Mr. MANELLI. You are not saying in your statements, this information he is asking for would not include that incident?

Mr. BURCH. No; I think it would and I would like to think had I thought about it, I would have apprised him of it.

Mr. MANELLI. That is all I have.

The CHAIRMAN. I think the committee will recess for 15 minutes due to the call of the House and will be back very shortly.

(Recess.)

The CHAIRMAN. The committee will come to order.

At this time we will ask Mr. Springer if he has any questions. Mr. SPRINGER. Mr. Chairman, I have had a chance for a little legal advice during the time since I was here this morning. I am advised by counsel that I believe to be reliable that the leaking of this information, if I understand it correctly, is a violation of the law. Does your counsel agree with me on this?

Mr. BURCH. My general counsel advised that, if it involves proprietary information, yes. He is unsure of this situation if it does not. The import of Congressman Staggers' bill of course was to make such leaks punishable as a crime. I do not think that bill passed.

Mr. SPRINGER. You are talking of the Chairman-which piece of legislation?

Mr. BURCH. H.R. 9795 which he introduced in 1969.

Mr. SPRINGER. May I say I commend the Chairman and I join in the introduction of the legislation for my part.

Now, assuming that this is a violation of the law, Mr. Chairman, have you considered referring this to the Justice Department for action?

Mr. BURCH. No.

Mr. SPRINGER. Have you discussed it with the Commission?

Mr. BURCH. No, sir. I have discussed the facts of the case with the Commission.

Mr. SPRINGER. You have not discussed the question of whether or not this ought to be referred to the Commission or to the Department of Justice for action?

Mr. BURCH. No; I have not. The reason for that is as set forth in the statement that because of the fact that we are faced with a denial of having committed any wrongdoing on the one hand, a statement there was wrongdoing on the other and no independent way of verifying either side of the story, we concluded based on that and the age of the man in question, it was not appropriate to proceed.

Mr. SPRINGER. Now, is the Commission, without asking who in the Commission, in possession of the name of the man to whom the information was delivered?

Mr. BURCH. Yes, sir.

Mr. SPRINGER. If that is referred to the Department of Justice and an investigation is made and this is taken before a grand jury, you realize that one of these could receive or in essence not be prosecuted if he so saw fit to testify, you understand that?

Mr. BURCH. Yes, I understand that.

Mr. SPRINGER. You also understand if he is given this privilege that he could not be prosecuted but neither could he be prevented from testifying before the grand jury, do you understand that?

Mr. BURCH. Yes, I do.

Mr. SPRINGER. Have you discussed that with your counsel?
Mr. BURCH. No, I have not.

Mr. SPRINGER. It seems to me, and I am glad to hear the Chairman did introduce this legislation making it unequivocally clear that something ought to be done in these cases because we, ourselves, as members of this committee pick up information from people who walk into our office, it is very clear to us they have talked to somebody, somebody on the staff of the Commission who have given them certain information which certainly I am sure was not authorized and, under the rules of the Commission, never should have been given out.

Now, unless you take action in those cases where we do know there is a violation, do you think there is any chance to put a stop to it?

Mr. BURCH. No. I think it is not so much a question of knowing there is a violation. In many instances we know there has been a violation but we do not know how the violation took place. I do not think we are in position to go to a newspaper man and say, "Tell me where you got that information."

I do not know that we are in a position to attempt to get members of the Bar before us and force the information out of them.

Basically, what we try to do is make our own house clean and clean up our own process so our employees are not involved in it. This happens to be the only case since I have been there where anybody says he saw somebody doing this act. This is the only case that has come along since I have been there.

Mr. SPRINGER. Have you ever questioned the person or has anybody from the Commission questioned the person who allegedly received the information?

Mr. BURCH. Yes, sir. Mr. Goldsmith and a member of our general counsel's office interviewed the man.

Mr. SPRINGER. This man said he did not commit or receive

Mr. BURCH. He said he did not receive any material and properly he did say he had been there and there had been material on the desk occasionally but he had made no use of it and had not used our telephone for any improper purpose.

