Halperin filed suit challenging the security tag placed on information that had already been publicly released. On August 16, 1977, the U.S. Court of Appeals ruled in Halperin v. Dept. of State1 that the use of a background briefing to shield the identity of the source of sensitive information had been improper. The ruling also faulted State's handling of Halperin's request and said the Department had cited exemption 1 for a purpose that Congress did not contemplate. "Congress has provided no special FOIA exception for the transcripts of such conferences," the unanimous three-judge panel said." The court did not, however, release the two pages of the transcript or even rule on the national security claims made by State. Instead, the panel ordered the lower court to hold a secret hearing at which the government could attempt to justify the "confidential” label and to withhold the pages under exemption 1. The National Security Council re-evaluation and confirmation of CIA ownership of the Glomar Explorer will affect another case besides MAP v. Turner. In Phillippi v. CIA, a journalist for Rolling Stone magazine sought copies of records relating to the agency's efforts to convince the press not to publish stories on the Glomar Explorer and Project Jennifer. As in our case, the CIA claimed exemption 1 in its refusal to confirm or deny the existence of the requested documents. The merits of the case have not been decided, but the Court of Appeals ruled in November 1976-before the NSC re-evaluation-that the CIA should be required to provide a public affidavit explaining in as much detail as possible the basis for its claims. In the two other cases involving exemption 1 decided by the courts, it was the main issue around which the decision turned. Secrecy prevailed in both cases. In Richardson v. Spahr, 416 F. Supp. 752, (W.D. Pa., 1976) the plaintiff requested copies of the budget and other financial information on the CIA. Both the Treasury Department and the agency itself refused to disclose the records, citing exemptions 1 and 3 ("information . . . specifically exempted from disclosure by statute"). The U.S. District Court for Western Pennsylvania found that the financial information could be withheld under several provisions of law, including the act which chartered the CIA. That finding alone, said Judge Wallace Gourley, was sufficient to deny the request. But the court went on to address, and to endorse the exemption 1 claim. After reviewing the record, the judge found that the agencies involved complied with procedural requirements in classifying the documents as secret. In Bennett v. Department of Defense, 419 F. Supp. 663, the plaintiff requested copies of all documents relating to military missions "having the objective of introducing men or materiel into the Republic of Cuba" after Castro took power in 1959. The Defense Department, acting in concurrence with the CIA and the National Security Council, denied the request citing exemptions 1, 3, and 5 ("interagency or intra-agency memorandums or letters which would not be available by law to a party... in litigation with the agency"). As in Richardson, the U.S. District Court in New York said the other cited exemptions were applicable, but gave special attention to exemption 1. The court did not review the documents in camera, as permitted under the 1974 amendments to the FOIA. Instead, Judge Lloyd MacMahon relied upon affidavits submitted by the Defense Department and found that the records had been classified properly, both procedurally and substantively. 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. Embarrassing and illegal acts have been hidden under the cloak of exemption 1. The use of the exemption is common. Examples of the requests which have been made by our organization alone in recent months and which were denied on the basis of the exemption include: 1 -F. 2d 21-656-78- —6 A listing of defense supplies that the Iranian government unsuccessfully tried to purchase from U.S. military stockpiles and production lines since 1972; The agreements reached by Lockheed Aircraft Corp., the Defense Department and the Canadian government which allow Canadian co-production of the Lockheed P-3 antisubmarine warfare patrol plane; and A memorandum prepared for the National Security Council of Soviet civil defense. (The findings of the memorandum, which seem to contradict findings by published Pentagon studies, is that the Soviet Union is not engaged in a crash program to bolster its ability to survive a nuclear war.) Many of the journalists who cover the Pentagon on a daily basis rarely use the FOIA to get any information because of time pressures and deadlines. Several reporters I've talked with about FOIA problems said they'll stick with old journalistic trademarks of wheedling and cajoling, rather than waiting around to see if an FOIA request will be granted. The reporters also said that the wait isn't worth it. Despite exhortations in the act and in administrative regulations to the contrary, they said, records with a security stamp are not often declassified as a result of FOIA requests. Because of that, the material now released under the FOIA has always been available to the press. The law merely formalizes the way military and intelligence officialdom accepts, processes-and delays-requests for information. And when the requests are denied on the basis of exemption 1, there is a reluctance to go to court. Faced with the precedents of Richardson and Bennett— 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. And if anything, Congress has exacerbated the problem when it, in effect, codified Executive Order 116521 in exemption 1. Defense and intelligence agencies are truly controlling the debate on exemption 1. Because of that, they find no reason to live up to the intent of the Freedom of Information Act. We believe that Congress