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

requester may be an intervenor in an action or may be joined by someone else.

I think the bill should be modified to provide, again, that both submitters and requesters can receive fees but to clarify that they should be able to receive fees regardless of how they got into the case, rather than simply as complainants.

I think, however, that the current legislative history of the act that tends to restrict awards of fees to persons who are using the act for commercial purposes should be maintained.

SUBSTANTIVE CHANGES

Last, I believe that the kind of substantive changes that are provided for in the Dole bill, which I believe will be addressed more specifically by Mr. Vladeck, are unwarranted, as I said at the outset.

I think we should at least try to attempt to modify the procedures and see if that improves some of the problems that have been complained about before we begin to codify the kinds of substantive changes that are provided in this bill.

In my view, these changes would protect virtually all information provided by submitters, regardless of the public interests. I would be happy to respond more in the question time to the kinds of information that I, in particular, am concerned about.

Similarly, I think the provision of the bill that would provide that the Trade Secrets Act is a statute within exemption 3 is not necessary either. If procedural protections were embodied, many of these substantive changes would not be needed-particularly not at this time.

I would like to thank the subcommittee again, and I would be happy to answer any questions.

Mr. RADER. Thank you very much.

[The prepared statement of Ms. Campbell follows:]

PREPARED STATEMENT OF NANCY DUFF CAMPBELL

Mr. Chairman, Members of the Subcommittee, I thank you for

the invitation to appear before you today. My name is Nancy Duff Campbell. I am an attorney with the National Women's Law Center,

a civil rights organization working to advance and protect women's legal rights. In this capacity, I have represented requesters of information under the Freedom of Information Act in their efforts to obtain data important to the advancement of women's rights, particularly equal employment opportunity data supplied to the government by various federal contractors. In 1978, while a law professor at Georgetown University Law Center, I published a law review article on the FOIA issues that continue to be my particular area of concern, those arising out of reverse Freedom of Information Act lawsuits. I have attached to my prepared testimony a copy of that article, which provides a more detailed explication of some of the points I wish to make today.

As this Subcommittee is aware, the reverse FOIA lawsuit is one in which a private party seeking to prevent the disclosure of information by the government under the Freedom of Information Act sues in federal court to restrain that disclosure. Any such suit clearly affects the rights of individuals seeking to obtain information under the Act, as well as the rights of individuals or institutions who have supplied the information to the government in the first instance. Both parties have significant interests at stake -- the requesters in learning about the activities of their government and the submitters in protecting the

privacy and confidentiality of information they have provided the government, particularly when it involves trade secrets or other data whose release might injure their competitive position.

In my testimony before the Congress four years ago, and again in my law review article one year later, I concluded that the evidence that the interests of submitters had been injured or threatened with injury by impermissible agency disclosure of confidential business information was meager. Rather, to the extent that the reverse FOIA action was available, the threat, as I pointed out, was to the interests of requesters, who had been neglected, first in the agencies' attempts to provide notice and an opportunity to contest disclosure to submitters at the administrative level, and, second, in the ensuing court proceedings that tended to favor the ability of submitters to choose the forum in which a case would be litigated and to obtain a standard of judicial review of agency disclosure determinations that was far more demanding than warranted in the reverse FOIA context. My view then was that although some of the issues raised by reverse FOIA suits could be resolved by agency regulation, and some by the courts, not all of the issues could be so resolved and that, in any event, a Congressional solution was preferable for both submitters and requesters because of the uniform approach such a solution would provide.

In the intervening years, my view that there is little, if any, evidence that the interests of submitters are threatened by impermissible agency disclosures has been strengthened by the inability of others, as well, to document abuses.

My initial

conclusion was based on my own experience as a litigator, my informal conversations with others involved in these issues, and my review of the cases which, at that time, revealed only one case in which a reverse FOIA action had been brought to restrain the disclosure of information to a competitor; in all of the other cases the actions were brought to restrain the disclosure of the information to a member of the public or a public interest group. In just the last year a study commissioned by the Administrative Conference of the United States, after a wide search for documentation of disclosure abuses involving confidential business information that included the publication in the Federal Register of a notice requesting submitters and others to come forward with such documentation, found only a "surprisingly small" number of reported abuses and of those determined that many were of "dubious accuracy" or involved disclosures that had no relation to the FOIA. See Stevenson, Protecting Business Secrets Under the Freedom of Information Act: Managing Exemption 4 (Draft Rep.) 26 (Dec. 15, 1980) ("Stevenson Report"). As the author of the study, Professor Russell B. Stevenson, Jr. of George Washington University Law School, concluded, the "perception of the problem" is far greater than the problem, Stevenson Report, at 33; this is hardly the stuff on which to wield an allout campaign to amend the FOIA.

At the same time that the evidence supporting the cries by

1/

See Campbell, Reverse Freedom of Information Act Litigation: The Need for Congressional Action, 67 Geo. L. Rev. 164, n. 387 (1978).