Mr. FELDMAN [continuing]. Mr. Chairman, you put me in a somewhat difficult position. The Executive order, I believe, has been circulated now, as I understand it, to agencies. I have not received that copy. I obviously am familiar with the process of drafting that has been evolving. I have a copy which may or may not be exactly the one that has been distributed. But, since it is a draft, I would prefer not to speculate at this time as to its particular contents.

I am authorized to say to you, Mr. Chairman, that copies are to beif they have not already been-made available to interested committees of Congress. The administration is very interested in discussing all aspects of this draft order informally with interested committees and Members of Congress.

I would prefer, Mr. Chairman, not to address it in a public hearing on the basis of the draft.

Senator ABOUREZK. Let me ask you this then. Assuming that the new Executive order denies the right of the administration to classify certain foreign information, how would you expect to keep that from being disclosed to the public on the grounds that it might embarrass some foreign government if it does not fall under any of the exemptions, and cannot be classified?

Mr. FELDMAN. I would feel-this is a somewhat hypothetical question. I would be very surprised if any Executive order in the classification field did not authorize the protection of information or documents provided by foreign governments in confidence. I am not aware of any change of a restrictive character to that effect in the drafting.

I do not know offhand of a legal basis for protecting sensitive information in relation to our foreign relations other than the (b) (1) exemption of the Freedom of Information Act.

I find it difficult to follow the argument this morning that was being made by a previous witness, but that testimony may not have been directed to the problems of the State Department and foreign relations issues per se. I think, if that contingency that you suggest should ever eventuate, we would have to look very carefully at what our alternatives

were.

Senator ABOUREZK. Well, I have no more questions right now. Senator Thurmond may have some.

Senator THURMOND. Thank you, Mr. Chairman.

Mr. Blake, would you supply for the record the number of Freedom of Information Act requests by year since 1975 that the CIA has received?

Mr. BLAKE. I would be pleased to, sir.'

Senator THURMOND. I notice the State Department provided that information in their statement. It was very interesting. It appears the requests have multiplied every year. It has gotten to the point where it is almost burdensome, as I understood him to say. Is that correct? Mr. FELDMAN. Senator, there is a constantly increasing curve, particularly since the enactment of the 1974 amendments.

Senator THURMOND. Mr. Blake, what is the opinion of the CIA on Mr. McGehee's recommendation that exemption (b) (1) be repealed? Mr. BLAKE. We would not agree with the position of the witness, sir. We believe there has to be a determination within the executive branch 1 See p. 467 of the appendix.

under the appropriate Executive order, 11652, for which a replacement is coming out. It gives policy guidance to be followed. We support the retention of (b)(1).

Senator THURMOND. Mr. Feldman, what is the opinion of the State Department on the same issue?

Mr. FELDMAN. Excuse me, Senator, could you please repeat the question?

Senator THURMOND. What is the opinion of the State Department on Mr. McGehee's recommendation that exemption (b)(1) be repealed?

Mr. FELDMAN. Senator, the Department would strongly object to the repeal. The Department would be greatly concerned over any suggestion that legislation be enacted repealing the (b) (1) exemption.

Senator THURMOND. So, you would be opposed to repealing it?

Mr. FELDMAN. We would be opposed to repeal. I am quite sure of that.

Senator THURMOND. Thank you, Mr. Chairman.

Senator ABOUREZK. I want to express my thanks to all the witnesses for their appearance today.

[The prepared statement of Mr. Feldman follows:]

PREPARED STATEMENT OF MARK B. FELDMAN

Mr. Chairman, I am very pleased to have this opportunity to appear before you today to discuss the views and experience of the Department of State with respect to the operation of the Freedom of Information Act. At your request, I shall concentrate particularly this morning on the problems of classification for reasons of national security-the (b) (1) exemption. I would hope the Department could submit additional comments on other aspects of the act at a later date.

I would like to begin by observing that our 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. The Department of State has a duty to provide information to the public and a responsibility to preserve diplomatic confidentiality. Thus, 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 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 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. 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.

Let me review the experience of the Department of State under the Freedom of Information Act since it was amended in 1974.

In 1976, the Department reviewed almost one-half million pages. Almost 80 percent of these pages were released. Less than three percent were denied. The balance remains under consideration. These figures include material referred by Presidential libraries which is not subject to the Freedom of Information Act but which is reviewed for declassification under E.O. 11652.

We have noticed a rising volume of requests. In 1975, we received 1812 re. quests. In 1976, 2286, and in 1977 we project between 3300 and 3500 requests, an average of approximately 12 per working day.

1 See p. 433 of the appendix.

A pattern of requests has developed which we did not anticipate. In addition to numerous requests from researchers and the media, large requests originate from lawyers who utilize the act as a form pre-trial 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 five 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 virtually impossible 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 requests 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 the country or matter concerned.

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 United States 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.

