discussed the difficulty, if not the impossibility, of satisfying the proof requirement of the "competitive harm" test under exemption 4. Those problems are aggravated by these very tight deadlines and which by their very tightness tend further to influence any decision in the direction of disclosure. These deadlines may be extended where "unusual circumstances" as specified in the amendment are found to exist. However, the need for additional time to permit proof of "competitive harm" is not one of those circumstances; nor is the filing of a “Reverse FOIA" suit. We are not prepared to recommend what the period of response should be but we think it should be no less than 30 days and with a similar period for disposing of any administrative appeal: The statute should be amended accordingly. To similar effect is the proviso in the 1974 amendments which sanctions disciplinary proceedings against civil service personnel where it is alleged that they have acted "arbitrarily or capriciously" in withholding information requested.1 Again, in the all-encompassing drive for disclosure there may have been uniDtended injury to private rights. MISCELLANEOUS MATTERS The government's own interest.—Our experience with member companies suggests that many of them now believe that release of confidential information to government raises a presumption that its confidentiality has been compromised and that it will eventually be disclosed. To the extent that such an attitude is held-and we think it is growing-it cannot fail to adversely affect the government's interest in the collection of data and, where submissions are voluntary, the quality of such data. Obviously, this attitude and its consequences derive largely from administration of FOIA exemption 4 and thus are particularly relevant to the subject of today's hearings. The cost of FOIA.-We have already adverted to the Attorney General's concern with the burden of administering FOIA. Fragmentary data suggest that similar burdens are being experienced throughout government. "Freedom of information" is a concept growing out of a congressional perception of the public interest. There is also a public interest in arresting the relentless growth of the cost of government. It may be time for a congressional balancing of those interests as they apply to freedom of information in government hands. Defending nondisclosure of confidential business information.—The ultimate burden of defending an agency's refusal to disclose confidential business information requested under FOIA falls upon government personnel. Even though capable and conscientious, civil servants cast in this role are ill-equipped for the job for at least three reasons. First, it seems obvious that no government employee can have an interest in such defense equal to that of a business representative whose very livelihood may depend upon protection of the information in question. Second, even though he is a "quick study," the government employee can hardly expect to possess that expertise on the subject at hand which can only result from long involvement with it and which expertise is essential to sound judgment respecting response to an FOIA request. Finally, there is the question of time. If the source of the information cannot satisfy the "competitive harm" test in ten days and frequently it cannot-one can hardly expect the civil servant to do so. To sum up, we believe that Congress should bring about a return to the "customary release" test of disclosure outlined in both the Senate and House reports on the original Freedom of Information Act. Not only should this test be reestablished it should be made mandatory, and not permissive, in application. In conclusion, let me again express our appreciation for the privilege of testifying in this important hearing on the administration of the Freedom of Information Act. Senator ABOUREZK. The hearings are recessed. [Whereupon, at 1:05 p.m., the hearings were recessed.] [Subsequent to the hearing several statements about the b(4) exemption of the act were submitted to the committee for inclusion in the hearing record. They appear in the appendix beginning at p. 1 See 5 U.S.C. 552 (a) (4) (F). FREEDOM OF INFORMATION ACT FRIDAY, SEPTEMBER 16, 1977 U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE, Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m. in room 2228, Dirksen Senate Office Building, Hon. James Abourezk (chairman of the subcommittee) presiding. Present: Senators Abourezk and Thurmond. Staff present: Irene R. Emsellem, chief counsel and staff director; Diana Huffman, counsel; and Robert Lyon, subcommittee minority counsel. Senator ABOUREZK. The hearing will come to order. OPENING STATEMENT OF SENATOR ABOUREZK Today the Senate Subcommittee on Administrative Practice and Procedure continues its oversight of the Freedom of Information Act by examining the implementation of the (b) (1) or classification exemption as amended in 1974. Practices under this exemption prior to the amendments were frustrating the intent of the law. Instances of improperly or overly classified documents were rampant. However, the Supreme Court ruled that executive branch decisions to classify