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Impact of the Freedcm of Information and Privacy Acts on Lawenforcement Agencies. GGD-78-10o; B-17S296. November 15, 1978. 2pp. + 6 appendices (35 pp..,

Report to Sen. James O. Eastland, Chairman, Senate Ccmmittee onthe Judiciary; by Elmer B. Staats, Ccaptzoller General.

Issue Area: Law Enforcement and Crime Prevention (500); FederalRecords Management (1400).

Contact: General Government Div.Budget Function: Law Enforcement and Justice (750); General

Government: General Property and aecords Management (804).Organization Concerned: Department of Justice; Department of the

Treasury; Civil Service Commissicn; Federal Bureau ofInvestigation; Drug Enforcement Administration; Bureau ofAlcohol, Tobacco and Firearms.

Congressional Relevance: Senate Committee on the Judiciary. Sen.James 0. Bastland.

Authority: Freedom of Information Act, as amended (5 U.S.C.552). Privacy Act of 1974 '5 U.S.C. 522a). Tax Reform Act of1976.

In the past 5 years, the Congress has enactedlegislation to control and provide public access to the vastamount of information collected, maintained, and disseminated bythe Federal Government. The Congress intended this legislationto provide openness in Government activities and to protectindividual privacy. Findings/Conclusicns: Federal and local lawenforcement officials say that the Freedom of Informaticm Act(FOIA), Privacy Act, and similar laws are eroding theirinvestigative capabilities, especially in the area ofintelligence gathering. They believe that the acts are afinancial and administrative burden; inhibit their ability tocollect information from the general public, informants, andinstitutions; and diminish the quality and quantity ofinformation exchanged with other law enforcement agencies.Federal Bureau of Investigation and U.S. Secret Serviceofficials indicate that the legislaticn is forcing them into areactive rather than , preventive role and say that the totaleffect of these laws will not be realized until some time in thefuture. Officials at other agencies are concerned about theerosion of their investigative capabilities because of theAmount of resources needed to comply with FOIA and Privacy Actrequirements and the type of requesters benefiting from theacts' provisions. (RRS)

RESTRICTED - Not to bh re!eased outside the GeneralAccount'ng Office except o.a i'-.e ba5!s of specl',c approvai

REPORT BY THE

Comptroller GeneralOF THE UNITED STATES

Impact Of The Freedom Of InformationAnd Privacy Acts On LawEnforcement Agencies ,

Law enforcement officials almost universallyagree that the Freedom of Information andPrivacy Acts have eroded their ability to col-lect an, disseminate information. However,the extent and significance of the informationnot being gathered because of these acts can-not be measured.

G UD-7.0

4Cou ~q * NOVEMBER 19GGD-78 1084CCOU%{ NOVEMBER 15, 1978

CCGMPROLLER GENERAL OP THE UNITED STATEWASHINGTON. D.C. 2God

B-179296

The Honorable James O. EastlandChairman, Committee on the JudiciaryUnited States Senate

Dear Mr. Chairman:

In response to your April 197P request, we are reportingon the impact the Freedom of Information and Privacy Acts arehaving on Federal law enforcement agencies' ability to obtainand exchange information.

Law enforcement officials almost universally believethat the ability of law enforcement agencies to gather andexchange information is being eroded. The extent and signif-icance of the information not being obtained, however,cannot be measured. Some confusion also exists about therequirements and provisions of these acts that affect theability of law enforcement agencies to collect and dis-seminate information.

Appendix I shows information obtained from lawenforcement agencies, including typical examples of theeffect that the Freedom of Information and Privacy Actsare having on their ability to (1) obtain information fromthe general public, informants, and businesses and institu-tions and (2) exchange information with Federal, State,and local agencies, and foreign governments. Additionalexamples are included in appendix II. As agreed withyour office, we did not verify or draw conclusions fromthe examples provided. Further, we did not attempt toevaluate the benefits to be derived from these acts.

Our work was performed at the headquarters and selectedfield offices in California and the Washington, D.C., areaof the Federal Bureau of Investigation; Drug EnforcementAdministration; Bureau of Alcohol, Tobacco and Firearms;United States Secret Service; and Civil Service Commission.We interviewed agency officials and obtained examples ofinvestigative cases affected by these acts. We also con-tacted State and local law enforcement agencies in California,Maryland, and Virginia to determine how the Freedom ofInformation and Privacy Acts were affecting their relation-ships with the Federal law enforcement agencies.

B-179296

As arranged with your office, unless you publiclyrelease its contents, we plan no further distribution ofthis report until 30 days after its issue date. At thattime, we will send copies to interested parties and makecopies available to others upon request.

Comptroller Generalof the United States

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Contents

Page

APPENDIX

I IMPACT OF THE FREEDOM OF INFORMATIONAND PRIVACY ACTS ON LAW ENFORCEMENTAGENCIES 1

Background 1Nature of investigative operations 2Officials assert erosion of law

enforcement capabilities 2Financial and administrativeburden 3

Reduced ability to obtaininformation 4

Exchange of information affected 10Agency comments and our evaluation 14

II SELECTED CASE STUDIES PROVIDED BYFEDERAL AGENCIES 15

III SUMMARIES OF THE FREEDOM OF INFORMA-TION ACT AND PRIVACY ACT 25

IV September 13, 1978, letter from theCivil Service Commission 27

V October 5, 1978, letter from theDepartment of the Treasury 30

VI October 26, 1978, letter from theDepartment of Justice 33

ABBREVIATIONS

A'F Bureau of Alcohol, Tobacco and FirearmsCSC Civil Service CommissionDEA Drug Enforcer'ent AdministrationFBI Federal Bureau of InvestigationFOIA Freedom of Information ActGAO General Accounting OfficeIRS Internal Revenue ServicePA Privacy ActUSSS United States Secret Service

APPENDIX I APPENDIX I

IMPACT OF THE FREEDOM OF INFORMATION AND

PRIVACY ACTS ON LAW ENFORCEMENT AGENCIES

BACKGROUND

In the last 5 years the Congress has enacted legislationto control and provide public access to the vast amount ofinformation collected, maintained, and disseminated by theFederal Government. The Congress intended this legislationto provide openness in Government activities and protectindividual privacy.

These l:ws incl:ide the Freedom of Information Act (FOIA),enacted in 1966 and amended in 1974, which allows publicaccess to information maintained bag Federal executive agencies(see app. III); the Privacy Act (PA) of 1974, which emphasizesthe protection of an individual's personal privacy by con-trolling the collection, maintenance, retention, and dis-semination of personal information (see app. III); and theTax Reform Act of 1976, which limits dissemination of taxreturns and taxpayer information for non-tax-related matters.Many States have enacted their own openness laws to providepublic access to State government records and activities andprivacy laws to regulate the collection and dissemination ofinformation by State agencies and by private organizations.

Law enforcement agencies depend on recorded informationabout the activities of individuals and desire full and com-plete access to such information while performing theirlegitimate law enforcement activities. Additionally, theseagencies have traditionadlly been very protective of the in-formation they collect and use and have worked under systemsthat promise total confidentiality. Therefore, such legis-lation as the FOIA and the PA, which opens records to publicinspection and restricts the collection and flow of informa-tion, has a definite impact on how law enforcement agenciesoperate and fulfill their responsibilities.

Law enforcement officials at all levels of governmenthave stated in congressional testimony that the prolifera-tion of access and privacy laws has been instrumental increating a restrictive climate which affects their abilityto obtain information from the public and institutions, torecruit and maintain informants, and to exchange informationwith other law enforcement agencies.

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NATURE CF INVRSTIGATIVE OPERATIONS

Law enforcement agencies conduct criminal, as well asnational security investigations. These investigationr varyfrom relatively short-term efforts following a crime to long-term efforts sustained over a period of years. Efforts gener-ally involve identifying perpetrators of violent and nonvio-lent crimes, developing evidence for prosecution, and gather-ing intelligence about individuals or organizations involvedin, or contemplating involvement in, criminal activities.Investigations range from general criminal matters to orga-nized crime, terrorism, political corruption, and foreigncounterintelligence operations.

