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request for access to records bearing this label should get in touch with agency personnel who have assigned responsibilities under the Freedom of Information Act.
Mr. McCLOSKEY. What would be wrong with the following procedure if, in your capacity as counsel to all of the agencies of government, you suggested to them that the only classification contemplated, either by the Executive order on top secret, secret, and confidential, and by the Freedom of Information Act, would be exemptions under the Privacy Act which are now specified by law? And if such an agency felt one of their documents came within the framework of that exemption, that they so label it under the laws, so we would have a uniformity within the agencies as to what was deemed confidential?
For example, limited official use properly includes, I suppose, a confidential inquiry on personnel which would come within the personnel exemption of the FOI and the Privacy Act. But if you consider the plethora of markings that date from many years ago, "for Air Force eyes only" for example, there ought to be a clear distinction between those which indicate the limits of distribution within an agency and those which might cause some confusion to agency personnel as to whether the FOI, or Privacy Acts applied. We went to some care to try to trigger in the section 552 of the Code's privacy provisions and its freedom of information provisions so they would be clear under the law.
What, in your judgment, would be wrong in advising all of the agencies to try to frame these labels in the context of the law?
Mr. SALOSCHIN. One thought that would occur to me is that the imposition of any label which appears to indicate distribution or access factors, whether it is something like “limited official use, which has no legal standing under the Freedom of Information Act as such, or whether it was, let's say, “secret," imposed by someone on a national defense secret acting under authority of the Executive order, or whether it indeed is a label reflecting the personal privacy exemption of the Freedom of Information Act or the "business confidentiality” exemption of the Freedom of Information Act-any such label imposed at the time when the document is created, or perhaps when the document is acquired by the agency, has a potential for misleading agency personnel as to what the legal test is when there is a Freedom of Information request.
The legal test is not whether this document was exempt, and, if exempt, whether it should be withheld as a matter of policy, at the time the document was created, or acquired. The ultimate legal test is whether that document is withholdable and should be withheld at the time a Freedom of Information request for it is received and processed. Time may change either the legal status or the policy implications of granting access.
So if we change these admonitory labels, we might get away from the communications problem of telling agency personnel something that is so varying or vague that it is not really perhaps too helpful to them. We would still perhaps be confusing them if they are under the impression, just because a document bears a certain label which was put on some time ago, that, ipso facto, is controlling today.
Mr. McCLOSKEY. I understand your answer, but I don't understand what you are saying.
Take the Justice Department, "sensitive and confidential," "sensitive investigative matters,” “DEA sensitive," and then "sensitive information” used by the U.S. Marshal's Service.
All of those, I take it, come within the FOI exemption. They are investigative matters.
Mr. SALOSCHIN. I couldn't dispute it, although just as a matter of practice and caution, I like always to be able to doublecheck the actual records, themselves.
Mr. McCLOSKEY. Let me ask, just with respect to the Justice Department, if you could submit to us a precise delineation of the differences between these four labels I have just listed for you and whether or not they all come within the same exemption of the Freedom of Information Act. Frankly, it seems to me that either the label ought to have something to do with who gets it or to which exemption of the law it applies.
Mr. SALOSCHIN. I will be happy to look at the administrative markings that you refer to in the Justice Department and try to obtain a response on those two points.
Mr. McCLOSKEY. I think, frankly, I would like to add to that, if you can submit your recommendations as to how we can simplify this whole procedure. If we have inhibited the law with the proliferation of these markings, or if the administrative practice is historical and is serving a need that no longer exists, I think you are in an ideal position to tell us, as counsel to the Government on this subject. It does seem to me that all these labels can't help but raise a question in a person's mind, and thus increase the cost to Government of dealing with the problem of what is under the FOI Act and what is not.
Mr. SALOSCHIN. I will be glad to try to address that question, and I think it would be a contribution to the better administration of the act to do so.
