Date: Wed, 15 Feb 1995 01:46:34 -0500 Message-Id: From: James Love Subject: Internet Community KO's Anti-FOIA Provision This is a pretty detailed description of what happened last week. I apologize for its length. The good stuff about the mark-up is toward the end. The victory, on this day, was pretty complete. jamie Distributed to TAP-INFO, a free Internet Distribution List (subscription requests to listproc@tap.org) TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE CROWN JEWELS CAMPAIGN - Juris, Legal Information February 14, 1995 HOW THE INTERNET COMMUNITY DEFEATED AN ANTI-FOIA PROVISION IN THE PAPERWORK REDUCTION ACT James Love, TAP (202/387-8030; love@tap.org) February 14, 1995 INTRODUCTION On Monday, February 6, Congress introduced legislation (HR 830), as part of the House Republican's "Contract for America," which contained several provisions that would curtail public access to government information, including a special interest provision inserted on behalf of West Publishing. By Friday, February 10, Congress had held one hearing and two mark-up sessions and reported the bill out of the full committee for floor action. However, between Monday and Friday messages circulated on the Internet generated broad based opposition to the provision, and the "West Provision" in HR 830 was struck from the bill after a most dramatic and heated debate. This is the story of what happened, and how the Internet community influenced the outcome of key right-to-know measure. BACKGROUND - the PAPERWORK REDUCTION ACT In 1980, a democratic Congress and Executive branch passed the first "Paperwork Reduction Act," known as the PRA, to create a mechanism in the Office of Management and Budget (OMB) to reduce regulatory burdens. When Reagan came to power in 1981 with a republican Senate, OMB created an Office of Information and Regulatory Affairs (OIRA), which had the joint mission of coordinating federal information policies and overseeing regulatory relief. This seemingly incongruent fit was justified on the basis that many regulatory programs involved collections of "information" from businesses, non-profits and individuals, or required companies to make disclosures of "information" to consumers or workers. The early Reagan appointees to this office included Jim Miller, Harvard faculty members Christopher DeMuth (now President of American Enterprise Institute) and Doug Gingsburg (now a federal judge), and Wendy Gramm, the wife of Senator Phil Gramm. These OIRA "Administrators" used the "I" in OIRA as a mandate to slash government publications (about 25 percent) and push a very aggressive privatization agenda for the dissemination of government information, as reflected in the controversial 1985 OMB Circular A-130 (drafted by a former OIRA employee named Tim Sprehe), which told federal agencies to use the "maximum feasible reliance" upon the private sector, when disseminating government information. OIRA quickly became the hero of the large commercial data vendors such as DIALOG, West Publishing, McGraw-Hill, Dun and Bradstreet, and LEXIS, and the bane of the right-to-know community. The American Library Association (ALA) published regular reports of the OIRA outrages through its highly acclaimed "Less Access to Less Information" series. In the late 1980s, the statutory authorization for the PRA expired, and there has been a fight over the reauthorization of the measure ever since, in part because the regulatory oversight issues (the "R" in OIRA) involve numerous controversies involving powerful constituencies in labor, environmental protection and business. However, the information policy issues, long the step child of OIRA, have also been contentious. The large commercial data vendors, through the Information Industry Association (IIA), have sought language that would prohibit federal agencies from creating new information products when the private sector already had similar products on the market. This provision surfaced in many different ways, and was bitterly debated in a 1990 version of the bill which ultimately failed (the failure was due largely to the regulatory parts of the legislation). AGREEMENT ON PRICING There were, however, some areas where the right-to-know community and the data vendors were in agreement. One was a provision in the legislation that would limit the prices for government information products and services to the marginal (or incremental) costs of dissemination, and outlaw royalties and restrictions on the redissemination of government information. By late 1994 and early 1995 the debate over the dissemination sections in the PRA reauthorization appeared to have been resolved. The Senate version of the bill (S. 244) contained dissemination sections that seemed to reflect a compromise between the two sides, and in TAP's view, would enhance public access to