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Freedom of Information Act (1)
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66328743
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Freedom of Information Act (1)
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Records of the Office of the Chief of Staff (Reagan Administration)
James Cicconi's Subject Files
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THE WHITE HOUSE
File
WASHINGTON
FOIA
July 29, 1981
NOTE FOR JON ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
FROM:
KATE MOORE K2m
SPECIAL ASSISTANT TO THE CHIEF OF STAFF
SUBJECT: FOIA
Jon, per our conversation after yesterday's meeting, it would
indeed be helpful to have a two page fact sheet on the specific
proposals for legislation we would submit for changes related
to the Freedom of Information Act (with reference to those
specifics still to be determined, e.g. discovery issues).
Would it be possible to obtain the above by the end of this
week? This information would help us think about legislative
strategy before meetings again.
Many thanks.
cc: Frank Hodsoll
Mike Uhlmann
U.S. Department of Justice
-
Office of Legal Policy
Office of the
Washington, D. C. 20530
Deputy Assistant Attorney General
Tiles
BY HAND
1501A
October 8, 1981
Mr. Fred F. Fielding
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. Fielding:
I am enclosing a copy of the Department of Justice's
Proposed Amendment to the National Security Act of 1947.
The package was forwarded today by Bob McConnell's office
to OMB for official clearance.
Please call either Tim Finn (633-4604) or me (633-4606)
if you have any questions.
Sincerely,
Happy By-
Stephen J. Brogan
Enclosure
CC: (Mr Francis S.M. Hodsoll (w. encl.)
Ms. Mary Lawton (w. encl.)
Ms. Kate L. Moore (w. encl.)
Mr. David Waller (w. encl.)
DEPARTMENT OF JUSTICE
PROPOSED AMENDMENT
TO THE
NATIONAL SECURITY ACT OF 1947
October 8, 1981
IMENT
OF
Office of the Attorney General
PAID
SEQUITURE
DOMINA
Washington, n. C. 20530
JUSTITIA
*
October 8, 1981
Honorable David A. Stockman
Director, Office of Management
and Budget
Old Executive Office Building
Washington, D.C. 20503
Dear Dave:
I am enclosing for your review and consideration
the following documents:
(1) a proposed bill to amend the
National Security Act of 1947;
(2) a proposed transmittal letter
to the Speaker of the House of
Representatives to accompany
the bill when it is forwarded
to the Congress; and
(3) a section by section analysis
of the proposed bill.
The proposed bill would exempt the Central Intelligence
Agency, the National Security Agency, and the Defense
Intelligence Agency from the provisions of the Freedom
of Information Act. This proposal is the result of
consultations with the Central Intelligence Agency and
the Department of Defense and is intended to accom-
pany the Administration's proposed revisions to the
Freedom of Information Act which I forwarded to you by
letter of October 1, 1981.
As I stated in my letter of October 1, the last
scheduled hearings this year on the Freedom of
Information Act will be held on October 15, 1981.
Accordingly, the Administration's program--this proposed
legislation and the proposed revision to the Freedom
of Information Act--must be sent to Congress before
that date.
- 2 -
For these reasons, this proposed legislation must
complete your formal inter-agency review process no
later than the proposed revision to the Freedom of
Information Act. I hope you can assist us in meeting
this schedule.
Sincerely,
Bill
William French Smith
Enclosure
/
ENT
OF
Office of the Attorney General
ORLD
ABQUITUR
Washington, D. C. 20530
JUSTITIA
October , 1981
Honorable Thomas P. O'Neill, Jr.
Speaker of the House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker:
Enclosed for your consideration and appropriate
reference is a legislative proposal, "To amend the
National Security Act of 1947. "
The proposal is part of the legislative program
of the Department of Justice for the 97th Congress.
The Office of Management and Budget has advised me that
this legislation is in accord with the legislative pro-
gram of the President. We urge the Congress to give
this legislation its prompt and favorable consideration.