During investigations agencies must develop thepertinent facts in a given case. The development of thesefacts requires various investigative techniques, such asobtaining information from informants and other individualswho do not want their identities revealed, reviewinginstitutional records, and gathering information from thegeneral public. Information developed through these effortsnormally is systematically recorded and evaluated for usein current and future investigations. Additionally, lawenforcement agencies disseminate information to otheragencies with similar investigative interests to avoidduplication of investigative efforts.

OFFICIALS ASSERT EROSION OF LAwENFORCEMENT CAPABILITIES

Federal and local law enforcement officials say theFOI/PA and similar laws are eroding their investigative capa-bilities, especially in the area of intelligence gathering.They believe the acts (1) are a financial and administrativeburden, (2) inhibit their ability to collect information fromthe general public, informants, and institutions, and (3)diminish the quality and quantity of information exchangedwith other law enforcement agencies.

Federal Bureau of Investigation (FBI) and U.S. SecretService (USSS) officials indicate that th.% legislation isforcing them into a reactive rather than a preventive roleand that the total effect of these laws has not and willnot be realized until sometime in the future. The FBI,TUSSS, Drug Enforcement Administration (DEA), and Bureau ofAlcohol, Tobacco and Firearms (ATF) officials have statedthat they cannot measure the extent of the erosion or pro-vide concrete evidence of its effects because they lackways of determinir.n the value or impact of the informationnot being received.

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We asked the agencies for examples of how the acts haveaffected their investicat.ve operations. Although severalagencies provided examples showing the legislation's impactin specific cases, no agercy could document the total impactthe laws have had on overall investigative operations.Furthermore, it was difficult for them to distinguish betweenthe impact re3ultinc specifically from the FOI/PA previsionsand the impact from other laws or regulations, misinterpreta-tions of laws and regulations, or from a general distrust oflaw enforcement agencies. Some examples are included in thefollowing discussion, and additional examples are in appendixII. We did not verify these examples.

Financial and administrative burden

Officials at the FBI, DEA, ATF, and USSS are concernedabout the erosion of their investigative capabilities dueto the amount of resources needed to comply with the FOI/PAreauirements and the type of requesters benefiting from theacts' provisions. They saiC that a substantial numuer ofstaff members are processing FOI/PA requests, who couldotherwise be fulfillirg their investigative responsibili--ties. We previously reported the monetary impact of theFOI/PA on some law enforcement agencies in a report en-titled "Data on Privacy Act and Freedom of Information ActProvided by Federal Law Enforcement Agencies" (LCD-78-119,June 16, 1978).

Adcitionally, DEA and ATF officials complained aboutthe amount of paperwcrk involved in complying with the"disclosure accounting" provision of the PA. Officialsof these agencies told us that when information was dis-closed outside the agencies, a form indicating the infor-mation and to whom it was disseminated must be prepared.They believe this requirement has become a tremendousadministrative burden which detracts from agents' timeavailable for .nvestigative duty.

To the Federal agencies' officials, the administrativeand financial burdens seem even more destructive consider-.ing the types of individuals submitting FOI/PA requests.They believe that while these acts are of limited value tothe American public, they are beneficial to criminals.According to DEA officials, about 40 percent of its re-questers are prisoners asking not only for their own filesbut also for sensitive information, such as the agents'manual of instructions and laboratory 'aterials describingthe manufacture of dangerous drugs. In ATF official saidabout 50 percent of its requests come from prior offenders

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who use the FOI/PA in an attempt to find out how investiga-tions are conducted and thus avoid capture in future crimes.In our report titled "Timeliness and Completeness of FBIResponses to Requests Under Freedom of Information and Pri-vacy Act.s rave Improved" (GGD-78-51, Apr. 10, 1978), wereported that from October through December 1977 prisonerscomprised about 6 percent of the requesters for informationfrom the FBI files. In an analysis of a sample of requestssubmitted to the FBI, we found that 30 percent of therequests concerned criminal files.

Reduced ability to obtain information

Federal and local law enforcement officials we contactedindicated that the FOI/PA have eroded their enforcement capa-bilities by limiting their ability to develop investigativeinformation from the general public, informants, and insti-tutions.

General public

Federal and local law enforcement agencies have reporteda marked reluctance of the public to cooperate with law en-forcement efforts. This trend is not attributed solely tothe FOI/PA. The legislation is seen as just one effect ofthe "post: Watergate Syndrome"; that is, the public's generaldistrust of law enforcement agencies and the Government.

The FBI has documented numerous cases where citizenshave withheld information specifically because they feartheir identities will be disclosed through FOI/PA requestsfor information maintained by the FBI. FBI officials saythese acts have eroded the public's confidence in the FBI'sability to maintain confidentiality. Citizens are reluctantto furnish derogatory information for either criminal orapplicant investigations, fearing that disclosure of theirtestimony could result in embarrassment or civil suitsagainst them. For example:

-- A recent Department of Justice applicant inves-tigation developed a considerable amount ofderogatory information. A U.S. district judgewas interviewed, and he admitted that he hadinformation which would bear on the investiga-tion, but he refused to furnish it to the FBIbecause he said he knew that his information,once released outside the FBI, would not beprotected to conceal him as the source of theinformation. fe said other Federal judges felt

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the same way and believed that the Federal benchin general was unwilling to assist in such back-ground investigations.

-- In a fraud investigation in a southwestern city,a former employee of the company being investi-gated, who had been a principal source of infor-mation, was fearful that he would be sued by thesubjects of the investigation if he providedinformation to the FBI. He knew this informationwould be available upon request under the FOI/PA,and if the criminal allegation was not ultimately-resolved in court, he would become civilly liable.On several occasions this source expressed reluc-tance to provide information of value.

The USSS provided the following example of a citizen'sreluctance to cooperate.

--In accordance with a request from the Depart-ment of Justice, USSS offices were required tomake inquiries regarding the organized crimesituation in their respective districts. Inconnection with this effort, an agent inter-viewed the Chief Investigator for a County Dis-trict Attorney's Office, who had considerablebackground on organized crime activities. Wheninterviewed, he declined to release any informa-tion. He stated that, under the FOIA, recordsand files of Gove-nment agencies could be obtainedby non-law-enforcement personnel, that much of theinformation he had could not be positively sub-stantiated, and that he could be liable for makingstatements he could not fully prove. He furtheradvised that if his identity as a source of infor-mation were obtained under the FOIA, he might besubpoenaed before another body to testify on theinformation he had, possibly compromising hisinformants.

Civil Service Commission (CSC) officials, on the otherhand, said that in makinq background investigations theyhave had only a minor drop in the amount of derogatoryinformation obtained from the general public. However,they could not determine the significance of the informa-tion no longer being obtained. Actually, CSC officialswere surprised at the amount of derogatory information thepublic provided without requiring that the information beKept confidential. CSC officials, however, expressed con-cern about the limits the PA imposes on collecting data

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relating to how an individual exercises first amendmentrights. They believe that, although this provision of thePA is not absolute, it restricts the scope of loyaltyinvestigations and may result in some disloyal individualsentering Government service.

Informants

Federal law enforcement officials believe informantsare necessary for effective criminal law enforcement, becauseinformants are one of the most important intelligence--gather-ing tools. Federal officials perceive that, since the adventof FOI/PA, there has been some difficulty in recruiting andmaintaining informants, especially in areas such as organizedcrime and foreign counterintelligence.

