FOIA Update: New FOIA Legislation Proposed to Promote U.S. Competitiveness

January 1, 1988

FOIA Update
Vol. IX, No. 1
1988


New FOIA Legislation Proposed to Promote U.S. Competitiveness

A new Freedom of Information Act legislative proposal, one aimed at obtaining special protection for commercially valuable scientific and technical information generated within government laboratories, has been put forward by the Administration.

Part of a recently proposed legislative package entitled the "Superconductivity Competitiveness Act of 1988," this FOIA provision would take the form of an Exemption 3 statute designed to afford federal agencies the authority to withhold government-generated data regarding such critical technologies as superconductivity where FOIA disclosure could harm the economic competitiveness of the United States. Recent scientific breakthroughs in the field of superconductivity -- the phenomenon of electrical conduction without resistance -- have heightened concern over protecting United States technology in such commercially valuable research fields.

The proposed legislation, which has not yet been formally introduced in Congress, is being advanced by the White House's Office of Science and Technology Policy ("OSTP"), in furtherance of an eleven-point program announced by the President last summer to promote U.S. competitiveness in superconductivity research and commercialization. The OSTP Director, White House Science Advisor Dr. William R. Graham, Jr., already has given congressional testimony supporting the need for greater FOIA protection in this area.

The proposed Exemption 3 provision, included under the heading "Scientific and Technical Information Protection," seeks to establish special FOIA protection for any scientific or technical information that (1) "was generated in a laboratory . . . owned and operated, in whole or in part, by the Federal Government," (2) "has commercial value," and (3) if disclosed under the FOIA, "could be reasonably expected to cause harm to the economic competitiveness of the United States."

As is explained in the section-by-section analysis accompanying the legislative proposal, this provision "is intended to promote United States competitiveness in superconductivity and other commercial technologies resulting from recent scientific advances by enabling agencies to withhold commercially valuable information when disclosure could adversely affect United States economic competitiveness." It "thus would remove the risk that federal agencies would be required to publicly disclose commercially valuable scientific or technical information under the Freedom of Information Act" that is generated by the federal government.

Although this proposed FOIA legislation is more narrowly focused than many previous FOIA amendment proposals, it already has been the subject of some controversy and critical attention. There seems to be considerable disagreement within the academic community as to whether the data protection sought through the proposal would actually promote U.S. research efforts and competitiveness in advanced technological fields. Some academics have expressed the concern that restrictions on the dissemination of valuable technology could have the effect of impeding research efforts.

Such concerns surfaced at a recent Senate subcommittee hearing held on the general subject of "information policy and competitiveness." On March 16, the Senate Judiciary Committee's Subcommittee on Technology and the Law, chaired by Sen. Patrick Leahy (D-Vt.), held a hearing on that subject that, as it turned out, provided a timely forum for the presentation of such concerns about the superconductivity proposal. Several members of the academic community testified at the hearing against further restrictions on scientific and technical information flow. Senator Leahy expressed similar concerns.

On behalf of the Administration, Dr. Graham, as Science Advisor to the President, strongly advocated the position that compulsory disclosure of critical technology under the FOIA is not necessary to promote research efforts and that it can be harmful to the economic position of the United States. Although he was not yet testifying specifically on the superconductivity proposal, Dr. Graham stressed the need for such special protection under the FOIA. In response to questioning by Sen. Leahy, he emphasized that the existing protection of commercially valuable information provided by Exemption 4 of the FOIA simply is not available for such data generated within federal agencies.

Representatives of the Department of Justice's Antitrust Division and the Office of Information and Privacy have been providing technical assistance in support of the Office of Science and Technology Policy's legislative initiative.

This FOIA legislative proposal takes a somewhat different approach from another commercial-information proposal, H.R. 1155, which was introduced last year as part of the Administration's trade legislation proposal and which would have achieved similar results by direct amendment of Exemption 4. That bill, which was included by the White House's Office of U.S. Trade Representative as part of its omnibus trade legislation package last year, did not advance to the formal hearing stage when it was introduced in the first session of the 100th Congress.


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