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Mr. SALOSCHIN. I would judge, as a matter of opinion, that it might, particularly in two types of situations. One would be in a borderline case where the individual just is undecided; he has tried to collect the information or weigh the information available to him on both sides as to the likelihood of harm which is generally a matter of prediction. In that kind of situation the marking might, in a very close case, make a difference, and perhaps in a very close case legitimately so-as one factor among many to be considered.
The other type of situation where it might have some influence is where the individual in question is acting in considerable haste for one reason or another. He may have merely a telephone call request: would this be available? His first "off-the-top-of-his-head" response may be-we may, of course, be talking about somebody who is not a lawyer or not very familiar with the laws and practices and policies affecting access to information. He may use a marking like this as a basis for a quick response in a telephone conversation that may come while he is on his way to a meeting or hearing that he is late for or something like that.
In other words, it may be a kind of shorthand, and it may, as I indicated earlier, be a factor in close questions. It should not, of course, be given anything like controlling weight, per se, in the processing of a Freedom of Information request.
When we first began to encounter these things some years ago, I think we had pretty much the same reaction as you have in looking at them, one of considerable-perhaps irritation is not too strong a word. More along the lines of, "Don't these people realize that these things cannot supersede the law?" I think today most agencies, at least the legal branches of them, realize that, and would justify the markings on the basis that I indicated earlier, that they are cautionary, or admonitory in nature, and a tool for alerting agency personnel.
Mr. Weiss. I yield to Mr. McCloskey.
Mr. McCLOSKEY. You wear a very high decoration from the Government. In what branch of the service was that earned?
Mr. SaloSCHIN. Navy.
Mr. McCLOSKEY. Some time ago, I had occasion to look at Air Force records and see the label “for Air Force eyes only.” Does Navy have a similar marking?
Mr. SALOSCHIN. I would assume that they have a similar marking. I don't offhand know precisely what it is.
Mr. McCLOSKEY. You have identified yourself as chairman of the Justice Department's Freedom of Information Committee which advises all agencies of Government on this question of labeling of information. All of the armed services had a good many more gradations of labeling than just the top secret, secret, confidential classifications.
My understanding is in the armed services those have all been removed now except top secret, secret, or confidential. There are no other labelings other than the routing within the agency to individuals on a distribution list.
I take it from your standpoint you see no problem in agencies having different methods of routing what goes on within the agency to the list of addressees who may have the need to know that particular information.
Mr. SALOSCHIN. Well, I would say that if the basic rules of the game are properly understood in the agency, there should not be any problem other than the problem of seeing to it that these labels are properly understood and given no more respect than they are entitled to, and that is a problem for management-first to inform itself of all of the legal and policy factors involved, and then to make sure that that is effectively communicated into the field and throughout the various branches of the organization. This, of course, is a continuing problem with the turnover of personnel.
Mr. McCLOSKEY. You characterized it as essentially a management tool within an agency. Do you see any inhibition on the obtaining of information under the freedom of information law, because a given command or a given agency has a higher degree of sensitivity in these management-tool uses than others.
Mr. SALOSCHIN. Yes, it could be a problem. It is a kind of problem that should be addressed, not only in the regular management of an agency, but there should be a doublecheck on it in the way the agency organizes itself for processing Freedom of Information requests. In other words, there should not be any misunderstanding among operating personnel about the significance of these labels. If, in fact, there is, then the mechanism of the agency for Freedom of Information processing should be strong enough to catch the mistake and make sure that the issue is properly addressed.
Mr. McCLOSKEY. Let's take the basic operation of the Defense Department, with which you are familiar. Can you conceive of any reason a memo in the hands of an Assistant Secretary of Navy shouldn't be available to an Assistant Secretary of the Air Force, even though it may involve competition for an appropriation? That is a yes or no answer, counsel.
Mr. SALOSCHIN. Perhaps I could preface-
Mr. McCLOSKEY. No, you can't. Say yes or no, and then explain it. Do you feel the Air Force ought to have the right to withhold information from the Navy when the two agencies are competing for, say, a major policy effort as to what they are going to petition the Congress for, whether it be Navy planes or Air Force planes?
