FREEDOM OF INFORMATION ACT

FRIDAY, JULY 31, 1981

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 9:40 a.m., in room 5110, Dirksen Senate Office Building, Senator Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senators Hatch and DeConcini.

Staff present: 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. The committee will come to order.

I apologize for being late, but I had one interview on top of another this morning and just could not get them completed.

Today we convene the third in a series of hearings on the Freedom of Information Act.

In the first two hearings, we have taken testimony that has reaffirmed my belief in the need for a strong Freedom of Information Act. A democratic society needs an informed public to hold Government accountable for its actions. However, we have not yet reached a proper balance between an open Government and performance of certain essential governmental functions.

Last week, we examined the fourth exemption of the Freedom of Information Act which Congress originally created to protect trade secrets and confidential business information.

The judicially created competitive harm standard leaves bureaucrats and judges to determine the market value of confidential information that might be of critical importance to a private busi

nessman.

Moreover, the Freedom of Information Act does not require that notice be given to submitters of information before their information is released to third parties, leaving submitters with no procedural remedies to adequately protect their secrets.

Our foreign intelligence capabilities have been significantly impaired as a result of the Freedom of Information Act. Foreign sources are more reluctant to supply critical information to our intelligence officers because of a widespread belief that the U.S. Government cannot protect its secrets.

Additionally, the Central Intelligence Agency and other agencies are required to respond to requests from foreign nationals and governments, including the KGB, the same as they would respond to requests from American citizens.

On September 16, we will be hearing testimony from the Central Intelligence Agency and others regarding the national security implications of the Freedom of Information Act.

Today we will be focusing on another critical area that needs close scrutiny by the subcommittee.

In 1978 the Subcommittee on Criminal Laws and Procedures, of which I was a member, held hearings on the erosion of law enforcement intelligence. As a part of those hearings, we looked at the Freedom of Information Act.

In the report on the hearings, the subcommittee concluded the following:

The sponsors of FOIA wanted to reinforce the right to know. It can safely be said that none of them foresaw the host of difficulties the legislation would create for the law enforcement community, nor did they foresee the utilization that would be made of the act by organized crime and other criminal elements or the damage it would do to the personal security of individual citizens.

Among other things, certain law enforcement investigative and training manuals are subject to FOIA requests, as are some investigative personnel rosters.

The Freedom of Information Act has inhibited the sharing of law enforcement intelligence between State and local government agencies and Federal law enforcement agencies.

Informants are much more reluctant to cooperate with Government investigators, giving no small relief to organized crime.

According to the 1978 subcommittee report, the FBI had close to 1,100 informants in 1975 monitoring the activities of terrorists and extremist groups, both far left and far right. By July 1978, there were only 42 such informants nationwide. To drop from 1,100 to 42 in just a few years is startling to me.

As a result, in September 1978, Attorney General Griffin Bell suggested amending FOIA to exempt criminal investigative records from disclosure for a period of 10 years to correct the damage done to the informant program.

The FBI concluded the 10-year moratorium on investigative records in its proposals for amending FOIA which Director Webster submitted last year.

It is also a part of S. 587 which I introduced and which the subcommittee will examine during the course of these hearings. Again, what I want to emphasize is that we need the Freedom of Information Act, and we need it to be strong and effective. Its very worthy and legitimate_objectives-more openness in Government and more freedom to find out disclosures-must be carefully balanced with equally legitimate Government functions that protect the personal security of the citizens of this country.

Prof. Charles Rice of the Notre Dame Law School described the challenge before us:

What is necessary now is not a dismantling of these statutes but rather corrective surgery to bring them more into line with their original and laudable purpose.

Senator DeConcini, we are very happy to have you here. We would be happy to take your statement at this time.

STATEMENT OF DENNIS DeCONCINI, A U.S. SENATOR FROM THE STATE OF ARIZONA

Senator DECONCINI. Mr. Chairman, I want to begin by commending you for holding this important hearing. You have already had some other hearings on the Freedom of Information Act. I really appreciate the commitment that you have demonstrated.

The issues which affect the Secret Service are of great importance to all of us.

I also want to express my personal gratitude to Senator Denton and to you, again, for your leadership and cooperation in agreeing jointly to move S. 1394, the Secret Service Reform Act of 1981, through the committee review process in such a prompt fashion, along with your oversight hearings on the Freedom of Information Act.

Your efforts in support of this legislation are deeply appreciated by this Senator.

Mr. Chairman, I will not spend much of the committee's time in going over the various provisions of S. 1394. The intent is crystal clear.

It is designed to provide the Secret Service with an exemption to the Freedom of Information Act and to provide other statutory changes to better enable the Secret Service to protect the President of the United States and other protectees under law from potentially dangerous or terrorist groups or individuals.

It also makes certain provisions to improve the criminal investigative functions at the Secret Service without usurping the authority of other law enforcement agencies.

Obviously, a focus of today's hearings will be on the impact of the Freedom of Information Act on Secret Service operations. However, I hope that we can touch briefly on other provisions contained in S. 1394.

I want to welcome Mr. Burke and thank him for pinch hitting for the Director, Stuart Knight, who I understand is on the Secret Service disabled list with a bad back and could not be with us today.

