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BUSINESS CONFIDENTIALITY PROVISIONS. We do not dispute the essential fairness of the provisions in either S. 774 or S. 1034 requiring notification of companies when confidential information they provide the government becomes the subject of an FOIA request. However, such amendments should only be enacted with the understanding that the provisions cannot be used to delay compliance with legitimate requests under the FOIA. The Society feels the provisions of S. 1034 provide the essential fairness needed, while eliminating unnecessary notice and undue delay.

B(3) EXEMPTIONS: THE BACKDOOR APPROACH. The FOIA

is truly Congress' child and Congress is long overdue in stopping the outrageous nibbling at the FOIA through the use of the b(3) exemption. This exemption excludes from the FOIA's mandatory disclosure requirement information "specifically exempted from disclosure by statute." The principle problem has come because these bills are sheparded through congressional committees having nothing to do with the FOIA. This situation demands attention, and Section 8 of S. 1034 offers the admirable proposal of having all such bills pass through the congressional committees with FOIA oversight and of having advance publication in the Federal Register. The Society also urges Congress to look at the existing b(3) exemptions with an eye to modifying or repealing them. Those Congress finds justified should be codified So the press and public know they are there.

LAW ENFORCEMENT: S. 774, while offering language far narrower than that proposed in the last session of Congress, would exempt information now available under the FOIA and provide additional protection for law enforcement agencies' confidential sources. Although Congress appears to be

convinced of the need for change, and the Society has never questioned the need for some confidentiality of sources, the FBI simply has not made its case that the numerous changes in S. 774 are needed. In lobbying for expanded exemptions, the FBI has refused to make its case in public, presenting only a slide show for private official audiences that reportedly expounds the questionable "Mosaic Theory." Judge Webster and the FBI at one time agreed to let media representatives see the show, and then backed out. We are at a loss to understand why. The Society is certainly willing to meet further with representatives from law en forcement agencies to reach an acceptable compromise, but for the time being, we feel the case for a broader exemption has not been made.

As working members of the news media, we can certainly appreciate the value and need for confidential sources. At Monday's hearings, the Chairman and Assistant Attorney General Rose engaged in a colloquy on why we in the press, who so value our confidential sources, cannot understand the need for confidential sources in law enforcement agencies. We have never questioned the need for some confidentiality. But confidentiality is not automatic. The press is specifically protected by the First Amendment, yet we have still been required to make our case state by state and court by court. (The reporter's privilege has been recognized by statute or court decision in 36 states and in 11 of 12 federal circuits). We have also learned that sources tend not to believe our pledges of confidentiality if we go around saying as the FBI has done that confidentiality cannot be assured. The simple fact is that the FBI has not shown publicly (and perhaps not privately) that any infor

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mant's identity has been revealed as a direct result of a proper agency response to an FOIA request under the existing exemptions. The FBI has simply not made its case that the current b(7) (D) exemption is not enough and that the broader exemptions of S. 774 are needed.

the FOIA

ORGANIZED CRIME: S. 774 would add a section to of the Attorney

exempting, at the discretion

the

General, documents compiled in a lawful investigation of organized crime. The Society does not believe that such a moratorium, proposed for either five or eight years is wise and justified. We believe it necessary for the public to be able to monitor the activites of organized crime and government's fight against it and fear a moratorium could provide the agency with a 5-year opportunity to hide its botched jobs or embarassing (but perhaps "lawful") mistakes. The Society has pending an FOIA request to learn more about the FBI's argument for the moratorium and we believe further deliberation is needed before any such proposal is approved.

The

SECRET SERVICE: S. 774 would exempt the protective functions of the Secret Service from the FOIA. Society opposes a special exemption for the Secret Service because the case for its need has not been made. In addition, the argument for this exemption is weakened, we feel, by decisions such as the one I described earlier exempting from disclosure the public expenditures on the homes of former presidents and vice presidents.

TECHNICAL DATA: S. 774 proposes a new exemption for technical data. The Society is concerned that such an exemption for technical information could be used to justify. a broader exemption for scientific data. We believe the government's usual classification procedures, and not the FOIA, is the proper way to safeguard this information. Mr. Chairman, I wish to thank you for the opportunity to present our views and give you our congratulations for the

bipartisan

spirit of

reasonable

compromise that has marked this session's discussions of the

FOIA.

4BLG3H

The CHAIRMAN. We will now have Mr. Allan Adler, legislative counsel of the American Civil Liberties Union, and Dr. Page Putnam Miller, director of the National Coordinating Committee for the Promotion of History. You can both come around, if you will.

