(Archived document, may contain errors)
213 September 23, 1982 TO RESTORE. THE BALANCE FREEDOM OF INFORMATION AND NA TIONAL SECURITY INTRODUCTION The American tradi tion favors open government to the maximum extent consistent with the demands of reason and common sense It is fundamental to the American political consensus that self government presupposes an informed electorate. .Wrote James Madison A popular Governme n t without popular information, or the means of acquiring it is but a Prologue to a Farce or a Tragedy; or, perhaps both From the belief that %nowledge will forever govern ignorance" flowed his dictum that Ira people who mean to be their own Governors, mus t arm themselves with the power which knowledge gives.Il It follows from this proposition that excessive secrecy in government poses an unacceptable bar to the acquisition of infor mation on the workings of government essential to a popular understanding o f the issues before the country. As observed by Patrick Henry To cover with the veil of secrecy the common routine of [government] business is an abomination in the eyes of intelligent men It was precisely because of the natural tendency of govern ment to s hroud its operations in such a Weil of secrecyt' that Congress, in 1966, passed the Freedom of Information Act. FOIA's basic purpose,ll in the words of the Supreme Court, llis to insure an informed citizenry, vital to the functioning of a democratic socie t y, needed to check against corruption and to hold the governors accountable to the governed.I' Such intent is, of course, unexceptionable; but in the real world, Ifto insure an informed citizenry" cannot mean-and the Freedom of Information Act manifestly w as not intended to confer--an unrestricted right of public access to government information. Instead, FOIA was designed to strike a reasonable and workable balance between two legitimate but competing interests: the need of the people to 1 2 know how thei r government works and the sometimes countervailing need of government to observe secrecy so that it can act effec tively in maintaining the national security, without which all the rights of the people would be in serious jeopardy erosion of this sense of balance In many cases, requestors of government information have been able to use the Act for purposes clearly beyond the scope of its original intent, especially with respect to data related to legitimate and well-established law enforcement and internal security concerns. As a result, during the 97th Congress, there has been a.serious effort, supported by the Reagan Administration and certain members of the Senate in particular, to amend the Freedom of Information Act so that its original balance can be r estored It appears that this goal will not be realized during this session of Congress; nevertheless the issues involved are sufficiently important, and the situation created by abuse of FOIA sufficiently menacing to the national interest, to warrant seri o us examination with a view to corrective action Unfortunately, the intervening years have seen a growing BACKGROUND The Freedom of Information Act, which became effective one year after it had been signed into law by President Lyndon John son on July 4, 1 9 66, was enacted as an amendment to Section 3 of the Administrative Procedure Act of 1946, under the terms of which, unless otherwise required by statute matters of official record shall, in accordance with public rule, be made available to persons properl y and directly concerned except information held confidential for good cause found." As, described by Mr.
Justice White in his majority opinion in the 1973 Supreme Court case of EPA v. Mink Section 3 was generally recognized as falling far short of its dis closure goals and came to be looked upon more as a withholding statute than a disclosure statute The section was plagued with vague phrases, such as that exempting from disclosure Irany function of the United States requiring secrecy in the public interes t."
Moreover, even "matters of official record were only to be made available to Ilpersons properly and directly concernedv1 with the information. And the section pro vided no remedy for wrongful withholding of informa tion FOIA, on the other hand, was clearl y meant to be a "dis closure statute It provided for access to identifiable records of the Executive Branch and independent agencies by "any person rather than merely by !'persons properly and directly concerned,!I and without a requirement that a requesto r demonstrate a specific reason or need 3 The Act broadened the range of information available to the public; provided standards for what records should be open to public inspection; and .made it clear beyond dispute that, except for nine specific categori e s of permissible exemptions, govern ment agencies must allow the fullest possible public access to their records. The excepted categories were 1) information classified pursuant to executive order 2) information related solely to an agency's internal rule s and practices 3) informa tion specifically exempted from disclosure by statute 4) trade secrets and confidential commercial or financial information 5 agency memoranda that would not be available by law 6) files whose disclosure would constitute a clearl y unwarranted invasion of privacy 7) investigatory records compiled for law enforce ment purposes 8) certain information related to regulation or supervision of financial institutions; and (9) geologi.ca1 and geophysical data. The extent to which FOIA was w eighted in favor of disclosure is evident from the declaration that nothing in the exemptions "authorizes withholding of information or limiting the availability of records to the public except as specifically stated in this section." Under an additional proviso, moreover these exemptions did not constitute "authority to withhold informa tion from Congress.
For those potential requestors who might feel themselves aggrieved by wrongful denial of access to government records, the Act provided for judicial re view which places the burden of proof on federal agencies to justify any withholding of data being sought. The importance of this provision cannot be overestimated for it conveys the essence of what FOIA was fashioned to accomplish.
As summarized in 1977 by the House Committee on Government Opera tions I I With the passage of the FOIA...the burden of proof was shifted from the individual to the government: the need to know1' standard was replaced by the right to knowll doctrine and the onus was upon the g o vernment to justify secrecy rather than the individual to obtain access No matter how great the desire to promote the maximum feasi ble disclosure of government information, however, the unmistak able intent of the law.was to provide a balance between dis c losure and the legitimate need of the government for secrecy in certain instances. This is clearly indicated by the following passage from a 1965 report of the Senate Committee on the Judiciary At the same time that a broad philosophy of "free dom of info rmation1I is enacted into law, it is necessary to protect certain equally important rights of privacy with respect to certain information in Government files, such as medical and personnel records.
