Ms. HUFFMAN. I think we would be interested when you do arrive at a position. Senator ABOUREZK. Would the inability even to identify some substances publicly hamper in any way your responsibility to test those substances and report to the public the results of the health and safety studies? Mr. JAMES. There does seem to be an inherent conflict there. I suppose you can only report, in an understandable fashion, that which has been sufficiently identified to give it some context. I think there is that inherent problem. Ms. HUFFMAN. I think your Freedom of Information Act regulations state that it is EPA policy that you have no authority to release material that falls under exemption 4.1 If information falls within exemption 4, you feel you have no discretion even though the legislative history of the act and many courts have said that you do. How did you arrive at that policy? Mr. JAMES. I will ask Mr. Boehlert to respond to that. Mr. BOEHLERT. The Agency came down on that position by reading the various acts administered by the Agency. We found so many provisions in the acts that provide that information obtained would not be releasable except under very defined circumstances that we thought it would be less confusing, as far as the Agency is concerned, if this was made nondiscretionary as far as exemption 4 is concerned. Ms. HUFFMAN. But you do recognize that that is counter to the legis lative history of the act and to court interpretations? Mr. BOEHLERT. We recognize that there is a problem there. But the problem has been raised mostly by our enabling acts that apply to our Agency. Mr. JAMES. And, of course, you realize that each of the seven statutes I referred to has some provisions saying that we don't disclose the fourth exemption type of information, except under certain limitations; that is, it is disclosable in connection with an agency proceeding, disclosable to other Federal employees concerned with carrying out the act and that sort of thing. So, it is not just a naked policy. Ms. HUFFMAN. You see them all as exemption (b) (3) statutes then, I assume, under the Freedom of Information Act? Mr. JAMES. Yes. Ms. HUFFMAN. That is the way you interpret them? Mr. JAMES. Well, there is a back door in each one of them for some particular type of disclosure. But, in general, yes, they fall into that category. Senator ABOUREZK. Under what circumstances do you promise the submitter of information that the data will be kept confidential? Mr. BOEHLERT. Is this voluntary submissions? Senator ABOUREZK. Either voluntary or mandatory. Mr. BOEHLERT. When we have a need to know and we could not otherwise obtain the information, then we will consider the confidentiality placed upon it by the submitter and would so note and make a finding as far as that is concerned. That is completely voluntary type of information. 1 See exhibit 30, p. 416 of the appendix. If it is mandatorily required information, then we take the statute along with the Freedom of Information Act and see what is required to be withheld and what is to be disclosed. Senator ABOUREZK. Do you attempt to use that promise as an exemption of sorts when somebody asks for the information? 1 Mr. BOEHLERT. You mean for voluntary-type submissions? Mr. BOEHLERT. No; we do not make that a practice. Senator ABOUREZK. I would like to ask the FTC the same question. Under what circumstances do you promise a submitter confidentiality of information? Mr. NORTON. We have developed in recent years, in response to the great increase in requests for confidential treatment, a procedure under which we will afford prior notice before we release information pursuant to an FOIA request. That is what we call confidential treatment.2 We do not necessarily agree that the information is confidential information subject to exemption 4. We simply say that, if it is a type which has a plausible basis for such a claim-certain kinds of information like recent sales price, cost data, future marketing plans-we will afford you this 10-day notice commitment. And that is the extent of it. Senator ABOUREZK. And you do not try to use it as an exemption? Mr. NORTON. No. Well, as to trade secrets and names of customers, we have a statutory prohibition on publication which does qualify. Senator ABOUREZK. Without that, you wouldn't use that promise? Mr. NORTON. We construe that narrowly; that is right. There are certain reporting programs where the Commission has adopted more detailed rules concerning confidentiality which go beyond mere prior notice, but, rather, in the quarterly financial reports program and line of business program, preclude publication of the data of individual company data. Senator ABOUREZK. May I ask the FDA the same question. Under what circumstances do you promise confidentiality of information to the submitter? Mr. PAPE. There are no instances in which we promise confidentiality