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believe the basic estimates of compliance costs were between $40,000 and $100,000. Our recent figures in 1979 indicated that the compliance costs throughout the Government were at least $47.8 million. Indeed, the actual costs including all of the costs are probably far greater than that.
The problems I have outlined are the primary areas of concern for the administration. The act presents of course a number of other problems which I have not discussed today and which could usefully be addressed by legislation. We expect that our legislation proposals will address some of these, including the difficulties of complying with the current time limits under the act. The lengthening processing backlogs existing in some agencies, which are sometimes over a year, obviously render the act virtually useless for requesters who need a timely response, such as current events media, on whom the public relies primarily for their information.
We are interested in exploring ways not only to relieve the problems which have arisen from the operations of the act, but also to make the act a more useful and timely public information device.
In this regard, I might also note that the Congress may wish to reconsider its own complete exclusion from the act. Nothing in our view of the act to date has convinced us of the wisdom or the necessity for the complete and total congressional exclusion. Certainly no body of government has more to do with how key decisions are made affecting our citizenry. However, we of course recognize that this is an issue which is one ultimately for the Congress itself to assess and resolve.
We wish to stress again that the administration is fully committed to the purposes and philosophy of the Freedom of Information Act. An informed electorate is the best guarantee of a good and effective government. However, ultimately the end we seek through this act, as in the case of any other law, is good government in the public's interest and not the disruption of essential government functions or the waste of government resources to serve only private interests.
As the original sponsors of the act fully recognized, the public's right to know must be balanced against a citizen's right in certain circumstances to communicate confidentially with his government. Furthermore, the public is entitled to an effective government. Such a government cannot in all cases be an entirely open government.
We believe that with the benefit of the experience which we have now acquired in administering this statute, such abuses can be prevented while the act is at the same time made a more effective and useful vehicle for public communication. We look forward to working with the committee in this common effort.
With your permission, Mr. Chairman, I would now like to ask Judge Renfrew if he has some things to add, as I am sure he does, to the comments that I have made.
Senator HATCH. Judge, let me just highlight a couple of points of his testimony and then turn to you.
I was interested in your comment that by contrast only about 5 percent of the requests to the FBI and DEA are from the media, scholars, and public interests groups. That was an interesting thing. I have a great interest in keeping access in those groups. I think it is important. On the other hand, the law enforcement people are going to have to make out a very good case before we interfere with any access by those groups, or at least greatly interfere.
I was also interested in your statement that "Mr. Phillip Agee, for example, has made extensive use of FOIA in his personal crusade to undermine the CIA abroad. The response to one request alone from Mr. Agee for all CIA records containing mention of him cost the American taxpayers over $300,000. That is a Government expense which many citizens and Members of Congress might justifiably question, particularly in a time of severe budgetary constraints. However, under existing law, the CIA had no choice but to expend the money."
Those are just two emotional points that I think you made, but they are nevertheless very serious points. On the other hand, I do not think you are saying that even though we might find somebody reprehensible who is an American citizen we should bar him from access to records pertaining to him if it is important to his best interests to defend himself or otherwise protect his passport or to protect himself from other oppressiveness on the part of Government. You are not saying that?
Mr. Rose. No, sir. Senator HATCH. However, you are saying in this man's case, which is a pretty well-documented case, that it is a pretty reprehensible thing to charge taxpayers $300,000 just to provide him with every mention of him in the records.
Mr. Rose. It seems clear, sir, to us that the purpose was not to protect himself, but rather use it for another purpose which is pretty clearly on the public record.
Senator HATCH. Your statement is duly noted. I have not read it all yet, but I will read it and finish it.
Judge Renfrew, as I have said, we are just delighted to have you here again. I think everybody on the Judiciary Committee has a deep and abiding respect for you. We will be happy to hear what you have to say.
RENFREW. I would like to start with an apology because I simply do not have any prepared testimony. As I said, Mr. Rose called me when I was abroad.
Senator Hatch. We would be happy to have you submit anything you would like to.
Judge RENFREW. What I would like to do is just share my thoughts rather than go back and submit something in writing. However, I do have something I would like to have made part of the record.
When Mr. Rose called me, he asked if I would be willing to come back to share my perspective. I am delighted to do so. I obviously cannot speak for the Carter administration. There is no Carter administration. I also do not wish my appearance here, side-by-side with Mr. Rose, to suggest that I am going to endorse in whole or in part whatever the administration may come up with with respect to their amendments to the Freedom of Information Act.
Senator HATCH. We understand.
