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rather liberal view of information that is in the public interest. We had one case fairly recently
Mr. MAYERFELD. The FitzGibbon case.
Mr. MAYERFELD. This was a case where the author of a book refused to accept our determination that the activity was not in the public interest, which is a requirement of the act in order to waive fees, and the court ruled against us, that we should have waived fees because the matter was in the public interest.
Mr. McCLORY. What about Agee? Does he pay? Mr. CARLUCCI. He has not paid yet. Well, he may have paidMr. MAYERFELD. No. Mr. CARLUCCI. Well, he has got two types of request. The two types of request are the Privacy Act request and the FOIA request. While we put the man-years in to answer his request because we are required to go through the process, we have not yet provided the information to him, so there wiĩl have to be a determination, if the information is provided, whether he would pay.
Mr. McClory. One more question. I have before me a proposed amendment to the Freedom of Information—this is an amendment to the CIA Authorization Act.
Would that amendment, would that satisfy the needs of the CIA as you see it?
Mr. CARLUCCI. Before I answer that question, Congressman McClory, let me go back to the last question just for a minute. I am told that we collected $10,000 last year in fees, and you can compare that with the $2.9 million that we expended in implementing the act.
I believe you have the amendment that was furnished as a drafting service in response to Congressman Burlison's request. If it is the latest version that exempts first person requests, then we think this amendment would deal with the kinds of problems that are laid out in my testimony, yes, sir. (See Appendix D.)
Mr. McClory. Thank you very much.
Is it your position, the CIA position, that the FOČA has or has not been used for the release of information that is harmful to the Agency?
Mr. CARLUCCI. My testimony in this session is that the perception that the FOIA can be used to give out information that is harmful to the national security is a matter of serious concern.
Mr. ASHBROOK. Of course, that wasn't my question, not the perception.
Mr. Carlucci. I also pointed out at the outset of my testimony that I am sure that whatever I say here will be used by hostile services in disinformation campaigns. In terms of actual instances, I would prefer, Congressman, to deal with that in an executive session.
Mr. ASHBROOK. I guess that is what bothers me about your testimony. I have underlined five places where you have indicated you think that the people who feel that damaging information has come out through the FOIA are wrong. You refer to the businessman on page 10, the company, and you categorically say “I think he is absoTutely wrong." I guess I sit here in another world. I don't see how you can think he is absolutely wrong. I think he is absolutely right, and I guess
the fact that all the way through you indicate they are wrong in their perception of what FOIA can do or has done makes me think I must be tuned in on a different wavelength.
Mr. CARLUCCI. Let me say that I think in theory, the nine exemptions can be used to protect national security information. It is a timeconsuming and laborious process which involves human beings who are fallible, but the point is how others perceive it. They can look at the exemptions and still recognize that we have to go through the search process, and that that is being done by human beings. They also realize that whatever decision the Agency makes can be overturned by the courts. As I indicated, the courts have not yet done that. Their tendency is to make us justify increasingly in unclassified form our deletions, but it is still possible for the courts, who must make a de novo determination, to make a different judgment than we make, and that is a matter of concern to our collaborating sources and services.
In terms of specific instances where I think Freedom of Information Act has resulted in damage, I would be most happy to go into them in executive session. But if I were to go into them in open session, I would be defeating the very concept that I am trying to advance.
Mr. ASHBROOK. Well, I don't want you to. The only thing that I would
say where I differ with you, at least to the extent that this committee is examining, is when you say that the fundamental issue, the important issue is how others perceive it. I would have to say I think the fundamental issue is how others use it, it being the FOIA. I guess we are talking about the same thing.
Mr. CARLUCCI. Well, let me make a point there. One of the problems of the FOIA is that we cannot go beyond the request. That is, we cannot try to find out who is making the request. We have to accept the letter at face value. So unless the information comes to us incidentally or through some other channel, we cannot really tell you about the user or how the information is being used. If somebody eventually publishes a book or writes in a letter that they are going to publish a book, then we know how it is being used, but if it is being used by hostile intelligence services, obviously they are not going to write us directly, although it is my understanding that under the terms of the law, if the head of the KGB were to write us directly, we would have to respond within 10 days. But obviously they would use some kind of an intermediary, and that intermediary is not even recognizable to us. We can't even tell in many cases when requests come from foreigners or Americans.
So it is very difficult for us to go behind the requests to answer the kind of questions that you raised.
