confident that OIRA had played a key role in containing the increase in paperwork requirements. Like that individual, I share the opinion that OIRA provides a valuable protection from excessive reporting requirements and that OIRA should continue to be authorized.

It is with this belief that I join with Senator Rudman, the ranking member of the Subcommittee on Government Information and Regulation, in introducing a simple reauthorization of OIRA. I have not seen or heard anything to convince me that the 1986 amendments or the original 1980 Act are not working, and feel that this is the best way to ensure that the current public protection remains intact.

In 1986, similar issues to those facing us today were raised as to the executive branch's use of OIRA in the review of an agency's regulations. The Congress, after hearings, enacted strong, comprehensive provisions. This bill extends those amendments and the original provisions of the Paperwork reduction Act. I believe, on the whole, the Paperwork Reduction Act provides important protections for small Business, State and local governments, and the general public from unnecessary, intrusive and costly Federal paperwork.

It's important to remember how far we have come in the effort to eliminate unnecessary Federal forms and red tape. The Federal Reports Act of 1942, the predecessor to the Paperwork Reduction Act, was enacted when the President and Congress came to recognize that the Federal Government was imposing requirements on the private sector that, in many cases, were counterproductive and costly to the national economy. The '42 Act established for the first time a Federal policy for controlling paperwork. It created a formal mechanism for review and approval of all reporting requirements by the Bureau of the Budget, later OMB.

This Act also had numerous gaps and limitations. It contained no enforcement mechanism to ensure that forms were in fact scrutinized and that those which were unnecessary were eliminated. The Act's scope was unclear in several respects, and it contained explicit exemptions for many kinds of forms, such as tax and financial forms, which constituted over half of the public's reporting burden. Over time, the Act was weakened further by legislative enactments excusing selected categories of forms and reports from control.

Congress began to realize that the existing methods for controlling paperwork were ineffective and in 1974, created through legislation a commission on Federal paperwork. This commission was chaired by Congressman Frank Horton of New York, and included Federal and State Officials and representatives of business labor, and consumer groups. The commission prepared reports covering such issues as tax policy, education and procurement. It made nearly 800 recommendations for reducing federal paperwork. The commission's final report, issued in 1977, found that the total cost of Federal Paperwork might well exceed $100 billion annually, and that a good deal of the cost was unnecessary.

Following the commissions report, the Governmental Affairs Committee held extensive hearings on the paperwork problem which resulted in the passage of the Paperwork Reduction Act of 1980. The Act, for the first time, made sure that all kinds of Federal paperwork had to be scrutinized by Federal Agencies to ensure that duplicative, unnecessary or excessively burdensome forms were eliminated. It required that every Federal Agency, including previously exempted agencies like the IRS and independent regulatory agencies eliminate needless red tape and that all Federal paperwork requests be reconsidered every three years.

Chairman GLENN. Thank you very much gentlemen. We appreciate your being here this morning.

Our next two witnesses are Mr. Jerry Berman, American Civil Liberties Union, and Patricia Wilson Berger, President of the American Library Association.

Mr. Berman, we look forward to your testimony.

TESTIMONY OF JERRY J. BERMAN, AMERICAN CIVIL LIBERTIES UNION 1

1

Mr. BERMAN. Mr. Chairman, on behalf of the ACLU I want to thank you for the opportunity to testify on the public information

dissemination sections of S. 1742. As an organization committed to the public's right to know, we strongly support the dissemination sections of the legislation and join with other public interest organizations and the Information Industry Association in urging that they be enacted into law.

In our view, S. 1742 would establish progressive Federal information dissemination policy for the new era of electronic public information in which we live. From the public interest community to the IIA to the OMB, itself, there is I think a general consensus that current policy is obsolete. The public interest case for this can be briefly stated. Today, unlike when the Paperwork Act was first passed, the Government is increasingly disseminating information in other formats than published. It is disseminating databases through commercial firms, on its own, using new technologies such as the CD Rom technology. And now, equally important, the PC revolution has brought the ability to use electronic information within the reach of all citizens.

