FOLA. In fact, he found, there is "some evidence" that the "FOIA does not function as badly in this area as its critics charge." Stevenson, at 22-34, 36.

One of the FOLA's "critics" is the Health Industry Manufacturer's Association which, in testimony of Oct. 7, 1981, on S 1247, the "Preservation of Confidential Information Act," details several examples of confidential business information it claimed was released under the FOLA. (See HIMA testimony, at 7-11.) Assuming that HIMA's undocumented examples are correct and accurate, there is not one that could not have been remedied with procedural changes of the type which ANPA and NNA believe are fair. (See discussion of Reverse FoLA, infra.) What seems to have occurred in each of HIMA's seven examples is not that the agency, the Food and Drug Administration, made a sweeping determination substantively that the information was not exempt under (b) (4) or that it would release the information notwithstanding coverage by the exemption. Rather, the FDA simply seemed to have been in need. of the benefits of information from the submitter in order to make an informed decision, as is graphically illustrated by the FDA's apologies and changes of mind. This would be cured by simply adopting a fair

and speedy

procedure whereby the submitter could adequately

contest a proposed release of any information it believes confidential. A change in the substantive standard, as interpreted under National Parks and Conversation Association v. Morton, 498 F. Sec. 765, 770 (D.C. Circ. 1974), is wholly unnecessary overkill, with the counterproductive impact of restricting information on the enforcement of law and regulation in the business community. The substance and caliber of that enforcement are of prime concern to the public, and should be to the business community.

REVERSE FOIA

We

ANPA and NNA do support establishment of procedures to allow submitters to oppose release of information they have submitted to the government. believe this is fair. The government should not serve as a sieve for information submitted by third parties. However, we believe that both S 1730 and the Administration proposal allow too much time for the procedure and strongly favor the rights of a submitter over the rights of a requester. The Administration's proposal is particularly troublesome because it would allow submitters to unilaterally stamp all documents""confidential" upon

submission.

We do not support the provisions for informal, ex parte hearings included in S 1730. This would only serve to delay the process and would add a substantial administrative burden to an Act that is too frequently labeled "burdensome."

ANPA and NNA believe the time limits should be carefully structured to avoid needless delay and should not exceed 30 working days from the date of the initial request. This time frame would allow an agency 5 days within which an agency would notify a submitter a request for information has been received; 5 days within which the submitter could oppose release of the information; 5 days within which a requester could appeal the submitter's opposition; and 5 days for the agency to rule. In "unusual circumstances" this could be extended, but not for more than 10 working days. It is critical that the requester and the submitter are notified throughout the process of the opposition being filed and the agency response.

Exemption (b) (6) currently exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion

of personal privacy." We understand that efforts to amend this language are aimed at more precisely defining the "similar files" language. While we do not believe this to be necessary, we could support the language in the Administration's proposal which generally exempts "records or information concerning individuals." It is imperative, however, that the "clearly unwarranted invasion" standard, which exists in current law, be maintained, as it would be in S 1730.

One of the reasons we oppose reducing the stringency of the personal privacy exemption is because it can easily be used to cover up information embarrassing to government officials. In fact, it already has. The Small Business Administration refused to release a report of violations of the 1964 Civil Rights Act, as amended, because it claimed the findings of sex discrimination would harm the reputations of those officials involved, and was, therefore, an invasion of their personal privacy. A federal district court disagreed, however, ruling that there were no intimate details of their personal lives at stake and that the public interest in agency compliance with the Act overrode any personal privacy interest in this instance Carl Stern v. SBA, No. 80-283 (DDC, Dec. 23, 1980).

87-749 082 53

exemption.

ANPA and NNA agree with the approach of S 1730 in amending the law enforcement However, we strongly oppose elimination of the word "investigatory" from the definition of what is exempted. S 1730 would allow withholding of all "records maintained, collected, or used for law enforcement purposes" and includes

six tests to be met before the information is withheld. While we believe

that minor adjustments could be made to the six tests to make them acceptable, expansion to include all law enforcement records is far too broad and would effectively exempt any civil or criminal agency dealing with law enforcement matters from the scope of the Act.

This is particularly disturbing since the FBI has been unable to cite a single instance in which an investigation has been hampered because

of information released under the FoLA. Current law already protects investigatory information, release of which would harm an ongoing investigation, reveal a confidential source, invade individual privacy, expose investigative techniques, endanger law enforcement personnel or deprive a criminal defendant of a fair trial. We strongly believe this provides adequate protection for the effective functioning of our nation's law enforcement agencies.

We could accept the standards included in S 1730, with fine tuning. 7(A) and (B) in S 1730 are identical to current law and should be maintained. 7 (C) of S 1730 maintains the "constitute an unwarranted invasion of personal privacy" language of current law, but adds "or the privacy of a natural person who has been deceased for less than 25 years." We are uncertain

of the rationale for including such a provision and recommend deletion of the language.