FBI officials believe the acts have had the greatestimpact on informants in the organized crime and foreigncounterintelligence areas. These individuals are usuallywell-educated, sophisticated, informed about the laws' pro-visions, and aware of recent court decisions and news articlesconcerning the release of information from Federal files.Informants in these areas, especially in foreign counterintel-ligence, are frequently respectable business people whosecommunity standing or livelihood could be jeopardized by anFOI/PA disclosure. FBI officials said that some of theseindividuals are either refusing or hesitating to provideinformation because they believe the Government can no longerprotect their identities. Sources are also concerned thatif '-heir identities are revealed they will be subject toharassment or physical retaliation. To illustrate:

-- An informant connected with organized crimeprovided information in FBI cases, includingsome which led directly to the identificationand prosecution of several Federal violators.Inquiring into a dramatic decrease in hisproductivity, the FBI learned that he becamevery circumspect after an organized crimefigure requested and received, under theFOIA, a large volume of FBI reports and wasundoubtedly trying to identify informants.The informant expects organized crime tomake much greater use of the FOI/PA anddoubts the FRI's ability to maintain controlover the contents of its files.

--An informant who was productive for manyyears in the area of organized crime and

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who furnished information resulting innumerous convictions became concerned thathe might be identified. he indicated thatnewspaper accounts of FBI informationdisclosures under FOIA caused him to loseconfidence in the FBI's ability to protecthis identity. Because he had furnishedinformation over a number of years, hebelieved it would be possible to identifyhim from a compilation of this information.The informant is presently in a position tofurnish information on a major politicalcorruption case and refuses to do so, statingthat the more sensitive the information themore likely it is to "come out."

--A former source of excellent quality informa-tion was recontacted because his backgroundwas such that he could develop informationof value concerning a terrorist group. Heinitially refused to cooperate for fear thatthrough an FOIA disclosure his identity couldeventually be revealed. He believed hisinformation would be of such quality thatanyone outside of the FBI upon reading itwould easily be able to identify him. He wasreminded that he had functioned as a valuedsource for several years and that his identityhad never been disclosed. He acknowledgedthis was true; however, he stated that due toFOIA he no longer believes that FRI agentscan assure his complete protection eventhough they would make every effort to doso. The source also cited recent courtcases, particularly the Socialist WorkersParty lawsuit, which convinced him thathis identity could not be protected. After3 hours of conversation, the former sourceagreed to cooperate but only in a verylimited way. He made it clear he wouldnever again function as extensively asbefore because of FOIA, similar laws, andcourt decisions. He added that disclosureof his identity would most assuredly costhim his life.

Recruiting low-level informants is less of a problem.DEA and ATF officials said the FOI/PA have had very littleeffect on their use of these types of informants becausethese Individuals are involved in or on the fringes of

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criminal activities and, thus, are willing to provideinformation in exchange for more favorable treatment 'oftheir criminal activities. Because most of them are noteven aware of FOI/PA provisions, any lack of cooperationis more likely to stem from dissatisfaction about the moneythey have received or the deals they have made than fromfear of an FOI/PA disclosure. However, FBI, D ', and ATFofficials said that, as these informants become more awareof the acts' provisions, they will be more reluctant toprovide information.

FRI and ATF officials also said that, because of theFOI/PA some agents are reluctant to develop new informants.They believe they can no longer provide the 100-percent guar-antee of confidentiality which is needed to avoid exposinginformants to possible liability or physical harm. Theseofficials believe their sources are vulnerable despite theacts' source-protection provisions because individuals proc-essinq FOI/PA requests do not have first-hand knowledge ofthe cases. Consequently, an individual processing a requestmay release a seemingly harmless piece of information bywhich the requester could identify the source.

Institutions

All law enforcement officials reported that the PA hashad some of its most severe effects on their ability toobtain information from institutions such as hospitals,banks, and telephone companies. Previously, law enforcementagencies could obtain records from these institutions on aninformal basis. Now, an increasing number of institutionsrequire the agencies to obtain a subpoena before providinginformation.

Although the PA does not apply to private organizations,many institutions have adopted withholding information asadministrative policy. Federal law enforcement officialsbelieve these policies are a result of an increased con-sciousness of privacy concerns stimulated by the PA. Someorganizations believe that a blanket refusal to release in-formation without a subpoena will help protect them againstinvasion of privacy litigation. CSC officials said thatmany private companies are increasingly reluctant to allowinvestigators to interview employees because of PA concerns.

FBI, ATF, and 7'%SS officials said that, in most cases,they have to use a grand jury subpoena to obtain records.This procedure is very time-consuming because of the paper-work involved and the infrequency of some grand jury meet-ings. FBI officials were particularly concerned over how

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this procedure will affect kidnapping or fugitive caseswhere speed of action is essential. USSS officials saidthat most of the threats on the President come frommentally unstable individuals, so timely access to recordsmaintained by mental institutions is critical when thePresident or other dignitaries travel around the country.Because travel schedules are sometimes not known in advance,officials cannot afford to spend considerable time trying toobtain a subpoena.

FBI, USSS, and DEA officials also said that some banksand telephone companies immediately notify the subject ofthe subpoena rather th.an allowing the customary 90-dayperiod to elapse. Agents believe that if this immediatenotification policy is continued and expanded, they will behindered in using institutional records as investigativeleads. Because organized crime and foreign counterintel-ligence investigations extend over long periods without thesubject's knowledge, agents believe that such notifica ..onscould disclose, and thus destroy, entire investigation.

Some representative examples provided by agenciesfollow:

-- In a case involving approximately 100 forgedchecks in a midwestern city, the USSS attemptedto develop information on the accounts in whichthese checks were deposited. Banks refused tofurnish copies of documents from three accotntswithout a subpoena, even though the banks stoodto lose a total of $40,000. These banks citedthe PA as a reason for failing to furnish therequested information. Information was providedafter subpoenas were served.

-- During an unlawful flight to avoid prosecution/murder investigation, the FBI found out thenonpublished telephone number where the fugitivewould be for the Christmas holiday. The FBItried to obtain the location of the number fromvarious officials of a midwestern telephonecompany, but they refused to release the infor-mation without a subpoena. As a result, thefugitive was not apprehended.

--In a fraud investigation the FBI was deniedinformation submitted to Medicare through aninsurance agency. This information showedMedicare fraud perpetrated by the staff of aunion-owned hospital and was withheld tby the

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insurance agency because of the PA. Most ofthe information desired was ultimately obtainedby a Federal grand jury subpoena.

Exchange of information affected

Federal, State, and local law enforcement officialsstated that the exchange of information among law enforce-ment agencies has been curtailed since enactment of the PA.State privacy laws, modeled after the Federal legislation,have also limited the once free exchange of informationamong Federal, Stat>, and local agencies. The informationflow from non-Federal to Federal law enforcement agencieshas been most affected. Foreign law enforcement agencieshave expressed concern that information they provide maybe disclosed through the FOIA bIut are still cooperatingwith U.S. law enforcement agencies.

Federal agencieF

Federal law enforcement officials said that, in general,obtaining information from other Federal law enforcementaqencies presents no serious difficulties. This is due pri-marily to the "routine use' provision of the PA which facili-tates information flow. Under the routine use provision,Federal agencies may disclose a record for a purpose whichis compatible with the purpose for which it was collected.

USSS officials were concerned about not getting as muchintelligence information from; the FBI as before because ofrestrictions imposed on the FBI's ability to collect suchinformation. However, they cited the implementation of theAttorney General's guidelines for domestic security investi-gations, rather than the PA, as the reason for the reductionin the availability of information. USSS officials believethis reduction of intelligence information severely hampersits protective efforts.

FBI, DEA, and ATF officials complained about difficultiesin obtaining taxpayer-related information from the InternalRevenue Service (IRS). ATF officials cold us the difficul-ties in obtaining information from IRS arise from provisionsof the Tax Reform Act of 1976 which restrict the dissemina-tion of taxpayer-related information for non-tax relatedcrimes.

