November 12, 1981
Page Seven

7. S. 1751 does not provide for any effective date of the Act. It should be made clear that the Act should apply to all requests submitted after the effective date of the Act for disclosure of all existing and future agency records, and not just agency records created after the effective date of the Act.

Thank you for this opportunity to present Atlantic Richfield's comments on this much-needed legislation. It is Atlantic Richfield's strong hope that The Freedom of Information Act Improvements Act of 1981 will be enacted (with the additions and changes which I have proposed) during the 97th Congress.

Very truly yours,

Edward E. Vaill

Edward E. Vaill

EEV: acg

I want to take this opportunity, on behalf of the U.S. Chamber of Commerce, to recognize the leadership role you have assumed in promoting needed improvements in the Freedom of Information Act (FOIA). We believe, as you do, that reform will result from a synthesis of several proposals. Certainly your subcommittee is on the right track toward reform.

reform.

The following basic requirements are essential to any FOIA

1. A uniform set of procedures should be provided, to be
followed by all agencies.

2.

3.

4.

5.

A formal notice of any FOI request for his materials should
be provided to the original submitter.

A submitter should be entitled to procedural safeguards
upon his formal objection to disclosure of the sought-after
material.

A submitter should be entitled to a de novo review in court
of his claim upon an adverse agency or department finding.

Since the "substantial competitive harm test" has proved
unsatisfactory, a submitter should be able to prevent disclosure
through a showing that disclosure may impair legitimate com-
mercial, financial, business or research interest, unless
there is an overriding public interest need for disclosure
to protect public health or safety.

These requirements treat most of the major problems of
the Act as it directly affects the business community. I will
appreciate your consideration of our views and I request that this
letter be included in the hearings record.

Cordially,

Hitta Dair

Hilton Davis

In connection with my testimony on October 15, 1981 before your Subcommittee on the Constitution regarding the potential restructuring of the Freedom of Information Act (the "FOIA"), 5 U.S.C. § 551 et seq., I respectfully request to supplement the Subcommittee's official record with this letter which shall specifically comment on two of the proposed amendments to the FOIA offered by the Department of Justice (the "DOJ bill").

Both amendments involve Section 2 (b) of the DOJ bill which purport to amend 5 U.S.C. § 552 (a) (3) by, first, precluding a request for information under the FOIA for records "relating to the subject matter of any ongoing judicial or adjudicatory administrative proceeding (civil or criminal) to which the requester, or any person upon whose behalf the requester acts in making the request, is a party" and, second, requiring an agency to disclose information only if the requester (as defined by Section 9 of the DOJ bill) is a "United States person." In this latter respect, a United States person (as defined by Section 9 of the DOJ bill) would include a citizen of the United States or an alien lawfully admitted for permanent residence, but not a foreign corporation or nation or its duly authorized representative.

As now enacted and implemented, the FOIA contains neither amendment because § 552 (a) (3) clearly and simply states that information, if not exempt, be made "promptly available to any person. As stated in my prior testimony and for the reasons set forth below, our experiences with the FOIA have convinced us that a strong, viable and responsible FOIA is absolutely essential for corporate or individual persons who deal with the Government on a regular and continuing basis.

...

We note that the first amendment would be applicable regardless of whether the government was a party to the "ongoing proceeding." Moreover, it would preclude the disclosure of otherwise unexempted and discloseable information solely because the subject matter of the request and the proceeding were related, if the requester or its principal was a party to the proceeding.

The DOJ

As pointed out in my testimony, the use of emetine as an aversive conditioning agent in the alcoholism treatment programs of one of our clients, was the object of an initially secretive investigation by the then Department of Health, Education and Welfare. After the investigation became known and after the responsible government officials were unresponsive to our appropriate requests for information as counsel through normal channels, the use of the FOIA as a discovery tool was the sole alternative, save for costly and protracted litigation. The information subsequently disclosed that the Government-financed investigation was an effort to discredit an effective alcoholism treatment program, as I have stated, by certain unfortunately prejudiced and myopic bureaucrats. bill, as it pertains to the first amendment, could realistically have precluded the disclosure of highly relevant and warranted information, particularly if the investigation remained secretive while advancing to, or declared to be, a "judicial or adjudicatory administrative proceeding." Since the agencies would be left to promulgate individual and possibly inconsistent regulations defining such terms as "relating", "subject matter" and "ongoing judicial or adjudicatory administrative proceeding," abuses such as I have related would proceed unchecked and undisclosed under the DOJ bill. We believe that the potential abuse of the FOIA has been thoughtfully addressed in your bill, S. 1730, under, for example, Sections 3, 4 and 6.

The second amendment clearly restricts the class of "persons" eligible to make use of the FOIA. This amendment seeks to render ineligible, for example, a foreign corporation currently doing business in the United States. Such ineligibility would extend to its employees, agents or counsel. Quite possibly a domestic affiliate or subsidiary, or counsel thereto, of a foreign corporation would likewise be ineligible if any agency believes that the requester is acting on behalf of an ineligible requester. The rationale essentially advanced by DOJ in support of this amendment concerns the use of the information contrary to the national interest. We would point out that if an eligible person made a request identical to one of an ineligible person, the information would nonetheless be publicly disclosed, if not otherwise exempt under $ 552 (b) of the FOIA. Further, it would appear that under the DOJ bill, for example, a foreign corporation properly marketing pharmaceuticals approved by the Food and Drug Administration (FDA) would be barred from determining how the FDA was treating it juxtaposed with domestic corporations, although nonetheless fully obligated to comply with regulations of FDA.

We wish to express our appreciation for the opportunity to make these additional comments on the FOIA and respectfully ask that this letter be made part of the official record of the hearings on this matter.

DAWSON, RIDDELL, FOX, HOLROYD & WILSON, P. C.

It is my understanding that your Subcommittee on the Constitution, Judiciary Committee is studying the need for revision of the Freedom of Information Act. In this connection, permit me to call your attention to an area I believe needs change for the protection of U.S. interests as well as individual interests.

To my astonishment, I recently discovered that U.S.
Government files are open to inspection by foreign govern-
ments, which do not open their files to citizens of this
country. In my case, as an attorney I had furnished the
appropriate department of the U.S. Government with informa-
tion bearing on claims of my client, a U.S. corporation
against a foreign government in complete candor and frank-
ness. The department had considered this claim adversely
for a period of some time, during which a number of adverse
reports totally incorrect and misleading were prepared, al-
though they are now discredited.

All of this material, with the exception of so-
called classified items, which are a matter of personal
judgment or can be declassified, were given to the foreign
government involved without notice to me until after the fact.
I do not believe that the Freedom of Information Act was in-
tended to apply to adversary legal actions either between
citizens of the U.S. or between U.S. citizens and a foreign
government. The result is to place the U.S. attorney who
has sought the assistance of his Government in a most un-
favorable position.

It is my opinion the Act should be changed to prevent such a situation as it affects foreign governments from inspection of U.S. Government files and that anyone directly or indirectly assisting such foreign government should be guilty of a crime with appropriate punishment. This prohibition should apply to all items, classified or unclassified, in such circumstances.

Very truly yours,

and d. Haw

Donald S. Dawson

DSD/1hm