STATEMENT OF CHARLES S. ROWE EDITOR & CO-PUBLISHER THE FREE-LANCE STAR FREDERICKSBURG VIRGINIA FOR THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION AND THE AMERICAN SOCIETY OF NEWSPAPER EDITORS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200190007-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 21, 2016
• Document Release Date: December 11, 2008
• Sequence Number: 7
• Publication Date: May 10, 1984
• Content Type: REPORT

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STATEMENT
CHARLES S. ROWE
EDITOR & CO-PUBLISHER
THE FREE LANCE-STAR
FREDERICKSBURG, VIRGINIA
FOR THE
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION
AND THE
AMERICAN SOCIETY OF NEWSPAPER EDITORS
BEFORE THE
SUBCOMMITTEE ON GOVERNMENT INFORMATION, JUSTICE & AGRICULTURE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
U.S. HOUSE OF REPRESENTATIVES
H. R. 5164
THE CENTRAL INTELLIGENCE AGENCY INFORMATION ACT
MAY 10, 1984
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MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, MY NAME IS
CHARLES ROWE AND I AM THE EDITOR AND CO-PUBLISHER OF THE FREE
LANCE-STAR IN FREDERICKSBURG, VIRGINIA. I AM TESTIFYING TODAY ON
BEHALF OF THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION AND THE
AMERICAN SOCIETY OF NEWSPAPER. EDITORS. WE APPRECIATE THE OPPOR-
TUNITY TO SHARE OUR CONCERNS WITH YOU ABOUT THIS LEGISLATION TO
EXEMPT CERTAIN OPERATIONAL FILES FROM THE SEARCH AND REVIEW PRO-
VISIONS OF THE FREEDOM OF INFORMATION ACT.
THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION IS A NONPROFIT
MEMBERSHIP CORPORATION ORGANIZED UNDER THE LAWS OF THE COMMON-
WEALTH OF VIRGINIA. ITS MEMBERSHIP CONSISTS OF NEARLY 1400 NEWS-
PAPERS ACCOUNTING FOR MORE THAN 90 PERCENT OF U.S. DAILY AND SUN-
DAY CIRCULATION. MANY NON-DAILY NEWSPAPERS ALSO ARE MEMBERS.
THE AMERICAN SOCIETY OF NEWSPAPER EDITORS IS A NATIONWIDE,
PROFESSIONAL ORGANIZATION OF MORE THAN 850 MEN AND WOMEN WHO HOLD
POSITIONS AS DIRECTING EDITORS OF DAILY NEWSPAPERS THROUGHOUT THE
UNITED STATES,
MR. CHAIRMAN, LIKE YOU, THE AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION AND THE AMERICAN SOCIETY OF NEWSPAPER EDITORS ARE
FIRMLY COMMITTED TO THE EXISTING FREEDOM OF INFORMATION ACT (FoIA
OR THE ACT). THROUGH FoIA, THE PRINCIPLES OF OPEN GOVERNMENT
UPON WHICH THIS COUNTRY WAS FOUNDED BECOME A REALITY. THE ACT
STANDS AS TANGIBLE PROOF THAT A FREE PEOPLE ARE ENTITLED TO IN-
FORMATION ABOUT HOW THEIR GOVERNMENT OPERATES AND HOW ITS DECI-
SIONS ARE MADE. WHEN PUBLISHERS AND EDITORS DEFEND FoIA, WE DO
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SO NOT SOLELY IN OUR PERSONAL INTEREST, BUT IN THE INTERESTS OF
OUR FREE SOCIETY AND ALL ITS INDIVIDUAL CITIZENS.