In our view, this should enhance the public's right to know, yet over the last several years there are few examples of the Federal Government using its information technology imaginatively to serve democratic ends. One example is the EPA toxic release database which provides toxic release information to citizens on-line. But these examples are few and far between and it is our view that this is directly a result of the law as it now stands.

The Paperwork Reduction Act does set information management goals, but it has been narrowly focused, as Senator Bingaman pointed out, and I think you have, Senator Glenn, also. The laudable goal was to manage information for the Government to make it less costly and more efficient. Under Government circulars, A-130 for example, there was an effort to make information dissemination conform to those purposes. The problem is that there was no underlying or additional commitment to expanding public access to information, and certainly when it came to electronic information the act is really silent. So OMB viewed its role as promoting the dissemination of electronic information, but as a discretionary function, something that they could do and encourage agencies to do, but as a means for saving costs or even earning a profit, rather than maximizing public access to information.

The result has been that agencies have been operating under a policy which discourages the Government from duplicating any private sector information service, even if the private sector information service is priced beyond what citizens can afford. There is no writ like we have under the Freedom of Information Act to develop fee waiver schedules when it is appropriate to ensure Government dissemination.

There has been serious underfunding of the development of critical health and safety databases, and most Government money has been skewed towards the development of commercially viable Government databases such as the SEC EDGAR system.

Mr. Chairman, we believe that if enacted, S. 1742 would establish far-reaching and significant reform in this area. While it would still have the laudable goals of insuring or attempting to minimize the Federal paperwork burden, there is also an effort under this

mation process; to strengthen public access to information; to encourage agencies through guidelines and policy to ensure that public information products in all formats are available on an equitable and equal basis to all persons; and to maximize the timely usefulness and release of information.

In contrast with current law, Federal agencies, pursuant to S. 1742, would not always defer to the private sector in developing public information products. Section 104 requires OMB to develop guidance to maintain an affirmative Government role in dissemination of information. On the other hand, and at the same time, it maintains a proper balance by talking about the sharing of responsibility between the public and private sector to ensure a diversity of public and private information sources for Government information.

Under Section 104(E) specifically, the Government is required, when it thinks about publishing information, to only "consider" whether the private sector is producing an equivalent agency product or a product which meets the agency's dissemination goals. Under current law and practice, if a public information product would in any way duplicate a private sector information product, that agency is required to "defer" to the private sector, even if that private sector product does not meet its goals.

As we interpret the legislation as proposed, this would no longer be the case. An agency could consider whether a private sector product existed, still could go ahead, but could at the same time be encouraged to say let's not waste money, if that private sector product is serving the public needs.

So, for those reasons, we strongly support the legislation, and like IIA, we urge amendments to make some of the provisions more specific as provided in the House counterpart to this legislation.

In conclusion, Mr. Chairman, we also share some of the concerns of the library community and other public interest organizations who worry about expanding the role of OMB, given their record of reducing access to Government information over the last 8 years. There is considerable reason for concern. However, we cannot ignore the fact that OMB does have a centralizing role in terms of setting policy guidance. That has continued over the last years. There is no will to change or to find an alternative for that, and in the absence of reform we will have the same policy, which is restricted public access to information.

Therefore, we do need the statutory change. We see this as redirecting OMB's guidance toward favoring public access to information, and we think it is absolutely essential that this legislation be passed into law.

In conclusion, I want to applaud you, Mr. Chairman, Senator Bingaman, and other members of the Committee and the excellent staff who have put this legislation together. We are anxious to work with you to ensure its passage into law. Thank you very much.

Chairman GLENN. Thank you. Ms. Berger, President of the

TESTIMONY OF PATRICIA WILSON BERGER, PRESIDENT,
AMERICAN LIBRARY ASSOCIATION 1

Ms. BERGER. Thank you. I am very glad to be here this morning, Mr. Chairman, Senator Bingaman.

I have set out in my written statement our specific objections to certain portions of S. 1742, but let me say at the beginning that we understand what a difficult task you undertook when you attempted to tackle this entire area. Indeed, Mr. Chairman, you have pointed up several areas of lingering concern to you this morning which the association shares.

