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a judgment on a class-by-class basis as to whether that information fell within the exemptions.

That is not to say that we don't ever exercise discretion to release information; we still do.

Senator ABOUREZK. Do you exercise that discretion even after you promise confidentiality?

Mr. PAPE. We never promise confidentiality. We merely state in the regulations what the status of information will be.

Senator ABOUREZK. I understood you did promise confidentiality.

Mr. PAPE. No; you may have misunderstood me. Our regulations specify that certain information will be kept confidential. We never use a promise of confidentiality as a tool to get access to information that we might not otherwise have.

Senator ABOUREZK. That was not the question. The question was: Do you promise confidentiality ? You said yes, if you can determine ahead of time that it falls under one of the exemptions.

Mr. PAPE. Well, that is what our regulations do. Our regulations say this kind of information will be kept confidential because we have determined that it is within one of the exemptions.

Senator ABOUREZK. So, my assumption is correct: you fail to weigh the public interest in the release of the information when you get a request?

Mr. PAPE. That is precisely what we have done in our regulations. We could hardly make an ad hoc determination on each of 25,000 requests—which is what we will get in this fiscal year. If we did that, all 7,500 FDA employees would be implementing the Freedom of Information Act and doing nothing else.

The only way to possibly implement the act is to weigh the public interest in the first instance and to specify for the benefit of everyone how we are going to handle it. Then we can implement it because both private persons and FDA employees know what the rules are going to be.

Senator ABOUREZK. You are saying that there is no new circumstance or new evidence that would allow release of information on which you have previously committed

Mr. PAPE. No, to the contrary; there is. We are constantly in the process of reviewing previous general disclosure judgments that we have made to see whether there are any changes in circumstances that might cause us to propose to change our regulations generally

Senator ABOUREZK. Do you do it on a case-by-case basis or just generally?

Mr. PAPE. Both.

Or, in a particular instance in which the facts may seem to weigh in favor or against disclosure, where the rules would provide for the other, we would exercise our discretion.

Senator ABOUREZK. Does the act require a decision on each case rather than a general rule?

Mr. PAPE. It requires a decision in each case. It certainly does not preclude an agency from adopting regulations which specify how it will handle its docket. Safety and effectiveness data for new drugs are clearly something that can be handled on a class basis. There is hardly anything that can change the circumstances of that information. We

may or may not be correct in our judgment, but there are not likely to be peculiar facts in each instance that are going to make that judgment erroneous in that case and correct in another.

As some of the other witnesses have alluded to, the agencies ordinarily have neither the time nor the resources to get the kind of specific information that would change the circumstances except that which is provided by the person submitting the information. That obviously, will always weigh in favor of confidentiality, not disclosure.

Senator ABOUREZK. Let me ask each agency in turn: Who is the greatest user of the act? It is commercial interests or public interest groups?

Mr. GARDNER. From our experience, it is the commercial interests. It is about 80 percent of the requests we receive for information.

Senator ABOUREZK. And 20 percent from public interests?
Mr. GARDNER. Yes; that is correct.
Senator ABOUREZK. Does the FTC have a percentage breakdown?

Mr. NORTON. I think the first 6 months of this year is an example. About three-fourths of the requests were from companies or law firms representing companies; in most instances while they were involved in litigation with the agency or during investigations, using it as an adjunct to discovery or

a means of getting that which they could not get under the discovery rules in many cases.

Mr. JAMES. As with the other agencies, commercial interests are far and away the larger users.

Senator ABOUREZK. Do you have a percentage breakdown?
Mr. James. No, I am sorry; we do not.

Senator ABOUREZK. Could you furnish that for the committee? An estimate would suffice.

Mr. JAMES. Yes.
[Supplementary statement supplied for the record.]

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The chart below represents a breakdown of the Freedom of Information Act requests received for the period July 1, 1976, through June 30, 1977. The figures represent only those requests received at EPA headquarters. Law firms.