THERE IS AN IMPORTANT POINT WHICH MUST BE REMEMBERED IN
LOOKING AT THE CENTRAL INTELLIGENCE AGENCY (CIA) AND ITS PROBLEMS
WITH FoIA. THE EXISTING STATUTE CONTAINS THE EXCEPTIONS REQUIRED
TO STRIKE THE DELICATE BALANCE BETWEEN OPENNESS IN GOVERNMENT AND
THE NEED FOR A DEGREE OF SECRECY IN OUR INTELLIGENCE OPERATIONS.
EXEMPTIONS 1 AND 3 OF FOIA, IN CONJUNCTION WITH SECTION 102(D)(3)
OF THE NATIONAL SECURITY ACT OF 1947, PROTECT CLASSIFIED NATIONAL
SECURITY INFORMATION AND INTELLIGENCE SOURCES AND METHODS FROM
DISCLOSURE. COURTS HAVE GIVEN GREAT DEFERENCE TO THE CIA IN IM-
PLEMENTING THESE EXCEPTIONS.
MR. CHAIRMAN, OVER THE PAST FEW YEARS WE HAVE CAREFULLY FOL-
LOWED VARIOUS FoIA EXEMPTION PROPOSALS DEALING WITH THE CIA. WE
STRONGLY OPPOSED A BLANKET EXEMPTION OF THE CIA FROM THE REQUIRE-
MENTS OF FoIA. WE HAVE ALSO HAD SERIOUS RESERVATIONS CONCERNING
THE PROVISIONS OF S 1324 WHICH WOULD EXEMPT CERTAIN CIA OPERA-
TIONAL FILES FROM THE SEARCH AND REVIEW REQUIREMENTS OF FoIA. AT
THE SAME TIME, I MUST POINT OUT THAT REPRESENTATIVES OF THE NEWS-
PAPER BUSINESS HAVE NOT REJECTED OUT OF HAND THE CIA's PLEAS FOR
RELIEF FROM FoIA SEARCH AND REVIEW REQUIREMENTS. OVER THE PAST
FEW YEARS, WE HAVE MET SEVERAL TIMES WITH CIA OFFICIALS TO
DEVELOP A DIALOGUE ON THIS ISSUE.
WITH RESPECT TO S 1324, WHICH PASSED THE SENATE Nov. 17,
1983, WE WERE CONCERNED THAT THE LEGISLATION COULD UNNECESSARILY
DENY INFORMATION TO THE PUBLIC WHICH NOW IS AVAILABLE, AND WE
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WERE NOT SATISFIED WITH REPORT LANGUAGE ON CIA EFFORTS TO ADDRESS
THE BACKLOG OF FoIA REQUESTS. WE ALSO FAVORED A MUCH STRONGER
JUDICIAL REVIEW PROVISION THAN WAS INCLUDED IN THE SENATE BILL.
I WOULD NOW LIKE TO ADDRESS THESE THREE CONCERNS IN THE CON-
TEXT OF HR 5164 AS REPORTED BY THE HOUSE PERMANENT SELECT INTEL-
LIGENCE COMMITTEE.
UNDER THIS VERSION, CERTAIN OPERATIONAL FILES WILL BE EXEMPT
FROM THE SEARCH AND REVIEW REQUIREMENTS OF FoIA, THE STATED
RATIONALE FOR THIS EXEMPTION IS THAT THESE FILES ALMOST NEVER
CONTAIN INFORMATION RELEASABLE UNDER THE ACT, AND THAT BY UNBUR-
DENING THE CIA FROM LABORIOUS REVIEW REQUIREMENTS, THE AGENCY
WILL BE ABLE TO CLEAN UP ITS BACKLOG AND GENERALLY GIVE MORE EX-
PEDITIOUS CONSIDERATION TO OTHER FoIA REQUESTS. THIS LEGISLATION
GIVES THE CIA DIRECTOR THE RESPONSIBILITY TO DESIGNATE THE FILES
COVERED BY THE EXEMPTION.
