In a case involving approximately 100 forged checks in a midwestern city, the USSS attempted to develop information on the accounts in which these checks were deposited. Banks refused to furnish copies of documents from three accounts without a subpoena, even though the banks stood to lose a total of $40,000. These banks cited the P/A as a reason for failing to furnish the requested information. Information was provided after subpoenas were served.

During an unlawful flight to avoid prosecution/murder investigation, the FBI found out the nonpublished telephone number where the fugitive would be for the Christmas holiday. The FBI tried to obtain the location of the number from various officials of a midwestern telephone company, but they refused to release the information without a subpoena. As a result, the fugitive was not apprehended.

In a fraud investigation the FBI was denied information submitted to Medicare through an insurance agency. This information showed Medicare fraud perpetrated by the staff of a union-owned hospital and was withheld by the insurance agency because of the P/A. Most of the information desired was ultimately obtained by a Federal grand jury subpoena.

28

Mr. Donald Wartman, Acting Commissioner of the Social Security Administration, stated in an article in the New York Times on July 5, 1978 that there has been a progressive erosion of his agency's ability to resist requests from Law Enforcement officials in recent years and that although the Social Security Administration prohibits such disclosures, he regularly provides information about an individual without the subject's consent, to a member of Federal and State Agencies. 29

However, Law Enforcement Agencies have recorded numerous instances of the Social Security Administration's refusal to furnish information to Law Enforcement Agencies. One example is:

A father took his 5-year old son away from the boy's grandfather who had legal custody. As a result, a Federal warrant was filed for the father's arrest and the FBI began looking for him. Three months later, the father contacted the Social Security office in the city where the child previously lived and requested that the child's Social Security check be forwarded to another office. The Social Security office told the grandfather about the request. The FBI immediately contacted the Social Security claim representative, explained that there was a Federal warrant for the father's arrest and asked where the father wanted the check sent. The claim representive told the FBI that Social Security headquarters had instructed him not to release any information without a subpoena. Two days later, the assistant U.S. attorney obtained a subpoena from the U.S. District Court Clerk and the FBI served the claim representative with the subpoena. Local Social Security officials contacted the Assistant Regional Attorney of the Department of Health, Education and Welfare, who advised them not to honor the subpoena based on Social Security regulations. The assistant U.S. attorney then advised the grandfather to go to the local Social Security office and request the needed information under the FOIA. Through an FOIA request, the grandfather received all the information needed to enable the FBI to locate the child and arrest the father. 30

EXCHANGE OF INFORMATION

Exchange of Information among Federal, State and local law enforcement has been inhibited by the enactment of the P/A.31 Certainly, a purpose of the P/A was to control the amount of unjustified information exchanged between the Law Enforcement Agencies. However, the P/A has created such limits and hardships on obtaining inter-agency information, that this channel has almost been eliminated. The guidelines in some instances are completely misinterpreted and taken out of context. It appears numerous officials, leary of a civil suit, have absolutely refused furnishing information to other Law Enforcement Agencies, citing the P/A.

Law Enforcement officials; FBI, DEA and ATF, complained about difficulties in obtaining taxpayer-related information from the Internal Revenue Service. The difficulties in obtaining information from the I.R.S. arises from provisions of the Tax Reform Act of 1976 which restricts the dissemination of taxpayer-related information for non-tax related crimes. 32

28 Ibid, case examples.

29 New York Times, "Misuse Of Files On Millions Feared", July 5, 1978, P. 1, p. D9.

30 Report by the Comptroller General, U.S., "Impact of FOI/PA on Law Enforcement Agencies," 11/15/78, case examples p. 21-22, U.S. Gov't. Printing Office.

31 Ibid, p. 10.

32 Ibid, p. 10.

The I.R.S. participated in a Narcotics Trafficker Program with Customs, Justice Department and DEA in the early 1970's. This program was one of many strike force programs in operation and was designed to reduce the illegal profits in drug trafficking. Mr. Eugene Rossider, former Assistant Secretary of the Treasury, described the program "as one of the most successful law enforcement programs in our history. In a short period of time, 1800 major dealers were identified and investigations started on most of them, along with 3000 minor dealers". Mr. Rossider is firmly convinced that the cooperation between the agencies that made this program so successful has been eliminated due to the restrictions of the FOI/PA and its statellite provisions. 33

James Power, Chief, U.S. Capital Police, described the importance of exchange of information between Law Enforcement Agencies.