FBI, USSS, and ATF officials indicated that gainingaccess to records maintained by non-law-enforcement Federalagencies has become more difficult. The FBI and USSS saidthat Federal agency officials often cite the FOI/PA as the

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APPENDIX I APPEINDIX I

reason for withholding information. The FBI said that inmany cases these offi ials are confused by or unaware ofthe disclosure provisions and requirements of the FOI/PAbut are quite aware of the penalties that can be imposedfor improper disclosure. Therefore, rather than riskpunitive action for improper disclosures, some agencyofficials assume an overly conservative stance and withholdinformation that legally could be provided to a law enforce-ment agency.

Examples of cases where the FBI encountered difficultiesin obtaining information from Federal agencies follow:

-- FBI agents in the Pacific Northwest developedinformation that an escaped prisoner mighthave beer, receiving Supplemental Security Incomepayments. Local Social Security officials refusedto supply any information about the fugitive,citing the PA. The FBI later apprehended thefugitive, after expending considerable manpower.The FBI found that the fugitive, when arrested,had been receiving Supplemental Security Incomepayments.

-- During an FBI investigation in a western city,under the Racketeer Influenced and CorruptOrganizations statute, information developedon a subject was provided to an IRS agent. TheIRS agenr advised that due to the PA, the IRScould accept information valuable to them butcould not provide any information that wouldaid an FBI-related case.

-- During an unlawful flight to avoid prosecution/murder investigation, the FBI found out thatthe subject was receiving a monthly disabilitycheck from the Social Security Administration.Although the Social Security Administrationconfirmed the subject was getting a check, itdeclined to furnish the address where the checkwas being sent because of the PA. The subjectwas eventually located, but it took over 3months of investigative effort.

Federal and local agencies

Most State and local lav enforcement officials inter-viewed said they were increasingly reluctant to share intel-ligence information with Federal agencies because they fearthat their information would be released as part of an

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FOI/PA disclosure. These officials fear such disclosureswill identify confidential sources or Prematurely revealinvestigative interests. Officials also anticipate that,in light of the current rash of lawsuits against lawenforcement agencies, some subjects of investigations mayeventually sue the local agencies for providing intelligenceinformation to the Federal agencies.

Because of theii concerns, most local officials saidthey are increasingly providing information orally and onlyto Federal aqents with whom they have established rapport.If information is provided in writing it is "sanitized" toprotect confidential information and sources. Some officialsbelieve information exchange has become so hazardous thatthey could release unexpurgated data only to trustedassociates who would protect its confidentiality. '31officials corroborated the local officials' statements andprovided several examples of situations in which localofficials have been reluctant to provide information.

-- FBI agents working on organized crime casesin a southwestern city reported that theywere excluded from intelligence meetings heldby State and local law enforcement agencies.Several State law enforcement officers citedconcern over FOI/PA disclosures as the reasonfor excluding the agents from the meetings.

--A southern city's police intelligence unitlearned that one of its intelligence reports,furnished to the FBI with assurances of con-fidentiality, had been released under theFOIA. Although this document did not revealthe identity of any informants, the unitrefused to furnish any further written infor-mation to the FBI. It simply did not believethe FBI could guarantee confidentiality forinformation provided, and it wanted to avoidthe possible compromise of informants.

-- An extremist organization's leader, who wasconvicted of two murders, received documentsfrom FBI headquarters through an FOIA request.The convicted leader's attorney informed amideastern city's police intelligence officerthat, after reviewing the documents, theleader had identified the police department'sinformant in the murder case. This policedepartment will no longer furnish writtenreports to the FBI.

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State privacy and access laws, modeled after the Fed-eral legislation, also regulate dissemination of information.These laws, however, generally apply to criminal historyrather than intelligence information. Under these laws,Federal law enforcement agents must now make requests inperson or present documentation justifying need befAre thecriminal history information is provided. FBI, DEA, andATF officials said that in the past, merely a telephonecall or display of cred'entials was sufficient to obtain therecords.

CSC officials said that they have special problems ingetting access to police records because some State lawsdo not recognize them as proper recipients of criminal his-tory information. CSC officials believe that the difficul-ties stem from the fact that they are not a law enforcementagency. CSC officials also said that some local law enforce-ment officials mistakenly quote the Law Enforcement Assist-ance Administration's criminal justice information systems'regulations a.- reqiiririq the withholding of information.This is done even though Law Enforcement ssistance Adminis-stration and CSC officials have explaineo to local officialsthat the regulations permit departments to release criminalhistory records under CSC's statutory and administrativeinvestigative authority.

Federal and foreign agencies

Both FBI and DEA officials said that in some of theiroperations they depend on information provided by foreignlaw enforcement agencies. They also said that althoughthese foreign agencies have continued to cooperate, theyhave expressed a deep concern that their information will bedisclosed through the FOIA. These agencies have requestedthat their information always be considered confidentialand thus not releasable, otherwise they would cease to pro-vide additional information.

Although both FBI and DEA officials consider theirrelationship with foreign law enforcement agencies as stillessentially good, they cannot tell how much information theyare no longer getting because of the U.S. agencies' inabilityto3 provide total assurance of confidentiality. For example,an FBT field office reported that two officers of one prom-inent foreign law enforcement agency admitted they bed with-held some case information from the FBI because of theirconcern about FOIA disclosures. During congressional testi-mony the Administrator of DEA cited statements by Frenchand British officials that, if DEA were required to disclose

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information furnished by them, their law enforcement agencieswere certain to cease all cooperation with DEA.

AGENCY COMMENTS AND OUR EVALUATION

The Department of Justice, the Department of theTreasury, and the Civil Service Commission generallyagreed with our observations. The Department of Ju3tice,however, believes that we understated the gravity of theadverse impact the FOI/PA are having on law enforcementagencies. It also believes that we failed to emphasize theneed for congressional action to remedy what it considersto be the present imbalance between txn FCK(/PA opennessgoals and the need for confidentiality ii Criminal andother investigations.

The benefits to the public and the aofficultiesexperienced by law enforcement agencies resulting from theimplementation of these acts cannot be quantitatively mea-sured. The proper balance between openness and the needsof law enforcement agencies is a matter of one's perspective.Therefore we have merely presented the views of law enforce-ment officials and examples of how the FOI/PA are creatingdifficulties for law enforcement agencies. It is up to theCongress to weigh the significance of these difficultiesagainst the public benefit derived from the openness andprivacy protection provisions of the FOI/PA.

The FBI objected to our statement that "* * no agency-could document the laws' impact on ove-rll investigative ef-fectiveness." Officials believe that uch a statement under-mines the case for the Congress to reexamine the legislation.We believe that the examples provided by the FBI show thatin some specific cases, it has taken the FBI longer to ap-prehend a criminal, that the FBI has had to spend additionalagent hours collecting and/or verifying information, thatthe public has been increasingly reluctant to cooperate,and that some criminals are using the acts to try to obtainsensitive information from law enforcement agencies. Theexamples, however, do not show that the FBI or other lawenforcement agencies have been unable 'o fulfill their in-vestigative responsibilities.

The FBI had difficult; Determining whether the impacton its operations resulted solely from the FOI/PA. Otherlaws or regulations, administrative policies, and a generaldistrust of law enforcement agencies may have had as muchor more to do with the FBI's difficulties as the FOI/PA.Therefore, it was not possiole to accurately document thetotal impact these two laws have had on the investigativeoperations of the FBI.

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APPENDIX II APPENDIX II

SELECTED CASE STUDIES PROVIDED

BY FEDERAL AGENCIES

Agercies we contacted almost universally agreed thatlaw enforcement information-gathering capabilities werepbeing eroded. They pointed out, however, that no inresti-gative records were maintained specifically to show howthese laws affect their operations. According to the FBIand USSS, the eyamples provided represent only the instanceswhich could be documented after the fact and only a fractionof the total occurrences.

The FBI a d USSS provided the most illustrative andspecific examples, and the following sections contain across section of these. We did not verify the examples.