Mr. SPRINGER. He did not receive any information, is that correct? Mr. BURCH. That is what he said.

Mr. SPRINGER. Any information or any documents?

Mr. BURCH. I do not frankly know whether the word was "information" or "documents." But in effect he denied any allegation of wrongdoing, let me say that.

Mr. SPRINGER. It is your thought that what you have here is the word of one man against another, is that correct?

Mr. BURCH. Yes, I think that is quite clearly what we have here. We have certain corroboration of some of the circumstances but no corroboration of the real guts of it.

Mr. SPRINGER. Do you have any corroboration from any independent source the man had the information in his possession?

Mr. BURCH. Not to my knowledge.

Mr. SPRINGER. Would you consult your security officer to see whether or not that information reached anybody else?

Mr. BURCH. You mean in addition to the witness who said he saw the man looking at items?

Mr. SPRINGER. Whether or not you have any independent information that the man who allegedly received the information passed the information on to somebody else who has further knowledge.

Mr. BURCH. No, we have no evidence on that.

Mr. SPRINGER. It appears to me in these security matters action ought to be taken vigorously down at the Commission to stop these leaks. Now this may be a serious matter. I do not know and in talking with my legal adviser at noon I am inclined to believe the same as your lawyers who testified here today, this is somewhat of a gray area that you are operating in and it is not clear as to whether or not there is a violation.

It apparently has not been tested in the Courts thus far to a point where you do have an interpretation and especially one which the facts are like these. Therefore, I am not convinced there has been a violation-I am not saying there is not, I am just saying at this point the best legal advice I could get is that he did not know whether there was or not. He was in the same position as your counsel.

Mr. BURCH. There was a violation of our regulations, I do not think anybody could argue that. If somebody gives out agenda materials, that is clearly a violation, whether it is a criminal act, I do not know except for proprietary information.

Mr. SPRINGER. I think it would be well for your counsel to brief this question as to whether or not giving out unauthorized information is a misdemeanor or a crime.

There are so many other statutes covering in broad terms those not covered under any other section here. That is what I find. I am looking for broad laws which say all things not covered by other laws are covered by this law.

I think you ought to know whether or not the release of information by an employee to anybody else, whether or not it is contained within the specific statute. There is no question that this law-I just got through reading it about proprietary information is something the Commission should give serious consideration to.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Pickle?

Mr. PICKLE. I do not know whether it has been commented on by others because I have just come back to the meeting from the floor. I recognize the leaking of information of a confidential nature is a despicable act and I certainly recognize that any governmental agency ought to do what they can within the legal bounds and under the law given to prevent that type of thing.

It would seem to me from the evidence that has been submitted that there is no question, however, but what your Commission, with your authorization, did authorize this telephone extension. Now, whether you call it an extension or a phase of wiretapping is something we can debate. I wish to ask you when these men came to you, was there a discussion as to the procedure to be followed in trying to catch this employee?

Mr. BURCH. Yes. There was only one man that came to me, only Mr. Paglin discussed this with me.

Mr. PICKLE. There were two approaches, either the telephone extension or the recorder, and the microphone. As I understand it, you said

it was all right with you to go either route but that you preferred the

extension.

Mr. BURCH. Very candidly, there is a conflict in my testimony on that point. I do not have an absolute recollection of the conversation. Mr. Paglin's memorandum that he prepared at the time indicates that I said go ahead and do what you think is appropriate, but if you have to do anything, use the telephone-extension method.

Mr. PICKLE. We have two witnesses who said go ahead, go either

way.

Mr. BURCH. It could not be two. There were only two people in the room, Mr. Paglin and myself.

Mr. PICKLE. Whether it was two, but that was the statement. You said you do not recall the exact wording?

Mr. BURCH. I believe Mr. Paglin's statement is correct.

Mr. PICKLE. You admit that is so.

Mr. BURCH. Yes.

Mr. PICKLE. What would you have done or what would have been. your reaction had they gone to the wiretapping, that is the recording procedure instead of the telephone extension.

