DRAFT JUSTICE TESTIMONY ON S. 774, THE FREEDOM OF INFORMATION REFORM ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92B01283R000100070004-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 26
• Document Creation Date: December 23, 2016
• Document Release Date: September 13, 2013
• Sequence Number: 4
• Publication Date: July 31, 1984
• Content Type: MEMO

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usiAHvI !IALSON I
EXECUTIVE OFFICE OF THE PRESIDENT IL47_11.1P9 1
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
CL LL
TO:
July 31, 1984
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer
SEE DISTRIBUTION LIST
SUBJECT: Draft Justice testimony on S. 774, the Freedom of
Information Reform Act
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Cirwlar
A-19.
Please provide us with your views no later thaniday, 8/W84
(MTh: A hearing before the a subcxmrdttee of the Ho Goverment Operation
Oannittee is scheduled for 8/9/84.)
Direct your questions to me at (395-4870).
Enclosures
cc: F. Fielding
C. Wirp
R. Veeder
K. Wilson
_ VIII_
JA ? M r or
Assi tant Director for
Legislative Reference
S. Galebach
hg, 14J op Z 7E inf
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DISTRIBUTION:
Department of Education
Department of Housing and Urban Development
Federal Etergency Management Agency
General Services Administration
National Aeronautics and Space Administration
?,...tral Intelligence Agency
National Security Council
Office of Personnel Management
Department of Health and Human Services
Department of State
Department of the Treasury
Department of Energy
Environmental Protection Agency
Department of Agriculture
Department of Defense
Small Business Administration
Department of the Interior
Department of Transportation
Department of Commerce
Veterans Administration
United States Postal Service
Department of Labor
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DRAFT
STATEMENT OF
THE HONORABLE CAROL E. DINKINS
DEPUTY ATTORNEY GENERAL OF THE UNITED STATES
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT INFORMATION, JUSTICE, AND AGRICULTURE
COMMITTEE ON GOVERNMENT OPERATIONS
UNITED STATES HOUSE OF REPRESENTATIVES
ON
S. 774
THE FREEDOM OF INFORMATION REFORM ACT
AUGUST 9, 1984
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DRAFT FOIA TESTIMONY. DRAFT
Mr. Chairman and Members of the Subcommittee:
I am pleased to appear before you today to testify in
support of S. 774, a bill to amend the Freedom of Information
Act. This bill sets forth a number of crucial and needed reforms
in the provisions of that Act, while preserving entirely the
salutary objectives of the FOIA in maintaining an informed
citizenry. After careful consideration and refinement, this bill
was unanimously approved by the Senate on February 27 of this
year.
Former Assistant Attorney General Jonathan Rose appeared
before this Subcommittee in July of 1981 to discuss proposed
amendments to the FOIA then under consideration by the Adminis-
tration. He told you then -- and I emphasize today -- that this
Administration is firmly committed to the faithful implementation
of the Freedom of Information Act by all federal agencies. We
strongly support the basic purpose and philosophy of the Act: to
inform the public as fully as possible of the conduct of its
government in order to protect the integrity and effectiveness of
the government itself. We are fully committed to carrying out
the objectives and spirit of the Act.
We continue to strongly support this bill and we believe
that it represents a successful compromise between the govern-
ment's need to maintain the confidentiality of important law
enforcement information and the public's right to know about the
operations of their government. S. 774 also contains many needed
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procedural reforms of the FOIA, including measures that would
permit businesses that submit confidential information to the
government to receive notice of its impending disclosure, allow
the government to recoup a greater portion of the costs of
processing many FOIA requests, and create more realistic time
limits for the government to respond to FOIA requests.
I.
Previous witnesses before the Subcommittee have raised
certain concerns over the administration of the Act, suggesting
that any revision to the FOIA is
this time. They have pointed to
receiving responses or instances
too controversial to consider at
a few anecdotes of delays in
of perceived resistance by some
government personnel, and they have then suggested that no
amendment to the Act be made.
