IMPACT OF THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT ON INTELLIGENCE ACTIVITES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP04M01816R000100320003-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 185
• Document Creation Date: December 22, 2016
• Document Release Date: September 26, 2011
• Sequence Number: 3
• Publication Date: April 5, 1979
• Content Type: REGULATION

Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
IMPACT OF THE FREEDOM OF INFORMATION ACT
AND THE PRIVACY ACT ON INTELLIGENCE ACTIVITIES
HEARING
SUBCOMMITTEE ON LEGISLATION
PERMANENT
SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
U.S. GOVERNMENT PRINTING OFFICE
68-940 0 WASHINGTON : 1980
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
(Established by H. Res. 658, 85th Cong., 1st Seas.)
EDWARD P. BOLAND, Massachusetts, Chairman
CLEMENT J. ZABLOCKI, Wisconsin J. KENNETH ROBINSON, Virginia
BILL D. BURLISON, Missouri JOHN M. ASHBROOK, Ohio
MORGAN F. MURPHY, Illinois ROBERT McCLORY, Illinois
LES ASPIN, Wisconsin G. WILLIAM WHIT,EHURST, Virginia
CHARLES ROSE, North Carolina C. W. BILL YOUNG, Florida
ROMANO L. MAZZOLI, Kentucky
NORMAN Y. MINETA; Cjtliforuia
WYCHE FOWLER, JR., Georgia
THOMAS K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
PATRICK G. LONG, Associate Counsel
JEANNE M. MCNALLT, Clerk
SUBCOMMITTEE ON LEGISLATION
MORGAN F. MURPHY, Illinois, Chairman
ROMANO L. MAZZOLI, Kentucky ROBERT McCLORY, Illinois
WYCHE FOWLER, JR., Georgia JOHN M. ASHBROOK, Ohio
EDWARD P. BOLAND, Massachusetts
BERNARD RAIMO, Jr., Counsel
IRA H. GOLDMAN, Counsel
(II)
Approved For Release 2011/09/26: CIA-RDP04MO1816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
CONTENTS
Statement of :
Page
Frank C. Carlucci, Deputy Director of Central Intelligence--------_-
2
Accompanied by Lyle L. Miller, Deputy Legislative Counsel, Central
Intelligence Agency ; Ernest Mayerfeld, Chief, Freedom of Informa-
tion and Privacy Law Division, Office of the General Counsel,
Central Intelligence Agency ; George Owens, Chief, Information and
Privacy 'Staff, Directorate of Administration, Central Intelligence
Agency ; and Robert Owen, Information Review Officer, Directorate
of Operations, Central Intelligence Agency.
Daniel B. Silver, General Counsel, National Security Agency---------
16
Thomas H. Bresson, Acting Chief, Freedom of Information Act Branch,
Records Management Division, Federal Bureau of Investigation-_-
48
Accompanied by Michael Hanigan, Assistant Security Chief, FOIA
Branch, Records Management Division, FBI ; and Dennis Miller,
Unit Chief, Research Unit, Records Management Division, FBI.
APPENDIX
A. FBI Statistics Regarding Freedom of Information Act and Privacy
Act ------------------------------------------------------------ 63
B. FBI Proposals to Amend the Freedom of Informaton Act------------ 64
C. Statement of the Honorable Richardson Preyer----------- ----------- 158
D. CIA Submission Regarding the Freedom of Information Act ---------- 162
E. The Freedom of Information Act---------------------------------- 163
F. The Privacy Act-------------------------------------------------- 168
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
IMPACT OF THE FREEDOM OF INFORMATION ACT
AND THE PRIVACY ACT ON INTELLIGENCE ACTIVI-
TIES
HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Wa8hington, D.C.
The subcommittee met, pursuant to notice, at 9:32 a.m.,, in room
H-405, the Capitol, Hon. Morgan F. Murphy (chairman of the sub-
committee) presiding.
Present : Representatives Murphy, McClory, Ashbrook, and White-
burst.
Also present : Michael J. O'Neil, chief counsel; Patrick G. Long,
associate counsel; Bernard Raimo and Ira H. Goldman, committee
counsel ; Herb Romerstein and James O. Bush, professional staff
members; Louise Dreuth, secretary; and William A. Leece, security
director.
Mr. MURPHY. The meeting of the Subcommittee on Legislation of
the Permanent Select Committee on Intelligence will come to order.
Since this committee's existence, it has been told the Freedom of
Information and Privacy Acts have had a significant impact on the
intelligence community. The committee has solicited a wealth of in-
formation about this subject from the CIA and other intelligence
agencies. They consider that the application of those statutes raise
grave implications for their continued operations. The committee feels
that because the public may not understand the ramifications of the
Freedom of Information Act upon intelligence operations, and because
some of the suggestions for amending the act are far-reaching ones,
that it should sponsor a public discussion of the particular influence
that the Freedom of Information and Privacy Acts have on foreign
intelligence and counterintelligence activities.
Our first witness today is as able a spokesman as the CIA can com-
mand, the distinguished Deputy Director of the Agency, Mr. Frank
Carlucci.
Mr. Carlucci, we welcome you here today.
Before we start, I will ask my colleague Mr. McClory if he would
like to say a word.
Mr. MCCLORY. Thank you very much, Mr. Chairman.
Yes, I do want to join in welcoming Mr. Carlucci to our meeting
here this morning. I have had the privilege of meeting. him before. I
realize the subject we are dealing with today concerns itself with pro-
tecting the rights of individual Americans while at the same time
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
having account of the importance of our intelligence agencies-for
we want to be certain we don't impair their effectiveness in any way.
It is a very delicate subject that we are dealing with, and, it seems
to me, if the subject is only remotely connected with intelligence and
does not impinge on civil rights, that we should consider at least some
adjustment to the Freedom of Information Act to accommodate the
intelligence agencies.
"I know that Mr. Carlucci has a wealth of experience and is a very
reputable professional. I know that his views are going to be extremely
helpful to us in reaching a decision, and I want to join with the chair-
man in welcoming you here today.
Mr. MURPHY. You may proceed, Mr. Carlucci.
STATEMENT OF MR. FRANK C. CARLUCCI, DEPUTY DIRECTOR OF
CENTRAL INTELLIGENCE; ACCOMPANIED BY: LYLE L. MILLER,
DEPUTY, LEGISLATIVE COUNSEL, CENTRAL INTELLIGENCE
AGENCY; EARNEST MAYERFELD, CHIEF, FREEDOM OF INFORMA-
TION AND PRIVACY LAW DIVISION, OFFICE OF THE GENERAL
COUNSEL, CENTRAL INTELLIGENCE AGENCY; GEORGE OWENS,
CHIEF, INFORMATION AND PRIVACY STAFF, DIRECTORATE OF
ADMINISTRATI01[, CENTRAL INTELLIGENCE AGENCY; AND
ROBERT OWEN, INFORMATION REVIEW OFFICER, DIRECTORATE
OF OPERATIONS, CENTRAL INTELLIGENCE AGENCY
Mr. CARLUCCI. Thank you, Mr. Chairman, members of the subcom-
mittee. I am pleased to appear before you today to respond to your
interest in the impact public disclosure statutes have had on the
missions and functions of the Central Intelligence Agency. I intend to
be as detailed as is possible in a public session, and I am, of course,
prepared to go into classified matters in further detail in executive
session.
At the outset, however, I want to point out that I am facing a real
dilemma in appearing before you today on this subject. As my remarks
will hopefully make clear, we do have problems in our country in
keeping the authorized and legitimate activities of CIA secret. Some
of these problems are real, but for others, such as the Freedom of In-
formation Act, it is essentially a matter of perception. I will be telling
you today why that is so. However, since we are dealing with percep-
tion, I know as clearly as I am sitting before you today that my state-
ments before you will be used by hostile foreign intelligence services
in an effort to convince potential agents that collaboration with CIA
is indeed a foolhardy endeavor because inevitably their actions will be
made public. Even so, I firmly believe that this open session can coun-
teract such attempts if the. end result is an increased capacity for our
agency and its officers to deal with individuals and convincingly offer
the protection from public disclosure which people who place their
life or liberty in jeopardy demand.
I also want to make it clear that Admiral Turner and I support the
general concept of openness in government. Indeed, Admiral Turner
has been criticized for bringing too much openness to the Central
Intelligence Agency. Under his leadership, approximately 150 finished
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
3
intelligence reports have been declassified per year and have been made
available to the public through the Library of Congress. We have
moved from the former "no comment" response and now routinely
provide unclassified information in response to media inquiries. We
are conducting a dialog with American academic specialists, and, in-
creasingly, analytical personnel participate in the presentation of un-
classified professional papers. In this way the substantive product of
CIA is made available and contributes to an informed public without
risking the disclosure of sensitive intelligence sources and methods.
Nor do we take issue with public disclosure statutes as vehicles for
giving citizens greater access to the affairs of Government and as-
suring individuals that information on them which may legitimately
be gathered by their Government is accurate and will not be abused.
What we do question seriously and thoughtfully, however, is the
appropriateness of applying Government-wide public disclosure con-
cepts to the authorized and legitimate activities of the Central Intel-
ligence Agency which require secrecy. Indeed, the Congress itself has
recently reaffirmed the uniqueness of our mission and the information
derived from it by creating this oversight committee and its counter-
part in the Senate. As a result, there now exists effective congres-
sional oversight mechanisms to assure the accountability, legality and
propriety of CIA activities which must remain secret. Admiral Turner
and I, as congressionally approved Presidential appointees, insure that
this committee is now and will continue to be supplied with whatever
information you need in order that you may be satisfied the Central
Intelligence Agency is following the law and in so doing exercising
good judgment. You, not 20,000 FOIA requesters, foreign and Ameri-
can, are the proper people to conduct oversight.
It is, I submit, through these committees and their staffs, as well
as the extensive executive branch review mechanisms, that oversight
of this Nation's most sensitive activities ought to be undertaken.
It is, of course, for Congress to decide whether the best interests of
the Nation are served by the application of general openness concepts
to intelligence activities. It is our position that the best interests of
the Nation are not so served. My central theme today. therefore, is that
the total application of public disclosure statutes like FOIA to the
CIA is seriously damaging our ability to do our job.
Before I make this case, allow me to make two other points : It is
undeniable that under the current FOIA national security exemptions
exist to protect our most vital information. The question is whether
they are so perceived by those upon whom we depend to provide us,
in absolute secrecy, that information.
The difficulty in protecting intelligence information arises from more
than the FOIA. There have, for example, been leaks, we have had
leaks, there have been cases of espionage, former Agency employees
have written books without proper clearance beforehand and Phillip
Agee and others of his group publish a bulletin dedicated to exposing
our undercover employees and operations overseas. We are trying to
deal with all of these issues.
Unfortunately, the Freedom of Information Act has emerged as a
focal point of the oft heard allegation that the CIA cannot keep a
secret, that is, cannot properly protect its information from public
disclosure. It has, therefore, assumed a larger than life role as a
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
symbol of this Nation's difficulty in keeping confidences inviolate. I
do not agree that we cannot keep a confidence, but it is that perception
held by many of those who would only enter into an arrangement with
us on a confidential basis that is the crucial issue at hand.
In order to appreciate FOIA's impact on intelligence, it is important
to clearly understand how we operate.
It is a misconception that our people spend most of their time moving
around trying to pick up information in bars and photographing docu-
ments with secret cameras. Actually, their mission is to establish what
is essentially a contractual relationship with people in key positions
who might otherwise be inaccessible to our diplomats overseas.
This is not an easy task nor is it quickly accomplished. The prin-
cipal ingredient in these relationships is trust. To build a relationship
which in many cases entails putting one's life and that of one's family
in jeopardy to furnish information to the U.S. Government is a delicate
and time-consuming task. Often, it takes years to convince an individ-
ual that we can protect him. Even then, the slightest problem can dis-
rupt this relationship.
Recognize also that most of those who provide us with our most
valuable and therefore most sensitive information come from societies
where secrecy in both government and everyday life prevails. In
these societies, often those suspected of anything less than total al-
legiance to the ruling party or clique may be summarily dismissed from
their jobs, incarcerated, or even executed. In societies such as these, the
concepts be hind the FOIA are totally alien, frightening and indeed,
contrary to all that they know. It is virtually impossible for most
of them to understand the law itself much less why an organization
such as the Central Intelligence Agency, wherein repose their most
guarded secrets, should be subject to the act. It is difficult to convince
them that someday they will not awaken to find in a U.S. newspaper
or magazine information which they have furnished to the Agency
which can be traced back to them.
Hardly a day goes by that there is not a sensational news article
describing CIA information released under FOIA. The fact that much
of it is repetitious, and most of it is history, is lost on our agent
network.
Imagine the shackles being placed on the CIA case officer who must
eventually convince the foreign agent to cooperate with us. The mo-
ment of truth for the case officer comes usually at the time of recruit-
ment. The agent, while leaning towards cooperation, will demand that
his information be protected. He wants absolute assurance that nothing
will be given out which could even conceivably lead his own in-
creasingly sophisticated counterintelligence people to appear at his
doorstep. But the barrage of intelligence disclosure is, Mr. Chairman,
making it harder and harder for our case officers to be convincing.
Although, when asked, we assure these individuals that their in-
formation is and will continue to be protected, we have on record
numerous cases where our assurances have not sufficed. Foreign agents,
some very important, have either refused to accept or have terminated
a relationship on the grounds that, in their minds-and it is unimpor-
tant whether they are right or not-but in their minds the CIA is no
longer able to absolutely guarantee that information which they pro-
vide the U.S. Government is sacrosanct. Again, we believe we can keep
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
it so, but it is, in the final analysis, their perception, not ours, which
counts.
For example, a foreign intelligence source from a Communist
country broke off a productive association with us specifically because
of fear of the consequences of disclosure under the Freedom of In-
formation Act. Subsequently he, failed to use established means for
reviving contact with the Agency despite the asset's renewed residence
outside his native land. We can only assume that he is lost as a source
of foreign intelligence.
There are other cases where agents have cited the FOIA as the rea-
son for unwillingness to either cooperate initially, continue to co-
operate, or cooperate as fully as in the past. How many cis of re-
fusal to cooperate where no reason is given but if known would be for
a similar reason I cannot say. I submit, however, that based upon the
numerous cases of which we are aware, there are many more cases of
sources who have discontinued a relationship or reduced their in-
formation flow based on their fear of disclosure. No.one can quantify
how much valuable information is lost as a result.
The FOIA also has had a' negative effect on our relationships with
foreign intelligence services. ,Recently, the chief of a major foreign
intelligence service sat in my office and flatly stated that he could
not fully cooperate as long 'as CIA is sub7ect to the Freedom of In-
formation Act, In another case, a major foreign intelligence service
dispatched to Washington a. high ranking official for the specific pur-
pose of registering concern over the impact of the FOIA on our rela-
tionshi. I strongly argued that we had adequate national security
exemptions. While admitting awareness of these exemptions, this
representative noted correctly that even information denied under
the exemption was subject to later review and possible release by a
U.S. court. While this fortunately has. not yet happened, I was not
in a'position to guarantee that it will not. These are but two examples.
The question I cannot answer is how many other services are now
more careful as to what information they pass to our agency.
Finally, it is not only foreign sources of intelligence information
that feel threatened by the FOIA's applicability to the Central In-
telligence Agency. The FOIA has impacted adversely on our domestic
contacts as well. As the committee is well aware patriotic Americans
volunteer information which is invaluable to tiie U.S. Government.
Most of these Americans, for business and other reasons, insist that
we protect the fact of their cooperation and the information which
they provide.
Despite the universal concern over FOIA, most Americans continue
to help us. But there are those who, in assessing the risk of disclosure,
determine that it is not in their best interest to cooperate. They find
their sense of patriotism frustrated by an obligation that their private
interests not be jeopardized. For example, the head of a large Ameri-
can company and a former Cabinet member recently told me that he
thought any company was out of its mind to cooperate with CIA as
long as the provisions of the FOIA apply to it. I think he is absolutely
wrong, but again, in the final analysis it is his perception, not ours,
that counts. Unfortunately, he is not alone. Over the past few years,
this dilemma has prompted other important U.S. sources of informa-
tion to discontinue their cooperation with U.S. intelligence.
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Once again, this reaction cannot be laid entirely at FOA's doorstep,
but it is the principal symbol to most. These examples demonstrate
the chilling effect the Freedom of Information Act has had on our
ability to collect intelligence. Mr. Chairman, we are expected to pro-
vide the best possible information to U.S. policymakers and the Con-
gress. We are seriously hampered in achieving this objective unless
we can give more certain guarantees to our sources that their informa-
tion will be held inviolate.
Let me point to another aspect. As this Committee well knows, the
vast majority of CIA information is properly secret and efforts to
excise these secrets from documents not only involve the adverse effects
of the perception of the risk of disclosure which t have already dis-
cussed, but also produces information, more often than not, out of
context and therefore misleading and extremely small in comparison
to the actual quantity reviewed. Of course, it is also possible that a
sophisticated foreign intelligence service could piece together, from
the bits and pieces of released information a larger portion of the
entire picture regarding a particular intelligence activity or operation.
Mr. Chairman, my presentation to you would be incomplete if I left
you with the impression that the sole problem created by the subjec-
tion of our records to the FOIA was one of perception. FOIA process-
ing is, of course, carried out by human beings. This raises the possi-
bility of human error and of faulty judgment as to what may and
what may not be released in one or another situation. Mistakes,
although few and far between, have been made and will, I fear,- con-
tinue to occur no matter how much care we exert in processing requests.
Additionally, and perhaps more importantly, FOIA requests break
down the CIA's system of compartmented records. Our compart-
mented records system allows only those with a genuine need to know
to have access to one or another document or file. Under an FOIA
request all records and files relevant to the particular request are
drawn together. They remain together during the FOIA request,
appeal and litigation process, thus giving them far wider distribution
than they would normally have and that is consistent with good secu-
rity practice. Thus we find the anomaly that FOIA is given a rank of
importance higher than the need to know principle which is the
underpinning of our informational security system.
As I stated, our principal concern with the FOIA is the chilling
effect it has on our sources.
Before closing, however, I would like to share with you examples of
some of the administrative. burdens we face in endeavoring to comply
with the act. In spite of the devotion of increased manpower coupled
with efforts to improve our efficiency and productivity, we continue
to receive a heavier volume of FOIA and Privacy Act requests than we
can handle. In this regard, we receive over 4,100 Freedom of Informa-
tion Act, Privacy Act, and Executive Order 12065 requests per year
or about 16 per day. Our current backlog is over 2,700 unanswered
requests.
We have many different record systems, as many as 21 of which may
have to be searched in order to respond to a particular FOIA request.
These divergent record systems, as I noted earlier, must be separately
maintained because of the compartmented security system which we
find essential.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
The average cost of processing requests amounts to $800 each.
Many of our requests are sent to us via a form letter. For example,
requests received from universities often follow this pattern and
generally speaking are extremely broad, asking for "all information
CIA has on relationships between CIA and the university and CIA
and university staff or officials."
Other requests are of the curiosity variety. To most of these we are
unable to provide documents but must, nonetheless, expend many
fruitless man-hours in arriving at that conclusion.
Many are from foreigners, possibly representatives of hostil intelli-
gence services and clearly some are from those whose apparent pur-
pose in writing is to uncover information which would do harm to this
Nation's interests overseas.
A number are from individual authors. In one case we have devoted
the total efforts of one person full time for a period of 17 months. This
again is for a single request by one individual.
In another area, we have already expended approximately 4
man-years on FOIA xequests from Phillip Ages who, as noted earlier,
is an admitted adversary of the CIA dedicated to exposing the identi-
ties of employees serving overseas. He does that through the vehicle
of this publication called the Covert Action Bulletin. You can see here
the centerfold, the CIA, and the target of a bullseye. I would like to
pass this copy around, and you can see the kind of information that is
being put out, including the last section where they name names of
CIA people overseas. It is in my judgement disgraceful that we should
be asked to assist him in his endeavors.
During 1978 we spent 116 man-years working on requests for in-
formation under the disclosure statutes. By comparison, this expendi-
ture of valuable human resources is greater than that spent on any
one of several areas of key intelligence interest to the United States.
Thus, Mr. Chairman, the burden of the FOIA is also a problem for
us and one, when coupled with the more serious problems I described
earlier, in need of remedy. That remedy is difficult to fashion and we
have given it a lot of thought. We recognize the importance of main-
taining the general FOI concept. We do not seek a total exemption
from FOIA. What we really seek is a more effective way to assure our
sources that we are doing what the 1949 CIA enabling act directs us to
do, that is, protect them. We think we can achieve this objective, at
least partially, by perfecting the relevant CIA Act provisions in a
manner fully consistent with the spirit and letter of national security
exemptions already in the Freedom of Information Act. At the same
time we are also conscious of the competing needs of our U.S. citizens
whose support and confidence we must maintain. It is for this reason
that we believe that our files should continue to be accessible to Amer-
ican citizens and permanent resident aliens, subject to existing FOIA
exemptions, to the extent that information concerning such persons
may be contained in our files.
Mr. Chairman, while I am not a career intelligence officer, I have
been associated with intelligence for a number of years as a Foreign
Service officer. After 1 year in my current position, I can tell you in
all candor that the erosion of our ability to protect our sources and
methods, and more importantly, the larger than life perception of that
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
erosion is the most serious problem the CIA faces today. If we do not
solve it we cannot continue to be the best intelligence organization in
the world.
If we believe we need intelligence then we have to accept some
secrecy. FOIA has called into question around the world our ability
to keep a secret. Its application in its current form to CIA is inap-
propriate, unnecessary in light of current oversight mechanisms, and
harmful.
That concludes my prepared statement, Mr. Chairman. I am pre-
pared now to answer whatever questions you and members of the
committee may have.
Mr. MURPHY. Thank you, Mr. Carlucci.
The committee is interested in hearing how CIA files are arranged
and how the FOIA requests are regularly handled.
Can you give us more of an idea of what happens when you receive
a request!
Mr. CARLUCCI. Well, when we receive a request we make an initial
determination of whether it is an FOIA request, a Privacy Act request,
a request that falls under the Executive order on classification of docu-
ments. The files are then searched by a dedicated staff in the Directorate
of Administration. There are other staffs. They work with other staffs
in our different directorates who are more familiar with the individual
files. When the material is pulled out of the files, it then has to be
reviewed by what I would call a substantive officer, somebody who is
intimately acquainted with the subject matter. That means that people
are diverted from their other activities to go through these files-and
some of them are grite extensive, as many as 600 or 700 documents in
an individual file. The reviewing officer then makes a judgment on
what can be released, including what are the segregable portions of the
documents that can be released, and it is then returned to our informa-
tion control staff for appropriate handling.
Let me ask, we have two people here from our information and
privacy staff and from our Directorate of Operations, Mr. George
Owens, in the first case, Mr. Robert Owen in the second case, and see
if they would care to add to the description.
Mr. OWENS. Congressman, I might add a little bit to the fact that
the initial request, when it comes into our office in particular, we look
around the Agency in terms of what components, what organizations
may have records responsive to the request. That can very frequently
add to the number of places we can go. I can cite the maximum number
that we could go to initially at this point has been roughly 21 different
places we could go to. Those components, then, who are most familiar
with their records and precisely what is contained therein then review
their records. They will search for that documentation. Then they
have to go through the very time consuming and cumbersome task of
looking at all the information to make sure that it is responsive or can
be released under FOIA. They identify the exemptions to us, return
it to our office for final processing. We in turn return it to the requester,
giving him the exemptions, if there are deletions from the documents,
or giving them in full if documents can be released in full.
Mr. MURPHY. Thank you.
Have you ever put a cost factor on all of this over 1 year?
Mr. CARLUCCI. It runs about $2.6 million.
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Mr. OWENS. Last year it was $2.9 million.
Mr. MURPHY. Just your agency?
Mr. CARLUCCI. Just our agency, yes, sir, 116 man-years approxi-
mately. That is just personnel costs.
Mr. MURPHY. Mr. Carlucci, when you suggest that congressional
oversight is the most appropriate way to assure accountability and
legality in CIA activities, do you also agree that there should be ex-
plicit statutory authority making any CIA files available to these
intelligence committees?
Mr. CARLUCCI. Well, we already have an executive order, Mr.
Chairman, which indicates we should keep the committees informed.
As you are aware, the administration has been working with the Con-
gress in developing charter legislation, and we would expect that that
provision, that issue would be addressed in charter legislation as well.
My own experience after a year in the Agency is. that we are respon-
sive to the oversight committees. We have provided vast amounts of
information. I think the oversight process is working well. Where
information might be particularly sensitive, I think the committee has
recognized that and we have worked out solutions to those kinds of
problems. So from our perspective, we think the current arrangement
is working well and we think the committee is being furnished suf-
ficient information to do its job.
But that, of course, is a judgment that the committee can make
better than I can make.
Mr. MURPHY. Mr. McClory, do you have any questions?
Mr. MCCLORY. You indicated, Mr. Carlucci, the various types of
inquiries that come to you, the demands that come to you under the
exercise of the Freedom of Information Act.
What percentage of these relate to persons who are just trying to
get information about themselves?
Mr. CARLUCCI. A very substantial portion of the requests relate to
people who are asking us what do you have in your.files about me? I
don t know if we have an exact account, about 52 percent, sir.
Mr. MCCLORY. What is your attitude with regard to that part of the
Freedom of Information. Act? Does that impinge on the classified
nature of your files?
Mr. CARLUCCI. That is not our most serious concern, Congressman
McClory. We are principally concerned about operational files which
would reveal information to those who would do us harm. We think
it is probably appropriate to continue to make our. Agency responsive
to the first person requests.
You will note that we have not asked for any kind of exemption to
the Privacy Act either.
Mr. MCCLORY. So if that authority remained subject only to your
right to refuse to disclose sources and methods and identities, that
would be a satisfactory solution of the present problem.
Mr. CARLUCCI. Yes, sir, it would.
Mr. MCCLORY. I feel a principal part of our job here is to try to
strengthen the intelligence agencies, including the CIA. I know that
there has been a great deal of damage done, particularly as you indi-
cated from unfortunate disclosures, some of which I am sure you can
attribute to the Congress itself. I would hope that we could take some
appropriate action on this committee. I am likewise aware, as you
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
point out dramatically in your statement, that what we have done
principally is to dry up foreign sources because it is our foreign con-
tacts that don't understand this law and are fearful, and they place a
much greater fear on their lives than our own citizens would be. I
know that we have had in our own country the identity of intelligence
people disclosed and we have killed their chances for covert activities.
On the other hand, when that happens to a foreign source or a foreign
resource, it is pretty serious, and not only is the person's life placed in
jeopardy, but we cut off new sources of information.
Isn't that correct I
Mr. CARLttccl. Yes, sir.
Mr. MCCLORY. So that if we want to do & job of helping to
strengthen the CIA and other intelligence agencies, we should take
primary account of that and how we can, through amendment to the
statute, protect those sources and encourage those sources to cooperate
with us.
Mr. CARLIICCI. It is my personal view, Congressman McClory, that
the perception abroad and to a certain extent in this country, that the
U.S. Government cannot keep a secret, is the single most important
issue that the Central Intelligence Agency faces, and if we are not able
to deal with this issue and to deal with it rather rapidly, I won't think
we can continue to maintain our position as the most effective intel-
ligence organization in the world.
Mr. MCCLORY. I think from the standpoint of a purely budgetary
interest that we have-and I guess this has been discussed in another
subcommittee of this committee-the fact that we are spending $2.9
million is of concern to us, plus the fact that the existing law con-
tinues as a handicap in connection with the CIA doing the full job
that they want to do and that we want them to do.
Mr. CARLUCCI. The workload factor is one that of course troubles us.
It is not the principal argument that we are making, but in terms of
the workload-and I believe this will be addressed in subsequent tes-
timony in more dgtail, we find that the courts are requiring us increas-
iny to justify our deletions, and to do so in an unclassified form.
Vo we get ourselves into a Catch-22 situation where we delete some-
thing and then the court says, well, you have to describe in your affi-
davit why you deleted it, and in so describing it, you may identify the
very source that you have deleted, to say nothing of the added work-
load burden that this will impose on us as people have to go through
the lengthy justification of each deletion.
This court decision, by the way, results from a lawsuit brought by
two people whose names you will see on the masthead of the Covert
Action Bulletin, Ellen Ray and William Schaap.
Mr. MCCLORY. Now, the Phillip Agee publication, Covert Action
Information Bulletin, is a commercial operation, a moneymaking op-
eration which takes advantage of a statute which we enacted for the
purpose of protecting individuals' civil rights.
Do they pay for the information they get, and how do we bill them,
and who pays the bill 1
Mr. CARLucci. Well, of course, under the Freedom of Information
Act, the requester is not required to pay if determination is made that
the information is in the public interest, and the courts have taken a
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
rather liberal view of information that is in the public interest. We
had one case fairly recently
Mr. MAYERFELD. The FitzGibbon case.
Mr. CARLUCCI. This is Mr. Mayerfeld, in our General Counsel's office.
Mr. MAYERFELD. This was a case where the author of a book refused
to accept our determination that the activity was not in the public
interest, which is a requirement of the act in order to waive fees, and
the court ruled against us, that we should have waived fees because
the matter was in the public interest.
Mr. MCCLORY.. What about Agee? Does he pay?
Mr. CARLUCCI. He has not paid yet. Well, he may have paid
Mr. MAYERFELD. No.
Mr. CARLUCCI. Well, he has got two types of request. The two types
of request are the Privacy Act request and the FOIA request. While
we put the man-years in to answer his request because we are required
to go through the process, we have not yet provided the information
to him, so there will have to be a determination, if the information is
provided, whether he would pay.
Mr. MCCLORY. One more question. I have before me a proposed
amendment to the Freedom of Information-this is an amendment to
the CIA Authorization Act.
Would that amendment, would that satisfy the needs of the CIA
as you see it ?
Mr. CARLUCCI. Before I answer that question, Congressman Mc-
Clory, let me go back to the last question just for a minute. I am told
that we collected $10,000 last year in fees, and you can compare that
with the $2.9 million that we expended in implementing the act.
I believe you have the amendment that was furnished as a drafting
service in response to Congressman Burlison's request. If it is the latest
version that exempts first person requests, then we think this amend-
ment would deal with the kinds of problems that are laid out in my
testimony, yes, sir. (See Appendix D.)
Mr. McCLORY. Thank you very much.
Thank you, Mr. Chairman.
Mr. MURPHY. Would anybody else like to interrogate the witness I
Mr. ASHBROOK. Yes; I have a number of questions.
I have a little trouble understanding your testimony.
Is it your position. the CIA position, that the FOIA has or has not
been used for the release of information that is harmful to the Agency?
Mr. CARLUCCI. My testimony in this session is that the perception
that the FOIA can be used to give out information that is harmful
to the national security is a matter of serious concern.
Mr. ASHBROOK. Of course, that wasn't my question, not the
perception.
Mr. CARLUCCI. I also pointed out at the outset of my testimony that
1. am sure that whatever I say here will be used by hostile services in
disinformation campaigns. In terms of actual instances, I would pre-
fer, Congressman, to deal with that in an executive session.
Mr. AsHBROOK. I guess that is what bothers me about your testi-
mony. I have underlined five places where you have indicated you
think that the people who feel that damaging information has come
out through the FOIA are wrong. You refer to the businessman on
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
page 10, the company, and you categorically say "I think he is abso-
lutely wrong." I guess I sit here in another world. I don't see how you
can think he is absolutely wrong. I think he is absolutely right, and I
guess the fact that all the way through you indicate they are wrong
in their perception of what FOIA can do or has done makes me think
I must be tuned in on a different wavelength.
Mr. CARLUCCI. Let me say that I think in theory, the nine exemp-
tions can be used to protect national security information. It is a time-
consuming and laborious process which involves human beings who
are fallible, but the point is how others perceive it. They can look at
the exemptions and still recognize that we have to go through the
search process, and that that is being done by human beings. They
also realize that whatever decision the Agency makes can be over-
turned by the courts. As I indicated, the courts have not yet done that.
Their tendency is to make us justify increasingly in unclassified form
our deletions, but it is still possible for the courts, who must make a
de novo determination, to make a different judgment than we make,
and that is a matter of concern to our collaborating sources and
services.
In terms of specific instances where I think Freedom of Informa-
tion Act has resulted in damage, I would be most happy to go into
them in executive session. But if I were to go into them in open ses-
sion, I would be defeating the very concept that I am trying to
advance.
Mr. ASHBROOK. Well, I don't want you to. The only thing that I
would say where I differ with you, at least to the extent that this com-
mittee is examining, is when you say that the fundamental issue, the
important issue is how others perceive it. I would have to say I think
the fundamental issue is how others use it, it being the FOIA. I guess
we are talking about the same thing.
