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making the same arguments, to protect the same statutory rights. In the first instance, however, the court may award reasonable attorney fees; in the second, under both Dole-Horton

and the current law it may not.

See Campbell, supra note 1, at

192-5, Stevenson Report, at 108. The language of the Dole-Horton bill and the current Act should be changed to resolve this problem by providing that "the court may assess against the United States reasonable attorneys' fees and other litigation costs reasonably incurred in any case brought to compel or restrain the disclosure of information under this Act in which the complainant or a nongovernmental defendant has substantially prevailed." This would permit both requesters and submitters to obtain attorneys' fees and costs in the appropriate case,] and would preserve the limitation in the current law that awards be assessed only against the United States.3 In the first respect, it com

ports with the recommendation of Professor Stevenson, Stevenson

Report, at 108, but goes beyond the provision in the English bill authorizing awards of fees and costs only to prevailing

1 The legislative history of this proposed change should, consistent with the legislative history of the Act's current attorneys' fees provision, make clear that a court, in exercising its discretion to award fees and costs, should strive to compensate only those who do not have the financial resources or economic incentives to pursue their remedies under the Act. See S. Rep. No. 854, 93rd Cong., 20 Sess. 1 (1974). See also Campbell, supra, note 1, at 192-95.

Because at least part of the purpose of the current FOIA is to encourage the assertion of legal rights by those unable to pay, see note 7 supra, the financing of the assertion of these rights should be public and not private. Thus, the United States should continue to be the sole party responsible for the payment of costs and fees.


requesters, proposed 5 U.S.c. 5552 (a) (4) (F); in the second respect, it comports with the provisions of the Dole-Horton and the English bills.

Substantive changes in Exemptions

Others here today will testify at greater length about the substantive changes in the law embodied in the Dole-Horton bill. I would, however, like to make two brief points.


to base a decision about disclosure on a submitter's routine

practice, as the Dole-Horton bill does, is to elevate reflex over

reason. Such an approach, as previously noted by the House Comnittee on Government Operations, H. Rep. 1382, at 18, would require withholding any information submitted by a corporation that automatically and invariably denies requests for information by members of the public. It would illogically require the dispar

ate treatment in FOIA proceedings of two identical documents

one submitted by a corporation with such a blanket policy of nondisclosure and one submitted by a corporation with an active public information office thereby penalizing the corporation with the more open policy. Id.

Second, to treat as privileged or confidential any record the agency promises not to disclose, as the Dole-Horton bill does, is to allow the exception to swallow the rule. Agencies have no incentive to disclose records. Therefore, as the United

States District Court for the District of Columbia recently observed, to accept the contention that "an unwarranted, albeit good faith, assurance of confidentiality may serve as the basis for a finding that the assurance must be honored, lest the

ability of the government to gather future information be

impaired would create a gap in the FOIA large enough to eviscerate the Act: what submission could not be accompanied by 'assurances' of confidentiality and thereby, be asserted to fall

within the scope of 5 U.S.c. 5552 (b) (4)."

Green v. Dept. of

Commerce, 489 F. Supp. 977, 980 (D.D.C. 1980).

The functional approach adopted by most of the courts and

set forth in National Parks and Conservation Ass'n v. Morton, 498

F.2d 765, 770 (D.C. Cir., 1974), has proven workable, and is far more sensitive to the institutional realities of both agencies and submitters then is the proposed amendment. I therefore urge that its use not be disturbed by legislative enactment.

Similarly, the provision in the Dole-Horton bill that the

Trade Secrets Act, 18 U.S.C. $1905, be deemed a statute within

Exemption 3 is unwarranted, for the reasons set forth more fully

in Campbell, supra note 1, at 144-55.

Finally, I would like to close with the observation that a recurrent theme, both in these hearings and in the literature on reverse FOIA suits in general, is that the perception of the

problem may be the problem:

if submitters are growing more re

luctant to give information to the government it is due to their

fear, and not the fact, of over-disclosure.

This perception

alone may or may not justify changing the law to give more pro

cedural protection to submitters. As Representative Erlenborn suggested last week, we could, perhaps, all better expend our energies correcting that perception. In any event, and even if the perception is sufficient grounds for providing additional

procedural protections to submitters, it is clearly insufficient

to warrant a massive change in the substantive reach of the FOIA,

such as those changes in Exemption 4 and in the relationship

between the Trade Secrets Act and the FOIA encoded in the Dole

Horton bill, propose.

I thank the Committee again for the invitation to appear here today.

* I wish to express my gratitude to Anne Goldstein, a thirdyear law student at Harvard Law School, for her assistance and advice in the preparation of this statement.

Mr. RADER. Mr. Vladeck, we would advise you that your statement will be made a part of the record. We urge you to make your oral comments very concise.



Before turning to the specific comments I have about the substantive provisions of the Dole bill, I would like to just briefly introduce Public Citizen and explain why we are so interested in any proposed amendment to exemption 4.

Public Citizen Litigation Group has long been active in FOIA litigation. We have litigated over 70 FOIĀ cases, probably more than any other public interest group in the country, including such landmark cases as FAA v. Robertson, the GTE Sylvania case, and Vaughn v. Rosen.

We have had a long-standing interest in the act and represented journalists and other public interest groups who are anxious to use its substantive provisions to get a sense of how the Government is working and how it is interacting with the corporations it regulates.

I have only two major points to make in addition to the ones I have made in my public statement.


The first is, as Ms. Campbell has said, there is no evidence to support the assumption that there is a need to amend the substance of exemption 4.

In many respects, this hearing is very reminiscent of hearings that were held 4 years ago before the House Committee on Government Information, which addressed the same issues and which heard the same sorts of testimony about corporate horror stories.

After carefully reviewing a considerable amount of evidence and testimony, they concluded, as did Professor Stevenson, that there was at best meager evidence to support the notion that there was a need for a substantive amendment of exemption 4.

At this juncture, it is also worth noting that most of these horror stories you hear about pose one fundamental question; that is, would the information that allegedly has been disclosed would be exempt under exemption 4?

Universally, the answer is probably yes. What the opponents of the presently drafted exemption 4 really are driving at is that there may well be problems in administration.

I submit that where laws are being enforced by people, there may well be an occasional slipup. One example which comes to mind is the National Highway Transportation Safety Administration. Inadvertent disclosure of documents relating to the Firestone 500 tire was apparently the result of a mistake caused by a secretary within the agency.

The real issue—the issue that this committee should be exploring-is whether there is any evidence that an agency has knowingly disclosed information which falls within the ambit of exemption 4.

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