Date: Wed, 15 Feb 1995 01:46:34 -0500
Message-Id: <Pine.3.85.9502150152.A8885-0100000@essential>
From: James Love <love@Essential.ORG>
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
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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

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