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Mr. MOCLORY. You don't get any personal information about people unrelated to our national security ?
Mr. SILVER. We may, by the nature of the activity we conduct, get a certain amount of information that is incidental.
Mr. McCLORY. That you eliminate.
Mr. McCLORY. And you have never given up any information under any Freedom of Information requests so far, have you?
Mr. SILVER. Do you mean as a result of litigation ?
Mr. SILVER. As a result of litigation, we have not been compelled to. In some cases we have given information at the administrative level in response to Freedom of Information Act requests, but never any intelligence records.
Mr. McClory. And you are going to pursue the Joan Baez case. Is there reconsideration being given for that?
Mr. Silver. There is a motion for reconsideration. Assuming the Justice Department is in agreement, we will pursue our right of appeal as far as we can take it.
Mr. McClory. Actually you feel that you should be exempted from the Freedom of Information Act?
Mr. SILVER. It is tempting to say yes.
Mr. MURPHY. I am going to save you—if you want to answer it, you may.
Mr. SILVER. We are not seeking a total exemption from the Freedom of Information Act.
Mr. MURPHY. Thank you, Mr. Silver, and we are going to adjourn now and reconvene at 1:30.
(Whereupon, at 11:38 a.m., the subcommittee recessed, to reconvene at 1:30 p.m. the same day.]
Mr. Murphy. The meeting of the Select Committee on Intelligence, Subcommittee on Legislation will come to order.
Mr. MAZZOLI. Mr. Chairman?
Mr. Mazzoli. I thank the chairman. I was unable to be here for this morning's session, Mr. Chairman, and I have a brief statement which I will first ask permission to read, and second, ask that it be put in the record of our discussions.
Mr. Chairman, as was the case with our electronic surveillance hearings, and with our more recent hearings on the disclosure of national security information, our Subcommittee on Legislation today begins hearings on a difficult and a delicate issue which raises questions concerning the basic principles upon which our form of representative government is based.
One of these principles underlies the Freedom of Information Act, and was noted by James Madison who wrote:
A popular Government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and the people who mean to be their own governors must arm themselves with the power which knowledge gives.
Equally important, Mr. Chairman, however, is the principle that government exists, among other reasons, to protect the people which it serves. It is beyond dispute that a vigorous and productive intelligence service is essential to such protection and that, to a large degree, foreign intelligence and counterintelligence activities must be based on secrecy.
That tension will always exist between such disparate concepts is to be expected. It is up to the Congress, to our subcommittee, to our committee, to make this tension a creative one and, by carefully balancing the competing interests, insure the existence of both open government and legitimate intelligence activities.
I am, Mr. Chairman, of the opinion that a proper balance between secrecy and the public's right to be informed has been struck by the Freedom of Information Act.
Exemptions have been carefully drawn to insure that information which should not be disclosed is, indeed, not disclosed.
There is, according to my way of thinking a heavy burden of proof on those who would alter this legislation by adding further exclusions and exemptions.
Mr. Chairman, I commend you for having arranged these most important hearings, and look forward to working with you on the development of suitable legislation. Mr. MURPHY. Thank you, Mr. Mazzoli.
Our first witness this afternoon is Mr. Thomas H. Bresson, Acting Chief, Freedom of Information Act Branch, Records Management Division of the FBI.
STATEMENT OF MR. THOMAS H. BRESSON, ACTING CHIEF, FREEDOM
OF INFORMATION ACT BRANCH, RECORDS MANAGEMENT DIVISION, FEDERAL BUREAU OF INVESTIGATION; ACCOMPANIED BY MICHAEL HANIGAN, ASSISTANT SECURITY CHIEF, FOIA BRANCH, RECORDS MANAGEMENT DIVISION, FBI; AND DENNIS MILLER, UNIT CHIEF, RESEARCH UNIT, RECORDS MANAGEMENT DIVISION, FBI
Mr. BRESSON. Mr. Chairman, I thank you on behalf of Director Webster for the invitation to provide testimony concerning the impact the Freedom of Information and Privacy Acts have had on the FBI's foreign intelligence and counterintelligence activities. Director Webster has designated me, in my capacity as Acting Chief of the FOIPA Branch, to appear before you today. I might add that I have been assigned to FOIPA matters in the FBI since the latter part of 1974 and am familiar with the FOIPA and its implementation insofar as the FBI is concerned. Prior to that I was assigned in an investigative capacity for approximately eleven years.