Prior to the enactment of the Freedom of Information Act, as amended, and the Privacy Act, law enforcement officers and agencies felt free to exchange information concerning persons or groups posing threats of potential violence or of massive disorder. We were able to plan and could therefore prepare for security with less show of force, as we felt that we had fair knowledge of what was being comtemplated by the various groups, which we expected to be encountering on any given date. All law enforcement professionals, and the distinguished members of this subcommittee, are thoroughly aware that in law enforcement we are wholly dependent for our effectiveness on rapid, timely and reliable information from a wide range of sources, including: other law enforcement agencies; a concerned and cooperative public; non-law enforcement agencies of government; banks; businesses; schools; and others.

Our ability-collectively and cooperatively within the law enforcement community at all levels-to rapidly gather, assemble, analyze, retrieve, and disseminate among professionals in law enforcement information about crime and criminals is absolutely crucial to our role in providing a reasonably safe and wholesome environment for our citizens.

I am attempting to describe an open and straightforward system of collecting and evaluating data about criminals, criminal events, criminal conspiracies, or other activities that are apparently crime conducive. The collection and evaluation of such specific kinds of facts and details yields criminal intelligence-I prefer to say "criminal information" to avoid confusion with the past-that has a reasonable chance of leading to the identification of offenders and their successful prosecution. 34

Examples of some cases where the FBI encountered difficulties in obtaining information from Federal Agencies follow:

During an FBI investigation in a western city, under the Racketeer Influence and Corrupt Organization statute, information developed on a subject was provided to an I.R.S. agent. The I.R.S. agent advised that due to the P/A, the I.R.S. could accept information valuable to them but could not provide any information that would aid an FBI-related case.

During an unlawful flight to avoid prosecution/murder investigation, the FBI found that the subject was receiving a monthly disability check from the Social Security Administration. Although the Social Security Administration confirmed the subject was getting a check, it declined to furnish the address where the check was being sent because of the P/A. The subject was eventually located, but it took over 3 months of investigative effort. 35

STATE AND FEDERAL AGENCIES

State officials fear that exchange of information with Federal agencies may lead to the identity of their own sources. As mentioned previously, requests under the FOI/PA have enabled the requestors to glean from the information furnished by the Federal agency the identity of the informant, as well as the specifics of the investigation. This also hampers the State's ability to recruit and obtain information through informants.

Reverse situations have also occurred wherein information was requested by the State was not furnished by the Federal agency. To illustrate, an informant of the I.R.S. advised an I.R.S. agent that he was a witness to a murder and would be willing to testify at the trial conducted in Florida. The informant advised the I.R.S.

33 Report of the Subcommittee on Criminal Laws and Procedures, etc., Eugene Rossider, former Assistant Secretary of the Treasury, p. 90.

34 Ibid, testimony of James Powell, Chief U.S. Police, May 9, 1978, p. 39.

35 Report by the Comptroller General, U.S., "Impact of FOI/PA on Law Enforcement Agencies," 11/15/78, case examples, p. 11, U.S. Government Printing Office.

agent that he witnessed the defendant murder the victim. Under FOI/PA and informant guidelines, the agent could not disclose this information to the Florida prosecutor until a full written report was sent to Washington and approved. One month later Washington notified the Florida prosecutor. However, the trial ended three weeks prior to the Washington notice and the defendant was acquitted. Several examples of situations in which local officials have been reluctant to provide information.

FBI agents working on organized crime cases in a southwestern city reported that they were excluded from intelligence meetings held by State and local law enforcement agencies. Several State law enforcement officers cited concern over FOI/PA disclosures as the reason for excluding the agents from the meetings.

A southern city's police intelligence unit learned that one of its intelligence reports, furnished to the FBI with assurances of confidentiality, had been released under the FOIA. Although this document did not reveal the identity of any informants, the unit refused to furnish any further written information to the FBI. It simply did not believe, the FBI could guarantee confidentiality for information provided, and it wanted to avoid the possible compromise of informants.

