I would refer, again, to the Deep Throat incident in the Watergate case. From all that we apparently know about it, this is where the bulk of the information came from which got them started. If this particular individual had had any suspicion that his identity would be exposed, I am sure the two gentlemen who prepared that story would never have gotten the critical material that they needed.

Senator HATCH. Are you aware of specific examples of informants being disclosed as the result of a FOIA request or of a potential informant refusing to cooperate as a result of fear of disclosure through FOIA?

Mr. NESOFF. I have some information relating to that. It would be rather difficult to pull it out of the report that I have right now. I will make a copy of that report available to your committee. Senator HATCH. Without objection, that will be made a part of this record.

In 1980, a Federal court ordered the release of a roster of Federal customs officers. That was Lesar v. Department of Justice, 636 F.2d 472.

What effect has this had, or might it have in the future, on Federal law enforcement?

Mr. NESOFF. The publication of a list of the officers?

I am not familiar with that particular case. I can relate it to the instant case that I mentioned in New Hampshire which occurred about 7 or 8 months ago.

The newspaper was conducting a legitimate inquiry as to what Federal employees were living in the State. They were trying to show a relationship between the income of the Federal employees and the depressed areas of the State.

Along with the list of clerical and administrative employees, a comprehensive list of every special agent and every intelligence agent and every criminal agent working or living in New Hampshire was also furnished to the newspaper.

Several of our people became aware of it. One of our representatives, John McIrney, contacted the newspaper immediately. Through very, very close cooperation with the editor, the names were deleted.

Had these names been printed, it would have compromised immediately the identity of every agent living or working in the State.

A number of these were working undercover. If their identities had been disclosed, it would have immediately destroyed the cases they were working on and could very well have cost them their lives as well.

Senator HATCH. We sure appreciate your coming in. As usual, your remarks are well put, I think.

Mr. NESOFF. Thank you very much, Senator. As always, we remain available to you for whatever additional help we may be able to give.

Senator HATCH. Thank you. We really appreciate that.
[Additional information submitted by Mr. Nesoff follows:]

THE NEGATIVE IMPACT OF THE FREEDOM OF INFORMATION ACT AND PRIVACY ACT ON LAW ENFORCEMENT AGENCIES

(By Bob Nesoff)

The Right to Privacy and openness of government is an issue that has grown in the past 10 years. Prompted by publications of illegal and unethical practices by government officials and accelerated by the Watergate revelations and Pentagon Papers, numerous books and articles on the subject have been published. Citizens fear that the government's secrecy can only lead to abuse. Furthermore a government that can perform surveillances; compel individuals to furnish information; collect, disseminate and exchange information; and a society which maintains files such as public school transcripts, college admission and progress records, motor vehicle bureau records, employment records, social security records, life insurance records, income tax returns, professional and trade licensing records, pension_records, military files, arrest records, prison records, mental health records, welfare records, traffic violator records all has created a distrust among its citizens that this proliferation of records is not sufficiently controlled to protect individual privacy. Thus, with this background, Congress enacted the Freedom of Information Act, herein abbreviated as FOIA, in 1974. This Act created public access to Federal Government records, except for information specifically exempt.

1

In addition, Congress enacted the Privacy Act, PA, of 1974 which emphasizes protecting an individual's personal privacy; listed procedures to enable people to obtain their own files; and furnished a descriptive list of its records systems.2 The tax reform act of 1976 was also an outgrowth of the citizen's cry for privacy and limits dissemination of tax returns and taxpayer information for non-tax related matters.3

Many states have enacted their own openness laws to provide public access to State government records and activities and privacy laws to regulate the collection and dissemination of information by State agencies and by private organizations. New York State enacted its own Freedom of Information Law September 1, 1974 and a Sunshine Act which allows for openness in executive meetings.*

However, Congress was unable to realize the numerous difficulties and problems created by the passage and implementation of these laws. Prof. Arthur Miller, Harvard Law School, advised in New York Times article dated April 12, 1978 that "There will be an inexorable clash between the rights of the individuals to privacy and the First Amendment guarantee of a free press.'

Another article from the New York Times described a legal challenge between the Priest and Penitent confidentiality. Neither was Congress prepared for the numerous and sometimes ridiculous requests made under the FOI/PA.