Judge RENFREW. I feel strongly about the Freedom of Information Act. I think that is really the bedrock of open government in this country. I heard you talking with the previous witnesses about using a screwdriver rather than a crowbar. If I might suggest, I would prefer a microscope and a scalpel.
Senator HATCH. We can use those instruments, too.
Judge RENFREW. I think what I would like to suggest and have made part of this record in lieu of any prepared statement by me is the work that we in the Department of Justice had undergone in the Carter administration that is contained in the letter from Attorney General Civiletti to Mr. McIntyre of December 18, which sets forth some proposed amendments that we had to the Freedom of Information Act and some supporting memoranda.
As we all know, I think the science of democratic government is a continuing experiment. The Freedom of Information Act, as well as many other important statutes which bear such noble purposes, should be continually evaluated and reviewed to see whether they have fulfilled the purposes for which they were designed.
I think it is time, as we thought in the Carter administration, to look at that act. We had a number of what we thought were modest proposals to conform to existing case authority construing the act and also to conform to some reality.
I would like very much, Mr. Chairman, if that memorandum, letter, and proposed amendments could be made part of this record for the consideration of this committee if you decide to do so.
Senator HATCH. We would love to do that.
Judge RENFREW. As I say, there were a number of areas that were addressed that the administration was interested in: Time limits, what is reasonably segregable, maintaining the confidentiality of business information, the impact on law enforcement and foreign intelligence, the use of the act in lieu of following discover procedures. They are all addressed in that underlying memorandum.
I might close with one personal example of the type of thing where the act was used where I think Congress had not intended that it be used.
During my tenure as Deputy, we had received a request under the Freedom of Information Act for the declination policies of all U.S. attorneys. These policies would set forth in specific detail what quantity of contraband, if apprehended, would form the basis of a prosecution and which lesser amount might not and would not be the subject of a prosecution.
I felt and overruled the Criminal Division at the time that Congress had not intended to give drug traffickers a blueprint of what quantities of drugs to bring into this country to evade prosecution. Yet through misconstruction, in my judgment, and misunderstanding of the congressional purpose and the use of the act, some people thought such information should have been turned over.
I think that all of us are interested in seeing that the act fulfill the purpose for which it was intended. As we know, we have to strike balances for some of the overlapping interests that it intends to serve.
Last night, I read a series of articles. A friend of mine at the Washington Post sent them to me about his concern about possible amendments and dealing with his perceptions about what might be done. Some of the prior
witnesses were talking about the problem of perceptions.
I think perceptions can be reality, but I would hope that this committee, in looking at amendments, would look at them very carefully and keep in mind the overall purpose that act is designed to fulfill and its interest in our society and put the witnesses to the test to give you data and information to justify their requests. The burden should be on those seeking to amend it.
Senator HATCH. We are very happy to have had you take the time to come here. We recognize you as an acknowledged expert, along with Mr. Rose, in this area.
Without objection, we will put the Civiletti memorandum into the record at this point.
All kidding aside, we acknowledge that under the prior administration there has been some very careful looking at this legislation. We commend them for it and commend you and Mr. Rose in particular.
Thank you so much for being with us. It was good to see you again.
We will submit questions to you, Mr. Rose, in the interests of time. They will be extensive.
Mr. Rose. Thank you very much, sir.
[The prepared statement of Mr. Rose and Mr. Civiletti memorandum follows:
PREPARED STATEMENT OF JONATHAN C. Rose
Mr. Chairman and Members of the Committee:
with your permission, I will submit my written statement for
the record, and give a somewhat shorter version orally for the
purposes of this hearing.
I am pleased to appear before you today
to explain the views of the Department of Justice concerning the
need for amendment of the Freedom of Information Act (FOIA).
with me here today is the Honorable Charles B. Renfrew, who served as Deputy Attorney General in the Carter Administration, and thus needs no introduction to most of you. He has graciously agreed to to give the benefit of his experience working with the Act during
the last administration.
The need for revision of the FOIA has been under active study by the Department since December of 1978. Judge Renfrew can comment more specifically on the review of the Act and the proposals developed by the Justice Department during the Carter Administration. At the request of the present Attorney General, the Department of Justice recently solicited comments from all government agencies on the operation of FOIA and requested suggestions on how the Act could be improved. The Department is in the process of analyzing the comments as they are received and drafting possible amendments based on these comments and on the extensive work which was done on this matter by the previous administration.
The Department of Justice does not, at this time, have any specific amendments to propose, nor does it wish to comment