New FoIA Exemption Proposed p. 13

By: Debra Gersh Hernandez Government dispute resolution documents would be confidential;
Senate bill mirrors Administrative Conference recommendations sp.

A BILL CURRENTLY making its way through the Senate would add a new class of documents to be excluded from disclosure under the Freedom of Information Act.
The bill to permanently reauthorize the Administrative Dispute Resolution Act (ADRA) includes an amendment to make documents created specifically for an alternative dispute resolution (ADR) proceeding exempt from FoIA when the government is involved.
The amendment mirrors a recommendation last summer from the Administrative Conference of the United States, which has since lost its funding and was disbanded Oct. 31.
Jane E. Kirtley, executive director of the Reporters Committee for Freedom of the Press, was given the opportunity to address the conference, where she argued that current FoIA exemptions were sufficient to protect ADR participants.
ACUS conferees, however, decided that additional exemptions were necessary, but the final recommendation was much more narrowly drawn than the original proposal, scoring at least a partial victory for its opponents.
The pending Senate bill (S. 1224) would permanently reauthorize the ADRA, which was designed to give government agencies a means of settling disputes with contractors outside of a courtroom.
"The act authorizes agencies to apply ADR to almost any type of claim involving the government, requires the appointment of ADR specialists in each agency, establishes procedures for hiring neutral third parties to help resolve disputes, and provides confidentiality protection to parties participating in ADR," explained Sen. William S. Cohen (R-Maine), chairman of the Government Affairs Committee's Subcommittee on Oversight of Government Management and the District of Columbia.
At the subcommittee's hearing on the bill, Cohen noted that some two dozen federal agencies are using ADR to resolve contracting disputes.
Sen. Carl Levin (D-Mich.) ? who cosponsored both the original and the current ADRA with Sen. Charles E. Grassley (R-Iowa) ? called the act a "success story" and commented that in the five years since the act was first passed, it "has already produced savings in time and money."
Of the seven witnesses called to testify about the ADRA reauthorization bill, not one was opposed to expanding the FoIA exemptions.
"The confidentiality provisions of S. 1224 are its most important," commented Steven Kelman, administrator of the Office of Management and Budget's Office of Federal Procurement Policy, in his prepared testimony.
Kelman pointed out that in order to establish and keep the "fairness and efficacy" of ADR that is necessary for its increased use, "ADR techniques must permit parties openly to discuss their positions, interests and possible options for settlement ? without fear that such openness will be used against them in court, administrative tribunal, or in the commercial marketplace."
Further, he continued, "Confidentiality can be key to the willingness of parties to participate meaningfully in an informal setting."
Kelman also noted that the FoIA amendment "would retain appropriate exceptions that limit the parties' attempts to shield information from the public."
For example, he stated, information would not be protected if it were released previously, or if the court determined its release was necessary "to prevent a manifest injustice, help establish a violation of law, or prevent significant harm to the public health or safety."
While affirming the Department of Justice's commitment to openness and FoIA reform, Peter R. Steenland Jr., senior counsel in the DoJ Office of Alternative Dispute Resolution, also supported the amendment.
"Of course, the department still believes that all exemptions from disclosure under the Freedom of Information Act should be construed narrowly," Steenland noted.
The Federal Mediation and Conciliation Service (FMCS) is the independent agency that provides services such as ADR assistance to federal agencies. When ACUS closed, FMCS received its ADR files and library.
John A. Wagner, manager/ADR services for FMCS, who presented testimony on behalf of FMCS director John Calhoun Wells, called the confidentiality amendment "one of the most important provisions of the bill."
Former ACUS senior counsel Nancy G. Miller expressed support for the bill, but she also suggested that the amendment be clarified to protect from disclosure documents from a private party to a neutral who is a government employee.
The American Bar Association also believes the amendment should be clarified, according to Philip J. Harter, chair of the ABA's Section of Administrative Law and Regulatory Practice.
The "neutral's notes must remain inviolate if the mediator is to be able to bring the parties together to an agreement or the arbiter is to render a decision," Harter noted in his testimony.
"The critical ? all important ? issue for confidentiality is to protect that relationship, except in very narrowly circumscribed situations," he stated.
The ABA, he continued, is "less clear as to the protection that should be afforded by the ADR Act to communications among the parties themselves without the neutral or to those involving all of the parties and the neutral."
"Those discussions or proceedings very much resemble traditional settlement negotiations, and it is unclear why they should have any more confidentiality than unassisted negotiations: It could certainly be argued that the applicable law should be the same," Harter noted.
Heritage Foundation senior fellow, law professor and former ACUS chairman Marshall J. Breger commented in his testimony that what the "amendment does is simply reduce any uncertainty" over whether documents could be subject to FoIA.
"I recognize that proponents of 'open government,' such as the Reporters Committee for Freedom of the Press, react reflexively to any suggestion of a diminution of FoIA's reach," Breger said. "This protectiveness, while understandable, is misplaced.
"Even with these proposed amendments, there is complete transparency as to every 'final' decision ? the terms of a settlement. Only communications leading up to a settlement are protected ? as they must be if the give and take of serious negotiations is to be allowed to play itself out," he added.
Gray Castle, chairman of the Center for Public Resources' Government Contract Disputes Committee, also voiced his support for reauthorization and noted that the confidentiality changes "do strike the right balance."
Castle also suggested renaming the Administrative Dispute Resolution Act the Alternative Dispute Resolution Act to "bring more sharply into focus what the act is all about."
Following the hearing, RCFP's Kirtley said she was encouraged by the fact that few of those who testified disagreed with the ACUS recommendation to exempt only documents created for ADR, not all documents that happened to become involved in the process.
"If most of the people they asked to testify concede there is no justification for turning the ADRA into a wholesale exemption for any agency document, that is an important battle we won," she said.
Kirtley noted, however, that she was "sorry the committee didn't see fit to have anyone there to testify that even the ACUS proposal does not go far enough to ensure accountability. It appears that particular interest was not represented."
Because of its tax status, the RCFP's lobbying activities are restricted, but if invited by Congress, RCFP representatives can testify before a committee.
"Had we been invited to testify, we would have," Kirtley said, adding that she hoped "other organizations that do lobby would pick up the ball and run with it."
Further, Kirtley pointed out that the whole concept of ADR "is antithetical to openness."
If a government agency is a party or is neutral in an ADR proceeding, "it seems there is necessarily going to be a public interest in how a government agency carries out the role it happens to be playing," she said.
"I'm not happy with the tacit assumption that secrecy is desirable and necessary," Kirtley added. "The problem here is that we were not able to persuade ACUS of that, and no one [in opposition] was invited to testify."
Kirtley suggested that instead of a blanket exemption for ADR documents, specific exemptions, such as for trade secrets, be drawn.
"It wouldn't be that hard to craft," she said, noting that it would not prevent parties from invoking current FoIA exemptions. "If there's a good reason, it's probably already exempt."
"Whatever concessions I might be prepared to make when the parties are private entities, they do not extend to a situation where the government is a party or mediator [or arbiter]," Kirtley commented. "The final decision alone will not tell you everything you need to know about how the decision was reached."
?("If most of the people they asked to testify concede there is no justification for turning the ADRA into a wholesale exemption for any agency document, that is an important battle we won.") [Caption]
?(? Jane Kirtley, executive director, Reporters Committee for Freedom ) [Photo & Caption]