The proposed legislation, we believe, is necessary
to deal with a serious and increasingly difficult problem
facing the nation's most important and most sensitive
intelligence agencies, the Central Intelligence Agency,
the National Security Agency, and the Defense Intelligence
Agency. Recent experience has only confirmed the incompat-
ibility of the requirements of mandatory disclosure laws
when applied to intelligence agencies whose work neces-
sarily must be conducted in secret. As a consequence,
these agencies have been required to bear severe adminis-
trative burdens, to risk the disclosure of sensitive
information, and to suffer the loss of valuable foreign
sources of information. Moreover, federal judges have
been entrusted with the authority to second-guess the
classification decisions of even these agencies, although
one court has noted that " [f]ew judges have the skill or
expertise to weigh the repercussions of disclosure of
intelligence information." Weissman V. Central Intelli-
gence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
In return for this prodigious dedication of manpower,
and the resulting risks of disclosure and loss of foreign
sources of information, the benefits to the American public
have been few indeed. The permanent oversight process
recently established by Congress now serves to monitor
the activities of the intelligence agencies in a much
more effective way than public disclosure laws ever
could.
- 2 -
Accordingly, the Administration has determined
that the application of mandatory disclosure laws
is not appropriate with respect to the nation's
key intelligence agencies. Although refinements
to those laws certainly are appropriate to meet
the circumstances of most federal agencies, the
special needs and vulnerability of the intelligence
agencies are simply incompatible with the concept
of mandatory disclosure.
The security of the nation depends in significant
part on the ability of our intelligence agencies to
gather and analyze intelligence information. The
proposed legislation is needed to allow these agencies
the necessary latitude to develop foreign sources and
gather foreign information. We look forward to working
with Congress to achieve passage of this legislation.
Sincerely,
William French Smith
Enclosure
2
97th Congress
1st Session
A BILL
To amend the National Security Act of 1947.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
title I of the National Security Act of 1947 (50 U.S.C.
401 et seq.) is amended by adding after section 103 the
following new section:
"Sec. 104. The Central Intelligence Agency, the National
Security Agency and the Defense Intelligence Agency, and
any other agency or component thereof the principal func-
tion of which is the conduct of foreign intelligence or
counterintelligence activities and which the President
specifically designates by Executive Order, are exempt
from the provisions of any law (other than properly
applicable rules of judicial discovery) which require
the publication or disclosure, or search or review in
connection therewith, of records they create or maintain,
except that any proper request for records under the
Privacy Act of 1974, section 552a of title 5, United
States Code, shall be unaffected by this section. The
provisions of this section shall not be superseded except
by a statute which is enacted after the date of enactment
of this section and which specifically repeals or modifies
the provisions of this section. "
SEC. 2. This Act shall apply to any disclosure
after the date of enactment of this Act.
3
SECTION ANALYSIS
The draft bill would amend the National Security
Act of 1947 to create an exemption from disclosure obliga-
tions for records maintained by the Central Intelligence
Agency, the National Security Agency, the Defense Intelli-
gence Agency, and other intelligence and counterintelli-
gence agencies designated by the President. The purpose of
the draft bill is to relieve these agencies of the obliga-
tion to search for, review, and disclose documents held by
them in order to safeguard the security of classified docu-
ments and other sensitive information and avoid unnecessary
disruption of their intelligence operations. However, the
draft bill would not affect properly applicable rules of
judicial discovery or requests for information under the
Privacy Act of 1974, 5 U.S.C. § 552a.
I. SECTION I OF THE DRAFT BILL -- AMENDMENT TO THE
NATIONAL SECURITY ACT
Section 1 of the draft bill would add section
104, a new exemption provision, to the National Security
Act of 1947.
A. Present Law
The Central Intelligence Agency, the National
Security Agency, and the Defense Intelligence Agency
- 2 -
presently are subject in full to the provisions of the
Freedom of Information Act, 5 U.S.C. § 552. Just as any
other agency, these agencies must provide any agency
records upon request from any person, unless the agency can
demonstrate that the records fall within one of the
enumerated exemptions to disclosure in section 552 (b).
Two of the exemptions are of particular impor-
tance to the intelligence agencies: exemption (b) (1),
which protects information relating to national defense or
foreign policy and properly classified pursuant to
Executive Order; and exemption (b) (3), which protects
information specifically exempted from disclosure by
another statute.
