substantial safeguards and access to Agency records indexed or filed under their name or other individual identifier. Further, the Foreign Intelligence Surveillance Act of 1978, in which the Judiciary Committee played a significant role, and executive order procedures provide strong protections for U.S. citizens and preclude the production of information concerning them except pursuant to court order or Attorney General approval. Finally, the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence provide far more effective mechanisms for thorough oversight of intelligence activities than the Freedom of Information Act, without the risk that classified information will be compromised. Mr. Chairman, despite the protections that we have and the relative success we have had in protecting sensitive cryptologic records from release, damage has been done. Relief from the Freedom of Information Act for cryptologic information is required in order to avoid further damage. Nothing short of a total exemption from the Act for the NSA is adequate to address the problems described herein. I hope we can work together to fashion that relief. I appreciate this opportunity to testify today and I would be pleased to receive any questions you might have. Senator HATCH. With that, we will recess these hearings until further notice. [Whereupon, at 11 a.m., the committee recessed, to reconvene at the call of the Chair.] FREEDOM OF INFORMATION ACT THURSDAY, OCTOBER 15, 1981 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, The subcommittee met, pursuant to recess, at 9:45 a.m., in room 2228, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding. Present: Senator Hatch. Staff present: Randall Rader, counsel; and Claire Greif, staff. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. This is the fifth day of hearings before the Subcommittee on the Constitution on the subject of reforming the Freedom of Information Act. During the previous four hearings we have taken testimony from 25 witnesses from nearly every conceivable viewpoint. Each of these witnesses has contributed significantly to this committee's understanding of the legal and practical concerns with the Freedom of Information Act. Today we anticipate enhancing the excellent record we have accumulated up to this point. The efforts of these many witnesses are swiftly coming to fruition. Already these statements have greatly informed my work in drafting the bill which will serve as the vehicle for further deliberations in the subcommittee, S. 1730. Perhaps I could briefly outline the content of S. 1730 as a preface to our proceedings today. In our previous hearings, we heard extensive testimony on the cost of FOIA. For instance, Assistant Attorney General John Rose informed us that the FBI alone incurred costs of over $11 million last year to comply with the act. The cost for this single Agency was 110 times greater than the Congress's forecast in 1974 that FOIA would cost $40,000 to $50,000 and maybe as much as $100,000 Governmentwide. Congress clearly did not contemplate the extent of FOIA's costs. Moreover, a 1978 Justice study found that less than 2 percent of the costs of the act were collected in user fees. At a time of budgetary constraints therefore, it only makes sense to require the Office of Management and Budget to draft a uniform set of regulations governing FOIA fee collection. The incentive for agencies to comply with the fee collection regulations will be a provision allowing the agencies to use one-half of the collections to offset the costs of complying with the act. Time limits was the next problem area in the existing act. When Government agencies rush to comply with the current inflexible 10-day time limits, there is a tendency for them to withhold information on legal grounds that a more deliberate analysis might have allowed them to disclose. Such hasty processing also increases the chance that the agency might disclose trade secrets or the identity of confidential law enforcement sources. Accordingly, both requesters and Government agencies have an interest in more flexible time standards. S. 1730 is sensitive however to the witnesses from the journalistic community who persuasively contended that any further extension of time limits would prejudice their interest in timely information. Therefore the bill does not change the 10-day limit but instead builds more flexibility into the act to allow an agency an extra time cushion in difficult or unusual circumstances. The next area of concern deals with duplicative requests. This section of the bill treats two problems. The first problem is that agencies are often burdened by requests for information that is publicly available in newspaper accounts or court records. The bill would allow the agency to refer the requester to those public records without putting him or the agency to the expense of duplicating such records. The second problem is that agencies are often bombarded with frequent requests for the same information from the same requester or the same requester might make an identical request to a multitude of agencies. S. 1730 will allow the agency, in the first instance, to simply update information it has already sent to the requester. In the second instance, it allows the multitude of agencies to coordinate their efforts and send the single requester a single response. This will eliminate the extra cost to the requester of paying for several copies of the same information from different agencies. The current act contains a provision stating that any portions "reasonably segregable" from a requested record subject to some exemptions should be disclosed to the requester. The meaning of this provision has caused many lawsuits. S. 1730 will set some standards for deciding what is "reasonably segregable" and what is a totally nonsensical and useless record after the exempted material is excised. Exemption 2 covers internal personnel rules and practices of an agency. Although the House report on the 1966 act clearly stated that law enforcement manuals and procedures should be exempt under this section, some courts have ruled that law enforcement manuals could be disclosed, such as in the case of Lesar v. Department of Justice (636, F. 2d 472). S. 1730 would explicitly restore the understanding reached in 1966. Business confidentiality has been a major concern