Page images
PDF
EPUB

a

That procedure will substantially cut down on use of judicial time and the very duplicative effort of the information requester and the agency in going through what is essentially the same process twice. At the same time, it will certainly give fair opportunity to the information provider to have a hearing.

It is my belief that the right to de novo review for information providers was given by courts because government insisted for a substantial period of time in litigation that the information provider was entitled to no review at all. It was in reaction to that position that providers were given a right to de novo review. In fact, providers should be accorded some review. An Administrative Procedure Act type of review on the agency record would be the appropriate type of review.

Another point that some of the agencies this morning alluded to is that it would be extremely helpful in this area if agencies, for documents where it was appropriate, could proceed to decide issues of disclosure by rulemaking. That is, they could say that the kind of information requested on this document is the kind for which disclosure will not cause substantial competitive harm. Therefore, it will be always released.

It seems to us then such a rule could be reviewed, as rules traditionally are, under the Administrative Procedure Act, but there would not be a document-by-document review for competitive injury. That, again, would afford the information providers à fair opportunity as part of the administrative process. Yet, again, it would cut down a lot of the problem for the information requesters of being delayed a long time rather than being able to have the information more readily available. Although the rulemaking process will not be appropriate in all cases, it is appropriate in many circumstances. We think agencies should be encouraged to use it as a means to get past some of the problems that have grown up.

Another issue which is slightly more complicated is that the Freedom of Information Act specifically provides of award of attorney's fees 1 to information requesters from the agencies. Although I think arguments can be made which are substantial that, in a reverse context, there can be attorneys' fees, it is certainly not as clearly spelled out in the act.

What has happened in our case, for instance, is that we have presumably been on the same side as the Government-although that is certainly not altogether the case—since relatively early in the litigation when the Federal agencies made the determination on paper that we were entitled to most of the information. In fact, we have been litigating for 2 years, and we still do not have the information.

I think, since the purpose of that attorneys' fees provision is to give requesters a way to get information, some consideration has to be given to how that is affected by a reverse Freedom of Information Act case where the same purposes prevail but the operation has been changed.

I spoke before about the problems of clarification of section 1905. I must say, sitting here, it all seems very easy. Then one has to go back and write numerous court papers and the courts are very up in the air.

15 U.S.C. 552(a) (4) (E).

21-656-78

I think the congressional intent probably is clear on the issue at this time. But it would be helpful for Congress to spell out in a way that it is a little more airtight in its views for information seekers and agencies who are working in court around this problem.

I would be glad to answer any questions. I have pretty much covered the specific recommendations we have.

Ms. HUFFMAN. Thank you. The Senator had a few questions.
Would

you find it helpful for the determination of confidentiality to be made when the information is first received by the agency rather than when the request comes in or a reverse case is brought? Or would you consider that a hindrance?

Ms. SCHIFFER. Well, it certainly would not be a hindrance to us to know, when we filed a request, that the agency had determined that it was or was not confidential.

I think that the agencies have come back and said that everybody would seek confidential treatment and it would put an undue burden on them to make the determinations until there was a request.

I think that the crux of our concern is that, once there is a request, there not be an undue delay until the decision is made. If the agencies can work out a procedure whereby they do not consider a provider request for confidential treatment until a request is made but at that time they do not very swiftly, then the interests of the information requester would certainly be served.

Ms. HUFFMAN. To date, has there been a great delay? Is it routine for the 10-day response deadline in the act i to not be met because of such decisions?

Ms. SCHIFFER. I have limited experience with the operation of the act throughout all Federal agencies. In my experience, the 10-day deadline is not met. In fact, we had to go to court on the basis of there not having been action on an appeal.

I have not looked at the records of all the agencies. What has been my experience is that, basically, they respond to deadlines. That is, once you go to court, then they seem to manage to do it in a fairly short time. So, reviewing the request does not seem to consume an enormous number of workdays. It is just a question of when those days are going to be triggered; that is the problem.

Ms. HUFFMAN. In your experience of requesting information from agencies, how often does the agency respond that it has promised confidentiality to the submitter?

Ms. SCHIFFER. We have never found that to be the response. In our lawsuit, the companies claimed in a very contorted way that there had been a promise of confidentiality. But, when you pushed them, what they seemed to be saying is that they believed that there had been a promise of confidentiality and not that one such a promise had

а. actually been made.

Nevertheless, the court found that that was sufficient. What seemed to us to be an appropriate procedure is, if there were ever a promise of confidentiality to be made, that it must be made in writing. Then we would know where we stood. If a written document of confidential promise could not be produced, we would know that no such promise had been made. If a promise of confidentiality had been made, the agency would have to go through the thought process of putting it down in writing first.

15 U.S.C. 552(a) (6) (A).

Senator ABOUREZK. Now that I am back, I want to offer my apologies. You will be happy to know that you just contributed to the reporting of the direct election of the President bill out of the Judiciary Committee.

Please continue.