Mr. CARLUCCI. Well, let me make a point there. One of the problems
of the FOIA is that we cannot go beyond the request. That is, we
cannot try to find out who is making the request. We have to accept
the letter at face value. So unless the information comes to us in-
cidentally or through some other channel, we cannot really tell you
about the user or how the information is being used. If somebody
eventually publishes a book or writes in a letter that they are going to
publish a book, then we know how it is being used, but if it is being used
by hostile intelligence services, obviously they are not going to write
us directly, although it is my understanding that under the terms of
the law, if the head of the KGB were to write us directly, we would
have to respond within 10 days. But obviously they would use some
kind of an intermediary, and that intermediary is not even recog-
nizable to us. We can't even tell in many cases when requests come from
foreigners or Americans.
So it is very difficult for us to go behind the requests to answer the
kind of questions that you raised.
Mr. AsHSROOK. Well, let me ask one more question, because of one
other concern I have. I have been kicking around in this business from
a legislative standpoint for 20 years now and I figure I only know
probably one-hundredth of what some of our enemies know who get
the same information. This is the whole problem of a first person
request. It would be humorous if it weren't so serious. A person re-
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
quests information on himself. The person in the agency may think
he sanitized it. But, I know more about me and my contacts than
anyone does. I can read something in the light of what I have done.
If you think you are fooling me, by crossing out an informant's name
you are wrong. I know exactly who you are talking about. The person
g the information together for release may think he has done
puttin
everything in the world to protect the source, but when I read about
myself, I know damned well who it was in New York that they were
talking about, or in Belgrade or somewhere, and to me, that is the
greatest danger of the FOIA, the first person request information that
the person gets on himself. You may think you have done everything
you can to protect the source, but when I read it, I know I was only
in Belgrade once, in 1965, and I know darned well who they must have
meant that I got some information from. You know, it is almost foolish
to think a person cannot get information on himself and put together
the pieces to identify the sources you are trying to protect. And to
me, that is the greatest danger of the release of information.
Mr. CARLUCCI. I am prepared to concede that that is a ,danger. Our
feeling was that we had to weigh the value of the disclosure concept
versus our responsibility, our statutory responsibility to protect our
sources and methods, and we tried to come up with what we consider
an equitable solution in response to Congressman Burlison's request.
This doesn't mean it is the best of all worlds for us. We are leaning
over backward, I think, in the direction of greater public disclosure,
but what we want to do by virtue of, what we hope can be done by
virtue of the amendment that Congressman Burlison requested, is to
protect our most essential secrets, and more significantly give us a
greater confidence in talking to our agent network and our liaison
services that we can protect them. And we think the amendment goes
far enough to protect that.
Mr. ASUBROOK. Well, I would agree with your perception, because
other members of the staff and the committee and I have talked to
dozens of foreign intelligence officers, responsible people, and they just
come short of thinking we are crazy.
Mr. CARLUCCI. I have heard that many times myself.
Mr. ASHBROOK. They say with a wistful smile on their face, now,
what is wrong with you peo le. Their perception is very important.
Not only is their perception that this disclosure is dangerous, but that
we are probably stupid for allowing it.
Thank you, Mr. Chairman.
Mr. MURPHY. Mr. Carlucci, what percentage of requests are Privacy
Act requests, requests by a person for file information about himself
as opposed to a set of circumstances or facts other than about himself ?
Mr. CARLUCCI. As I indicated earlier, I think about 52 percent.
Mr. MURPHY. Are what ?
Mr. CARLUCCI. Are first person requests, Privacy Act and FOIA first
person requests.
Mr. MURPHY. Do 52 percent seek information just about themselves g
Mr. CARLUCCI. Yes, sir.
Mr. MURPHY. It is my understanding that a Government-wide task
force has been formed to look into this problem. Should we not wait
for its administrative recommendations before we proceed on this, or
what is your view on that ?
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Mr. CARLucci. We are participating in the Government-wide task
force, and we will certainly cooperate with it. I am responding to ques-
tions that were raised by the committee during the budget hearings.
I feel a responsibility to acquaint the committee with our problems.
Indeed, the committee has consistently urged me to acquaint it with
whatever problems we may face. I have laid those problems out. My
own view is that this is a serious and urgent situation, that at least the
perception of an erosion continues, and we have accordingly responded
to requests from the committee for drafting assistance.
Mr. MURPHY. Mr. Carlucci, I understand you have to make a
meeting.
Mr. CARLIICCI. Well, I am prepared to stay as long as the committee
thinks it is valuable, Mr. Chairman. I think this is more important
than my meeting.
Mr. MuRuHY. I would like to go into executive session to hear some
of the matters that you would be telling us, as far as I am concerned.
Mr. CARLUCCI. I would be delighted.
Mr. MURPHY. Mr. McClory, do you have any objection?
Mr. McCLORY. I have no objection. I move, Mr. Chairman.
Mr. MURPHY. All right, Mr. McClory moves we go into executive
session. All those in favor say yes.
[A chorus of "ayes."]
Mr. MURPHY. Opposed.
[No response.]
Mr. MCCLORY. We have got a new rule. We can go into executive
session with two votes. We have just amended the rule.
Mr. MURPHY. All the public, we request that you step outside. We
won't be too long, and we will come back in for Mr. Silver's testimony.
Mr. Carlucci, if you want to identify some of your own people that
have clearances to stay.
Mr. CARLucci. I have got seven people.
Mr. MURPHY. Then everyboMe' lse, please leave.
[Whereupon at 10:25 a.m., subcommittee proceeded in executive
session, to reconvene in open session thereafter.]
[Whereupon, at 11:06 a.m., the subcommittee resumed.]
Mr. MURPHY. The Subcommittee on Legislation will be in open
session now, and we will hear from Mr. Daniel B. Silver, General
Counsel of the NSA.
Mr. Silver?
STATEMENT OF DANIEL B. SILVER, GENERAL COUNSEL, NATIONAL
SECURITY AGENCY
Mr. SILVER. Thank you, Chairman.
Mr. Chairman and members of the subcommittee, I appreciate this
opportunity to inform this subcommittee about the impact that ad-
ministering the Freedom of Information Act and the Privacy Act is
having on the National Security Agency. I will first briefly describe
the volume of requests under the acts and the cost of compliance. I
then would like to outline the manner in which requests are handled
within the Agency and the statutory provisions that figure most
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
prominently in NSA's processing of FOIA and Privacy Act requests,
Finally, I would like to describe particular problems arising in the
application of the FOIA to NSA's signals intelligence activities.
Mr. Chairman, I submitteed a prepared statement on these matters
which is fairly lengthy. With your permission, I would like to sum-
marize portions of it in the interests of saving time.
Mr. Mvxpny. Without objection, it is so ordered.
[The prepared statement of Mr. Daniel B. Silver follows:]
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
16
SUBCOMMITTEE ON LEGISLATION
HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE
TESTIMONY OF
DANIEL B. SILVER,
GENERAL COUNSEL, NATIONAL SECURITY AGENCY
Mr. Chairman and Members of the Committee, I appreciate
this opportunity to inform this Subcommittee about the
impact that administering the Freedom of Information Act
(FOIA) and the Privacy Act is having on the National Security
Agency. I will first briefly describe the volume of requests
under the Acts and the cost of compliance. I then would like
to outline the manner in which requests are handled within
the Agency and the statutory provisions that figure most
prominently in NSA's processing of FOIA and Privacy Act
requests. Finally, I would like to describe particular
problems arising in the application of the FOIA to NSA's
signals intelligence activiities.
Volume and Cost of Requests Under the Acts
The FOIA provides that any person has a right to
access to all records of any federal agency, except such
records or portions of records as may be covered by one of
nine exemptions enumerated in the Act. The exemptions must
be asserted individually for each covered record or portion
of a record. Consequently, the fact that a record will
almost certainly fall within a statutory exemption does
not relieve the Agency from the obligation to search for
it and review it. The Privacy Act operates somewhat
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
differently. Its purpose is to give citizens more control
over what information is collected by the Federal Govern-
ment about them and how that information is used. Under
the Act, agencies are required to report publicly all
"systems of records" maintained on individuals. The Act
requires that the information collected in these systems
of records be accurate, complete, relevant, and timely.
It mandates that information be used only for the
announced purposes for which it was collected. It requires
agencies to maintain records of disclosures of personal
information. Finally, the Privacy Act permits citizens or
aliens lawfully admitted for permanent residence to have
access to personal information about them in agencies'
systems of records and to amend inaccuracies that they find
there. This right of amendment is enforceable in Court.
The Privacy Act, like the FOIA, contains specific exemptions
from release for certain kinds of information. These are,
however, more limited than under the FOIA.
Under the FOIA all of NSA's records are subject to a
request for inspection by any person, whether or not a
citizen or permanent resident alien. While all classi-
fied information, and certain additional information, is
exempt from disclosure, the FOIA obligates the Agency to
conduct a reasonable search for documents that are
adequately described. The Act then places on the Agency
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
the burden of justifying the withholding of any documents
it may find. Under the Privacy Act requests may be made
only by citizens and permanent resident aliens, only for
records concerning the requesting party and only for
records located in a "system of records" -- i.e., a
system in which records are retrievable by name or per-
sonal identifier. Because of the more restricted scope
of the Privacy Act, it has so far presented the Agency with
considerably fewer problems than the FOIA. The records
organized in "systems of records" within NSA, as statutorily
defined, are personnel, security and administrative records.
NSA's intelligence records are not filed by name or other
individual identifier.
The costs to the Agency of administering the Acts,
although substantial, have not yet become a matter of
pressing concern. In calendar year 1978, the cost to
the Agency of administering the FOIA was about $524,000.
(This includes only direct costs of searching, preparing
responses and handling administrative appeals. It does
not include the costs to the government of defending
litigation against the Agency under the FOIA.) The
number of requests processed was 704. That was the second
consecutive year in which the cost was over a half million
dollars. The number of requests in calendar year 1978
exceeded the previous year's by more than one-third.
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
19
In calendar year 1978, the cost of administering
the Privacy Act was about $125,000, up by 12% over the
previous year. The number of requests processed for access
to, or amendment of, records was 318, an 88% increase over
the comparable figure for 1977.
Handling of Requests; statutory exemptions
Requests to the Agency for information -- whether they
cite the FOIA, the.Privacy Act, or both -- are deliVered
to the Chief,Policy Staff, who is the initial decision
authority under both Acts. On the basis of his knowledge
of Agency activities, the Chief, Policy Staff, forwards
copies of each request to those organizations within the
Agency that are likely to have files that may contain the
kinds of records requested. Privacy Act requests that
cite specific NSA systems of records are forwarded to the
custodians of those files. Privacy Act requests citing
no system of records are forwarded to custodians of all
systems of records that might contain information about
an individual fitting the description the requester pro-
vides. FOIA requests are forwarded to the organizations
maintaining files that may contain the records requested.
The effort expended by the Agency in locating records
and reviewing them yields relatively little in terms of
the actual volume of information disclosed. The vast bulk
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
20
of NSA records contains intelligence information or
information about the Agency and its activities that would
be harmful to the national security if disclosed. Such
information is withheld. Consequently, the release of
the records occurs, for the most part, only when persons
currently or formerly affiliated with the Agency ask
under the Privacy Act for records, found in Agency per-
sonnel or administrative files, containing personal
information about themselves. Agency records located
in response to requests under the FOIA for information
about.a particular subject or individual are usually
classified intelligence documents that are covered by
statutory exemptions from release.
Under the "FOIA, there are two principal bases on
which NSA withholds records from release, either in
whole or in part. The first is that the information
the records contain is classified and thus exempt
under 5 U.S.C. Section 552(b)(1), which provides:
(b) This section does not apply to matters
that are--
(1) (A) specifically authorized under
criteria established by an Executive
order to be kept secret in the interest
of national defense or foreign policy
and (B) are in fact properly classified
pursuant to such Executive Order;
This is known as the "(b)(1) exemption."
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
A second statutory basis for exemption is that the
information is specifically exempted from disclosure by
statute and therefore exempt under 5 U.S.C. Section 552(b)(3),
which covers information:
(3) specifically exempted from disclosure
by statute (other than section 552b of
this title), provided that such statute
(A) requires that the matters be with-
held from the public in such a manner as
to leave no discretion on the issue, or
(B) establishes particular criteria for
withholding or refers to particular types
of matters to be withheld;
This is referred to as the "(b)(3) exemption."
The principal statute on which NSA usually bases
(b)(3) exemptions is Public Law 86-36 (May 29, 1959,
73 Stat. 63, 50 U.S.C. 402 note), Section 6 of which
permits the withholding of certain kinds of information
about NSA:
SEC. 6. (a) Except as provided in sub-
section (b) of this section, nothing in
this Act or any other law (including, but
not limited to, the first section and
section 2 of the Act of August 28, 1935
(5 U.S.C. 654)) [repealed by Pub. L.
86-626, 74 Stat. 427] shall be construed
to require the disclosure of the organiza-
tion or any function of the National
Security Agency, of any information with
respect to the activities thereof, or of
the names, titles, salaries, or number of
the persons employed by such agency:
Additional statutory basis for asserting the (b)(3) exemp-
tion is found in 18 U.S.C. Section 798 (set forth in an
appendix to this statement), making it a crime to engage
in unauthorized disclosure of communications intelligence
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
22
information, and 50 U.S.C. Section 403(d)(3), which
provides that the Director of Central Intelligence "shall
be responsible for protecting intelligence sources and
methods from unauthorized disclosure."
The specific exemptions under the Privacy Act that
NSA must most often use to withhold information are those
in 5 U.S.C. Sections 552a(k)(1), (2), and (5):
"(k) SPECIFIC EXEMPTIONS.-The head of any
agency may promulgate rules, in accor-
dance with the requirements (including
general notice) of sections 553(b)(1),
(2), and (3),(c), and (e) of this title,
to exempt any system of records within
the agency from subsections (c)(3),(d),
(e)(1), (e)(4)(G), (H), and (I) and (f) of
this section if the system of records is-
"(1) subject to the provisions of section
552(b)(1) of this title;
"(2) investigatory material compiled for
law enforcement purposes, other than
material within the scope of sub-
section (j)(2) of this section:
Provided, however, That if any
individual is denied any right,
privilege, or benefit that he
would otherwise be entitled by
Federal law, or for which he
would otherwise be eligible, as
a result of the maintenance of
such material, such material shall
be provided to such individual,
except to the extent that the
disclosure of such material would
reveal the identity of a source who
furnished information to the Govern-
ment under an express promise that
the identity of the source would be
held in confidence, or, prior to the
effective date of this section, under
an implied promise that the identity
of the source would be held in
confidence; ....
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
"(5) investigatory material compiled
solely for the purpose of determining
suitability,. eligibility, or qual-
ifications for Federal civilian
employment, military service, Federal
contracts, or access to classified
information, but only to the extent
that the disclosure of such material
would reveal the identity of a source
who furnished information to the
Government under an express promise
that the identity of the source would
be held in confidence, or, prior to
the effective date of this section,
-under. an implied promise-that the
identity of the source would be
held in confidence;"
In addition,. as stipulated in the Agency's published rules
implementing the Privacy Act, information in NSA's systems
of records is subject to being withheld under Public Law
86-36 and 18 U.S.C. Section 798.
Problems Arising in the Application of the FOIA
While the administrative burden and expense of appli-
cation of the FOIA are not problems for NSA of a severity
anywhere near as great as at some other agencies, the
operation of theAct does pose, in my view, serious pro-
blems for the Agency. The Act is having an adverse effect
on NSA's ability to protect sensitive intelligence source
and method information, the disclosure of which could have
serious detrimental consequences on NSA's abiity to carry
out its mission. It would be an exaggeration to say that
the FOIA as yet has caused any irreparable disclosure of
sensitive information. The evolution of FOIA requests and
litigation to.date, however, and the course the development
of law is taking with respect to the (b)(1) exemption,
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
are likely to produce a slow but steady leakage of in-
formation whose ultimate consequences are extremely
hazardous.
Part of the problem lies in a trend-of judicial
decisions on the (b)(1) exemption, particularly in the
District of Columbia Circuit and district court, that
is making it increasing difficult for the government to
maintain the (b)(1) exemption without disclosing consider-
able information in the course of litigation --in some
cases, almost as much information as release of the
disputed records might reveal. Beyond this, the sin-
gular nature of NSA's activities makes even the process
of responding to FOIA requests highly risky when those
requests touch upon intelligence information, as most do.
It is a well-known fact that NSA has only a single
source of the intelligence information it produces --
i.e. the interception of signals and communications. The
fundamental security tenet of the signals intelligence
process is that the identity of the Agency's targets, the
degree of its ability to intercept those targets, the
extent and nature of the Agency's ability to handle large
masses of information and the extent of any cryptographic
successes are all matters that must be kept in strictest
secrecy. Disclosure of any of these items of information
would encourage intelligence targets to take countermeasures,
with the likely result that the United States would be
denied valuable intelligence.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
In order to protect the kinds of information I have
just described it is also necessary to maintain secrecy
as to the information that is derived from signals
intelligence. If a foreign power knows that the United
States possesses certain information as the result of
signals intelligence, that foreign power can analyze its
own communications and other signals and often thereby
determine the insecurities in its own practices that
enabled the United States to derive the information.
Once located, such insecurities can be remedied. While
the contents of messages intercepted by NSA are fre-
quently unexceptional in themselves, their disclosure
would enable the foreign power involved in sending or
receiving such a message to determine that its communica-
tions had been intercepted.
These considerations often place NSA in an extremely
difficult position in responding to FOIA requests that
seek information contained in signals intelligence records.
In some cases even the admission that NSA possesses informa-
tion on a particular subject is enough to disclose classified
information.
Significant information about a withheld record may be
disclosed merely by citing the statutes requiring its
exemption. Citing 18 U.S.C. Section 798 reveals, at
least in general terms, that the information being withheld
was obtained by NSA from foreign communications, since
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
18 U.S.C. Section 798 protects only against the un-
authorized disclosure of classified communications
intelligence information. More specific and damaging
facts about the source of the information could be dis-
closed by admitting the existence of records in
circumstances where such existence implies the source,
as, for example, when a person who requests NSA
records pertaining to himself has engaged in only
limited travel overseas or has communicated with a
foreign government or organization on very few occasions.
In such circumstances, a response affirming that there are
NSA-originated documents protected by 18 U.S.C. Section 798
would suggest to the requester the identity of the foreign
communication source involved.
Even reliance on 50 U.S.C. Section 403(d)(3) as the
basis for a (b)(3) exemption indicates that the NSA informa-
tion being withheld was obtained from foreign communications,
since the "intelligence sources and methods" protected by
that statute in the case of NSA could only refer to communi-
cations intelligence sources and methods.
In the wake of Vaughn v. Rosen, 484 F.2d 820, rehearing
denied (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (D.C. Cir.197,
and later Phillippi v. Central Intelligence Agency, et al., 546
F.2d 1009 (1976), district courts have exerted steadily increasing
pressure to disclose in the public record more and more about
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
27
the documents being withheld. Information such as the
dates of the withheld documents, the numbers of documents
being withheld, and the number of pages of each of the
documents, although possibly innocuous when applied to
records based on other kinds of intelligence sources and
methods, can, when applied to records obtained through
communications intelligence sources and methods, reveal
sensitive informationthat should not be publicly dis-
closed. Merely citing the Executive Order that governed
the initial classification of the record suggests the
time frame in which NSA originated the record.
The foregoing kinds of data, revealed by normal
documentation of an FOIA denial, often risk the disclo-
sure of classified information, especially in the most
usual kind of FOIA request to NSA, in which the requester
asks for records pertaining to himself. Other kinds of
requests pose an even more acute threat that to provide
usual information about the records being withheld would
in itself disclose sensitive information about communica-
tions intelligence sources. The most difficult kind of
request is one that pinpoints a category of intercepted
communications or other signals. An example would be a
request for communications sent on a particular day be-
tween particular officials or organizations, or a request
for communications of a particular foreign government
regarding a specific subject or incident. Such requests
are by no means rare.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
28
To respond that NSA has originated the records
requested thus frequently would reveal the exploitation
of a particular communications intelligence source.
NSA officials are constrained by 18 U.S.C. Section 798
not to acknowledge the existence of the requested records
when they do in fact exist. It is out of the question to
untruthfully deny the existence of the records. Yet the
FOIA mandates a response. NSA's response to a request of
this kind must be that the existence or non-existence of
the requested records is classified national security
information exempt from release under the FOIA by 5 U.S.C.
Section 552(b)(1) and 5 U.S.C. Section 552(b)(3). A
statement that the requested records exist would be
classified for the reasons stated above. A statement
that the requested records do not exist must also be
classified, because the precedent of responding in the
negative when the records do not exist would render a
refusal to confirm or deny existence tantamount to an
admission that the record exists. Even under NSA's
present approach, it appears that at least some requesters
construe an existence/non-existence response to be an
affirmation that the requested records do in fact exist.
This is, of course, inaccurate, but if believed by foreign
powers could be damaging to communications intelligence
sources.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
NSA takes seriously its obligation under the FOIA
to release as much requested information as possible,
subject to statutory exemptions. Consequently, refusal
to confirm or deny the existence of requested records is
resorted to as infrequently as possible. In numerous cases,
the Agency's FOIA authorities, either original or appellate,
have determined that the risk of revealing sensitive informa-
tion about sources and methods is not sufficiently great to
warrant withholding information about the existence of
requested intelligence records. Such judgments must be made
on the basis of the particular facts and circumstances of
each case. For example, in response to FOIA requests for
information about certain internationally-known public
figures, the Agency has confirmed the existence of such
information (although it has not released the records them-
selves) on the basis of a determination that such acknow-
ledgement would not jeopardize sources and methods. In no
such case does the Agency indicate whether the intercepted
communications are to, from, or merely about the named
individual. it is assumed that the volume of international
communications that either are to or from such individual,
or that mention his name, is so great that no specific
target or communication link would be pinpointed by ad-
mitting the existence of NSA records.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
30
It should be clear from the foregoing, that, even
without disclosure of intelligence information itself,
NSA's processing of FOIA requests poses discernible
security risks. One is the ever-present risk of mistake.
Such a mistake could involve the inadvertent release of
classified information or an error of judgment in deter-
mining whether to acknowledge the existence of information
responsive to a particular request. While Agency officials
try to put themselves in the position of foreign intelli-
gence analysts and to determine in a particular case how
much information could be derived from a particular response,
this process is far from reliable. Since we do not know
how much information a foreign target may have about NSA,
derived from other sources, an acknowledgement that is
deemed innocuous in fact may be helpful
background of other information -- to a
addition, as the volume of requests and
there is reason to fear that the mosaic
disclosed
if highly
powers in
by numerous responses to FOIA
foreign power. In
responses increases,
of information
requests, even
circumscribed, will prove helpful to foreign
their attempts to analyze the
activities of the United States Signals Intelligence
System. Finally, there are risks inherent in the in-
ternal processing of FOIA requests, before any response
is issued. A cornerstone of security protection for
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
31
sensitive information about NSA's intelligence sources
and methods is the restriction of that information, within
the Agency, to as few individuals as possible. This is
the "need-to-know" principle. The processing of FOIA
requests frequently causes sensitive information to be
brought to the attention of persons who otherwise would
not have access to it. While there is no evidence that
this has caused serious security breaches to date, the
expansion of access to such information must be viewed as
an added security hazard.
All of the risks described above are magnified many-
fold when an FOIA requester files suit in a district
court challenging the Agency's refusal to disclose informa-
tion.
So far, at least, no communications intelligence
record withheld by NSA under 5 U.S.C. Section 552(b)
(1) or 5 U.S.C. Section 552.(b)(3) has been ordered
released by a Court. Subjecting such records to pro-
cessing and litigation under the FOIA is, thus, as
futile as it is risky.
Under 5 U.S.C. Section 552(a)(4)(B), the courts
have a de novo review function in considering the
validity of FOIA exemptions. The terms of the Act, as
amended in 1974, authorize a court to examine classified
records in camera to determine the propriety of with-
holding national security information. The Conference
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
32
Report makes clear, however, that "in camera examination
need not-be automatic" and that before a court orders
in camera inspection "the Government should be given the
opportunity to establish by means of testimony or detailed
affidavits that the documents are clearly exempt from
disclosure." (Conf. Report p.9) The Conference Report
also emphasizes congressional recognition that:
"(T)he Executive departments responsible for
national defense and foreign policy matters have
unique insights into what adverse effects might
occur as a result of public disclosure of a
particular classified record. Accordingly, the
conferees expect that Federal courts, in making
de novo determinations in section 552(b)(1) cases
under the Freedom of Information law, will accord
substantial weight to an agency's affidavit con-
cerning the details of the classified status of
the disputed record." (p.12)
Despite this legislative history, the present state
of the law on the nature of the de novo review process in
FOIA cases and the role of the agency affidavit in that
process is unclear. Courts -- particularly in the District
of Columbia, where the bulk of significant FOIA litigation
occurs -- are taking an increasingly expansive view of
their role in de novo review of FOIA exemptions and are
demanding more and more information about withheld records.
They are placing an increasingly greater burden on the
government to "prove" the validity of security classifica-
tion and convince the judge that if he were the classifying
authority he would assign the same classification. In
many cases, such proof is demanded on the public record,
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
thus exerting heavy pressures on intelligence agencies
to disclose increasing amounts of information in an attempt
to accomplish an inherently impossible task -- to describe
publicly the classified information and the damage that
would result from its release.
The recent trend of decisions in the District of
Columbia suggests that the pressures on intelligence
agencies will not abate. In Weissman v. CIA, 565 F. 2d
692 (1977), the United States Court of Appeals for the
District of Columbia Circuit adopted a rather circumscribed
view of the de novo review process. The court held that
if an exemption is claimed on the basis of national
security a district court must be satisfied that proper
procedures have been followed, and that by its sufficient
description the contested document logically falls into
the category of the exemption indicated.
565 F.2d at 697.
However, in Ray v Turner, 587 F.2d 1187
(1978) the court
seems to have turned to a more expansive interpretation.
In that case, the court stated that the intent of Congress
in passing the 1974 FOIA amendments was to allow
the courts to make an objective, independent judicial
determination on national security matters, 587 F.2d 1194.
Summarizing salient characteristics of de novo review in
the national security context, the court stated that once
the government has met its burden of establishing an
exemption, the trial court must make its de novo deter-
mination, according substantial weight to an agency's
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
affidavit justifying the classified status. Whether or
how to conduct an in camera examination of the document
rests in the sound discretion of the court, in national
security cases as in all other cases. Id. A judge has
discretion to order in camera inspection on the basis of
an uneasiness or doubt he wants satisfied before he takes
responsibility for a de novo determination. 587 F.2d at 1195.
The court added that the foregoing considerations developed
for exemptions under 5 U.S.C. Section 552(b)(1) also apply
to exemptions under 5 U.S.C. Section 552(b)(3) when the
statute providing criteria for withholding is in further-
ance of national security interests. Id.
In his concurring opinin in Ray, Chief Judge Wright
would carry the court's role a step further. In addition
to determining de novo application of an exemption to
records withheld from FOIA release, where an in camera
submission is utilized a court should "(as) a check
against agency abuse of the in camera affidavit pro-
cedure, ...require the agency to explain why the informa-
tion in its in camera submission should not have been
included in a public affidavit, and should make available
to all parties any portions of the in camera affidavits
that it determines, after full consideration of the
agency's arguments, do not warrant a protective order."
Id. at 1211 n. 43.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
The latter procedure was followed by the district
court in Baez v. National Security Agency, et al., Civil
Action No. 76-1921 (D.D.C. Memorandum and Order Filed
November 2, 1978, p.2). The court ordered to be made
public all but two paragraphs of the in camera affidavit
submitted by NSA, without even consulting the agency
regarding its reasons for applying the classification.
In his opinion, Judge Bryant observed:
"The Agency has presented basically three
arguments why the disclosure of any informa-
tion about these documents would threaten
the national security or reveal the structure
or activities of N.S.A. First of all, foreign
governments do not know which international
common carrier facilities the N.S.A. is
capable of monitoring. Secondly, foreign
governments do not know the actual intelligence
targets of the N.S.A. And, thirdly, foreign
governments do not know the particular
communications circuits which the N.S.A. is
now monitoring or has in the past monitored.
... The Court finds all three arguments
unconvincing. ..."
A motion for reconsideration of the court's Memorandum
and Order is currently awaiting decision. The information
at issue has not yet been released, pending resolution of
that motion.
The judicial trends described above, if continued,
portend serious difficulties for NSA in maintaining needed
secrcy about its communications intelligence activities.
In virtually every case, the rationale for withholding
records-is the same, namely that the records would reveal
specific targets of intercept activity, particular circuits
20
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
that are monitored, or specific capabilities for process-
ing information. The judgment that the disclosure of these
facts would be damaging to the national security is an
informed professional judgment, based upon extensive
experience with the signals intelligence process. Fre-
quently the judgment reflects an understanding of the
manner in which the United States would be able to exploit
similar information about a foreign signals intelligence
agency.
As indicated by our experience in the Baez case, it
is difficult to communicate to judges who are not
intimately familiar with the signals intelligence process
the basis on which these judgments are made. The courts
are confronted with able attorneys for FOIA requesters,
who carefully marshall every scrap of information about
NSA's activities, and then argue, on the basis of what
they assert is already publicly known, that the additional
disclosure of the requested information cannot be harmful.
Although frequently the information presented to the court
as being in the public domain comes from newspaper articles
and other unofficial sources, and may not be accurate, there
is a risk that the courts will fail to perceive the differ-
ence between official release and surmise and will accept
the plaintiff's contentions.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
37
This risk is particularly acute because the judgment
that information must be withheld frequently is made on the
basis that the cumulative effect of releasing information
of like type would be damaging to the signals intelligence
system. Thus, while identifying a single intercepted
message might not prove fatal, identifying hundreds or
thousands undoubtedly would. The court, however, sees
only the single message in the course of its de novo
review and may have difficulty in perceiving the cumulative
damage that would be done by a series of releases.
To date, NSA has not been compelled to disclose any
classified intelligence information as a result of FOIA
litigation (although an adverse decision in the Baez case
would change this situation). On the other hand, the mere
process of defending FOIA litigation clearly has caused
more information about the Agency's signals intelligence
activities to be released than is desirable. Each case
imposes pressure to disclose in public affidavits as
much of the rationale for withholding the requested
information as is possible. Responding to these pressures,
the Agency in affidavits has confirmed facts about its
activities that were deemed widely known or inferable.
Such disclosures, while perhaps not yet harmful in them-
selves, pose the risk of a "slippery slope" phenomenon.
The more the Agency publicly acknowledges about its
activities, the more ammunition it supplies to FOIA
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
38
requesters who argue that against the background of what
is known further disclosures cannot be deemed harmful.
It is somewhat paradoxical, in my view, that Congress
has recognized the special sensitivity of communications
intelligence information to the extent of providing
protection under the espionage laws (18 U.S.C. Section
798) more rigorous than for most other kinds of classified
material. Yet at the same time, under the Freedom of
Information Act, NSA is called upon repeatedly to litigate
the same question and to bear the burden of proving that
communications intelligence information is fragile and
requires protection. The present state of the law leaves
it open to the courts to reject in the POIA context the
judgment that Congress has reached under 18 U.S.C. Section
798. Moreover, current trends in the development of
FOIA litigation make no provision for the unusual sensi-
tivity.of communications intelligence information and
thus raise the risk that the process of litigation itself
will render nugatory the protection sought to be obtained
by withholding communications intelligence information
from disclosure.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
39
179& Disclosure of classified information'
(a) Whoever knowingly and willfully commu-
nicates, furn shes, transmits, or ? otherwise
makes avai;ah'.e to an unauthorized person, or
publishes. or uses ih any manner prejudicial to
the safety or interest of the. United States or
for the bennfiv of any foreign government to
the detrtme:=L.of the United States any classi-
fied inform:ion-
(1) cor.:e-ning the nature, preparation, or
use of any code, cipher, or cryptographic
system of the United States or any foreign
government; or
(2) concerning the design, construction, use.
maintenance, or repair of any device, appara-
tus, or applicance used or prepared or
planned for use by the United States or any
foreign government for cryptographic orcor-
muaication intelligence purposes; or
(3) concerning the communication inter-
gence activities of the United States or any
foreign government; or
(4) obtained by the process of communica-
tion intelligence from the communications of
any foreign government, knowing the same to
have been obtained by such processes--.
Shall be fined not more than $10,000 or im-
prisoned not more than ten years, or both.
(b) As used in subsec.+_on (a) of this section-
The term "classified information" means in-
formation which, at the time of a violation of
this section, is, for reasons of national security,
specifically designated by a United States Gov-
ernment Agency for limited or restricted disc
seminatlon or distribution;
The 'terms "code," "cipher," and "crypto-
graphic system' include in their meaninm in
addition to their usual meanings, any method
of secret writing and any mechanical or electri-
cal device or method used for the puriiose of
disguising or concealing the contents, signifi-
cance, or meanings. of communications;
The term "foreign government" includes In
Its meaning any person or persons acting or
purporting to act for or on behalf of any fac-
tion, party, department. agency, bureau, or
military force of or within a foreign country, or
for or on behalf of any government or any
person or persons purporting to act as a govern-
ment within a foreign country, whether or not
such . government' Is recognized by the United
States;
The term "communication Intelligence'
means all procedures and methods used in the
Interception of communications and the obtain-
ing of Information from such communications
by other than the intended recipients;
The term "unauthorized person" means any
person who, or agency which. Is not authorized
to receive information of the categories set.
forth in subsection (a) of this section, W the
President, or by the head of a-department or
agency of the United States Government Which
is 'expressly designated by the President to
engage In communication intelligence activities
for the United States-
(c)' Nothing In this section shall prohibit the
furnishing. upon lasful demand,'of Information
to any regularly constituted committee of the
Senate or House of l:epresentatives of the
United States of America, or joint committee
thereof.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
Mr. SILVER. Thank you very much.