It is also necessary for the very operation of our Governm ent to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation. 4 It is not an easy task to balance the opposing interests, but it is not an impossible one either It is not necessary to conclu d e that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses balances, and protects all interests, yet places empha sis on the fulle s t responsible disclosure It was perhaps inevitable that legislation of this sort necessarily experimental in nature, would fail to satisfy those who tend to favor extreme disclosure and abhor all secrecy in government. Thus, while the range of exemptions i n behalf of confidentiality in particularly sensitive areas of government might well seem to most people to be both sensible and prudent and therefore not at all inconsistent with Itfullest responsible disclosure" as contemplated by the language of the Se nate report sentiment in favor of liberalization of FOIA quickly developed Identifiable records,ll for example, came to be regarded as an excessively precise formulation and thus as far too easy a pre text for denial of access to information.
The gist of t his dissatisfaction was expressed in 1972 by the Foreign Operations and Government Information Subcommittee of the House Committee on Government Operations. After a series of oversight hearings on how federal agencies were administering FOIA, the Subcommi t tee proposed procedural and substantive ch anges in the Act and concluded that the "efficient operation of the Freedom of Information Act has been hindered by 5 years of foot-dragging by the Federal bureaucracy Two years later, Congress adopted a series o f amendments to the 1966 Act which, it is widely felt, effectively vitiated the original balance between necessary secrecy and the !'right to know In October 1974, President Gerald Ford vetoed the amended FOIA, which had been passed by overwhelmingly large margins in both the House and the Senate. He justified his veto on the grounds that the new version, despite its Illaudable goals,I' would have an adverse effect on the ability of the government to retain military and intelligence secrets, would compromis e the con fidentiality of investigatory law enforcement files, would burden government agencies to an unreasonable degree in imposing speci fic deadlines for response, and, by empowering the courts to overrule the executive in matters of classification, wa s other wise "unconstitutional and unworkable One month later, on November 20, 1974, the House of Representatives voted by 371 to 31 to override the President's veto; the Senate followed suit the next day by a vote of 65 to 27 The amended FOIA no longer in c luded the original "indentifi able records1' qualification; instead, it specified that a request pursuant to the Act need only Itreasonably describe" the material being sought. The exemption for investigatory files was modified to permit the withholding o f only those files pertaining to 5 active investigations; henceforth, literally every paragraph of every page of every document in a file would have to be checked carefully so that all "reasonably segregable" portions of a document not otherwise falling un d er the Act's allowable exemp tions could be released in the interests of maximum possible disclosure. Exemptions were to be allowed only in situations where production of requested records would interfere with enforce ment proceedings; deprive a person of his right to a fair trial constitute an unwarranted invasion of personal privacy; disclose confidential sources or, in certain circumstances, information provided by confidential sources; disclose investigative tech niques and procedures; or endanger law enforcement personnel.
COSTS AND IMPACT The costs of the Freedom of Information Act have been con siderable from a number of perspectives The U.S. General Accounting Office reported in 1978 that 35 government agencies had reported FOIA costs totalling $11, 800,000 in calendar 1975 and that 37 agencies reported costs of $20,800,000 in 19
76. For the 13 agencies for which the GAO sought to obtain three-year cost estimates, the total, including start-up cost, was $35,900,000 There is no dearth of information a vailable to document the costs and abuses of the Free-dom of Information Act. Certain sources, however, proved particularly useful in preparing the present study, among them the following Proceedings, Law, Intelligence and National Security Workshop, Dece m ber 11-12 1979, Washington D.C sponsored by the Standing Committee on Law and National Security of the American Bar Association; statement of Senator Orrin Hatch Freedom of Information Act Improvementq Act of 1981 Congressional Record October 20, 1981, pp . S11702-S11713; American Bar Association Standing Committee on Law and National Security, Law and National Security Intelligence Report Vol. 3, No 8, August 1981, which includes extended extracts from testimony before the Senate Select Committee on Intell i gence and the Subcommittee on the Constitution of the Senate Committee on the Judiciary (as of this writing, the staff of the Judiciary Committee advises that its hearings on legislation to reform FOIA are not yet in print); and undated "Statement of Fran cis J. Mc Namara, Executive Director, the Hale Foundation, on S. 1235, 'Intelligence Information Protection Act before the Subc.ommittee on the Constitution.
The statement presented by Mr. McNamara, the most meticulous of researchers and one of the nation' s foremost experts on matters of intelligence and subver sion, includes a detailed appendix on the nature and activities of the princi pal components of the anti-intelligence complex; it also demonstrates persua sively the need for exemption of the Centra l Intelligence Agency from the strictures of disclosure legislation like FOIA. Absolutely essential to an informed grasp of the issues involved is a report on The Erosion of Law Enforce ment Intelligence and Its Impact on the Public Security, Subcommittee o n Criminal Laws and Procedures of the Committee on the Judiciary, U.S. Senate 95th Congress, 2nd Session, 1978, the appendix of which includes a November 15, 1978, report by the U.S. General Accounting Office on the Impact of the Freedom of Information an d Privacy Acts on Law Enforcement Agencies. 6 for 1975 through 19
77. In August 1980, Associate Attorney Gener al John Shenefield testified that the Office of Information Law and Policy of the United States Department of Justice "estimates that in 1978 som e $47.8 million was expended government-wide.Il In 1980, according to Assistant Attorney General Jonathan Rose of the Justice Department's Office of Legal Policy, "direct costs to the government were approximately $57 million.Il As noted by Shenefield, ho w ever, such figures may Itbe a gross underestimate not accounting for such hidden costs as personnel, travel, train ing and materials as well as those very real efforts each agency makes to accord FOIA processing highest prioriw.ll The number of requests f o r information under the terms of the Act appears staggering. While no definitive figures are available, according to an FOIA specialist with the Congressional Research Service, it is probable that federal agencies must deal with close to a million request s per year In at least some notable instances, this has caused serious problems.
