Page images
PDF
EPUB

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

[graphic]

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,
OCT. 15, NOV. 12, AND DEC. 9, 1981

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

[blocks in formation]

THOMAS D. PARRY, Chief Counsel
STEPHEN J. Markman, General Counsel and Staff Director
RANDALL RADER, 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
in the law for the purpose of increasing the ability of law enforcement
agencies to protect the public security....

S. 1235: To exempt certain matters relating to the Central Intelligence
Agency from the disclosure requirements of title 5, United States Code
S. 1247: To amend the Freedom of Information Act to provide a hearing for
persons objecting to disclosures of private confidential information, to pre-
serve the confidential status of certain kinds of private information con-
tained in Government records, and for other purposes...

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..
Taft, William, General Counsel, Department of Defense..
Dornfeld, Steven R., Washington, correspondent, Knight-Ridder Newspapers,
national secretary of the Society of Professional Journalists, Sigma Delta
Chi.....

[merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

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 ......
Braverman, Burt A., partner, Cole, Raywid & Braverman, Washington, D.C.....
Pulley, Jack I., senior attorney, Dow Corning Corp., Midland, Mich.
Campbell, Nancy Duff, National Women's Law Center, Washington, D.C
Vladeck, David C., staff attorney, Public Citizen Litigation Group.....

225

280

320

347

372

Virden, Prospere S., Jr., senior counsel, Honeywell, Inc

Whale, Arthur R., general patent counsel and assistant secretary, Eli Lilly &
Co., Indianapolis, Ind....

Bondurant, Dr. Stuart, dean of the school of medicine, University of North
Carolina; accompanied by Joseph A. Keyes, staff counsel, association of
American Medical Colleges.....

392

425

454

FRIDAY, JULY 31, 1981

Burke, Robert R., Assistant Director for Investigations, U.S. Secret Service ......
Wieghart, James, American Society of Newspaper Editors
Meyer, Katherine A., director, Freedom of Information Clearinghouse.

[blocks in formation]
« PreviousContinue »