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 govern

ments.

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 FOIA 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 FOIA 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

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 govern

ment.

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.

Judge 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