    [Senate Hearing 109-69]
    [From the U.S. Government Publishing Office]

                                                             S. Hrg. 109-69

     OPENNESS IN GOVERNMENT AND FREEDOM OF INFORMATION: EXAMINING THE OPEN
                             GOVERNMENT ACT OF 2005

    =======================================================================

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON TERRORISM, TECHNOLOGY
                             AND HOMELAND SECURITY

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 15, 2005

                                   __________

                               Serial No. J-109-7

                                   __________

             Printed for the use of the Committee on the Judiciary

                        U.S. GOVERNMENT PRINTING OFFICE
    22-471                      WASHINGTON : 2005
    _____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                           COMMITTEE ON THE JUDICIARY

                     ARLEN SPECTER, Pennsylvania, Chairman
    ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
    CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
    SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
    TOM COBURN, Oklahoma
                           David Brog, Staff Director
                         Michael O'Neill, Chief Counsel
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                     ------

          Subcommittee on Terrorism, Technology and Homeland Security

                           JON KYL, Arizona, Chairman
    ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California
    CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
    JOHN CORNYN, Texas                   JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
    LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois
                    Stephen Higgins, Majority Chief Counsel
                     Steven Cash, Democratic Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
        prepared statement...........................................    64
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin, prepared statement..................................    67
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
        prepared statement...........................................    90

                                   WITNESSES

    Cary, Katherine Minter, Chief, Open Records Division, Office of
      the Texas Attorney General, Austin, Texas......................     9
    Fuchs, Meredith, General Counsel, National Security Archive,
      George Washington University, Washington, D.C..................    17
    Graves, Lisa, Senior Counsel for Legislative Strategy, American
      Civil Liberties Union, Washington, D.C.........................    15
    Mears, Walter, former Washington Bureau Chief and Executive
      Editor, Associated Press, Chapel Hill, North Carolina..........    11
    Susman, Thomas M., Ropes and Gray LLP, Washington, D.C...........    20
    Tapscott, Mark, Director, Center for Media and Public Policy, The
      Heritage Foundation, Washington, D.C...........................    13

                             QUESTIONS AND ANSWERS

    Responses of Meredith Fuchs to questions submitted by Senator
      Cornyn.........................................................    32
    Responses of Meredith Fuchs to questions submitted by Senator
      Leahy..........................................................    43
    Responses of Katherine Minter Cary to questions submitted by
      Senator Cornyn.................................................    50
    Response of Walter Mears to a question submitted by Senator
      Cornyn.........................................................    52
    Responses of Thomas M. Susman to questions submitted by Senator
      Cornyn.........................................................    53

                           SUBMISSIONS FOR THE RECORD

    Cary, Katherine Minter, Chief, Open Records Division, Office of
      the Texas Attorney General, Austin, Texas, prepared statement..    57
    Fuchs, Meredith, General Counsel, National Security Archive,
      George Washington University, Washington, D.C., prepared
      statement......................................................    69
    Graves, Lisa, Senior Counsel for Legislative Strategy, American
      Civil Liberties Union, Washington, D.C., prepared statement....    83
    Lechowicz, Lisa, Chief Executive Officer, Health Data Management,
      Inc., Wayne, Pennsylvania, statement...........................    93
    Mears, Walter, former Washington Bureau Chief and Executive
      Editor, Associated Press, Chapel Hill, North Carolina, prepared
      statement......................................................    97
    Morley, Jefferson, journalist, Washington, D.C., letter..........   104
    Susman, Thomas M., Ropes and Gray LLP, Washington, D.C., prepared
      statement......................................................   109
    Tapscott, Mark, Director, Center for Media and Public Policy, The
      Heritage Foundation, Washington, D.C., prepared statement......   116

     OPENNESS IN GOVERNMENT AND FREEDOM OF INFORMATION: EXAMINING THE OPEN
                             GOVERNMENT ACT OF 2005

                                  ----------

                            TUESDAY, MARCH 15, 2005

                                  United States Senate,
           Subcommittee on Terrorism, Technology, and Homeland
                    Security of the Committee on the Judiciary,
                                                       Washington, D.C.
        The Subcommittee met, pursuant to notice, at 10:05 a.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
    presiding.
        Present: Senators Cornyn, Kyl, and Leahy.

    OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
                             STATE OF TEXAS

        Senator Cornyn. This hearing of the Senate Subcommittee on
    Terrorism, Technology, and Homeland Security shall come to
    order. I want to start out by thanking Chairman Specter for
    scheduling today's hearing, and particularly Senators Kyl and
    Feinstein for giving Senator Leahy and I the opportunity to, I
    guess, hijack their Subcommittee to talk about the subject of
    open government.
        Today's hearing is entitled, ``Openness in Government and
    Freedom of Information: Examining the OPEN Government Act of
    2005.'' It is the third in a series of bipartisan events in
    recent weeks in which Senator Leahy and I have joined forces.
    On February 16, shortly before the President's Day recess in
    February, Senator Leahy and I went to the Senate floor together
    to introduce the OPEN Government Act, legislation that promotes
    accountability, accessibility, and openness in the Federal
    Government, principally by strengthening and enhancing the
    Federal law commonly known as the Freedom of Information Act,
    or FOIA. I am pleased to note that the OPEN Government Act is
    also cosponsored by Senator Isakson of Georgia, and other
    Senators, I am sure, will be joining in the coming days and
    weeks, as they become more and more aware of what it is we are
    doing here.
        Last Thursday, Senator Leahy and I joined forces again to
    introduce the Faster FOIA Act, the Faster Freedom of
    Information Act of 2005. I have asked Chairman Specter to place
    the Faster FOIA Act on the Committee's markup calendar for this
    Thursday in the hope of enacting this legislation as soon as
    possible. It shouldn't be controversial. It ought to be an easy
    thing to do, and hopefully will give us more information about
    the problems with faster implementation of FOIA.
        There are, unfortunately, many issues in the Senate
    Judiciary Committee that are divisive. This is not one of them.
    So it is especially gratifying to be able to work so closely
    with Senator Leahy on an issue that is so important and
    fundamental to our nation as openness in government. I want to
    express my appreciation not only to the Senator, but also his
    staff for all their hard work on these issues of mutual
    interest and national interest, and I would like to thank and
    commend Senator Leahy--recognize, I am a relative newcomer to
    the United States Senate, but he has been working on these
    issues for a long time, and I want to commend his decades-long
    commitment to freedom of information.
        Today is a particularly fitting day to examine these
    issues. This past Sunday, an extraordinary coalition of print,
    radio, television, and online media associations and outlets
    began the nation's first ever Sunshine Week. And tomorrow is
    National Freedom of Information Day, celebrated every year at a
    national conference held at the Freedom Forum's World Center in
    Arlington, Virginia, on James Madison's birthday, quite
    appropriately.
        Now, I know when we talk about freedom of information and
    the Freedom of Information Act and how that is implemented in
    the Federal Government that some people have ambiguous
    reactions and feelings to the invocation of FOIA. It reminds me
    of a story I saw recently where a person called the FBI and
    said, ``I want to institute a FOIA request to see if you have a
    file on me. Do you have a file on me at the FBI?'' to which the
    agent on the other end of the line responded, ``We do now.''
        [Laughter.]
        Senator Cornyn. Well, freedom of information and openness
    in government are among the most fundamental founding
    principles of our government. The Declaration of Independence
    itself makes clear that our inalienable rights to life,
    liberty, and the pursuit of happiness may only be secured where
    governments are instituted among men deriving their just powers
    from the consent of the governed. And James Madison, the father
    of our Constitution, famously wrote that consent of the
    governed means informed consent, that a people who mean to be
    their own governors must arm themselves with the power that
    knowledge gives.
        In my previous assignment as Attorney General of Texas, I
    was responsible for enforcing Texas's open government laws, and
    I have always been proud of the fact that my State has one of
    the strongest and most robust freedom of information laws in
    the country. I look forward to bringing some of that sunshine
    here to Washington.
        But the truth is, many States have very robust freedom of
    information laws, and it reminds me of Louis Brandeis's comment
    about the States being the laboratories of democracy, and I
    think we can continue to look toward those State experiences in
    looking at how we can improve the Freedom of Information Act
    here in Washington.
        After all, it is unfortunate that, as with too many of our
    ideals and aspirations, that we fall short of reaching our
    goals. Of course, this is a bipartisan problem and it requires
    a bipartisan solution. As Senator Leahy and I have both noted
    on occasion, openness in government is not a Republican or
    Democrat issue. Any party in power--it is just human nature--
    any party in power is always reluctant to share information out
    of an understandable, albeit ultimately unpersuasive, fear of
    arming one's critics and enemies. Whatever our differences may
    be today on various policy controversies, we should all agree
    that these policy differences deserve as full and complete a
    debate before the American people as possible.
        I also think it is appropriate to note it was a President
    from Texas, Lyndon Baines Johnson, who signed the Freedom of
    Information Act into law on July 4, 1966. Again, addressing the
    sort of ambiguous connotation of, invocation of the Freedom of
    Information Act, I read with interest the comments of Bill
    Moyers, LBJ's press secretary, who said, quote, ``what few
    people knew at the time is that LBJ had to be dragged kicking
    and screaming to the signing ceremony. He hated the very idea
    of the Freedom of Information Act, hated the thought of
    journalists rummaging in government closets, hated them
    challenging the official view of reality.''