I cannot doubt that in a few instances some persons have
encountered difficulties in obtaining information under the Act
that should not have been the case. I suspect that the perfect
administrative mechanism has not been made and will never be
achieved as long as it relies on large numbers of people for its
implementation.
For our part, however, the Department of Justice is engaged
in a multifaceted effort to improve both the propriety and the
accuracy of agency actions under the Act. Of course, the
Department has no direct binding authority over the actions of
the other Executive agencies, and those agencies must be free to
exercise the judgment and expertise in their own fields of
responsibility. But the Department does engage in a number of
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activities to fulfill its statutory mandate to encourage agencies
to comply with the FOIA (see 5 U.S.C. S 552(d)). Expert Depart-
ment employees conduct a comprehensive series of seminars and
course instructions to train the personnel of other agencies on
their proper responsibilities under the Act. We also publish an
informative quarterly newsletter, FOIA Update, which is given
wide circulation within the Executive Branch and sets forth the
Department's guidance on a wide variety of issues, plus an inclu-
sive FOIA Case List of judicial decisions and an analytical
"Short Guide to the FOIA" describing the Act's substantive and
procedural aspects. Our Office of Information and Privacy also
responds to more than one thousand calls per year from agency
personnel requesting advice on specific FOIA issues. We believe
that these efforts contribute considerably to improving the
administration of the FOIA by the various agencies.
Within the Department, we have taken efforts to monitor both
the substantive decisions of the Department's various bureaus and
divisions, and the timeliness of their responses. The Office of
Information and Privacy is responsible for reviewing all appeals
of denials by any component of the Department of Justice.
And the Department's ultimate control over all Executive
agencies, where the Department of Justice represents them in
court, is to review the agency's proposed position in litigation.
In those relatively few instances where it is appropriate, the
Department in fact has declined to defend the agency's actions
and require a settlement of the case. This is as true in the
defense of FOIA litigation, including fee waiver litigation, as
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? it is in all other areas of litigation conducted or supervised by
the Department of Justice.
The Department of Justice therefore welcomes these hearings
and the opportunity to present for the benefit of the Subcom-
mittee some of the facts about the administration of the FOIA.
The agencies of the .government, and the Department of Justice in
particular, are in an excellent position to evaluate the effects
of that Act. Persons who request information understandably can
see only the delay in receiving a response, or the fact that some
of the information they requested was withheld. Only those who
take into consideration the perspective of the agency as well can
fully understand why certain information is properly and
necessarily withheld.
In considering the purposes of the FOIA, it is essential to
keep in mind that the Act is not, and never could be, a statute
with the single-minded purpose of disclosing government informa-
tion. We all would agree, I am sure, that many kinds of
information that the government has in its possession must be
kept confidential, in order to protect important public
interests. For example, agencies often must withhold information
to protect the privacy of innocent third parties, to maintain the
confidentiality of trade secrets, to avoid the disclosure of
information affecting the security of the nation, or to prevent
interference with pending criminal investigations and protect the
identities of confidential sources who have penetrated criminal L'
enterprises.
IA
v
[ r
1 If/ 6
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As important as the goal of openness may be, the counter-
vailing interest in protecting such information from disclosure
is often equally or much more important. Our government could
not function .effectively, for example, if the tax records or
census responses of individuals were made public merely for the
asking, if businesses could readily obtain the trade secrets of
their competitors, or if the government were required to disclose
the identities of its confidential informants.
The FOIA, then, reflects a balance between two sets of
public and governmental goals. It is not a matter of a struggle
of good against evil, but a balancing of two goods. Amendments
to the Act, therefore, cannot reasonably be evaluated by the
simplistic measure of whether they provide for more or less
disclosure. The proper standard is whether the proposed amend-
ments will bring about a better balance between the several
purposes of the Act. And in that analysis, it is not a suffi-
cient answer to a problem to say, "There already is an exemption
that covers that." The pertinent inquiry is whether or not that
existing exemption is in point of fact functioning the way
Congress intended, to protect against the designated harm. In
many respects, we submit that such a careful evaluation of the
FOIA indicates that certain aspects of the Act are indeed not
functioning as Congress intended and are instead disserving the
public interest.
