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FREEDOM OF INFORMATION REFORM ACT

THURSDAY, APRIL 21, 1983

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 2:23 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senators Leahy, Thurmond, and Grassley.

Staff present: Randall Rader, general counsel; Philip Barker, professional staff member; and Claire Greif, chief clerk.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. I apologize for being late, but we have been working on budget problems all day, and the Budget Committee is meeting now and I am supposed to be there. But let us begin these hearings right now.

Today will be the final hearing in a process of inquiry that began nearly 2 years ago on January 15, 1981. In these intervening months, we have learned a great deal about the strengths and weaknesses of the Freedom of Information Act.

More important, however, we have arrived at an agreement to amend some of the most glaring weaknesses, and that agreement is embodied in S. 774, which is the subject of this hearing.

These hearings have established that the Freedom of Information Act-I will call it FOIA from here on in-is intended to hold the Government accountable to an informed electorate.

FOIA itself, however, must be held accountable when it frustrates rather than fulfills its mandate. These hearings have produced a wealth of evidence that FOIA has not always operated to produce a more efficient and responsive Government.

Instead, FOIA has afforded organized criminals and other lawbreakers a convenient way "to evade criminal investigation or to retaliate against informants," to quote from the Attorney General's 1981 task force on violent crime.

A study of the Drug Enforcement Administration in 1982 documented that 14 percent of DEA's investigations were aborted or significantly compromised by FOIA-related problems. Unfortunately, FOIA in this case is not making Government better, but making Government less able to protect its own citizens.

The same frustration of FOIA's purposes occurs when, instead of informing citizens, it becomes a tool for violating their privacy. FOIA has also provided some businesses with a means to acquire trade secrets or other confidential information about a competitor. FOIA has also opened defense technical data in the form of blueprints, repair manuals, design criteria, and research results to any person who files a request with the Defense Department.

FOIA also has been employed by litigants as a discovery device to avoid triggering reciprocal discovery or otherwise to circumvent discovery rules. Moreover, the bulk of all these abuses of FOIA are fully subsidized by taxpayers. Less than 2 percent of the cost of complying with FOIA is recovered in user fees.

Thus, even at the Drug Enforcement Administration, where 60 percent of all requests are from imprisoned or known drug traffickers, the taxpayer is bearing the substantial cost of administering the act.

This recitation of instances when FOIA has frustrated its broader purpose of contributing to better Government is not meant to be exhaustive, but rather indicative of the need to carefully balance our information policy.

No one questions the obvious virtues of an open Government, nor should anyone question the Government's obligation to protect the identities of confidential informants. No one questions the value of an informed citizenry, nor should anyone question the Government's obligation to respect the privacy of those same citizens. No. one questions the merits of a free information policy, nor should anyone question the need to protect defense technical data.

S. 774 is a substantial step toward restoring the balance between public access to Government information and efficient execution of necessary and occassionally confidential Government functions. This bill achieves this balance in a manner that preserves both goals of the act-a more informed citizenry and a responsible and effective Federal Government.

We have a statement from the chairman of the full committee, Senator Thurmond, which we will insert in the record at this point. [The following was received for the record:]

PREPARED STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR From the STATE OF SOUTH CAROLINA, Chairman, Committee ON THE JUDICIARY

Mr. Chairman, this marks the second of 2 days of hearings by the Subcommittee on the Constitution on proposed reforms of the Freedom of Information Act. Legislation virtually identical to that being considered by this subcommittee today was approved unanimously by the full committee last year following extensive efforts to develop a bipartisan compromise.

Mr. Chairman, I continue to support your outstanding efforts on this important legislation and look forward to being able to process this in the near future in the full committee. I believe that the present legislation is sensitive to the wide variety of legitimate interests that have been expressed by various organizations on the Freedom of Information Act-law enforcement groups, civil liberties groups, journalistic groups, business groups, and others. It is legislation that, in my opinion, will be supported by the vast majority of members in the full committee; I would not be surprised to see it earn the support again of every member of the committee.

S. 774 would attempt to reassert a proper balance between what are often competing objectives of government. On the one hand, it is important that our national government be an open and accountable one; the people of this country should have the opportunity to have access to the papers and records and reports of their gov

ernment. The Freedom of Information Act has been successful in promoting these important objectives.

On the other hand, there are occasional limits that must be respected to this general rule of openness and disclosure. There are circumstances-they are the exception not the rule-when there is an equally legitimate governmental interest in confidentiality and nondisclosure. These interests arise in the context of certain law enforcement records, certain records relating to trade secret information of private businesses in the possession of the government. There is little question that the Freedom of Information Act has increasingly resulted in the breach of confidentiality of this information in recent years. The purpose of S. 774 is to draw just a bit more clearly the line between the vast bulk of government records that ought to be subject to disclosure under the act and the small, but important, class of records that ought to be protected from this.

This is a sometimes difficult balance to draw, but I believe that it has been largely achieved in S. 774. Again, I commend the chairman of the subcommittee for his efforts in accomplishing this.

Senator HATCH. I want to personally commend the distinguished Senator from Vermont for the effective and good work that he has performed in helping us to fashion this particular bill.

I just want to lend my personal respect to him, because arriving at a beneficial balance in Federal information policy is a difficult problem. We do want to achieve this balance in the interests of all concerned. So, at this time, we will turn to our distinguished friend from Vermont, Senator Leahy.

Senator LEAHY. Well, thank you, Mr. Chairman. I would ask to have my opening statement placed in the record because of the time constraints.

