interest would remain secret for many months while the elaborate and costly administrative process plays itself out. If a reverse-FOI procedure is needed, it is surely not necessary for every record. limited to claims of truly confidential business information, and any submitter can be required to inform the agency that certain records contain trade secret information. Notice to every person named is simply excessive. In addition, if a submitter is permitted to assert claims of confidentiality, we agree with Professor Stevenson that agency review should take place upon release of the 361 information rather than at the time of submission. Otherwise, a company could effectively seal a record by stamping it confidential at the time of submission. Commercial information often loses its confidential character over time. Review at the time of or sometimes gains it - release would provide the best method of protecting truly confidential information. Finally, if judicial review is included in a reverse-FOI system, the Society believes it should be upon the agency record, not a de novo review. The FOIA is designed to provide for the timely disclosure of information. A de novo review would constitute a time-consuming and costly process that is manifestly unnecessary once the agency has made a considered judgment to release the requested informa tion. Conclusion We close, as we began, by cautioning this Subcommittee to review proposals to amend the FOIA carefully. Proposed legislation must remain faithful to the FOIA's original purpose of ensuring that the public's business is conducted in public. Indeed, efforts at legislative finetuning should seek to enhance the ability of the press and public to obtain information from government. In the near future, we urge this Subcommittee to consider legislation that would, inter alia, (1) minimize delay by providing for prompt access to information requested in the public interest; (2) reduce the often preclusive costs of securing such information by cabining agency discretion to refuse to waive fees when the public interest is served by disclosure; and (3) enact into law a clear presumption in favor of disclosure absent demonstrable harm. In addition, we would ask Congress to check the proliferation of so-called (b)(3) exemptions by requiring that this Subcommittee be given a mandate to review proposed (b) (3) exemptions prior to enactment.37/ 371 Indeed, the Society finds it somewhat remarkable that no authoritative, comprehensive list of enacted (b) (3) exemptions even exists, We would urge congressional action to provide for an official compilation at the earlist opportunity. Fifteen years of experience have demonstrated In that the FOIA serves as a useful complement to constitutionally guaranteed rights of freedom of speech and of the press. the landmark Richmond Newspapers case, Justice John Paul Stevens emphasized that "the First Amendment protects the public and the press from abridgement of their rights of access to information about the operation of their government. 38/ " As the Chief Justice wrote in Richmond Newspapers, "People in an open society do not demand infallibility from their institutions, but it is observing. Whether legislatively or constitutionally created, those rights should not be abrogated absent a showing of serious and demonstrable harm, especially where, as here, legitimate governmental interests more narrowly achieved. Thank you, Mr. Chairman. can be 38/ 39/ 100 S.Ct. at 2831 (Stevens,. J., concurring). Id. at 2825 (Burger, C.J., announcing judgment). Senator HATCH. Mr. Capener? STATEMENT OF TED CAPENER, VICE PRESIDENT OF NEWS AND PUBLIC AFFAIRS, BONNEVILLE BROADCASTING CORP., SALT LAKE CITY, UTAH Mr. CAPENER. Thank you very much, Mr. Chairman. Before I begin, I would like to ask that a column which appeared in the Deseret News on Monday evening be entered as part of the record. Senator HATCH. Without objection, it will be so entered. We have read the column and we think it states pretty accurately at least some aspects of this matter. [Material follows:] [From the Deseret News, Salt Lake City, Utah, July 13, 1981] ALTER THE INFORMATION LAW? (By Milton Hollstein) (Dr. Hollstein is a professor of communication at the University of Utah.) The Deseret News Pinpoint investigative team used the federal Freedom of Information Law to blast out information about nursing homes in the files of the HEW regional office in Denver. Dale Van Atta used it to get stories that led to upgrading the security at Tooele Army Depot. The Tribune's Bob Bryson successfully filed a demand for the FBI report on the John Singer shooting. These cases, and lots of other like them, show why newsmen here ought to be more than casually interested in attempts of the Reagan administrative to alter the law. This week Sen. Orrin Hatch's Judiciary subcommittee will begin hearings into how well the law has worked and whether its exemptions (there are nine) ought to be broadened, essentially to exempt the FBI and CIA records. One of those who will testify is Ted Capener, who has just returned to Salt Lake City as vice president of news and public affairs for Bonneville International after nine years as KSL's Washington bureau chief. The act became law, significantly, July 4, 1967, and was strengthened in 1974. It gives anyone the right to get a document from any federal agency except in cases specifically