FREEDOM OF INFORMATION ACT THURSDAY, NOVEMBER 12, 1981 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, Washington, D.C. The subcommittee met, pursuant to recess, at 2:15 p.m., in room 2228, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the subcommittee) presiding. Present: Senators Hatch, Grassley, and DeConcini. Staff present: Randall Rader, counsel; Steve Markman, general counsel; and Claire Greif, clerk. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. I apologize for being just a little bit late. We were hosting a foreign policy meeting of the Senate Steering Committee which I was chairing. This is the 6th and final day of hearings to consider amendments to the Freedom of Information Act. During the course of these six hearings, we will have heard the viewpoints of over 40 witnesses representing newspapers, law professors, practicing attorneys, public interest groups, Government agencies, and a wide variety of other interest. This has been a rewarding and informative process. It has also been a process marked by much openmindedness and change. As the subcommittee has conferred with its witnesses and the Reagan administration, it has altered many of its original proposals in favor of more workable alternatives. Today we hope to examine the progress that has been made to date through this 5-month hearing process and discuss further accommodations that might make the Freedom of Information Act far more workable and efficient. Our inquiry today will focus on two bills, S. 1730, the bill which. the subcommittee will use as its vehicle for markup, and S. 1751, the bill prepared by the Reagan administration after consulting with nearly all agencies of the Federal Government. Both of these bills recognize certain basic principles. For instance, both bills recognize that Congress was extremely shortsighted in 1974 when it estimated that the costs of implementing FOIA governmentwide would be no more than $40,000 to $100,000. Instead, the Freedom of Information Act has become a multimillion-dollar Government enterprise. Accordingly, in an era of budg etary pressures, both bills seek appropriate ways to assure that a user will generally reimburse the Government for the value he receives. In another context, both bills recognize that certain vital governmental functions, specifically law enforcement and national security intelligence-gathering functions, could be impaired by complete openness. The key is to fashion FOIA's exemptions so as to protect these vital functions without destroying all citizen access to public records. Both bills also acknowledge a private property right in information submitted to the Government by a business or private party. In fashioning the fourth exemption to protect such confidential business information, the House, in its committee report, stated that, "All information given to the Government in confidence whether or not involving commerce or finance" should be exempt. The Senate report stated that all "information not customarily released to the public by the submitter" should be exempt. This clear intent for broad protection of confidential business information has not been respected by the courts. Accordingly, both bills try to bolster the protection given to trade secrets and other commercially valuable information. It is historically significant that our first witnesses for this final day of hearings will represent the Society for Professional Journalists and the American Society of Newspaper Editors. The society's 1958 report on incidents of Government secrecy was the factual basis for the first Freedom of Information Act bills introduced in 1960 and 1962. In fact, both societies worked on the first draft of the Freedom of Information Act prepared at the Northwestern School of Journalism in 1960 by Jacob Scher. It is only fitting that these societies play a pivotal role in this phase, hopefully the final phase, of improvements in the act. It is my pleasure to welcome to this subcommittee this afternoon a panel of distinguished media representatives. Our first witness to present her statement will be Ms. Jean Otto, the editorial page editor of the Milwaukee Journal. Ms. Otto is the immediate past president and, may I add, the first woman president, of the Nation's oldest and largest organization of journalists, the Society of Professional Journalists, also known as Sigma Delta Chi. Following Ms. Otto, we will hear testimony from Mr. Charles Rowe, editor and copublisher since 1949 of the Freelance Star, the daily newspaper of Fredericksburg, Va. He is a member of the board of directors of the Associated Press, the American Society of Newspaper Editors, and the Virginia Press Association. He is also the former president of the Associated Press Managing Editors Association. He is appearing today on behalf of the American Newspaper Publishers Association, and we feel privileged to have Mr. Rowe share with us his experience with the Freedom of Information Act before the subcommittee. Our third panel member is Mr. Edward Cony, vice president for Dow Jones & Co., Inc. He is the former managing editor and executive editor of the Wall Street Journal, which is a publication of news for Dow Jones & Co., Inc. Today Mr. Cony is representing the American Society of Newspaper Editors. We look forward to hearing from you, Mr. Cony. Our final witness on our panel will be Mr. Ernie Ford, the managing editor of KSL-TV News, an affiliate of CBS in Salt Lake City, Utah. He is also the director of the Pro-5 