question you weren't real sure about the kind of information that is coming in today as opposed to what was coming in a year ago.

Mr. POWERS. That is an extremely broad question, because I don't see the information in a sense coming in right now.

Mr. DODD. You must see the kind of information that is in the files. I presume you are reviewing it.

Mr. POWERS. But if we are talking, then, about a current file, it wouldn't be susceptible to review, probably, because we would assume that it would interfere with a law enforcement proceeding, and it would not then have to be addressed as to implementation of the Privacy or FOI Act right at that time. If it is an ongoing investigation, we would not have to look at it at that particular time. However, some court decisions suggest processing is required to identify any "reasonable segregable" information.

Mr. DODD. My time is up. Thank you.
Mr. EDWARDS. Mr. Drinan.

Mr. DRINAN. Thank you, Mr. Chairman.

Mr. Powers, I assume that you have read in the Washington Post this week four or five long articles. Have they been fair to the FBI? Mr. POWERS. I have not seen anything unfair-I can't recall the articles in total-I can't recall any specific thing.

Mr. DRINAN. This article states that the Defense Department has processed 44,403 requests with no backlog whatsoever, and that DOD has the policy of releasing more things even where there is a doubt. Apparently DOD has the best reputation of any agency in town. Why is the FBI so far behind when the DOD can process those things and keep up?

Mr. POWERS. Well, let's assume that we are not deciding that that is an accurate figure of what DOD is processing. One, I do not know what they consider to be a request. I have no idea in that light.

Now, just to finish that up, I think the second most important thing is, I have no idea what type of record that they are referring to. I can only speak for the FBI. And in connection with our records, and our performance, it is doubtful that we would be able to match that. I don't know if you are talking about the difference between apples and oranges. If we are talking in the same general area, then I would be most happy to get together with the Department of Defense officials and see if they have any system or methods which we might be able

to use.

Mr. DRINAN. Coming back to the FBI directly, Mr. Harold Tyler, Deputy Assistant Attorney General, was quoted as saying "What has been allocated now to the Freedom of Information section is more than a general allocation of resources." That seems to be a variance from your testimony. Mr. Tyler said that you have got these people, Mr. Quinlan Shea stated that is what you have got. I don't hear that from you. You have promised us that you are trying to undo this backlog. Yet it is going up to a 100 a week. Is that a contradiction, yes or no?

Mr. POWERS. On the contradiction I would have to direct you to Mr. Shea. I am telling you that we are going to increase.

Mr. DRINAN. Mr. Harold Tyler said that what you have got now is generous, there is no way you are going to get a new allocation of resources. That is the way the Washington Post reports it. Who's right?

82-629-77-34

Mr. POWERS. I am telling you that we are increasing.
Mr. DRINAN. Then he is wrong, or he is misquoted.

Mr. POWERS. I will have to see.

Mr. DRINAN. You have the duty to know, sir. If that is contrary to the authorized statement that you are making, that you are going to get more personnel and you are going to clean up this backlog, then you have the obligation to say Harold Tyler was misquoted or he didn't say that. Obviously he is the second in charge.

Mr. POWERS. Perhaps Mr. Tyler was not aware of the increase which we have now, which was just recently approved. The only thing I can do is, if you will permit me to check on that and find out, all I can do is tell you that we are going ahead with that increase contingent upon the acquisition of space, and so forth, because it has been approved. Mr. DRINAN. If I may add a qualification, a condition to the report that I think we have agreed you submit in 20 working days, I would like to have the Department of Justice and Mr. Harold Tyler, or the Attorney General, say that they will back up the request or the commitments that the FBI will make to us hopefully within 20 days.

Now, on the question of appeals, there are now 500 appeals pending. It is my understanding that one-fourth or one-third of those come from the FBI. The FBI apparently is much more careful or scrupulous or wrong in withholding information. Do you have any comments on that? What group of cases or what group of petitioners go into court on appeal the most?

Mr. POWERS. Well, I would prefer to look at it with respect to the appeals that are in your first two words, that we are careful and scrupulous.

Mr. DRINAN. The courts aren't necessarily so fine. As I read the case law, they haven't so stated. They said that in one case that extraordinary circumstances were present. But that question has not been resolved. The volume of cases that are being appealed from the FBI is extraordinary. I frankly almost thought of appealing myself. I went to a lawyer who specializes in this. I could figure out with his help that all the information that was withheld was withheld on a very silly basis, that you could piece together in fact what was withheld. But other people may expect that they have a right. Frankly, I think the FBI was ridiculously scrupulous in cancelling out things here. For example, they sent me a copy of an antiwar petition published in the Washington Post or the New York Times. They went through it and blanked out the names of other people who signed it—a public record in the New York Times. That is on its face ridiculous. But has this question come up, that you are inviting loads of appeals?

Mr. POWERS. What we are faced with-as I put in my statement, we can reject just going through and releasing everything without examining the documents. I believe we are careful and scrupulous. We intend to be so. I spoke about Mr. Shea before. And Mr. Shea has indicated to us that he thinks the FBI does an excellent job in the processing of documents. There has been evolution over a period of time in our understanding and interpretation of the act and court decisions. There were some things that were perhaps taken out a year ago for one reason or another. I would anticipate that there will be further evolution. We are trying to get to that point, that we are doing everything possibly we can to implement the act without affecting any vital Government interest. We hope we are working toward that end.

Mr. DRINAN. Is this the position of the Department, that Quinlan Shea said he would like to have a flat exemption for investigative records in the current law, including the right to not necessarily admit that we have such a file? Is that the official position of the Department of Justice, that you want to narrow and weaken the law?

Mr. POWERS. Not narrow or weaken the law, but with respect to the particular thing in an ongoing case, that we would just have-there would be a flat exemption.

