Let me look at another concern. S. 587, my former bill, also contained a 10-year moratorium on all law enforcement records. S. 1730 instead expands a few categories under the seventh exemption to protect informants and State police bodies. We have also made that change as a result of some of the testimony that has been given here.

Mr. LANDAU. It is sort of "out of the fire; back into the frying pan."

Senator HATCH. You media people have such a nice way of putting things.

Mr. LANDAU. You have taken out the 10-year exemption, and we certainly are grateful for that.

I might say, by the way, the administration bill has a curious provision in it which you might be interested in. It gives the Attorney General the right to unilaterally exempt all records involving counterintelligence, terrorism, or organized crime. It looks to me as if they have adopted the total exemption theory for whole categories of records.

You have, as you know, expanded the exemption from records collected for investigatory purposes to all records relating to investigation or any aspect of the crime.

One of the problems we see in it is that in trying to protect local and State governments you say, "any information submitted by local and State governments which it submits as confidential information." That would permit a local police chief, for example, to give something that you and I might not think is confidential; but if it tells the Bureau it must be confidential, then the requester's rights are controlled by the police chief in Provo's determination rather than having a determination made as to whether in fact the information should be kept confidential because it will disclose. It seems to us to give an awful lot of discretion to State and local law enforcement, because it imposes a condition of nondisclosure based on whatever the decision of some local official-is that right, Randy, in substance?

[Mr. Rader nods.]

Senator HATCH. We have some other provision that I think have made some major changes in the original bills. One of the original bills tried to limit a requester to one topic per year. In S. 1730 we have tried to treat the problem of duplicative requests by only requiring the agency to update information already sent to the same requester.

Mr. LANDAU. I think that is perfectly fair, sir.

I think one of the problems in the bill that you might not be aware of is the provision which says that if it is a matter of public record any place you should require the requester to go and search the public record.

For example, a requester might request out of an agency all lawsuits filed against the agency on a certain issue. The lawsuits might be in 20 different U.S. district courts from Texas to Alaska.

Would it not seem more feasible to simply let the agency duplicate all those complaints rather than have the individual scholar or reporter have to write away to 20 U.S. courthouses and send his $3.25 check and wait for 20 different court clerks to process them?

It seems to me that if the search and reproduction fee question could be settled the agency would have no problem if it is has all the information in front of it with simply supplying the information.

Senator HATCH. I thought you covered the fee charges well in your statement.

Mr. LANDAU. Thank you.

Senator HATCH. We have changed it from the $10 to every requester regardless of the nature of the request to uniformly collected fees throughout the bureaucracy and throughout the Government.

You mentioned quite forcefully that S. 1730 creates a right of privacy for the dead. You are referring to the provision which states, "Law enforcement records constituting an unwarranted invasion of personal privacy of an individual deceased for less than 25 years" would be exempt.

Mr. LANDAU. That is right.

Senator HATCH. In the first place, I would note that this provision only applies to law enforcement records themselves.

Mr. LANDAU. I thought I said that.

Senator HATCH. In the second place, I would note that this is intended to protect the survivors of the deceased.

You can easily understand the implications of a release certifying that your mother was arrested twice on charges of prostitution or something like that. Since it is impossible to identify all the survivors of the deceased individual, S. 1730 instead prevents disclosure of the law records constituting an unwarranted privacy breach for the deceased.

With those limitations in this particular context, would your opinion change at all?

Mr. LANDAU. If you would like to put an exemption in for mothers who were prostitutes and narrow it down to that one category. [Laughter.]

Mr. LANDAU. I think in your bill you stretch it not only for the dead, but you stretch it to "because of intimate detail which might possibly have an adverse effect on a person or his family."

Now, you know that everybody thinks that anything in the press is going to have an adverse impact on himself or his familyanything that is not flattering in any way. I think that is a terribly subjective standard.

"Clearly unwarranted invasion of privacy" seems to be a nice line to draw, but "any adverse impact on a person or his family" really is such a subjective standard that I do not know how a reporter or scholar could argue against it.

Senator HATCH. I see. In regard to privacy and the deceased, it may be that you have raised an important issue here. Maybe it should be limited to felonies, something that really is repugnant, or something that has the inevitable tendency to embarrass or hurt a remaining family member. I do not know, but we will certainly try to work it out.

Mr. LANDAU. With respect to your suggesting that once was a public record conviction can ever be subject to a privacy claim under the FOIA, I think you would find some other voices arguing that question.

Senator HATCH. I do not think that is the suggestion. The suggestion is personal documents that really are in the nature of private documents that might protect successors to the family. It is a tough area, I have to admit; and I think you have raised an interesting point.

Mr. LANDAU. Could you give us an example, sir, of a case that bothers you, where a court has released what you would consider something outside the scope of the act which was intimate and had an adverse impact?

Senator HATCH. Let me ask you another question that I think illustrates it. You had apprehensions about the personal privacy exemption changes. Let me just state a case that actually held that these interests should be protected.

In the Wine Hobby case, individuals were listed as making wine in the privacy of their own home. A request for the list of those involved in this unregulated private activity was held by the court to be exempt. The court's reasons were that the individuals could be subject to derision by their neighbors or even subject to breakins if their names and addresses were disclosed.

I think we could come up with other examples of information about an individual which would not be in a medical or personnel file that might cause an individual great problems if released. Mr. LANDAU. But I think the important thing there, sir, is that the court treated that as a similar file and did not let the information be released, so that the exemption worked.

Senator HATCH. That is it: The exemption worked. What we are saying is that there may be other areas where the exemption could work too. Maybe it is in the venereal disease area; maybe it is the drug-related areas; maybe it is in drug pushing; maybe in exotic religions-who knows? All I can say is that there may be many areas where a court might decide to protect the privacy of that particular file.