HOWEVER, THERE ARE TWO UNDERLYING PREMISES WHICH MUST WORK
IN UNISON IF THE STATED ENDS ARE TO BE ACHIEVED. FIRST, WE MUST
PLACE OUR FAITH AND TRUST IN THE CIA TO CAREFULLY EXECUTE ITS
RESPONSIBILITIES IN ACCORDANCE WITH THE STATUTE. SECONDLY, WE
MUST LOOK TO THE CONGRESS FOR STRINGENT OVERSIGHT TO GUARD THE
PUBLIC INTEREST AGAINST EXCESSES BY THE AGENCY.
MR. CHAIRMAN, THE HISTORICAL RECORD OF THE CIA, MOST RECENT-
LY PUNCTUATED BY THE MINING OF THE NICARAGUAN HARBOR, BRINGS EACH
OF THESE PREMISES INTO SERIOUS QUESTION. UNDER THE INTELLIGENCE
OVERSIGHT ACT OF 1980, THE CIA IS TO KEEP THE HOUSE AND SENATE
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INTELLIGENCE COMMITTEES "FULLY AND CURRENTLY INFORMED OF ALL IN-
TELLIGENCE ACTIVITIES." NEVERTHELESS, THE CHAIRMAN OF THE SENATE
SELECT INTELLIGENCE COMMITTEE AND SEVERAL OTHER MEMBERS OF THE
COMMITTEE CLAIMED THEY WERE NOT ADEQUATELY INFORMED ABOUT CIA
MINING OF A NICARAGUAN HARBOR. CLEARLY, THE QUESTION WHICH COMES
TO MIND IS, "IF THE CIA DOES NOT MEET ITS RESPONSIBILITIES UNDER
THE INTELLIGENCE OVERSIGHT ACT, CAN WE EXPECT IT TO RESPECT THE
PARAMETERS OF THIS LEGISLATION?" AND FURTHER, "IF THE OVERSIGHT
COMMITTEES ARE NOT BEING ADEQUATELY INFORMED OF CIA ACTIVITIES,
HOW WILL THEY BE ABLE TO MONITOR EFFECTIVELY THE IMPLEMENTATION
OF HR 5164?" THIS BILL PROVIDES THAT OPERATIONAL FILES CONCERN-
ING THE SUBJECT MATTER OF AN OFFICIAL INVESTIGATION WILL NOT BE
EXEMPT FROM FoIA SEARCH AND REVIEW. BUT CAN WE EXPECT SUCH AN
INVESTIGATION EVER TO BE TRIGGERED IF THE INTELLIGENCE COMMITTEES
ARE SHIELDED FROM INFORMATION ON IMPORTANT ACTIVITIES OF THE CIA?
MR. CHAIRMAN, IN TESTIMONY BEFORE THE HOUSE AND SENATE IN-
TELLIGENCE COMMITTEES WE EMPHASIZED THE NEED FOR FREQUENT AND
THOROUGH OVERSIGHT OF THE CIA's IMPLEMENTATION OF THIS LEGISLA-
TION. TODAY WE EMPHATICALLY REPEAT OUR CALL FOR SKEPTICAL OVER-
SIGHT, THE CIA, THROUGH THIS.LEGISLATION, WILL BE VESTED WITH A
GREAT DEAL OF POWER WHICH, IF MISUSED, COULD SUBVERT THE SPIRIT
OF PUBLIC ACCESS TO INFORMATION.
THIS COMMITTEE SHOULD MONITOR CLASSIFICATION OF FILES TO
ENSURE THAT THE EXEMPTIONS BUILT INTO THIS LEGISLATION - FOR
REQUESTERS SEEKING INFORMATION CONCERNING THEMSELVES, COVERT AC-
TIONS AND INVESTIGATIONS FOR IMPROPRIETY OR ILLEGALITY - ARE AD-
HERED TO BY THE AGENCY.
