Senator LEAHY. Our next witness is Joan Claybrook, the president of Public Citizen, Inc. Public Citizen is an organization that has figured very prominently in the development of the Freedom of Information Act, and particularly in court where it has been involved in considerable litigation.

We thank you for taking the time to give us your thoughts about the freedom of information legislation that is now pending before the Congress, and I would ask, if you might, to summarize your testimony. I believe you have some other material which you want to place in the record in conjunction with your testimony, all of which, of course, will be placed in the record. We are glad to have you here.

STATEMENT OF JOAN CLAYBROOK, PRESIDENT, PUBLIC CITIZEN, INC.; ACCOMPANIED BY SIDNEY WOLF, DIRECTOR, HEALTH RESEARCH GROUP, PUBLIC CITIZEN, INC., AND KATHY MEYER, COUNSEL, PUBLIC CITIZEN, INC.

Ms. CLAYBROOK. Thank you very much, Mr. Chairman. We appreciate the opportunity to testify today.

Senator LEAHY. Could you bring the microphone just a little bit closer?

Ms. CLAYBROOK. Sorry.

Senator LEAHY. Thank you.

Ms. CLAYBROOK. Senator Leahy, we appreciate the opportunity to testify today. With me today is Dr. Sidney Wolf, on my left, who is the director of Public Citizen's Health Research Group. And on my right is Kathy Meyer, who is the chief attorney in our organization responsible for the Freedom of Information Act.

Public Citizen has found the Freedom of Information Act to be the single most effective tool in holding the Government accountable to the people, for disclosing Government waste and inefficiency, and for keeping the public informed on important health and safety matters.

We use the FOIA almost on a daily basis to gain access to information needed to monitor the performance of the Government agencies and to petition agencies to carry out their statutory responsibilities. Without this law, it is our belief, with its mandatory disclosure requirements, the Government agencies would refuse to disclose embarrassing or controversial information.

As the former head of a Government agency, the National Highway Traffic Safety Administration, I know that the FOIA is also vital to informed and intelligent decisionmaking. Through the FOIA, the public and the press are able to assemble data demonstrating a need for regulatory or enforcement action which otherwise would go unheeded, or, at best, reflect only the concerns of the regulated industry, which never seems to lack access to those agencies.

We have carefully reviewed the bills before the subcommittee which would amend the act in several significant respects, and we would like to reserve the opportunity to supplement today's statement with a more comprehensive set of comments on all the provisions covered by the bills and to suggest specific drafting changes. Senator LEAHY. Without objection.

Ms. CLAYBROOK. There are several issues, however, today which we would like to comment on. Except for our disagreement_concerning the advisability of certain aspects of the business confidentiality provisions which we will turn to in a minute, we applaud S. 1034 and your leadership in introducing it and your other work on this statute.

It is an effort to significantly improve the Freedom of Information Act by strengthening the standards for waiving fees which can be a barrier to using the act, clearly, and addressing the need to oversee the enactment of legislation, which provides an independent basis for withholding agency documents under exemption 3.

That exemption allows an agency to withhold matters specifically exempted from disclosure under another statute. Also, your bill recognizes the need to create incentives for agencies to meet the time limits.

The first comment we have is on fee waivers. We support the objectives of both bills to recover more the actual cost of processing requests from commercial users of the Act, whose requests are said to account for approximately 85 percent of the Government's caseload.

However, it is absolutely crucial to couple this provision with a strong fee waiver provision to insure that the cost of administering the act cannot be used as a barrier to use by the press, public interests, or other members of the public.

Congress added the current fee waiver provision in 1974 to facilitate the use of the act. Unfortunately, because the current standard provides for the exercise of broad agency discretion in determining when "furnishing the information can be considered as primarily benefiting the general public," we have found that agencies are often much too restrictive in granting the waivers.

The Attorney General's recent fee waiver guidelines issued on January 7, 1983 have significantly exacerbated this problem by advising agencies to conduct a stringent, five-part analysis in determining whether fees should be waived.

