arguments to the agency in opposition to any proposed release of the submitters' records. Indeed, we support Representative English's bill which is presently pending before the House Subcommittee on Government Information and Individual Rights. While we support these reforms, we vigorously oppose the provisions of S. 1247, which stack the odds in favor of the corporate submitter and against the requester. To begin with, the proposed amendment would automatically require the agency to notify the submitter of a request and give the submitter rights to respond and thereby delay disclosure, even when the information must, under law, be publicly available. Clearly, that provision has either been not well thought out, or has been included only to ensure that the submitter can delay public disclosure. Second, the proposal would allow the submitter to have an informal ex parte hearing before the agency prior to disclosure. This provision is objectionable on two grounds. First, there is no reason why this sort of hearing should be ex parte. Courts and hearing examiners have historically heard objections to disclosure of allegedly trade secret material on the public record; hearing corporate claims that data ought to be kept secret behind closed doors harkens back to the Star Chamber proceedings alien to our entire jurisprudence. Indeed, even in national security cases where far more is at stake than in most exemption 4 cases, courts have been extremely reluctant to hear evidence ex parte. See, eg, Military Audit Project v. Bush, 418 F. Supp. 876, 878 (D.D.C. 1976). Moreover, the proposal makes it extremely difficult for an agency to dispense with a hearing by requiring it to determine that the request for a hearing is "clearly frivolous." The only reason to impose such a rigorous standard on the agency is to ensure that hearings are always held, which will no doubt encourage the proliferation of these hearings. And, we should point out, it will increase the agency's costs if it wishes to disclose, thereby tilting the balance further in favor of withholding and "creating" new justifications for the claim that the administration of the FOIA is too expensive. Third, the proposal fails to come to grips with the venue problems now experienced in reverse-FOIA litigation. In fact, it exacerbates them by affording the submitter an extremely broad choice of venue. Under this proposal, a submitter and a requester who are notified the same day that the agency has determined to release some, but not all, of the requested records, could file suit in two different district courts. In this respect, the proposal seriously undercuts the venue provisions originally incorporated into the Act, which were designed to assist the requester, who typically lacks the financial resources of the submitter. Fourth, by incorporating a de novo standard of review in judicial actions challenging agency decisions to release documents, the proposal stands standard rules of administrative law on their head, and further tips the scales in favor of the corporate submitter. It is well-settled law that agency particularly after the sort of hearings called decisions - for in the proposal - should be accorded substantial deference. Here, rather than giving weight to the decision of the agency hearing officer or decision-maker, reached after an ex parte hearing, the proposal gives the corporate submitter what is, in essence, two bites at the apple. Corporations would now have a second full-scale opportunity to fine-tune their arguments before a district judge, who would be bound to ignore the agency's ruling. Requesters, on the other hand, are barred from participating in the agency's hearing held at the behest of the corporate submitter, and have no rights whatsoever to initiate a hearing. Lastly, the net effect of all of these procedures is to ensure that whatever information manages to trickle down through them is at best stale. Layer upon layer of delay is built into the proposal. While the proposal plays lip service to this problem by including a provision allowing the requester to challenge what appear to be unwarranted extensions of time, the protections afforded by this provision are, in practical terms, illusory. The District of Columbia Circuit Court of Appeals has already ruled that agencies may justify failing to adhere to the time provisions spelled out in the Act simply by establishing that they are using good faith efforts to process requests. Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). Given the administrative problems agencies presently face simply in processing requests, there is every reason to believe that saddling agencies with the myriad procedural requirements contained in the proposal will grind most agencies to a virtual standstill. As I noted in the opening of my testimony, these hearings come at a critical time. In May, the Attorney General signaled that the Justice Department will once again be willing to go to court to litigate FOIA cases, even where the agency cannot point to a demonstrable harm which would flow from disclosure. The proposal pending before this Committee, which, if enacted, would build a brick wall between the public and all government records concerning corporate interaction with government, is another step in the wrong direction. We therefore urge the committee to take a hard look at the evidence evidence which unequivocally demonstrates that exemption 4 as presently drafted fully protects the legitimate rights of corporate submitters. Thank you. - Senator THURMOND [acting chairman]. Considering your knowledge of agency practices, would you favor the giving of notice of disclosure to the