Senator SASSER. Our next witness will be Mr. Bob Lewis, representing the Newhouse News Service. Mr. Lewis appears here this morning representing the Society of Professional Journalists.

Mr. Lewis, we welcome you this morning and look forward to your statement. I am sure you will agree with General Shenefield that Justice is doing a great job.

TESTIMONY OF ROBERT LEWIS, REPRESENTING THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, ACCOMPANIED BY PETER C. LOVENHEIM, ESQ., PROJECT DIRECTOR, FREEDOM OF INFORMATION SERVICE CENTER AND SHEILA NEVILLE, STAFF MEMBER

Mr. LEWIS. Thank you, Mr. Chairman, for this opportunity to discuss the Freedom of Information Act of 1966 and the 1974 amendments. My name is Robert Lewis. I am a Washington correspondent with the Newhouse Newspapers and also chairman of the Freedom of Information Committee of the Society of Professional Journalists, Sigma Delta Chi.

Just so you know a little bit about us, the society is the oldest, largest, and most representative organization of journalists. It was founded in 1909 and it now has 300 chapters and more than 30,000 members in all branches of communication and journalism education. With me is Peter C. Lovenheim, Esq., project director of the Freedom of Information Service Center, which the society operates in cooperation with the Reporters Committee for Freedom of the Press. Also with me is Sheila Neville, a staff member of the service center.

Since its inception 15 months ago, the center has provided information and legal assistance to several hundred reporters from more than 40 States, each of whom contacted the center because of a desire to use the Federal or a State freedom of information law to investigate a specific news story.

While some may contend that Washington-based reporters with well-placed sources in the Federal bureaucracy do not have a great need for the FOI Act-incidentally, an assumption we do not agree with our experience with the service center suggests that the FOI Act is an invaluable research tool for journalists in Washington and around the country.

Mr. Chairman, we question the figure that has been repeatedly cited that less than 1 percent of the total number of FOIA requests originate himself as a journalist for competitive reasons, hoping that other reporters don't get on the story he is trying to investigate.

My own experience with the FOI Act, and I have been a Washington reporter since 1966, is that since the 1974 amendments, a lot of material that previously I would have had to have filed a request for is now being voluntarily handed over by agencies because of the act being on the books and its having been strengthened.

Senator SASSER. Because of the act being what, strengthened? Mr. LEWIS. Yes. So I think the Freedom of Information Act, even without going through the formality of filing a request, is making a large, new body of material available to reporters and the public. Another consideration is that the act has become a role model for

many States. As you know, there are 49 State FOI acts now. Any trend toward reining in the Federal FOI Act I think would have disastrous repercussions throughout the country. It could encourage opponents of this concept at the State level to take similar steps with State FOI acts.

Each year Federal agencies generate tens of thousands of documents that are paid for by the public but that prior to 1966 were not available for public scrutiny except on a limited basis, if at all.

Enactment of the FOI Act in 1966 and the amendments in 1974 represented an historic commitment to the principle of openness and accountability by the Federal Government and to the concept that the public has a right not only to communicate information under the first amendment but also to receive it.

Mr. Chairman, when we contrast this system with government information practices in totalitarian nations, where the public is spoon fed what happens to the party line at the moment, we should be gathering today to extol the virtues of the FOI Act.

Instead, Freedom of Information is under attack. Business interests succeeded this year in winning a partial FOI exemption in the Federal Trade Commission Improvements Act of 1980 for documents provided to the FTC by outside parties. The Central Intelligence Agency and Federal Bureau of Investigation are seeking what amounts to a blanket exemption from FOI disclosure requirements, contending incorrectly, we believe that the Government's intelligence and law enforcement needs are incompatible with Freedom of Information. The FOI Act has been used to ferret out information on a wide range of questionable or illegal practices by the CIA and FBI and their desire to get out from under FOI reporting requirements is understandable. Yet, neither agency has made a case that the FOI Act has undermined national security or led to the disclosure of classified information, and until they do we oppose the exemptions they seek.