In 1980, for example, the Department of Defense received 57,053 FOIA requests, of which only 2,829 were denied, either in whole or in part, pursuant to statutory exemptions In one case a large Washington, D.C., law firm requested all documents generat ed in connection with the Trident submarine; it was estimated that compliance with this request would have required a search of 12,000 linear feet of files, amounting to approxim ately 24,000,000 pages, and the consumption of at least 350,000 man hours.
The Department of Justice received an estimated 30,000 FOIA requests in 19
80. Of these, about 2,000 were directed specifical ly to the Drug Enforcement Administration, while more than 15,000 were directed specifically to the Department's other criminal investigatory agency, the Federal Bureau of Investigation. The FBI alone has reported that it employs no fewer than 270 people just to process FOIA requests at an annual cost of 10, 0 00,000 Particularly troublesome, revealed Assistant Attorney General Rose during a July 1981 hearing before the Subcommittee on the Constitution of the Senate Committee on the Judiciary is that a large number of these requests [received in 19803 were from convicted felons or from individuals whom the FBI and DEA believe to be connected with criminal activities. Such requesters have made extensive use of FOIA to obtain investigatory records about themselves or to seek information concerning on-going investi g a tions, government informants, or government law enforce ment techniques The impact of FOIA on the Central Intelligence Agency ap pears to have been especially acute. In 1980, the Agency logged 1,212 new FOIA cases and, according to the July 1981 testimo n y of Admiral B.R. Inman, Deputy Director of Central Intelligence devoted 11257,420.5 actual man-hours of labor (or 144 man-years)" 7 to processing ItFreedom of Information Act, Privacy Act, and mandatory classification review requests, appeals, and litiga t ion as compared with the 110 man-years of labor devoted in 1979.It these resources, Wore than half" were consumed by "the process ing of requests for subject matters information [sic] under the FOIA.It At the same time, approximately two-thirds of the mor e than 3,000,000 "expended in personnel costs for processing appeals, and litigation related to these requests" was spent on FOIA cases (Admiral Inman revealed that the Agency Ithas been sued for denying information in response to FOIA requests in 198 laws u itst1 Of CIA records are maintained in a highly compartmented and segregated fashion, at least partly because of the Agency's necessary adherence to the "need to howlt principle. Thus, a routine request under FOIA may mean a search of as many as 21 record systems. The search for documents through so many systems gives access to compartmented information to people who otherwise would never be permitted to see it under prevailing CIA prac tices. In summarizing the unique problems faced by the Agency under FO I A, Admiral Inman stated In most other government agencies the review of information for possible release under the FOIA is a routine administrative function; in the Central Intelli gence Agency it can be a matter of life or death for human sources who cou l d be jeopardized by the release of information in which their identities might be exposed. In some circumstances mere acknowledgment of the fact that CIA has any information on a particular subject could be enough to place the source of that information i n danger the CIA is intelligence gathering, an activity which frequently takes place in a hostile environment, and which must take place in secrecy. The mere disclosure that the CIA has engaged in a particular type of activity or acquired a particular type of information can compro mise ongoing intelligence operations, cause the targets of- CIA'S collection efforts to adopt countermeasures or impair relations with foreign governments. Agency records must be scrutinized with great care because bits of inform a tion which might appear innocuous on their face could possibly reveal sensitive information if subjected to sophisticated analysis or combined with other information available to FOIA requesters It must be remembered that the primary function of This revi e w is not a task which can be entrusted to individuals hired spqcifically for this purpose, as is the case-with many other government agencies whose information has no such sensitivity. The need for careful professional judgment in the review of CIA inform a tion surfaced in response to FOIA requests means that this review requires the time and attention of intelligence officers whose primary responsibilities 8 involve participation in, or management of, vital programs of intelligence collection and analysis f or the president and our foreign policymaking establish ment. Experienced operations officers and analysts are not commodities which can be purchased on the open market It takes years to develop first-class intelli gence officers The diversion of personne l from tasks essential to their primary responsibilities has been a problem for other agencies as well. During 1977, for instance, requests for investigatory records of the Internal Revenue Service consumed 23,347 hours by professional employees other than freedom of information special ists in IRS field offices: 10,514 in the Intelligence Division and 5,893 in the Audit Division. In a situation similar to that faced by the FBI and DEA, a Deputy IRS Commissioner has stated that these figures. suggest a sign ificant incident [sic] of use of the Freedom of Information Act by the subjects of IRS law enforcement activities to secure investiga tory files concerning themselves.
While the diversion of staff resources to process Freedom of Information Act and Privacy Act requests clearly has a negative impact on our enforcement capabil ities, this direct reduction does not represent the only'effect of these statutes upon law enforcement.
There are significant but intangible costs of process ing FOI Act requests which cannot be captured statisti cally. For instance, when a request is made for an open investigatory file, the steps necessary to process that request will tend to disrupt the i nvestigation and will generally require the temporary diversion of investigative staff.
