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ALPHABETICAL LIST OF EXHIBITS—Continued

Page House report on FOIA, May 1966, excerpt, (b) (4) exemption-Exhibit 32

419 House report on 1974 FOIA amendments, excerpts : (b) (1) exemption--Exhibit 62_.

590 Attorneys fees provision-Exhibit 109_

825 Time limits provision-Exhibit 86_

760 Illegal Government activities, Flaherty memo on-Exhibit 76--

663 Implementing directive for Executive Order 11652 on classification-Exhibit 41_

440 “Information Act: Years of Foot-Dragging Not Ended," Washington Post, July 26, 1976–Exhibit 140a-

972 Interagency classification review committee regulations–Exhibit 42_

449 Iseman fee waiver case, correspondence-Exhibits 102–102h.

810-817 James, Michael : Prepared statement..

17 Testimony

15 "Judge Gesell Says CIA Played Game With Him," Washington Star, July 1, 1977—Exhibit 74a..

651 Justice Department explanation of Glomar litigation-Exhibit 39b.

430 Justice Department FOIA case review results-Exhibit 132_

933 Justice Department information regulations, excerpts from-Exihibit 139. 960 Justice Department letter on FOIA case review results—Exhibit 132b_- 940 “Justice Wants Secrecy Label on Fuel Data," Washington Star, July 20, 1977–Exhibit 36.---

423 Kaplan fee waiver case, correspondence-Exhibits 101-101b_

808-810 "Lawmakers Thwart Sneak Attacks on Information Act,” Washington Post, July 29, 1976–Exhibit 140d_-

981 Lynch, Mark, Attorney, ACLU, testimony

108 Lyons, J. Austin, Jr., statement-Exhibit 12_--

308 MAPI comments on Defense Departments proposed FOIA regulationsExhibit 7---

223 MAPI letter to Attorney General Griffin Bell, May 27, 1977–Exhibit 18_ 317 MAPI letter to Defense Department September 23, 1977–Exhibit 19_

318 MAPI memorandum on FOIA–Exhibit 8_--.

226 McCreight, Allen H., Inspector-Deputy Assistant Director FBI: Testimony, October 6..

126 Testimony, November 10..

184 McDermott, John, Jr., Assistant to the Director/Deputy Associate Director, FBI, testimony.

184 McGehee, Fielding M. III, Military Audit Project: Prepared statement.

61 Testimony

53 McGehee letter on repeal of (b) (1) exemption-Exhibit 43.

453 McGehee response to Senator Thurmond's request about FOIA request on B-1 bomber- Exhibit 44.

454 Military Audit Project v. BushExhibit 68..

613 Military Audit Project v. Bush, motion to remand-Exhibit 68a

618 MKULTRA memo—Exhibit 49_

458 National Congress of American Indians, statement of_Exhibit 144. 1023 National Council of Technical Service Industries, statement-Exhibit 13.. 309 National defense documents released under FOIA–Exhibit 55---

473 National Prison Project, statement of—Exhibit 142_

987 Norton, Gerald P., Deputy General Counsel FTC: Prepared statement_

12 Testimony

7 NSC explanation of Glomar litigation-Exhibit 390.

432 Open American v. Watergate Special Prosecution Force-Exhibit 90_

767 O'Reilly, James T., statement-Exhibit 10--

289 "Paperwork Papers—Now You See Them, Now You Don't," Washington Post, July 31, 1977–Exhibit 73a---

647

ALPHABETICAL LIST OF EXHIBITS—Continued

Page “Penchant for Secrecy Remains,” Washington Post, July 28, 1976–Exhibit 1400

978 Pertschuk, Michael, Chairman FTC, letter to FPC Chairman Richard Dunham, May 16, 1977–Exhibit 17-

315 Phillippi v. CIA-Exhibit 67---

606 Rothman, fee waiver case correspondence-Exhibit 98–988-

788–798 Saloschin, Robert L., Chairman, Privacy and Freedom of Information Committee, Justice Department: Testimony, September 16_

101 Testimony, October 6--

133 Schaffer, William G., Deputy Assistant Attorney General, Civil Division, Justice Department, testimony

133 Schiffer, Lois, Women's Rights Project, Center for Law and Social Policy : Prepared statement-

35 Testimony

30 Schiffer letter on agency consultation with requester—Exhibit 6_-

222 “Secrecy Disease," New York Times, October 31, 1977–Exhibit 74e

659 Seigenthaler, John, statement of—Exhibit 146_

1029 Senate Intelligence Committee, resolution establishing-Exhibit 56_

502 Senate report on FOIA, October 1965, excerpt on (b) (4) exemptionExhibit 33_-

419 Senate report on 1974 FOIA amendments, excerpts on: (b) (1) exemption-Exhibit 63_

591 Attorneys fees provision-Exhibit 110_.

826 Fee waiver provision-Exhibit 105.

819 Sanctions provision-Exhibit 127

889 Time limits provision-Exhibit 87.

761 Shea, Quinlan J., Jr., Director, Office of Privacy and Information Appeals, Justice Department: Testimony, October 6.--

133 Testimony, November, 10..

184 Simonson, Richard C., statement of Exhibit 147

1034 State Department fee waiver guidelines—Exhibit 103_.

818 State Department information regulations-Exhibit 61.

544 Stewart, Charles, W., Machinery and Allied Products Institute: Prepared statement..

45 Testimony

39 St. Louis Posi Dispatch v. FBI-Exhibit 70-

626 “Telling Tales—How Law Is Being Used To Pry Business Secrets from Uncle Sam's Files," Wall Street Journal, May 9, 1977–Exhibit 38_.