government information. TAP was primarily interested in two issues: - splitting the "I" and the "R" functions of OIRA into two separate offices, so that Information Policy would no longer be the "step-child" to disputes over regulatory policy, and - creating citizen "feedback" mechanisms, that would use the new information technologies to give citizens greater "real time" opportunities to criticize and debate government actions. HR 830 -- the "West Provision" Surfaces The Senate had been the principle player in the PRA reauthorization debate, and in January a bill (S. 244) sponsored by Democrat Sam Nunn was reported out of the Senate Committee on Governmental Affairs for Floor action. As noted, the dissemination sections in S. 244, while not ideal, were considered quite good, particularly as compared to earlier pro- privatization measures pushed by the large data vendors. The republicans in the House made the PRA reauthorization part of its "Contract for America," which virtually guaranteed passage in the House. The republicans decided to break out the PRA reauthorization into a new bill, which would go through the House Committee on Reform and Oversight, chaired by Rep. William Clinger (R-PA). A "Chairman's Mark" of the new bill was circulated among legislative staff and the better connected lobbyists in late January. On February 3, a Senate staffer faxed a copy of Sec. 3518 of the draft bill to Patrice McDermott of OMB Watch, with a message indicating that a provision seemed to benefit West Publishing in several disputes that had arisen over access to court decisions. Patrice faxed a copy to me at home Friday evening, which I looked at briefly, but didn't study until Monday morning, February 6, when I discovered on the last page of the fax, that a new subsection (f) had been added which had the effect of completely eliminating the public's rights under the Freedom of Information Act (FOIA) to any government information produced by a private contractor. The new provision [Sec. 3518(f)] preempted all other federal law, and provided that if any person "adds value" to public information, the federal government would not have "any right to obtain, collect, acquire, disseminate, use or convert," the data, database or information product, or "any method used by the person to identify such resulting data, databases or information product," except "under terms that are expressly agreed to by such person." The provision was unbelievably broad. It did not distinguish between persons who "added value" on their own initative and government contractors, and it severely limited the government's rights to use, disseminate or even point to the resulting records or data. Several congressional committee staff who were contacted said that West Publishing had sought the provision, which they believed had been inserted by the Committee's Chief Counsel, Kevin Sabo, at the behest of Rep. Gil Gutknecht, a republican freshman from Minnesota. (Gutknecht later denied any involvement). West is the only comprehensive publisher of federal and state court decisions, and the firm asserts a copyright on the "corrections" to published opinions and the "page numbers" where the opinions appear. The West monopoly, which has resulted in very high prices for basic legal information, has been under increasing attack from a variety of fronts. The new subsection (f) would have specifically benefited West in the following ways: - West was involved in a FOIA case with Tax Analysts, a Virginia publisher that is seeking access to the Department of Justice JURIS database (which contains more than a century of federal court decisions). West, which had received $3 million as one of several contractors on JURIS, was arguing in court that the database wasn't subject to FOIA. - West was being sued by Hyperlaw, a small CD-ROM publisher in New York City, over the company's assertions of copyright over the "corrected" text of judicial opinions and the "page numbers" in the West bound volumes of opinions which were required by courts as a citation to case law. - West was opposed to a Department of Justice Proposal to create a public database of court decisions (a proposal that DOJ had backed away from in late November), or a new non- West public domain system of citation for case law. However, while the "West Provision," of HR 830 did a lot for West, it was drafted to apply to most of the federal government, including all executive branch agencies, independent regulatory bodies, the White House and government sponsored corporations. Taken as a whole, it was the most serious threat to the public right-to-know since the FOIA was enacted. We were told that the bill would be introduced that night (monday), with hearings scheduled for Tuesday, and Subcommittee mark-up on Wednesday or Thursday and full committee mark-up on Friday. Committee