Is Dr. Miller here?

Dr. MILLER. Yes.

The CHAIRMAN. If it is agreeable, we will put your entire statement in the record, Mr. Adler and Dr. Miller. If you could take about 10 minutes and give us the highlights, we would appreciate it.

STATEMENT OF A PANEL CONSISTING OF ALLAN R. ADLER, COUNSEL, CENTER FOR NATIONAL SECURITY STUDIES, ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION; AND PAGE PUTNAM MILLER, DIRECTOR, NATIONAL COORDINATING COMMITTEE FOR THE PROMOTION OF HISTORY

Mr. ADLER. Thank you, Senator. On behalf of the American Civil Liberties Union, I want to thank you for the opportunity to appear before you today. We were similarly privileged during the last Congress when the subcommittee took up the subject of the Freedom of Information Act, and so in the interest of conserving time, I will just refer you to the published record of those hearings for our views on the inestimable value of the Freedom of Information Act as an effective tool of public accountability and a tangible measure of our commitment to having a government that governs by the informed consent of its people.

With a few exceptions that we discuss in our testimony, the ACLU considers S. 774, last year's compromise bill, to be an acceptable accommodation of the concerns raised by the Reagan administration and others in connection with the need for more flexibility in administering the act and with respect to certain problems that the administration has had with respect to withholding exempt information.

However, the ACLU's position in this regard is predicated on two important assumptions. The first is that there will be no efforts to add further impediments to access to the bill, and the second is that an objective statement of legislative intent will be produced through a cooperative, bipartisan effort, confirming the general understandings reached in last year's discussions regarding the meaning of the individual provisions in the compromise bill.

We emphasize, Mr. Chairman, that the foregoing considerations are particularly important with respect to our continued support of the law enforcement amendments in S. 774.

There are other provisions which we would discuss only briefly here. We believe that they are not adequately justified on the record as amendments to the Freedom of Information Act, and we question the way in which they have been drafted and the purpose that they would serve in their present form.

Those amendments deal with fair-value fees or royalities for commercially valuable technological information, the necessity of court rulings on violations of applicable time limits in the act, manuals and examination materials protected by exemption 2, and the

"could reasonably be expected" language added to the (b)(6) amendment for personal privacy.

We would like to submit for the record a supplemental memorandum explaining our views on these provisions, with the chairman's permission.

The provisions in S. 774 which give the ACLU particular cause for concern relate to technical data and to the notion that certain individuals should be excluded from use of the act.

With respect to technical data, we strongly opposed the proposed new exemption for technical data that is subject to the restrictions of the export control laws on two basic grounds.

The first is that the denial of public access to government information on national security grounds should be accomplished only through proper classification pursuant to an executive order, as provided in exemption 1 of the Freedom of Information Act.

Given the more than adequate protection afforded by this authority, we see absolutely no justification for seeking additional authority to withhold unclassified information on national security grounds from the public.

The second basis for our opposition is that assuming, without conceding, that an alternative to classification should be available to deny public access to certain technical data and agency records, we believe that the Export Administration Act and the other laws currently framing the statutory export control scheme are totally unsuited to the task of serving as exemption standards under the Freedom of Information Act.

As the Supreme Court has repeatedly emphasized, disclosure, not secrecy, is the dominant objective of the Freedom of Information Act, and the Act's exemptions must be narrowly construed.

Yet, the commodities control list and the militarily critical technologies list, as well as the U.S. munitions list, which are compiled respectively by the Commerce and Defense Departments and the Department of State, and are intended to provide definitive standards of reference for imposing national security export controls on technical data, have been roundly criticized by industry, science and Government officials in terms of the lists' failure to focus narrowly on the kinds of technologies that should be properly subject to national security export controls.

For example, a report issued last month by the Export Administration Subcommittee of the President's Export Council labeled the commodities control list "vague and convoluted, requiring the interpretive expertise of both lawyers and engineers."

The same report, characterizing the classified revised draft of the militarily critical technologies list, concluded that it was "presently too broad, including obsolete, widely available and nonmilitary technologies."

Presently, hearings are underway in both the House Foreign Affairs Subcommittee on International Economic Policy and Trade and the Senate Banking Subcommittee on International Finance and Monetary Policy to consider renewal of the Export Administration Act, which, by statute, is to expire in September of this year. At hearings in both of these subcommittees, one witness after another has offered similar criticisms about the sweep and scope of restricted technologies under these laws. I refer you in our testimo

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