STATEMENT OF MORTON H. HALPERIN, AMERICAN CIVIL LIBERTIES UNION, ACCOMPANIED BY ALLAN ROBERT ADLER, AMERICAN CIVIL LIBERTIES UNION; AND CORNISH F. HITCHCOCK, FREEDOM OF INFORMATION CLEARINGHOUSE Mr. HALPERIN. Mr. Chairman, I would like to say on behalf of the ACLU that we appreciate your willingness to hold this additional day of hearings, and we appreciate the opportunity to work with your staff in trying to narrow the differences that we have on this issue. We hope those discussions can continue. We do not realistically expect that we will eliminate all the differences, but we hope that we can at least sharpen the disagreements, eliminate as much of the difference as we can, so that as the bill moves forward there can be a full debate on the key issues. Mr. Adler, the person at the ACLU handling this issue, will summarize our statement. Senator HATCH. Mr. Adler? Mr. ADLER. Thank you, Senator Hatch. On behalf of the ACLU and the Freedom of Information Clearinghouse, we want to thank you for the opportunity to appear before you today to jointly present our views on S. 1730 and S. 1751. For the record, we too were eager to respond publicly to Assistant Attorney General Jonathan Rose's statement that the act is highly overrated. For brevity's sake, we will now simply associate ourselves with Jean Otto's eloquent rebuttal and state our firm belief that her remarks are amply supported in the public record that has been established in numerous congressional hearings over the years, including the hearings held in this subcommittee in July, September, and October. It cannot now seriously be doubted that the Freedom of Information Act has been spectacularly successful in curbing the routine secrecy that had traditionally surrounded the operational records of the Federal Government. This does not mean, of course, that the act in its present form is perfect. For example, our experience has shown that submitters of confidential commercial information to Government agencies should be accorded certain procedural rights when such information becomes the subject of a Freedom of Information Act request. It may also indeed be better policy to permit agencies to recover the full cost of processing FOIA requests, rather than just search and duplicate costs when such requests are primarily for commercial purpose. This, in combination with a mandatory public interest fee waiver, would balance the allocation of costs more consistently with the ways in which they are actually placed upon the Government. At the same time, we agree that current time limit provisions in the act do not function in a manner that fully satisfies either requesters or agencies, and they might be amended to clarify circumstances which justify agency delay, as well as circumstances which justify expedited access for requesters. Additionally, a clear and concise definition of "record," presently lacking in the act, would be a useful amendment that would clarify numerous problems from the perspective of both requesters and agencies. Amendments to address these matters and all other proposed amendments should be narrowly tailored, however, to achieve specific aims without inhibiting the effectiveness of the act. In considering proposed amendments, Congress should be guided by the following principles: No blanket exemptions should be provided for any agency. No blanket exemptions should be provided for agency files; only records or portions of records may be exempt. Records should not be exempted on a categorical per se basis. Some objective standard denoting "harm from disclosure" must be provided to justify denial of access to particular kinds of records and to facilitate de novo judicial review of such determination. De novo judicial review should be maintained for all aspects of requesters' rights under the act. Denial of access to records should be based only upon one or more of the specific substantive exemptions; it should not be based on any agency inquiry into the purpose of the request or the nature of the requester. Despite our disagreements with some of your proposals, Mr. Chairman, we must say that we appreciate your efforts to construct a bill that reflects an understanding of these principles. We are sorry that we cannot say the same for the efforts of the administration. We recognize that anyone who takes on the task of drafting amendments to the Freedom of Information Act quickly finds himself climbing out on a very thin limb, and we realize that possibly, from your point of view, we may seem to be the first to arrive in such situations with a rather sharp saw. Nevertheless, today, Mr. Chairman, we are going to join you out on that limb, because in our testimony we have proposed specific language for amendments to address many of the concerns raised in your bill and the administration's bill. In consideration of the time constraints on this hearing now, we would ask how you would like to proceed. We could address those specific amendments or some of the comments that have been made by previous witnesses. Senator HATCH. I would like you to work with us on those amendments rather than address them here. I have to admit with regard to our relationship that I have been pleasantly surprised at how hard you folks have really worked to try and resolve this issue with us. Sometimes some of our colleagues feel that there is a knee-jerk reaction on some of these issues, and I think both of you have exhibited a very careful