He stated that on 7-7-71 the American Bar Association (ABA) awarded, its "Silver Gavel Award" to Nina Totenberg, a reporter for "The National Observer," for her coverage ¡of the Supreme Court. stated that he is aware that Totenberg was the author of an article in "The National Observer" which was critical ||ad was thanked for his telephone call and was advised that his sentiment was greatly appreciated. decbeer to furnich material [Exhibit 150] FACSIMILE OF MEMO RELEASED AFTER APPEAL Mr. Mohr T. E. Bishop BJECT: BILL MARK ་ད FREE LANCE PHOTOR NEW YORK, NEW YORK By referral from Miss Gandy the above captioned individual spoke telephonically with Mr. Bishop. He advised he is a free lance photographer and is presently serving as the official/ photographer at the Annual Convention of the American Bar Association in New York City. He stated that on 7-7-71 the American Bar Association (ABA) awarded its "Silver Gavel Award" to Nina Totenberg, a reporter for "The National Observer," for her coverage of the Supreme Court. Mark stated that "The National Observer" had one of its own photographers present to make pictures of the ceremony, but their pictures did not turn out. [Mark stated that he took two pictures of the award ceremony, one showing an official of the ABA presenting Miss Totenberg with her award and the other depicting Chief Justice warren E. Burger, Miss Totenberg and the publisher of "The National Observer. "Mark stated that he is aware that Totenberg was the author of an article in "The National Observer" which was critical of the Director and the FBI. He stated he has no love for her because of this article. He said that he has been asked by "The National Observer" to furnish copies of the two photographs which he took, but he is only going to give them the one depicting Miss Totenberg and the ABA official. He Is going to inform them at the picture depicting Chief Justice Burger, Miss Totenberg and the publisher of "The National Observer" did not turn out. He advised that he was not about to make public any photographs depicting Miss Totenberg and Chief Justice Burger. EX-101 PEC 25 Mr. Mark was thanked for fiis telephone call and was advised that his sentiment was greatly appreciated. RECOMMENDATION: 16 JUL 1" 194 Ms. TOTENBERG. Quinlan Shea of the Justice Department described the memo a bit more for me in a personal conversation I had with him in his office. He said that some person had called Hoover and had spoken to an assistant and volunteered that he had done something to me that I did not know that he had done. Mr. Shea told me that, if I knew the name of the person, I would know automatically what he had done to me and I would "scratch his eyes out." Mr. Shea, in a separate conversation with my lawyer, Marsha Cohen, said that, if I knew what he had done to me, I would "kill the person involved." Naturally, my interest was somewhat piqued. Although the FBI admitted that I had never been the subject of a law enforcement investigation, the Justice Department argued that it needed a system allowing informants to feel free to call the Bureau and volunteer information. And the Department further argued that, if I were given the memo, that would constitute an invasion of the informant's privacy. Once more, in the summer of 1976, I spoke to Deputy Attorney General Tyler about my case. He said, yes, he had seen the memo and agreed with the decision not to give it to me. So I sued. I figured that this person-whoever he was-waived his right to privacy when he called Hoover to tell him what he had done. to me. It seemed his only purpose was to ingratiate himself with Hoover at my expense, and I figured I ought to at least know about it. Besides which, I was beginning, frankly, to get a little scared. I began to think someone had done something God-awful to me, something that could conceivably injure my career. I began to get suspicious of my professional friends and even some of my personal friends. My worry was heightened by the Justice Department's insistent refusal to give me the document and by the Department's briefs filed in the case. In its formal court papers the Department said that, if I were to see the document, it would at minimum make me very angry and that I would likely take retaliatory action detrimental to the person who squealed to Hoover. Well, you can imagine what I began to imagine: a list of horrible horribles. The Government eventually moved for summary judgment. We crossfiled. It took Judge Aubrey Robinson about a week to decide. Last April, he granted our motion for summary judgment without opinion. Three months later, the Department filed a notice of appeal. But, first, the Department's lawyers approached my lawyer and offered to give me the document if I waived attorneys fees. Well, I was just furious. My adrenalin still skyrockets when I think of it. My lawyer was 5 months pregnant when she wrote the briefs in my case, and she was extremely ill. I was not about to gyp her out of her just rewards. When she called me with this offer, I immediately called Assistant Attorney General Barbara Babcock to complain. I told her that the Justice Department's offer totally undermined the attorneys fees provisions of the Freedom of Information Act.' Those provisions were meant to allow people like me-without a lot of money to sue for information. The provisions were also meant to hold the Government at least a little bit accountable for its actions. I just was appalled at this offer. 