202 State and local governments--- 55 Corporations

917 U.S. Congress Individuals 124 Universities

48 Media 3 Federal Government

7 Public interest groups.

77 Senator ABOUREZK. Thank you all very much.

The next witness is Lois Schiffer of the Center for Law and Social Policy.

As I said to the other witnesses, we would appreciate it if you would not read your entire statement to the committee but would just highlight it.

I have to say one other thing. There is a full Judiciary Committee meeting going on. At approximately 11:10 I have to leave here. There is a series of seven votes on a major piece of legislation that will be coming up in the committee.

I would like to offer you the alternative of continuing to testify with counsel running the hearings or waiting until I come back, whenever that will be.


Ms. SCHIFFER. I would rather wait.
Senator ABOUREZK. It is up to you. Please proceed.



Ms. SCHIFFER. Thank you, Mr. Chairman.

I would just like to summarize briefly how I came to be involved with reverse Freedom of Information Act cases. We were asked by an organization in Washington, D.C., to pursue a Freedom of Information Act request on their behalf. The organization sought equal employment information filed by four insurance companies in their capacity as Government contractors regarding the breakdown of their work force into women and minorities, and then their affirmative action plans which set forth their plans for increasing the numbers of women and minorities that they employ.

The organization itself had asked the Federal agency for the information. The agency, in the first instance, had denied the request. The organization then appealed within the agency. The agency did not act for some time.

We filed a straight Freedom of Information Act suit on the organization's behalf. But, because one reverse case had already been filed, we joined the companies in the action.

The result is a complicated piece of litigation which has gone on now for almost 2 years. Its result is that to date the organization has received almost none of the information it sought, although some of the information is now not under stay orders from any court. At least substantial portions of the information are the sort of very general work-force analysis information which courts consistently hold should be disclosed and which I think, sitting here, we could all agree is exactly the kind of information we would want the public to have so that it could help further the important national goals of equal employment opportunity. I think we have learned a lot of lessons from the litigation.

What I would like to do is start out by responding to some of the questions which you asked the last panel of witnesses. Their answers would raise some serious problems for people in the position of my client.

The first is that you seem to suggest there is a possibility that you would require the information requester to be party to any reverse Freedom of Information Act lawsuit. The serious problem with that suggestion is the insurmountable expense. What it would mean, in many instances, is that public interest organizations who were seeking information would be put into a position of having to give up their request the minute the other side went to court.

Senator ABOUREZK. What about a requirement that it be optional? I think the argument is that agencies have an interest in withholding the information and do not have an interest in releasing it. Therefore, they would not adequately defend the requester's position.

Ms. SCHIFFER. I think the optional alternative is critically important. In fact, one of the specific recommendations which I have made in my written testimony is that the agency give the information requester notice on a regular, mandatory basis, when a reverse Freedom


of Information Act request is filed, so that the requester can exercise the option to go into the litigation.

It has been our experience that notice is not automatic; and, in fact, the lawsuit usually proceeds past the temporary restraining order stage before the information requester is given the opportunity to come in because the requester does not know that there is anything to come into.

Again, I would caution that making participation in the lawsuit mandatory is a serious problem. Making it optional is vitally important. Procedural rights should attach to making participation optional.

On the venue question, I must admit I had not given it careful thought before I came here; but I do have some observations. First, the present Freedom of Information Act provides that, for straight Freedom of Information Act requests, the requester can choose the venue." I think that keeping that option is very important. For instance, if a public interest requester in California request equal employment information, to permit the organization that provides the information to the Government essentially to foreclose litigation in California and to make the requester litigate across the country would be very difficult for requesters.

What seems to me a possible solution is to make a division between straight Freedom of Information Act suits and reverse suits. In a straight suit, the requester could be permitted to choose the venue, as the act now provides. In a reverse suit there would be the presumption of venue in the District of Columbia. I suppose if the requester then wanted to intervene in that suit, the requester might have the option to have the venue transferred to another jurisdiction, a jurisdiction that was the most convenient to him or her.