and analytical approach to this and a desire to do what is best under the circumstances, even though you do argue intensely and, I think, very effectively for civil liberties in this country. I think sometimes we prejudge people far too much in this Godforsaken town, to be honest with you. I particularly appreciated your testimony, and I appreciated it last time. Would you mind if I just ask a question? Mr. ADLER. No. Certainly. Senator HATCH. A number of courts have said that they will give special deference to the agency which classified a document when reviewing to see if that record was "in fact, properly classified." Is not the provision in the administration's bill that puts this deference into the statute just the codification of current court practice? Mr. HALPERIN. Senator, I think it is true that the courts have shown great deference-we would on occasion say too much deference to the administration on classification. The problem is that if Congress now changes to this new standard of "arbitrary and capricious," we think it will have two effects. One, it will deter judges in cases, where they should conduct a search and de novo review, from actually conducting that review. There are some cases where judges have done that, and what has happened typically-we have been involved in some of these cases-is that the judges turn to the Government lawyers and say, "I have looked at these documents in camera. Would you go back and take another look at them and press your people a little harder, because I do not think the material is properly classified?" In many of those cases, that has resulted in the release of information which the Government had originally classified. Second, we think that what often happens-and we see this when we go from an original request to an administrative appeal and then the filing of a lawsuit-is that the Government lawyers then start to deal with the people who want to keep their information classified. This interaction, we feel, is helped by the Government lawyers being able to say, "We have to be able to justify to a judge why this information has to be kept secret, and to provide enough information to persuade the judge that it should be kept secret." We think that has a very healthy effect inside the Govern ment. The fact remains that under the current standard there are only two or three cases where anything that the Government has said is classified has been released or ordered released. We think release in those cases was amply justified. The one case involving the CIA is now on appeal to the Supreme Court and the order to a release has been stayed indefinitely so the CIA has still not been forced to actually release a single sentence of information which it claimed was properly classified. We think courts will continue to give appropriate deference to the affidavits of agency officials. We think the system is working and that there is no reason to change the standards. Senator HATCH. In your written statement, we do have your suggestions on the proposed amendment. Mr. ADLER. That is true. I would just add, Senator Hatch, that in the case that was mentioned by Judge Webster-where the judge did in fact include in his opinion some of the information from the material that had been in the in camera submission-if you examine the published opinion, you may get some flavor for the overclassification that is still pervasive in our Government. Senator HATCH. Excuse me. We are going to have a vote. I would like to submit further written questions to you and continue to work with you to see if we can resolve this problem. This has been a horrendous problem for me and for the whole committee. We would like to come up with something that we can have some semblance of accord on. It is clear to me that there have to be some changes and this act does need to be tightened up in spite of some of our journalists thinking that it is a very well written act. There are well written parts of it, but there are some parts that have not worked judiciously. We appreciate your efforts, and we are sorry this is taking so long today. Yes, Mr. Hitchcock? Mr. HITCHCOCK. Thank you, Senator. I would just like to associate our own organization with the comments made by Mr. Halperin and Mr. Adler. As a technical matter, we would like to submit an additional comment on one of the issues that came up during the last hearing for inclusion in the record, if we may. Senator HATCH. That will be fine. That will all be made part of our record. Mr. HITCHCOCK. We, too, will be happy to take any prepared questions that the subcommittee may have. Senator HATCH. We will submit those. Thank you so much. We appreciate your efforts here today. [The joint prepared statement of Mr. Adler, Mr. Halpern, and Mr. Hitchcock, with a response to Mr. Alder from Mr. O'Reilly follow:] PREPARED JOINT STATEMENT OF ALLAN ROBERT ADLER, MORTON H. HALPERIN, AND CORNISH F. HITCHCOCK Mr. Chairman and Members of the Subcommittee: On behalf of the American Civil Liberties Union and the Freedom of Information Clearinghouse, we want to thank you for the opportunity to appear before you today to jointly present our views S.1730 and S. 1751, amendments to the Freedom of Information Act proposed, respectively, by Sen. Hatch and the Administration. Last month, when Assistant Attorney General Jonathan Rose appeared before this Subcommittee to unveil the Reagan It cannot now be doubted that the Freedom of Information |