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ably an undefined limitation on what we can reasonably expect in terms of the allocation of resources.
But, subject to those two limitations, we would like to be more effective in encouraging agency compliance. Indeed, the success of the entire program-which is, I think, a very dramatic and significant development in the art of democratic government in an increasingly complex society-depends upon whether we can provide the kind of administrative leadership that is called for by this statute and the challenges which it imposes.
I know that some of the other nations which have considered adopting freedom of information legislation regard this as a very great and sizable challenge, so that reenforces me in my own perspective that we have a lot of work cut out for us.
Mr. Weiss. Perhaps we can encourage you and assist you in becoming more effective in your monitoring task.
Does counsel have questions?
Mr. INGRAM. Mr. Chairman, following up your question, I recall that the committee's report of 1973 on the administration of the Freedom of Information Act had some fairly critical words about the Justice Department's Freedom of Information Committee and its ability to provide assistance on the FOIA.
The committee might find it of assistance to have a brief recitation of the degree to which the department has corrected the deficiencies earlier pointed out by the committee with respect to the Freedom of Information Commmittee.
Mr. Weiss. Could you try to submit that kind of response to us for the record?
Mr. SALOSCHIN. I will try.
Mr. INGRAM. Mr. Saloschin, you were here this morning when we were examining the difficult question of contractor data. Let's take the hypothetical that I work for the Associated Press as an investigative reporter. I think that a behavioral science study turned over to HEW is largely based either on plagiarized data or on insufficient data. I go to the agency and ask for the data which was the basis for the report provided HEW.
I am told that HEW does not have it; it is in the hands of the contractor. I go to the contractor, and I ask for the data, but I know in advance that the ownership of the data, according to the contract, lies with the Government. The contractor points out the FOIA does not cover contractors. I am shunted back to HEW.
I make the Freedom of Information Act request to HEW for the contract data. What results?
Mr. SALOSCHIN. Well, if the contract clearly provides that this data, and I am assuming the data has been reduced to records, is within the ownership of a government agency, that would seem to be rather significant. Again, this is a question that I am just analyzing right here at the witness table. I guess, looking at it from a technical, legal viewpoint, one of the questions would be at what point does this data become the property of the agency pursuant to that contract provision? Is it self-executing so that the minute the data is reduced to paper or computer tape, it is the property of HEW, or is there a duty on the contractor's part to turn it over to HEW, or does it work in some other way?
Without fully exploring that kind of technicality or others that might be raised, I would say that there is, at least in my view, a strong argument which could be a controlling argument that if this data belongs to the agency, and it has been recorded, those are agency records.
Mr. INGRAM. But there would be a legal obligation on behalf of HEW to retrieve Government records?
Mr. SALOSCHIN. I have to point out as far as I can recall at the moment this is a question of first instance. There may be contracts like that, but I don't know of them, and usually the point at which ownership attaches is when the records come into the possession of an agency, either because it has created them, or because it has received them.
Here you have a different situation. Here you have a contract that, as you put it to me, provides that these records are within the ownership of the agency.
Mr. INGRAM. Mr. Chairman, the hour is getting late. There were several other questions. I will submit those to the witness for the record.
Mr. WEISS. Fine. Thank you very much.
If there are no further questions, Mr. Saloschin, thank you so much for appearing with us—for your courtesy.
The subcommittee now stands adjourned, subject to the call of the Chair.
[Whereupon, at 12:22 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]
APPENDIX 1.–LETTER OF DECEMBER 19, 1978, FROM DONALD L. EIRICH,
GENERAL ACCOUNTING OFFICE, SUPPLEMENTING TESTIMONY
This is in response to your letter of October 26, 1978, concerning our review of the contractor provisions of the Privacy Act. Our final report ("Privacy Act of 1974 Has Little Impact on Federal Contractors," LCD-78-124) was issued on November 27, 1978. We are pleased that our review, which we summarized in the Subcommittee's recent hearing, was useful and relied upon in preparing the Committee's report on mana gement of contractor/grantee data.
Our response to information requested to clarify the hearing record is as follows.
1. What percentage of the gross national product (GNP) (that reached about $2 trillion as of the 2nd quarter this year) consists of government contracts? Our Procurement and Systems Acquisition Division advises that until recently there has been no systematic accumulation of Government procurement dollar volume. However, they estimate that the value of all goods and services procured by Government contracts annually totals from $70 to $80 billion--about 4 percent of the GNP. They estimate that approximately the same amount of procurement arises from Government grants.
2. If possible, estimate what percentage of Government contracts are or might be subject to the Privacy Act. review, we found that a gencies themselves generally did not have a system for centrally identifying contracts where they applied the Privacy Act clause and usually they were confused about whether the Privacy Act should apply in a variety of possible situations. Since a significant amount of the procurements are for goods and many of the service contracts do not conta in data subject to the Act it is likely that only a very small fraction of Government procurement is subject to the Privacy Act.
3. Provide details about access to records problems encountered by GAO with Government contractors resulting from or due in part to a lack of specificity in the contract a greement. We understand that the Subcommittee's interest here extends to proprietary and confidential data as well as to personal data. You cited one instance concerning GAO's assessment of the housing allowance program at the Department of Housing and Urban Development. The enclosure discusses this example as well as the broader issue of GAO's access to social research data. It also provides a synopsis of other problems we have encountered. Some of these problems have resulted in legal disputes. Many of them have been cut short because we determined that access denial did not impede accomplishment of our objectives and we were able to adopt suitable alternatives.
Donned L Erich
Donald L. Eirich