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Mr. Chairman, I have been frank with this committee in identifying certain problems the Department of State has encountered in the operation of the act. But this review should not obscure the Department's commitment to improving the flow of information to the American people.
In the final analysis, the foreign policy of the United States must be founded in the basic values and goals of the American people. And it cannot be conducted without the firm support of an informed public. The American people must be able to have the kind of healthy debate that permits the formulation of those values and goals. That is the nature of our society and the Freedom of Information Act is an important part of our democratic process.
Thank you very much. I will be happy to answer any questions you may have.
Mr. LAPHAM. Senator, I have not had an opportunity to go over all of Mr. McGehee's statement. But, to the extent I heard him summarize it this morning, it contained a number of inaccurate statements or suggestions that I would like to take a moment to correct.
I believe he testified that there have only been five or six cases in which CIA (b) (1) exemption claims have been litigated. That number falls well short of the actual experience, there have been at least 15 or 20 such cases in which those kinds of claims have been litigated.
If he was seeking to develop a point that nobody will litigate with us because we always win these cases, it has not been a perception of mine that anybody has been deterred from litigating with the CIA because of that reason.
Senator ABOUREZK. I think Mr. McGehee referred to the Military Audit Project litigation, not to outside litigation.
Mr. LAPHAM. I understood it otherwise. If that was his
Mr. McGEHEE. What I meant to say—and I hope it came throughis that there have only been six cases decided. There have been other cases litigated, but there have been only six cases decided.
My written statement summarized my authority for that."
Senator THURMOND. Mr. Chairman, if he is going to testify further, I prefer that he be sworn like the other witnesses. Senator ABOUREZK. Yes, that is fine.
Do you solemnly swear that the testimony you are about to give is the whole truth and nothing but the truth, so help you God?
Mr. McGEHEE. Yes.
Senator ABOUREZK. We will make it retroactive.
Mr. LAPHAM. Senator, we would be happy to supply for the committee a list of all those decided cases that have involved the (b) (1) exemption claims; there are a good many more than six.?
There was a suggestion that a common practice of the Agency is to file, in these cases, when we seek to support a (b) (1) exemption claim, secret affidavits. It is correct that that practice has been followed on two occasions; those were the only occasions on which secret affidavits have been utilized in these litigations.
1 See p. 64 of the hearing text. • See p. 468 of the appendix.
There was a suggestion further that the affidavits that are commonly filed by the Agency in these cases are rather routine and perfunctory documents.
I assure the committee that that is not so. These affidavits that are customarily filed are elaborate, detailed justifications of any material that is being
Senator ABOUREZK. Can you furnish the committee with those affidavits?
Mr. LAPHAM. We could certainly furnish the committee with samples of the kinds of affidavits that we submit; absolutely."
Senator ABOUREZK. If you would submit all of those affidavits in the litigated cases. We would like to look at all of them.
Mr. LAPHAM. We can do that, sir.
Senator ABOUREZK. You mean you furnished affidavits to a court that have been classified ?
Mr. LAPHAM. On three occasions in three cases, yes, sir; we have done that.
Senator ABOUREZK. And you do not want us to see the classified ones?
Mr. LAPHAM. Well, we can discuss arrangements pursuant to which that might happen.
Senator ABOUREZK. I think it would just be for the members only, those who have clearance.
You don't have any objection to that; do you!
Mr. LAPHAM. We will be happy to discuss arrangements with the committee to accomplish that end.
Senator ABOUREZK. Very good.?
Mr. LAPHAM. No, sir, except to say there is and I am sure the committee recognizes an inherent dilemma in trying to litigate about the question of whether national security information should be publicly disclosed or not. It is quite obvious that procedures have got to be fashioned, and indeed they have been fashioned in these cases that I am talking about. This makes it possible for the CIA to litigate its claim that a particular item of information or document is properly exempt without, at the outset, having to disclose what the information is.
