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 filed 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.1 Each page must be reviewed by a substantive officer to assure that release would not damage the Nation's security. Under our regulations,2 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). 2 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 1 F.2d (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 ABOUREZк. 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.1 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. But every individual has the responsibility, under established regulations, to make sure that records of official business which require preservation in accordance with statute and regulation are in some official file. We have a number of different file systems in the Department. It is our policy and intention that all pertinent file systems be searched in respect of that request. If you want more on that, I can ask Barbara Ennis. Senator ABOUREZK. Let me ask you this. You say that State has regulations on how files are to be kept. Mr. FELDMAN. Yes. I am not personally familiar with all the details. We have an elaborate records management system which governs the maintenance of our files. Senator ABOUREZK. Mr. Blake, may I ask you the same question. Does the CIA have regulations stating how files should be kept? Mr. BLAKE. Yes, sir. Senator ABOUREZK. Apparently they were not followed, in the MKULTRA case.1 Is that correct? Mr. BLAKE. I cannot answer that question, sir, the way you phrase it. They may have been. The problem we had in retrieving the ULTRA records is the identification of those records as they were found 2 years later. They were not identified ULTRA.2 They were not associated with a particular unit or organization that did the work. They were marked financial records out of that component. Someone had the initiative to search it and found them. Senator ABOUREZK. But, if the regulations of the Agency had been followed, those would have been found the first time around, correct?" Mr. BLAKE. If the matter was based on not putting the proper title on that particular file, then the answer is yes; if that were the fact, yes, sir. Senator ABOUREZK. Mr. Feldman, would your agency oppose a balancing test under exemption (b) (1) that would require you to weigh the harm from release of information against the public interest in disclosure for every request? Mr. FELDMAN. Mr. Chairman, the Department of State, as I said in my statement, is constantly required to balance the public need to know against the requirements of confidentiality in the administration of our program. Senator ABOUREZK. My question is: would you oppose it in the law? Mr. FELDMAN. We, as an institution, have historically been opposed to judicial determination of classification decisions. We believe that that is the proper responsibility of the executive branch of government and that the President is accountable to the people for the conduct of the executive branch in that regard. We are satisfied, I think, with the administration of the act in this regard by the courts presently, where the courts have indicated they will give substantial weight, at least, to the determinations of the executive branch and will not substitute their own judgment for the classification decisions of the executive branch, at least where there is a reasonable basis for them. 1 See p. 80, 83 of the hearing text. I think we would be opposed, Mr. Chairman, at least at this point, to incorporating in a legal standard of judicial review a test that would require in a courtroom a determination by the judge of the kind of a balance as you just described it. I draw a distinction between a determination by the executive branch of government, which I believe is required as a practical matter and a legal determination. We have had one experience under the Freedom of Information Act with respect to a balancing test. That is on exemption 6. The exemption provides for withholding material the release of which would involve a clearly unwarranted invasion of privacy. The courts have struggled very hard and have become involved in case-by-case adjudication balancing the individual's privacy interest and the public interest in access to the information. In my own personal judgment that is a burden on the judiciary which is unwarranted and results not only in uncertainty in the administration of the act but in enormous inefficiency both in terms of the administrative process and the judicial process. In my view it would not be prudent to introduce a balancing test into the management of a classification system. That does not mean that there should not be a very clear injunction to all members of the executice branch to weigh the public need to know in making determinations on classification. Senator ABOUREZK. In your statement you cite the need to "reassure foreign governments that they can continue to deal with the U.S. Government in confidence." Does that assurance contemplate the withholding of diplomatic information that is not classified but which our Government considers only sensitive? Mr. FELDMAN. Mr. Chairman, I think that all governments regard diplomatic communications as privileged. We would regard it as our responsibility to classify all diplomatic communications received by us in confidence. The standard for classification under the present Executive order is could unauthorized disclosure of the information reasonably be expected to cause various degrees of damage to the national security? That is to say, to the defense and foreign relations of the United States. The unilateral disclosure of confidential diplomatic communications would prejudice the very conduct of communication with other countries by the United States. We have had specific representations in this regard, sir, specific expressions of concern from a number of friendly governments. So, my answer to you, sir, is that, in striking a balance between the public's need to know about the formation of foreign policy and the requirements of confidentiality and diplomatic communications, it is not crucial whether a classification stamp was put on the document by foreign governments concerned. Senator ABOUREZK. What does the new Executive order just released say about that particular type of information? Mr. FELDMAN. Mr. Chairman Senator ABOUREZK. Does it allow you to classify some information furnished by foreign governments? 1 See p. 467 of the appendix. |