EROSION OF ABILITY TO OBTAIN INFORMATIONFROM THE GENERAL PUBLIC

-- The FBI initiated a Racketeer Influenced and CorruptOrganizations investigation based on informationprovided by businessmen in a small southwesterntown. The businessmen asked that they not becalled to testify because they feared their busi-nesses would suffer. Upon later learning thatthe information might be disclosed through anFOI/PA release, they decided not to furnishfurther information. Without this assistancethe FBI had to discontinue the investigation.

-- During a background investigation of a nomineefor U.S. District Judge, the FBI contacted twoattorneys but both were extremely reluctant tofurnish their opinions of the nominee's qualifi-cations. They feared that if the nominee wasappointed and later learned of their comments,he would use his position to punish them. Theattorneys had little confidence in the con-fidentiallty protection afforded by the FOI/PA,but eventually provided some comments. How-ever, the FBI indicated that there was noassurance that they were as candid as theymight have been before passage of the FOI/PA.

-- During an FBI background investigation for apossible presidential appointment, over 40interviews were conducted and in over halfof the interviews the agents believed thatpossible derogatory information was being

15


withheld. On many occasions the agents wereasked if the appointee would have access tothe information through the PA. Several ofthe individuals interviewed said that theyfeared reprisals and would not providederogatory comments.

-- During an FBI investigation of interstatetransportation of obscene matter and inter-state pimping of juvenile boys, schoolofficials fearing reprisals if their testi-mony were released through the FOI/PA,refused to verify the boys' identities.Citizens in the community only reluctantlycooperated and appeared to be holding backvaluable information. Several expressedfear that their identities would be revealedthrough an FOI/PA release. Most of thecitizens indicated thAt organized crime wasinvolved and feared 'heir reputations wouldbe damaged or their physical safety threatened.One source refused to provide any informationbecause he did not believe the FBI couldprotect his identity and he feared for hislife.

-- An FRI office reported that the most signifi-cant negative impact on its investigativemission has resulted from a $600,000 lawsuitfiled against a person, who about 20 yearsago, allegedly provided derogatory informa-tion to the FBI about the plaintiff's suita-bility for a Government job. The plaintiffhad used the FOIA to request FBI files whichshe claimed allowed her to identify thesource of the derogatory information. Theplaintiff charged that the information wasslanderous and defamatory. The suit wasdismissed because the statute of limitationshad run out, but the primary issue of whetheror not a person can sue someone who hasprovided information to the FBI was neveraddressed or resolved. FRI agents reportedthat members of the general public and lawenforcement officers were shocked that sucha lawsuit had been filed. Numerous individualsinformed fRI agents that, as a result of thislawsuit, tney would never provide derogatoryinformation to the FBI.

6


-- In an FBI applicant investigation a localpolice official refused to provide derogatoryinformation concerning the applicant. Theofficial said that under the FOIA the applicantwould have access to the information and, evenif his identity were to remain confidential,the information could serve to identify himi.

--FBI agents contacted the former employer of aperson applying for an FBI position. Companyofficials provided the dates of employment,but refused to provide a recommendation orcomment on the employee's performance,citing the PA and the fact that the informa-tion could become known to the applicant.The officials further stated that no otherinformation would he provided regarding theapplicant, even if the applicant signed arelease form.

-- The FPI was investigating the financial statusof a person convicted of fraud against theGovernment. This individual had consented toa $300,000 judgment. A potential Governmentwitness refused to furnish information regardingownership and management of the defendant's pro-perty after being advised about the FOIA's pro-visions. The potential witness believed thatan FOIA release would adversely affect his busi-ness relations with the defendant.

EROSTON OF ABILITY TO RECRUIT AND/ORMAINTAIN IMFOlFMANTS

-- A top management official in a State agencywanted to provide the FBI with informationon white collar crime and political corrup-tion. However, he refused to provide theinformation because he doubted the FBI couldprotect his identity due to the accesspossible through the FOIA.

--A potential counterintelligence source advisedthat he could not cooperate with the FBIbecause he feare, that his identity would -erevealed publicly. He indicated that recentnewspaper accounts regarding material releasedunder the FOIA had revealed the names of severalindividuals in a professional capacity who hadassisted the FBI, and the nature of their

17


assistance. This type of publicity, accordingto the individual, would be detrimental to anyperson in business who elected to cooperate withthe FBI.

-- An FBI informant who had regularly furnishedinformation resulting in recovery of largeamounts of stolen Government property, arrests,and convictions, relocated and discontinuedhis services. Upon his return t, a positionwhere he could furnish similar information, herefused to cooperate because he feared thatthrough an FOI/PA release he would be identifiedand his life would be jeopardized.

--A businessman was approached by an intelligenceofficer from a hostile country. During an FRIinterview, the businessman said that were itnot for the FOI/PA he would be willing tocooperate with the FBI in foreign counterintel-ligence involving the intelligence officer whocontacted him plus an' others. He refused toget involved because he feared that hisidentity would be divulged, thus seriouslyaffecting his business operations.

--A source providing foreign counterintelligenceinformation expressed anxiety on numerousoccasions about continuing his relationshipwith the FBI. He fears that his identity willbe disclosed through an FOI/PA release, thushurting his business and jeopardizing membersJf his family who reside inside the hostilecountry. Because of his fears the sourcefrequently requests the FBI to place dissemina-tion restrictions on the information he furnishes.

-- In a southwestern city, an individual who is ina position to furnish foreign counterintelligenceinformation has refused to cooperate. It is hisopinion that the Federal Government cannot insurehis confidentiality in view of congressionalscrutiny of the FBI, subsequent news media leaks,access to records through the FOI/PA and theextensive civil discovery proceedings exemplifiedby the Socialist Workers Party lawsuit, where thecourt Las ordered the Government to disclose theidentity of some informants. The individual saidthat if the disclosure climate was more restrictivehe would be willing to cooperate.

18


-- An FBI informant, who provided information regard-ing gambling and organized crime in a southerncity, asked to terminate his FBI associationbecause he believed that the FBI could not suffi-ciently protect his identity. The source is afraidthat his identity may be revealed under the FOI/PAcausing him to lose his business.

-- In June 1978, an FBI agent from a southwesterncity met with a source to seek help in locatinga wanted person. The source said that he didnot want to continue providing information andwould not help. The source believed that theFBI could no longer guarantee confidentialityin light of the FOI/PA and recent court casessuch as the Socialist Workers Party lawsuit.

-- During an investigation to locate an armedrobbery fugitive, the local police developedan informant close to the fugitive. The in-.formant initially provided valuable informa-tion, but upon realizing that the local policewere sharing the information with the FBI theinformant refused to continue cooperating,believing that her identity might be revealedthrough an information request under the FOI/PA.The fugitive committed several crimes duringthe additional time that was required toapprehend him.

EROSION OF ABILITY TO OBTAIN INFORMATIONFROM NON-GOVERNMENTAL INSTITUTIONS

--A forged U.S. Treasury check was used to pay atelephone bill. The telephone company super-visor refused to furnish USSS agents with anyinformation about the individual who negoti tedthe check or the telephone account involved.Although the USSS agent pointed out that thetelephone company was a victim in this case,the company refused to furnish any data withouta court order. The Secret Service agent saidthat this information would not have been with-held prior to enactment of the FOI/PA.

--A USSS agent, working undercover, learned thata $3,800 U.S. Treasury check had been stolen,forged, and deposited in a bank account in awest coast city. The Secret Service immediatelycalled all the banks in the city, with negative

19


results. The undercover agent later learnedwhich bank had receivei the check. When hevisited this bank, bark officials acknowledgedthey had been contacted earlier, but had ignoredthe inquiry because it was bank policy not toreply to law enforcement inquiries because ofthe PA. By the time the agent made the initialtelephone call to the bank, $500 had been with-drawn from the account. The subjects withdrewan additional $2,300 between the initial calland the visit by the Secret Service agent.The bank would have prevented a $2,500 loss ifit had cooperated when first contacted.

