LETTER TO BARRY GOLDWATER FROM WILLIAM FRENCH SMITH

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01370R001501890003-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 21, 2016
• Document Release Date: November 6, 2008
• Sequence Number: 3
• Publication Date: September 21, 1984
• Content Type: LETTER

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EXECUTIVE SECRETARIAT
ROUTING SLIP
3637 (10.81)
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THE ATTORNEY GENERAL ~~~, P?~,x
September 21, 1984
For your information.
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Honorable Barry Goldwater
Chairman
Select Committee on Intelligence
United States Senate
-Washington, D.C. 20510
Dear Barry:
1ECiSIAIIVE LIAISON
Executive Registry,
84- o jr
This is in reference to your September 13, 1984 letter In
which you expressed your concern over the Department of Justice's
position on the CIA Freedom of Information relief legislation,
H.R. 5164. After a oareful analysis and discussion, and solely
based on what the CIA might gain if H.R. 5164 is enacted, we
support passage of that legislation.. As a result of our
willingness to accommodate the CIA's singular interests in this
matter, other Departments. -- including Defense and Treasury --
dropped their opposition to H.R. 5164, and the Administration
notified the House of Representatives of our position.
I do, however, believe that you should -understand the
importance of the law enforcement concerns we have forgone in
order to support, instead, the position urged by you and Director
Casey. Having forgone something of importance to me as chief law
enforcement officer, I urge you to broaden your own perspective
and understand those important goals. It is especially important
for you to understand because of your strong reputation as a
supporter of law enforcement, as well as intelligence.
As you correctly noted, our previous position on H.R. 5164
was based upon the Privacy Act amendment added by the House
Committee on Government Operations. That amendment to the Privacy
Act of 1974 would preclude agencies from taking the position that
records exempted from first-person access under the provisions of
the Privacy Act also need not be disclosed under the Freedom of
Information Act, pursuant to exemption (b)(3) of the FOIA. The
passage of this amendment would render the exemptions of the
Privacy Act essentially meaningless with respect to an individ-
uals's access to his own law enforcement records. Thus, even
though a person's request for information about himself from a law
enforcement agency could be denied under the Privacy Act, that
agency might nevertheless be required upon passage of this
amendment to disclose the same information under the FOIA.
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The Department of Justice, after exhaustive research and
analysis, reversed the earlier construction of the Privacy Act on
this issue in early 1982 and concluded, as have a number of
courts, including the 5th and 7th Circuits, that agencies should
be able to withhold from requesters the criminal law enforcement
r,ecords relating to themselves that are properly exempted from
access under the Privacy Act. Contrary to the information that
you received, 0MB first endorsed this position in early 1982.
Barry, this is not an insignificant matter. It is a most
important law enforcement concern,, something which I believe
deserves your careful consideration. Fifteen percent of the FOIA
requests the FBI receives and 58 percent of the FOIA requests the
DEA receives are from prisoners. Another 21 percent of the FOIA
requests that DEA receives are from known drug traffickers. These
requests help requesters to find out who cooperated with law
enforcment authorities, and how much those authorities know. In
the course of the hearings held during this Congress on S. 774,
the Department provided to the Senate Judiciary Committee a list
of over 200 documented cas.es where the FOIA had a harmful impact
on law enforcement activities. Moreover, in an earlier executive
session of the Senate Subcommittee, FBI-Director Webster provided
additional examples of the use of the FOIA by criminals, terrorist
groups, and hostile foreign intelligence agencies.
Although the Department of Justice has pledged to support
H.R. 5164, we still remain firm in our conviction that the Privacy
Act amendment will be harmful to law enforcement '' efforts in the
fight against crime.
William French Smith
Attorney General
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