pretation of the Freedom of Information Act by the Government as a whole instead of this variance from agency to agency?

Mr. POLK. We may have to fight the battle in the courts as Mr. Taylor has done. He won one case against Interior. There are four pending against the Defense Department. It is more expense than it has been worth for many of our news organizations. I would welcome your efforts to strengthen, a tightening of the law, but we ask most of all for speedier responses. Often by the time we have the response, after the administrative appeal period has run-as Mr. Anderson said the news is perishable. Only those with the most patience and most expense to use will go to the courts to conclude the battle.

Mr. ANDERSON. I would agree with that. The only thing I would add is-and I think that there will be too much timidity to do anything about this-but you should and almost must police the classification stamp. That is now the biggest loophole available to them. They use it as a censorship stamp. Any news that is disagreeable, any news that they want to block they can simply stamp because there is in all of Government there is not a single censorship stamp. That would be intolerable in our Government. So when an embarrassing document crosses the desk of an official there he is without a single censorship stamp. So he stamps it secret instead. I think Congress ought to start interfering with the censorship system that is widespread in our Government and stop the Government from censoring classified information, using the classification stamp to censor information that belongs to the people. I would argue as I did in my prepared statement that the American people are entitled to know anything that the Kremlin knows. Mr. ENGLISH. Thank you. Mr. Erlenborn.

Mr. ERLENBORN. Thank you, Mr. Chairman. First, Mr. Polk, in response to a question from the chairman you listed four areas where you thought that improvements could be made in the act. One of them caught my attention where you suggested-and I guess I should not say you did-but actually Jack Taylor had this in his testimony and I think you were referring to it. That there should be a way to review material said to be classified and that there is, according to Mr. Taylor's statement, the lack of any compulsion for judicial review of material said to be classified in this interest of national security or foreign policy. My recollection may be imperfect, but I believe I recall correctly that the last time we amended the Freedom of Information Act we provided for judicial in camera review of classified material. I think the criteria were whether it was properly classified pursuant to an Executive order, so I am a bit at a loss to understand the assertion of Mr. Taylor repeated by you that there is no judicial review.

Mr. POLK. I share your bewilderment because I recall court cases in which material has been submitted in camera for judical review on a number of issues and certainly the courts could allow for it regardless of what the Freedom of Information Act might specify. My primary problems are simply the way I feel as anyone who disagrees with the a law, with the way the law is administered, how I feel the law can be warped by delay and general denial but if the law remains unchanged we will persevere with it and be satisfied. We are much more concerned that those who prefer to keep in

the closet embarrassing facts or policy disagreements not be given more ammunition for denial or delay. That is our worry today.

Mr. ERLENBORN. One other question of a general nature. One gets the impression-maybe I should preface this question with a statement. I was here as a member of this committee when the Freedom of Information Act was passed. I cosponsored it. I supported it. I supported the amendments that strengthened it over the years. One gets the impression that the Freedom of Information Act was passed so that the public would have the right to know and often, maybe even almost exclusively, this is accomplished by investigative reporters demanding information which later gets printed. I think the actual facts in operation as to the utilization of the act have been quite contrary to that and I say that as one who supported it and am surprised at the result. Do you have any concept of what percentage of the requests under the Freedom of Information Act come from reporters as opposed to coming from the business community?

Mr. ANDERSON. I do not know the percentage but I have heard exactly what you are saying. Whatever the percentage is I think it is overwhelmingly on the side of the public individuals coming in and exercising their right to know and I applaud that.

Mr. ERLENBORN. I have heard evidence to the contrary. It is neither the individuals in the public nor the investigative reporter who has constituted the vast majority of the initiators of requests but rather Washington-based law firms in the main representing large corporations trying to get information about their competitors. I think that if we would check this-I do not have the information before me at the moment-but I think we would find well over 50 percent of the requests are initiated by law firms who find this is a much handier way of getting information than getting involved in a lawsuit and filing interrogatories.