--A west coast bank advised the FBI that the bankhad made a $100,000 loan to an individual whoappeared to have provided false information onthe loan application. The bank indicated thatthis person may also have defrauded severalother banks. The FBI contacted the bank officialwho had the loan records but he refused to releasethe documents without a subpoena. The FBI thencontacted the assistant U.S. attorney who advisedthat he would not issue a subpoena without know-ing what information of evidential value was con-tained in the records. Because of this "Catch-22"situation, the FBI closed the investigation. Thecase was eventually reopened in light of the amountof losses suffered (several million dollars).

--In a fugitive-deserter investigation the FBI foundout that the subject had worked at a particularoil company. The oil company was contacted butrefused to provide the subject's address or otherbackground information. The company feared futureliability if the subject learned that the companyprovided the information to the FBI. Companyofficials believed the FBI would have to providethis information to the subject because of theFOI/PA.

-- During an FBI fugitive investigation of a subjectwanted for extortion and firearms violations, anagent contacted a hotel's security officer todevelop background information on a former employeewho was an associate of the fugitive. This formeremployee allegedly had knowledge of the fugitive'swhereabouts, but the security officer refused toprovide any information from the files without a

20


subpoena. The security officer believed that with-out a subpoena the hotel would be subject to civillitigation under provisions of the PA.

-- A west coast telephone company informed the USSSthat whenever the company releases informationabout a non-published number, they will immediatelynotify the subscriber that an inquiry was made andwho made the inquiry. Consequently, agents mustnow decide whether to obtain the information andthus alert the subscriber, or not use this importantinvestigative tool.

-- During a sensitive investigation, the FBI sub-poenaed bank records concerning the subject of theinvestigation. Contrary tc a prior agreed uponarrangement, the bank manager immediately advisedthe subject that the FBI had requested the recordsand jeopardized several ongoing investigations.The manager justified his action by citing the PA.As a result of this experience, agents working onanother sensitive investigation decided not to re-quest needed bank records because the risk of thebank notifying the suspect was too great.

EROSION OF ABILITY TO EXCHANGE INFORMATIONWITH OTHER FEDERAL AGENCIES

--An FBI office in the South reported that FBIagents must now obtain change of addressinformation from the Postal Inspector's Office.Previously, FBI agents with proper identificationcould get this information from the local postalsubstation. Furthermore, the Postal Serviceasked this FBI office not to contact individualmail carriers for information. The mail carriers,who are familiar with neighborhood activity, areconsidered valuable sources to whom access isnow denied.

--A father took his 5-year old son away from theboy's grandfather who had legal custody. As aresult, a Federal warrant was filed for thefather's arrest and the FBI began looking forhim. Three months later, the father contactedthe Social Security office in the city where thechild previously lived and requested that thechild's Social Security check be forwarded toanother office. The Social Security office told

21


the grandfather about the request. The FBI im-mediately contacted the Social Security claimrepresentative, explained that there was a Federalwarrant for the father's arrest and asked wherethe father wanted the check sent. The claimrepresentative told the FBI that Social Securityheadquarters had instructed him not to releaseany information without a subpoena. Two dayslater, the assistant U.S. attorney obtaineda subpoena from the U.S. District Court Clerkand the FBI served the claim representative withthe subpoena. Local Social Security officialscontacted the Assistant Regional Attorney ofthe DepartmrFt of Health, Education, nid Welfare,who advised them not to honor the subpoena based onSocial Security regulations. The assistant U.S.attorney then advised the grandfather to go to thelocal Social Security office and request the neededinformation under the FOIA. Through an FOIA re-quest, the grandfather received all the informa-tion seded to enable the FBI to locate the childand -. st the father.

-- In a recent USSS stolen check investigation, threeempty Government check envelopes were found in thesuspect's bedroom. Each envelope had apparentlybeen used by the suspect to practice writing thepayee's name. Two of the written names wereidentified and the payees were located. The thirdname could not be identified and an inquiry wasmade at the local Social Security office to deter-mine if checks were beinq issued in this name.Social Security office personnel cited the PA andrefused to provide any information. Copies of theforged check were subsequently obtained throughformal channels 6 months later.

-- In an eastern city, the FBI received informationfrom the State police concerning possible fraud.An individual was allegedly receiving full SocialSecurity disability payments, while still workingfull time. The FBI contacted the local SocialSecurity office, but the office chief refused toprovide any information, including whether ornot the individual was receiving disabilitypayments. The official cited the provisions ofthe FOI/PA as the reason for not giving theinformation.

22


--On a large military installation, FBI agents wereinvestigating the theft of lumber and needed tointerview persons working in the installation'selectrical generating plant over the weekend.The officer in charge declined to furnish theweekend work schedule because of the PA. TheFBI had to obtain the assistance of a JudgeAdvocate General officer before the list was madeavailable.

EROSION OF ABILITY TO EXCHANGE INFORMATIONWITH STATE AND LOCAL LAW ENFORCEMENT AGENCIES

--A midwestern State's police intelligence unitadvised that the unit's officers will provideinformation only to Federal agents who theyknow personally. Their rationale is that theycan trust the agents they know to properly con-ceal informant identities even if the informationis later released under the FOI/PA.

-- The FBI learned that an FBI applicant was a formeremployee of a midwestern State's bureau of inves-tigation. When contacted, State bureau officialsacknowledged they had derogatory informationconcerning the applicant but refused to revealthe information because the applicant would haveaccess to it under the PA.

-- During a suitability investigation of a politicalappointee, the officer in charge of a policedepartment's organized crime bureau advised theFBI that he had furnisned derogatory informationabout the appointee directly to the congressionalcommittee which had requested the FBI investigation.He added that the derogatory information concernednational security, but refused to comment further.The officer later told the FBI that he wasthoroughly familiar with the confidentiality pro-visions of the FOI/PA, but was also aware thatthe legislation is subject to interpretation.Consequently, he refused to give the derogatoryinformation to the FRI. After receiving thisderogatory information, the committee refused toprovide this information to the FBI and requestedthe FBI to discontinue its investigation.

-- In a southwestern State, a member of a locallaw enforcement agency told the 'BI that while

23


police reports and other verified data would bedisseminated, the agency would be reluctant toprovide intelligence data because of the possiblerelease under the FOI/PA.

-- In an eastern city, the FBI reported that localpolice officers are reluctant to make all in-formation available concerning subjects of inves-tigations because of the FOI/PA. The policedepartment has told the FBI tha, if one of itssources is exposed through an FOI/PA release,it will no longer make its records available tothe FBI, even on a personal basis.

24

APPENDIX III APPENDIX III

SUMMARIES OF THE

FREEDOM OF INFORMATION ACT

AND PRIVACY ACT

THE FREEDOM OF INFORMATION ACT

The Freedom of Information Act, 1/ signed into law onJuly 4, 1966, directs that all FederaT executive branchagencies' records must be made available to the public,except information specifically exempted by the act. Thelaw provided new disclosure standards and practices to beapplied by the executive agencies. The law, which wasmeant to improve public access to information held by Fed-eral agencies, established a judicial review of agency ac-tions. This review makes it necessary for agencies tojustify the withholding of information.

The act identifies nine categories of information thatcan be exempt from release. These categories are (1) infor-mation classified pursuant to executive order, (2) informa-tion related solely to an agency's internal rules and prac-tices, (3) information specifically exempted from disclosureby statute, (4) trade secrets and confidential commercialor financial information, (5) agency memorandums that wouldnot be available by law, (6) files whose disclosure wouldconstitute a clearly unwarranted invasion of privacy,(7) investigatory records compiled for law enforcementpurposes, (8) certain information related to regulation orsupervision of financial institutions, and (9) geologicaland geophysical data. However, the act's legislative historymakes it clear that the Congress did n1 ot intend for agenciesto use these exempt categories to automatically withholdinformation.

The FOIA amendments, passed by the Congress in 1974and effective February 19, 1975, were designed to

-- limit the Government's authority to withholdcertain kinds of information,

-- strengthen the public's right to obtaininformation from Federal records, and

-- speed public access to Federal Governmentrecords.

