With respect to the two Hiss trials, I reach the same conclusion [no privacy interest adequate to support withholding under the amended Act] as to all of the following Government witnesses: Whittaker Chambers; his wife, Esther Chambers, Nathan Levine; Henry Julian Wadleigh; Mr. Touloukian, the oriental rug dealer; Dr. Meyer Schapiro; William Rosen; Hede Massing; two Department of State officials, Walter Anderson and Eunice Lincoln; two F.B.I. Agents, Ramos Feehan and Courtland Janes; and Burnetta Catlett. By stipulation, the ownership of the camera that took the pumpkin films was ascribed to Felix Inslerman and material concerning him should be released. The same result should be reached as to the Soviet control agent, Colonel Bykov. Another photographer used by Julian Wadleigh, David Carpenter, could well be "too public to be private"; the same would also be true, in my opinion, for the various persons named as Communists on August 3, 1948, by Whittaker Chambers in his H.U.A.C. testimony, given in public session. Given the nature of the Hiss trials, I also conclude that individuals who furnished information of significance on the principal points of evidentiary controversy should be on the no-privacy list, if the information cannot be released without disclosing their identities. These points include, as a minimum, anything to do with the typewriter, the films or the purloined documents; all data pertaining to the transfer of the car to Rosen via the Cherner Motor Company; the story of the purchase of the oriental rug; and the purchase by Chambers in 1937 of the "other" farm near Westminster, Maryland. As to all of the foregoing named/described individuals, I recommend that your guidance to the F.B.I. direct that investigatory material obtained or derived from them, or pertaining to them not be withheld on the basis of privacy [or be done only after very careful, particularized consideration]. The files undoubtedly contain much information obtained from other persons. In many of these instances, it may be initially appropriate to delete their names when releasing the information furnished by them. Decisions as to some persons, however, will require careful, deliberate judgments as to whether the release of their identities would constitute unwarranted invasions of their privacy. As a general proposition, the most significant factor would appear to me to be the importance of the material furnished by them. Lastly, I propose that your guidance include two additional elements. First, a statement that, although the "letter" of the Department's Policy Regarding Investigatory Records of Historical Interest [28 C.F.R. 50.8] may have been largely overtaken by the recent amendments to the Act, the policy set forth therein of encouraging the maximum possible discretionary release of records in these historical interest cases remains the policy of the Department today. Second, to bring to Director Kelley's attention the standard asserted by Attorney General Levi on the question of whether to assert exemptions [other than exemption 1] in this area. In his recent letter concerning the pumpkin films [Tab E], he stated that such would be asserted only if there is a "compelling reason" to do so. In my opinion, that is the proper standard to apply throughout these two cases, save for properly classified materials that cannot be declassified or sanitized even after this long period of time. Recommendation I recommend that you send the attached proposed memorandum to Director Kelley. I have also attached a proposed memorandum to Assistant Attorney General Lee, which advises him of the Department's position on this issue. QUINLAN J. SHEA, Jr., Chief, Freedom of Information Appeals Unit. MEMORANDUM TO REX E. LEE, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION Subject: Privacy Considerations Pertaining to the Rosenberg and Hiss Records of the Department. Attached hereto is a copy of a memorandum I have sent to Director Kelley in response to his request for guidance on the above subject. I will appreciate it if you will ensure that this policy of the Department of Justice is reflected in all litigative activities pertaining to these two cases of historical interest which may be undertaken by the Civil Division in the future. MEMORANDUM TO CLARENCE M. KELLEY, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION From: Harold R. Tyler, Jr., Deputy Attorney General. Date: August 8, 1975. Subject: Your Request for Guidance in Processing the Rosenberg and Hiss Files Under the Freedom of Information Act. This is in response to your memorandum of July 28, 1975, addressed to Attorney General Levi, in which you sought specific guidance as to the release of Greenglass data and general guidance as to third party releases of investigatory records in subject cases of historical interest. As to David and Ruth Greenglass, it is my judgment that they have no general privacy interest in any material obtained or derived from them, or pertaining to them [regardless of source], sufficient to withstand a request under the Freedom of Information Act submitted by any person. The only exception would be for material