Under exemption (b) (1), the intelligence agencies
must demonstrate that the records sought to be withheld are
properly classified under Executive Order. The agencies
bear the burden of proving that the records are properly
classified, and the United States district courts are
authorized to decide de novo whether the documents are in
1/ The currently effective executive order relating the
classification of national security information is
Executive Order 12065.
- 3 -
fact properly classified Although the Statement of the
Conference Committee on the 1974 amendments to the Freedom
of Information Act indicated that the courts are to give
"substantial weight" to the agency's classification deci-
sion, the courts are free to decide for themselves
whether the information is properly classified and to order
disclosure even over the objections of the agency.
Exemption (b) (3) of section 552 also authorizes
witholding of information specifically exempted from dis-
closure by statute. Several such statutes apply to the
intelligence agencies. Section 102 (d) (3) of the National
Security Act of 1947, 50 U.S.C. § 403 (d) (3), provides that
"the Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
unauthorized disclosure." This statute has been held to be
an exemption statute within the meaning of 5 U.S.C.
2/ 5 U.S.C. § 552 (a) (4) (B). The accompanying draft bill to
amend the Freedom of Information Act, section 5, would
substitute the traditional Administrative Procedure Act
standard of review for arbitrary or capricious action in
place of the present de novo review for exemption (b) (1)
claims.
3/ Joint Committee Print, Senate Committee on the
Judiciary and House Committee on Government Operations,
Freedom of Information Act and Amendments of 1974 (P.L.
93-502), 94th Cong., 1st Sess. 229 (1975) see Hayden
V. National Security Agency, 608 F.2d 1381 (D.C. Cir.
1979), cert. denied, 446 U.S. 937 (1980).
See Holy Spirit Association for the Unification of
World Christianity V. Central Intelligence Agency, 636
F.2d 838, 845-46 (D.C. Cir. 1980).
- 4 -
§ 552 (b) (3), but limited to the withholding of information
whose release could lead to the disclosure of confidential
sources and methods. In addition, section 7 of the
Central Intelligence Agency Act of 1949, 50 U.S.C. § 403g,
provides that "the [Central Intelligence] Agency shall be
exempted from
...
the provisions of any other law which
require the publication or disclosure of the organization,
functions, names, official titles, salaries, or members of
personnel employed by the Agency." This provision has been
held to be limited to the withholding of information
relating to agency personnel and structure, not to agency
activities 6/
Even in the case of documents withheld as exempt,
the intelligence agencies must be prepared to justify the
withholding on a line-by-line basis, to provide a detailed
index of withheld documents and the explanation for the
withholding, and the explain the action to a court, either
publicly or in camera.
5/ Phillippi V. Central Intelligence Agency, 546 F.2d
1009, 1015 n.14 (D.C. Cir. 1976).
6/ Id. Section 6 (a) of the National Security Agency Act
of 1959, 50 U.S.C. § 402 note, provides a somewhat
similar exemption for the National Security Agency
which does extend to information concerning the
activities of the Agency.
- 5 -
B. Reasons for change
The public disclosure requirements of 5 U.S.C.
§ 552 apply to all agencies and, to varying degrees, all
agencies have experienced difficulties in administering the
present provisions of that section. The accompanying draft
bill to improve the Freedom of Information Act is an
attempt to respond to the salient problems at most federal
agencies.
As worthwhile as those proposed amendments are
for other agencies, they do not and cannot address fully
the special needs and vulnerability of the nation's key
intelligence agencies. The Central Intelligence Agency,
the National Security Agency, and the Defense Intelligence
Agency are among the nation's most sensitive intelligence
agencies, and of necessity must conduct their operations in
strict secrecy. Given their sensitivity, the application
of a mandatory disclosure law necessarily imposes an incom-
patible obligation upon these agencies. The draft bill
reflects the Administration's judgment that the appropriate
resolution to this problem is to exempt these agencies from
the incompatible public disclosure requirements of 5 U.S.C.
§ 552.