15 U.S.C. 552 (a) (4) (E). Ms. Babcock agreed with me and said she would look into it. She did, and a few days later called me back to thank me for complaining. She also said that, if she could control it-and she wasn't sure she could-no such quid pro quo offer would be made again to anyone. A few weeks later the Government dropped its notice of appeal and notified me I could have the document. I called the freedom of information section, and they said I could come over and get the document. When I arrived it was not there. I waited for a couple of hours, as did the lawyers. Finally, after a few frantic telephone calls that I could overhear "She's a reporter. I told you she's a reporter. You've got to get the thing over here."-the FBI brass finally produced the celebrated memo. And I sat there with trembling hands reading it. When I was through, all I could do was laugh. The informant in this instance was a freelance photographer named Bill Mark, who was hired by the Amercian Bar Association in 1971 to take pictures of the ABA's Silver Gavel awards ceremony. I won the gavel that year-as I said-for my coverage of the Supreme Court, and a picture was taken of me with an ABA official. Another photo was taken of me with the Chief Justice of the United States, Warren Burger. Well, the National Observer asked the photographer for copies of both pictures. He then called the FBI and said he had-quote-no love for me because of what I had written about Hoover. He told the Bureau that he was not about to make public any pictures of me and the Chief Justice. And he said he would lie to the Observer and say the picture with Burger didn't turn out. So I never got the picture. That's it; that's the whole thing. That's what the Government fought me over in and out of the Federal courts of this country for over 2 years. And, by the way, after I had the memo in my hot little hands, I turned to leave the Justice Department attorney's office; and Í asked if Mr. Mark had been notified that I had this memo. The answer from those lawyers who for 2 years had been so concerned about Mr. Mark's rights, was no, that the photographer had not been notified. So, I gave the Justice Department's lawyer Mr. Mark's name and said something to the effect that it might be nice to tell him that I had this information. Finally, I am sure you are interested to know the costs of this fiasco to the Government. The fees paid to my lawyers were $5,000-$5,000 justly earned on a Micky Mouse case. And God knows how much it cost the Government on its side to pursue the case. I understand that the Justice Department feels it has been ripped off in this case. And indeed it has. It ripped itself off. This could have been a 29 cents case. Why did it take over 2 years and thousands and thousands of dollars to get this ridiculous memo? I must say that as a taxpayer-not as the person who asked for this memo, but as a taxpayer-I am outraged by the Government's wastefulness and bad judgment. I am just simply appalled. And what is perhaps most disturbing in this is that this was not some poor little case forgotten in the bowels of the bureaucracy. I am a reporter who covers the Justice Department, and I have unusual access-fortunately or unfortunately. The actions on this case were reviewed and approved at every level of the Department up to and in cluding the Deputy Attorney General of the Ford Justice Department, and the Carter Justice Department continued on the very same course. I have read somewhere that Clarence Kelley says it costs the FBI $12 million to comply with the Freedom of Information Act. All I can say is, no wonder. Senator ABOUREZK. I do not have any more questions. Your testimony was very thorough. Representatives from the Justice Department will testify as soon as you are finished. I hope we will get a response from them. Ms. TOTENBERG. I want to say one other thing. MS. TOTENBERG. The Department claims its procedures have changed. Through this experience, I know a lot of people in the freedom of information field. They do not feel they have changed significantly. They do not see any major difference. The statistics that I called the Department for last night to see what their review had produced have still not been compiled. I understand they are being compiled for this committee.1 If I were making a major change in my policy, I would know damn well how many cases had changed as a result of my major review. Senator ABOUREZK. Thank you very much. On behalf of the committee, I certainly appreciate your testimony. I think it has been a very valuable contribution to this inquiry. Ms. TOTENBERG. Thank you. Senator ABOUREZK. The next witnesses are the Justice Department panel: Peter Flaherty, Deputy Attorney General; John McDermott, Assistant to the Director/Deputy Associate Director of the FBI; and their respective staff members. TESTIMONY OF JUSTICE DEPARTMENT PANEL PRESENTED BY PETER F. FLAHERTY, DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; AND JOHN J. MCDERMOTT, ASSISTANT TO THE DIRECTOR/DEPUTY ASSOCIATE DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; ACCOMPANIED BY QUINLAN J. SHEA, JR., DIRECTOR, OFFICE OF PRIVACY AND INFORMATION APPEALS, DOJ; JERRY A. DAVIS, CHIEF, CLASSIFICATION REVIEW AND SPECIAL PROJECTS UNIT, OFFICE OF PRIVACY AND INFORMATION APPEALS, DOJ; ALLEN H. McCREIGHT, INSPECTOR-DEPUTY ASSISTANT DIRECTOR, FBI; AND MARVIN E. LEWIS, UNIT CHIEF, FOIPA BRANCH, FBI Senator ABOUREZK. As I understand it, you do not have prepared testimony for this particular hearing. You are here to follow testimony up from our last day of hearings. Mr. FLAHERTY. Yes, Senator. As you know, I submitted a prepared statement at the previous hearing. 2 Mr. Chairman, the prepared statement I submitted at the previous hearing in effect describes the procedures on FOI matters in the 1 See pp. 933-940 of the appendix. 2 See p. 157 of the hearing text. |