view of the fact that OMB is currently disclosing this information on its own initiative (or in consultation with Congress). It receives still further weight from the fact that compulsory disclosure, by one branch, of communications within another branch should be disfavored without powerful and particular showings of need. Such disclosure is highly likely to threaten legitimate interests in allowing for tentative give-andtake, for exploration of varied alteratives, and for full candor in the process of discussion. It is also likely to convert written communications to oral ones, and there is little to be gained from that. The concerns about OIRA's reviewing process, also important and legitimate, can probably be met in other ways. D. Possible amendments. One possible solution to the competing considerations would be to allow deliberative communications that are part of policy debates to be kept secret, but to require disclosure of (a) matters that involve times and places of meetings, see Wolfe, supra, and (b) any material factual information that has been introduced by OIRA into the rulemaking process. This latter step has been proposed both by the Administrative Conference of the United States, see Rec. 806, Recommendation on Intragovernmental Communications in Informal Rulemaking, 45 Fed. Reg. 86407, 86408 (Dec. 31, 1980), and the American Bar Association, see Appendix to Strauss & Sunstein, Presidential Control of Informal Rulemaking, 38 Administrative Law Review 181 (1986). (A related distinction can be found in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) and in Memordandum for the Heads of Departments and Agencies Subject to Executive Order Nos. 12291 and 12498 from Wendy L. Gramm, The reason for the distinction is that disclosure of purely factual material ought not to chill the deliberative process. New facts are part of the basis of any 1 from the agency or OIRA rule that is ultimately issued and should therefore be made part of the file for the public and the courts. A requirement of disclosure of facts would be unlikely to interfere with openended discussion within the executive branch. At least as a general rule, it would therefore not call up the same considerations that justify executive privilege. An amendment of this sort would not call for fundamental changes in section 112. It would require merely the deletion of section 3518(a) and section 3518(b)(1) (A), (B), (C), and 3518(b)(2), and the addition of a new section requiring disclosure to the public of factual information introduced by 3 OIRA. An alternative to this approach would be for Congress to engage in more informal processes with OIRA, encouraging it to require full disclosure to the extent OIRA deems such disclosure consistent with its mission. See Congressional Record E 3925 3. Of course the distinction between factual and nonfactual information is not completely crisp. In most cases, however, it is clear on what side of the line information falls, and OIRA should administer any such distinction by reference to the goal of allowing unimpeded policy deliberation evaluations, values, competing considerations rather than undisclosed factual information, which belongs in the public domain. (November 15, 1989) (statement of Rep. Conyers, announcing "administrative agreement" between Representatives Conyers and Horton and Richard Darman of OMB). Such informal mechanisms have the advantage of allowing flexibility and a degree of voluntariness within the executive branch with respect to the disclosure of its internal communications. It would, however, almost certainly be desirable to supplement those mechanisms with at least some version of current section 112. Exclusive reliance on informal arrangements would be less likely to bring about compliance and it would probably not allow for judicial enforcement. Worse, informal arrangements would not make permanent the salutary functions of section 112, which, unlike those arrangements, would represent an important statutory addition to the APA, recognizing and responding the first time to the changes brought about by the recent involvement of OIRA in government regulation. - - for Conclusion Section 112 of S. 1742 is fundamentally sound. It is broadly consistent with the Constitution; it recognizes the current need for coordinated management of the regulatory process; and it responds to legitimate problems in current practice, arising from delay, from a perhaps excessive antiregulatory bias in some settings, and from secrecy in the nondisclosure of substantive communications between the executive branch and private persons. But in order to avoid a serious constitutional question and a probably unnecessary intrusion into deliberative processes within the executive branch the section should be amended so as not - to require disclosure of policymaking discussions between OIRA STATEMENT OF STUART EIZENSTAT ON BEHALF OF THE COALITION FOR REAUTHORIZATION OF THE PAPERWORK REDUCTION ACT ON S. 1742 BEFORE THE SENATE GOVERNMENTAL AFFAIRS COMMITTEE FEBRUARY 22, 1990 Good morning. Mr. Chairman, I am Stuart Eizenstat, a partner in the firm of Powell, Goldstein, Frazer and Murphy. I am testifying here today on behalf of the Coalition for Reauthorization of the Paperwork Reduction Act, a group comprised of multiple industry, trade, professional and citizen associations and a diverse group of American businesses. I have attached to my testimony a list of those entities participating in the coalition whom I am representing here today. My principle purpose this morning is to seek the reauthorization and strengthening of the Paperwork Reduction Act and to urge you to retain the principles and purposes of this important public law. As President Carter's Chief Domestic Policy Advisor, I was personally and directly involved in the development and enactment of the Paperwork Reduction Act, and I am proud of the public policy legacy which it represents. important reform measure in the effort to make government less intrusive and more sensitive to the concerns of the American people. The Paperwork Reduction Act was an In this regard, I understand that President Carter has communicated with you, agree. My remarks this morning will be made in the context of the current Paperwork Reduction Act now on the books and will describe some of our reasons for urging its reauthorization. I will also later offer our observations on S. 1742, which was introduced in 1989, and which is also before this Committee for consideration. |