7 (D) changes the current "disclose the identify of a confidential source" to "tend to disclose the identity of a confidential source."

The "tend to" language is overly broad. If some narrowing of this standard is considered necessary, we would recommend "reasonably could be expected to disclose the identity of a confidential source."

We strongly oppose Section 7(G) in the Administration bill or any proposal resembling it which would give the Attorney General blanket authority

to exempt any information relating to investigation of terrorism, organized crime or foreign counter-intelligence.

We oppose allowing the Attorney General

such unrestrained discretion and believe the activities mentioned are protected

by the balance of the exemption.

In conclusion, Mr. Chairman, we believe the changes which we recommend could result in a federal Freedom of Information Act which strikes a workable balance between the public's right to know and the government's need for a certain amount of secrecy and confidentiality.

line.

This balancing act is a difficult

one, and we commend you for taking it upon yourself to try and walk the fine However, we would urge, in the strongest possible terms, that the final product take into full consideration the overriding need and right of the public to have the fullest possible knowledge of their government's activities. The presumption of openness implicit in this law must not be undercut. The federal FOLA stands as proof of the open society of which all Americans are proud.

Senator HATCH. Mr. Cony.

STATEMENT OF EDWARD CONY, REPRESENTING THE AMERICAN SOCIETY OF NEWSPAPER EDITORS

Mr. CONY. Senator Hatch, I would like if I could to join my colleagues in presenting a summary of our views and submitting a more detailed statement for the record.

Senator HATCH. All statements will be placed in the record as though fully delivered, and I appreciate the summarization.

Mr. CONY. Thank you.

I would also like to join Jean Otto in something she said. The Society of Newspaper Editors would like to commend you for the improvements that we see in S. 1730 compared to the original bill. We appreciate the time that you and your counsel, Mr. Rader, have taken to consider our objections and to try to meet some of our objections.

Senator HATCH. Thank you.

Mr. CONY. The American Society of Newspaper Editors consists of 850 editors from a cross section of the American press, small, medium-sized, and large newspapers from every State in the Union. The society seeks to improve the quality of newspaper journalism in the United States, and we try to help one another produce better newspapers that serve the American public by providing information the public needs and by observing the best practices of a free and untrammeled press.

ASNE does have serious concerns about any proposal to exempt in whole or in part the FBI and the CIA from the disclosure obligations of the FOI Act. We would ask, "Does the act as it is now written really force the CIA and the FBI to make disclosures that en

danger national security or endanger the lives of FBI informants or impede law enforcement by the FBI?"

I realize that the CIA is not mentioned in your bill, Senator Hatch, nor in the administration's bill. I think I am right; it is not mentioned specifically in there. That is an omission I find comforting, but I would like to talk about the CIA for just a few minutes, because there are people who want the CIA exempted from the act, among them the CIA Director himself.

Senator HATCH. I might interrupt you for a second. That is true, and there are a number of Senators who, of course, want the CIA exempted from the act. I have mixed emotions about that myself because of some of the allegations that they are being severely hampered in intelligence operations throughout the world. That is something we will have to address separately, it seems to me.

Mr. CONY. That being the case, I am glad that we could have the chance to give you our views on this.

Senator HATCH. We are happy to have them.

Mr. CONY. All classified information is exempted from the act now. So too is information exempted by virtue of another statute. Thus, the courts have construed the exemption to apply to that section of the National Security Act which provides "that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."

Let us look to see how this works in practice. Recently, the District of Columbia Circuit Court of Appeals upheld the CIA's denial of a reporter's request for documents showing the size of legal bills and fee arrangements between private attorneys and the CIA.

Mind you, under this request, none of the attorneys would have been identified. Their names were not sought, only the size of their fees. But the court concluded that a large fee might enable a trained analyst to use that fee in conjunction with some other information he might have to draw some sort of conclusion about the size, the nature, and the extent of American intelligence operations. Consequently, the reporter did not get the information about the fees.

If you will permit me a personal aside, I think it has been our experience that all lawyers' fees are large, and generally their bills are uninformative.

Senator HATCH. Your criticism of attorneys is quite harsh, but I have to agree with you. I think it is probably correct. [Laughter.] Mr. CONY. So far we seem to be in fairly substantial agreement. Senator HATCH. We have already reached some agreement anyway.

Mr. CONY. It seems clear that under the act today the CIA is hardly shoveling out mounds of information because of FOIA requests from the Soviet Embassy or from foreign agents, as some proponents of a blanket exemption for the CIA have appeared to suggest.

Indeed, at our ASNE convention, which was also here in Washington last year, Adm. Stansfield Turner, then the Director of the CIA, said—and I quote him—"Thus far, we have not lost a case in the courts when we have claimed that something was classified and therefore could not be released."