unless we believe the information is covered by an exemption. We do not use the promise of confidentiality as a 10th exemption, as it were. Our regulations 3 specify in great detail how we will treat, if we have an FOI request, certain information: either that which is required to be submitted to the agency or that which may be voluntarily submitted. But in each instance the analysis is: is this information subject or not to one of the statutory exemptions. Senator ABOUREZK. So, in effect, FDA makes the decision before it weighs the public interest in releasing that information? Mr. PAPE. Well, no. We have determined some years ago that the only way we were going to be able to efficiently implement this law was to review the categories of information that we routinely get and make 1 The fact that the Government has promised the submitter of the information that the material will be kept confidential is not sufficient to bring the information under exemption (b) (4). See Ackerly v. Ley, 420 F. 2d 1336, 1339-40 n. 3 (D.C. Cir. 1969). Ackerly involved exemption (b) (6) but the principle is applicable to exemption (b) (4). 2 See exhibit 31, p. 416 of the appendix. * See pp. 329, 345 of the appendix and p. 5 of the hearing text. a judgment on a class-by-class basis as to whether that information fell within the exemptions. That is not to say that we don't ever exercise discretion to release information; we still do. Senator ABOUREZK. Do you exercise that discretion even after you promise confidentiality? Mr. PAPE. We never promise confidentiality. We merely state in the regulations what the status of information will be. Senator ABOUREZK. I understood you did promise confidentiality. Mr. PAPE. No; you may have misunderstood me. Our regulations specify that certain information will be kept confidential. We never use a promise of confidentiality as a tool to get access to information that we might not otherwise have. Senator ABOUREZK. That was not the question. The question was: Do you promise confidentiality? You said yes, if you can determine ahead of time that it falls under one of the exemptions. Mr. PAPE. Well, that is what our regulations do. Our regulations say this kind of information will be kept confidential because we have determined that it is within one of the exemptions. Senator ABOUREZK. So, my assumption is correct: you fail to weigh the public interest in the release of the information when you get a request? Mr. PAPE. That is precisely what we have done in our regulations. We could hardly make an ad hoc determination on each of 25,000 requests-which is what we will get in this fiscal year. If we did that, all 7,500 FDA employees would be implementing the Freedom of Information Act and doing nothing else. The only way to possibly implement the act is to weigh the public interest in the first instance and to specify for the benefit of everyone how we are going to handle it. Then we can implement it because both private persons and FDA employees know what the rules are going to be. Senator ABOUREZK. You are saying that there is no new circumstance or new evidence that would allow release of information on which you have previously committed Mr. PAPE. No, to the contrary; there is. We are constantly in the process of reviewing previous general disclosure judgments that we have made to see whether there are any changes in circumstances that might cause us to propose to change our regulations generally Senator ABOUREZK. Do you do it on a case-by-case basis or just generally? Mr. PAPE. Both. Or, in a particular instance in which the facts may seem to weigh in favor or against disclosure, where the rules would provide for the other, we would exercise our discretion. Senator ABOUREZK. Does the act require a decision on each case rather than a general rule? Mr. PAPE. It requires a decision in each case. It certainly does not preclude an agency from adopting regulations which specify how it will handle its docket. Safety and effectiveness data for new drugs are clearly something that can be handled on a class basis. There is hardly anything that can change the circumstances of that information. We may or may not be correct in our judgment, but there are not likely to be peculiar facts in each instance that are going to make that judgment erroneous in that case and correct in another. As some of the other witnesses have alluded to, the agencies ordinarily have neither the time nor the resources to get the kind of specific information that would change the circumstances except that which is provided by the person submitting the information. That obviously, will always weigh in favor of confidentiality, not disclosure. Senator ABOUREZK. Let me ask each agency in turn: Who is the greatest user of the act? It is commercial interests or public interest groups? Mr. GARDNER. From our experience, it is the commercial interests. It