FREEDOM OF INFORMATION REFORM ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200170014-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 29
• Document Creation Date: December 21, 2016
• Document Release Date: December 11, 2008
• Sequence Number: 14
• Publication Date: February 27, 1984
• Content Type: OPEN SOURCE

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S 1794 CONGRESSIONAL RECORD -SENATE
unanimous consent at this time on
this side.
Mr. BYRD. Mr. President, those
items are cleared on this side.
Mr. BAKER. Mr. President, I . ask
unanimous consent that Senate Reso-
lution 352 and Senate Concurrent Res-
olution 93 be considered en bloc.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
GRATUITY TO JOYCE L. THISS
The resolution (S. Res. 352) to pay a
gratuity to Joyce L. Thiss, was consid-
ered, and agreed to as follows:
S. RES. 352
Resolved, That the Secretary of the
Senate hereby is authorized and directed to
pay, from the contingent fund of the
Senate, to Joyce L. Thiss, widow of George
R. Thiss III, an employee of the Senate at
the time of his death, a sum equal to five
months' compensation at the rate he was re-
ceiving by law at the time of his death, said
sum to be considered inclusive of funeral ex-
penses and all other allowances.
AUTHORIZING CEREMONY IN
THE ROTUNDA
The Senate proceeded to consider
the concurrent resolution (S. Con.
Res. 93) authorizing the rotunda of
the U.S. Capitol to be used on April 30,
1984, for a ceremony commemorating
the Days of Remembrance of Victims
of the Holocaust..
Mr. LAUTENBERG. Mr. President,
I know that the U.S. Holocaust Memo-
rial Council is pleased that the Senate
today will consider Senate Concurrent
Resolution 93, a resolution to author-
ize the use of the Capitol rotunda for
a ceremony on April 30, 1984. The
Council has designated April 29-May
6, 1984, as "Days of Remembrance ofI
Victims of the Holocaust." The cere-
mony in our Capitol rotunda will give
these days a truly national focus.
I was honored to .have the opportu-,
nity to introduce Senate Concurrent
Resolution 93 earlier this month as a
member of the U.S. Holocaust Memo-
rial Council. I must express the deep-
est gratitude on behalf of myself and
other cosponsors for the timely consid-
eration of this resolution by the Com-
mittee on Rules and Administration
and by the full Senate. That gratitude
goes to the committee chairman, Mr.
MATHIAS, and the committee's ranking
minority member, -Mr.. FORD, and to
the majority and minority leaders.
The Holocaust Memorial Council
can now proceed in finalizing its plans
for speeches, readings, and the music
that will be a part of the April 30 pro-
gram. Other observances across Amer-
ica will bring to millions of our people
a renewed understanding of the events
surrounding the Holocaust 40 years
ago and the chance to commit them-
selves anew to insuring such gross in-
humanity never happens again.
The concurrent resolution (S. Con.
Res. 93) was considered and agreed to.
The preamble was agreed to.
The concurrent resolution, and the
preamble, are as follows:
S. CON. RES. 93
Whereas pursuant to the Act entitled "An
Act to establish the United States Holocaust
Memorial Council", approved October 7,
1980 (94 Stat. 1547), the United States Holo-
caust Memorial Council is directed to pro-
vide for appropriate ways for the Nation to
commemorate the Days of Remembrance of.
Victims of the Holocaust, as an annual, na-
tional, civic commemoration of the Holo-
caust, and to encourage and sponsor appro-
priate observances of such Days.of Remem-
brance throughout the United States;
Whereas pursuant to such Act, the United
States Holocaust Memorial Council has des-
ignated April 29, 1984, through May 6, 1984,
as "Days of Remembrance of, Victims of the
Holocaust"; and
Whereas the United States Holocaust Me-
morial -Council has recommended that a
one-hour ceremony be held at noon on April
30, 1984, consisting of speeches, readings,
and musical presentations as part of the
Days of Remembrance activities: Now,
therefore, be it
Resolved by the Senate (the House of Rep-
resentatives concurring), That the rotunda
of the United,States Capitol is hereby au-
thorized to be used on April 30, 1984, from
10 o'clock ante meridiem'until 3 o'clock post
meridiem for a ceremony as part of the com-
memoration of the Days of Remembrance
of Victims of the Holocaust., Physical prep-
arations for the conduct of the ceremony
shall be carried out in accordance with such
conditions as may. be prescribed by the Ar-
chitect of the Capitol.
Mr. BAKER. Mr. President, I move
to reconsider the vote by which the
measures were agreed to.
Mr. BYRD. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
FREEDOM OF INFORMATION
REFORM ACT
Mr. BAKER. Mr. President, next I
-am prepared to take up S. 774, which
is Calendar Order No. 367.
Mr. BYRD. Mr. President, the mi-
nority leader is prepared to proceed.
Mr. BAKER. Mr. President, I ask
the Chair to lay before the Senate
Calendar Order No. 367, S. 774.
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
A bill (S. 774) entitled "The Freedom of
Information Reform Act."
The PRESIDING OFFICER. With-
out objection, the Senate will proceed
to its immediate consideration.
The Senate proceeded to consider
the bill which had been reported from
the Committee on the Judiciary with
amendments as follows:
On page 15, line 10, strike "would" and
insert "could reasonably be expected to".
On page 23, after line 10, insert:
PUBLICATION OF EXEMPTION 3 STATUTES
SEC. 18: Section 552 of title 5, United
States Code, is amended by adding a new
subsection (g) as follows:
"(g) Within two hundred and seventy days
of the date of the enactment of this subsec-
tion, any agency which relies or intends to
rely on any statute which was enacted prior
. February 27, 1984
to the date of enactment of this subsection,
or during the thirty-day period after such
date to withhold information under subsec-
tion (b)(3) of this section, shall cause to be
published in the Federal Register a list of
all such statutes and a description of the
scope of the information covered. The Jus-
tice Department shall also publish a final
compilation of all such listings in the Feder-
al Register upon the completion of the two-
hundred-and-seventy-day period described
in the preceding sentence. No agency may
rely, after two hundred and seventy days
after the date of enactment of this subsec-
tion, on any such statute not listed in deny-
ing a request. Nothing in this subsection
shall affect existing rights of any party
other than an agency.".
So as to make the bill read:
S. 774
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled,
FEES AND WAIVERS
SEC. 2. Paragraph (4)(A) of section 552(a)
of title 5, United States Code, is amended to
read as follows:
(4)(A)(i) In order to carry out the provi-
sions of this section, each agency shall pro-
mulgate regulations, pursuant to notice and
receipt of public comment, specifying the
schedule of fees applicable to the processing
of requests under this section and establish-
ing procedures and guidelines for determin-
ing when such fees should be waived or re-
duced. Such schedules shall conform to the
guidelines which shall be promulgated, pur-
suant to notice and receipt of public com-
ment, by the Office of Management and
Budget and which shall provide for a uni-
form schedule of fees for all agencies. Such
regulations-
"(a) shall provide for the payment of all
costs reasonably and directly attributable to
responding to the request, which shall in-
clude reasonable standard charges for the
costs of services by agency personnel in
search, duplication, and other processing of
the request. The term 'processing' does not
include services of agency personnel in re-
solving issues of law and policy of general
applicability which may be raised by a re-
quest, but does include services involved in
examining records for possible withholding
or deletions to carry out determinations of
law' or policy. Such regulations may also
provide for standardized charges for catego-
ries of requests having similar processing
costs,
"(b) shall provide that no fee is to be
charged by any agency with respect to any
request or series of related requests when-
ever the costs of routine collection and proc-
e6sing of the fee are likely to equal or
exceed the amount of the fee, and
"(c) in the case of any request or series of
related requests for records containing com-
mercially valuable technological information
which was generated or procured by the
Government at substantial cost to the
public, is likely to be used for a commerical
purpose, and will deprive the Government
of its commercial value, may provide for the
charging of a fair value fee or, in addition to
or in lieu of any processing fees otherwise
chargeable, taking into account such factors
as the estimated commercial value of the
technological information, its costs to the
Government, and any public interest In en-
couraging its utilization.
Nothing in this subparagraph shall super-
sede fees chargeable under a statute specifi-
cally providing for setting the level of fees
for particular`types of records.
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
"(ii) With respect, to search and duplica-
tion charges, documents shall be furnished
without charge or at a reduced charge
where the agency determines that waiver or
reduction of the fee is in the public interest
because furnishing the information can be
considered as primarily benefiting the gen-
eral public and not the commercial or other
private interests of the requester. With re-
spect to all other charges, documents shall
be furnished without such charges where
the agency determines that the information
is not requested for a commercial use and
the request is being made by or on behalf of
(a) an individual, or educational, or noncom-
mercial scientific institution, whose purpose
is scholarly or scientific research; (b) a rep-
resentative of the news media; or (c) a non-
profit group that intends to make the infor-
mation available to the general public.
"(iii) One-half of the fees collected under
this section shall be retained by the collect-
ing agency to offset the costs of complying
with this section. The remaining fees col-
lected under this section shall be remitted
to the Treasury's general fund as miscella-
neous receipts, except that any agency de-
termined upon an investigation and report
by the General Accounting Office or the
Office of Management and Budget not to
have been in substantial compliance with
the applicable time limits of paragraph (6)
of this subsection shall not thereafter retain
any such fees until determined by the
agency making such finding to be in sub-
stantial compliance.".
TIME LIMITS
SEC. 3. Paragraph (6) of section 552(a) of
title 5, United States Code, is amended to
read as follows:
"(6)(A) Except as otherwise provided in
this paragraph, each agency, upon any re-
quest for records made under paragraph (1),
(2), or (3) of this subsection, shall-
"()) determine within ten working days
after the-receipt of any such request wheth-
er to comply with such request and shall im-
mediately notify the requester of such de-
termination and the reasons therefor, and
of the right of such person to appeal to the
head of the agency any adverse determina-
tion; and
"(ii) make a determination with respect to
any appeal within twenty working days
after the receipt of such appeal. If on
appeal the denial of the request for records
is in whole or in part upheld, the agency
shall notify the requester of the provisions
for judicial review of that determination
under paragraph (4) of this subsection.
"(B) In unusual circumstances as defined
in this subparagraph, the time limits pre-
scribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by writ-
ten notice to the requester setting forth the
reasons for such extension and the date on
which a determination is expected to be dis-
patched. No such notice shall specify.a date
that would result in extensions of more
than an aggregate of thirty working days.
As used in this subparagraph, 'unusual cir-
cumstances' means, but only to the extent
reasonably necessary to the proper process-
ing of the particular request-
"()) the need to search for and collect the
requested records from field facilities or
other establishments that are separate from
the office processing the request;
"(ii) the need to search for, collect, and
appropriately examine a voluminous
amount of separate and distinct records
which are demanded in a single request;
"(iii) the need for consultation, which
shall be conducted with all practicable
speed, with another agency having a sub-
stantial interest in the determination of the
request or among two or more components
of the agency having substantial subject-
matter interest therein;
"(iv) a request which the head of the
agency has specifically stated in writing
cannot be processed within the time limits
stated in paragraph (6)(A) without signifi-
cantly obstructing or impairing the timely
performance of a statutory agency function;
"(v) the need for notification of submit-
ters of information and for consideration of
any objections to disclosure made by such
submitters; or
"(vi) an unusually large volume of re-
quests or appeals at an agency, creating a
substantial backlog.
"(C) Any requester shall be deemed to
have exhausted his administrative remedies
with respect to such request if the agency
fails to comply with the applicable time
limit provisions of this paragraph. If the
Government can show exceptional circum-
stances and that the agency is exercising
due diligence in responding to the request,
the court may retain jurisdiction and allow
the agency additional time to complete its
review of the records. An agency shall not
be considered to have violated the otherwise
applicable time limits until a court rules on
the issue.
"(D) Upon any determination by an
agency to comply with a request for records,
the records shall be made promptly availa-
ble to the requester, subject to the provi-
sions of paragraph (7). Any notification of
denial of any request for records under this
subsection shall set forth the names and
titles or positions of each person responsible
for the denial of such request.
"(E) Each agency shall promulgate regula-
tions, pursuant to notice and receipt of
public comment, by which a requester who
demonstrates a compelling need for expedit-
ed access to records shall be given expedited
access.".
BUSINESS CONFIDENTIALITY PROCEDURES
SEC. 4. Section 552(a) of title 5, United
States Code, is amended by adding after
paragraph (6) the following new paragraph:
"(7)(A) Each agency shall promulgate reg-
ulations, pursuant to notice and receipt of
public comment, specifying procedures by
which-
"()) a submitter may be required to desig-
nate, at the time it submits or provides to
the agency or thereafter, any information
consisting of trade secrets, or commercial,
research, financial, or business information
which is exempt from disclosure under sub-
section (b)(4);
"(ii) the agency shall notify the submitter
that a request has been made for informa-
tion provided by the submitter, within ten
working days after receipt of such request,
and shall describe the nature and scope of
the request and advise the submitter of his
right to submit written objections in re-
sponse to the request;
"(iii) the submitter may, within ten work-
ing days of the forwarding of such notifica-
tion, submit to the agency written objection
to such disclosure, specifying all grounds
upon which it is contended that the infor-
mation should not be disclosed; and
"(iv) the agency shall notify the submitter
of any final decision regarding the release
of such information.
"(B) An agency is not required to notify a
submitter pursuant to subparagraph (A) if-
"(1) the information requested is not des-
ignated by the submitter a." exempt from
disclosure in accordance with agency regula-
tions promulgated pursuant to subpara-
graph (A)(i), if such designation is required
by the agency;
"(ii) the agency determines, prior to giving
such notice, that - the request should be
denied;
S 1795
"(iii) the disclosure is required by law
(other than this section) and the agency no-
tified the submitter of the disclosure re-
quirement prior to the submission of the in-
formation:
"(iv) the information lawfully has been
published or otherwise made available to
the public; or
"(v) the agency is a criminal law enforce-
ment agency that acquired the information
in the course of a lawful investigation of
possible violations of criminal law.
"(C) Whenever an agency notifies a sub-
mitter of the receipt of a request pursuant
to subparagraph (A), the agency shall notify
the requester that the request is subject to
the provisions of this paragraph and that
notice of the request is being given to a sub-
mitter. Whenever an agency notifies a sub-
mitter of final decision pursuant to subpara-
graph (A), the agency shall at the same
time notify the requester of such final deci-
sion.
"(D) Whenever a submitter has filed ob-
jections to disclosure of information pursu-
ant to subparagraph (A)(iii), the agency
shall not disclose any such information for
ten working days after notice of the final
decision to release the requested informa-
tion has been forwarded to the submitter.
"(E) The agency's disposition of the re-
quest and the subinitter's objections shall
be subject to judicial review pursuant to
paragraph (4) of this subsection. If a re-
quester files a complaint under this section,
the administrative remedies of a submitter
of information contained in the requested
records shall be deemed to have been ex-
hausted.
"(F) Nothing in this paragraph shall be
construed to be in derogation of any other
rights established by law protecting the con-
fidentiality of private information.".
JUDICIAL REVIEW
SEC. 5. Section 552(a)(4) of title 5. United
States Code, is amended-
(1) by amending subparagraph (B) to read
as follows:
"(B) On complaint filed by a requester
within one hundred and eighty days from
the date of final agency action or by a sub-
mitter after a final decision to disclose sub-
mitted information but prior to its release,
the district court of the United States in the
district in which the complainant resides, or
has his principal place of business, or in
which the agency records are situated, or in
the District of Columbia, has jurisdiction-
"()) to enjoin the agency from withholding
agency records and to order the production
of any agency records improperly withheld
from the requester;
"(ii) to enjoin the agency from any disclo-
sure of records which was objected to by a
submitter under paragraph (7)(A)(iii) or
which would have been objected to had
notice been given as required by paragraph
(7)(A)(i); or
"(iii) to enjoin the agency from failing to
perform its duties under sections (a)(1) and
(2).".
"(2) by redesignating subparagraphs (C),
(D), (E), (F), and (G) as subparagraphs (F).
(G), (H), (I), and (J), respectively, and by
adding after subparagraph (B) the following
new subparagraphs:
"(C) In an action based on a complaint-
"()) by a requester, the court shall have
jurisdiction over any submitter of informa-
tion contained in the requested records, and
any such submitter may intervene as of
right in the action; and
"(ii) by a submitter, the court shall have
jurisdiction over any requester of records
containing information which the submitter
seeks to have withheld, and any such re.
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CONGRESSIONAL RECORD - SENATE February 27, 1984
quester may intervene as of right in the
action.
"(D) The agency that is the subject of the
complaint shall promptly, upon service of a
complaint-
"(I) seeking the production of records,
notify each submitter of information con-
tained in the requested records that the
complaint was filed; and
"(ii) seeking the withholding of records,
notify each requester of the records that
the complaint was filed.
"(E) In any case to enjoin the withholding
or the disclosure of records, or the failure to
comply with subsection (a) (1) or (2), the
court shall determine the matter de novo.
The court may examine the contents of re-
quested agency records in camera to deter-
mine whether such records or any part
thereof shall be withheld under any of the
exemptions set forth in subsection (b) of
this section. The burden is on the agency to
sustain its action to withhold information
and the burden is on any submitter seeking
the withholding of information."; and
"(3) in redesignated subparagraph (H).
(A) by adding "or any submitter who is a
party to the litigation" after "United
States"; and
(B) by striking out "complainant" and in-
serting in lieu thereof "requester".
PUBLIC RECORD REQUESTS
SEC. 6. Section 552(a) of title 5, United
States Code, is amended by adding at the
end thereof the following new paragraph:
"(8) In any instance in which a portion of
the records requested under this subsection
consists of newspaper clippings, magazine
articles, or any other item which is a public
record or otherwise available in public
records, the agency may offer the requester
a choice of (A) furnishing the requester
with an index identifying such clippings, ar-
ticles, or other items by date and source,
provided that such index Is already in exist-
ence, or (B) notwithstanding the waiver re-
quirements contained in this section, fur-
nishing the requester with copies of such
clippings, articles, or other items at the rea-
sonable standard charge for duplication es-
tablished in the agency's fee schedule.".
CLARIFY EXEMPTIONS
SEC. 7. So much of section 552(b) of title 5,
United States Code, as precedes paragraph
(1) thereof is amended to read as follows:
"(b) The compulsory disclosure require-
ments of this section do not apply to mat-
ters that are-".
MANUALS AND EXAMINATION MATERIALS
SEC. 8. Section 552(b)(2) of title 5, United
States Code, is amended by inserting a
comma in lieu of the semicolon at the end
thereof and adding the following: "including
such materials as (A) manuals and instruc-
tions to investigators, inspectors, auditors,
or negotiators, to the extent that disclosure
of such manuals and instructions could rea-
sonably be expected to jeopardize investiga-
tions, inspections, audits, or negotiations,
and (B) examination material used solely to
determine individual qualifictions for em-
ployment, promotion, or licensing to the
extent that disclosure could reasonably be
expected to compromise the objectivity or
fairness of the examination process;".
PERSONAL PRIVACY
SEC. 9. Section 552(b)(6) of title 5, United
States Code, is amended to read as follows:
"(6) records or information concerning in-
dividuals, including compilations or lists of
names and addresses that could be used for
solicitation purposes, the release of which
could reasonably be expected to constitute a
clearly unwarranted invasion of personal
privacy;".
LAW ENFORCEMENT
SEC. 10. (a) Section 552(b)(7) of title 5,
United States Code, is amended to read as
follows:
"(7) records or information compiled for
law enforcement purposes, but only to the
extent that the production of such law en-
forcement records or information (A) could
reasonably be expected to interfere with en-
forcement proceedings, (B) would deprive a
person of a right to a fair trial or an impar-
tial adjudication, (C) could reasonably be
expected to constitute an unwarranted inva-
sion of personal privacy, (D) could reason-
ably be expected to disclose the identity of a
confidential source, including a State, local,
or foreign agency or authority or any pri-
vate institution which furnished informa-
tion on a confidential basis, and, in the case
of a record or information compiled by
criminal law enforcement authority in the
course of a criminal investigation or by an
agency conducting a lawful national secu-
rity intelligence investigation information
furnished by a confidential source, (E)
would disclose techniques and procedures
for law enforcement investigations or pros-
ecutions, or would disclose guidelines for
law enforcement investigations or prosecu-
tions if such disclosure could reasonably be
expected to risk circumvention of the law,
or (F) could reasonably be expected to en-
danger the life or physical safety of any
natural person;".
(b) Section 552(a) of title 5, United States
Code, is amended by adding after paragraph
(8) thereof the following new paragraph:
"(9) Nothing in this section shall be
deemed applicable in any way to the inform-
ant records maintained by a law enforce-
ment agency under an informant's name or
personal identifier, whenever access to such
records is sought by a third party according
to the informant's name or personal identi-
fier.".
ADDITIONAL EXEMPTIONS
SEC. 11. Section 552(b) of title 5, United
States Code, is amended by striking out "or"
at the end of paragraph (8), by striking out
the period at the end of paragraph (9) and
inserting in lieu thereof a "; or", and by
adding the following new paragraph after
paragraph (9):
"(10) records or information maintained
or originated by the Secret Service In con-
nection with its protective functions to the
extent that the production of such records
or information could reasonably be expect-
ed to adversely affect the Service's ability to
perform its protective functions.".
REASONABLY SEGREGABLE
SEC. 12. Section 552(b) of title 5, United
States Code, is amended by adding after the
last sentence thereof the following: "In de-
termining which portions are resonably seg-
regable in the case of records containing
material covered by paragraph (1) or (7) of
this subsection, the agency may consider
whether the disclosure of particular infor-
mation would, in the context of other infor-
mation available to the requester, cause the
harm specified in such paragraph.".
PROPER REQUESTS
SEC. 13. Section 552(a)(3) of title 5, United
States Code, is amended to read as follows:
"(3)(A) Except with respect to the records
made available under paragraphs (1) and (2)
of this subsection, each agency, upon any
request by a requester who is a United
States person for records which (I) reason-
ably describes such records and (ii) is made
in accordance with published rules stating
the time, place, fees (if any), and procedures
to be followed, shall make the records
promptly available to the requester.
"(B) The time limits- prescribed in.subpar-
agraph (A) of paragraph 6 shall be tolled
whenever the requester (or any. person on
whose behalf the request is made) is a party
to any ongoing judicial proceeding or ad-
ministrative adjudication in which the Gov-
ernment is also a party and may be request-
ed to produce the records sought. Nothing
in this subparagraph shall be construed to
bar (I) a request for any records which are
not related to the subject matter of such
pending proceeding, or (ii) a request for any
records which have been denied to a party
in the course of a judicial proceeding or ad-
ministrative adjudication that is no longer
pending.
"(C) The Attorney General, in accordance
with public rulemaking procedures set forth
in section 553 of this title; may by regula-
tion prescribe such limitations or conditions
on the extent to which and on the circum-
stances or manner in which records request-
ed under this paragraph or under section
552a of this title shall be made available to
requesters who are persons imprisoned
under sentence for a felony under Federal
or State law or who are reasonably believed
to be requesting records on behalf of such
persons, as he finds to be (I) appropriate in
the interests of law enforcement, or foreign
relations or national defense, or of the effi-
cient administration of this section, and (ii)
not in derogation of the public information
purposes of this section.".
ORGANIZED CRIME
SEC. 14. Section 552 of title 5, United
States Code, is amended by adding a new
subsection (c) as follows and redesignating
the current subsections (c), (d), and (e) as
(d), (e), and (f) respectively.
"(c) Nothing in this section shall be
deemed applicable to documents compiled in
any lawful investigation of organized crime,
designated by the Attorney General for the
purposes of this subsection and conducted
by a criminal law enforcement authority for
law enforcement purposes, if the requested
document was first generated or acquired by
such law enforcement authority within five
years of the date of the request, except
where the agency determines pursuant to
regulations promulgated by the Attorney
General that there is an overriding public
interest in earlier disclosure or in longer ex-
clusion not to exceed three years. Notwith-
standing any other provision of law, no doc-
ument described in the preceding sentence
may be destroyed or otherwise disposed of
until the document is available for disclo-
sure in accordance with subsections (a) and
(b) of this section for a period of not less .
than ten years.".
REPORTING UNIFORMITY
SEC. 15. Section 552(e) of title 5, United
States Code (as redesignated), is amended-
(1) by striking out "calendar" the second
and fourth places it appears and inserting in
lieu thereof "fiscal";
(2) by striking out "March" each place it
appears and inserting In lieu thereof "De-
cember";
(3) in paragraph (4), by striking out "sub-
section (a)(4)(F)" and inserting in lieu
thereof "subsection (a)(4)(I)"; and
(4) in the next to last sentence, by striking
out "subsections (a)(4) (E), (F), and (G)"
and inserting in lieu thereof "subsections
(a)(4) (H), (I), and (J)".
DEFINITIONS
SEC. 16. Section 552(f) of title 5, United
States Code (as redesignated), is amended to
read as follows:
"(f) For purposes of this section-
"(1) 'agency' means any executive depart-
ment, military department, Government
corporation, Government-controlled corpo-
ration, or other establishment in the execu-
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
tive branch of the Government (including
the Executive Office of the President), or
any independent regulatory agency;
"(2) 'submitter' means any person who
has submitted to an agency (other than an
intelligence agency), or provided an agency
access to, trade secrets, or commercial, re-
search, or financial information (other than
personal financial information) in which
the person has a commercial or proprietary
interest;
"(3) 'requester' means any person who
makes or causes to be made, or on whose
behalf is made, a proper request for disclo-
sure of records under subsection (a);
"(4) 'United States person' means a citizen
of the United States or an alien lawfully ad-
mitted for permanent residence (as defined
in section 101(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(20)), an
unincorporated association a substantial
number of members of which are citizens of
the United States or aliens lawfully ad-
mitted for permanent residence, or a corpo-
ration which is incorporated in the United
States, but does not include a corporation or
an association that is a foreign power, as de-
fined in section 101(a) of the Foreign Intelli-
gence Surveillance Act of 1978 (50 U.S.C.
1801(a));
"(5) 'working days' means every day ex-
cluding Saturdays, Sundays, and Federal
legal holidays; and
"(6) 'organized crime' means those struc-
tured and disciplined associations of individ-
uals or of groups of individuals who are as-
sociated for the purpose of obtaining mone-
tary or commercial gains or profits, wholly
or in part by illegal means, while generally
seeking to protect and promote their activi-
ties through a pattern of graft or corrup-
tion, and whose associations generally ex-
hibits the following characteristics:
"(A) their illegal activities are conspirator-
ial,
"(B) in at least part of their activities,
they commit acts of violence or other acts
which are likely to intimidate,
"(C) they conduct their activities in a me-
thodical or systematic and in a secret fash-
ion,
"(D) they insulate their leadership from
direct involvement in illegal activities by
their organizational structure,
"(E) they attempt to gain influence in
government, politics, and commerce
through corruption, graft, and illegitimate
means, and
"(F) they engage in patently illegal enter-
prises such as dealing in drugs, gambling,
loan-sharking, labor racketeering, or the in-
vestment of illegally obtained funds in le-
gitimate businesses.".
