to FBI activities in the Chicago area. The Department of Justice moved for reconsideration and pursuaded Judge Will to allow an extensive in camera proceeding addressing the documents, which was held on October 15-16, 1980. On the basis of this in camera evidence, Judge Will reversed himself entirely and awarded judgment to the FBI on January 13, 1981.

5. Jaffee v. Central Intelligence Agency, et al., 516 F. Supp. 576 (D.D.C. 1981). On June 10, 1981, District Court Judge Barrington Parker found the FBI's classification determinations to be unpursuasive, so much so that he placed some of the classified information before him directly into his written opinion. Judge Parker has reserved judgment on the remaining classified information; the FBI has until December 14, 1981, to make further submissions in support of its classification determinations.

6. Pratt v. Webster, 508 F. Supp. 751 (D.D.C. 1981). On June 16, 1981, Judge Barrington Parker ordered the FBI to disclose classified material in two documents. On rereview, the FBI determined that the information could be released without harm and thus no appeal of that issue was taken.

7. Dunaway v. Webster, Civil No. 77-0907 (N.D. Cal., July 9, 1981). District Court Judge Robert Peckam rejected the FBI's classification determinations in this case, but sua sponte applied Exemption 7(C) to all of the information. Thus, while the decision stands as an adverse precedent, no appeal is likely.

8.

Taylor v. Department of the Army, Civil No. 802353 (D.D.C., November 20, 1981). District Court Judge Harold Greene recently ruled against the Army on the issue of whether the "measured resource area ratings" for hundreds of army units (including troop stengths) can be properly classified and he ordered virtually immediate disclosure of such information. On December 2, Judge Greene granted a stay of his disclosure order, but only for five days. On December 7, the D.C. Circuit granted an emergency motion for a stay pending appeal (No. 81-2280).

For your convenience, I enclose a copy of the slip opinion in the Taylor case. Please do not hesitate to contact me if I can provide you with any further assistance in this matter.

Sincerely,

Da

Daniel J. Metcalfe

Acting Director

Office of Information Law and Policy

Enclosure

Senator HATCH. Our next witness is Jonathan C. Rose, Deputy Assistant Attorney General in charge of the Office of Legal Policy. Mr. Rose came to the Department of Justice from a private practice as a partner in the firm of Jones, Day, Reavis, and Pogue. Prior to his private practice, he served as Associate Deputy Attorney General and Deputy Assistant Attorney General for Antitrust. Mr. Rose, we are happy to have you with us. We look forward to hearing from you.

STATEMENT OF JONATHAN C. ROSE, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, ACCOMPANIED BY HON. CHARLES B. RENFREW, FORMER DEPUTY ATTORNEY GENERAL AND FEDERAL JUDGE

Mr. Rose. Thank you very much, Mr. Chairman.

The former Deputy Attorney General and former Federal Judge Charles Renfrew has come back to Washington at great personal inconvenience to himself to join me at the doubleheader session that we face today. We have just been before the House Government Operations Subcommittee. I wonder if I might ask your permission to have him join me for the purpose of making his own views known to you.

Senator HATCH. I did not see you back there, Judge. We are delighted to welcome you once again to our committee. We have much respect for you and your viewpoints. We are just delighted to have you here.

Judge RENFREW. Thank you, Senator.

I received a telephone call when I was abroad from Mr. Rose, whom I got to know during the transition. He said that he had known that the Carter administration had done substantial review and analysis of the Freedom of Information Act. He asked if I would come back as a private citizen since I could no longer represent the Carter administration.

Senator HATCH. You have plenty of swat here in this committee, private citizen or otherwise. I think you have more as a private citizen, however, than you did working for President Carter.

Judge RENFREW. We have debated that before, sir.
Senator HATCH. I was just poking fun.

Judge RENFREW. The wounds are still fresh though.

Senator HATCH. We are looking forward to your serving again, but we hope it is under a Republican administration this next time. Mr. Rose, I have a meeting with the new nominee to the Supreme Court at exactly 12. I have to leave here at exactly 5 to 12. Therefore, I would appreciate it if the remaining witnesses can summarize as shortly as they can. I would like to hear the rest of the testimony, but I will have to leave at 5 to 12.

If we are not finished, then I want to alert witnesses that I am going to have to have counsel take the final testimony. That meeting is a crucial meeting, at least I have been told by millions of conservatives all over the country that it is very crucial that I meet with her. As a supporter of Judge O'Connor, I do want to make that meeting.

If you could summarize, I would appreciate it. We will of course put your complete statements in the record following your oral

presentation. In addition, we will have questions that we will submit to you in writing.

Mr. Rose. Mr. Chairman, I will try to rapidly summarize what is already a summary statement of our current position in the administration of conducting a review, as the Carter administration did, of current operational problems with the Freedom of Information Act.

Judge Renfrew can comment on the Carter administration study and his personal views, which are certainly in no way intended to represent those of the administration. However, on the other hand, I think we have had a fair amount of common ground and experience, mine much briefer and less extensive than his but still very similar experiences. I thought the perspectives of both of us would be helpful to your committee today.

Obviously, we would like to say that we have a strong support for the basic purpose and philosophy of the act to inform the public as fully as possible about the conduct of its Government in order to protect the effectiveness and integrity of the Government itself. We are not seeking perfection because the best is often the enemy of the good in any attempt to enact legislation, as you would know better than I.

I would like to briefly summarize the areas of current concern that have been expressed to us, that we are focusing on in our study, and that I know you are focusing on in this committee, and that your own bill addresses to some extent.

In the area of criminal law enforcement, it appears that the effectiveness of criminal law enforcement investigative agencies may well have been impaired, and also substantial administrative burdens may have been imposed on them by the Freedom of Information Act.