Mr. ASHBROOK. Well, let me ask one more question, because of one other concern I have. I have been kicking around in this business from a legislative standpoint for 20 years now and I figure I only know probably one-hundredth of what some of our enemies know who get the same information. This is the whole problem of a first person request. It would be humorous if it weren't so serious. A person requests information on himself. The person in the agency may think he sanitized it. But, I know more about me and my contacts than anyone does. I can read something in the light of what I have done. If you think you are fooling me, by crossing out an informant’s name you are wrong. I know exactly who you are talking about. The person putting the information together for release may think he has done everything in the world to protect the source, but when I read about myself, I know damned well who it was in New York that they were taiking about, or in Belgrade or somewhere, and to me, that is the greatest danger of the FOIA, the first person request information that the person gets on himself. You may think you have done everything you can to protect the source, but when I read it, I know I was only in Belgrade once, in 1965, and I know darned well who they must have meant that I got some information from. You know, it is almost foolish to think a person cannot get information on himself and put together the pieces to identify the sources you are trying to protect. And to me, that is the greatest danger of the release of information.
Mr. CARLUCCI. I am prepared to concede that that is a danger. Our feeling was that we had to weigh the value of the disclosure concept versus our responsibility, our statutory responsibility to protect our sources and methods, and we tried to come up with what we consider an equitable solution in response to Congressman Burlison's request. This doesn't mean it is the best of all worlds for us. We are leaning over backward, I think, in the direction of greater public disclosure, but what we want to do by virtue of, what we hope can be done by virtue of the amendment that Congressman Burlison requested, is to protect our most essential secrets, and more significantly give us a greater confidence in talking to our agent network and our liaison services that we can protect them. And we think the amendment goes far enough to protect that.
Mr. ASHBROOK. Well, I would agree with your perception, because other members of the staff and the committee and I have talked to dozens of foreign intelligence officers, responsible people, and they just come short of thinking we are crazy.
Mr. CARLUCCI. I have heard that many times myself. Mr. ASHBROOK. They say with a wistful smile on their face, now, what is wrong with you people. Their perception is very important Not only is their perception that this disclosure is dangerous, but that we are probably stupid for allowing it.
Thank you, Mr. Chairman.
Mr. MURPHY. Mr. Carlucci, what percentage of requests are Privacy Act requests, requests by a person for file information about himself as opposed to a set of circumstances or facts other than about himself?
Mr. CARLUCCI, As I indicated earlier, I think about 52 percent.
Mr. CARLUCCI. Are first person requests, Privacy Act and FOIA first person requests.
Mr. MURPHY. Do 52 percent seek information just about themselves ? Mr. CARLUCCI. Yes, sir.
Mr. MURPHY. It is my understanding that a Government-wide task force has been formed to look into this problem. Should we not wait for its administrative recommendations before we proceed on this, or
what is your
Mr. CARLUCCI. We are participating in the Government-wide task force, and we will certainly cooperate with it. I am responding to questions that were raised by the committee during the budget hearings. I feel a responsibility to acquaint the committee with our problems. Indeed, the committee has consistently urged me to acquaint it with whatever problems we may face. I have laid those problems out. My own view is that this is a serious and urgent situation, that at least the perception of an erosion continues, and we have accordingly responded to requests from the committee for drafting assistance.
Mr. MURPHY. Mr. Carlucci, I understand you have to make a meeting.
Mr. CARLUCCI. Well, I am prepared to stay as long as the committee thinks it is valuable, Mr. Chairman. I think this is more important than my meeting.
Mr. MURPHY. I would like to go into executive session to hear some of the matters that you would be telling us, as far as I am concerned.
Mr. CARLUCCI. I would be delighted.
Mr. MURPHY. All right, Mr. McClory moves we go into executive session. All those in favor say yes.
TA chorus of "ayes."] Mr. MURPHY. Opposed. [No response.]
Mr. McClory. We have got a new rule. We can go into executive session with two votes. We have just amended the rule.
Mr. MURPHY. All the public, we request that you step outside. We won't be too long, and we will come back in for Mr. Silver's testimony.
Mr. Carlucci, if you want to identify some of your own people that have clearances to stay. Mr. CARLUCCI. I have got seven people. Mr. MURPHY. Then everybody else, please leave.
[Whereupon at 10:25 a.m., the subcommittee proceeded in executive session, to reconvene in open session thereafter.]
[Whereupon, at 11:06 a.m., the subcommittee resumed.]
Mr. MURPHY. The Subcommittee on Legislation will be in open session now, and we will hear from Mr. Daniel B. Silver, General Counsel of the NSA.
STATEMENT OF DANIEL B. SILVER, GENERAL COUNSEL, NATIONAL
Mr. SILVER. Thank you, Chairman.
Mr. Chairman and members of the subcommittee, I appreciate this opportunity to inform this subcommittee about the impact that administering the Freedom of Information Act and the Privacy Act is having on the National Security Agency. I will first briefly describe the volume of requests under the acts and the cost of compliance. I then would like to outline the manner in which requests are handled within the Agency and the statutory provisions that figure most prominently in NSA's processing of FOIA and Privacy Act requests, Finally, I would like to describe particular problems arising in the application of the FOIA to NSA's signals intelligence activities.