PUBLICATION OF EXEMPTION 3 STATUTES
SEC. 17. Section 552 of title 5, United
States Code, is amended by adding a new
subsection (g) as follows:
"(g) Within two hundred and seventy days
of the date of the enactment of this subsec-
tion, any agency which relies or intends to
rely on any statute which was enacted prior
to the date of enactment of this subsection,
or during the thirty-day period after such
date to withhold information under subsec-
tion (b)(3) of this section, shall cause to be
published in the Federal Register a list of
all such statutes and a description of the
scope of the information covered. The Jus-
tice Department shall also publish a final
compilation of all such listings in the Feder-
al Register upon the completion of the two-
hundred-and-seventy-day period described
in the preceding sentence. No agency may
rely, after two hundred and seventy days
after the date of enactment of this subsec-
tion, on any such statute not listed in deny-
ing a request. Nothing in this subsection
shall affect existing rights of any party
other than an agency.".
Mr. BAKER. Mr. President, I ask
unanimous consent that the amend-
ments be considered and agreed to en
bloc. .
The PRESIDING OFFICER. With-
out objection, the amendments are
considered and agreed to en bloc.
AMENDMENT NO. 2746
(Purpose: To modify the provisions regard-
ing fees and additional exemptions under
the Freedom of Information Act)
Mr. BAKER. Mr. President, I send
to the desk an amendment on behalf
of the Senator from Utah (Mr. HATCH)
and the Senator from Vermont (Mr.
LEAHY) and ask for its immediate con-
sideration.
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Tennessee (Mr. BAKER),
on behalf of the Senator from Utah (Mr.
HATCH) and the Senator from Vermont (Mr.
LEAHY), proposes an amendment numbered
2746.
Mr. BAKER. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
On page 3, line 10, strike out "or royalties,
or both".
On page 16, line 16, strike out "semicolon"
and insert in lieu thereof "'; or' ".
On page 16, line 17, strike out "para-
graphs" and insert in lieu thereof "para-
graph".
On page 16, strike out lines 18 through 24.
On page 17, line 1, strike out "(11)" and
insert in lieu thereof "(10)".
Beginning on page 20, line 15, strike out
all through page 21, line 2.
On page 21, line 4, strike out "17" and
insert in lieu thereof "16".
On page 23, line 12, strike out "18" and
insert in lieu thereof "17".
Mr. HATCH. Mr. President, the
amendment which Iam offering today
accomplishes two things: it deletes the
proposed 10th exemption from the bill
and it clarifies that any fair value fees
for commercially valuable technoligi-
cal information generated by the Gov-
ernment are not to be assessed as
royality fees.
S. 774 contained a new exemption,
(b)(10), which permitted Federal agen-
cies to withhold release of certain
technical data subject to export con-
trols. Our committee heard testimony
from the administration regarding the
need for this exemption. Foreign gov-
ernments and foreign competitors of
U.S. companies are able to obtain very
valuable unclassified technical infor-
mation simply by submitting an FOIA
request to the Federal agencies that
have paid to have the data developed.
In fact, cottage industries have sprung
up to systematically obtain and cata-
log such technical data, which they
then market throughout the world. It
is my understanding that one of these
data brokers is suing the Department
of Defense right now under the FOIA
S 1797
to obtain technical data relating to vir-
tually all of DOD's procurement activ-
ities.
Fortunately, since the committee re-
ported S. 774, legislation has been en-
acted which covers just such situations
at DOD. This legislation permits the
Secretary of Defense to withhold
export-controlled technical data with
military or space application that is in
the possession or control of the Secre-
tary of Defense. Enactment of this
provision, as part of the DOD authori-
zation bill, addresses a major problem
area at which the (b)(10) exemption
was directed.
There remain other areas with the
potential of creating a problem, for in-
stance, technical data with military or
space application in the possession of
NASA. In light of time constraints on
this bill, it would be wisest to pursue
other potential problem areas at an-
other time. Accordingly, with a major
part of the problem addressed by the
proposed 10th exemption already en-
acted, it is the intent of this amend-
ment to defer other concerns in this
technical data area until another time.
The other aspect of this amendment
.deals with the provision authorizing
the assessment of fair value fees in the
case of any request for commercially
valuable technological information
which was generated or procured by
the Government at substantial cost to
the public. This provision is intended
to carry out the policy set forth in
user fees statutes (see, e.g., 31 U.S.C.
9701) and is not intended to allow the
Government to claim copyright rights
in this information. By striking the
word "royalty" in this provision, fees
will be assessed on the basis of the
cost to the taxpayer to generate or
procure the information, rather than
on the basis of any potential value the
information may hold in the market-
place. The former kind of assessment
is a user fee, which recovers the tax-
payer's cost, the later is a derivative of
copyright law. This amendment will
clarify that this provision is not de-
signed to create a Government copy-
right, but a form of cost recovery.
With these amendments in place, I
am enthusiastic to encourage the early
passage of this bill.
Mr. President, at the outset of
Senate consideration of S. 774, the
Freedom of Information Reform Act, I
would like to commend those members
of the Judiciary Committee who have
played a key role in the passage of this
legislation. This allows me once again
to praise the chairman of the Judici-
ary Committee and commend his dedi-
cation to improving the tools of our
law enforcement community. In par-
ticular, however, I wish to express my
deep appreciation to Senator PAT
LEAHY. Without his tireless and inde-
fatiguable efforts, this bill could not
be passing the Senate today. This bill
garnered the unanimous vote of the
Judiciary Committee because Senator
LEAHY was dedicated to remedying the
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S 1798
V
CONGRESSIONAI. RECORD - SENATE
evident problems FOIA has created in
the areas addressed by this bill. At the
same time, he diligently insured that
the basic strengths of the Freedom of
Information Act were not compro-
mised by these amendments. He de-
serves great credit for the succesful
balance struck by this bill.
Other Senators were also instrumen-
tal in the progress of this bill. Senator
GRASSLEY, who also sits on the Consti-
tution Subcommittee, was an impor-
tant participant in the negotiations on
this legislation, as was Senator DECON-
CINI, the ranking member of the sub-
committee. Without their timely par-
ticipation, I doubt we could be on the
floor today. Other Senators were also
significant in this process and I thank
them all.
With that introduction of apprecia-
tion, I would now like to address the
process and provisions of S. 774.
Two years ago the Senate Constitu-
tion Subcommittee undertook the
most exhaustive examination of the
Freedom of Information Act (FOIA)
in the act's 17-year history. In the in-
tervening period, now spanning two
Congresses; the committee has held 9
hearings and entertained over 60
expert witnesses with the goal of
drafting a bill that will improve the
act without compromising its mission
of providing our citizenry with a tool
to learn about Federal Government
activities. S. 774, the successor to S.
1730 in the 97th Congress, has now re-
ceived the unanimous approval of the
committee in two Congresses as an in-
dication of the success of the bill in
amending FOIA's most glaring weak-
nesses without compromising its vital
strengths. In short, this bill will serve
to correct flaws in the most important
component of our Nation's informa-
tion policy, a policy without peers
among other nations of the world.
My presentation will briefly discuss
the serious considerations that guided
the Senate Judiciary Committee's
unanimous adoption of the Freedom
of Information Reform Act, S. 774.
During the committee's comprehen-
sive oversight of FOIA, the witnesses
expressed a warm appreciation for the
policy of openness conveyed by FOIA.
The witnesses also produced ample
evidence, however, that FOIA has not
always operated to produce a more ef-
ficient and more responsive Govern-
ment. In those problem areas, the
committee has attempted to correct
the weakness while maintaining the
beneficial policy.
LAW ENFORCEMENT
For example, FOIA has at times op-
erated to jeopardize the confidential-
ity of law enforcement informants and
investigations. This verifies the find-
ings of the Senate Judiciary Subcom-
mittee on criminal law in 1978:
It can safely be said that none [of the
sponsors of FOIAI foresaw the host of diffi-
culties the legislation would create for the
law,enforcement community, nor did they
foresee the utilization that would be made
of the act by organized crime and other
criminal elements or the damage it would do
to the personal security of individual citi-
zens * * * Informants are rapidly becoming
an extinct species because of fear that their
identities will be revealed in response to a
FOIA request.
In that same year the General Ac-
counting Office released a study citing
49 instances of potential informants
refusing to cooperate with law en-
forcement authorities due to fear that
FOIA could lead to disclosure of their
identities. In 1979, FBI Director Web-
ster supplied documentation of over
100 instances of FOIA interference
with law enforcement investigations or
informants. In 1981 his list was ex-
panded to 204 examples. In fact, five
different reports studying the impact
of FOIA have concluded that the act
has harmed the ability of law enforce-
ment officers to enlist informants and
carry out confidential investigations.
Among these, the Attorney General's
1981 Task Force on Violent Crime
found that FOIA should be amended
because it is used by lawbreakers to
evade criminal investigation or to re-
taliate against informants. A 1982
Drug Enforcement Administration
study documented that 14 percent of
DEA's investigations were aborted or
significantly compromised by FOIA-re-
lated problems. Based on evidence of
this charter, the committee undertook
numerous changes in the seventh ex-
emption to enhance those specific pro-
tections as well as the addition of new
provisions to FOIA designed to protect
law enforcement informants and inves-
tigations. For example, in the particu-
larly sensitive area of organized crime
investigations, the committee bill
allows for an exclusion from the provi-
sions of FOIA any record generated
within 5 years of a FOIA request.
LEGISLATIVE BACKGROUND
The final version of exemption 7 of
the Freedom of Information Act of
1967, which exempted "investigatory
files compiled for law enforcement
purposes except to the extent availa-
ble by law to a party other than an
agency" '(Public Law 90-23 (1967) ),
represented a compromise between a
number of opposing viewpoints. The
original Senate proposal read "investi-
gatory files compiled for law enforce-
ment purposes except to the extent
they are by law available to a private
party," 112 CONGRESSIONAL RECORD
11768 (July 31, 1964), and in the com-
mentary to the authoritative 1965
Senate report, exempt files are de-
scribed as "files prepared by govern-
ment agencies to prosecute law viola-
tors" the disclosure of which could
harm the position of the government
in court. (S. Rep. 813, 89th Congress,
1st sess. 9 (1965).) The House general-
ly took a broader view of the exemp-
tion. Under the House report, (b)(7)
would have covered "all kinds of laws,
labor and security laws as well as
criminal laws" (H. Rep. 1497, 89th
Congress 2d sess. 11 (1966)), and also
include files prepared in connection
February 27, 1.384
with related government litigation and
adjudicative proceedings.
While the final version of the 1966
exemption was the product of a com-
promise between conflicting view-
points, it lasted from- 1966 through
1974. Nonetheless, critics of the then
existing exemption 7, led by Senator
Phillip Hart were able to mount a
successful drive on the floor of the
Senate to amend the exemption. Their
efforts limited coverage of (b)(7) to
"investigatory records compiled for
law enforcement purposes" only if the
production of these records would
result in one of the enumerated dan-
gers provided by the amendment.'4
During the course of the Senate's
consideration of the amendment of
(b)(7), Senators Hart and KENNEDY
spoke of the amendment as but a
minor revision, but others such as Sen-
ator Hruska voiced concern that the
broad disclosure of law enforcement
files would cause FBI sources to "dry
up and become fewer and fewer as
time goes on" 120 CONGRESSIONAL
RECORD S. 9333-a prophecy fulfilled
according to testimony in this commit-
tee's 1981 hearings. .
The Senate passed the Hart amend-
ment, Senator Hruska's objections
notwithstanding, by a margin of 51-33.
The conference committee adopted
the amendment but added a clause
protecting "confidential information
furnished only by the confidential
source" * * ? 15 and also lowered the
agency's burden of proof on privacy
invasions from a showing that the pri-
vacy invasion was "clearly unwarrant-
ed" to a facially more lenient "unwar-
ranted" standard.16
President Ford vetoed the FOIA
amendments arguing that they would
cause dilution of law enforcement ac-
tivities but his veto was overridden in
both Houses of Congress. Interesting-
ly, an expert in the field of Federal in-
formation disclosure has noted, "The
veto message was correct, in retro-
spect, and the burden on law enforce-
ment agencies was a severe one; but
the societal and political judgment in
favor of openness overcame the practi-
cal problems of the (b)(7) amend-
ment." 17
"5 U.S.C. ? 552(b)(7) investigatory records com-
piled for law enforcement purposes, but only to the
extent that the production of such records would
(A) interfere with enforcement proceedings, (B) de-
prive a person of a right to a fair trial or an impar-
tial adjudication, (C) constitute an unwarranted in-
vasion 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 intelli-
gence investigation, confidential information fur-
nished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) en-
danger the life or physical safety of law enforce-
ment personnel. .
C.F. 5 U.S.C. ? 552(b)(7)(D).
?See 5 U.S.C. ? 552(b)(7)(C).
"James T. O'Reilly, "Federal Information Dis-
closure: Procedures, Forms, and the Law," 17-17
(1977).
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February 27, 1984
CONGRESSIONAL RECORD - SENATE S 1799
Exemption 7, as revised by the 1974
amendments, has also become the sub-
ject of increasing bi-partisan criticism
and dissatisfaction. For example the
"Report of the Subcommittee on
Criminal Laws and Procedures on the
Erosion of Law Enforcement Intelli-
gence and its Impact On the Public Se-
curity" stated that:
The sponsors of the FOIA wanted to rein-
force the citizen's right to know; ' ' * they
wanted to put an end to the abuses perpe-
trated in the name of government secrecy -
and executive privilege. It can safely be said
that none of them foresaw the host of diffi-
culties the legislation would create for the
law enforcement community, nor did they
foresee the utilization of the Act that would
be made by organized crime and other crimi-
nal elements or the damage it would do to
the personal security of the individual citi-
zen. (S. Rep. 51, 95h Cong. 2nd Sess.).
Though Congress overrode President
Ford's veto, time has proven the legiti-
macy of the President's concerns
about the 1974 FOIA amendments.
These comments are indicative of
the concerns that have prompted the
reform of the FOIA and reflective of
the broad based support particularly
for reform of (b)(7). Much of the testi-
mony before the Constitution Sub-
committee on the FOIA Reform Act
can be characterized by a central and
unifying theme; namely, that the re-
forms of 1974, while in many respects
beneficial and consistent with the
spirit of disclosure that has character-
ized the FOIA, have also resulted in
unforeseen and untoward conse-
quences which threaten society's inter-
est in effective law enforcement and
other governmental functions. The
end product of these problems is un-
fortunately often an overemphasis
upon disclosure at the expense of the
confidentiality necessary to the effi-
cient operation of some aspects of gov-
ernment. Exemption 7, which deals
with law enforcement, it representa-
tive of these problems. In fact, (b)(7)
provides an especially poignant re-
minder of the dangers that may ac-
company a blind emphasis on disclo-
sure because it entails the stark reality
of danger to the life of an informant
or a suspected informant whose identi-
ty may be revealed by piecing together
released FBI files. Is
One commentator presciently envis-
aged that the 1974 amendment could
result in difficulties if the courts inter-
preted the changes in (b)(7) as me-
chanically as they have applied the
1966 language.19 Indeed, this has often
been the result and the intent of the
framers to maintain effective law en-
forcement has been ignored by some
courts in the exaltation of form over
substance.
Section 11(a) of this bill would make
a series of amendments to Exemption
7 of the FOIA in an effort to remedy
the shortcomings which have become
manifest. The proposed amendments
"O'Reilly. P. 17-4.
Comment, "Amendment of the Seventh Ex-
emption Under the Freedom of Information Act,"
William and Mary Law Review 697 1975).
are designed to address three major
concerns that have arisen from the
present language of this exemption:
(1) the fear among confidential
sources that their identities will be re-
vealed through Freedom of Informa-
tion Act disclosures, and the resulting
difficulties that law enforcement au-
thorities have encountered in enlisting
and using confidential sources; (2) the
concern that sensitive law enforce-
ment information will be disclosed to
law- enforcement suspects by Freedom
of Information Act disclosures, there-
by allowing criminals to avoid detec-
tion or-prosecution; and (3) the con-
cern that Freedom of Information Act
disclosure will reveal law enforcement
guidelines to suspects. These concerns
were highlighted by the testimony of
FBI Director Webster before the sub-
committee:
The violence and risk of reprisal in these
areas are sufficiently great to increase the
impact on informants whose perception is
that we may not be able to protect the iden-
tity. ? ? * the FOIA permits the ' FBI and
other law enforcement agencies to withhold
informant's reports, but other information
in the file can be withheld only if we can
demonstrate it would identify a source.
? ? ? Applying the exemption necessitates
that human beings make Judgment calls.
? ? ? Thus, it is impossible to conclude with
certainty that we are always correct. The
lack of investigative activity in a particular
place within a certain time frame announces
we have no knowledge of what transpired
there. Moreover, information that is re-
leased can form a blueprint of the Bureau's
investigation and techniques. When it is
necessary to reinstitdte the investigation,
the target is forewarned and forearmed.
FOIA hearings, supra statement of William
H. Webster.
Director Webster's is not the only
persuasive voice commenting on this
subject. In 1977, the Director of the
Secret Service, Mr. Stuart Knight, tes-
tified that he had recommended that
President Jimmy Carter refrain from
traveling to two cities within the
United States, because the Service did
not have adequate information to
guarantee his safety. In our 1981 hear-
ings, the Service testified that' condi-
tions have deteriorated even further.
The Attorney General's Task Force on
Violent Crime concluded that FOIA
must be amended because it is used by
lawbreakers to "evade criminal investi-
gation or to retaliate against inform-
ants." Citing law enforcement prob-
lems, syndicated columnist James J.
Kilpatrick said: "Newsmen love the
FOIA. But sad to say, our law is being
sadly abused." "Freedom of Informa-
tion for Whom?".(Wash. Star, July 25,
1981). Reader's Digest commented:
"Congress passed FOIA with best of
intent, but criminals * ? $ have per-
verted that intent to hobble the work
of our law enforcement agencies." Pro-
fessor Allen Weinstein, now on the ed-
itorial board of the Washington Post,
wrote: "The big users of the act aren't
journalist and public-interest groups.
They are businessmen and criminals
who are driving up the cost-and
adding to the security risks-of the
public's right to know." "Open Season
on Open Government," (New York
Times Magazine, June 10, 1979). The
Drug Enforcement Administration re-
leased a study in 1982 concluding that
14 percent of the Agency's drug inves-
tigations were jeopardized or signifi-
cantly compromised by FOIA releases.
Mr. Robert Saloschin, former Director
of the Office of Information Law and
Policy in the Carter administration,
stated that "there is a real need for
careful legislative attention and appro-
priate action on FOIA's effects upon
law enforcement."
Although such a catalog of recogni-
tion of FOIA's flaws relative to law en-
forcement could go on indefinitely,
just a few more observations will serve
to document the wide spread concern
that cuts across all disciplines. Deputy
Attorney General Edward C. Schmults
states that "targets of FBI investiga-
tions use requests under the act in an
attempt to discover the idenity of FBI
sources. "Viewpoint", U.S. Chamber of
Commerce reports. The Drug Enforce-
ment Administration issued a study
documenting that 60 percent of all
FOIA requests received by the Agency
came from imprisoned felons or known
drug traffickers. Mr. Geoff Stewart,
Special Counsel for the Department of
Justice, noted that:
Year after year, the law enforcement com-
munity has presented evidence to Congress
and the general public that the FOIA was
being used by criminals, terrorists, and hos-
tile foreign intelligence agencies to identify
the government's confidential sources and
thwart law enforcement investigations.
However, in response to this very real prob-
lem, the media and similar interest groups
who have sometimes benefitted from ex-
panded disclosure of sensitive government
files responded only with a cynical heads-I-
win-tails-you-lose argument: when the FBI
publicly disclosed that the FOIA was per-
mitting criminals to identify confidential
sources, the Bureau was accused of needless-
ly frightening informants and potential in-
formants in an effort to sabotage the act.
But when the FBI tried to minimize in
public the adverse. impact the FOIA was
having, the media claimed that this very si-
lence showed that the FBI could point to no
factual evidence supporting a change in the
law.
Even the General Accounting Office
in a 1978 study and the Department of
Treasury in a 1981 study substantiated
these claims. Management Review of
Performance of Department of Treas-
ury, in connection with the March 30,
1981, assassination attempt on Presi-
dent Reagan. Perhaps most persuasive
of all, however, is the unanimous vote
of this committee to significantly
revise the seventh exemption.
MOSAIC PROBLEM
A major complication with FOIA, as
discovered in the Constitution Sub-
committee hearings, is the jigsaw
puzzle of mosaic effect. Aptly named,
the effect occurs when small pieces of
,information, insignificant by them-
selves, are released and then pieced to-
gether with other previously released
information and the requester's per-
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S 1800 CONGRESSIONAL RECORD - SENATE
sonal knowledge to complete a whole
and accurate picture of information
that should be confidential and pro-
tected, such as an informant's identity.
The result is, of course, that informa-
tion was specifically exempted by Con-
gress actually is released. This effect
can occur with material exempted
under each one of the exemptions.
This phenomenon has particularly
egregious consequences, however, as it
relates to exemption 7.
Many courts have recognized this
effect and sought to avoid the harm
that may result from disclosure Judge
Wilkey described the possible danger
of partial disclosure in Halperin v.
Central Intelligence Agency, 629 F. 2d
144 (1980):
We must take into account, however, that
each individual piece of intelligence infor-
mation, much like a jigsaw puzzle, may aid
in piecing together other bits of information
even when the individual piece is not of ob-
vious importance in itself. Id. at 140.
The jigsaw puzzle effect can occur
anytime there is material withheld
under one of the exemptions. The
courts have recognized this effect and
have made allowance for it by requir-
ing less disclosure. The committee rec-
ognizes and encourages the courts to
continue the responsible application of
this principal.
Another court also recognized the
mosaic effect the possible resultant
danger in an exemption (b)(1) case. In
Hayden against National Security
Agencys Tom Hayden and Jane Fonda
each requested copies of all the files
pertaining to them that had been com-
piled by the NSA. The NSA released a
number of documents but claimed
that certain documents contained in-
formation that had been obtained
from foreign electromagnetic signals.
The court found that withholding this
information was justified under ex-
emption (b)(1). The court also found
that the NSA could not be compelled
to disclose information obtained from
channels that were not confidential
because disclosure of this information
might reveal sensitive information in-
advertently sent over those channels.
As stated by the court:
[W]ith respect to NSA's signal intelli-
gence operations, the sensitive material
comprises more than just the substantive
content of messages. Harm could follow
from the disclosure of any material that
might help to identity the communications
intercepted by NSA, such as information
about date, time, origin, or manner of trans-
mission or receipt Id. at 1385.
Though the substantive information
in the records was disclosable, the
court recognized that the mere fact
that the NSA had been monitoring
those channels could, if the informa-
tion were read by one familiar with in-
telligence operations, reveal more
than should be safely revealed about
the NSA's activities.
Moreover, a knowledgable requester
may get a bit of information that is
the key to unlocking the meaning of
secrets obtained through other FOIA
requests or independent of FOIA. This
effect was also noted in Malizia v.
United States Department of Justice,
519 F. Supp. 338 (1981). The court
held that "since disclosing dates of in-
terviews might well permit those fa-
miliar with the events under investiga-
tion to piece together the identity of
sources ? ? * the date may be with-
held." Id. at 351. Thus the court pro-
tected the informants and afforded
the amount of confidentiality required
to encourage other informants to
come forth.
The. Federal agencies called to re-
lease confidential material are acutely
aware of the dangers posed by the
mosaic effect. Robert L. Saloshin testi-
fied:
The efficiency of law enforcement de-
pends largely on cooperation in investiga-
tions by sources who have useful informa-
tion. However, because of fears of embar-
rassment, reprisals, or even loss of time,
such information will'often only be provided
to investigators if the source is guaranteed
that his identity will remain secret. FOIA
Hearings, supra.
FBI Director William Webster pre-
sented the committee with more than
204 incidents of recent refusals to pro-
vide information to the FBI because of
the possibility of public disclosure of
their identity. Id.
Release of an informant's name is
not the only way that an informant's
identity could be revealed. Surround-
ing circumstances and information re-
vealed by the informant may also dis-
close an informant's identity, especial-
ly if several files are available. William
Webster noted that convicts often re-
quest files simply to determine the
identity of informants against them:
"It's not just using one file, it's using
several documents or several people
putting their heads together to figure
out who that person could be whose
name was excised from an investiga-
tive file. Quoted in J. T. O'Reilly "Fed-
eral Information Disclosure." 9-12
(1981). Besides hindering investiga-
tions because informants are unwilling
to cooperate, disclosure of identifying
material can result in harm to inform-
ants.
The threat to the security of confi-
dential matters posed by the jigsaw
puzzle effect is neither a judicial cre-
ation or an agency fable. It is, in fact,
a well known system that is used daily
to uncover highly secret information.
Gary Bowdach, who passed a lie detec-
tor test about his testimony, explained
the way the criminal world applies the
mosaic principles:
I would like to make it very clear that if
they deleted all the names where you
couldn't see anything about it, just details
of the report could also reveal the identity
of the informant. If I know that I had a
meeting with you on such and such a date,
and in a certain restaurant in Miami, and I
got a report a year later and it said a confi-
dential informant who met with Bowdach at
such and such restaurant on such and such
a date, revealed to us that such and such
I've just got to try to think, remember
who I had a meeting with at that time and
that place and I come up with you.
February 27, 19841
So they could delete it, the way they are
supposed to, but just details of the report
itself can reveal to me the name of the in-
formant.
Hearings, on Organized Crime Activities
Before the Permanent Subcommittee on In-
vestigations of Senate Committee on Gov-
ernment Affairs, 95 Cong., 2d sess., 1978.
Mr. Bowdach also noted that this
practice is widespread and prevalent
with organized crime figures in pris-
ons.
It is the intention of the committee
to acknowledge and correct the jigsaw
puzzle or mosaic effect. The responsi-
ble application of this principle by the
courts and by the agencies is fully
within the scope of their discretion.