Mr. POLK. As long as we treat a corporation as an individual they are entitled to the same access to Government as any individual. I do not think that is necessarily a misuse of a public right for any corporation or any lawyer to seek what is on public file with the Government. We had a situation which leaves me extremely uncomfortable. In fact Mr. Taylor initiated it. Mr. Taylor requested as a matter of public record with the Department of Defense the summaries they wrote of reporters' interviews. And the reporters at the Pentagon raised a hue and cry, "How dare you release records about what are our trade secrets." I thought they were a bunch of crybabies. I do not think the reporters deserve any special exemptions, should never get one. I think the problem there was the collection of information by the Pentagon. I think business might well look at the other side of the coin: the problem of the information that is being collected by the Government. It is not the right which they should fear, the right of access. I think it is all the Government asks of them. I think that may be the greater problem for corporations.

Mr. ERLENBORN. I would agree with you there. The collection of information, the vast majority of which is never used but which the bureaucrats seem to like to gather and file away somewhere. But there are some problems that I think this subcommittee should look into. Trade secrets required to be divulged in the regulatory

process, might then later be divulged to a competitor to the detriment of a corporation that never wanted to reveal the information in the first place because it was a trade secret-I think some of these areas could be explored. Let me just lastly say that I compliment the chairman for arranging these hearings. No law is so perfect that it should be free from scrutiny. Some of the things that have occurred under this law are quite contrary to what we initially thought the purpose of the law might be or the general thrust of the utilization of the law. I think we would be derelict in doing our job of oversight, which is one of the principal obligations of this committee, if we did not hold hearings such as this and find out what is going on in actuality and what changes might improve the law. Thank you for your testimony.

Mr. ENGLISH. Thank you, Mr. Erlenborn. Mr. Weiss.
Mr. WEISS. Thank you very much, Mr. Chairman.

Just on the point our distinguished colleague Mr. Erlenborn raised as to why Mr. Taylor was referring to judicial review, and in fact it is currently in for initial review under certain circumstances. I think if you read the statement of Mr. Taylor in context he points out that his concern is that currently there are 65 bills pending which would affect the gathering and publication of news. He says 20 of those bills involve a concerted effort to neutralize FOIA and he provides examples on what those pieces of legislation would accomplish. Within that context in 1974 he testified before another congressional subcommittee. He says that although 75 amendments cured some of the weaknesses of the FOIA, given the onslaught of these proposed pieces of legislation he felt it worth repeating today the statements that he made and examples he used in 1974 testimony. One of those dealt with the lack at that time of any compulsion for judicial review of material. Within that context it is worth recalling the testimony we had at hearings last year on the Freedom of Information Act, testimony from the CIA and the FBI representatives. You will recall that last year the CIA asked for a number of changes among which was the abolition of judicial review for CIA decisions concerning FOIA. And so in fact, the judicial review aspect is under attack at this point, and I think Mr. Taylor's comments are well taken. Gentlemen, first I want to comment on your statements. I found them not only instructive but eloquent and I think for myself quite persuasive. During the questioning last year of both Mr. Webster of the FBI and Mr. Carlucci for the CIA it became clear that they were not finding fault with the legislation on the books as far as the disclosure of confidential information from informants in the case of the FBI, national security and intelligence information in the case of CIA-they said that that really does not happen very much. The problem for them they said is the perception, in the case of CIA, of our allies who do not understand the protections that are built into the legislation, and in the case of the FBI, the confidential informants who do not understand that their information would become public. For me it would be a very difficult, almost impossible argument to contend, that the legislation is OK but you have to change it or eliminate it-and the CIA is proposing they be totally exempted from itbecause there is a perception that dangerous information is disclosed. What would your comments be on the idea that we ought to

eliminate some of the provisions, increase exemptions or eliminate all coverage as far as the CIA is concerned, because there is a perception that it in fact does more than it does?

Mr. ANDERSON. I would advise them to change their perception. 1 The CIA has tried to make the case that through the Freedom of Information Act that agents and informants are being identified and they have heard-I cannot cite the testimony because I was not expecting your question-but I heard it. I have read it. It is the CIA that is causing this perception. It is the CIA that is putting out this information. It is the CIA that is complaining that this act is making it possible for enemies of our country to find out who our agents are and who our informants are, even causing the deaths and the torture of some of them. I know of only one case and I will stand corrected if anybody can think of another, there was one CIA agent who was shot in Athens, Greece. He was the head of the mission there. He was the top CIA man there. He lived in a house that the head of the CIA had been using in Athens for 25 years. It had become part of the sightseeing tour. Sightseeing buses would go by and guides with megaphones and microphones would explain to the curious, "And this is where the head of the CIA lives here in Athens." Yet the CIA has been putting out propaganda that it is the Freedom of Information Act, the looseness of our democratic procedures that caused this man's death when it is in fact their own lack of security. If they cannot keep their people secure, if they cannot handle these perceptions it seems to me that they ought not to try to cure it by attacking freedom of the press and abridging freedom of the press. I suggest again that the perception you complain about was caused directly by the CIA.

