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be construed strictly, applied narrowly, and where any doubt exists, the disclosure is favored. The person most knowledgeable about what particular information may read to source identity is, unfortunately for us, oftentimes the requester who is the subject of the investigation. Therefore, the processing of a request which involves sensitive records pertaining to the investigation of an organization, conspiracy or any continuing criminal enterprise with several members, all of whom can be requesters, requires very delicate processing.
Congress, in amending the FOIA in 1974, recognized the need for protecting confidential sources. While law enforcement files were no longer exempt as a class, the language specifically provided for access to records, but only to the extent that production would not, and I am quoting from the statute: disclose the identity of a confidential source, and in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source.
The practical application of this exemption, when read in conjunction with the requirement to release reasonably segregable information, renders the judgment call a most difficult task in many situations. What appears to be innocuous or harmless information may indeed be the missing piece or pieces of a puzzle to the requester who is the subject of the investigation. When the records pertain to investigations of organizations and the members have the opportunity to pool and compare the information furnished to them by each of the intelligence agencies to whom they addressed requests, this danger becomes more apparent.
We have further concern for the inadvertent disclosure which may result from human error, a risk that is present whenever a page-bypage review of thousands of documents is undertaken.
These practical problems that confront us in applying the (b) (7) (D) exemption, the source exemption, and the risks that are present whenever sensitive records are reviewed for public disclosure, places us in a position of not being able to dispel as completely mythical or imagined, the perception problem which exists among our sources and potential sources that I referred to earlier in my statement.
In the intelligence area, the adversary many times is as interested in learning what we do not know as he is in discovering what we do know. And that is another concern we have about the act's impact on our foreign counterintellience investigations. If, in responding to a Freedom of Information Act request, we tell the requester the FBI has no information about a particular individual or subject matter, we may have assisted our adversary more than we know. Assume there is in this country an agent of a hostile foreign government residing here in violation of the laws of the United States. Further assume that person makes a Freedom of Information-Privacy Act request seeking records about himself and the response he receives from the FBI is that we have no records in our files identifiable with him. If a year from now the same individual makes another request and in the period of time between the two requests we have initiated an investigation of him, we know of no way to respond to his second request in such a way that we do not effectively alert him and his government that we now have an investigative interest in him.
In sum, complying with the acts in their present form raises concerns about identifying confidential sources, having people refuse to provide information because of the acts, revealing the extent and limitations of our intelligence and counterintelligence investigations, and disclosing prematurely the existence of an investigation.
Mr. Chairman, Director Webster has emphasized that the FBI is not seeking a repeal of the Freedom of Information and Privacy Acts. The Bureau is committed to the goal of having an informed citizenry. I believe we have demonstrated this through the release of many hundreds of thousands of pages of material in our reading room alone which is available to the public, cases such as the John F. Kennedy assassination case and the Martin Luther King assassination investigation. The Director is encouraged by the interest of this and other committees in examining, however, the proper balance between the disclosure of information and the effectiveness of our law enforcement and intelligence efforts.
I thank you again for your invitation. I have attempted to discuss those subjects the committee indicated were of interest. I have no proposals at this time to submit for any type of legislative relief. We are working with the Department of Justice task force at this time in an effort to propose some possible solutions. I am hopeful that we will at some future date, in the not too distant future, be able to present some of those proposals.
Mr. MURPHY. Thank you very much.
How frequently do you believe that actual criminals or foreign intelligence agents use the Freedom of Information Act to frustrate ongoing FBI investigations?
Mr. BRESSON. I am not sure that I can give you a statistical response to that, Mr. Chairman. I do know, for example, we have pending before us at the present time a request that originated with a foreign country, or citizen of a foreign country which happens to be an Eastern European country, and as you know, the Freedom of Information Act provides for access to any individual—it is not limited to U.S. citizens.
We probably will never know with certainty—and I think Mr. Carlucci mentioned this this morning-never know with any certainty whether or not a request is being made on behalf of a foreign or hostile intelligence service.
