Intelligence Exemptions: S.1751 substantially reduces access to the records of the FBI, CIA, and other investigatory agencies by permitting the Attorney General to authorize the withholding of whole categories of information relating to terrorism, foreign counterintelligence, and organized crime. It also permits the withholding of information relating to on-going investigations, regardless of whether release would interfere with such investigations. S.1730 would exempt many FBI - records from coverage of the FOI Act. The Hatch bill would exempt all records whether they are investigatory records or records merely "compiled for law enforcement purposes" and in any way "used" for law enforcement purposes. In addition to this double-barreled loophole (the first condition of Exemption 7), the Hatch bill expands the scope of the current exemption from identities of confidential sources to anything? which would tend to disclose a confidential source. As unfortunate as these intelligence exemption sections are in both bills, they do not represent the worst type of "back-door" amendments currently circulating on the Hill. Passed as "riders" on appropriation authorizations and other bills, these usually propose to amend the National Security Act of 1947 or the Central Intelligence Act of 1949, rather than the FOIA itself. In the October OAH Newsletter it was pointed out that it is also possible to "amend" FOIA indirectly by passage of a statute which Recommendation: No further exemptions for any intelligence or other agencies through either S.1751 or S.1730 or amendments or new "(b) 3 statutes" in authorization legislation. The fact remains that the FBI has not publicly proven a single informant had his or her personal security jeopardized because of an FOIA court decision. National Security: Both bills extend the ease with which agencies can hide behind the rubric of "national security". In particular, S.1751 drastically limits judicial investigation." Recommendation: Recognition that the national security is not best served in a democracy when indiscriminately protected by covert actions. In conclusion and on behalf of the approximately 9,000 specialists in American history represented by the Organization of American Historians, I want to suggest most strongly that instead of restricting the use of FOIA by scholars that Congress seriously consider extending the Act to all branches of government. In fact, Assistant Attorney General Jonathan C. Rose suggested before the House Subcommittee on Government Information and Individual Rights Committee on July 15, 1981 that the FOIA should be applied to Congress. As early as 1977, the minority report of the National Study Commission on Records and Documents of the Federal Officials recommended that the FOIA should be extended to all public records of federal officials immediately after they left office while the majority report called for application of the FOIA to the papers of the President, members of Congress and Judges after 15 years. In the interest of preserving and documenting an accurate record of past and contemporary history, the OAH realizes that the FOIA can never substitute for aggregate declassification of documents, but it could be made a much more useful research tool for scholars if Congress would not continue to lump legitimate scholarly use of the FOIA with others' misuse of it. Senator HATCH. We have one final witness, and that is Prof. Nino Scalia. Nino, I am going over to the floor to vote, and I will be right back. If you can wait, we will certainly get your testimony in. [Recess taken.] Senator HATCH. Professor Scalia, we are happy you have had so much patience to wait for us. We think that your testimony is going to be very important for this subcommittee's consideration. You are our last distinguished witness this afternoon, and we certainly welcome you from the University of Chicago Law School. We also note that you are chairman of the American Bar Association's section on administrative law. Formerly you served as Assistant Attorney General for the Office of Legal Counsel of the Department of Justice and chairman of the Administrative Conference to the United States. We want to thank you as well as our other distinguished witnesses for appearing here today before our subcommittee. STATEMENT OF PROF. ANTONINE SCALIA, SCHOOL OF LAW, UNIVERSITY OF CHICAGO Mr. SCALIA. Thank you, Mr. Chairman. I appreciate your continuing the hearing into this late hour. If my testimony were in sufficiently legible form, I would leave it with you, but the only way to convey it is to read it from my notes. Senator HATCH. We will be happy to hear it. Mr. SCALIA. Fortunately, I am a New Yorker by birth and upbringing, so I can speak fast. It is not my intention, Mr. Chairman, to discuss the details of the proposed amendments, but rather to urge upon you the clear need for amendment in several major areas. I should add that I am speaking purely on my own and not as a representative of the American Bar Association's Section on Administrative Law. Their views may well differ, for all I know. My own experience with the act is not primarily as a requester of information, although as an academic I am certainly a member of one of the groups most benefited by the legislation, nor as a Government official reply to requests, although during my years in government I sometimes did so. Rather, my primary experience has been as the officer in the Department of Justice whose division was responsible for advising agencies concerning application of the act, encouraging their compliance with it, and preparing the annual reports which the Attorney General is required to make to Congress. During my period of service in the Department, these were the responsibilities of the Office of Legal Counsel, which I headed. We took those responsibilities seriously. At least I recall that we were usually on the disclosure side of things, arguing with agencies and sometimes with other units within the Department itself against what seemed to us unwarranted claims of exemption. The first element of my FOIA experience that I wish to share with you is the first element that I myself experienced when I first arrived at the Office of Legal Counsel in September 1974. It is the realization that the 1974 amendments to the Freedom of Informa tion Act are a monument