mount to castrating a stud bull and then complaining that it is not doing its job.

I would like now to address specific sections of the proposed amendment to the current legislation.

On section 4: FCIA opposes in the strongest terms the release of any roster of names of special agents or criminal investigators. Release of such names may not only render such agents ineffective in their work, but it could also render them dead and place their families, as well, in danger from criminal and terrorist groups. It was only last year that a New Hampshire newspaper, preparing an article on Federal employees working in that State, was provided a comprehensive list of every criminal and intelligence agent working there.

Only through the intervention of the Federal Criminal Investigators Association and the cooperation of that newspaper's editor, were the critical names deleted. The same list, obtained in the same manner by other parties, could have endangered both investigations and lives.

FCIA, likewise, supports a total prohibition against providing anyone with confidential law enforcement training manuals. There is no need for the Government to provide a step-by-step outline of how its agents will proceed so that criminals and terrorist elements can devise methods to avoid them.

This section will also, once again, permit cooperation between Federal and local agencies.

In California, the IRS/CID was expelled from the law enforcement information network because years of work would have been compromised under FOIA.

Los Angeles police also deleted several Federal agencies from their information flow, because they could not guarantee confidentiality.

Section 5: The provision of information to foreign nations, except on a case-by-case basis without proper safeguards, sets a dangerous precedent that is virtually unknown in any other country in the world.

Section 6: FCIA is in full accord with the requirement for in camera court proceedings and the maintaining of confidentiality and sealing of any records deemed to be of such a confidential nature during the course of any judicial proceeding.

In New Jersey some years back-and I believe one of the gentlemen involved in this case was from or now is with Mr. Wieghart's newspaper-a pair of enterprising reporters wrote a book using trial transcripts of wire taps conducted during an investigation of organized crime. The court neglected to seal the transcripts, making them public information and revealing all the details the investigating agencies had expected would remain confidential.

The proposed ban on release of information collected during a law enforcement investigation for 10 years is a step in the right direction. The time lapse period should be increased to 15 years to add greater protection to informants and confidential sources. We are not concerned here with a statute of limitations for lawsuits but rather the protection of lives.

Section 10: This section limits the provision of criminal information on prospective employees to prospective employers concerned with national security or hospitals where drugs may be available. This does not take into consideration the fact that a person convicted of a fraud or embezzlement may be applying to a stockbroker for a job or a bank robber seeking employment as a teller. A criminal conviction should be totally available to legitimate inquiry as a means of prohibiting such felons from having free access to the means of committing similar crimes.

The simple fact of a criminal conviction, excluding misdemeanors, must mean that the criminal has forfeited his right of total privacy in the greater interests of the community.

Section 11: This section is tantamount to telling someone that he cannot use the telephone until the installation of a tap has been completed.

Premature disclosure of an investigation by revealing an individual's file to him or informing him that an investigation is underway will not only place that investigation in jeopardy but will also endanger the agents conducting the investigation.

Mr. Chairman, that concludes my formal statement. If I may provide anything additional, I would be happy to do that.

Senator HATCH. Thank you so much. We appreciate your statement and the efforts you have put forth through the years that I have been here.

Why are State and local government agencies more reluctant to share enforcement intelligence with Federal agencies?

Mr. NESOFF. I have named two reasons in this statement-California, in general, and the Los Angeles Police Department. There are also similar incidents in Detroit and a number of other locations throughout the country.

Once the information that the local networks have provided or have gathered is provided to a Federal agency, it then becomes subject to the Federal FOI laws.

It may then become compromised if someone suspects that an investigation is being conducted against him and applies to the Federal Government or that particular agency for information or background material under FOIA.

Senator HATCH. How does the reduced flow of law enforcement intelligence affect investigations of organized crime? Mr. NESOFF. It does not affect it; it stops it.

Senator HATCH. So that is the effect.

Give us your reasons why that is so.

Mr. NESOFF. As any investigative newspaper reporter knows, you do not just suddenly wake up one morning and say: My goodness, I think I will investigate such and such.

Probably about 99.9 percent of all good solid investigative stories come from a tip or somebody who has suggested that you look into something or a good solid confidential informant.

Law enforcement works pretty much the same way-a reason to suspect that something is amiss somewhere is given to an agency or an agent and an investigation is begun that way.

Without this confidentiality and without an informant knowing that his identity will be totally protected, most of these cases cannot be started, much less brought to a conclusion.

I would refer, again, to the Deep Throat incident in the Watergate case. From all that we apparently know about it, this is where the bulk of the information came from which got them started. If this particular individual had had any suspicion that his identity would be exposed, I am sure the two gentlemen who prepared that story would never have gotten the critical material that they needed.