staffers from both parties said that the chances of knocking the provision out of the bill were virtually zero, since it was part of the republican's "Contract," and the House Reform and Oversight committee was highly disciplined, with all republican members voting in a block to defeat any amendment to bills. By Monday night, TAP issued its first detailed alert on the bill, which did not yet have a number. The bill was referred to the subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, which was Chaired by Rep. David McIntosh (R-IN), who had formerly worked for Vice-President Quayle's Competitiveness Council, which had used OIRA to weaken or eliminate many environmental, health or safety regulations. Hearings were held tuesday morning, and by Wednesday the bill had been reported out of subcommittee, with Section 3518(f) intact. TAP and others were experiencing difficulty in finding copies of the legislation. Indeed, we found a draft paper copy of the legislation Wednesday morning, after the subcommittee mark-up. The bill wasn't on THOMAS.LOC.GOV, WWW.HOUSE.GOV or GOPHER.HOUSE.GOV until later that day, and there were some differences between the paper and the electronic copies of the legislation. Meanwhile, TAP posted several Internet updates on the West Provision, and Congress began to receive telephone calls and faxes from constituents and citizen, business and professional groups who opposed it. The American Library Association and EFF both issued Internet notes about the provision, and hundreds of individual activists wrote or forwarded messages about the controversy to different Internet lists. WEST MOUNTS COUNTERATTACK West countered by hiring at least four separate law and public relations firms to lobby on its behalf, including one that featured former Minnesota republican congressman Vin Weber (a "hot" property for organizations anxious to establish connections with the new Republican congress). Moreover, several employees or agents for West began posting messages in support of the amendment on various Internet lists. In some cases, the West forces did not identify their affiliations with the company, but were "outed" by other Internet users. Such was the case, for example, when Michael Trittipo, a lawyer for Schatz, Paquin (West's principle outside legal counsel) posted a message about the PRA criticizing a TAP alert on law-lib, and in a reply someone added "West's TRITTIPO lobbies for" to the header. West also rallied some data vendor allies who hoped to benefit from the legislation, including such companies as Knight- Ridder's DIALOG, the Washington Post's LEGI-SLATE subsidiary (which sells "THOMAS" like access to Congressional information), Commerce Clearing House (CCH), and Dun and Bradstreet. On Wednesday, LEXIS, the operator of the SEC's EDGAR database system, indicated that it would also support the West Provision. THE TIDE TURNS The Wall Street Journal report on the Wednesday mark-up had two paragraph describing West's success in getting the provision in the bill, indicating that it appeared to help West with two pending law suits. By Thursday it was clear the tide was turning against West and the other large data vendors. Hill staffers reported that they were hearing from an outraged public over the provision, and Clinger's staff began to consider alternative language. By Thursday night, I received my first telephone call from the Majority (republican) staff since the dispute began, simply informing me that the old language was out, and nothing would be done to impact FOIA. The new "substitute" language was much better than the original language, but it was still pretty bad. West and the other vendors wanted a provision that would prohibit an agency from creating a new information product if similar private products "reasonably" achieved dissemination objectives, and another section that appeared to create some new vague property right (something different from rights under copyright law) in government data, which would require government agencies to compensate companies for "value added" to government information. We told the Committee that we opposed the new language, and asked that the entire subsection (f) be deleted. PRICING ISSUE Virtually lost in the flurry of activity over the West provision was a new "pricing waiver." As noted above, vendors and right-to-know groups had agreed upon language to limit prices for government information to no more than dissemination cost. Suddenly, in HR 830 appeared a new provision, 3506(d)(1)(D), which allowed agencies to waive all limits on prices after a notice in the federal register. According to Committee staff, this provision was added at the request of Sally Katzen, the Clinton Administration head of OIRA. Both TAP and the American Library Association issued notes about the pricing provision in Internet notes, but