The largest area of controversy exists in the citizen's right to privacy vs. his right to be secure. The citizen's right to know vs. government's secrecy. Although voluminous literature has been written concerning the citizen's right to privacy, very little has been written reflecting Law Enforcement officials' attitude pertaining to the inapplicability of the acts. In this same regard, very little has been written reflecting Law Enforcement officials' concerned opinions as to their inability to protect the public under the auspices of the POI/PA. Nor has there been literature published concerning the many opportunities the FOI/PA offers criminal elements to impede ongoing criminal investigations and intelligence operations.

Congressional Hearings were conducted from 1975-78 concerning this area of dispute. As a result of these hearings, Law Enforcement officials at all levels of government stated that the proliferation of access and privacy laws has been instrumental in creating a restrictive climate which affects their ability to obtain information from the public and institutions, to recruit and maintain informants and to exchange information with other law enforcement agencies.'

It is the intent of this paper to explore the problems that the FOI/PA and Tax Reform Act of 1976 have created within the Law Enforcement Agencies. The basis of this paper are the published summary reports of the Senate Subcommittee on

1FOIA, U.S. Code 552, enacted July 4, 1966 and amended by Congress 1974, effective February 19, 1975.

2 Privacy Act, Public Law 93-579. 93rd Congress S. 3413 Dec. 31, 1974. 3Tax Reform Act, Oct. 4, 1976. Public Law 94-445.

'Freedom of Information Law-Miniguide to the New York State Law, Pub. NYSS Ba/ Journal, January 1975.

"New York Times, "Right to Privacy vs. Right to Know", Apr. 12, 1978, p. B12. "New York Times, "Priest and Penitent Legality Issue", Sept. 3, 1977, p. 20.

'Report by the Comptroller General, United States, "Impact of FOI/PA on Law Enforcement Agencies", Nov. 15, 1978, p. 1.

Criminal Laws and Procedures dealing with "The Erosion of Law Enforcement Intelligence and Its Impact on the Public Security" and the report by the Comptroller General of the United States entitled "Impact of the FOI/PA on Law Enforce ment Agencies". The problem areas assert themselves not only in criminal investigations but also intelligence gathering and national security investigations. It is not my intent to argue for the abolition of the FOI/PA because they all contain positive merit. The theme of this paper is to illustrate that acts furthering the privacy revolution should be implemented with an understanding that they should not interfere with the public's right to be secure; that a full understanding of the impact and mechanics of the FOI PA should be undertaken before implementation. This paper intends to present a posture that the Congress in its attempt to secure an individual's right to privacy has impaired society's ability to defend itself from the individuals who would destroy it. The FOI/PA and its accompanying satellite acts may have dangerously weakened the government's ability to protect the individual and the country.

It is obvious that the FOI PA and the Tax Reform Act is not the only factor responsible for the regressive climate towards law enforcement investigations and intelligence gathering. However, this report will only deal with the negative impact the FOI PA has caused the Law Enforcement Agencies.

IMPAIRMENT OF LAW ENFORCEMENT OPERATIONS

In conducting criminal investigations, all pertinent facts of a case must be ob tained, developed and analyzed before a conclusion can be drawn. While conducting a criminal investigation, the gathering of facts phase is developed through witnesses, informants, surveillances and institutions such as banks. These facts are recorded and maintained for future investigations.

Law Enforcement Agencies have asserted that criminal investigations and intelligence operations have been inhibited and eroded by the FOI/PA. Generally they believe the Acts (1) are a financial and administrative burden, (2) inhibit their ability to collect information, and (3) diminish the quality and quantity of information exchanged with other law enforcement agencies. These three categories will be examined later in this report.

Law Enforcement Intelligence can best be defined from this excerpt by Mary C. Lawton, Deputy Assistant Attorney General.

"Intelligence gathering involves the collection of information about individuals, their activities and their planned activities, for the purpose of preventing or preparing to deal with threats to fundamental government interest or to individuals whom the government has a special duty to protect."

9

Mr. John Olszewski, former Director of Intelligence, Internal Revenue Service told the subcommittee:

"Information about members of these criminal groups at every level is essential to effective law enforcement today, tomorrow, and even years from now. A low-level member of a loanshark syndicate in Chicago, Detroit, or New York may be tomorrow's upper echelon syndicate leader in Las Vegas.

"For example, a major racket figure, said to be currently under investigation in the West, 7 years ago was a midlevel strong-arm man in the Midwest. His background, former contacts, and associates are important factors in today's investigation. Unless this background information over the years is maintained-retainedand is legally available, investigations will be unnecessarily prolonged and are likely to be unsuccessful. Thus, it is the public interest which suffers." 10

It is difficult to quantify the extent of the erosion, however, three years of testimony before the Senate Subcommittee has produced the following: 11

Intelligence files laboriously built up over decades have in many cases been completely destroyed-i.e., city of Baltimore; city of Pittsburgh; and Washington, D.C.