Senator HATCH. Are you aware of specific examples of informants being disclosed as the result of a FOIA request or of a potential informant refusing to cooperate as a result of fear of disclosure through FOIA?

Mr. NESOFF. I have some information relating to that. It would be rather difficult to pull it out of the report that I have right now. I will make a copy of that report available to your committee. Senator HATCH. Without objection, that will be made a part of this record.

In 1980, a Federal court ordered the release of a roster of Federal customs officers. That was Lesar v. Department of Justice, 636 F.2d 472.

What effect has this had, or might it have in the future, on Federal law enforcement?

Mr. NESOFF. The publication of a list of the officers?

I am not familiar with that particular case. I can relate it to the instant case that I mentioned in New Hampshire which occurred about 7 or 8 months ago.

The newspaper was conducting a legitimate inquiry as to what Federal employees were living in the State. They were trying to show a relationship between the income of the Federal employees and the depressed areas of the State.

Along with the list of clerical and administrative employees, a comprehensive list of every special agent and every intelligence agent and every criminal agent working or living in New Hampshire was also furnished to the newspaper.

Several of our people became aware of it. One of our representatives, John McIrney, contacted the newspaper immediately. Through very, very close cooperation with the editor, the names were deleted.

Had these names been printed, it would have compromised immediately the identity of every agent living or working in the State.

A number of these were working undercover. If their identities had been disclosed, it would have immediately destroyed the cases they were working on and could very well have cost them their lives as well.

Senator HATCH. We sure appreciate your coming in. As usual, your remarks are well put, I think.

Mr. NESOFF. Thank you very much, Senator. As always, we remain available to you for whatever additional help we may be able to give.

Senator HATCH. Thank you. We really appreciate that.
[Additional information submitted by Mr. Nesoff follows:]

THE NEGATIVE IMPACT OF THE FREEDOM OF INFORMATION ACT AND PRIVACY ACT ON LAW ENFORCEMENT AGENCIES

(By Bob Nesoff)

The Right to Privacy and openness of government is an issue that has grown in the past 10 years. Prompted by publications of illegal and unethical practices by government officials and accelerated by the Watergate revelations and Pentagon Papers, numerous books and articles on the subject have been published. Citizens fear that the government's secrecy can only lead to abuse. Furthermore a government that can perform surveillances; compel individuals to furnish information; collect, disseminate and exchange information; and a society which maintains files such as public school transcripts, college admission and progress records, motor vehicle bureau records, employment records, social security records, life insurance records, income tax returns, professional and trade licensing records, pension records, military files, arrest records, prison records, mental health records, welfare records, traffic violator records all has created a distrust among its citizens that this proliferation of records is not sufficiently controlled to protect individual privacy. Thus, with this background, Congress enacted the Freedom of Information Act, herein abbreviated as FOIA, in 1974. This Act created public access to Federal Government records, except for information specifically exempt.1

In addition, Congress enacted the Privacy Act, PA, of 1974 which emphasizes protecting an individual's personal privacy; listed procedures to enable people to obtain their own files; and furnished a descriptive list of its records systems.2 The tax reform act of 1976 was also an outgrowth of the citizen's cry for privacy and limits dissemination of tax returns and taxpayer information for non-tax related matters.3

Many states have enacted their own openness laws to provide public access to State government records and activities and privacy laws to regulate the collection and dissemination of information by State agencies and by private organizations. New York State enacted its own Freedom of Information Law September 1, 1974 and a Sunshine Act which allows for openness in executive meetings.*

However, Congress was unable to realize the numerous difficulties and problems created by the passage and implementation of these laws. Prof. Arthur Miller, Harvard Law School, advised in New York Times article dated April 12, 1978 that "There will be an inexorable clash between the rights of the individuals to privacy and the First Amendment guarantee of a free "15 press."

6

Another article from the New York Times described a legal challenge between the Priest and Penitent confidentiality. Neither was Congress prepared for the numerous and sometimes ridiculous requests made under the FOI/PA.

The largest area of controversy exists in the citizen's right to privacy vs. his right to be secure. The citizen's right to know vs. government's secrecy. Although voluminous literature has been written concerning the citizen's right to privacy, very little has been written reflecting Law Enforcement officials' attitude pertaining to the inapplicability of the acts. In this same regard, very little has been written reflecting Law Enforcement officials' concerned opinions as to their inability to protect the public under the auspices of the POI/PA. Nor has there been literature published concerning the many opportunities the FOI/PA offers criminal elements to impede ongoing criminal investigations and intelligence operations.

Congressional Hearings were conducted from 1975-78 concerning this area of dispute. As a result of these hearings, Law Enforcement officials at all levels of government stated that the proliferation of access and privacy laws has been instrumental in creating a restrictive climate which affects their ability to obtain information from the public and institutions, to recruit and maintain informants and to exchange information with other law enforcement agencies.'