425 Third party information, Shea memo on-Exhibit 77---

663 Third party information in files of historical interest, Justice Department guidelines on release-Exhibit 79_

666 “Three Major Firms Win Round on Disclosure of Hearing Data,” Washington Post, May 17, 1977–Exhibit 37-----

424 Thurmond, Senator, supplementary material submitted by—Exhibit 148.- 1036 Totenberg, Nina, National Public Radio, testimony-

178 Totenberg, Nina, memo released to her originally by FBI-Exhibit 149.- 180 Facsimile of memo released to her after appeal—Exhibit 150--

181 “C'se, Abuse of Freedom of Information Act," Washington Post, July 27, 1976–Exhibit 140b--

975 “U.S. Information Act : Difficulties Despite Successes,” New York Times, August 7, 1977–Exhibit 141..

984 Vaughn v. Rosen–Exhibit 69...

618 T'aughn v. Rosen, attorneys fees case, letter regarding-Exhibit 112_

828 Stipulation on attorneys fees—Exhibit 112a---

829 Veisberg FOIA request : October 20, 1969, memo regarding-Exhibit 133_

941 June 24, 1970, memo regarding—Exhibit 134.

941 June 25, 1970, memo regarding–Exhibit 135_

942 Weissman v. CIA-Exhibit 66--

600 Weissman v. CIA, supplemental order–Exhibit 66a--

605 Zusman, Lynne, Acting Chief, Information and Privacy Section, Civil Division, Justice Department, testimony--

133

9

FREEDOM OF INFORMATION ACT

THURSDAY, SEPTEMBER 15, 1977

U.S. SENATE,
SUBCOMMITTEE ON ADMINISTRATIVE

PRACTICE AND PROCEDURE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m. in room S-126, the Capitol, Hon. James Abourezk (chairman of the subcommittee) presiding.

Present: Senators Abouurezk and Thurmond.

Staff present: Irene R. Emsellem, chief counsel and staff director; Diana Huffman, counsel; and Robert Lyon, counsel to Senator Thurmond.

Senator ABOUREZK. The meeting will be in order.

This is the first of a series of hearings on the Freedom of Information Act to determine essentially how it is working and what, if any, amendments are needed to make it work better.

OPENING STATEMENT OF SENATOR ABOUREZK

Eleven years ago Congress, by passing the Freedom of Information Act, recognized that public access to Government information was essential to an open and democratic Government. Early experience with the law demonstrated that, despite the high hopes for that legislation, it failed to open up Government files to the public in any significant degree. As a result, the act was amended extensively in 1974.

The development and oversight of the original bill and amendments has centered in the Senate in the Administrative Practice and Procedure Subcommittee. Today, we continue that important role as we begin the first formal oversight hearings on the act since the 1974 amendments took effect. The hearing will continue tomorrow and resume on October 6.

The preoccupation with secrecy in Government, documented by the Watergate scandal, is not so remote that we can allow congressional vigilance of implementation of the Freedom of Information Act to abate. Certainly, we have made great strides in opening up Government information to the public since the 1974 amendments. More information has since been released under the act. The Carter administration's expressed commitment to openness, coupled with the Attorney General's specific directive last May to increase compliance with the spirit and letter of the act, provide a basis for optimism about the future of the Freedom of Information Act. 1 See p. 213 of the appendix. 2 See p. 217 of appendix.

[blocks in formation]

During these 3 days of oversight hearings, we will attempt to determine the degree to which executive branch compliance with this mandate of the law has improved during the past 2 years, whether the Attorney General's directives to reduce the overwhelming backlog of administrative and judicial appeals under this act are being heeded, and what can be done to insure and enhance future compliance.

Today, the subcommittee will focus on problems raised by one of the most vexing and complex areas under the act—the (b)(4) or so-called trade secrets exemption, and the reverse Freedom of Information Act cases it has spawned.

Congress intended the exemption to protect both trade secrets and financial or commercial information that is privileged and confidential. The area of trade secrets always has been sticky. However, the second part of the exemption, dealing with confidential information, has proven more difficult in recent years.

Business rightfully is concerned about competitive dangers resulting from disclosure of information it submits either voluntarily or as required by statute to the Government. Yet, not all such information should be withheld as the public often has a legitimate interest in seeing some of this information. Balancing these competing interests is the task confronting the agencies that possess the data. For example, the Federal Trade Commission and the Federal Power Commission recently supported utility companies claims that release of fuel data submitted to the Government would hamper negotiations with fuel suppliers.

I question whether this decision is truly in the public interest and whether at least some of this data could legitimately be released without adverse impact on the utility companies.

The subcommittee will analyze current agency disclosure practices under the (b) (4) exemption. It will try to determine if this Freedom of Information Act exemption and the plethora of other conflicting Federal information statutes hamper intraagency sharing of information, and prevent vital health, safety, and economic information from reaching consumers.

For instance, the Food and Drug Administration must wrestle with the problem of how much information about new drugs can be released to the public. FDA regulations implementing the confidentiality section of the Food, Drug, and Cosmetic Act preclude the publication of some results from safety and efficacy tests performed on new drugs.3 The Environmental Protection Agency faces a similar dilemma regarding toxic chemical data. I am concerned that the public's right, under the Freedom of Information Act, to know this information is being undercut by conflicting statutes governing individual agencies' operations.

The subcommittee also will consider the procedural problems posed by reverse cases—suits brought by submitters of information to prevent disclosure by agencies to third parties. The issues raised range from whether the submitter should be notified of any impending release, to whether the requester always should be a party to a reverse suit.

1 See legislative history at p. 419 of the appendix. 2 See pp. 315, 423 of the appendix and p. ii of hearing text. 3 See p. 340 of the appendix and p. 20 of the hearing text. 4 See p. 394 of the appendix and p. 25 of the hearing text. 5 See p. 424 of the appendix.

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