Ms. SCHIFFER. I do think it is important to have the promise of confidentiality very clearly on the record. Otherwise, I think it is something which providers can say was promised to them by some very low-level person in the agency; and it is very hard to disprove a promise of confidentiality. So, there needs to be a way to show that, unless such and such procedure happened, you know that there was no binding promise.

Ms. HUFFMAN. I have a couple of questions on reverse cases.

Has it been your experience that the requester is not routinely joined in these cases?

Vs. SCHIFFER. I think the requester may or may not decide to intervene; they are rarely joined at the outset by—the companies do not add them as indispensable parties at the outset.

In a way, that is helpful because many requesters cannot afford to be parties to the suit and do need to rely on the Government.

Again, as I indicated before, unfortunately, the requesters are not always given notice. It is critically important that they be given notice.

Ms. HUFFMAN. I know you feel that the requester should be notified of reverse suits. Would you also favor notifying the submitter of the information of an impending release?

Ms. SCHIFFER. Our experience has been that they are, as a practical matter, informally notified in virtually every instance. In our case, they were certainly notified that an Information Act request had been filed the second it was filed. So, I think formalizing that procedure is not particularly necessary.

Ms. HUFFMAN. Do you find that most agencies consult the supplier about whether or not the information should be kept confidential? Do you object to the supplier being consulted about that decision?

MIs. SCHIFFER. We do not object to the supplier being consulted.

As I indicated, I think that it is appropriate that there is an agency proceeding about confidentiality based on written documents before the agency with review on the agency record rather than having a whole de novo hearing in court.1

Ms. HUFFMAN. Thank you.

Senator ABOUREZK. I want to thank you very much for your testimony and your patience.

Ms. SCHIFTER. Thank you very much.

Senator ABOUREZK. Your entire prepared statement will be inserted into the record. [The prepared statement of Ms. Schiffer follows:]

PREPARED STATEMENT OF Lois J. SCHIFTER I am Lois Schiffer, an attorney with the Women's Rights Project of the Center for Law and Social Policy. I appreciate the invitation to appear before this

1 See additional statement, p. 222 of the appendix.

subcommittee to present testimony on the problems which reverse Freedom of Information Act cases raise for groups seeking information from the Government.

The Women's Rights Project of the Center for Law and Social Policy is a public interest law firm in Washington, D.C. We represent individual women and women's rights organizations before Federal agencies and in the Federal courts. Our primary areas of concentration are on education, health and insurance issues.

Our experience with the effects of reverse Freedom of Information Act cases on information seekers grows out of our representation of the National Organization for Women, Washington, D.C. Chapter (“D.C. NOW”) in it efforts to obtain certain equal employment information which four insurance companies have filed with the Federal Government as part of the Federal contract compliance program.

Under the Federal contract compliance program, every government contractor, as a condition of doing business with the government, pursuant to the requirements of Executive Order 11246 as amended must work to eliminate discrimination in its workforce on the basis of race, sex, national origin and religion. The Executive order contract compliance program is administered in the first instance by the Office of Federal Contract Compliance Programs of the Department of Labor (“OFCCP"), which has delegated enforcement responsibility to a number of other Federal agencies. The Social Security Administration is the primary enforcer for the insurance industry.

In August, 1975, D.C. NOW filed a request under the Freedom of Information Act seeking the EE0-1 forms and AAPs which four insurance companies had filed with the government for a single year--1975. It sought the information in order to determine whether the companies it had targeted had discriminatory employment practices, and if so, to seek a remedy for the discrimination. That purpose would help implement an important national goal to create fair employment opportunities for all citizens. The Federal Government itself has recognized that making employment statistics regarding use of women and minorities available to outside groups will help further that goal. See Affidavit of Russell Galloway and Stephen Rosenfeldt, on file in National Organization for Women, Washington, D.C. Chapter v. Social Security Administration, Civ. Action No. 75–0087, 426 F. Supp. 150 (D.D.C., 1976).

Shortly after D.C. NOW filed its request, a Freedom of Information Act officer denied their request. D.C. NOW took an appeal within the agency. When the appeal went undecided for some months, they sought legal counsel. In January, 1976, we filed suit on D.C. NOW's behalf in the United States District Court for the District of Columbia seeking the documents. We joined the insurance companies as parties because of their obvious interest in the litigation. One company promptly determined to disclose documents to D.C. NOW, and was dropped from the suit.

Also in August and September, 1975, the four companies filed requests with Federal agencies seeking confidential treatment of EE0–1s and AAPs—i.e. that no disclosure of the documents would be made.

In February, 1976, after extensive documentation had been filed, the agencies denied the companies' request with regard to most of the documents; thereafter, in March, 1975, they granted D.C. NOW's appeal for disclosure of most of the documents sought. The companies took their own appeal within the agencies, and again filed extensive papers and briefs. Thereafter in July, 1975, OFCCP reaffirmed that most of the materials sought must be disclosed under the FOIA.