It is for those kinds of reasons that, on occasion, classified affidavits must be submitted in support of the exemption claims. On occasion, it is simply impossible to fully justify the reasons why a particular document should be exempt from public disclosure, without going into a lot of additional information which is itself classified. Therefore, it is not unnatural or unpredictable that occasions will arise on which the justifications themselves must be in classified form.
Senator ABOUREZK. You don't think a judge ought to be entitled to look at information to see whether it is properly classified or not? You just want to submit information to him about the file. Is that your position ?
1 On Nov. 1, 1977, the CIA furnished the subcommittee copies of all onclassified affidavits It has submitted to a court in FOIA cases. See correspondence p. 528 of the appendix.
. See correspondence pp. 525, 526, 529 of the appendix.
Mr. LAPHAM. Not necessarily. We would hope to be able to pursuade a judge if we took this position that the withheld documents were properly classified on the basis of detailed affidavit.
Senator ABOUREZK. But isn't that kind of shooting craps under a blanket
Mr. LAPHAM. Well, the act does provide for an in camera inspection of procedure. It is open to a court or a judge to ask to examine documents on that basis.
Senator ABOUREZK. In how many cases have judges asked to see the actual documents ?
Mr. LAPHAM. I do not have an exact count of that. That could be supplied as well.
Senator ABOUREZK. Please do that.
[Exhibit 53] Cases in which the court requested in camera examination of documents with. held under the claim of (b) (1):
(a) Hayden v8. CIA–The court requested to examine 39 documents from among 116 documents involved in this litigation. Thirty-two of this number were withheld either in whole or in part on the basis of exemption (b) (1).
(b) Military Audit Project v. Turner-The court requested to see all documents involved in this litigation in which exemption (b) (1) had been claimed. Senator ABOUREZK. Did you want to saying anything further? Mr. LAPHAM. No, sir. Thank you. Senator ABOUREZK. Senator Thurmond ?
Senator THURMOND. Under the Freedom of Information Act, I presume you have supplied information from requests coming to you where you felt you could do it safely and securely
Mr. BLAKE. I did not hear the end of your question, sir.
Senator THURMOND. I presume you have supplied answers to requests coming in where you felt you could do so if it did not jeopardize our national interest.
Mr. BLAKE. Yes, sir.
Senator THURMOND. But, if you felt it would jeopardize our security, I presume you would refuse to furnish it.
Mr. BLAKE. You are correct, sir. Senator THURMOND. That's the way it ought to be. Thank you, Mr. Chairman. Senator ABOUREZK. Thank you all. John Harmon, Assistant Attorney General, Office of Legal Counsel, Department of Justice, is our next witness.
Mr. HARMON. Mr. Chairman, I have with me Mr. Robert Saloschin who is the head of the Freedom of Information Committee of the Department of Justice.
Senator ABOUREZK. Please raise your right hand and be sworn.
Do each of you swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?
Mr. HARMON. I do.
15 U.S.C. 552(a) (4) (B).
Mr. Harmon. Mr. Chairman, I have prepared a written statement which I have made available to the committee.
Senator ABOUREZK. We will put that in the record in full.1
TESTIMONY OF JOHN M. HARMON, ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, ACCOMPANIED BY ROBERT SALOSCHIN, CHAIRMAN, PRIVACY, FREEDOM OF INFORMATION COMMITTEE, DEPARTMENT OF JUSTICE Mr. Harmon. Thank you, Mr. Chairman.
HARMON With your permission, I would like briefly to summarize my prepared testimony and then submit to your questioning.
You have asked that I discuss with the committee the Department of Justice experience with exemption 1 of the Freedom of Information Act under the 1974 amendments. Exemption 1 of the original act simply provided that classified information, information classified by the executive branch pursuant to Executive order, would be exempt from disclosure under the Freedom of Information Act.