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FURTHER, THE CIA SHOULD BE STRICTLY ACCOUNTABLE TO THIS COM-
MITTEE FOR CLEAN UP OF THE BACKLOG AND DEVELOPMENT. IN TESTIMONY
BEFORE THE HOUSE SELECT PERMANENT INTELLIGENCE COMMITTEE, JOHN
MCMAHON, DEPUTY DIRECTOR OF THE CIA, STATED THAT CURRENTLY THERE
ARE "OPERATIONS" STAFFERS ASSIGNED TO FoIA REQUESTS, AND UPON
PASSAGE OF THE LEGISLATION THESE STAFFERS WILL BE TRANSFERRED
BACK TO THE OPERATIONS DIRECTORATE. WE WANT TO ENSURE THAT THE
FoIA OFFICE IS ADEQUATELY STAFFED TO HANDLE FoIA REQUESTS, THE
LEGISLATION SHOULD PROVIDE FOR ANNUAL REPORTS BY THE CIA TO THE
HOUSE AND SENATE INTELLIGENCE COMMITTEES AND TO YOUR COMMITTEE ON
THE HANDLING OF FoIA REQUESTS, INCLUDING THE EXISTENCE OF A BACK-
LOG, THE AVERAGE RESPONSE TIME TO A FoIA REQUEST, AND STAFFING
LEVELS.
THIS COMMITTEE, TO SATISFY ITSELF THAT THE CIA IS KEEPING
ITS PROMISES - BOTH AS TO THE BACKLOG AND THE FILE DESIGNATIONS
-SHOULD BE WILLING TO HEAR FROM FOIA REQUESTERS WHO SERIOUSLY
BELIEVE THE SPIRIT OF THIS BILL IS NOT BEING RESPECTED BY THE
AGENCY.
WE ARE PLEASED WITH THE MUCH IMPROVED JUDICIAL REVIEW PROVI-
SION CONTAINED IN HR 5164, WE VIEW DE NOVO JUDICIAL REVIEW AS A
CORNERSTONE OF THE FREEDOM OF INFORMATION ACT. UNDER HR 5164,
THE COURT WILL EXERCISE DE NOVO REVIEW OF THE AGENCY'S FILE
DESIGNATION.
WHILE THIS LEGISLATION GENERALLY EXEMPTS OPERATIONAL FILES
FROM FoIA SEARCH AND REVIEW THERE HAS BEEN AN ATTEMPT IN THE
LEGISLATION TO CAREFULLY DELINEATE THE TYPE AND LOCATION OF FILES
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WHICH FALL INTO THIS CATEGORY. THERE ARE EXCEPTIONS FOR FIRST
PARTY REQUESTERS, COVERT ACTIONS AND OFFICIAL INVESTIGATIONS OF
IMPROPRIETY.
UNFORTUNATELY, MR. CHAIRMAN, THE CONGRESS' EFFORT TO BALANCE
THE PUBLIC'S NEED FOR INFORMATION WITH THE NEED TO KEEP NATIONAL
DEFENSE SECRETS MAY ALL BE FOR NOUGHT GIVEN RECENT DEPARTMENT OF
JUSTICE/OMB REGULATIONS. UNDER THESE REGULATIONS, ANY RECORDS
EXEMPTED FROM DISCLOSURE UNDER THE PRIVACY ACT OF 1974 ARE ALSO
EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT.
THIS IS A REVERSAL OF THE DEPARTMENT OF JUSTICE AND OMB'S POSI-
TION WHICH IT HAS HELD SINCE PASSAGE OF THE PRIVACY ACT IN 1974,
THE DEPARTMENT OF JUSTICE/OMB REGULATIONS ARE ALSO CONTRARY TO
THE WELL REASONED OPINION OF THE COURT OF APPEALS FOR THE DIS-
TRICT OF COLUMBIA IN GREENTREE V. CUSTOMS SERVICE 674 FED 74
(D.C. CIRCUIT 1983). THE ISSUE IS ONE WHICH THE U.S. SUPREME
COURT HAS DECIDED TO REVIEW.
