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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.
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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In 1979, FBI Director Webster furnished about 125 actual illustrations, with names deleted, of refusals to provide information to the FBI by various persons, including a Federal judge, for fear of disclosure of the source's identity under FOIA or the Privacy Act. Again, while the actual risk of disclosing these sources may be small, the perception or fear of possible disclosure may result in silence. The result is less effective law enforcement.
Numerous draft amendments have been devised to reduce the impact of FOIA on criminal law enforcement. Some of these amendments are better than others in offering effective protection without ignoring other factors such as the public's interest in significant investigations like those of Alger Hiss and Julius and Ethel Rosenberg. Suffice it for today that there is a real need for careful legislative attention and appropriate action on FOIA's effects upon law enforcement.
Three: The protectable interest in business confidentiality. There are many Federal functions and programs that bring business information into Federal files. These include a vast variety of civil and military procurements, and various kinds of safety and economic regulation involving labor, transportation, financing, and other aspects of the economy.
Both the private interests of the business firms which submit information and the public's interest in their cooperation with Government programs call for adequate protection for sensitive business information in the Government's records.
One step would be to provide legislative assurance of timely notice to a business submitter that information he may consider confidential has been sought or may be released under FOIA. Another would be to assure the submitter a more adequate opportunity to show the agency why the information should be protected.
The third and perhaps most difficult step would be to provide substantive legislative standards that are clearer and better than some which today confuse this area, standards to determine two important questions: What kinds of business information in agency records are protectable, and what should be the limits on agency discretion to release protectable information.
On the question of what kinds of business information should be protectable, one approach might be a general standard of avoiding economic injury or risk, with various factors to consider in applying this standard, supplemented by special standards or special procedures for particular industries, particular Federal programs, or types of information that need special protection.
On the second question, agency discretion to release information from a business that will jeopardize the business should not exist unless release will advance a definite public interest in a way which outweighs the risk to the company. Even then, the submitter should be able to challenge the proposed release in court.
In approaching the whole vast area of business information, two further thoughts are worth considering. One is that some things like a government contract have a dual character. Such a contract is a business deal whose terms the company might prefer to disclose only in part, but such a contract is also government action. The long history of recurrent corruption, favoritism, and waste at all levels of government in the letting of government contracts argues strongly against secrecy for commercial reasons as to the terms of such contracts.
The second thought is that protection under FOIA for business information should have some reasonable relation to protection for that other great private sector interest, individual privacy. The law must be able to withstand critical comparison of the way it protects business firms and the way it protects individuals. Protection should seldom be absolute if the public has a sufficiently strong justification for disclosure.
This is the law today as to individual privacy, where any public interest in disclosure must be balanced against the injury to the individual. No one today is suggesting that this balancing requirement be changed where individuals are concerned.
PERSONAL PRIVACY INFORMATION
Four: The protectable interest in personal privacy. Just in the past year, the Court of Appeals for the District of Columbia Circuit has rendered a series of surprising decisions, cutting back seriously on personal privacy under FOIA exemption 6. These decisions run counter to the previous understanding of the law by most courts and lawyers and counter to the intention of Congress in FOIA and the Privacy Act.
These decisions are based on a new interpretation of the phrase “similar files" in FOIA exemption 6. This new interpretation is that the phrase does not include personal information about specific individuals, the release of which might harm them, unless the information is "intimate" or "highly personal."
If the information is just “personal,” it is not enough to qualify it even for consideration for possible protection, even if its release could result in adverse consequences to the individual including death.
Before this new interpretation, the statutory standard under FOIA exemption 6 was whether release of particular information about an individual would be a “clearly unwarranted invasion of personal privacy.” However, this key question cannot now even be considered if the information is not part of a “similar file” as now interpreted in the District of Colurnbia Circuit.
The practical results thus far have been to preclude consideration of possible protection under exemption 6 for personal information relating to an individual's activities in his occupation on the theory that work is not "intimate" or "highly personal," and, in addition, to deny exemption 6 protection for personal history information which might expose individuals to foreign harassment or terrorism, and to deny such protection for information that certain individuals worked in a university on CIA projects, even though the individuals did not know that the work they were doing was being done for the CIA.
Congress, in passing the Privacy Act, was fully aware of FOIA, and relied on the then interpretation of FOIA exemption 6. Congress explicitly wrote into the Privacy Act's definition of records