should force these agencies to honor the spirit of the law, to put them on notice that the classification stamp itself is not sufficient authority to deny FOIA requests. This can be accomplished only by the repeal of exemption 1. As the situation currently stands, the authority to classify-Executive Order 11652-is the same as the authority to withhold classified information under exemption 1. The result is that the decision to deny FOIA requests for a document is made long before the request for release is made. And even though the FOIA provides for review of classified materials, again, only the repeal of exemption 1 will force the agencies to make that review. Repeal would not affect Executive Order 11652 as a means of determining what information should be classified. As I said earlier, we believe that the defense and intelligence establishment tends to overclassify, but we do not suggest that repeal of exemption 1 would result in a wholesale release of previously-secret documents. To evoke a Watergate image, we are not planning to back up a U-Haul truck to the front door of the Pentagon. Instead, we believe that agencies would cite other exemptions as authority to withhold requested records. Exemption 3, as amended in 1976, allows non-disclosure of information "specifically exempted... by statute . . . provided that such statute (A) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matter to be withheld." Absent exemption 1, we anticipate that the agencies would cite exemption 3 in combination with provisions of the National Security Act of 1947. 50 U.S.C. 403 (d) (3), the Central Intelligence Agency Act of 1949, 50 U.S.C. 403 (g),2 and similar laws. These provisions contain language protecting some information from unauthorized disclosure. Litigation over withheld defense information under exemption 3 would be much more conducive to debate on the classification issue. Rather than determining whether an agency had placed a security stamp on the requested document, Federal courts would have to face the issue of whether the use of an Ex 1 See p. 433 of the appendix. 2 See exhibits 58, 59, p. 533 of the appendix. ecutive order to classify the information were proper and allowable under the laws that govern the agency. At the same time, the courts would determine whether the statute itself were applicable in each case. In other words, repeal of exemption 1 would finally place the burden on the government to substantiate the reasons for nondisclosure of classified information, a burden that was spelled out by the act but which to date has not been assumed by executive agencies nor enforced by the courts. Repeal would result in closer scrutiny by the agencies of their records and, if litigated, would promote open, sober dialogue of the classification issue by the courts. Reliance on exemption 3 would give sufficient leverage to the agencies to justify withholding information which they truly believe would imperial national security. As mentioned before, the U.S. District Court said in Richardson that the Central Intelligence Agency Act prevented disclosure, even absent exemption 1. The same is true for Bennett, the decision being based in part on exemption 3 and the National Security Act. We also believe that reliance on exemption 3 would be preferable, because it would give Congress more of a voice in determining what types of information should be withheld. Responding to several FOIA requests made by MAP, for example, State and Defense have said that Executive Order 11652 allowed them to classify information if a request for that classification were made by a foreign government. In taking this action, the executive branch made policy on an issue that should be discussed in a public forum. But because it was promulgated in the vacuum of agency interpretation of an Executive order, Congress had no opportunity to debate it. In addition, there is no indication of whether Congress intended or contemplated such information to be withheld when it passed the act. Without exemption 1, the departments would not have been able to respond to our requests the way they did, unless they could justify it on a statutory basis. And if they could justify it, then Congress would have, by definition, considered and approved nondisclosure. This will only happen through repeal of exemption 1. Until Congress takes that step, exemption 1 will serve to negate the legislative intent and procedural requirements of the Freedom of Information Act, and will remain as another bureaucratic weapon in an arsenal of paperwork, delay, and secrecy. Senator ABOUREZK. Next is the agency panel of witnesses: John Blake, Acting Director of the CIA; Anthony Lapham, General Counsel, CIA; Barbara Ennis, Director, FOI Office, Department of State; Thomas J. Ramsey, attorney adviser; and Mark Feldman, Deputy Legal Adviser, Department of State. Please stand, raise your right hand, and be sworn. Do each of you swear that you will give the whole truth and nothing but the truth in the testimony you are about to give, so help you God? Mr. BLAKE. Yes. Mr. LAPHAM. Yes. MS. ENNIS. Yes. Mr. FELDMAN. Yes. Mr. RAMSEY. Yes. Senator ABOUREZK. Mr. Blake? TESTIMONY OF JOHN BLAKE, ACTING DIRECTOR, CENTRAL INTELLIGENCE AGENCY, ACCOMPANIED BY ANTHONY LAPHAM, GENERAL COUNSEL Mr. BLAKE. Thank you, Mr. Chairman. My name is John Blake. I am currently serving as the Acting Director of Central Intelligence in the absence of Admiral Turner, who is away on a trip. May we address a statement to the chair, sir? Do you want to read your entire statement? Mr. BLAKE. No, sir. In respect to what I heard the chairman say to a previous witness, in the interest of time I did take the advantage to modify my statement somewhat. Therefore, I will read an abbreviated statement, the full statement having been submitted. Senator ABOUREZK. Thank you. All the statements will be