Having discussed briefly the Department's general experience
under the FOIA, and our efforts to encourage compliance by the
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Department and by other agencies, let me turn now to a discussion
of the specific legislative proposals that the Senate has unani-
mously approved. We candidly admit that these provisions would
not solve all of the Department's concerns, particularly in the
law enforcement area where the ingenuity of many criminals
threatens the Department's ability to protect its essential
investigatory information. We do believe, however, that these
revisions would make an enormous improvement in those cases, such
as organized crime, where the Department is most concerned about
the adverse and unintended effects of the FOIA.
There is a long history of proposals to amend the FOIA. In
the years following the substantial broadening of the Act in
1974, the Department of Justice and the government as a whole
began to experience serious problems with some of the require-
ments and language of the FOIA. A study begun in 1.979, following
testimony before Congress, led former Attorney General Civiletti
to prepare a comprehensive package of proposed amendments to the
FOIA, recommending very substantial changes in the Act. I think
it is important to remember that the Civiletti proposals were not
so very different from the provisions of S. 774; indeed, in many
respects they were more far-reaching. With your permission,
Mr. Chairman, I would like to submit for the record i copy of
former Attorney General Civiletti's recommended amendments.
When this Administration assumed office, the Department of
Justice began an independent review of the problems that the FOIA
has raisee. We concluded that the FOIA has indeed created
serious problems for the federal government; however, we also
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found that -- as serious as these problems were -- the problems
also tended to be specific ones that could be remedied without a
wholesale revision of the FOIA. Accordingly, in October 1981,
the Department testified before the Senate Subcommittee on the
Constitution to present the Administration's proposed amendments
to the FOIA. That proposal was introduced in the 97th Congress
as S. 1751 and H.R..4505.
The Senate's Subcommittee on the Constitution gave extensive
consideration to the issues relating to amendments to the FOIA,
holding numerous days of hearings on all aspects of the
proposals, hearings which fully took into consideration all
viewpoints.
As a result of this extensive consideration, many of the
Administration's proposals were soon incorporated into existing
FOIA reform legislation -- S. 1730 -- that Senator Hatch had
introduced only one month before. Commendably, Senator Hatch and
his colleagues, particularly Senatcr DeConcini and Senator Leahy,
carefully engrafted our proposals onto the provisions of S. 1730,
producing a compromise set of proposed amendments to the FOIA
that were drawn as narrowly as possible. The central purpose of
our common efforts was ensure that the changes made to correct
the deficiencies of the FOIA should not inadvertently infringe
upon the overriding purposes of the Act.
The final version of S. 1730 was an excellent example of
carefully drafted remedial legislation. We at the Department of
Justice found that the bill redressed most, although not all, of
the serious problems we had encountered with the FOIA. For
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example, Director Webster of the FBI described the compromise as
"an 8 on a scale of 10." Similarly, the various interest groups
that initially had opposed any amendments to the Act accepted the
compromise bill as a responsible and even-handed approach to
reform of the FOIA. For example, I attach for the record a
selection of newspaper editorials and articles commenting
favorably on that cOmpromise set of amendments over the last two
years.
