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fact that our agents went to the city of St. Louis to conduct an investigation, that mere fact alone may trigger in the mind of the requester, the receiver of the data, that the fact that he was in St. Louis was only known to one individual, and that is the only reason we must have conducted an investigation in that city.
It is that type of analysis that a person receiving the information can make. It may result when we are releasing information we should not have released. The perception problem is caused when an individual learns by reading in media accounts or through newspaper and other public knowledge sources that the FBI is releasing its files, that same individual is going to be very uneasy about providing informa
tion to us.
I can give a specific example of a telephone call made to my office by a source, an individual who had worked with us in the past. He told me the subject of a request that we had recently processed under FOIA called him and told him that he had just received his FBI file and that he, the requestor, had identified our source as an informant. Now, naturally this individual was extremely upset, and I told him, I tried to assure him that in our processing procedures we make sure this does not happen, but let me know the facts, let me get the case and I'll personally review it. And I did. And in my judgment, the information we released would not have identified him.
I got back to this individual. I said, look, I think they are testing you on this. They don't know. There is no way they could tell from the released information that you were the source, and he agreed with me, somewhat hestitatingly, I might add but he agreed, I think, that we protected him in that particular case.
But I am almost willing to bet that if an agent goes out and talks to that individual again, we are not going to get cooperation from that individual.
Mr. McCLORY. Well, the subject of the FOIA request probably knows that the only source of the information about him could come from that one individual. I wouldn't know.
Most of the newspaper articles I read which are based upon disclosures from a Freedom of Information Act request are so old. In the first place, they don't even interest me, and I just think, well, it makes a newspaper story. I think that the reader of the newspaper story tends to relate the thing to the present time-that this is a practice that is being carried on at the present time by the FBI or the CIA or whoever it is-but actually when you read the story you find, well, this was 15 years ago or 20 years ago or something like that.
Couldn't we get a statute of limitations, perhaps, and say, well, you can get information about yourself, but 10 years is it, and we are going to throw out these files.
Mr. BRESSON. Well, you may be referring to Judge Webster's moratorium concept that he has expressed, although I think his moratorium would work in a different direction. He was hoping there was some way, and he didn't necessarily want to advance this as the only hope for salvation, so to speak, what he was trying to do in his solution or his suggestion about a moratorium was to put a little age on the file so we could protect sources and we could protect pending investigations.
Now, we have a great concern over the problem which the Director of the FBI has described in the past as some "archeological diggings;" when we go back to files and cases back in the 1950's and rehash them in the day's news today, it doesn't do our agency any good, and I know that. The Director, for example, has also indicated he wants to improve our minority hiring, and there was a period of time when we were getting a lot of newspaper publicity regarding our activities in the 1960's, the Martin Luther King type of release. These were being rehashed again and again and again in the newspapers in 1978, and Director Webster was very concerned that this sort of thing was hurting our ability to go out and attract minorities when they keep bringing up these stories that occurred 10, 12, 15 years ago.
Mr. McCLORY. Well, the Chairman, Mr. Murphy and I sat on the temporary Select Committee on Intelligence, and some of the earlier activities, especially the kind of private disclosures which the late former FBI Director would make to the President or to others, and to Members of Congress, were extremely damaging, of course. I think those were the kinds of things we wanted to avoid by this legislation. You have only one file system now, don't you? The Director doesn't have a private file.
Mr. BRESSON. No, sir.
Mr. McCLORY. Do you see some great benefits that are flowing to individuals now through the application of the Freedom of Information Act or is it just present damage to our country as a result of the continuation of this legislation?
Mr. BRESSON. Again I think it is a question of balance. There are those cases which the FBI has processed under FOIA procedures, for example, the John F. Kennedy assassination case and the Martin Luther King assassination. Questions have been, of course, asked by the public concerning these investigations. Perhaps in going through this type of file we can settle some of these doubts, but the problem is in those cases, for example, where an individual is requesting a file, and that file is mostly classified information because it deals with our foreign counterintelligence activities. We can review that file and we may be able to release bits and pieces from that file but most of it is exempt under the classified exemption, properly so. The result is there is no public benefit that I can see in releasing bits and pieces of information. There is no benefit to the public and there is not much benefit to the Agency which is required to process volumes of documents to find that most of the documents are properly exempt from disclosure.
