Privacy and the Right of Access: Purposes and Paradoxes of Information Excerpts from the Public's Right To Know: The Supreme Court and the Former Secrets: Government Records Made Public Through the Freedom (1) Final Report, Predisclosure Notification Study, with attachments...... 320 ADDITIONAL STATEMENTS AND CORRESPONDENCE American Bar Association, adopted resolution, February 23, 1983. Widespread Misconceptions About FOIA's Direction Exposed, by Aaron I. American Council on Education, urging support for legislation to amend section 4(b) of the Freedom of Information Act, May 4, 1983.... Letter to Randal Rader, from William J. Evans, vice president, Government relations, Pan Am World Services, Inc. with attachments, May 10, 1983 Letter to Hon. Orrin G. Hatch, from Charles Stewart, president, Machinery & Letter to Hon. Orrin G. Hatch, from James P. Carty, vice president and manager, Government Regulation and Competition, National Association of 1 A copy of this publication may be found in the files of the subcommittee. FREEDOM OF INFORMATION REFORM ACT MONDAY, APRIL 18, 1983 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 9:08 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding. Present: Senator Leahy. Staff present: Randall Rader, general counsel; Claire Greif, chief clerk; and Sharon Peck, clerk. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. On July 15, 1981, the Constitution Subcommittee held its first hearing on the board subject of Freedom of Information Act reforms. Since that initial hearing, we have covered a great deal of ground toward achieving a bill that will improve the act without weakening its effectiveness as a valuable tool to keep our citizenry informed about governmental activities. We have held seven hearings and have heard testimony from over 50 participants in these hearings. Today will be the 8th day of hearings devoted to this subject. Already, this process has borne fruit. On May 30, 1982, the Senate Judiciary Committee approved unanimously the Freedom of Information Reform Act. That bill, S. 774, in the 98th Congress is the specific subject of our hearings today. Due to the lengthy hearing and deliberation process that produced S. 774, it already enjoys broad bipartisan support and reflects the accumulated wisdom of news media representatives, public interest groups, law enforcement officers, the business community and the Reagan administration. Perhaps I can best characterize the careful balance achieved in the bill by briefly recounting the support it has received from different sources. The Attorney General of the United States, from his position, has stated that this bill is, "reasonable and well drafted," and that it "deserves the support of all those who believe in effective law enforcement." The Washington Post, not known for always sharing the Attorney General's perspective, has editorialized that: It is quintessentially American to believe that the people control the Government and that they have a right to know what the Government is doing. The Judiciary Committee bill preserves that right. Anytime the Attorney General and the Washington Post are in agreement, someone deserves great credit for performing a near miracle. In my opinion, the credit should justifiably be directed toward a well-respected colleague of mine, Senator Patrick Leahy. His untiring efforts and deep insights into the intricacies of appropriate Federal information policy have been indispensable to the successful balance struck by S. 774. In addition to my commendations and regard for the Senator from Vermont, I would also like to express my gratitude at his willingness to devote his energies once again to the task of enacting the consensus compromise achieved by S. 774. In brief, the bill deals with the reforms revealed as necessary by our detailed hearing process, namely, protection of technical datablueprints, repair manuals and the like-important to our national security, protection of business trade secrets, protection against invasions of personal privacy, protection of law enforcement informants and investigations, and various other reforms, such as assessment of appropriate user fees. Each of the Senator's packets contains a Congressional Record statement that describes the bill in more detail. We will make that a part of the record of these proceedings. Before discussing some of the findings of those hearings, I would like to pause momentarily to reflect on one important reason for this legislative effort: The protection of confidential informants. Before I was elected to the Senate, the Supreme Court decided the case of Zurcher v. Stanford Daily Procunier, 417 U.S. 817 (1974). A primary issue at stake in Zurcher was whether a journalist could refuse to comply with a search warant in an effort to protect the confidentiality of his sources of information. Because the Court upheld the search procedure over the confidentiality of informants, several of us in the Senate and others in the House undertook extensive legislative efforts to restructure the law to avoid the Zurcher holding. Our intense desire to protect those who have the courage to step forward to risk their own safety to protect the society's safety is a primary goal of S. 774 as well. Informant protection is as vital to effective law enforcement as it is to effective news reporting. The Constitution Subcommittee hearings have been the most extensive oversight of FOIA yet undertaken. A major aspect of these hearings has been that the confidentiality of informants and investigations is jeopardized by the threat of disclosures of sensitive information pursuant to a FOIA request. The documentation of this