The following statements are in response to the two questions posed to me in Senator Sasser's letter of November 21, 1980. These questions emanate from the testimony that I gave before your subcommittee on November 18, 1980. 1. In response to your first question, NAM, as a voluntary trade association, is not in the habit of discouraging or encouraging its members from engaging in various activities. Indeed, I believe that you will find that most, if not all, trade associations are unwilling to give such instructions to their members, and only advise them of the steps that must be taken in order to achieve a particular legislative goal. You should be aware, however, that the members of this office, when given an opportunity, are not hesitant in advising our members as to what they perceive to be the Act's true intent and purpose; this perception was noted in our testimony. While certainly not "official" in the normal sense of the word, such advice represents the position of the NAM. We can only hope that our members will follow our lead.

2.

Our feeling that "the FOIA has been used to gain
information regarding the activities and identities of
individuals in the federal law enforcement and intelligence
communities," does not arise from any study or original
research by the NAM or, to our knowledge, any other
organization or individual. This statement was based on
news reports of various incidents that have occurred in
the last several years. As a further example, while NAM
Assistant General Counsel Gary D. Lipkin was employed in
the Freedom of Information and Privacy Branch of the U.S.
Customs Service in 1977, he reviewed many requests from

1776 F Street, N.W. Washington, D.C. 20006 (202) 626-3700

Dr. John Callahan

2

December 3, 1980

inmates in federal prisons seeking the documents that
contained the names of the informers and federal law
enforcement officials that had been instrumental in
their capture.
I believe that these instances are the
types of incidents that would lead a reasonable man to
believe that attempts are made to use the FOIA for
purposes other than those for which it was drafted.

I trust that the above satisfactorily answers your questions. would again like to thank you for inviting us to comment and testify on this important matter.

CC

Sincerely yours,

Tumus

Thomas J. Houser

We

Senator SASSER. Our next witnesses this morning are Mr. Jack Landau, director, the Reporters Committee for Freedom of the Press, and Mr. K. Prescott Low, the president and publisher, Quincy, Mass., Patriot-Ledger, representing the American Newspaper Publishers Association.

Gentlemen, if you would come forward and take your place at the witness stand.

Good morning, and for the purpose of the record, would you be kind enough to introduce your colleague there?

TESTIMONY OF K. PRESCOTT LOW, PRESIDENT AND PUBLISHER, QUINCY, MASS., PATRIOT-LEDGER, REPRESENTING THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION; ACCOMPANIED BY JACQUELYN JACKSON, OF THE ANPA, AND ARTHUR SACKLER, GENERAL COUNSEL OF THE NATIONAL NEWSPAPERS ASSOCIATION; AND JACK C. LANDAU, DIRECTOR, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

Mr. Low. Yes. I have with me two colleagues. On my right, your left, Jacquelyn Jackson, of the ANPA, American Newspaper Publishers Association, and on the far left is Arthur Sackler, general counsel of the National Newspapers Association.

Senator SASSER. Why don't you lead off for us, Mr. Landau?

Mr. LANDAU. If it is all right with you, Senator, I am used to publishers going first. [Laughter.]

Senator SASSER. They sign the checks, don't they? [Laughter.]
All right, Mr. Low, go ahead.

Mr. Low. It is sort of like the infantry lieutenant who said: "Follow me, I will be right behind you," as they went over the hill.

We welcome this opportunity to discuss with your subcommittee this morning the Federal Freedom of Information Act and its relationship to newspapers.

My name is K. Prescott Low, and I am publisher of the Quincy Patriot-Ledger in Quincy, Mass.

I will summarize my testimony, but I do request a full copy of my text be submitted for the record.

Senator SASSER. It will be inserted at the conclusion of your testimony.

Mr. Low. I am here today representing the American Newspaper Publishers Association. ANPA is an international trade association with 1,400 member newspapers representing more than 90 percent of the daily and Sunday circulation in the country. Many nondaily newspapers also are members.

I also represent the National Newspapers Association which has authorized me to say that they also endorse this testimony and will submit written testimony to you later in the week.

The National Newspapers Association is a trade association representing about 5,500 small daily newspapers in the United States. Senator Sasser, we would like to commend you for your ongoing interest and concern with the implementaion of the Freedom of Information Act. We feel strongly that this is a crucial time in the 14-year history

of the act. It is a time when the Federal Government must review its firm commitment to a basic concept of freedom of information; that is, the concept that Government activity in most cases is public activity. Events of the past year have not reinforced this commitment to

openness.

During the 96th Congress, there have been several attempts to exempt legislatively entire Government agencies from the coverage of the act. Two of these, the CIA and the Federal Bureau of Investigation are the recipients of the largest number of Freedom of Information Act requests.