The agencies and the courts should
examine all information that is to be
released with an understanding that a
sophisticated requester, potentially an
organized crime group, could sift
through released documents with com-
puters, and extract information to
defeat the purpose of the Act's exemp-
tions.
THRESHOLD MODIFICATION
Under present law, records are eligi-
ble for the Act under exemption 7
only if they are "investigatory records
complied for law enforcement pur-
poses." Some courts have construed
this 'theshold requirement strictly,
holding that records prepared for law
enforcement purposes are not within
the scope of exemption 7 if they are
not literally "investigatory" in nature.
For example, in Cox v. Department of
Justice, 576 F.2d 1302, 1310 (8th Cir.
1978), the court held that the mere
fact that a staff manual of a law en-
forcement agency deals with investiga-
tive techniques and procedures does
not place that manual within the
scope of (b)(7) because the record was
not compiled in the course of a specific
investigation. 20 This undue emphasis
on the literal meaning of the word "in-
vestigatory" is, in the committee's
view, contrary to the overall purpose
of exemption 7. The bill would there-
fore eliminate the requirement that
records must be "investigatory," and
would apply exemption 7 generally to
all "records or information" compiled
for law enforcement purposes. This
language would make additional cate-
gories of documents besides "investiga-'
tory records" eligible for protection
under exemption 7, such as various
types of background information, law
enforcement manuals, procedures, and
guidelines. This more general thresh-
old language also would properly focus
the inquiry not on the nature of the
records in which sensitive information
happens to be contained, but on the
substantive law enforcement interests
which exemption 7 was intended to
protect.
The change eliminates the outland- -
ish result in a case where the request-
ed information would "endanger the
20 See for example Nationwide Mutual Insurance
Co. v. Friedman, 451 F. Supp. 736, 746 (D. Md.
1978).
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CONGRESSIONAL RECORD - SENATE S 1801
life ' ' ' of law enforcement person-'
nel" but would not be covered by
(b)(7) because it is not found in a
record generated during an. investiga-
tion.
The following language in a Senate
committee report illustrates the prob-
lem that inheres in the present "inves-
tigatory" threshold:
The (b)(7)(D) exemption allow us to with-
hold from disclosure any mention of these
techniques or devices, provided that the ref-
erence to the device or technique is con-
tained in an investigative file.
However, many of these techniques and
devices were developed through the use of
research contracts. The research files and
the data contained therein relating to the
development and use of the techniques or
device, is not an investigative file.
Therefore, although we will argue that
the intent of Congress was to protect from
disclosure these devices and techniques, the
courts have shown a reluctance to accept
"equity" arguments and claim our remedy is
with Congress. -
We have experienced similar problems re-
garding material we utilize in our training
programs.
Any criminal who could gain access to the
course material we provide during our train-
ing programs would have a decided advan-
tage in avoiding apprehension. and punish-
ment.
We have received several requests for this
type of material and we are unsure of abili-
ty to defend against its disclosure due to
lack of specific language in the Act which
protect it. Senate report, erosion of law en-
forcement, supra, at 60.
The bill would broaden the scope of
exemption 7 by extending the protec-
tion for "records" to "records and in-
formation." This language was a par-
ticular point of controversy in the Su-
preme Court's recent decision in Fed-
eral Bureau-of Investigation v. Abram-
son, to U.S.L.W. 4530 (U.S. May 24,
1982) (No 80-1735), the case involved a
FOIA request for documents relating
to the FBI's transmittal to the White
House of Information concerning indi-
viduals who criticized the Nixon ad-
ministration. The Court clarified that
the material supplied to the White
House did not lose' its status as a
record when the information was ex-
tracted from an FBI record and then
recompiled for' an arguably non-law
enforcement purpose. "[O]nce it is es-
tablished that information was com-
piled pursuant to a legitimate law en-
forcement investigation and that dis-
closure of such information would lead
to one of the listed harms, in exemp-
tion 7, the information is exempt." Id.
at 4534 (emphasis added). This Su-
preme Court holding, announced fol-
lowing the committee's unanimous ap-
proval of S. 1730, the 97th Congress
version of S. 774, recognizes that Con-
gress intended to protect the substan-
tive interests listed in (b)(7) regardless
of the label put on the requested
record.
INTERFERENCE WITH LAW ENFORCEMENT
S.. 774 would also amend exemption
(b)(7)(A) to provide exemption of all
records or information which "could
reasonably be expected to interfere
with enforcement proceeding." At
present, exemption (b)(7)(A) protects
records from disclosure where disclo-
sure would. interfere with enforcement
to the act to permit premature disclo-
sure of investigative information or to
allow the targets of law enforcement
investigations to be able to use the act
to harass, obstruct, or circumvent an
investigation. See NLRB v. Robins
Tire & Rubber Co., 437 U.S. 214, 236
(1978).
At present, however, exemption 7(A)
needs to be clarified in order to pro-
tect all information pertaining to
pending investigations and to better
ensure that investigations will not be
harmed by FOIA. The present stand-
ard: has engendered no small amount
of uncertainty by requiring agencies
and courts alike to speculate on
whether not disclosure would "inter-
fere with" a pending proceeding. It is
often virtually impossible to determine
prior to the conclusion of a law en-
forcement proceeding whether the re-
lease of particular investigative
records "would" . interfere with the
Government's efforts, because it is fre-
quently difficult to know what direc-
tion the investigation will take, or
what use the target of the investiga-
tion-who is usually the requester-
might make of the information. More-
over, even the very administrative task
of responding to requests under the
current 7(A) exemption has often re-
sulted in severe disruption of enforce-
ment proceedings, since agencies have
frequently been required to create
lengthy and detailed affidavits to jus-
tify the determination that disclosure
would "interfere with" an investiga-
tion or proceeding.25
The bill would address these Con-
cerns by changing the "would" stand-
ard to "could reasonably be expected"
to interfere with enforcement proceed-
ings. As amended, exemption 7(A)
would not require an agency to show a
direct interference but only the rea-
sonable possibility of an interference.
INFORMANT PROTECTION
A mainstay of law enforcement
today is the volunteered testimony
and background information provided
to Federal agencies by confidential
sources. Major societal plagues like
narcotics, organized crime, and ex-
tremist violence can only be controlled
with adequate informant cooperation.
The tenuous link of information shar-
ing between informant and enforcer
becomes shattered, to society's grave
detriment, if Federal law enforcement
officers. cannot protect the confiden-
tiality of such sources. Indeed that
link is already in jeopardy.
The loss of potential confidential
sources and the fear of harm to
sources due to FOIA releases were two
of the most frequently voiced concerns
highlighted in testimony before the
Constitution Subcommittee. In 1978, a
9" In fact, in one case the Internal Revenue Serv-
ice was required to file a 13,000-page affidavit.
Kanter V. Internal Revenue Service, 433 F. Supp.
812 (N.D. Ill. 1977), dismissed, 478 F. Supp. 552
(N.D. Ill. 1979).
GAO study set forth 49 examples of
informants refusing to cooperate with
law enforcement authorities due to
FOIA.26 The study was not confined
to the FBI, the Drug Enforcement Ad-
ministration, the Secret Service and
other law enforcement agencies. In
1979, FBI Director Webster supplied
documentation of over 100 instances
of FOIA interference with law en-
forcement investigations or inform-
ants. In 1981, his list was expanded to
204 examples. Moreover, other more
serious cases of the abuse of FOIA by
criminal groups, terrorists, and foreign
counterintelligence agents were de-
tailed by Director Webster in a classi-
fied session before the committee. Al-
though those details cannot be re-
vealed, some of the sanitized fact pat-
terns that the Director supplied are
instructive:
A group advocating the violent overthrow
of the United States made FOIA requests to
the FBI. Although the FBI could withhold
most information in the file, it had to state
that it was withholding information to pro-
tect an informant. This confirmed the
group's suspicions that it had an informant
in its midst. This terminated the long-time
informant's effectiveness in the group and
left the FBI with no reliable way to monitor
this terrorist organization.
Following a plot to blow up power installa-
tions to protest the Panama Canal Treaty,
the leader of the plot was murdered. The
FBI obtained information from informants
about both the plot and the murder. A
FOIA request for records pertaining to the
matter, however allowed someone to write
an article that practically identified the key
informant. The informant began to receive
anonymous death threats. Finally, the in-
formant moved out of the state to escape
the threats.
A violent terrorist group has a small
group who leads the organization. That
group has been infiltrated by an informant.
Just recently the group has begun to make
FOIA requests to learn which of the group
is the informant.
The Fraternal Order of Police ex-
plained that FOIA impedes coopera-
tions between federal and state law en-
forcement officers. FOIA hearings,
supra, Mr. Gary Bowdach an admitted
murderer, and convicted racketeer, tes-
tified graphically on his use of FOIA.
Senator NUNN. Turning to the Freedom of
Information Act, what was your motivation
in filing the Freedom of Information re-
quests on your own behalf.
Mr. BOWDACH. To try to identify the in-
formants that revealed information to the
agencies.
Senator NUNN. Informants who testified
against- you?
Mr. BOWDACH. The ones that testified
against me, I knew. I was concerned about
the ones that didn't testify, the ones that
were supplying confidential information.
Senator NUNN. Why did you want to get
their names?
Mr. BOWDACH. To know who they were, to
take care of business later.
Senator NUNN. To take care of business
later on? You mean by that to murder
them?
x"Impact of the Freedom on Information, and
Privacy Acts on Law Enforcement Agencies. GAO
Report by Comptroller General, Nov. 12, 1978.
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40
S 1802 CONGRESSIONAL RECORD - SENATE
Hearings on Organized Crime Activities
before the Permanent Subcommittee on In-
vestigations of Senate Committee on Gov-
ernmental Affairs, 95th Cong., 2d Sess.,
1978. Part I, page 233.
The Senate Subcommittee on Crimi-
nal Laws found in 1977 that "Inform-
ants are rapidly becoming an extinct
species because of fear that their iden-
tities will be revealed in response to a
FOIA request." "Erosion of Law En-
forcement," supra.
The DEA recently produced a study
which established that 14 percent of
all DEA investigations were adversely
affected by FOIA to the extent that
investigations were "aborted, signifi-
cantly compromised, reduced in scope,
or required significant amounts of
extra work. " 27 The DEA study further
noted that 40 percent of all FOI re-
quests received by DEA are from pris-
oners and that a further 20 percent
are from known or suspected drug
traffickers. The Attorney General's
Task Force on Violent Crime also
made note of the deleterious effect
that FOIA has had upon potential in-
formants: "Decreases in the number of
informants have been reported; it is
believed by many that potential in-
formants do not come forward out of
fear of disclosure through FOIA re-
quests from persons they helped con-
vict." 28
An important part of the public
policy rationale for exemption 7(D) is
the protection of the confidential
source so he or she will continue as a
future informant.29 The excerpt from
subcommittee testimony and other law
enforcement data point out the need
to remedy the serious shortcomings of
the current exemption 7(D). This bill
would make several important and
needed changes to subparagraph (D)
of exemption 7 to clarify and strength-
en the existing exemption for informa-
tion that would compromise a confi-
dential source providing information
or assistance to law enforcement au-
thorities.
Exemption 7(D) presently protects
against disclosure of information that,
inter alia, "would ... disclose the
identity of a confidential source." The
proposed amendment would broaden
this exemption to include information
that "could reasonably be expected to
disclose the identity of a source." This
broadening of the exemption i:; neces-
sary because the release of informa-
tion that does not itself identify an in-
formant can, in many circumstances,
result in such identification. When
viewed in context with other informa-
tion known to a requester, pieces of in-
formation obtained through the Act
that do not appear revealing on their
face may enable a requester to piece
together facts that reveal the identity
of an informant.
"The Effect of the Freedom of Information Act
on DEA Investigation," U.S. Department of Justice,
DEA Office of Planning and Evaluation 1982.
""Attorney General's Task Force on Violent
Crime." United States Department of Justice, Final
Report, Aug. 17, p. 41.
"O'Reilly, 17-43.
The proposed change is consistent
with the practical approach to source
protection established in analagous
cases. The courts have articulated the
so-called "mosaic" or "jigsaw puzzle"
approach to (b)(7)(D). In Halperin v.
Central Intelligence Agency, 629 F.2d
150 (D.C. Cir. 1980), the court denied a
requester access to CIA documents de-
tailing legal bills and fee arrangements
of private attorneys retained by the
agency who were source of intelli-
gence. Although the agency might ar-
guably have been able to demonstrate
potential harm sufficient to invoke
the "would" standard, the court held
the materials exempt because "[w]e
must take into account, however, that
each individual piece of intelligence in-
formation, much like a piece of a
jigsaw puzzle, may aid in piecing to-
gether other bits of information even
when the individual piece is not of ob-
vious importance itself." 90 Id. at 150.
The purpose of the broadening of ex-
emption 7 is to make the approach fol-
lowed in Halperin applicable to this
exemption as well.
A good indication of the very real
danger that may accompany the re-
lease of what appears on its face to be
merely innocuous information is pro-
vided by the testimony of Director
Webster:
Groups of requesters seek the identity of
government sources by collecting and care-
fully comparing the information released to
them by FBI against information . and
records within their own knowledge and
control. In addition, it can be anticipated
that in many instances prison inmates, who
make about 12 to 16 percent of our Freedom
of Information Act requests, are doing so
for the purpose of indentifying informants.
We know that in one instance an organized
crime group made a concerted effort to
identify sources through the Freedom of In-
formation Act. It must also be recognized
that hostile foreign governments, terrorist
and organized crime groups not only have
the motive to subject our releases to de-
tailed analysis, but also have the resources
to finance such an examination by knowl-
edgeable and skilled analysts.
The FBI analyst may unknowingly assist
the hostile analyst in responding to the re-
quester. Seldom can an FBI employee learn
the extent of a requester's knowledge of
dates, places and events. The person most
knowledgeable about what particular infor-
mation may lead to a source's identity is,
unfortunately for us; often times the re-
quester who is the subject of investigation.
What appears to our analysts to be innoc-
uous or harmless information may provide
the group a missing piece of the puzzle.
When the records pertain to investigations
of organizations and the members have the
opportunity to pool and compare the infor-
mation furnished to them, the danger is
magnified."
so See also, Center for National Security Studies v.
Central Intelligence Agency, No. 80-1235 (D.D.C.
1982).
3' The Freedom of Information Act Federal Law
Enforcement Implementation. Hearing before a
subcommittee of the Committee on Government
Operations, House of Representatives, 96th Cong.
1st Sess. February 1979, 61-62. (Testimony of FBI
Director William H. Webster).
February 27, 1984
Moreover, codification of the mosaic
approach would conform the terms of
the exemption more closely to the
original intent of Congress. The
author of the exemption, Senator
Hart, stated plainly:
The amendment protects without excep-
tion and without limitation the identity of
informers. It protects both the identity of
the informer and information which might
reasonably be found to lead to such disclo-
sure. 120 Cong. Rec. 17,034 (1974).
The Committee intends to carry out
Senator HART'S stated intent and rec-
ognize the "mosaic" principle with this
amendment.
The bill would also amend the lan-
guage of Exemption 7(D) to identify
more clearly the range of entities that
may be considered "confidential
sources." Under present law, foreign
governments, state and local govern-
ments or agencies and private institu-
tions have been afforded protection as
"sources." For instance, the Second
Circuit stated that "There appears to
be no reason why a law enforcement
agency ... would not come within the
plain meaning of the words confiden-
tial source. Keeney v. Federal Bureau
of Investigation, 630 F.2d 114, 117
(2nd Cir. 1980). In a similar fashion,
the District of Columbia Circuit
stated: "In view of Congress' close at-
tention to the concern that investiga-
tory functions of criminal law enforce-
ment agencies not be impeded, it
seems clear that Congress could not
have intended to draw a distinction be-
tween individual and institutional
sources of information," Lesar v.
United States Department of Justice,
636 F.2d 472, 491 (D.C. Cir. 1980).92
The bill's amendments to Exemption
7(D) would confirm this majority rule
and would provide a clear statement
on the face of the statute that institu-
tional informants are included among
the confidential sources protected by
the Act, thereby alleviating the con-
cern among some of these institutions
that law enforcement information
they provide the Federal government
might be subject to release pursuant
to a FOIA request. Because of the im-
portance of these institutions as in-
formants in the law enforcement proc-
ess, the Committee believes that they
too are entitled to express protection
on the face of the statute. Even those
instances where courts have taken a
more narrow view of the term "confi-
dential source", have occasioned judi-
cial concern about the legislative lan-
32 See also, Nix v. United States, 572 F.2d 998 (4th
Cir. 1978); Varonc Pacherp v. Federal Bureau of In-
vestigation. 456 F. Supp. 1024 (D. P.R. 1978);
Church of Scientology v. Department of Justice, 612
F.2d 417 (9th Cir. 1979); Dornau v. Federal Bureau
of Investigation. CA-81-2420 (D.D.C. 1982); Pa-
chero v. Federal Bureau of Investigation, 470 F.
Supp. 1091 (D. P.R. 1979); Dunaucy v. Webster, 519
F. Supp. 1059 (N.D. Cal. 1981); Katz v. Department
of Justice, 498 F. Supp. 177 (S.D.N.Y. 1979); Baez v.
Department of Justice, 647 F.2d 1328 D.D.C. 1980.
Founding Church of Scientology v. Regan 670 F.2d
1158, 1161-62 (1981). But, see, Ferguson v. Kelly, 455
F. Supp. 324, 326-27 (N.D. 111. 1978); Founding
Church of Scientology v. Miller, 490 F.2d 144
(D.D.C. 1980) (citing J. Clifford Wallace).
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February 27,1 1984 CONGRESSIONAL RECORD - SENATE
guage that the court has felt obliged
to construe as limiting coverage to
human sources. This is the case in the
dissent by Judge Clifford Wallace.
Church of Scientology v. Department
of Justice, 612 F.2d 417 (9th Cir. 1979)
(Wallace J. dissenting). This bill re-
sponds to Judge Wallace's concern and
logically extends the protection of
(b)(7)(D) to financial and commercial
interests.
The bill would also confirm that pri-
vate businesses come within the defini-
tion of a "confidential source." While
this issue has not generated a great
deal of case law, the weight of authori-
ty includes financial and commercial
institutions within the term "confiden-
tial source." 33
Finally, the bill would grant greater
protection to the information fur-
nished to criminal law enforcement
authorities by confidential sources.
Currently, Exemption 7(D) permits
the withholding of "confidential infor-
mation" furnished "only by a confi-
dential source" in the course of a
criminal investigation. The present
terms of the Act, if. read literally,
would appear to suggest that "non-
confidential" Information provided by
a confidential informant is not
exempt. This would be contrary to the
evident intent of Congress.34 Indeed,
any attempt to segregate "confiden-
tial" from non-confidential informa-
tion received from any informant
would be impossible since informants
could be identified from even very cir-
cumstantial information that might
appear on its fact to be nonconfiden-
tial. The bill therefore would make it
clear that all information provided by
a confidential source is exempt, by
eliminating qualifying terms that
create confusion and ambiguity with
respect to the scope of the exemption.
The apparent requirement that in-
formation must be furnished "only"
by a confidential source to be exempt
would also be eliminated by the bill to
prevent the confusion which can
result from a restrictive reading of the
existing language. Professor Antonin
Scalia, testifying before the Constitu-
tion Subcommittee, focused upon the
problem created by a restrictive read-
ing of this language:
The exemption for law enforcement inves-
tigatory records sanctions the confidential
information furnished by a confidential
source in a criminal or national security in-
vestigation, but only if the information was
"furnished only by the confidential source"
(emphasis added). Obviously any confiden-
tial information furnished by a confidential
"" Dornail v. Federal Bureau of Investigation,
CA-81-2420 (D.D.C. 1982); Dunaway v. Webster, 519
F. Supp. 1059 (N.D. Cal. 1981), Pacheco v. Federal
Bureau of Investigation, 470 F. Supp. 1091 (D. P. R.
1979).
" Senator Hart explained that under his amend-
ment an agency can provide blanket protection for
any information supplied by a confidential source"
and that "all the FBI has to do is state that the in-
formation was furnished by a confidential source
and it is exempt." Joint Committee Print. Senate
Committee on the Judiciary and House Committee
on Government Operations, Freedom of Informa-
tion Act and Amendments of 1974. (Pub. Law 3-E02,
94th Cong Ist Sess. 451 (M75).
source might serve to identify the
source . . . [a restrictive reading would
mean] that the confidential information
could be withheld from the public (or the
mob) only if the reviewer established, pre-
sumably from a review of the entire file,
that the information was not obtained from
anywhere else. That, it seems to me, is an
extraordinarily strange weighing of the
competing interests, when what rests on the
one side may be the life of the informant,
and on the other simply the general interest
in disclosure. One can conceive of many sit-
uations in which the mere fact that the in-
formation was also obtained elsewhere
would not adequately protect the identity of
the informant. Suppose, for example, that
the mob is not averse to harming both possi-
ble sources-or happens not to know that
the other source possessed the information.
FOIA, supra.
This precise problem arose in
Radowich v. United States Attorney,
501 F. Supp. 284, 288 (D. Md. 1980). In
this case, the lower court determined
that this exemption was not applicable
unless the information was available
"only" from a confidential source and
not available from another source.
This was properly reversed by the
court of appeals, which found no such
congressional intent to restrict the ex-
emption. There is not a single state-
ment in the legislative history that
suggests that Congress, by enacting
the exemption, did not intend to cast a
veil over all information furnished by
a confidential source ... irrespective
of whether the information in whole,
or in part, might have been available
from another source." Radowich v.
United States Attorney, 658 F.2d 957,
964 (4th Cir. 1981).35
The proposed amendment would
make it clear that all information pro-
vided by a confidential source is
exempt, regardless of whether it
might also have been obtained from
another source. This change would
serve to further the legislative intent
of the drafters of the 1974 amend-
ments who awkwardly phrased the ex-
emption. Senator Edward Kennedy,
who was in charge of the amendment
during the Senate debate, assured the
Senate that the only source informa-
tion that would be available would be
that complied in civil investigations.36
The courts have interpreted these
phrases in (b)(7)(D) consistently with
this intent. In Duffin v. Carlson, 636 F.
2d 709 (D.C. Cir. 1980), the court
denied a FOIA requester access to in-
formation that was provided by a con-
fidential source although some of it
was arguably not confidential because
it was supplied by other individuals
also. The Court upheld the "blanket
exemption theory" for any informa-
S 1803
DISCLOSURE OF LAW INFORCEMENT TECHNIQUES
The bill would amend Exemption
7(E) to grant broader protection to
records containing statements of law
enforcement or prosecutorial guide-
lines. At present, Exemption 7(E) pro-
tects from disclosure only those inves-
tigatory records that would disclose
"investigative techniques and proce-
dures." This language has proven in-
sufficient to protect a broad range of
sensitive law enforcement materials
from disclosure. The testimony of Di-
rector Webster is again helpful to an
understanding of the inadequacy of
(b)(7)(E):
- * ' * concern has been broadly expressed
that manuals such as an undercover agent
manual might be the subject of a FOIA dis-
closure.
We would very much like to see that these
important tools of control of our operations
be protected.
It is important that our investigative
agents e * * have this set out in writing.
' ' * These are the purposes of our manuals
and guidelines.
Recent FBI history tells us that reliance
on oral approvals and assumed inherent au-
thority contributed to some of the sad
events that have been fully chronicled.
And yet, if we provide specific investiga-
tive guides to our agents and they are avail-
able to outside requesters, the effectiveness
of our investigations and the safety of our
agents could be affected.
Our undercover special agents, for exam-
ple, on whom we are relying more and more,
need detailed guidelines and instructions, as
I have just mentioned. But the Act, as pres-
ently written, would not specifically exempt
them from disclosure to a requester.
Exemption 7 protects only investigatory
records compiled for law enforcement pur-
poses. Our manuals and guidelines, under
present definitions, do not qualify as investi-
gatory records. H. Rep. the Freedom of In-
formation Act, supra, pp. 60-62.
Case law on the subject reflects the
frequent inadequacy of (b)(7)(E) in
protecting sensitive law enforcement
information. For example, DEA was
required to release portions of its
agents manual which concerned as-
pects of the DEA's handling of confi-
dential informants and its search war-
rant procedures because the investiga-
tory threshold of (b)(7) was not met
Sladek v. Bensinger, 605 F.2d 899 (5th
Cir. 1979).34 It has also been held that
none of the exemptions of (b)(7) pre-
vent the disclosure of guidelines for
prosecutorial discretion. Jordan v.
United States Department of Justice,
591 F.2d 753 (D.C. Cir. 1978) 38 the In-
ternal Revenue Service Audit guide-
lines were also held not protected
from disclosure. Hawkes v. Internal
Revenue Service, 407 F.2d 787 (6th Cir.
1974).
and is precisely the result this bill
should effect.
"" See also Nix v. United States, 572 F.2d 998 (4th
Cir. 1978).
""Source Book: "Legislative History, Texts, and
other Documents. Freedom of Information Act and
Amendment, of 1974." Public Law 93-502, Joint
Committee Print- March 1975 at 459.
"T See also Firestone Tire and*Rubber Co. v. Cole-
man, 423 F. Supp. 1359, 1365-66 (N.D. Ohio 1976)
(guidelines for bringing tire safety investigations);
Cox v. United States Department of Justice, 576
F.2d 1302 (8th Cir. 1978).
"" A recent decision of the D.C. Circuit repudiates
the logic of Jordan but in dicta notes that the
result of Jordan would remain unchanged under
the new approach. Crocker v. Bureau of Alcohol,
Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981).
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S 1804 CONGRESSIONAL RECORD - SENATE
The bill would modify the language
of Exemption 7(E) to include "tech-
niques and procedures for law enforce-
ment investigations or prosecutions"
and to protect expressly "guidelines
for law enforcement investigations or
prosecutions if such disclosure could
reasonably be expected to risk circum-
vention of the law." This change, in
conjunction with the elimination of
the requirement that Exemption 7
apply only to "investigatory records,"
would alleviate the majority of the
problems discussed above.39 It should
be noted that the revision of 7(E) is
complemented by the proposed
amendments to Exemption 2, which
would exempt "manuals and instruc-
tions to other from disclosure if their
disclosure could reasonably be expect-
ed to jeopardize investigations."
ENDANGERMENT OF LIFE OR PHYSICAL SAFETY
The bill would expand Exemption
7(F), which, now authorizes the with-
holding of records where disclosure
would endanger the life or physical
safety only of law enforcement person-
nel. The bill would replace the words
"law enforcement personnel" with the
words "any natural person," thus ex-
tending exemption 7(F) to include
such persons as witnesses, potential
witnesses, and family members whose
personal safety is, of central impor-
tance to the law enforcement process.
