sity. He is a member of Beta Gamma Sigma and the American Accounting Association and has coauthored several articles on corporate audit committees and on the major accounting firms.

Timothy A. Sprecher, General Superintendent. General Motors Assembly Division, Leeds Plant, Kansas City, Missouri. Mr. Sprecher holds the B.S.E.E. degree from Tri-State College and the S.M. degree from the Sloan School of Management at M.I.T.

Myra H. Strober, Assistant Professor of Economics. Graduate School of Business, Stanford University. Dr. Strober holds the B.S. degree from Cornell University, the M.A. degree from Tufts University, and the Ph.D. degree from M.I.T. Her publications have focused on economic impacts of sex discrimination and occupational segregation, and most recently on the effect of wives' employment on family expenditure patterns. She is on the Board of Editors of Signs: Journal of Women in Culture and Society.

Charles B. Weinberg, Associate Professor of Marketing, Graduate School of Business, Stanford University. Dr. Weinberg holds the Sc. B. degree. from Brown University, the M.B.A. degree from Harvard Business School. and the Ph.D. degree from Columbia University Graduate School of Business. He has consulted and taught in executive development programs both in the U.S. and in England. His many books and articles reflect his interest in marketing research and the application of management science and marketing to public-sector management.

Mr. RADER. The second panel for the subcommittee today will respond to several of the points made by our first panel.

We have two of the leading attorneys who have represented requesters of information under the Freedom of Information ActNancy Duff Campbell and David Vladeck.

Nancy Duff Campbell is an attorney with the National Women's Law Center where she has had extensive experience with the Freedom of Information Act, particularly representing requesters of information.

She is a former law professor and author of "Reverse Freedom of Information Act Litigation; the Need for Congressional Action," published in the Georgetown Law Review.

She also wrote "The Reverse Freedom of Information Act" chapters for both the 1980 and 1981 editions of litigation under the Federal Freedom of Information Act and Privacy Act.

David Vladeck is an attorney with the Public Citizen Litigation Group. He has also been director of the FOI Clearing House and has had much experience in litigating reverse-FOIA suits.

He was a graduate training fellow at Georgetown University. We will hear first from Ms. Campbell.

STATEMENT OF NANCY DUFF CAMPBELL, NATIONAL WOMEN'S LAW CENTER, WASHINGTON, D.C.

Ms. CAMPBELL. Thank you.

87-749 0 - 82 23

I would like to introduce Anne Goldstein who is an intern in my office who helped to prepare the testimony that I am going to give today.

I hope that my written testimony will be submitted for the record and would like to speak somewhat more informally to you today.

First, I would like to emphasize that I am speaking from my experience, both as a litigator-as you said in your introduction, primarily for requesters-and from my experience doing research as a law professor on FOIA problems, particularly those posed by the reverse-FOIA suit.

I would like to begin by picking up where you left off on your questions to the panel before us. That is the question of whether there is sufficient evidence of harm or threatened harm to businesses to justify the kind of approach that is embodied in the Dole bill.

NO EVIDENCE OF HARM

I believe that, based on my experience and my research, there is not sufficient evidence to take this kind of an approach, and that this is confirmed by Professor Stevenson's testimony and his much more lengthy draft report for the administrative conference.

In my research, and I have citations for this in my testimony, I determined that of the reported reverse-FOIA cases only one was a case which had been brought by a competitor, in which a business was attempting to enjoin the disclosure of that information to the competitor.

All of the other reported cases or unreported opinions that I was able to obtain at that time were cases in which public interest requesters or private citizens or Government officials-sometimes officials of States or localities-were requesting information and the business interest was attempting to restrain disclosure to those kinds of individuals.

That is not to say that there may not have been some horror stories, although I think that Professor Stevenson's report suggests that there have not been the number of those kinds of incidents that some would like us to believe.

PROBLEMS

On the other hand, there are problems under the FOIA, particularly in the reverse-FOIA context. From my perspective, many of these problems are problems for requesters.

I think you will see a kind of different feeling on the part of this panel than on the previous panel.

In the reverse-FOIA situation, in part because the agencies do not all have procedures and certainly do not have uniform procedures, often the requester gets lost in the shuffle when the agency is attempting to determine what it should do-whether it should give notice, how much notice it should give, and what kind of a record it should prepare.

When the case gets to the courts, the question of the standard of review and other procedural problems have caused difficulties for requesters, as well as submitters.

For these reasons, I think that perhaps some amendment of the act is warranted but that the solutions should be, at least at the outset, or at least at this stage, procedural solutions, and that they can be procedural solutions, that are far simpler than those that are embodied in the Dole proposal.

I think that these solutions need to balance the rights of requesters and submitters to give more rights to submitters than they have now but to provide, first, rights to requesters to participate at the agency level and then to provide for court review that is also fair to both submitters and requesters.

SUGGESTED PROCEDURES

I would like to just run through a briefly of the kinds of procedural protections that I think are needed and to elucidate for you some of the problems that I see with the Dole approach and why I prefer a simpler approach, such as that which is embodied in Representative English's bill on the House side.