Mr. SALOSCHIN. As a general matter under the unification of the Armed Forces-
Mr. McCLOSKEY. I didn't hear the yes or no.
Mr. McCLOSKEY. I thought you might start with that and then explain it.
Mr. SALOSCHIN. Start with it and then qualify it. All right. I will do it that way.
I would say that generally speaking the information should be exchanged between the Assistant Secretaries of the two Armed Forces.
Mr. McCLOSKEY. So you can conceive of no information in the hands of the Assistant Secretary of the Navy that shouldn't be available to the Assistant Secretary of the Air Force, even though they are competing for a limited appropriation which only one of them may be able to get.
Mr. SALOSCHIN. I didn't quite say that, Congressman McCloskey. I have perhaps a lawyer's caution about blithely answering questions as to distribution of records even internally within the Government, when I don't know what is in the record.
Mr. McCLOSKEY. Let me pose you a hypothetical question and try to get to the yes or no answer. Let's say I am the Assistant Secretary of the Air Force, and I am pushing for the F-15, and the Assistant Secretary of the Navy is pushing for the Harrier vertical aircraft. The Assistant Secretary of the Navy calls you as counsel to the Department of the Navy in matters of this kind, and says, "Mr. Saloschin, can I obtain a copy of this memorandum which I know has been submitted to the Assistant Secretary of the Air Force, and that is marked for Air Force eyes only." What is your advice going to be to the Assistant Secretary of the Navy, who asks you to advise both him and the Assistant Secretary of the Air Force whether that Air Force memo ought to be available to the Navy?
Mr. SALOSCHIN. Bearing in mind the qualification?
Mr. McCLOSKEY. Yes or no, whether he is entitled to it or he isn't. They both have top secret security clearances. There is no question of the national security being endangered by allowing the Navy to know what the Air Force is thinking.
What is your advice, counsel? Yes or no.
Mr. SALOSCHIN. On the basis of the facts as you have described them to me, I would see no practical problem. There ought to be free communication between those two officials.
Mr. McCLOSKEY. So should we advise all Cabinet officers that any memos in their hands relating to competitive issues between agencies of Government ought to be made available upon request to the Cabinet officers of other levels of Government? We have these conflicts all the time between Interior and Commerce, for example, in the handling of offshore drilling. My understanding is that the purpose of these limiting labels is essentially to keep it as much from other agencies of Government as it is from the enemy, or alleged enemy. You nod your head, indicating that is your understanding, too, I assume.
Mr. SALOSCHIN. That is an aspect of it that I had not fully considered, Congressman McCloskey. I regarded them as more generalized in their cautionary functions rather than specifically aimed at denying access to another Federal agency or another Federal official. Were I to focus on that aspect of the problem, I would like to have a little bit more opportunity to reflect on it.
One thought occurs to me
Mr. McCLOSKEY. You can blow up the whole Government with an unwise or unthought-out answer.
Mr. SALOSCHIN. Right.
One thought that occurs to me is, in general, I think agencies and officials whose objectives may have a great deal in common, although their functions may involve some degree of competition, should maintain dialog. There is, of course, a very old principle that those who are perhaps experts in the field can speak to better than I can, but I am sure most people will recall it. That is—and I am not speaking either in a legal or policy sense, but just in a historical sense-if information is sensitive or secret at all, and if it is important to maintain that protection for it, one of the first things that is considered is to restrict its dissemination as much as possible. The need-to-know principle, I suppose, reflects that thought, where you don't release, shall we say, classified information, even to people who are trustworthy and are authorized to receive it unless they have a need to know it.
I am not saying that is the be-all or end-all of this question.
Mr. McCLOSKEY. This is the very purpose of this inquiry, as to whether the need-to-know criteria that are applied by each agency are inhibiting in any way the enforcement of the law under the Freedom of Information Act. That is the essential nature of this inquiry; whether or not the need to know, as practiced in a bonafide manner as you just described, is inhibiting the enforcement or implementation of the Freedom of Information Act. It bothers me a little.
