a continuing basis regarding the subject. Although this potential source displayed an otherwise cooperative attitude, he stated he would not furnish information for fear his identity might be revealed at some future date due to provisions of the FOIA.

Members of an organization dedicated to bringing about a movement based on Marxism-Leninism, recently discussed the FOIA. A decision was reached to direct inquiries to both the FBI and the CIA under provisions of the FOIA requesting information concerning the organization. It was anticipated that a comparison of information concerning individuals, including dates, times and activities, would identify informants in the organization.

In 1976, a most valuable and productive FBI informant ceased his activity in behalf of the Bureau. His reason for this decision was his concern over the FOIA, which he believed offered the distinct possibility of disclosing his identity as an informant. This source provided coverage on two major subversive- and/or violenceoriented groups of investigative interest.

Recently an informant, who is furnishing information regarding certain foreign visitors to the United States, expressed great concern over the possibility of his identity being disclosed. The source stated that he recently read in a local newspaper that foreign visitors could gain access to FBI records through the FOIPA. A businessman was being approached by an intelligence officer of a foreign government. Upon interview by the FBI, the asset stated that were it not for the FOIPA, he would be willing to be operated against this and other hostile intelligence officers. However, because of FOIPA, he felt a real danger that his identity would be divulged which would in turn seriously and detrimentally affect his business overseas. For this reason, asset has refused to become involved in a foreign counterintelligence operation.

Since the advent of the FOIPA, numerous documents containing information furnished by an FBI asset of long-standing have been released under provisions of these laws. These releases have had a deleterious affect upon an asset's relationship with the FBI. There has been a noticeable decrease in the volume of information furnished by the asset, who has been frank to state that he no longer has his former confidence that the FBI can maintain the confidentiality of his relationship. On numerous occasions, the asset has expressed reluctance to furnish information which he fears might be released under the FOIA, resulting in his physical jeopardy or leaving him open to civil suit. This asset has not yet terminated his relationship with the FBI, but the relationship is now a very tenuous one.

A source who previously furnished information on a time basis relating to foreign terrorist activites has expressed reluctance to furnish additional information because of the possibility of his identity being exposed due to the FOIPA.

Senator HATCH. Thank you so much, Mr. Burke. We appreciate your being with us.

Our next witness is James Wieghart of the American Society of Newspaper Editors.

Mr. Wieghart is currently the executive director of the New York Daily News. He has been with them since 1969 and served as the Washington bureau chief for 7 years.

He previously worked for the Milwaukee Sentinel.

The Freedom of Information Act has been a valuable tool for the media, and we intend to see that it remains an effective aid to newspapers.

Mr. Wieghart, we welcome you-a long-time Washington journalist-back to the Capital and look forward to discussing that topic with you.

We turn the time over to you.

STATEMENT OF JAMES WIEGHART, AMERICAN SOCIETY OF

NEWSPAPER EDITORS

Mr. WIEGHART. Thank you, Mr. Chairman.

I am appearing here before this committee to represent the American Society of Newspaper Editors.

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The American Society of Newspaper Editors is a nationwide professional organization of more than 850 persons who hold positions as directing editors of daily newspapers throughout the United States.

Therefore, we do, Mr. Chairman, have an abiding interest in the Freedom of Information Act.

What I would like to do is summarize my statement, which I will submit for the record.

I would like to make some comments on your statement, Mr. Chairman, and on the statement just given by Mr. Burke for the Secret Service.

Pending before Congress are proposals that would drastically limit the types of information available to journalists and other members of the public under the Freedom of Information Act. These proposals, in my judgment, would provide blanket exemptions to the CIA, the FBI, and other Federal law enforcement agencies as well.

Before going into that area, I would just like to comment on another proposal-Senator Dole's bill-which would broaden the exemption currently enjoyed now by the business submitters of information to Federal agencies.

As you know, exemption 4 of the Freedom of Information Act exempts from disclosure under the act "trade secrets and commercial or financial information obtained from a person, privileged or confidential."