printed in the record as though they were read in full. We would appreciate, as the Acting Director has proposed, a summary or highlight of what you believe are the important parts of the statement. Mr. BLAKE. Yes, sir. If I may, Mr. Chairman, in connection with statements. I did obtain, as I walked into the hearing room this morning, a copy of an opening statement which pertains to this morning's hearing. May I be allowed to make two comments before going to my own statement? Senator ABOUREZK. Please. Mr. BLAKE. On page 3,1 sir, at the beginning of the first full paragraph, there is a sentence that reads: "More disturbing, however, are recent agency practices which appear designed to circumvent the law." I am not aware of the practices to which this statement refers. I certainly would like to take the position here and now on behalf of the Central Intelligence Agency that we have no recent and no past Agency practices designed to circumvent the law. I feel it in conscience necessary to say that, sir. If I may say further, in the next paragraph, there is language which addresses itself to something called "soft files." I think it is pretty well understood in government and, indeed, in all large organizations that soft files do exist. I would refer to them as files of convenience or working files. But this particular language reads on: "These files can be retrieved easily by the agency." I might say, sir, if that pertains to the Central Intelligence Agency, soft files are not easily retrieved because they are not official records and they are not indexed as such. The statement goes on to say, "but would not be searched or in fact discovered in response to a Freedom of Information Act request for an individual's file." I would comment as follows. When we send out throughout the Agency a request for information under FOIA, any individual having knowledge of the existence of such a soft file is under obligation to review its content. While this pertains to the Freedom of Information Act, I would further state, under the Privacy Act these soft files are also reviewed for release of material to individuals. If I may, sir, return to my statement. I would commence on page 3 for those who have a copy.3 Within the Agency, there is no single centralized records system. For reasons of security and need to know, there are a number of records systems designed to accomplish the information retrieval needs of the various Agency components and the Agency's clients. 1 See p. 52 of the hearing text. 2 See p. 639 of the appendix and p. 52 of the hearing text. See prepared statement at p. 85 of the hearing text. The CIA's principal business is the collection and production of intelligence. The Agency's files are set up to accomplish this purpose. Since much of the Agency's business is, by necessity, secret, and FOIA requesters seeking CIA records on a certain subject usually cannot describe these records with precision. Thus, the very first step in processing FOIA requests, that of searching for and identifying records, is often very complicated and difficult. When records are located, each record must be carefully screened by the responsible Agency components to determine if the record may be released. There is no charge to the requester for this document review regardless of the scope of the request. In most Federal agencies, I would assume the basic premise is that the documents are releasable; and it is only an unusual case in which a document should be withheld. If that premise obtained in the Central Intelligence Agency, the job of reviewing documents for release would be considerably simple. But, as you gentlemen well know, there is an inherent tension between the needs of an open society and the requirements of a secret intelligence organization. I feel very strongly that these two opposing needs must be reconciled. Let me be frank. The 1974 amendments to the FOIA and the ensuing public interest constituted a somewhat traumatic experience for a national intelligence officer who had been trained and indoctrinated to conduct his work in secrecy. These amendments required a considerable adjustment in attitude and practice. As chairman of the Agency Information Review Committee, I am responsible for the implementation of the act in the Agency. I am proud to say that my colleagues have worked very hard during these past 30 months to make the act work according to the letter and spirit. We have been able to make the necessary adjustments. I am pleased to report that, in fact, I think the Agency is better off for it. In deference to the time, I will now, sir, go to page 7. The act provides for nine exemptions under which information may be withheld from disclosure. The FOIA guidelines recently issued by Attorney General Bell1 state: "The Government should not withhold documents unless it is important in the public interest to do so, even if there is some arguable legal basis for the withholding." Thus, in order to withhold material, it is not enough to show merely that it may be withheld under any of the stated exemptions. An agency must determine that there is a sufficient prospect that the information songht will cause actual harm if it is released. I assure you, Mr. Chairman, that we adhere to these guidelines. As you no doubt know, the Department of Justice Civil Division has reviewed all pending FOIA litigation, including of course litigation in which the CIA is the defendant, in light of the Attorney General's guidelines. On the basis of that review, Justice has not perceived the need to recommend that any pending FOIA litigation involving the CIA should be dropped by the Government. A maior concern of the Agency is information which must be withheld under exemption (b) (1), which provides that information which 1 See p. 217 of the appendix. See pp. 933. 940 of the appendix and p. 112 of the hearing record. |