Mr. Mazzoli. Mr. Bresson, do you have any statistical breakdown of the number of people that you have identified as foreign persons who have made a request in the last year or so under the Freedom of Information Act?
Mr. BRESSON. No, Congressman Mazzoli, I don't have a statistical breakdown of that.
Mr. MAZZOLI. How do you identify someone who is a foreigner?
Mr. BRESSON. Most of our requests from foreign countries are mailed from foreign countries. We have had requests from various countries of the world requesting information under the Freedom of Information Act about various subjects, sometimes cases of historical interest, some of current interest.
Mr. MAZZOLI. I don't know whether it is in the record.
Is there an amount of money that you figure it costs you to process this information?
Mr. BRESSON. We have a chart with the statement showing our budget costs on a yearly basis.
Mr. Mazzoli. That is the $9 million you had last year that you would get again in fiscal year 1979 or 1980 ?
Mr. Bresson. 1979. I believe I may have made a mistake. It should have been fiscal year 1979.
Mr. Mazzoli. How would you go about identifying a person to be sure that he or she indeed was the person represented to be in a request under the Freedom of Information Act?
Mr. BRESSON. Our normal requirements and procedures call for the individual to present a notarized signature showing that he is indeed the person who furnished the request. If for some reason it comes to our attention that this may be a bogus request, we would pursue it further. But those are rare instances because the practicalities involved, of course, are that we are receiving 60 to 70 some requests a day, and it oftentimes is very difficult to follow it up in that regard.
Mr. Mazzoli. How long does it take you to respond to a Freedom of Information Act inquiry? I know that some are more broad in their scope than others, but if there is such a thing as an average inquiry, what would be the average time to process?
Mr. BRESSON. It would vary, as you have indicated, Congressman, by the complexity of the case and other circumstances.
Our procedure is to acknowledge the receipt of the request within a 10-day period of time. We let the requester know that we have received that request and we will get back to him as soon as we can to advise him whether or not we actually have the records he is seeking. But if we do have a record concerning that individual or the subject of his request, it will vary in the amount of time mainly because, as I say, the complexity of the records and the volume. It may run anywhere from 135 days to 165, 170 days. Again, if we have to review these records for classified data as well as the other exemptions to the act, it may take a little longer. But an average, normal request is being handled by us now roughly in 135 days.
Mr. MAZZOLI. I guess if we believe in Freedom of Information as a concept, it is the Nation's responsibility to provide to you the number of people and the amount of money and the amount of resources, computers or copy machines or whatever to fulfill your statutory responsibilities. But I think the fundamental question we have to answer ourselves is whether or not, assuming that we have provided those materials and resources to you, provision of this information somehow hurts our national security or interferes with our national defense. If you were to address yourself not so much about getting more money, not so much about getting more machinery or assigning more special agents, because those are I think tractable problems, but to whether all this would hurt national security, what one or two things would you cite to me on behalf of the proposition that a continuation of the Freedom of Information Act would be in your judgement harmful or unwise?
Mr. BRESSON. I am not quite sure I know how to respond to the question. As I mentioned before, we are working with a task force of the Department of Justice to try and determine how the act can work better, whether or not there is a need for a proposal by the Department of Justice to advocate some change in the Freedom of Information
Law. It unfortunately is a very complex problem because we are talking about the rights of people, of citizens to have access to Government files.
As I have indicated in my statement, and as Judge Webster has testified previously, we are not against freedom of information, and trying to strike that balance is a most difficult assignment. It is a most difficult assignment, I am sure, for someone to actually sit down and draft language to the existing law and try to come up with a better solution. I believe that it is going to take some very delicate considerations and some very thoughtful deliberations before a meaningful proposal can be submitted.
But as I indicated at the outset, I think the opportunity for us to present our problems to this committee and other committees will assist us in moving along in that process, and I am hopeful that that will come about soon.