As you know, the act contains nine categorical exemptions, several of which are available to the CIA and FBI. Material can be withheld involving "internal personnel rules and practices," "interagency or intragency memorandums or letters." personnel files which if disclosed would constitute an unwarranted invasion of privacy, and records which would disclose the identity of a confidential source or investigative techniques or "endanger the life or physical safety of law enforcement personnel." Furthermore, the CIA is permitted under Executive order to withhold information which "could be expected" to impair the national security. It need not prove damage, only the expectation of damage.

If existing exemptions are not adequate to prevent the release of CIA and FBI records which ought to be kept secret, it would be our hope that the nine exemptions be clarified. Whatever is done to limit application of the FOI Act to the CIA, FBI, or any agency should be done by amending the basic act rather than by incorporating exemptions into other legislation, as has been proposed. This would have the desirable effect of keeping FOI under one umbrella, so to speak. Mr. Chairman, the argument is also made that journalists do not make great use of the FOI Act and, as a consequence, it is not fulfilling some of the lofty goals envisioned for it. If that were true, we

doubt that Federal bureaucrats would be so intent on watering down the act.

A February 16, 1980 report—which I have a copy of and would be glad to leave with you-produced by the Congressional Research Service on newsstories written from documents released under the FOI Act reported that:

(1) The CIA conducted far broader domestic surveillance during the Vietnam War than had been reported. For example, the agency kept files that indexed 50,000 members of the California Peace and Freedom Party.

(2) The CIA infiltrated black activist organizations, the Resurrection City encampment in Washington and even the District of Columbia school system in the late 1960's, despite its own findings that black militant groups at the time posed no threat to the agency.

(3) The CIA explored the prospect of an individual being induced to commit an assassination against his or her will through behavior control.

(4) The CIA considered experimenting on terminal cancer patients under the guise of legitimate medical work in an effort to find ways, to use CIA words: "to knock off key guys" through such natural causes as heart attacks.

Senator SASSER. To do what, Mr. Lewis?

Mr. LEWIS. "Knock off key guys" through inducing heart attacks. A recent report by the Center for National Security Studies listed 50 articles or books that had been based entirely or partially on CIA documents declassified through the FOI. Among them were:

(1) Illegal domestic intelligence, including the stationing of agents on problem campuses and opening the mail of U.S. citizens.

(2) The use of satellites by the CIA to spy on antiwar protesters on U.S. soil.

(3) Secret mind-manipulation experiments on human subjects.

In addition, historians used the FOI Act in the preparation of scholarly background studies on American policy toward Greece in World War II, the Bay of Pigs invasion of Cuba, Truman's decision to intervene in Korea, the Cuban missile crisis, and the penetration of Nazi Germany by American secret agents in World War II.

In addition, under a decision of the U.S. Supreme Court in the case of Reporters Committee v. Solomon, journalists and the public won the right of access under the FOI Act to nearly 42 million documents and tapes of the Nixon administration.

It has been the experience of the FOI Service Center that reporters know about the FOI Act and want to use it but are often frustrated by the way the act is administered. I would like to discuss three major problems: time delays, high fee rates, and narrowing definition of what records are subject to the act.

The act now requires Government agencies to respond to a request for information within 10 working days of receipt of a request. In fact, few agencies consistently meet this requirement. Delays at the FBI, for example, are often as long as 8 months or more.

The cause for delay often is a backlog in processing requests caused by agency understaffing, but other times the delay in fully complying appears to result from a narrow interpretation of the scope of the re

quest, thus requiring the reporter to go back to the agency and repeat in slightly altered form the substance of the request.

Second, the act permits agencies to charge requesters for the time it takes federal employees to search for the sought-after files and for photocopying. Search fees range from about $5 per hour for clerical time up to $10-$18 per hour for professional time. Duplication fees are about 10 cents per page at most agencies.

The act requires agencies to waive or reduce these fees upon determination that doing so would be in the public interest because the released data would "primarily benefit the general public." It is our position that in most cases journalists should be entitled to fee waivers as long as their purpose is to desseminate the information to the public in newspapers, magazines, books or broadcasts. Where the released data is disseminated to the general public, the primary benefit is to the general public and, therefore, under present law we feel fees should be waived or reduced.