The present bill, S. 774, is almost identical to the Hatch
bill of the last Congress. Three changes in the text of the bill
were made by the Senate Judiciary Committee: first, a somewhat
technical amendment changing the language of Exemption 7(C) from
"would" to "could reasonably be expected to" result in an
unwarranted invasion of personal privacy; second, a provision
preventing an agency from retaining any of the FOIA fees they
collect if it is found not to be in "substantial compliance" with
the time limit provisions of the Act; and third, a provision
requiring agencies to list in the Federal Register the
Exemption 3 statutes upon which they intend to rely. With these
few changes, the bill again was approved unanimously by the
Senate Committee on the Judiciary. On February 27, 1984, the
full Senate approved the measure by voice vote, with only two
other changes: striking the term "royalty" from section 2 of the
bill, and deleting the proposed technological data exemption in
light of the special protection for such data provided by
Congress in the Defense Department's 1983 authorization bill,
codified at 10 U.S.C. S 140c.
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Before turning to a summary of the specifics of this bill, I
note that the Senate Judiciary Committee has amassed a consider-
able amount of testimony and other evidence during the course of
considering this bill. I have here, Mr. Chairman, the two volume
set
set
the
the
and
of hearings during the 97th Congress, and a second two volume
of hearings in this Congress. I will leave these volumes for
Committee's use, and ask that I be permitted to submit for
record an index of those hearings identifying the testimony
other information in support of this bill. I would encourage
anyone who doubts that the Department has made a case for the
reforms in S. 774 to read this index and the four volumes of
Senate hearings carefully before making any such assertion.
Law enforcement. The FOIA has become a major problem to the
government's law enforcement agencies. The FBI has found that
16% of the FOIA requests it receives are from known or suspected
criminals. In the case of the Drug Enforcement Administration,
this number is even higher: over 80% of the FOIA requests the
DEA receives are from imprisoned or known drug traffickers. The
frequency with which criminals use the FOIA is itself an indi-
cator of its usefulness
evidence of the harmful
ment. In the course of
S. 1730, the Department
to them. However, there also is direct
effects the FOIA has had upon law enforce-
the hearings held last Congress on
provided to the Senate Judiciary
Committee a list of over 200 documented cases where the FOIA had
a harmful impact on law enforcement activities. These are not
isolated anecdotes, but rather are a stark reflection of the
adverse effects of the Act in the specific area of criminal law
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enforcement. Moreover, in an executive session of the Senate
Subcommittee, Director Webster of the FBI provided many addi-
tional examples of the use of the FOIA by criminals, terrorist
groups, and hostile foreign intelligence agencies. That informa-
tion is available to this Subcommittee. In February 1982, the
DEA released a study it had conducted that found that 14% of the
DEA's investigations were aborted, narrowed, compromised, or
significantly complicated by the FOIA. With your permission,
Mr. Chairman, I will submit for the record today copies of both
the list of cases where the FOIA has harmed law enforcement and
the DEA study.
The problems the FOIA creates for law enforcement agencies
become especially acute when organized crime uses the Act to
discover what the government knows about it. Organized criminal
groups engage in a wide range of illegal activities and often
have a long institutional memory. As a consequence, otherwise
innocuous information that the government discloses under th%.
FOIA to a member of an organized crime family or a drug traffick-
ing conspiracy often can be pieced together with information
already known to the requester to form a "mosaic" that reveals
the identities of the government's confidential informants or the
scope of the government's investigation.
S. 774 has several types of provisions that address the
concerns regarding law enforcement information. The provisions
of Exemption 7 would be modified slightly, not revised wholesale
as some generalized objections have asserted. The introductory
language of the provision would be revised to include law
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enforcement information other than that developed in the course
of a specific investigation -- for example, manuals of procedure
or statements of prosecutorial priorities. Several of the
specific standards of harm in Exemption 7 would be revised to
cover information that "could reasonably be expected to" cause
the specific harm -- e.g., identify confidential informants --
rather than the present standard that disclosure would cause that
harm. The government of course would continue to bear the burden
of proof in all cases, but this restatement of the necessary
showing would give more appropriate recognition to the uncer-
tainties that all too often prevail in the course of criminal
investigations. Requiring certainty that disclosure would
identify a confidential informant is too high a standard; it
should be sufficient that a reasonable person reasonably would
expect that result.