Mr. BURCH. I would assume if I told them to go to the telephone procedure and they went to the wiretap, the bug, I would have been very much upset.

Mr. PICKLE. But you told them to do either thing.

Mr. BURCH. I said, do what you feel was appropriate, but I would prefer the telephone extension.

Mr. PICKLE. That had been preceded by the two options and you said, go either route.

Mr. BURCH. All I can do is rely on what Mr. Paglin wrote at the time.

Mr. PICKLE. It is unfortunate we have to go back 2 years on a case like this, I regret that, but at the same time we are here discussing this particular question of mine. The witnesses have testified you said that either way was all right but you preferred the extension. I have to assume had they gone to the wiretapping procedure you would not have objected to it.

Mr. BURCH. I do not see how you can infer that. I suppose the suggestion was almost a direct order in this case.

Mr. PICKLE. Don't you think it was obvious you told them to go either way almost in a nonchalant or cavalier manner and then not even ask later what did you do? Were you trying to wash your hands of it?

Mr. BURCH. Perhaps it might be somewhat helpful to refer to the memorandum which is the only contemporaneous account that went on. "The Chairman instructed us to proceed with our investigation and use the telephone-extension method if we found it necessary."

That is the only record I have. I do not know what was said other than that.

Mr. PICKLE. Mr. Chairman, I also refer you to the testimony by Mr. Paglin in which he quotes you as saying:

As I say, I informed the Chairman and he authorized us to, you know, do what you think has to be done. If you have to do anything, I would prefer the extension telephone method.

Since you clearly said it was all right to go either way, don't you think it is reasonable for anyone to assume, had they gone the other route you wouldn't have objected, and indeed you didn't know what they had done? You testified you didn't know what they had done.

Mr. BURCH. I don't think anything can be stated clearly from what you have said. Mr. Paglin is the source of both these statements. All I can say is I think what he wrote in the memorandum at the time was correct. I don't have an independent recollection.

Mr. PICKLE. Let me go to another point. Is it your opinion that the installation of a telephone extension is legal in this particular case?

Mr. BURCH. Yes, in this particular case. As I said, I have not researched the question of this. General Counsel has, and his general rule is you can only decide these cases on the facts of the particular case. He concluded under the facts of this peculiar case it was probably not illegal.

Mr. PICKLE. If a similar case existed in any agency of the Government where that particular agency suspects an employee of releasing information or materials or even talking out of school, so to speak, then a telephone extension put in late at night, wired to a special part of the building, would be agreeable to you?

Mr. BURCH. I certainly can't comment on that. The only case I was involved in, it had these very peculiar facts. I can't imagine what the facts of other cases might be. I don't think you can evolve a general rule out of these cases.

As far as the "dark of night" argument is used, I think it would be unbelievable, if you are going to install an extension to listen in on somebody's phone conversations, to do it while he was in the office and advise him of it, and expect to come up with anything. That doesn't make sense.

Mr. PICKLE. I don't disagree with that. You would have to do it after hours to try to catch him. What is your point?

Mr. BURCH. You keep talking about the fact we did this after hours, as though there was something very peculiar about it.

Mr. PICKLE. You put the telephone in purposely to listen to his conversations with another outside person to person?

Mr. BURCH. We put a telephone in specifically to monitor telephone calls on that particular extension or extensions. As it turned out, the only person monitored was the outside attorney. That was the situation that led us to put the extension in, that is, the outside attorney was using the phone with the agenda items in front of him.

That was what we suspected and that was why we put in the telephone.

Mr. PICKLE. It seems you are playing with words. You knew what he was doing and knew you were trying to catch him?

Mr. BURCH. I knew exactly what he was doing and, yes, we were trying to catch him.

Mr. PICKLE. Through the telephone extension, and which is tantamount to a wiretapping procedure. It will be considered that. Do you think that was the intent of Congress when we passed this law?

Mr. BURCH. I don't know the intent of Congress other than I can reconstruct it from the legislative history. I didn't know about section 2511 and I can't give you an interpretation I was not aware of at the time.