Your letter of March 22 advised of your particular interest in knowing how FBI records are organized and maintained, how FOIPA requests are processed, the costs and administrative burdens of compliance with the statutes, and if and to what extent compliance endangers foreign intelligence or counter intelligence activties.
With regard to the organization and maintenance of FBI records, our central records system at FBI Headquarters consists of approxi
mately 6 million files which are maintained in file cabinets at the FBI Headquarters here in Washington. The files are arranged in numerical sequence based on classification number and case number. The classification number represents the jurisdictional subject matter or class of each case. For example, our kidnaping cases are filed under the classification No. 7, and espionage investigations, for example, under classification No. 65.
The FBI's file No. 65–1000 would indicate the one-thousandth espionage investigation that we have opened.
Access to these numbered files is gained through an alphabetically arranged index card system, referred to as indices, which consists of approximately 60 million 3-by-5 cards. These cards identify the subject individual, organization, or subject matter and list the classification and case number of the file in which the information is located. To retrieve the record of a particular individual, the search begins with a manual review of the alphabetical index, which will cite one or more possible references to this individual in our numerical file system. The file is retrieved by Records Management Division personnel, reviewed to establish if it is identical to the record requested, and forwarded to the FBI employee who requested the file.
All of our files, including criminal, foreign intelligence, counterintelligence, applicant, and others, are part of this central records system, with the maintenance responsibility fixed with the Records Management Division.
With regard to the manner in which we process FOIPA requests, all FOIPA requests are processed by a separate component, the FOIPA Branch, a part of our Records Management Division. The Branch has a current complement of 309 employees whose work is dedicated solely to FOIPA matters; 34 are law-trained special agents and 275 are support personnel. Training-selected FBI support employees previously assigned to other duties within the FBI to become specialists in the FOIPA area, permits the maximum number of special agents to assume other responsibilities. The volume of incoming requests and the corresponding workload, coupled with the statutes' response time requirements and the limited resources available to us, make the concept of centralized processing the most efficient insofar as our operations are concerned.
The first step in processing an FOIPA request is to retrieve the relevant files by following the procedures I have just described. Every day we receive an average of 60 to 70 new FOIPA requests and a great deal of correspondence regarding FOIPA requests being processed or awaiting assignment. One unit in our FOIPA Branch is engaged solely in handling this correspondence, searching and locating the requested files, and duplicating the file for review by the research analyst to whom the case will be assigned.
The analyst first must become familiar with the entire file in order to reach proper judgments in applying the exemption provisions during the actual processing phase. It may be that an individual documented as having provided information in confidence in the early stages of the investigation is later reported in our records to have publicly disclosed the same information. Discerning this fact, the analyst would not claim the confidential source exemption.
The processing stage consists of a line-by-line review for the determination of what may be disclosed. Where the documents relate to foreign counterintelligence or other national security matters, a complete review is also necessary to insure the documents are currently and properly classified. The analyst uses a marking pen to excise from the duplicated file copy those words, if any, which are subject to exemption pursuant to the provisions of the statutes. The finished work product is then duplicated. The second duplication is the material furnished to the requester, while the first copy is the material we maintained as our record copy of what we released.
In those cases that become subject to litigation, the analyst and agent supervisor must review the same material and prepare affidavits which explain the rationale for withholding information from the records sought. Court decisions require us to provide detailed justifications for each item claimed to be exempt. These justifications must be carefully drawn to preclude the possibility of disclosing by description the very information we are trying to protect.