In the words of Professor Scalia of
Chicago Law School:
The 1974 amendments to FOIA are a
monument to failure. Another instance of
the irrationality of the 1974 effort is the ex-
emption for information that would endan-
ger the life or physical safety of law en-
forcement personnel. Why, pray tell, only
law enforcement personnel? Why not their
spouses or children? Come to think of it,
why not anyone? FOIA hearings, supra
INFORMANT RECORDS REQUESTED BY THIRD
PARTIES
Section 10 of the bill would add a
subsection (a)(9) to the Act to address
a serious problem that has arisen for
some law enforcement agencies, par-
ticularly for the Federal Bureau of In-
vestigation, when requests have been
received for the files of named individ-
uals to see if those individuals are or
have been confidential sources. The
provision would provide that the act
shall not apply to informant records
maintained by a law enforcement
agency under an informant's name or
personal identifier, whenever access to
such records is.sought according to the
informant's name or personal identifi-
er by a third party.
Under current law, criminal organi-
zations can use the Act to attempt to
uncover suspected informants in their
midst, simply by asking for the records
of individuals whom they suspect of
being informants. In such cases, it is
not sufficient that the Federal Bureau
of Investigation could respond that it
is withholding the informant's file
under Exemption 7(D), as the very
"For example, to the extent that the rationale
of Jordan, supra, retains?any vitality in the wake of
Crooker,supra, Jordan is repudiated.
step of specifying that exemption
would compromise the source. New
subsection (a)(10) would resolve this
problem by excluding the informant
files of law enforcement agencies from
the ambit of the Act whenever those
records are requested according to the
informant's name or personal identifi-
er by a third party. In this way, the
agency could properly limit its re-
sponse to any collateral records or, if
no such other records existed, proper-
ly respond that it has no records re-
sponsive to the FOIA request.
This problem does not exist in the
context of an individual's request for
his own records (including such re-
quests made pursuant to the Privacy
Act of 1974), even when at the direc-
tion of a third party. Because an indi-
vidual remains free to modify or rede-
fine his own request at any time, he
would be free to contact the agency to
reformulate his request so as not to
cover the informant-related records.
In response to the reformulated re-
quest, the agency could truthfully give
a "no records" response without re-
sorting to subsection (a)(10).
ORGANIZED CRIME
Section 14 of the proposed bill would
serve to rectify many of the problems
which now exist with regard to FOIA
requests made by members of orga-
nized crime. The testimony of Director
Webster before the Constitution Sub-
committee highlighted the very real
dangers which accompany FOIA re-
quests by organized criminal groups
who have both the incentive and the
resources to use the act systemically-
to gather, analyze and piece together
segregated bits of information ob-
tained for agency files.
There is much evidence of the exist-
ence of sophisticated networks of orga-
nized crime FOIA requesters. For ex-
ample, organized crime members in
the Detroit area have been instructed
to submit FOIA requests to the FBI in
an effort to identify FBI informants.
In all, 38 members and associates of
the Detroit organized crime family
have made requests. "The list of re-
quests reads like a Who's Who In
Organized Crime in Detroit ' ? ?.
Through this concerted effort, the
members and associates of this family
have obtained over 12,000 pages of
FBI documents" FOIA hearings (state-
ment of William Webster), supra.
The withholding of information on
the basis of one of the enumerated ex-
ceptions can often be ineffective in
avoiding the anticipated harms that
would accompany disclosure because
invoking the exemption itself becomes
a piece of the mosaic. To' invoke
(b)(7)(D) is to tell the requester, po-
tentially a criminal seeking informants
in his illicit organization, exactly what
he may want to know-that his organi-
zation has an internal informant.
Currently the criminal element can
use the FOIA to determine whether
an investigation is being conducted.
Although exemption (b)(7)(A) allows
an agency to withhold records pertain-
ing to a pending investigation, it does
not allow an agency to deny the exist-
ence of records, thereby alerting the
requester to an ongoing investigation.
The same problem, as mentioned
above, is encountered with regard to
exemption (b)(7)(D). The intent of
which is to protect the confidentiality
of a source. The mere invocation of
the exemption and the release of ex-
cised portions of the documents may
be sufficient to reveal the source's
identity or at a minimum inform the
requester of the existence of an in-
formant in his organization. One top
organized crime chief, under investiga-
tion by the FBI and well-advised by
his attorneys, filed a FOIA request
with the FBI. He asked for informa-
tion pertaining to whether the FBI or
any other agency was conducting an
electronic surveillance of him. FOIA
hearings, supra. Any response other
than "no records" would indicate to
this sophisticated requester that he
was indeed under such surveillance.
He could adjust his activities accord-
ingly.
This enables an agency to use a "no
records" response to mitigate the
danger that information which is in-
nocuous on its face could be ultimately
harmful when considered in connec-
tion with the totality of information
which the requester possesses. Unfor-
tunately, the agency often has no way
of knowing how much the requester
knows. The dates of documents, loca-
tions reporting investigations, ' the
amount of material and even the ab-
sence of information are all meaning-
ful when compiled in the systematic
manner employed by 'organized crime.
The Freedom of Information Act
presents the potential for damage to
sensitive FBI investigations, even in
cases where no release of substantive
information is made. A requester with
an awareness of the law's provisions, a
familiarity with an agency's records
systems, and whatever personal knowl-
edge he brings to the situation, can
gain insight into FBI operations re-
gardless of his ability to procure a re-
lease of Bureau documents. For exam-
ple, knowledge that a suspected in-
formant's file has grown over a period
of time is often enough to tip off the
'sophisticated criminal that the sus-
pected informant has been talking to
law enforcement officials too often.
Because of the mosaic problem with
FOIA and the particular threat posed
by organizations with historical con-
tinuity and an institutional memory
and further because use of the exemp-
tions themselves can become a "piece
of the mosaic," simply broadening ex-
isting exemptions will not cure the
problem of organized crime, abuse of
FOIA. Accordingly, section 14 of the
proposed bill would exclude from dis-
closure all documents compiled in a
lawful investigation of organized crime
which are specifically designated by
the Attorney General for purposes of
this section. This exclusion would
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
apply to documents that were first
generated or acquired by such law en-
forcement authority within 5 years of
the date of the request, except where
the agency determines pursuant to
regulations promulgated by the Attor-
ney General that there is an overrid-
ing public interest in earlier disclosure
or in a longer exclusion not to exceed
3 years.
Similar concerns as those addressed
by section 14 were also raised with
regard to terrorism and foreign
counter-intelligence at the subcommit-
tee hearings. While section 14 does not
directly address these concerns, mem-
bers of the Senate believe that they
will no doubt require attention in the
future. Again, the testimony of Direc-
tor Webster is instructive:
A person involved with an extremely vio-
lent terrorist network who suspected in-
formants in the group stated that in an at-
tempt to identify these informants, multiple
FOIA requests would be submitted to the
FBI and the responses then would be ana-
lyzed. The group has in fact begun submit-
ting requests.
A United States citizen declined to cooper-
ate with the FBI in a unique opportunity to
penetrate a hostile foreign intelligence es-
tablishment located in this country. Al-
though otherwise willing to be cooperative,
this citizen advised that he feared a future
release of documents under the FOIA could
reveal the extent of his cooperation and
damage his financial livelihood.
An FBI Agent, conducting a foreign coun-
terintelligence investigation concerning pos-
sible loss of technology to a hostile foreign
country, contacted an American business-
man about a research program being con-
ducted by his company. The individual was
cooperative, but refused to release a copy of
a company business report to the agent,
fearing that business competitors could
obtain the report through the FOIA and
learn of the company's research activities.
Hearings, supra
Due to the threat posed to investiga-
tion of organized crime by FOIA dis-
closures of any kind Section 14 re-
quires that, during the suspense
period, the act shall not apply to docu-
ments covered by the exclusion.
Our committee hearings have indi-
cated also that FOIA is being misused
by businesses in an effort to obtain
valuable trade secrets. The testimonies
are replete with such examples of
abuse by business concerns of the
spirit and original purpose of FIOA.
For example, Mr. Jack Pulley, an at-
torney with the Dow-Corning Corp.,
told us of an article entitled "Freedom
of Information Act: Strategic Oppor-
tunities and Threats," in which the
authors described how FOIA could be
used to gain what they called "a dif-
ferential competitive advantage."
Currently the standard of protec-
tion, "trade secrets and commerical or
financial information obtained from a
person privileged and confidential,"
presumes that all confidential infor-
mation will be protected, but supplies
no statutory definition for confiden-
tial. Instead the 1966 Senate report
specified that information "customar-
ily not released to the public by the
person from whom it was obtained"
would be exempt. The House report
extended protection to any informa-
tion given the Government in confi-
dence whether or not involving com-
merce or finance. Despite the breadth
of protection intended by Congress, a
Federal court unilaterally narrowed
the exemption years later by requiring
a submitter to demonstrate a substan-
tial competitive harm in order to qual-
ify for exemption. National Parks v.
Mortion, 498 F2d 765 (D.C. Cir. 1974).
This broader test requires agencies
and courts to guess about the econom-
ic impacts of disclosure and has led to
numerous reverse FOIA lawsuits as
submitters have attempted to protect
proprietary data against release to
commercial requesters who believe
that the act, under current standards,
can be used to learn valuable informa-
tion about competitors.
The current standard has also been
held to offer no protection to nonprof-
it submitters, such as hospitals, uni-
versities and scientific researchers, be-
cause they cannot show economic
injury if the product of their research
is disclosed.
Under FOIA's current statutory
scheme, a submitter of confidential in-
formation does not even receive notice
that the sensitive information in the
possession of the Government has
been requested under FOIA. S. 774
provides simple procedural fairness in
granting such notice and an opportu-
nity for submitters to appeal their
case to the Government agencies and
the courts on the same basis as re-
questers.
BUSINESS CONFIDENTIALITY PROCEDURES
Provisions for the protection of indi-
vidual privacy were written into Feder-
al law through the Privacy Act of
1974, which imposes certain procedur-
al limitations on agency disclosure of
individually identifiable records. The
omission in the 1966 Freedom of Infor-
mation Act of a comparable set of pro-
cedures to protect items of organiza-
tional privacy, such as membership
lists, marketing information, and busi-
ness data, has created problems for
Federal agencies and for the private
sector. The committee is aware, as a
result of its intensive study of organi-
zational and business privacy con-
cerns, that organizational privacy in-
terests merit?better procedural consid-
eration than they have received under
current law.
Section 4 of the bill provides a fair
procedural recourse for the assertion
of organizational privacy interests.
The Freedom of Information Act was
at one time a part of the Administra-
tive Procedure Act. It is fitting that
these amendments will move the dis-
closure process into line with the cus-
tomary procedural safeguards which
the APA already provides for informal
adjudications of private rights. Notice,
an opportunity to object, and a fair
opportunity to present one's case in an
impartial forum are the rights pro-
vided by section 4 of the bill.
S 1805
Additionally, this section should pre-
clude the negligent or inadvertent re-
lease by Federal agency personnel of
protected information. In recent years,
agencies have released highly sensitive
and confidential information to re-
1questors. While high-level agency offi-
cials may apologize to submitters and
send admonishing letters to staff for
releasing clearly non-releasable trade
secret chemical formulae, the underly-
ing problem is not remedied and subse-
quent releases of protected informa-
tion have not been precluded. I believe
that prerelease notice to submitters is
essential to remedy the problem. The
committee urges agencies that do not
provide prerelease notice to submitters
in all cases, such as FDA, to promptly
adopt procedural rules, which. they
may do under existing statutory au-
thority, to require prerelease notifica-
tion even where regulations may es-
tablish specific standards for release.
Beyond the procedural changes in
section 4, the committee heard exten-
sive testimony and received many writ-
ten submissions concerning substan-
tive changes to the current terms of
exemption (b)(4). There was a great
deal of discussion concerning alterna-
tive wording of the new text of the
fourth exemption, which covers confi-
dential private proprietary, research
and commercial data. Agreement to
specific alternative wording was not
possible before the critical committee
vote on May 20, 1982, so the issue of
which words will best be used to revise
exemption (4) has been reserved for
future consideration.
By reserving the issue for further re-
finement, I do not discount the legiti-
mate concerns raised about the weak-
nesses of current law. I expect that a
consensus alternative wording can be
determined, to replace the unsatisfac-
tory and unpredictable case law stand-
ard which has currently been applied,
that of "substantial competitive
harm." National Parks & Conserva-
tions Association v. Morton, 498 F.2d
765, 770 (D.C. Cir. 1974).
Case law developments under the
nebulous "harm" standard have varied
widely, and the Congress has not acted
to ratify that standard since it was cre-
ated by three judges of the D.C. cir-
cuit in the 1974 National Parks deci-
sion. The question is not whether that
unpredictable standard is desirable,
but whether an appropriate consensus
can be formed as to the wording of its
replacement. The private persons who
submit information to agencies will be
able to sue the agency or to intervene
in litigation to prevent dissemination
of that private data to competitors.
Until "substantial competitive harm"
test is replaced by new statutory lan-
guage, submitters, agencies, requesters
and the courts will continue to strug-
gle with issues of market displacement
and economic possibilities, rather than
the real issue of expectations of
proper handling of private persons'
and organizations' information.
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S 1806 - CONGRESSIONAL RECORD - SENATE
Under section 4 of S. 774 agencies
aee directed to use informal rulemak-
ing under section 553 of title 5 to
specify their procedures for the han-
dling of exempt private information.
Many agencies already have such rules
in place. The agency has the option to
specify in its rules that the submitter
must designate information which is
within several classes.
The first designatable class is trade
secret data or information which is an
essential element thereof. The term
"trade secret" has its usual common
law meaning as interpreted by IV Re-
statement of Torts section 757, com-
ment b (1938), and which is the domi-
nant definition applied in Federal and
State case law. See, e.g., Kewanee Oil
Co. v. Bicron Corp., 416 U.S. 470
(1974), and 1 R. Milgrim, "Trade Se-
crets" ch. 2 (1967). That definition
continues to predominate in the com-
mercial arena, according to witnesses
who appeared before the committee.
The second class which may be des-
ignated, if the agency chooses to re-
quire such designation is the class of
"commercial, research, financial or
business information." The terms
"commercial" and "financial" carry
over from the 1966 Freedom of Infor-
mation Act and have been extensively
defined in case law. See 1 J. O'Reilly,
Federal Information Disclosures sec-
tion 14.07 (1977). The term "research"
is intended to permit designation of in-
formation by a research institution,
regardless of its nonprofit status. The
committee believes that witnesses for
the American Association of Medical
Colleges and others have made a
strong case that protections should be
available notwithstanding the absence
of commercial profit orientation, an
artificial distinction drawn in Wash-
ington Research Project, Inc. v. De-
partment of HEW, 504 F. 2d 238, 244
n.6 (D.C. Cir. 1974). The term "busi-
ness" refers to that class of informa-
tion which does not necessarily have
immediate value in commerce, but
which is useful in a firm's dynamic
competitive, e.g., the "circumstantially
relevant business information" class
addressed by the academic economists
who testified in the committee's 1981
hearings.
Timing of the designation will neces-
sarily vary. The designation should be
made in the submission of forms to
the agency if the agency provides
notice of the need for and opportunity
for designation. The. requirement that
designation occur must, in fairness, be'
communicated adequately to those
who would incur the financial conse-
quences of a failure to designate.
Where the agency inspects or audits
the private firm and removes records,
notes, photographs, etc., the agency
has an obligation thereafter to provide
fair opportunity for designation of the
material which the submitter believes
to be exempt. For example, an agency
which inspects an electronics factory
and photographs a new, as yet undis-
closed machine, must give an opportu-
nity later for designation of the confi-
dential machine, prior to the agency
disclosure. And the designation is in-
tended to be an administratively
simple as possible. The agency can re-
quire identification of portions which
are confidential but it cannot require
submission of legal briefs or evidence
in support of confidentiality at the
time of such designation. Some agen-
cies now make the submission of infor-
mation the equivalent of an adjudicat-
ed examination of its exempt status
(40 C.F.R. ? 2.204, EPA). Such a
burden is not intended to be part of
this designation requirement.
Notification that an agency is plan-
ning to take an adverse action is one
of the most basic of administrative
procedural rights, yet until this
amendment it had by inadvertence
been omitted from the procedures re-
quired under the Freedom of Informa-
tion Act. Since notifications will not be
required where the information will be
either withheld or clearly must be dis-
closed, the number of notifications is
not expected to be excessive. Enact-
ment of this section carries through
on the Supreme Court's statement
concerning the Administrative Proce-
dure Act, when the court applied APA
remedies in the FOIA context: "Con-
gress made a judgment that notions of
fairness and informed administrative
decision making require that agency
decisions be made only after affording
interested persons notice and an op-
portunity to comment." Chrysler Corp.
v. Brown, 441 U.S. 281, 316 (1979). No-
tification is not required under several
circumstances, discussed under Section
552(a)(7)(B) below.
Written objections may be made by
the submitter, upon the agency's deci-
sion to disclose the private documents.
These objections should specify all the
grounds then known to the submitter
upon which the submitter contends
the information should not be dis-
closed. A submitter who learns of addi-
tional factual information relevant to
the disclosure decision from an ac-
counting or market study should
present that information promptly for
consideration by the agency.
The submitter who wishes to assert
an objection to disclosure should
submit the information within 10
working days after the postmark date
of the agency notification. Where be-
cause of delays in mail or geographical
distance from the agency, the submit-
ter does not have sufficient opportuni-
ty to reply within the 10-day period,
the submitter should . communicate
with the agency, informing it that the
answer is being transmitted to the des-
ignated agency official and requesting
an extension. An agency will balance
the fair handling of submitter commu-
nications with the need to expedite
the disclosure process. There may also
be cases in which notification is not re=
ceived by the submitter, but in which
the submitter learns of the pending re-
quest for disclosure from a public log
of requests or another source. Objec-
February 27, 1984
tions under this section may be filed
with the agency prior to the receipt of
a notification under subsection
(a)(7)(A)(ii).
The submitter must be provided
with notice of the agency's final deci-
sion regarding release. This provision
must be read in connection with the
waiting period described in subsection
(a)(7)(C) below.
The provision for notifications to
submitters may be excused under sev-
eral defined circumstances. The
agency has full discretion to provide
the notification, notwithstanding the
exception, if it chooses to do so.
If an agency decides that the request
should be denied, notification need not
be given. It would be given later if the
agency changed its position upon a re-
questers administrative appeal of the
denial. If the agency makes a finding
that the information in fact has been
lawfully made available to the public,
then -the claim to notification would
not stand. Of course, an agency should
give notification in case of doubts, for
sometimes the information which ap-
pears to be public is merely misleading
speculation about private commercial
activity rather than lawful publica-
tion. Wrongful taking of the informa-
tion, for example, disclosure by an-
other commercial firm in breach of
contractual obligations to the owner,
does 'not constitute lawful availability
to the public.
If an agency regulation requires des-
ignation of confidential information
and the submitter fails to substantial-
ly comply with the rule, notice may be
excused by the agency. The submit-
ter's failing will be measured against
the precision with which the agency
has?carried out its own responsibility
to give notice of the requirements for
designation of confidential informa-
tion. Designation is optional with the
agency.
Notification is also excused if a Fed-
eral statute, other than 5 U.S.C. 552,
requires disclosure by law, if the
agency has notified the submitter con-
cerning the disclosure requirement
prior to submission of the information.
The term "by law" has the same con-
tent as its interpretation in Chrysler v.
Brown, 441 U.S. 281 (1979). Such
notice to the submitting person should
be as explicit as possible and may take
the same form as the Privacy Act
statement required under 5 U.S.C.
552a(e)(3), or other express written
notice. It is not permissible for an
agency to collect private information
and thereafter to retroactively declare
it subject to a disclosure requirement
by law, absent an intervening statu-
tory amendment' explicitly requiring
such disclosure.
The final exception from notifica-
tion occurs when a criminal law en-
forcement agency acquires the infor-
mation in the course of a lawful crimi-
nal investigation. This exemption pro-
vision parallels the broad Privacy Act
exemption for law enforcement oper-
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CONGRESSIONAL RECORD -- SENATE S 1807
ations; 5 U.S.C. 552a(j)(2). The com-
mittee intends that the principal func-
tion of the agency be enforcement of
criminal laws, including police efforts
to prevent, control or reduce crime or
to apprehend criminals, such as the
functions of the Federal Bureau of In-
vestigation and the U.S. Secret Serv-
ice. Many agencies have some statu-
tory criminal sanctions in their other-
wise civil enforcement schemes, but
these are not within the narrow mean-
ing of criminal law enforcement agen-
cies for purposes of this exception
from notification.
The agency should communicate to
the requester on two occasions: when
it notifies the submitter of a receipt of
request for information and when it
notifies the submitter of its final deci-
sion. After forwarding its final deci-
sion to disclose to a submitter who has
objected to disclosure, the agency
should wait for 10 working days before
making disclosure of the records.
Exhaustion of administrative reme-
dies and the appropriate location for
lawsuits involving disclosure has been
the subject for some confusion under
current law. The Freedom of Informa-
tion Act has never expressly required
exhaustion of remedies as a precondi-
tion to suits. The situation is un-
changed. Determination of whether
the administrative steps for either re-
quester or submitter should have been
exhausted is a matter for determina-
tion by the courts. But to the extent
that exhaustion is of concern, initi-
ation of suit by either party, requester
or submitter, will terminate any obli-
gation on the other party to seek ad-
ministrative remedies.
This section (a)(7) is purely proce-
dural in nature. It has no effect on ex-
isting law which covers the substance
of confidentiality decisions, including
specific withholding statutes under
Exemption 3, 5 U.S.C. 552(b)(3), such
as the Census Act, 13 U.S.C. 214, the
Trade Secrets Act, 18 U.S.C. 1905, and
the Federal Trade Commission, 15
U.S.C. 57-2. The rights established by
law protecting these private confiden-
tiality interests continue unaffected
by these procedural provisions.
Of the statutory provisions which
remain unaffected by this section, one
of the most significant is the Trade
Secrets Act, 18 U.S.C. 1905, which has
received much attention as a result of
its use to support preservation of pri-
vate data in Chrysler Corp. v. Brown,
441 U.S. 281 (1979). That statute rep-
resents the Criminal Code's intention
to protect legitimate expectations,
that Government will not disclose sen-
sitive data unless Congress has made a
specific statutory decision that certain
types of confidential business informa-
tion should be disclosed. This bill
seeks to pieserve expectations and
leaves to section 1905 its current func-
tional role as.a determining factor in
agency decisions regarding the release
of business information, Westinghouse
Electric Corp. v. Schlesinger, 542 F.2d
1190 (4th Cir., 1976), cert. denied, 4312
U.S. 924 (1977).
In addition, the extensive committee
hearings revealed other aspects of
FOIA in need of fine-tuning. The costs
of the act to the taxpayer suggest that
those who directly benefit by request-
ing information should readily accept
the responsibility of paying the cost of
producing the information, subject, of
course, to an adequate waiver policy
for requests made .in the public inter-
est. In this respect, the policy state-
ments under consideration today close-
ly parallel the Senate Judiciary Com-
mittee determinations. Both contem-
plate the imposition of appropriate
processing fees, provision for agencies
to retain collected fees, authorization
for collection of user fees in the case
of commercially exploitable resources,
and other important fee reforms.
FEES AND WAIVERS
Section 2 of the bill makes a number
of important changes to subsection
(a)(4)(A),of 5 U.S.C. 552, to improve
the provisions relating to the collec-
tion of fees under the act. The pur-
pose of these changes is to make
agency fee schedules more uniform
and to allow agencies to recover more
nearly the true costs of complying
with requests under the act, except
where the public interest or the small
nature of the request warrants a
waiver or reduction of the fee.
UNIFORM SCHEDULE OF FEES
One problem identified by witnesses
before the subcommittee is the cur-
rent lack of uniformity of fee sched-
ules at the various agencies. These
variations can lead to confusion
among members - of the public who
deal with different agencies. Although
some of the variations in fees do
appear to reflect real differences in
the costs to the agencies, in most cases
greater uniformity of fee schedules
would be possible and desirable.
The bill accordingly authorized the
Office of Management and Budget to
promulgate, pursuant to notice and re-
ceipt of public comment, guidelines to
all agencies to promote a uniform
schedule of fees. Each agency would
be subject to these guidelines in estab-
lishing its schedule of fees, and would
be required to justify variation from
the uniform schedule by rulemaking.
This provision would promote uni-
formity of fee schedules throughout
the government while preserving the
flexibility of particular agencies to
take account of peculiar fee consider-
ations.
RECOVERY OF PROCESSING COSTS
Existing law permits agencies to col-
lect only the costs of searching for and
copying requested documents. These
costs are, however, only a fraction of
the true costs of responding to the
FOIA request. In fact, search and
copying costs appear, on the average,
to constitute no more than 4 percent
of the cost of responding to requests,
with the costs of reviewing documents,
redacting exempt material, and other
processing accounting for the remain-
ing 96 percent of the. total cost.
Clearly, one of the unexpected de-
velopments from the 1974 amend-
ments to the act has been the great
volume of requests and the expense of
processing those requests, particularly
requests which serve only commercial
or private interests rather than the in-
terests of the public. In contrast to
Congress' estimate that the 1974
amendments to the act would cost no
more than $40,000 to $100,000 annual-
ly to implement, the direct cost of
compliance with the act by all agen-
cies (not including litigation costs and
other indirect costs) rose to at least
$57 million by 1980. Many hundreds of
Federal employees-over 300 at the
FBI alone-devote all of their work-
time to the processing of FOIA re-
quests. Countless others spend part of
their time reviewing documents in re-
sponse to requests concerning specific
agency projects they are working on.
Most often, the cost to the Govern-
ment of search and review bears little
coorelation to 'the public interest in
disclosure. The majority of all Free-
dom of Information Act requests are
filed by or on behalf of corporations
for purely private commercial reasons.
In many instances, individuals too
have made excessive use of the act, at
public expense, for reasons that are
purely personal, serve no public inter-
est, and may in some cases even be
contrary to the public interest. In one
case, a single Freedom of Information
Act request for voluminous Central In-
telligence Agency documents by an ex-
agent, Mr. Philip Agee, cost the public
more than $500,000 to process. Agee v.
Central Intelligence Agency, 417 F.
Supp. 1335, 1342 n.5 (D.D.C. 1981).
The bill is intended to end public fi-
nancing for the processing of requests
where it is not in the public interest.
