment allowed, together with the diversion of resources, is exacerbated by the act's authorization for any person to seek access to agency records. Currently, the act may be easily abused and, we would hope, the proposed legislation would prevent abuse.

We believe DOD funds should be sent to accommodate people who are using the act for its proper purposes. It is inappropriate, however, to extend taxpayer funds where we think those purposes are not proper or contemplated within the statute.

Many law firms representing commercial interests supplement discovery in litigation with FOIA requests in order to decrease the costs associated with litigation and to acquire records ordinarily

unavailable through the civil or criminal discovery process, or indeed simply to harass the Department.

We have seen this recently, where a law firm representing a client involved in a grand jury investigation regarding the DOD foreign military sales programs has submitted a FOIA request to the Department. That request was for every document of the Defense Security Assistance Agency since 1979-every one.

Senator HATCH. Some real good books could be written from that information.

Senator LEAHY. It would put you to sleep in a hurry.

Mr. TAFT. The process of going through and reacting, as is required under the statutory scheme, of course, would basically put that agency out of business for some months, if that was indeed what they were dedicated to do.

Senator HATCH. It costs millions and millions of dollars just to supply such sanitized records in great volume too.

Mr. TAFT. This example demonstrates-

Senator HATCH. How many examples like that do you have?

Mr. TAFT. We have a number. We had one that I think I mentioned when I was with you last time on the Trident submarine, a litigation case. There, a law firm had submitted a request for some 12,000 linear feet on that program, while we were in litigation.

There are a number of others. I think I just received one, in fact, the other day. And, of course, I only see personally the smallest portion. It also is not easy-and this is one of the points that I guess we need to focus on-it is not easy to tell under the statute whether someone is requesting information because he is in litigation or for other reasons.

You can request information indirectly. We have had many requests from people who turn out to be secretaries working in law firms with home addresses, and things like that, which we suspect are really part of the litigation process. That is one of the principal abuses that we have which your act addresses in some considerable

measure.

Another abuse is the use of the act by foreign nationals. Under the statute, foreign nationals are able to obtain unclassified but sensitive national security information. Recently 'a Norwegian citizen submitted a request for such documents.

The subject of this individual's request included very sensitive, classified information. We subsequently learned that the individual had been arrested and convicted for espionage based on his activities in Norway.

While we are aware of other requests that this individual has submitted, and have attempted to monitor carefully such requests, we cannot tell you what requests he may have submitted to field offices of DOD and elsewhere. We think that this is, again, one easy area where we can conserve resources by not allowing the U.S. taxpayer to subsidize request of foreign nationals.

Senator HATCH. Moreover, you do not even know whether he has made other requests for sensitive information under an assumed name or through friends or through surrogates.

Mr. TAFT. He may be doing that and that is a risk that we additionally take, but we would like to limit access, as your bill does, to U.S. citizens, or U.S. persons as they are defined in the bill.

A serious shortfall in the act that is of great concern to the Department is the requirement to release unclassified data relating to militarily critical technologies, and you mentioned this earlier this morning.

Certain technical data is barred from unlicensed export by the Arms Export Control Act or the Export Administration. The Arms Export Control Act empowers the President to regulate the important export of defense articles and defense services.

[Whereupon, Senator Leahy assumed the Chair.]

Mr. TAFT. Unless exempted by regulation, export of an item or list, including technical data, is unlawful without a license. In addition, under the Export Administration Act, regulation controls on the export of technical information are authorized for national security purposes.

A foreign national can invoke the FOIA to obtain information that could not be released under these other statutes. We believe that the conflict between these two statutes must be resolved, and therefor we welcome the fashion in which S. 774 proposes to do that.

In my statement submitted for the record, I reviewed a number of other issues that I will briefly cover, including the requests for personnel lists of the Department by commercial users who take advantage, essentially, of DOD computer lists for commercial solicitation purposes.

We do not see that this is something that the public should be subsidizing and we find no legislative history which suggests that the Defense Department should become a mailing house.

It is essential, in my view, that we work together to address the problems I have described here today and in my prior testimony before this subcommittee. These are the problems that we see with the act, S. 774, of course, would address many of our problems.

The basic thrust of the act is one that we support. I think we have an excellent record of providing information to the public, both under the act and, as was mentioned by a previous witness here, through the news division of the DOD Office of Public Affairs. Most reporters do not use the act. They know they do not have to because we respond promptly to requests submitted to the news division.

We support that purpose of the act and the value that it provides to our society in assuring an open Government is one to which we fully subscribe.

Thank you very much.

Senator LEAHY. Thank you, Mr. Taft. I might note that the Department of Defense receives a great number of FOIA requests. At the same time, it is the agency in Government with custody of the greatest number of classified documents, but DOD has been noted for its ability to meet the time limits contained in the current act.