As you may know, a first-person request, that is, an individual's request for his own records, is treated as a Privacy Act request, while a third-party request such as a researcher's request for the Watergate investigation, is treated as an FOIA request. While the Privacy Act provides for the exemption of files compiled for law enforcement purposes, including such records as our foreign counterintelligence files. we will, pursuant to Department of Justice policy as published in title 28, Code of Federal Regulations, section 16.57, determine the applicability of the FOIA as well, thereby affording the requester the maximum possible disclosure.
Attached to my statement are three charts (see app. A). One of them shows the amount of money the FBI has spent to administer the FOIPA program. The second shows our manpower, and the third displays the volume of requests we have received since 1974.
Our costs were about $9 million for fiscal year 1978; and although we are budgeted in fiscal year 1979 for a fewer number of personnel, I anticipate
a comparable cost figure for this fiscal year. Insofar as the volume of the requests is concerned, the most current figures in the chart would indicate our total receipts to be about 67,000 requests. The most recent updated figure would bring us up to the figure of 69,575 requests, that as of March 23 of this year.
The chart will also indicate the number of requests stayed about the same during 1977 to 1978. I might add, we have noted, however, that many of the requests we are receiving today are those that result in actual processing. Many of the requests that we do receive are norecord-type requests.
With regard to the foreign intelligence and counterintelligence impact, our greatest concerns are that the identity of confidential sources of information may be disclosed, public reluctance to cooperate will ensue due to the fear of disclosure, and the FBI's intelligence capabilities, limitations, and subjects of interest may be revealed to the Nation's detriment.
The FBI's ability to discharge its foreign intelligence and counterintelligence responsibilities depends in large measure upon the willingness of human beings to furnish information to us. To the extent the Freedom of Information Act and any other statute or event or circumstance inhibits someone from telling the FBI what he knows, our ability to do our job is made more difficult. In foreign intelligence and counterintelligence investigations, as elsewhere, the confidential informant is indispensable.
We have found that there are those in many segments of society who are refusing to provide us information because they fear their identity may be disclosed under the acts. These people are not only confidential informants, but also private citizens, businessmen, and representatives of municipal and State governments. Included as well are officials of foreign governments. The FBI is not suggesting that every person who is reluctant to provide us information is reluctant solely because of the Freedom of Information Act. We are saying that we do have examples, actual case histories, of people who have told us they do not want to provide information to us because they fear disclosure under the Freedom of Information Act.
The report of the Comptroller General captioned "Impact of the Freedom of Information and Privacy Acts on Law Enforcement Agencies,” dated November 15, 1978, contains several specific examples of documented instances wherein established or potential sources of information declined to assist us in our investigations. This report points out our belief that the acts have had the greatest impact on informants in the organized crime and foreign counterintelligence areas, two of the areas in which the FBI currently concentrates its greatest efforts. Our sources of information in the foreign counterintelligence field are usually well educated, sophisticated, and informed about the laws and court decisions, and media coverage concerning the release of information from FBI files. They are very sensitive to the fact that FOIPA disclosure of their cooperation with us could jeopardize their community standing or livelihood, or more seriously, given the appropriate situation, their life or physical safety.
We consider this perception by the public to be a serious impairment to our intelligence-gathering capabilities. The Comptroller General's report concluded the various law enforcement agencies surveyed almost universally believe that the ability of law enforcement agencies to gather and exchange information is being eroded, but the extent and significance of the information not being gathered because of FOIA and the Privacy Act cannot be measured. It is true that quantitative measurement of the loss of information is most difficult to ascertain. In many cases we will never be sure why a source or potential source of information declined to pass on to us information that was vitally needed in our intelligence-gathering effort. But as I stated above, the FOIA has been specifically cited by some as the reason for their refusal to cooperate.
In responding to a request for information from an FBI investigative file, we are required to review each record line by line and determine if the information can be released pursuant to the provisions of the FOIA. The burden of proof rests with us to establish the need to withhold, and we must further demonstrate that records being withheld contain no reasonably segregable information, which by definition means information not specifically protected by one or more of the nine exemptions. Exemptions, by repeated court interpretation, are to