material were virtually unreviewable, despite the fact that entire documents were withheld when only minor portions contained classified material.1 Congress amended the exemption to require agencies to comply with the intent of the act by opening up Government files and thus Government decisionmaking and operations to public scrutiny. As amended, the (b) (1) exemption provides for disclosure unless documents are "specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy, and are in fact properly classified pursuant to such executive order." The amendments mandate de novo review,2 and authorizes in camera inspection if necessary, by judges to determine if the classification is proper. Finally, the 1974 amendments make clear that information in classified documents that does not involve national security must be segregated from exempt portions and released to the requester.1 The judicial review provision in the 1974 amendments to the (b) (1) exemption was in response to the EPA v. Mink decision. There the Supreme Court deferred to executive decisions to classify material, holding that in camera inspection of a contested classified document was neither authorized nor permitted under the law, "however cynical, myopic, or even corrupt that decision might have been." In amending the classification exemption, Congress intended that the judicial branch weigh the danger to national security from disclosure of information rather than relying, as the Court did in the Mink case, on an executive branch characterization of the records sought.2 Clearly, more information is in the public domain now because of these changes in the act. But difficulties remain with the exemption, some a direct result of the 1974 changes imposed by the 1974 amendments.3 In exercising the responsibility to review classified documents, many courts have relied on ex parte in camera inspection to determine if classification is proper. Thus, the benefit of in camera inspection is lost when the judge hears no expert testimony on behalf of disclosure. And, in some cases, the judge never even sees the documents, relying instead on Government affidavits attesting to the danger of release." More disturbing, however, are recent agency practices which appear designed to circumvent the law. One such device is to refuse to acknowledge even the existence of documents, on the grounds that to do so would itself harm the national security. The subcommittee will explore, in detail, the CIA's reliance on this argument, using the Glomar Explorer case as an example.5 Another practice, according to former CIA agent John Stockwell in his open letter to the new CIA director in the Washington Post last April, involves the purging of sensitive or embarrassing information from agency files and placing the material in temporary or "soft files." These files can be retrieved easily by the agency, but would not be searched or in fact discovered in response to a Freedom of Information Act request for an individual's file. Finally, the subcommittee will look at the future implementation of the exemption by focusing on certain assumptions upon which the new Executive order on classification is based, and on Attorney General Bell's May 5 directives that even properly classified information be released unless a demonstrable harm would result from disclosure. It is the subcommittee's hope that the hearings will highlight the problems under the exemption and lead to suggestions of how to implement Congress' and the President's expressed commitment to an open Government. 1 See Florence v. Department of Defense, 415 F. Supp. 157 (D.D.C. 1976). 2 For legislative history see pp. 590, 591, 595 of the appendix. 3 See p. 629 of the appendix. F. 2d * See Weissman v. CIA. (D.C. Cir. 1977) No. 76-1566, p. 600 of the appendix. See also Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976), see p. 606 of the appendix. Military Audit Project v. Bush. 418 F. Supp (876) (D.D.C. 1976) and p. 613 of the appendix. See Military Audit Project v. Bush, and Phillippi v. CIA, 546 F. 2d 1009 (D.D.C. 1976) pp. 606, 613. 618, of the appendix. See p. 639 of the appendix and p. 75 of the hearing text. See pp. 643, 647 of the appendix. See p. 213 of the appendix. The first witness this morning is Fielding McGehee of the Military Audit Project. I would like to suggest that, if you have a prepared statement, you insert it in full in the record and just try to highlight verbally. Then there is more time for questions. Mr. McGEHEE. Yes. TESTIMONY OF FIELDING M. McGEHEE III, MILITARY AUDIT PROJECT Mr. McGEHEE. Thank you, Mr. Chairman. I thank you very much for giving me the opportunity to speak with you this morning. My name is Fielding McGehee. I am the staff reporter for the Military Audit Project (MAP). MAP is a public interest research group that investigates military contracting and other links between corporations and the defense and intelligence community. We have been asked to testify because one of our Freedom of Information Act requests has turned into the case of Military Audit Project v. Turner, the most hotly contested court battle on exemption 1 since Congress amended the act in 1974. Many of the twists