One particular issue that may merit special attention is the problem of “omnibus" or "bulk" requests. The Department has observed an increasing number of requests for vast blocks of documents, such as "all records on POW's and MIA's in Viet-nam" or all the minutes of an interagency committee holding weekly meetings over a period of 20 years, or a request 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.

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 United States Government in confidence. Such assurance is important if foreign officials are to communicate freely with the United States 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 litigation, 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. C.I.A., 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 classifications 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.

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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 public. 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. Mr. LAPHAM. Senator?

Senator ABOUREZK. Yes, Mr. Lapham?

Mr. LAPHAM. Senator, I have not had an opportunity to go over all of Mr. McGehee's statement. But, to the extent I heard him summarize it this morning, it contained a number of inaccurate statements or suggestions that I would like to take a moment to correct.

I believe he testified that there have only been five or six cases in which CIA (b) (1) exemption claims have been litigated. That number falls well short of the actual experience; there have been at least 15 or 20 such cases in which those kinds of claims have been litigated.

If he was seeking to develop a point that nobody will litigate with us because we always win these cases, it has not been a perception of mine that anybody has been deterred from litigating with the CIA because of that reason.

Senator ABOUREZK. I think Mr. McGehee referred to the Military Audit Project litigation, not to outside litigation.

Mr. LAPHAM. I understood it otherwise. If that was his

Senator ABOUREZK. As I recall, that is what he said.

You may respond to that point, Mr. McGehee.

Mr. McGEHEE. What I meant to say-and I hope it came throughis that there have only been six cases decided. There have been other cases litigated, but there have been only six cases decided.

My written statement summarized my authority for that.1

Senator THURMOND. Mr. Chairman, if he is going to testify further, I prefer that he be sworn like the other witnesses.

Senator ABOUREZK. Yes, that is fine.

Do you solemnly swear that the testimony you are about to give is the whole truth and nothing but the truth, so help you God? Mr. McGEHEE. Yes.

Senator THURMOND. And can you apply that to the testimony Mr. McGehee has already given?

Senator ABOUREZK. We will make it retroactive.

Mr. McGEHEE. Yes, it is retroactive.

Mr. LAPHAM. Senator, we would be happy to supply for the committee a list of all those decided cases that have involved the (b) (1) exemption claims; there are a good many more than six.2

There was a suggestion that a common practice of the Agency is to file, in these cases, when we seek to support a (b) (1) exemption claim, secret affidavits. It is correct that that practice has been followed on two occasions; those were the only occasions on which secret affidavits have been utilized in these litigations.

1 See p. 64 of the hearing text. * See p. 468 of the appendix.

There was a suggestion further that the affidavits that are commonly filed by the Agency in these cases are rather routine and perfunctory documents.

I assure the committee that that is not so. These affidavits that are customarily filed are elaborate, detailed justifications of any material that is being

Senator ABOUREZK. Can you furnish the committee with those affidavits?

Mr. LAPHAM. We could certainly furnish the committee with samples of the kinds of affidavits that we submit; absolutely.1

Senator ABOUREZK. If you would submit all of those affidavits in the litigated cases. We would like to look at all of them.

Mr. LAPHAM. We can do that, sir.

Senator ABOUREZK. Thank you.

Mr. LAPHAM. At least all the unclassified affidavits.

Senator ABOUREZK. You mean you furnished affidavits to a court that have been classified?

Mr. LAPHAM. On three occasions in three cases, yes, sir; we have done that.

Senator ABOUREZK. And you do not want us to see the classified ones?

Mr. LAPHAM. Well, we can discuss arrangements pursuant to which that might happen.

Senator ABOUREZK. I think it would just be for the members only, those who have clearance.

You don't have any objection to that; do you?

Mr. LAPHAM. We will be happy to discuss arrangements with the committee to accomplish that end.

Senator ABOUREZK. Very good.2

Do you have anything more?

Mr. LAPHAM. No, sir, except to say there is-and I am sure the committee recognizes an inherent dilemma in trying to litigate about the question of whether national security information should be publicly disclosed or not. It is quite obvious that procedures have got to be fashioned, and indeed they have been fashioned in these cases that I am talking about. This makes it possible for the CIA to litigate its claim that a particular item of information or document is properly exempt without, at the outset, having to disclose what the information is.

It is for those kinds of reasons that, on occasion, classified affidavits must be submitted in support of the exemption claims. On occasion, it is simply impossible to fully justify the reasons why a particular document should be exempt from public disclosure, without going into a lot of additional information which is itself classified. Therefore, it is not unnatural or unpredictable that occasions will arise on which the justifications themselves must be in classified form.

Senator ABOUREZK. You don't think a judge ought to be entitled to look at information to see whether it is properly classified or not? You just want to submit information to him about the file. Is that your position?

1 On Nov. 1, 1977, the CIA furnished the subcommittee copies of all unclassified affidavits it has submitted to a court in FOIA cases. See correspondence p. 528 of the appendix. See correspondence pp. 525, 526, 529 of the appendix.