Let's assume the Harrier characteristics as compared to the F-14 characteristics, are known throughout the world as to what their good and their bad and their pluses and minuses are, that that might be withheld under the Freedom of Information Act because of the Navy not wanting the Air Force to know the full story as they see it.
Do you find any indication in the Government agencies now that the “need to know” may inhibit the free flow of information as intended by the Freedom of Information Act?
Mr. SALOSCHIN. To answer that question would require a rather thorough research program oriented to practices-
Mr. McCLOSKEY. What you are saying is you don't know. That, in itself, is an answer. If that is your answer, that is fine.
Mr. SALOSCHIN. Well, I certainly would say that I don't know enough to give a definitive answer to that question, yes.
Mr. Weiss. Mr. Saloschin, what is the function of your office?
Mr. SALOSCHIN. The Office of Legal Counsel as an office-and this is probably better stated-
Mr. WEISS. You are the chairman of the Freedom of Information Committee?
Mr. SALOSCHIN. That is right.
Mr. SALOSCHIN. My function as chairman of this committee is to provide legal advice and policy advice to other government agencies under the Freedom of Information Act, particularly at the time of a proposed administrative final denial of access to records.
Mr. Weiss. In the course of fulfilling your responsibilities, I assume the question of these administrative markings has come to your personal attention?
Mr. SALOSCHIN. Upon occasion, yes.
Mr. WEISS. And I assume you have had occasion to pass judgment as to whether those markings were or were not in compliance with the Freedom of Information Act?
Mr. SALOSCHIN. Well, they have no status under the Freedom of Information Act.
Mr. Weiss. Have you had occasion to advise the various agencies which have come to you for advice or have come to your attention, that there is, in fact, no statutory authorization for those markings under the Freedom of Information Act?
Mr. SALOSCHIN. Yes, but it is no longer very often necessary for us to do so. This is understood-most of the agencies that have any significant amount of freedom of information work, today and most of them do-
Mr. Weiss. You said yes. That means you have, in fact, advised the agencies which use administrative markings that there is no statutory authorization for their doing so under the Freedom of Information Act. Is that right?
Mr. SALOSCHIN. They have no statutory status under the Freedom of Information Act.
Mr. Weiss. Have you, in fact, concluded whether those markings are in violation of the Freedom of Information Act?
Mr. SALOSCHIN. It depends upon what is the significance attached to them. If they are asserted as an indication that access to the records should be denied to someone seeking them under the Freedom of Information Act because that label is on there, then they would be in violation of the Freedom of Information Act, and we would so advise any agency, and have.
Mr. WEISS. We have an example. The State Department uses a “limited official use” marking on certain documents and handles these in the same manner as documents classified confidential. The sole instruction for applying limited official use legend reads:
Certain official information and material which is not national security information and therefore cannot be classified is nonetheless protected by law against disclosure. Such information and material includes, among other things, information received through privileged sources and the certain personal, medical, investigative, commercial, and financial records.
Now, what is your view as to those guidelines?
Mr. SALOSCHIN. I would think, just offhand, that standing alone they are in need of some improvement. I don't know how old they are; I don't know what kinds of talents went into preparing them, whether they were designed by operating, legal, public information or records management, people; and I don't know whether these other groups had input into them. I also don't know the context in which this appears. Is this part of a preliminary training manual for new employees, or what is the context in which that language is used?
Mr. WEISS. It is stamped on documents: "Limited official use."
Mr. SALOSCHIN. I understand the label, but I didn't understand that the language describing it or the instruction was also stamped on the document. Maybe it is.
Mr. INGRAM. That comes from State Department security regulations issued in September 1972. I take it the chairman's question is whether or not those regulations would comport with the FOIA, and whether, as well, your office was requested to review those regulations to see whether or not they complied with the FOIA.
Mr. SALOSCHIN. I doubt that we were requested to review those regulations. As I have said, those regulations on their face call for some, at a minimum, qualification that a label of "limited official use” does not constitute a dispositive determination of the status of any records which may bear such a label when requested under the Freedom of Information Act, and that personnel encountering a