security interests of this country utilizing the Freedom of Information Act for purposes which in many cases are damaging to the interests of the country.

There has been other evidence produced before this committee in the past, and I presume will be in the future, that certain organized crime syndicates and other criminals anxious to learn about informants and gain access to information that will help them defend themselves in court are also overutilizing the Freedom of Information and Privacy Acts.

Do you have any comments with regard to whether those concerns are justified, or whether they are simply outweighed by your desire to have the widest possible use of first amendment privilege?

Mr. DORNFELD. Mr. Chairman, our society would acknowledge that there may well be some problems in those areas. Our principal desire is to preserve the act in its present form for those who seek information for public purposes. There may be some additional fine tuning that is needed in the area of foreign interests seeking information or things along that line. Our principal concern is to preserve the act for those journalists, scholars, and others who seek the information for the public interest.

Senator HATCH. I appreciate that comment. That is what we are really trying to do. We are trying to fine tune a law that has an important purpose, a law that has efficacy but has prompted much criticism, some of it unjustified, but a great deal of it justified. Our legislative task is to sift the evidence and arrive at the very best possible conclusions in amendatory legislation.

You journalists, it seems to me, provide a great service to our society and to our Government. As we go through the evolutionary process of amending or revising the Freedom of Information Act and perhaps even the Privacy Act, we would appreciate it if you would give us whatever ideas you have concerning various amendments.

Mr. Capener, I personally want to compliment you for being here today and for telling us about some of the things that you and I know about as reported in the Utah media. I think we have some of the most aggressive and intelligent and effective investigative reporters in the country right there in that media, not the least of whom has been you.

Senator HATCH. I am very happy that you are now in an executive capacity because you have either overcovered me or undercovered me. However, we are happy to have you here and appreciate the testimony you have brought here today. I think it is a compliment to our State. Of course, I am sure it is a compliment to States everywhere and to professional journalists everywhere who are doing an honest, credible job of investigative reporting and disclo

sure.

Mr. CAPENER. Thank you very much.

Senator HATCH. Thank you both for being with us.

We may have some additional questions for all witnesses which we may submit to you because of our interests and your interests. If we do, we would appreciate your answering them as soon as you

can.

[Additional material from the Department of Justice follows:]

United States Department of Justice

OFFICE OF INFORMATION LAW AND POLICY

WASHINGTON, D.C. 20530

December 11, 1981

Randall R. Rader, Esq.

General Counsel

Subcommittee on the Constitution

Senate Judiciary Committee

Washington, D.C. 20515

Dear Mr. Rader:

Pursuant to your request, my staff has compiled the following information regarding Freedom of Information Act cases in which agency classification determinations have been rejected by the courts:

1. Holy Spirit Ass'n v. Central Intelligence Agency, Civil No. 79-0151 (D.D.C.). On July 27, 1979, District Court Judge Gerhard Gesell ordered the CIA to disclose certain classified information pertaining to "Koreagate" matters. The D.C. Circuit affirmed this disclosure order in an opinion published at 636 F.2d 838, making this case the Government's first Exemption One loss at the appellate level. The Department of Justice is filing a petition for certiorari in the Supreme Court today.

2. Lamont v. Department of Justice, 475 F. Supp. 761 (S.D.N.Y. 1979), rev'd in part, No. 81-6078 (2d Cir., September 25, 1981). District Court Judge Edward Weinfeld ordered the FBI to disclose portions of two classified documents pertaining to FBI surveillance of the plaintiff and his associates during the 1950s. The Bureau determined that the information in one of the documents could be declassified and released. The Department of Justice appealed with regard to the other document and obtained a reversal from the Second Circuit.

3.

Weberman v. National Security Agency, 490 F. Supp. 9 (S.D.N.Y. 1980), rev'd, 646 F.2d 563 (2d Cir. 1980), on remand, Civil No. 77-5058 (S.D.N.Y., June 5, 1981). This case involved a request for access to a document on a subject matter so sensitive that NSA could not even confirm or deny the existence of the document without harming the national security. District Court Judge Charles Brieant ordered NSA to confirm or deny the document's existence based upon his decision not to allow NSA to prove its entitlement to judgment in camera. After the Second Circuit reversed Judge Brieant on this procedural point, he examined a classified NSA affidavit in camera and immediately awarded NSA judgment on the merits.

4. Hamlin v. Kelley, Civil No. 76-C-3902 (N.D. Ill.). On May 21, 1980, District Court Judge Hubert Will ordered the FBI to disclose numerous classified documents pertaining

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,

Enclosure

Daniel J. Metcalfe

Acting Director

Office of Information Law and Policy

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