agency would have to go through the thought process of putting it down in writing first. 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? Ms. 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? Ms. 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. SCHIFFER. 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. SCHIFFER 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 EEO-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 EEO-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 argument, 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.C. 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 I 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. I have set forth this rather lengthy procedural history of the case as an example 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 a source of concern to this subcommittee as well. Nor is the case of D.C. 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; Westinghouse 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 “A” Inc. 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 others 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 neutral decisionmakers to consider appropriateness of disclosure. To that end, the FOIA provides that if an information request is denied, the applicant could seek review de novo (on a fresh record) in the Federal district courts, without being in any way bound by the agency decision. 5 U.S.C. § 552(a) (4) (B). The very reasons which motivated provisions for de novo review in the FOIA dictate that the information provider not be accorded review de novo when a decision to disclosure information has been made by the agency. The usual procedure in reverse FOIA case is for the information provider to request confidential treatment of the documents by the agency; if the agency denies that request and determines to disclose the documents, the information provider then goes to court to block disclosure of the information. The review sought is from agency action (denial of a request for confidential treatment) which has been made on an agency record. This review-just like any other review of administrative agency action should be made under the Administrative Procedure Act provisions for review on the agency record. 5 U.S.C. § 706 (2) (A). No special reasons to accord information providers review de novo in the district courts have been put forth, and none exist. Nevertheless, most courts which have considered the matter held that the information provider has a right to de novo review in the district court just because the FOIA provides such a right to the information requester. See, e.g. Sears, Roebuck and Co. v. GSA, supra (opinion of April 1, 1977); Westinghouse Electric Corp. v. Schlesinger, supra. That procedure seriously delays review and causes extraordinary expense to both the information requester and the Government, which must go through a second evidentiary process. Congress should make clear that no reason exists for the information provider to have the extraordinary remedy of de novo review, and that review on the agency record is sufficient. Of course, the customary standards for sufficiency of the agency record and agency process applicable in all Administrative Procedure Act reviews would protect the information provider adequately. 2. Process for rulemaking. Many of the documents which information requesters seek are in a standard format regularly collected by Federal agencies. For example, in the case of D.C. NOW v. Social Security Administration, supra, some documents sought were the standard two-page EEO-1 forms. Agencies should be encouraged to promulgate regulations making determinations about the disclosability of such regularly-collected forms. When determinations about disclosability are made on the basis of such agency-promulgated rules, information providers should have the right to seek review of the propriety of the rulemaking under the Administrative Procedure Act, 5 U.S.C. § 706, only. Development of rules will help alleviate the need for case-by-case development of disclosure standards, and will provide fair guidelines to information providers about agency views of disclosability. In addition, such rules and review of the rules and the Administrative Procedure Act can help reduce the number and scope of reverse FOIA suits. 3. Provide for attorneys' fees in reverse-FOIA cases. To assure that information requesters can obtain information, Congress has provided in the FOIA for award of attorneys' fees to requesters. 5 U.S.C. § 552(a) (4) (E). No such clear statutory provision permits award of attorneys' fees against the information provider which effectively precludes disclosure. Since in many reverse-FOIA cases the Government has a similar (if not identical) position to the information requester regarding disclosure, the applicability of current FOIA provsions may be ambiguous. Some provision for award of attorneys' fees to the information requester who is forced to pursue information in the face of a reverse-FOIA suit would help further the original purposes of the attorneys' fees provision in the FOIA itself. 4. Clarification of the scope of 18 U.S.C. § 1905 and its effect on the FOIA. A great deal of reverse FOIA litigation had focused on 18 U.S.C. & 1905, a statute which provides criminal sanctions against the Government officials disclosing trade secrets. The issue comes up in two ways: first, information providers argue that Congress intended to incorporate $1905 into exemption (h) (3) of the FOIA, which exempts from disclosure information otherwise exempted by statute. Although it seems fairly clear that Congress has not intended to include such a broad and general statute as $1905 in that exemption (see H. Rep. No. 94-880, 94th Cong., 2nd Sess., Part I. 23 (1976)), a clarifying statement would be helpful. Second, information providers argue that § 1905 is a broad statute and encompasses a great deal of the information which is provided to the government. In fact, substantial evidence exists that § 1905 was intended to be quite restrictive. A cogent argument for that view is made in Clement, "The Rights of Submitters to Prevent Agency Disclosure of Confidential Business Information: The Reverse Freedom of Information Lawsuit", 55 Texas Law Review 587 (March 1977), at 605-626. A clear restriction of § 1905 to its intended purpose would reduce much of the reverse FOIA litigation. Clarification to show that statistics on the EEO-1 form are not within the intended scope of § 1905 would be particularly helpful to organizations like D.C. NOW. Further, it would help carry out the important national purposes of furthering equal employment opportunity. 5. Notice to information requesters that reverse FOIA suit has been filed. No systematic procedure exists for assuring that agencies notify information requesters when reverse-FOIA suits affecting their requests are filed. In the case of D.C. NOW v. Social Security Administration, supra, D.C. NOW was not notified during the pendency of its request when one of the companies about which it was seeking information filed a suit and a request for temporary restraining order in New York. Without such notice, a requester cannot assess its interests or determine whether to intervene in the suit or rely on the government to protect its interests. In short, such notice is essential to the information requester in its attempts to obtain the information. Provision should be made for such notice to be given by the agency holding the information. Finally, a number of other issues arising in conjunction with reverse FOIA suits are explored in two thoughtful law review articles, to which we invite the attention of this subcommittee. The articles are Clement, "The Rights of Submitters", supra, and Campbell, "The Reverse Freedom of Information Suit: The Need for Congressional Action" (to be published). Although we do not agree with every suggestion in each of the articles, they outline a number of provisions which, if incorporated into statutes, would alleviate the more serious delays and expense caused by reverse-FOIA cases, while preserving a fair opportunity for the information provider to protect any legitimate interest in document confidentiality. CONCLUSION Thank you for the opportunity to present testimony on this important subject, and for your attention. We would be pleased to provide any further information which the subcommittee would find helpful in its oversight of the Freedom of Information Act. Senator ABOUREZK. The final witness of the day is Charles Stewart. I am sorry we kept you waiting so long. Mr. STEWART. Mr. Chairman, I have cut through my prepared statement. I assume it will be put in the record. Senator ABOUREZK. It certainly will, sir. TESTIMONY OF CHARLES W. STEWART, PRESIDENT, MACHINERY & ALLIED PRODUCTS INSTITUTE, ACCOMPANIED BY CHARLES I. DERR AND PAUL J. SEIDMAN Mr. STEWART. Thank you, Mr. Chairman. I would like to have my prepared statement inserted into the record.1 In addition, I would like to have in the record a letter which we addressed to the Attorney General, dated May 27, 1977, in connection with the matter of notice to the supplier of information when an FOIA request is made." I also have with me a limited analysis of the newly proposed DOD regulations amending prior regulations. I would like to have our memorandum on that in the record because I think it discusses some of the broader implications. Finally, when our statement to DOD is submitted as to its proposed amendments to their FOIA regulations, the MAPI commentary will be furnished for your record. 1 See p. 45 of hearing text. |