In general, as IRS has reported to the General Accounting Office, "the value of the resources withdrawn from the investiga tory effort may be far more costly in terms o f lost revenue opportunities than the direct cost ascribed to processing the FO~A requests. 11 better. As noted in an April 1976 internal DEA memorandum 2 The Drug Enforcement Administration appears to have fared no When the Freedom of Information Act was passed, no funds were appropriated to the Executive Branch to administer the Act. Therefore, all positions in the Freedom of Information Division were taken from the ceilings allotted to other units or activities within DEA Some comparative figures on the commitment of resources to administer the Act, as opposed to the resources committed to accomplishing our primary mission are startling.
The fifteen employees assigned full time to the Freedom of Information Division represent fifty percent 50 of our inve stigative commitment in the Republic of Mexico, twenty-nine percent (29 in Europe, twenty eight percent (28 in South America, thirty-eight percent (38 in Southeast Asia, sixty percent (60 in the Near East, one hundred percent (100 in the South Pacific, an d two hundred-fourteen percent (214 in Canada In addition, the Freedom of Information Division is larger than any of our six (6) Internal Security Field Offices, equals or is larger than the agent commitment of eighty 80) of our domestic District Offices, i s larger than the individual sections within the Enforcement and International Training Divisions and is larger than the resources committed to the various sections of the Office of Intelligence ltGenerally,ll added a subsequent internal memorandum, "DEA f ield offices feel that enactment of the Freedom of Information and Privacy Acts has diminished DEA's ability to fulfill its mission, both in terms of conducting criminal investigations and collecting intelligence.l1 A similar note is struck by Admiral Inm a n's observation that IIEfforts to fulfill our intelligence missions while subject to the provisions of the FOIA have placed the CIA in a vicious cyclev1 in which the "need for up-to-the-minute informationt1 by the President, Cabinet officials, and Congres s Ifrequently prevents the review of FOIA documents from taking place in keeping with the time requirements of the Act." The comply with the Act, which, in turn, requires an even greater amount of time and effort to be expended in the litigation pro- resul t is, of course, that CIA is then "sued for failure to cess."
Perhaps the best-known example is that of former Agency employee Philip Agee, whose case has cost the CIA'more than 25,000 hours and over $400,000 for the retrieval and review of no fewer than 8 ,699 Agency documents. The Agee case vividly illus trates the potential harm to the national interest that now exists under FOIA. As Judge Gerhard Gesell of the United States District Court for the District of Columbia observed in his July 1981 decision u p holding the right of the Agency to withhold certain documents in the case, it is the first FOIA "case where an individual under well-founded suspicion of conduct detrimental to the security of the United States" had invoked me terms of the Act Ifto ascert a in the direction and effectiveness of his effort to subvert the country's foreign intelligence program I As Judge Gesell further obsemed It is amazing that a rational society tolerates the expense, the waste of resources, the poten tial injury to its own s ecurity which this process necessarily entails.II In such circumstances, it is perhaps hardly surprising 10 that Admiral Inman has publicly expressed his concern over Ilhow much better our intelligence product might have been in some key areas had the tim e and effort devoted to FOIA litigation by senior intelligence officers been focused instead on crucial intelligence missions tion. Release of 46,000 pages of documents in the case of Alger Hiss, for example, entailed careful screening of 147,000 pages whi le the more than 160,000 pa,ges of documents relating to the Rosenberg spy case which were released to one requestor required a review of more than 480,000 pages by more than 50 Bureau agents.
The problems faced by the FBI, as well as by other government a gencies charged with law enforcement and intelligence functions are summed up in a recent decision by the U.S. Court of Appeals for the Third Circuit The same situation confronts the Federal Bureau of Investiga What concerns us particularly is that a law e nforce ment agency, the FBI, is being required to expend sorely needed resources, not to deal with the burgeoning problems of crime which seriously besets all our citi zens, but to devote a large number of hours of exacting labor sorting out affidavits th a t were collected to apprehend crimes [sic) and prosecute offenders. Moreover informants, once aware that copies of affidavits submit ted to law enforcement agencies can be made public might be inhibited from future cooperation the fashion employed here, w i ll impose an additional burden on the trial courts that are already overworked It will make it necessary for them to review large numbers of records, such as had been requested here, in camera. And the fact that this procedure will be placed in an adversa r ial context will further prolong the process and add to its vexatious nature A further concern is that the use of the FOIA, in Perhaps when Congress is made aware of the problems spawned by the use of the Act which we have identified here it will attempt t o accommodate the concerns which we have expressed PATTERNS OF ABUSE One of the most serious problems caused by FOIA has been the sharp reduction in the ability of government agencies to gather intelligence through informant coverage. As one Drug Enforcem e nt Administration employee has said, "The real costs and effects of the FOI and Privacy Acts cannot be measured in terms of man-years or dollars, but by the increasing difficulty of collecting infor mation and keeping our sources confidential This problem is felt throughout the law enforcement and intelligence commmuni ties. 11 DEA has estimated that 40 per cent of the requests it receives are from convicted felons; another 20 percent come from individuals who, while not incarcerated are known to be connec t ed with criminal drug activity. In many cases, these requests have been notably repetitive and duplicative; in some, the result has been forced release of extremely sensitive information felon, for instance, used FOIA to force DEA to release to him inform a tion contained in a DEA intelligence brief used in the training of its own personnel detailing the procedures used by criminal elements in the manufacture of liquid hashish One convicted Pressures from journalists to retain FOIA in its present form notwit h standing, most FOIA requests actually do not come from members of the press or other researchers who communicate information to the public. A much greater share of requests received by many government agencies comes from business interests many of them se e king data on competitors. It is estimated, for example, that more than 85 percent of the requests received under FOIA by the Food and Drug Administration, which received over 33,000 during 1980 alone, are from regulated industry, their attorneys, or FOIA r equest firms believed to be acting in behalf of regulated industry. These requests are usually for information submitted by competitors the Secretary of Defense since 1975 have been from private indivi duals; 14 percent have been from special interest lob b ying Only 20 percent of the requests received by the office of Senator Orrin Hatch has cited the example of an unnamed government agency which released to one company confidential information originally provided by a competitor company on a new technique u sed to mask offensive odors produced by gamma ray sterilization of medical devices according to the U.S. Chamber of Commerce Similarly In early 1979, an aircraft company withdrew from competing for a multimillion-dollar contract to produce helicopters for the U.S. Coast Guard.
