ed by companies without having to go through the clearance and access problems that are created by classifying information.

We think we move faster with it unclassified. That is not to say that we want to give it to the Soviet Union. We then fall back on these export controls. A lot of this information is unclassified.

Where we come in on the Freedom of Information Act would be in support of those export controls. That is where we stand. That would involve some information which is not classified, for the reasons I gave.

Senator LEAHY. It is an extremely difficult area, as your answers show. I talked of information, while not classified, is restricted to an approved list of contractors and potential contractors.

So, the data is controlled in that case even for domestic use, to say nothing about export. It is already controlled here domestically, and understandably so. Would that be the type of data, because of its sensitivity-the same sensitivity which led to domestic control, as well as its foreign use-is that the kind of data where there is a legitimate concern for release under FOIA?

Mr. TAFT. Yes, that is precisely the type of information we have in mind that would be different from where we are now. Classified information is exempt already. It is the unclassified information, and we think the reference to the Export Control Act is a reasonable one in that field.

Senator LEAHY. Could we draft this in such a way that we take care of your problem by exempting just that kind of sensitive data, without having to include all other products and technical data that are subject to export control, or do we still leave a hole there somewhere?

Mr. TAFT. Well, I think that we could look at that and work with the staff to see what we could do. It is not an easy thing to do and I think we need to be very careful when implementing the legislation that we deal with the problem we are addressing.

Right now, I think we have a problem. We do not want to go too far, but we do want to deal with it.

Senator LEAHY. I posed that last question not expecting you to come back with a total answer. I want more for you to think about it, and I will take up your offer to work with your staff on it.

I think if somebody just turned to me right now and told me to draft language to cover all the problems we have raised, I am not sure just how I would sit down and draft it to handle all those conflicting problems.

So, I want to make some legislative history here, but also to raise some of the questions. I think what I might like to do, Mr. Taft, is to work with your office some more on this.

There is so darned much material out there. We do not want to get into a position where everything just automatically is put off limits. But we also do not want to put ourselves in a position where, willy-nilly, any foreign government or foreign operative or anybody else can just come walking through our files.

The balance, again, with national security matters is very, very difficult. I just hope that we do not write such a blanket exemption that, in its use, it becomes something that makes no sense at all and the pendulum goes too far back the other way.

Mr. TAFT. Well, it certainly is not our intention to 2o that, and we will be glad to work with you to see that we do not and you do not.

Senator LEAHY. Well, I appreciate that. I also compliment you again on the speed with which you answer requests.

Senator Hatch has some questions, so I will turn to his counsel. Go ahead.

Mr. RADER. Senator Hatch had several questions which Senator Leahy has already effectively covered, but just perhaps, I could pose one or two others.

As you have mentioned, you currently release technical data under certain circumstances at present; for instance, to bidders on procurement contracts. Will the new section 560 in the bill change that policy at all, and what merits do you see in section 560?

Mr. TAFT. Section 560 is the section that requires setting up a system where we disseminate to various small companies, and so forth?

Mr. RADER. That is correct.

Mr. TAFT. I do not think, as a matter of practice, that it will require a substantial change in what we do now. We certainly welcome the authority for continuing to do that.

It is very much in our interest, we consider, to get this information out to as many types of qualified companies that are not going to give it to the other side as we can, because the more companies we have working on these problems, the better solutions they come up with. That is our system.

It has got to be open and it has got to be closed after a certain point, but not before a certain point. We welcome that section and, as I say, we do it already.

Mr. RADER. Senator Hatch also posed a hypothetical which he wondered if you could respond to. If the exemption proposed by this bill governing technical data were in effect and tomorrow a woeful accident were to occur involving defense technology; say the engine of an F-16 fell off over a residential area, killing many innocent people.

What would an outside investigator be able to learn about the technology that caused the accident using FOIA?

Mr. TAFT. Well, it would depend, I guess, a little bit on when the reporter was investigating. In the case of an accident, we always undertake a very detailed and sometimes quite lengthy investigation of the causes of it.

During the time in which that investigation is made, we will respond to general queries of the press, but we also keep the substance of the investigation confidential while it is going on.

Once the investigation is complete, our practice now is to reduce a summary of the report of the investigation to reporters. Often, that investigation has in it interviews with people which are obtained from them on a promise of confidence, and we would not release those.

But the practice has been to release a summary of the report, and our effort is to make available to the press, if it is the press, or to survivors or next of kin, if there were deaths in the accident, of course, whatever information we can, consistent with carrying out an effective investigation.

Mr. RADER. One final question. You have already mentioned that one reason that the information covered by the proposed technical data exemption is not classified is that you would like to distribute it to defense contractors.