Each of the three agencies covered by the draft
bill is an especially sensitive element of the nation's
national defense and foreign policy intelligence
- 6 -
establishment. The Central Intelligence Agency is the
leading agency in gathering intelligence and counter-
intelligence information and conducting covert
operations. Disclosure of information in its files could
expose the identities and operations of its covert agents
and sources, result in physical reprisals or intimidation
against its agents and sources, and reveal intelligence
decisions and priorities at the highest levels. The
National Security Agency has two critical roles: to safe-
guard the security of vital United States communications
("communications security") and to acquire foreign intelli-
gence information by intercepting foreign communications
("signals intelligence"). Disclosure of information
gathered by the National Security Agency could render
United States communications susceptible to foreign inter-
ception, enable foreign powers to adopt countermeasures to
prevent interception of their communications, or disclose
the Agency's technical ability to intercept and interpret
particular foreign communications and channels. The
Defense Intelligence Agency operates at the highest levels
of collecting, processing, and analyzing foreign intelli-
gence relating to national security for the Secretary of
Defense and the Joint Chiefs of Staff. An important aspect
of the Defense Intelligence Agency's intelligence
operations is the Defense Attache System. Because of
particularly sensitive nature of the Attache's diplomatic
status, information gathered by him must be carefully
- 7 -
guarded to prevent diplomatic reprisals or loss of access
to further information. In addition, other components of
the nation's national defense and foreign policy intelli-
gence establishment operate at a level of sensitivity equal
to that of these three intelligence agencies.
The experience of these key intelligence agencies
in complying with mandatory disclosure requirements has
made clear the inevitable problems that arise. The most
immediate problem is the exceptional burden that the
processing of information requests places upon the intelli-
gence agencies. By necessity, these agencies operate on an
extremely decentralized basis, with access to information
allowed only to those with a "need to know." These
agencies cannot operate a central office of professional
disclosure personnel as other agencies do. Moreover,
because of the extreme sensitivity of the information held
by these agencies and the difficulty of accurately
measuring the potential for harm in releasing particular
bits of information, the review of agency documents must be
conducted by high level, experienced intelligence officers
familiar with the particular documents and the agency's
operations. This necessarily diverts them from their
assigned intelligence activities.
- 8 -
For an intelligence agency, the processing of
requests and the releasing of information poses a constant
risk of disclosing highly sensitive information. This risk
cannot be avoided by the existing exemptions from
disclosure for certain types of information. The require-
ment to review and possibly release each document on a
line-by-line basis always raises the risk of inadvertent
release of sensitive information. Even more threatening is
the ability of foreign intelligence operations to piece
together disparate, seemingly non-sensitive data in order
to deduce important information about American intelligence
operations. Because the three agencies have been required
to release ever-increasing amounts of information publicly
in order to establish the applicability of an exemption for
particular information in court, the danger that these
releases will lead to the discovery and exposure of other
highly sensitive information is becoming ever greater. For
example, the disclosure of even fragmentary information by
the National Security Agency could, when pieced together
with other bits of information, alert a foreign power to
the Agency's ability to monitor a particular channel.
The process of judicial review also heightens the
danger of inadvertent release of highly sensitive informa-
tion. Although most courts have respected these agencies'
- 9 -
expertise in intelligence matters, / in at least one case
the courts have ordered disclosure of classified informa-
tion over the objection of the intelligence agency8/ and
in two other cases the court's disclosure order was
reversed only on appeal or on reconsideration. The
authority of the courts to review and overrule the classi-
fication decisions by these sensitive agencies is anomalous
because, as the United States Court of Appeals for the
District of Columbia Circuit has noted, "[f]ew judges have
the skill or experience to weigh the reprecussions of dis-
closure of intelligence information. 10/ Yet the existence
of that authority means that the Central Intelligence
Agency, the National Security Agency, and the Defense
7/ See, e.g., Halperin V. Central Intelligence Agency, 629
F.2d 144, 148 (D.C. Cir. 1980); Hayden V. Central
Intelligence Agency, 608 F.2d 1381, 1388 (D.C. Cir.
1979), cert. denied, 446 U.S. 937 (1980) Weissman V.
Central Intelligence Agency, 565 F.2d 692, 697 (D.C.
Cir. 1977).
8/ Holy Spirit Association for the Unification of World
Christianity V. Central Intelligence Agency, 636 F.2d
838, 845-46 (D.C. Cir. 1980).