Mr. DRINAN. Is that the official position of the FBI?

Mr. POWERS. That would be of major assistance to us.
Mr. DRINAN. In other words, you are pushing that?

Mr. POWERS. In connection with an ongoing investigation.

Mr. DRINAN. What about including the right not necessarily to admit you have such a file?

Mr. POWERS. There are instances, which I have put in my prepared statement, that a procedure to that effect would be of immeasurable help.

Mr. DRINAN. It would be beautiful if you could say we don't have a file on the American people.

My time has expired. I look forward to the reporting within 20 working days. Thank you.

Mr. EDWARDS. Mr. Powers, what would you do under the Freedom of Information Act if you get a request for your files on Lou Gehrig and "Babe" Ruth, both deceased athletes, what is your next step?

Mr. POWERS. At the present time it appears that we will have to process such a request, and that certain portions of that file, if we do have such a file, may be released. It will then boil down to a question as to what may and what may not be an unwarranted invasion of privacy.

Mr. EDWARDS. So you would release the information. But, if a private citizen wrote in and said, please send me the criminal records of Lou Gehrig and "Babe" Ruth, you would say that your regulations prohibit that?

Mr. POWERS. I'm sorry, Mr. Edwards, I don't

Mr. EDWARDS. Well, the criminal records are public records, the arrest records, conviction records of the people, those are public records. But the dissemination thereof, of which there are a collection at the FBI headquarters-they are confidential insofar as private individuals are concerned, you cannot write in as a private citizen and ask for my criminal record—you could write but the FBI would say: "No, I am not going to send it to you, we are not in that business." And yet I can't understand, under the Freedom of Information Act you can send out information that you have collected about other American citizens that might be derogatory.

Mr. POWERS. I don't know if I can take your first premise that that is true. That is the problem that we are faced with. I mean I cannot give a specific answer now. If someone writes in and asks for a record of a Congressman, then what we are faced with then is, with respect to certain information, if there is any in the file, would the release of that be an unwarranted invasion of privacy. If the particular prominent individual involved did have an arrest record we will ask, since it is in a sense a public record, would the release of that be an unwarranted invasion of privacy to that individual.

Mr. EDWARDS. You wouldn't release it? There are some laws in certain States that would make it a crime.

Mr. POWERS. Right. But it would be something that would have to be looked at, I mean it would not be a flat out "No." And, specifically, when we are not talking about a deceased but a living individual, we would go to that individual and ask him to seek the authority of the person about whom they are requesting the record.

Mr. Dennis would like to add a word to that if he may.

Mr. DENNIS. Could I just add, if an individual wrote in and asked to have an arrest record of the Rosenberg's, we would probably give that out.

Mr. EDWARDS. Not under your guidelines you would not.

Mr. DENNIS. We have already given it out under the Freedom of Information Act, under instruction from the Department. And to go on down to whether or not Tom Breen has an arrest record, under our procedure we would not do it. But the invasion of privacy goes all the way from the Rosenberg's down to Tom Breen. And under the Freedom of Information Act, in a balancing of the public need to know versus the right of privacy, does the public need to know what is in the files of the Rosenberg's. The Department says yes.

Mr. EDWARDS. That is quite a judgment to ask you people to make. Mr. DENNIS. That is is what I am saying.

Mr. EDWARDS. I wonder why you have not had meetings with the Department of Defense and the CIA at the middle or high level to try to determine what their policy is.

Mr. POWERS. We have had meetings with a number of other agencies, Mr. Edwards.

Mr. EDWARDS. I am afraid we have to go.

Unless there is objection, we will terminate these hearings now. Thank you.

Mr. DRINAN. Thank you.

And I want to thank you, Mr. Powers. And we look forward to hearing from you.

Mr. EDWARDS. We all thank you.

I think we are discussing the subcommittee visiting your shop perhaps next week or the week afterward to get an idea as to what your problems are.

Mr. POWERS. We would welcome that.

[Whereupon, at 11:50 a.m., the subcommittee adjourned subject to the call of the Chair.]

FBI OVERSIGHT

Freedom of Information Act Compliance by the FBI and
Plan To Eliminate Backlog

THURSDAY, SEPTEMBER 16, 1976

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 9:05 a.m., in room 2226, Rayburn House Office Building, Hon. Don Edwards [chairman of the subcommittee] presiding.

Present: Representatives Edwards, Drinan, and Butler.

Also present: Alan A. Parker, counsel; Catherine LeRoy, assistant counsel; and Roscoe B. Starek III, associate counsel.

Mr. EDWARDS. The subcommittee will come to order.

Good morning. Today we continue our oversight hearings which we began on July 29th, looking into the compliance of the Federal Bureau of Investigation with the Freedom of Information and Privacy Acts.

At our previous hearing on July 29th, we requested the Federal Bureau of Investigation to prepare for us a proposal relative to Freedom of Information and Privacy Act requests which would specifically address itself to the means of disposing of the existing backlog of such requests and additionally be able to handle on a current basis the incoming future requests. We asked that that proposal be prepared and presented within 20 working days.

On August 26th, I received a letter from the Director, Mr. Kelley, which was distributed to all the members of the subcommittee and which I will now enter into the record, unless there is objection, informing me that the proposal would be completed on September 1st and forwarded to the Department of Justice on that same date. [The letter referred to follows:]

Hon. DON EDWARDS,

UNITED STATES DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,
Washington, D.C., August 26, 1976.

Chairman, Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: Your Subcommittee requested during the testimony of Mr. James M. Powers of this Bureau on July 29, 1976, that the FBI submit a proposal relative to the administration of Freedom of Information Act requests. This proposal was to specifically address means of disposing of the backlog of such requests. Due to the complexity of the problem in drafting such a plan, it will not be possible for the FBI to complete its work on this project until Sep