to a failure of cooperation in the legislative process between the legislative and executive branches. The executive had other problems on its mind that summer, as you may recall. President Nixon resigned in August, and the Justice Department itself was in some disarray. As for the Congress, it had a distrust of the executive. It spread down from the President and his immediate advisers to all men and women in any position of responsibility. I recall as long as a year later that all executive officials were placed under oath whenever they testified before a particular House committee. It was, in short, an era not likely to produce from the executive branch careful presentation nor from the Congress a sympathetic hearing on these matters that touch so proximately upon executive operations. The executive, as I have heard the history described from those who were involved in the process before I came upon the scene, made a bad situation worse by adamantly resisting at the outset all changes in the act, even those that the Congress was obviously bent upon achieving. By the time it realized the error of its obstinacy, the train had left the station. The changes had been drafted and negotiated among Congressmen and committees without the degree of executive branch participation that might have made some of the changes, though still to be sure unpalatable, considerably more realistic. As you know, President Ford vetoed the bill that finally emerged. It took a good deal of courage for a President who had come into office only about 2 months earlier in the circumstances that then obtained, to veto a bill that bore the words "Freedom of Information," and his action was clear indication of the profound misgivings which the executive branch had but had inadequately conveyed to the Congress. What I hope to suggest by this history is that you may approach the amendment of this legislation with somewhat less deference for your earlier handiwork than is usually justified, and you may plausibly blame the defects, if you wish, upon the executive that now complains of it. It should be apparent that fundamental revision of the Freedom of Information Act is needed by simply comparing what the act was in contemplation with what it has turned out to be in reality. The act and its amendments were promoted as a means of finding out about the operations of government. They have been used largely as a means of finding out about the operations of private institutions. They were promoted as a boon to the press, the public interest group, the little guy. They have been used, leaving aside Privacy Act requests, very frequently by corporate lawyers. They were promoted as a minimal imposition upon the operations of Government. The House committee, as I recall, estimated that the 1974 amendments would cost only $100,000. They have been used to turn the Federal Government into the largest library reference service. One request alone, as you have heard testified, costs the taxpayers more than $400,000. There has grown up since 1974 an entire industry based upon the Freedom of Information Act, two-volume loose-leaf service, for ex ample, updated monthly, that retails at $438 a year. Every week, the Legal Times of Washington runs a full page of notable freedom of information requests filed during the preceding period, many of them requests by corporations finding out about other corporations. I just learned in discussions before this testimony that there is a society known as the American Society of Access Professionals, which is composed of people who are in the business of freedom of information requesting. The necessary training for a big-time litigating lawyer includes not only the cross-examination of witnesses but use of the Freedom of Information Act. In short, it has turned out to be a far cry from just John Q. Public finding out about how his Government works, although John Q. Public is footing the bill for most of it. When the results diverge so greatly from the expectations, surely it is time to go back to the drawing board. The basic error in the sketch is, I think, easy to identify. It is exemplified in a "Peanuts" cartoon that one of the more philosophical of my children brought to my attention. A worldly wise and somewhat overbearing Lucy asks the goodhearted and somewhat naive Charlie Brown, "Charlie, what would you rather do, be captain of the baseball team or marry the cute redheaded girl?" And Charlie replies innocently, "Why can't I do both?" to which Lucy responds, "It's the real world, Charlie Brown." It is indeed. It is a world that imposes choices, even ultimately upon a goodhearted and well-intentioned Government. This message has sunk home in the budgetary field. It is called budget balancing. Even with a printing press at hand, it is not possible to support every desirable program in sight from defense to welfare. The message has also sunk home in the field of regulation. It is called cost-benefit analysis. Each agency in pursuing its particularly statutory goals cannot disregard the other desirable goals, such as competition, innovation, or simply lower prices to the consumer, which it is thereby impeding. We must ultimately learn the same lesson, I think, a lesson of the necessity for painful choice with respect to the Freedom of Information Act. The desirable social commodity provided by that legislation, like all others, comes at a cost. Freedom of information is not for free. Responsible government must carefully weigh its costs and decide how much it wants to buy. I would like to discuss briefly three areas in which, it seems to me and to many others, the necessary choices with respect to freedom of information have not been properly made. The first of these is the area of economic costs. As I noted above, the 1974 FOIA amendments were estimated to cost about $100,000. They have in fact cost many, many millions of dollars; no one knows precisely how much. Coming from the University of Chicago, I am permitted to point out that there is no such thing as a free lunch; somebody pays, and in this case it is the taxpayer. That is not necessarily bad; the taxpayer pays for lots of things. But the necessary question is-and this is where the choice comes in-Is all of this expenditure of taxpayer funds worth it, given the other programs from which the 87-749 0 - 82- 61 |