9/ Weberman V. National Security Agency, 480 F. Supp. 9
(S.D.N.Y. 1980) (ordering disclosure), rev'd per
curiam, No. 80-6155 (2d Cir. Dec. 18, 1980), on remand,
507 F. Supp. 117 (S.D.N.Y. 1981), No. 77 Civ. 5058
(CLB) (S.D.N.Y. June 5, 1981) (denying disclosure);
Baez V. National Security Agency, Civ. No. 76-1921
(D.D.C. Nov. 2, 1978) (ordering disclosure of
classified affidavit), on reconsideration, (D.D.C. July
17, 1980) (vacating disclosure order).
10/ Weissman V. Central Intelligence Agency, 565 F.2d 692,
697 (D.C. Cir. 1977).
- 10 -
Intelligence Agency cannot be certain of the security of
even their most sensitive information. Even if the court
does not order disclosure, the requirement that the
agencies index their documents and create highly sensitive
affidavits putting into context and explaining the
applicability of an exemption to particular documents
raises the serious potential for breaches of security. An
in camera affidavit may be significantly more sensitive
than the particular document sought to be withheld, 11 / yet
these affidavits in some cases have been read not only by
judges but by law clerks and other unauthorized personnel.
As a result of the administrative and judicial
processes under 5 U.S.C. § 552, the key intelligence
agencies have faced increasing difficulty in gathering
crucial foreign intelligence. The widely held belief that,
because of mandatory disclosure requirements, these
agencies cannot assure the confidentiality of information
gathered and of sources who provide that information has
led many foreign sources and potential sources to refuse to
cooperate with American intelligence operations. Many
individuals who cooperate with these agencies do so at
11 / For example, an affidavit explaining the sensitivity of
information obtained by the National Security Agency
may reveal not only the existence of particular
information in the Agency's files but its method of
gathering this information and the ability to intercept
particular channels.
- 11 -
great personal risk, and the susceptibility of intelligence
files to search and review, and possible disclosure, is a
strong deterrent to their willingness to continue providing
valuable intelligence.
Each of the intelligence services has encountered
numerous instances in which individuals have refused to
cooperate, diminished their level of cooperation, or com-
pletely discontinued confidential relations with the
intelligence agencies because they believed their identity
might be revealed through the Act. Even foreign intelli-
gence services have registered strong reservations about
full cooperation with American intelligence agencies as
long as their operations are subject to the Freedom of
Information Act. Those perceptions are having a very real
and very serious impact on these agencies' abilities to
gather vital intelligence. This result is particularly
detrimental at a time when the nation's need for accurate
foreign intelligence is as great as if not greater than
ever.
For these reasons, the application of the Freedom
of Information Act has had a serious and detrimental impact
upon the nation's intelligence efforts. In return, the
applicaton of mandatory disclosure requirements has
resulted in the release of very little information from the
records of the key intelligence agencies. The information
- 12 -
disclosed generally has been extremely fragmentary and has
related to subject matter originally revealed by other
means.
In order to maintain a check on the activities of
the key intelligence agencies, the Congress has established
a formal oversight process to subject these agencies to
continuing scrutiny and review of their operations. 12/
This system of vigilant Congressional oversight can assure
that the intelligence agencies act in accordance with legal
requirements. The public disclosure requirements of 5
U.S.C. § 552, always unsuited to the special
characteristics of the intelligence agencies, are simply
not a necessary or effectual tool for the purpose of over-
sight -- if they ever were.
C. Explanation of Amendment
Section 1 of the draft bill would remedy the
shortcomings of the present applicability of the Freedom of
Information Act by providing a new exemptive provision, as
part of the National Security Act of 1947, for the records
of the Central Intelligence Agency, the National Security
Agency, and the Defense Intelligence Agency. In conjunc-
tion with subsection (b) (3) of 5 U.S.C. § 552, the
12/ See section 501 of the National Security Act of 1947,
as amended, 50 U.S.C. § 413.
- 13 -
amendment made by the draft bill would exempt these
agencies from the obligation to publish or disclose their
records, or to search or review them in connection there-
with. Only an exemption from disclosure framed in this way
is broad enough to assure the security of these intelli-
gence agencies' highly sensitive information.