Mr. POLK. As far as the FBI is concerned I have great admiration for that agency and its efficiency. I do not think it relies on confidential informants who walk in off the street and say, "I have something to tell you." Most of its cases are made with hard work and determination. The confidential informants who are most valuable to the FBI have been in my experience those who were caught right up against the wall redhanded and have no choice but to cooperate with the FBI and with prosecutors as an insider in some nefarious scheme they were involved in to reduce the prison term they face. So it is a worry about how long they will go to prison that makes them good confidential informants. Most recently we saw the FBI use of confidential informants in the investigation of Secretary of Labor Raymond Donovan. And all that the FBI learned was made public by the FBI and by the Senate committee considering Mr. Donovan's nomination and none of that public attention dissuaded those confidential informants from coming forth in volume.

Mr. ENGLISH. Thank you very much. Mr. Bailey?

Mr. BAILEY. I want to add my compliments to the gentlemen and I have no questions.

Mr. ENGLISH. Mr. Conyers.

Mr. CONYERS. First I want to thank the chairman for undertaking these hearings. I want to say to Jack Anderson his statement here this morning was the most thoughtful presentation on the need and purposes of the Freedom of Information Act that I have ever heard. I am only sorry that a Member of Congress did not

make that statement instead of a member of the press. I only wish there were people in the Senate and the House who are as deeply committed to the act-and who know these realities just as well as the gentleman that is a witness. I hope these hearings will make clear to the American people what this is all about. This is not just some bureaucratic harping among people in the administration and in the agencies and the Congress. This goes to the most single fundamental question that defines this form of government. There is nothing more important, and so I am very honored to have heard this. I am going to put your remarks in the Congressional Record and invite my colleagues to begin the real scrutiny of how we strengthen this act. Both of you have done a very significant job in pointing the way to what we might consider in the course of these hearings.

Now I would like to yield to counsel of the subcommittee to refresh some of the members' recollections about this question of judicial review because it has not been thoroughly explained.

Mr. GELLMAN. Any information properly classified according to Executive order is exempt from disclosure and does not have to be disclosed. If a requestor files a lawsuit seeking that information, he may question whether or not the information is properly classified, and a judge may review that determination. The classification standards are set by the President by Executive order. The only thing the judge can determine is whether or not the document was properly classified according to the standards established by the President.

Mr. CONYERS. So the problem that derives from that procedure is that the judge has an extremely limited interpretation to make. If it is within the parameters of the law there is no violation. The case is thrown out. The plaintiff loses. And it is in that framework that this committee and the staff might want to more carefully examine ways of strengthening FOIA. Perhaps there should be standards of disclosure irrespective of a President's criteria laid out in an Executive order. Does anybody want to comment on this explanation?

Mr. ANDERSON. I would like to say Mr. Congressman that I listened to your statement with grateful embarrassment. Thank you. I would like to make only this point. That not even judges are likely to buck the classification system. The generals, the admirals, the Government officials have invested into the classification system a certain mysticism as if somehow this is sacred, engraved on a tablet of stone and only they with their superior knowledge really understand and to a startling degree this has been accepted. Judges and Congressmen and newsmen kind of quake at the sight of the secrecy stamp and say well, people with superior knowledge have said this is secret. I just return to my point if the Kremlin knows it then the American people are entitled to know it and the Kremlin has the most marvelous monitoring devices. The finest spy satellites that can be made. And I know the kind of information that they can get. I have seen what we get from them. I saw a top secret photograph taken from 200 miles in outer space. It showed a Soviet tank, standing on top of it a Soviet soldier easily detected, the tank treads, where the tank had been. I saw this. I have seen other documents that show from 200 miles in outer space we can