Page images
PDF
EPUB

16

1

2

or foreign counterintelligence as are defined by the At-
torney General by regulation or order;".
(e) Paragraph (8) is amended by striking out “or” at the

3

4 end thereof.

5 (1) Paragraph (9) is amended by striking out the period 6 at the end thereof and inserting in lieu thereof a semicolon. 7 (g) Subsection (b) is amended by adding the following 8 new paragraphs after paragraph (9): 9

"(10) records generated by the United States or 10 any party in connection with the settlement of a legal 11 action in which the United States is a party or has an

[blocks in formation]

13

"(11) technical data that may not be exported

14

15

lawfully outside the United States without an approval, authorization, or a license from an agency, unless the requester has obtained the appropriate approval, authorization, or license.".

16

17

18

AMENDMENTS RELATING TO REPORTING REQUIREMENTS

19

SEC. 8. Section 552(d) of title 5, United States Code, is

20 amended

21

(a) by striking out “calendar" the second and

22

fourth places it appears and inserting in lieu thereof

23

“fiscal”;

17

1

(b) in paragraph (4), by striking out “subsection

2

(a)(4)(F)” and inserting in lieu thereof “subsection

[blocks in formation]

4

(c) in the next to the last sentence, by striking out “subsections (a)(4) (E), (F), and (G)” and inserting in

5

6

lieu thereof “subsections (a)(4) (L), (M), and (N)”.

7

AMENDMENTS RELATING TO DEFINITIONS

8

Sec. 9. Section 552(e) of title 5, United States Code, is

[blocks in formation]

11

“(1) 'agency' as defined in section 551(1) of this

12

title includes any executive department, military department, Government corporation, Government con

13

14

trolled corporation, or other establishment in the ex

15

ecutive branch of the Government (including the Executive Office of the President), or any independent

16

17

regulatory agency;

"(2) 'submitter' means any person who has sub

18

19

mitted to an agency (other than an intelligence agency)

20

trade secrets, commercial or financial information

21

(other than personal financial information), or other

22

commercially valuable information, in which the person

23

has a commercial or proprietary interest;

24

"(3) ‘requester' means any person who makes or causes to be made, or on whose behalf is made, a

25

18

1

proper request for disclosure of records under subsec

2

tion (a);

3

“(4) ‘United States person' means a citizen of the

4

United States or an alien lawfully admitted for perma

5

nent residence (as defined in section 101(a)(20) of the

6

Immigration and Nationality Act, section 1101(a)(20) of title 8, United States Code, an unincorporated asso

7

8

ciation a substantial number of members of which are

9

10

citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association that is a foreign

11

12

13

power, as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.

[blocks in formation]

16

17

18

“(5) ‘working days' means every day excluding Saturdays, Sundays, and Federal legal holidays;

“(6) 'record' means existing documentation of information in any form, including computer tapes and discs, but does not include system software in any form

19

20

21

or documentation created for the personal convenience of any Government employee or official.”.

22

Senate HATCH. We have an excellent group of witnesses here today. I have a couple of problems that I have to put up with. One is that today I have to introduce at the only time available to me on the floor the Radiation Exposure Compensation Act, the bill to compensate those who were exposed to radiation in the fifties and sixties as a result of the atmospheric tests in Nevada.

It is a very important bill, certainly to my State and I believe for the whole country, because it sets some standards that the Federal Government, if it is negligent, ought to be just as responsible for its own liability as you and I as private citizens. I believe that is a hallmark of our law, but nevertheless, in this area without this type of a bill the responsibility of the Federal Government might never be served.

I may have to have staff take some testimony for about half an hour of this morning's testimony. I hope that the witnesses will understand, but I have no choice other than to do that.

I do have Senator DeConcini. We will ask you to preside over the subcommittee, if you would, between 10 and 10:30. Could you do that for me?

Senator DECONCINI. I will be glad to do it for as long as I can.

Senator HATCH. I always like to see Senator DeConcini preside. He has always been so fair when he presided over the last couple of years.

Senator DeConcini?

STATEMENT OF HON. DENNIS DeCONCINI, A U.S. SENATOR

FROM THE STATE OF ARIZONA Senator DECONCINI. Mr. Chairman, thank you very much. I will be very brief and I will submit a statement for the record.