In 1973 the Supreme Court, in the Mink case, decided that the exemption had automatic application and that it operated to prohibit judges from going behind the classification. In response to that decision and in response to certain abuses that were highlighted in the Pentagon Papers case, Senator Muskie in 1974 introduced on the floor an amendment to exemption 1. That amendment, in essence, establishes two criteria for the exemption to be applicable:
First, that the classification did, in fact, follow the procedures provided in the Executive order. Second, that the classification, in fact, was correct under the criteria of the order.
There have been very few cases-I think Mr. Lapham of the CIA pointed out there have been very few cases, relatively speaking, that have dealt with exemption 1. of the 445 cases decided with opinions since the original act, only 30 have dealt with exemption 1. Only 1 of those 30 has been before the Supreme Court—that was the Mink casebefore the 1974 amendments. Only six cases have, in fact, reached a court of appeals. Three of those court of appeals decisions probably deserve special mention.
All three of those decisions were by the D.C. Circuit. They have, all three, been issued in the last 12 months. I do not know to what extent they have been discussed; but they are the Weissman 3 the Phillippi * case, and the Halperin 5 case.
I might simply note the significance of those three cases in terms of the development of the freedom of information law. In the Weissman case, the court in essence issued guidelines for the lower courts to use in determining when, in fact, they would engage in an in camera inspection of material for which exemption 1 had been claimed. In essence, the court did say that the Government could prove, without submitting the document, that it was properly classified. Second, the court said that a lower court, before undertaking an in camera review
i See prepared statement of Mr. Harmon at p. 108 of the hearing text. 2 EPA v. Vink, 410 U.S. 73 (1973).
* Weissman v. CIA, F. 2d (D.C. Cir. 1976) No. 76-1566. See p. 600 of the appendix.
Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976). See p. 606 of the apnendix.
of the material, should have reason to believe that there may have been improper classification.
The court was, in effect, rejecting the plaintiff's claim in that case that in camera inspection of material was mandatory for the court. The Phillippi case involved the Glomar Explorer and other issues. In that case, the court recognized that, in fact, there would be cases in which the Government could and should claim that even the affirmance or denial of the existence of the document could be information that they could not make available.
The plaintiff in that case really did not question that proposition but simply argued that that case was not one of those situations.
The Halperin case really stands for the proposition that, when a classification has in fact taken place after a freedom of information request has been presented, the Government has an extraordinary burden to carry in showing that, first, the procedures of the Executive order were complied with in the classification; second, the criteria were correctly applied.
You have asked for my assessment of our experience with the 1974 amendments to the act. I may say that it is working pretty well from the point of view of the Department of Justice. There have been problems. Senator Thurmond referred to the costs and the administrative burdens; there are certainly problems on that side.
There are problems on the other side. Unfortunately, there are cases. of improperly classified documents that we are trying to address.
I would say, on the whole, in the main, that the executive branch now is doing a better job, a more conscientious job, than we have done before in dealing with the problem, a real problem of overclassification of documents.
I am sure you are aware-you have a copy, I understand, of the proposed Executive order, the new Executive order on classification. I received my copy last night. I think that there are some important changes there. We have tried to set out in that order in detail the criteria that should be applied by the originating officer to decide, first, whether the document should be classified and, second, at what level. There are new powers given to the Interagency Classification Review Committee; it is even given a new name. They are new powers to supervise classification.
There are new standards for declassification to assure a continuing review to determine that, even when a document-maybe the factors
a that justified the classification of the document in the past, if those factors are no longer relevant, then the information should be released.
We are committed to the Freedom of Information Act. We are committed to making it work. We believe that there can be greater openness in government without compromising important, sensitive national security information. We are certainly proceeding in that spirit.
I will be happy to try to answer any questions that you might have. Senator ABOUREZK. Thank you very
much, Mr. Harmon. In July, the Justice Department reversed its position in the Glomar case and acknowledged CIA documents did exist in that matter.?
i See exhibit 50. p. 458.
2 See exhibit 68a, p. 618 of the appendix, and exhibits 74, 74a, 74b, pp. 651, 652 of the appendix.