But I saw great frustration for a year and a half as the two or three people we have in the FDA to work on this were consumed almost full time in preparing these sort of information requests. Senator HATCH. Mr. Jacobs?

Mr. JACOBS. Mr. Chairman, I concur, particularly with the two other attorney presenters, that conflicts are not presented by the four statements this morning. In fact, all the presenters are very much in favor of the goals of the Freedom of Information Act; but we are suggesting some fine tuning to make it more workable. In our own situation we are most concerned with the enormous waste of expenditure that must be undergone in order to support a Federal agency decision not to disclose, as we are concerned by the abuses of overuse of the Freedom of Information Act by public interest groups who pay not one thin dime for their privileges under the act that everyone else must pay for.

Mr. MILGRIM. Mr. Chairman, may I add one thought to what has been said?

Senator HATCH. Sure.

Mr. MILGRIM. In my summary of comments which review specifically the administration's bill I question the wisdom of rewarding the successful requester by reimbursing attorney's fees and costs and not assuring the protection to the submitter whose information is improperly sought.

It seems to me that the problems we have here would all fall into a category where more evenhanded treatment, where people would bear their own costs and where the prevailing party-the party who was entitled to either have the information kept secret or disclosed-would have their costs paid, might discourage a lot of frivolous, capricious, and irresponsible activity, which I believe the administration's bill unintentionally will encourage by rewarding a successful requester but not having that requester bear the costs of an improper request.

Senator HATCH. Again, I might mention that you are speaking about the administration bill. S. 1730 seems to take care of that. Mr. MILGRIM. That is correct.

Senator HATCH. OK. I think what I am going to do is submit a number of questions to you folks and have you answer them in writing for the record.

There are significant questions, and you can be of considerable help to the committee by reflecting on those questions as you review them and answer them.

With that, we certainly appreciate all the effort you have put forth in testifying before us today. I think your testimony has been very helpful. Thank you so much.

Our final witness today will be Mr. Jack Landau. We are pleased to call on him. Mr. Landau is the executive director of the Reporters Committee for Freedom of the Press.

He has been recognized widely for his excellence in journalism and news reporting, receiving a first prize for Washington correspondents for investigation of the military justice system by the Society of Professional Journalism along with several other distinguished journalism awards.

Before you begin, Mr. Landau, allow me to announce that the subcommittee intends to hold another hearing on S. 1730 and the

administration's proposal before proceeding to markup. This will allow all interested parties to make their views known on all the issues involved in this reform of the Freedom of Information Act. Mr. Landau, we are happy to have you with us.

STATEMENT OF JACK LANDAU, DIRECTOR, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ACCOMPANIED BY TONDA RUSH, DIRECTOR, FREEDOM OF INFORMATION SERVICE CENTER; BRUCE RICH, GENERAL COUNSEL, ASSOCIATION OF AMERICAN PUBLISHERS; AND JOAN HOFF-WILSON, DIRECTOR, ORGANIZATION OF AMERICAN HISTORIANS

Mr. LANDAU. Thank you, Senator.

I would like permission to introduce Bruce Rich, the general counsel of the Association of American Publishers, which is very interested in this act; and Tonda Rush, who is an attorney and the director of the Freedom of Information Service Center which the Reporters Committee operates, a society of professional journalists. I think a lot of people both from the news media and academic community will welcome your announcement that this is not going to be the last day of hearings.

Senator HATCH. It will not be.

Mr. LANDAU. I think there was some consternation, especially because the administration bill just came out 1 hour ago, and it would be somewhat difficult.

Senator HATCH. Yes; we have to have at least 1 more day of hearings and go from there. So we would appreciate all interested groups getting information to us that might assist us in the final markup.

Mr. LANDAU. Also with us is Joan Hoff-Wilson, who is the director of the Organization of American Historians, which has also some problems with, I believe, your bill and would have some problems with the administration's bill if we were able to see it.