In other instances, most notably the New York State Police and the Chicago Police Department, the intelligence files have been impounded now for several

years.

In many more instances-the New York Police Department and the Los Angeles Police Department are outstanding examples-there has been a massive purge of

Report by the Comptroller General, U.S., "Impact of the FOI/PA on Law Enforcement Agencies", p. 2 U.S. Government Printing Office.

Report of the Subcommittee on Criminal Laws and Procedures, "The Erosion of Law Enforcement Intelligence and Its Impact on the Public Security", U.S. Government Printing Office. 10 Ibid, p. 16, Testimony before Subcommittee.

"Ibid, p. 37-38.

the files resulting in the elimination of 90 to 98 percent of the information on record.

Intelligence units at State and local levels have been disbanded or reduced to so nominal a strength that they must be considered inoperative.

The gathering of new intelligence-bearing on extremist activity as well as the activities of ordinary criminals-has become far more difficult because law enforcement agencies must now operate under the most severe restrictions governing the use of three of the most effective sources of intelligence: electronic surveillance, undercover agents and informats, and third-party records.

Electronic surveillance in many jurisdictions has become a thing of the past, even where crimes like kidnaping and drug trafficking are involved. The subcommittee was informed that 21 States now prohibit wiretapping under any circumstances, while the laws of most other States restrict its use, even with court approval, to very rare instances.

Third party records-bank records, phone and utility records, credit records, etc.-can only be obtained pursuant to court orders, and in many cases the regulations require that the subject involved be notified of the subpoena and given an opportunity to oppose its implementation.

Law enforcement has suffered its greatest loss, however, in consequence of the dramatic reduction in the number of informants providing it with information. Informants now do not come forward as they used to do, for the simple reason that they fear disclosure of their identities under Federal or State Freedom of Information Acts.

For example, according to testimony before the House Intelligence Committee, as of July 1978 the FBI had a total of 42 informants nationwide covering the entire field of terrorist and extremist groups.

Mr. Glen King, Executive Director of the International Association of Chiefs of Police, estimated that the 17,000 municipal law enforcement agencies in the United States lost between 50 to 75 percent of their total intelligence gathering capabilities. Mr. Robert Chasen, The U.S. Commissioner of Customs estimated a 40 percent loss.

Mr. H. Stuart Knight, Director, U.S. Secret Service, estimated a 40 to 60 percent loss and advised that their agency receives a greater degree of cooperation than any other law enforcement agency because of the nature of their protection work. Specific examples of the problems Law Enforcement Agencies have encountered under these Acts are depicted in the following chapters and will serve to illustrate why the percentage of intelligence gatherings has greatly diminished.

Testimony from the Civil Service Commission established that the Civil Service Commission does not ask any applicants, even applicants for sensitive positions, whether they are or have been members of Communist or Nazi or other totalitarian or violence-prone organizations. Nor, in the absence of an overt violation of law, does the Commission make an intelligence entry based on such information, if the information was provided by a third party. The list of organizations mentioned in the course of the questioning was a long one, but far from complete. It included the Communist Party, U.S.A., the KKK, the American Nazi Party, the Maoists, the Trotskyists, the Prairie Fire Organizing Committee which publicly supports the terrorists activities of the Weather Underground, the Puerto Rican Socialist Party which similarly supports and defends the actions of the Puerto Rican terrorists, the Jewish Defense League, and the Palestine Liberation Organization. The same answer apparently applied to all organizations: in the absence of an overt act, "mere membership" is not a bar to Federal employment.

12

It is important to note that the Department of Defense falls under Civil Service Commission regulations. This led to an incident in which an applicant was not clearable by Army standards, but according to the Civilian Personnel Office, this fact could not be used to bar his employment as a Computer Security Specialist. (The function of a Computer Security Specialist is to protect computers within the Defense Department from hostile penetration.) 13

FINANCIAL AND ADMINISTRATIVE BURDEN

Citizens are asking for files the government may or may not have on them; for records dealing with assassinations at home and abroad; for the annual report of the Selective Service System; for the famous "Pumpkin Papers" of Alger Hiss; for the Ethel and Julius Rosenberg files; and for the volume of toilet paper provided each year for a government agency. How much is this costing us?