In addition, the amount of information exempted by other statutes which fall within the section B(3) of the act continue to grow. In most cases these statutes have been enacted without benefit of public hearing or debate. No one in the Government appears to be monitoring this proliferation.

Mr. Chairman, ANPA believes there must be a balancing of the Government's need for secrecy and the individual's right to privacy with the public's fundamental right to know. However, we believe that this balancing has been achieved successfully with the nine exemptions that exist in the act.

The Freedom of Information Act was fine-tuned in 1974 and 1976 and with the existing exemption is working today. In addition, we believe that there is no clear case or that no clear case has been made by any Government agency that its operations have been seriously jeopardized because it has been forced to release information under the act's provisions. In short, despite the ever-growing body of complaints about the Freedom of Information Act, by both Government and business, these allegations simply are not substantiated by the record in our view.

Briefly, I wish to summarize our response to the concerns of the committeee as outlined in your letter to me dated November 4, 1980. First, ANPA would support efforts by the Congress to review the B-3 statutes and then to make an informed and public decision on which of these statutes should be incorporated into the existing Freedom of Information Act or if, in fact, some should be repealed.

In any case, in our opinion, such a review and incorporation would underscore the fundamental principle of Government openness far more effectively and dramatically than the series of scattered statutory and regulatory provisions which exist today.

Second, ANPA believes the standardization of agency responses to the Freedom of Information Act requests would be beneficial to all involved parties. The public obviously would benefit from the knowledge that all agencies would respond in a uniform manner and at a uniform cost. Government agencies could also benefit from uniform regulations. Such a uniform approach, however, would be virtually meaningless without some enforcement mechanism to insure compliance.

At your August 19 hearing, Mr. Robert Lewis, of the Society of Professional Journalists, Sigma Delta Chi, recommended a stronger compliance mandate from Congress in the development of a strong watchdog role by the lead Government agency which oversees the act. ANPA concurs with these recommendations. In our opinion, Congress needs to send a mandate to the Justice Department or whatever lead agency is designated by the Government, by the Congress as being

the lead agency in the coming new Administration, that it wants a better job done and that it expects that agency to play a stronger role in implementing the basic concept of public disclosure of Government information.

Finally, we urge the Congress to develop some remedies to change the current emphasis from exemption to disclosure to strengthen the sanctions for noncompliance. Without this, ongoing and excessive litigation and the resultant costs will continue to undermine the act. One newspaper, the Miami Herald, is involved in a case based on initial requests for information from the Small Business Administration in 1978. The Miami Herald initiated the lawsuits in March 1979 and prevailed in a 1-day trial in September 1979. The newspaper moved for The trial judge has yet to award a specific amount, but the attorney's fees to date have reached nearly $45,000.

And the Justice Department has appealed the order to disclosure and this is pending in the U.S. Circuit Court of Appeals in the fifth Circuit. Today, after nearly 2 years and $45,000, the newspaper still does not have the requested information.

In conclusion, I would like to point out that the Freedom of Information was in 1966 and remains today a ringing congressional declaration that the public has a right to know what its Government is doing. This declaration of accessibility must be maintained. We thank you for the opportunity to address this very important issue and we would be pleased to answer any questions you may have.

Senator SASSER. Thank you, Mr. Low. We will hear from Mr. Landau and then get into some questions.

Mr. LANDAU. Thank you very much, Senator. I concur with the thrust of the ANPA and NNA that we have to have a study. We run with SDX, a Freedom of Information Act Service Center mainly designed to help the press and researchers and authors to use the act. As you may know, we were involved with the American Political Science Association and the American Historical Association in the Reporters Committee v. Nixon, which helped to preserve those 42 million documents for the public for generations.

So we have a very practical approach to this act in trying to help reporters and news editors use it on a day-to-day basis. Most of my testimony is designed to pinpoint the problems that I think Congress should study in reviewing the act. The first problem we have come up against is the high search and reproduction fees which are charged on an enormously irregular basis all over the government. I think you are going to have a witness later, Prof. John Bonine, from the University of Oregon, who has done a marvelous study on this.

But we have example after example of high search and reproduction fees. I can give you one example where two identical requests, absoJutely identical. were made to the General Services Administration and one roptred was told it would cost $2,300, the other reported was told it would cost $600, and so forth.

I think that one thing that Congress should do is to look at this problem because while the high search and reproduction fees may not discourage the large metropolitan newspaper or the broadcast network they really do discourage the smaller newspapers, the magazines, the small broadcast station, and so forth, that doesn't want to lay out