Senator HATCH. Our next witness is Katherine A. Meyer, director of the Freedom of Information Clearinghouse.

Ms. Meyer is a graduate of the Catholic University Law School. She has practiced privately in Washington, D.C., and has been with the FOIA Clearinghouse for 2 years.

She is a frequent lecturer on the Freedom of Information Act and wrote a chapter on the law enforcement exemption in the book, "Litigation Under the Federal Freedom of Information Act and Privacy Act."

Your published articles and experience as a litigator with FOIA should provide some excellent background on the impact of FOIA on law enforcement, so we are certainly interested in what you have to say, Ms. Meyer.

STATEMENT OF KATHERINE A. MEYER, DIRECTOR, FREEDOM OF INFORMATION CLEARINGHOUSE

Ms. MEYER. Thank you, Mr. Chairman.

And thank you for the opportunity to testify about the Freedom of Information Act.

The Freedom of Information Clearinghouse with which I am an attorney and also the director assists the public and the press in the effective use of the FOIA and other open Government laws. We have also litigated approximately 75 cases under the FOIA.

We believe that the FOIA has proven to be an effective tool for holding the Government accountable to the people, disclosing Government waste and wrongdoing, and keeping the public informed on important matters of health and safety.

We, therefore, urge this committee to move cautiously and on the basis of an informed record before taking any action that would restrict the public's right of access to Government records.

My written statement which I would like to submit for the record focuses primarily on S. 587, which would significantly amend the FOIA, both procedurally and substantively.

I want to make some very brief comments about the FOIA in general and particularly about the argument that there is a need for greater protection for law enforcement records.

The law enforcement records exemption, No. 7, of the FOIA was amended in 1974 to do away with a blanket exemption for all records placed in an investigatory file by a law enforcement agency or any other agency and to require an agency wishing to claim the protection of that exemption to specify one of six harms that would result from disclosure of the information-for instance, invasion of privacy, interference with an on-going law enforcement proceeding, and the identification of a confidential source.

What I want to make clear today is that we do not necessarily think those six enumerated harms are etched in stone. Certainly if the law enforcement community can show a legitimate need for further protection, we are willing to provide whatever assistance we can to fashion an appropriate remedy. In fact, we certainly would like to be included in that process.

For example, we do not have any objection to amending the present exemption 7(D) to allow agencies to withhold information which would tend to identify a confidential source, rather than just information which would reveal a confidential source, although we

would suggest that the language be brought in line with the national security cases to provide that the information must reasonably be expected to identify a confidential source.

We have no objection to amending exemption 7 to provide an agency with the authority to withhold information which if disclosed would endanger the life or physical safety of an individual. Certainly if their privacy is worthy of protection, so are their lives. However, what we do object to is giving the FBI or any other law enforcement agency a virtual wholesale exemption from the act, either by excluding the agency altogether from the act's require ments or placing a moratorium on the disclosure of their records for 3 years, 10 years, or whatever period of time.

We have heard no evidence or policy arguments to date to justify such drastic measures. This committee should be wary of such an unreasonable approach to amending such significant legislation.

We strongly believe that no agency is above accountability to the public, and that our Government has been strengthened over the last 7 years by virtue of having opened up its performance to the light of public scrutiny.

Public accountability is a vital cornerstone to our democratic society. Indeed, it was the very lack of such accountability for so many years that allowed the Watergate environment of special favors, illegal burglaries, domestic spying, interference with` firstamendment rights, destruction of records, and similar abuses of power to fester in this country.

It is absolutely essential that we maintain the fine balance of accountability that we have achieved in order to prevent such abuses from recurring in the future.

I have one final comment that I would like to make now, in addition to everything that I have put forth in my written statement.

That is that we vigorously oppose further restricting plaintiff's rights to participate in FOIA litigation. For instance, what S. 587 would do would be to require courts to receive in camera-in secret-the affidavits submitted by an agency in support of its claims that particular documents are exempt under either exemptions 1, 3, or 7.

Plaintiffs are already at a significant disadvantage in litigating FOIA cases by virtue of the fact that they do not know what the contents of the documents are, unlike the agency they are litigating against.

To require courts to maintain the agency's affidavits-basically their briefs in support of their arguments that the documents are exempt-in secret, would virtually exclude plaintiffs from participating in the litigation.

I cite in my written statement an example of a recent case that we lost in the District Court for the District of Columbia involving data that the Food and Drug Administration has collected pursuant to its investigation of the Eli Lilly Co., for unlawfully suppressing adverse drug reaction data on Darvon, one of the leading prescription drugs in this country.

The plaintiff in that case, Mr. Campbell, whom I represent, was employed by Lilly for 15 years before he was fired for bringing to the attention of the officials certain instances of the company

suppressing data that reflected unfavorably on Darvon and showed that it was an unsafe drug, and other drugs as well.