I do think the District of Columbia has the most experience in these suits. If a single forum were going to be suggested, it would be an appropriate forum.

Regarding the section 1905 issue that we have been around at length-I, of course, completely agree with you that Congress took care of it the last time around. However, I am afraid that not only the fourth circuit has indicated that it does not interpret the new statute as Congress suggests, but the District of Columbia Circuit is now in the process of retrenching as well. Although it is true that in the National Parks 11 2 decision last December it said that it agreed that Congress had meant section 1905 not to be an exemption (b) (3) statute, in a case called Sears Roebuck v. GSA, which came down on April í of this year, the D.C. Circuit indicated that it now thought the question was an open one. It wants to reconsider it.

In the litigation that I am pursuing, it is an issue that we have had to brief extensively. I think it would be helpful to all of us if Congress made it clear again what it intended in those recent amendments. It is clear to me; but I think, unfortunately, it has not been clear to the courts. It has resulted in a lot of delay in disclosure of information because it has provided a very good issue to people seeking to bar the disclosure of information.


1 See 5 U.S.C. 552(a) (4) (B). : 547 F. 20 673 (D.C. Cir. 1976). *553 F. 2d 1378 (D.C. Cir. 1977). See footnote 1, p. 22 of hearing text.


I would also reiterate what the prior witnesses said about section 1905 information being the same as exemption (b)(4) information, which is something the courts consistently have said. I agree with you and very much like the approach of saying that what Congress intended is that (b) (4) would permit the information to be disclosed.

Again, the courts have consistently said that information cannot be disclosed because section 1905 is a criminal statute. Courts not only will not require the agency to disclose it, but essentially will view such disclosure as an abuse of discretion. Again, some clarification might be helpful.

There is a very interesting law review article cited in my written statement ? which discusses at length the legislative history of section 1905 and shows that Congress probably intended that statute to be an extremely narrow one. Clarifying that, in fact, section 1905 is a narrow statute with very limited intent or, repealing it now, might be very helpful to the public seeking access to information.

Senator ABOUREZK. I have to apologize. I have to leave now because the votes take place exactly at 11:15 and I have to be there.

We will be in recess until I come back. [Recess taken.]

Ms. HUFFMAN. Senator Abourezk is tied up in a vote upstairs in the Judiciary Committee. We do not have permission to meet this afternoon, so we are going to have to continue now. He will come down as soon as the voting is completed. We will resume now.

Please proceed.

Ms. SCHIFFER. I was in the process of outlining a number of specific suggestions and points about operation of the Freedom of Information Act, particularly in the reverse suit area.

I think that I have pretty much responded to the questions that were raised by Senator Abourezk in his discussion with the prior panel. In addition, as I have outlined in more detail in my written testimony, we think it is extremely important that there be a congressional overruling of what has been an increasing judicial trend to accord reverse challenges to disclosure de novo hearings in the district court.

Specifically, the Freedom of Information Act does provide de novo hearings to the information requester. The legislative history makes clear that the reason for that provision was the traditional reluctance of agencies to disclose information. What has happened in the reverse area is that, once an agency has determined to disclose, thereby getting past the original intention of the de novo hearing, the person who is seeking to keep information from being disclosed has now been afforded a de novo hearing under judicial interpretation.

It seems to us that this is extending what was viewed in the act as an extraordinary remedy and that, certainly in the administrative law area, is an extraordinary remedy, to a place where it is inappropriate. The person seeking to keep information from being disclosed right to consideration of that request by the agency on an agency record. There is an agency decision. It seems to us appropriate that there should then be a traditional review on the agency record under the Administrative Procedure Act.4


1 See footnote 1, p. 22 of hearing text. 2 See p. 39 of hearing text. 35 U.S.C. 552 (a) (4) (B). 45 U.S.C. 706 (2) (A).

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