The volume of requests that we receive and the cost of processing
those requests is only a small fraction of those that Mr. Carlucci de-
scribed to you in the case of the CIA. And we cannot complain, at
least so far that the volume or the burden on the Agency in purely
fiscal and logistical terms is excessive. There is, of course, an essential
difference between these two acts. Under the Freedom of Information
Act, any of the Agency's records is subject to a request for inspection
by any person, be he a citizen, a permanent resident alien, or a for-
eigner. While we have the nine statutory exemptions, which cover
basically all of our classified information and certain additional in-
formation about the Agency and its operations, the FOIA nonethe-
less requires us to conduct a reasonable search responsive to a re-
quest, even though we may know at the outset that the documents we
will find will be exempt from disclosure. It places on the Agency thi+
burden of justifying the withholding of any documents that it may
find.
Under the Privacy Act, requests may be made only by citizens and
permanent resident aliens, only for records concerning the request-
ing party, and only for records that are located in a system of records
as defined under the act. In very general terms, that is a system in
which the records are retrievable by name or by some personal indenti-
fier. Because of the restricted scope, the Privacy Act has presented
very few problems to the Agency in comparison with the FOIA.
Within NSA, our systems of records under the Privacy Act include
personnel, security, administrative, medical, and similar records. They
do not include any intelligence records as such. Our intelligence rec-
ords are not filed in files or dossiers by names of individuals or orga-
nizations, and consequently, in our view, are not within a system of
records subject to the Privacy Act.
The costs, as I indicated before, of administering the -act have not
yet become a matter of concern. In calendar 1978, the cost to the Agency
of administering the FOIA was about $524,000. Now, this is the direct
personnel cost of searching. It does not include the cost to the Govern-
ment of defending the various FOIA cases in which we were defend-
ant. The number of requests processed was 704. That was about a
one-third increase over the previous calendar year. In 1978, the cost
of administering the Privacy Act was about $125,000, an increase of
approximately 12 percent over the previous year. There was an 88-
percent increase in the number of requests. The number, however, was
still quite small.
I might note that of the FOIA requests that we receive, about 75
percent are in the first person category, where the requester seeks
information that the Agency may have about himself, and this is, for
reasons I will describe shortly, a category that gives the Agency very
serious problems in responding.
When we receive a request under either of the acts, the staff, the
Agency policy staff, which is responsible for handling initial deci-
sions, forwards a copy of the request to each organization within the
Agency that is likely to have files that may contain responsive mate-
rial. In the case of the Privacy Act, these-generally are the military
and civilian personnel organizations, the security organization, the
medical center. In the case of the Freedom of Information Act, it
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
would be any component of the Agency that, based on the expert
judgment of the policy staff, is likely to have files containing infor-
mation that is responsive.
A considerable amount of effort goes in to locating files. Very little
of what is located is ever disclosed. The vast bulk of our records, out-
side of the personnel systems of records, contain intelligence informa-
tion or information about NSA and its activities that would be harm-
ful to the national security if disclosed. That information is withheld.
The releases of information that we have made, except for a small
amount of declassification of World War II communications intelli-
gence material that was deemed no longer to require classification, are
almost always in cases of Privacy Act requests for records about
usually an agency employee or a disappointed applicant for
employment.
There are two principal statutory bases on which NSA withholds
records containing intelligence information or information about the
Agency from release. The first is the exemption for information that
is specifically authorized under criteria established by an executive
order to be kept secret in the interests of national defense or foreign
policy, and which is in fact properly classified pursuant to the execu-
tive order. This is the so-called (b) (1) exemption to the Freedom of
Information Act, also referred to sometimes as the "national security
exemption."
A second statutory basis for exemption is information that is specifi-
cally exempted from disclosure by statute under section (b) (3) of
the Freedom of Information Act. The principal (b) (3) statute on
which we rely is Public Law 86-36, which provides, in part, that no
law shall be construed to require the disclosure of the organization
or any function of the National Security Agency, of any information
with respect to the activities thereof, or the names, titles, salaries or
number of persons employed by such agency. Additional statutory
basis under the (b) (3) exemption is found in 18 U.S.C. 798, which is a
criminal statute making it a crime to engage in unauthorized disclosure
of communications intelligence information, and section 403(d) (3)
of the National Security Act, which provides that the Director of Cen-
tral Intelligence shall be responsible for protecting intelligence sources
and methods.
Even though, as I said earlier, the administrative burden and ex-
pense of applying the Freedom of Information Act are not yet prob-
lems for the Agency-and I say not yet because we are experiencing
an upward trend in FOIA requests, and if this continues we could run
into the kinds of problems that other agencies have described to you
or will be describing to you-although these are not problems of that
order of severity, in my view the operation of the act does pose a seri-
ous problem for the Agency. The act is having and is likely to have an
adverse effect on our ability to protect sensitive intelligence source
and method information, the disclosure of which could have serious
detrimental consequences on NSA's ability to carry out its mission.
It would be an exaggeration to say that the FOIA to date has caused
any irreparable disclosure of sensitive information. However, the evo-
lution of the kinds of requests that we are getting, and the litigation in
which we have been involved, coupled with the course that the law is
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
taking with respect to the (b) (1), or national security, exemption, sug-
gests that we are likely to experience a slow but steady leakage of in-
formation whose ultimate consequences are extremely hazardous. A
part of this problem is one of a trend of judicial decisions, particularly
in the District of Columbia Circuit and district court, that are making
it increasingly difficult for the Government to maintain that exemption
without disclosing considerable information in the course of litigation.
In some cases-and this is a particularly acute problem because of the
nature of our information-in some cases this involves almost as much
information as the release of the disputed records might reveal.
The singular nature of NSA's activities makes even the process of
responding to FOIA requests highly risky when those requests touch
upon intelligence information, as most of the ones we receive do. It
is a well known fact that NSA has only a single source of the intelli-
gence information it produces, namely the interception of signals and
communications. The fundamental security tenet of the signals intel-
ligence pprocess is that we must keep in strictest secrecy the identity
of the A ncy's targets, the degree of our ability to intercept those
targets, the extent and nature of our ability to handle large masses
of information and retrieve that which is of intelligence interest, and
of course, the extent of any crrptanalytic success that we may have.
The disclosure of any of these items of information we believe would
encourage intelligence targets to take countermeasures, with the likely
result that the United States would be denied valuable intelligence.
The nature of the product we have, and the unique, singular source
from which it comes, makes particularly acute the problems to which
Congressman Ashbrook alluded before; namely, that even if we ap-
ply ourselves to the process of sanitization and produce something
which to the ordinary bystander conveys little or no intelligence in-
formation, in the hands of a knowledgeable person, for example, a per-
son who was a party to an intercepted communication, the information
that is left behind may render the process of sanitization unavailing.
It is for this reason that we have had to take the position repeatedly in
response to FOIA requests that there are no segregable portions of
the documents in question and we cannot release any information
whatsoever about them.
Even taking that position, the very process of responding to Free-
dom of Information Act requests seeking information contained in
intelligence records poses problems for us, and in some cases the mere
admission that NSA possesses, information on a particular subject
described in a request is enough to disclose classified information about
intercept activities. Significant information about a withheld rec-
ord may be disclosed merely by citing the statutory basis on which we
are withholding it; 18 U.S.C. 798 reveals, if we cite it in a response,
that the information being withheld was obtained by NSA from for-
eign communications, since that is the only subject matter protected
from disclousure under that statute.
In other cases, admitting the existence of information in our files
is tantamount to admitting or identifying the source, as, for example,
when a person who requests NSA for records pertaining to himself
is known to have engaged in only very limited foreign contacts. In
cases of that sort, even admitting that we have information that refers
to a named individual, put together with the fact that we are in the
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
business of intercepting foreign communications, may be a tipoff
to a foreign intelligence service that we have in fact intercepted com-
munications involving that individual, or to or from that individual
to a specific foreign government.
Even the fact that we rely on section 403(d) (3) of the National
Security Act, the provision giving the Director of Central Intelli-
gence responsibility to protect sources and methods, may convey in-
formation to a trained observer since, in our case, the intelligence
sources and methods to which the statute apply could only be com-
munications intelligence sources and methods.
Coupled with these problems of responding to a request even in the
most conclusory and uncommunicative terms are the problems of the
development of the law in which the courts have exerted steadily in-
creasing pressure to disclose in the public record more and more
information about the documents being withheld. Information fre-
quently is sought as to the dates of the withheld documents, the num-
bers of such documents, the number of pages in each of the docu-
ments, and each of these items, although possibly innocuous when
applied to some other kind of intelligence information, can in par-
ticular cases be a tipoff as to the identity of the communications in-
formation possessed by the agency. Merely citing the executive order
on which the original classification was based is a tipoff as to the
general time frame in which the information was obtained, since there
have been a succession of such executive orders over time.
The problems to which I have alluded are problems which arise
in almost every kind of request, and they arise again and again in the
first person requests where someone asks for whatever information we
may have concerning himself. Other kinds of requests pose even more
acute problems. For example, we get requests that pinpoint a category
of intercepted communications or signals, that ask for communica-
tions sent on a particular day or between particular individuals or
organizations, or that seek communications of a particular foreign
government regarding a specific subject or incident. Such requests are
by no means rare, and they appear to be in the process of becoming
more frequent.
In cases like that, if we were to respond that we had records respon-
sive to the request, even without releasing them, we would be as much
as admitting the fact of, the interception implied in the request. We
are constrained by 18 U.S.C. 798 not to do this. On the other hand, it is
out of the question to untruthfully deny the existence of records. We
are required under the FOIA to make some kind of response, which
leaves us with the only choice of refusing to confirm or deny the exist-
ence of information responsive to the request.
This response is necessary because if we admitted the existenceof
records in cases where we actually had them and they were responsive
to the request, we would be revealing classified information. If we
took the tack of refusing to answer in those cases but truthfully deny-
ing whenever we didn't have the records, whatever approach we took
in the case where we did have records would be proved ineffective.
Even under our present system there is good reason to believe that
many requesters assume whenever we refuse to confirm the existence
or nonexistence of a record that such refusal is tantamount to an affir-
mation. We are concerned by the slow but steady cumulative buildup
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
of a mosaic of information about the Agency's communications inter-
cept activities that a knowledgeable and sophisticated foreign observer
could be deriving even from these shreds of what the requester pre-
sumably perceives as noninformation in the response from the agency.
In addition, NSA takes seriously its obligation under the act to re-
lease as much requested information as possible, subject to the statu-
tory exemptions. Consequently, we resort as infrequently as possible
to a refusal to confirm or deny the existence of records. This means
that someone must make a judgment in each particular case whether
admitting that we have records in some way responsive to the request
is likely to reveal sensitive information about sources and methods.
These judgments are made on the basis of what we think generally
would be known about the subject matter of the request, and there is
always the possibility that the judgment is incorrect. If we get a
request for information about a well-known, internationally active
and traveled public figure, we may feel that we can confirm that we
have some records that are either to or from that individual or mention
that individual because of the multiple possibilities of intercept chan-
nels and foreign targets that could be involved. On the other hand,
there is a very high risk that in making those judgments, we are less
knowledgeable, less sophisticated than the requester or any foreign
government that may be using this information and that we are mak-
ing the kind of mistakes that Mr. Carlucci referred to in his testimony.
There is another problem within NSA, also alluded to in Mr. Car-
lucci's testimony, inherent in the very act of processing these requests.
As I indicated before, we consider ourselves obligated to make a reason-
able search in good faith for the records, even though we may be vir-
tually certain from the outset that whatever we find will be exempt
from disclosure. These searches cut across our own system of com-
partmentation and across the principle of need to know, and result
frequently in extremely sensitive information having a much wider
distribution within the agency than it would under any other set of
circumstances.
There is no evidence to date that this phenoinon has resulted in any
serious security breach, but the basic cornerstone of good security
practice is to limit information to as few people as possible, and I
think one has to take it for granted that spreading sensitive informa-
tion around unnecessarily is a bad security practice and implies various
security hazards.
All these problems that exist at the initial processing stage within
the agency are magnified manyfold when an FOIA requester files suit
in the district court, challenging the agency's refusal to disclose in-
formation. To date, no communications intelligence record withheld
under either the (b) (3) or the (b) (1) exemption has been ordered
released by a court. Subjecting such records to processing and litiga-
tion under FOI, consequently, is as futile as it is risky, and we cer-
tainly hope that it will continue to be futile, because if it doesn't, we
are in very serious trouble with respect to the disclosure of sensitive
sources and methods.
Under the Freedom of Information Act, the court has a de nova
review function in considering the validity of FOIA exemptions and
can examine classified records in camera to determine the propriety
of withholding national security information. The legislative history
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
of the 1974 amendments which expand the power of the court in the
area of de nova review and in camera inspection is not entirely clear,
and there is great dispute in the law today as to precisely how far the
District Court is intended to go and in what circumstances.
The courts, particularly in the District of Columbia, where most
significant FOIA litigation takes place, are taking an increasingly
expansive view of their role in de novo review of FOIA exemptions,
and as I said before, are demanding more and more information about
the records withheld. There is an increasing, burden on the govern-
ment to prove the validity of security classification and to convince
the judge that if the judge were the original classifying official, he
would have assigned the same classification. In many cases such proof
is demanded on the public record, which exerts on the intelligence
agency heavy pressure to disclose increasing amounts of information
in an attempt to accomplish a task which is inherently impossible,
that is to describe publicly the classified information and the damage
that would result from its release, because a full public description
of the information in most cases is tantamount to releasing the
in formation itself.
Now, in my statement on pages 18 and 19, I describe some of the
recent cases in the District of Columbia, including the recent decision
in Ray v. Turner and the case of Shapp v. Turner, to which Mr.
Carlucci alluded, and in which the U7 Court of Appeals for the
District of Columbia circuit, appeared to take a somewhat more expan-
sive view of the role of the district court in reviewing both (b) (1)
exemptions and (b) (3) exemptions in which the withholding statute is
one intended to protect national security, such as Public Law 86-36.
The concurring opinion in that case, the Ray case, by Chief Judge
Wright, would carry the court's role a step further. Judge Wright
would have the court, in addition to determining, de novo the applica-
tion of the exemption, require in camera submissions almost invariably
as a check against agency abuse of the in camera affidavit process,
would require the agency to explain why the information contained in
its in camera submission should not have been included in a public
affidavit, and would make available to all parties any portions of the
in camera affidavits that the court determines, after full consideration
of the Agency's arguments, do not warrant a protective order.
This procedure, which was not adopted by the majority of the court
in that case, was nonetheless identical to that followed by one of the
judges of the district court in a recent decision in Joan Baez v. National
Security Agency, a case in which we filed an in camera affidavit ex-
plaining in considerable detail why the records that were being with-
held, if disclosed, would cause damage to the national security. The
district judge described himself as unconvinced by the Agency's affi-
davit, and ordered the affidavit to be released on the public record. This
has not yet occurred because the Government has filed a motion for
reconsideration which is still pending before the court. If it does, the
damage to the national security from releasing that affidavit, in my
opinion, will be significantly greater than would have occurred if the
records themselves had been released in the first place, because the
records require analysis and construction. The affidavit does that job
very clearly and explicitly for the foreign intelligence services that
might be interested. It tells them precisely what conclusions they
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
should draw from those records about our signals intelligence
capabilities.
This kind of decision, obviously, makes us very nervous about the
future of FOIA litigation involving our materials. These judicial
trends that I have described, if continued, portend serious difficulties
for NSA in maintaining secrecy about its communications intelligence
activities. In virtually every case that we litigate, the rationale for
withholding records is precisely the same : the record is either an inter-
cepted communication or an intelligence report that describes an inter-
cepted communication in terms that leave no doubt as to who the
parties were, what the date was, and the route over which it was sent.
The judgment that this information would be damaging to the national
security if disclosed is an informed professional judgment based on
extensive experience with the signals intelligence process. Frequently
what it reflects is an understanding of what the United States could
do with similar information about foreign signals intelligence activi-
ties in reconstructing the capabilities of foreign signals intelligence
services.
As indicated by experience in the Joan Baer case, however, it is dif-
ficult to communicate to judges who are not intimately familiar with
the signals intelligence process the basis on which these judgments art-,
made. The courts are confronted with able attorneys for FOIA re-
questers, who carefully marshall every scrap of information about
NSA's activities, and then argue, on the basis of what they assert is
already publicly known, that the additional disclosure of the requested
information cannot be harmful. Frequently what they present to the
court are surmises from the press, scraps of information that are not
entirely accurate, but it is difficult in many cases for the courts to dis-
cern the difference between official release and press hypothesis, and
this is an attractive ar ment, apparently, to the courts.
Mr. MURPHY. Mr. Silver, I am going to interrupt you at this point.
You are almost through, I notice. You have just got another page or
two.
The proposed amendment that Mr. Burlison requested, have you
read it and studied it ?
Mr. SILVER. I am not sure that I have seen the most recent version.
Mr. MURPHY. I would like for you to take a copy of it to see what
your legal department may want to add to it or delete from it, and
let me just ask, one question, and then I yield to Mr. MeClory because
we have a vote on the floor.
Has NSA received FOIA requests from foreign governments or
aliens who seek to discover the information you have been talking
about, your signals intelligence.
Mr. SILVER. I would have to give you the same answer that Mr.
Carlucci did, that we have no way of knowing who was behind the
FOIA requests. To my knowledge we have not received any that
openly come from foreign governments or foreign intelligence services,
but it is entirely possible that foreign governments are interested in
responses to requests that we have received.
Mr. MOCLORY. You are only engaged in getting national security
information, aren't you ?
Mr. SILVER. Yes, sir.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Mr. MCCLORY. You don't get any personal information about people
unrelated to our national security?
Mr. SiLvER. We may, by the nature of the activity we conduct, get a
certain amount of information that is incidental.
Mr. McCLORY. That you eliminate.
Mr. SILVER. Under the current rules we do, yes, sir.
Mr. MCCLORY. And you have never given up any information under
any Freedom of Information requests so far, have you?
Mr. SILVER. Do you mean as a result of litigation?
Mr. MCCLORY. i es.
Mr. SILVER. As a result of litigation, we have not been compelled to.
In some cases we have given information at the administrative level
in response to Freedom of Information Act requests, but never any
intelligence records.
Mr. MCCLORY. And you are going to pursue the Joan Baez case.
Is there reconsideration being given for that?
Mr. SILVER. There is a motion for reconsideration. Assuming the
Justice Department is in agreement, we will pursue our right of ap-
peal as far as we can take it.
Mr. MCCLORY. Actually you feel that you should be exempted from
the Freedom of Information Act?
Mr. SILVER. It is tempting to say yes.
Mr. MURPHY. I am going to save you-if you want to answer it, you
may.
Mr. SILVER. We are not seeking a total exemption from the Freedom
of Information Act.
Mr. MURPHY. Thank you, Mr. Silver, and we are going to adjourn
now and reconvene at 1:30.
[Whereupon, at 11:38 a.m., the subcommittee recessed, to reconvene
at 1:30 p.m. the same day.]
Mr. MURPHY. The meeting of the Select Committee on Intelligence,
Subcommittee on Legislation will come to order.
Mr. MAZZOLI. Mr. Chairman?
Mr. MURPHY. Mr. Mazzoli?
Mr. MAZZOLI. I thank the chairman. I was unable to be here for this
morning's session, Mr. Chairman, and I have a brief statement which
I will first ask permission to read, and second, ask that it be put in the
record of our discussions.
Mr. Chairman, as was the case with our electronic surveillance hear-
ings, and with our more recent. hearings on the disclosure of national
security information, our Subcommittee on Legislation today begins
hearings on a difficult and a delicate issue which raises questions con-
cerning the basic principles upon which our form of representative
government is based.
One of these principles underlies the Freedom of Information Act,
and was noted by James Madison who wrote :
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 themselves with the power which knowledge gives.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Equally important, Mr. Chairman, however, is the principle that
government exists, among other reasons, to protect the people which
it serves. It is beyond dispute that a vigorous and productive intel-
ligence service is essential to such protection and that, to a large degree,
foreign intelligence and counterintelligence activities must be based
on secrecy.
That tension will always exist between such disparate concepts
is to be expected. It is up to the Congress, to our subcommittee, to
our committee, to make this tension a creative one and, by carefully
balancing the competing interests, insure the existence of both open
government and legitimate intelligence activities.
I am, Mr. Chairman, of the opinion that a proper balance between
secrecy and the public's right to be informed has been struck by the
Freedom of Information Act.
Exemptions have been carefully drawn to insure that information
which should not be disclosed is, indeed, not disclosed.
There is, according to my way of thinking a heavy burden of proof
on those who would alter this legislation by adding further exclusions
and exemptions.
Mr. Chairman, I commend you for having arranged these most im-
portant hearings, and look forward to working with you on the devel-
opment of suitable legislation.
Mr. MURPHY. Thank you, Mr. Mazzoli.
Our first witness this afternoon is Mr. Thomas H. Bresson, Acting
Chief, Freedom of Information Act Branch, Records Management
Division of the FBI.
STATEMENT OF MR. THOMAS H. BRESSON, ACTING CHIEF, FREEDOM
OF INFORMATION ACT BRANCH, RECORDS MANAGEMENT DIVI-
SION, FEDERAL BUREAU OF INVESTIGATION; ACCOMPANIED BY
MICHAEL HANIGAN, ASSISTANT SECURITY CHIEF, FOIA BRANCH,
RECORDS MANAGEMENT DIVISION, FBI; AND DENNIS MILLER,
UNIT CHIEF, RESEARCH UNIT, RECORDS MANAGEMENT DIVISION,
FBI
Mr. BRESSON. Mr. Chairman, I thank you on behalf of Director Web-
ster for the invitation to provide testimony concerning the impact the
Freedom of Information and Privacy Acts have had on the FBI's
foreign intelligence and counterintelligence activities. Director Web-
ster has designated me, in my capacity as Acting Chief of the FOIPA
Branch, to appear before you today. I might add that I have been
assigned to FOIPA matters in the FBI since the latter part of 1974
and am familiar with the FOIPA and its implementation insofar as
the FBI is concerned. Prior to that I was assigned in an investigative
capacity for approximately eleven years.
Your letter of March 22 advised of your particular interest in know-
ing how FBI records are organized and maintained, how FOIPA
requests are processed, the costs and administrative burdens of com-
pliance with the statutes, and if and to what extent compliance en-
dangers foreign intelligence or counter intelligence activties.
With regard to the organization and maintenance of FBI records,
our central records system at FBI Headquarters consists of approxi-
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
mately 6 million files which are maintained in file cabinets at the FBI
Headquarters here in Washington. The files are arranged in numerical
sequence based on classification number and case number. The classi-
fication number represents the jurisdictional subject matter or class
of each case. For example, our kidnaping cases are filed under the
classification No. 7, and espionage investigations, for example, under
classification No. 65.
The FBI's file No. 65-1000 would indicate the one-thousandth es-
pionage investigation that we have opened.
Access to these numbered files is gained through an alphabetically
arranged index card system, referred to as indices, which consists of
approximately 60 million 3-by-5 cards. These cards identify the sub-
ject individual, organization, or subject matter and list the classifica-
tion and case number of the file in which the information is located.
To retrieve the record of a particular individual, the search begins
with a manual review of the alphabetical index, which will cite one or
more possible references to this individual in our numerical file system.
The file is retrieved by Records Management Division personnel, re-
viewed to establish if it is identical to the record requested, and for-
warded to the FBI employee who requested the file.
All of our files, including criminal, foreign intelligence, counterin-
telligence, applicant, and others, are part of this central records sys-
tem, with the maintenance responsibility fixed with the Records Man-
agement Division.
With regard to the manner in which we process FOIPA requests,
all FOIPA requests are processed by a separate component, the FOIPA
Branch, a part of our Records Management Division. The Branch has
a current complement of 309 employees whose work is dedicated solely
to FOIPA matters; 34 are law-trained special agents and 275 are
support personnel. Training-selected FBI support employees pre-
viously assigned to other duties within the FBI to become specialists
in the FOIPA area, permits the maximum number of special agents
to assume other responsibilities. The volume of incoming requests and
the corresponding workload, coupled with the statutes' response time
requirements and the limited resources available to us, make the con-
cept of centralized processing the most efficient insofar as our opera-
tions are concerned.
The first step in processing an FOIPA request is to retrieve the rele-
vant files by following the procedures I have just described. Every
day we receive an average of 60 to 70 new FOIPA requests and a great
deal of correspondence regarding FOIPA requests being processed or
awaiting assignment. One unit in our FOIPA Branch is engaged solely
in handling this correspondence, searching and locating the requested
files, and duplicating the file for review by the research analyst to
whom the case will be assigned.
The analyst first must`become familiar with the entire file in order
to reach proper judgments in applying the exemption provisions dur-
ing the actual processing phase: It may be that an individual docu-
mented as having provided information in confidence in the early
stages of the investigation is later reported in our records to have
publicly disclosed the same- information. Discerning this fact, the ana-
lyst would not claim the confidential source exemption.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
The processing stage consists of a line-by-line review for the deter-
mination of what may be disclosed. Where the documents relate to
foreign counterintelligence or other national security matters, a com-
plete review is also necessary to insure the documents are currently
and properly classified. The analyst uses a marking pen to excise from
the duplicated Me copy those words, if any, which are subject to ex-
emption pursuant to the provisions of the statutes. The finished work
product is then duplicated. The second duplication is the material
furnished to the requester, while the first copy is the material we
maintained as our record copy of what we released.
In those cases that become subject to litigation, the analyst and agent
supervisor must review the same material and prepare affidavits which
explain the rationale for withholding information from the records
sought. Court decisions require us to provide detailed justifications for
each item claimed to be exempt. These justifications must be carefully
drawn to preclude the possibility of disclosing by description the very
information we are trying to protect.
As you may know, a first-person request, that is, an individual's re-
quest for his own records, is treated as a Privacy Act request, while a
third-party request such as a researcher's request for the Watergate
investigation, is treated as an FOIA request. While the Privacy Act
provides for the exemption of files compiled for law enforcement pur-
poses, including such records as our foreign counterintelligence files.
we will, pursuant to Department of Justice policy as published in title
28 Code of Federal Regulations, section 16.57, determine the applica-
bility of the FOIA as well, thereby affording the requester the maxi-
mum possible disclosure.
Attached to my statement are three charts (see app. A). One of them
shows the amount of money the FBI has spent to administer the
FOIPA program. The second shows our manpower, and the third
displays the volume of requests we have received since 1974.
Our costs were about $9 million for fiscal year 1978; and although
we are budgeted in fiscal year 1979 for a fewer number of personnel,
I anticipate a comparable cost figure for this fiscal year.
Insofar as the volume of the requests is concerned, the most current
figures in the chart would indicate our total receipts to be about 67,000
requests. The most recent updated figure would bring us up to the fig-
ure of 69,575 requests, that as of March 23 of this year.
The chart will also indicate the number of requests stayed about the
same during 1977 to 1978. I might add. we have noted, however, that
many of the requests we are receiving today are those that result in
actual processing. Many of the requests that we do receive are no-
record-type requests.
With regard to the foreign intelligence and counterintelligence im-
pact, our greatest concerns are that the identity of confidential sources
of information may be disclosed, public reluctance to cooperate will
ensue due to the fear of disclosure, and the FBI's intelligence capabili-
ties,' limitations, and subjects of interest may bexevealed to the Na-
tion's detriment.
The FBI's ability to discharge its.foreign intelligence and counter-
intelligence responsibilities depends in large measure upon the willing-
ness of human beings to furnish information to us. To the extent the
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
Freedom of Information Act and any other statute or event or cir-
cumstance inhibits someone from telling the FBI what he knows, our
ability to do our job is made more difficult. In foreign intelligence and
counterintelligence investigations, as elsewhere, the confidential in-
formant is indispensable.
We have found that there are those in many segments of society who
are refusing to provide us information because they fear their iden-
tity may be disclosed under the acts. These people are not only con-
fidential informants, but also private citizens, businessmen, and rep-
resentatives of municipal and State governments. Included as well
are officials of foreign governments. The FBI is not suggesting that
every person who is reluctant to provide us information is reluctant
solely because of the Freedom of Information Act. We are saying
that we do have examples, actual case histories, of people who have
told us they do not want to provide information to us because they
fear disclosure under the Freedom of Information Act.
The report of the Comptroller General captioned "Impact of the
Freedom of Information and Privacy Acts on Law Enforcement
Agencies," dated November 15, 1978, contains several specific exam-
ples of documented instances wherein established or potential sources
of information declined to assist us in our investigations. This report
points out our belief that the acts have had the greatest impact on
informants in the organized crime and foreign counterintelligence
areas, two of the areas in which the FBI currently concentrates its
greatest efforts. Our sources of information in the foreign counterin-
telligence field are usually well educated, sophisticated, and informed
about the laws and court decisions, and media coverage concerning
the release of information from FBI files. They are very sensitive to
the fact, that FOIPA disclosure of their cooperation with us could
jeopardize their community standing or livelihood, or more seriously,
given the appropriate situation, their life or physical safety.
We consider this perception by the public to be a serious impair-
inent to our intelligence-gathering capabilities. The Comptroller Gen-
eral's report concluded the various law enforcement agencies sur-
veyed almost universally believe that the ability of law enforcement
agencies to gather and exchange information is being eroded, but the
extent and significance of the information not being gathered because
of FOIA and the Privacy Act cannot be measured. It is true that
quantitative measurement of the loss of information is most difficult
to ascertain. In many cases we will never be sure why a source or po-
tential source of information declined to pass on to us information
that was vitally needed in our intelligence-gathering effort. But as I
stated above, the FOIA has been specifically cited by some as the
reason for their refusal to cooperate.
In responding to a request for information from an FBI investiga-
tive file, we are required to review each record line by line and deter-
mine if the information can be released pursuant to the provisions of
the FOIA. The burden of proof rests with us to establish the need to
withhold, and we must further demonstrate that records being with-
held contain no reasonably segregable information, which by definition
means information not specifically protected by one or more of the
nine exemptions. Exemptions, by repeated court interpretation, are to
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
be construed strictly, applied narrowly, and where any doubt exists,
the disclosure is favored. The person most knowledgeable about what
particular information may read to source identity is, unfortunately
for us, oftentimes the requester who is the subject of the investigation.
Therefore, the processing of a request which involves sensitive records
pertaining to the investigation of an organization, conspiracy or any
continuing criminal enterprise with several members, all of whom can
be requesters, requires very delicate processing.
Congress, in amending the FOIA in 1974, recognized the need for
protecting confidential sources. While law enforcement files were no
longer exempt as a class, the language specifically provided for access
to records, but only to the extent that production would not, and I am
quoting from the statute :
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 investiga-
tion, or by an agency conducting a lawful national security intelligence investiga-
tion, confidential information furnished only by the confidential source.
The practical application of this exemption, when read in conjunc-
tion with the requirement to release reasonably segregable information,
renders the judgment call a most difficult task in many situations.
What appears to be innocuous or harmless information may indeed be
the missing piece or pieces of a puzzle to the requester who is the sub-
ject of the investigation. When the records pertain to investigations
of organizations and the members have the opportunity to pool and
compare the information furnished to them by each of the intelligence
agencies to whom they addressed requests, this danger becomes more
apparent.
We have further concern for the inadvertent disclosure which may
result from human error, a risk that is present whenever a page-by-
page review of thousands of documents is undertaken.
These practical problems that confront us in applying the (b) (7)
(D) exemption, the source exemption, and the risks that are present
whenever sensitive records are reviewed for public disclosure, places
us in a position of not being able to dispel as completely mythical or
imagined, the perception problem which exists among our sources and
potential sources that I referred to earlier in my statement.
In the intelligence area, the adversary many times is as interested
in learning what we do not know as he is in discovering what we do
know. And that is another concern we have about the act's impact
on our foreign counterintellience investigations. If. in responding to
a Freedom of Information Act request, we tell the requester the FBI
has no information about a particular individual or subject matter,
we may have assisted our adversary more than we know. Assume there
is in this country an agent of a hostile foreign government residing
here in violation of the laws of the United States. Further assume that
person makes a Freedom of Information-Privacy Act request seek-
ing records about himself and the response he receives from the FBI
is that we have no records in our files identifiable with him. If a year
from now the same individual makes another request and in the period
of time between the two requests we have initiated an investigation of
him, we know of no way to respond to his second request in such a
way that we do not effectively alert him and his government that we
now have an investigative interest in him.