Mr. Mazzoli. Well, I gather at this point you are prepared to speak only to the difficulty of finding the people, the money, the mechanisms to answer these requests and not so much on the impact that the statutes have had on investigations or the ability to mount proper foreign counterintelligence activities, is that right?
Mr. BRESSON. Not exactly, Congresman Mazzoli. The Director testified at the Government Operations Subcommittee, chaired by Congressman Preyer not too long ago, at which time he said he wasn't really concerned at this point about the resources and the money. The public is willing to expend this.
Mr. MAZZOLI. I agree with you.
Mr. BRESSON. So that is really not our main thrust. Our concern at this point is are we protecting the national interest in implementing the law, and I personally appreciate that very much, being the man who signs the letters saying that this is the information that we have determined is available to you. I want to make sure that our product is complying wih the law, the Freedom of Information Act, but I also want to make sure that we are not disclosing an informant in that release.
Mr. Mazzoli. What did Judge Webster say to Richardson Preyer at that hearing? You started to say at a hearing where Mr. Webster appeared before Mr. Preyer? Did he testify to the dangers as he saw them, aside from any financial impact or personnel impact ?
Mr. BRESSON. Yes. Judge Webster testified, and I think the thrust of his testimuony can be fairly characterized as leaning more toward the problem of protecting our informants, protecting our manuals, the investigative operations were paramount in his mind, in his testimony.
Mr. Mazzoli. I understand. I appreciate that. I think an explication of that kind might help us, and I know that as you say it is a very difficult problem to put your finger on. I think we have to accept the fact that the burden of proof is going to be on the proponents of change to make the case because otherwise we have not only the problem of dealing with a Congress which has already passed a bill that has become the law, but unless it can be documented exactly how this has hurt, how some sharpshooters may be manipulating the system to help them find out at what point we are on their tail, and how some foreign agents, in fact, may have been using this
to mount intelligence efforts within the United States at our expense, it is going to be hard to sustain the burden.
Mr. BRESSON. I feel, Congressman Mazzoli, that we have presented a good case for documentation. We have solicited input from our field offices, the information from our field agents who are working with this problem every day, and they have given back to us examples that we can document showing where our informants have backed off furnishing information to us because of their fear.
Mr. Mazzoli. Well, that is what I was asking about. What I was driving at was some examples, if you are permitted to give them, of where this act has indeed caused informants to bail out, it has caused investigations to end, it has caused our agents to come out from under cover, it has caused some effect like that.
I have used more than my 5 minutes, but I say to the gentleman from Illinois, that is what we are going to need, and I don't see it here. This is the kind of data I frankly think we will have to have.
Mr. McCLORY. If the gentleman will yield, we did in closed session this morning get some case examples from the Deputy Director of the CIA.
Mr. Mazzoli. Maybe we need a session with you and Mr. Webster.
This file system, is this all a manual operation? You have no automatic data processing capability ?
Mr. Bresson. Not with regard to our central records system; no. Where our files are maintained, the search through our indexes is conducted manually.
Mr. McCLORY. 60,000 cards?
Mr. BRESSON. Well, what the index cards indicate are the names that are indexed in those files, so there will be many more index cards than files.
Mr. McClory. You do have an exemption now from disclosing confidential information on national security information, do you not ?
Mr. BRESSON. Yes.
Mr. McClory. Now, do I understand that notwithstanding those exemptions, that the perception as far as the potential informant is concerned is such that he feels that maybe you won't take advantage of those exemptions?
Mr. BRESSON. I think it is a two-pronged problem. First, we have the mechanism of processing an FOIA request, and it requires a great deal of judgment on the part of the person processing the request to separate what is reasonably segregable, what can be released in this file, and what we should withhold, and many times it is an extremely difficult decision to make. And the disadvantage we have is that the requester who may be the subject of the file oftentimes knows much more about that file than we do, and what we think is an innocuous piece of information may not be. For example, if we release even the