!/5 U.s.c. 552 25

APPENDIX III APPENDIX Ili

THE PRIVACY ACT

The Privacy Act 1/ was enacted on December 31, 1974.This act emphasizes protecting an individual's personal pri-vacy and provides an individual the opportunity to review,and obtain a copy of his or her record maintained by a Fed-eral agency. The PA provides for exemptions which, like theFOIA's, are permissive not mandatory. Unlike those of theFOIA, the PA's exemptions apply to systems of records ratherthan to requests for access to specific information.

The PA also allows individuals to request that theirrecords be amended and that records they believe inaccuratebe corrected or deleted. If the agency either denies accessor refuses to amend a record, the PA allows for judicialreview of the agency's action. The court may assess againstthe Government reasonable attorney fees, as well as awarddamages to the individual, if the requester substantiallyprevails.

Among the administrative requirements involving thecollection, maintenance, use, and dissemination of anagency's records, the PA requires that each agency publishannually in the Federal Register

-- a descriptive list of its records systems and

-- the procedures to enable people to obtain theirown files.

1/5 U.S.C. 522a

26

APPENDIX IV APPENDIX IV

-- AES, UNITED STATES CI'iIL SERVICE COMMISSION "nIIWRMTo

WASHINGTON, D.C. 20415

MP I #A Igm n~~~~~~YOUR tout tNCl

SEP 1 19T8

Mr. H. L. KriegerDirector, Federal Personnel andCompensation DivisionU.S. General Accounting OfficeWashington, D.C. 20548

Dear Mr. Krieger:

These are our comments on your draft report entitled "Erosion

of Law Enforcement Capabilities Attributed to the Freedom of

Information and Privacy Acts."

As an initial matter, we should point out that some of the

difficulty agencies with law enforcement functions are

experiencing with the Privacy Act results from an interpretation

of certain provisions of the Act in the case of Gang v. United

States Civil Service Commission et al., Civ. No.-76-126-7(D.D.C. 1977). A copy of that decision is attached to this

letter for your information.

In the Garn -Rse, the court held that the Civil Service Commission

violater-i-se tion (e)(6) of the Act by failing to make

"reasurable efforts" to assure that an investigative file

furnished to the Library of Congress on the plaintiff was accurate,

complete, timely, and relevant for agency purposes. This is

required by the Act when a file is disseminated to someone

"other than an agency". The court found the Library of Congress

was not an "agency" for purposes of this provision since it is

an instrumentality of the legislative, rather than the executive,

branch of the Federal Government. This conclusion was drawn

despite a longstanding agreement between the Library of Congress

and the Commission that the former would be treated as an agency

for purposes of receiving Commission investigative files.

As a result, all agencies furnishing investigative files to

other than executive branch agencies (for example, GAO) must

attempt to screen the files to satisfy the amorphous standard

of accuracy, relevance, timeliness and completeness or assume the

risk of violating this provision of the Act.

THE MERIT SYSTEM-A GOOD INVESTMENT IN GOOD GOVERNMENT

27


Moreover, the court found that the Caonission violated subsection (e)(7)of the Act by maintaining information on how the plaintiff had exercisedFirst Amendment rights. Agencies are permitted to maintain informationof this character only if it is "expressly authorized by statute, or bythe individual about whom the record is maintained or unless pertinentto and within che scope of authorized law enforcement activity."However, the court found that the background security investigationconducted by the Commission was not a "law enforcement activity" despitea clear reference in the legislative history of the Act to the effectthat background investigations should be regarded as a law enforcaentactivity.

While this one decision may not be absolutely dispositive of this issue,it has undoubtedly resulted in a wariness on the part of agenciesconducting security or suitability background investigations aboutcollecLing information that may conceivably be regarded as an exerciseof First Amendment rights.

Perhaps the most significant impact on agency law enforcement activities,however, has comane at the collection stage even though, as you point outin your draft report, the Commission continues to receive good cooperationgenerally fran the public in obtaining derogatory information. TheOffice of Administrative Law Judges of the Conmmission which examinesadministrative law judge applicants has cited a number of instances ofnon-cooperation by potential sources of information because of PrivacyAct access by the subject of the inquiry. Copies of material manifestingnon-cooperation by sources are attached to this letter for your infor-mation. In addition, that Office feels that Privacy Act access hascaused sources who do cooperate to be less candid and frank in theirevaluations.

(See GAO note, p. 36.)

28



We hope you find these comments helpful in preparing the finalversion of your report.

Sincerely yours,

Executive Director

Enclosure

29

APPENDIX V APPENDIX V

DEPARTMENT OF THE TREASURYWASHINGTON. D.C. 20220

ASSISTANT SECRETARY

OCT 5 1978

Dear Mr. Lowe:

This responds to your letter of August 23, 1978,requesting our comments on the United States GeneralAccounting Office draft report entitled, "Erosion ofLaw Enforcement Capabilities Attributed to the Freedomof Information and Privacy Acts."

The report accurately reflects the many concernsand difficulties experienced by Treasury Department lawenforcement agencies since the enactment of the Freedomof Information ind Privacy Acts.

The Treasury Department is well aware of the publicand legislative concerns which led to the enactment ofthese statutes. We are sympathetic to these concerns,and have established procedures to assure timely responsesto public requests made under the provisions of these acts.

However, we have found that compliance with theFreedom of Information Act places two burdens upon ourlaw enforcement activities. First, some resources mustbe diverted from other operations to handle the reviewand editing of materials requested by the public. Second,there has been some diminution in the flow of informationprovided to Treasury law enforcement agencies from whatheretofore have been vital sources, such as, State, locialand foreign law enforcement agencies, public utilities,educational institutions, and confidential informants.Our law enforcement agencies are unable, however, to pro-vide a precise quantification of the extent of thisdimunition.

The reluctance to voluntarily release information toTreasury law enforcement agencies is based upon a concernby the sources of information that Freedom of InformationAct inquiries may lead to public disclosure of informationprovided by them which previously had been consideredconfidential. Confidential informants are particularly

30


concerned that their identity may be revealed throughsuch disclosures either by direct disclosure, or indir-ectly, based upon other information which has been released.These laws have also adversely affected the gathering ofinformation from the business community. For example, theCustoms Service which enforces the statutes governing fraud,antidumping, countervailing duties, and classification andappraisement of imported merchandise has found it difficultto obtain commercial iAocrmetion for enforcement of thesestatutes without the use of subpoenas.

While the diversion of staff resources to processFreedom of Information Act and Privacy Act requests clearlyhas a negative impact on our law enforcement capabilities,this direct reduction does not represent the only effectof these statutes upon law enforcement. There are othersignificant but intangible costb of processing Freedom ofInformat.on Act requests. For instance, when a request ismade for an open investigative file, the steps necessaryto process that request will tend to disrupt the investi-gation. Records in open cases are generally exempt fromdisclosure under the Freedom of Informaaion Act. However,the tasks of locating, indexing, and defending the recordsfrom. disclosure under the Act can complicate law enforcementactivity. Enforcement personnel must be diveited from theirinvestigative activities to spend time analyzing the releas-ability of material i.n the investigative file, and the fileitself becomes temporarily unavailable for the purpose forwhich it is maintained.

We have found that the 1974 Amendments to the Freedomof Information Act have, as expected, greatly decreased ourability to protect the confidentiality of our sources ofinformation. Prior to the 1974 Amendments, the scope ofthe exemption for investigatory material was of a broadernature. Specifically, it provided that its disclosuredictates were not applicable to "investigatory files com-piled for law enforcement purposes except to the extentavailable by law to a private pa-ty." However, the 1974Amendments made investigatory materials more readilyavailable to public access. Now, as a general rule, in-vestigatory material can be protected only if its disclosurewould 1) interfere with a concrete prospective enforcementproceeding, 2) prejudice a person's right to a fair trial orimpartial adjudication, 3) cause an unwarranted invasion ofpersonal privacy, 4) disclose the identity cf a confidentialsource, 5) disclose investigative techniques, or 6) endangerthe life or physical safety of law enforcement personnel.

