will order at this time that all statements will be placed in the record as though fully delivered.

Mr. Rose, I understand that the Justice Department, and specifically your office, has recently issued new fee waiver guidance under FOIA. What considerations prompted the issuance of these new guidelines?

Mr. Rose. Mr. Chairman, we found that when we came into office, we had very varying policies across agencies, at least their understanding of what the policy was. When you looked and found what existing guidance there was, it consisted of about a 30-page memorandum that one newsman who uses the act quite frequently at Justice, Carl Stern himself, has referred to as confusing and baffling.

We simply thought that a succinct statement of the current case law and the statutory requirements would be more helpful, and so we reduced it to approximately three pages and issued it as agency guidance. It was not meant to change existing law.

Senator HATCH. Well, I have read a great deal about this guidance in the press. To say the least, it has generated some controversy, so would you briefly summarize the substance of the guidance that you know has caused such a stir in the public mind?

Mr. ROSE. Yes; I certainly would be happy to do that. The new fee waiver guidelines merely reiterate the statutory standard for granting fee waivers, and provide a concise discussion of five considerations that govern their grant.

Briefly, these considerations are: One, whether there is a public interest in the subject of the requested records; two, whether the records are, in fact, informative or relevant to that subject; third, whether the requested record is already publicly available; four, whether the requester is able and intends to make the information available to the public; and, five, whether the requester is seeking the information for a commercial or other private benefit.

Each of these considerations are taken directly from the 22-page prior guidance and from the case law, and have been recognized by the courts as necessary to an informed fee waiver adjudication by agency officials who have, under the statute, that responsibility.

The guidelines inform requesters of the factors that guide agency determinations and help requesters present all relevant information at the outset to help avoid unnecessary delays or agency decisions which might be based on inadequate information.

Senator HATCH. Would you say then that the guidelines were not intended to impose new criteria or restrictions for fee waivers?

Mr. ROSE. That is correct We have a function under the statute to provide guidance to the agencies as to what the law and the case law is. If you are aware of the vast number of cases that come out per year on FOIA litigation, it is no wonder that some agency has got to be the repository of what the existing case law is.

This was simply meant to state in a succinct form for the agencies' guidance what the requirements are according to the court decisions.

Senator HATCH. If that is so, then why has there been such a stir in the media about your memorandum?

Mr. ROSE. Well, I never can, frankly, Mr. Chairman, understand why there is a stir in the media anytime one does anything about

the FOIA, whether you personally should regard it as a controversial matter or not.

We frankly did not view this as any kind of a controversial matter. Indeed, we did not view it as even newsworthy, but I think here is a case where the media has become a public interest group with regard to this act. So, anything you do with regard to it be comes automatically newsworthy, whether someone else might consider it newsworthy or not.

Senator HATCH. How have the various agencies received these guidelines?

Mr. ROSE. They have been happy to have something that was a bit less than 25 pages to deal with. I have met with representatives of the media and other public interest groups that were concerned about these guidelines and have offered, in any case where they feel that the statute is not being followed by any agency, to investigate that and to try to bring about a satisfactory resolution if this memorandum is taken as an excuse to unjustifiably withhold a fee waiver.

Senator HATCH. Just to shift gears for a minute, has the personal privacy exemption always worked adequately to protect against obvious harms that could arise from the disclosure of embarrassing or sensitive information to any person who might make a FOIA request?

Mr. ROSE. In my judgment, Mr. Chairman, S. 774 makes a distinct improvement in that area, in that it redresses the balance between the concerns for privacy of the individual versus the public's right to have access to information of relevant public concern about the operations of Government.

I think the existing exemption 6 has been interpreted by the courts as placing a heavy emphasis on disclosure and much less of an emphasis on individual privacy, and I think that the language of S. 774 will go quite a good distance to correct that.

