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custody of the PBI in San Francisco.
The FBI consistently
denied access to all of these tapes and every document in its
possession on the ground that an active criminal investigation into a possible criminal conspiracy to kill Congressman Leo Ryan was in progress. 26/
When requested to segregate and disclose those tapes and documents irrelevant to the investigation, the FBI claimed that it would involve too much time and administrative expense.
27/ Reston ultimately obtained some of these materials
but not through the FOIA.
In February 1980, Attorney General
Civiletti, after a personal appeal from Reston, rejected the
recommendations of the FBI and directed that a compromise be
worked out. Once the FBI was forced to consider seriously which tapes should be withheld, the FBI released to Reston all but 25 of the 971 tapes in its possession. 28/ The results
of Reston's research was used in his recently published and
29/ informative book on the Jonestown tragedy. The CIA
never even bothered to respond to Reston's FOIA request to that agency. 30/
26/ Id. at 16.
Id. at 17.
29/ J. Reston, Our Father Who Art in Hell: Death of Jim Jones (1981).
The Life and
187 New Republic at 17.
Given the broad exemption accorded the FBI, and the ease with which the FBI can avoid disclosure, it is difficult to imagine that the FBI is indiscriminately revealing informants'
after FOIA requests by organized
crime. Even though Deputy Attorney General Schmults asserts that "organized crime figures" have used the Act, he frankly concedes that "the FBI believes that disclosure of records under the Act has not yet led to physical retaliation against a confidential source.-31/
Indeed, this is the result of
the careful legislative scheme worked out by Congress in 1974
to protect confidential sources and to prevent those sources
from becoming unwilling to deal with the FBI.
Moreover, it is
difficult to imagine how this interest is any better pursued
by such proposals as
a ten-year moratorium on disclosure of
all law enforcement records and a complete exemption for records of investigations into any conspiratorial activity.
32/ Although the dangers to national security and law enforcement cited by advocates of a blanket exemption for the CIA, FBI, and other law enforcement agencies turn out upon analysis to be illusory, the dangers to representative democracy posed by shielding any political institution pletely from any and all public scrutiny are very real.
31/ Remarks of Edward C. Schmults, Deputy Attorney General, Before the Second Circuit Judicial Conference 5-6 (Department of Justice Release, May 9, 1981). 32/ s. 587, 97th Cong., 1st Sess. S 7 (February 2, 1981). The POIA rests ultimately on the principle that the government of this country unlike governments of totalitarian regimes represents, and is accountable to, the people. Despite the considerable impediments which already exist, serious and responsible journalists have been able to force disclosure under the FOIA of misgovernment, maladministration, and abuse of legal authority. FOIA disclosures by the CIA have revealed that the agency engaged in domestic surveillance activities with respect to political dissident 33/ and that
the CIA had engaged in drug experiments using unconsenting
An FOIA request forced the PBI to reveal
that the Bureau maintained for fifteen years a counterintelli
gence program (COINTELPRO) designed to undermine and discredit political dissidents. 35/
Such disclosures have had no conceivable effect upon the legitimate national security func
tions of the CIA or law enforcement functions by the FBI;
rather, these disclosures have revealed improper, possibly unlawful, and certainly embarrasing conduct by both agencies. This is precisely the sort of information which, in a system of government such as ours, should be made public.
33/ New York Times, March 9, 1979.
34/ Washington Star, July 20, 1977.
In sum, it is imperative that Congress carefully and critically consider proposals to exempt the FBI and CIA from the requirements of the FOIA as well as to shield from dis
closure information supplied by business enterprises. The Act, it currently stands, has been precisely drafted in order to protect fully all legitimate interests in national security, law enforcement and business confidentiality. As a result, it cannot be seriously claimed that the Act
has resulted in a compromise of those interests as
of forced disclosure of information which should have remained
Instead, what appears to be involved is a
frontal attack on the principle of an open government which
underlies the FOIA.
The words of James Madison bear con
sideration in this respect:
A popular government, without popular
Senator HATCH. Our next witness is Katherine A. Meyer, director of the Freedom of Information Clearinghouse.
Ms. Meyer is a graduate of the Catholic University Law School. She has practiced privately in Washington, D.C., and has been with the FOIA Clearinghouse for 2 years.
She is a frequent lecturer on the Freedom of Information Act and wrote a chapter on the law enforcement exemption in the book, "Litigation Under the Federal Freedom of Information Act and Privacy Act.”
Your published articles and experience as a litigator with FOIA should provide some excellent background on the impact of FOIA on law enforcement, so we are certainly interested in what you have to say, Ms. Meyer. STATEMENT OF KATHERINE A. MEYER, DIRECTOR, FREEDOM
OF INFORMATION CLEARINGHOUSE Ms. MEYER. Thank you, Mr. Chairman. And thank you for the opportunity to testify about the Freedom of Information Act.
The Freedom of Information Clearinghouse with which I am an attorney and also the director assists the public and the press in the effective use of the FOIA and other open Government laws. We have also litigated approximately 75 cases under the FOIA.
We believe that the FOIA has proven to be an effective tool for holding the Government accountable to the people, disclosing Gov. ernment waste and wrongdoing, and keeping the public informed on important matters of health and safety.
We, therefore, urge this committee to move cautiously and on the basis of an informed record before taking any action that would restrict the public's right of access to Government records.
My written statement which I would like to submit for the record focuses primarily on S. 587, which would significantly amend the FOIA, both procedurally and substantively.
I want to make some very brief comments about the FOIA in general and particularly about the argument that there is a need for greater protection for law enforcement records.
The law enforcement records exemption, No. 7, of the FOIA was amended in 1974 to do away with a blanket exemption for all records placed in an investigatory file by a law enforcement agency or any other agency and to require an agency wishing to claim the protection of that exemption to specify one of six harms that would result from disclosure of the information for instance, invasion of privacy, interference with an on-going law enforcement proceeding, and the identification of a confidential source.
What I want to make clear today is that we do not necessarily think those six enumerated harms are etched in stone. Certainly if the law enforcement community can show a legitimate need for further protection, we are willing to provide whatever assistance we can to fashion an appropriate remedy. In fact, we certainly would like to be included in that process.
For example, we do not have any objection to amending the present exemption 7(D) to allow agencies to withhold information which would tend to identify a confidential source, rather than just information which would reveal a confidential source, although we