A related problem arises since the term "records" is left undefined by the act. As a result, we receive requests for information that surely were never intended to be made available to the public. One category of these requests is for computer programs, maps, and charts developed at Government expense, which are of considerable commercial value. Under prevailing interpretations of the act, the Department may be required to make such items available to a few requesters who, thereby, realize a windfall from research and other scholarly activity funded out of tax dollars. Similarly, the DOD receives requests for personnel lists or rostors which are capable of being produced through DOD computers. These lists are utilized in connection with commercial solicitations by private firms and often result in unwarrented intrusions upon the privacy of our employees and retired personnels. This use of military computer capability for these purposes is, in our judgment, simply incompatible with the military mission. We have also experienced problems with repeated requests for the same information from the same parties. Under the act, with each request, we must provide the requester with the entire volume of the material, not just updated information. I would like now briefly to review some specific concerns we have had in DOD with the implementation of the act. These concerns are among those being considered by the administration in preparing legislation to amend the act. The administration, as you know, is preparing to submit legislation, but we have not yet concluded our review. We will work with the committee and these are some of the areas we are looking at. ADVERSE IMPACT ON AGENCY DECISIONMAKING Perhaps no more onerous provision of the act exists for us than the administration of the B(5) exemption which covers those records which are "interagency or intraagency memorandums or letters which would not be available by law to a party other than agency in litigation with the agency." The necessity of determining whether the interagency memorandum or letter would be available to another party in the discovery proceeding has been interpreted by the courts to require the agency to review on a line-by-line basis staff papers and other advisory records. This line-by-line analysis is necessary in order to make available to the requester factual information that is severable from privileged advisory portions of the record and not otherwise exempt from disclosure. Since such factual information would be available in a litigation proceeding it is required to be released under the act. This application of the so-called "reasonable segregation" requirement obliges the agency to engage in the frequently difficult task of distinguishing between facts and evaluations and of determining whether the selection of facts in an advisory memorandum is not itself the product of an evaluative determination which requires protection from public disclosure if the decisionmaker is to receive the type of candid advice essential to the sound management of the agency. 87-749 - 82 - 8 FREEDOM OF INFORMATION ACT HEARINGS BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-SEVENTH CONGRESS FIRST SESSION ON S. 587, S. 1235, S. 1247, S. 1730, and S. 1751 JULY 15, 22, 31, SEPT. 24, 87-749 O Volume 1 Serial No. J-97-50 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1982 THOMAS D. PARRY, Chief Counsel ROBERT FEIDLER, Minority Counsel CONTENTS STATEMENTS OF COMMITTEE MEMBERS Dole, Hon. Bob, a U.S. Senator from the State of Kansas Page 252 71, 253, 473 DeConcini, Hon. Dennis, a U.S. Senator from the State of Arizona. Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, chairman, Subcommittee on the Constitution. 1, 249, 471, 565, 627, 807 Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, chairman, Committee on the Judiciary 581 PROPOSED LEGISLATION S. 587: To amend the Freedom of Information Act and to effect other changes S. 1235: To exempt certain matters relating to the Central Intelligence S. 1730: Entitled the "Freedom of Information Reform Act". S. 1751: To amend the Freedom of Information Act, and for other purposes...... CHRONOLOGICAL LIST OF WITNESSES WEDNESDAY, JULY 15, 1981 Saloschin, Robert L., of Lerch, Early & Roseman, Bethesda, Md.. Capener, Ted, vice president of News and Public Affairs, Bonneville Broadcasting Corp., Salt Lake City, Utah.. Rose, Jonathan C., Assistant Attorney General, Department of Justice, accompanied by Hon. Charles B. Renfrew, former Deputy Attorney General and Federal judge 159 Stevenson, Russell, professor of law, George Washington University.... Marthinsen, John, professor of economics, Babson College, Wellesley, Mass, accompanied by Dr. William Casey, chairman, economics division. WEDNESDAY, JULY 22, 1981 203 223 O'Reilly, James T., senior counsel, Procter & Gamble Co., Cincinnati, Ohio ...... 225 280 320 347 372 Virden, Prospere S., Jr., senior counsel, Honeywell, Inc Whale, Arthur R., general patent counsel and assistant secretary, Eli Lilly & Bondurant, Dr. Stuart, dean of the school of medicine, University of North 392 425 454 FRIDAY, JULY 31, 1981 Burke, Robert R., Assistant Director for Investigations, U.S. Secret Service ...... |