The Department of Justice believes that the bill will go a
long way towards closing this very critical gap in the govern-
ment's ability to maintain the confidentiality of its law
enforcement files.
However, Mr. Chairman, I would like to take note of a
problem of increasing concern to the Department of Justice.
Criminal suspects can (and do) use the FOIA to determine whether
law enforcement agencies such as the FBI are conducting investi-
gations on them. Although Exemption 7(A) authorizes withholding
the contents of open investigative files, the very acknowledgment
of the existence of such records being withheld on that basis may
provide an alarming tip-off to the suspect. Conversely, a
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response that investigative records do not exist can confirm that
a suspect has escaped detection thus far. Although the organized
crime exclusion in S. 774 would resolve this problem in that
context, this issue has become one of increasing concern to the
Department in other criminal law enforcement areas as well. We
understand that you have expressed an interest in addressing this
question, Mr. Chairman, and we would be pleased to work closely
with you in that effort.
Secret Service files. In past testimony before Congress,
the Secret Service has revealed that many local police depart-
ments no longer share information with them because they believe
that the Service will not be able to protect the information from
mandatory disclosure under the FOIA. By 1977, this problem had
grown to such an extent that the Secret Service testified that it
recommended against President Carter visiting two cities because
of fears that the Service could not protect the President's
personal safety. Moreover, in 1981 the Secret Service testified
that its informant information had dropped by 75% since the
passage of the 1974 amendments to the FOIA. We endorse S. 774's
provisions granting broader protection to the files the Secret
Service compiles in connection with its protective functions.
Commercial information. Every year, thousands of businesses
submit to the government many of their most important and confi-
dential trade secrets and business records. However, there is no
requirement in the FOIA that the government must notify these
companies when it intends to release this information to the
public. The seriousness of this shortcoming was shown by the
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first panel of witnesses before this Subcommittee at the hearing
held this past May. Those witnesses pointed to the unfortunate
experience of Polaroid Corporation in being unable to learn from
the agencies to which it had provided sensitive business secrets
how widely that information had been disseminated outside the
government. They also recounted the unhappy experience of the
Monsanto Corporation which, as required by law, had provided to
the EPA the formula it had developed for one of its most success-
ful herbicides, Roundup. Through an error of judgment, employees
of the EPA disclosed the formula to another company under the
FOIA, without even notifying Monsanto. Of course, the FOIA did
not actually require the EPA to turn over Monsanto's secret
formula to the requester. However, the fact that Monsanto never
received notice of the impending disclosure prevented it from
opposing the release either before the EPA or in court.
Instances such as this, and others presented to this Subcom-
mittee, show the wisdom of the bill's provisions requiring
government agencies to notify businesses in advance whenever the
agency intends to publicly release trade secrets or sensitive
commercial information under the FOIA. S. 774 would not create
any new exemption for confidential business information, but
would simply provide -- just as the Administrative Procedure Act
provides in so many other areas -- that the government will give
individuals notice and an opportunity to object before it takes
action .harming their interests.
Manuals and examination materials. As is explained more
fully in the Department's legislative report on S. 774, the FOIA
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often compels the government to release the internal manuals and
instructions that government agencies give to their investiga-
tors, auditors, and negotiators. Frequently, these materials set
forth the government's confidential investigatory techniques and
guidelines. Public disclosure of these manuals significantly
hampers the government's ability to enforce the law, detect
fraud, or acquire goods and services at competitive prices, since
subjects of investigations or government suppliers may learn in
advance what the government intends to do. Because of the
crucial role that manuals and guidelines play in the government's
law enforcement and acquisition programs, we strongly believe
that they deserve more complete protection.
Personal privacy. In the normal course of government
operations, numerous government agencies collect and maintain
many types of personal information about individuals -- whether
for purposes of social insurance benefits, loan guarantees,
taxation, law enforcement, federal employment, or many other
reasons. One can point to many laws Congress has enacted --
notably the Privacy Act of 1974 -- that exemplify the importance
all of us attach to the interest in protecting personal privacy.