In addition to the three specified agencies, the
draft bill would authorize the President, by executive
order, to designate other agencies or units thereof as
exempted from mandatory disclosure laws. This provision is
intended to address the situation where a particular
organization, such a component of the National Security
Council or the military intelligence agencies, is operatng
at such a level in intelligence or counterintelligence
activities that protection against disclosure equivalent to
that accorded the Central Intelligence Agency is
warranted. The provision would require a specific designa-
tion by the President in an Executive Order addressed to
this issue. 13/
13/ Executive Order 12036, which presently governs United
States intelligence activities, contains a definition
of the "Intelligence Community," for purposes of that
Order, in section 4-207. The proposed amendment to the
National Security Act made by the draft bill would
require a specific designation of agencies or
components thereof for purposes of the exemption from
disclosure, and so the definition in section 4-207 of
Executive Order 12036 would not be controlling for
purposes of exemption from disclosure. A separate,
specific executive order would be required to exempt
agencies other than the three agencies expressly
exempted.
- 14 -
The exemption from disclosure is specifically
limited in two respects. First, the amendment made by the
draft bill would have no effect on properly applicable
rules of judicial discovery, in litigation by or against
the agencies subject to the amendment. Second, the amend-
ment made by the draft bill would have no effect upon any
proper request for records under the Privacy Act of 1974, 5
U.S.C. § 552a. The agencies would still be subject to
requests by individuals for records concerning themselves
under that provision. 14/ Moreover, nothing in the draft
bill would affect the Congressional oversight process
provided for in section 501 of the National Security Act of
1947, as amended, 50 U.S.C. § 413.
The draft bill also includes a provision relating
to the construction of the exemption from disclosure pro-
posed to be enacted as section 104 of the National Security
Act of 1947. According to this provision, the exemption
provided in section 104 would continue to apply unless
specifically repealed or modified by subsequent legisla-
tion. The purpose of this provision is to provide a clear
rule of construction, in order to avoid the issue of an
implied repeal by subsequent enactments or judicial
14/ Although the Privacy Act of 1974, 5 U.S.C. § 552a(j),
already authorizes the Central Intelligence Agency to
exempt any system of records held by it from
disclosure, the Agency has adopted only a limited
exemption for national security and other specified
types of information. See 32 C.F.R. Part 1901. The
Director of Central Intelligence has expressly stated
that the Central Intelligence Agency does not intend to
change this policy.
- 15 -
uncertainty in construing this provision. This provision
does not preclude a subsequent repeal or amendment of pro-
posed section 104, but requires that the repeal or
amendment be made with specificity.
II. SECTION 2 OF THE DRAFT BILL -- EFFECTIVE DATE
Section 2 of the draft bill provides that the
amendment to the National Security Act made by section 1 of
the draft bill would apply to any disclosure after the date
of enactment of the bill. Thus, the exemption would apply
in all cases in which records had not yet been disclosed by
an agency. This would include requests for records made
after the effective date of the bill, requests made prior
to the effective date of the bill that had not yet resulted
in the disclosure of records, and requests that are the
subject of litigation in the courts of the United States in
which disclosure had not yet been made in response to a
court order.
The effective date of the bill is patterned after
another exemption statute recently enacted by Congress in
section 701 of the Economic Recovery Tax Act of 1981, Pub.
L. No. 97-34, 95 Stat. 340, Aug. 13, 1981. In that case,
several requesters sought disclosure of the standards used
for the selection of income tax returns for auditing, and
the issue was being litigated in the courts. Section 701
- 16 -
of that Act provided an exemption from disclosure for such
information, which "shall apply to disclosures after July
19, 1981," even though the Act was not approved until
August 13, 1981. The effect of that provision was to
create an exemption on a retroactive basis that would apply
to all cases, whether the subject of pending litigation or
not.
The draft bill would accomplish a similar
purpose, except that the exemption created by section 1 of
the draft bill would apply only prospectively to all
requests and cases in which disclosure had not yet been
made.
