All that is to say that I believe that that is a proper function for the judge. Senator ABOUREZK. The Attorney General's May memo1 mandates an increase in the amount of information released under FOI. Mr. HARMON. Yes. Senator ABOUREZK. Does the Justice Department feel that the directive is being heeded by the agencies, especially in their implementation of the (b) (1) exemption? Mr. HARMON. I know we have their attention, Mr. Chairman. The Civil Division-and, again, they are the people most directly involved with the direct knowledge and can let you know how it is on a caseby-case basis. My general impression from Bob: our office has it in the-I would say-predenial stage. The way this operates is, when an agency makes a determination to deny a freedom of information request, they are under regulations advised to call Bob Saloschin, of the Freedom of Information Committee in the Justice Department. Mr. Saloschin's role under that regulation is one of jawboning. He looks at the case. He says, "Yes, maybe you do have a legal claim." That is the first question. Second, we may not know what the effect of that claim would be on other agencies; and, third, let's examine what the real harm to the Agency would be from disclosure. So, Bob Saloschin is in the jawboning business for the Freedom of Information Act. After the denial is made, and if a suit is brought, then it is up to the Civil Division to make the decision on whether the Department will defend that claim. That is when, again, the same criteria that are applied before, that are set out in the Attorney General's May 5 letter, are applied by the Civil Division in making that determination. I can speak from conversations with Barbara Babcock and Bill Schaffer and others in the Civil Division who are directly concerned with this that, yes, the agencies are making a new effort. It is a new administration. There are new people making the decisions. There is a very definite policy for the Freedom of Information Act. Senator ABOUREZK. Is Mr. Saloschin chairman of the committee that deals with FBI FOI requests? Mr. HARMON. No; he is not. Senator ABOUREZK. That is separate? Mr. HARMON. That is correct. Senator ABOUREZK. They have their own committee? Mr. HARMON. No. The first decision is made within the Department. As with the Department of Defense, the initial decision is made within the Department; the Department structure will review within the Department, then the appeal would come out. The appeal would come to Mr. Saloschin's committee. Senator ABOUREZK. An appeal from a FBI ruling would go to Mr. Saloschin then? Mr. SALOSCHIN. The Freedom of Information Committee was originally created and has always been designed to look at denials and administration of the act by the other agencies. It was never created 1 See p. 217 of the appendix. as a committee to do internal monitoring of Justice Department denials, although, of course, the people on the committee, in other capacities may be called upon to advise informally others in the Department. Mr. HARMON. That includes Quin Shea, for example, who is in the review business for the Department of Justice. He is in charge of the review, for example, of a denial by the FBI. He also works with Mr. Saloschin's committee, with regard to review of other agency decisions. Senator ABOUREZK. Mr. Lyon? Mr. LYON. Mr. Harmon, I notice in the draft classification order that has been released by the White House 1 which you mentioned in the opening of your statement that there is a section under prohibitions which is interesting. I realize that it is kind of unfair, since you just received the draft last night, to ask any qeustions specifically addressed to this. But maybe you can just give me a gut reaction on it. Under original classification prohibitions, item 7 says that, where there is doubt whether information should be classified secret or top secret, it shall be classified secret. Where there is doubt whether information classified should be classified confidential or secret, it shall be classified confidential. It would seem at first glance that maybe it should work the other way, erring on the side of too much as opposed to not enough when one is originally classifying. I am not versed in intelligence; but, from a layman's view, that would seem to be appropriate. What is the response of the Department on that? Mr. HARMON. I have not studied that provision. You have asked for my horseback view on that. Maybe the real question is whether, when there is doubt, it should be classified or not. There is a difference in the levels of classification. Erring on the side of, where there is doubt, where there is an argument to be made, secret instead of top secret, this administration is making a policy decision, as reflected in that proposed draft. Again, the draft is to be debated within the executive branch. It would appear to me, if the argument is there, then they should go for the lower classification. It is a policy decision. Mine is an uninformed reaction. Mr. LYON. Thank you. Comments are being solicited from Members of Congress, who are just starting to formulate our opinions on this. That is why I asked that question. It just seemed to be, by the nature of the beast of intelligence, especially when one is talking about original classification, appropriate to err on the side of too much. Ms. EMSELLEM. There has been a question raised about information which is not necessarily classified or classifiable. It has been referred to primarily as information provided by foreign governments or foreign organizations, either with an assurance of confidentiality or without. It is addressed in the Executive order. It is kind of creating a special category of information in the Executive order. But the curernt practice in the Government is what I am interested in. As an example, the Nuclear Regulatory Commission has nuclear in 1 See exhibit 50, p. 458 of the appendix. formation, let's say, about