But I have the same problems you do. I think you have raised an interesting issue here, and I want to look at it a little bit more myself.

Mr. LANDAU. Perhaps Mr. Rich might want to add something, because book publishers tend to be subjective because of the extent that books go into personal lives in some great detail. Perhaps the book publishers have more experience with privacy cases than the press.

Senator HATCH. Yes.

Please go ahead.

Mr. RICH. If I may, Mr. Chairman-there was one other observation I wanted to address, and this deals with a statement which was made by Mr. Rose earlier.

Mr. Rose implied or tended to downplay the significance of the act in uncovering or helping expose and further matters which we all concede were of great moment to this Nation.

Without meaning to take issue with Mr. Rose on that issue, I think, from the perspective of the book publishers, many of the certainly more lasting scholarly and historical contributions arise in the context of deliberative study and analysis over a period of years, the very vitality of which has been made possible and en

hanced by the availability of documentation derived through Freedom of Information Act requests.

I would say that especially in the case of these more permanent and in some respects perhaps in the long term more important contributions to the public debate about this country and its history, the kinds of examples which the Association of American Publishers set forth in its September 24 statement to this committee adequately underscore the importance of not closing wholesale the files of such agencies as the Central Intelligence Agency, as Senator D'Amato's bill would in essence do.

That is just something I would urge this committee to very much keep in mind as it looks across the gamut of uses of the act and how it has really benefited the principles which underlie it.

Senator HATCH. I think you have raised some excellent issues today, and I have enjoyed listening. We have tried to accommodate, as we have tried to come up with what we think may be a necessary reform of the bill.

I think you have raised some issues in addition to those that have been raised in the past, and we will have to look that over and see what can be done.

I suppose we are going to have to-if we are going to have a bill at all-try and come out with some sort of a best version of the Justice Department bill and what we have been working on for this lengthy period of time.

I have a feeling that if we come out with a bill at all it will not be totally pleasing to members of the media. On the other hand, what we do have to try and do is get some balance on this issue.

I have been concerned ever since 1977, when I as a brandnew freshman Senator conducting hearings in which every law enforcement agency in this country of any substance stated that whether informants are disclosed or not, the perception is there that they will be disclosed, and therefore there is a lack of cooperation between Federal and local law enforcement agencies and a lack of informant testimony from which we actually conclude almost every criminal case.

Mr. LANDAU. Senator, I would ask you to cast your mind back to 1966 and the great debate over the Miranda decision. Do you remember law enforcement predicting that never would another arrest be made, that they would be hampered, and so forth, and so on? They seem to be able to live.

I think perhaps law enforcement has a mentality that perhaps sees shadows in corners where they do not exist.

Senator HATCH. They seem to think that the media have a mentality that sees shadows in corners that do not exist.

Mr. LANDAU. But we keep going back to the same thing. If Judge Webster could show us a case where a court has told him that he has to release the identity of the informant-just one case in 15 years-if Mr. Casey or Admiral Inman could show us one case

Senator HATCH. That is not the issue to them. The issue to them is-whether they can show one case or not-foreign nations with regard to the CIA are now stopping their intelligence gathering activities in cooperation with the United States, which is very serious. That is a fact.

No. 2: We have only about 25 percent of the informant testimony that we used to have-maybe 50 percent in some areas, but a definite and decided important drop. Maybe it is just the perception that their identities will be disclosed, but that perception alone has caused a severe difficulty in law enforcement activity.

I might also add that I think those complaints are legitimate complaints.

Last but not least, with regard to the Miranda case, having been a practicing attorney who has invoked Miranda and fought against it, I can say this: That these criminal procedure rules have, it seems to me, caused an awful lot of difficulties in law enforcement activities in this country, to the extent that there is a very strong push by Senator DeConcini and others, including myself, to make some modifications, if not wholesale changes, in these rules because of the need to have better law enforcement.

I have read even in the newspapers over this last 6 months that we have a tremendously incredible, difficult situation facing us in crime, law enforcement activities, and penal institution changes in this country like never before, to the extent that some of us have just about broken our oars year-in-year-out, trying to come up with a new Federal Criminal Code reform bill which would unify, consolidate, and reform the criminal code, not as much as some of us would like to have it reformed on either side, but in a way that might unify and codify criminal laws, so that at least the citizens of this country and law enforcement officials can understand them for a change.

I suspect that if I were a reporter, journalist, or TV anchorman, I would feel exactly like you do. I see nothing wrong with that and, frankly, commend you for it. I do not blame you for feeling that way, and I do not think anybody here does. But we have to look at this from a little bit different perspective. That is, how can we resolve some of these very apparent problems and still allow the widest, most open society we can possibly have, so that people really will know what is going on?

I have lots of problems with the D'Amato bill, even though I am basically supportive of it. I do not know that any agency in the Federal Government should be exempt from Freedom of Information requests or from examination by investigative journalists, or anybody else for that matter who has a legitimate concern.

On the other hand, we do have some balancing here that some of us feel just has to occur. So let me just end by complimenting you for your excellent statement here today, and you other folks who are here, and complimenting those who have appeared on behalf of journalism and the media. I think you have had an impact on the committee.

All we can do is try to do the best we can to incorporate the best ideas you have in the best possible way into this bill.

Unfortunately, what I have found ever since I have been in the Senate is that you cannot please everybody or really anybody on this bill, including myself. Everybody, except perhaps the media, feels that changes are essential; and you have even admitted today that some of the changes we have put in here are probably for the better; but they are the more technical type changes and procedur