The book publishers feel very strongly and would only really like to comment at this stage on the expanded exemptions for law enforcement. They would also like to bring to your attention their concerns about the exemption in Senator D'Amato's bill, which I assume the subcommittee will take up at some point, for the CIA. They feel, as I think most of us do, that a lot of significant benefits have been derived from the information which has come out under the FOIA from both the CIA and the FBI.

There has been a lot of informed debate on intelligence and law enforcement and related issues, and this has facilitated in turn as the years have gone by an historical and journalistic research revisiting of some of these agency decisions. It has, at the same time of course, intensified the public accountability of both the Agency and the Bureau.

The book publishers feel that the present legislative scheme is really consistent with the theory of Government information and informing the public. It is not clear that the FOIA as presently constituted has not been as ineffective in meeting the needs and confidentiality as the CIA and the FBI claim.

They think that passing the provision in your bill, Senator, and Senator D'Amato's bill would have a strongly negative impact on the people of information from these two agencies and would tend

to discourage and stop a lot of what I think most of us would think is legitimate journalistic and scholarly research into these areas.

They have submitted, as you may know, a list of books on foreign affairs-evaluations of American involvement in Vietnam, in Cambodia, in Angola, and so forth-significant portions of which have been produced by FOIA requests. Perhaps you might wish to take a look at the summaries of those books to see from the book publishers' perspective the value of the act.

So, I think they would ask you to reconsider the law enforcement exemption and Senator D'Amato's exemption.

The historian, I think, would join with the book publishers and with the Reporters Committee in opposing any expanded exemptions for either law enforcement or intelligence gathering and I think would join the Reporters Committee in opposing any expanded exemptions under the Trade Secrets Act, although I have to be fair and say some of the problems that were posed today in terms of pure research might be quite another problem that we have not dealt with.

The issues which most of us are most familiar with are the consumer and environmental requests out of the agencies. Pure research for intraocular devices is something which I had never heard of before, to be quite honest about it. It is difficult to evaluate the dissatisfaction with the act based on that one example. The historians feel, especially I think with Senator D'Amato's bill, that a great deal of the historical research into American foreign policy, both by historians and political scientists, is going to be cut off because of the unilateral exemptive nature of his proposal, where there is no judicial recourse at all.

The archivists, who are with the historians, feel the same way. They feel that archival activities in terms of foreign policy are going to be signficantly impeded.

They also feel that contemporary history today tends to be written a great deal in terms of the internal decision-making process of agencies in trying to track how ideas get started inside of the State Department or inside of one desk in the State Department and are carried forward, and the same thing with intelligence gathering in that broadening the exemption will tend to really stop this type of analysis of how an idea or policy got started.

I think most of us tend to think-and I know historians do tooabout the FOI Act case against President Nixon where we had 40 million documents. So the historians also feel that the exemptions should not be expanded in those two fields.

We feel that your bill and the administration bill are not minor modifications or fine-tuning of the act. We think they are a frontal assault on the act the way it has been in effect in the last 15 years.

What concerns us again and again—and you have heard this in the past is that the FBI comes to you and says, "We need a broader exemption for confidential informants. We need an exemption that says not only, 'Will protect information which does disclose the identity but which tends to disclose the identity?'

We say and you have heard this I think from your other witnesses-the FBI has never been required in 15 years in any FOIA lawsuit to disclose the identity of a confidential informant. The exemptions that they have asked for, not only the tending to

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identify exemption but this mosaic theory they have put togetherthat if one or a number of unknown persons could, putting all their heads together, tend to find out some information that would be exempt after segregation-it all should be exempted.

And your expansion of the privacy exemption to take out not only clearly unwarranted but also to establish a right of privacy in dead people-which is not known at least in any of the laws of the States to my knowledge-is perhaps a little extreme. We cannot find any case law, sir, that is in regard to protection of dead people. As to the Bureau's argument that it is too expensive, I believe the FBI budget is somewhere in the neighborhood of $637 million, and $11 million would be 1.5 percent of their total budget.

In view of some of the news stories that have been produced about monitoring political groups and persecuting certain persons who are unpopular in certain areas and conducting illegal activities of one sort or another, I wonder whether 1.5 percent of their budget is not a fair amount to pay to insure some type of oversight of this law enforcement activity.