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Mr. McCLOSKEY. In recent days we have had many decisions by the Justice Department whether or not to prosecute FBI agents or CIA employees involved in mail openings. It is becoming of clear interest to the Congress to know what motivates the Justice Department when it decides whether or not to execute its prosecutorial function. I can't understand what guidelines you follow when the Congress asks you why you sue this man and not another and you advise the Congress that this information is either secret, top secret, or confidential, or that you deem it within an exemption of the Freedom of Information Act. Recently I wrote a letter to the Antitrust Division, inquiring why a prosecution had not been brought, and apparently there is some feeling in the Department that Congress or individual Congressmen shouldn't be told why a case is prosecuted or isn't. I, for the life of me, do not understand the basis for the Justice Department withholding the reasons for its prosecution or lack of prosecution, once a case is over.
Can you enlighten me why a Member of Congress can't learn why a given case has been prosecuted or dropped once the case is ended?
Mr. SALOSCHIN. Not right offhand, Congressman McCloskey, I can't, but I will be glad to see what I can do in terms of stimulating a more responsive answer to that question.
Mr. McCLOSKEY. Let me put it on the record with respect to a specific case. For several years, you had under consideration whether to prosecute under the antirebating statutes people who had accepted rebates in the shipping industry, and you recently filed a case in Cleveland where you brought action against the Seatrain Corp. and listed a number of individuals who had participated in the rebating process, including one Arthur Novachek, who was subsequently hired by the Soviets as agent for their shipping company.
I inquired of the Justice Department why the corporation was charged and not Mr. Novachek. I can see all sorts of reasons why that sensitive information should not be made public. I see no reason why it should be withheld from the members of the congressional committee engaged in trying to weigh whether or not the information is sensitive.
Could you look at that question and respond, because if there is a bona fide reason, once a case has been finished, for explaining why it was dropped, I would understand.
In the second case, the case of Congressman Garmatz, former chairman of the Merchant Marine Committee, who was charged, as part of a conspiracy, of bribery. Two people named in the bribery indictment were the presidents of McCormick Lines and U.S. Lines who allegedly gave money through the former chief clerk of the committee. The defense attorney brought out and published in the newspaper, that the Department of Justice was dropping the indictment because they no longer believed one witness, Mr. Heine, who they felt had changed his testimony. The question of whether the other witness was believable or not crossed our minds, and again we inquired of the Justice Department; but it was as if a blank wall had dropped over the reasons for prosecution or lack of prosecution.
Last year this committee looked into the prosecution of FBI employees, and we accepted the Attorney General's position that the decision for or against prosecution should not be made a matter of public record-or even be disclosed to this committee-while the cases were still pending. But when Justice made the decision not to prosecute the CIA people for mail opening, the Department did publish a memorandum outlining the precise reasons why the case had not been prosecuted.
I would like to know specifically why the Justice Department is willing to reveal the reasons that it didn't prosecute in the CIA case but not willing to reveal the reasons it didn't prosecute in the Garmatz case or the Cleveland case against Seatrain. Could you explain why in some cases, you will tell the public and in others you won't? Clearly there are some sort of criteria for either disclosing or not disclosing this information. If you wish to submit this in confidence, I think the committee would accept it just as we do in executive session. Under that basis, unless there was a full vote of the committee, we would not disclose it, either.
Mr. INGRAM. Mr. Chairman, I might point out that Mr. Keuch, who is the Associate Attorney General in the Criminal Division, will be testifying, at tomorrow's hearing and that such questions might more appropriately be addressed to him. Mr. Saloschin's responsibility is limited to the Freedom of Information Act. I think Mr. Keuch can supply a response to that question.
Mr. McCLOSKEY. Counsel, I think he can, too, but I would like to point out that I think the purpose of these questions is to try to upgrade the stature and responsibility of whoever in Justice is responsible for freedom of information and privacy, and that is the reason I hope I am not destroying your effectiveness within the Department to suggest that perhaps the man in charge of freedom of information and privacy might be the one to tell us what the criteria are for the release of information.
Mr. SALOSCHIN. I think you are correct, Congressman, in your assumption that we come in contact with just about everybody in the Government sooner or later, but I am sure you will agree with us in order to be effective in this kind of a situation, we have to keep reminding ourselves that we are not experts in every type of Government activity, and we are doing about as much as can be expected of us if we catch the questions and raise the questions and try to make the best judgment that we can.