31


One of the effects of this Amendment has been to offerto subjects of criminal investigations a viable alternativeto the discovery procedures available in each of the variousjudicial forums. The structure of the Freedom of Infor-mation Act, particularly with respect to the manner inwhich litigation is to be conducted, encourages court testsof agency decisions to withhold information regardless ofthe obvious applicability of the claimed exemption. Theburden of proof in any Freedom of Information Act suit isupon the defendant agency, and the judicially recognizedmethods of sustaining this burden in many instances affordthe plaintiff at least indirect relief. In this regard, ithas become commonplace for courts to require agencies tosubmit detailed affidavits regarding the claimed exemptionsand/or indices of the documents or portions thereof withrespect to which exemption claims have been asserted inconjunction with motions for summary judgment. Shouldlarge numbers of individuals who are subject to pendingcriminal proceedings institute actions of this type, theDepartment would find it extremely difficult to meet theincreased workload requirements.

While it is recognized that individuals have a rightto obtain relevant information maintained by the govern-ment, it maust also be recognized that these laws have hadan adverse impact on the ability of Treasury law enforce-ment bureaus to perform their missions effectively. Ifirmly believe it is necessary to find a middle groundwhere the rights of individuals to privacy and open Govern-ment as well as to effective law enforcement are protected.

Please contact me if I may be of any furtherassistance in the nmatter.

Sincerely,

Richard J. DavisAssistant Secretary

(Enforcement and Operations)

Mr. Victor L. LoweDirectorGeneral Government DivisionU. S. General Accounting OfficeWashington, D. C. 20548

32

APPENDIX VI APPENDIX VI

UNITED STATES DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 2030

Addge A ReS to tht

Divia. oisated

and Rde to laitw tnd Numer

OCT 26 1978

Mr. Allen R. VossDirectorGeneral Government DivisionUnited States General Accounting OfficeWashington, D.C. 20548

Dear Mr. Voss:

This letter is in response to your request for commentson the draft report entitled 'Erosion of Law EnforcementCapabilities Attributed to the Freedom of Information andPrivacy Acts."

It is clear from our reading of the draft report thatthe Freedom of Information and Privacy Acts (FOI/PA), asperceived by law enforcement cfficials and informants, haveresulted in an erosion of investigative information. Theteis a pervasive, widely held, and deeply felt convictionthat the FOI/PA are having an unforeseen adverse impactupon law enforcement. Our concern, however, is that thereport, as written, fails to highlight this perception andits crippling impact upon the Department's investigativework, primarily with regard to the Federal Bureau of Investi-gation and the Drug Enforcement Administration.

An appropriate balance must be struck between thesalutary goals of the FOI/PA and the equally importantnecessity of protecting confidentiality in criminal andoti.er investigations. We are convinced that there is nowsufficient evidence to justify a congressional reexaminationof this balance. This aspect of the report needs to bemore strongly emphasized.

33


Federal Bureau of Investigation (FBI)

The FBI expended considerable effort to document, byexample, the erosive consecuences of the FOI/PA legislationand to facilitate numerous interviews by GAO personnel ofspecial agents conducting investigations in the field andsupervisory personnel at FBI Headquarters. Numerous exampleswere submitted by the FBI from virtually every field officein each of the categories for GAO's review. Selectionsof the information included in the report demonstrate(1) diminished public cooperation, (2) diminished lawenforcement exchanges of information, (3) diminished inform-ant assistance, and (4) other adverse ramifications.

The examples furnished clearly indicate the FBI isnot now receiving vital information previously providedby the public, private institutions, Federal agencies,informants and foreign, State and local law enforcementorganizations. Some investigations had to be discontinuedaltogether. Other investigations required many additionalman-hours to resolve, and during these extended periods somefugitives remained at large committing additional crimeswhich could have been prevented. As the report clearlydepicts, elements of organized crime and other criminalgroups are using the FOI/PA statutes to determine themethod and extent of the Government's penetration of theiractivities and to identify informants.

Although GAO went to considerable length to obtainexamples and present them in an objective manner, the reportsuggests on page 4 of Appendix I that ". . . no agency coulddocument the laws' impact on overall investigative effectiveness."We think this statement undermines the case for reexamination.

Drug Enforcement Administration (DEA)

While the right to access to information by the criminalelement is legitimate under provisions of the FOI/PA, itnevertheless is a significant detriment to the effectiveoperation of DEA's criminal investigatory activities. Itimpacts on virtually every aspect of investigative activityand creates a restrictive climate in a number of areas.The impact in the more significant areas includes:

GAO note: Page reference in this appendix refers tothe draft report and does not necessarilyagree with the page number in this report.

34


- It diminishes the ability to obtain cooperation

and information from individuals, businesses andinstitutions.

- It hampers efforts to recruit and maintain informants.

- It impedes the free exchange of drug-related informa-

tion with foreign, State and local law enforcement

organizations.


One area of special concern to DEA involves the use

of information disseminated via the FOI/PA to members of

criminal organizations. These organizations attempt to

manipulate the criminal justice system and thus abort investi-

gative efforts concerning their activities. The U.S. Senate,

Permanent Sub-Committee on Investigations, held hearings

on August 10, 1978, dealing with aspects of criminal misuse

of the FOI/PA. The hearing dealt with testimony by a con-

victed criminal, Gary Bowdach, and, in our opinion, clearly

established the laws' impact on diminishing our overall

investigative effectiveness. Mr. Bowdach made statements

to the Sub-Committee that the criminal element goes beyond

their legal rights in that they use FOI/PA requests to

"bog down the system, tie up law enforcement personnel,

prosecutors." They use the acts to "subvert the criminal

justice system," and to "assassinate people that are coopera-

ting with the government."

Although DEA is powerless to completely prevent these

manipulative efforts by the criminal element, we consider

it our duty to make sure that those who interpret the FOI/PA

recognize these facts so that they may be appropriately guided

to interpreting the law in the spirit in which intended.

35


Financially and administratively the FOI/PA are veryexpensive to administer and impose both stringent proceduraland heavy proof burdens on the recipient bureaus. Thrburden is made doubly severe when the bureaus feel coi pelledto bring teams of agents in from the field to process thebacklog of FOI/PA requests. The FBI and DEA have both feltit necessary to resort to such temporary remedies, resultingin the loss of valuable workyears in field investigations.In recent years the bureaus have requested increased fundingin order to cope with the escalating demand for recordsto be made available through the FOI/PA. However, becauseof the extreme scarcity of resources, we have been hesitantto approve increases or reprogram current resources whenthe extent of the long-run demand for FOI/PA materials inthe future is, at best, conjectural.

A major concern of both FBI and DEA continues to bethe problem of meeting the policies of FOI/PA, the courtsand the Department, and yet be assured that confidentialsource information is adequately protected. It is oftendifficult to prevent disclosure of precisely the informationwhich risks exposure of informants and/or reveals the scopeand penetration of the investigation of organized crimeelements. It is important to recognize that diminishedeffectiveness is difficult to measure, given the many factorspresent in any investigative program. Our concern for thefuture is the striking of a just balance between the public'slegitimate access to information and law enforcement's needto protect information essential to successful pursuit ofinvestigations.

We appreciate the opportunity to comment on the draftreport. Should you desire any additional information,please feel free to contact us.

Sincerely,

vin D. RooneyAssistant Attorney General

for Administration

GAO note: Deleted comments refer to material contained inour draft report which has been revised or tomaterial which has not been included in the finalreport.

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GGD-78-108 Impact of the Freedom of Information and Privacy … · 2020. 9. 17. · privacy laws to...

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Transcript of GGD-78-108 Impact of the Freedom of Information and Privacy … · 2020. 9. 17. · privacy laws to...