Obviously, there have been some extraordinary circumstances and some extraordinary cases, like the Trident and some others that you have discussed here, that create problems. But you have been extremely successful in that, and I commend you for it.

To what do you attribute the Department's success in meeting these time limits? Is it solely just putting an enormous amount of personnel on it, or is it a philosophy, or what is it?

Mr. TAFT. We do put a large number of people on it. We take our responsibilities under the statute seriously. I have worked in a number of other agencies in the Government and dealt with others from the outside, and I think we do have a much larger number of people dedicated to this task.

I think the funding that we provide is adequate, but also, frankly, over the last 2 or 3 years I think there has also been a sense of pride. The word got out that the Defense Department did do this and we want to be sure that we keep on doing it, because once you are doing one thing right, then people will begin to watch to see if you keep that up.

So, we have challenged ourselves in the last 3 or 4 years to maintain the record that we had in prior years.

Senator LEAHY. Thank you. Part of your testimony last year went to the need for a new FOIA exemption for technical data which are not classified but still relate to sensitive defense or national security matters, and you posed the example, as I recall, of the naval nuclear propulsion technology.

Is it fair to say that you are most concerned with FOIA requests which involve the release of technical data that relate directly to defense weapons or that pose national security risks? Is that the type of technical data you are most concerned about?

Mr. TAFT. That is the type of technical data that we tend to have, and therefore that is what we have principally in mind when we talk of that.

Senator LEAHY. Is it also fair to characterize your problems to date as involving the release of documents such as technical plans, blueprints, and how-to manuals, and the like?

Mr. TAFT. Yes. We are somewhat concerned about those from the perspective of the commercial (b)(4) type of exemption as well, but when they are on the technical restriction list-the military technology list-then we would be concerned about them for that reason, too.

Senator LEAHY. That is the kind of technical data which should not be readily available under FOIA?

Mr. TAFT. We do not think so. It depends on the particular case, but that is an area where we have this concern, yes sir.

Senator LEAHY. To follow along on that, I just want to make sure that any exemption we create is not overly broad. As I understand the proposed exemption, any technical data which are subject to any Federal export restriction would be exempt for release under FOIA.

Now, given the matters that you and I have been discussing, I think there is general agreement about the advisability of their non-release or the reason for their nonrelease under FOIA. But the Commerce Department maintains a commodity control list under the authority of the Export Administration Act, and this restricts the export of products and related technical data.

One of the reasons for an export restriction could be to serve a foreign policy objective. It is not that the product itself or its technology is sensitive, but it may be that its destination is; say, Poland under the current situation.

But as I read the exemption, these products-and they literally could cover any and all products-and their related technical data

would be prevented from release under FOIA simply by virtue of being on the export restriction list.

Do you see that same far-reaching possibility, and is it your intent to prevent the release of all such data?

Mr. TAFT. Our intention is to do away with the conflict between the statutes. As to what reason an article was on the Commerce Department's list, whether it was a foreign policy reason or a national security or a temporary reason or a permanent one, I think it was not our intention to look into that and to make a different rule for the items that were on it for one reason rather than another.

The fact that there is a restriction on the export of the information would, in our mind, be the policy that is established, for whatever reasons, pursuant to the statutes that the Commerce Department administers. The President also, of course, has some specific responsibilities in that regard.

We think that if that statute is to be effectively carried out, we ought not to be releasing information in the United States where the data itself is prohibited from export. The idea of making it generally available in the United States would essentially frustrate the export restrictions.

Senator LEAHY. I think your answer points out some of the real difficulties I have in interpreting the current language because if we narrow our focus to items that appear on the commodity control list for national security reasons, then the list still encompasses thousands of products, and related technical data. Most of these products have a commercial rather than a defense application and they are under no domestic restrictions.

So, does it make any sense to deny access under FOIA to technical data that are readily available in the domestic market based solely on the presumption that it is subject to restriction by another law, say an export law?

Mr. TAFT. Well, I think one of the reasons we are discussing this is that it is an extremely tricky area.

Senator LEAHY. Obviously, I am trying to develop some kind of legislative history because, you know, I am wondering if we are dealing with a narrow class of data which are not only prevented from export, but are also not freely available in the domestic market.

Mr. TAFT. Yes. Well, what I was going to get to was that a lot of this information that we have, particularly the technical information, we want to have it made available in the scientific community, let us say, and in the engineering community so that competition can exist and people will be aware and new ideas will develop based on the information that is available.

Our research community and industrial community work best when it is available and we have in place a system to make this information available to qualified contractors. At the same time, we do not want it to be available to persons who do not have a need for access. We are frequently tempted to classify that information because we feel that its availability in foreign countries, particularly, let us say, to the Soviet Union, would be dangerous to us, but we trade off against that frequently and do not classify it because we want to have it known to the community here or treat