and turns of this case-but by no means all of them are summarized in my written statement. I would, however, like to make one or two points about it. Our first request to the CIA and Defense Department for contracts on the Hughes Glomar Explorer, entered between the agencies, Summa Corp., and Global Marine, was filed in April 1975, about 1 month after the press broke the story that the ship had been involved in Project Jennifer, which was the attempt to raise a Russian submarine from the Pacific Ocean floor. All news stories about the project cited CIA involvement and most indicated that the Government owned the Explorer. The purpose of our request was simple. We believe that if the CIA can spend up to $350 million of taxpayers' money on such a project and then refuse to comment upon the expenditure, even after the project has been uncovered and the international damage, if any, already done, the intelligence community will have a carte blanche license with no accountability whatsoever for any expenditure or activity. The agency response, both by DOD and CIA, was not only to deny the request for documents but to refuse either to confirm or deny the existence of the documents. Citing exemption 1, Defense and CIA claimed that either a confirmation or denial of Government involvement in Project Jennifer would jeopardize national security. Since our first request was filed, the Government has made three significant retreats on its initial claim. Yet, it was not until about 3 months ago that the Government admitted CIA ownership of the explorer. That was over 2 years after the press first broke the story and after our request was first made. The first retreat was in a tax case in Los Angeles in mid-1975 when the Government claimed ownership of the Explorer for tax purposes and admitted payments to Summa and Global Marine. After the Government released these documents, all that remained secret, and all 1 418 F. Supp. 876 (D.D.C. 1976). that we sought, were records on how much the Government spent, how much Summa and Global Marine profited, and whether there were cost overruns on the contract. The Government, which controls the documents, found it convenient to release a large portion of them when it suited its purposes, when, pursuant to the contract, it sought to protect Summa from financial liability resulting from Jennifer. We believe that, if the other information could have been useful to the tax case, it would have been released as well. Incredibly, not only were the other documents not released, but, even after the disclosures described above, Defense and CIA continued to refuse acknowledgment of the documents' existence. The second retreat came in May 1976 after we had filed suit, when the Government said that the records "which are the subject matter of this litigation will be kept intact pending the final determination of the litigation." This was made even as the defendants continued to refuse acknowledgment of the papers' existence. The third backpedaling, the actual acknowledgement of CIA ownership, so angered the judge in the case that he removed himself from it. Judge Waddy has since been appointed to replace Judge Gesell, and we are virtually starting all over with our suit.1 The problems we faced since making our first request have plagued other exemption 1 requests as well. The track record in getting information that military and intelligence agencies do not want to release is miserable. Because the act has not served to force the disclosure of previously classified information, the exemption has not been litigated very often. There have only been six decisions since February 1975, when the amendments were into effect, involving cases in which exemption 1 was an issue. In four of those cases, the focus of the decision was on other issues or, as in MAP v. Turner, new facts came to light. Of these four, the parties seeking the information won or at least survived the Government's attempt to dismiss the suit in every case. In the other two cases, exemption 1 was the main issue around which the decision turned. Secrecy prevailed in both cases. As a result of these decisions, the defense and intelligence community continues to act in secrecy. The Freedom of Information Act is merely an annoying gnat. Serious investigations by reporters and public interest groups have been thwarted with the classification stamp. When requests are denied on the basis of exemption 1, there is a reluctance to go to court. Faced with the precedents of Richardson v. Spahr and Bennett v. DOD, and with nothing going the other way, newspapers, public interest organizations, and lawyers have shied away from cases involving classified documents. The courts have not exerted pressure on the agencies to review classification procedures or decisions. If anything, Congress has exacerbated the problems when it, in effect, codified Executive Order 11652 in exemption 1. 1 For the government's explanation of switch in position see pp. 429-433 of the appendix. General articles on the Glomar case appear at pp. 651-661 of the appendix. 2416 F. Supp. 752 (W.D. Pa. 1976). 3419 F. Supp. 663. See exhibits 40, 41, 42. pp. 433, 434, 440 of the appendix. |