The most offensive aspect of the guidelines is that rather than simply focusing on the nature of the requester-that is, a journalist, a public interest group, or the nature of the information requested, such as health and safety information or evidence of Government waste-the guidelines instruct agencies to conduct a detailed content analysis and to determine whether, in the agency's view, the public has any legitimate interest in the documents and the requester is sufficiently qualified to understand the information contained in the documents and to convey the correct meaning to the public.

We know of several instances where fee waivers were denied under the new guidelines to requesters Congress clearly intended to be granted waivers. In each of these cases, not only were fees unlawfully being used as a barrier to the act, but the amount of agency time and resources expended on debating over these requests which obviously qualify for fee waiver served to only drive up the cost of administering the statute.

We therefore support the provisions in section 3 of your bill that would amend the act to require agencies to provide information without charge when the information is being requested by an indi

vidual, educational or noncommercial scientific institution conducting scholarly or scientific research, or a journalist or a nonprofit group that intends to make the information available to the public. This mandatory provision, in addition to maintaining the discretionary grant of fee waivers for other requesters who can demonstrate that furnishing the information will primarily benefit the general public, will insure that the original intent of Congress is accomplished.

Exemption 3 provisions: Over the years, exemption 3, which allows agencies to withhold information "specifically exempted from disclosure by statute," has become a major loophole in the act, as special interest groups have petitioned Congress to enact various nondisclosure provisions.

Often, these provisions are tagged on to appropriations bills without any public debate about the need for secrecy. Further, there does not seem to be any comprehensive list of these exemption 3 statutes, although we understand that the Justice Department has identified approximately 150.

Therefore, we endorse the proposal in your bill to require statutes intended to qualify as a basis for withholding to reference that exemption and to meet the criteria established under the exemption. We also support the provision which would require that any proposed exemption 3 legislation be referred to those committees in the House and Senate with jurisdiction over Government information before being enacted into law, and that agencies be required to publish in the Federal Register a list of exemption 3 statutes they intend to rely on or forfeit their authority to do so.

We recommend that agencies be required to update this list annually to insure that it reflects the current state of the law.

The third is incentives for meeting time limits. I will only comment briefly that we favor that provision; we think it is quite creative and innovative.

Fourth, proper requests: There are a number of provisions in S. 774 which we oppose. We strenuously object to placing any restrictions on who may use the act. Currently, the FOIA allows a request to be made by any person.

Section 13 of S. 774 would limit the right of access to U.S. persons and would further provide that the Attorney General could limit access by felons. Our fundamental objection to these proposals is that they signify a major retreat from the traditional and sound notion that only the exemptions should govern whether records might be disclosed.

We believe that the proposals would set a dangerous precedent for conditioning the right of access on the identity of the requester. We understand that the U.S. person limitation is intended to prevent hostile foreign governments from using the act. However, we seriously question whether the KGB actually relies on the FOIA to obtain information or whether this limitation would sufficiently deter such use.

On the other hand, the restriction would affect foreign journalists and scholars who make valuable contributions to public debate on important public policy issues in this country.

It would also generate a new layer of administrative paperwork, as agencies attempt to ascertain whether the request is truly being

made on behalf of a U.S. person. Of course, it would encourage deception.

We do not believe that the administrative costs that would be entailed in policing this provision are justified.

As to the limitation on the use by felons, we believe it is important for these individuals to continue to have access to Government information which may support a petition for habeas corpus or justify a grant of parole.

Technical data exemption: We also are opposed to the proposed new exemption for technical data contained in S. 774. While we understand that this provision is intended to cover only sensitive defense technology, as presently drafted it is far too broad and may be read to apply to a whole host of technological data to which the public should have access, and indeed, under present law, does.

For example, under section 109 of the Atomic Energy Act, a company might obtain export licenses from the NRC to export components for the construction of nuclear power plants. The proposed exemptions for technological data may prohibit environmental groups from gaining access to information needed to participate in NRC proceedings to challenge the construction of plants on health and safety grounds.