A major factor in its decision was a requirement that the firm submit information to the Coast Guard on its commercial helicopters.
Under the Freedom of Information Act, this information would be available to other companies and nations.
The aircraft manufacturer decided it could not give away design data on its highly successful commercial helicopters, which were developed entirely with corporate funds.
Precisely how disclosure of proprietary corporate information to a firm's comp etitors comports with legitimate facilitation of access by the American people to information on the workings of their government, which is presumably what FOIA was meant to accomplish, is at best unclear. 12 groups, while 55 percent have come from busine sses and law firms.
The situation confronting the Department of Justice is even more extreme; only about seven percent of its estimated 30,000 annual requests are received from press or other researchers.
But while the extent to which FOIA is used by the press and other individual researchers is perhaps exaggerated in the public mind, it is hard to exaggerate the way the Act has helped crimin a1 and extremist-including terrorist--elements. Senator Orrin Hatch (R-Utah chairman of the Senate Subcommittee on the Consti tution, has warned that FOIA 1s so broadly written that it is endangering informant information and testimony [so that] we only have about 25 percent of the domestic intelligence information we used to have."
The Justice Department notes a definite pattern of criminal exploitation.
In criminal cases, a defendant who seeks discovery information usually must demonstrate that the information being sought is relevant and that the request is llreasonablell and within the scope of criminal discovery. Also, a defendant's request for discovery may occasion a government right to recipro cal discovery. Frequently, however, criminal defendants have been able to skirt these restrictions by making FOIA requests often close to scheduled trial dates, to disru p t preparation of the prosecution's case or to delay trial while disputes over the requests are resolved by the court. While most courts have ruled that use of FOIA to supplant normal discovery procedure is improper, some have ruled that related FOIA reque sts are acceptable during a criminal trial As the Department has stated This ability to make requests before and during criminal trials disrupts trial proceedings and upsets the discovery scheme established under the Federal Rules of Criminal Procedure.I!
There is one imprisoned felon, for instance, reputedly a hit manvt for the Mafia, who has submitted 137 requests to the FBI under the Act and is currently pursuing a 35-count lawsuit against the Bureau under the Act by Mrs. Lynne K. Zusman, Special Litiga t ion Counsel in the Civil Division of the Justice Department according to Mrs. Zusman, the Another case has been reported This case illustrates back-and-forth interplay of the Freedom of Information Act in information that is obtained through other sources of discovery.
I saw it quite clearly in a case that is pending in California in which a large number of "Weather Underground" files are involved. The plaintiffs in the FOIA action had been indicted on State of California criminal conspiracy charges.
Discovery was going on in the criminal proceeding.
Through information obtained in the state criminal proceeding, the plaintiffs modified their FOIA requests through their counsel because of a large administrative burden on the Bureau in facing the prospect o f produc ing an affidavit on roughly 250,000 pages of documents I 13 The FBI was motivated to try and negotiate with oppos ing counsel to see if there could be some withdrawal of that request. In exchange, the FBI offered to, in essence, amend the FOIA re q uest and give access to files that were not originally included in it. In this back-and-forth discussion, one of the requests that plaintiff's counsel made was for the security files of a source which had been identified in the criminal discovery document releases as such and such a source number such and such, and, in essence, an FOIA request was being made simply for information from that source who, it had been revealed, had been an undercover agent for some period of time.
Steven R. Dornfeld of the Soc iety of Professional Journal ists, Sigma Delta Chi, has scoffed that lithe FBI is unable to cite a single instance in which an investigation has been hamper ed due to an FOIA disclosure The fact is, however, that there is a widespread perception among pot e ntial.informants that to provide information on what should be an entirely confidential basis is to run serious risk of disclosure under FOIA--not only of the information, but also of the source himself To make the point, FBI Director William Webster reve a led in 1979 that there had been no fewer than 125 recent cases in which individuals among them a federal judge, had refused to provide information for FBI investigations specifically because they feared their identities might be disclosed under either FOI A or the Privacy Act.
The Central Intelligence Agency faces the same impasse. As Admiral Inman has testified, FOIA "further impedes the CIA'S ability to do its job through the perception it has created overseas In many cases, tlindividuals have refused to cooperate with us, diminished their level of cooperation with us, or total ly discontinued their relationship with our people in the field because of fears that their identities might be revealed through an FOIA re1ease.I Are such perceptions valid, or ar e they scare tactics by agency heads lobbying for relief from the financial and manpower burdens imposed by FOIA? Admiral 1nman.has. stated flatly that even with the kind of quality resources we devote to the review process, human error is always a possibi l ityll and that I'Such errors have in fact occurred, resulting in the inadvertent ais closure of sensitive CIA and NSA information Further, the Ifhandling of FOIA requests involving CIA and NSA information by other aqencies has also resulted in some seriou s compromises of classified information relating to intellisence sourkes methods [emphasis added And compound these difficulties there "are attempts by requesters to gain additional classified information based upon these compromises.I demonstrated reliabi l ity became concerned by newspaper accounts As for the FBI, in one case, an organized crime informant of 14 of FBI information disclosures under FOIA. Having furnished information to the Bureau over a number of years, he concluded that his identity could b e discovered by piecing together this information. Thus, when asked to provide information in a major political corruption case, he refused to do so. In like manner as reported by the General Accounting Office A former source of excellent quality informati o n was recontacted because his background was such that he could develqp information of value concerning a ter rorist group. He initially refused to cooperate for fear that through an FOIA disclosure his identity could eventually be revealed. He believed h is information would be of such quality that anyone outside of the FBI upon reading it would easily be able to identify him.