of an intimate or other purely personal nature that is wholly unrelated to the subject matter of the Rosenberg case. As a general proposition, I have concluded that the same standard applies to Julius and Ethel Rosenberg, Morton Soboll, Harry Gold, Anatoli Yakolev, Klaus Fuchs, Max Elitcher, Prof. Walter Koski, Louis Abel, Dorothy Abel, Dr. George Bernhardt, William Danziger, Elizabeth Bentley, James S. Huggins, Evelyn Cox and Ben Schneider. It may apply to Abraham Brothman, the Einsohns, Mrs. Elitcher and Oscar Vago; material from or pertaining to them should be very carefully considered by you in this regard before being withheld on privacy grounds. With respect to the Hiss materials. I find no general privacy interest sufficient to support withholding under the amended Act as to Whittaker Chambers, Esther Chambers, Nathan Levine, Henry Julian Wadleigh, Mr. Touloukian, Dr. Meyer Schapiro, William Rosen, Hede Massing, Felix Inslerman and Burnetta Catlett. Any statements [or reports thereof] or official reports from Walter Anderson and Eunice Lincoln of the Department of State or from Ramos Feehan and Courtland Jones of the F.B.I. should be released. Careful consideration should be given before any decision is reached to withhold, on the basis of privacy, relevant material pertaining to any of the persons identified as Communists by Whittaker Chambers in the public testimony before the House Un-American Activities Committee on August 3, 1948. Given the nature of the Hiss trials, all material pertaining in any way to the Woodstock typewriter. the pumpkin films, the purloined documents themselves, the incident of the transfer of the car to Mr. Rosen via the Cherner Motor Company, the incident of the oriental rug, and the purchase by Whittaker Chambers in 1937 of the "other" farm near Westminster, Maryland, should be released, if possible. As to many of the other persons from whom information or assistance was obtained in these two cases of historical interest, it may be appropriate to delete their names when initially releasing information furnished by them. Decisions as to other persons, however, will require careful and deliberate judgments as to whether the release of their identities would constitute unwarranted invasions of their privacy. In several prior memoranda and letters, reference has been made to the Department's Policy Regarding Investigatory Record of Historical Interest [28 C.F.R. 50.8]. Although the "letter" of that provision may have been largely overtaken by the recent amendments to the Act, the policy set forth therein of encouraging the maximum possible discretionary release of records in these historical interest cases remains the policy of the Department of Justice. I also wish to call to your attention the communication of Attorney General Levi to several persons seeking access to the "pumpkin films." A copy of one such letter is attached hereto. With the exception of materials withheld on the basis of exemption 1, because they are properly classified and cannot be declassified or sanitized, the Attorney General stated that exemptions would be invoked as to the content of the films only if there is a "compelling reason" to do so. I consider that to be the proper standard to be applied as to investigatory records in the Hiss and Rosenberg files [e.g., to protect the identity of the informant against the Rosenbergs who is still furnishing information to the F.B.I. today]. As both of us are aware, the Department has been subjected to considerable criticism over our response to requests for records from the Rosenberg and Hiss files. I hope that the guidance I have provided in this memorandum will permit these matters to be processed on a greatly expedited basis in the immediate future. Legislative History [Exhibit 80] EXCERPT FROM CONFERENCE REPORT (SENATE REPORT) No. 93-1200 ON FOIA AMENDMENTS 1974 INVESTIGATORY RECORDS The Senate amendment contained an amendment to subsection (b) (7) of the Freedom of Information law, not included in the House bill, that would clarify Congressional intent disapproving certain court interpretations which have tended to expand the scope of agency authority to withhold certain "investigatory files compiled for law enforcement purposes." The Senate amendment would permit an agency to withhold investigatory records compiled for law enforcement purposes only to the extent that the production of such records would interfere with enforcement proceedings, deprive a person of a right to a fair trial or an impartial adjudication, constitute a clearly unwarranted invasion of personal privacy, disclose the identity of an informer, or disclose investigative techniques and procedures. The conference substitute follows the Senate amendment except for the substitution of "confidential source" for "informer," the addition of language protecting information compiled by a criminal law enforcement authority from a confidential source in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, the deletion of the word "clearly" relating to avoidance of an "unwarranted invasion of personal privacy," and the addition of a category allowing withholding of