Personal privacy: Under the current language of exemption 6 of the Freedom of Information Act, personal and medical files and similar files may be withheld if disclosure would constitute a clearly unwarranted invasion of personal privacy.

The exemption requires agencies and the courts to balance conflicting privacy and public interests in disclosure, and to tip the balance in favor of disclosure. Section 9 of S. 774 would amend the exemption to make it apply to records or information concerning individuals, including compilations or lists of names and addresses that could be used for solicitation purposes.

Absolutely no justification has been put forth for this change in the language of the present exemption. The Supreme Court's recent decision in the U.S. v. Washington Post already makes it clear that the exemption protects all personal information, regardless of the nature of the file in which it is kept. Current law also establishes that lists of names and addresses are also covered.

Second, section 9 would amend the present exemption to change the balancing standard from one that allows an agency to withhold personal information if disclosure would constitute a clearly unwarranted invasion of personal privacy to one that allows withholding where disclosure could reasonably be expected to constitute an unwarranted invasion.

There is no justification for altering the existing balancing standard which, since 1966, has required the agencies to tip the balance in favor of public disclosure and which the Supreme Court has described as, "a workable compromise between individual rights and the preservation of public rights to Government information." Therefore, the proposed changes, we believe, should not be adopted. At the same time, they would signal to the courts a congressional intent to withhold greater amounts of information without any guidance as to the kind of documents which should be withheld. In short, this is a classic case for the time-honored admonition, if it is not broke, do not fix it.

Business confidentiality procedures: Because Congress has delegated to Government agencies the authority to regulate business in order to foster free competition and protect the public health, welfare and environment, much of the information relied on by agencies in the performance of their statutory duties necessarily is obtained from the private sector.

Therefore, since the fundamental purpose of FOIA is to enable the public to scrutinize the performance of its government, the public must have access to this information. We wholeheartedly support the provision in both bills which would authorize the court to award attorneys' fees against the submitter of information in a case where the requester substantially prevails.

Under the present attorneys' fee provision, the United States is solely liable for fees. We have a litigated a number of cases involving information which the agency wanted to disclose, but the companies sought to keep secret, only to have the companies agree to disclosure on the eve of trial after years of costly litigation.

It seems only fair in those situations to require the party truly responsible for the withholding to bear the costs of attorneys' fees for the requester rather than imposing this cost on Government. We also believe this provision would serve as a deterrent to frivolous reverse FOIA cases.

We particularly want to focus on those provisions of the two bills which would amend the FOIA to provide certain procedural requirements for those who submit information which they claim is exempt from disclosure under exemption 4.

We are concerned that these proposals will result in unnecessary delay in obtaining valuable information and unjustified administrative costs and burdens.

Exemption 4 of the act, the trade secrets exemption, adequately protects those who submit commercial and financial information from suffering competitive damage from disclosure of truly sensitive information, and we want to go on record as opposing any efforts to weaken this exemption, as interpreted by the U.S. Court of Appeals in the National Parks decision.

It has also been our experience that contrary to what the business community claims, the agencies are extremely deferential to industry assertions of competitive harm.

Senator LEAHY. Let me see if I understand. In the last Congress, a witness from the Freedom of Information Act Clearinghouse testified before the subcommittee in favor of adopting reverse FOIA procedures. Do you disassociate your organization from that? Ms. CLAYBROOK. I do.

Senator LEAHY. You do?

Ms. CLAYBROOK. I do. I was not president of Public Citizen at that time.

Senator LEAHY. Do you think that the business community deserves procedures to prevent agencies from releasing information which would cause them substantial competitive harm if they were made public?

Ms. CLAYBROOK. What we say in our testimony, Mr. Chairman, is that, first of all, if a company submits information to a Government agency and believes that the agency would, for any reason, not understand its confidential nature, they have every opportuni