Are there any further reasons why this sensitive data might not be classified?

Mr. TAFT. The classification of information carries with it a set of responsibilities for people who have access to that information. These are cumbersome. Where the information absolutely must be protected, we pay that price.

Where the price seems too high, we decline. It is that type of tradeoff-what is in the national security interest, to have that information out or not. That is the basis on which we classify information.

Mr. RADER. Thank you, Senator Leahy.

Senator LEAHY. Thank you. Mr. Taft, thank you very much. It was good having you here again.

Mr. TAFT. Thank you, Senator. We will look forward to working with the subcommittee.

Senator LEAHY. Thank you.

[Mr. Taft's prepared statement follows:]

PREPARED STATEMENT OF WILLIAM H. TAFT IV

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE - I AM PLEASED

TO APPEAR BEFORE YOU TODAY TO DISCUSS THE DEPARTMENT OF DEFENSE

(DOD) CONCERNS WITH THE FREEDOM OF INFORMATION ACT (FOIA).

AT THE END OF THE 97TH CONGRESS, THE FULL SENATE JUDICIARY COMMITTEE APPROVED A BIPARTISAN COMPROMISE PACKAGE OF AMENDMENTS TO FOIA. THE COMPROMISE APPROACH, NOW S.774, WOULD AMELIORATE MANY OF THE PRESSING CONCERNS OF THE DEPARTMENT OF DEFENSE REGARDING THE FOIA WHILE PRESERVING THE PUBLIC'S RIGHT OF

ACCESS. WE RECOGNIZE AND APPRECIATE THE SIGNIFICANT EFFORT
WHICH WAS MADE WITHIN THE COMMITTEE TO BALANCE CAREFULLY

THE COMPROMISE PROPOSAL. ABSENT LEGISLATIVE RELIEF, COMPLIANCE

WITH THE FOIA WILL CONTINUE TO DEGRADE THE DEPARTMENT'S

ABILITY TO DISCHARGE THE NATIONAL DEFENSE MISSION.

THE DEPARTMENT OF DEFENSE REMAINS COMMITTED TO THE PRINCIPLES UNDERLYING THE FOIA. OUR RECORD, WITH RESPECT TO THE IMPLEMENTATION OF FOIA, ATTESTS TO THIS COMMITMENT TO INSURE PUBLIC ACCESS TO INFORMATION CONCERNING DOD PROGRAMS AND POLICIES COMMENSURATE WITH NATIONAL SECURITY NEEDS. WE BELIEVE, HOWEVER, THAT A MORE EFFICIENT AND PRUDENT BALANCE CAN BE ACHIEVED BETWEEN PUBLIC ACCESS AND GOVERNMENT OPERATIONS THAN IS REFLECTED IN EXISTING

LAW. THE COMPROMISE BILL WOULD INJECT A RULE OF REASON INTO

THE FOIA TO EFFECTUATE SUCH AN IMPROVED BALANCE

THE DEPARTMENT OF DEFENSE HAS DEVELOPED A FOIA PROGRAM

LARGELY REGARDED AS A MODEL WITHIN THE EXECUTIVE BRANCH. MOST
OF THE 70,000 FOIA REQUESTS RECEIVED ANNUALLY BY THE DEPARTMENT
ARE HONORED WITHIN THE STATUTORY TIME PERIOD WITHOUT COMPROMISING
CLASSIFIED NATIONAL SECURITY INFORMATION OR OTHER EXEMPT DATA.
IN OPERATING UNDER THE ACT, THE PRINCIPAL COSTS ASSOCIATED WITH
TIMELY COMPLIANCE BY THE DEPARTMENT IS THE DIVERSION OF HUMAN
RESOURCES. THIS LOSS OF RESOURCES IS NOT SO MUCH OBJECTIONABLE
IN ITSELF AS BECAUSE THE BENEFITS ACCRUING TO THE FUBLIC ARE NOT
PROPORTIONATE. TODAY I WOULD LIKE TO ADDRESS THE GENERAL LEGAL

AND OPERATING CONCERNS UNDER THE FOIA INCLUDING SPECIFIC EXAMPLES.

IN PROCESSING FOIA REQUESTS, THE REQUEST MOST LIKELY WILL FIND ITS WAY ACROSS THE DESK OF AT LEAST ONE SUBSTANTIVE EXPERT AND, IN ADDITION, PERHAPS CONSULTATION WITH OTHER EXPERTS AND LAWYERS. COSTS ARE INCURRED IN THIS PROCESS FOR COMPUTER SEARCH 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 COST TO DOD ANNUALLY BASED ON THE 1982 REPORT TO THE CONGRESS