Anomalously, however, the FOIA may often permit a complete
stranger to obtain access to government files that contain
//personal information about us. Often a requester's purpose is
chiefly commercial -- credit bureaus, employment agencies, and
life insurance companies rank among the most common users of the
FOIA for this purpose -- but disclosure of personal information
about us is an invasion of privacy nonetheless. Any system
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providing for the public disclosure of government records must
necessarily provide that information the government compiles
about its citizens should be protected from those who would use
it to invade our personal privacy. Although the amendments
S. 774 would make to the FOIA's privacy exemptions perhaps could
go further, we strongly support this effort to give Americans
greater protection of their personal privacy.
Fees. One of the unexpected developments from the 1974
amendments to the FOIA has been the great volume of requests and
the expense of processing those requests. Congress estimated
that implementation of the 1974 amendments would cost no more
than $40,000 to $100,000 annually. The direct cost of compliance
with the Act by all agencies rose, however, to at least
$57 million by 1980, and it certainly is much higher today.
Frequently, the cost to the government of search and review bears
little correlation to the public interest in disclosure, yet only
three to four percent of this cost is typically recovered from
requesters. We strongly support the bill's goals of ending
public financing of requests that do not benefit the general
public and encouraging all requesters to make reasonable efforts
to narrow excessively broad requests.
_
We also endorse the bill's provision permitting an agency to
charge a fair value fee for records containing commercially
valuable technological information that was generated or procured
by the government at substantial cost to the public, when the
requester:is likely to use the information for a commercial
purpose and would deprive the government of this commercial
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value. We believe that the government should not subsidize the
development of commercially valuable information for the finan-
cial benefit of private commercial enterprises. We would also
note that, in many cases, requests for such information deprive
not only the government, but also the private firm that supplied
the information to the government, of the information's commer-
cial value. As noted earlier, tha Senate has deleted the term
"royalty," which caused concern among some groups as to its
meaning.
Finally, we note that the bill would retain the provision in
the current law that requires an agency to waive or reduce
existing fees whenever a requested disclosure would primarily
benefit the general public. Such waivers are intended to ensure
that persons such as representatives of the media, public
interest groups, and scholars have relatively inexpensive access
to government records where disclosure of information to them
would in turn be of primary benefit to the general public. The
/ bill also provides for a categorical waiver of all new processing
fees for researchers, journalists, and public interest groups.
We believe that the bill's fee provisions overall represent a
fair compromise in this sensitive area.
Time limits. The FOIA's unrealistic time limits have caused
serious problems for the government and FOIA requesters alike.
The short (10-day) time limit imposed on agencies for responding
to and processing requests often forces agencies to respond
prematurely or hurriedly. FOIA requesters, too, are dissatisfied
with the present time limitations, which often mean that agencies
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are not in statutory compliance and occasionally have caused
needless litigation. Moreover, the "first-in, first-out" system
established by the FOIA requires agencies to place even small
requests at the end of their backlog, preventing agencies from
acting quickly even in cases where a timely response is neces-
sary. Finally, there is currently no specific authority for
agencies to extend the strict ten-day time limits in order to
notify submitters of confidential business information that
disclosure of their information has been requested. We endorse
S. 774's approach to this problem, which establishes more
realistic deadlines to guide agency conduct.
I would like to take special notice of a provision in S. 774
that, for some reason, has received little attention by the
representatives of the press who testified earlier at these
hearings. Several of those witnesses complained of delays
experienced by journalists in obtaining information under the
Act. Most often, ,luch delays are simply the inevitable result of
the large backlogs of requests pending at particular agencies,
combined by the requirements of the courts that such backlogs be
handled in a first-come, first-served manner. Although
journalists generally make up a very small proportion of requests
at most agencies, they are inevitably affected by the backlogs of
requests by others, many of whom seek information for their own
use, not for any public interest. To ease this crowding-out
problem. to some extent, S. 774 would provide for accelerated
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consideration of FOIA requests made by the news media and others
who can demonstrate a need for expedited access to government
records. /We believe that this measure should respond to the
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concerns of the journalistic community without undermining the
time limit provisions of S. 774 overall.
