Hon. ORRIN G. HATCH,

U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION,

Washington, DC. February 28, 1984.

Chairman, Subcommittee on Constitution, Senate Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: During my testimony before your Subcommittee on April 21, 1983 concerning the proposed amendments to the Freedom of Information Act (FOIA), I was asked by Senator Leahy about the status of an FOIA request concerning the matter of Dr. Jeffrey R. MacDonald. At that time, I was unable to fully respond to the question. However, Subcommittee staff were orally advised of the status of this FOIA case shortly after the hearing.

To assist the Subcommittee in completing the hearing record, I am attaching a summary to date of the work undertaken in response to this FOIA request. If I can be of any further assistance, please do not hesitate to contact me.

Sincerely yours,

Enclosure.

WILLIAM H. WEBSTER, Director.

As a result of Brian J. O'Neill's Freedom of Information/Privacy Act request concerning his client, Dr. Jeffrey R. MacDonald, two packages of FBI material pertaining to Dr. MacDonald were released on July 11, 1983, and August 30, 1983. These releases culminated in a total of 2,048 pages being released to Mr. O'Neill, with 455 pages denied and 10 pages referred to the Department of Justice for direct response. Deletions were made citing Freedom of Information/Privacy Act exemptions j2, b3, b5, b6, b7A, b7C, b7D, and b7E. The material withheld under exemption b7A consisted of certain information obtained through investigation subsequent to Dr. MacDonald's trial in 1979.

Mr. O'Neill appealed the material withheld. After discussions with Departmental attorneys, our processing was affirmed by letters dated November 8, 1983, and December 27, 1983. A supplemental release of four pages was included with the December 27, 1983 letter.

Department of Justice referrals and Mr. O'Neill's most recent request for certain laboratory notes have resulted in approximately 300 additional pages being located, which are being processed at the present time.

Senator LEAHY. That is all I have for Judge Webster.

Senator HATCH. Mr. Director, just one or two other questions. In 1979, you documented over 100 instances of FOIA interfering with confidential informants or investigations. In 1981, as I recall, you expanded that list to 204. Now, does this indicate that criminals are becoming more sophisticated in the use of FOIA to disrupt law enforcement approaches?

Mr. WEBSTER. I do not know that the numbers that we gave you statistically indicate an increased sophistication, but the examples that we have provided you certainly indicate an increased and more effective use by the criminal element of the statute.

Senator HATCH. Does broadening the language protecting informants from exempting information that would disclose to could reasonably be expected to disclose an informant's identity-does that offer enough protection?

Mr. WEBSTER. I think that that particular section is the most important section of your bill, Mr. Chairman, and it is one that I have advocated for some time. You use slightly different terminology than mine, but yours is completely acceptable to the Department and to the Bureau.

I have used this example so many times that I am almost embarrassed to use it again, but it is the green sedan. We have 420 employees in the Bureau working full-time responding to these questions. That gives you an idea of the volume that is involved in responding to these questions.

Senator HATCH. Might I just interrupt? The last time you testified, as I recall, that was just 300.

Mr. WEBSTER. Well, the 300 were working at headquarters alone. We have 55 field office employees and 16 in the Legal Counsel Division. The dollar amounts, I said, were costing $11 million or $12 million. It is now actually costing $13,195,525 a year to respond to these requests both at headquarters and in the field.

I mention this only to give you an idea of the size of the operation. Thousands of pages, as I mentioned in my opening statement, have to be scrutinized and excised to support the specific exemptions that are available to the Bureau.

Now, as this material is passing through the analytical process, the analysts have to ask the question, under the current statute, whether specific information on that line will identify an informant. The word is "will."

Now, suppose the words "green sedan" show up on the line. The analyst does not know what is significant about a green sedan; he does not know whether it is, in fact, significant. The analyst does not know what the requester knows; the analyst never knows what the requester knows, but that might be the most significant item on the line, if the requester knows that a particular person owns a green sedan.

By making a reasonable modification such as you have done in this bill, you give us the latitude to say that the green sedan could reasonably be expected to lead to the identification of an informant. There, we can keep the toothpaste in the tube.

If someone wants to challenge it, they can challenge it and it can be reviewed administratively and in the courts. But we do not have the analyst giving away information that ought not to be disclosed, simply because the analyst does not know what the requester knows.

Senator HATCH. Thank you, Mr. Director. We appreciate the time you have taken to be with us, and apologize for all the delays that we have had. But your testimony is most important in our deliberations and consideration of this bill.