reactors which is not technical in nature and is not classified but which they would find very beneficial to administering the nuclear reactor program here in this country. How is that kind of information to be treated under the current state of law? Mr. HARMON. As I understand your question, this is information which we originate? Ms. EMSELLEM, No. It is foreign government-originated information which would be helpful to us in administering, let's say, our regulatory function in this country with regard to reactors. Mr. HARMON. But the information is not otherwise classified? Ms. EMSELLEM. It is not classified, but it just may be embarrassing to a foreign government through a leak or something like that. If that information, let's say, is provided only with the assurance that it is not disclosed, so as not to embarrass the Government, how can that information be withheld and on what basis under the current freedom of information law or current disclosure statute? Mr. HARMON. Under the current law, it would require a determination that-and you would be examining in that case that you have hypothesized-I guess it is not a hypothetical situation; you must be aware of facts there. In that case, the question then is, what would be the effect on the relationship with the foreign government? We have, on the one hand, military secrets-let's call them and then also diplomatic secrets. The military side you have ruled out; you have said, "No, it's not classifiable under our standards as a military secret." However, under the foreign relations aspects, the determination has to be made, well, what is the effect. I know some language we had suggested for the proposed draft. I do not know whether it is there or not. I admit, frankly, I have not reviewed that. The standard there would be whether disclosure of this information would, in fact, damage our security in the sense that it could rupture relations with France, Iran, or with another country and cause them to take hostile-I think the language is political, economic, or military action against us. Political is one of the types of action they might take. So, that would be the kind of test that would have to be applied under current standards under the current Executive order. Before you could withhold it, you would have to make a determination that the disclosure would-and under the differing levels-seriously damage that foreign relations interest. MS. EMSELLEM. What exemption would you use? Mr. HARMON. It would have to be classified. You would have to classify it on that basis. Ms. EMSELLEM. In other words, we would have to then classify the information and use the (b) (1) exemption. Mr. HARMON. The material that comes into our possession; that is correct. Mr. SALOSCHIN. That is essentially it. There may be rare circumstances where the information from a foreign government actually comes from a foreign business corporation. It might be protectable as proprietary. Barring that, it would have to be classified to withhold it under present law. Mr. HARMON. It would have to be classifiable under that provision and not under the military secret provision. Senator ABOUREZK. We want to express our thanks for your appearance and your testimony. [The prepared statement of Mr. Harmon follows:] PREPARED STATEMENT OF JOHN M. HARMON Mr. Chairman and members of the subcommittee, I am pleased to appear before this subcommittee to discuss the Department of Justice's experience with exemption 1 of the Freedom of Information Act, the exemption for classified national defense and foreign policy records, under the 1974 amendments to the act. First I will briefly review the background of the 1974 amendments and then I will offer my appraisal of our experience with exemption 1 as amended. Exemption 1 of the original Freedom of Information Act was intended to reflect the historic privilege, recognized in all countries, for so-called "state secrets" of a military or diplomatic nature. As enacted in 1966, exemption 1 simply applied to "matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense of foreign policy." At that time Executive Order No. 10501 governed the classification of defense information. After the 1971 Supreme Court decision in the Pentagon Papers case had drawn attention to the problem of excessive classification, Executive Order 10501 was replaced in 1972 by Executive Order 11652.1 As you are aware, the administration is currently in the process of rewriting that Executive order in an effort to further tighten the classification process. Exemption 1 was interpreted in the first freedom of information case to reach the Supreme Court, EPA v. Mink, 410 U.S. 73 (1973). The Court upheld the Government's right under exemption 1 to withhold classified records prepared to advise the President whether to go ahead with underground nuclear tests for weapons development purposes in the Aleutian Islands. However, in deciding the case, the Court interpreted exemption 1 as applying automatically whenever the Government marked a record with one of the three classifications authorized by the Executive order: Top Secret, Secret, or Confidential. In an oft-quoted concurring opinion, Justice Stewart pointed out that exemption 1 provided no means to question an Executive decision to stamp a document Secret "however cynical, myopic, or even corrupt that decision might have been." (410 U.S. at 95).2 In 1973 and 1974 Congress considered amendments to the act in the light of widespread complaints of bureaucratic foot-dragging and growing public concern over excessive government secrecy. While most of the amendments were procedural, Senator Muskie introduced a floor amendment which rewrote exemption 1 in its present form. The amendment reflected widespread recognition of excessive classification, plus the reaction to the Watergate era abuses of the Executive's national security powers. Passed by the Senate and accepted by the conferees in order to overturn the "automatic" interpretation of exemption 1 in the Mink decision, the Muskie amendment in effect provided two new tests for judicial review of a denial of access under exemption 1, one substantive and the other procedural: (a) Whether the record withheld meets the "criteria" or standards of the Executive order for the classification of information that must be withheld to prevent injury to national security, and (b) whether the record was in fact properly classified in accordance with the pro 1 See p. 433 of the appendix. Actually, the Justice Department was prepared to concede a somewhat less sweeping interpretation of the exemption. I am informed that Roger Cramton, one of my predecessors as head of OLC and now Dean of Cornell Law School, was prepared to tell the Court if questioned at oral argument that exemption 1 in the government's view would not profeet a classification that was patently arbitrary and capricious, but the point was never made. Exemption 1 as amended now applies to matters that are "(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; • cedural requirements of the Executive order. In addition, several of the other amendments that apply to all agency records have a special effect on the status of classified records under the act. Thus, the express authorization for in camera judicial inspection of any withheld records, 5 U.S.C. 552(a) (4) (B), overturned the Mink ruling against such inspection in the case of a classified record. And the amendment at the end of subsection (b) for releasing any "reasonably segregable" nonexempt portions of a record that contains some exempt matter, while generally restating the earlier views of the courts and of this Department, assures closer scrutiny of documents and greater respect for the practice of releasing parts of a document than had generally been the case in the national security area. During the three months between the enactment and the effective date of the 1974 amendments, the Office of Legal Counsel prepared the Attorney General's "Blue Book" interpreting the amendments for the guidance of the agencies. It was issued after consultation with various responsible officials, including the staffs of the Senate and House subcommittees which had handled the legislation. The Blue Book's discussion of the revised exemption 1 stresses that an agency, in processing a freedom of information request or an administrative appeal for a classified record, must always review the record for possible declassification, even if the record had been created and classified very recently.* The Blue Book also recognized the special controlling role of the agency which originally classified the document. The Blue Book advises that if an agency holding a copy of a document classified by another agency receives a request for that document, the request should be referred to the classifying agency for determination. Finally, the Blue Book quotes the Conference Report and other significant materials as indicating that Congress did not intend the authority for in camera inspection by a court to be used automatically, that Congress expected the courts to give substantial weight to affidavits reflecting the special insights of the executive departments "responsible for national defense and foreign policy matters," and that the construction and application of exemption 1 should be undertaken with due regard for constitutional responsibilities. I am glad to report that, at least for the most part, both the agencies and the courts seem to be showing commendable care in approaching their respective exemption 1 responsibilities as revised by Congress in 1974. I cannot, of course, speak for other agencies, but I can report my impression that more information is being made available and that the amended act, despite other problems connected with it, has not compromised national security. Exemption 1 has not been heavily litigated when compared to other exemptions under the act. According to the July 1977 edition of the FOI Case List, there have been 445 court cases decided with one or more opinions since the original act was passed, and in only 30 of these did the decision in some way relate to exemption 1. Only one of them was decided by the Supreme Court (the Mink case) and only six involved Court of Appeals decisions, and of these some predated the 1974 amendments. Three recent Court of Appeals decisions warrant special mention. The three Court of Appeals decisions, all in the D.C. Circuit and all decided within the past 12 months, are the Phillippi case, the Weissman case, and the Halperin case. The Phillippi decision indicates that in those rare situations where sensitive information that the exemption was intended to protect would be compromised not only by granting access to a requested record but even by revealing whether or not such a record exists, the agency will be allowed to prove, if it can, that under the act it need not disclose whether the requested record exists. In the Weissman case, the court set forth some general guidelines to be used by lower courts in determining whether to conduct in camera inspections in exemption 1 cases. These guidelines indicate that in camera inspection should be less frequent in exemption 1 cases than in other freedom of information cases, and should not ordinarily be engaged in if the court can fairly decide the case without it. This approach is not surprising in view of the legislative history and the historic background of the subject, 4 See p. 597 of the appendix. Such a referral procedure is contrary to the preferable procedure on requests to an agency holding unclassified records obtained from another agency, which is usually to consult but not to refer the request to the originating agency. Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976). See p. 606 of the appendix. See p. 600 of the appendix. Halperin v. Department of State, 1977. 40 Ad. L. 2d (Pike & Fisher), D.C. Cir. Jan. 6, 1977. |