12 Ibid, p. 6, testimony Civil Service Commission, Feb. 9, 1978.

13 Ibid, p. 6.

Kari Grossman in an article entitled "Fee Blocks Your Right To Know" accused the government of requesting too high a fee for obtaining information under FOLA Grossman stated that the government purposely requested a high fee in order to make getting nformation impossibly expensive

Actually, the cost of administering the Freedom of Information Act. in terms of both money and manpower, is a very expensive proposition and the fee charged is minimal.

Mr. Lawrence Silberman, former Deputy Attorney General, testified before the Senate Subcommittee that the actual cost of implementing the FOLA to the FBI alone for fiscal year 1977 was almost 13 million and that these FOLA requests had taken 375 persons including 50 trained agents, away from other activities's Mr. Quinlan Shea, of the Justice Department, told he subcommittee that 6 percent of the FBI's total personnel complement is working on requests under the FOLA and PA In a report of June 16, 1979, GAO noted to the Congressional Subcommittee that 35 agencies reported FOLA costs of 11.8 million in 1975, while 37 agencies reported FOIA costs of 20.8 million in 1976.17

The cost factor, however high, does not allow for the experience and skills of highly trained investigators removed from the field of law enforcement to expedite the requests. Obviously, the public must suffer. William E. Williams of the Internal Revenue Service noted that "for the calendar year of 1977, 23.347 hours were contributed by professional employees in IRS field offices-other than specialists in the FOIA area-professionals in the intelligence Division provided 10,514 hoursTM. 1 The administrative burden seems even more destructive considering the types of individuals submitting FOL/PA requests. Drug Enforcement Administration DEA officials report about 40 percent of its requesters are prisoners asking not only for their own files but also for sensitive information. One convict, while in prison, requested a DEA intelligence brief on the manufacturing of liquid hashish. Although DEA initially denied the request, the Department of Justice overruled DEA and the intelligence brief was sent.

Neither does an individual have to be a citizen of the United States or a resident to obtain information under the FOIA.

An Alcohol, Tobacco & Firearms official advised that about 50 percent of its requests come from prior offenders who use the FOI/PA in an attempt to find out how investigations are conducted and thus avoid capture in future crimes.

Mr. Robert Chasen, U.S. Commissioner of Customs, testified that the Customs Service had to release the names of all Criminal Investigators as well as general investigators to a request from the Women's Division of the ACLU.20 In other words, the total personnel rosters for the Federal Law Enforcement Agencies are not even exempt under the FOIA. Nor are grade, salary, duty station or position title. The 90 percent of American people who are honest and have never committed a violation certainly do not benefit from this. Mr. Olzewski, former Director of I.R.S., Intelligence Division, testified that, as the privacy laws stand today, the primary beneficiaries have not been dissenters but mobsters, drug traffickers and other criminal elements." Mr. Williams, Deputy Director of the I.R.S., pointed out that one of the reasons why criminal elements have found it easy to exploit the privacy legislation is that "neither the FOIA nor the Privacy Act require a requestor to provide personal information about himself, nor do they need a justification of such a request." 22

Utilization of FOIA/Privacy Act by the criminal world was expressed by Mr. Silberman:

"Karl Grossman, "Fee Blocks Your Right To Know", Smithtown News, Oct. 26, 1978, p. 12. 15 Report of the Subcommittee on Criminal Laws and Procedures, etc. Mr. Lawrence Silberman, testimony before Senate Subcommittee, July 13, 1977, p. 53

1 Ibid, Mr. Quilan Shea, Director, Office of Privacy & Information Appeals, testimony, Mar. 9, 1978, p. 54

17GAO Report, "FOIA and PA Requests and Cost Data," made to Congress, June 16, 1978, U.S. Gov't. Printing Office.

1 Report of the Subcommittee on Criminal Laws and Procedures, etc. William E. Williams, Deputy Commissioner, IRS, testimony of Apr. 25, 1978, pp. 54-55.

Ibid. Peter Bensinger, Administrator, Drug Enforcement Administration, Department of Justice, testimony of Sept. 21, 1977, p. 56.

20 Ibid, Robert Chasen, Commissioner of Customs, U.S. Customs Service, testimony of Oct. 15, 1977, p. 57.

21 Ibid, John Olzewski, former Director of I.R.S., Intelligence Division, testimony of July 13, 1978, p. 63.

22 Ibid, William E. Williams, Deputy Director, I.R.S., testimony of July 13, 1977, p. 63.