Senator HATCH. Now, there has been some criticism of FOIA that private attorneys have been able to use it as a discovery tool. In the case of NLŘB v. Robbins Tire, which was a 1978 case, the Supreme Court explained that "FOIA was not intended to function as a private discovery tool."

Has this intent been the way the act has, in fact, operated, and does the provision in S. 774 suffice to cut off any abuse from FOIA's use as a discovery device?

Mr. Rose. Well, I think in spite of the Robbins Tire case, the act continues to be used as a rather major discovery device in its current form, and we simply have not been able, through litigation, to prevent that.

S. 774, I think, makes a considerable improvement in that it would toll the time for a Government response to an FOIA request to a party in litigation with the Government until the end of that litigation. I think that will produce a considerably better situation than the one you have now, where-and this quite often does happen-you are in the middle of a lawsuit and on the one side you have a battery of private lawyers and a well-compensated private firm, and you may have two or three Government attorneys on the other side who are suddenly bombarded with a FOIA request in the middle of the trial.

It turns out to be that the same people who are knowledgeable and would have to process the FOIA request also are responsible for conducting the Government's litigation. That does not seem to us sensible or fair or what the act originally intended.

That would be stopped under your version of S. 774. The thing that is not stopped, and I frankly have not figured out a way to stop without going back against a very basic purpose of the Act, is prelitigation discovery, where FOIA is being used for prelitigation discovery.

We just have not found a way to craft that that would be balanced and fair and not undermine some other goal of the act. If we do, we will suggest it to you.

Senator HATCH. I have a lot of other questions and I am going to keep the record open so that any member of this committee can submit questions to you, but let me ask one other.

This last week I spoke before the Society of Professional Journalists in my home State. I brought out that when the Zurcher v. Stanford case was decided by the Supreme Court, members of the media strongly objected to the conclusion that their confidential sources might not be protected.

In other words, the news media wants its sources protected. It wants them protected in the interests of being able to follow good reporting practices and in the interests of furthering public understanding through dissemination of information. The media comprehends that its sources will not continue to cooperate if their confidential identities are not protected.

I do not think it is unreasonable for law enforcement officers to want to protect their confidential informants for the same reason, especially when our law enforcement officers know that their informants are going to be endangered if they are not protected. However, our law enforcement people may be endangered in the process because many of them are doing very dangerous undercover work. The disclosure of even a tiny piece of information that would fit into a larger mosaic to reveal the identities of these informants could be very deleterious.

I really personally believe that the media ought to understand that it shares very similar interest with law enforcement in that regard. On the one hand, I think that law enforcement officials ought to have their sources or their informants protected also. There is a lot more danger involved in sensitive criminal investigations than there is generally involved in news gathering. Do you agree or disagree on this?

Mr. Rose. Senator, I share your view exactly. I have had a terrible time, I must say, in the discussions that I have had on this subject in getting the media to agree that in the area of law enforcement, sources for the police are very important and the protection of their confidentiality is very important.

Senator HATCH. Maybe even as important a source as for journalists.

Mr. ROSE. Well, each of these groups has a very legitimate interest in the protection of their sources. I fully agree with you that the confidentiality of newspaper sources, except under extraordinary circumstances, has a very legitimate right to protection.

The only thing I wish we could get agreement on is that intelligence agents doing their job have a right to have their sources protected and law enforcement officials doing their job have a right to have their sources protected, because the commodity that we are dealing with here that is critical to the effective functioning of each of these agencies, be it journalism and the media, be it the intelligence agency, or be it law enforcement, is information.

Information, I can guarantee you, will not be given by people who feel that they cannot give it in confidence and with their identities protected. Look, for example, at the judicial selection process. This is not a FOIA problem-it goes more to the Privacy Act problem-but nonetheless it is an example of what we are speaking about.

Frankly, I find that, in reviewing the FBI files, I can often get more information from outside sources, like the ABA and others, about the qualifications and background of a given candidate, because people are willing to be more candid with outside groups than they are with the FBI.