THE WHITE HOUSE
WASHINGTON
August 19, 1981
Note for Mike Uhlmann
Frank Hodsoll
From:
Kate Moore
k2n
Re:
FOIA
Pursuant to a meeting held by
Jonathen Rose on July 28, on the
subject of the Freedom of Infor-
mation Act, I suggested to Rose
that it might be useful for us to
have a 2 to 3 page summary of the
substance of proposed changes
Justice would be seeking.
Attached is a memorandum from
Rose which arrived yesterday.
U.S. Department of Justice
Office of Legal Policy
JUSTINA
Office of the
Washington, D.C. 20530
Assistant Attorney General
August 17, 1981
Tile
FOIA
Honorable James A. Baker III
Chief of Staff and Assistant to the
President
The White House
Washington, D. C. 20500
Dear Jim:
At the request of your staff, I have prepared the enclosed
summary of the primary issues that we would like to address by
amendments to the Freedom of Information Act, which are under
preparation in the Justice Department.
I will appreciate any comments which you or any of your
staff may have concerning this matter.
Sincerely yours,
Jonathan C. Rose
Enclosure
U.S. Department of Justice
)
Office of Legal Policy
JUSTITIA
Office of the
Washington, D.C. 20530
Assistant Attorney General
August 17, 1981
MEMORANDUM
TO:
James A. Baker III
Chief of Staff and Assistant to the President
Edwin Meese III
Counsellor to the President
FROM:
Jonathan Assistant C. Attorney Rose Jan
General
Office of Legal Policy
SUBJECT:
Freedom of Information Act Legislative Project
The following memorandum summarizes (1) the principal
problems presented by the Freedom of Information Act, (2) the
basic kinds of solutions we are considering, and (3) the primary
political concerns presented by these solutions. Any attempt to
restrict this highly symbolic act will, of course, raise some
political criticism. It is, moreover, clear to us that the
Subcommittee on Government Information and Individual Rights of
the Committee on Government Operations, which has jurisdiction
over FOIA, is inclined to resist any attempt to restrict the
reach of the Act. As discussed below, however, the level of
political opposition evoked--and the chances of passage--will
turn largely on our choice of amendments and legislative
strategy.
1. Criminal Law Enforcement
The primary concerns presented by the current law to
criminal law enforcement agencies are (1) that it has created a
perception among some confidential informants that federal
agencies cannot adequately protect their information or
identities; (2) that criminals may be able to piece together
information which appears innocuous on its face to uncover the
course of an investigation or the identity of an informant; and
(3) that the Act imposes substantial and unjustified administra-
tive burdens.
- 2 -
It should be noted that the identity of and information
from informants are generally protected under current law--
indeed, the FBI has told us that it knows of no instances where
confidential sources have been uncovered through its FOIA
releases. It is evident to us, however, that, as a result of the
narrow and sometimes confusing terminology of the present
exemptions and the difficulty of processing requests under these
standards, information has occasionally been released which would
tend to compromise sources.
The FBI believes that these problems would be substantially
solved by minor changes in the FOIA exemptions to make clear that
any information provided by informants or which would tend to
identify informants is exempt. This, of course, would not elimi-
nate entirely the risk of human error, but the processing of
sensitive information could be significantly simplified. It is,
in addition, important that the Act be amended so that law
enforcement agencies will not be required to reveal even the
existence of records in limited circumstances where acknowledging
such records would reveal the existence of an informant or an
ongoing investigation. Such changes can, we believe, be fully
justified and, accordingly, should not raise great political
opposition.
A more sweeping change, which has been proposed by the FBI,
is to impose a "moratorium" on the disclosure of all law enforce-
ment records for a period of years after the close of an
investigation. The Hatch bill (S. 587) currently before the
Senate proposes a ten-year moratorium; amendments developed by
Justice under the prior administration proposed a three-year
moratorium on all files; and the FBI has proposed a seven-year
moratorium. Such proposals are highly controversial. The FBI
admits that a moratorium may not really be necessary if the other
changes to the Act discussed above are made, except with respect
to its most sensitive files dealing with organized crime,
terrorism, and foreign counterintelligence. For such files, the
FBI would like at the very least a five-year moratorium, though,
ideally, it would like to exempt such files completely. A
general moratorium on all files in addition to strengthened
exemptions can only be justified as a protection against human
processing errors (to which Congress will not likely be
sympathetic, particularly since the FBI itself seems reluctant to
admit to such error) and as a means to greatly limit the adminis-
trative burden. While the administrative costs are significant
(over $11 million for the FBI alone), it may be politically quite
difficult to limit access so substantially for this reason
alone. We may wish, however, to ask for a moratorium of moderate
length as an initial bargaining position.
