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 (b)(4) exception to the Freedom of Information Act.

As you have noted, Mr. Chairman, significant questions are raised by the proposed 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 (b)(4) 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 (b)(4) 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.

He has been regarded as the Government's leading expert on freedom of information law.

Mr. Saloschin, we will be happy to take your testimony at this time.

If I can apologize, I am going to stay until about 5 minutes to 10, and then I have to run to the floor. I will be back pretty close to 10:30. I will have to have staff take the testimony until I return. They will go ahead with the second witness, who will be Mr. William Taft. If I am here, I may want to put some of the Society of Professional Journalists before Mr. Taft. If I am not back yet, proceed with Mr. Taft.

Mr. Saloschin?

STATEMENT OF ROBERT L. SALOSCHIN, FIRM OF

LERCH, EARLY & ROSEMAN, BETHESDA, MD.

Mr. SALOSCHIN. Mr. Chairman and members of the subcommittee, let me thank you for this opportunity to participate in these hearings. I had mixed feelings, including a twinge of guilt, when I retired from the Justice Department at the very time when prospective changes in the Freedom of Information Act, which I shall call FOIA, would soon require the attention of the new executive and legislative leadership. Therefore, I feel that I have a civic duty to help where I can.

As of this date, neither I nor my law firm, Lerch, Early & Roseman of Bethesda, represent any client for the purpose of either supporting or opposing amendments to the Freedom of Information Act.

Let me begin with four preliminaries: a few remarks on the importance of FOIA, a few remarks on my own background so that you can better appraise my testimony, a brief attempt to identify the basic or underlying issue in this field, and then my own conclusion on that issue. The main body of my statement will discuss seven major areas where legislative changes in FOIA should be considered.

IMPORTANCE OF FOIA

FOIA's importance can be seen from several perspectives: history, comparative government, its sheer magnitude, its central objectives, and the other major public and private values with which FOIA must be reconciled.

Historically, FOIA is with us at a time of explosive growth in information handling technology-computers and communications and in the amount of information itself. In a period which some call the information age, the success or even the survival of individuals and institutions may increasingly depend upon obtaining access or preventing others from obtaining access to information, much of it held by the Government.

Other great democracies are watching FOIA, including Canada, Australia, Japan, and several European nations. Part of their interest has to do with FOIA's effects on transnational movements of information in areas such as finance, trade, technology, law enforcement, and national security. Part of their interest is to develop their own FOIA's in the light of our experience.

FOIA's sheer magnitude should not be forgotten. It applies to uncounted billions of records reflecting everything the Federal Government has been involved in. It includes more than a thousand Federal court decisions with judicial opinions, including a dozen in the Supreme Court.

FOIA's original and central objectives are important to help the success and survival of our free society by making popular Government work better, through a better informed electorate and through better public accountability of Government agencies.

The major public and private values with which FOIA must be reconciled can be identified from the statute itself. The act seeks to strike a balance, which from time to time may need adjustment by Congress, between the public's right to know and the safeguarding of these other major values, which I call "protectable interests.' While in legal terms, FOIA has nine exemptions that permit withholding, these nine exemptions represent five great protectable interests: one, the public's interest in national security; two, the public's interest in law enforcement; three, the public's interest in Government efficiency, particularly in the quality of agency decision making; four, the private sector interest in business confidentiality; and, five, the private sector interest in individual or personal privacy.

BACKGROUND OF WITNESS

Although my background is not purely that of a Government lawyer, I have worked for 35 years in the Government, the last 22 in the Justice Department, and the last 12 in freedom of information on a full-time and sometimes an overtime basis. Since the chairman summarized this, I will leave in my prepared testimony the remainder of this summary.

THE UNDERLYING ISSUE

Let me turn to the underlying issue. I suggest that the basic issue before you is what changes should Congress make so that FOIA will produce the best mixture of results that is reasonably practicable. By the best mixture, I refer to all results of FOIA that are either beneficial or detrimental to our ultimate national goal of preserving and improving a free, prosperous, and secure society in today's complex and turbulent world.

In 1974, the focus of congressional attention was only to maximize FOIA's benefits. Today the primary concern is to minimize the detriments.

To formulate the basic issue as I have done may sound like a cost-benefit analysis, but some of the more significant costs and benefits are extremely difficult to measure with any accuracy in quantitative terms.

For example, on the benefit side, how do you measure the value to citizens and taxpayers of a law which anyone can use to expose governmental waste, fraud, abuse, favoritism, and corruption? How do you measure the value of a law under which useful information for health, safety, and productivity, which the Government has acquired at public expense, is available to the public? How do you measure the value of a law which gives responsible and patriotic

citizens enforceable assurances that discussions and debates on public policies can be not only free but also well-informed?

But on the other side, how do you measure the cost to the Nation of a law with chilling effects on sources who have important information for foreign intelligence or law enforcement or other Federal functions, but hesitate to provide it because they fear possible disclosure under FOIA may seriously hurt them? How do such costs relate, for example, to the national cost of interstate theft, or to the cost of a serious international setback in economic or strategic matters? How can you measure the cost in dollars, morale, and effects on the public of diverting agency staffs away from the work which Congress expects them to perform by making them process large and burdensome FOIA requests made for purely private purposes in order to obstruct, harass, and delay legitimate agency activity?

My response is that FOIA needs substantial amendments in several areas which I will discuss, but FOIA should not be repealed or seriously crippled as an effective instrument for its original objectives. This means preserving FOIA's chief fundamentals, including, for example, that it applies to all records that belong to an agency and makes them available except as exempt, and that there is effective judicial review of agency withholding with the burden on the agency to justify it.

It is true that our country managed pretty well for most of its 200 years without FOIA. However, the same can also be said of indoor plumbing, women's suffrage, and cars, planes and radios. We do not abandon advances because they have problems. We try to correct the problems.

NATIONAL SECURITY INFORMATION

Now let me turn to the seven areas for possible amendments. One: Is the protectable interest in national security information. We are 6 percent of the world's population living in an unstable world. It is vital that our Government continue to conduct as effectively as possible its military, diplomatic, and other international activities, including foreign intelligence.

Mr. Carlucci, when he was deputy director of the CIA, testified before congressional committees on the problems for foreign intelligence collection of the "perceptions" by our potential sources of intelligence of FOIA related risks to them in providing our Government with information. Although he indicated the actual likelihood of such risks may be slight, the fear of the potential source, and the severity of possible damage to the source and his family, are so drastic that the source is chilled.

LAW ENFORCEMENT INFORMATION

Two: Is the protectable interest in law enforcement information. In addition to crime's tragic effects on its victims, it is a significant drain on our national economy. Law enforcement largely depends on cooperation by sources. However, because of fears of embarrassment or reprisals, information will often be provided only if the source is guaranteed that his or her identity will remain secret.

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