Accordingly, the bill would allow
agencies to collect "all costs reason-
ably and directly attributable to re-
sponding to the request, which shall
include reasonable standard charges
for the costs of services by agency per-
sonnel in search, duplication, and
other processing of the request." This
provision would pass along to all re-
questers the true costs of processing
their FOIA requests and would en-
courage all requesters to make reason-
able efforts to narrow excessively
broad requests.
The bill includes several provisions
regulating an agency's authority to
collect fees, in addition to the existing
provision for waiver or reduction of
fees in the public interest, as discussed
below.
First, the bill provides that no
charge may be made whenever the
cost of routine fee collection and
checks processing would be likely to
exceed the amount of the fee itself.
Second, the bill provides that any
processing charges must be reasonable
standard charges and must be limited
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CONGRESSIONAL RECORD - SENATE
to services directly attributable to re-
sponding to the request.
Third, the term "processing" is de-
fined to exclude services of agency
personnel in resolving issues of law or
policy of general applicability in re-
sponding to a request. Thus, a request-
er would not be charged for an agen-
cy's costs in establishing or rethinking
a policy of general applicability, even
if the request triggers such agency
action. However, a requester could be
charged the costs of review and reduc-
tion of documents pursuant to estab-
lished agency policy.
In adopting a procedure for charging
processing fees to all requesters
(except in the case of small or public
interest requests), the subcommittee
specifically rejected a proposal for a
three tier system of fees. Under the
three tier proposal, only requesters
acting with a business or commercial
interest would be subject to full proc-
essing fees, while noncommercial re-
questers would be charged only search
and copying costs as at present, and
public interest requesters would re-
ceive a waiver or reduction of the fees.
Such. a three 'tier system is seriously
flawed in many respects.
Most importantly, it would be com-
pletely impracticable to -require the
agencies to distinguish, for each of the
thousands of requests received annual-
ly, between requesters who act for a
business purpose and those who do
not. Agencies simply lack the means to
determine accurately the true pur-
poses or motives of individual request-
ers. A business could well have individ-
uals make requests on its behalf to
qualify for the "noncommercial" rates.
Agencies would be required to differ-
entiate between those individuals who
seek information in order to publish a
book for profit and those who do not.
Even a corporation might try to quali-
fy for a "noncommercial" rate by dem-
onstrating that its request does not
relate to its business. Even these few
examples demonstrate the complex
problems that would be inherent on
any attempt to differentiate between
commercial and noncommercial pur-
poses. Indeed, disputes over such
agency determinations themselves
could only engender greatly increased
perceptions of inequity and resulting
litigation.
Moreover, the direct assessment of
different levels of fees merely because
of the presence or absence of commer-
cial interest is problematic. It is not
clear why, for example, a small busi-
nessman attempting to learn about
Government actions affecting him
should be required to pay higher fees
than an individual who files a far
broader and burdensome request out
of sheer curiosity. As the Agee case
graphically illustrates, there is no
public interest in subsidizing all "non-
commercial" requests. Finally it
should be noted that the bill would
not affect at all the ability of individ-
uals to obtain at no cost those records
in which they have the greatest and
February 27,'1984
most legitimate personal interest- produce the disclosable pages of docu-
that is, records about themselves- ments.
since those records are available under These current sound practices may
the Privacy Act. be supplemented by notification to the
For these reasons, the bill rejects a submitting person and consideration
three tier system of fees, and adopts of objections by the agency, as pro-
essentially a two tier system. Each re- vided in section 4 of the bill. Costs of
quester should be charged the costs di- that determination of possible with-
rectly attributable to responding to his holding may be considered directly ap-
request, except in the case of small re- plicable to the request where the noti-
quests or where waiver or reduction of fication and objection process involves
the-fee would be in the public interest. the carrying out of determinations of
The Administrative Conference of the law or policy. The agency is not per-
United States, an official agency mitted to charge for costs incurred in
which has recently studied the subject the resolution of general applicable
of fees under the Freedom of Informa- issues of law or policy, including those
tion Act at length, also rejected the novel issues of precedential effect as
three tier proposal discussed above, to which interagency consultation is
and has endorsed an approach similar F _
The Federal agencies now cannot
charge for their actual costs of proc-
essing FOIA requests. They are limit-
ed to search and copying charges,
many of which bear little relation to
the actual processing costs incurred by
the agency, particularly for larger doc-
ument requests. The 1974 amend-
ments withdrew from the agency the
ability to charge for processing time
and resources spent on such issues as
the excision of exempt portions from a
disclosable document. If an agency
were requested to disclose criminal in-
vestigation records to an alleged leader
of an organized crime syndicate, for
example, the 500-page file could be
readily retrieved and inexpensively re-
produced. But the agency could not
charge that requester for its prere-
lease examination of that file and for
the time needed to delete sensitive law
enforcement information from the
documents released. Similar situations
have arisen with foreign commercial
requesters who have sought confiden-
tial business data files by U.S. firms.
The Federal agency must, as a practi-
cal matter, take sufficient measures to
excise commercial documents, but
under current law the U.S. taxpayers
must subsidize that service for the
competitor.
The committee intends that the
amount of fees to be set by agency reg-
ulations shall include actual retrieval
costs, including location and transmis-
sion of the records from a regional
office or Federal records center to the
agency disclosure office. The costs of
reproduction of records should be cal-
culated by regulation to recoup over-
head, equipment and personnel costs
of the duplication facility.
The bill shows that the charges for
processing will accord with the cus-
tomary practice of the agencies to
screen the contents of requested docu-
ments to ascertain which portions are
disclosable. Services involved in exam-
ining records for possible withholding
or deletion include identification of
personal or business privacy informa-
tion, or other exempt information, de-
letion of the exempt material, exami- oping the valuable technological infor-
nation of the deletions by a responsi- mation from "special beneficiaries"
ble official of the agency's disclosure who received a commercial benefit.
staff or legal counsel, and recopying to Nothing in the bill, however, would su-
0
seeking disclosure of an import docu-
ment may be charged the reasonable
costs incurred by the Customs Service
in locating the document, existing the
exempt business information there-
from, notifying the submitting import-
er, determining the portions to be
withheld, reproducing the pages to be
released, and mailing the pages to the
requester. Costs of that agency in in-
teractions with the Department of
Justice on precedential disclosure
issues, the Office of Management and
Budget on reports disclosure issue, or
the Treasury Department on general
departmental disclosure policies will
not be chargeable to the requester.
An agency may provide for standard-
ized charges for categories of requests
having similar processing costs, for ex-
ample, files on current license holders,
permit applicants, prisoners, etcetera,
if the agency determines that requests
within the category are likely to have
similar processing costs.
COMMERCIALLY VALUABLE TECHNOLOGICAL
INFORMATION
The bill also would add a new provi-
sion to 5 U.S.C. 552(a)(4) to permit an
agency to charge additional or alterna-
tive fees for technological information
that has a commercial market value
and that was generated by the Gov-
ernment at substantial cost to the
public. These fees 'would reflect that
fair market value of the information
and would be determined by the
agency.
The present act does not take into
account the fact that such valuable
technological information must now
be turned over to private parties for
fees that reflect little more than the
cost of copying. That results in an un-
justifiable windfall to a few people,
who alone benefit from information
that all taxpayers paid to develop.
This provision carries out Federal
policy as enunciated in the Federal
User Fee statute, 31 U.S.C. 483a. See
New England Power Co., v. Federal
Power Commission, 467 F.2d 425, aff'd
379 U.S; 966 (1972). Thus, it allows the
Government to recoup costs of devel-
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
persede a statute specifying the fees
for obtaining particular types of
records.
In summary, Government agencies
generate or purchase a great deal of
technological information each year,
at a substantial cost to the public.
Some FOI requests have sought access
to this information in order to obtain
commercially valuable portions for a
commercial purpose.
This subsection will not override fees
chargeable under user cost recovery
statutes or other statutes setting levels
of fees for particular types of records.
See, e.g., SDC Development Corp. v.
Mathews, 542 F.2d 1116 (9th Cir. 1976).
PUBLIC INTEREST WAIVER OR REDUCTION OF
FEES
An exception from the normal cost
recovery principle is provided for situ-
ations in which members of the public
request documents and the costs of
collection of fees for the request
exceed or equal the amount of the fee.
Where correspondence, calculations of
fees, and financial processing involved
with funds received, would cumulative-
ly cost the Government more than the
sums which the individual requester
would pay, the agency should not
charge a fee. The agency may set a
threshold figure, such as $25, below
which the agency will not charge for
disclosure requests. The same request-
er sometimes makes similar requests
on a repetitive basis in such a situation
the person making that series of re-
quests can be charged the actual costs
of responding to that set of requests.
Providing for actual cost recoveries
should terminate the implidit subsidies
which federal agencies have been pro-
viding to the commerical services
which make anonymous requests for
disclosure of documents on behalf of
unnamed clients, and then receive the
benefit of agency search, selection and
excision cost for free. One such com-
mercial organization. FOI Services,
Inc., of Rockville, Md., charges several
hundred dollars annually to each of its
subscribers, who then pay $18.50 plus
mailing for each document which the
service anonymously requests from
Federal agencies. The company was
founded by several Washington law-
yers in 1975 and has prospered to the
extent that it now issues sales catalogs
of all the copies of information which
it has on file from Federal agency dis-
closure, which can be cheaply ob-
tained by phone request at a flat fee.
The subsidization of such services is
not a useful expenditure of taxpayer
funds, and the provisions on cost re-
covery will remedy that part of the
commercial requesting service prob-
lem.
With regard to fee waiver policies,
the use to which information is to be
put upon its disclosure can be a ration-
al basis for distinguishing between re-
questers. The charges for processing
of disclosable information shall be ab-
sorbed by the agency and shall not be
charged to the requester if the infor-
mation is determined by the agency to
meet each of two specific tests: First,
its requester is not seeking disclosure
for a commercial use; second, the
person is within one of three classes
stated in this subsection.
For example, information about a
new Government furniture program
may be requested by an academic re-
searcher and by a commercial data re-
trieval service. The academic user
would not pay for the review, excision
and deletion costs, and may request
that the agency recognize its primary
benefit to the general public from dis-
semination of that information. Upon
an agency determination that the fur-
niture information disclosure primar-
ily benefits the general public, the
agency shall reduce or waive charges
for search and duplication. But the
commercial data retrieval service will
pay all charges for the access. If the
present and future use is indefinite,
the agency may condition the waiver
upon assurance of nonresale of the
documents released or upon the deter-
mination of any other circumstances
or conditions, which, in-the agency's
judgment, establishes the noncommer-
cial use to which the information is in-
tended to be put.
DISPOSITION OF FEE COLLECTIONS
A well-articulated comment was
made, by several of those appearing
before the committee, that agencies
have no source of funds to compensate
for the additional processing costs of
FOI requests. That cost can sometimes
strain the agency budget. This subsec-
tion permits the agency to retain half
of its compliance costs, which the
agency shall apply to offsetting its
costs of compliance with FOIA disclo-
sure requirements.
This prevision also carries language
giving the agencies an incentive to
comply with this bill's time limits.
With respect to time limits, the com-
mittee's extensive hearings disclosed
that the current limits can be unrealis-
tic. S. 774 substantially retains exist-
ing time limits, but allows 30 instead
of 10 working days in the case of cer-
tain specified "unusual circum-
stances."
TIME LIMITS
Section 3 of the bill recognizes the
need for timely- responses to requests
for information. Accordingly, the bill
retains the existing 10-day require-
ment for initial response to a request.
This section also provides more realis-
tic time limits in specifically defined,
unusual circumstances and provides
for expedited processing in the public
interest.
APPLICATION OF EXISTING TIME LIMITS
The act currently provides that
within 10 working days an agency
must make an initial determination
whether to disclose the requested doc-
uments and, if the decision is made
not to disclose the requested docu-
ments, to notify the requester of the
Upon a requester's appeal of an ad-
verse decision, the agency thereafter
S1809-
has 20 working days to determine the
appeal. By notice to a requester, an
agency may extend those time limits
for 10 working days in "unusual cir-
cumstances," such as where there is a
need for additional time to search for
and collect the documents from dis-
tant offices, to examine a voluminous
amount Of records, or to consult other
agencies on the records. If an agency
fails to comply with these deadlines,
the requester is deemed to have ex-
hausted his administrative remedies.
and may file a suit in district court to
compel disclosure. Section 552(a)(6)(c)
nevertheless permits the court to
allow, in "exceptional circumstances,"
additional time for agency processing,
provided that the agency is exercising
"due diligence."
The complexity and sheer volume of
the requests received by many agen-
cies often renders compliance with the
current time limits impossible. Recog-
nizing the inherent inability of many
agencies to process requests within the
specified time limits, many courts
have freed agencies of the need to
comply with such time limits by re-
sorting to use. of the "exceptional cir-
cumstances" and "due diligence" pro-
visions in section 552(a)(6)(c). In the
leading case, Open America v. Water-
gate Special Prosecution Force, 547
F.2d 605 (1976), the U.S. Court of Ap-
peals for the District of Columbia Cir-
cuit rules that-
"exceptional circumstances exist" when an
agency, like the FBI here, is diluged with a
volume of requests for information vastly in
excess of that anticipated by Congress,
when the existing resourses are inadequate
to deal with the volume of such requests
within the time limits of subsection (6)(A),
and when the agency can show that it "is
exercising due diligence" in processing the
requests.
Id. at 616.' Accordingly, the court
ruled that, under those circumstances,
the Act's time limits "become not
mandatory but directory." Id. It is
then sufficient for the agency to proc-
ess all requests on a first-in, first-out
basis, unless the requester can demon-
strate to a court "exceptional need or
urgency" for preferential treatment.
Id.
The unrealistic time limits in the
current act cause serious problems for
both agencies and requesters. For ex-
ample, agencies are frequently pressed
to engage in hasty processing, which
increases the likelihood of premature
denials, unnecessary litigation, and se-
rious errors. Hasty agency processing
to comply with an imminent deadline
may result in improper release of
trade secrets or other sensitive infor-
mation. In his testimony before the
Constitution Subcommittee, Pospere
.S. Virden, Jr., senior counsel of Hon-
eywell, Inc., testified that:
The time limits stipulated in the FOIA for
responding to requests, usually ten days, are
totally unrealistic for agency personnel to
I See also, Exner v. Federal Bureau of Investiga-
tion, 542 F.2d 1121, 1123 19th Cir. 1976.
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CONGRESSIONAL RECORD - SENATE February 27, 1984
determine whether or not to withhold or re-
lease documents in the procurement process
which, in each instance, may total hundreds
or even thousands of pages. Faced with the
overwhelming mass of material a tight dead-
line, the natural tendency is to release all
the requested material as an expedient solu-
tion ... If the wrong decision is made to re=
lease, the submitter has no effective remedy
since FOIA provides no retrieval mechanism
or restrictions on the use of documents once
they leave the government.
For the requesters, on the other
hand, the inability of many agencies
to meet unrealistic expectations has
often led to a general dissatisfaction
with the act's operation, as well as
needless litigation. Moreover, the
present first-in-first-out system pre-
vents agencies that have a backlog, of
requests for responding promptly even
to small Freedom of Information Act
requests when their processing is con-
gested, except where the requester can
demonstrate exceptional need or ur-
gency. Members of the public and the
news media are often unable to get
timely responses from agencies that
receive a large volume of requests.
UNUSUAL CIRCUMSTANCES
Section 3 of the bill would retain the
existing requirements of the act for a
response to a request within 10 work-
ing days and a determination of an
appeal within 20 working days.
The bill, however, would revise the
provisions dealing with unusual cir-
cumstances, both by extending the al-
lowable time period and by specifying
additional circumstances in which
more time for completion of agency
action would be allowed. In a great
number of cases, it is simply impossi-
ble for agencies to search for, review,
redact, and release documents in 10, or
even 20, working days. The 10-day
limit of extensions is simply too short
to be realistic, and the list of unusual
circumstances does not cover certain
cases where additional time is legiti-
mately needed. As Robert L. Salos-
chin, former Director of the Depart-
ment of Justice's Office of Informa-
tion Law and Policy [now Office of In-
formation and Policy] testified before
the Constitution Subcommittee:
Two changes are, therefore, needed. First,
there should be a more realistic list of cir-
cumstances that may warrant a time exten-
sion, including, for example, the need to
obtain input from a private submitter of
business information. Second, an agency
should, by notice to the requester, be able to
extend the limits to a specified date which it
finds necessary because of circumstances
listed in the statute, giving its reason for
the extension, and subject, of course, to the
requester's right to file suit challenging the
extension as unwarranted or excessive.
The bill would increase the maxi-
mum extension allowed in the case of
unusual circumstances from 10 to 30
days. Even a 30-day period is insuffi-
cient in cases where, for example, a re-
quest covers more than 1 million pages
of documents and takes many months,
even years, to process. In most cases
though, an extension of no more than
30 days would be sufficiently long that
the agency could realistically complete
its processing of a request, yet suffi-
ciently short that the requester would
not be unduly inconvenienced. Indeed,
it should be noted that in many cases
courts applying the Open America
rule have allowed extensions far
longer than 30 days provided in the
bill-in some cases far more than a
year-because of backlogs.
In addition to extending the time pe-
riods, the bill adds three new provi-
sions to the list of unusual circum-
stances. First, there is the case of a re-
quest for confidential business infor-
mation submitted by a private party.
In order to determine whether -the
submitted information is entitled to
the protection of exemption 4 and to
follow the procedures for notification
set forth in section 4 of the bill, addi-
tional time to respond to the request is
undoubtedly required.
Second, the bill codifies in part the
existing case law by authorizing an ex-
tension in the case of "an unusually
large volume of requests or appeals re-
ceived by an agency, creating a sub-
stantial backlog." Although the prob-
lem has not occurred at every agency,
there are numerous instances where
agencies have received such a large
volume of requests and appeals that it
.is impossible to meet the short time
limits of the act. In the absence of a
better mechanism in the act itself, the
courts generally have allowed addi-
tional time, as long as the agency is
exercising due diligence and is process-
ing the requests on a first-in-first-out
basis. The bill would provide a specific
basis for such an extension while the
court retains authority to review the
agency's conduct and either allow ad-
ditional time or require a response.
Third, the bill would allow an exten-
sion in those few cases where the head
of the agency specifically determines
that a request cannot be processed
within the 10-day period without sig-
nificantly obstructing or impairing the
timely performance of a statutory
agency function. In his testimony
before the Constitution Subcommit-
tee, Mr. Saloschin observed further
that:
The present time limits merit legislative
attention for two reasons: (1) because they
tend to indicate that FOIA work should
always take precedence over other agency
responsibilities, and (2) because they put
government agencies in an apparent posi-
tion, in the eyes of the public, of violating
the law even when large backlogs or a large
or difficult request prevents adherence to
the statutory limits. (pp. 17-18 of his July
15, 1981 testimony.).
This provision would apply where
the other unusual circumstances do
not exist, yet the diversion of agency
personnel to respond within 10 days
would impair important agency func-
tions. This provision would apprproia-
tely recognize that, although prompt
response to FOIA requests is a high
agency priority, - there are certainly
some specific instances in which key
agency personnel should not be divert-
ed from assigned agency functions. It
is intended that this provision be ap-
plied sparingly, and only with the spe-
cific approval of the head of the
agency.
EXCEPTIONAL CIRCUMSTANCES
In addition to the unusual circum-
stances of paragraph (6)(B), the act
currently contemplates judicial exten-
sions of time in exceptional circum-
stances, provided that the agency is
exercising due diligence. If a requester
files suit after receiving no response
from the agency, the agency is free to
request, and the court to grant, addi-
tional time. This bill does not alter
this language or intend to affect its
implementation in the slightest. Row-
ever, there is still a gap in the current
act, during the time period in which
the agency is technically in violation
of the statute, but has no means to
rectify the situation or to validate its
actions.
This requirement would keep re-
questers better informed of the status
of their requests and should also
reduce the filing of unnecessary law-
suits because of timing. Moreover, al-
though a court would still be able to
review an agency's explanation of ex-
ceptional circumstances, an agency
would not be considered to be in viola-
tion of the law until a court ruled on
the issue.
EXPEDITED ACCESS
The bill would also add subsection
(a)(6)(E) to the act. This new provi-
sion would require each agency to pro-
mulgate regulations whereby a re-
quester who can demonstrate a com-
pelling need for expedited processing
and whose request will primarily bene-
fit the general public, may be given
processing priority over other request-
ers. The occasional need for expedited
access was elaborated by a recently re-
leased report by the American Bar As-
sociation. In their report, the ABA
noted that:
It is as inexcusable for agencies to take
the full time period to respond to requests
where the information is clearly available
and releasable, as it is to bind agencies to
the short timeframes when they cannot be
practicably met. (Final draft of the Report
of the American Bar Association, Section of
Administrative Law, p. 4.)
Reform of the privacy exemption is
also substantiated by the Judiciary
Committee's hearings and bill. As it
currently reads, the privacy exemption
contains a threshold test that often
frustrates the substantive content of
the exemption. Thus, even if a release
of a record would constitute unwar-
ranted invasion of personal privacy, it
does not apparently qualify for ex-
emption unless the record is found in
a personnel, medical, or similar file.
Congress intended in 1966 to protect
personal privacy, not file labels.
Therefore, in accord with recent Su-
preme Court decisions, S. 744 elimi-
nates this formalistic limitation on ap-
propriate privacy protection and thus
enhances privacy protections.
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February 27, 1984 . CONGRESSIONAL RECORD - SENATE
PERSONAL PRIVACY9
LEGISLATIVE BACKGROUND
When the original Freedom of Infor-
mation Act was reported out of the
Senate Judiciary Committee in 1965,
one of its nine exemptions provided
that personal records could be with-
held if disclosure would involve a
"clearly unwarranted invasion of per-
sonal privacy." 5 U.S.C. 522(b)(6). In
addition, the committee "decided upon
a general exemption" covering all
types of personal files "rather than a
number of specific statutory authori-
zations for various agencies." S. Rept.
No. 813, 89th Cong., 1st sess. 9 (1965).
Thus the language of exemption 6
called for protection of "personnel and
medical files and similar files." 5
U.S.C. 552(b)(6). Both the House and
Senate reports implicitly suggested
that the term "similar files" referred
to those files, outside of medical and
personnel records, which contain po-
tentially harmful, personal informa-
tion. The House report, for example,
explained that "a general exemption
for [this] category of information is
much more practical than separate
statutes protecting each type of per-
sonal record." H. Rept. No. 1497, 89th
Cong., 2d sess. 11 (1966). This broad
exemption for personal information
was then tempered somewhat by the
condition that disclosure would have
to constitute a clearly unwarranted in-
vasion of personal privacy.
Since passage of the FOIA with its
nine exemptions, however, the Federal
courts have rendered contradictory
opinions which have often nullified
the original intent of Congress. In
some cases, for instance, the courts
have given broad meaning to the defi-
nition of "similar files" while in other
cases, its language has been narrowly
and erroneously interpreted. More-
over, the courts have rendered varying
definitions of what constitutes a
"clearly unwarranted invasion of per-
sonal privacy." Some courts, for exam-
ple, have construed the language as a
qualifier that precludes almost any op-
portunity for exemption. Other court
rulings, however, have taken a more
practical approach, allowing signifi-
cant exemption claims to stand.
Study of the major cases dealing
with exemption 6 illustrates the in-
See, e.g., Department Air Force v. Rose, (425 U.S.
352, 362-67 (1976); Crookerv. Bureau of Alcohol, To-
bacco, and Firearms. No. 80-1278 D.C. Cir. Dec. 8,
1981) (en bane; Sludek v. Bensinger. 608 F.2d 899,
901-02 SH. Cir. 1979): Jordan v. Department of Jus-
tice, 591 F.2d 753. 767-71 (D.C. Cir. 1978) (en bane)
Ginsberg, Feldman & Bress v. Federal Energy Ad-
ministration, 591 F.2d 717. 721-31 (D.C. Cir.) , va-
cated and reheard (en band 591 F.2d 752 (D.C. Cir.
1978, (per curiam), aff'g by an equally divided
court Civ. No. 76-27 (D.D.C. June 18, 1976), cert
denied, 441 U.S. 906 (1979). This revision does not
change the past disclosure practice for those ad-
ministrative, noncriminal enforcement manuals
which agencies such as the Food and Drug Admin-
istration or the Federal Trade Commission have
heretofore released for guidance of the public
Beneficial advances involuntary compliance among
manufacturers, distributors, and other regulated
forms have resulted, and should continue to now,
from sharing of already available administrative
(noncriminal) documents. It would be retrogressive
to undo that progress at this time.
ability of the courts to consistently in-
terpret the language of the exemption
and preserve the original intent of
Congress when it passed the Freedom
of Information Act. Indeed, Robert L.
Saloschin, former Director of the
Office of Information Law and Policy
testified before the Subcommittee on
the Constitution that some of the
more recent court decisions "seriously
reduce the ability of Federal agencies
to protect information about individ-
uals when release of the information
may adversely affect the individuals
and where there may be no public in-
terest to be served by such release."
FOIA Hearings supra. Moreover, Mr.
Saloschin pointed out that such deci-
sions "run counter to the intent of
Congress in FOIA and the Privacy
Act." Id. The section which follows il-
lustrates how the courts have adhered
to the purpose of Congress in some
cases while straying from that intent
in other cases.
JUDICIAL HISTORY
One of the 'first major appellate
court cases concerning FOIA decided
in 1969, dealt with medical files that
were complied by the Government
under a pledge of confidentiality.
Upon request for disclosure, the Food
and Drug Administration invoked ex-
emption 6, maintaining that the lan-
guage of the exemption allowed them
to withhold any medical or personnel,
files. The Court of Appeals for the
District of Columbia circuit held in
this case, Ackerly v. Ley, 420 F.2d 1336
(D.C. Cir. 1969), that exemption 6
could be invoked only if the requested
information passed a two-tiered test.
First, the record had to be a medical
personnel, or similar file and second,
disclosure of the file would have to
constitute a "clearly unwarranted in-
vasion of personal privacy." 5 U.S.C.
552(b)(6). The court found that al-
though the medical files in question
passed the threshold test they failed
to satisfy the balancing requirement,
because, the court said, disclosure
would not have caused an invasion of
privacy that was clearly unwarranted.
One decision affecting the Freedom
of Information Act occurred 2 years
later in Getman v. NLRB 450, F.2d 670
(D.C. Cir. 1971). In this case, two law
professors doing research on the work-
ings of union representation elections
which had been contested by employ-
ers, requested NLRB lists of eligible
workers in order to interview those
who did or did not vote. The court
stated that its finding of an invasion
of personal privacy depended upon, de
novo consideration of the balance be-
tween the privacy rights of the affect-
ed individuals and public interest in
disclosure. Next, however, the court
inferred that Congress intended a very
narrow construction of this FOIA ex-
emption. In other words, the court
opinion created the presumption that
when privacy concerns and the public
interest are essentially equal, the bal-
ance should tilt in favor of disclosure.