We wish him a speedy recovery.

Anyone who witnessed the tremendous courage of the agents involved in the March 30 incident at the Hilton and anyone who saw, as I did, the outstanding group of agents training hard at the Beltsville, Md., training facility knows what a fine organization you have and of which you are a part.

We are grateful for that leadership and for the restraint that has been imposed by the leadership on your agents and by the professionalism exhibited by your agency.

I think that Congress is now attempting to find a resolution that will help you do your job and make it a little easier and at the same time protect the citizens of this country.

I thank you, Mr. Chairman, once again, for your step forward in this oversight of the Freedom of Information Act and certainly for considering this as a hearing for S. 1394.

Senator HATCH. Thank you, Senator. We appreciate your leadership in this area.

I personally appreciate working with you on this subcommittee.

Our first witness today was, of course, going to be, as Senator DeConcini stated, Stuart Knight, Director of the U.S. Secret Service.

Unfortunately, he was recently injured and suffered a very painful and incapacitating back injury. He will, hopefully, be up and around in a few days but was unable to be with us this morning. To present his testimony, he has sent Robert R. Burke, Assistant Director of Investigation for the Secret Service.

Please convey my wishes for a speedy recovery to Mr. Knight if you will, Mr. Burke.

Mr. Burke graduated from Loyola of Chicago and received his master's at Indiana University.

He was an officer in the U.S. Army.

While with the Secret Service, he has received the Treasury Department Meritorious Service Award and the Career Education Award.

Presently, 65 percent of the protective agents of the Secret Service are under his direction and jurisdiction.

Before you begin, Mr. Burke, I would like to advise you and all the other witnesses that your entire written statement will be included in the record of these proceedings.

To the extent that you and other witnesses can make your oral statements concise, it will allow us more time for questions. We hope that you will keep that in mind and make your statement as concise as possible.

The record will be built by not only your oral statement but your written statement as well.

It is nice to have you with us, and you may proceed in any way you wish.

STATEMENT OF ROBERT R. BURKE, ASSISTANT DIRECTOR FOR INVESTIGATIONS, U.S. SECRET SERVICE

Mr. BURKE. Thank you, Mr. Chairman.

I am pleased to appear today before your committee.

As you know, Mr. Chairman, the Secret Service protects the President of the United States, the Vice President, and visiting foreign heads of state and government. The Secret Service also has the responsibility of protecting major candidates for the office of the President and Vice President of the United States.

In addition, the Secret Service has major criminal responsibilities involving threats against the President and counterfeiting and forgery of U.S. Government obligations.

The Secret Service obtains information from the law enforcement community on individuals and groups who may pose a threat to the safety of the President. The Warren Commission, after the assassination of President Kennedy, recommended that the Secret Service intensify its efforts to identify persons who threaten the safety of the President. The Warren Commission also recommended that other Federal agencies furnish intelligence information to the Secret Service.

Over the years, the Secret Service has received substantial amounts of information from the law enforcement community. In recent times, however, the quantity and the quality of the informa

tion has declined. We believe this came about, in part, as a result of the Freedom of Information Act.

The Freedom of Information Act has contributed to establishing a climate which has adversely affected our ability to perform our protective and criminal investigative missions. The Secret Service is meeting with increasing difficulty in obtaining information essential to our protective and investigative efforts.

Mr. Chairman, we work very closely with State and local law enforcement on protection and criminal investigations through our network of 64 field offices and 40 resident agencies. We have learned that there is a definite reluctance on the part of State and local law enforcement to provide Federal law enforcement with essential intelligence information. This is because these State and local law enforcement people doubt the ability of Federal law enforcement officers to maintain the confidentiality of the information under the Freedom of Information Act. They are fearful of compromising informants and revealing their investigative interests prematurely.

In addition, State and local law enforcement has greatly curtailed or ceased altogether their activities in the collection of intelligence on individuals and groups.

This is due, in part, to the restrictive climate regarding intelligence activities and their own local freedom of information restrictions.

I hasten to add, however, in the category of protection, that State and local law enforcement are cooperative and willing to assist the Secret Service. However, in the area of intelligence, they cannot give us what they no longer have.

Law enforcement depends to a great degree on confidential informants, and the Secret Service is no exception. Informants are increasingly reluctant to come forward because they are fearful their identities will be revealed.

Convicted felons and persons we believe are involved with criminal activities make Freedom of Information Act requests to several different law enforcement agencies. Through a careful sifting of the responses, they may discern the very information sources that the law enforcement agencies wish to protect.

A reviewer in the exhaustive line-by-line examination of material available for release under the act can make a mistake which can result in revelations damaging to the integrity of our procedures and to sources of information.

We believe that ordinary citizens are increasingly reluctant to come forward with information, because they fear their confidentiality will be compromised.

The Secret Service travels overseas with our protectees. An essential part of our overseas protection activities is the liaison between the Secret Service and foreign law enforcement agencies. These law enforcement officers, on an operational level in other countries, express great reluctance in supplying us with protective and criminal intelligence information because they doubt the ability of U.S. agencies to maintain the confidentiality of information. Director Knight of the Secret Service is a former vice president of Interpol and a member of the executive committee. He has been

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