UNDER SUBSECTIONS J AND K OF THE PRIVACY ACT, THE CIA HAS
EXEMPTED RECORDS AND SYSTEMS OF RECORDS FROM DISCLOSURE.
HOWEVER, FIRST AND THIRD PARTY REQUESTORS HAVE A RIGHT TO USE THE
FoIA TO MAKE A REQUEST FOR THESE SAME RECORDS -- IN THIS CASE,
EXEMPTIONS 1 AND 3 OF FoIA GOVERN THE DISCLOSURE OF INFORMATION.
THESE EXEMPTIONS ARE LESS BROAD THAN THOSE AVAILABLE UNDER THE
PRIVACY ACT.
THE EFFECT OF THE NEW OMB INTERPRETATION WOULD BE TO ALLOW
AGENCIES SUCH AS THE CIA TO EXEMPT BROAD CATEGORIES OF RECORDS
UNDER THE AUTHORITY OF THE PRIVACY ACT, THUS FORECLOSING FoIA
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ACCESS BEYOND EVEN THE AUTHORITY OF THIS BILL. THIS WAS NOT THE
INTENT OF CONGRESS WHEN IT PASSED THE PRIVACY ACT. SECTION 552A
(B)(2) WAS SPECIFICALLY INSERTED INTO THE PRIVACY ACT IN ORDER TO
PRESERVE THE PUBLIC'S RIGHTS UNDER FoIA,
MR. CHAIRMAN, WE RECOMMEND THAT THE JUSTICE/OMB INTERPRETA-
TION OF THE RELATIONSHIP BETWEEN THE PRIVACY ACT AND FoIA BE
OVERTURNED THROUGH LEGISLATION TO REFLECT THE ORIGINAL AND TRUE
MEANING OF CONGRESS, WE BELIEVE THAT THIS BILL GOES FAR ENOUGH
IN THE DIRECTION OF ACCORDING DISCRETION TO THE AGENCY IN FoIA
AREA. WE DO NOT WANT THE CIA TO BE ABLE TO FORECLOSE ACCESS
UNDER FoIA BY INVOKING THE BROAD PRIVACY ACT EXCEPTIONS.
CONCLUSION
OUR NATION'S NEWSPAPERS RECOGNIZE THE NEED FOR A DEGREE OF
SECRECY IN OUR INTELLIGENCE OPERATIONS. BUT THIS NEED MUST NOT
OVERSHADOW THE PRINCIPLE OF OPEN GOVERNMENT IN OUR FREE SOCIETY.
As JUSTICE BLACK STATED IN NEW YORK TIMES V, UNITED STATES, 403
U.S. 713, 724 (1971),
"SECRECY IN GOVERNMENT IS FUNDAMENTALLY ANTIDEMOCRATIC,
PERPETUATING BUREAUCRATIC ERRORS. OPEN DEBATE AND DIS-
CUSSION OF PUBLIC ISSUES ARE VITAL TO OUR NATIONAL
HEALTH,"
MR. CHAIRMAN, THIS COMMITTEE, AND IN PARTICULAR THIS SUBCOM-
MITTEE, HAS LEGISLATIVE RESPONSIBILITY FOR THE FREEDOM OF INFOR-
MATION ACT. WE IN THE PRESS ARE VERY GRATEFUL FOR YOUR ONGOING
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ROLE IN PROTECTING THE FoIA FROM ASSAULT. IF THE PENDING LEGIS-
LATION IS TO BE ENACTED. WE ASK YOU TO EXERCISE CAREFUL VIGILANCE
OVER THE CIA'S IMPLEMENTATION OF ITS PROVISIONS. THE PUBLIC
RELIES ON YOU TO SAFEGUARD ITS RIGHT TO AN OPEN GOVERNMENT AND TO
ASSURE THAT INFORMATION RELEASABLE UNDER CURRENT LAW REMAINS
ACCESSIBLE.
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