Page images
PDF
EPUB

foreign intelligence operations? In some cases, the act has had a predictably chilling effect upon sensitive intelligence sources abroad. Despite assurances, concern has been expressed over the ability of the Agency to protect sensitive intelligence sources. These types of considerations explain why the document review process is so time-consuming. A mistake due to carelessness or time pressures can potentially be severely damaging to the national security. And it is precisely for this reason that the most senior officials of the Agency are personally involved in the review of the documents containing classified information.

The act also provides that any reasonably segregable portion of a document must be released after the deletion of portions that are exempt under the act. Thus, the document review process is further complicated by the fact that a determination must be made whether any portions of a document which is properly classified may be released.

Following a final determination with respect to an appeal or if no determination has been made in the required twenty days, a requester may seek judicial review in a United States District Court. To date, 86 Freedom of Information or Priracy Act suits have been brought against the CIA. Final decisions have been rendered in 22 of these cases. None of the decisions resulted in adverse rulings on Agency claims of exemption based on classification. There are currently 64 cases pending res lution in the District or Appeal Courts. Some of the cases involve thousands of pages of documents and may take years to resolve. Such litigation is extremely costly in terms of Agency time and manpower, and costly in terms of taxpayer dollars.

Insofar as classified documents at issue in litigation are concerned, the burden is on the government to demonstrate by affidavit to the satisfaction of the court that information is classified. Mere assertions or conclusions are not enough. Each document must be described in sufficient detail and with sufficient specificity to show it is classified. Lengthy documents must be described section by section to demonstrate that no portion of the document may be released. In some cases, only a few pages may be at issue. In others, the affidavits themselves may run into hundreds of pages because of the numbers of documents involved. All such affidavits are closely scrutinized by the courts. It is a difficult proposition to sufficiently describe the type of information being withheld without revealing classified information.

The courts have clearly indicated how a claim of classification under exemption (b) (1) of the act will not be upheld if the claim is arbitrary or capricious, does not conform to the criteria of the Executive order, or is made in bad faith. As I've indicated, in no case has a Central Intelligence Agency plan of exemption (b) (1) been disallowed by a court.

Under the act, a court is required to make a de novo détermination whether records or any portion thereof may be withheld. To illustrate, within the past few months, decisions were rendered in two cases involving the Central Intelligence Agency in the District Court of the District of Columbia. One case involved almost 250 documents and classification had been claimed in whole or in part for over 200 of these documents. In each instance, the (b) (1) exemptions were upheld by the court following the submission of detailed affidavits. In the second case, approximately 90 documents were involved which were classified in whole or in part. Again in that case, all (h) (1) claims were upheld. I've mentioned these two cases to illustrate the workload that is imposed both on the Federal agencies and the courts.

In May of this year, the then Deputy Director of Central Intelligence issued instructions to all Agency employees concerning the preparation of documents containing classified material. In compliance with the Executive order. documents will be marked paragraph by paragraph to the extent practicable to indicate which portions are classified, at what level, and which portions are not classified. The implementation of this practice should ease the burden in the future of determining which portions of documents may be released and facilitate the release of information to the public. Moreover, it should induce employees to make more precise judgments about what information actually warrants protection under the Executive order and what information does not.

I recently directed all Agency components to increase their efforts to review all their active and inactive file holdings to determine what documents should be declassified, whether or not the material is the subject of a freedom of information request. This will prove to be quite a task but one which, in the long run. will increase the efficiency and improve the security of the Agency. Thousands of pages of documents have already been located and declassified.

Speaking before a group of private citizens in Los Angeles last month, Admiral Turner, the Director of Central Intelligence, made known his views regarding openness in government and unnecessary classification. He stated : "On the one hand we can declassify every bit of information that we have which need not be kept secret. I have mentioned a number of our efforts in that direction. But such declassification, or restraints on initial classification, we can generate greater respect for the information which must remain secret. On the other hand, we can and must tighten security around truly sensitive information on which much may depend."

I said at the outset that I believe in the public's right to know what its government is doing. At the same time, legitimate secrets relating to national defense and foreign affairs must be protected. We have not solved all the problems inherent in attempting to reconcile these two needs. Perhaps we never will, to everyone's satisfaction. But the CIA is committed to applying good faith and exercising sound judgment to bring these matters into balance.

Senator ABOUREZK. Does the State Department have a statement?