The court could just as easily have
S 1811
found that Congress intended a gener-
al protection for personal privacy,
rather than a narrow application of
the exemption's 20 words.
In an opinion concurring only in the
judgment, Circuit Judge MacKinnon
wrote that Congress did not foresee
the negative effects that the some-
what ambiguous language of exemp-
tion 6 would precipitate. Although he
did not favor disclosure of the names
and addresses of the union voters,
Judge MacKinnon felt obligated to
follow the court's interpretation of the
exemption:
It seems to me that furnishing bare lists
of.various Government files is not the sort
of disclosure that Congress basically had in
mind in enacting the Freedom of Informa-
tion Act. But in my opinion, the Act as it
presently exists practically requires the dis-
closure of such lists on demand. One need
not elaborate on the various abuses that
could result if lists of people as classified by
the Government for particular purposes
became available on demand in wholesale
lots. If this situation is to be corrected, it
will require an amendment to the Act
Regarding the balancing test, Judge
MacKinnon also wrote that he could
not predict whether disclosure would
constitute a "clearly unwarranted in-
vasion" of privacy. Although he sus-
pected as much, he felt obligated to
allow disclosure since the extent of
the privacy invasion could not be
known beforehand. Id. Thus, the
"would constitute" language was read
literally to require the court to con-
clude that an invasion of personal pri-
vacy absolutely would occur before the
protection of the exemption could be
invoked. Once again, this reads nar-
rowly Congress primary motivation to
protect privacy.
A similar court ruling in Kurzon v.
Department of Health and Human
Services. 649 F.2d 65 (1st Cir. 1981),
more recently held that names and ad-
dresses of unsuccessful applicants for
research grants from the National
Cancer Institute could not be with-
held, despite possible injury to the
professional reputations of those in-
volved. In its opinion, the Court of Ap-
peals for the First Circuit stated that
"by restricting the reach of exemption
6 to cases where the invasion of priva-
cy is not only unwarranted but clear-
ly so, Congress had erected an
imposing barrier to nondisclosure."
Id. at 67. The court might have consid-
ered in more detail, however, that this
type of record could clearly have
harmed the individuals who were
denied grants. If Congress had gone
agency by agency, statute by statute,
and considered all possible instances
where a record's disclosure might
jeopardize privacy rights, this instance
of undue embarrassment or potential
harm to a professional reputation
would have been included. Instead,
Congress enacted a general protection
for privacy that should be read to in-
clude such privacy rights. In short, the
individual right to privacy-often ac-
knowledged iSy the Supreme Court as
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S1812 CONGRESSIONAL RECORD - SENATE
a fundamental guarantee 10 cannot be
idly set aside whenever some member
of the public may have an interest in
seeing a record in Government files.
Access to Federal files is simply not
a constitutional right, but a statutory
opportunity provided when and if
Congress chooses. As such, privacy
rights, granted some degree of consti-
tutional status according to the Su-
preme Court, should properly pre-
dominate over casual curiosity-in-
spired interests in access to sensitive
information about an individual.
Wine Hobby USA v. Bureau of Alco-
hol, Tobacco and Firearms. 502 F.2d
133 (3d Cir. 1974) is a decision more in
line with the original purpose of-the
sixth exemption. In this case, a distrib-
utor of amateur winemaking equip-
ment sought the names and addresses
of families who make wine for their
private use and thereby claim tax-
exempt status. The lower court ruled
that names and addresses are not as
highly intimate and personal as medi-
cal and personnel files and that they
should be disclosed, regardless of the
severity of the privacy invasion. 363 F.
Supp. 231 (E.D. Pa. 1973). The Court
of Appeals for the Third Circuit, how-
ever, proceeded directly to the balanc-
ing test and held that the privacy
rights involved outweighed the negligi-
ble public interest served by disclo-
sure. Although names and addresses
are not, strictly speaking, similar files,
the court wisely rejected any overly le-
galistic interpretation. Instead,
through study of the legislative histo-
ry, the court determined that "disclo-
sure of names of potential customers
for commercial business in wholly un-
related to the purposes behind the
FOIA and was never contemplated by
Congress in enacting the Act." (Id. at
137). This holding gives proper weight
to Congress basic objective of privacy
protection.
Although an occasional district court
finding has missed the significance of
the Wine Hobby case, see National
Western Insurance Co. v. U.S., 512 F.
Supp. 454 (N.D. of Texas 1980) the
more authoritative weight of opinion
follows the District of Columbia Cir-
cuit ruling. For example, in Disabled
Officers Associations v. Rumsfeld, 428
F. Supp. 454 D.D.C. 1977), a case con-
cerning disclosure of lists, the D.C.
District Court aligned itself with the
Wine Hobby court and clarified that
public interest in disclosure must over-
ride, privacy rights. Although it per-
mitted names and addresses to be re-
leased to a nonprofit organization, the
court explained that disclosure is al-
lowed only when the plaintiff can
show that the request is motivated by
a strong overriding public interest.
In Rose v. Department of the Air
Force, supra, the Supreme Court ulti-
mately ordered disclosure of private
"See Eisenstadt v. Baird, 405 U.S. 438 (1972);
Griswold v. Connecticut, 381 U.S. 479 (1965); Stan-
ley v. Georgia, 394 U.S. 557 (1969); Terry v. Ohio,
392 U.S. 1 (1968); Katz v. United States, 389 U.S.
347 (1967); Myer v. Nebraska, 262 U.S. 390 (1923).
February 27, 1984
information, although it gave some tion of a "similar file" and that a
consideration to protection claims broad interpretation was necessary "to
under exemption 6. In that case, the protect individuals from a wide range
student editors of a law review re-
quested name-deleted copies of confi-
dential Air Force proceedings against
cadets charged with' violating the
honor code. The Air Force withheld
the proceedings on the grounds that
reconstruction of deleted names could
be made from circumstantial informa-
tion that would be provided. The Su-
preme Court held that exemption 6 "is
directed at threats to privacy interests
more palpable than mere possibili-
ties." Id. at 35. Once again the Court
seemed to suggest that the "would
constitute" language in exemption 6
requires a nearly certain showing of
palpable damage to privacy. Since the
negative effects of disclosure could not
be fully known until after the proceed-
ings were made public, the Court or-
dered their release to the law review.
In its memorandum, however, the
Court was troubled by the difficulty of
predicting potential future privacy
harms. If, for example, the vitality of
this exemption hinged on an agency's
temporal problem of attempting to
show in advance of a disclosure that it
might have future adverse conse-
quences, Congress intent to protect
privacy rights could be substantially
frustrated.
The reasoning of the Supreme Court
in Rose raises the temporal dilemma;
that is, the problem of predictability
through time, which has been ade-
quately addressed by other courts. For
instance, Tuchinsky v. Selective Serv-
ice System, 294 F. Supp. 803 (N.D. Ill.
1969), recognized that the possibility
of a clearly unwarranted invasion of
privacy must also be considered before
releasing information for public scruti-
ny. In that case, a draft counselor re-
quested the names and personal data
of officials serving on the Selective
Service Board. The court agreed to re-
lease the names of the Board officials
but not personal information unless
those involved gave their consent. As a
result, the individuals were allowed
the option of protecting their own pri-
vacy. This is an excellent way to carry
out the basic intent of the sixth ex-
emption while also recognizing disclo-
sure interests.
In Rural Housing Alliance v. Depart-
ment of Agriculture, 498 F. 2d 73 (D.C.
Cir. 1973) the Court of Appeals for the
District of Columbia Circuit upheld a
broad interpretation of the similar
files test and maintained a proper bal-
ancing requirement. The Federal ques-
tion arose from a request for a Depart-
ment of Agriculture report on govern-
mental housing discrimination. The
Department withheld most of the
case for further consideration of
whether disclosure would cause a
clearly unwarranted invasion of priva-
cy. It instructed the district court to
consider two factors when balancing
interests under exemption 6. First, the
court had to determine if disclosure
would precipitate an invasion of priva-
cy and, if so, how substantial that in-
fringement would be. Second, the
court had to decide the legitimacy and
strength of the public` interest in dis-
closure and whether the data could be
obtained from other sources. Id. at 77-
78. In addition, the court suggested
that mere deletions of names is not
always sufficient to protect personal
privacy since positive identification
can often be inferred from descriptive
information, Id. at 78.
The court also seemed to agree with
a Department of Agriculture sugges-
tion that the most equitable way to
gain information would be through in-
dividual releases by the parties in-
volved (see Tuchinsky v. Selective
Service System, supra) This would
permit proper control over one's per-
sonal life, allow substantial disclosure
of information which serves the public
interest, and thereby reduce litigation.
As a last resort, if the affected individ-
uals refused voluntary disclosure,
court action either by the requester
seeking access or the individual with
privacy at stake seeking to enjoin dis-
closure could be the last recourse. Id.
at 82-83. This bill endorses this recog-
nition of the primacy of individual pri-
vacy among the other considerations
weighed in the passage of exemption
6. If court action, as a last recourse, is
necessary to protect individual priva-
cy, the committee would endorse pro-
cedures similar to those created allow-
ing court access for submitters of con-
fidential business information in sec-
tions 5 and 6 of S. 730.
Other courts have not been as sensi-
tive to the basic thrust of (b)(6), ap-
plying extremely narrow interpreta-
tions of the "similar files" language.
In Robles v. Environmental Protection
Agency, 484 F.2d 843 (4th Cir. 1973),
the plaintiff sought information gath-
ered by the EPA on homes where ura-
nium tailings had been used for fill.
The court ordered disclosure based on
the premise that such information
would not be sufficiently similar to
medical and personnel data, a view the
committee finds to be a miscon-
struance of congressional intent. In
the first place, this assumes Congress
report on the premise that it should meant to supply a limit on privacy
not reveal information relating to protection with the "similar" lan-
marital status, legitimacy of children, guage-a reading never suggested at
identity of fathers of children, medical any stage of congressional debate. On
condition, welfare payments, alcoholic the contrary, Congress picked the
consumption, family fights, and per- vague and general term "similar" to
sonal reputations. The court agreed insure a broad coverage for privacy re-
that such information fits the descrip- gardless of the kind of file in question.
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
Otherwise, as I have already noted,
"this formalistic file limitation ? ? ?
may permit disclosure of 'clearly un-
warranted invasions' of privacy simply
because the invasion is found in the
wrong kind of file." A reading more
consistent with congressional intent
would consider Congress overriding re-
spect for privacy and consider any file
similar to medical or personnel records
if disclosure could be expected to
reveal sensitive or intimate personal
information. The test for exemption
should focus on privacy, not file labels.
Moreover, the 4th Circuit in Robles
set guidelines which rejected any bal-
ancing test whatsoever, claiming that
the right to disclosure under FOIA is
not to be resolved by (a) balance of eq-
uities or weighing need or even bene-
fit. Id. at 848. In other words, the
court attempted to invoke the "any
person" rule of FOIA which states
that any information given to one re-
quester must be open to any other re-
quester regardless of the purpose or
motivations for the requests to limit a
balancing of privacy against disclosure
considerations. Proper protection for
privacy should always invoke such bal-
ancing which necessitates an inquiry
into the purposes, and potential disclo-
sure impacts of requests. (See Depart-
ment of Air Force v. Rose, supra; Alli-
ance v. Department of Agriculture,
supra; Campbell v. U.S. Civil Service
Commission, 539 F.2d 58 (10th Cir.
1976); Aug. v. National R.R. Passenger
Corp., 425 F. Supp. 946 (D.D.C. 1976);
Tuchinsky v. Selective System, supra.)
The alternative view dangerously dis-
regards Congress concern for privacy
by innovatively asserting that disclo-
sure was never to depend upon the in-
terest or lack of interest of the party
seeking disclosure (see Outlaw v.
Schultt, 517 F.2d 168 (D.C. Cir. 1975)
and Davis, supra. Section 3A.4 at 120).
Such restrictive readings fail to appre-
ciate sufficiently the importance of
fundamental privacy rights.10
In Board of Trade v. Commodity Fu-
tures Trading Commission, 627 F.2d
392 (D.C. Cir. 1980), the Court of Ap-
peals for the District of Columbia Cir-
cuit went against the method it em-
ployed to decide Getman, and its
broad interpretation of the similar
files test in Rural Housing. In this
case, the Trading Commission refused
to divulge some of its trade sources.
Although disclosure may have consti-
tuted a clearly unwarranted invasion
of privacy, the court held that trade
sources cannot be classified as a "simi-
lar file" and therefore must be di-
vulged. Thus, rather than considering
the second half of exemption 6, that
is, whether disclosure was a clearly un-
warranted invasion of privacy, the
court based its decision solely on an
10 A more responsible reading of FOIA's "any
person may request disclosure, but subject to the
limitations of the exemptions. This may require.
for example inquiry into the requester's status, mo-
tivations, purposes, and potential uses for the re-
quested record.
extremely legalistic interpretation of
the similar files threshold test.
On the other hand, the Court of Ap-
peals for the 5th Circuit in Pacific Mo-
lasses Co v. NLRB, 577 F.2d 1172 (5th
Cir. 1978), rendered a more realistic in-
terpretation of the similar files test. In
this case, an employer at a nonunion
company petitioned the NLRB for the
names of his employees who carried
union cards. Clearly the mere disclo-
sure that certain employees possessed
union cards did not meet the thresh-
old test requirement that the informa-
tion be similar to personnel and medi-
cal records. The fifth circuit rules,
however, that union card information
was highly personal in this case and
thereby met the similar files require-
ments. This reading "similar files"
properly focuses on privacy rather
than "similarity."
The next two cases represent the
most significant examples of the dan-
gers that can result from an interpre-
tation of the similar files test that is
too narrow. In Simpson v: Department
of State, 648 F.2d 10 (D.C. Cir. 1980),
diplomatic historians and scholarly or-
ganizations sought biographical data
on foreign service personnel employed
by the Department of State. Four
years earlier the Department had
begun classifying such information be-
cause of the threat this disclosure im-
posed on Americans employed in U.S.
Embassies. The Department feared
that disclosure would increase the
probability that terrorists, using bio-
graphical information as a justifica-
tion for violence, would attack foreign
service personnel with imperialist, cap-
italist, or similar backgrounds. The
U.S. District Court for the District of
Columbia upheld the State Depart-
ment contention on grounds that the
biographical data fell within the "simi-
lar files" category and that disclosure
would constitute a "clearly unwarrant-
ed invasion of personal privacy."-The
Court of Appeals for the District of
Columbia Circuit, however, by virtue
of a narrow construction of "similar
files" following Board of Trade, ruled
that information contained in files
other than personnel and medical
records must contain data that is as in-
timate and highly personal as that
found in personnel and medical files..
Despite the fact that public release of
foreign service personnel biographies
are far greater potential for harm
than similar data about other U.S. citi-
zens, the court found that such infor-
mation could not be classified as a sim-
ilar file. It refused, thereby, to consid-
er the probability that disclosure
would be a clearly unwarranted inva-
sion of privacy that threatened the
lives of those involved.
This contradictory doctrine should
be put to rest by a recent Supreme
Court ruling, Department of State v.
The Washington Post Co., No. 81-535
(- U.S. - May 17, 1982). In his opin-
ion, released 1 day before S. 1730, the
97th Congress version of S. 774, was
reported from full committee and
S1813
months after subcommittee approval,
the court significantly broadened the
interpretation of the threshold re-
quirement. The Federal question arose
when the Washington Post requested
any documents from the State Depart-
ment which would verify whether two
members of the Iranian revolutionary
government were citizens of the
United States or had applied for citi-
zenship. The State Department denied
the request because the conditions in
Iran at the time were such that
anyone in the revolutionary govern-
ment "who is reputed to be an Ameri-
can citizen would "be in physical
danger from some of the revolutionary
groups that are prone to violence." Af-
fidavit of Harold Saunders, January
14, 1980, app. 17. The D.C. Circuit, ap-
plying its narrow "similar files" rule
from Board of Trade held that exemp-
tion 6 was unavailable.
On a grant of certiorari to the Su-
preme Court, the Court ruled in favor
of the State Department, noting that
Congress intended "a broad rather
than a narrow meaning" of the term
"similar files." Moreover, the Court
wrote that "had the words 'similar
files' been intended to be only a
narrow addition to 'personnel and
medical files,' there would seem to be
no reason for concern about the ex-
emption's being 'held within bounds"'
by the balancing test, "and there
surely would be clear suggestions in
the legislative history that such a
narrow meaning was intended. We
have found none." Id. at 5. The Court
made clear in its decision that poten-
tially harmful information should not
be released solely because of a failure
to fall under the correct filing label.
The Court wrote that "an individual
should not lose the protection of ex-
emption 6 merely because it is stored
by an agency in records other than
'personnel' or 'medical' files." Id. at 6.
This decision does maintain the
threshold test, but it properly recog-
nizes that this test should not frus-
trate the substantive content of the
sixth exemption.
After reviewing the judicial history
of exemption 6, it becomes obvious
that the original intent of Congress
has been.obscured in a myriad of con-
tradictory opinions. While some courts
have probed the House and Senate re-
ports of exemption 6 for an under-
standing of its meaning, other courts,
in applying their own varied philos-
ophies on personal privacy, have ren-
dered narrow and often impractical in-
terpretations of the exemption. Erro-
neous interpretations of the threshold
requirement, for instance, have often
precluded exemption of records that
are intimate enough to cause a "clear-
ly unwarranted invasion of personal
privacy."
S. 774 will remedy this inequity and
make certain that the threshold "simi-
lar files" standard, even after Post,
will never again frustrate privacy pro-
tection by eradicating the threshold
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CONGRESSIONAL RECORD - SENATE February 27, 1984
test altogether. The new language of
the bill states that all "records or in-
formation concerning individuals" are
exempt from disclosure if the require-
ments of the balancing test are met.
As a result, the decision to grant a re-
quest for information directly rests
upon the proper balance between the
public interest and the individual's
right to privacy. There is no need for a
threshold test-filing level distinctions
are eliminated.
Although some court rulings recog-
nize Congress primary concern for pri-
vacy-see, for example, Department of
State against The Washington Post
Co., supra; Wine Hobby against
Bureau of Alcohol, Tobacco and Fire-
arms, supra, other courts have con-
strued the balancing test to tilt in
favor of disclosure. In other words, if
the arguments favoring disclosure are
approximately equal to those in favor
of exemption, the courts have some-
times permitted disclosure. This con-
struction of the balancing requirement
does not comport, however, with the
efforts of Congress to protect individu-
al rights through passage of the Priva-
cy Act (5 U.S.C. 552a), and the Right
to Financial Privacy Act (12 U.S.C.
3401). Indeed, by definition, a test
which purports to balance the public
interest with personal privacy inter-
ests should not tilt in favor of either
side.
S. 774 will provide a proper balance
by specifying that records be protected
if their release "could reasonably be
expected to consitute a clearly unwar-
ranted invasion of personal privacy".
This change in the language of the
balancing test operates in two ways to
rectify past misunderstandings of the
exemption. First, it solves the tempo-
ral problem. The addition of the
phrase "could reasonably be expected"
reduces the burden of having to dem-
onstrate beyond doubt that a future
disclosure would consitute a clearly
unwarranted invasion of privacy. The
reasonable expectation that such an
invasion could possibly occur, rather
than absolute certainty of its future
occurrence, is all that should be neces-
sary to protect precious privacy inter-
ests and it is all that will be necessary
for exemption. Second, this change is
intended to relax any rigid applica-
tions of the balancing test.
The Judiciary Committee bill also
contains two new exemptions to pro-
tect technical data at-NASA predomi-
nantly national security information-
that may not be lawfully exported
without a license and to protect Secret
Service records.
10. SECTION 11: ADDITIONAL EXEMPTIONS
TECHNICAL DATA
Section 12 of the bill adds a new ex-
emption (b)(10) to the Freedom of In-
formation Act to exempt from manda-
tory disclosure, technical data that
may not be exported lawfully outside
of the United States except in compli-
ance with the Arms Export Control
Act, 22 U.S.C. 2751, et seq.. and the
Export Administration Act of 1979, 50
U.S.C. App. 2404.
Testimony from the Justice Depart-
ment and the Department of Defense
has made the committee aware that
technical data in the form of blue-
prints, manuals, production, and logis-
tics information formulas, designs,
drawings, and other research data in
the possession of agencies may be sub-
ject to release under the Freedom of
Information Act. Much of this data
was either developed by the Govern-
ment or more typically submitted to
the Government in conjunction with
research and development or procure-
ment contracts. An example of the
type of problem not contemplated by
Congress during formulation of the
FO1A exemptions in 1966 is the re-
quest from a foreign national seeking
70 documents totaling more than 9,000
pages which deal with the internation-
ally sensitive area of satellites and
their use by military organizations. An
expense of over $4,000 in U.S. taxes
would be required by the Department
of Air Force in addition to more than
1,000 mid-level management man-
hours, on a nonreimbursable basis,
just to prepare the material for
review. Moreover, a substantial por-
tion of this sensitive, defense informa-
tion is technical material on the criti:
cal military technologies list which is
subject to Federal export laws. In
other instances, agencies such as the
National Security Agency have been
subjected to court battles which re-
quire the submission of lengthy and
detailed affidavits justifying the with-
holding of cryptological information.
Ann Caracristi, Deputy Director of the
National Security Agency, testified
before the Constitution Subcommittee
that these affidavits "become even
more sensitive than the requested in-
formation itself because of the need to
place it in context and explain its sig-
nificance." FOIA hearings, supra.
This new exemption would insure
that Congress intent to control the
dissemination of sensitive technology
could not be frustrated by a Freedom
of Information Act request for infor-
mation regarding technology subject
to export control under these statutes.
It would make clear that agencies such
as the Department of Defense have
the authority to refuse to disclose
such information in response to a
Freedom of Information Act request
when the information is subject to
export restrictions. This change would
help effect Congress desire to limit
and control the dissemination of criti-
cal technology. In the same vein, how-
ever, exemption 10 does not address
the issue of restricting the flow of re-
search information to, from or within
the scientific community or society in
general. Moreover, the proposed ex-
emption has nothing to do with tech-
nical information developed within
the academic community. On the con-
trary, this exemption merely gives the
Federal Government the discretion
not to disclose pursuant to a FOIA re-
quest defense-related technical infor-
mation which is in the possession of
the Federal Government, usually pur-
suant to research and development of
procurement contracts. The submitter
of such technical data is not precluded
from disseminating it to the scientific
community or elsewhere.
It is the intent of this bill that ex-
emption 10 encompass data covered by
both general licenses and specific li-
censes, much as a significant amount
of important technical data may be ex-
ported under general licenses or ex-
emptions. Even though the term "gen-
eral license" is used, such licenses
often limit export authority to specific
persons or specific destinations. None-
theless, such a limited general license
for the export of certain data would
subject such data to unlimited release
under the FOIA 'if exemption 10 did
not cover general licenses. Thus, with-
out such coverage it would be possible
for a requester to circumvent the
export laws through the FOIA.
It is anomalous to restrict export of
data important to the United States
on one hand, while allowing its public
release under the FOIA on the other.
Exemption (b)(10) will redress that
anomaly.
SECRET SERVICE INFORMATION
Exemption 11 will protect the Secret
Service from the release of informa-
tion that "could reasonably be expect-
ed to adversely affect" its ability to
carry out its protective mission. Fol-
lowing the assassination of President
Kennedy, the Secret Service was asked
by the Warren Commission to redou-
ble its efforts to identify and guard
against persons who threaten the
safety of the President. Since that
time, the Service has sought and ob-
tained substantial amounts of infor-
mation from State and local law en-
forcement agencies as well as from for-
eign sources. In 1975, for instance, the
Service had access to data from nearly
1,100 informants via the FBI. Since
the revised Freedom of Information
Act took effect at the end of 1974,
however, the quality and quantity of
informant cooperation with the Serv-
ice has diminished dramatically.
Robert R. Burke, Assistant Director
for Investigations at the Secret Serv-
ice, testified before the Constitution
Subcommittee that his agency has ap-
proximately 75 percent less informant
information than it had before pas-
sage of the FOIA: Mr. Stewart Knight,
Director of the Service, testified in
1977 that he had recommended that
President Jimmy Carter refrain from
traveling to two cities within the
United States because the Service did
not have adequate information to
guarantee his safety. Mr. Burke's 1981
testimony noted that conditions have
deteriorated even further since Mr.
Knight's statement. Burke testified
that the Freedom of Information Act
has contributed to establishing a cli-
mate which has adversely affected our
ability to perform our protective and
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
criminal investigative missions. '
Informants are increasingly reluctant
to come forward because they are fear-
ful their identities will be revealed.
FOIA hearings, supra.
The problem is not restricted to do-
mestic sources of information. Direc=tor Knight has been told by several
senior foreign law enforcement offi-
cials that there is serious doubt abroad
as to the Secret Service's ability to
protect confidential information. Id.
In specific terms, Burke cited evidence
of convicted felons and others current-
ly involved in criminal activities who
make FOIA requests to several agen-
cies, sift carefully through the re-
sponses, and then "discern the very in-
formation sources that the law en-
forcement agencies wish to protect."
Id.
Despite a dramatic decline in data
available to the Secret Service, Assist-
ant Director Burke made clear in his
testimony that:
Intelligence information on individuals
and groups is absolutely necessary for us to
perform our protective role. The decrease in
the quality and quantity of this information
has forced us into a more reactive posture
than we would like. Without adequate infor-
mation on individuals and groups, we are
less able to predict where to apply our limit-
ed resources. We, therefore, have to use
more agents, more State and local police of-
ficers, and more equipment without the
focus on what may be the real danger
areas." Id.
Exemption 11 insures that the
Secret Service will receive the coopera-
tion and confidentiality necessary for
its mission. As a result, the ability of
the Secret Service to safeguard the
President and other important individ-
uals as well as informants who provide
vital information, will not be compro-
mised. The exemption specifically
enables the Secret Service to better
fulfill its functions in two ways. First,
the Service will not be compelled to
disclose significant security informa-
tion already on file. Second, the Secret
Service's information gathering capac-
ity will be enhanced by the message
conveyed to potential informants that
any sensitive information that they
provide will be protected.