finding in the hearings has served to confirm the earlier fundings of deleterious effects of FOIA on law enforcement. In 1978, the Senate Judiciary Subcommittee on Criminal Law concluded that: Informants are rapidly becoming an extinct species because of fear that their identities will be revealed in response to a FOIA request. In that same year the General Accounting Office released a study detailing 49 instances of potential informants refusing to cooperate with law enforcement authorities due to FOIA. In 1979, FBI Director Webster supplied documentation of over 100 instances of FOIA interference with law enforcement investigations or informants. In 1981, his list was expanded to 204 examples. In fact, no fewer than five different reports studying the impact of FOIA have concluded that the act has harmed the ability of law enforcement officers to enlist informants and carry out confidential investigations. Among these, the Attorney General's 1981 Task Force on Violent Crime found that FOIA should be amended because it is used by lawbreakers "to evade criminal investigation or to retaliate against informants." A 1982 Drug Enforcement Administration study documented that 14 percent of DEA's investigations were "aborted or significantly compromised" by "FOIA-related problems." Our hearings have indicated also that FOIA is being misused by businesses in an effort to obtain valuable trade secrets. The testimonies are replete with such examples of abuse by business concerns of the spirit and original purpose of FOIA. For example, Mr. Jack Pulley, an attorney with the Dow-Corning Corp., told us of an article entitled "Freedom of Information Act: Strategic Opportunities and Threats," in which the authors described how FOIA could be used to gain that they called "a differential competitive advantage." Currently the standard of protection, "trade secrets and commercial or financial information obtained from a person privileged and confidential," presumes that all confidential information will be protected, but supplies no statutory definition for confidential. Instead the 1966 Senate report specified that information "customarily not released to the public by the person from whom it was obtained" would be exempt. The House report extended protection to any information given the Government in confidence "whether or not involving commerce or finance." Despite the breadth of protection intended by Congress, a Federal court unilaterally narrowed the exemption years later by requiring a submitter to demonstrate a "substantial competitive harm" in order to qualify for exemption. National Parks v. Morton, 498 F. 2d 765 (D.C. Cir. 1974). This broader test requires agencies and courts to guess about the economic impacts of disclosure and has led to numerous "reverse FOIA" lawsuits as submitters have attempted to protect proprietary data against release to commercial requesters who believe that the act, under current standards, can be used to learn valuable information about competitors. The current standard has also been held to offer no protection to nonprofit submitters, such as hospitals, universities and scientific researchers, because they cannot show economic injury if the product of their research is disclosed. In addition, our extensive Constitution Subcommittee hearings have revealed other aspects of FOIA in need of fine-tuning. As mentioned earlier, the expanding costs of the act to the taxpayer suggested that those who directly benefit by requesting information should readily accept the responsibility of paying the cost of producing the information. The Government agencies' inability to comply with the act's short-time limits recommended a more workable time schedule for complying with requests in the event of a backlog of requests or other "unusual circumstances." Revising the act's second exemption to provide adequate protection for law enforcement manuals and instructions to investigators, auditors, or negotiators was another aspect of the testimony. Removing important limitations on the exemption designed to guarantee personal privacy also emerged as an important aspect of FOIA reform. New exemptions to protect "technical data"-predominantly national security information-that may not be lawfully exported without a license and to protect Secret Service records were featured as subjects worthy of the protection currently given geological data and sensitive information about regulation of financial institutions under current exemptions 8 and 9. The hearings also noted the need to reconsider the factors governing current determinations of types of information that may be released because they are "reasonably segregable" from classified or exempt portions of a requested record. Clearly giving away too many pieces of a sensitive record might, in the hands of a sophisticated requester, defeat the protections intended by the classification or exemption. Another item discussed was the propriety of requests from certain classes of requesters, including aliens, imprisoned felons, or parties in litigation with the Government who have access to information via the alternative route of discovery under the Federal Rules of Civil Procedure. These matters each became an element of the bill approved by the Judiciary Committee unanimously last Congress. Once again, I would like to commend Senator Leahy and all the other contributors to this important commentary for the efforts that have brought us to this point. I look forward to examining specifically S. 774 and working together with all our witnesses and members of this committee and the Senate to achieve these necessary reforms. [The bill, S. 774, follows:] |