In terms of the trade secret exemption, we realize there is a lot of consternation. The problem is, as Professor Stevenson showed, we cannot find any real trade secrets that have ever been disclosed, except for possibly two instances. I believe in those two instances, one of the trade secrets was voluntarily released by the corporation itself; so that we have one out of hundreds and hundreds.

Your bill-and I believe the administration bill-allows it to be exempted if it would impair-and I forget the exact wording-the legitimate competitive financial or business interests of any persons. I suppose any businessman thinks that any information about his company which is made public in any way is going to, in some way, impair his competitive position.

I think the current exemption which requires it to be a conventional trade secret or really confidential financial information the disclosure of which would have a significant anticompetitive impact is a pretty good, workable standard in most instances.

In terms of the costs, we would agree with you that the Government should charge those persons who can afford to pay-mainly people who request information from the Government for their own private, competitive, commercial use. We would favor what I think is the Justice Department's approach. I am sorry, but I just got this 45 minutes ago.

Senator HATCH. We understand. We have had to look at it hurriedly ourselves.

Mr. LANDAU. We would favor continuing the current law which says that the Government waive or reduce fees if it is substantially in the public interest. What we are particularly talking about is the scholarly community, the journalist community, academics, and public interest and political organizations-people who request information from the Government with the intent to publish it and inform the taxpayer about what is going on.

I would say, after what we have heard this morning, that perhaps some formula ought to be worked out for imposing limits on that type of thing-so many documents, so many hours of search time, or so many reproduction fees, up to a reasonable point, and perhaps have a sliding scale after that.

I think that is about everything within 10 minutes, sir.
Senator HATCH. That is fine, Mr. Landau.

Could I get you to react to several of the changes already incorporated in S. 1730 that differ from legislation which this committee began to consider last July? Let us begin with S. 1247. That bill contained a provision to change the fourth exemption to withhold all information "customarily not disclosed to the public by the submitter."

As I mentioned in my opening statement, this provision was patterned after the original Senate report language on FOIA. Nonetheless, several witnesses feared that it might give businesses too much latitude to unilaterally withhold information in Government files. Accordingly, we changed that provision in S. 1730 to add a few criteria to (b)(4) but essentially retained that exemption's current form.

If you have to make a choice, would you prefer S. 1730 or the S. 1247 provision; and do you think we have improved the provision that was formerly in S. 1247?

Mr. LANDAU. I do not think we would prefer either. Ultimately, what your bill and 1247 would do is leave up to the businessman essentially the decision as to whether the information should be made public. I think that decision really ought to be left up to the Government under some enforceable standard, sir.

The problem is that "trade secrets and confidential research or financial information or other commercially valuable information obtained from any person and privileged or confidential"—in that person's view, I assume-"where release may impair the legitimate private competitive financial, research, or business interests of any person" has three variable standards in it; whereas the current trade secrets exemption, as I said, has been interpreted by the courts, except for really conventional trade secrets, such as customer lists, secret formulas, and patents-it has to not only have been tightly held, but it has to cause a significant competitive harm at the least. That would seem to be a fairly workable standard.

Senator HATCH. What we have tried to do in 1730 is add criteria to the standards over what are used in current law. But you have indicated you would prefer neither.

Let us look at my former bill, S. 587. It contained a provision eliminating the current time limits in the act and allowing them to expand according to the size of the record requested.

Assuming we have to have a time limit, do you prefer the current time limit provision in S. 1730 which keeps the 10-day limit but provides for more flexibility or the S. 587 provision which eliminated the current time limit?

Mr. LANDAU. I think we preferred your bill. We thought your bill was a very sensible approach to the problem.

Senator HATCH. I want to personally thank you and credit witnesses from the media such as yourself with encouraging some of these changes. We have changed them because of media presentations here.

I think it is healthy to note the progress that the subcommittee has made toward at least a more ideal bill that would be more pleasing to people in the media, historians, and I might add archival people.