Despite this exemption, a number of spokesmen for the business community have appeared before your subcommittee and said that the Freedom of Information Act can be used as a tool whereby an actual or potential competitor can unearth sensitive business and financial information.

This, of course, is the purpose of Senator Dole's bill.

However, these claims made by some of the witnesses before your committee that additional protection is needed, in my judgment, looking at the testimony, have not been supported or substantiated.

They have said that they face a competitive disadvantage if such information is released, but they have been unable to cite a single instance of competitive injury resulting from Freedom of Information Act disclosures.

A recent study by Prof. Russell B. Stevenson, Jr., of the George Washington University Law Center concluded that businesses have failed to prove a need for broader protection in this regard.

The exemption that Senator Dole proposed would exempt "inforImation which would not be customarily disclosed to the public by businesses." This exemption would cover all information turned over to the Federal Government by business enterprises other than, of course, promotional and advertising material.

If that exemption were broadened, as Senator Dole suggests, important consumer product safety information, for instance, which is submitted to the Government by businesses, would not be available to the general public.

Turning to the exemptions proposed for the FBI and the CIA, we contend that it would really render ineffective the Freedom of Information Act as it relates to those two particular agencies.

I might now add, on the basis of Senator DeConcini's proposed bill, it would add the Secret Service as well.

One of the proposals, S. 1273, by Senator Chafee, would in effect provide a blanket exemption to the CIA. This bill would amend the Central Intelligence Act of 1949 so that information and files maintained by the Central Intelligence Agency would be exempt from the disclosure obligations imposed by the Freedom of Information Act "if such files have been specifically designated by the Director of Central Intelligence to be concerned with special activities in foreign intelligence, counterintelligence, or counterterrorism operations."

In this particular proposal, there is no definition provided for "special activities." Theoretically, at least, the Director of the CIA could shield all CIA files from disclosure simply by designating them as being concerned with "special activities.'

Your own bill, Senator Hatch, S. 587, would provide an equally broad exemption to the FBI and other Federal law enforcement agencies, thereby virtually exempting such agencies from the disclosure obligations imposed by the Freedom of Information Act. That bill would impose a 10-year moratorium on the release of "any records maintained, collected, or used for law enforcement purposes which pertain to a law enforcement investigation."

Thus, notwithstanding that a record may not disclose the identity of a confidential source or satisfy other of the prerequisites for exemption under the existing act, the law enforcement agency has carte blanche to withhold the information until 10 years after the termination of the investigation.

If the investigation should result in a successful prosecution, that would extend the blanket period to 10 years beyond the serving of sentence by that person convicted.

There is another section in your bill, Senator Hatch. Exemption 7 would be amended to permit withholding of records which would "disclose information_relating to any conspiratorial activity specified by the Attorney General.

Theoretically, the Attorney General could block disclosure of agency records by finding retroactive to a Freedom of Information Act request that the records requested relate to two or more suspects and that those suspects might have been engaged in conspiratorial activities.

The proponents of these amendments that have come to you, Senator Hatch, and to other Members of Congress-the law enforcement agencies and the Central Intelligence Agency-have conjured up an image of the FBI and CIA making disclosures which allegedly endanger national security and make foreign governments hesitant to provide sensitive information to the U.S. Government, endanger the lives of FBI informants, and impede the law enforcement obligations of the FBI.

However, these same proponents have thus far been unable to cite one single example where a Freedom of Information Act disclosure by either the FBI or the CIA resulted in any of these harmful consequences.

There are important exemptions, as you know-nine of them-in the Freedom of Information Act which deal specifically with the very areas under consideration now by this committee.

Exemption 1, exempts information "specifically authorized under an Executive Order to be kept secret in the interest of national security or foreign policy." That covers all classified information. It covers information classified as confidential if its authorized disclosure could "reasonably be expected to cause damage to national security."

Exemption 3 also provides significant protection to the CIA. That exemption, which exempts information specifically exempted by another statute, has been consistently construed by the court as referring to section 102(d)(3) of the National Security Act which provides: "That the Director of the Central Intelligence Agency shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."