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
53
In sum, complying with the acts in their present form raises con-
cerns about identifying confidential sources, having people refuse
to provide information because of the acts, revealing the extent and
limitations of our intelligence and counterintelligence investigations,
and disclosing prematurely the existence of an investigation.
Mr. Chairman, Director Webster has emphasized that the FBI is
not seeking a repeal of the Freedom of Information and Privacy Acts.
The Bureau is committed to the goal of having an informed citizenry.
I believe we have demonstrated this through the release of many hun-
dreds of thousands of pages of material in our reading room alone
which is available to the public, cases such as the John F. Kennedy
assassination case and the Martin Luther King assassination inves-
tigation. The Director is encouraged by the interest of this and other
committees in examining, however, the proper balance between the
disclosure of information and the effectiveness of our law enforce-
ment and intelligence efforts.
I thank you again for your invitation. I have attempted to discuss
those subjects the committee indicated were of interest. I have no
proposals at this time to submit for any type of legislative relief. We
are working with the Department of Justice task force at this time
in an effort to propose some possible solutions. I am hopeful that we
will at some future date, in the not too distant future, be able to
present some of those proposals.
Mr. MURPHY. Thank you very much.
How frequently do you believe that actual criminals or foreign
intelligence agents use the Freedom of Information Act to frustrate
ongoing FBI investigations?
Mr. BRESSON. I am not sure that I can give you a statistical response
to that, Mr. Chairman. I do know, for example, we have pending be-
fore us at the present time a request that originated with a foreign
country, or citizen of a foreign country which happens to be an East-
ern European country, and as you know, the Freedom of Information
Act provides for access to any individual-it is not limited to U.S.
citizens.
Nye probably will never know with certainty-and I think Mr. Car-
lucci mentioned this this morning-never know with any certainty
whether or not a request is being made on behalf of a foreign or hostile
intelligence service.
Mr. MAZZOLI. Mr. Bresson, do you have any statistical breakdown of
the number of people that you have identified as foreign persons who
have made a request in the last year or so under the Freedom of In-
formation Act?
Mr. BRESSON. No, Congressman Mazzoli, I don't have a statistical
breakdown of that.
Mr. MAZZOLI. How do you identify someone who is a foreigner?
Mr. BRESSON. Most of our requests from foreign countries are mailed
from foreign countries. We have had requests from various countries
of the world requesting information under the Freedom of Informa-
tion Act about various subjects, sometimes cases of historical interest,
some of current interest.
Mr. MAZZOLI. I don't know whether it is in the record.
Is there an amount of money that you figure it costs you to process
this information?
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
54
Mr. BRESSON. We have a chart with the statement showing our
budget costs on a yearly basis.
Mr. MAZZOLr. That is the $9 million you had last year that you would
get again in fiscal year 1979 or 1980?
Mr. BREssoN. 1979. I believe I may have made a mistake. It should
have been fiscal year 1979.
Mr. MAZZOLI. How would you go about identifying a person to be
sure that he or she indeed was the person represented to be in a request
under the Freedom of Information Act?
Mr. BRESSON. Our normal requirements and procedures call for the
individual to present a notarized signature showing that he is indeed
the person who furnished the request. If for some reason it comes to
our attention that this may be a bogus request, we would pursue it
further. But those are rare instances because the practicalities in-
volved, of course, are that we are receiving 60 to 70 some requests a
day, and it oftentimes is very difficult to follow it up in that regard.
Mr. MAZZOLL How long does it take you to respond to a Freedom
of Information Act inquiry? I know that some are more broad in their
scope than others, but if there is such a thing as an average inquiry,
what would be the average time to process?
Mr. BRESSON. It would vary, as you have indicated, Congressman,
by the complexity of the case and other circumstances.
Our procedure is to acknowledge the receipt of the request within
a 10-day period of time. We let the requester know that we have re-
ceived that request and we will get back to him as soon as we can to
advise him whether or not we actually have the records he is seeking.
But if we do have a record concerning that individual or the subject
of his request, it will,vary in the amount of time mainly because, as I
say, the complexity of the records and the volume. It may run any
where from 135 days to 165, 170 days. Again, if we have to review
these records for classified data as well as the other exemptions to the
act, it may take a little longer. But an average, normal request is being
handled by us now roughly in 135 days.
Mr. MAZZOLI. I guess if we believe in Freedom of Information as a
concept, it is the Nation's responsibility to provide to you the number
of people and the amount of money and the amount of resources, com-
puters or copy machines or whatever to fulfill your statutory respon-
sibilities. But I think the fundamental question we have to answer
ourselves is whether or not, assuming that we have provided those
materials and resources to you, provision of this information somehow
hurts our national security or interferes with our national defense. If
you were to address yourself not so much about getting more money,
not so much about getting more machinery or assigning more special
agents, because those are I think tractable problems, but to whether all
this would hurt national security, what one or two things would you
cite to me on behalf of the proposition that a continuation of the Free-
dom of Information Act would be in your judgement harmful or
unwise?
Mr. BRESSON. I am not quite sure I know how to respond to the
question. As I mentioned before, we are working with a task force of
the Department of Justice to try and determine how the act can work
better, whether or not there is a need for a proposal by the Department
of Justice to advocate some change in the Freedom of Information
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Law. It unfortunately is a very complex problem because we are talk-
ing about the rights of people, of citizens to have access to Government
files.
As I have indicated in my statement, and as Judge Webster has
testified previously, we are not against freedom of information, and
trying to strike that balance is a most difficult assignment. It is a most
difficult assignment, I am sure, for someone to actually sit down and
draft language to the existing law and try to come up with a better
solution. I believe that it is going to take some very delicate considera-
tions and some very thoughtful deliberations before a meaningful
proposal can be-submitted.
But as I indicated at the outset, I think the opportunity for us to
present our problems to this committee and other committees will
assist us in moving along in that process, and I am hopeful that that
will come about soon.
Mr. MAZZOLI. Well, I gather at this point you are prepared to speak
only to the difficulty of finding the people, the money, the mechanisms
to answer these requests and not so much on the impact that the stat-
utes have had on investigations or the ability to mount proper foreign
counterintelligence activities, is that right?
Mr. BRESSON. Not exactly, Congresman Mazzoli. The Director testi-
fied at the Government Operations Subcommittee, chaired by Con-
gressman Preyer not too long ago, at which time he said he wasn't really
concerned at this point about the resources and the money. The public
is willing to expend this.
Mr. MAZZOLI. I agree with you.
Mr. BIESSON. So that is really not our main thrust. Our concern at
this point is are we protecting the national interest in implementing
the law, and I personally appreciate that very much, being the man
who signs the letters saying that this is the information that we have
determined is available to you. I want to make sure that our product
is complying wih the law, the Freedom of Information Act, but I also
want to make sure that we are not disclosing an informant in that
release.
Mr. MAZZOLi. What did Judge Webster say to Richardson Preyer
at that hearing? You started to say at a hearing where Mr. Webster
appeared before Mr. Preyer? Did he testify to the dangers as he saw
them, aside from any financial impact or personnel impact ?
Mr. BREssox. Yes. Judge Webster testified, and I think the thrust
of his testimuony can be fairly characterized as leaning more toward
the problem of protecting our informants, protecting our manuals, the
investigative operations were paramount in his mind, in his testimony.
Mr. MAZZOLI. I understand. I appreciate that. I think an explica-
tion of that kind might help us, and I know that as you say it is a
very difficult problem to put your finger on. I think we have to ac-
cept the fact that the burden of proof is going to be on the pro-
ponents of change to make the case because otherwise we have not
only the problem of dealing with a Congress which has already
passed a bill that has become the law, but unless it can be documented
exactly how this has hurt, how some sharpshooters may be manipu-
lating the system to help them find out at what point we are on their
tail, and how some foreign agents, in fact, may have been using this
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
to mount intelligence efforts within the United States at our expense,
it is going to be hard to sustain the burden.
Mr. BRESSON. I feel, Congressman Mazzoli, that we have presented
a good case for documentation. We have solicited input from our
field offices, the information from our field agents who are working
with this problem every day, and they have given back to us exam-
ples that we can document showing where our informants have
backed off furnishing information to us because of their fear.
Mr. MnzzoLL. Well, that is what I was asking about. What I was
driving at was some examples, if you are permitted to give them,
of where this act has indeed caused informants to bail out, it has
caused investigations to end, it has caused our agents to come out
from under cover, it has caused some effect like that.
I have used more than my 5 minutes, but I say to the gentleman
from Illinois, that is what we are going to need, and I don't see it
here. This is the kind of data I frankly think we will have to have.
Mr. MCCLORY. If the gentleman will yield, we did in closed session
this morning get some case examples from the Deputy Director of
the CIA.
Mr. MAzzOLI. Maybe we need a session with you and Mr. Webster.
The gentleman from Illinois.
Mr. McCLORY. Thank you, Mr. Chairman.
This file system, is this all a manual operation?, You have no au-
tomatic data processing capability?
Mr. BRESSON. Not with regard to our central records system; no.
Where our files are maintained, the search through our indexes is con-
ducted manually.
Mr. MCCLORY. 60,000 cards?
Mr. BRESSON. We have approximately 60 million index cards.
Mr. MCCLORY. 6 million files and 60 million indexes?
Mr. BRESSON. 60 million index cards.
Mr. MCCLORY. Three by five cards.
Mr. BRESSON. That is correct, approximately.
Mr. MCCLORY. And that enables you to identify the 6 million files.
Mr. BRESSON. Well, what the index cards indicate are the names
that are indexed in those files, so there will be many more index cards
than files.
Mr. McCLORY. You do have an exemption now from disclosing con-
fidential information on national security information, do you not?
Mr. BRESSON. Yes.
Mr. McCLORY. Now, do I understand that notwithstanding those
exemptions, that the perception as far as the potential informant is
concerned is such that he feels that maybe you won't take advantage
of those exemptions?
Mr. BRESSON. I think it is a two-pronged problem. First, we have
the mechanism of processing an FOIA request, and it requires a great
deal of judgment on the part of the person processing the request to
separate what is reasonably segregable, what can be released in this
file, and what we should withhold, and many times it is an extremely
difficult decision to make. And the disadvantage we have is that the
requester who may be the subject of the file oftentimes knows much
more about that file than we do, and what we think is an innocuous
piece of information may not be. For example, if we release even the
Approved For Release 2011/09/26: CIA-RDP04MOl816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
fact that our agents went to the city of St. Louis to conduct an in-
vestigation, that mere fact alone may trigger in the mind of the re-
quester, the receiver of the data, that the fact that he was in St. Louis
was only known to one individual, and that is the only reason we
must have conducted an investigation in that city.
It is that type of analysis that a person receiving the information
can make. It may result when we are releasing information we should
not have released. The perception problem is caused when an indivi-
dual learns by reading in media accounts or through newspaper and
other public knowledge sources that the FBI is releasing its files, that
same individual is going to be very uneasy about providing informa-
tion to us.
I can give a specific example of a telephone call made to my office
by a source, an individual who had worked with us in the past. He
told me the subject of a request that we had recently processed under
FOIA called him and told him that he had just received his FBI file
and that he, the requestor, had identified our source as an informant.
Now, naturally this individual was extremely upset, and I told him,
I tried to assure him that in our processing procedures we make sure
this does not happen, but let me know the facts, let me get the case
and I'll personally review it. And I did. And in my judgment, the in-
formation we released would not have identified him.
I got back to this individual. I said, look, I think they are testing
you on this. They don't know. There is no way they could tell from
the released information that you were the source, and he agreed
with me, somewhat hestitatingly, I might add but he agreed, I think,
that we protected him in that particular case.
But I am almost willing to bet that if an agent goes out and talks
to that individual again, we are not going to get cooperation from that
individual.
Mr. MCCLORY. Well, the subject of the FOTA request probably
knows that the only source of the information about him could come
from that one individual. I wouldn't know.
Most of the newspaper articles I read which are based upon dis-
closures from a Freedom of Information Act request are so old. In
the first place, they don't even interest me, and I just think, well, it
makes a newspaper story. I think that the reader of the newspaper
story tends to relate the thing to the present time-that this is a prac-
tice that is being carried on at the present time by the FBI or the CIA
or whoever it is-but actually when you read the story you find, well,
this was 15 years ago or 20 years ago or something like that. i
Couldn't we get a statute of limitations, perhaps, and say, well, you
can get information about yourself, but 10 years is it, and we are going
to throw out these files.
Mr. BRESSON. Well, you may be referring to Jude Webster's mora-
torium concept that he has expressed, although I think his moratorium
would work in a different direction. He was hoping there was some
way, and he didn't necessarily want to advance this as the only hope
for salvation, so to speak, what he was trying to do in his solution or
his,suggestion about a moratorium was to put a little age on the file
so we could protect sources and we could protect pending investiga-
tions.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Now, we have a great concern over the problem which the Director
of the FBI has described in the past as some "archeological diggings;"
when we go back to files and cases back in the 1950's and rehash them
in the days news today, it doesn't do our agency any good, and I know
that. The Director, for example, has also indicated he wants to improve
our minority hiring, and there was a period of time when we were get-
ting a lot of newspaper publicity regarding our activities in the 1960's,
the Martin Luther King type of release. These were being rehashed
Webster and again and again in the newspapers in 1978, and Director
Webster was very concerned that this sort of thing was hurting our
ability to go out and attract minorities when they keep bringing up
these stories that occurred 10, 12, 15 years ago.
Mr. MCCLORY. Well, the Chairman, Mr. Murphy and I sat on the
temporary Select Committee on Intelligence, and some of the earlier
activities, especially the kind of private disclosures which the late
former FBI Director would make to the President or to others, and to
Members of Congress, were extremely damaging., of course. I think
those were the kinds of things we wanted to avoid by this legislation.
You have only one file system now, don't you? The Director doesn't
have a private Ale.
Mr. BRESSON. No, sir.
Mr. MCCLORY. Do you see some great benefits that are flowing to
individuals now through the application of the Freedom of Informa-
tion Act or is it just present damage to our country as a result of the
continuation of this legislation ?
Mr. BRESSOx. Again I think it is a question of balance. There are
those cases which the FBI has processed under FOIA procedures, for
example, the John F. Kennedy assassination case and the Martin
Luther King assassination. Questions have been, of course, asked by
the public concerning these investigations. Perhaps in going through
this type of file we can settle some of these doubts, but the problem is
in those cases, for example, where an individual is requesting a file,
and that file is mostly classified information because it deals with
our foreign counterintelligence activities. We can review that file and
we may be able to release bits and pieces from that file but most of it
is exempt under the classified exemption, properly so. The result is
there is no public benefit that I can see in releasing bits and pieces of
information, There is no benefit to the public and there is not much
benefit to the Agency which is required to process volumes of docu-
ments to find that most of the documents are properly exempt from
disclosure.
Mr. MCCLORY. Could you furnish the committee, do you suppose,
some suggestions as to what specific amendments we might consider
in the Freedom of Information Act, or in other parts of the statute,
within the next couple of weeks, say, to help us see, what you perceive
as a statutory change that might improve the existing law? (See
app. B.)
Mr. BRESSON. Congressman McClory, I will be very happy to pre-
sent your views to the Department task force that we are working
with in an effort to kind of move things along, and perhaps that might
do it. Again, as I indicated at the opening part of my statement, we
are working with the task force, and I believe that that probably is
the proper procedure for suggesting amendments. But I will pass on
Approved For Release 2011/09/26: CIA-RDP04MOl816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
to them your concerns, and I am sure it will spur them on in that
regard.
Mr. MCCLORY. I am contacted from time to time by agents in the
FBI with regard to my colleagues who leave the Congress and ascend
to the bench.
[General laughter.]
Mr. MURPHY. Ascend ?
Mr. MCCLORY. Now, if the request is made to the FBI under the
Freedom of Information Act, is my identity disclosed to these per-
sons whom I always give very glowing support for.
Mr. MURPHY. It's not under oath, is it?
Mr. BRESSON. Congressman McClory, under the Privacy Act, when
you are asked to furnish information concerning any applicant for a
position, you are asked up front whether you desire to have the ex-
pressed assurance of confidentiality.
The problem I see, though, even in those circumstances, if you were
the only one to furnish derogatory information and we excise your
name and your information and everyone else in furnishing informa-
tion and they do not ask for assurance of confidentiality, the problem is
that the requester may very logically deduce that you were the one
who furnished the derogatory information. It is a problem.
Mr. MCCLORY. Well, I'm going to cooperate anyway.
Thank you.
Mr. MURPHY. Mr. Mazzoli?
Mr. MAZZOLI. I don't have any more questions.
Mr. MURPHY. One more question.
What percentage of Freedom of Information requests are made by
persons seeking information in your files about themselves and what
percentage are for information not relating to the requester ?
Mr. BRESSON. The breakdown on that I believe would be heavily
weighed in favor of the first person requester.
Mr. MURPHY. Fifty-two percent for the CIA.
Mr. BRESSON. Much higher. It would be about 80 percent. I might
add that, if I may, 16 percent of our 18,000 requests last year came
from prisoners who were inmates in penal institutions. I am not just
speaking of convicted felons. I am talking about people who we are
able to tell from the return address on the envelope are presently
incarcerated.
Mr. MCCLORY. Mr. Chairman, excuse me. My counsel wanted to ask
one question and Mr. Ashbrook is unavoidably absent, and Mr. Romer-
stein wanted to ask one question.
Mr. MURPHY. I would like to ask unanimous consent to introduce
the statement of the Honorable Richardson Preyer, chairman of the
Subcommittee on Government Information and Individual Rights
of the Government Operations Committee, with regard to hearings he
held on this matter. I would like it to be included in the record.
Mr. MCCLORY. Without objection. (See app. C.)
Mr. MAZZOLI. Mr. Chairman, may I ask a question?
Mr. MURPHY. Sure.
Mr. MAZZOLI. Would you tell me what would be the average amount
of money that you get for processing a so-called average case?
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Mr. BREssox. You mean what we would receive in terms of fees that
might be charged?
Mr. MAzzora. Yes.
Mr. BRESSON. Our present policy now is that we do not charge any-
thing for a case involving less than $25, 10 cents a page, 250 pages. We
would not charge anything for that amount, less than $25. If the re-
quester's request involves a. case involving more than $25, he will pay
the 10 cents a page. We do not have searching fees in our requests be-
cause of the retrievability of our files. We are able to locate them
rather quickly. They do not usually entail a great deal of searching ex-
pense. Therefore the only charges we usually get involved in are the
duplication costs.
Mr. Mnzzora. Is that an FBI internal decision not to charge for
matters fewer than 250 pages?
Mr. BRESSON. Yes; it was, and it was really based on a cost analysis
of how much money is involved in writing to the requester, asking for
the $7.50 and then having that letter come in with the $7.50 and put-
ting it in the process of getting to the Treasury. It came out to approx-
imately $25 for internal expense, and that was the reason that we did
reach the cutoff figure of $25.
Mr. MAZZOLI. I would like to hear more on this topic. It seems to me
that one of the things that would make this act a little more manage-
able to you would be to charge. If somebody wants something and they
can pay, they ought to pay for it. I don't know why you cut off at $25,
even though it may cost you a certain amount of money. Maybe the
institution of certain kinds of automatic data processing would help.
VISA and Master Charge handle millions of things for $2 or $3 and
they seem to make a bundle of money on it. So maybe there is some
way here of setting a fee. Maybe it should be more than 10 cents a page
so that you bump more into the $25 category.
Is there anything that would be helpful to the committee to decide
how the money
Mr. BRESSON. Congressman Mazzoli, I welcome the thought, and I
would like to look into that further.
Mr. MAzzor.r. What about CIA. Mr. Chairman? Did they have any
charge?
Mr. MURPHY. I think out of a total cost of $3 million, they have
charged $10,000 in the last fiscal year, and I think they spent $2.9
million. So really there is no relationship. It. is a burden that falls on
the taxpayer.
Mr. MAzzora. It is a tremendous burden on the taxpayer.
It may be if we got some money back we could pursue the routine
requests, and the person who wants to persist then, fine, and if they
can file in forma pauperis or something, there can be some arrange-
ment so they can get something done for nothing, if there is some
reason for it.
Mr. BRESSON. I might just add that while it was an internal deci-
sion, it was one of the GAO recommendations when they conducted
an audit of our operations to consider this, raising the fee amount. I
might also address the question of fees that were received by other
agencies. Other agencies may have legitimate searching costs that we
do not have. Our central records system, even though it be a manual
searching procedure, is very efficient.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Mr. MAZZOLI. Why should the requester benefit from your efficiency?
And I mean that very seriously. I don't mean you charge them
$1,000 to search your file, but why not have a flat fee of $10 to make
a search, or $25, something reasonable, you know, that would defray
other costs, because if I understand, I am a taxpayer and I am paying
for each FBI agent, some part of his or her day, and you are not
charging those people who are requesting, and you are not charging
anything for postage to respond, yes we have a file, no we don't have a
file.
Mr. Biu ssoN. The only thing I can respond to that is that we did
carefully evaluate that decision. There was at one time a $3 limit,
but as I say, what we were finding was that it was costing us a lot
more than $3 to get the $3. It was costing us nearly $25 to collect
the $3.20 amount that was owed, and that really was what led to the
decision.
Mr. MAZZOLI. And then, of course, you reach the nightmarish sort
of conclusion just like we have with energy where we ask the people
to conserve, and then they conserve, and then the gas companies raise
the bills because they are not making enough money. So we are back
at square 1.
I thank you, Mr. Chairman.
Mr. McCLORY. I have no questions. Mr. Romerstein has a question.
Mr. MURPHY. Mr. Romerstein ?
Mr. ROMERSTEIN. Thank you, Mr. Chairman.
Mr. Chairman, these questions were prepared in consultation with
Mr. Ashbrook and are questions he would have asked if he were here.
Mr. MURPHY. How many are there?
Mr. ROMERWTEIN. I'll hold it down to three, Mr. Chairman.
On August 10, 1978, a convict named Gary Bowdach, who is now
in prison for a variety of violent crimes, testified before the Senate
Permanent Subcommittee on Investigations. He testified that he had
filed FOIA requests with almost 10 agencies, including the FBI,
Drug Enforcement Administration, and so forth. He said that the
purpose of the requests was to identify informants so that they could
be murdered.
Are you aware of the testimony and could you comment on it?
Mr. BRESsoN. I am aware of the testimony of Mr. Bowdach. I am
in a position of saying that I don't believe he identified FBI in-
formants. I am not that familiar with the release that he may have
obtained from the FBI at this time to give you any further amplifica-
tion on that. I am aware generally of his testimony, and that is a
very large concern to us, and I have indicated we have 16 percent of
our requests coming in from this type of individual, and the fact that
this is their purpose is of very much concern to us in our processing
procedures.
Mr. RoMERSTEIN. Mr. Bowdach testified further, that on behalf of
another criminal, he made an FOIA request to the Drug Enforcement
Administration which supplied 5 pounds of documents, and he claimed
that careful examination identified a DEA informant-it would not
have been an FBI informant. And Bowdach then said that he believed
the informant was later murdered.
Would you have any information concerning that?
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Mr. BRESSON. I am sorry, I don't have any information concerning
that. If it is desired, I might be able to supplement the record with
an answer to that. I would have to consult with the DEA for an answer.
Mr. RoMERsTmN. And the last question concerns a GAO report
dated November 15, 1978, which discussed four foreign counterintel-
ligence cases where the FOIA was the reason for the loss of valuable
sources. They identified three as potential sources and one an ongoing
source who refused-to continue to cooperate because of fear of FOIA.
Is this a common situation?
Mr. BRESSON. My answer to that would be yes. If I can somewhat
quantify that answer, what I am saying is that we in our survey of
our field agents found numerous examples of sources, both potential
sources, businessmen, paid informants, who were telling us in counter-
intelligence investigations that they no longer wanted to work for
us or provide us information because of their fear that the FOIA
would cause us to give up their names or the information they pro-
vided. This is a real concern to us.
I am not in a position to measure it in terms of how many sources
we have and how many sources made statements like this to us, nor
am I sure when a person refuses to cooperate whether or not it is or
is not because of the FOIA. But in answer to the question of Con-
gressman Ashbrook, I would have to say that it is definitely a re-
ality. It is a fact that we have documented instances of sources in this
intelligence area who have refused to cooperate with us because of the
FOIA.
Mr. RoMERSN. Thank you. Thank you, Mr. Chairman.
Mr. MURPHY. Thank you, Mr. Bresson and your staff, for coming
in today. We appreciate it very much.
Mr. MURPHY. We adjourn, subject to the call of the Chair.
Mr. BRESSON. Thank you.
[Whereupon, at 2;:48 p.m., the subcommittee recessed, subject to
the call of the Chair.]
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Appendix A
FEDERAL BUREAU OF INVESTIGATION-SUMMARY OF FOIPA COSTS, FISCAL YEARS 1974 THROUGH 1ST QUARTER
OF FISCAL YEAR 1979
FOIPA
program I
Other
estimated
headquarters
costs'
Field
estimated
costs.
Payments to
DOJ FOIPA
litigation
Total FOIPA
estimated
costs
1974
---------
$160, 000
--
$160,000
462
000
------------------------
1915---------------------------------
462, 000
3
3
61
,
1976---------------------------------
Transition quarter---------------------
090,
906,
3,
5
98, 749
254
530
48, 397
324
318
75, 392
133
392
1,128, 619
10,084,970
1977---------------------------------
19,983
9,1
,
403
809
,
069
656
,
436
358
, 622,133
9
1918---------------------------------
1979 (1st quarter)---------------------
8, 203, 819
1,816,182
,
298,602
,
130,522
,
2,245,306
23,758,065
1,378,983
1,232,553
90,798,
27,353,399
i The costs for the FOI PA program are based on total personnel service costs plus other operating expenses.
2 Fiscal years 1976 through 1st quarter of fiscal year 1978-the estimated costs are composed of personnel compensa-
tion and benefits only. Beginning with calendar 1978, the costs are estimated on a total cost basis.
Federal Bureau of Investigation personnel allocation for FOIPA
Positions 1
Fiscal year:
g
1975
------------------------------------------------------------
175
------------------------------- - ----------------------
2208
1977
------------------------------------------------------------
a 389
1978
------------------------------------------------------------
309
1979
------------------------------------------------------------
309
1980
------------------------------------------------------------
1 Fiscal year 1975 and 1976 allocated from realignment of personnel within FBI. Fiscal
year 1977 through 1980 funded to FOIPA program.
' Does not include 282 special agents assigned to headquarters during "Project
Onslaught."
I Although allocated 389 for 1978, our highest onboard complement figure reached only
1973
Federal Bureau of Investigation FOIPA requests received'
--------------------------------------------------- ----'------
-------
-
64 447
1974
-
------------------------------------------------------
------
13,881
1975
---------------------------------------------------------
-------
-
15,778
1976
-
------------------------------------------------------
-----
18,028
1977
----------------------------------------------------------
18
084
1978
---------------------------------------------------------------
,
438
1
1979 through 2/9/79-------------------------------------------------
,
--------------------------------------------------------
Total
67, 718
1 1974 FOIA amendments were effective Feb. 19, 1975 ; Privacy Act of 1974 was effective
(63)
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF INVESTIGATION
WASHINGTON, D.C. 20535
Honorable Morgan F. Murphy
Chairman
Subcommittee on Legislation
Permanent Select Committee
on Intelligence
House of Representatives
Washington, D. C.
On April 5, 1979, Mr. Bresson of my staff testified
concerning the Freedom of Information Act before your Subcom-
mittee. He was asked to submit our legislative proposals.
Enclosed are the FBI's proposals for your con-
sideration.
/J- aqK-
William H. Webster
Director
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF INVESTIGATION
WASHINGTON, D.C. 20535
To make the 1966 Freedom of Information Act more
effective and responsive to an open society, Congress
amended the law in 1974. Because some of the amendments
required law enforcement agencies to disclose information
in their files, Congress, recognizing the sensitive nature
of those files, included provisions which permit law
enforcement agencies to withhold certain types of infor-
mation. Thus, enactment of the amendments was an effort
to strike a balance between the disclosure of sensitive
information and the need to withhold from public disclosure
information which the national security and effective law
enforcement demand be held in confidence.
When President Lyndon B. Johnson signed the
Freedom of Information Act into law on July 4, 1966,
he said, "This legislation springs from one of our most
essential principles: a democracy works best when the
people have all the information that the security of
the Nation permits." I am as convinced today of the
undeniable validity of that proposition as President
Johnson was more than a decade ago.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
The objective of public disclosure aimed toward
the goal of an informed citizenry is one to which the FBI is
committed. For example, although the Privacy Act provides
for the exemption of files compiled for law enforcement
purposes, the Bureau processes first-person requests under
the Freedom of Information Act to afford the requester the
maximum possible disclosure. In 1978 the FBI made final
responses to 20,000 Freedom of Information-Privacy Acts
requests. We have placed in our public reading room over
600,000 pages of materials concerning such matters as our
investigations of the assassinations of President Kennedy
and Dr. Martin Luther King, Jr.; Cointelpro; and many
significant cases of historical interest. The public can
review any of-these materials at no cost. I am well pleased
with the FBI's demonstrated response to the mandate of
Congress in this area.
It should be noted our response has been achieved
at a substantial cost. With over 300 employees at FBI
Headquarters assigned full time to Freedom of Information-
Privacy Acts.matters, the Bureau expended over nine million
dollars in the program last year. Furthermore, we have learned
that because of the Act the FBI is not now receiving vital
information previously provided by persons throughout the
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
private sector, foreign, state and municipal law enforce-
ment organizations, informants and other sources.
I have described the FBI's experience with the
Freedom of Information Act in testimony before Committees
of Congress. Several of our oversight Committees asked me
to submit to them proposed changes in the Act. In response
to those requests, I have prepared some amendments.
My proposals, which do not necessarily represent
the views of the Department of Justice or the Administration,
endeavor to refine the Act, not to repeal it. As you con-
sider them, I ask you to observe not only what they would
do, but also what they would not do. They would not, for
example, diminish the rights and privileges a criminal
defendant or civil litigant now enjoys under the rules of
civil and criminal procedure, nor would they limit or
restrict in any way the power of the Department of Justice
or the Congress or the Courts to oversee any activity of
the FBI. What they would do, I submit, is make those
adjustments to the Act suggested by reason and experience.
Existing time limits for responding to requests
would be changed to establish a relationship between the
amount of work required in responding to requests and the
amount of time permitted to do the work. The proposals also
would change the law to permit, not require, us to disclose
our records to felons and citizens of foreign countries. We
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
also propose deleting the requirement a record be an inves-
tigatory record before it can be protected under existing
exemption (b)(7). This proposal would enable the FBI to
protect such noninvestigatory records as manuals and guide-
lines to the extent the production of them would cause any
.of the harms specified in existing exemptions (b)(7)(A)
through (F).
The proposals would divide all FBI records into
two categories. The first category would consist of the
most sensitive information the FBI possesses: records per-
taining to foreign intelligence, foreign counterintelligence,
organized crime, and terrorism. The proposals would exempt
them from the mandatory disclosure provisions of the Act.'
Title 28, Code of Federal Regulations, Section 50.8, which
provides for access to files over 15 years old of historical
interest, will remain in effect.
All other FBI records would be in the second cate-
gory and subject to the Act's mandatory disclosure provisions.
Several proposals are designed to reestablish the
essential free flow of information from the public to the FBI.
We propose the statute specify that state and municipal
agencies and foreign governments merit confidential source
protection when they provide information on a confidential
basis. To make clear we are permitted to withhold seemingly
innocuous information which standing alone may not identify
Approved For Release 2011/09/26: CIA-RDP04MO1816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
a source, but which could do so when combined with other
information subject to release under the Act or known to the
requester, we propose we be permitted to withhold information
which would tend to identify a source. This proposal would
adopt the comments of several courts and make the language
of the exemption conform more closely to the original intent
of Congress.
To increase our ability to protect confidential
sources, we are proposing a seven-year moratorium on law
enforcement records pertaining to law enforcement investi-
gations. The FBI will not use the moratorium in concert with
a file destruction program to frustrate the Freedom of Infor-
mation Act.
Because the proposals are permissive in nature,
they would not prohibit releasing information. To insure
fundamental fairness and to address matters of public interest,
the FBI will draft with the Department of Justice a policy
for disclosing information even though the law would permit
withholding it.
These proposals would protect legitimate law enforce-
ment interests while carefully preserving the basic principle'
underlying the Freedom of Information Act. In my view they
merit your consideration.
William H. Webster
Director
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Page
I.
Time Limits
1
II.
Certain Aliens; Felons
8
III.
Protection of Law Enforcement Interests
13
A.
The FBI's Most Sensitive Records
18
B.
All Other FBI Records
22
1.
Ongoing Investigations
24
2.
Personal Privacy
25
3.
Confidential Sources
26
4.
Moratorium
32
5.