The hearings also noted the need to
reconsider the factors governing cur-
rent determinations of types of infor-
mation that may be released because
they are reasonably segregable from
classified or exempt portions of cer-
tain sensitive record. Another item
covered was the propriety or requests
from certain classes of requesters, in-
cluding aliens, imprisoned felons, or
parties in litigation with the Govern-
ment who have access to information
via the alternative route of discovery
under the Federal Rules of Civil Pro-
cedure. Finally compiling a list of stat-
utes which trigger withholding under
exemption 3 also emerged as an impor-
tant aspect of FOIA reform. These
matters each became an element of
the bill approved by the Judiciary
Committee unanimously.
12. SECTION 13: PROPER REQUESTS
Section 13 of the bill would amend
the provisions of subsection (a)(3) of
the act to address several areas of use
or abuse of the act not intended by
Congress, and which undermine im-
portant govermental interests without
serving the legitimate interests of the
Freedom of Information Act.
REQUESTS LIMITED TO "UNITED STATES
PERSONS"
Under carry law, an agency is re-
quired to comply with any request for
records covered by 5 U.S.C. section
552(a)(3) made by "any person." Sec-
tion 14 of the bill would amend the act
to require the agency to make infor-
mation available only to a requester
who is a "United States person." The
bill would add a definition of the term
"United States person" in a new sub-
section (e)(4) of 5 U.S.C. section 552,
to include a U.S. citizen, an alien law-
fully admitted for permanent resi-
dence, and certain corporations and
unincorporated associations. The defi-
nition of "United States person" fol-
lows the definition set forth in section
101(1) of the Foreign Intelligence Sur-
veillance Act of 1978, 50 U.S.C. 180(i),
with certain exceptions.
Restricting the right to make re-
quests to United States persons would
reverse the present rule that "any
person, " including foreign nationals
and governments can use the Freedom
of Information Act to secure informa-
tion.40 This proposed amendment is
consistent with the purpose of the
Freedom of Information Act to inform
the American public of Government
actions. It would also prevent the use
of the Freedom of Information Act by
foreign nationals and governments for
purposes which may be contrary to
the national interest.
FREEDOM OF INFORMATION ACT NOT A
DISCOVERY DEVICE
The bill would also amend the act to
prevent a party to a pending judicial
proceeding, or administrative adjudica-
tion, or any requester acting for such a
party, from using the Freedom of In-
formation Act for any records which
may be sought through discovery in
the proceeding. Most Government
agencies report significant numbers of
such requests, whose purpose is to
avoid applicable rules of discovery and
sometimes, where the Government is a
party, to harass and burden Govern-
ment agencies. The prohibition would
apply in either civil or criminal pro-
ceedings whenever a party files a re-
quest relating to the subject matter of
a pending proceeding where existing
discovery rights allow access.
The Supreme Court has recognized
that the "FOIA was not intended to
function as a private discovery tool."
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 242 (1978). Notwithstand-
ing the fact that the Freedom of In-
40 E.g., Stone v. Export-Import Bank of the United
States, 552 F.2d 132, 136-37 (5th Cir. 1977), cert.
denied, 434 U.S. 1012 (1978): Neal-Cooper Grain
Co. v. Kissinger, 385 F. Supp. 769 (D.D.C. 1974).
S 1815
formation Act was not intended as a
discovery device, a requester's rights
under present law "are neither in-
creased nor decreased" because of his
status as a litigant. NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 143 n. 10
(1975). As a result, the Freedom of In-
formation Act has been widely used to
discover Government documents for
use in judicial proceedings.
In civil cases, parties openly use the
Freedom of Information Act to cir-
cumvent the judicial discovery require-
ments that they show a need for the
requested information, that the infor-
mation is relevant to the case, and
that compliance with the request
would not be unreasonably harassing,
oppressive or burdensome. See Fed. R.
Civ. P. 26. Government attorneys
working on a case are often forced to
divert their attention from preparing
the case to complying with a Freedom
of Information Act request filed by a
party opponent. The resulting diver-
sion of resources to respond to such
requests substantially impairs the
Government's capacity to prepare and
successfully carry forward to a conclu-
sion many of its cases.
Similarly, in criminal cases a defend-
ant seeking discovery information
must ordinarily demonstrate not only
the relevance of the information
sought, but also that the request is
reasonable and within the scope of
criminal discovery. See Fed. R. Crim.
P. 16(a). In addition, a criminal de-
fendant's request for discovery may
trigger a Government right to recipro-
cal discovery. Fed. R. Crim. P. 16(b).
In practice, however, criminal defend-
ants have made frequent use of Free-
dom of Information Act requests,
often close to scheduled trial dates, to
disrupt the prosecutor's case prepar-
tion or delay the trial while disputes
over the Freedom of Information Act
request are resolved by the courts.
Some courts have ruled that the use
of the Freedom of Information Act to
supplant ordinary criminal discovery is
improper.4 ' However, courts have
ruled that related Freedom of Infor-
mation Act requests are acceptable
during a criminal trial and that issues
respecting such requests in the pend-
ing criminal action.42 This ability to
make requests before and during
criminal trials disrupts trial proceed-
ings and upsets the discovery scheme
established under the Federal Rules of
Criminal Procedure. This proposed
provision seeks to limit such abuses of
the Freedom of Information Act. This
bill provides that no request be per-
mitted to be maintained during the
pendancy of related proceedings in
which discovery rights for the request-
ed information exist. It will be lip to
See United States v. Murdock, 548 F.2d 599 (5th
Cir. 1977: Murphy v. Federal Bureau of Investiga-
tion, 490 F. Supp. 1138 (D.D.C. 1980); see also
United States v. Layton, No. CR 80-0416 (N.D. Cal.
August 6, 1981).
"See United States v. Brown, 562 F.2d 1144. (9th
Cir. 1978: United States v. Wahhr, 384 F. Supp. 43.
47 (W.D. Wis. 1974).
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S 1816 CONGRESSIONAL RECORD -- SENATE February 27, 1984
the requester to demonstrate, when
requested to do so in accordance with
agency regulations, that his request is
not banned by this prohibition.
FELONS
Recent statistics indicate that over
40 percent of the requests received by
the Drug Enforcement Administration
are from persons in prison, and at
least another 20 percent come from
persons not in prison but known to be
connected with criminal drug activi-
ties. An estimated 11 percent of the re-
quests received by the FBI come from
persons in prisons, and numerous
others from persons with criminal
records. Many of these FOIA request-
ers bring suit in Federal courts. These
persons use-or actually misuse-the
act to attempt to discover the identity
of informants and other sensitive law
enforcement information held by the
Government. The large number of re-
quests, including repeated requests
numbering in the hundreds by some
individuals, is clear testimony that
there is something for criminals to
gain through the use of the act.
Given that the FBI and DEA spent
over $13.5 million in 1980 to comply
with FOIA requests, and that review
of requests from prisoners frequently
requires extended review to protect
law enforcement information, these
two agencies alone spend 20 to 40
times more than Congress estimated
the 1974 amendments would cost for
the whole Government-just to re-
spond to felons.
The bill would authorize the Attor-
ney General to promulgate regulations
to restrict the circumstances in which
records shall be made available to
felons or to persons acting on their
behalf. The purpose of this provision
is to prevent the use of the act from
undermining legitimate law enforce-
ment interests while respecting the
proper public information purposes of
the act and it is left to the sole discre-
tion of the Attorney General to deter-
mine the most appropriate course in
this particular area.
MANUALS AND EXAM MATERIALS
The changes provided by the act are
long overdue with regard to exemption
2 which governs manuals and exami-
nation data. The proposed amendment
would expressly protect confidential
information in manuals and instruc-
tion to investigators, inspectors, audi-
tors, and negotiators. This change
would also complement the amend-
ments to exemption 7(E) relating to
guidelines or priorities for law enforce-
ment investigations or prosecutions.
Negotiators are included in this list
in recognition of the fact that the
Government has a legitimate need to
maintain the confidentiality of its
instructions to staff in contexts other
than law enforcement. Thus, the term
"negotiators" is not limited to law en-
forcement personnel who are called
upon to negotiate the settlement of
pending and impending litigation, but
applies as well to agency staff who
conduct negotiations for the procure-
ment of goods and services, and acqui-
sition of lands, the resolution of labor-
management disputes, the release of
hostages, or any other negotiations
conducted in the course of carrying
out a legitimate Government function
where the release of such instructions
or manuals may jeopardize the success
of any aspect of the negotiations.
Proposed subparagraph (B) is added
to exemption 2 to exempt testing or
examination materials used to deter-
mine individual qualifications for em-
ployment, promotion, and licensing.
This amendment is intended to protect
from disclosure material that would
compromise the objectivity or fairness
of the testing, examination or licens-
ing process within various agencies.
Such a provision exists now in the Pri-
vacy Act of 1974, 5 U.S.C. ? 522a(k)(6),
and inclusion of this paragraph in the
Freedom of Information Act would
promote consistency between the two
statutes.
In short, section 8 of the bill would
add two clarifying provisions to ex-
emption 2, to make clear that materi-
als whose confidentiality is necessary
to effective law enforcement and other
vital Government ' functions are
exempt from disclosure. Such materi-
als include manuals and instructions
to investigators, inspectors, auditors,
and negotiators, and testing materials
used solely for employment, promo-
tion, or licensing. Although materials
of this nature are arguably protected
under present law, the confusion en-
gendered by judicial attempts to rec-
oncile purported inconsistencies in the
legislative history make the extent of
the protection afforded by exemption
2 uncertain.
JUDICIAL REVIEW
Section 5 of the bill would make sev-
eral procedural and substantive revi-
sions to the judicial review provisions
of 5 U.S.C. ? 552(a)(4). First, the bill
would amend subsection (a)(4)(B) to
include a statute of limitations, and to
provide equivalent jurisdiction in the
district courts for suits by submitters
of information to enjoin an agency's
disclosure of information and request-
ers of information to compel disclo-
sure.
Second, this section permits suits for
injunctive relief against nonindexing
of records covered by subsection (a)(1)
or (a)(2).
Third, the bill would amend the at-
torney fees provisions of redesignated
subsection (a)(4)(H) (currently subsec-
tion (a)(4)(E)) to allow requesters who
substantially prevail to recover attor-
ney fees from a submitter participat-
ing in litigation.
STATUTE OF LIMITATIONS
The present act contains no time
limit for a requester to initiate a judi-
cial action after and agency's final
denial of a request. This bill would
amend subsection (A)(4)(B) to require
that suits by requesters must be
brought within 180 days of the agen-
cy's final administrative action. This is
the same period as that set forth in
title VII of the Civil Rights Act of
1964, 42 U.S.C. ?? 2000e-5(e), 16(c); the
Age Discrimination in Employment
Act, 29 U.S.C. ? 633(d); and the Fair
Housing Act of 1968, 42 U.S.C.
? 3613(a). The bill would not set a spe-
cific limitations period for actions by
submitters. However, it would estab;
lish as an express prerequisite to dis-
trict court jurisdiction that the sub-
mitter must file a complaint before
the disclosure of the information.
This provision should promote judi-
cial economy and ease administrative
burdens without prejudice to request-
ers of information. Agency personnel
would be able to close files instead of
holding a requester's file indefinitely
in anticipation of a lawsuit to compel
disclosure at any time in the future.
Requesters could simply file an identi-
cal request to reinitiate the process.
This would initiate anew the request
and give them a fresh cause of action
if the new request is denied.
SUBJECT MATTER JURISDICTION
The bill would amend subsection
(a)(4)(B) to vest the district courts
with jurisdiction to enjoin an agency
from any disclosure of trade secrets, or
commercial, research, financial busi-
ness information which was objected
to by a submitter under subsection
(a)(7)(A)(iii) (or which would have
been objected to had the submitter re-
ceived the required notice from the
agency pursuant to subsection
(a)(7)(ii)). Under the amended provi-
sion, the submitter may file a com-
plaint at any time prior to disclosure
of the information by the agency.
This provision would create a right
of action for submitters within the
structure of the Freedom of Informa-
tion Act. Under present law, submit-
ters have no such right of action, but
'must resort to section 10 of the Ad-
ministrative Procedure Act, 5 U.S.C.
? 706, in order to safeguard confiden-
tial business information from disclo-
sure by the Government in possible
violation of the Trade Secrets Act, 18
U.S.C. ? 1905. Chrysler Corp. v. Brown,
441 U.S. 281, 285, 317-18 (1979). The
rights of submitters as outlined by the
Supreme Court in Chrysler are inad-
equate to protect against the disclo-
sure of submitted information which
should properly be kept confidential.
For that reason, this bill would estab-
lish procedural rights in the Freedom
of Information Act itself.
This section changes the judicial
review provisions of the current Free-
dom of Information Act to establish
equivalent causes of action for re-
questers and submitters. The bill in-
tends that the courts will receive the
judicial review requests of both re-
questers and submitters with equally
adequate treatment.
Submitter actions to enjoin disclo-
sure must be brought prior to release
of the documents, and usually will be
commenced within 10 days after the
final agency decision. If the submitter
has not been given notification but
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learns of the pending disclosure, suit
may be brought upon that disclosure
in the same manner as.if such notice
had been given.
This subsection also, for the first
time, permits suits for injunctive relief
against nonpublication or nonindexing
of records covered by subsection (a)(1)
or (a)(2) of this section. The bill in-
tends that agencies may be required to
index records within a reasonable time
if they have not done so already under
existing requirements, but that rea-
sonable latitude be given in this diffi-
cult area.
PERSONAL JURISDICTION
Proposed subsection (a)(4)(C) would
provide the district courts with per-
sonal jurisdiction, in any suit filed
under the act, over all requesters and
submitters of information. If a re-
quester filed a complaint to compel
disclosure of certain information, the
district court in which the complaint
was filed would have jurisdiction over
any submitter of the information.2
Similarly, in a suit by a submitter,
the court would have jurisdiction over
any requester of the information.
These proposed provisions would
insure that an adverse party receives
notice of the complaint, has the right
to intervene, and will be bound by the
court's decision.
While this provision allows a district
court to consolidate submitter and re-
quester causes of action into a single
suit, it does not alter current law with
regard to venue. In a consolidated suit,
venue would be determined in accord-
ance with the current standards of the
Federal rules of civil procedure, 28
U.S.C. 1591.
The court to which the action is
properly brought has jurisdiction over
the necessary parties regardless of
their physical location. This will
permit intervention and impleading as
necessary to effectively resolve all
issues in the litigation. The committee
considered but did not adopt a provi-
sion altering normal rules of venue
and transfer, so usual venue and trans-
fer provisions continue unaffected.
When the agency is served with a
copy of the complaint filed by either
requester or submitter, it must
promptly give notice of the action to
the opposite party or to multiple sub-
mitters or requesters, as the situation
may warrant. This is already the prac-
tice of the better agencies, and it is en-
dorsed.
NOTICE OF LITIGATION
Proposed subsection (a)(4)(D) would
require agencies to notify requesters
and submitters whenever a suit is
brought concerning a particular re-
quest or submission. If a person who
requested confidential business infor-
mation exempt under exemption 4
filed a complaint to compel disclosure,
the agency would be required to notify
each submitter of that information
that the complaint had been filed.
Similarly, if a submitterr filed a com-
plaint to enjoin disclosure of such in-
formation, the agency would be re-
quired to notify each requester.
Subsection (a)(4)(E) provides equal
treatment for requesters and ' submit-
ters in the action, by requiring that
cases brought by each party shall be
determined de novo by the court. The
judicial determinations made de novo
under current law have operated to
enhance the credibility of the deci-
sions made about disclosure by agen-
cies, since an impartial judge will con-
sider the full merits of the case for dis-
closure unconfined by the agency's
record. The same impartiality and
thus the same credibility will be
brought to cases seeking the nondis-
closure of private information upon
complaint of the private submitter. A
great many submitter cases under cur-
rent law have been reviewed de novo,
and this codifies.that practice.
Burdens of proof rest with the
agency in a withholding case and with
the submitter in a case seeking to
enjoin disclosure.
ATTORNEY FEES
Subsection (3) of section 5 of the bill
deals with attorney fees. It provides
that the court may in its discretion
award attorney fees and costs against
a submitter who is a party to the liti-
gation, in favor of the requester. This
does not change the existing case law
which permits such recoveries against
the agencies themselves. But it would,
for example, allow a requester of valu-
able private information who substan-
tially prevails to receive both the sub-
mitter's information and the submit-
ter's funding of the requester's legal
fees in obtaining that information.
Submitter interests objected to the
amendment during its consideration
because of the shifting of the equiva-
lent of a double loss to the submitting
person. A court retains discretion to
award no fees or to award such fees
only against the agency.
PUBLIC RECORD REQUESTS
Due to the flood of requests for in-
formation, Federal agencies spend
enormous amounts of time and money
retrieving, duplicating, and mailing
records. Though much of the time and
cost necessary to comply with these
requests fulfills a legitimate responsi-
bility of Government to its constituen-
cy, in many instances records are more
readily available in the public domain.
Public libraries, for example, have a
wealth of newspapers and magazines
on file which are easily retrievable and
available to the public. Requests that
agencies provide documents, on the
other hand, often require employees
to duplicate hundreds of pages of
newspaper and magazine articles while
' Such "nation wide" jurisdiction and service of sorting them out from exempt infor-
process of a district court by the court itself is al- mation. Indeed, as Antonin Scalia, pro-
ready provided for by statute in other contexts. fessor of law at the University of Chi-
See. e.g., Interpleader Procedure Statute. 28, U.S.C.
2361; Sherman Antitrust Act. section 5, 15 U.S.C. sago, observed, Federal agencies have
5. been compelled to act as "the world's
S 1817
largest library reference system." The
FBI, for instance, employs 300 special-
ists to work with FOIA requests only.
According to Attorney General Wil-
liam French Smith, those who request
information pay less than 4 percent of
the retrieval cost. As a result, the
Senate Subcommittee on Criminal
Laws and Procedures recommended in
1978 that: -
Where public record items such as news-
paper clippings and court records are incor-
porated in the file, the agency should not be
required to Xerox these for the requester,
but should, instead simply be required, to
identify these items by date and source.
Senate Report No. 51, 95th Con-
gress, 2d session 71 (1978).
The new language of section 6 is de-
signed to remedy these problems. The
revised section specifically allows
agencies to offer a choice of an index
identifying the date and source of
public records, or copies of the docu-
ments for a fee. If the first option is
selected, the FOIA workload of agency
employees will in many cases be re-
duced. In no event, however, should a
Federal agency be compelled to pro-
duce an index not already in existence
at the time of the request. If request-
ers choose the second option, the au-
thorization to collect processing fees
in addition to search and duplication
fees will insure that users of FOIA are
not subsidized by taxpayers. Thus,
public access to Government docu-
ments will be maintained at current
levels while the overall cost and
burden to Federal agencies and the
taxpayer is reduced.
CLARIFY EXEMPTIONS
Section 7 of the bill is intended
merely to clarify the effect of the ex-
emptions listed in the paragraphs of
section 552(b). In place of the current
language stating that "This section
(552) does not apply" to matters cov-
ered by the enumerated exemptions,
the bill would make clear that "The
compulsory disclosure requirements of
this section (552) do not apply to mat-
ters so exempted.
REASONABLY SEGREGABLE
In 1974 Congress attached the "rea-
sonably segregable" clause to subsec-
tion (b) of the Freedom of Informa-
tion Act. The purpose of this clause
was to require Government agencies to
release any meaningful portion of a re-
quested record that can be separated
from portions that are specifically
exempt from disclosure. The courts
have often strictly enforced this
policy. While much useful and non-
confidential information has been re-
leased under this clause, both the
courts and the agencies have ex-
pressed concern that some "reason-
ably segregable" information may ac-
tually prove threatening to national
security, law enforcement, and confi-
dential Government informants when
pieced together with other seemingly
nonexempt information or informa-
tion obtained independent of FOIA. It
is this threat that the new proposal
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CONGRESSIONAL RECORD - SENATE February 27, 1984
seeks to alleviate by allowing the
agency to consider whether releasing
portions of sensitive records could
cause the harm that exemptions (b)(1)
and (b)(7) are intended to avoid.
The extent of judicial review of an
agency's nondisclosure or limited re-
lease of information is a hotly debated
issue. In 1971, Congresswoman Patsy
Mink requested copies of conflicting
recommendations made to President
Nixon on the advisability of an under-
ground nuclear test to be performed
that fall. After the request was denied,
Congresswoman Mink and 32 other
Members of the House initiated a
FOIA suit to compel disclosure. The
district court granted summary judg-
ment in favor of the Environmental
Protection Agency on the basis of an
affidavit filed by EPA which claimed
generally that certain reports were
exempt from disclosure under exemp-
tion (b)(1). On appeal, the decision
was reversed and the case remanded to
the district court with instructions to
release all information that could be
disclosed. The Supreme Court re-
versed the decision of the court of ap-
peals after finding that areas of na-
tional security were better left to the
executive branch.
In a well reasoned opinion, the Su-
preme Court found that Congress
clearly- intended to place the burden of
determining what was exempt under
subsection (b)(1) on the President and
that the FOIA "in no way affect[ed]
categories of information which the
President 0 0 ? has determined must
be classified to protect the national de-
fense or to advance foreign policy."
112 CONGRESSIONAL RECORD 13659.
Therefore, after receiving an affidavit
which generally but fully justified the
withholding of the reports under
(b)(1) exemption and the applicable
Executive order, the Court declined to
submit the reports to in camera in-
spection.
Though the Court found that an af-
fidavit filed by the agency could gen-
erally allege exemption without spe-
cifically detailing each portion of the
document, other courts refused to
allow the Government the latitude the
Supreme Court had found so neces-
sary. In Vaughn against Rosen, in
which a law professor requested copies
of personnel policy reports prepared
by the Bureau of Personnel Manage-
ment, the Court of Appeals for the
District of Columbia circuit defined a
strict indexing and affidavit procedure
which soon became a basic step in
FOIA cases.
The amendment is not intended to
prevent or limit the courts or agencies
from considering the jigsaw puzzle
effect before releasing information
that is segregable from information
exempted under one or more of sub-
section (b) exemptions. This bill recog-
nizes that responsible application of
this principle is essential to proper in-
terpretation of the scope of the ex-
emptions. The purpose of the amend-
ment is to especially insure that this
principle is considered in (b)(1) and
(b)(7) cases because of the nature of
the information exempted in those
sections and the potential harm that
could occur should highly confidential
information be released.
This might raise the question of
whether it would be wiser to alter the
statutory requirement for de novo
review in FOIA cases where sensitive
information is at stake. This idea has
won support for its advantages in
terms of judicial policy as well. The
distinguished Judge Carl McGowan,
until recently Chief Judge of the U.S.
Court of Appeals for the District of
Columbia Circuit, has sharply ques-
tioned the appropriateness of de novo
review for any cases under the Act:
The fact-is that in the Freedom Informa-
tion Act the Congress has dumped on the
Federal Courts what is essentially an admin-
istrative function. Our District Courts are
deluged with tasks which under any sensible
allocation of Government resources should
be performed at the administrative level.
Any Judicial review of the results should be
confined to the administrative record and
by reference to the arbitrary and capricious
standard . . . You might as well put a sign
out in front of the courthouse (saying)
we're the agency administering the Free-
dom of Information Act, Access Reports,
141, 150 (Jan. 6, 1982).
In sum, the adoption of this provi-
sion will grant agencies added discre-
tion to mitigate the potential harmful
effect of segregating information out
of sensitive records that- can supply
the pieces to complete a mosaic pic-
ture.
This bill enjoys broad bipartisan
support and reflects the accumulated
wisdom of many diverse interests, in-
cluding media representatives, public
interest groups, the Reagan adminis-
tration, members of the business com-
munity, and law enforcement agencies.
The FOIA Reform Act has been
widely hailed as a reasonable and
worthwhile compromise by these di-
verse and often divergent interests be-
cause it achieves the dual goals we set
when embarking upon improving the
act. Namely, the bill eliminates many
of the current problems of the act
without weakening its effectiveness as
a valuable means of keeping the public
informed about Government activities.
As the Washington Post accurately
noted:
It is quintessentially American to believe
that the people control the Government
and that they have a right to know what
the Government is doing. The Judiciary
Committee bill preserves that right (Wash-
ington Post, May 25, 1982, page A16.)
Indeed, this right is preserved, and
concomitantly the public is better
served by the enhancements to the act
which are included in this bill.
No one questions the obviously vir-
tues of an open government; nor
should anyone question the Govern-
ment's obligation to protect the identi-
ties of confidential informants. No one
questions the value of an informed
citizenry; nor should anyone question
the Government's obligation to re- ?
spect the privacy of those same citi-
zens. No one questions the merits of a
free information policy; nor should
anyone question the need to protect
defense technical data.
S. 744 is a substantial step toward re-
storing the balance between public
access to Government information and
efficient execution of necessary, and
occasionally confidential, Government
functions. This bill achieves this bal-
ance in a manner that preserves both
goals of the act: A more informed citi-
zenry and a responsible and effective
Government.
The brief summary of the actions of
the Senate Judiciary Committee
should provide some insight into the
way the committee approached many
of the same issues raised by the report
under consideration by this body.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment.
The amendment (No. 2746) was
agreed to.
Mr. QUAYLE. Mr. President, S. 774,
the latest in a series of bills to amend
the Freedom of Information Act
(FOIA), has had a long journey down
a narrow path. Any amendments to
the FOIA must balance the act's basic
premise that the American people
have the right to know the workings
of their Government, with the necessi-
ty of having some information in the
hands of the Government exempt
from disclosure.
I speak today to address several con-
cerns raised by representatives of the
press. I became familiar with these
concerns through my own experience
as a publisher and newspaperman. It is
a special honor for me to speak to the
concerns of these groups because my
grandfather, Eugene C. Pulliam, was a
founder of Sigma Delta Chi back in
1909 at DePauw University in Green-
castle, Ind.
Let me begin, Mr. President, by reit-
erating that the FOIA is an invaluable
law in assisting journalists to fulfill
their mandate to keep the American
people informed about their Govern-
ment. There are two sets of problems
with S. 774. The first centers on
needed improvements to the FOIA
that are missing from S. 774. The
second concerns provisions which, if
enacted, could harm the flow of infor-
mation about the Government to the
public.
Let me begin by addressing several
needed improvements to the FOIA
that S. 774, does not address. Perhaps
the most serious omission is the ab-
sence of a provision mandating that all
fees and processing charges be waived
for requested information that bene-
fits the general public. While S. 774's
report language is helpful, it is clearly
not being heeded by the Justice De-
partment whose January 1983 guide-
lines have discouraged the granting of
fee waivers. Any package of amend-
ments to the FOIA must address this
problem; S. 774 does not.
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
S. 774 also fails to provide sanctions
against agencies guilty of delays in
complying with FOIA requests. The
press experience is that often these in-
explicable delays are so lengthy that
they are tantamount to denial of the
information. If the FOIA is to be as ef-
fective as its founders intended, this
must be rectified.