I would like to compliment you and the staff for putting together these oversight hearings in this very important area. The area I am most familiar with is the abuse of the Freedom of Information Act in law enforcement, which you noted in your statement. I think it is worthwhile that we pursue resolution of this and other problems plaguing FOIA.

This act indeed has brought openness to Government; an openness that is necessary and which must not be set aside completely. On the other hand, sometimes we strive to insure individual freedom and we end up hurting those whom we really want to protect, the vast majority of our society.

I feel that we have an opportunity in the next several days, Mr. Chairman, to study this subject matter, and to make some finetuning and corrective measures. I compliment you for being the leader in this area and bringing it before the Judiciary Committee, in an effort to see what we can do to provide the necessary tools without extracting those valued freedoms that we all profess and try to maintain.

I thank the chairman.
[The prepared statement of Senator DeConcini follows:

PREPARED STATEMENT OF SENATOR DENNIS DECONCINI Thank you Mr. Chairman, and I commend you for addressing the complex issues involved in S. 1247 which proposes to amend the (bX4) exception to the Freedom of Information Act.

As you have noted, Mr. Chairman, significant questions are raised by the pro posed bills arising from the conflict between the desirability of public access to Government documents, on the one hand, and the need of Government and private entities to preserve the confidentiality of certain types of information in the possession of Government, on the other.

The section (b) exemptions to 5 U.S.C. 552 were drafted as an attempt to resolve the conflicts between these competing interests. The goal of these exemptions was to strike a balance between the people's right to know, and the preservation of confidential information, the disclosure of which is contrary to the national interest.

Section (b) is not perfect. One of the areas in which there has been frequent abuse involves section (b)(4). The resulting disclosure of certain information has been both detrimental to the national interest, and extremely damaging to private business. I believe that the (bX4) trade secrets exception is one of those areas in which FOIA discloses too much information to the ultimate detriment of the public.

The research I have seen indicates that the (bX4) exception has not successfully achieved its purpose in its present form. There are numerous examples where the work product of businesses, often the result of years of research and done at great expense, were submitted to the Government in compliance with Federal regulations, that were ultimately transmitted to competitors under the Freedom of Information Act. While this is a serious problem when the trade secrets are disclosed to U.S. firms, the problem becomes critical when these secrets are released to foreign business, as is often the case under the present (B) (4) exception.

Mr. Chairman, I believe that we are in general agreement that FOIA in some form is a desirable and necessary tool in maintaining Government accountability. It may well be that these problems are the price we pay to assure the free flow of information. I personally believe that we can make some adjustments to the FOIA exceptions which alleviate the problem areas, without restricting the public's ability to obtain information from its Government.

The question which is before us is whether the proposed revisions before this committee are proper adjustments to the current exceptions. I look forward with great interest to the testimony today in the hope that some of the questions about the current proposed revisions may be resolved.

Mr. Chairman, before we proceed, I would like to submit for the record a report entitled News Media Access to Federal Trade Commission Records and an explanatory letter which I received from our colleague, Senator Sasser.

Senator HATCH. Thank you, Senator DeConcini.

Our first witness today is Robert L. Saloschin. Mr. Saloschin graduated from the Columbia Law School, where he was an editor of the Law Review. He has had a distinguished career as a practicing lawyer, serving as a Justice Department lawyer from 1958 until retirement just a few months ago. He now practices with the firm of Lerch, Early & Roseman.

At Justice, Mr. Saloschin worked with the Office of Legal Counsel from 1958 until 1978. In 1969 he was made chairman of the Freedom of Information Committee, which advises Federal agencies on public requests for access to their records. He served in that position until this year.

From 1978 until he retired, Mr. Saloschin was Director of the Office of Information Law and Policy, which was created in 1978 to provide the Government with guidance on legal and policy matters involving the Freedom of Information Act.

During his service at Justice, Mr. Saloschin received the Meritorious Service Award, the Special Commendation Award, the John Marshall Award, and the Outstanding Performance Certificate. He has frequently lectured on freedom of information legal problems at seminars and bar association meetings for lawyers and Federal judges, and has published many professional articles on the subject.

« PreviousContinue »