At the end of this full administrative process, three companies sought stays of disclosure in the pending District Court suit. The Court granted a temporary restraining order, and set the case for hearing, with witnesses and oral argu. ment, on companies' motions for preliminary injunction. In September, 1976, the Court took three days of testimony on the motions. All parties, including the government and D.C. NOW, also prepared extensive written documents. In December, 1976, the District Court entered an order denying the injunction in part. D.O. NOW v. SSA, supra, 426 F. Supp. 150. Significantly, the Court did not enjoin disclosure of the EEO-1 forms, in accordance with a requirement for disclosure of those documents in an OFCCP regulation, 41 C.F.R. $ 60-40.4.

All parties appealed the District Court ruling. In addition, the companies sought certiorari in the Supreme Court before action by the Court of Appeals. When certiorari before judgment was denied, 97 S.Ct. 2198 (1977), the companies went back to the Court of Appeals and sought a further stay there. A stay of disclosure of certain documents was entered, and the cases are now being briefed in the Court of Appeals.

[ocr errors][merged small][ocr errors]
[ocr errors]

I have set forth this rather lengthy procedural history of the case as an exam. ple of the complexities and delay which reverse FOIA cases can bring about for those seeking disclosure of government information under the Freedom of Information Act. In light of the clearly expressed intention of Congress that the Freedom of Information Act be a tool to make available information expeditiously, that delay must be source of concern to this subcommittee as well.

Nor is the case of D.O. NOW v. Social Security Administration an isolated one. In a large number of cases in which organizations and individuals have sought similar equal employment data in order to obtain better enforcement of equal employment laws and promote important national goals of fair employment opportunity, a reverse FOIA case has been filed and has tied up disclosure of the data sought for a period of years. See, e.g. Hughes Aircraft Co. v. Schlesinger, 384 F. Supp. 292 (C.D. Calif., 1974) (appeal pending in Ninth Circuit); Chrysler Corp. v. Schlesinger, 412 F. Supp. 171 (D. Del., 1976) (appeal pending in Third Circuit); Sears, Roebuck & Co. v. General Services Administration, 509 F. 2d 527 (D.C. Cir., 1974) and 402 F. Supp. 278 (D.D.C. 1975), and F. 2d No. 75–2127 (D.C. Cir., April 1, 1977), petition for certiorari pending; Westing. house Electric Corp. v. Schlesinger, 542 F. 2d 1190 (4th Cir., 1976), cert. denied, 97 S.Ct. 2199 (1977).

In addition, the delay in disclosure caused by complex litigation engendered by reverse Freedom of Information Act cases is not limited to disclosure of equal employment opportunity data. Such cases have been brought, and have had the effect of delaying disclosure, in a whole variety of substantive areas. See, e.g. Consumers Union v. Consumer Product Safety Commission, 400 F. Supp. 848 (D.D.C. 1975) and-F. 2d-No. 75–2059 (D.C. Cir. July 5, 1977): Charles River Park AInc. v. HUD, 519 F.2d 765 (D.C. Cir., 1974) and 547 F.2d 673 (D.C. Cir, 1976).

INTEREST OF THE INFORMATION REQUESTER Present procedures which apply in reverse FOIA cases, and which have the effect of causing serious delay, present particular problems to groups like D.C. NOW and other which seek equal employment statistics in order to work on remedying employment discrimination. Such organizations generally have few funds and cannot easily pursue expensive reverse-FOIA litigation. When faced with the bar of a reverse FOIA suit standing between them and access to the data which they want and the government wants to give them, such groups are faced with the choice of giving up their request, or relying on government attorneys to press their claims in lawsuits in which they have a serious interest but cannot afford to be parties. As courts have recognized, reliance on the government, which is not always sufficiently diligent in pressing the interests of the information requester, is not adequate. See Consumers Union v. Consumer Product Safety Commission, supra, slip op. at 8-9, 12–13, 16–17. Some changes in the procedures governing reverse FOIA cases can help assure that courts do not continue to be seriously weighed down with extended reverse-FOIA litigation.

INTEREST OF THE INFORMATION PROVIDER We would like to stress that we believe the information provider does have an interest in the process to determine what information must or should be disclosed to an information requester under the Freedom of Information Act. We think that sound rules and principles would balance the interest of the information requester against the interests of the information provider, but would redress the current imbalance which weighs so heavily in favor of the information supplier.

RECOMMENDATIONS

A number of issues arise in reverse Freedom of Information Act suits. Rather than address all of them here, we highlight a few of the most important changes needed in the process to facilitate disclosure without being unfair to information providers. Insofar as court decisions have established alternative procedures, legislation may be called for to reverse those decisions. Alternatively, since many of the cases attempt to construe Congress' intent in passing the FOIA, some indication from Congress of how it intended the procedure to work may be helpful.

1. No court consideration de novo. When it passed the FOIA, Congress was concerned that agencies would be reluctant to disclose documents. Therefore, Congress looked to the courts as more neitral decisionmakers to consider appropriateness of disclosure. To that end, the FOIA provides that if an

« PreviousContinue »