Physical Safety
33
IV. Public Records
V. In Camera Review
Vi. Annual Report
VII. Appendix
A. The Impact of the Freedom of
Information Act on the FBI
B. The Proposed Freedom of
Information Act
C. Title 28, Code of Federal
Regulations, Section 50.8
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
71
TIME LIMITS
Existing Law
Subsection (a)(6)(A) requires each agency upon any
request for records to-make the records available within
10 days.
Subsection (a)(6)(B) permits the agency in narrowly
defined unusual circumstances to extend the time limits for
no more than 10 additional days.
If an agency fails to comply with the time limits,
subsection (a)(6)(C) enables the person who made the request
to file suit in United States District Court to enjoin the
agency from withholding documents. The subsection provides
that if the Government can show exceptional circumstances
exist and the agency is exercising due diligence, the court
may allow the agency additional time.
Observations
Every working day the FBI receives approximately 60
new requests for records. Although we do not have any records
pertaining to the subject matter of some requests and others
require processing only a few pages, some requests encom-
pass thousands of documents. In most instances more than
ten days elapse before we can identify, locate and assemble
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
72
the requested documents, much less process them for release.
Contrary to what some may imagine, there is no machine which
reproduces in a matter of minutes all the requested information
contained in any one or more of the millions of FBI files.
Often we must review many documents which contain information
concerning other individuals as well as the requester.
The ability to respond to requests within an
extremely short time period depends largely on the sensi-
tivity of the records the agency's duties and functions
require it to maintain. The FBI must.review its records
with extreme care prior to releasing them. That review
entails a page-by-page, line-by-line examination of each
document. To proceed in any other manner would jeopardize
classified data, valid law enforcement interests, and
third-party privacy considerations.
The volume and nature of work involved and, to an
extent the limited resources available, render it impossible
for the FBI to meet the 10-day time limit. As the General
Accounting Office concluded after a 14-month review of our
operations, "Considering the nature of the information
gathered by the FBI, the processing of requests within 10
working days will probably never become a reality." "Timeli-
ness and Completeness of FBI Responses to Freedom of
Information and Privacy Acts Requests Have Improved," page 12
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
of a Report to the Congress by the Comptroller General of the
United States, April 10, 1978.
The General Accounting office determined the FBI
appeared to be making every effort to reduce the response
time and it is noteworthy the Comptroller General did not
recommend any administrative or managerial changes to reduce
that time.
Our failure to meet the time limits does more than
place us in the unseemly posture of failing to be in strict
compliance with the law. It creates a vicious circle. When
we miss a deadline the person who requested the records can
file a lawsuit. Time spent responding to the lawsuit naturally
results in time lost responding to the requests of others.
That in turn delays even more our responding to those other
The conclusion appears inescapable. The time
limit provisions should be modified.
We propose subsection (a)(6)(A) be amended to
read: "Each agency, upon any request for records made under
paragraphs (1), (2), or (3) of this subsection shall --
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
74
"(i) notify the person making the request of
the receipt of the request and notify the person
making the request within 30 days after receipt
of the request of the number of pages encompassed
by the request and the time limits imposed by this
subsection upon the agency for responding to the
request; determine whether to comply with the
request and notify the person making the request
of such-determination and the reasons therefor
within 60 days from receipt of the request
(excepting Saturdays, Sundays and legal public
holidays) if the request encompasses less than
200 pages of records with an additional 60 days
(excepting Saturdays, Sundays and legal public
holidays) permitted for each additional 200 pages
of records encompassed by the request, but all
determinations and notifications shall be made
within one year; and notify the person making
the request of the right of such person to
appeal to the head of the agency any adverse
determination;
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
^(C) Any person making a request to any agency for
records under paragraph (1), (2), or (3) of this subsection
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 circumstances exist
and that the agency is exercising due diligence in attempting
to respond to the request, the court shall allow the agency
additional time to complete its review of the records...."
Commentary
Our proposal has two main features. It would
establish a relationship between the amount of work required
to respond to a request and the amount of time permitted to
do the work. It would insure we would be granted additional
time to respond to requests if exceptional circumstances exist
and if we are exercising due diligence.
Our current practices of acknowledging receipt of
the request promptly and notifying the requester at the out-
set if we do not have any records concerning the subject
matter of his request would not be affected.
The proposal would require us to notify the reques-
ter within 30 days of the number of pages encompassed by his
request and to inform him of the applicable time limits.
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
76
In the absence of exceptional circumstances the pro-
posal would permit no more than 60 working days to process
every 200 pages of records encompassed by the request. Because
some requests require the review of thousands of pages and the
proposed schedule could result in a prolonged response time,
we suggest the imposition of a maximum time limit of one year,
absent exceptional circumstances.
Although we are convinced making the time limits
proportional to the amount of work required is a sound idea,
we are not wedded either to the 60-day:200-page ratio or the
one year maximum limitation. We propose that schedule with the
realization the subsection under consideration applies to all
Executive agencies, not just to those which, like ours, must
review extremely sensitive records in a detailed, careful,
and time-consuming manner.
If we were able to begin working on requests as
soon as they are received, we could process most, but not
all of them within the proposed time limits. Because we
could not meet the 60-day:200-page deadline in exceptionally
complex cases, or the one
large requests, or either
tional circumstances, our
year maximum limit in exceptionally
when confronted with other excep-
be given additional time if we can
exceptional circumstances and that
diligence in attempting to respond
would make clear we will
show the court there are
we are exercising due
to the request.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Unfortunately, we are not currently in a position
to begin working on a request soon after it is received. We
note, indeed we underscore, the number of requests now on hand
and awaiting processing and the volume and scope of incoming
requests and pending litigation are so great, that four to six
months usually elapse between the time a request is received
and the time we are able to furnish the records to the
requester.
We propose the 60-day:200-page schedule, with the
exceptional circumstance provision intact, as a reasonable
alternative to existing law, notwithstanding the four- to six-
month delay imposed mainly by the backlog of work. The proposal
relies on Open America v. Watergate Special Prosecution Force,
547 F.2d 605 (D.C. Cir. 1976). In that case the court found
the deluge of requests in excess of that anticipated by Congress
is a factor to be considered in determining the existence of
exceptional circumstances.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
CERTAIN ALIENS; FELONS
Existing Law
Subsection 552(a)(3) requires each agency upon any
request for records to make the records promptly available
to any person.
Observations
Although only a citizen of the United States or
an alien lawfully admitted for permanent residence may make
a request for records under the Privacy Act, the Freedom of
Information Act imposes upon the FBI the duty to furnish
records to any person in the world who asks for them.
At present about 16 percent of our Freedom of Infor-
mation Act requests are made by or on behalf of prisoners.
The actual figure could be higher because only those requests
which bear the return address of a prison or which state
the requester is a prisoner are counted in our statistical
tabulation. The percentage of requests from prisoners is
growing. A little more than a year ago only six percent of
the requests were made by prison inmates.
Although we do not know how many requests are made
by convicted felons, it may be assumed we are receiving
requests from persons who have been convicted of a felony but
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
are no longer under sentence. Members of organized crime
families, for example,. despite having been convicted of felo-
nies, are free to request FBI documents. We do receive requests
from organized crime figures.
Furthermore, because the present statute requires
us to furnish FBI records to "any person," a citizen of a
foreign country, even a citizen of a hostile foreign country,
may demand and receive FBI documents. We have had requests
from individuals who reside in foreign countries.
Because every request must be honored and because
we receive more requests than we can process immediately, it
is our policy to respond to requests in the order in which
they are received. The result is the requests of most citi-
zens must wait their turn while the Bureau responds to
requests for FBI documents from felons and residents of
foreign countries.
We propose amending existing subsection (a)(3) by
adding the following sentence:
"This section does not require a law
enforcement or intelligence agency to dis-
close information to any person convicted
of a felony under the laws of the United
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
80
States or of any state, or to any person
acting on behalf of any felon excluded
from this section."
We propose subsection (e) be amended to define
"person" as "a United States person as defined by the Foreign
Intelligence Surveillance Act of 1978."
Commentary
The Foreign Intelligence Surveillance Act of 1978
defines "United States person" as "a citizen of the United
States, an alien lawfully admitted for permanent residence
(as defined in section 101(a)(20) of the Immigration and
Nationality Act), an unincorporated association a substantial
number of members of which are citizens of the United States
or aliens lawfully admitted for permanent residence, or a
corporation which is incorporated in the United States, but
does not include a corporation or an association which is a
foreign power, as defined in subsection (a)(1), (2), or (3)."
Subsection (a) reads, "Foreign Power" means --
"(1) a foreign government or any component thereof,
whether or not recognized by the United States;
"(2) a faction of a foreign nation or nations, not
substantially composed of United States persons;
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
"(3) an entity that is openly acknowledged by a
foreign government or governments to be directed and controlled
by such foreign government or governments;"
The legislative history of the Freedom of Information
Act makes clear the passage of the law was prompted in no small
part on the premise that the opportunity to obtain information
is essential to an informed electorate. Our proposal would
tailor the Act to serve that purpose, while carefully preserv-
ing the rights of the electorate. The definition of "person"
is sufficiently broad to insure the rights of public interest
groups and associations would not be affected.
Some of those the proposal could exclude from the
Act are not a part of the electorate because they are citizens
of foreign countries. The proposal also would preclude felons
from demanding as a matter of right the benefits of the Act
at taxpayers' expense. That would have two advantages.
First it would enable the FBI to respond more promptly to
the requests of those for whom the Act primarily was designed.
Indeed, most felons have lost their right to vote and thus
are not part of the electorate. Secondly, it would put to
an end the current practice of convicts who are making
requests for the purpose of identifying those who probably
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
were responsible for their conviction. LIt can be assumed
many of these felons do not require proof beyond a reasonable
doubt in identifying a particular person as a source of
information.] If felons can be prohibited from voting in
elections, a right lying at the very heart of our democracy,
the law should permit their being excluded from FBI files
as well as the voting booth.
The proposal would not limit existing habeas corpus
or civil and criminal discovery procedures, all of which will
remain as they are today. Furthermore, the proposal does not
prohibit the Bureau from responding to requests of felons
and those who are not United States persons. It provides
we would not be required to respond to those requests. Thus,
the FBI would be permitted to make records available and we
shall work with the Department of Justice to draft guidelines
governing access under the Act to a law enforcement or intelli-
gence agency's information by felons and those who are not
United States persons.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
83
PROTECTION OF LAW ENFORCEMENT INTERESTS
Existing Law
Subsection 552(b) provides the Act does not apply
to matters that are --
"(7) investigatory records compiled for law enforce-
ment purposes, but only to the extent that the production of
such records would (A) interfere with enforcement proceedings,
(B) deprive a person of a right to a fair trial or an impartial
adjudication, (C) constitute an unwarranted invasion 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 investiga-
tion, or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished
only by the confidential source, (E) disclose investigative
techniques and procedures, or (F) endanger the life or
physical safety of law enforcement personnel;
"Any reasonably segregable portion of a record shall be pro-
vided to any person requesting such record after deletion of
the portions which are exempt under this subsection."
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Observations
The FBI observes there are difficulties in applying
this exemption in such a way that legitimate law enforcement
interests receive adequate protection. Those interests
include protecting highly sensitive information, ongoing
investigations, manuals and some other noninvestigatory
records, and confidential sources.
Proposal
We propose subsection (b)(7) be amended to read as
follows:
"(b) This section does not apply to matters that are--
"t7) records maintained, collected or used for
foreign intelligence, foreign counterintelligence, organized
crime, or terrorism purposes; or records maintained, collected
or used for law enforcement purposes, but only to the extent
that the production of such law enforcement records would
(A) interfere with enforcement proceedings, (B) deprive a
person of a right to a fair trial or an impartial adjudication,
(C) constitute an unwarranted invasion of personal privacy or
the privacy of a natural person who has been deceased for less
than 25 years, (D) tend to disclose the identity of a confiden-
tial source, including a state or municipal agency or foreign
government which furnished information on a confidential basis,
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
and in the case of a record maintained, collected or used by a
criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by
the confidential source including confidential information fur-
nished by a state or municipal agency or foreign government,
(E) disclose investigative techniques and procedures or (F)
endanger the life or physical safety of any natural person;
PROVIDED, however, this section shall not require a law enforce-
ment or intelligence agency to (i) make available any records
maintained, collected or used for law enforcement purposes
which pertain to a law enforcement investigation for seven
years after termination of the investigation without prosecu-
tion or seven years after prosecution; or (ii) disclose any
information which would interfere with an ongoing criminal
investigation or foreign intelligence or foreign counter-
intelligence activity, if the head of the agency or in the
case of the Department of Justice, a component thereof,
certifies in writing to the Attorney General, and the Attorney
General determines, disclosing the information would interfere
with an ongoing criminal investigation or foreign intelligence
or foreign counterintelligence activity."
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
"Foreign intelligence" means information
relating to the capabilities, intentions and
activities of foreign powers, organizations
or persons.
"Foreign counterintelligence" means infor-
mation gathered and activities conducted to
protect against espionage and other clandestine
intelligence activities, sabotage, inter-
national terrorist activities or assassinations
conducted for or on behalf of foreign powers,
organizations or persons.
"Terrorism" means any activity that involves
a violent act that is dangerous to human life or
risks serious bodily harm or that involves
aggravated property destruction, for the purpose
of --
(i) intimidating or coercing the civil
population or any segment thereof;
(ii) influencing or retaliating against
the policies or actions of the government of
the United States or of any State or political
subdivision thereof or of any foreign state,
by intimidation or coercion; or
Approved For Release 2011/09/26: CIA-RDP04MO1816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
87
(iii) influencing or retaliating against
the trade or economic policies or actions of
a corporation or other entity engaged in foreign
commerce, by intimidation or coercion.
"Organized crime" means criminal activity
by two or more persons who are engaged in a
continuing enterprise for the purpose of obtain-
ing monetary or commercial gains or profits
wholely or in part through racketeering
activity."
Commentary
Our proposal would divide all FBI records into two
categories. The first category would consist of the most
sensitive information the FBI possesses: records pertaining
to foreign intelligence, foreign counterintelligence, organized
crime, and terrorism. The proposal would exempt them from
the mandatory disclosure provisions of the Act. All other
FBI records would be in the second category and subject to
the Act's mandatory disclosure provisions.
Title 28, Code of Federal Regulations, Section 50.8,
will remain in effect. That section, based on an order dated
July 17, 1973, provides for access to files of historical
interest. The complete text is in the appendix.
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
88
The proposal substitutes for the Freedom of informa-
tion Act's "compiled," the definition of "maintained" used in
the Privacy Act of 1974, 5 U.S.C. $ 552a (a)(3). Not only
would the proposed change aid the consistency of the two
related statutes, it also would preclude any gap in protection
resulting from a narrow interpretation of "compiled." The
thrust should go to the purpose for which the records are
maintained, collected or used, and not soley the purpose for
which they originally were compiled.
The FBI's Most Sensitive Records
The FBI is charged with the responsibility for
foreign intelligence, foreign counterintelligence, terrorism
and organized crime investigations within the United States.
Our activities in these four areas invariably are among the
most sensitive the FBI conducts and the records we maintain,
collect and use in connection with these matters are our
most sensitive. The degree of sensitivity of information is
directly proportional to the degree of harm resulting from
the disclosure of that'information to the wrong person.
Most of our investigations in these areas are
detailed, complex and extensive. Thus, of all our records
our most sensitive are also the most vulnerable to examina-
tion by those motivated by other than legitimate reasons to
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
89
identify sources and determine the scope, capabilities and
limitations of our efforts.
Although one of the purposes of the Freedom of
Information Act was to compel disclosure of agency information
to assist in informing the electorate, one cannot conclude
all citizens request and receive the FBI's most sensitive
information for the purpose of making themselves a more
informed electorate.
This is not to intimate all persons who desire to
examine these records have evil motives. A few, no doubt, do.
We know, for example, of an organized crime group which made
a concerted effort to use the Freedom of Information Act to
identify the FBI's confidential sources.
In these types of cases revealing the absence of
information in our files is most damaging. The lack of any
investigative activity in a particular place at a particular
time conveys in clear and unmistakable terms our limitations.
That we do not possess records showing FBI investigative
activity in a certain city is to announce we have no knowledge
of what transpired there. It is important to remember under
the Freedom of Information Act we are required to explain why
information is being withheld, identify with as much specifi-
city as possible the nature of the information, and describe
document not being disclosed.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
It must be recognized that hostile foreign govern-
ments, terrorist and organized crime groups not only have the
motive to subject our releases to detailed analysis, they have
the resources to finance such an examination by knowledgeable
and skilled analysts.
Risks surface internally as well. The FBI tradi-
tionally has operated on the "need-to-know" principle:
sensitive information is provided only to those FBI employees
who have a need-to-know the information. It would not be
uncommon for a veteran Special Agent assigned to the Criminal
Investigative Division to have no knowledge about a foreign
counterintelligence case, and for an employee assigned foreign
counterintelligence responsibilities to know only a portion
of the details of that same case. Yet, to respond to a
Freedom of Information Act request all relevant records must
be assembled in one place. Throughout the response, appeal
and litigation stages the records receive much more exposure
than they otherwise would.
We must remember, too, it is human beings in the
FBI who review our records and try to decide what must be
released and what properly should be withheld. Human beings
have made mistakes in the past; they will make them in the
future. Furthermore, there is a limit to human knowledge. FBI
employees do not know, cannot know and have no way of learn-
ing the extent of a requester's knowledge of names, dates
- 20 -
Approved For Release 2011/09/26: CIA-RDP04MO1816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
91
and places. The Freedom of Information Act analyst in the
FBI may have no way of knowing or learning the significance
to a hostile analyst of a particular item of information.
Yet, somehow, the FBI employee is suppose to make an intelli-
gent judgment.
To our knowledge no confidential source has ever
experienced physical harm as a result of one of our releases,
but one of the most alarming aspects of this entire area is
that the greatest danger lies in a hostile foreign government
identifying an FBI source and leaving that source in place.
We are heartened by the absence of an identifiable victim; we
remain concerned.
We have not lost sight of our commitment to be as
open as possible. To that end we have defined the, four highly
sensitive categories in an effort to strike a proper balance
between openness in government and keeping secret those things
which are fit to be kept secret from the world.
Through its elected representatives the public has
placed upon the FBI our foreign intelligence, foreign counter-
intelligence, terrorism and organized crime responsibilities.
We recognize the American people have a right to know how the
FBI is discharging those responsibilities. The Act does not
require any person who desires to receive a document to show
a need for the information or to express a reason for request-
ing it. We do not suggest the Act be changed to impose any
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
92
such requirements. What we are proposing is that the public's
right to know about these highly sensitive matters be chan-
neled through the existing powers of its courts, its Congress,
and its other representatives.
The FBI must account to the public for its activi-
ties in these particularly sensitive areas. We should give
our accounting not to the world, but to the public's courts,
Congress, and Executive. All other FBI records would remain
subject to direct public access.
All Other FBI Records
Existing subsection (b)(7) clearly does not protect
law enforcement manuals because they are not "investigatory
records." With the law in its present form, we are unable to
reduce to writing in a manual, training document or similar
paper those items of information we want our Special Agents
in the field to know without running the risk of having to
provide our game plan to those who would use our own informa-
tion to avoid detection or capture.
The manner in which the courts have struggled to
find some basis to justify withholding those portions of law
enforcement manuals which deserve protection may be seen in
such cases as Cox v. Department of Justice, 576 F.2d 1302
(8th Cir. 1978); Cox v. Department of Justice, F.2d
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(8th Cir. 1979); Caplan v. Bureau of Alcohol, Tobacco and
Firearms, 445 F.Supp. 699 (S.D.N.Y. 1978); aff'd on other
grounds, 587 F.2d 544 (2nd Cir. 1978).
The difficulty the courts have had in relying on
existing exemption (b)(2), which protects all records relat-
ing solely to the internal personnel rules and practices of
an agency, lies in part in the difference between the House
and Senate Reports on the scope of exemption (b)(2). The
House Report would allow manuals to be protected; the Senate
Report would not.
We propose deleting the requirement the record be
an investigatory record before it can be protected under
exemption (b)(7). The proper test ought to be whether the
production of the record would cause any of the harms sub-
sections (b)(7)(A) through (F) are designed to prevent.
Ginsburg, Feldman and Bress v. Federal Energy Administration,
Civ. Act. No. 76-27, 39 Ad. L.2d (P & F) 332 (D.D.C. June 18,
1976), aff'd, No. 76-1759
(D.C. Cir. Feb. 14,
1978), vacated
pending rehearing en banc
(D.C. Cir. Feb. 14,
1978), aff'd
mem., No. 76-1759 (D.C. Cir. 1978).
If our proposal were enacted, exemption (b)(7) would
protect all FBI records to the extent the production of them
would cause any of the harms addressed in exemptions (b)(7)(A)
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
through (F). See Irons v. Bell, et al., F.2d
(1st Cir. 1979). Remaining portions of records would be
disclosed under the Freedom of Information Act.
Ongoing Investigations
Effective law enforcement demands that in certain
situations the existence of an investigation not be disclosed.
Although existing exemption (b)(7)(A) permits the withholding
of information to the extent that the production of records
would "interfere with enforcement proceedings," we know of
no way to respond to a Freedom of Information Act request
without alerting the requester there is an ongoing investiga-
tion. Subsection (a)(6)(A)(i) requires us to inform the
requester the reasons for our determination whether to comply
with his request. Thus, we are required by the statute to
cite (b)(7)(A) to protect an ongoing investigation and by
citing that exemption we confirm the existence of the inves-
tigation.
The General Accounting Office found, "(I)f reques-
ters, unaware that they are under investigation, seek access
to their records, they would immediately realize the situation
once the agency cited the (b)(7)(A) exemption to withhold
information that may harm a pending investigation. Thus, the
agency faces a dilemma. It cannot lie to requesters by say-
ing that no records exist, nor can it choose to ignore the
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
requesters.... Because the use of the (b)(7)(A) exemption
puts the agency in a 'no-win' situation, some feasible pro-
cedure is needed by which the Government's and public's
interests are served fairly and efficiently." "Timeliness
and Completeness of FBI Responses to Freedom of Information
and Privacy Acts Requests Have Improved," pages 57-58 of a
Report to the Congress by the Comptroller General of the
United States, April 10, 1978.
Our proposal would solve this dilemma. It would
enable us to avoid alerting a requester only in those instances
in which alerting him would interfere with an ongoing criminal
investigation or foreign intelligence or foreign counter-
intelligence activity. To insure the provision would be
employed only when absolutely necessary, our proposal would
require the Director of the FBI to certify in writing to the
Attorney General and for the Attorney General to make the
determination that disclosing the information would interfere
with the ongoing criminal investigation or foreign intelli-
gence or foreign counterintelligence activity.
Personal Privacy
Exemption (b)(7)(C) permits the FBI to withhold
information in its investigatory records which would "con-
stitute an unwarranted invasion of personal privacy." This
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
exemption does not protect any interests of deceased individ-
uals because personal privacy considerations do not survive
Ourproposal would extend the privacy interests
protected by this exemption for 25 years after death.
Confidential Sources
Although exemption (b)(7)(D) is designed to protect
confidential sources, there are difficulties with making the
exemption do that for which it is intended. It is essential
these difficulties be minimized or eliminated because the
confidential source is indispensable; he is the single most
important investigative tool available to law enforcement.
"The courts have also recognized the danger that citizen
cooperation with law enforcement agencies will end if such
confidential sources are not protected." May v. Department
of Justice, Civil Action No. 77-264SD (S.D. Me. 1978).
In responding to a request for information from an
investigative file, we must review each record to determine
if we can release the information. The duty is ours to
establish the need to withhold, and we must demonstrate that
records being withheld contain no "reasonably segregable"
information; that is, information not specifically protected
by exemption (b)(7)(D) or. any of the other eight exemptions.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
In practice this means that an FBI employee, even
though he has learned to evaluate more carefully what infor-
mation is reasonably segregable, does not know, cannot know,
and has no way of learning the extent of a requester's
knowledge of dates, places and events. The person most
knowledgeable about what particular information may lead to
source identity is, unfortunately for us, oftentimes the
requester who is the subject of the investigation. What
appears to us to be innocuous or harmless information may pro-
vide the requester the missing piece of the puzzle. Stassi v.
Department of Justice, et al., Civil Action No. 78-0536
(D.D.C. 1979). When the records pertain to investigations of
organizations and the members have the opportunity to pool
and compare the information furnished to them, the danger
becomes more apparent.
We have further concern for the inadvertent dis-
closure which may result from human error. That is a risk
present whenever a page-by-page review of thousands of docu-
ments is undertaken.
Still, an FBI employee must review the relevant
materials and predict what information can be released. The-
consequences of erring are severe.
Approximately 16 percent of our Freedom of Informa-
tion Act requests are coming from prison inmates. Our
experience tells us that in many instances their requests
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
are being made for the purpose of identifying informants..
We know that an organized crime group made a concerted effort
to identify sources through the Freedom of Information Act.
The FBI's ability to discharge its responsibilities
depends in large measure upon the willingness of human beings
to furnish information to us. To the extent the Freedom of
Information Act or any other statute or event or circumstance
inhibits someone from telling the FBI what he knows, our
ability to do our job is made more difficult.
We have found that there are those in many segments
of society who are refusing to provide us information because
they fear their identity may be disclosed under the law.
These people are not only confidential informants, but also
private citizens, businessmen and representatives of municipal
and state governments. Included as well are officials of
foreign governments. The FBI is not suggesting that every
person who is reluctant to provide us information does so
solely because of the Freedom of Information Act. We are
saying we do have examples -- actual case histories -- of
people who have told us they do not want to provide informa-
tion to us because they fear disclosure under the Act.
Several of these examples are in the appendix.
The Report of the Comptroller General captioned,
"Impact of the Freedom of Information and Privacy Acts on
Law Enforcement Agencies," dated November 15, 1978, contains
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
several specific examples of documented instances wherein
established or potential sources of information declined to
assist us in our investigations. This General Accounting
Office Report points out our belief that the Acts have had
the greatest impact on informants in the organized crime and
foreign counterintelligence areas, two of the areas in which
the FBI currently concentrates its greatest efforts. Our
sources of information in the foreign counterintelligence field
are usually well educated, sophisticated and informed about
the laws, court decisions and media coverage concerning the
release of information from FBI files. They are very sensi-
tive to the fact that Freedom of Information-Privacy Acts
disclosure of their cooperation with us could jeopardize their
community standing or livelihood, or more seriously, given
the appropriate situation, their life or physical safety.
We consider this perception by the public to be a
serious impairment to our capabilities. The Comptroller
General's Report concluded the various law enforcement agencies
surveyed almost universally believe that the ability of law
enforcement agencies to gather and exchange information is
being eroded, but the extent and significance of the informa-
tion not being gathered because of the Freedom of Information
Act and the Privacy Act cannot be measured. It is true
quantitative measurement of the loss of information is most
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
difficult to ascertain. In many cases we will never be sure
why a source or potential source of information declined to
provide vital information to us, but the Freedom of Information
Act has been specifically cited by many as the reason for
their refusal to cooperate.
The practical problems that confront us in applying
the existing (b)(7)(D) exemption and the risks present when-
ever sensitive records are reviewed for public disclosure place
us in the position of not being able to dispel as completely
mythical or imagined the perceptual problem which exists among
the citizenry. Our proposal addresses the practical and per-
ceptual problems.
The first part of exemption (b)(7)(D) permits the FBI
to withhold information which "would" identify a confidential
source. The second part protects any confidential information
the source furnished to the FBI in the course of a criminal
or lawful national security investigation. To make clear we
are permitted to withhold seemingly innocuous information
which in and of itself would not identify a source, but which
could identify a source when combined with other information
subject to release under the Freedom of Information Act, we
propose amending subsection (b)(7)(D) to permit withholding
information would would tend to identify a source.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Changing the exemption from "would disclose the
identity of a confidential source" to "would tend to disclose
the identity of a confidential source" adopts the comments of
the courts in such cases as Nix v. United States of America,
572 F.2d 998 (4th Cir. 1978), Church of Scientology v. Depart-
ment of Justice, 410 F.Supp. 1297 (C.D. Cal. 1976), and
Mitsubishi Electric Corp., et al., v. Department of Justice,
Civil Action No. 76-0813 (D.D.C. 1977).
The proposal also would make the language of the
exemption conform more closely to the original intent of
Congress. The author of the exemption, Senator Hart, stated,
"The amendment protects without exception and without limita-
tion the identity of informers. It protects both the identity
of the informer and information which might reasonably be
found to lead to such disclosure. These may be paid informers
or simply concerned citizens who give information to law
enforcement agencies and desire their identity be kept con-
fidential," 120 Congressional Record 17034 (emphasis added).
Our proposal would make clear state and municipal
agencies and foreign governments which furnish information
on a confidential basis are confidential sources within the
meaning of the exemption. The proposal would be consistent
with Nix, supra; Church of Scientology, supra; Lesar v.
Department of Justice, 455 F.Supp. 921 (D.D.C. 1978);
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
102
Mny, supra; and Varona Pacheco V. F.B.I., et al., 456 F.Supp.
1024 (D. Puerto Rico 1978).
Our proposal also would eliminate the requirement
that the information be furnished "only" by the confidential
source before it may be protected. Striking the word "only"
would preclude the possibility of a successful demand the
information must be released because the same information was
furnished by two or more confidential sources.
Moratorium
The Act should include a moratorium provision. The
requester who has as his purpose identifying FBI sources can
review an FBI release while names, dates, places and relation-
ships are relatively fresh in his mind. That recollection,
undimmed by the passage of time, is of no small aid to the
individual endeavoring to identify a confidential source by
subjecting an FBI release to a detailed analysis.
We propose we not be required to release law enforce-
ment records pertaining to a law enforcement investigation for
seven years after termination of the investigation without
prosecution or seven years after prosecution.
We will not use the moratorium provision in concert
with a file destruction program to frustrate the Freedom of
Information Act.
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Because some investigations are ongoing for extended
periods, records pertaining to them could be withheld for a
long time. Since our proposal is worded to permit, not pro-
hibit, our releasing information during the moratorium, we will
be able to and we shall work with the Department of Justice
to formulate a policy for access to records of public interest
and to information pertaining to protracted investigations.
Physical Safety
Exemption (b)(7)(F) permits the FBI to withhold
information which would endanger the life or physical safety
of law enforcement personnel.
Our proposal would permit protecting the life or
physical safety of any natural person.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Existing Law
Subsection 552(b), after itemizing those matters to
which the Act does not apply, reads,
"Any reasonably segregable portion of a
record shall be provided to any person request-
ing such record after deletion of the portions
which are exempt under this subsection."
Observations
This provision prevents an-agency from withholding
an entire document when only a portion of it is exempt. It
necessitates our making a line-by-line review of records to
determine if any portion should be released. Such a review
requires a great deal of effort and expense with very little
corresponding benefit to the requester in some cases,
especially those involving requests for records pertaining
to ongoing investigations.
We propose the last sentence of subsection 552(b)
be amended to read,
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
"Any reasonably segregable portion of
a record not already in the public domain
which contains information pertaining to
the subject of a request shall be provided
to any person properly requesting such
record after deletion of the portions which
are exempt under this subsection."
Commentary
Exemption (b)(7)(A) allows an agency to with-
hold investigatory records compiled for law enforcement
purposes, but only to the extent that their release would
interfere with enforcement proceedings. The FBI uses
this exemption most often in responding to requests for
records about pending, ongoing investigations. Of course,
the (b)(7)(A) exemption, like all others, must be applied
with the reasonably segregable clause in mind. The General
Accounting Office concluded, "As a result requesters would
probably not receive any information they were not already
aware of, while the agency would have devoted many useless
hours deciding what information could be released." "Time-
liness and Completeness of FBI Responses to Freedom of
Information and Privacy Acts Requests Have Improved," page 57
of a Report to the Congress by the Comptroller General of the
United States, April 10, 1978.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
106
Our proposal would harmonize the (b)(7)(A) and
"reasonably segregable" provisions without striking discord
in the design of either.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
IN CAMERA REVIEW
Existing Law
Subsection 552(a)(4)(B) empowers United States
District Courts to order the production of any agency records
improperly withheld from the person who requested the records.
It requires the court to determine the matter de novo and
permits the court to examine agency records in camera to
determine whether the records should be withheld under any
of the exemptions set forth in subsection (b) of the Act.
The subsection places the burden on the agency to sustain
its action.
Observations
To meet the burden of justifying our withholding
information, the FBI often must submit detailed affidavits
describing the information being withheld and explaining with
specificity why that information fits within the exemptions of
the Act. The filing of a public affidavit in litigation may
result in more harm than releasing the documents themselves.
In Kanter v. Internal Revenue Service, et al.,
433 F.Supp. 812 (N.D.Ill. 1977), the court observed, "The
government is correct in noting that a detailed index would
be a cure as perilous as the disease. Such an index would
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
enable the astute defendants in the criminal case /who were
the plaintiffs in this Freedom of Information Act lawsuit7
to define with great accuracy the identity and nature of the
information in the possession of the prosecution. 433 F.Supp.
at 820.