[The following was received for the record:]

PREPARED STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE

OF VERMONT

I want to begin this afternoon's session by complimenting the chairman for holding these very valuable hearings aimed at helping us to reach consensus on a number of changes to the Freedom of Information Act. These changes will benefit the Government, requesters and submitters of information, and the public in general.

We began these hearings on Monday with a distinguished list of witnesses, including Assistant Attorney General Jonathan Rose. Most of my questioning of Mr. Rose concerned the new Department of Justice guidelines with respect to fee waivers. First, Mr. Rose claimed that his January 1983 guidelines on waivers represented a condensing and clarifying of the Civiletti guidelines and not a major shift in policy. Then he testified that NBC newsman Carl Stern's application for a fee waiver had been originally denied because he had failed to mention that he wanted the requested documents for a news story.

Yesterday I received copies of correspondence which leads me to believe that Mr. Rose may have been either disingenuous on both of these points, or alternatively, that he is not too aware of how the guidelines are being read by the administration's own agencies or by the general public.

The letter I just received comes from the Department of Interior's Office of Surface Mining in response to a request for a fee waiver from the Environmental Policy Institute. The EPI had requested Interior Department documents and a fee waiver because it had been invited by Congressman Yates to testify during oversight hearings on the Surface Mining Act, and it needed the documents in preparation for the testimony. In the past, the EPI had routinely received similar documents without charge. I would like to read the pertinent portion of the reply which EPI received from the Department of Interior concerning its fee waiver request.

"Since our February 16 letter, however, we have received further guidance from the U.S. Department of Justice [DOJ] on fee waiver requirements which requires more extensive information to justify a fee waiver. Before we can grant a waiver, we must determine that a request meets the twofold objectives for fee waivers established by DOJ: (1) the fostering of the disclosure of nonexempt agency records where it will primarily benefit the general public and (2) the preservation of public funds where there will be insufficient public benefit derived from disclosure.

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"Before we can make a decision on a request for any future waiver, we ask that you provide information in response to the following questions so that we can determine if granting the waiver or a reduction in fees is in the public interest:

"a. What is the genuine public interest in the subject matter of the documents for which a fee waiver is sought?

"b. What is the value to the public of the records themselves?

"c. Is the requested information already available in the public domain?

"d. Do you have the knowledge and ability to disseminate the information to the public effectively? Please describe specifically your qualifications, the nature of your project or research, and the purposes for which you intend to use the requested materials.

"e. Do you have any personal interest that may reasonably be expected to benefit from disclosure? The magnitude of any such personal interest should be described sufficiently to allow us to compare it with the magnitude of any discernible public benefit, since a fee waiver is proper only if the benefit to the general public is pri

mary.

"These questions must be answered for each request for a fee waiver because each will be considered on a case-by-case basis. We cannot grant 'blanket' waivers."

In my mind, if the current law gives federal agencies the discretion to engage in these kinds of shenanigans, the current law needs to be changed to implement the intent Congress had in 1974 when it tried to wipe out these kinds of practices.

I should point out for the record that the Department of Interior decided not to apply new policies to FOIA requests pending at the time this letter was written. But in my mind that only underscores the point that the new Department of Justice guidelines are a dramatic change from past Department policies.

Senator LEAHY. I appreciate the comments the chairman has made. I think law enforcement, more and more people realize, is not a partisan matter; it is a matter that involves all people in this country. I do not think criminals ever choose their victims based on their political beliefs, and we all have a stake in controlling crime in this country.

I think we have found some areas where FOIA can be improved, especially in the area of organized crime. As I have stated in other hearings similar to this, it is one thing when you are dealing with somebody who randomly sticks up a gas station or something like that.

It is something else when you are dealing with somebody with a multibillion-dollar operation and all the computer time, lawyers, accountants, experts, and everything else that that can hire. Then we are at an entirely different level of sophistication, and I think that we have to deal with our laws to reflect that sophistication. Thank you, Mr. Chairman.

Senator HATCH. Thank you, Senator.

Mr. Director, I really apologize for the delay this afternoon, and I apologize if I have to leave because of the Budget Committee.

The subcommittee's first witness today is the highly respected Director of the Federal Bureau of Investigation. Twice before in this cycle of hearings, Judge Webster has taken the time to inform this subcommittee of the difficulties posed for his law enforcement responsibilities by the Freedom of Information Act.

We appreciate the time commitments that you have made to this issue, and particularly to this subcommittee and, I think, to the country. We look forward, Mr. Director, to your insightful presentation here today and we will turn the time over to you.

STATEMENT OF HON. WILLIAM H. WEBSTER, DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION

Mr. WEBSTER. Thank you, Mr. Chairman, and Senator Leahy. I welcome this opportunity to once again discuss with you some of my concerns about the impact the Freedom of Information Act has had on the FBI's law enforcement mission. During the past few years, I have discussed these concerns before a number of congressional committees.

In February 1979, for example, I testified before a subcommittee of the House Committee on Government Operations on the difficulty the Bureau was experiencing under several provisions of the FOIA.

In June of that year, at the request of various oversight committees, I prepared a package of proposals to amend the act to address my concerns. Additionally, the FBI worked closely with the Department of Justice in preparing the administration's proposed amendments to the act.

In November and December 1981, I appeared before this subcommittee in open and in executive session to testify in support of the administration's proposed amendments. At that time, I pointed out that while they would not solve all of our problems, they provided some needed relief for law enforcement.

During that testimony, I made available for public scrutiny a document entitled "Impact of the Freedom of Information Act Upon the Federal Bureau of Investigation," dated December 11, 1981. With your permission, Mr. Chairman, I would like to submit another copy of that document for the record.

Senator HATCH. We will place that in the record, without objection.

[The following was received for the record:]

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