information whose disclosure "would endanger the life or physical safety of law enforcement personnel." The conferees wish to make clear that the scope of this except against disclosure of "investigative techniques and procedures" should not be interpreted to include routine techniques and procedures already well known to the public, such as ballistics tests, fingerprinting, and other scientific tests or commonly known techniques. Nor is this exemption intended to include records falling within the scope of subsection 552(a) (2) of the Freedom of Information law, such as administrative staff manuals and instructions to staff that affect a member of the public. The substitution of the term "confidential source” in section 552(b)(7) (D) is to make clear that the identity of a person other than a paid informer may be protected if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. Under this category, in every case where the investigatory records sought were compiled for law enforcement purposes-either civil or criminal in nature-the agency can withhold the names, addresses, and other information that would reveal the identity of a confidential source who furnished the information. However, where the records are compiled by a criminal law enforcement authority, all of the information furnished only by a confidential source may be withheld if the information was compiled in the course of a criminal investigation. In addition, where the records are compiled by an agency conducting a lawful national security intelligence investigation, all of the information furnished only by a confidential source may also be withheld. The conferees intend the term "criminal law enforcement authority" to be narrowly construed to include the Federal Bureau of Investigation and similar investigative authorities. Likewise, "national security" is to be strictly construed to refer to military security, national defense, or foreign policy. The term "intelligence" in section 552(b) (7) (D) is intended to apply to positive intelligence-gathering activities, counterintelligence activities, and background security investigations by governmental units which have authority to conduct such functions. By "an agency" the conferees intend to include criminal law enforcement authorities as well as other agencies. Personnel, regulatory, and civil enforcement investigations are covered by the first clause authorizing withholding of information that would reveal the identity of a confidential source but are not encompassed by the second clause authorizing withholding of all confidential information under the specified circumstances. The conferees also wish to make clear that disclosure of information about a person to that person does not constitute an invasion of his privacy. Finally, the conferees express approval of the present Justice Department policy waiving legal exemptions for withholding historic investigatory records over 15 years old, and they encourage its continuation. [Exhibit 81] EXCERPT FROM ATTORNEY GENERAL'S MEMORANDUM I-B. CHANGES IN EXEMPTION 7 (INVESTIGATORY LAW INTRODUCTION The 1974 Amendments to the Freedom of Information Act substantially altered the exemption concerning investigatory material compiled for law enforcement purposes. Prior to the amendments, the Act permitted the withholding of "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." The 1974 Amendments substitute the term "records" for "files," and prescribe that the withholding of such records be based upon one or more of six specified types of harm. The revised exemption now reads: "(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication. (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the lift or physical safety of law enforcement personnel;" There follows a discussion of the phrase "investigatory records compiled for law enforcement purposes," the six bases for withholding investigatory material, and the implementation of the amended provision. THE MEANING OF "INVESTIGATORY RECORDS COMPILED FOR LAW ENFORCEMENT PURPOSES" 4 A series of court decisions had construed the prior provision as exempting any material contained in a file properly designated as an investigatory file compiled for law enforcement purposes. The primary purpose of Senator Hart's amendment to revise exemption 7 was to overturn the result of those decisions and to require consideration of the particular document and the use to withhold it. (See, e.g., 120 Cong. Rec. S 9329-30 (May 30, 1974).) Because of the change from "files" to "records" and the provisions concerning reasonably segregable portions of records (see Part I-C, below), the particular documents must ordinarily be examined. The threshold questions are whether 3 The exception clause, which was dropped by the 1974 Amendments, applied, for example, to requests under the Jencks Act, 18 U.S.C. 3500. While a subject of occasional confusion in the early days of the Act. this clause merely meant that the exemption was not intended to repeal or foreclose discovery rights of litigants such as those under the Jencks Act. See A.G.'s 1967 FO1 em. at 38. It can be assumed that the reason the clause was dropped was merely to avoid encumbering the more complex amended exemption with a clause which was unnecessary: its omission thus does not change the law. See. e.g.. Weisberg v. U.S. Department of Justice, 489 F. 2d 1195 (D.C. Cir., 1973), cert. denied, 416 U.S. 993 (1974). 