An extremist organization's leader, who was convicted of two murders, received documents from FBI headquarters through an FOIA request. The convicted leader's attorney informed a mideastern city's police intelligence officer that, after reviewing the documents, the leader had identified the police department's informant in the murder case. This police department will no longer furnish written reports to the FBI. 36

REACTION OF THE FEDERAL AGENTS

The ACLU, National Lawyers Guild and the Law Center for Constitutional Rights has launched a program, since the early 1970's, of legal harassment against law enforcement agencies. Its main objective is to destroy intelligence activities by limiting political surveillance within the United States. They have launched numerous civil suits for a multitude of reasons against the agencies, as well as the agents themselves. Extensive utilization of the FOI/PA has enabled these organizations to effectively harass the agencies and agents with these civil suits.

This has created a climate of fear among the agents which extends itself to extreme conservatism. Law enforcement activities are not synonomous with an extreme conservative outlook, since law enforcement is predicated on the basis of agressiveness.

Mr. John Olszewski, former Director of Intelligence for the I.R.S., told the Subcommittee that law enforcement officers are not people of means. As a result, many are taking one of three courses of action: (1) they are attempting to buy personal liability insurance, or (2) they are avoiding involvement in duties which may make them vulnerable, or (3) if assigned these duties, some will simply avoid inputting data into the record. 37

CONCLUSIONS

No Law Enforcement Agency and no national government can function without the instrument of intelligence. The government may have dangerously weakened its ability to protect the individual, community and nation. Many Law Enforcement Agencies at State and local levels have completely abandoned the intelligence function and terminated their domestic intelligence units. 38 All in response to provisions of the FOI/PA.

Furthermore, this report did not cover the difficulties insurance companies, banks, hospitals and other industries suffer because of the inability to perform meaningful background checks under the Privacy Act and Fair Credit Reporting Act. Nor did this report entertain the host of problems the Federal Security Program is encountering under the FOI/PA.

An equitable balance has to be struck between FOI/PA openness and the confidentiality needed to perform successful criminal investigations and intelligence operations. Congressional action is needed to clarify the FOI/PA Acts and establish in definite terms (1) practical guidelines for institutions to furnish information, and (2) provisions to maintain confidentiality under the FOI/PA.

36 Ibid, p. 12.

37 Report of the Subcommittee on Criminal Laws and Procedures, etc., testomony of John Olszewski, Director of Intelligence, July 13, 1977, p. 32.

38 Ibid, p. 2.

Much press has been devoted to the invasion of privacy simply because it "makes good print and sells copies". Undoubtedly the majority of citizens who scream "invasion of privacy", are criminal violators seeking an escape from their own poor position. The citizens who have never violated a law are being neglected because a small minority has managed to utilize the FOI/PA to their advantage. It is time to turn the heads of the media to public security, the protection of its citizens and establish once again a confidence in its Law Enforcement Agencies.

BIBLIOGRAPHY

Books

Neier, Aryeh "Dossier," Stein & Day, 1974.

Severn, William "Right To Privacy," Washburn, 1973.

Snyder, Gerald "The Right To Be Let Alone," Messner, 1975.
Westin, Alan "Databanks In A Free Society."

Bulletins, reports and articles

"Compliance With Access Law Is Slow," Newsday, August 16, 1976.

"Concept of Privacy and the Fourth Amendment," Steven C. Douse, Journal of Law Reform 1972.

"Fee Blocks Your Right To Know,” Smithtown News, Karl Grossman, October 26, 1978.

"Freedom of Information Act," Public Law Bulletin.

"Lawsuits and Privacy," New York Times, June 28, 1978.

"Legal Protections of Privacy," Final report to the Office of Telecommunications Policy Executive Office of the President, Washington, D.C..

"Misuse of U.S. Files On Millions Feared," New York Times, July 5, 1978.

"New York Civil Liberties Union Foundation on FOIA."

"Open Meetings Law," January 1, 1977.

"The Politics of Privacy," Stanley Aronoff, January 1974.

"Privacy Act," Bulletin, December 31, 1974.

"Privacy In A Free Society," Final Report, Criminal Justice, Earl Warren, June 1974.