We think you have attempted to tackle an enormous series of troubling information policy issues, and we think that you have accomplished a great deal, and we are here this morning in that spirit.

We are primarily interested in the same area that Jerry just mentioned, and that is dissemination. We have agreed to disagree in that area, and I will be more specific later about it. But we understand that the bill is intended to cover a much wider range of Government information than those particular genre of concern to us, including the creation and life cycles of Federal Government documents and databases, rulemaking procedures and their end products, which has been a central focus, and further reductions of the paperwork burden imposed on the U.S. citizen.

We understand, therefore, that this bill as written will induce major change for virtually all types of Government information, whether that is the intent of the legislation or not. For this reason we believe the bill would err in giving OMB more dissemination authority than it presently has under the Paperwork Reduction Act. In a Supreme Court decision handed down yesterday, the Court overruled OMB's interference in agencies' information disclosure requirements. The Court said that, "Disclosure rules present none of the problems Congress sought to solve through the Paperwork Reduction Act and none of Congress' enumerated purposes would be solved by subjecting disclosure rules to the provisions of the act."

Similarly, control over information dissemination has not been a problem that Congress has sought to solve by legislation in the past. I understand, and the association understands, that you are attempting in part to solve that with this piece of legislation. It strikes us that OMB control over either information disclosure or its broader corollary, information dissemination, could be inimical to the way our society functions.

Let me say here what I wrote in my earlier statement. ALA believes that our citizens will be best served if dissemination decisions remain vested, and clearly vested, in Federal agencies and information dissemination oversight remains firmly in the hands of Congress.

For this reason, we believe that management of such information requires far more than a single piece of legislation or control mechanism. ALA believes that to work effectively, multiple Government information policies must be enacted to accommodate the broad

spectrum of Government information uses, methods and purposes. The rapid and geometrical growth of Government information in electronic format must not give rise to a narrowing definition for the term "publication," and we feel that the legislation must address this issue much more specifically.

We must avoid a definition which, as Jerry suggested earlier, would exclude public access to Government information in electronic format. While I am certain that some knowledgeable and well-meaning people could and would argue that the language of S. 1742 is comprehensive enough to forestall such a possibility, language such as "to ensure the greatest possible public benefit for the Government's information and provide for distribution to the Federal Depository Library all publications required," I would counter with a maxim we all have experienced at some time in the course of our career: "Just because you are paranoid doesn't mean they are not out to get you."

I think that is important to recognize. For this reason we ask this Committee to include language in S. 1742 specifically crafted to protect Government publications in electronic format by stipulating that such publications will be disseminated through the Federal Depository Library program.

Further, we believe that the language of Section 104(E), which covers information dissemination, needs to be strengthened to include statements like those found and objected to by earlier witnesses in the two sections of the bill which limit the controlling authority of the OIRA administrator to exercise control over the information agencies to accomplish their rulemaking tasks.

And, as I said in my written statement, ALA is prepared to offer specific language which we believe would better delineate the responsibility and authority of agency heads, both to formulate and to carry out information dissemination policies. It is true the bill limits OMB's authority to interfere with information collection for rulemaking purposes, but it fails, unfortunately, to supply comparable language to safeguard agencies' right to disseminate information to the public.

As to the six factors that an agency would be required to consider before disseminating information to the public, we recommend that they be struck entirely. As written, this subsection could be used to delay substantially or to block altogether agency dissemination initiatives. In summary, such actions could be counterproductive to the national interests. Congress continues to urge Federal agencies to transfer expeditiously what they know and what they learn to outside organizations, industries and institutions. On more than one occasion Congress has berated agencies for not releasing quickly enough information they have either created or collected. Why then install a technology transfer information break in this bill? Surely concerns about our Nation's productivity, and the lack therefore, continue to be ominous and very disquieting. Which brings me to the two undergirding principles I included in my written statement, that the Government has an affirmative obligation to disseminate information to the public, that access to Government information is the public's right, and therefore should drive