most of the public's attention was focused on the West Provision's impact on FOIA. HR 830 -- FULL COMMITTEE NIXES WEST PROVISION ON FRIDAY, FEB. 10 The full committee of House Reform and Oversight held a mark-up on HR 830 a little after its scheduled start of 9am on Friday, Feb. 10. There are 50 members of the full Committee, and because of the new republican rules that outlaw proxy voting, most of the members were present. Rep. Clinger's opening statement revealed the impact of the Internet traffic over the week. After briefly describing the bill, Clinger told a packed room that the controversial "West Provision" in HR 830 would be modified, in order to address the public's concerns about the Freedom of Information Act (FOIA), and that his staff had prepared substitute language which corrected some defects in the earlier draft of the provision. Most of us were startled to hear the Committee Chair refer to a section of his own bill as the "West Provision." Almost immediately the Democratic minority began to assign the provision as a special interest provision for West Publishing. Representative Paul Kanjorski (D-PA) demanded to know who in the Majority was responsible for the provision, and did not receive an answer. Representative Thomas Davis (R-VA) was recognized, and then introduced an amendment to replace the old Subsection (f) with new language, and Davis tried to respond to the democratic complaints. Davis said much of the controversy was due to misinformation spread on the Internet by a "Ralph Nader" group, including the assertion that the provision was put in the bill by Rep. Gil Gutknecht, which Rep. Gutknecht had denied. (TAP had reprinted a letter from a lawyer for Tax Analysts that identified Gutknecht as the sponsor). Davis said the new language would address concerns over FOIA, and that the bill had been had been cleared by OMB. Davis was then interrupted by Rep. John Spratt, Jr. (D-SC), who held up a letter from the Times-Mirror Company, expressing opposition to the West Provision, and telling the Committee the matter should be referred to the Judiciary Committee, which has jurisdiction over copyrights and other intellectual property rights. Kanjorski (D-PA) held up another letter from the Department of Justice (DOJ), expressing opposition to the provision. Congressman Frank Mascara (D-PA) read sections from Thursday's Wall Street Journal story (which reported the West lobbying and the impact of the section on the West lawsuits) into the record, and denounced the republicans for putting a special interest provision in bill. At one point either Davis or McIntosh (R-IN) tried to blunt the talk of the bill primarily benefiting West by pointing out that the provision had gained support from several large data vendors, including LEGI-SLATE (owned by the Washington Post), DIALOG (Owned by Knight-Ritter), Dun and Bradstreet and Commerce Clearing House (CCH), and that they had added language (apparently that morning) which said the provision would not apply to any outstanding law suits. This simply provoked the democrats to remark that it appeared as though several of the large vendors wanted to feed at the trough, making the provision look worse rather than better. The most bitter exchanges concerned the questions about the sponsor of the provision. Kanjorski was relentless in his attempts to get the republicans to identify the sponsor of the provision, and all he could get was an assertion that it had been put in the bill by Committee staffer Kevin Sabo, acting on his own. Kanjorski and other democrats exploded at this explanation, and asked if the Chairman could identify other special interest provisions put in the bill by Committee staff. Former Quayle staffer, McIntosh (R-IN), called the democrats inquiry into the provision's sponsor "McCarthyism," but the senior democrats on the panel said that they had never seen an instance were no member of a committee would take responsibility for a provision, and the exchanges intensified. At one point Representative Chaka Fattah (D-PA), who represents North Philadelphia, got a huge laugh when he observed that they seemed to be having trouble establishing the paternity of the provision. Representative Spratt (D-SC) then ripped up the Clinger/Davis substitute language, asking if it would allow West to sue if the government tried to create a new Internet based dissemination system for court decisions, and several pointed questions that no one would answer regarding who would determine the economic value of this new property right, how much it would cost the taxpayer, and who would administer it. Finally, Representative Constance Morella (R-MD), a republican member who represents a district with many new technology firms, spoke against the provision, diplomatically suggesting to the Chair that it appeared to be a matter for