FREEDOM OF INFORMATION ACT

WEDNESDAY, JULY 15, 1981

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 9:30 a.m., in room 2228, Dirksen Senate Office Building, Senator Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senators Hatch and DeConcini.

Staff present: Tom Parry, chief counsel; Randall Rader, counsel; Steve Markman, general counsel; Peter Ormsby, professional staff assistant; Dickson Burton, law clerk; and Claire Greif, clerk.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. Good morning. We will call the Subcommittee on the Constitution to order.

Today we are going to hold hearings on the Freedom of Information Act.

Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.

With those words from James Madison, I would like to open this first hearing on the Freedom of Information Act. This inspiring quote from one of our foremost Founding Fathers was also invoked in 1974 when the 1966 act was substantially rewritten. It is an appropriate reminder that our national policy favoring an open and free exchange of ideas was not born in 1966.

In fact, another enduring passage would serve well to remind us of the origins of our Nation's policy on freedom of information. That passage reads as follows: "Congress shall make no law abridging the freedom of speech, or of the press." As you all know, that is the first amendment in our beloved Constitution. In the spirit of Madison's comment and under the mandate of the first amendment, our Nation is irreversibly committed to a freedom of information.

Besides the obvious virtues of an open government, the Freedom of Information Act is particularly valuable to a nation which has just recently welcomed the Reagan administration to the White House. President Reagan has reinvigorated our awareness that the Federal Government must be held accountable for its activities.

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Otherwise, it could become master rather than the servant of the people.

In the context of this refreshing new attitude of the Reagan administration, I would like to share a favorite passage from American literature. Henry David Thoreau wrote:

I went to the store the other day to buy a bolt for our front door, for, as I told the storekeeper, the Governor was coming here. "Aye," said he, "and the Legislature too." "Then I will take two bolts," said I. He said that there had been a steady demand for bolts and locks of late, for our protectors were coming.

That is by Thoreau in "Walden and Civil Disobedience."

The Freedom of Information Act can often act like one of Thoreau's bolts. It can protect us from our protectors by giving us some knowledge about how to comply with Government regulations or how to challenge an arbitrary Government decision.

Just as the Freedom of Information Act holds the Government accountable to an informed electorate, however, the Freedom of Information Act itself must also be held accountable. Since the enthusiastic rewrite of the act in 1974, it has at times frustrated rather than fulfilled its basic mission of insuring Government efficiency and informing voters. FOIA has occasionally disrupted vital national security and law enforcement activities and has been misused by businesses which had no intention of keeping abreast of Government programs but found it a convenient tool for obtaining confidential or other information about a competitor.

FOIA seems to be complicating our vital foreign intelligence capabilities by causing reluctance among foreign sources of information to cooperate with U.S. officials. FOIA appears to also restrict sharing of intelligence amongst Federal and State and local law enforcement officials. Moreover, informants are no longer willing to divulge critical information to law enforcement agencies when they have a constant fear and dread that their identities will be disclosed through the Freedom of Information and Privacy Acts. FOIA also seems to be exploited by competing businesses. More than three out of five requests for information under the Freedom of Information Act are now filed by businesses and their attorneys, not the private individuals, public interest groups, journalists, and scholars that were intended to be the primary beneficiaries of the act.

This subcommittee must begin the legislative process to restore the balance between public access to Goverment information and efficient execution of necessary functions. While insuring that citizens can explore freely their relationship to the Government, we must protect the privacy and confidentiality of other citizens mentioned in Government records.

I would like to conclude these introductory remarks much as I began, with a reminder of our free information heritage. Thomas Jefferson, speaking nearly 200 years ago about the importance of our first amendment, emphasized that:

Were it left to me to decide whether we should have a Government without newspapers or newspapers without a Government, I should not hesitate for a moment to prefer the latter.

Our free information policy has been one of the hallmarks of our Republic for two centuries. From this perspective, we look forward to examining the Freedom of Information Act to insure that this

To amend the Freedom of Information Act and to effect other changes in the law for the purpose of increasing the ability of law enforcement agencies to protect the public security.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 26 (legislative day, February 16), 1981

Mr. HATCH introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Freedom of Information Act and to effect other changes in the law for the purpose of increasing the ability of law enforcement agencies to protect the public security.

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Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Law Enforcement and 4 Public Security Act".

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AMENDMENTS TO THE FREEDOM OF INFORMATION ACT

SEC. 2. Section 552(a)(6)(A) of title 5, United States

7 Code, is amended

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(1) by striking out clause (i) and inserting in lieu

thereof the following:

"(i) within thirty days after receipt of the request, notify the person making the request of such receipt,

the number of pages encompassed by the request, and

the time limits imposed upon the agency under clause (ii) for responding to the request;

"(ii) determine whether to comply with the request and notify the person making the request of such determination and the reasons therefor, within sixty days from receipt of the request (excepting Saturdays, Sundays, and legal public holidays) if the request encompasses less than two hundred pages of records, with an additional sixty days (excepting Saturdays, Sundays, and legal public holidays) permitted for each additional two hundred pages of records encompassed by the request, up to a maximum period of one year; "(iii) notify the person making the request of the right of such person to appeal to the head of the agency any adverse determination; and"; and

(2) by redesignating clause (ii) as clause (iv). SEC. 3. The first and second sentences of section 23 552(a)(6)(B) of title 5, United States Code, are amended to 24 read as follows: "Any person making a request to any agency 25 for records under paragraph (1), (2), or (3) of this subsection