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2. National Security
The CIA and other national security agencies believe that
the Act creates a perception among highly-sensitive foreign
sources that we cannot keep sensitive information fully confiden-
tial. While no court has ever ordered the disclosure of informa-
tion over the CIA's objection, the very fact that the CIA's
decisions are potentially reviewable by hundreds of federal
judges raises concern among sources.
The CIA also argues that its administrative burdens under
the Act are uniquely troublesome. Information is compartmen-
talized within the Agency, and broad FOIA requests require review
and processing by intelligence agents in various units. The time
spent by line personnel in processing FOIA requests seems
particularly wasteful to the CIA in light of the fact that very
little information is released.
The CIA believes that the only solution is a complete
exemption from FOIA. We believe that it is extremely unlikely
that this would be acceptable to--or even seriously considered
by--the Government Operations subcommittee. Virtually the same
result could be achieved, however, by amending the CIA's organic
legislation to prevent disclosures pursuant to FOIA rather than
by amending FOIA itself. Such legislation could be pursued
through the more sympathetic House and Senate intelligence
committees (although Government Operations might seek a
referral). Senator Chafee has already introduced such a bill in
the Senate.
3. Business Records
There is at least a perception in a large segment of the
business community that the Act results in the disclosure of
competitively damaging business records. There is, however,
considerable debate over the extent to which this may have
occurred (competitively harmful information is already exempted
under the current terms of the Act).
Two different types of solutions have been proposed. First,
agencies might be required to notify business submitters of any
request for their files and the submitters could be given the
right to challenge the disclosure before the agencies and in
court. Such procedural rights seem only fair and are likely to
be broadly supported.
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A more sweeping remedy, which is proposed in two current
bills (S. 1247 and H.R. 3928), would be to expand the current
business records exemption to make exempt from disclosure virtu-
ally all information submitted by businesses. This is a very
controversial proposal, because it is impossible to scrutinize
the basis of some kinds of agency actions without the information
submitted to the agency by regulated businesses.
Because of its simplicity, this may be the most desirable
solution. We believe, however, that the substantive concerns of
businesses can be adequately addressed with less political
controversy by providing business submitters with procedural
rights while clarifying and broadening slightly the terms of the
business information exemption.
4. FOIA As A Discovery Device
Businesses and law firms make frequent and often very
disruptive use of FOIA as a means to discover information
relevant to ongoing judicial or administrative litigations. The
requirements of relevancy and need inherent in normal discovery
procedures are evaded by use of FOIA as a discovery device.
We believe that the Act should be amended to prevent
litigants from using FOIA for discovery purposes where they
already have discovery rights under judicial or administrative
rules. While this will not be a popular amendment among local
law firms, it should not raise great liberal opposition.
5. Factual Information In Agency Deliberative Documents
There is some confusion in the current law over the extent
to which factual information which is contained in predecisional
deliberative documents (which are exempt under the Act) must be
segregated and made available.
We would propose to codify the line of judicial decisions
which have found that factual analyses prepared directly in aid
of the decision-making process are exempt. While this proposal
receives some support from the case law, it is likely to generate
significant opposition from some users of the Act, since some
requesters believe factual information disclosed from agency
decision-making documents to be of considerable value.
6. Costs
The Act imposes direct costs of about $60 million on the
government and only about 4% of these costs are recovered through
user fees. There should be little objection to amending the Act
to allow the agencies to charge their full processing costs at
least for information requested primarily for commercial
purposes. The large majority of FOIA requests are, indeed, made
by businesses and law firms for private, commercial purposes.
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This would enable the government to recover a substantial amount
of its processing expenditures and deter frivolous and over-broad
requests.
We will, in addition, submit a number of less significant
and more technical amendments which need not be discussed here.