In commenting on the protection provided by this exemption and the court's rulings on exemptions claimed by the CIA, Stansfield Turner, who was then Director of the CIA, in a speech before the American Society of Newspaper Editors, in 1980, said: "Thus far, we have not lost a case in the courts where we have claimed that something was classified and therefore could not be released."

Admittedly, information which should be kept secret is occasionally made public. As was made clear by Hodding Carter, a former Assistant Secretary of State who was in charge of the State Department's Freedom of Information Act responses, such information was made public "invariably in ways which have nothing to do with" the Freedom of Information Act.

The situation is the same with the FBI and the other Federal criminal law enforcement agencies.

Exemption 7 permits the FBI to withhold information compiled for law enforcement purposes if that information was obtained from a confidential source, or it would interfere with the enforcement proceedings or would disclose investigative techniques or procedures.

In the court's ruling on some challenges where the FBI and other law enforcement agencies have refused to turn over information based on these exemptions, the courts have construed these exemptions very broadly. They have even held that a confidential source may include a State police department, a local police department, a police officer, Government agencies, or someone from foreign law enforcement agencies.

I think we have to also understand that some of the people who wish to broaden the exemptions are the very people who opposed Freedom of Information from the beginning.

Just some brief history:

The Congress of the United States was the moving force in Freedom of Information when the bill was passed in 1966. Every administration-Democratic and Republican-has opposed the Freedom of Information Act and its extensions: President Johnson and President Nixon. President Ford vetoed the amendments of 1974-all of them. He was overridden by the Congress.

There is an historical reason for this.

The reason is that Congress itself has had some of the same difficulties in obtaining not secrets that are going to blow the cover of the United States or endanger the lives of anybody, but information that is vital to Congress functioning.

The press has had this problem in spades.

It was a union of this combined interest of making available to the Congress and the public and the American people information they needed about their Government which brought about the Freedom of Information Act and the amendments of 1974.

You should know that not only did the administrations oppose the Freedom of Information Act, but they tried to sabotage it after it was passed. That was one reason for the rash of amendments in 1974.

Even to this day, the FBI and the CIA are among the Federal agencies most reluctant to comply with Freedom of Information Act requests, often forcing litigants to go to court and use the exhaustive remedies in order to obtain information-not on confidential sources or informants or things of that nature, because they have that exemption and they invoke it constantly, but I am just talking about bread and butter information on a matter which is under investigation.

Let me give you an example. Recently, several years ago, we had that terrible tragedy in Jonestown where a number of people lost their lives. A Congressman of the United States was shot and killed, along with some members of his staff.

James Reston, Jr., was doing a book on that subject. In the course of his investigation, he learned that the FBI had obtained more than 1,000 hours of tape recorded speeches by Jim Jones, the founder of Jonestown. He thought this material might be useful in his study of this subject.

He made a Freedom of Information Act request on the Department of Justice and the Federal Bureau of Investigation, which was turned down and denied on the grounds that there was a pending investigation into the matter and that some of the material in these tape recorded speeches might impinge upon that.

James Reston, Jr., never did get access to that information on the basis of the Freedom of Information Act. Attorney General of the United States Civiletti, after reviewing the matter at the personal request of James Reston, Jr., directed the FBI to analyze the materials that they had and determine what could be released without impinging on the pending investigation.

As a result of that, after looking at it for the first time seriously, all but 25 of 971 tapes in the possession of the FBI were turned over to Mr. Reston and used in his book.

You should know that there is a 10th exemption which Carl Stern, a journalist and a lawyer, has facetiously described as the "we are not going to tell you" exemption. It is utilized constantly by the Federal Bureau of Investigation and by the Central Intelligence Agency.

Despite all of these problems with the Freedom of Information Act, and I know it is a burden to some extent on some of the administrative agencies, and despite their unwillingness to cheerfully comply and their efforts to make it difficult for the public and journalists in some cases to get information to which they are entitled, the act has been a positive benefit both to the public and to the press of the United States, and I think to the Congress of the United States.