real party in interest, in addition to the one who might have supplied the documents to the agency? Are there circumstances under which you would prefer that no notice be given to the submitter before disclosure of its private data occurrence? Mr. VLADECK. I think that notice, as a general rule, ought to be given to the submitter. I think there are categories of cases where notice is not necessary. For example, where the data at issue is required to be disclosed as a matter of law. There are other instances as well. By and large, we do support the notion that submitters ought to be notified. Senator THURMOND. How often do your organizations bring lawsuits seeking disclosure outside of Washington? Would you object if a submitter who was residing in Utah or Kansas wanted to sue in his own home district to restrain the regional office of some Federal agency from disclosing his private information? Ms. CAMPBELL. Many of our cases are in Washington. I think that the concern we have and the reason we advocate a preference as under current law for the forum of the requester really is the result of the kinds of clients that we represent-people of limited resources who would have difficulty participating in a case if it were outside of the area where they live or where their counsel have offices. On the other hand, these are problems that are common in many kinds of litigation in the Federal courts. As I suggested in my testimony, one possibility is simply to resolve them as they are resolved in other instances, which is to permit the court to determine which is the appropriate forum and who would be most harmed or prejudiced by a transfer of venue in a particular case. Senator THURMOND. Ms. Campbell, you have opposed de novo review in the past when submitters have asked for it on grounds that the agency's record is sufficient for review. Yet you also support faster handling of the submitter's claim and less time for considering his confidentiality arguments which would reduce the agency's record. Can you explain this? Ms. CAMPBELL. I think that there are two problems. One is what happens if we do not amend the law? The second is what would happen in the best of all possible worlds if we could amend the law? I think that the problem right now, without amendment of the law, is one in which different agencies take different amounts of time. They essentially do not follow the time periods set forth in the act. I think too much time is given to developing the record in some cases and not enough time in other cases. Therefore, I have advocated a procedure under which the time period would be extended from that in the current law but not extended as far as some have proposed. Again, I think that 30 days, approximately, is a reasonable time. I would note that that is the time period generally advocated by the Stevenson report. I think he advocates 40 days, whereas I advocate 30 days. I do not think that is a distinction with a difference. I think the problem occurs when you get into these 90-day time periods. Whether it is 30 or 40 days, that is an adequate time to develop the record. Senator THURMOND. Mr. Vladeck, your health research group has been a prodigious user of the Freedom of Information Act. Can you estimate how many FOIA requests you have made in the last year? Mr. VLADECK. I believe that the health research group has made approximately 300 FOIA requests to the Food and Drug Administration alone in the last year. That is the agency with which it principally deals. Senator THURMOND. How many of these were granted in full or in part? Mr. VLADECK. I would be delighted to supplement the record with a letter. I do not know offhand. I know, however, that the bulk of them are granted in full. A significant percentage, perhaps roughly 10 percent are denied either in full or in part. Senator THURMOND. Do you know how much money and agency fees were waived by the agencies in response to your request for fee waivers? Mr. VLADECK. I do not believe the agency informs you of how much money is being waived when they grant a fee waiver. They simply tell you that your fees will be waived. I cannot even estimate that. Senator THURMOND. Could you get that up and furnish it for the record? Mr. VLADECK. I would be delighted to. [Material to be supplied follows:] I have been informed by senior members of FDA's FOIA staff that an estimated $4,600 in reproduction costs were waived during 1980. An estimated additional $5,000 in reproduction costs were waived during the first seven months of 1981. Senator THURMOND. Could you describe a scenario in which information of vital public interest would be withheld under the S. 1247 standards which would be available for lease under the current competitive harm test? Mr. VLADECK. Yes, sir; I can. For example, let us stick with the FDA if you do not mind. We recently litigated a lawsuit involving access to test data submitted in support of new drug applications-in this case, investigation of new drug applications-concerning drugs that were still in the experimental stage. The data that we compelled disclosure of evidenced that the drug companies involved had begun testing these drugs on humans prior to completing animal studies. These animal studies ultimitely showed that the drugs were carcinogenic. The drug would never be marketed. Hence, the manufacturers do not have a strong claim under the National Parks test that the material we sought access to was exempt. After all, there would be no competition. We believe that this kind of data-data showing that drug companies were unfortunately, and perhaps needlessly, exposing human subjects to drugs that had not been adequately tested first |