"...(T)he principal
problem with a standard
... index is the government's fear that detailed itemiza-
tion and justification would enable the objects of its
investigation to 'fill in the blanks,' i.e., that it would
impede its enforcement almost as seriously as complete dis-
closure .... (T)he court acknowledges the validity of the
government's concern." 433 F.Supp. at 823.
In recognition of the danger, agencies are permitted
to submit more detailed affidavits to the court in camera
when a public affidavit would harm governmental interests.
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976); Kanter v.
IRS, et al., supra; S.Rep. No. 93-854, 93d Cong., 2d Sess.
Affidavits submitted for in camera review usually contain as
much information or more than the documents themselves, an
analysis of the information and an assessment of the damage its
release would cause. For example, the affidavit may explain
exactly how the release of certain information would identify
an informant or harm national security. Yet one court recently
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
ordered the. release of all but two paragraphs of an affidavit
which an agency had submitted in camera. Baez V. National
Security Agency, et al., Civil Action No. 76-1921 (D.D.C.
Memorandum and Order Filed November 2, 1978). The case is
being appealed.
Furthermore, some reservations have been expressed
over the use of in camera inspections. The critics maintain
in camera inspections defeat the adversary process because
the plaintiff and his attorney are not permitted to examine
the documents. See, for example, the concurring opinion in
R v. Turner, 587 F.2d at 1199. (D.C. Cir. 1978).
Proposal
We propose the second sentence in subsection
552(a)(4)(B) be amended to read as follows:
"In such a case the court shall determine
the matter de novo, and may examine the contents
of such agency records in camera to determine
whether such records or any part thereof shall
be withheld under any of the exemptions set
forth in subsection (b) of this section, and
the burden is on the agency to sustain its
action; but if the court examines the contents
of a law enforcement or intelligence agency's
records withheld by the agency under exemptions
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(b)(1), (b)(3), the introductory clause of
exemption (b)(7), or exemption (b)(7)(D), the
examination shall be in camera. The court
shall maintain under seal any affidavit sub-
mitted by a law enforcement or intelligence
agency to the court in camera."
/The phrase "the introductory clause of exemption
(b)(7)" refers to a clause we propose be added to existing
subsection (b)(7).7
Commentary
Under this proposal the burden would remain on the
agency to sustain its action, and the power of the court to
make de novo determinations and inspect agency records
in camera would not be affected.
The proposal would make clear that if a court decides
to review the records of a law enforcement or intelligence
agency, the review of some of those records must be in camera.
Records which could be reviewed only by the court would include
those being withheld under exemption (b)(1) -- properly clas-
sified information; exemption (b)(3) -- information required
by some other statute to be kept confidential; the introductory
clause of exemption (b)(7) -- foreign intelligence, foreign
Approved For Release 2011/09/26: CIA-RDP04MO1816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
111
counterintelligence, terrorism and organized crime information;
and/or exemption (b)(7)(D) -- information identifying a confi-
dential source.
The proposal also would insure that affidavits
submitted by law enforcement or intelligence agencies for
in camera examination are reviewed only by the court.
Adoption of this proposal would dismiss the sugges-
tion that a plaintiff or his attorney should examine highly
sensitive documents, which are being reviewed by a court
in camera, so the plaintiff can assist the court in determining
whether the documents should be disclosed to the plaintiff.
Congress, in enacting the de novo determination and in camera
inspection provisions of the Act, was adamant in its convic-
tion that the courts could be entrusted to make intelligent
decisions about highly sensitive Government documents. Our
proposal rejects the notion the courts have shown themselves
incapable of making in camera determinations without the
assistance of the plaintiff or his attorney.
As to affidavits submitted for in camera review, the
proposal adopts the philosophy of Kanter, supra at 824, "The
method of a detailed index was devised by the court in
Vaughn v. Rosen for the benefit of the court rather than the
plaintiffs. There is no reason why the court cannot consider
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
such an index in camera, thereby preventing undue disclosures
to the plaintiffs. While in camera consideration will deprive
the court of the benefit of plaintiffs' critique of the index,
it does have certain advantages. It is preferable to the
laborious task of scrutiny of the documents themselves.
Furthermore, a properly drawn index will summarize documents,
and put into relief their fundamental facts and importance.
An index will also focus the court's attention on the basis
of the government's claim that each document is covered by
/one of the exemptions-.7" See also Lesar v. Department of
Justice, 455 F.Supp. 921 (D.D.C. 1978).
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Existing Law
Subsection 552(d) requires each agency to submit to
Congress on or before March 1 of each calendar year a report
covering the preceding calendar year. It also requires the
Attorney General to submit an annual report on or before
March 1 for the prior calendar year. Both reports must
include statistical compilations for various aspects of the
processing of Freedom of Information Act requests.
Observations
We are required to keep two sets of statistics:
one for the calendar year report required by the statute
and another for programs operating on a fiscal year basis.
The administrative burden and unnecessary expense which
result from these duplicative efforts could be eliminated
if the existing statute required a fiscal year report.
We propose the first sentence of existing subsec-
tion 552(d) be amended to read,
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
"On or before December 1 of each calendar
year, each agency shall submit a report covering
the preceding fiscal year to...."
and the last paragraph of subsection 552(d) be
amended to read,
"The Attorney General shall submit an
annual report on or before December 1 of each
calendar year which shall include for the
prior fiscal year a listing of...."
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
115
APPENDIX
SURVEY OF IMPACT OF
THE FREEDOM OF INFORMATION ACT (FOIA)
AND
PRIVACY ACT (PA)
ON LAW ENFORCEMENT ACTIVITIES
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
INTRODUCTION
On April 25, 1978, the General Accounting Office
(GAO) requested Federal Bureau of Investigation (FBI)
participation in a GAO study on the impact of the Freedom of
Information Act (FOIA) and the Privacy Act (PA) of 1974 on
law enforcement activities. To compile data for the GAO
request, the FBI canvassed its Headquarters components and
59 field divisions. The following examples include
instances of perceived and/or actual impact reported by FBI
field offices and Headquarters divisions in response to the
GAO request and subsequent to the GAO study. Examples
which involve classified matters are not included.
A. STATE AND MUNICIPAL LAW ENFORCEMENT AGENCIES
An FBI office noted a trend to exclude Agents
working organized crime matters from'key intelligence
meetings in their area. Several state law enforcement
officers have mentioned a concern for the security of
information in connection with Freedom of Information-
Privacy Acts (FOIPA) disclosures as the reason for the
closed meetings. The office undertook efforts through meetings
with state and local law enforcement agencies to improve
their understanding of the FOIA and PA legislation. These
efforts have not met with complete success.
The Attorney General for a certain state has
advised he intends to follow a policy concerning the release
of state records to be in conformity with the FOIPA.
Consequently, in applicant background investigations, state
police arrest records concerning relatives of applicants are
not made available to the FBI.
Due to the FOIPA, difficulty has been experienced
on several occasions in obtaining information from a certain
police department. Some officers have stated their reluc-
tance to make information available concerning subjects of
local investigation because of these Acts. The organized
crime control bureau and the intelligence division of the
police department have expressed concern over the FBI's
ability to protect sources of information.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
117
In a civil rights investigation in which the
subject was a former employee of a law enforcement agency,
the head of that agency advised subject's personnel file
contained several previous complaints concerning his alleged
brutality. However, the agency refused to make the
personnel file or information contained in it available to
the FBI, out of fear the subject would have access to this
information under the PA.
In a recent civil rights investigation, an effort
was made to obtain a copy of a police department report
of the victim's death. Local authorities would make the
report available for review but declined to provide a copy
for inclusion in the FBI's investigative report. Antici-
pating a civil suit would be filed against the city and
police department arising from the victim's death, they
questioned the ability of the FBI in view of the FOIA and
PA to maintain the local report in confidence.
A representative of a certain police department
intelligence division has stated he is very reluctant to
furnish information regarding possible domestic revolution-
aries. He is fearful such information could inadvertently
be released pursuant to the FOIPA.
A detective of a prosecutor's office was contact-
ing his local sources relative to the whereabouts of a
former resident who was a Federal fugitive charged with
murder. The detective said his sources and contacts in the
Cuban community were reluctant to provide information in
this case or others because of the fear of disclosure under
the FOIA.
The following letter was written by the Chief of
Police of a major city:
"With respect to FBI files being made accessible
to persons or organizations pursuant to the Privacy Act or
the Freedom of Information Act, I request that all
investigative records of information, from whatever
(deleted) Bureau of Police source (including the (deleted)
Police Bureau as an organization, its employees, etc.),
in your files be protected and kept confidential.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
"If such protection cannot be assured to this
organization by the FBI, we will only be able to cooperate
in the exchange of non-sensitive, non-confidential infor-
mation. The (deleted) Bureau of Police would not be able
to pass on sensitive information to the FBI without this
assurance of confidentiality, and the effectiveness of the
working relationship between our organizations would be
greatly diminished."
A chief of police stated in the early part of
1977, that if any information is released by Federal law
enforcement agencies as a result of a request under the
FOIPA, which indicated that the source of information was
his police department, he would no longer allow his
department to furnish information to any Federal law
enforcement agencies.
A representative from the criminal conspiracy
section of a certain police department has stated his section
is very reluctant to discuss information concerning possible
intelligence operations. The representative stated he feared
this information-could inadvertently be released by the FBI
to an individual pursuant to an FOIPA request.
In civil rights matters, officers of a certain
police department have been cautioned by their departmental
attorneys that, when interviewed as subjects by FBI Agents,
they should respectfully decline to furnish any information
based on the 5th Amendment. They have been cautioned further
that any statement they do make to the FBI would be subject
to disclosure under the FOIPA.
Two police departments in a certain state will not
share their informants and, more importantly, a substantial
amount of their informant information on Federal violations,
for fear an informant will be disclosed accidentally by the
FBI through a request in connection with the FOIPA.
It has been observed the exchange of information
among local police, state and Federal investigators at the
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
monthly meetings of a police intelligence organization has
decreased substantially. Because of uncertainty over what
information may meet FOIA or PA disclosure criteria, there
is very little information exchanged at these meetings.
Since the spring of 1976, a southern office of
the FBI has encountered an express reluctance by a police
department and a sheriff's office's intelligence unit to
cooperate in furnishing written information to the FBI on
security, as well as criminal, matters. A member of the
intelligence unit stated that, despite past FBI assurances
that all intelligence information Would be considered
confidential, it had been learned a former black. activist,
who had made an FOIA request to the FBI was furnished a
copy of an intelligence report previously furnished to the
FBI by the police department. Although this document did
not reveal the identity of any informant, that local agency
advised it had no choice but to decline to furnish further
written information to the FBI, in order to prevent this
situation from arising again.
In the course of a fugitive investigation, an
FBI Agent was denied information contained in city employment
records, due to the PA. Subsequently, the Agent was able to
obtain these records through a Federal search warrant which
was served on City Hall. However, because of delays required
to obtain the search warrant, the Agent missed apprehending
the fugitive at his place of employment.
B. FOREIGN LIAISON
In recent conversations with two members of a
foreign police agency in an investigation concerning copy-
right matters, these officers stated they did not furnish
all information to the FBI as they had in the past, due to
the FOIA.
On April 11, 1978, an individual who has some
contact with foreign police department. officers declined
to actively assist the FBI because of the fear of seeing
his name in the newspapers. He advised the promise of
confidentiality by law enforcement in today's political
environment is worthless.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
A citizen who has close contact with a foreign
police agency discontinued his association with the FBI
because he feared that, under the FOIA, information might
be released which would identify either himself or this
foreign police agency.
In the past two years, several Agents have had
contact with foreign police representatives visiting the
United States. These representatives have come from Western
countries, some of which have experienced internal problems
with terrorism. These police representatives generally
offered the observation that, despite their high regard
for the reputation and professionalism of the FBI, they
believed (one said it was sadly amusing) all of the fine
efforts of the FBI are sometimes diluted, if not negated,
when the investigative results have to be furnished under
the FOIPA to subjects of investigations. This same dismay
over restrictions on the FBI was relayed by a person who
traveled to another foreign country and visited that
country's national police force.
C. ABILITY OF LAW ENFORCEMENT PERSONNEL TO OBTAIN INFORMATION
FROM THE GENERAL PUBLIC
1. AIRLINES
In an FBI case an airline company accepted a
stolen check for airline passage. As their computers
indicated to the ticket agent the check was stolen,
the airline refused to issue the ticket which had been
completed by the ticket agent. During the course of FBI
investigation, the airline was requested to surrender the
completed but unused ticket as evidence; however, the company
declined to make the ticket available to the FBI due to the
FOIPA.
Citing the PA, a large bank would not make
available details of a particular financial transaction
without a subpoena, although the bank was the vehicle in a
possible 2.2 million dollar fraudulent Interstate Trans-
portation of Stolen Property transaction.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
A former president of another bank obtained loans
using fraudulent financial statements. The former employee's
bank would not make available to the FBI the personnel file,
the loan file, or the results of the internal audit regarding
the president's activities, based on the PA. This information
was not available from other sources.
During an investigation concerning the disappearance
of $1,000 from a bank, investigating Agents contacted a senior
vice president to request background information on a
particular suspect bank employee. The vice president advised
that, due to recent Federal and state privacy legislation,
he could not furnish personnel information concerning this
employee, as he feared the employee might then have grounds
to file a lawsuit for invasion of privacy.
In an investigation involving false statements to
an estimated 50 to 65 banks resulting in 3.8 million dollars
in lawsuits, an FBI office served a subpoena for bank records
on a bank and made request to interview bank officers who had
been personally contacted by subjects. The bank, a victim
of the scheme, would not permit the requested interviews
without additional subpoenas directed to the officers
involved. By way of explanation, the bank advised the PA
prevented discussion of any information concerning a bank
customer without subpoena.
A certain bank was the victim in a Bank Fraud and
Embezzlement - Conspiracy case. Losses suffered in this
case were approximately $476,000. Bank officials advised
that under bank policy, which was based on the FOIPA, they
would furnish no information to the FBI without a subpoena
duces tecum.
3. HOSPITALS AND PHYSICIANS
In an applicant investigation a waiver was
provided the FBI to obtain medical records concerning
hospitalization at the health center of an educational
institution. The school physician refused to provide any
information either to the FBI or to.the applicant, even
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
after the latter personally went to the health center to
sign a second waiver drawn by the school. The office of
the school president advised refusal to release information
was due to the PA.
An individual identified as operating a check-
kite scheme with banks in several states had been
hospitalized. Investigation determined this individual
had initiated his check-kite scheme from a hospital tele-
phone. Nevertheless, hospital officials, citing the
FOIPA, refused to verify his hospitalization or dates
of confinement.
In a fugitive case, an FBI Agent attempted to
obtain background data on the fugitive from a private hospital
where he had been a former patient. Hospital officials
expressed the belief that Federal privacy law inhibited them
from verifying the subject's status as a former patient,
much less releasing background information on him.
4. HOTELS
A hotel which is a part of a large nationwide
hotel chain refused to furnish information on guests,
including foreign visitors, without a subpoena due to
the enactment of the FOIPA.
During a fugitive investigation of a subject wanted
by Federal and local authorities for-extortion and firearms
violations, an Agent contacted the security officer at a
hotel. The purpose of this contact was to develop background
information on a former employee of the hotel, an associate
of the fugitive, who had knowledge of the fugitive's current
whereabouts. Security officials at the hotel refused to
furnish any information from their files without a subpoena
because they felt they were open to civil litigation under the
provisions of the PA.
Numerous hotels and gambling casinos in the State
of Nevada, which would formerly furnish information from
their records on hotel guests and gambling customers during
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
routine investigations, now require a subpoena before they
will release any information to the FBI. The reason given
by hotel officials is for hotel protection, in the event of
a lawsuit following an FOIPA release to these subjects of
investigation.
5. INSURANCE COMPANIES
Information.submitted to Medicare through an
insurance company, which would show Medicare fraud perpetrated
by the staff of a hospital, was withheld by the company,
citing the PA. It was necessary to obtain a Federal Grand
Jury subpoena for the desired information.
In the field of arson investigations, major
insurance companies and the Fire Marshal Reporting Service
have stated they will provide no information to Federal law
enforcement agencies except under subpoena. They advise
their legal departments believe this position is necessary
for protection against civil suit, in the event of an FOIPA
disclosure.
In a Racketeer Influenced and Corrupt Organizations
investigation involving numerous subjects in an arson-for-
profit scheme in which insurance companies are defrauded
after the insured property is burned, at least 15 insurance
companies, numerous insurance claims adjusting firms, and
insurance agents have refused or have been most reluctant
to furnish files regarding losses and coverage because of
the universal fear that the information furnished could be
obtained by the insured in an FOIPA disclosure which the
insured might use against the insurance company or firm in a
civil suit. FBI recourse has been the obtaining of Federal
Grand Jury subpoenas to obtain the desired information,
which in every instance caused delay in the investigation.
Many of these firms cited widespread news publicity resulting
from FOIPA disclosures as cause for their total lack of
confidence in the FBI maintaining any information confidential.
6. LEGAL PROFESSION
On May 5, 1977, a nationally known U. S. District
Court judge refused to be interviewed on an applicant matter
because he wanted any information furnished about the
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
applicant to remain confidential. It was the judge's
opinion the FBI could not prevent disclosure of this
information at.a later date to the applicant under the PA.
In response to an FBI inquiry concerning an
applicant, a former Assistant United States Attorney (AUSA)
confided that significant information, meaningful and
derogatory, would not be forthcoming concerning the
applicant because of the FOIPA. When pressed by the FBI
Agents upon this point, the former AUSA stated that he
would counsel his clients not to furnish the FBI with
derogatory information in applicant-suitability matters.
During an investigation in March, 1978, by a mid-
western FBI office, private attorneys were interviewed
concerning the qualifications of a candidate for a Government
position. These private attorneys initially declined to
furnish derogatory information in their possession concerning
the candidate, in view of the provisions of the PA. They did
furnish pertinent information on a promise of confidentiality,
and it is unknown what information they withheld due to fear
of the effect of the PA.
A Federal district judge was interviewed in a
background investigation concerning a departmental applicant.
The judge stated he did not feel that the FBI could provide
confidentiality concerning his statements. He declined to
furnish'candid comments concerning the applicant and stated
he did not wish to be interviewed concerning any FBI
applicant investigations in the future.
A prominent attorney was contacted concerning an
applicant. He indicated he was in a position to furnish
uncomplimentary information concerning the applicant, but
advised the interviewing Agent that due to the FOIPA he
would not do so. Thereupon, he furnished a brief, neutral
commentary.
In connection with a suitability investigation
concerning a nominee for U. S. district judge, two attorneys
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
contacted in July, 1976, expressed-extreme reluctance to
furnish their true opinion regarding the qualifications
of the candidate. They indicated they were fearful that,
should the candidate be appointed to a judgeship and later
learn of their statements, he would find a way to punish
them professionally through his position. The attorneys
eventually provided their comments after receiving an
express promise of confidentiality; however, there is no
assurance that they were as candid as they might,have been.
In a recent background investigation conducted
pertaining to a Federal judgeship, one attorney contacted
advised he had derogatory information concerning the judicial
candidate. However, he declined to furnish this information
to the FBI stating he felt the information would eventually
be disclosed to the applicant under the PA. He felt that,
if this disclosure ever occurred, he would be unable to
practice before the applicant's court.
7. NEWSPAPERS
In a Corruption of Public officials case,
consideration was being given for change of venue to another
city. The local FBI office was requested to review newspaper
clipping files to determine the amount of publicity the cor-
ruption matter had received. On April 10, 1978, a newspaper,
editor advised that, in light of the FOIPA, no information
from newspaper clipping files would be made available to
the FBI except upon service of a subpoena.
8. POLITICIANS
Recently in a southern state, the state chairman
on one of the state's two major political parties was
interviewed regarding a presidential appointment. This
individual was advised of the provisions of the PA at the
outset of the interview and requested confidentiality. He
made one or two statements of a derogatory nature and then
requested that these statements be disregarded. He advised
that, although he was aware his identity could be protected
under the PA, he was not confident this protection would be
effective. After the above statement, the interviewee would
provide only a general statement regarding the appointee's
honesty and terminated the interview.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
In a southwestern state, a highly placed political
figure offered to furnish information to the FBI concerning
a multimillion dollar act of political corruption. The
information was never received because the Agent could not
guarantee that his identity would not later be inadvertently
disclosed through sophisticated querries sent to the FBI
through the FOIA. This source feared that the adversary in
this matter could collect pieces of information from the FBI
through the FOIA, then assemble the information, possibly
using a computer and identify the source.
During the course of a public corruption investi-
gation, the interviewing Agent in a southern office detected
reluctance of witness police officers to provide complete
information, subsequent to?a discussion of the FOIPA. It
was the opinion of the interviewing Agent this reluctance was
based on apprehension by the police officers this information
could be made available to the subject,_a trial judge before
whom the police officers frequently appeared.
9. PRIVATE COMPANIES
During a routine investigation, a Special Agent
sought the cooperation of a company personnel manager to
determine the subject employee's residence from company
records. Citing the restrictions of the PA, the personnel
manager would neither confirm the subject's employment with
his company nor provide any background information.
During a recent national security investigation
involving a possible Foreign Agents Registration Act
violation, a lead was set out to interview the owner of an
electronics firm regarding the purchase of loudspeakers and
other electronics used by foreign nationals in a public
demonstration. The owner of the electronics firm refused to
disclose this information unless a subpoena was issued,
stating he feared the customers who rented his equipment
might learn of his cooperation, under the FOIPA, and bring a
civil action against the electronics firm for breach of
confidentiality.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
In connection with bank fraud matters being
investigated in a certain city, an auto dealer refused to
furnish time cards of employees because he would violate
the PA.
Because of the FOIPA, the policy of an oil
company limits the type and amount of information that the
company will provide to the FBI regarding an applicant for
employment. The personnel clerk for that company advised
that, even when an applicant has executed a waiver form,
the only information the company will furnish regarding the
applicant's employment is as follows: verification of
employment, dates of employment, position and salary.
During the course of an investigation, Agents
sought to review employment records at a department store
and were advised that employment records were no longer
available because of the PA. Agents also attempted to
secure information concerning the subject from two other
stores and were advised that this information was not
available without a court subpoena.
In an investigative matter regarding an electronics
company, a former employee of the company, who was a principal
witness, became fearful that he would be sued by the subjects
of the investigation and the company if he provided infor-
mation to the FBI. He was reluctant because he believed this
information would be available through the FOIPA; if the
criminal allegation was not ultimately resolved in court, he
feared he would become civilly liable. On several occasions,
this witness asked what his civil liability would be and
expressed reluctance in providing information of value to the
investigating Agent.
Another investigative matter was based on infor-
mation furnished by businessmen in a small town. When they
initially furnished the information, these sources asked
that they not be called upon to testify. Being businessmen
in a small town, they expressed fear the information they
provided would be used against them and harm their businesses.
When these sources learned information which they furnished
., Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
might be obtained through the provisions of the FOIPA by
the investigation subjects, they stated they would not
furnish any further information to the FBI.
In a fugitive investigation, information was
developed that the subject was a former employee of an oil
company. When contacted, the oil company management declined
to furnish any background information from their personnel
files concerning subject's former employment. The stated
reason for not furnishing this information was concern for
possible future company liability should the fact of FBI
cooperation become known to the subject under the FOIPA.
10. PRIVATE LENDING COMPANIES
An Equal Credit Opportunity Act case involved a
limited investigation based on a Department of Justice
memorandum which directed that 14 former employees of a loan
company be identified and interviewed. Citing the PA, the
loan company's legal counsel declined to identify to the FBI
the 14 former employees. Instead, he had his current
employees make personal contact with these 14 individuals to
request their permission to release their names to the FBI.
This indirect process delayed the investigation for a one-
week period. The company was also asked to release loan
applications of certain individuals who had been granted
loans within the past 18 months. On the basis of the PA,
the loan company declined to release these financial
documents.
11. PUBLIC UTILITIES
During a recent security investigation, a lead was
set forth requesting utility checks to be made to obtain
information regarding certain individuals. Officials of
a utility were contacted and advised that checks of their
records would not be possible due to the provisions of the
PA.
A local security office of a telephone company
referred an illegal telephone call case to an FBI resident
agency. However, the company refused to furnish any data
concerning the principals involved in the violation without
a subpoena for telephone company records.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
In a fugitive investigation, an FBI office was
given reliable information concerning the nonpublished
telephone number of the fugitive's location on the
Christmas holiday. The FBI holiday supervisor tried in
vain to obtain the location of the number from various
officials at the telephone company and the fugitive was
not apprehended. The company insisted a subpoena was
needed, based on FOIPA considerations, before this type
of information could be released to the FBI.
12. QUASI-LAW ENFORCEMENT
The disciplinary board of a state supreme court
advised that, because of FOIPA considerations, all requests
for information by the FBI must be in letter form and a
release authorization signed by the applicant must be
enclosed with the request letter. It was intimated that a
written request might not elicit all information if the
disclosure could cause difficulties for the board.
An association will no longer provide any infor-
mation to law enforcement agencies or investigators unless
served with a subpoena. This association has in the past
assisted the FBI in coverage of aspects of the racing
industry. The association has advised its current
restrictive policy is the direct result of FOIPA legislation.
13. TRAVELER'S AID
A kidnapping case involved a 65-year-old victim
who had been brutally beaten, stabbed and left for dead in
a rural area of one state. The victim could only provide nick-
names for the kidnappers. Investigation revealed that the
subjects had attempted to gain transportation from the
Traveler's Aid Society. The Society, after being advised of
the urgency of the matter, nevertheless refused to supply
information on December 20, 1977, from records which would
identify one of the subjects and possibly reveal the where-
abouts of both subjects. This information was subsequently
obtained the next day by subpoena duces tecum and teletyped
to an FBI office within a few hours after receipt. Both .
subjects were arrested in another state on December 26, 1977.
However, a few hours prior to the arrest, one subject shot
and killed an individual in that other state.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
14. UNIONS
On alleged privacy grounds, an international
union will no longer provide information to law enforce-
ment agencies unless served with a subpoena.
During the course of a Racketeer Influenced
Corrupt Organizations case involving certain union members
and company officials, the investigating Agent contacted
nonunion employees concerning alleged harassment by union
members and the firing of several rifle shots at nonunion
members. A prospective witness to a particular incident
declined to furnish any information to the FBI, on FOIPA
grounds, stating that, "the Government just can't keep a
secret anymore."
In a similar FBI case, a labor union official
refused to furnish information to the FBI. He claimed
he would have no confidence in the security of his
information in view of the ability of individuals to
obtain their files under the FOIPA.
15. WESTERN UNION
During the course of an investigation to locate
and apprehend a fugitive, a Special Agent and a cooperating
witness attempted to obtain information from a Western
Union office, concerning a telegraph money order and message
sent to the cooperating witness from the subject. Employees
at the Western Union Company advised they could not disclose
any information regarding the money order or message, due to
"privacy concerns," without a court order.
16. MISCELLANEOUS
In an investigation regarding an escaped Federal
prisoner, a man telephoned an FBI office and advised he
knew the location of the fugitive. The caller stated he
was concerned that the fugitive would find and kill him
if he furnished the FBI the information. The caller was
given assurances that his identity and any information
he gave would be considered confidential. The caller
refused to give his name, specifically stating, "I know
about the FOIA. Anything I tell you guys will get back
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
to him." When asked the location of the fugitive, the
caller stated he was in a motel on a certain street and
then hung up the phone. After contacting numerous motels
on that street, the fugitive was located and apprehended.
In a bank robbery investigation a high school
student was identified as a suspect. When officials at
the high school were approached in an attempt to obtain
necessary information concerning the suspect (descriptive
data, address, whereabouts, etc.), the officials declined
to furnish the information due to the FOIPA. After the
loss of precious time, the school principal was finally
convinced that the student posed a threat to the community,
in view of the fact he was armed and probably desperate.
He eventually provided the information and the student was
arrested.
During the course of another bank robbery
investigation a warrant was obtained for a female subject.
The investigation determined the subject had applied for a
job through the state unemployment office. That office
refused to provide any information, advising it was protected
by state and Federal privacy acts. It was necessary to
obtain a subpoena to force the unemployment office to disclose
the requested information. During the period of time between
the service of the subpoena and its return, the subject
committed another bank robbery. The FBI believes that if the
information had been disclosed at an earlier time, the second
bank robbery would not have occurred, as the subject would
have been arrested more promptly.
One FBI office received information from an AUSA
indicating a woman had information concerning ghost employees
and other frauds within the Comprehensive Employment and
Training Act (CETA) program. When contacted, the woman
refused to be interviewed because she feared that her
identity might be disclosed through an FOIPA request.
Two individuals in a position to furnish important
information regarding a series of train wrecks refused to do
so because they feared the FOIA would force the FBI to reveal
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
their identities. This attitude existed even after
assurances were given by the Agents regarding the FOIA.
D. IMPACT ON CURRENT INFORMANTS OR POTENTIAL INFORMANTS
RESULTING FROM PRESENT FOIPA DISCLOSURE POLICIES
Three individuals were separately contacted in
an effort to obtain their cooperation in organized crime
matters. Each of these individuals advised the contacting
Agent they felt their confidentiality could not be main-
tained due to current FOIA legislation. It is believed
these individuals would have been cooperative had they not
feared the FOIA and they would have been valuable FBI
informants. Because of the wide publicity which the FOIA
has received, these individuals were well aware of the
public's ability to gain access to information in FBI files.
Shortly after a skyjacking began, an unidentified
caller stated to a Special Agent that he was a medical
doctor and that the skyjacker was probably identical to an
individual who was an outpatient at the psychiatric clinic
where the caller was employed. He stated the individual
was schizophrenic and was dangerous to himself and to other
persons. The caller suggested that a psychiatrist should
be available during all negotiations with the skyjacker.
The caller's identity was requested since he was obviously
knowledgeable concerning the skyjacker and could furnish
possible valuable information in an attempt to have the
skyjacker peacefully surrender. Despite the fact that
several lives were in jeopardy, the caller stressed that he
was unable to furnish his name because of FOIPA requirements
and terminated the call. Because of this telephone call,
the FBI did have a psychiatrist available during negotiations
with the skyjacker (who had been correctly identified by the
caller) and the skyjacker's surrender was accomplished
without loss of lives or property.
For approximately three years, a telephone caller
known to the FBI Agent only by a code name furnished infor-
mation in a wide variety of cases, from drug-related matters
to terrorism. The caller never identified himself and
advised he,could never testify since to do so would risk
death. The caller finally terminated his relationship,
expressing fear that an inadvertent release of information
by the FBI, under the FOIA, might identify him.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
An individual in a position to know information
about an FBI subject stated to a Special Agent that she
would not furnish any information lest it and her identity
appear in the newspapers. She made reference to infor-
mation which was being published in the press as a result
of an FOIPA request.
An Agent was recently in contact with an individual
believed capable of providing reliable direct and indirect
information regarding high-level political corruption. This
individual advised his information would be furnished only if
the contacting Special Agent could guarantee that the
individual's identity would never be set forth in any FBI
files. The contacting Agent attributed this individual's
reluctance to have his identity set forth in FBI files to a
fear of the FOIPA and its effect on the FBI's ability to
maintain confidentiality of information from informants.
In August, 1976, an FBI field office contacted a
source to determine why he was not now providing the FBI with
information as he had been in the past. This source replied
that he was in fear of losing his job and of retaliation by
individuals about whom he might furnish information. The
source asked if the FBI could guarantee the confidentiality
of his relationship and of the information he furnished. He
stated he was particularly concerned about confidentiality in
light of the FOIA. In view of his apprehensions, this
individual is no longer being contacted by the FBI.
A particular organized crime case involved an
investigation to identify male juveniles being transported
interstate for homosexual activity. Due to fear of
reprisals stemming from FOIA disclosures and PA problems,
various school officials would not cooperate in the
investigation to verify the identity of the juveniles. In
the same case, prominent citizens in a community displayed
reluctant cooperation with the FBI out of fear of FOIA
disclosure.
A potential source advised he would not cooperate
with the FBI due to fear his identity would be publicly
revealed, which would be detrimental to his profession.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
This potential source referred to news accounts in the
local press regarding material made available under the
FOIA, which had disclosed the names of several individuals
in professional capacities who had assisted the FBI and
the nature of their assistance. This type of publicity,
according to the potential source, would be detrimental to
any individual in business who elected to cooperate with
the FBI.
A Special Agent advised that an individual in
a high management position in a state agency wished to
provide information to the FBI on a confidential basis.
During one of the Agent's initial conversations with this
source, confidentiality was requested, specifically that
the source's name never be mentioned in FBI files due to
"past legislation, FOIPA, etc." This person was in a
position to furnish information concerning white-collar
crime and political corruption; however, the potential
source subsequently refused to cooperate with the FBI, in
spite of the Agent's assurances.
An FBI office has had success in developing a
number of valuable informants from a group of loanshark
victims. Recently, upon interview, several of these
individuals stated a desire to cooperate, but have refused
to do so for fear of the subjects of the investigation
learning their identities through an FOIPA release.