Mr. WEBSTER. I am honored to be here, Mr. Chairman.

The CHAIRMAN. Let me ask one other question.

Senator HATCH. Senator Thurmond has one final question.

The CHAIRMAN. Judge, you have studied this bill carefully?

Mr. WEBSTER. I have, Mr. Chairman.

The CHAIRMAN. Is this bill adequate? Does it do what needs to be done, or is it compromised to the extent that it will not do the job properly?

Mr. WEBSTER. On a scale of 1 to 10, I think it gets to about an 8 for us. It would enormously improve our ability to function and still maintain the Freedom of Information Act.

There are one or two areas still unaddressed, but in terms of the importance of getting some legislation through that will permit us to do our job, we are really very pleased to support this bill, recognizing that somewhere along the line we may have other areas we would like to attend to.

I think with other exemptions, we can deal with most of our problems. But this is a bill that has had departmental support and I certainly support it today.

The CHAIRMAN. Now, if this bill passes and you find other areas where you are handicapped or the public is not protected or the criminal is promoted, will you come back and ask for changes? Mr. WEBSTER. Indeed I will, Mr. Chairman.

The CHAIRMAN. Thank you.

Senator HATCH. Thank you, Mr. Director. We will release you at this time. If I could just see you for a second in the back room, I would appreciate it. I will call our next witness, though.

Our next witness is Mr. Bob Lewis, who is a reporter with Newhouse Newspapers. Today, however, Mr. Lewis is testifying on behalf of the Society of Professional Journalists, Sigma Delta Chi. He is the treasurer of that organization.

As I have mentioned earlier, Mr. Lewis, your organization and other news media organizations have contributed significantly to the process which has produced S. 774, so we welcome you to the subcommittee.

Senator LEAHY. Mr. Chairman, I just want to note before we start with that testimony, if I could, that Assistant Attorney General Jonathan Rose testified on Monday that the Justice Department had done a study prepared by a pro-FOIA group which listed about 500 important examples of information which came to the public's attention through FOIA requests.

He stated that he was surprised to learn that of the more than 500 examples listed in the study, there were only four cases where S. 774 might have prevented the disclosure of the information in question.

To give the courts some guidance as to the Justice Department's and committee's understanding of the scope of these amendments, I ask that the entire study, entitled "Former Secrets," be submitted for the record of these hearings.1

Senator HATCH. Without objection.

We are happy to have you here, Mr. Lewis. You are a friend of one of our good reporters out in Utah, Ernie Ford, and he sends his best wishes to you.

STATEMENT OF ROBERT LEWIS, NATIONAL TREASURER, AND CHAIRMAN, FREEDOM OF INFORMATION COMMITTEE, SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, AND WASHINGTON CORRESPONDENT, NEWHOUSE NEWS SERVICE, ACCOMPANIED BY BRUCE W. SANFORD, FIRST AMENDMENT COUNSEL, SOCIETY OF PROFESSIONAL JOURNALISTS

Mr. LEWIS. He is a good member of our committee in Utah. Senator HATCH. He has had a lot of impact on this bill, because he really took the time--[Laughter.]

No; I do not mean it that way. He really took the time, at my invitation, to really look it over and to make suggestions. A lot of his suggestions are in this bill, so I think your organization has been adequately represented by Ernie.

So, let us take your testimony, and Senator Thurmond is going to take over the hearings at this point and you will have to excuse

me.

[Whereupon, Senator Thurmond assumed the chair.]

The CHAIRMAN. You may proceed.

Mr. LEWIS. Thank you, Mr. Chairman and members of the subcommittee, for providing me this opportunity to comment on how the Freedom of Information Act has worked in the past and on the proposed changes to it.

1 This document may be found in the files of the subcommittee.

My name is Bob Lewis. Accompanying me is Bruce Sanford of Baker & Hostetler, the society's first amendment counsel. I have been a working reporter for the past 28 years and I have used the FOIA on a number of occasions to obtain information about the Government for dissemination to my readers.

I am here today representing the Society of Professional Journalists, Sigma Delta Chi, as the chairman of its Freedom of Information Committee and as its national treasurer. Formed in 1909, the society is the largest organization of journalists in the United States with more than 28,000 members in all branches of the news media, print, and broadcast.

Mr. Chairman, with your permission, I will summarize my remarks and ask that you make the written statement a part of your record.