He was reminded that he had functioned as a valued source for several years and that his identity had never been disclosed. He ackn owledged this was true however, he stated that due to FOIA he no longer believes that FBI agents can assure his complete protection even though they would make every effort to do so. The source also cited recent court cases, particularly the Socialist Wor k ers Party lawsuit, which convinced him that his identity could.not be protected. After 3 hours of conversation, the former source agreed to cooperate but only in a very limited way. He made it clear he would never again function as extensively as before b ecause of FOIA, similar laws, and court decisions.
He added that disclosure of his identity would most assuredly cost him his life.
These cases are not unique. Assistant Attorney General Jonathan Rose has stated that "criminal requesters'l may well "be ab le to piece together segregated bits of information in ways unknown to the FBI employee responding to the request and use the information to identify the existence of a government investiga tion or an informant According to Rose, "It has been [the Justice Department's] experience that some criminals, especially those involved in organized crime, have both the incentive and the resources to use FOIA to obtain bits of information which can be pieced together This is confirmed by former Deputy Attorney Genera l Laurence.Silberman, based both on the statements of knowledgeable FBI sources and on his own successful attempt to secure copies of the three FBI security investigations on him prior to his appointments to three sensitive government posts over the years. Though the Bureau had properly eliminated the names and other specific data identifying all persons interviewed during these investigations, Mr. Silberman had no trouble identify ing them simply by analyzing who knew what about him, as well as who did not know, in conjunction with information revealed in the interviews. Knowing more about himself and the interviewees than was known to the Bureau, he was able to determine who the speci fic interviewees were and what each had said about him 15 This danger wa s emphasized in testimony before the Senate Subcommittee on the Constitution by Francis J. McNamara, a widely respected expert on domestic-and foreign intelligence and sub version. He reminded the Senators of the existence of the "human error factor and ad d ed I have seen FBI documents released under the FOIA in which certain names that should have been eliminated were not I am sure inadvertently. There is at least one case in which the names of FBI agents who carried out intelligence assignments should have been deleted from FOIA documents, but were not. As a result, they ended up as defendants in a lawsuit. FBI documents turned over to the National Caucus of Labor Committees U.S. Labor Party) revealed the AFL-CIO had given the FBI information on the group a nd also contained the name of a university professor who had been a Bureau source I- with the result that he came under attack by the group.
One wonders what might have been the result had the pro fessor provided information on the Symbionese Liberation Army or the Weather Underground-or perhaps the Palestine Liberation Organization or the Ku Klux Klan.
As some of these examples indicate, exploitation of FOIA is of considerable value to the radical left particularly well-known and illustrates how someone c an entangle an intelligence agency in protracted legal proceedings that impair its ability to perform its primary duties in protecting the country Also, to make matters worse, application of FOIA is not limited to American citizens. As FBI Director Webste r told the American Bat Association in June 1980, "foreign intelligence agencies are using the Freedom of Information Act to obtain information about the United States The Agee case is Other examples include requests directed to the CIA by foreign sources. Some of these requests, explained former Deputy CIA Director Frank Carlucci, l!clearlyl! come from people seeking information that '!would do harm to this nation's interests over seas During the mid-l970s the National Aeronautics and Space Administration expressed concern over a regular series of re quests it received from AMTORG, the Soviet trading company widely regarded as operating for six decades as a cover for Soviet espionage activity.
A number of domestic organizations use FOIA with considerable fr equency. Among them are the National Lawyers Guild and National Emergency Civil Liberties Committee, which have been identified repeatedly as fronts for the Communist Party, U.S.A.; the Political Rights Defense Fund, identified as an adjunct of the. Trots k yite Communist Socialist Workers Party the Center for National Security Studies, an apparatus in which activists from the NLG, Institute for Policy Studies, Fund for 16 Peace, and several other left groups have played leading roles and the Campaign for Po l itical Rights a coalition comprised primarily of overtly leftist organizations including the NECLC and NLG. Boasted one of the organizers of the Campaign for Political Rights at a National Organizing Conference to Stop Government Spying that was held in A n n Arbor, Michigan, during September 1978 This [the FOIA] is a very important law to us We have obtained just tons of information These govern ment documents tell us exactly what the agencies did how they planned; how they carried out their plans what they responded to; and what information they obtained and by what means it's been critical to our fight been tive Indeed. Among the Ithow to" documents sought under FOIA have rosters of investigative personnel, materials on investiga techniques and procedures, and several types of hitherto confidential government manuals. An example of how potentially dangerous this can be is provided by the August 12, 1982, testi mony of Detective Arleigh McCree, Officer in Charge of the Fire arms and Explosives.Unit of the Lo s Angeles Police Department before the Subcommittee on Security and Terrorism of the Senate Judiciary Committee. Detective McCree, who has investigated some 500 bombings committed by terrorist and other criminal elements was questioned by Samuel T. Francis , legislative assistant to Senator John P. East (R-N.C a member of the Subcommittee An undated promotional flyer disseminated by the Campaign for Political Rights lists 51 "Member Organizations" and 30 "Cooperating Organizations."