Proper requests. S. 774 also contains three other provi-
sions that we think are particularly important. First, in a
provision proposed by Senator Hatch, the bill would permit the
Attorney General to issue regulations that impose limitations
upon FOIA requests by imprisoned felons, where it is determined
that the limitations are needed in the interests of law enforce-
ment and would not contravene the purposes of the Act. Second,
the bill would limit the use of the FOIA as a substitute for
normal discovery rules by parties in litigation with the govern-
ment. This would be accomplished by simply extending the rather
rigid time limits of the Act with respect to requests from
parties in litigation with the government who could just as
easily use document discovery procedures to obtain the informa-
tion. Third, S. 774 would limit the availability of the FOIA's
public access provisions tc United States citizens and resident
aliens. We believe that this change would eliminate a number of
burdensome requests now made of the government by foreign
citizens and corporations. However, it would not impinge in any
sense upon the FOIA's central purpose of providing information to
United States citizens about the operation of their government.
In a brief aside, Mr. Chairman, I would like to address your
concern, expressed in a letter to the Attorney General after your
hearings last year on the Privacy Act of 1974, about this
provision: limiting the strict obligations of the FOIA to those
who are United States citizens or lawfully admitted resident
aliens. Those hearings on the Privacy Act led you to the
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conclusion that, because aliens do not have enforceable rights
under the Privacy Act (see 5 U.S.C. S 552a(a)(2)), they need to
have continued access to records under the FOIA. We must
respectfully disagree -- that to cure a minor perceived
shortcoming in one aspect of the Privacy Act, the FOIA must be
left with an expansive, open-ended obligation to give foreigners
the same complete access as citizens have to information on the
United States government and to information held by our
government on citizens and on domestic businesses. If access by
aliens to information on themselves held by the government is a
significant concern, then perhaps this Subcommittee could
consider a specific amendment to resolve that concern. Let me
make clear that the Department of Justice has not taken any
position in favor of such a change.
That very specific concern should not, however, defeat an
amendment to the FOIA intended to address a far larger and quite
different concern. The amendment to the FOIA at issue would not
forbid aliens from obtaining information from the United States'
government, but simply would provide that the full panoply of
special procedural and substantive rights made available by the
FOIA to American citizens strict time limits, narrow exemp-
tions to disclosure, de novo judicial review, attorneys' fees,
reduced fees, administrative sanctions for failure to disclose
and, if S. 774 were adopted, reverse FOIA procedures to protect
the confidential business information of foreign corporations --
need not be extended to aliens as a matter of statutory right in
every case.
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I hope that this summary of the important changes S. 774
would make is useful. However, I think that it also is useful to
look at what S. 774 would not do. The bill would not change the
substantive or procedural standards governing the protection the
FOIA gives to information that has been classified in the
interests of national defense or foreign policy. Similarly,
S. 774 would not change the scope or nature of the protections
that the FOIA currently provides for trade secrets and confiden-
tial commercial information; as I have stated, the bill would do
no more than give submitters of such information the right to be
told of an intended disclosure and an opportunity to object.
Overall, S. 774's narrowly-drawn protections should assist
greatly in ensuring that agencies can strike the proper balance
between the public's right to know and the government's need to
maintain the confidentiality of non-public information.
In this regard, I think that it is important to point out
once again just how well the Senate Committee has succeeded in
striking this balance. In a study released in 1982, long before
Senate passage of S. 774, a group categorically opposing any
amendment of the FOIA listed over 500 instances where requesters
had used the FOIA to obtain the disclosure of important govern-
ment information. 1/ The examples listed in the study covered
the entire gamut of the information the government keeps, from
1/ Campaign for Political Rights, Former Secrets (1982 E.
