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Fifteen years of experience have demonstrated

that the FOIA serves

as

a useful complement to constitutionally

guaranteed rights of freedom of speech and of the press.

In

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

38/ government.

As the Chief Justice wrote in Richmond

Newspapers, "People in

an open society do not demand

infallibility from their institutions, but it is

difficult for them to accept what they are prohibited from observing.

1391

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

can be

more narrowly achieved.

Thank you, Mr.

Chairman.

38/

100 s.ct. at 2831 (Stevens, J., concurring).

39/

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 newspeo ple 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 ab sence 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 major changes in the division of State government which regulates nursing home care.

Investigative reporters at both of Salt Lake City's newspapers have also effectively used the Freedom of Information Act to more adequately inform their readers and thus to serve the public good.

Gordon White, who heads the Washington News Bureau for the Deseret News received several major national awards for the work he did on the effects of radioactive fallout in southern Utah, fallout which resulted from nuclear testing on the Nevada desert in the late fifties and sixties.

Senator HATCH. If I could interrupt you at that point. This instance is very appropriate for you to bring up. As a result in part of Mr. White's excellent reporting, we have worked very hard for a couple of years now-actually more than a couple of years-to introduce, which I did this morning in interrupting these hearings, the radiation fallout bill.

In both the illustrations you have given, I am pleased to commend the reporters who were involved. Moreover, there are countless other illustrations of service performed by journalists throughout our country. We know you do a tremendous service.

I did not mean to interrupt you, except to make that point.

Mr. CAPENER. Thank you, Senator. I was going to refer to the fact that those news disclosures and other factors led at least in part to your series of hearings and the legislation you introduced today. We hope you are successful with that legislation. I could not have said that 2 weeks ago, but I can say it today.

Deseret News Reporters Bob Mullins and Dale Vanata did a series of stories on conditions at the Tooele Army Depot, a military installation important to the national defense. They used the FOIA to confirm salaries of guards, training requirements, and security at the base. Their stories brought about improved security at the western Utah base, higher pay for the guards, and an overall improved defense posture for the Army base, all a result of the FOIA request.

Many of the Nation's largest uranium mines are located in Utah, as you well know. Deseret News reporters obtained information from the Nuclear Regulatory Commission about waste and material dumped from some of those mines, information obtained as a result of FOIA requests.

They then prepared a series of stories dealing with radiation, fallout, and the tailings that had been piled on riverbanks, materials that to this date are still a threat to some citizens of the State of Utah.

Salt Lake Tribune Reporter, Bob Bryson, used the act to obtain FBI information on the fatal shooting of John Wesley Singer, the polygamist who refused to send his children to school. Bryson received 100 pages of information from the FBI. Forty-six of those pages were news clippings useless to Bryson. Nine pages had been edited under various existing FBI exemptions from Freedom of Information Act regulations.

However, Bryson said he did get some very useful information from the FBI. For example, he learned that the FBI investigation clearly showed that when he was shot and killed, Singer did have a loaded pistol pointed at officers who came to his home to arrest him for not complying with State law. That information was very important to maintaining calm in the State. Incidentally, that information was improperly reported by at least one major national news organization.

As you know, the MX missile and how it might be based are of major importance to the people of Utah and thus to news media and the State. Therefore, Michael Goldfein, an investigative reporter at KU TV wanted to know if the State's major steel plant would actually benefit from the multiple protective shelter system for basing the missile, the system favored by the Air Force.

Goldfein used the FOIA to seek Air Force information on whether or not an agreement had actually been made, as rumored, with United States Steel's Geneva works to supply steel for constructing the missile shelters. Such an agreement could obviously mean jobs and stability for the long-threatened Utah steel plant.

However, Goldfein found that no such agreement exists. Thus, a potentially major selling point for constructing those massive shelters in Utah and Nevada was adequately squelched. The Air Force did say that United States Steel participated in the design of the missile shelters.

These are just a few of the ways the Freedom of Information Act has been used in your State of Utah and my State of Utah in recent months. The act is important not only here in the Nation's Capital but throughout the Nation for the free flow of information to the news media and thus to citizens of the United States.

Thank you very much.
Senator HATCH. Thank you.

I think both of your statements have been excellent. They both have touched on various aspects of great concern to professional journalists throughout America.

I do not think either of you are saying, or are you, that the Freedom of Information Act does not need some changes?

Mr. DORNFELD. Mr. Chairman, as our written statement indicates, we have some areas of concern where we would like to see the act strengthened from our standpoint in the area of time delays and in the area of fees, often excessive fees charged of journalists and others acting in the public interest.

For example, we had a reporter recently who was trying to simply arrange an interview with a regional SBA administrator. His underlings were trying to use the FOIA to charge him a fee for a simple interview with a bureaucrat.

Senator HATCH. I think maybe we can resolve that problem.

Mr. DORNFELD. Some of these problems cut both ways, Mr. Chairman. We acknowledge that there may be a few flaws with the present act. There may be some problems in the area of businesses and lawyers making use of the act for purposes other than for which it was intended.

Senator HATCH. Even those examples are not as much of concern to me as having leading law enforcement officers testify that most crimes in this country are resolved by informant testimony, and that since the passage of the Freedom of Information and Privacy Acts, informant testimony has dried up to the extent that experts claim only 25 to 50 percent of the number of informants previously aiding law enforcement in solution of certain types of crime are

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