is about 80 percent of the requests we receive for information. Senator ABOUREZK. And 20 percent from public interests? Mr. GARDNER. Yes; that is correct. Senator ABOUREZK. Does the FTC have a percentage breakdown? Mr. NORTON. I think the first 6 months of this year is an example. About three-fourths of the requests were from companies or law firms representing companies; in most instances while they were involved in litigation with the agency or during investigations, using it as an adjunct to discovery or a means of getting that which they could not get under the discovery rules in many cases. Mr. JAMES. As with the other agencies, commercial interests are far and away the larger users. Senator ABOUREZK. Do you have a percentage breakdown? Mr. JAMES. No, I am sorry; we do not. Senator ABOUREZK. Could you furnish that for the committee? An estimate would suffice. Mr. JAMES. Yes. [Supplementary statement supplied for the record.] EXHIBIT 5 The chart below represents a breakdown of the Freedom of Information Act requests received for the period July 1, 1976, through June 30, 1977. The figures represent only those requests received at EPA headquarters. Senator ABOUREZK. Thank you all very much. The next witness is Lois Schiffer of the Center for Law and Social Policy. As I said to the other witnesses, we would appreciate it if you would not read your entire statement to the committee but would just highlight it. I have to say one other thing. There is a full Judiciary Committee meeting going on. At approximately 11:10 I have to leave here. There is a series of seven votes on a major piece of legislation that will be coming up in the committee. I would like to offer you the alternative of continuing to testify with counsel running the hearings or waiting until I come back, whenever that will be. Ms. SCHIFFER. I would rather wait. Senator ABOUREZK. It is up to you. Please proceed. TESTIMONY OF LOIS J. SCHIFFER, WOMEN'S RIGHTS PROJECT, CENTER FOR LAW AND SOCIAL POLICY Ms. SCHIFFER. Thank you, Mr. Chairman. I would just like to summarize briefly how I came to be involved with reverse Freedom of Information Act cases. We were asked by an organization in Washington, D.C., to pursue a Freedom of Information Act request on their behalf. The organization sought equal employment information filed by four insurance companies in their capacity as Government contractors regarding the breakdown of their work force into women and minorities, and then their affirmative action plans which set forth their plans for increasing the numbers of women and minorities that they employ. The organization itself had asked the Federal agency for the information. The agency, in the first instance, had denied the request. The organization then appealed within the agency. The agency did not act for some time. We filed a straight Freedom of Information Act suit on the organization's behalf. But, because one reverse case had already been filed, we joined the companies in the action. The result is a complicated piece of litigation which has gone on now for almost 2 years. Its result is that to date the organization has received almost none of the information it sought, although some of the information is now not under stay orders from any court. At least substantial portions of the information are the sort of very general work-force analysis information which courts consistently hold should be disclosed and which I think, sitting here, we could all agree is exactly the kind of information we would want the public to have so that it could help further the important national goals of equal employment opportunity. I think we have learned a lot of lessons from the litigation. What I would like to do is start out by responding to some of the questions which you asked the last panel of witnesses. Their answers would raise some serious problems for people in the position of my client. The first is that you seem to suggest there is a possibility that you would require the information requester to be party to any reverse Freedom of Information Act lawsuit. The serious problem with that suggestion is the insurmountable expense. What it would mean, in many instances, is that public interest organizations who were seeking information would be put into a position of having to give up their request the minute the other side went to court. Senator ABOUREZK. What about a requirement that it be optional? I think the argument is that agencies have an interest in withholding the information and do not have an interest in releasing it. Therefore, they would not adequately defend the requester's position. Ms. SCHIFFER. I think the optional alternative is critically important. In fact, one of the specific recommendations which I have made in my written testimony is that the agency give the information requester notice on a regular, mandatory basis, when a reverse Freedom |