NOTICE

One, there should be a provision for notice to submitters similar to the provisions that are now encoded in the Dole bill and the English bill.

I think the Dole bill is also good in that in the process of providing notice to submitters, it provides for notice to requesters that the submitter has been notified, and that a process is beginning to determine, first at the agency level, whether the information should be disclosed or withheld.

On the other hand, I do not think that the bill should provide for notice to every submitter in every instance when there has been information submitted by the submitter in question. Rather, there should be a procedure for the submitter to mark the material as confidential at the time it is submitted and only in those instances should notice be given to the submitter. I say this because I believe there are instances in which submitters do not object to their material being released or do not object to all of their material being released. The notion of providing notice in every case, when it may not be necessary and may simply delay the process, I think is not a wise one.

I think my suggestion that would be a minor modification in the current Dole procedures.

OPPORTUNITY TO CONTEST DISCLOSURE

Second, I believe that there should be some opportunity for the submitter to contest disclosure at the agency level, and that the procedure should be established through a uniform congressional standard if possible, because of the different kinds of procedures we are now seeing at different agencies.

However, I believe that an addition to the Dole bill in this instance that would be welcome would be one in which the requesters were permitted to participate in this agency process.

Submissions would be obtained from the submitters in writing, and then from the requesters in writing, so that an agency record

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to the wide stomissions are sufficient to provide the 11 t recent necessary for court review They are the 2 13 EXPOSE II many mos of miormal agency proweng xa no to the different reason for having

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TIME PERIODS

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Ter at pill according to my calculations, it could take over 51 ve 11 determine whether to disclose information if written BUDITUTE Wwere provided and over 75 days if there were some of at ex parte hearing.

I think that the kind of procedure that I am describing could be accomplished initially at the agency level in approximately 20 days, with 10 days for an appeal, resulting in a total of 30 dayssentially the same standard as is now provided under the act, except that I would reverse the time periods and give 20 days for the initial determination and 10 days for the administrative appeal.

EXHAUSTION OF REMEDIES

One problem that is not addressed in the Dole bill is the question of the exhaustion of administrative remedies. In fact, I would point out to the committee that under the procedures as I read them, it seems to me that the requester will be able to get to court every time before the submitter can get to court, simply because the submitter may need to wait a very long period for exhaustion, whereas the requester in many instances may have a shorter period under the procedures set forth in the bill.

I believe that the exhaustion question should be dealt with in a way that is fair to both submitters and requesters and in a way that does not result in either getting to court first. Rather, once a particular determination is made by the agency, regardless of Which party it favors both should be permitted to go to court for ** at the same time so that you do not have two cases, or www on in diferent forums

provides for venue for reverse-FOIA cases but does not deal with the venue issue raised when one party, say it is the requester or the submitter, is able to exhaust first and go to one court and the other party goes to a different court. Then what happens when you have two parties litigating essentially the same issue in different forums? In the past, this has occurred in as many as 8 or 10 forums when there are several submitters involved in a case.

I believe that there are a couple of ways that this could be resolved. One would be simply to let the parties go to different courts and try to resolve the issue under the normal procedures under the Federal rules by consolidation of cases, by resort to multidistrict litigation panels, and so forth.

I think a preferred procedure would be that which is encoded in the English bill that would give preference to the forum choice of requesters, as is now true under the FOIA. However, it would permit liberal intervention or joinder in these kinds of cases so that all parties could be together in the same suit, and the litigation could proceed without the duplication problems which now

exist.

SCOPE OF REVIEW

On the scope of review-another issue which was discussed earlier-I believe there are strong reasons why the arbitrary and capricious standard of the APA should be the standard for review in the reverse-FOIA situation.

First, if the act is amended to provide procedures so that a record may be developed at the agency level and that all interested parties may participate at the agency level, it seems to me there is no reason to start over in the district court.

Indeed, the reason for de novo review in direct FOIA cases was because of Congress' fear of underdisclosure, or fear that the agencies would not disclose, and the need to have a disinterested Federal judge review the case de novo.

I think we may come to a time when even that de novo review may be eliminated from the act; unfortunately, I do not think we are there yet. But I think there is no basis for a de novo standard if a procedure can be developed at the administrative level to resolve the reverse-FOIA situations fairly.

The administrative review provided under the APA, the arbitrary and capricious standard, is also less time consuming, of course, and less costly. Given what I think is meager evidence of overdisclosure on the part of the agencies, I do not think that de novo review is warranted for submitters' cases.

ATTORNEYS' FEES

Last, the question of attorneys' fees: I think this issue needs to be looked at a little more closely than the Dole provisions have. I agree with the approach in the bill that there should be an opportunity in some instances for submitters to obtain fees. However, as I read the bill this opportunity is limited, as it is now under current law for requesters, to the situations in which the submitter or the requester is the complainant in an action. This, again, does not take into consideration a situation in which a submitter or a