I think we have just upended what used to be the tradition where people really viewed the FBI as being able to protect their identity, and so on. I think it has really affected our ability to get information and our ability to make very critical decisions in this Government, and I think it is unfortunate.

Senator HATCH. Thank you. I have some other questions, but we will turn to Senator Leahy at this time.

Senator LEAHY. Thank you, Mr. Chairman. I would just summarize this short opening statement, if I might, and then put the rest in the record.

Senator HATCH. Sure.

Senator LEAHY. I am pleased to be here. I came back late last night from North Dakota, where Senator Andrews and I were attending hearings. I very definitely did want to be here because our witness list this morning is a distinguished one.

I look forward to continuing this committee's dialog on one piece of legislation which more than any other tells us how democracy works. The Freedom of Information Act makes every American a partner in the business of Government. It reminds us that every citizen has a right to ask, and perhaps even more importantly a right to get an answer.

I think every Congress has a duty to guard these rights, and that is just what we are going to do this morning. Now, it seems safe to forecast a long life for the FOIA. I think that seemed a little bit more risky a couple of years ago.

We had an administration come into Washington espousing the same values that we all have, every member of this committee, of open Government. But, certainly, the impression was given that they may not practice those values.

Whether we are talking about restrictive guidelines for fee waivers, an executive order on classification that resolves all doubts in favor of secrecy, a directive on classified information that treats all Government employees as if they were members of the CIA, or EPA's new policy restricting the release of pesticide and health data, the themes seem to be remarkably similar. It reflects a Gov

ernment drifting toward secrecy as the norm that dominates transactions within Government.

It was at least in part to bring us back to the earlier norm and reverse the current decline in the spirit of openness that I introduced the Freedom of Information Improvement Act of 1983 on April 12.

The impetus for this bill was a debate in this very committee a year ago on the administration's FOIA proposals. Now, through reasoned discussion and compromise, the committee unanimously accepted a substitute for the bill which left the essential features of the law intact.

I applaud the work of our distinguished Subcommittee Chairman in that regard. Senator Hatch's FOIA bill, S. 774, contains the essence of the compromise that the members of the Judiciary Committee reached around the table. The members perhaps on that committee reflect as wide a divergence of political ideology as any committee in the Senate.

Now, S. 774 mainly looks at the problems the Government is having administering the act. I will work very closely with Senator Hatch on these problems as I have in the past. They are real; they have gone unsolved for too long. Both of us recognize that.

We will also address the problems that requesters of information are having with the Government. My bill seeks to look at the concerns of both submitters and requesters about the functioning of the act. It does not purport to deal with changes in the language of FOIA exemptions-an area that is already covered in Senator Hatch's FOIA bill.

Most notable among these is the Judiciary Committee compromise in the law enforcement exemption which I helped to craft. I fully support the adoption of the law enforcement provisions of S. 774 and will lend my voice in their support when the bill comes up for debate.

Since the focus of my bill is on requester and submitter problems, I did not seek to include similar language in my bill.

I think that the efforts we had on behalf of the Freedom of Information Act in the 97th Congress were not misspent. We had many differences; we learned to narrow them. As a result of our hard work, there is a very new spirit in this body about the future of FOIA.

Senator Hatch's bill and the bill I have introduced represent a fresh start in a new Congress. I look forward to working together with him and my other committee colleagues to join our efforts toward what I know to be our common goal-a Government that is open to its people. Hopefully, an act will come out of our committee, one supported again by every member of the Judiciary Committee.

Mr. Rose, we ask a lot of questions, obviously, in this area, and they are asked sometimes in a vacuum or in the abstract. It may make it a little bit easier for people like myself who do not work in this area every single day to look at specific examples; you have to help us small-town lawyers along.

So, I am going to refer to a specific case and you might be able to help me fully understand this. I am interested in the Department of Justice policy on fee waivers in FOIA, so let me take a little case