Included in the first cat egory are several church related groups and other organizations fairly characterized as being on the political left, among them the American Civil Liberties Union; American Friends Service Committee; Black Panther Party; Center for Constitutional Rights; Center for National Security Studies; Clergy and Laity Concerned; Counterspy; CovertAction Information Bulletin [sic]; Middle East Research and Information Project; Puerto Rican.
Socialist Party; Women's International League for Peace and Freedom; Women Strike for Peace; and four organizations officially cited by Congressional committees as fronts for the Communist Party, U.S.A.: the National Alliance Against Racist and Political Repression, National Committee Against Repressive Legislation, National Emergency Civil Liberties Committee, and National Lawyers Guild.
Cat0 Institute to others like Ralph Nader's Critical Mass; the Democratic Socialist Organizing Committee; Environmental Action and EA'S affiliated Environmental Action Foundation; and the International Longshoremen's and Warehousemen's Union, described in the 1970 annual report of the House Commit tee on Internal Security as an organization "which has long been controlled by identified members of the CPUSA Cooperating Organizations" range from the Libertarian Party and the 17 I Mr. Francis. Do you have any instances you can cite in 5 which groups have been known to manufacture nerve gas?
Mr. McCree. Yes I do.
Mr. Francis. Could you describe that?
Mr. McCree. Yes. As far as fixing the time frame, it was some time back. We had an individual who had all the ingredients he needed to make nerve gas, with the exception of one He had it on llWill Call" at L:A.
International Airport, and was trying to sell a pump shotgun for 80 so he could gain the sufficient amount of money to go down and get it from IfWill Call."
There have been other attempts, as well. The "alphabet bomberll, for example, was very near synthesizing nerve gas So there have been a number of attempts to do it, and I Mr. Francis. Do you know whether the information that might add, very near successful ones these individuals used to try to produce this nerve gas, whether this was obtained through the Freedom of In formation Act?
Mr. McCree. Yes, it was It was declassified original- ly by I understand, mistake, but he procured it after it was published in another document, again, one of the attempts I guess, on the part of some misguided member of the news media, att empting to think he vas serving the public. But that is how he came by it, yes,'sir.
The plain fact is that, despite its good intentions, the Freedom of Information Act is being used in "unintended ways that] interfere unduly with important governmental activities,Il in the words of Deputy Attorney General Edward C. Schults.
Robert L. Saloschin, former Director of the Justice Department's Office of Information Law and Policy Asks how do you measure the costs to the nation of a law with chilling effects on sources who have important information for foreign intelligence or law enforcement or other federal functions, but hesitate-to provide it because they fear possible disclosure under FOIA may seriously hurt them? How do such costs relate, for example, to t he national cost of interstate theft, or to the cost of a serious international setback in economic or strategic matters? And how can you measure the costs in dollars, morale, and effects on me public of diverting agency staffs away from the work which Co n gress expects them to perform by making them process large and burdensome FOIA requests made for purely private purposes in order to obstruct, harass and delay legitimate agency activity which the requester or his principal opposes 18 WHAT NEXT Several pr o posals to correct FOIA abuses have been introduc ed in the House and Senate. In addition to legislation drafted and introduced by members of both houses, a major legislative package was introduced in behalf of the Reagan Administration as S. 1751 on Octob e r 20, 1981, by Senator Orrin Hatch. The Adminis tration proposal, presented as a series of amendments to FOIA was summarized by Senator Hatch The amendments would clarify several of the act's exemptions and procedures to strengthen the protection given to information where disclosure would result in an unwarranted invasion of personal privacy, harm the public interest in law enforcement, injure. the legiti mate commercial interests of private parties who have submitted proprietary information to the Govern ment, or impede the effective collection of intelligence.
The amendments would preclude the use of the Freedom of Information Act as a means to circumvent discovery rules by parties in litigation. The admend ments would provide for expedited processing of requests from the media and others seeking information for broad public dissemination while establishing realistic time requirements for agencies to respond to requests and decide appeals.
The amendments would establish procedures enabling submitters'of c onfidential commercial or financial information to object to the Government's release of such information The amendments would permit the Government to charge requesters fees that more closely reflect the actual costs of the Government's search and review of documents.
The amendments would add two new exemptions from the act for records generated in legal settlements and records containing technical information the export of which is controlled by law On May 20, 1982, the Senate Judiciary Committee approve d a compromise bill, S. 1730, after several months of negotiations among Senators Hatch and Leahy, Senate aides, and lobbyists for business, news media, civil liberties, and other interests. As approved S. 1730 would allow the Attorney General to seal fil e s on organized crime investigations for up to eight years expand protection for government informants by limit ing access to records that Ifcould reasonably be expect ed" to disclose the identity of a confidential source 19 exclude Secret Service records r elated to the Service's protective role from the Act's public disclosure rules create a new exemption for technical data that may not be exported from the United States without a license require'an agency to notify a business when anyone requests informat i on which the business had designated as sensitive when it submitted the data to the govern ment give businesses new rights, at the agency level and in court, to challenge agency decisions to release such records change the time limits for an agency to rel e ase request ed documents to allow for an extra 30 days to answer an FOIA inquiry while also expediting access to files by anyone who can show a compelling need for the informa tion being sought allow agencies to charge individuals for the cost of processi n g requested documents over and above the fees now charged for searching out and duplicating files permit the government to charge royalty fees for commercially valuable technological data obtained by the government at substantial cost to taxpayers bar rel e ase of records that !!could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy allow the Attorney General to issue regulations restrict ing the use of FOIA by imprisoned felons permit agencies to turn down requests by foreigners and prevent use of FOIA to circumvent judicial discov ery rules by giving an agency the right not to respond to ah FOIA request from a litigant in a pending govern ment case.
