future legislation. Congress wants to plug up loopholes in the Freedom of Information Act and a discussion of this case can help Congress accomplish that goal. It does not really matter whether or not you want to discuss it. I think you are obligated to. It would seem to me that, if you do not do it now, you are going to have to do it later. Mr. McCREIGHT. Mr. Chairman, I would submit to you that I and my staff are more than willing to discuss your request with you at any time. We are available to you for consultation. I am not prepared today, before this committee, to discuss the merits of the individual documents pertaining to your request. However, we will be more than happy to meet with you at any time outside this forum and discuss this matter with you further. Senator ABOUREZK. It might help me personally, but it would not help the legislative process to do it that way. Once again, you are trying to determine the forum for the discussion. Let me ask you a question. Do you think it is proper in the legislative hearing setting for a witness to determine what topics are proper for discussion? Mr. MCCREIGHT. I cannot answer that, Mr. Chairman. The only thing I can say is that this was a personal request on behalf of you yourself and your son. I cannot determine the proper forum other than to say that I seriously question whether this is the appropriate one. Senator ABOUREZK. Do you think that determination should be made by the FBI or by the Congress? Mr. McCREIGHT. Again, I am still attempting to distinguish between whether this is your personal request or this is a request that that was made by the chairman of the subcommittee on behalf of the subcommittee. From the substance of the request, my position would be that this was a personal request. We would be glad to meet with you personally and discuss it. Senator ABOUREZK. Absolutely it was a personal request. I have conceded that. But, what I am asking is, do you think the FBI should determine the proper forum to discuss a particular case, or should the Congress determine that? Mr. McCREIGHT. I cannot answer that. Senator ABOUREZK. You have answered it by making the decision not to discuss my request today. Mr. McCREIGHT. Well, as I pointed out to you before, Mr. Chairman, insofar as this request is concerned, your request was handled as we would handle any request from a member of the public. Senator ABOUREZK. That is right. That is why it can be the basis for a general discussion of the act because it was handled like any other request as it should have been. It is a good case to discuss because we both have personal knowledge of specific details of the request. Mr. McCREIGHT. As I mentioned earlier also, the handling of this matter has not completed the administrative nor the judicial process at this particular point. I think it would be inappropriate for me to discuss this matter at this time, pending resolution of the administrative handling of it as well as any judicial review of this particular request. Senator ABOUREZK. Let me ask you a general question. A May 25 memo from Quinlan Shea advised Justice Department officials that wholesale excision of all administrative markings and the refusal to release documents that contained such markings were to end.' Are you following that new policy or ignoring it? Senator ABOUREZK. Now I will get back to my own particular file. Why was that policy not followed in handling my request? Mr. MCCREIGHT. As I told you before, Mr. Chairman, I am not prepared to discuss your particular case. I have not reviewed the documents. I would be unable to answer your specific questions. I would like to add, as I mentioned before, your case is under appeal right now. It has not been adjudicated. I feel that, through the administrative process, the appellate process, certainly if there is any disagreement as to the way that your request was handled by us as far as deletions or exemptions, this will be considered on appeal. Naturally, we will follow any directives of the Department of Justice if any supplemental releases are warranted in this matter. Senator ABOUREZK. Mr. McCreight, as I see it, you have effectively stonewalled the committee this morning. I think the only proper course for the committee now is to wait until the Director of the FBI can testify. We simply will have to ask him on the record if he intends to cooperate with this committee by answering the committee's questions.2 I do not have any more questions if you cannot talk about this particular request. Mr. McCREIGHT. As I said before, pursuant to your letter of September 2,3 1 am prepared and willing to discuss with you the two areas that you have indicated that you intend to focus upon. That is the investigatory records exemption and the delay in answering requests. Senator ABOUREZK. There is no real way