under FOIA. Several witnesses have clearly shown that confidential business information may not be safe in Government files under court interpretations of FOIA. Although the Senate report on the 1966 bill stipulated that any information "customarily not released to the public by the business" would be exempt under exemption 4, courts have subsequently required businesses to show a "substantial competitive harm" in order to block disclosure of their own confidential information. This leaves a judge to make a very subjective judgment about the potential economic harm of a disclosure. The revised standard of S. 1730 clarifies that where disclosure would "impair legitimate private, competitive, financial, research, or business interests" the information will be withheld. Finally, the procedural changes of S. 1730 grant a submitter of information notice that his records may be released, a chance to be heard against the release, and de novo court review where the information is scheduled to be released despite his objections. Individual privacy was the object of the sixth exemption in the 1966 act. Courts have recently interpreted the language "personnel and medical files and similar files constituting a clearly unwarranted invasion of personal privacy" to mean that only personal information in files similar to medical files will be exempt. This narrows the protection of exemption 6. Congress clearly intended to protect individual privacy as the central principle of this exemption. The revised version would make that important change. Finally, law enforcement officials have experienced difficulty in performing many of their functions under FOIA. Not only have informants been reluctant to cooperate for fear-either real or perceived-that their identity may not be secure, but State and local enforcement officials have been hesitant to share information as well. This revision of the seventh exemption will make clear that anything which "tends to" disclose an informant or is confidentially shared by a State law enforcement body will be exempt. S. 1730 also exempts information which might endanger any natural person, instead of just law enforcement officers as the exemption now reads. My bill will also allow regulations to be promulgated to restrict the access of imprisoned felons to information under FOIA. While this bill will provide a convenient tool for future subcommittee consideration, we certainly intend to be well informed and directed by the administration's bill which the Justice Department will present today. The efforts of past and present witnesses, past and present administrations, and past and present committees are finally bearing fruit. The Freedom of Information Act and the citizens it serves should be better for these efforts, or at least we hope that is the case. We are pleased to welcome as our first witness Mr. Jonathan C. Rose, Assistant Attorney General in charge of the Office of Legal Policy. Mr. Rose testified on the opening day of our hearings on the Freedom of Information Act, July 15, and promised at that time to return with the administration's recommendations for Freedom of Information Act amendments. We are anxious to receive that input today. Mr. Rose came to the Department of Justice from private practice as a partner in the firm of Jones, Day, Reavis & Pogue. Prior to his private practice he served as Associate Deputy Attorney General and Deputy Assistant Attorney General for Antitrust. Mr. Rose, we are happy to have you with us today, and we look forward to hearing your testimony. STATEMENT OF JONATHAN C. ROSE, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE Mr. ROSE. Thank you very much, Mr. Chairman. I would like to apologize at the outset that our production problems did not permit us to have adequate copies up here for the press today but only copies for the committee of our proposal. It will be available at the Public Information Office at the Department of Justice later on this morning. Mr. Chairman, I am pleased to appear before the committee today to present the administration's proposed amendments to the Freedom of Information Act. The proposal is a part of the Department of Justice's legislative program for the 97th Congress. The Office of Management and Budget has advised me that this legislation is in accord with the legislative program of the President. We urge the Congress to give this legislation its prompt and favorable consideration. This administration is firmly committed to the faithful implementation of the Freedom of Information Act by all Federal agencies. The letter and the spirit of the act require agencies to respond promptly and fully to requests for information by the general public, except where this would interfere with other important public interests, which the several exemptions to the act seek to protect. We are fully committed to carrying out the philosophy and spirit of the act in full. We are however concerned that in some instances the Freedom of Information Act has been used in ways that are inconsistent with the original objectives of the Congress. Certain requirements of the act have interfered unduly with proper law enforcement activities and national security functions of the Government. In addition, compliance with some provisions of the act has resulted in unnecessary burden and great expense to the Government without any corresponding benefit to the general public. Our review of the act was prompted not only by the complaints of Federal agencies but also by the increasing concerns regarding the burdens imposed by the act that have been expressed by the courts. A very recent example concerns the requests for intelligence files made by Mr. Philip Agee, a private citizen who has announced a campaign to expose the Central Intelligence Agency officers wherever they are operating. Responding to Mr. Agee's requests has cost the American public nearly $500,000. A respected Federal district court judge here in Washington who heard the suit which arose over the requests stated that: "[i]t is amazing that a rational society tolerates the expense, the waste of resources, the potential injury to its own security which this process necessarily entails." (Agee v. Central Intelligence Agency, 517 F. Supp. 1335, 1341-42 (D.D.C. 1918).). Another recent opinion by the United States Court of Appeals for the Third Circuit stated: |