A criminal informant, who furnished very
significant information in an automobile theft ring case,
advised he feared for his life after reading in various
newspapers of disclosures made under the FOIPA. As a
result, this source will no longer furnish information
which is singular in nature.
Several attempts have been made to reactivate a
former source, who had been extremely cooperative and
productive. Current attempts to persuade the source to
once again aid the FBI have been negative. The former
informant refuses to cooperate, as he believes his identity
cannot be kept secure due to FOIPA disclosure policy.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
An informant was recently closed inasmuch as the
source advised he believed the FBI could not efficiently
protect the confidentiality of his relationship and his
identity, due to the FOIPA. This source has previously
provided excellent information regarding gambling and
organized crime. He stated that he is afraid, if his name
ever surfaced as providing information to the FBI, he would
lose his business and everything he has worked for in his
life.
In 1976, an active informant stated he would no
longer continue in that capacity because it was his belief,
as a result of the FOIPA, his identity and confidentiality
could no longer be protected.
In an Interstate Transportation In Aid of
Racketeering investigation, an individual was successfully
developed as a potential source of information concerning
racketeering and political corruption. However, upon
learning of the provisions of the FOIPA, this individual
requested that his conversations not be recorded and refused
further cooperation.
Another field office informant related a conver-
sation which occurred between himself and several organized
crime figures. One individual commented that within the
next few years the FBI will be severely restricted in its
efforts to obtain information from confidential sources.
He stated that he fully expected the-provisions of the
FOIPA would be successfully utilized in identifying FBI
informants. Agents subsequently contacting this valuable
source have noted a subtle reluctance on his part to more
fully penetrate the particular organized crime activities
which he is in a position to cover.
An FBI office in a major city has received infor-
mation from several reliable informants that most organized
crime members in the area have been instructed to write to
FBI Headquarters requesting file information pertaining to
themselves. These informants have advised the sole purpose
of this process is to attempt to identify informants who
have supplied information to the FBI on organized crime
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
matters. Requests have been submitted by virtually every
organized crime figure in the area.
An informant who has a great deal of knowledge
concerning a violent group is reluctant to furnish infor-
mation on the gang because of the FOIPA. He has considerably
reduced the amount of information he furnishes to the FBI.
An informant who has furnished considerable
information concerning a terrorist organization advised that
he is very upset about the FOIA. He has learned through
conversations that former and current extremists are writing
to FBI Headquarters under the FOIA in an effort to identify
and expose informants. The informant indicated he is
apprehensive about the Bureau's ability to properly safe-
guard information furnished by him.
A long-time confidential informant stated, "I
can't help you any more due to the Freedom of Information
Act." This informant had previously furnished valuable
information which led to arrests and recovery of Government
property. Even though the promise of confidentiality was
explained to the informant, he still refused to furnish
further information.
A former informant regularly furnished information
resulting in recovery of large amounts of stolen Government
property and the arrest and conviction of several subjects.
In a pending case, the former informant refused to cooperate
because of his fear of the FOIPA, which he felt would in
fact jeopardize his life should he continue cooperating with
the FBI.
In January, 1978, an office of the FBI received
information one prime bombing suspect was applying under the
FOIA for his file. Sources close to the suspect advised
he was seeking to discover the FBI's knowledge of his
activities and the identities of Agents who were investigating
him.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
In a western field office, a former highly
productive confidential informant advised that he did not
feel secure, due to widespread publicity concerning FBI
informants and the FOIA legislation. He stated that,
although he continued to maintain his confidentiality
regarding his relationship with the FBI, he was not sure
that the FBI could do the same. Due to this source's
feelings, he discontinued all contact with the FBI.
An informant furnished information concerning
organized crime figures and on organized crime conditions.
Subsequently, the source acquired the conviction that no
guarantee could be given that his identity would be
protected. Accordingly, the source declined to furnish
any further information to the FBI.
The Drug Enforcement Administration (DEA) was
advised that an informant of one FBI office might be in a
position to provide timely information concerning large
narcotics shipments, in exchange for a reward from DEA and
the guarantee of confidentiality. A local representative
of DEA responded that confidentiality could be guaranteed
by DEA only in instances where the informant was operated
by DEA as a source. DEA reward money could be paid to any
individual supplying information; however, the true
identity of an FBI source would be reflected in DEA records
for such payment. The FBI source was advised of the results
of the inquiry with the DEA. The source subsequently
furnished the identities of the drug subjects of which he
had knowledge. This information was disseminated to DEA.
However, the source declined to have further contact with
these subjects, for fear his identity would be made known
at some later date under an FOIA request to DEA.
An FBI informant is well connected to the
organized crime element. Over the past year the informant's
productivity has dramatically decreased. Consequently, this
decrease was discussed with the informant, who stated that
he had begun to doubt the FBI's ability to protect the
contents of its own files and information provided by its
informants. He had learned that an organized crime figure
had received over 300 pages of FBI documents and was
unquestionably trying to identify informants.
Approved For Release 2011/09/26: CIA-RDP04MO1816ROO0100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
138
The criminal informant coordinator of a northeast
office has been told by an individual, who would potentially
be an excellent source of criminal information on the water-
front, that even though he had cooperated with law enforce-
ment personnel in the past he would never do so again. He
stated that he was afraid that one day, as the result of
FOIPA, he might "see his name in the newspaper."
An informant who has been furnishing information
to Special Agents of the FBI since 1953, regarding gambling,
prostitution, stolen goods, and criminal intelligence
information, when last contacted by an Agent, indicated he
would no longer furnish any information to the FBI due to the
fact it could be disclosed under the FOIPA. The informant
felt his personal safety could be jeopardized by the
disclosure of his identity, and he no longer wanted to take
the personal risk and provide information regarding criminal
activities.
An organized crime informant has expressed great
concern over his safety due to the recent disclosure of
information released under the FOIPA. A Special Agent has
advised that he believes the informant will terminate his
relationship with the FBI because of his concern.
A confidential source stated he was fearful his
name would become known to certain individuals. He cited
their possible access through FOIPA requests to the infor-
mation he has provided. The source became unproductive and
contact with him was discontinued.
A confidential source advised that "general street
talk" was that one should not provide information to the
Government since this information would eventually be
publicized as a result of the FOIPA.
A long-time informant announced that he felt his
confidentiality could no longer be guaranteed and refused
to furnish further information. Provisions of the FOIPA
were explained to the informant, particularly relating to
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
disclosure of informants and informants' information;
however, this informant still wishes to sever contacts with
the FBI.
Agents recently contacted a former criminal
informant who associated with several individuals currently
under investigation. The source, who displayed knowledge
of the FOIA, expressed extreme concern of the disclosure
provisions. The two Agents spent approximately one-half
hour discussing this with the source. Both Agents were of
the opinion that the FOIA prevented them from obtaining
details of value.
An asset advised that, while talking with an
individual who is a known intelligence officer of a foreign
country, he was advised that certain officials of that
country were using the FOIA law to obtain information from
the files of the FBI and other agencies through intermedi-
aries. The official expressed some humor over the fact that
such information is available.
An individual, who is in a position to furnish
possible foreign counterintelligence information, expressed
the opinion the Federal Government could not protect his
identity in view of the constant scrutiny by Congress of the
FBI and CIA and the subsequent news media leaks. This
individual also stated he would be fearful that his identity
would be revealed through access to records by the public
under the FOIA, as well as extensive civil discovery
proceedings exemplified by the Socialist Workers Party civil
lawsuit. In addition, this individual expressed concern over
former intelligence agency officers who were publishing
books, possibly jeopardizing the confidentiality of sources.
In another FBI security investigation, an individual
was located who was in a unique position to act as an
operational asset in foreign counterintelligence activities.
While willing to assist the U. S. Government for patriotic
reasons, this individual felt his identity might be revealed
under the FOIPA. He therefore felt compelled to report a
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
pending highly sensitive undercover operation concerning
national security to his employment supervisors, thereby
jeopardizing that most sensitive operation.
An informant expressed deep concern over security
and possible disclosure of his relationship with the FBI,
noting recent instances in which FBI sources had been
identified in the press. The informant, who had provided
critical information for many years in matters of the
highest sensitivity, requested that his relationship with
the FBI be terminated and that his name be deleted from
the FBI records.
One informant is a well-known and highly respected
individual with many dealings with certain foreign countries.
The informant has repeatedly voiced concern over possible
disclosure of his identity through the FOIA. The source
has now requested that all contacts be minimized in frequency
and duration, that all information furnished be paraphrased,
that his real or code names never be used, and that access
to his information be severely restricted within the FBI.
It has become apparent also, that while the informant's
dealings with certain foreigners are known to have increased,
the frequency of his FBI contacts, the length of these
contacts, and the amount of substantive information
furnished have declined.
A former source of excellent quality was
recontacted, since his background was such that he could
develop information of value concerning a terrorist group.
After three hours of conversation, the former source agreed
to cooperate with the FBI but only in a very limited manner.
He stated that due to the FOIA he no longer believes that
FBI Agents can assure his complete protection. He made it
clear that he will never again function as he had previously
in behalf of the FBI, noting that disclosure of his
identity would most assuredly cost him his life.
An individual who has requested his identity be
protected and who has provided information pertinent to a
suspected foreign government intelligence officer, has
also expressed concern pertinent to revelation of his
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
identity as furnishing information to the FBI. This
individual querried the Special Agent involved in the
investigation as to whether his identity could be protected
and stated that he was concerned because of future business
dealings with certain foreign countries. He felt that should
his identity become known to foreign government officials,
it would cause damage to his business relationships.
Because of the above, this individual stated that he did
not wish to be contacted on a regular basis by the FBI.
In September, 1977, a former Special Agent advised
an FBI Agent that an informant had contacted him upon
learning that an FBI subject had obtained documents under
the FOIPA. The informant expressed the fear that his
identity as a confidential source against this subject
would be revealed. This subject was trying to identify
individuals who had provided information to the FBI
concerning his activities.
In a western FBI office, an individual was
contacted in a recent foreign counterintelligence
investigation, as he was in a position to furnish valuable
information on a continuing basis regarding the subject.
Although this potential source displayed an otherwise
cooperative attitude, he stated he would not furnish
information for fear his identity might be revealed at
some future date due to provisions of the FOIA.
Members of an organization dedicated to bringing
about a movement based on Marxism-Leninism, recently dis-
cussed the FOIA. A decision was reached to direct inquiries
to both the FBI and the CIA under provisions of the FOIA
requesting information concerning the organization. It
was anticipated that a comparison of information concerning
individuals, including dates, times and activities, would
identify informants in the organization.
In 1976, a most valuable and productive FBI
informant ceased his activity in behalf of the Bureau. His
reason for this decision was his concern over the FOIA,
which he believed offered the distinct possibility of
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
disclosing his identity as an informant. This source
provided coverage on two major subversive- and/or
violence-oriented groups of investigative interest.
Recently an informant, who is furnishing
information regarding certain foreign visitors to the
United States, expressed great concern over the possibility
of his identity being disclosed. The source stated that he
recently read in a local newspaper that foreign visitors
could gain access to FBI records through the FOIPA.
A businessman was being approached by an
intelligence officer of a foreign government. Upon interview
by the FBI, the asset stated that were it not for the FOIPA,
he would be willing to be operated against this and other
hostile intelligence officers. However, because of FOIPA,
he felt a real danger that his identity would be divulged
which would in turn seriously and detrimentally effect his
business overseas. For this reason, asset has refused to
become involved in a foreign counterintelligence operation.
Since the advent of the FOIPA, numerous documents
containing information furnished by an FBI asset of long-
standing have been released under provisions of these laws.
These releases have had a deleterious effect upon an asset's
relationship with the FBI. There has been a noticeable
decrease in the volume of information furnished by the asset,
who has been frank to state that he no longer has his former
confidence that the FBI can maintain the confidentiality of
his relationship. On numerous occasions, the asset has
expressed reluctance to furnish information which he fears
might be released under the FOIA, resulting in his physical
jeopardy or leaving him open to civil suit. This asset has
not yet terminated his relationship with the FBI, but the
relationship is now a very tenuous one.
A source who previously furnished information on
a timely basis relating to foreign terrorist activities has
expressed reluctance to furnish additional information
because of the possibility of his identity being exposed due
to the FOIPA.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
A southwestern confidential source, who is in
a position to furnish information concerning Middle
East terrorist matters, advised that he did not desire to
continue contact with any representative of the FBI or to
furnish information because of fears that his assistance
might become known. The source stated that his concern
was due to various media articles relating to actual or
potential FOIPA disclosure of information furnished
confidentially to law enforcement agencies.
An informant of one FBI office has expressed
concern that individuals about whom he was providing
information were requesting their FBI files under the
FOIPA. This informant expressed fear for his personal
safety and that of his family. This source had in the past
provided reliable and corroborating information about
individuals who have been convicted of Federal crimes.
There has been a recent reduction in amount and quality of
the source's information.
On several occasions in the recent past, an
informant voiced his concern for his safety out of fear
that his identity would in the future be revealed under the
FOIPA. He stated that when he began assisting the FBI it
was his understanding that his identity and the information
he furnished would always remain confidential.
E. MISCELLANEOUS (OTHER RELEVANT EXAMPLES)
1. SUITABILITY INVESTIGATIONS
In an applicant investigation, an official of a
police department refused to be candid in his remarks
pertaining to the applicant in view of the-FOIPA.
In a recent applicant case, a source expressed
concern less he be identified as the provider of derogatory
information. He clearly indicated he was aware that the
applicant would have access to this information through the
PA. Other officers interviewed simply refused to be candid
regarding the applicant, due to their awareness that the
information might be released to him.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
In a suitability investigation, a local police
department refused to make a record check on the applicant's
brother without a waiver from the brother, because it was
believed there was a possible PA violation.
Special Agents have recently observed a general
reluctance by local law enforcement officers to furnish
derogatory hearsay information in suitability investigations.
Members of the law enforcement community have been apprised
of the access and disclosure provisions of the FOIPA.
A former high official of one city was being
considered for a White House staff position. An individual
in that municipality refused to comment since he believed
the candidate would be able to obtain this information
through the PA. The official, who was aware of the Act's
provisions, stated he still believed someone in the White
House would have access to comments made.
During a 1978 Special Inquiry investigation in
one city, the interviewee advised he was a business competitor
acquainted with the appointee. He inquired as to what degree
of confidentiality could be provided if he furnished infor-
mation regarding the appointee. The PA provisions were
explained to the interviewee. This was not a sufficient
degree of confidentiality and he would have nothing to say
about the appointee.
During the same investigation, a police officer
advised he had derogatory background information concerning
the appointee. He said he did not want to "go on record"
with the FBI concerning this information in view of the PA.
He stated that he considered the information so pertinent
that it required his direct contact with the Congressional
Committee, which had requested the investigation. After
receiving the officer's information, the Committee requested
the FBI to discontinue the suitability investigation.
2. LAWSUITS
A $600,000 civil suit was filed by a Honolulu
plaintiff against a neighbor regarding derogatory information
provided the FBI approximately 20 years ago concerning the
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
plaintiff in a suitability investigation. The FOIPA request
made by the plaintiff allegedly had enabled her to identify
the defendant as the source of the derogatory information,
which she claimed in her lawsuit was defamatory. The civil
action required the defendant to retain private counsel at
great personal expense and resulted in personal trauma.
The defendant's retained counsel was successful in obtaining
dismissal of the suit on the technical defense of "Statute
of Limitations." The primary issue of whether or not a
person could sue an individual who had provided information
to the FBI was not addressed.
In early 1978, an employer contacted one FBI
office concerning certain derogatory information furnished
in 1967, on an employee who was then seeking a position with
the White House staff. This individual, who has subsequently
made a PA request to the FBI, determined that the former
employer had provided derogatory information concerning her,
and threatened to sue the employer if correction of this
information was not forwarded to the FBI. The employer's
written retraction of the previous information was
subsequently submitted to the FBI.
An unsuccessful applicant for the position of
Federal Bankruptcy judge obtained his file under the FOIPA.
He subsequently decided that several former employers and
law partners had furnished derogatory information to the
FBI concerning him. He filed civil suit against these former
employers and law partners and also filed an FOIPA civil suit
against the FBI.
A subject found guilty in a criminal case,
subsequently filed a civil action against witnesses who
testified against him in that matter. He made several
FOIPA requests to discover the identities of additional
witnesses whom he may join in his civil suit.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
146
THE PROPOSED
FREEDOM OF INFORMATION ACT
If our proposals are enacted, the Freedom of Information Act
will read as follows:
552. Public information; agency rules, opinions, orders,
records, and proceedings
(a) Each agency shall make available to the public
information as follows:
(1) Each agency shall separately state and currently
publish in the Federal Register for the guidance of the
public --
(A) descriptions of its central and field organiza-
tion and the established places at which, the employees
(and in the case of a uniformed service, the members)
from whom, and the methods whereby, the public may obtain
information, make submittals or requests, or obtain
decisions;
(B) statements of the general course and method
by which its functions are channeled and determined,
including the nature and requirements of all formal
and informal procedures available;
(C) rules of procedure, descriptions of forms
available or the places at which forms may be obtained,
and instructions as to the scope and contents of all
papers, reports, or examinations;
(D) substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability
formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the
foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter rea-
sonably available to the class of persons affected thereby
is deemed published in the Federal Register when incorporated
by reference therein with the approval of the Director of the
Federal Register.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(2) Each agency, in accordance with published rules,
shall make available for public inspection and copying--
(A) final opinions, including concurring and
dissenting opinions, as well as orders, made in the
adjudication of cases;
(B) those statements of policy and interpretations
which have been adopted by the agency and are not pub-
lished in the Federal Register; and
(C) administrative staff manuals and instructions
to staff that affect a member of the public;
unless the materials are promptly published and copies offered
for sale. To the extent required to prevent a clearly unwar-
ranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an
opinion, statement of policy, interpretation, or staff manual
or instruction. However, in each case the justification for
the deletion shall be explained fully in writing. Each agency
shall also maintain and make available for public inspection
and copying current indexes providing identifying information
for the public as to any matter issued, adopted, or promulgated
after July 4, 1967, and required by this paragraph to be made
available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or
otherwise) copies of each index or supplements thereto unless
it determines by order published in the Federal Register that
the publication would be unnecessary and impracticable, in
which case the agency shall nonetheless provide copies of such
index on request at a cost not to exceed the direct cost of
duplication. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects
a member of the public may be relied on, used, or cited as
precedent by an agency against a party other than an agency
only if--
(i) it has been indexed and either made
available or published as provided by this para-
graph; or
(ii) the party has actual and timely notice
of the terms thereof.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(3) Except with respect to the records made
available under paragraphs (1) and (2) of this subsec-
tion, each agency, upon any request for records which
(A) reasonably describes such records and (B) 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 any
person. This section does not require a law enforce-
ment or intelligence a enc to disclose information
an person convicted of a felony under the laws
of thie united States or of any state, or to an person
acting on behalf of any felon excluded from this
section.
(4)(A) In order to carry out the provisions of
this section, each agency shall promulgate regulations,
pursuant to notice and receipt of public comment,
specifying a uniform schedule of fees applicable to all
constitutent units of such agency. Such fees shall be
limited to reasonable standard charges for document
search and duplication and provide for recovery of only
the direct costs of such search and duplication. Docu-
ments 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 general public.
(B) On complaint, 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
complainant. In such a case the court shall determine
the matter de novo, and may examine the contents of
such agency records in camera to determine whether
such records or any part thereof shall be withheld
under any of the exemptions set forth in subsection
(b) of this section, and the burden is on the agency
to sustain its action; but if the court examines the
contents of a law enforcement or intelligence agency's
records withheld the agency u! !der exem tions 1
TETTJT, the introductor clause o exemption 7
or exemption (b) 7)(D the examination shall Se
in camera. The court shall maintain under
affidavit submitted a law enforcement or intelli-
gence agency to the court in camera.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(C) Notwithstanding any other provision of law,
the defendant shall serve an answer or otherwise plead
to any complaint made under this subsection within
thirty days after service upon the defendant of the
pleading in which such complaint is made, unless the
court otherwise directs for good cause shown.
(D) Except as to cases the court considers of
greater importance, proceedings before the district
court, as authorized by this subsection, and appeals
therefrom, take precedence on the docket over all
cases and shall be assigned for hearing and trial or for
argument at the earliest practicable date and expedited
in every way.
(E) The court may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in
which the complainant has substantially prevailed.
(F) whenever the court orders the production of
any agency records improperly withheld from the com-
plainant and assesses against the United States reason-
able attorney fees and other litigation costs, and the
court additionally issues a written finding that the
circumstances surrounding the withholding raise ques-
tions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the
Civil Service Commission shall promptly initiate a
proceeding to determine whether disciplinary action
is warranted against the officer or employee who was
primarily responsible for the withholding. The
Commission, after investigation and consideration of
the evidence submitted, shall submit its findings
and recommendations to the administrative authority of
the agency concerned and shall send copies of the
findings and recommendations to the officer or employee
or his representative. The administrative authority shall
take the corrective action that the Commission recommends.
(G) In the event of noncompliance with the order
of the court, the district court may punish for con-
tempt the responsible employee, and in the case of a
uniformed service, the responsible member.
(5) Each agency having more than one member shall main-
tain and make available for public inspection a record of the
final votes of each member in every agency proceeding.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(6)(A) Each agency, upon any request for records made
under paragraphs (1), (2), or (3) of this subsection shall--
(i) notify the person making the request of the
receipt of the request and notify the person making
the request within 30 days after receipt of the
request
of the number o pages encompass e the request and
the time mts m se by this susectonuonte
agency for responding to the request; determine w ether
to comply with the request and notify the person making
the request of such determination and the reasons
therefor within 60 days from recei t of the request
(excepting Saturdays, Sundays 'an legal u is
holidays) if the request encom asses less than 200
a es o records with an additional 60 days (except-
ing Saturdays, Sundays an e a pu is holidays)
permitted for each additional 200 gages of records
encompassed A AL request, but all determinations
an not cations shall he made within one ear; and
notify the person making the request of the right
of such person to appeal to the head of the agency
any adverse determination; and
(ii) make a determination with respect to any
appeal within twenty days (excepting Saturdays, Sun-
days, and legal public holidays) after the receipt of
such appeal. If one appeal the denial of the request
for records is in whole or in part upheld, the agency
shall notify the person making such request of the
provisions for judicial review of that determination
under paragraph (4) of this subsection.
(B) In unusual circumstances as specified in this
subparagraph, the time limits prescribed in either
clause (i) or clause (ii) of subparagraph (A) may be
extended by written notice to the person making such
request setting forth the reasons for such extension
and the date on which a determination is expected to
be dispatched. No such notice shall specify a date
that would result in an extension for more than ten
working days. As used in this subparagraph, "unusual
circumstances" means, but only to the extent reason-
ably necessary to the proper processing of the
particular request--
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(i) 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 appro-
priately examine a voluminous amount of separate and
distinct records which are demanded in a single
request; or
(iii) the need for consultation, which shall be
conducted with all practicable speed, with another
agency having a substantial interest in the determina-
tion of the request or among two or more components
of the agency having substantial subject-matter
interest therein.
(C) Any person making a request to any agency for
records under paragraphs (1), (2), or (3) of this subsec-
tion 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
circumstances exist and that the agency is exercising
due diligence in attempting to respond to the request,
the court shall a ow the agency itional time to
complete its review of the records. Upon any determina-
tion by an agency to comply with a request for records,
the records shall be made promptly available to such
person making such request. 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.
(1)(A) specifically authorized under criteria
established by an Executive order to be kept secret
in the interest of national defense or foreign
policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel
rules and practices of an agency;
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(3) specifically exempted from disclosure by
statute (other than section 552b of this title),
provided that such statute (A) requires that the
matters be withheld from the public in such a
manner as to leave no discretion on the issue,
or (B) establishes particular criteria for with-
holding or refers to particular types of matters
to be withheld;
(4) trade secrets and commercial or financial
information obtained from a person and privileged
or confidential;
(5) inter-agency or intra-agency memorandums
or letters which would not be available by law to
a party other than an agency in litigation with
the agency;
(6) personnel and medical files and similar
files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy;
(7) records maintained, collected or used for
foreign intelligence, foreign counterinte gence,
or anized crime or terrorism ur oses; or records
maintains , co ecte or use or law enforcement
purposes, but only to the extent that the production
of such law enforcement records would (A) interfere
with enforcement proceedings,.(B) deprive a person
of a right to a fair trial or an impartial adjudica-
tion, (C) constitute an unwarranted invasion of
personal privacy or theorrivacta of a natural person
who has been decease ess n 25 years,
(D) tend to disclose the identity of a confidential
source, including a state or munici al a enc or
forei n government w is furnis a in ormation on a
confidential basis, and in the case of a record main-
tains collected or used by a criminal law enforcement
authority in the course of a criminal investigation,
or by an agency conducting a lawful national security
intelligence investigation, information furnished by
the confidential source including confidential infor-
mation furnished by a state or municipal agency or
forei n government, (E) disclose investigative
techniques an procedures or (F) endanger the life
or physical safety of any natural person;
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
PROVIDED however this section shall not require a law
en orcement or intelligence agency to
(i) make available any records maintained,
collected or used for law enforcement ur oses
which ertain to a law enforcement investigation
for seven years after termination of the investiga-
tion wit out prosecution or seven years after
rosecution; or
(ii) disclose an information which would
inter ere with an on oin criminal investigation
or foreign intelligence or foreign counterintelli-
gence activit if the head of the agency or in
The case of the Department o Justice, a component
thereof, certifies in writing to the Attorney
General, and the Attorney General determines, dis-
closing that information wou interfere with an
ongoing crimina investigation or foreign intelli-
gence or foreign counterintelligence activit' y;
(8) contained in or related to examination,
operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible
for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information
and data, including maps, concerning wells.
Any reasonably segregable portion of a record not already in
the public domain which contains information ertainin to
t o subject o a request shall a provided to any person
properly requesting such record after deletion of the por-
tions which are exempt under this subsection.
(c) This section does not authorize withholding of
information or limit the availability of records to the public,
except as specifically stated in this section. This section
is not authority to withhold information from Congress.
(d) On or before December 1 of each calendar year, each
agency shall submit a report covering the preceding fiscal
year to the Speaker of the House of Representatives and
President of the Senate for referral to the appropriate com-
mittees of the Congress. The report shall include--
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(1) the number of determinations made by
such agency not to comply with requests for records
made to such agency under subsection (a) and the
reasons for each such determination;
(2) the number of appeals made by persons
under subsection (a)(6), the result of such
appeals, and the reason for the action upon
each appeal that results in a denial of infor-
mation;
(3) the names and titles or positions of
each person responsible for the denial of
records requested under this section, and the
number of instances of participation for each;
(4) the results of each proceeding conducted
pursuant to subsection (a)(4)(F), including a
report of the disciplinary action taken against
the officer or employee who was primarily respons-
ible for improperly withholding records or an
explanation of why disciplinary action was not
taken;
(5) a copy of every rule made by such agency
regarding this section;
(6) a copy of the fee schedule and the total
amount of fees collected by the agency for making
records available under this section; and
(7) such other information as indicates efforts
to administer fully this section.
The Attorney General shall submit an annual report on or
before December 1 of each calendar year which shall include
for the prior fiscal year a listing of the number of cases
arising under this section, the exemption involved in each
case, the disposition of such case, and the cost, fees, and
penalties assessed under subsections (a)(4)(E), (F), and (G).
Such report shall also include a description of the efforts
undertaken by the Department of Justice to encourage agency
compliance with this section.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
155
(e) For the purpose of this section--
(1) the term "agency" as defined in section 551(1)
of this title includes any executive department, military
department, Government corporation, Government controlled
corporation, or other establishment in the executive
branch of the Government (including the Executive Office
of the President), or any independent regulatory agency;
(2) the term "erson"means a United States person
as de ine d by the Foreign Intelligence Surveillance Act
0 8;
(3) the term "foreign intelligence" means informa-
tion relating to the capabilities, intentions and
activities of foreign powers, organizations or persons;
(4) the term "forei n counterintelli ence" means
information qatff -- ere an activities conducted to protect
against espionage and other clandestine intelligence
activities, sabots a international terrorist activities
or assassinations conducted for or.on behalf of foreign
powers, organizations or persons;
(5) the term "terrorism" means an activit that
involves a violent act that is man erous to human IN
or risks serious odi v harm or that involves aggravated
property destruction for the purpose of.--
i intimidating-or coercing the civil popu-
lation or any segment thereof;
(ii) influencing or retaliating against the
licies or actions of the overnment o t he
Unite States or of an State or political subdi-
vision thereof or o any
forei n state, by
intimidation or coercion; or
liatn a ainst the
(iii) influencing or reta i
trade or economic policies or actins o a corpora-
Mon or other entity engaged in ores n commerce,
v intimi ation or coercion;
(6) the term "organized crime" means criminal
activity by two or more persons who are engage in a
continuing enterprise for t the purpose o obtaining
monetary or commercial gains or profits wholely or in
part through racketeering activity.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
156
TITLE 28
CODE OF
FEDERAL REGULATIONS
SECTION 50.8
Policy with regard to criteria for discretionary access
to investigatory records of historical interest.
(a) In response to the increased demand for access to
investigatory files of historical interest that were compiled
by the Department of Justice for law enforcement purposes
and are thus exempted from compulsory disclosure under the
Freedom of Information Act, the Department has decided to
modify to the extent hereinafter indicated its general prac-
tice regarding their discretionary release. Issuance of
this section and actions considered or taken pursuant hereto
are not to be deemed a waiver of the Government's position
that the materials in question are exempted under the Act.
By providing the exemptions in the Act, Congress conferred
upon agencies the option, at the discretion of the agency,
to grant or deny access to exempt materials unless prohibited
by other law. Possible releases that may be considered under
this section are at the sole discretion of the Attorney
General and of those persons to whom authority hereunder may
be delegated.
(b) Persons outside the Executive Branch engaged in
historical research projects will be accorded access to
information or material of historical interest contained
within the Department's investigatory files compiled for
law enforcement purposes that are more than fifteen years
old and are no longer substantially related to current inves-
tigative or law enforcement activities, subject to deletions
to the minimum extent deemed necessary to protect law enforce-
ment efficiency and the privacy, confidences, or other
legitimate interests of any person named or identified in
such files. Access may be requested pursuant to the Depart-
ment's regulations in 28 CFR Part 16A, as revised February 14,
1973, which set forth procedures and fees for processing such
requests.
(c) The deletions referred to above will generally be
as follows:
(1) Names or other identifying information as to infor-
mants;
(2) Names or other identifying information as to law
enforcement personnel, where the disclosure of such informa-
tion would jeopardize the safety of the employee or his
family, or would disclose information about an employee's
assignments that would impair his ability to work effectively;
(3) Unsubstantiated charges, defamatory material, matter
involving an unwarranted invasion of privacy, or other matter
which may be used adversely to affect private persons;
(4) Investigatory techniques and procedures; and
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(5) Information the release of which would deprive an
individual of a right to a fair trial or impartial adjudica-
tion, or would interfere with law enforcement functions
designed directly to protect individuals against violations
of law.
(d) This policy for the exercise of administrative
discretion is designed to further the public's knowledge of
matters of historical interest and, at the same time, to
preserve this Department's law enforcement efficiency and
protect the legitimate. interests of private persons.
Corder No. 528-73, 38 FR 19029, July 17, 1977
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Conare i of the 7tniteb state;
*ou* of Atpn riUatibai
GOVERNMENT INFORMATION ANDINDIVIDUAL RIGHTS
SUBCOMMITTEE
OF M
COMMITTEE ON GOVERNMENT OPERATIONS
RAPEURN HOUSE OFFICE BUILDING. ROOM B-349-B-C
WASHINGTON, D.C. MIS
.,.ATEMENT OF HONORABLE RICHARDSON PREYER
CHAIRMAN, SIIBCODMTTEE ON OOVERM ENT INFORMATION AND INDIVIDUAL RIGHTS
Mr. Chairman, I appreciate the opportunity to briefly outline before
the committee this morning the current Freedom of Information Act (FOIA)
oversight being conducted by the House Government Information and Individual
Rights Subcommittee.
As you know, the Government Information and Individual Rights Subcommittee
has legislative and oversight responsibility for the Freedom of Information Act
and the Privacy Act of 1974.
On February 28 of this year, the subcommittee held the first of what is
expected to be a number of oversight hearings this Congress on the impact of the
Freedom of Information Act on the Federal law enforcement and intelligence
communities. During this session of Congress the subcommittee plans to take a
close look at the procedures used by the investigative and intelligence agencies
to protect sensitive records, while complying with the disclosure requirements
of the open records acts.
FBI Director William Webster was our first witness, and presented some
very useful testimony. Admiral Turner has been extended an invitation to
address the subcommittee as well.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Our first hearing was in large part sparked by a letter received by the
committee last January 24 stating that "given the resources available, the
FBI cannot now, nor in the foreseeable future, comply with the time limits of
the Freedom of Information Act" or the Privacy Act regulations of the Depart-
ment of Justice.