to be able to discuss FBI policy on those subjects unless we can look to certain cases to determine if the Bureau has followed its announced policy. It does us no good for you just to sit there and say everything is going fine. If you refuse to discuss the cases, everything is not going fine. Mr. MCCREIGHT. Mr. Chairman, I do not see how you can say that we have not followed the policy when we have not completed either the administrative or the judicial process. Our position at this point is that we have processed your request according to the requirements of the Freedom of Information and Privacy Acts as well as the departmental policy and guidance and directives. Senator ABOUREZK. If the departmental policy is to stop the routine excising of all administrative markings and to no longer refuse to release documents containing such markings, why were they excised in my case? Mr. McCREIGHT. I am not prepared to discuss yours in particular other than to say I do not think it is the departmental policy to say that it will stop excising all administrative markings. I think there is a distinction in there which I am sure could better be articulated by the departmental representatives. But that is not my understanding of the directive from them. 1 See p. 664 of the appendix. 2 See exhibit 124a, p. 884 of the appendix. * See exhibit 124, p. 833 of the appendix and p. 126 of the hearing text. Senator ABOUREZK. In the documents released to me many administrative markings were deleted. Since the response did not correlate specific exemptions with particular excisions, I cannot be sure the Bureau followed the Justice Department policy. Mr. MCCREIGHT. Basically, Mr. Chairman, you are in effect saying that, because of the fact that you were not given the equivalent of a Vaughn v. Rosen1 inventory upon our disclosures to you, we have not followed the departmental policy or whatever. That is not a require ment. Senator ABOUREZK. We do not know. We are not saying you didn't. We are saying we do not know and we are trying to find out. Mr. MCCREIGHT. Certainly the administrative appeal should determine whether or not we are. Our position is that we have followed their policy. Senator ABOUREZK. Mr. McCreight, are you saying that that is the only recourse that a citizen has an administrative appeal-and that he cannot have recourse to Congress to amend the act, if necessary? Mr. MCCREIGHT. He certainly has that right, sir. Senator ABOUREZK. How are we going to do that if we cannot get testimony from FBI witnesses? Mr. McCREIGHT. I will be more than happy to testify to this particular request at the appropriate time. I feel that, at this particular time, with the appeal and with the possibility of judicial review facing us, it would be inappropriate and possibly prejudicial to the impartial handling of your request. Senator ABOUREZK. If we wait until all appeals are exhausted for any requester-including myself-we will thwart the legislative process. You don't dispute that, do you? Mr. McCREIGHT. Sir, as I mentioned earlier to you, you have received our final determination letter 2 from the Director of the FBI. We have been available and always will be available to discuss these matters with you prior to entering into the administrative process to further clarify our position. We have engaged in several exchanges of correspondence with you in trying to further define and explain to you what our position is and the basis for our actions. I certainly do not think we are derelict or trying in any way to be evasive in that regard. I think the problem arises from your disagreement with the manner in which we interpreted and applied the exemptions to the Freedom of Information Act. As I mentioned in my statement, certainly the exemptions themselves leave a great area in which reasonable men may differ in their opinions. Our sole intention is to try to narrow the issues to the extent that we can and to apply them in accordance with the spirit and intent of the act as well as with the departmental guidelines and policy. Senator ABOUREZK. Are you saying that you have provided everything from my particular file you intend to provide and we will now go through the appeal process? 1484 F. 2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). See exhibit 69, p. 618 of the appendix. 