PREPARED STATEMENT OF JONATHAN C. ROSE Mr. Chairman and Members of the Subcommittee: I am pleased to appear before you today to testify in support of S. 774, a bill to amend the Freedom of Information Act. - - that this I appeared before this subcommittee twice in 1981 to discuss the Administration's proposed amendments to the FOIA. I told you then and I emphasize today Administration is firmly committed to the faithful implementation of the Freedom of Information Act by all federal agencies. We strongly support the basic purpose and philosophy of the Act: to inform the public as fully as possible of the conduct of its government in order to protect the integrity and effectiveness of the government itself. We are fully committed to carrying out the philosophy and spirit of the Act. There is a long history of proposals to amend the FOIA. In the years following the substantial broadening of the Act in 1974, the Department of Justice and the government as a whole began to experience serious problems with some of the requirements and language of the FOIA. In 1979, following testimony before Congress, the Department of Justice prepared a series of proposed amendments to the FOIA, recommending very substantial changes in the Act. When this Administration assumed office, the Department of Justice began an independent review of the problems that the FOIA has raised. We concluded that the FOIA has indeed created serious problems for the federal government; however, we also found that as serious as these problems were the problems also tended to be narrow ones that - - could be remedied without a wholesale revision of the FOIA. Accordingly, in October 1981, I appeared before this Subcommittee to present the Administration's proposed amendments to the FOIA, which were introduced in the 97th Congress as S. 1751. Many of the Administration's proposals were soon incorporated into existing FOIA reform legislation - S. 1730 that Senator Hatch had introduced only one month before. Commendably, Senator Hatch carefully engrafted our proposals onto the provisions of S. 1730, producing a set of proposed amendments to the FOIA that were drawn as narrowly as possible. Senator Hatch was ably assisted in this effort by Senator DeConcini who shared his concern that our efforts to correct the deficiencies of the FOIA should not inadvertently infringe upon the overriding purposes of the Act. The final version of S. 1730 was among the most carefully drafted examples of remedial legislation I have seen. We at the Department of Justice found that the bill redressed most, although not all, of the serious problems we had encountered with the FOIA. Similarly, the various interest groups that had opposed any amendments to the Act conceded that the bill was a responsible and even-handed approach to reform of the FOIA. The best evidence of the success of Senators Hatch and DeConcini came in May 1982, when the full Judiciary Committee approved S. 1730 by a unanimous 17-0 vote. The present bill, S. 774, is identical to the Hatch bill of the last Congress. We continue to strongly support this bill and we believe that it represents a successful compromise between the government's need to maintain the confidentiality of important law enforcement information and the public's right to know about the operations of their government. S. 774 also contains many needed procedural reforms in the FOIA, including measures that would permit businesses that submit confidential information to the government to receive notice of its impending disclosure, allow the government to recoup a greater portion of the costs of processing many FOIA requests, and create more realistic time limits for the government to respond to FOTA requests. Although all of these proposed amendments are familiar to the Subcommittee, I would like to take a few minutes to summarize the need for each. Law enforcement. The FOIA has become a major problem to the government's law enforcement agencies. The FBI has found that 16% of the FOIA requests it receives are from known or suspected criminals. In the case of the Drug Enforcement Administration, this number is even higher: fully 60% of the FOIA requests the DEA receives are from imprisoned or known drug traffickers. The frequency with which criminals use the FOIA is an indirect indicator of its usefulness to them. However, there also is direct evidence of the harmful effects the FOIA has had upon law enforcement. In the course of the hearings held last Congress on S. 1730, the Department provided to the Committee a list of over 200 documented cases where the FOIA had a harmful impact on law enforcement activities. Moreover, in an executive session of this Subcommittee, Director Webster of the FBI provided many additional examples of the use of the FOIA by criminals, terrorist groups, and hostile foreign intelligence agencies. In February 1982, the DEA released a study it had conducted that found that 14% of the DEA's investigations were aborted, narrowed, compromised, or significantly complicated by the FOIA. With your permission, Mr. Chairman, I will submit for the record today copies of both the list of cases where the FOIA has harmed law enforcement and the DEA study. Organized The problems the FOIA creates for law enforcement agencies become especially acute when organized crime uses the Act to discover what the government knows about it. criminal groups engage in a wide range of illegal activities and often have a long institutional memory. As a consequence, otherwise innocuous information that the government discloses under the FOIA to a member of an organized crime family or a drug trafficking conspiracy often can be pieced together with information already known to the requester to form a "mosaic" that reveals the identities of the government's confidential informants or the scope of the government's investigation. As explained more fully in the detailed analysis of S. 774 that accompanies this testimony, the Department of Justice that the bill will go a long way towards closing this very critical gap in the government's ability to maintain the confidentiality of its law enforcement files. Secret Service files. In past testimony before Congress, the Secret Service has revealed that many local police departments no longer share information with them because they believe that the Service will not be able to protect the information from mandatory disclosure under the FOIA. By 1977, this problem had grown to such an extent that the Secret Service testified that it recommended against President Carter visiting two cities because of fears that the Service could not protect the President's personal safety. Moreover, in 1981 the Secret Service testified that its informant information had dropped by 75% since the passage of the 1974 amendments to the FOIA. We endorse S. 774's provisions granting broader protection to the files the Secret Service compiles in connection with its protective functions. Commercial information. Every year, thousands of businesses submit to the government many of their most important and confidential trade secrets and business records. However, there is no requirement in the FOIA that the government must notify these companies when it intends to release this information to the public. The seriousness of this shortcoming is shown by the recent, unhappy experience of the Monsanto Corporation. As required by law, Monsanto provided to the EPA the formula it had developed for one of its most successful herbicides, Roundup. Though an error of judgment, employees of the EPA disclosed the formula to another company under the FOIA, without even notifying Monsanto. It appears that the FOIA did not actually require the EPA to turn over Monsanto's secret formula to the requester. However, the fact that Monsanto never received notice of the impending disclosure prevented it from opposing the release either before the EPA or in court. Although the Monsanto matter arose after the Judiciary Committee reported out S. 1730 last May, it shows the wisdom of the bill's provisions requiring government agencies to notify businesses in advance whenever the agency intends to publicly release trade secrets or sensitive commercial information under the FOIA. S. 774 also contains this much-needed provision. Manuals and examination materials. As explained more Because fully in the accompanying analysis of S. 774, the FOIA often compels the government to release the internal manuals and instructions that government agencies give to their investigators, auditors, and negotiators. Frequently, these materials set forth the government's confidential investigatory techniques and guidelines. Public disclosure of these manuals significantly hampers the government's ability to enforce the law, detect fraud, or acquire goods and services at competitive prices, since subjects of investigations or government suppliers may learn in advance what the government intends to do. of the crucial role that manuals and guidelines play in the government's law enforcement and acquisition programs, we strongly believe that they deserve more complete protection. Personal privacy. One can point to many laws Congress has enacted notably the Privacy Act of 1974 that exemplify the importance all of us attach to the interest in personal privacy. Anomalously, however, the FOIA often permits a complete stranger to obtain access to government files that contain personal information about us. Often a requester's purpose is chiefly commercial credit bureaus, employment agencies, and life insurance companies rank among the most common users of the FOIA for this purpose but disclosure of personal information about us is an invasion of privacy nonetheless. Any system providing for the public disclosure of government records must necessarily provide that information the government compiles about its citizens should be protected from those who would use it to invade our personal privacy. Although the amendments - S. 774 would make to the FOIA's privacy exemptions perhaps could |