Nevertheless, the FOI Service Center receives a large number of requests from reporters for help in reducing the fees charged by agencies. In one case, a reporter for a midwestern newspaper sought information about Federal disaster relief payments to farmers in her State. She was a farm reporter. Her paper circulated throughout the State. Agriculture is the biggest industry in the State, and the information she sought related to Federal payments to farmers. Yet under regulations of the U.S. Department of Agriculture subagency from which she sought the data, she was denied a fee waiver and told she could not have the documents without paying a $700 charge for computer search time.

We urge you to consider amending the act to establish the presumption that journalists are entitled to fee waivers if the material they seek is to be used in disseminating information to the public. Some agencies now follow this rule. The presumption could be incorporated into the FOI Act regulations of all agencies or into the governmentwide regulations that an FOI lead agency might promulgate. Of course, it might be necessary to place some reasonable limit on the amount of material that would be provided under fee waivers to guard against requests for unnecessarily large bodies of material.

Third, as to the definition of what is a record for FOI purposes, the FOI Act now applies to all records in possession or control of a Federal agency. Yet in a recent case, Forsham v. Harris, the U.S. Supreme Court said that documents produced by a private organization which had been established for the sole purpose of carrying out Government research contracts and entirely financed by Federal funds were not agency records within the meaning of the act. Admittedly, it is difficult to draw the line between what should and should not be an agency record, but we think an examination of this question by the committee is in order to determine whether the definition of agency records can be broadened to include documents produced by government-sponsored and government-funded groups, as in the Forsham case-in which, incidentally, the Government agency subsequently relied on results of that research to promulgate new public health regulations.

The FOI Act is also weakened, as you discussed with your first witness, by the statutory exemptions permitted under section b(3), which

allows broad areas of information to be withheld from the public. These so-called B-3 exemptions are scattered throughout the body of Federal law, and no one knows how many there are or what subjects they cover. By one estimate, there are 150 B-3 exemptions tucked away in Federal laws, inserted without regard to a rational, governmentwide FOI policy.

We believe that the only exemptions that should be permitted are those appearing in the FOI Act. If existing categorical exemptions are not adequate, let them be increased or broadened. The B-3 exemptions already enacted should be codified, and the committees of Congress responsible for FOI legislation could then examine them to determine which should be incorporated into the basic act and which should be repealed.

This would necessarily require amending section b(3) to require future exemptions be made by amending the act itself and not by other

means.

Mr. Chairman, the suggestion has been made that a lead agency such as the Office of Management and Budget be designated to develop uniform, governmentwide regulations for the administration of the FOI Act. Uniformity in such areas as user fees and response time to requests is needed, and giving one agency the responsibility for promulgating such regulations would be preferable to the present piecemeal system of regulation writing.

We have no position on which agency should take that responsibility.

Senator SASSER. How about letting the FBI be the lead agency? Mr. LEWIS. We would not recommend the FBI. [Laughter

If agencies continue to ignore them, even if they are standardized, it would do little good. So perhaps what is needed is a stronger compliance mandate from Congress. The proposed FOI lead agency also could have responsibilities for insuring that Government agencies comply with the FOI Act. New York and Connecticut have State commissions which oversee compliance, and reporters generally have had a good experience using the FOI laws in those States.

Mr. Chairman, any law which requires Government to disclose information that is potentially embarrassing is going to face continuous attack from bureaucrats and their allies in the private sector and elsewhere. The FOI Act is a fragile concept, dependent on support of the people and of their elected representatives to survive. Ways must be found to insulate Freedom of Information from its natural enemies in the Government.

For example, I think FOI is extremely vulnerable to being undermined by cutting funds for its administration. Budget recommendations for the 1981-1982 fiscal year are now being developed throughout the Federal Government. I had a call recently from an FOI officer of an agency who was putting together a budget recommendation in an environment of money scarcity. I doubt whether that agency or others devote adequate funds for FOI. I think Congress needs to be alert to efforts by agencies to sabotage Freedom of Information by not giving it adequate resources.

We hear much about the cost of administering the FOI Act. No one has ever claimed that openness in Government would be easy, or cheap. It would be much simpler to close the doors of Government. I think