Hendricks ed.).
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,
consumer product safety information to national security
information to tax information.
In his Senate testimony over one year ago, former Assistant
Attorney General Rose stated that the Department had compared
this study and S. 774 to gauge just how seriously this bill would
have affected these hundreds of disclosures had it been in effect
at the time. That study concluded that, of the more than 500
examples listed in the study, there were only four instances
where S. 774 might have prevented the disclosure of the informa-
tion in question -- and in each case there were sound reasons why
the information that was required to be released should have been
withheld. 2/
2/ Former Secrets, stra, pp. 53 (first and last examples) and
62 (first example), and 193 (last example). The first two
examples both involved the disclosure of law enforcement
files on organized crime, although it is unclear whether the
particular documents that were disclosed were less than five
years old, as S. 774 would require before they could be
withheld. The first case involved allegations of organized
crime's involvement in the American coal industry, while the
second pertained to the Department of Justice's investiga-
tion of various Teamster pension funds. Both of the remain-
ing examples are cases where internal government audit
manuals were disclosed under the FOIA. The example recited
on page 62 of the study was a request for an internal HUD
audit manual. The example on page 193 of the study involved
the disclosure of what appears to have been a multi-volume
manual detailing auditing procedures for IRS agents.
In addition, there were seven examples of disclosure
listed in the study where a request had been made by foreign
citizens -- in one case by the government of the Soviet
Union and another by a suspected Palestinian terrorist. See
pp. 32, 73, 101, 105, 141, 145 and 177. Under S. 774, all
seven requests could have been denied because they were not
made:by United States citizens or resident aliens; however,
the information could have continued to be available to any
United States citizen or resident who made the same request.
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Although the opponents of S. 774 have had ample time to
judge the results for themselves, no one has disputed this
conclusion. Many of the witnesses before this Subcommittee have
simply given examples of their use of the FOIA and praised its
availability, but have not addressed the specifics of S. 774.
Other witnesses made broad, generalized assertions that the
provisions of S. 774 would have unspecified adverse results, but
they have not made any effort whatsoever to provide concrete
examples of harm.
Contrary to those unsupported expressions of concern, we
believe that the evidence presented to this Subcommittee and to
the Senate Committee on the Judiciary provides more than an ample
basis to conclude that the provisions of S. 774 would in fact
provide for greater protection against unwarranted disclosures
while at the same time preserving the goals of public access
under the FOIA. S. 774 would have virtually no impact upon the
truly important public disclosures under the FOIA, yet would
respond to many of the more than 200 documented examples where
the Act has harmed law enforcement. This bill is a well-written
and much needed proposal for adjusting the balance between
disclosure and confidentiality that the FOIA is meant to embody.
In conclusion, I would like to thank you, Mr. Chairman, and
the members of the Subcommittee, for your consideration of the
proposed amendments to the FOIA which have now been so resound-
ingly approved by the Senate. I fully understand and appreciate
your abiding concern to preserve the letter and spirit of the
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Freedom of Information Act, which this Subcommittee has authored
and approved. I only ask that you give equal attention to the
demonstrable harmful impact that the Act has had, in ways I am
sure were not. intended by this Subcommittee.
In our view, and in the view of the Senate, S. 774 will give
the government very real assistance in preserving the necessary
confidentiality of the important government files relating to law
enforcement and other subjects, without infringing on the Act's
goals. We can see no reason to perpetuate the unintended abuses
of the FOIA that our experience has uncovered. This is particu-
larly true when legislation is available which would signifi-
cantly limit those abuses without affecting whatsoever the
continued vitality of the FOIA to serve the purposes for which it
was enacted: to ensure that informed citizens have the means to
learn of the operations of their government and that government
operate in an open and responsible manner.
We look forward to working with Congress to achieve the
prompt passage of this legislation.
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