TESTIMONY OF MARK B. FELDMAN, DEPUTY LEGAL ADVISER, DE

PARTMENT OF STATE, ACCOMPANIED BY BARBARA ENNIS, DIRECTOR, FREEDOM OF INFORMATION STAFF; AND THOMAS J. RAMSEY, ATTORNEY ADVISER

if I may.

Mr. FELDMAN. Mr. Chairman, my name is Mark Feldman. I am Deputy Legal Adviser at the Department of State. I am accompanied this morning by Ms. Barbara Ennis, Director of the Freedom of Information Staff in the Bureau of Public Affairs, which is the bureau responsible for the administration of the program. I am also accompanied by Mr. Tom Ramsey, a member of my staff. .

We have a statement prepared. It is a very brief one. In view of your suggestion, Mr. Chairman, I will try to abbreviate it even further,

I would like to begin by observing that the Department of State is deeply aware that the democratic process can function only if adequate information is available to the public. At the same time, the process of diplomatic communication between nations depends upon confidentiality.

Thus, the Department of State has a duty to provide information to the public and a responsibility to preserve diplomatic confidentiality. We are constantly required to balance the public's right to know against the need for confidentiality in the diplomatic process.

The 1974 amendments to the Freedom of Information Act reflected the judgment of the Congress that over the years the executive branch had not struck a proper balance. We agree with that assessment. Experience under the act confirms that, historically, a great deal of information has been overclassified. In recent years great strides toward less classification have occurred, but much more needs to be done.

President Carter has now directed a complete reexamination of the classification system with a view toward releasing even more information. That review has resulted in a draft of a new Executive order 1 which is being circulated for comment by the White House. I am confident the administration would welcome the views of Members of Congress concerning the draft order.

1 See p. 458 of the appendix.

The Executive order is the key to the operation of exemption (b) (1) of the Freedom of Information Act because the statute incorporates the criteria and procedures established by Executive order.

If I may review briefly some of the experience of the Department of State under the act since the 1974 amendments. In 1976, for example, the Department reviewed almost one-half million pages. Almost 80 percent of these pages were released. Less than 3 percent were denied. The balance remains under consideration. These figures, Mr. Chairman, include material referred by Presidential libraries, which is not subject to the Freedom of Information Act but which is reviewed for declassification under Executive Order 11652.

We have noticed a rising volume of requests. In 1975 we received 1,812 requests. In 1976, 2,286; and in 1977 we project between 3,300 and 3,500 requests, an average of approximately 12 per working day.

A pattern of requests has developed which we did not anticipate. In addition to numerous requests from researchers and the media, we received large requests from lawyers who utilize the act as a form of pretrial discovery. There are also persons who make a business of filing FOIA requests for third persons. It is striking that in 1976 there were at least 5 persons who fled 80 or more requests with the Department. One person made 161 requests in that year.

The Department of State has found it extremely difficult to process all these requests within the short deadlines stipulated in the act." Each page must be reviewed by a substantive officer to assure that release would not damage the Nation's security. Under our regulations, no request may be denied without review by a deputy assistant secretary or officer of equivalent rank.

In the foreign affairs field the determination whether to release classified information requires expert knowledge of the foreign countries and issues concerned. The only officers in Washington with that expertise are the same few who are directly involved in the formulation and execution of U.S. policy with respect to those countries or matters.

The process of review is extremely time consuming and frequently involves not only middle grade but senior officials of the Department in page-by-page review of requests which may involve hundreds or, in some cases, thousands of pages. Moreover, review often requires consultation with other officers in the Department and in other agencies. The result is that the heavy burden of administering the Freedom of Information Act impacts appreciably on the time available to key officers for other substantive responsibilities. These problems are compounded when denial leads to litigation.

The Department of State recognizes the priority that must be given to meeting the legitimate needs of the American people for information about U.S. foreign relations and to improving the operation of the classification system, but we believe serious consideration should be given to means of dealing with the administrative burdens of the act. At a minimum, reality requires that more time be allowed for consideration of some FOI requests. The courts have recognized this problem in recent cases involving other agencies.

15 U.S.C. 552(a) (6) (A). ? See p. 544 of the appendix.

One aspect that may merit special attention is the problem of comprehensive, omnibus, or bulk requests. We have observed an increasing number of requests for large blocks of documents which might require, for example, review of all records on POW's and MIA's in Vietnam or all the minutes of an interagency committee which has been meeting weekly for 20 years or so. Or, we even receive requests sometimes for an entire file drawer identified by file numbers.