the Judiciary Committee, which handles copyright issues, and asked if it could be deleted from the bill entirely. With bedlam breaking out, Rep. Clinger made one last attempt to save the provision. He told the Committee that he recognized that members had serious problems with the language, but that he wanted to adopt the substitute language, hold a hearing the following Wednesday, and prepare a floor amendment that would repair any deficiencies in the language. Morella agreed to proceed, but Rep. Edolphus Towns (D-NY) objected, saying that Clinger had it backwards, since Congress is supposed to know what it is doing before it votes, not afterwards. Henry Waxman (D-CA) then jumped in with words to the same effect. Apparently, while the democrats where hammering the majority, republicans support for the provision was evaporating. Few republican members even knew what the provision was before they attended the Friday mark-up. As they began the session several were wading through dozens of faxes and notes from constituents who opposed the provision. To make matters worse, no one would admit to having sponsored the provision, and no one seemed to know what it did. Republicans began coming up to the democrats in the breaks and thanking them for making an issue of the provision. To make matters even worse for West, one republican staff member had apparently picked up a story from a Minnesota Newspaper off the Internet, which detailed Vance Opperman's (the President of West) great fundraising exploits for the Democratic National Committee. Looking at the Opperman story, the rank and file republicans began to ask Clinger in the breaks, "why are we doing this?" Suddenly the impossible became possible, and the Committee adopted without objection an amendment by the democrat Kanjorski that struck the entire provision. Clinger announced that he was holding a hearing the following Wednesday to address the issue, with plans to offer a floor amendment. But by Monday, the hearing was re-scheduled twice then finally cancelled altogether, and Clinger announced that the entire matter would be referred to the Subcommittee on Government Management, Information, and Technology (202/225-5147), Chaired by Steve Horn (R-CA). BAD PRICING PROVISION REMAINS IN BILL In all the fireworks over the West Provision a number of other important provisions in the PRA have not received enough attention. Perhaps most importantly, the "pricing waiver" (Sec. 3506(d)(1)(D), HR 830) survived, as an amendment by Representative Major Owens (D-NY) was apparently tabled on procedural grounds. We do, however, expect to see some action on this soon, which we will report on tap-info. THE AFTERMATH OF THE WEST PROVISION AND ACCESS TO LEGAL INFORMATION Without a doubt, the firestorm of opposition and very public defeat of the West Provision was an extraordinary reversal for West Publishing, long thought to be virtually invincible in the halls of Congress because of Vance Opperman's legendary fundraising activities for its members. Not only was the provision removed from the fast tracked HR 830, but the defeat came after a lengthy and dramatic debate that will frame the issue for 50 members of congress, many of them newly elected. Never before had the large data vendors lost such a clear vote to the right-to-know community, and the fact that it happened before a republican controlled committee illustrates how much this debate has changed in the last four years. Much now will depend upon the development of a more proactive legislative strategy. It isn't enough to fight off bad provisions such as the West Provision, we have to begin to frame a positive solution to the public's need to have better access to government information, including information from the courts. I would like to thank everyone who was part of this, including TAP's Ned Daly and Michael Ward, who put in more than a few extra hours last week. jamie love (love@tap.org) Appendix Members of the House Subcommittee on Government Management, Information, and Technology, Room B-373, Rayburn Office Building, 202/225-5147 Phone Fax Stephen Horn (R-CA) 225-6676 226-1012 Michael Flanagan (R-IL) 225-4061 225-3128 Peter Blute (R-MA) 225-6101 225-2217 Thomas Davis (R-VA) 225-1492 225-3071 Jon Fox (R-PA) 225-6111 225-3155 Randy Tate (R-WA) 225-8901 225-3484 Joe Scarborough (R-FL) 225-4136 225-3414 Charles Bass (R-NH) 225-5206 225-2946 Carolyn Maloney (D-NY) 225-7944 225-4709 Major Owens (D-NY) 225-6231 226-0112 Frank Mascara (D-PA) 225-4665 225-3377 Robert Wise, Jr. (D-WV) 225-2711 225-7856 John Spratt, Jr. (D-SC) 225-5501 225-0464 Paul Kanjorski (D-PA) 225-6511 225-0764 --------------------------------------------------------------------- TAP-INFO is an Internet Distribution List provided by the Taxpayer Assets Project (TAP). 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