It is the intent of this paper to explore the problems that the FOI/PA and Tax Reform Act of 1976 have created within the Law Enforcement Agencies. The basis of this paper are the published summary reports of the Senate Subcommittee on

1FOIA, U.S. Code 552, enacted July 4, 1966 and amended by Congress 1974, effective February 19, 1975.

2Privacy Act, Public Law 93-579. 93rd Congress S. 3413 Dec. 31, 1974.

"Tax Reform Act, Oct. 4, 1976. Public Law 94-445.

*Freedom of Information Law-Miniguide to the New York State Law, Pub. NYSS Ba/ Journal, January 1975.

"New York Times, "Right to Privacy vs. Right to Know", Apr. 12, 1978, p. B12.

"New York Times, "Priest and Penitent Legality Issue", Sept. 3, 1977, p. 20.

'Report by the Comptroller General, United States, "Impact of FOI/PA on Law Enforcement Agencies", Nov. 15, 1978, p. 1.

Criminal Laws and Procedures dealing with "The Erosion of Law Enforcement Intelligence and Its Impact on the Public Security" and the report by the Comptroller General of the United States entitled "Impact of the FOI/PA on Law Enforce ment Agencies". The problem areas assert themselves not only in criminal investigations but also intelligence gathering and national security investigations. It is not my intent to argue for the abolition of the FOI/PA because they all contain positive merit. The theme of this paper is to illustrate that acts furthering the privacy revolution should be implemented with an understanding that they should not interfere with the public's right to be secure; that a full understanding of the impact and mechanics of the FOI/PA should be undertaken before implementation. This paper intends to present a posture that the Congress in its attempt to secure an individual's right to privacy has impaired society's ability to defend itself from the individuals who would destroy it. The FOI/PA and its accompanying satellite acts may have dangerously weakened the government's ability to protect the individual and the country.

It is obvious that the FOI/PA and the Tax Reform Act is not the only factor responsible for the regressive climate towards law enforcement investigations and intelligence gathering. However, this report will only deal with the negative impact the FOI/PA has caused the Law Enforcement Agencies.

IMPAIRMENT OF LAW ENFORCEMENT OPERATIONS

In conducting criminal investigations, all pertinent facts of a case must be obtained, developed and analyzed before a conclusion can be drawn. While conducting a criminal investigation, the gathering of facts phase is developed through witnesses, informants, surveillances and institutions such as banks. These facts are recorded and maintained for future investigations.

Law Enforcement Agencies have asserted that criminal investigations and intelligence operations have been inhibited and eroded by the FOI/PA. Generally they believe the Acts (1) are a financial and administrative burden, (2) inhibit their ability to collect information, and (3) diminish the quality and quantity of information exchanged with other law enforcement agencies. These three categories will be examined later in this report. 8

Law Enforcement Intelligence can best be defined from this excerpt by Mary C. Lawton, Deputy Assistant Attorney General.

"Intelligence gathering involves the collection of information about individuals, their activities and their planned activities, for the purpose of preventing or preparing to deal with threats to fundamental government interest or to individuals whom the government has a special duty to protect.'

Mr. John Olszewski, former Director of Intelligence, Internal Revenue Service told the subcommittee:

"Information about members of these criminal groups at every level is essential to effective law enforcement today, tomorrow, and even years from now. A low-level member of a loanshark syndicate in Chicago, Detroit, or New York may be tomorrow's upper echelon syndicate leader in Las Vegas.

"For example, a major racket figure, said to be currently under investigation in the West, 7 years ago was a midlevel strong-arm man in the Midwest. His background, former contacts, and associates are important factors in today's investigation. Unless this background information over the years is maintained-retainedand is legally available, investigations will be unnecessarily prolonged and are likely to be unsuccessful. Thus, it is the public interest which suffers." 10

11

It is difficult to quantify the extent of the erosion, however, three years of testimony before the Senate Subcommittee has produced the following:1 Intelligence files laboriously built up over decades have in many cases been completely destroyed-i.e., city of Baltimore; city of Pittsburgh; and Washington, D.C.

In other instances, most notably the New York State Police and the Chicago Police Department, the intelligence files have been impounded now for several years.

In many more instances-the New York Police Department and the Los Angeles Police Department are outstanding examples-there has been a massive purge of

8

Report by the Comptroller General, U.S., "Impact of the FOI/PA on Law Enforcement Agencies", p. 2 U.S. Government Printing Office.

Report of the Subcommittee on Criminal Laws and Procedures, "The Erosion of Law Enforcement Intelligence and Its Impact on the Public Security", U.S. Government Printing Office. 10 Ibid, p. 16, Testimony before Subcommittee.

"Ibid, p. 37-38.