"Privacy and Security of Criminal history," U.S. Department of Justice.

"Private Lives and Public Surveillance," James B. Rule 1973.

"Priest and Penitent," New York Times, September 3, 1977.

Project on National Security and Civil Liberties "New Freedom of Information Act and National Security Secrecy," Washington, DC.

"Right to Privacy vs. Right to Know," New York Times, April 12, 1978. "Rights to Privacy," Mary Costello, Editorial Research Reports, October 18, 1974. "Secrecy vs. Confidentiality," H. Douglas Cosby, Data Management, January 1974. "Snooping into Your Private Life," U.S. News & World Report, Inc. May 22, 1977. State of New York, Committee on Public Access to Records Memorandum on FOI Law.

"Striking Back At The Super Snoop," Time, July 18, 1977.

"What Has Happened To The Right Of Privacy," The New Republic, May 15, 1976.

"What May Happen To The Right Of Privacy," The New Republic, May 29, 1976. "What Right of Privacy?" Readers' Digest, November 1974.

"Who's Chipping Away At Your Privacy," U.S. News & World Report, March 31, 1975.

"Up Against The Stone Wall," The Nation, May 21, 1977.

Report by the Comptroller General, U.S., "Impact of the FOI/PA on Law Enforcement Agencies," U.S. Government Printing Office, November 15, 1978.

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.

Report of the General Accounting Office, "FOI/PA Requests and Cost Data," June 16, 1978, U.S. Government Printing Office.

Senator HATCH. Our last witness is Vince McGoldrick, legislative chairman of the Fraternal Order of Police.

President John Dineen of the Fraternal Order of Police was unable to be with us today. He asked Mr. McGoldrick to present his testimony.

Mr. McGoldrick has extensive experience in police work and has been affiliated for many years with the Fraternal Order of Police.

He is accompanied by Tony Morris who has nearly 20 years of experience in law enforcement in the District of Columbia.

We are really happy to see you both, and we would be happy to take your testimony at this time.

STATEMENT OF VINCE MCGOLDRICK, CHAIRMAN, NATIONAL LEGISLATIVE COMMITTEE, FRATERNAL ORDER OF POLICE, WASHINGTON, D.C., ACCOMPANIED BY ANTHONY J. MORRIS, LIEUTENANT, INVESTIGATIVE SERVICES DIVISION, METROPOLITAN POLICE DEPARTMENT, WASHINGTON, D.C.

Mr. McGOLDRICK. I would like to thank you for allowing us the opportunity to come and offer testimony before your subcommittee. I address you today on behalf of over 160,000 members of the Fraternal Order of Police from throughout the United States. We come before you to speak on behalf of certain amendments to the Freedom of Information Act which will increase the ability of the law enforcement agencies to protect the public security.

The Fraternal Order of Police does not take objection to the Freedom of Information Act, but we feel that the amendments provided in S. 587 would take into consideration the legitimate rights of law enforcement without violating the equally legitimate rights of privacy of our citizens.

The first amendment the Fraternal Order of Police is in favor of would be in section 4 of the Freedom of Information Act, a blanket exemption of the release of rosters of law enforcement personnel and personnel of national intelligence agencies.

This amendment, we feel, is necessary to protect those who enter into the difficult field of law enforcement from any harassment in their private lives.

The next amendment in section 4 would be a blanket exemption covering all confidential law enforcement training manuals, investigative handbooks, and manuals dealing with confidential investigative technology.

The need for such an amendment was best described in prior hearings before the Subcommittee on Internal Security which disclosed many people would obtain these manuals and handbooks for illegal uses.

The final amendment to section 4 would exempt from disclosure all information received on a confidential basis from foreign governments or from State or local government agencies.

This amendment would relieve the reluctance of many State and local government agencies to share law enforcement intelligence with agencies of the U.S. Government because of the fear this information could be disclosed pursuant to the Freedom of Information Act.

In section 7 of the Freedom of Information Act, the Fraternal Order of Police recognizes the need to protect intelligence information and informants providing such intelligence from immediate disclosure through the Freedom of Information Act.

The proposed amendments would call for a ban on the release of records contained, collected, or used for law enforcement purposes for a period of 10 years after termination of an investigation.