Mr. McCLORY. Could you furnish the committee, do you suppose, some suggestions as to what specific amendments we might consider in the Freedom of Information Act, or in other parts of the statute, within the next couple of weeks, say, to help us see what you perceive as a statutory change that might improve the existing law? (See app. B.)
Mr. BRESSON. Congressman McClory, I will be very happy to present your views to the Department task force that we are working with in an effort to kind of move things along, and perhaps that might do it. Again, as I indicated at the opening part of my statement, we are working with the task force, and I believe that that probably is the proper procedure for suggesting amendments. But I will pass on
to them your concerns, and I am sure it will spur them on in that regard.
Mr. McCLORY. I am contacted from time to time by agents in the FBI with regard to my colleagues who leave the Congress and ascend to the bench.
Mr. MURPHY. Ascend?
Mr. McCLORY. Now, if the request is made to the FBI under the Freedom of Information Act, is my identity disclosed to these persons whom I always give very glowing support for.
Mr. MURPHY. It's not under oath, is it?
Mr. BRESSON. Congressman McClory, under the Privacy Act, when you are asked to furnish information concerning any applicant for a position, you are asked up front whether you desire to have the expressed assurance of confidentiality.
The problem I see, though, even in those circumstances, if you were the only one to furnish derogatory information and we excise your name and your information and everyone else in furnishing information and they do not ask for assurance of confidentiality, the problem is that the requester may very logically deduce that you were the one who furnished the derogatory information. It is a problem. Mr. McCLORY. Well, I'm going to cooperate anyway.
Mr. MURPHY. Mr. Mazzoli?
Mr. MAZZOLI. I don't have any more questions.
Mr. MURPHY. One more question.
What percentage of Freedom of Information requests are made by persons seeking information in your files about themselves and what percentage are for information not relating to the requester?
Mr. BRESSON. The breakdown on that I believe would be heavily weighed in favor of the first person requester.
Mr. MURPHY. Fifty-two percent for the CIA.
Mr. BRESSON. Much higher. It would be about 80 percent. I might add that, if I may, 16 percent of our 18,000 requests last year came from prisoners who were inmates in penal institutions. I am not just speaking of convicted felons. I am talking about people who we are able to tell from the return address on the envelope are presently incarcerated.
Mr. McCLORY. Mr. Chairman, excuse me. My counsel wanted to ask one question and Mr. Ashbrook is unavoidably absent, and Mr. Romerstein wanted to ask one question.
Mr. MURPHY. I would like to ask unanimous consent to introduce the statement of the Honorable Richardson Preyer, chairman of the Subcommittee on Government Information and Individual Rights of the Government Operations Committee, with regard to hearings he held on this matter. I would like it to be included in the record. Mr. McCLORY. Without objection. (See app. C.)
Mr. MAZZOLI. Mr. Chairman, may I ask a question?
Mr. MURPHY. Sure.
Mr. MAZZOLI. Would you tell me what would be the average amount of money that you get for processing a so-called average case?
Mr. BRESSON. You mean what we would receive in terms of fees that might be charged?
Mr. MAZZOLI. Yes.
Mr. BRESSON. Our present policy now is that we do not charge anything for a case involving less than $25, 10 cents a page, 250 pages. We would not charge anything for that amount, less than $25. If the requester's request involves a case involving more than $25, he will pay the 10 cents a page. We do not have searching fees in our requests because of the retrievability of our files. We are able to locate them rather quickly. They do not usually entail a great deal of searching expense. Therefore the only charges we usually get involved in are the duplication costs.
Mr. MAZZOLI. Is that an FBI internal decision not to charge for matters fewer than 250 pages?
Mr. BRESSON. Yes; it was, and it was really based on a cost analysis of how much money is involved in writing to the requester, asking for the $7.50 and then having that letter come in with the $7.50 and putting it in the process of getting to the Treasury. It came out to approximately $25 for internal expense, and that was the reason that we did reach the cutoff figure of $25.