In summary, some of the application of the act may not be in the overall public interest. To give you some examples, the investigatory units within the Department of Justice yearly receive thousands of requests for law enforcement records. The FBI receives over 15,000 requests yearly and the Drug Enforcement Administration over 2,000.

The Drug Enforcement Administration estimates that 40 percent of its requests are from prisoners and another 20 percent are from individuals whom the DEA can identify as being connected with criminal drug activities.

Senator HATCH. How many connected with criminal drug activities? What percentage?

Mr. ROSE. They estimate 20 percent, sir.

Senator HATCH. That is a pretty hefty number.

Mr. ROSE. Yes, it is, sir.

Prisoner requests to the FBI constitute a lesser percentage of its requests, about 11 percent, but a greater absolute number, over 1,600 last year. Individuals connected with criminal activities have made extensive use of the FOIA to obtain investigatory records about themselves or to seek information about ongoing investigations, Government informants, or Government law enforcement techniques.

To comply with requests for investigatory information, investigatory files must be reviewed line by line to segregate exempt from

nonexempt information. The present exemption applicable to criminal investigatory files is narrowly drawn. The review and segregation process is time consuming and complex. It is often very difficult for an analyst to determine what information may have an adverse effect upon important law enforcement interests.

Requesters may be able to piece together in ways unknown to an FBI employee responding to an FOIA request segregated bits of information which are innocuous on their face but which can be used to identify the existence of a Government investigation or an informant.

It has been the Department's experience that some criminals, especially those involved in organized crime, have both the incentives and the resources to use the FOIA to such ends. Some have shown great persistence in using the act. The FBI, for example, has received 137 requests from one imprisoned felon who is reported to be an organized crime hitman.

Moreover, the experiences of the FBI and the DEA indicate that there is a widespread perception among confidential information sources that Federal investigators simply cannot fully guarantee the confidentiality of information because of FOIA. This perception apparently exists not only among individual street informants who have become increasingly aware of the existence of the Freedom of Information Act, but also among institutional information sources including local law enforcement agencies such as local police departments.

In the light of the complexity of the act and the obligation to release segregable information, this perception is difficult to dispel even in instances where we believe that the information offered by informants can clearly be protected by the act as it stands now. The FBI and the DEA have reported to us a number of incidents in which potential informants have specifically cited FOIA as their reasons for declining to cooperate with the Government.

Finally, it should be noted that the administration of the FOIA entails a significant commitment of limited resources of our criminal law enforcement investigative agencies. In 1980, the FBI employed a unit of approximately 300 full-time employees at a direct cost of about $11.5 million a year.

In conclusion of this particular point, it should be noted that only about 5 percent of all requests to the FBI are from media, scholars, or public interest research groups.

A second area of major concern to the administration is the impact of the FOIA on the national security agencies. Confidentiality is obviously of paramount importance to intelligence information sources whether they are individual sources or foreign governments.

However, the agency processing and judicial review requirements of the FOIA, along with the mandate to release reasonably segregable material which is not properly classified, makes it impossible in the judgment of the national security and intelligence agencies to offer the clear and certain guarantee of confidentiality which our national security intelligence agencies often require.

Our intelligence agencies can demonstrate that there is a belief among some important sources that the FOIA makes it impossible for our Government to adequately protect sensitive information

from disclosure. That belief, in their view, significantly impedes our intelligence activities abroad.

Moreover, the FOLA imposes upon intelligence agencies administrative burdens which can interfere substantially with their ability to carry out their primary functions. Within an agency such as the CIA, no single individual, or even any single unit, has access to a comprehensive cross section of files which would permit a complete and timely response to broad FOIA requests. Line personnel are forced to respond to FOLA requests while continuing to attempt to fulfill their regular duties.

Our intelligence agencies have no excess of trained intelligence agents and their time is of great value to the United States. The line-by-line review of FOIA requested documents seems a very questionable use of their time, particularly in light of the fact that very little ultimately can be released by these agencies.

Of course, there is nothing in the act to prevent its use by those whose interests are directly contrary to the national security. Mr. Phillip Agee, for example, has made extensive use of the FOIA in his personal crusade to undermine the CIA abroad. The response to one request from Mr. Agee for all CIA records containing mention of him cost the American taxpayers over $300,000. This is a Government expense which many citizens and Members of Congress might justifiably question, particularly in a time of severe budgetary constraint. However, under existing law, the CIA had no choice but to expend the money.

A third area of concern is the abuse of the FOIA as a litigation discovery device. In light of the limit of time, I think I will just simply remit that to my written statement.

A fourth area which we believe requires the attention of this committee is the use of FOIA by commercial interests to obtain confidential business information which has been submitted by businesses to Government. It is apparent that commercial interests have made great use of the FOIA to obtain such information. For example, over 85 percent of the FOIA requests to the Food and Drug Administration, which received over 33,000 requests last year, are from regulated food and drug industries or their representatives seeking information related to their competitors. While it is unclear what damage may have been done to business submitters by FOIA releases, there is at least a perception in parts of the business community that commercially valuable information submitted to the Government is vulnerable to release by FOIA.

This perception is reinforced by the absence of any adequate procedural means of asserting their legitimate interests either before the agencies or in court to protect the information. As a result, there is evidence that the quality of information received from the business community by Government agencies has deteriorated.

Providing greater assurances that confidential business information will not be disclosed via FOIA would seem to be in the clear interests not only of the submitters but also the Government agencies which depend upon a free flow of information from private enterprises.

Finally, we believe it is important that the Congress review the costs of compliance with the FOIA. During the 1974 debates, I