In my own case, I am not a professional prosecutor, but I am sure I will do everything I can to see that you get a good response to the questions you have just raised.
I notice that Mr. Richard is taking notes on them, and I assume perhaps we can get a copy of the transcript, so if there is anything he has missed in his notes, and possibly if Mr. Keuch, of our Criminal Division, is going to testify here, he may make it somewhat easier for the people that I will have to turn to in getting responses for you.
Mr. McCLOSKEY. Let me say, in conclusion, I have tremendous respect for the Justice Department since Attorney General Levi, and now Attorney General Bell, have gone a great distance, in my judgment, to remove the concern that the public and the Congress may have had in the past that there was political involvement in some of these very sensitive cases. In asking these questions I really want to continue the momentum toward restoring the level of integrity of the lawyers and the Department of Justice that has eroded in recent years.
I know Mr. Weiss is probably more vigorous on this point than I
Mr. Weiss. And perhaps less sanguine about the situation than you.
May I ask you another question? Is it your impression that the various agencies have reviewed the administrative markings that they use, both as to their use, and the regulations for their use to determine whether they are consistent with the Freedom of Information Act? Do you have any information on that at all?
Mr. SaloSCHIN. No, I can only assume that in most of the agencies at least an informal review has been undertaken by those who have encountered this as a potential problem under the Freedom of Information Act. That would be the lawyers, or the agency officials who have been using these markings and may have discovered from their agency lawyers that the markings are nothing more than an indication that at some point in time someone perhaps thought that this was a control on access, but it retains basically no more significance than that of a caution or warning. It may have come up in connection with training. Not every training operation that goes on in the Government in this area comes to our attention, although, as you probably know, we have made as much of an effort as we can in recent years to foster and encourage training in this area.
Mr. WEISS. In the course of that fostering, have you had occasion to review the use of these administrative markings?
Mr. SALOSCHIN. Let me simply say this: Except for a period of perhaps 6 months or 1 year right after the 1974 amendments were passed, the training has been primarily focused not on agency managers and supervisors, but rather on agency lawyers. And this is a very simple question for most agency lawyers and not one that they agonize over. They quickly conclude that these administrative markings cannot stand up as in any way controlling on the issue of whether a particular record or part of a record is exempt under the Freedom of Information Act.
That depends upon the terms of the exemptions and their legislative history and the case law, and these markings may indicate that somebody had in mind some circumstances or something in the content of the records that might very well link in with one of the FOI exemptions as some of the questions of Congressman McCloskey indicated, but it doesn't necessarily indicate anything more than that, and it doesn't even indicate that with certainty.
Mr. WEISS. Well, again, I think going back to some of the colloquy that we had with you earlier, it seems to me that your office ought to have a greater concern than just to be the impartial referee waiting for requests for judgment calls. Your responsibility, as the person in the Justice Department charged with overseeing the act and adherence to it within the various agencies ought to be to determine whether the processes used by those agencies go to further or to delimit the application of the Freedom of Information Act. I think that your present posture-and I am sure that it is imposed on you—makes your effectiveness much more limited than it ought to be.
Mr. SALOSCHIN. Well, my response to that is that I share your views personally in that I would like to see our role in this area increasingly effective.
I would like to make it clear that for some years we have not envisioned our role as merely providing legal advice or other advice upon request. We are fully conscious of the sentence which Congress wrote into subsection (d) of the act that we are supposed to report to Congress each year on our efforts to encourage agency compliance, a phrase which I sometimes characterize as our monitoring function as opposed to our advisory function. This, of course, has to be weighed against two things, neither of which I am in a position to change. One, of course, is the fact that the basic statutory scheme of the Freedom of Information Act is that each agency processes, that is to say, does the work necessary to grant or deny requests for its own records, which is spelled out in subsection (a)(3), and that is inevitably so.
The other limitation on what we can do I suppose is basically a question of resources and particularly at this time there is prob