Omission of amendments correcting
these weaknesses means that an excel-
lent opportunity to improve the FOIA
is being wasted. But several provisions
of S. 774, if enacted, could seriously
weaken the FOIA.
Perhaps the most troublesome of
these would permit the Government
to collect the advanced payment of
fees in some cases. This provision can
effectively limit use of the FOIA to
the wealthy and restrict the ability of
the American citizen with average
means from using the FOIA.
S. 774 would also add an exemption
to the FOIA for technical data. Such
an exemption could well spawn a de
facto classification system for scientif-
ic data. Rather than adding needless
exemptions to the FOIA, the Govern-
ment should use its standard classifi-
cation system to safeguard this infor-
mation.
The expanded exemptions for law
enforcement agencies are also of con-
cern to the press, especially since the
justification for such sweeping exemp-
tions has not been bolstered by facts
and specifics. Similarly, the new ex-
emption for organized crime investiga-
tions granting the Attorney General
the authority to prevent scrutiny of
files for 8 years is too broad and not
needed in light of the current law's ex-
emption for enforcement proceedings.
In closing, Mr. President, we must
remember, as we consider S. 774, that
Congress created the FOIA for one
very clear and distinct reason-to keep
the American people aware of the
workings of their Government. We
need to be certain that we reinforce
that purpose, not weaken it.
Mr. THURMOND. Mr. President, I
support S. 774, the Freedom of Infor-
mation Reform Act, of which I am a
cosponsor, along with the distin-
guished chairman of the subcommit-
tee (Mr. HATCH). This measure re-
ceived wide, bipartisan support in the
Committee on the Judiciary, following
extensive efforts to develop a compro-
mise proposal:
The purpose of S. 774 is to distin-
guish more precisely those permanent
records which ought to be subject to
public disclosure under the act from
the small, but extremely important,
class of records which ought to be pro-
tected from disclosure. Such a distinc-
tion is difficult to make precisely, but
I believe that this has been achieved
in this bill.
S. 774 is a complex and comprehen-
sive bill designed to eliminate several
abuses that are permitted under the
present law. First, S. 774 would broad-
en the protection that law enforce-
ment agencies can provide to those
persons who supply confidential infor-
mation. Under present law, a law en-
forcement agency can only exempt in-
formation on an informant if that in-
formation would conclusively disclose
the identity of a confidential source. S.
774 would broaden the information
protected by dropping the conclusive
identity requirement and replacing 'it
with a new test that the information
could reasonably be expected to dis-
close the identity of an informant.
' Current law provides that informa-
tion is only eligible to be protected if it
is contained in an investigatory file.
This formalistic requirement would be
removed under S. 774 through lan-
guage which only refers to "records or
information compiled for law enforce-
ment purposes."
Furthermore, this bill, if enacted,
would enlarge the scope of data that
could be appropriately withheld from
disclosure. In connection with the per-
sonal privacy exemption, it removes
the requirement that the personal
data be contained in a personnel or
medical file. The Secret Service would
receive additional protection under
this measure, since it would not have
to reveal data which could reasonably
be expected to adversely affect its pro-
tective functions.
Finally, Government agencies would
receive a tremendous benefit from the
revised definition of a proper party for
making a FOIA request. Under S. 774,
a proper request could only be made
by a "United States person," which
would exclude nonresident aliens.
This proposed bill is responsive to
needs expressed by a wide variety of
agencies and organizations-national
security agencies, journalism societies,
law enforcement, and private individ-
uals. I believe that S. 774 is legislation
worthy of the support of Senators on
both sides of the aisle and I urge its
prompt passage.
Mr. GRASSLEY. Mr. President, I
am pleased to support S. 774, the Free-
dom of Information Reform Act,
which will have the effect if passed
into law of clarifying and improving
our Nation's information policy. This
bill is the result of extensive input
from, among others, representatives of
business, media, law enforcement, and
public interest groups. Their views, ex-
pressed publicly to Congress in 9 days
of hearings, have enabled us to fash-
ion a bill that contains improvements
targeted to the interests of each of
these groups.
I wish to especially commend Sena-
tor HATCH and his staff for their thor-
ough research and earnest efforts in
resolving the difficult issues involved
in this act. It was the willingness of
Senators HATCH and LEAHY to work to-
gether on these controversies, along
with the aid of myself and Senators
THURMOND and DECONCINI, that pro-
duced the compromise bill S. 1730,
which garnered the unanimous sup-
port of the Judiciary Committee last
Congress. S. 774, which is almost iden-
tical to the earlier compromise, has
S 1819
again gained the Judiciary Commit-
tee's support, and I anticipate the sup-
port of the full Senate will be voiced
today.
. When Congress first enacted the
Freedom of Information Act in 1966, it
was to assure our citizenry that as a
democratic Government we should
and will operate in the open. The ex-
press purpose then, and one that con-
tinues to hold today, is that facilitat-
ing an informed public is our best safe-
guard against ill-conceived Govern-
ment policies.
Statutory guidance of the Govern-
ment's disclosure policy is not a simple
procedure though. A balance must be
maintained between allowing public
access to Government information and
yet protecting the release of docu-
ments which may jeopardize lives of
witnesses or informants, privacy of in-
dividuals, national security, or confi-
dentiality of valid business concerns.
The Freedom of Information Act is
very specific on these points, but is not
specific on how these protections
should be administered.
In tightening the exemptions for
documents used in connection with
legal investigations, this bill takes an
important step in not only increasing
the effectiveness of our law enforce-
ment procedure, but also in protecting
witnesses and informants from threat
of identity disclosure.
Hearing testimony also indicated a
need for fine-tuning of the trade se-
crets exemptions for businesses. While
drafters of the current law intended to
protect confidentiality of private en-
terprise information, commerical gath-
erers have discovered loopholes en-
abling them to obtain information
which could compromise or endanger
competition. S. 774 allows submitters
prior notification when information
which could be confidential is being
requested. Both requester and submit-
ter have an opportunity to set forth
their reasons for release or nondisclo-
sure.
Opening Government's doors to the
public has not come without a price.
As the volume of FOIA requests has
increased, so has. the cost and the time
involved in filling the requests. This
bill authorizes OMB to establish a uni-
form fee schedule that seeks to fairly
charge those requesting materials for
commercial purposes and waive the
costs of those requesters representing
the media or a public interest.
Receiving information in a timely
manner is naturally one of the media's
main concerns. While proper screening
can delay the disclosure process, this
bill further defines when delay is al-
lowable and binds agencies to a final
60-day deadline for all processing, in-
cluding appeals. This time limit pro-
tects requesters from the possibility of
an indefinite waiting period.
As I stated at the outset, we have
come a long way in forming a bill that
is acceptable to verying interests. I be-
lieve this compromise is a fair and sen-
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S1820 CONGRESSIONAL RECORD - SENATE
sible response to -requests for legisla-
tive change to provide an effective yet
responsible policy of Government
access.
Mr. LEAHY. Mr. President, the
Freedom of Information Act is the
vital link between the people of the
United States and their government.
It was specifically designed to deter
the evolution of a government by se-
crecy. In reporting the Freedom of In-
formation Act in 1965, Senator
EDWARD LONG of Missouri so correctly
stated:
A government by secrecy benefits no one.
It injures the people it seeks to serve; it in-
jures its own integrity and operations. It
breeds mistrust, dampens the fervor of its
citizens and mocks their loyalty.
The conflicts between government
confidentiality, public oversight of
government activities and privacy
rights of individual citizens have been
age-old, complex and persistent. They
occur in every generation in every
democratic nation of the world.. The
policy debates which arose during the
formulation of the bill we are consid-
ering today focused on striking the ap-
propriate balance between openness
and secrecy and searching for the best
ways to implement common objectives.
The Freedom of Information Act
has generally been a success. In most
cases, the nine exemptions in the act,
when properly construed, protect the
information that should be protected
while still allowing the public to gain
access to information imperative for
an informed public.
Since the act was passed in 1966 and
amended in 1974, there has been long
and useful experience in applying the
provisions of FOIA, and as a result,
numerous ideas for improving the law
have emerged.
Since its adoption, FOIA had proven
to be an invaluable tool for disclosing
Government waste and wrongdoing,
and keeping the public informed on
such wide-ranging areas as health,
safety, the environment, respect for
personal liberties, and efficiency in
carrying out mandated Federal pro-
grams of all kinds. Through FOIA we
have learned about discrimination in
the administration of Federal con-
tracts, major medicare fraud by pri-
vate health organizations involving
millions of dollars of public funding,
defective and unsafe consumer prod-
ucts, and ineffective or harmful drugs
and medical devices.
But FOIA is more than the sum of
its specific achievements. It puts a
mammoth government on the same
plane as any citizen it serves. It makes
available to that citizen the informa-
tion to deal with the complexity of
government and to understand its ac-
tions and purposes. The act is one of
the most stabilizing forces in our de-
mocracy. It is not to be tampered with
casually.
The history of S. 774, like the histo-
ry of the Freedom of Information Act
since 1966, is the history of careful
compromise. Working with FOIA has
taught those inside of Government
and both submitters and requesters
outside of Government much about
how it works and how it can be made
to work better.
That experience was the wellspring
for the intensive debate and negotia-
tions that transformed .a repressive ad-
ministration bill into the moderate
and useful version now before us. The
President's bill sought to hack away at
the reach of FOIA and particularly
the 1974 amendments. The present bill
recognizes the legitimate complaints
of some agencies and submitters, while
maintaining FOIA's major premises
and all of its principal features.
The battle over the scope of this leg-
islation began 3 years ago when the
principal spokesman for the Reagan
administration declared in testimony
before the Constitution Subcommittee
that the Freedom of Information Act
is a highly overrated instrument.
At the time, that statement shocked
many of us who had seen FOIA turn
the term open government from a
catchphrase to -a reality. After 3 years
of experience, no one could any longer
be surprised by the views of this ad-
ministration towards open govern-
ment.
From its earliest days, the adminis-
tration has put the public on notice
that it would dispense information
only on a need to know basis.
This administration rewrote the Ex-
ecutive Order on Classification sweep-
ing away.a trend of nearly three dec-
ades aimed at better informing the
public on defense and foreign policy
issues.
This administration attempted to
force over 100,000 Government em-
ployees with access to classified infor-
mation to give up their first amend-
ment rights and sign lifetime agree-
ments to let the Government censor
their writings or statements.
This administration, in the name of
military security, barred all journalists
from accompanying the invasion force
on Grenada. No other administration
in modern times has attempted to
impose this kind of censorship on war
correspondents.
This administration has barred the
entry into the country of foreign
speakers from both sides of the politi-
cal spectrum whose views might be re-
garded as controversial or unfriendly
to American interests.
This administration singled out and
stigmatized with a propaganda label
Canadian films dealing with acid rain
and nuclear war, because the views ex-
pressed in those films differed from
those of the administration.
. This administration has tried to in-
terfere with the free flow of unclassi-
fied scientific and technological infor-
mation by threatening universities and
individuals with dire consequences if
they went ahead and published this
unclassified information.
This administration has made it
clear that, if left unrestrained by Con-
gress, it will force its loyalty and secre-
February 27, 1984
cy directives through extensive use of
the polygraph, although the results
are doubtful and the intrusion into
the lives of Government employees is
severe.
This administration, through its
grant regulations, has tried to gag
nonprofit organizations and prevent
them from communicating with Gov-
ernment at all levels.
This administration undertook a
policy to restrict the release of indus-
try data that would help expose pesti-
cide threats to workers and consumers,
after the House and Senate Agricul-
ture Committees rejected a similar
proposal.
This administration has stopped re-
leasing information about under-
ground nuclear weapons testing which
routinely had been given out in previ-
ous administrations because it was too
burdensome to keep the public fully
informed.
Most importantly from the perspec-
tive of today's debate, this administra-
tion consistently has posed barriers to
the fruitful use of the FOIA. Delays
are longer. Fees are used to discourage
requesters. Fee waivers are given out
grudgingly. The Privacy Act is being
interpreted in a way which deprives in-
dividuals of any access to files com-
piled about them by Federal law en-
forcement or intelligence agencies.
These assaults on the free flow of in-
formation are assaults on the viability
of the first amendment. That is why I
have fought so hard against the
Reagan administration's policies and
why I have devoted so much time to
the fight to preserve the FOIA.
The Reagan administration's origi-
nal proposals would have gutted the
act. These proposals generated a long,
vigorous, sometimes heated debate. Ul-
timately, a consensus emerged in the
form of the bill now before the
Senate.
S. 774 concedes the need for change
to improve the operation of the act
and to insure fairness between compet-
ing interests where there have been in-
stances.-of unfairness in the past. But
the consensus bill consists overwhelm-
ingly of fine-tuning changes and not a
wholesale departure from FOIA's pre-
sumption that openness should reign.
Perhaps no area was more difficult
to resolve than how the act should-
handle law enforcement records.
When the administration first sent its
proposals forward in the last Congress,
it proposed two new exemptions. First,
it created a new exemption for any
open investigatory file. This open file
provision, which was contained in the
1966 act, was what led Congress to
amend the law enforcement exemp-
tion in 1974. The administration pro-
posal applied not only to FBI files but
also to investigations of product and
drug safety, such as the Pinto gas
tank, the Firestone 500 tire, and the
Pertussis vaccine, the dangers of
which all came into the public view as
a result of FOIA requests.
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February 27, 1984 CONGRESSIONAL RECORD - SENATE
The other major new exemption the
administration sought was a blanket
exemption for files concerning orga-
nized crime, terrorism, and foreign
counterintelligence. When I took a
hard look at this new exemption, I dis-
covered that it was not only overly
broad, but it did not even solve most of
the problems the FBI stated that it
had as a result of FOIA.. The basic
case the administration had been
making is that a sophisticated user
could ferret out information about
FBI investigations simply by making
requests to which the FBI was re-
quired to respond that it had records
but they were exempt. Without going
into further detail on the techniques
involved, I would just point out that
creating a new exemption in no way
solves that problem.
In addition, foreign counterintelli-
gence was included in the law enforce-
ment exemption, which might have
had the ironic effect of narrowing the
exempt status which these documents
already receive under the broader na-
tional security exemption.
After literally months of work, Sena-
tor HATCH and I agreed to a number of
changes which were carefully crafted
and aimed at problems for which the
FBI had made a case.
These changes make a positive con-
tribution to the needs of both Govern-
ment and the public in the handling of
law enforcement records under FOIA.
The protection of informants' identi-.
ties is strengthened, and an 8-year
moratorium is created for records re-
lating to investigations of organized
crime, an area where moratorium is
appropriate. FBI training manuals will
have added protection and the agency
will have expanded time limits in
which to meet FOIA requests. The
agency will be able to protect from dis-
closure the fact that it has certain
documents in its possession where the
very fact would jeopardize an inform-
er. These changes will make the work
of the FBI easier and more secure.
More importantly, these changes are
narrowly aimed so that they will not
interfere with the public's right to
know where law enforcement is not se-
riously jeopardized.
This spirit of narrow change based
on demonstrated need guided our ne-
gotiations over all points in the bill. As
a result, many other needed technical
changes in FOIA are contained in S.
774.
For example, there are procedures to
allow submitters of information a rea-
sonable opportunity to object to re-
lease of data.
Commercial users, who account for
two-thirds of the cost to the Govern-
ment for processing FOIA requests
will bear their fair share of the cost
for access.
Agency time limits under FOIA are
made more realistic, with the Con-
gress' firm expectation that they will
be enforced more vigorously.
A new, carefully-tailored exemption
for Secret Service records generated in
the course of the Service's protective
functions is created.
A new procedural section is adopted
which will prevent FOIA requests
from interfering with ongoing judicial
proceedings or administrative adjudi-
cations without eliminating litigants'
rights to use the FOIA. Finally, the
bill for the first time gives the public
and Congress a complete picture of
the recent growth of special legislative
exemptions to the FOIA that could, in
time, leave the act applying to noth-
ing.
I had hoped that the bill would
adjust several other major problems
which requesters are having in obtain-
ing information under FOIA. These in-
clude problems created by President
Reagan's Executive order on classifica-
tion which are addressed in legislation
introduced by Senator DURENBERGER
and myself, problems created by the
administration's policy which inter-
prets the Privacy Act as a withholding
statute for FOIA purposes, which are
addressed by legislation introduced in
the House by Congressmen ENGLISH
and ERLENBORN, and finally, problems
created by the Department of Justice's
1983 policy guidelines on fees and fee
waivers.
While the Judiciary Committee
report on S. 774 repudiates the Justice
Department's interpretation of the
current and proposed fee waiver lan-
guage, I think it would have been ap-
propriate to go further and provide for
greater judicial scrutiny of individual
fee waiver decisions.
. Because I think we have come so far
in hammering out a compromise on
this legislation, I am content to leave
these issues to consideration by the
Senate in the future. I am also confi-
dent that Congressman ENGLISH in the
House Government Operations Com-
mittee will pay particular attention to
these matters when they begin hear-
ings on this legislation.
In that regard, I know that the
House will examine all of the work we
have done in developing S. 774, but I
hope it pays particular attention to
one area where an agreement has re-
cently been struck, but where the
Senate has not had the benefit of full
hearings. The amendment we offer
today deletes the word royalties from
the. provision which permits the Gov-
ernment to charge fair value fees for
certain kinds of technical data. After
the hearing process on S. 774 was com-
pleted, it came to the committee's at-
tention that the original formulation
of this provision might be at odds with
the longstanding provision in the law
which prohibits the U.S. Government
from holding copyrights in most cir-
cumstances. Our amendment attempts
to eliminate this conflict, but I think
the issue deserves further hearing in
the House.
But this one reservation should not
obscure a large list of the bill's accom-
plishments. S. 774, building on nearly
two decades of experience with the
S 1821
act, updates and tightens it, and yet
maintains all of its essential features.
A great deal of the credit for reach-
ing this sound compromise goes to
Senator HATCH, chairman of the Con-
stitution Subcommittee. The Senate is
in his debt for his diligence in pursu-
ing this goal and for his hard work
and patience in talking through sub-
stantial differences between propo-
nents and critics of current law.
Senator HATCH's dedication to the
process of refining this important leg-
islation is again demonstrated in the
amendment he and I are offering to-
day. This amendment drops the pro-
posed new exemption for technical
data. The original formulation of this
exemption was quite broad and ap-
plied governmentwide. At the time the
Judiciary Committee considered S.
774, I stated that while I thought the
exemption was aimed at a real prob-
lem, especially in the defense area, I
thought the language of the amend-
ment was overly broad. The bulk of
the problem presented to the commit-
tee was addressed by an amendment
offered to the Department of Defense
authorization bill by Senators THUR-
MOND and JACKSON last August. It now
appears that the unrestricted release
of Government-generated technical
data poses a problem for both the
Government and American industry
and only one other agency, NASA. I
am pleased that Senator HATCH joins
me in the view that this problem is
best addressed by the NASA author-
izing committees. We will both urge
the Senate Subcommittee on Science,
Technology and Space to~ closely ex-
amine this problem with an eye
toward a narrow solution such as that
incorporated into the Defense Depart-
ment authorization.
If recent history provides any guid-
ance, I am sure that the administra-
tion will view Senate passage of S. 774
as a vindication of its restrictive infor-
mation policies and its call to radically
alter the Freedom of Information Act.
But if the President is suggesting that
past disclosures under FOIA would
have been sharply narrowed if S. 774
had been the law, he is in clear dis-
agreement with the testimony of his
own Justice Department.
In his testimony before the Judici-
ary Committee., former Assistant At-
torney General 'Jonathan Rose dis-
cussed a book entitled "Former Se-
crets," which cites over 590 significant
examples of information released
through FOIA. In Rose's opinion, only
four may have been affected by S. 774,
and in two of those cases, release
might have been delayed, but not pre-
vented.
The President's agenda on a broad
spectrum of issues is the narrowing of
access to Government information.
The agenda of this body in S. 774 is to
make the Freedom of Information Act
fairer and more workable. The bill
before us is evidence that Congress
can successfully deal with the issue of
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S 1822
CONGRESSIONAL RECORD - SENATE February 27, 1984
the public and Government informa-
tion-an issue on which there is a wide
philosophical divergence-and still
come up with a result that preserves
the presumption of openness.
We have answered the legitimate
complaints of Government about the
mechanics of the FOIA process. We
must continue, through legislation and
oversight, to fight to open the doors of
Government and stand up for the peo-
ple's right to know.
It is worth remembering the most
often-sighted expression in the legisla-
tive history of the FOIA, which is an
excerpt from a letter by James Madi-
son to W. T. Berry, dated August 4,
1922. Madison reminds us that-
A popular Government without popular
information, or the means of acquiring it, is
but a Prologue to a Farce or a Tragedy; or,
perhaps both. Knowledge will forever
govern ignorance; And the people who mean
to be their own Governors, must arm them-
selves with the power, which knowledge
gives.
In closing, and at the risk of leaving
someone off the list, I would like to
give special thanks to a number of or-
ganizations which have provided me
enormous help daring our considera-
tion of the Freedom of Information
Reform Act. These include the Society
of Professional Journalists, Sigma
Delta Chi, the American Newspaper
Publishers Association, the National
Newspaper Publishers Association, the
Radio and Television News Directors
Association, the Newspaper Guild, the
Public Citizen Litigation Group,
Common Cause, the American Civil
Liberties Union, the Reporters Com-
mittee for the Freedom of the Press,
the American Society of Newspaper
Editors, the National Association of
Broadcasters, and the National Co-
ordinating Committee for the Promo-
tion of History. The American public
owes these groups and many others a
great debt of gratitude for their inter-
est in preserving the mechanics which
make the first amendment a reality.
I also want to thank my Judiciary
Committee staff, John Podesta, Ben
Scotch, and Joyce Saadi for the literal-
ly thousands of hours of fine work
which they have. put in this effort.
This is one piece of legislation where it
is an understatement to say their pro-
fessionalism and dedication was essen-
tial. Without them we would not be
passing it today.
Mr. BINGAMAN. Mr. President, I
am aware and appreciative . of the
great quantity of thoughtful work ac-
complished by my distinguished col-
leagues from Utah and Vermont, and
others, on this bill; I am sure we are
all grateful for their efforts. I do have
one concern, however, which I would
commend to the attention of my col-
leagues. This is in reference to section
(4)(A)(i)(c) which deals with imposing
fair value fees or royalties on informa-
tion considered "commercially availa-
ble technological information." These
fees would be in-addition to those im-
posed for normal search and duplica-
tion expenses.
It is clear that, if the Government
imposes such fees on requestors of in-
formation under the Freedom of In-
formation Act, the result could well
be, in practice, to reduce the flow of
information which the act is designed
and intended to facilitate.
Government agencies would be re-
quired to determine the value of the
information in question and will then
be in the position of negotiating or as-
signing fees and royalties. This would
undoubtedly create a new complex and
cumbersome bureaucracy. Indeed,
while large publishing concerns would
be able to pay such fees, small publish-
er would be hindered by high fees and
lengthy negotiations.
Although the Government is permit-
ted by law and encouraged by the
President to own patents, U.S. copy-
right law holds that "copyright protec-
tion * * * is not available for any work
of the United States Government. * * *"
While not directly contradicting
this restriction, my feeling is that this
provision would come close to circum-
venting the principle that work gener-
ated by Government efforts should be
available for use by the public without
limitations such as economic restric-
tions.
It is true that on at least one occa-
sion, Government-funded work was
made available to a friendly, foreign
country, which may have had military
as well as commercial significance.
However, current rules and proposed
rules on the restriction on the trans-
mission of technical data, if properly
applied, would be capable of prevent-
ing such incidents. It is preferable to
leave FOIA clear of such restrictions,
in my opinion.
Mr. President, in such matters as
this, there is always a conflict between
the security and economic well-being
of the Nation, and the right of the
American people to information which
is produced by their own tax moneys.
Here, my feeling is that ample legal
restrictions already exist to protect
our national interests and, therefore,
the FOIA should not be burdened by
an unnecessary limitation which may
violate the intent of copyright law.
Such an unnecessary restriction would
also add an incentive for Government
officials to become recalcitrant in re-
sponding to public requests for infor-
mation, and would be virtually impos-
sible to enforce and implement in an
equitable way. I would encourage my
colleagues to join me in opposing this
provision of S. 774, which deserves fur-
ther review and perfection before it
becomes law.
Thank you, Mr. President.
The PRESIDING OFFICER. Are
there further amendments? If there
be no further amendments, the bill is
ordered to be engrossed for a third
reading.
The bill (S. 774) was ordered to be
engrossed for a third reading, was read
the third time, and passed.
Mr. BAKER. I move to reconsider
the vote by which the bill was passed.
Mr. BYRD. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
EXECUTIVE CALENDAR
Mr. BAKER. Mr. President, may I
say to the minority leader that on this
side, I have cleared for action by
unanimous consent certain nomina-
tions on the Executive Calendar. I
refer specifically to Calendar Nos. 463,
464, 465, 466, and 467, and ask if the
minority leader is prepared to consider
all of or part of those nominations.
Mr. BYRD. Mr. President, the mi-
nority is prepared to proceed to any or
all nominations on the Executive Cal-
endar.
EXECUTIVE SESSION
Mr. BAKER. Mr. President, I ask
unanimous consent that the Senate
now go into executive session for the
purpose of considering nominations on
the Executive Calendar numbered 463
through 467.
There being no objection, the Senate
proceeded to the consideration of ex-
ecutive business.
The PRESIDING OFFICER. The
nominations will be stated. .
THE JUDICIARY
The assistant legislative clerk read
the nomination of Pauline Newman, of
Pennsylvania, to be U.S. District
Judge for the Federal Circuit.
The PRESIDING OFFICER. The
nomination is considered and con-
firmed.
DEPARTMENT OF JUSTICE
The assistant legislative clerk read
the nominations of Robert C. Bonner,
of California to be U.S. Attorney for
the central district of California and
of Errol Lee Wood, of North Dakota,
to be U.S. Marshal for the district of
North Dakota.
The PRESIDING OFFICER. The
nominations are considered and con-
firmed.
DEPARTMENT OF STATE
The assistant legislative clerk read
the nomination of Robert F. Kane, of
California, to be Ambassador Extraor-
dinary and Plenipotentiary of the
United States of America to Ireland.
The PRESIDING OFFICER. The
nomination is considered and con-
firmed.
U.S. INFORMATION AGENCY
The assistant legislative clerk read
the nomination of Woodward King-
man, of California, to be an Associate
Director of the U.S. Information
Agency.
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