FACT SHEET ON H.R. 12471 THE FREEDOM OF INFORMATION ACT (FOIA) AMENDMENTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000700010026-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 16, 2016
• Document Release Date: June 2, 2005
• Sequence Number: 26
• Content Type: REGULATION

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FACT SHEET ON H. R. 12471
THE FREEDOM OF INFORMATION ACT (FOIA) AMENDMENTS
I. INTRODUCTORY NOTE :
On October 17, President Ford vetoed the subject bill. Although
the measure pursues laudable goals, it contains certain serious
defects which make it unacceptable. This is to urge your support
of the President's veto and acceptance of his proposed amendments
to the measure.
II. PRINCIPAL DEFECTS:
A. Defense and Foreign Relations Information (Mu.skie Amendment).
1. Present Law: Classified documents are not obtainable under
the FOIA. and there is no authority for court review of the
propriety of a classification.
2. Enrolled Bill: Authorizes de novo court determination based
on in camera inspection of classified documents to determine
the propriety of the classification. Burden of proof is on
the government.
3. The Problem: Two problems are presented by this provision
of the enrolled bill. First, the provision could result in a
harmful revelation of reasonably classified defense and foreign
relations information. Secondly, while it would be appropriate
to have judicial review of a classification, it may be uncon-
stitutional for a court to decide the classification issue
de novo -- the court would be exercising a basic Executive
function as if it were an agency.
4. President's Suggested Amendment: Would allow for judicial
review of classification based upon a "reasonable basis"
standard.
B. FBI and Other Investigatory Law Enforcement Files (Hart
Amendment).
1. Present Law: "Investigatory files compiled for law enforcement
purposes" are exempt from compulsory disclosure.
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2. Enrolled Bill: FBI and other investigatory "files" would no
longer be exempt; the exemption would apply only to each
separate investigatory "record" or "reasonably segregable"
portion of a record as to which the government can prove
that release "would" cause one of the types of harm to
public or private interests listed in A through F of the
revised exemption.
3. Discussion: Two problems are presented by this provision
of the enrolled bill. First, with respect to some of the
harmful effects listed in A through F, it would be virtually
impossible to establish that such results "would" be caused
while there could often be a substantial possibility that the
harm could be as severe as disclosing the identity of an
informant whose life could be endangered. Secondly,
although the provision seeks to protect confidential information
compiled in the course of criminal investigations by agencies
with criminal law functions, it would not protect such
information in the possession of agencies with civil law
functions. There are several agencies with important civil
law enforcement functions whose investigations often lead
directly to criminal proceeding but these are overlooked
by the enrolled bill.
4. President's Suggested Amendment: Would protect information
in instances where there is a "substantial possibility" that
harm would result and would also protect confidential
information relevant to a criminal proceeding which is in
the possession of a civil law agency.
C. Fees for Examination of Voluminous Records.
1. Present Law: Fees for services incident to the production
of documents may be charged under the federal user charge
statute, 31 U. S. C. 438a, and agency regulations.
2. Enrolled Bill: No fees can be charged for any services
except search (i.e., finding the requested records) and
duplication.
3. Discussion: It is one thing to say that records should be
released to the public where release will not cause serious
harm of the sort covered by the disclosure exemptions. It
is quite another thing to impose upon the government
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(ultimately the taxpayer) the obligation of converting its
innumerable records into a form which can be released
without causing such harm. It is the latter task which
the enrolled bill imposes, by its requirement that
"reasonably segregable" nonexempt portions of requested
records be released. This "segregation" requires a line-
by-line examination of the requested documents or files,
to delete where possible only those portions that are exempt.
For example, a request for available information from the
FBI's 2, 000, 000-page file on the Communist Party could
involve millions of dollars in expenditures.
4. President's Suggested Amendment: Would require these
services without charge only up to the amount of $100.
III. CONCLUSION:
Support the President's veto of H. R. 12471 and pass a clean bill
incorporating his suggested amendments.
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