5 Neither the bill passed by the House nor the bill reported by the Senate Judiciary Committee contained any amendment of exemption 7. Senator Hart's amendment was adopted during the Senate debate, and it was revised during the House-Senate conference. It might be possible to make the necessary exemption 7 determination without such individual examination when, for example, an entire file is known to contain standardized forms all portions of which meet the exemption requirements. Such a situation is obviously likely to be rare, at least with respect to presently existing files. the requested material is "investigatory" and whether it was "compiled for law enforcement purposes." These terms were not defined in the original Act and are not defined in the Act as amended. "Investigatory records" are those which reflect or result from investigative efforts. The latter may include not merely activities in which agencies take the initiative, but also the receipt of complaints or other communications indicating possible violations of the law, where such receipt is part of an overall program to prevent, detect or counteract such violations, or leads to such an effort in the particular case. Under the original Act, "law enforcement" was construed administratively and by the courts as applying to the enforcement of law not only through criminal prosecutions, but also through civil and regulatory proceedings, so that investigations by agencies with no criminal law enforcement responsibilities were included. The legislative history of the 1974 Amendments indicates that no change in this basic concept was contemplated. (See, e.g., Conf. Rept. p. 13.) "Law enforcement" includes not merely the detection and punishment of law violation, but also its prevention. Thus, lawful national security intelligence investigations are covered by the exemption, as are background security investigations and personnel investigations of applicants for Government jobs under Executive Order 10450. (Cf. Conf. Rept. p. 13.) On the other hand, not every type of governmental information-gathering qualities. Records of more general information-gathering activities (e.g., reporting forms submitted by a regulated industry or by recipients of Federal grants) developed in order to monitor, generally or in particular cases, the effectiveness of existing programs and to determine whether changes may be appropriate, should not be considered "compiled for law enforcement purposes" except where the purpose for which the records are held and used by the agency becomes substantially violationoriented, i.e., becomes re-focused on preventing, discovering or applying sanctions against noncompliance with federal statutes or regulations. Records generated for such purposes as determining the need for new regulations or preparing statistical reports are not "for law enforcement purposes." THE SIX BASES FOR INVOKING EXEMPTION 7 Once it is determined that a request pertains to "investigatory records compiled for law enforcement purposes," the next question is whether release of the material would involve one of the six types of harm specified in clauses (A) through (F) of amended exemption 7. If not, the material must be released despite its character as an investigatory record compiled for law enforcement purposes, and (generally speaking) even when the requester is currently involved in civil or criminal proceedings with the Government. (Of course exemptions other than exemption 7 may be applicable, or restrictions upon disclosure other than those expressly set forth in the Freedom of Information Act-for example, the prohibition against disclosing the transcript of grand jury proceedings, Rule E of the Federal Rules of Criminal Procedure.) The six bases for nondisclosure set forth in 5 U.S.C. 552 (b) (7) (A)–(F) may be explained as follows: (A) INTERFERENCE WITH ENFORCEMENT Under clause 552 (b) (7) (A). nondisclosure is justified to the extent that production of the records would "interfere with enforcement proceedings." This clause is derived, without change, from Senator Hart's amendment. The term "enforcement proceedings" is not defined, but it seems clear that its scope corresponds generally to that of "law enforcement purposes," covering criminal, civil and administrative proceedings. Moreover, in explaining this clause of his amendment, Senator Hart made clear he considered proceedings to be "interfered with" when investigations preliminary to them are interfered with. He used the term "enforcement procedures" as synonymous with "enforce ment proceedings" to describe the over-all coverage of the clause. (120 Cong. Rec. S 9330 (May 30, 1974).) Thus, records of a pending investigation of an ap plicant for a Government job would be withholdable under clause (A) to the extent that their production would interfere with the investigation. See 5 U.S.C. 552 (b) (7) (D). |