Investigative Unit, which has been awarded the National Society of Professional Journalists' Award and the Distinguished Service to Journalism Award for a documentary on nursing homes entitled "Out of Sight, Out of Mind." Mr. Ford is the chairman of the Freedom of Information Committee of the Society of Professional Journalists and past president of the Utah Society of Professional Journalists. We look forward to hearing from Mr. Ernie Ford. He has taken a great personal interest in this and has given the subcommittee a great deal of very thought-provoking information, some of which is now contained in at least one of these bills. We are grateful to have you here today, Ernie. I would like to express at the outset of your testimony, Ernie, my personal appreciation for the help you have provided to me personally during this process. Your lengthy letters as well as several telephone conversations with our subcommittee counsels and meetings with me personally have helped the subcommittee and me with regard to our recommendations. We may not agree on every point you have made, but you are largely responsible for many of the improvements that we have made. I have to make those comments because every time I go to Utah I do not want to face Ernie on the other side of that camera. I would also like to acknowledge Senator Grassley from Iowa. Senator, do you have an opening statement you would care to make at this point? Senator GRASSLEY. No, thank you. Senator HATCH. Then at this point we will begin with Ms. Otto. We are delighted to have you here. STATEMENT OF JEAN OTTO, REPRESENTING THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, ACCOMPANIED BY BRUCE W. SANFIELD, COUNSEL Ms. OTTO. Thank you. At the outset, Mr. Chairman, thank you for your willingness to schedule an additional day of hearings on the proposed amendments to the Freedom of Information Act. I think perhaps you have explained the division of labor here on our panel today. Again, I represent the Society of Professional Journalists, Sigma Delta Chi, as its immediate past president. Bob Schieffer of CBS News had been scheduled to testify here today but because of the Space Shuttle launch at Cape Canaveral was unable to be here. The Society of Professional Journalists, the oldest, largest, and most representative organization of journalists in the United States, is holding its annual convention here in Washington now. Senator HATCH. That seems pretty convenient. Ms. OTTO. Yes, it does. It was very nice of you. Thirteen hundred delegates from all over the Nation are participating in the official deliberations of the society, including formulation of the society's policy positions on the various amendments to the FOI Act that we will discuss here this afternoon. As you know, Mr. Chairman, the society's counsel, Bruce W. Sanford of Baker & Hostetler here in Washington, who accompanies me here today, has been working with Mr. Rader and other members of your staff for the past several weeks. Because of the society's national convention deliberations, we ask your permission to provide you with our written and detailed analysis and commentary on the proposed amendments to the FOI Act after our national board and officers have completed their work here. Mr. Chairman, we are here today, not merely as representatives of the press, but as surrogates of the public, to use Chief Justice Burger's expression. We are here to be helpful. Given the length and complexity of the amendments proposed both by yourself and the administration, it is impossible for us to comment exhaustively on all the specific proposals during this hearing, so please permit the written submissions of the ANPA, ASNE, and the Society of Professional Journalists to be made part of the record, and let us try this afternoon to touch upon some of the major issues. Senator HATCH. Ms. Otto, we will keep the record open for you and for all organizations who want to submit materials, who are concerned, and who have notified us up to now. We will keep it open for at least 1 week. I hope that gives you enough time to comment in detail. Ms. OTTO. It should indeed. As a team, Charles Rowe, Ed Cony, and I will try to cover a number of issues, including fee waivers, expedited processing for requests made in the public interest, the protection of trade secrets, and the new provisions relating to law enforcement. Ernie Ford will give you a valuable perspective on how some of the proposed amendments might affect news reporting on a local and State level. All of us, Mr. Chairman, wish to use this special opportunity to thank you sincerely and emphatically for bringing a spirit of reasonableness and graciousness to bear on the general subject of amending the FOI Act. In comparing earlier legislative proposals to your current one, it is apparent that you have listened, not just to us, but to other users of the act and that you have sought to accommodate competing considerations in a most thoughtful way. As you will hear this afternoon, we think your bill does seek to fine tune the act, not to bludgeon it. We also believe that specific language refinements and other improvements must still be made if the original legislative purposes of the FOIA back in 1966 are to be fulfilled. Those purposes, it is useful to remember, were supported by a broad, bipartisan coalition in Congress. There is no reason for any political party to retreat from a commitment to open Government now. Indeed, a good argument can be made that the act is needed |