2 See p. 878 of the appendix. Mr. MCCREIGHT. I am saying that our initial position is that we have processed it in accordance with the regulations and with the law. Certainly if, on administrative appeal, there is some indication that some information should be disclosed to you and we are instructed to do so, we most certainly will. Senator ABOUREZK. I think we are stymied. There is just nothing more we can do with you as a witness today because you have refused to answer the questions. We will have to wait until the old director or new director is able to come up here and tell the subcommittee exactly what FBI policy is and how it is being applied in particular cases. The subcommittee does not have any more questions at this time. I would like to call the Justice Department panel if they are prepared to testify. TESTIMONY OF WILLIAM G. SCHAFFER, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION; ROBERT SALOSCHIN, CHAIRMAN, FREEDOM OF INFORMATION COMMITTEE, OFFICE OF LEGAL COUNSEL; QUINLAN SHEA, DIRECTOR, OFFICE OF PRIVACY AND INFORMATION APPEALS, OFFICE OF THE DEPUTY ATTORNEY GENERAL; AND LYNNE ZUSMAN, ACTING CHIEF, INFORMATION AND PRIVACY SECTION, CIVIL DIVISION Senator ABOUREZK. I have a question even before you begin your testimony. Do you believe that the Federal Bureau of Investigation should be a government unto itself and determine what questions it will answer and in what forum? Mr. SCHAFFER. That is not the view of the Justice Department, Mr. Chairman. Senator ABOUREZK. Thank you. Do you have a statement? Mr. SCHAFFER. Mr. Shea has a statement by Mr. Flaherty. Mr. SHEA. Mr. Chairman, I would like to summarize rather than reading word for word, if that is acceptable. Senator ABOUREZK. That is fine. The entire statement will be inserted in the record,' without objection. Mr. SHEA. Mr. Chairman, I apologize to the subcommittee for this, but there are one or two fairly important errors in the text of Mr. Flaherty's written statement that I would like to state aloud for the benefit of persons who have received copies and for the reporter. On page 5, in the sixth line, after the word "Ordinarily," the word "search" should be inserted. On page 7, the seventh line, the last word is "subject" rather than "subjected." On page 10, at the top, there is an entire line of text that was typed twice. Delete the redundant phrase "to the criminal investigation have the knowledge and information necessary." 1 See p. 157 of the hearing text. And then about halfway down page 10, there is a phrase that should read "far better served" rather than "serviced." I am sorry for those errors, Mr. Chairman. TESTIMONY OF QUINLAN J. SHEA, JR., DIRECTOR, OFFICE OF PRIVACY AND INFORMATION APPEALS, OFFICE OF THE DEPUTY ATTORNEY GENERAL Mr. SHEA. Mr. Chairman, as you know, the Department of Justice consists of a great many components which have various responsibilities in the overall law enforcement and law enforcement-related process. The records that they keep are very different. As a result, we have adopted within our Department a basic administrative system that puts on the shoulders of the head of each operating component the responsibility for making decisions on initial requests for access to the records of that component. Then, to insure some degree of consistency and to provide a training vehicle for departmental personnel and also, frankly, to provide accountability we have centralized the administrative appeals function in the Deputy Attorney General's office; and I am the Director of the Appeals Office. The Deputy has certain general oversight concerns for the Attorney General. The two principal operating components of the Department that have freedom of information responsibilities are the Freedom of Information Committee, chaired by Mr. Saloschin of the Office of Legal Counsel, sitting to my immediate right, and the litigating section of the Civil Division, which handles most of the litigation against the Government. It is headed by Ms. Zusman under the supervision of Deputy Assistant Attorney General Schaffer. I think the best thing to say about backlogs is that they are almost gone. Senator ABOUREZK. What are you down to now? How many cases are backlogged? Mr. SHEA. At what stage, sir? Senator ABOUREZK. The appeals level. Mr. SHEA. I still have about a 5- to 6-month caseload based on intake. However, we have doubled once this year. We are on a second doubling of the rate of output. We have been largely impacted by the tremendous job that the Bureau has done under Onslaught in moving the great quantity of requests. As a general proposition, appeals are a function of the number of initial actions. When the Bureau got out all those initial actions and went from being almost a year behind in their processing to where, as Mr. McCreight said, they are within a matter of some weeks of being more or less timely in the processing of requests-that has had a tremendous impact on us. So, even though I have gone from an average of less than 100 a month to where I am now doing well over 200 a month and climbing, unfortunately my intake has almost doubled this year, too. Senator ABOUREZK. In terms of numbers of cases, how many is that? Mr. SHEA. I have approximately 1,300 administrative appeals pending in my office. Senator ABOUREZK. And a year ago, how many did you have, if you recall? |