exempted, such as trade secrets. If the request is denied, petitioners can go to the federal courts. However, the Justice Department just last May gave greater power to federal agencies to fashion their own release policies. Despite the demonstrated usefulness of the law locally, I haven't found great concern among Utah newspeople about the impending changes. (On the national level, a coalition of groups is fighting the alternations.) One reason the opposition is not more militant is that everyone recognizes some loopholes are needed, and that there's no easy way to close those existing. No one wants the Russians to be able to demand access to American codes. Another is that most good reporters have cultivated contacts in departments who can make information available without a formal demand. In some cases newspeople have found that using the law is not only cumbersome but sometimes also counterproductive. There's a long wait, up to a month, for the agency to produce the records and a copying expense. Sometimes the records are edited in the agency. In the report Bryson got, for example, the names of the officers involved in the shooting had been blacked out. Because he has wide contacts, the News's man in Washington, Gordon Eliot White, did not have to resort to the law to get material for the series of stories that brought him the 1978 Raymond Clapper Memorial Award for exceptional meritorious reporting. His stories brought to national attention the possibility that aboveground nuclear tests may have caused cancer in people downwind from the Nevada test site. Yet the law is useful when reporters deal with unfamiliar agencies. Pinpoint's Bob Mullins, for example, made a formal demand for investigative reports from the Nuclear Regulatory Agency on uranium diggings that were piling up along the southern Utah river. He found the weeks-long wait worthwhile. His report led to some corrective measures. White thinks the Federal Privacy Act passed in 1974 and often thought of as a companion to FOIA, is less helpful than hindering. It gives people the right to inspect their files (except CIA and law enforcement documents). But in keeping records from unauthorized disclosure it sometimes prevents the press from poking into them, and that, after all, is what reporters are supposed to do. The Freedom of Information Law is worth defending, despite its complexities, ambiguities, and even because some individuals who want to look at records are considered quite a nuisance by bureaucrats. Before the law went into effect, there was little law specifically opening up federal documents to inspection. In the_absence of law, records were usually opened only at the pleasure of the agency. In a democracy, the public's business is supposed to be public except where there is an overriding, demonstrable need to protect records from release. Mr. CAPENER. Thank you. I appreciate the opportunity of appearing here this morning to tell you, Mr. Chairman, and members of your subcommittee that journalists outside of Washington, D.C., are regular users of the Freedom of Information Act. After over 4 years of listening to you, Mr. Chairman, on many different issues- Senator HATCH. I know that has been an awful burden. Mr. CAPENER. It is a burden that I am happy to have lifted. Senator HATCH. That is an awful statement, but I accept it. I fully understand. Mr. CAPENER. I am sure you take it in the spirit it was given. However, after those 4 years, be they pleasant or whatever, I am looking forward today to having you listen to me on this issue which I consider very important not only to journalists but to all Americans, readers, listeners, and viewers who want and need to be told the truth about what is going on inside and outside of Government. As you know and as has been stated here, I spent the last 9 years covering activities of the Utah congressional delegation and those of lawmakers from about a dozen other major regions of the country. At the first of this month, I was transferred back to Utah. During my short stay back in Salt Lake, I have talked with numerous newspaper reporters, TV and radio news directors and reporters, and lawyers who specialize in first amendment matters. I found there are at least three such lawyers in Salt Lake City. I am here to report to you, Mr. Chairman, that the FOIA is a workable, often used, and important tool for Utah journalists. What was judged by Sigma Delta Chi as the best piece of public service television in the Nation last year was done by the news staff of KSL television. The story dealt with nursing home neglect and was called "Out of Sight, Out of Mind." Vital information in that documentary would not have been available without the Freedom of Information Act. When reporters Ernie Ford and Brad White at our station learned of the death of a nursing home resident, a woman in her eighties who was left unattended while she was in a whirlpool bath and subsequently drowned, they asked for a copy of the investigation the State did on her death. That request was denied. Federal medicare and medicaid regulations required the State to file a copy of its report on the death with the regional office of HEW in Denver. An FOIA request to that office resulted in our obtaining a copy of the report. "Out of Sight, Out of Mind" not only resulted in KSL winning several national awards, but, more importantly, it brought about |