Mr. MAZZOLI. I would like to hear more on this topic. It seems to me that one of the things that would make this act a little more manageable to you would be to charge. If somebody wants something and they can pay, they ought to pay for it. I don't know why you cut off at $25, even though it may cost you a certain amount of money. Maybe the institution of certain kinds of automatic data processing would help. VISA and Master Charge handle millions of things for $2 or $3 and they seem to make a bundle of money on it. So maybe there is some way here of setting a fee. Maybe it should be more than 10 cents so that you bump more into the $25 category.
Is there anything that would be helpful to the committee to decide how the money
Mr. BRESSON. Congressman Mazzoli, I welcome the thought, and I would like to look into that further.
Mr. MAZZOLI. What about CIA. Mr. Chairman? Did they have any charge?
Mr. MURPHY. I think out of a total cost of $3 million, they have charged $10,000 in the last fiscal year, and I think they spent $2.9 million. So really there is no relationship. It is a burden that falls on the taxpayer.
Mr. MAZZOLI. It is a tremendous burden on the taxpayer.
It may be if we got some money back we could pursue the routine requests, and the person who wants to persist then, fine, and if they can file in forma pauperis or something, there can be some arrangement so they can get something done for nothing, if there is some reason for it.
Mr. BRESSON. I might just add that while it was an internal decision, it was one of the GAO recommendations when they conducted an audit of our operations to consider this, raising the fee amount. I might also address the question of fees that were received by other agencies. Other agencies may have legitimate searching costs that we do not have. Our central records system, even though it be a manual searching procedure, is very efficient.
Mr. MAZZOLI. Why should the requester benefit from your efficiency? And I mean that very seriously. I don't mean you charge them $1,000 to search your file, but why not have a flat fee of $10 to make a search, or $25, something reasonable, you know, that would defray other costs, because if I understand, I am a taxpayer and I am paying for each FBI agent, some part of his or her day, and you are not charging those people who are requesting, and you are not charging anything for postage to respond, yes we have a file, no we don't have a file.
Mr. BRESSON. The only thing I can respond to that is that we did carefully evaluate that decision. There was at one time a $3 limit, but as I say, what we were finding was that it was costing us a lot more than $3 to get the $3. It was costing us nearly $25 to collect the $3.20 amount that was owed, and that really was what led to the decision.
Mr. MAZZOLI. And then, of course, you reach the nightmarish sort of conclusion just like we have with energy where we ask the people to conserve, and then they conserve, and then the gas companies raise the bills because they are not making enough money. So we are back at square 1.
I thank you, Mr. Chairman.
Mr. MCCLORY. I have no questions. Mr. Romerstein has a question. Mr. MURPHY. Mr. Romerstein ?
Mr. ROMERSTEIN. Thank you, Mr. Chairman.
Mr. Chairman, these questions were prepared in consultation with Mr. Ashbrook and are questions he would have asked if he were here. Mr. MURPHY. How many are there?
Mr. ROMERSTEIN. I'll hold it down to three, Mr. Chairman.
On August 10, 1978, a convict named Gary Bowdach, who is now in prison for a variety of violent crimes, testified before the Senate Permanent Subcommittee on Investigations. He testified that he had filed FOIA requests with almost 10 agencies, including the FBI, Drug Enforcement Administration, and so forth. He said that the purpose of the requests was to identify informants so that they could be murdered.
Are you aware of the testimony and could you comment on it?
Mr. BRESSON. I am aware of the testimony of Mr. Bowdach. I am in a position of saying that I don't believe he identified FBI informants. I am not that familiar with the release that he may have obtained from the FBI at this time to give you any further amplification on that. I am aware generally of his testimony, and that is a very large concern to us, and I have indicated we have 16 percent of our requests coming in from this type of individual, and the fact that this is their purpose is of very much concern to us in our processing procedures.
Mr. ROMERSTEIN. Mr. Bowdach testified further, that on behalf of another criminal, he made an FOIA request to the Drug Enforcement Administration which supplied 5 pounds of documents, and he claimed that careful examination identified a DEA informant-it would not have been an FBI informant. And Bowdach then said that he believed the informant was later murdered.
Would you have any information concerning that?