According to Director Webster's letter, it currently takes four to six
months for the FBI to answer Freedom of Information Act requests. The Freedom
of Information Act's statutory deadlines provide ten working days to reply to
citizen document requests, and a maxim= of forty working days -- or eight
weeks -- to respond to both the initial request and appeal of denial.
Although we have not yet received the CIA's annual FOIA report for 1978,
its 1977 report outlined difficulties similar to those recently presented by
the FBI in meeting the statutory deadlines.
The Freedom of Information Act was enacted in 1966 and established the
general principle that any person should have access to records maintained
by Executive branch agencies. Following hearings by the subcommittee in the
early seventies, the Act was amended in 1974 to tighten procedural requirements.
Time limits were added for the processing of requests, and the seventh exemption
of the Act was modified to allow disclosure of certain portions of inactive files
of Federal law enforcement agencies. Specific grounds were included to allow
the withholding of information that might jeopardize ongoing investigations,
and such important concerns as the identity of informants, special investigative
techniques, and the safety of law enforcement personnel.
The Central Intelligence Agency, of course, relies very heavily on the
first exemption of the FOIA, dealing with classified data, and the third
exemption, allowing the public withholding of data covered by certain other
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
specific statutes.
These issues are obviously quite complex and difficult to quantify. Last
year the General Accounting Office, at the request of Senator Eastland, was
asked to examine the effect of the Freedom of Information Act and Privacy
Act on Federal law enforcement. The GAO concluded "it was not possible to
accurately document the total impact these two laws have had on the investi-
gative operations of the FBI." The GAO report observed that "Other laws or
regulations, administrative policies, and a general distrust of law enforce-
ment agencies may have had as much or more to do with the FBI's difficulties
as the FOI/PA [the Freedom of Information and Privacy Acts]."
The Subcommittee on Government Information and Individual Rights spent
much of 1977 and 1978 examining an equally difficult area: Freedom of Infor-
mation requests for proprietary corporate data held by Federal agencies.
The committee issued a report last summer entitled "Freedom of Information
Act Requests for Business Data and Reverse-FOIA Lawsuits" (House Report 95-1382),
recommending a number of administrative procedural reforms to better protect
information whose release could result in substantial competitive harm to the
submitting company. Following an expected decision by the Supreme Court this
term, we will begin consideration of an amendment to the Freedom of Information
Act to provide a statutory basis for so-called "reverse FOIA" lawsuits. (A
"reverse Freedom of Information Act" suit arises when submitters of data
to the government sue to prevent agencies from releasing documents under FOIA.)
Needless to say, the question of proprietary data has involved some
delicate balancing of interests, and taken considerable staff resources.
As I mentioned at the outset, this Congress this same energy will go into an
examination of the law enforcement and intelligence communities' difficulties
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
with the open records and privacy laws.
There are no easy answers to the problems posed by these agencies. No
one seems seriously suggesting at this stage in our history that these laws be
repealed wholesale. They have played too vital a role in citizen oversight
and knowledge of the real contributions and problems of our government. How-
ever, the Subcommittee on Government Information and Individual Rights is
entirely receptive to realistic proposals to overcome the specific problems
these Federal components appear to be encountering. Our hearings and
examination will be aimed toward finding those solutions. Any assistance
your committee, Mr. Chairman, can provide, would be welcome.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
CIA SUBMISSION REGARDING
FREEDOM OF TNFORMATTON ACT
AMENDMENT TO SECTION 6 OF THE
CIA ACT OF 1949
CHANGES IN EXISTING LAW
50 U.S.C. 403q
Changes in existing law are shown as follows: existing
law in which no change is proposed is shown in roman; existing
law proposed to be omitted-is enclosed in brackets; and new
matter is underscored.
In the interests of the security of the foreign intelligence
activities of the United States and in order further to
implement the proviso of Section 403(d)(3) of this title
that the Director of Central Intelligence shall be respon-
sible for protecting intelligence sources and methods from
unauthorized disclosure, the Agency shall be exempted from
the provisions of [section 654 of Title 5, and the provisions
of] any (other] law which require the publication or disclosure
of the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency.
In furtherance of the responsibility of the Director of
Central Intel li ence to protect intZfigence sources and
methods, information in tiles maintained by an intelligence
agency or component of the United states Government shall--
also be exam tee from the provisions of any la which require,
~publication or disclosure, or searc or review in connection
therewith, if such files have been specifically desi natee
by the Director of Central Intelligence to be concerne i
with. The desi n, function, deployment, exploitation or
utilization o sc entific or technical systems for t We
collection of ores n intelligence or counterintelligence
information; Special activities and lei n intelligence or
counterintelligence eo~operations; Investigations conducted to
determine the suitability o potential foreign intelligence
or counterintelligence sources; Intelligence an securit
liaison arran ements Sr information exc an es with forei n
governments or t eir intelligence or security services;
except to the extent that information on American citizens
and permanent resident aliens requested such persons on
themselves, ursuant to Sections 552 and 552a o Title ,
may a contain in suc files. The provisions o f is
Section shall not be superseded except a provisio- of law
which is enacted a ter t Fe date of this Amendment and which
s eci ical re ea s or modifies the provisions o t is
Section. Proved, Tzhat in furtherance of this section,
the Director of the Bureau of the Budget shall make no
reports to the Congress in connection with the Agency under
section 947(b) of Title 5.]
Approved For Release 2011/09/26: CIA-RDP04MO1816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
APPENDIX. 9-
FREEDOM OF INFORMATION ACT
1552. Public information; agency rules, opinions, orders, records,
and proceedings.
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public-
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service the members) from whom, and the methods
whereby, the public may obtain information, make submittals
or requests, or obtain decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature and
uirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the
places at which forms may be ,obtained, and instructions ag to the
scope and contents of all papers, reports, or examinations;
() substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpreta-
tions of general applicability formulated and adopted by the
agency; and
(E) each amendment, revision, or repeal-of the foregoing.
Except to the extent that a person has actual and timely notice of the
terms thereof, a person ma not in any manner be required to resort
to, or be adversely, affected by, a matter required to be published in
the Federal Register and not so published. For the purpose of this
paragraph, matter reasonably available to the class of persons affected
thereby is deemed published in the Federal Register when incorporated
by reference therein with the approval of the Director of the Federal
ter.
Each agency, in accordance with published rules, shall make
3 v able for public inspection and copying-
(A) final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have
been adopted by .the agency and are not published in the Federal
Register ? and
(C) administrative staff manuals and instructions to staff that
affect a member of the public;
unless the materials are promptly published and copies offered for
sale. To the extent required to prevent a clearly unwarranted invasion
of personal privacy, an , ncy may delete identifying details when it
makes available or publes an opinion statement of policy, interpre-
tation, or staff manual or instruction. Iowever, in each case the justi-
fication for the deletion shall be explained fully in writing. Each agency
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
shall also maintain and make available for public inspection and copy-
ing current indexes providing identifying information for the public
as to any matter issued, adopted, or promulgated after July 4 1967,
and required by this paragraph to be made available or published.
Each agency shall. promptly publish, quarterly or more frequently,
and distribute (by sale or otherwise) copies of each index or supple-
ments thereto unless it determines by order published in the Federal
Register that the publication would be unnecessary and impracticable,
in which case the agency shall nonetheless provide copies of such index
on request at a. cost not to exceed the direct cost of duplication. A
final order, opinion, statement of policy, interpretation, or staff manual
or instruction that . affects a member of the public may be relied on,
used, or cited as precedent by an agency against a party other than
an agency only if-,
(i) it has been indexed and either made available or published
as provided by this paragraph; or
n) . the party has actual and timely notice of the terms thereof.
(3 .xcept with respect to the records made available under para-
grap (1 and (2) of this subsection, each agency, upon any request
for records which (A) reasonably describes such records and (B) 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 any person.
(4)(A) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt
of public comment, specifying a uniform schedule of fees applicable
to all constituent units of such agency. Such fees shall be limited to
reasonable standard charges for document search and duplication and
provide for recovery of only the direct costs of such search and dupli-
cation. 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 general public.
(B) .On complaint, 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 complainant. In such a
case the court shall determine the matter de novo, and may examine
the contents of such agency records in camera to determine whether
such records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the burden
is on the agency to sustain its action.
(C) Notwithstanding any other provisions of law, the defendant
shall serve an answer or otherwise plead to any complaint made under
this subsection within thirty days after service upon the defendant
of the pleading in which such complaint is made, unless the court
otherwise directs for good cause shown.
(D) Except as to cases the court considers of greater importance,
proceedings before the district court, as authorized b this subsection,
and appeals therefrom, take precedence on the docket over all cases
and shall be assigned for hearing and trial or for argument at the
earliest practicable date and expedited in every way.
Approved For Release 2011/09/26: CIA-RDP04M0l816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any
case under this section in which the complainant has substantially
prevailed.
(F) Whenever the court orders the production of ' any agency
records improperly withheld from the. complainant and assesses
against the United States reasonable attorney fees and other litiga-
tion costs, and the court additionally .. issues a written finding that the
circumstances surrounding the withholding )raise questions whether
agency personnel acted arbitrarily or, capriciously with respect to the
withholding, the Civil Service Commission shall promptly initiate a
proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for the
withholding. The Commission, alter investigation and consideration
of the evidence submitted, shall submit its findings and recommenda-
tions to the administrative authority of the agency concerned and
shall send copies of the findings and recommendations to the officer
or employee or his representative. The administrative authority shall
take the corrective action that the Commission recommends.
(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and
in the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and
make available for public inspection a record of the final votes of each
member in every agency proceeding.
(6) (A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall-
(i) determine within ten days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such reques$
whether to comply with such request and shall immediately
notify the person making such request of such determination and
the reasons therefor, and of the right of such person to appeal
to the head of the agency any adverse determination; and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) 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 person making such request of the provisions for
judicial review of that determination under paragraph (4) of this
subsection.
(B) In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of subparagraph
(A) may be extended by written notice to the person making such
request setting forth the reasons for such extension and the date on
which a determination is expected to be dispatched. No such notice
shall specify a date that would result in an extension for more than ten
working days. As used in this subparagraph, "unusual circumstances"
means, but only to the extent reasonably necessary to the proper
processing of the particular request-
(i) 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; or
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
(iii) the need for consultation, which shall be conducted- with all
practicable speed, with another agency having a substantial
"' Interest in the determination of the request or among two or more
components of the agency having substantial subject-matter
..,interest therein.
(C) Any person making a request to any agent for records under
paragraph (11),. (2), or (3) of 'this subsection- shall be deemed to have
eXhausted his administrative remedies with respect to such request if
she agency We to comply with the application time limit provisions of
this paragraph. If the Government can show exceptional circum-
stances exist and' that the agency is exercising due' diligence in re-
sponding to,the request,- the court may retain jurisdiction and allow
the agency additional time to complete its ~ review of the records.
Upon any determination' by an agency to comply with a request for
records, the records shall be made promptly available to such person
leaking such request. Any notification of denial of any request for
records under- thus subsection shall set forth the names and titles or
posltions of each person responsible for the denial of such request.
(b) This, section does not apply to matters that are-
(1) (A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign' policy and (B) -are in fact properly classified
pursuant to such Executive order;
' (2) related solely to the internal personnel rules and practices
of an agent -;
(3) spe cally exempted from disclosure by statute; (other than
section 552b of this title), provided that such statute` ((A) requires
that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters
to be withheld; -
(4) trade secrets and commercial or financial information ob-
tained from a person and privileged or confidential;
t5) inter-agency or intra-agency memorandums or letters
which would not be. available-by law to a party other than an
agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of
personal privacy;
(7) investigatory records compiled for law enforcement pur-
poses but only to the extent that the production of such records
would (A) interfere with enforcement proceedings, (B) deprive
a person of a right to a fair trial or an impartial adjudication, (C)
constitute an unwarranted invasion of personal privacy, (I))
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 intelligence investigation, confidential
information furnished only by the confidential source, (E) dis-
close investigative techniques and procedures, or (F) endanger
the life or physical safety of law enforcaement personnel;
(8) contained in or related to examination, operating, or condi-
tion reports prepared by, on behalf of, or for the use of an agency
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
responsible for the regulation or. supervision of financial insti-
tutions; or
(9) geological and geophysical information and data, including
maps, concerning wells.
Any reasonably sepregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which
are exempt under this subsection.
(c) This section does not authorize withholding of information or
limit the availability of records to the public, except as specifically
stated in this section. This section . is not authority to withhold
information from Congress. -
(d) On or before March 1 of each calendar year, each agency shall
submit a report covering the preceding calendar year to the Speaker
of the House of Representatives and President of the Senate for re-
ferral to the appropriate committees of the Congress. The report
shall include-
(1) the number of determinations made by such agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(2) the number of appeals made by persons under subsection
(a) (6), the result of such appealss,, and the reason for the action
upon each appeal that results in a denial of information;
(3) -the names and titles or positions of each person responsible
for the denial of records requested under this section, and the
number of instances of participation for each;
(4) the results of each proceeding conducted pursuant to sub-
section (a) (4) (F), including a report of the disciplinary action
taken against the officer or employee who was primarily respon-
sible for improperly withholding records or an explanation of why
disciplinary action was not taken;
(5) a copy of every rule made by such agency regarding this
section;
(6) a copy of the foe schedule and the total amount of fees col-
lected by the agency for making records available under this
section; and
(7) such other information as indicates efforts to administer
fully this section.
The Attorney General shall submit an 'annual report on or before
March 1 of each calendar year which shall include for the prior calen-
dar year a listing of the number of cases arising under this section, the
exemption involved in each case, the disposition of such case, and the
cost, fees, and penalties assessed under subsection (a) (4) (E), (F), and
(G). Such report shall also include a description of the efforts under-
taken by the Department of Justice to encourage agency compliance
with this section.
(e) For purposes of this section, the term 'agency' as defined in
section 551(1) of this title includes any executive department, military
department, Government corporation, Government controlled cor-
poration, or other establishment in the executive branch of the
Government (including the Executive Office of the President)-, or any
independent regulatory agency.
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
APPENDIX F
PRIVACY ACT
Public Law 93-579
93rd Congress, S. 3418
December 3.1, 1974
gn Rrt
To amend title 5. United States Code, by adding a section 552a 'to safeguard
individual privacy from the misuse of Federal records, to Provide that
individuals lie granted access to records concerning them Which are maintained
by Federal agencies, to establish a Privacy Protection Study Commission, and
for other, purposes.
Be it enacted by the, Nevo11e rend Ilouse of R'epresentotivee of the
United States of America hi Corutrcgs assembled, That this Act may Privacy Act
be cited as the "Privacy Act of 1974". of 1974.
Soc. 2. (a) The Congre finds that- 5 USC 552a
hote.
(1) the privacy of an individual is directly affected by the C
ongressional
collection, maintenance, owe, and dissemination of personal infor- findings.
mation by Federal agencies; 5 USC 552a
(2) the incn'asing use of computers and sophisticated infor- note.
motion technology, while e+clent.inl to tin efficient operations of
the Government, has gently magnified the harm to individual
privacy that can occur from any collection, maintenance, use, or
dissemination of personal information:
(3) the opportunities for an individual to secure employment.
insurance, and credit, and his right to due process, and other legal
protections are endangetwi by the misuse of certain information
systems;
(4) the right to privacy is a lerarmal and fundamental right
protected by the Constitution of the United States: and
(5). in order to protect the privacy of individuals identified in
information systems maintained by )Federal agencies, it is neces-
sary and proper for the Congress to regulate the collection, main-
tenamrr. use, and dissemination of information by such agencies.
(b) The purpose of this Art. is to provide certain safeguards for an stateaant of
individual against an invasion of personal privacy by requiring purpose.
Federal agencies, except as otherwise provided by law, to-
(1) permit an individual to determine what records pertaining
to him are collected, maintained, used, or disseminated by such
agencies;
(2) permit an individual to prevent accords pertaining to him
obtained by such agencies for a particular purpose from being
used or made available for another purpose without his consent;
(3) permit an individual to gain access to information aertain-
ing to him in Federal agency records, to have a copy made of all
or any portion thereof, and to correct or amend such records:
(4) collect, maintain, use, or disseminate-any record of identi-
fiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that -the infor-
mation is current and accurate for its intended use, and that
adequate safeguards are provided to prevent misuse of such
information ;
(5) permit exemptions front the requirements withresprr?t to
records provided in this Act only in those cases where there is an
important public policy need for such exemption. as has been
determined tby specific statutory authority; and
remit of willful oto civil suit for lily r intentional action which violates anyrinas a
dii-
vidual's rights undt~ ee STAT. 1896
Sac:. 3. Title 5. United States e, is amend by adding, after AT. 1
section 552 the following new section :
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Pub. Law 93-579 - 2 - December 31, 1974
.88 STAT. 1897
5 ISC 552a. "$ 552a. Records maintained on individuab
"(n) I)r:ri, coitus.--Foi imI secs of tIiisseo?tiou--
??(1) till, term 1 gvnev means ngmm y as defiuctl in laeltion
5 'ISC 552. ;'1J02(e) of this title:
?(.) the tot-Ili `individual' nut-R11% it citizen of the United Staten
or fan alien'htwfully ndnIitteti for lx,rmmtent residence;
`'(:t) the terns 'maintain' includes maintain. collect. sae, or dis
ane11-i ante :
?'(4) the term ,record' means any item. to-lleetion. or grouping
cif information alwlut. an imlit?idmil that is maintained by an
a11tent?y. includinryg, but not linnited to. his education. financial
t r:msrtctions. nadir al history, and criminal or employment historyry
and that contains his nuns,, or the identifying ntunl-er. at mbol,
or other identifying particular assigned to the individual, such
asst finger or voice print or a photograph;
(;,) the term 'system of rec-rl meatus a group of any records
under the control of any agency from which information is
retrieved by the name ofthe individual or by some identifying
sandier, svndx-1, or other identifying larticn)er assigned to the
individual;
"(R) the term 'statistical record' .moan at record in a system
of r,tord% maintained for statistical research or reporting.
only and not used in whole or in part in making any deter-
mination about an identifiable individual. except. as provided by
13 i;SC B. section 8 of title 13; and
"(7) the term ,routine law' meals. with respect to the dis-
closure of a record, the safe llf such record for at purpose which
is eonnpxttible with the purpose for which it was collected.
??'(b) ('oNmTuu,NM or 111104?ua+cak.-No agmm?y shall disclose ally
record which is emtained in a systen of records by any ntearis of ctxn-
nunlication to stay pertuouI or to another agency. except, reruns to a
written redress by, or with the prior written consent of, t individual
to whorl the record pertains, unless disclosure of the record would
Iw
'? ( i) to Hooke officers and employees of the agency which main-
tains the record who have a need for the record in the performance
of their dories;
te(2) required tinder section 55:1 of this title;
"! i) for it routine use as defined in sulteection (a) (7) of this
sertaot mud deat?rilxed under adrprctioi (e) (4) (1)) of this section;
??(4) to the Bureau of the ('emus for purposes of planning or
carrying out it census or survey or related activity pursuant. to
the ovnsionsof title 13;
?'(sn?) to a recipient who has provided the agency with advance
adequate written assurance that the record will his used solely as
it statistical research or reporting record. and the recoil is to be
transferred in a form that a not individually identifiable;
it (6) to the National Archives of the United States as a record
which has sufficient historical or other value to warrant its vuu-
tinued preservation by the United, States Government. or for
evaluation L ? the Administrator of General Services or his
designee to determine whether the record has such value;
"(7) to another ncy or to an ittstrvmentality of any govern-
mental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity if the
activity is authorized by law, and if the head of the agency or
instrumentality has made it written request to the agency which
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
170
December 31, 1974 - 3 - Pub. Law 93-579
maintains the record specifying the particular portion deli rd and ee seer lela
the law enforcement activity for which the record is Sought ;
"(8) to a person pursuant to a showing of compelling circum-
stances affecting the health or safety of an individual if upponn such
disclosure notification is transmitted to the last known address of
such individual;
"(9) to either Hoarse of Congress, or, to the extent of matter
within. its jurisdiction, any committee or suhxtiuumittee thereof.
any joint committee of Congress or subconuuittee of any such
joint committee;
"(10) to the. Comptroller General. or any of his authorized r ep-
reeentatives, in the course of the performance of the duties of
the General Accounting 016ce; or
"(11) pursuant to the order of a court. of competent jurisnlie?-
tion.
"(c) Aocwrarrrsa or C:aaranr Dwi.nsvaae.-Each agency, with
respect to each system of rseords under its control, shall-
"(1) except for disclosures made under subsections (b)(1) or
(b) (2) of this section, keep an accurate accounting of-
"(A) the date, nature, and purpose of each disclosure of
a record to any person or to another agency made under
subsection (b) of this section; and
"(B)'the name and address of the person or agency to
whom the disclosure is made;
"(ft) retain the accounting made under pa ph (1)) of this
subsection for at least five years or the life of record, which-
ever is longer, after the disclosure for which the accounting is
made;
"(8) except for disclosures ma& under subsection (b) (7) of
this section. make the accounting made under pare ae (1) of
this subsection available to the individual named in th record
at his request; and
"(4) inform any person or other agency about spy correction
or notation of dispute made by the agency in accordance with
subsection (d) of this section of any record that has been dis-
closed to the person or agency if an accounting of the disclosure
was made.
"(d) Amass m Rsoos~is.-Each agency that maintains a? system
"(1) up n request by any individual to gain aceses to his Per.ois1
taieod or to any Per
inienti6n to him which is con- rwr.w. in the system, permit him and upon his request, a person
of his own choosing to accompany him, to review the record and
have a copy made of all or any porter thereof in a form compre-
hensible to him, except that the agency may require the indi-
vidual to furnish `s written statement authorising discussion of
that individual's record in the accompanying rear s presence;
"(2) permit the'individual to request amendment or a record s.enc.nt
pertaining to him and-
"(A) not later than 10 days (excluding Saturdays, Sun-
days, days, and legal public hdlidays) after the date of receipt of
such request. acknowledge in writing such receipt; and
"(B) promptly, eithde-
(i) make any correction of any portion thereof
which the individual believes is not accurate, relevant,
timely, or compiets; or
"(ii) inform the individual of its refusal to amend
the record in accordance with his request, the reason
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
Pub. Law 93-579 - 4- December 31, 1974
es RAT. 1199
for the refusal, the procedures established by the agency
for the individual to request a review of that refusal by
the head of the agency or .an officer designated by the
head of the agency, and the name and business address
of that official;
Review. "(3) permit the individual who disagrees with the refusal of the
agency to amend his record to request a review of such refusal,
and not later than 30 days (excluding Saturda)s, Sundaysi and
legal public holidays) from the date on which the individual
requests such review, complete such review and make a final
determination unless, for good cause shown, the head of the agency
extends such 30-day period; and if, after his review, the reviewing
official also refuses to amend the record in accordance with the
request, permit the individual to file with the agency a concise
statement setting forth the reasons for his disagreement with the
refusal of the agency, and notify the individual of the provisions
for judicial review of the reviewing official's det4nnination under
subsection (g) (1) (A) of this section;
Noatton of "(4) in an disclosure, containing 'information about which
dispute. the individual has filed a statement of disagreement, occurring
after the filing of the statement under paragraph (3) of this sub-
section, clearly note any portion of the record which is disputed
and provide copies of the statement and, if the agency deems it
appropriate, copies of a concise statement of the reasons of the
aaggee for not making the amendments requested, to persons or
other agencies to whom the disputed record has been disrlceed :
and
"(5) nothing in this section shall allow an individual sevens to
any information compiled in reasonable anticipation of a civil
action or proceeding. .
"(e) Aasxci Reov>mcstrra-Each agency that maintains a
system of records shall-
"(1) maintain in its records, only such information about an
individual as is relevant and necessary to accomplish a purpose of
the agency required to be accomplished by statute or by executive
order of the President;
"(4) collect information to the greatest extent practicable
directly from the subject individual when the information may
result in adverse determinations about an individual's rights, bene-
fits, and privileges under Federal programs -
"(3) inform each individual whom it asks to supply informa-
tion, an the form which it uses to collect the information or on a
separate form that can be retained by the individual-
"(A) the authority- (whether granted by statute, or by
executive order of the President). which authorises the solici-
tation of the information and whether disclosure of such
information is mandatory or voluntary;
"(13) the principal purpose or purposes for which the
information is intended to be used;
"(C) the routine uses which may be made of the informa-
tion, as published pursuant to paragraph (4)(.D) of this
subsection; and
"(D),the effects on him, if any, of not providing all or
any put of the requested information;
publication "44) subject to the provisions of paragraph (11) of this sub-
in Tederal section, publish in the Federal Register at least annually a notice
Resister. of the existence and character of the seitem of records, which
notice shall include-
"(A) the name and location of the system;
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
December 31, 1974 - 5 - Pub. Law 93-579
ee sear. 1900
"(B) the categories of individuals on whom records are
maintained in the system;
"(C) the categories of records maintained in the system;
"(D) each routine m of the records contained in the sys-
tem, including the categories of users and the purpose of such
use;
"(E) the policies and practices of the adency rdi gg
storage, retrievability, access controls, retention, and=
of the records;
"(F) the title and business address of the agency of&cial
who is responsible for the system of records;
"(0) the agency Procedures whereby an individual can be
notified at his request if the system of records contains a rec-
ord pertaining to him;
rIS notified( at his ueit how 114, can n gain san individual can be
cow to any record
pertaining to him contained in the system of records, and how
he can contest its content; and
"(I) the categories of sources of records in the system;
"(5) maintain all records which are used by the agency in mak-
~mngg any determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably necessary
to assure fairness to the individual in the determination;
"(6) prior to disseminating any record about an individual to
any parson other than an agency, unless the dissemination is
made pursuant to subsection (b) (2) of this section, make reason-
able efforts to assure that such records are accurate, complete,
timely, and relevant for agency purposes;
"(7) maintain no record describing how any individual exer-
cises rights guaranteed by the First Amendment unless expressly
authorised by statute or by the individual about whom the record
is maintained or unless pertinent to and within the scope of an
authorised law enforcement activity;
"(8) make reasonable efforts to serve notice on an individual
when any record on such individual is made available to any per-
son under compulsory legal process when such process becomes a
matter of public record;
"(U) establish rules of conduct for persons involved in the pules of
design, development, operation, or maintenance of any systemf conduct.
records, or in maintaining any record, and instruct each snch peor-
aon with respect to such rules and the requirements of this section,
including any other pules and procedures adopted Pursuant to this
section and the penalties for noncompliance; ?
"(10) establish appropriate administrative, technical, and confidentiality
physical safeguards to insure the security and confidentiality of of records.
records and to protect against any anticipated threats or hazards
to their security or integrity wich could result in substantial
harm, embarrassment, inconvenience, or unfairness to any individ-
ual on whom information is maintained; and
"(l1) at least 30 days prior to publication of information under Publication
paragraph (4)(D) of this subsection, publish in the Federal in Federal
Register notice of any new use or intended use of the information Resister.
in the system, and provide an opportunity for interested persons to
submit written data, views, or arguments to the areney.
"(f) Aoxxcy Ruris.-In order to carry out the provisions of this
section, each agency that maintains a system of records shall pro-
mulgate rules, in accordance with the requirement. (including general
notice) of section 553 of this title, which shall- 5 USC 553.
"(1) establish procedures whereby an individual can be notified
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
173
Pub. Law 93-579 - 6- December 31, 1974
55 V?AT 1901
in response to his request if any system of records named by the
individual contains a record pertaining to him;
(2) define reasonable times, places, and requirements for iden-
tifying an individual who requests his record or information
pertaining to him before the agency shall make the record or
.nionn atlon available to the individual;
"(8) establish procedures for the disclosure to an individual
upon his request of his record or information pertaining to him,
including special procedure, if deemed necessary, for the disclo-
sure to an individual of medical records, including psychological
records, pertaining to him;
"(4) establish procedures for reviewing a request from an
individual concerning the amendment of any record or informa-
tion pertaining to the individual, for making a determination on
the request, for an appeal within the agency of an initial adverse
agency determination. and for whatever additional manna may be
nereasarl for each individual to be able to exercise fully his rights
under this s,dion ; and
Foos. "(5) establish fees to be charged, if any, to any individual for
-making copies of his record, excluding the cost of any search for
and review of the record.
Publication The Office of the Federal Register shall annually compile and publish
in rederal the piles promulgated under this subsection and agency notices pub-
Register. lished under subsection (e) (4) of this section in a form available to
the public at low cost.
ff (g) (1) Civu. Rzxwznrs. Whenever any agency
"(A) makes a determination under subsection (d) (8) of this
section not to amend an individual's record in accordance with
his request, or fails to make such review in conformity with that
subsection -
"(B) re}uses to comply with an individual request under suh-
section (d) (1) of this motion;
"(C) fails to maintain any record concerning any individual
with such accuracy, relevance, timelines, and complyetenes as is
necessary to assure fairness in any determination relating to the
qualifications, character, rightat or opportunities of, or benefits to
the individual that may be made on the basis of such record, and
consequently a determination is made which is adverse to the
individual; or
"(D) fails to comply with any other provision of this section,
or any rule promulgated thereunder, in such a way as to have
an adverse effect on an individual,
Jurisdiction. the individual may bring a civil action against the agency, and the
district courts of the United States stall have jurisdiction in the
matters under. the provisions of this subsection.
Amendment "(2) (A) In any suit brought under the provisions of subsection
of record. (g) (1) (A) of this diction, the court may order the agency to amend
the individuals record in accordance with his request or in such other
way as the court may direct. In such a case the court shall determine
the matter de novo.'
"(B) The court may assess against the United State. reasonable
attorney few and other litigation costs reasonably incurred in any rase
under this paragraph in which the complainant has substantially
prevailed.
Injunction. "(8) (A) In any suit brought under the provisions of subsection
(g) (1) (B) of this section, the court may enjoin the agency from with-
holding the records and order the production to the complainant of any
agency records improperly withheld from him. In such a case the court
shall determine the matter do novo, and may examine the contents of
Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
 Approved For Release 2011/09/26: CIA-RDP04M01816R000100320003-2
December 31. 1974 - 7 - Pub. Law 93-579
68 VAT. 1902
any agency records in camera to determine whether the r reels or any
portion thereof may be withheld under any of the exemptions set forth
in subsection (k) of this section, and the burden is on the agency to
statain its action.
"(I$) The court nsy assess against the
United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under ibis paragraph in which the complainant has substantially
"(4) In any. suit brought under the provisions of subsection Dwiiags.
(g) (1) (C) or (D) of this section in which the court determines that
the agency acted in a manner which was intentional or willful, the
United States shall In liable to the individual in an amount equal to
the tune of-
"(A) actual damages sustained by .the individual as a result of
tlwe refusal or failure, but in no ease shall a person entitled to
wcovrr'v receive fuss than the sum of $1,AOt);.and
"(8) the ceilts of the action together with reasonable attorney
fees as determined by the court.
"(A) An action to enforce any liability created tinder this section
may be brought in 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 Cotillion-
his, without regard to the amount in controversy, within two years
front the date on which the cause of action arises, except that where
an agency has materially and willfully ni>srepreaented any informs.
tion required under this section to be'disclosed to an individual and
the information ae misrepresented is material to cseahlishmeat of
the liability of the agency to the individual under this section, the
action may be brought at any tittle within two years after discovery by
the individual of the misrepresentation. Nothing in this section slhall
be construed to authorise any civil action by reason of any injury sus-
tained as the result of a disclosure of a record prior to the effective (late
of this section.
"(h) RMrrru or Lrai.i GUAnmua xa.-F or tl-e purp sus of th is exv i con,
the parent of any minor, or the legal guardian of any individual Who
has been declared to he incompetent due to physical or mental inca-
pacity or age by a court of competent jurisdiction, may act on Ia?hal f
of the. individual.
"(i) (1) CRIMINAL. PrxArnes.-Any officer or employee of an
agency, who by virtu( of his employment or official position, has p-s-
sesaion of, or aceesa to, agency records which contain individually
identifiable information the disclosure of which is prohibited by this
section or by rules or regulations established thereunder, and who
knowing that disclosure of the specific material is an prohibited, will-
fully discloses the material in any manner to any person or agent}- not.
entitled to receive it, shall he guilty of a miade,ncanor and fined not
name than $3,O O1.
"(_) An))yofireruremplmeu.ofrunyagenc;ywhow?illfullymaintains
a gdenn at records without nreetrng the notice net uir?nu rats of sub-
section (o) (4) of this section shall he guilty of a misdemeanor and fined
not more than $a tax).
(3) ton y person who knowingly and willfully requests or obtains
any record concerning an individual from an agency under false pre-
tens. shall be guilty of a misdemeanor and fined not more than $:),1111(1.
"(j) Oat.aaar. Exausrnoxa.-The hea d of any agency may pronuul-
gete rules, in accordance with the requirements (including genernl
notice) of sections AI 3 (b) (1), (2), and (3), (c), and (e) of this title, s cse 553.
to exempt any system of records within the agene from any part. of
this aectionexeed,