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SUBCOMMITTEE ON LEGISLATION
HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE

TESTIMONY OF

DANIEL E. SILVER,
GENERAL COUNSEL, NATIONAL SECURITY AGENCY

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Mr. Chairman and Members of the Committee, I appreciate

this opportunity to inform this Subcommittee about the

impact that administering the Freedom of Information Act

(FOIA) 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 activiities.

Volume and cost of Requests Under the Acts

The FOIA provides that any person has a right to

access to all records of any federal agency, except such

records or portions of records as may be covered by one of

nine exemptions enumerated in the Act.

The exemptions must

be asserted individually for each covered record or portion

of a record.

Consequently, the fact that a record will

almost certainly fall within a statutory exemption does not relieve the Agency from the obligation to search for

it and review it.

The Privacy Act operates somewhat

differently.

Its purpose is to give citizens more control

over what information is collected by the Federal Govern

ment about them and how that information is used.

Under

.

the Act, agencies are required to report publicly all
"systems of records" maintained on individuals. The Act

requires that the information collected in these systems

of records be accurate, complete, relevant, and timely.

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aliens lawfully admitted for permanent residence to have access to personal information about them in agencies'

systems of records and to amend inaccuracies that they find

there.

This right of amendment is enforceable in Court.

The Privacy Act, like the FOIA, contains specific exemptions

from release for certain kinds of information.

These are,

however, more limited than under the FOIA.

Under the FOIA all of NSA's records are subject to a

request for inspection by any person, whether or not a

citizen or permanent resident alien.

While all classi

fied information, and certain additional information, is exempt from disclosure, the FOIA obligates the Agency to

conduct a reasonable search for documents that are

adequately described.

The Act then places on the Agency

the burden of justifying the withholding of any documents

it may find.

Under the Privacy Act requests may be made

only by citizens and permanent resident aliens, only for

records concerning the requesting party and only for

records located in a "system of records"

i.e., a

system in which records are retrievable by name or per

sonal identifier.

Because of the more restricted scope

of the Privacy Act, it has so far presented the Agency with considerably fewer problems than the FOIA. The records organized in "systems of records" within NSA, as statutorily defined, are personnel, security and administrative records.

NSA's intelligence records are not filed by name or other

individual identifier.

The costs to the Agency of administering the Acts,

although substantial, have not yet become a matter of

pressing concern.

In calendar year 1978, the cost to

the Agency of administering the FOIA was about $524,000.

(This includes only direct costs of searching, preparing

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The number of requests in calendar year 1978

dollars.

exceeded the previous year's by more than one-third.

In calendar year 1978, the cost of administering

the Privacy Act was about $125,000, up by 12% over the

previous year.

The number of requests processed for access

to, or amendment of, records was 318, an 88% increase over

the comparable figure for 1977.

Handling of Requests; statutory exemptions

Requests to the Agency for information

whether they

cite the FOIA, the Privacy Act, or both are delivered to the Chief, Policy Staff, who is the initial decision

authority under both Acts.

On the basis of his knowledge

of Agency activities, the Chief, Policy Staff, forwards

copies of each request to those organizations within the

Agency that are likely to have files that may contain the

kinds of records requested.

Privacy Act requests that

cite specific NSA systems of records are forwarded to the custodians of those files. Privacy Act requests citing

no system of records are forwarded to custodians of all

systems of records that might contain information about an individual fitting the description the requester provides. FOIA requests are forwarded to the organizations maintaining files that may contain the records requested.

The effort expended by the Agency in locating records

and reviewing them yields relatively little in terms of

the actual volume of information disclosed.

The vast bulk

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the records occurs, for the most part, only when persons

currently or formerly affiliated with the Agency ask

under the Privacy Act for records, found in Agency per

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Under the 'FOIA, there are two principal bases on

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This is known as the "(b)(1) exemption."

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