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regulations or statutes, then Exemption 2 exempts the material from mandatory disclosure." Id. at 1074.

The ACLU believes that the Crooker construction of Exemption 2 created a viable working standard under which the confidentiality concerns embodied in the proposed amendment can be met. Any change in the current exemption language is unnecessary and will only reopen potentially divisive judicial inquiry into the meaning of the exemption as amended by the proposed additional language. This process would be bound to lead to further confusion concerning protection of agency manuals and instructions.

With respect to law enforcement manuals, moreover, any lingering uncertainty over the government's ability to protect legitimate confidentiality interests would be eliminated through the proposed amendment to Exemption 7 (E) in Section 10 of S.774. The ACLU does not oppose the proposed change in the latter exemption, which is specifically intended to afford protection for law enforcement manuals and instructions if disclosure could reasonably be expected to risk circumvention of the law. In light of this amendment, the proposed amendment to Exemption 2 is largely redundant.

The ACLU continues to question whether the other materials that are referenced in subparaghs (A) and (B) of the amendment to Exemption 2 require any further protection than the exemption already affords. If the members of the Subcommittee and the full Committee should determine that there is some merit in making explicit reference to these kinds of materials, the concerns of the ACLU would be substantially met if the legislative history of the amendment made it clear that:

*the use of the word "jeopardize" in subparagraph (A) is intended to require the agency to show that investigations, inspections, audits, or negotiations are likely to fail in their respective purposes if the documents at issue are disclosed;

*subparagraph (A) is not intended to exempt internal agency guidelines which allow members of the public to conform their actions to an agency's understanding of the law, or "secret law"; and,

*subparagraph (B) with respect to examination materials used solely to determine individual qualifications for employment, promotion, or licensing, is simply intended to bring the exemption into conformity with a similar exemption under the Privacy Act, 5 U.S.C.$552a (k).

Personal Privacy Exemption Standard (Section 9)

In its present form, Exemption 6 of the FOIA authorizes agencies to deny public access to matter that are "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

S.774 would change Exemption 6 to authorize withholding of matters that are "records or information concerning individuals, including compilations or lists or names and addresses that could be used for solicitation purposes, the release of which could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy.

The ACLU has no quarrel with the first change in the present standard, eliminating the threshhold "similar files" test to make it clear that the exemption applies to all truly personal information, regardless of the nature of the file in which it is found. This is consistent with the Supreme Court's holding in U.S. Department of State v. Washington Post Co., 456 U.S. 595 (1982) and we believe it to be a reasonable amendment.

Similarly, we do not oppose the proposed additional language which would make it clear that lists of names which are sought for commercial solicitation purposes are subject to the exemption. This amendment is consistent with the balance struck between the decisions in Wine Hobby USA, Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974) and Disabled Officers Ass'n v. Rumsfeld, 428 F.Supp. 454 (D.D.C. 1977), aff'd without opinion, 574 F.2d 636 (D.C.Cir. 1978), wherein the former case denied access for commercial solicitation purposes alone, while the latter permitted disclosure to nonprofit organization established to assist members in pursuing benefits and advocating their interests nationally.

However, the ACLU is strongly opposed to the third change in the exemption which would substitute "could reasonably be expected to" for "would" as a standard for probability with respect to whether "a clearly unwarranted invasion of personal privacy" arises from disclosure.

There is absolutely no justification for altering the current balancing standard, which has been consistently applied by the courts since the FOIA was first enacted in 1966. The body of case law which this proposed amendment would undermine includes a 1976 Supreme Court decision, which described the present standard in Exemption 6 as "a workable compromise between individual rights 'and the preservation of public rights to Government information."" Department of the Air Force v. Rose, 425 U.S. 352, 381 (1976). The Supreme Court did not swerve from this view when it again had occasion to consider Exemption 6 last year in the Washington Post case, supra.

No problem has been identified by the proponent of this change which justifies its adoption in law. It would only serve to work mischief with established judicial interpretation of the exemption, and we strongly urge its deletion from S.774.

Center for National Security Studies

May 20, 1983

The Honorable Patrick Leahy

United States Senate
Washington, D. C. 20510

Dear Senator Leahy,

In connection with my testimony concerning proposed amendments to the Freedom of Information Act, which I presented on behalf of the American Civil Liberties Union on April 21 before the Senate Judiciary Subcommittee on the Constitution, you asked me to respond to written questions regarding the proposed FOIA exemption in S.774 for technical data which is subject to federal export restrictions. We respectfully submit the attached responses to those questions and request that they be included in the hearing record.

Sincerely,

Allan Adler

Allan Adler

Legislative Counsel

122 Maryland Avenue N.E. Washington, D.C. 20002 • (202) 544-5380

A project of the ACLU Foundation and the Fund for Peace.

Similarly, we do not oppose the proposed additional language which would make it clear that lists of names which are sought for commercial solicitation purposes are subject to the exemption. This amendment is consistent with the balance struck between the decisions in Wine Hobby USA, Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974) and Disabled Officers Ass'n v. Rumsfeld, 428 F.Supp. 454 (D.D.C. 1977), aff'd without opinion, 574 F.2d 636 (D.C.Cir. 1978), wherein the former case denied access for commercial solicitation purposes alone, while the latter permitted disclosure to nonprofit organization established to assist members in pursuing benefits and advocating their interests nationally.

However, the ACLU is strongly opposed to the third change in the exemption which would substitute "could reasonably be expected to" for "would" as a standard for probability with respect to whether "a clearly unwarranted invasion of personal privacy" arises from disclosure.

There is absolutely no justification for altering the current balancing standard, which has been consistently applied by the courts since the FOIA was first enacted in 1966. The body of case law which this proposed amendment would undermine includes a 1976 Supreme Court decision, which described the present standard in Exemption 6 as "a workable compromise between individual rights 'and the preservation of public rights to Government information."" Department of the Air Force v. Rose, 425 U.S. 352, 381 (1976). The Supreme Court did not swerve from this view when it again had occasion to consider Exemption 6 last year in the Washington Post case, supra.

No problem has been identified by the proponent of this change which justifies its adoption in law. It would only serve to work mischief with established judicial interpretation of the exemption, and we strongly urge its deletion from S.774.

Center for National Security Studies

May 20, 1983

The Honorable Patrick Leahy

United States Senate
Washington, D.C. 20520

Dear Senator Leahy,

In connection with my testimony concerning proposed amendments to the Freedom of Information Act, which I presented on behalf of the American Civil Liberties Union on April 21 before the Senate Judiciary Subcommittee on the Constitution, you asked ne to respond to written questions regarding the proposed FOIA exemption in S.774 for technical data which is subject to federal export restrictions. We respectfully submit the attached responses to those questions and request that they be included in the hearing record.

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