The CHAIRMAN. We will put your entire statement in the record. Please summarize it as briefly as you can.

Mr. LEWIS. FOIA has been an important and an effective tool for journalists during its 17-year life. Two years ago, this committee embarked upon a legislative initiative to fine tune FOIA. We have seen an impressive effort since then from Senators Hatch and Leahy and from you, Senator Thurmond, and from your staff, to proceed deliberately, even painstakingly, to assure that new amendments do not impair the original legislative purposes of the Act-to give Americans a window on their Government.

The proposed amendments that we scrutinize today represent a significant refinement of earlier proposals. Our written comments address the virtue and value of those specific amendments.

But permit me, Mr. Chairman, to emphasize the society's per spective that no fine tuning of the act can be done only on one frequency. No fine tuning should merely respond to the static, the noise and complaints of Government agencies. The tenor and tune of that frequency, it seems to me, has been a familiar and monotonous sound that too much information, is getting out to the citizens of the United States, and that information dissemination can be dangerous for one reason or another.

Let us agree, Mr. Chairman, that the legislative fine tuning this year needs to be done on another frequency as well, one that will enhance public understanding of Government and one that will facilitate the use of the act by journalists, historians, and authorsthe people the original framers saw as indispensable to making FOIA work for all Americans.

On this frequency, Congress could give Americans music for their ears, not the sounds of silence. Is there a more pleasing sound, Mr. Chairman, than the snipping of redtape? Make the FOIA easy and faster to use, and you give Americans information-the prelude to wisdom, the prerequisite for democracy.

No longer do we need to ask that your fine tuning be done with a screwdriver, not a crowbar, as I think we did at one point in 1981. It seems now that this subcommittee is committed to a careful approach, one that commands any agency to make its case for an expedited, expanded exemption with broad evidence of overwhelming persuasiveness and not with statistical nonsense, myth-making or hyperbole.

We trust there is no longer any illusion about how greatly the working press values and uses FOIA. Let me offer you a couple of

instances of the Government being shared with the public, thanks to FOIA and the diligence of journalists.

These articles may not always make the Government or its officials look as good as they would like or you would like them to look, but they do tell the public what their Government is doing and how it is spending their money.

Let me begin by giving you an example from my use of the act. In 1977, I wrote an article based on a FOIA request about a Federal Energy Administration study declaring that it would be feasible to build a massive energy park in Michigan's lower peninsula. That request yielded page proofs of the Government study which, as it turned out, was never released because of the public outcry that resulted.

This use of FOIA allowed citizens to learn of a Government plan that greatly affected their community, and allowed them to lend their voice to the public debate. That project never did get off the ground.

FOIA was also a key tool for the Detroit News reporters who last year won both the Society's Distinguished Service Award and the Pulitzer Prize. David Ashenfelter, an SPJ member, and Sydney P. Freeberg wrote a series exposing the U.S. Navy's coverup of circumstances surrounding the deaths of seamen aboard ships.

These stories about improper Government activity could probably not have been pieced together without the help of FOIA.

Mr. Chairman, this law has also been an important aid for reporters investigating organized crime. To list only a few examples, reporters from the Pottsville, Pa., Republican say that without the help of FOIA they could not have prepared their much-lauded expose about a holding company whose financial backers including Jimmy Hoffa, which systematically liquidated the Blue Coal Co. in Ashley, Pa.

It was through an FOI request to the FBI that the Scottsdale, Ariz., Progress first learned of a local group's involvement in the Don Bolles murder. Reporter Don Devereaux has subsequently used FOIA to develop articles about Bolles' death and the FBI's handling of that case.

In a slightly different area of law enforcement, the articles in several publications about Gary Thomas Rowe, the FBI agent linked to the murder of civil rights worker Viola Luizzo, might never have been produced if the FBI had the exemption it now seeks.

Copies of those articles, we would be happy to submit for the record, if you so request.

The Society of Professional Journalists operates, in conjunction with the Reporters' Committee, an FOI service center that now handles 800 telephone and mail requests a year from journalists across the country who are trying to use the national act. We have also printed a booklet now in its second printing with more than 30,000 copies entitled "How to Use the Federal FOIA Act".

Given all the valuable information that has come to public light through the FOIA, but agreeing with you that fine-tuning is still necessary, it is our hope that this committee will use this session of Congress to address fully the reasons FOIA does not work as effi