Other legislation before the Committee had provided for greater protection of business information, the closing of govern ment files on terrorism and foreign counterintelligence and even an outright exemption for the Central Intelligence Agency from the t erms of FOIA and removal of the disclosure of CIA records from the jurisdiction of the courts. As finally approved, how ever, the Senate measure omits these stronger provisions.
Senator Hatch is known to feel that "None of us accomplished all that we desir ed On the other hand, critics of earlier reform proposals have expressed approval of the compromise ver sion. Allan Adler, legislative counsel for the American Civil 20 Liberties Union, has avowed that "On the whole, we are very happy they protected the c o re of the Freedom of Information Act, which would have been severely [elviscerated if they went ahead with the other versions." And Richard M. Schmidt of the American Society of Newspaper Editors has stated that It really preserves the essence of the Free d om of Information Act" and #'helps pre serve the people's right to know A spokesman for the National Association of Manufacturers, however, has vowed that What we have done this year is just going to be the starting point for discussion in the next Congre s s In general, business appears disappointed by the failure of the compromise bill to include wider exemptions for business data, although there is approval for the new procedures that have been included ment spokesman has indicated Department approval for the new protections for records dealing with confidential informants organized crime, and use of the Act by imprisoned felons, al though the Department still would prefer additional restraints on the release of records related to investigations of terrori sm.
Despite this compromise it is increasingly apparent that meaningful revision of the Freedom of Information Act is unlikely to occur during this Congress. Though it has approved its compro mise bill, the Senate Judiciary Committee has yet to approve its formal report; and action in the House is highly unlikely in view of the position expressed by Representative Glenn English D-Okla chairman of the House subcommittee with jurisdiction over FOIA reform legislation. Representative English has made it clear that he intends to take no formal action until'the Senate has disposed of its own bill: I'We're waiting on the Senate.
That's where all the interest seems to be in making changes in FOIA On the House side, we didn't see the pressing need to make major cha nges that Senator.Hatch and the administration saw I A Justice Depart CONCLUSION Proponents of disclosure often speak in terms of the "peo ple's right to know" and the goals of "open government and Ira fully informed public in a democratic society The mor e extreme opponents of secrecy in government go even further. For example Center for National Security Studies Director Morton Halperin who has .made a career of harassing the American intelligence community, has claimed that '!Secret operations are anathe m a to democracy And the late Supreme Court Justice Hugo L. Black According to the National Emergency Civil Liberties Committee (Rights Vol. 28, No. 2, June-Aug 1982 On the positive side, the Freedom of Information Act remains largely intact thanks to the S e nate Judiciary Committee which unanimously voted down an effort by Sen. Orrin Hatch to substantially weaken the law. Some restrictions were tightened, but civil libertarians generally hailed the vote as a big victory." 21 in his opinion in the Pentagon Pa p ers case, stated flatly that Secrecy in government is fundamentally anti-democratic.Il Such formulations, however, 'while perhaps appealing to those of a more purely libertarian cast of mind, must be rejected as at best facile, especially by those who pla ce a premium on recognition of the realities of governmental power, secrecy being but one of the many attributes of that power.
The issue is not one of evil versus good; it is one of competing interests, both legitimate and both within the bounds of our po litical tradition. Put another way the issue is be tween the desirability of an informed body politic and the need for secrecy to the extent necessary for the protection of govern ment's ability to safeguard its existence and govern effectively within tho s e areas legitimately assigned to it under the Constitu tion So viewed, it becomes apparent that secrecy, like power generally, is neither good nor evil in absolute terms; it is simply neutral, and may be good or bad depending on the circum stances of its a pplication. As observed by the late Professor Willmoore Kendall, one of the most brilliant expositors of the American tradition, "The essence of the American political tradi tionit lies Itin limited government not in any mystique about Thus, we Ifmust lea r n to regard power as morally neutral [emphasis power in the spheres assigned, rightfully, to government II in original II Although such a conception may be offensive to ardent civil libertarians, it appears to have been shared, at least implicitly by thos e who approved the Freedom of Information Act. The House report on the bill which eventually became the Freedom of Informa tion Act of 1966 stated unambiguously that It is vital to our way of life to reach a workable balance between the right of the public to know and the need of government to keep information in confidence to the extent necessary without permitting indiscrimi nate secrecy.If Similarly, in signing FOIA into law on July 4 1966, President Lyndon B. Johnson stated that "This legislation spring s 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 Echoing Patrick Henry's refer ence to the Ifveil of secrecy,tf the President declared that "NO one should b e able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest Precisely so, but the Freedom of Information Act as current ly written has demonstrated a potential for serious harm to the conduct of governmen t activity essential to the overriding secur ity interests of the nation; and it is a well-established princi ple, affirmed by the U.S. Supreme Court in its June 1981 decision in the case of Haiq v. Agee, that It is 'obvious and unarguable that no governme n tal interest is more compelling than the secur ity of the Nat1on.I' Especially with regard to its application to the Central Intelligence Agency and its demonstrated value as a tool of harassment against domestic and other intelligence gather ing, FOIA cr ies out for revision.
William T. Poole Senior Policy Analyst