The Department does not believe the Freedom of Information Act was intended by Congress to establish a program for bulk declassification. Such a program would require substantial increases in staff and funding. However, the courts have not yet recognized this problem. The Department is hopeful that some relief can be found to the problem of bulk requests. We recognize that a lot of thought has to be given to that.

Apart from the administrative burden, the main problem confronted by the Department of State is the need to reassure foreign governments that they can continue to deal with the U.S. Government in confidence. Such assurance is important if foreign officials are to communicate freely with the U.S. Government, and candid communication is essential to the conduct of U.S. foreign policy and to the protection of national security.

We continue to receive specific expressions of concern on this point from foreign governments. These concerns emanate in part from press leaks, congressional investigations, and discovery procedures in court litigations; but they also arise from operation of the Freedom of Information Act. We have found it necessary to explain that the legal framework established by the statute and Executive order permits full protection of documents and information received in confidence from foreign governments or international organizations.

One principal concern of the Department of State and of foreign governments was whether the 1974 amendments to the (b) (1) exemption would lead to extensive inspection by the courts of highly classified material or to judicial determination of foreign policy questions. We have been reassured in this regard by judicial decisions, such as the decision by the Court of Appeals for the District of Columbia in Weissman v. CIA, which concluded that courts need not inspect classified documents when satisfied by affidavits submitted by the executive branch and should not substitute their judgments for classification determinations of the agencies where there is a reasonable basis for them. Other litigations have caused the Department problems, but those cases involve very particular circumstances which we believe are sui generis.

Mr. Chairman, I have been frank with this committee in identifying certain problems the Department of State has encountered in the operation of the act. But this review should not obscure the Department's commitment to improving the flow of information to the American people.

In the final analysis, the foreign policy of the United States must be founded in the basic values and goals of the American people. And it cannot be conducted without the firm support of an informed pub

F. 2a

(D.C. Cir. 1977) No. 76–1566. See p. 660 of the appendix.

lic. The American people must be able to have the kind of healthy debate that permits the formulation of those values and goals. That is the nature of our society, and the Freedom of Information Act is an important part of our democratic process.

Thank you very much. I will be happy to answer any questions you

may have.

Senator ABOUREZK. Do you think that the allegation that was on the news this morning about wiretapping the Panamanian delegation was true?

Mr. FELDMAN. Mr. Chairman, I have not seen a report

Senator ABOUREZK. There was a news report on CBS this morning that the Americans—the CIA apparently--bugged the Panamanian negotiators' rooms. Then the Panamanians found out about it and allegedly threatened to blackmail the United States to get concessions the United States would not have otherwise made.

Mr. FELDMAN. I hadn't heard the report. I am not prepared, Mr. Chairman, to speak for the Department on this issue.

Senator ABOUREZK. The Department wouldn't do anything like that, would it?

Mr. FELDMAN. The Department is not in the business of conducting wiretap operations; I think I can tell you that. But, as to what is done for the U.S. Government and what the-I am just not prepared to discuss that.

Senator ABOUREZK. I did not mean to surprise you with that. I assumed you had heard it, and I just wanted to get a comment on it.

Mr. FELDMAN. I had not heard the news report or seen the papers, but I think somebody mentioned to me there was some concern about that early this morning. I did not give it a moment's thought. I am not authorized to speak on that.

Senator ABOUREZK. I want to ask the same question of you that I asked the CIA regarding soft files." I am not talking about files of convenience for purposes of this question. I am talking about files or parts of files that are pulled out of the main file and kept somewhere else in order to avoid disclosure.

Does the State Department or any officer in the State Department keep such files ?

Mr. FELDMAN. Mr. Chairman, let me say that, if I had any idea that the committee was interested in the question of records management, I would have brought someone from the Department who is familiar with that subject. I am not in a good position to respond, particularly to the followup questions that you may have on this.

I can assure you that, to the best of my knowledge, it is not the policy or the practice of the Department to withdraw files or parts of files to avoid their being taken cognizance of under the Freedom of Information Act. As far as I know from personal experience, that has not been the action of any individual. I cannot, of course, speak for all individuals.

Now, it is true that all members of the Department may maintain working records or even, in some cases, personal files required to be segregated and so denominated. We would have no way of knowing what kind of working records individuals would have at their desk.

1 See pp. 639, 643 of the appendix, and p. 73 of the hearing text.

« PreviousContinue »