He was discharged, and he wanted to bring a civil action against the company for that retaliatory discharge. He put in an FOIA request to the Food and Drug Administration which had started its own investigation of his charges, seeking all of the information that Lilly had submitted to the FDA during the course of that investigation.

You had a situation where the Government knew what the information was. Eli Lilly knew what the information was. Plaintiff was the only one who did not know what the information was.

The court allowed the Food and Drug Administration, under a claim of exemption 7, where the agency was claiming that disclosure of the information would somehow interfere with its enforcement proceeding, even though Eli Lilly by virtue of having submitted the information, knew exactly what the FDA had on it, to conduct the litigation in secret.

I was not even informed of the secret proceeding until I went to a status call one day, and the court informed me that the agency had submitted certain documents in camera and certain affidavits in camera, and that the court had made a preliminary determination that the agency had met its burden of proof. Lo and behold we lost that case.

I just want to stress that Congress should not condone that kind of secret proceeding. That provision of S. 587 would do just that. That kind of proceeding runs counter to our notions of fairness and our traditional adversary process.

In addition to submitting our written statement, I would like to reserve the opportunity to present further testimony in the fall when the administration submits its own package of amendments. I am perfectly willing to answer any questions you might have. Senator HATCH. That would be fine.

You stated that the FOI Clearinghouse litigates more cases under FOIA than any other organization. Would you tell us how many cases that amounts to and what kind of organizations or people do you represent the most? What are the costs and who pays the costs?

MS. MEYER. I think it is about 75 to 80 cases that we have litigated under the FOIA in our 9 years of operation.

Our organization is a part of Ralph Nader's Center for the Study of Responsive Law. That is where we get our funding. We do not take fees from our clients. Our clients are primarily other public interest organizations and members of the press-I have represented Carl Stern, for example, in a number of cases-journalists and historians, and those kinds of requesters.

Senator HATCH. Is that number 80 the number of cases you have brought to conclusion or have you filed more than that?

Ms. MEYER. That is the number of cases which have been filed. Senator HATCH. That have been totally filed?

Ms. MEYER. That have been litigated at all.

A lot of those cases were settled prior to a court judgment. Senator HATCH. If you do not take fees from clients, who pays your costs?

MS. MEYER. The cost of the operation of the organization is funded by the Center for the Study of Responsive Law, which is Ralph Nader's organization which receives funding from private personal contributions-publications of books, lecture fees, and so forth.

The clearinghouse also makes available a pamphlet on how to use the FOIA, for which we charge 25 cents or something. We distribute thousands of those a year. That kind of funding.

Senator HATCH. Certainly you are aware of the special problems agencies like the CIA have in processing requests that require going through sensitive material. They must go through the compartmentalized filing system and then have experts who are intimately familiar with the documents and closely scrutinize them to delete sensitive information.

The FBI, too, has sensitive information in its files that must be carefully examined so that critical investigations are not disrupted by the disclosure of confidential information.

Yet you have called for speeding the review process by having lower level employees, most of whom would lack critical experience and familiarity with your varied files, be the sole reviewers.

Would you speed review at the risk of compromising vital information?

Ms. MEYER. Certainly not.

I think in my testimony I qualified that statement by saying that there is no reason why most agencies cannot train their low-level personnel.

Certainly I recognize that there are certain sensitive problems with the national security agencies, and even with the FBI, in having low-level personnel making decisions about disclosures.

I do think that overall the agencies would fare much better, in terms of cutting back on delay and consequently the costs of administering the act, if they spent some more time training their personnel on how to process an FOIA request.

Senator HATCH. Thank you so much for appearing. We appreciate having your testimony.

MS. MEYER. Thank you, Senator.

[The prepared statement of Ms. Meyer follows:]

PREPARED STATEMENT OF KATHERINE A. MEYER

Mr. Chairman and Members of the Committee:

I

Thank you for the opportunity to testify about the Freedom of Information Act and S. 587, which would significantly amend the Act both procedurally and substantively. am an attorney and the Director of the Freedom of Information Clearinghouse, which was established in 1972 as part of Ralph Nader's Center for the Study of Responsive Law. In its nine years of operation, the Clearinghouse has assisted the public and press in the effective use of the various open-government laws, including the FOIA, the Privacy Act, the Government in the Sunshine Act and the Federal Advisory Clearinghouse attorneys have also litigated

Committee Act.

more cases under the FOIA than any other organization..

Since its enactment, and particularly since the 1974 amendments which considerably strengthened the Act, the FOIA has proven to be an invaluable tool for holding the government accountable to the people, disclosing government waste and wrongdoing, and keeping the public informed on important health and safety matters. For example, through the FOIA the public has learned about discriminatory practices in the administration of federal contracts programs; major medicare frauds by private health organizations; defective and unsafe consumer products; and unsafe and ineffective drugs and medical devices. We have also learned much about serious abuses of power by our intelligence and law enforcement agencies, including mind-control and drug testing experiments