        Well, it has been nearly a decade since Congress has
    approved major reforms to that Freedom of Information Act
    signed in 1966, which LBJ ultimately did sign. Moreover, the
    Senate Judiciary Committee has not held a hearing to examine
    this law since 1992, so it is long overdue. I hope that today's
    hearing will prove to be an important first step toward
    strengthening those open government laws and toward reinforcing
    our national commitment to freedom of information.
        Today's hearing will provide a forum for discussing the
    Faster Freedom of Information Act, which Senator Leahy and I
    have introduced just last week--perfect timing--which will
    establish an advisory commission of experts and government
    officials to study what changes in Federal law and Federal
    policy are needed to ensure more effective and timely
    compliance with the Freedom of Information Act.
        Today's hearing also provides the opportunity to examine
    the OPEN Government Act, which I alluded to a moment ago. This
    legislation contains important Congressional findings to
    reiterate and reinforce our belief that the Freedom of
    Information Act establishes a presumption of openness and that
    our government is based not on the need to know, but upon the
    fundamental right to know.
        In addition, the Act contains over a dozen substantive
    provisions designed to achieve four important objectives:
    First, to strengthen the Freedom of Information Act and to
    close loopholes; second, to help FOIA requestors obtain timely
    responses to their requests; third, to ensure that agencies
    have strong incentives to comply in a timely fashion; and
    fourth, to provide FOIA officials with all of the tools that
    they need to ensure that our government remains open and
    accessible.
        Specifically, the legislation would make clear that the
    Freedom of Information Act applies even when agency
    recordkeeping is outsourced. It would require an open
    government impact statement to ensure that any new FOIA
    exception adopted by Congress be explicit. It provides annual
    reporting on the usage of the new disclosure exemption for
    critical infrastructure information and strengthens and expands
    access to FOIA fee waivers for all media. It ensures accurate
    reporting of FOIA agency performance by distinguishing between
    first-person requests for personal information and other more
    burdensome types of requests.
        The Act would also help FOIA requestors obtain timely
    responses by establishing a new FOIA hotline service to enable
    requestors to track the status of their requests. It would
    create a new FOIA ombudsman, located within the Administrative
    Conference of the United States, to review agency FOIA
    compliance and provide alternatives to litigation. And, it
    would authorize reasonable recovery of attorneys' fees when
    litigation is inevitable.
        This legislation would restore meaningful deadlines to
    agency action and restore--excuse me, impose real consequences
    on Federal agencies for missing statutory deadlines. It would
    enhance provisions in current law which authorize disciplinary
    action against government officials who arbitrarily and
    capriciously deny disclosure that have not been used in over 30
    years. And, it will help identify agencies plagued by excessive
    delay.
        Finally, the bill will help improve personnel policies for
    FOIA officials, examine the need for FOIA awareness training
    for Federal employees, and determine the appropriate funding
    levels needed to ensure agency FOIA compliance.
        The OPEN Government Act is not just pro-openness, pro-
    accountability, pro-accessibility, it is also pro-Internet. It
    requires government agencies to establish a hotline to enable
    citizens to track their FOIA requests, including Internet
    tracking. And, it grants the same privileged FOIA fee status
    currently enjoyed by traditional media outlets to bloggers and
    others who publish reports on the Internet.
        As I have said, the OPEN Government Act is a product of
    months of extensive discussions between Senator Leahy's office
    and mine, as well as numerous outside advocacy groups and
    watchdog groups. I am pleased that this bill is supported by a
    broad coalition of open government advocates and organizations
    across the ideological spectrum. It is really quite amazing, if
    you think about it, from the American Civil Liberties Union and
    the People for the American Way to the Free Congress
    Foundation's Center for Privacy and Technology Policy, the
    Heritage Foundation Center for Media and Public Policy, to
    people like my former colleague on the Supreme Court and the
    current Attorney General of Texas who is here with us today,
    Greg Abbott, and Greg, thank you for being here and showing
    your support and allowing Missy Cary to come testify here
    today.
        Without objection, the letters of support that we have
    received from these numerous organizations and others will be
    made part of the record.
        I am also pleased about recent positive comments that this
    legislation has received from the Department of Justice. I
    certainly understand that no administration is ever excited
    about the idea of Congress increasing its administrative
    burdens and I look forward to any technical comments and
    expressions of concern that the administration may choose to
    provide. But, I do appreciate the Justice Department's own
    website that notes that this legislation, and I quote, ``holds
    the possibility of leading to significant improvements in the
    Freedom of Information Act,'' close quote. As Attorney General
    Alberto Gonzales and I discussed during his confirmation
    hearing in January, we plan to work together on ways to
    strengthen the Freedom of Information Act, and I was pleased
    that he gave me that commitment during his confirmation
    hearing.
        So I look forward to working with General Gonzales, with
    Senator Leahy, and our other colleagues in the Senate and the
    House to moving this legislation through the process.
        [The prepared statement of Senator Cornyn appears as a
    submission for the record.]
        And with that, I would like to turn the floor over to
    Senator Leahy for any opening statement he may have.

      STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
                            STATE OF VERMONT

        Senator Leahy. Thank you, Mr. Chairman. I am delighted to
    be working with you on this subject. Also, I was just over with
    Senator Specter at the Judicial Conference at the Supreme Court
    and there, I was very pleased it was chaired this year, as it
    always is, by the Chief Justice, who was there. I told him I
    was in Vermont until late last night and I told him the number
    of Vermonters who came up to me and to wish him well. He is a
    part-time resident of our State, the most famous resident we
    have in our State. I commented that, too, what I thought was a
    great act of personal courage when he swore in the President
    for his second inauguration, and I think the signal it sent to
    the country and the rest of the world of our three branches of
    government, the continuity of government, was very good.
        I was glad to see the weather is very nice since it says
    ``Sunshine Week'' on these things. This past week, in addition
    to the NCAA ski championship held in Vermont and a number of
    NCAA basketball conference tournaments around the country, most
    Americans saw in their Parade magazine and their Sunday
    newspaper that sunshine is a great disinfectant to the abuses
    of power. The weekly magazine reminded us of a story it ran in
    January 2004 about a Massachusetts couple, and they relied on
    State FOIA laws to expose a town's plan to reopen a dormant and
    potentially polluted landfill. It spotlights the power that
    individuals have to show what their government is doing.
        That is why I am delighted to join with the Senator from
    Texas. He and I talked about this on the floor at some length.
    The fact the two of us have joined, I hope it sends a very
    strong signal, this is not a partisan issue, because no matter
    who the administration is, Republican or Democratic, we will
    always get the press releases when everything is going well.
    You have to fight tooth and nail to find out when things are
    not going well, and that is why we want to do something on
    FOIA.
        There has not been significant legislation regarding FOIA
    since 1996, when I was able to author the Electronic Freedom of
    Information Act Amendments, joined by, again in a bipartisan
    way, to an update for the Internet age.
        I fought against the rolling back of citizens' rights in
    this regard. I expressed concern in 2002 over an agreement in
    the Homeland Security legislation that was contrary to those
    efforts, and this is why I think it is so important Senator
    Cornyn and I are working together on this to demonstrate that
    it is not a partisan issue. It is a good government issue. I am
    going to keep on working on not only the two that we put in
    together, but a third bill to restore the FOIA Act, which will
    be introduced today.
        You know, the enactment of FOIA was a watershed moment for
    democracy. This is one of those areas that can unite liberals
    and conservatives. We recognize a dangerous trend toward over-
    classification. On March 3, 2005, J. William Leonard, the
    Director of Information Security Oversight, testified before a
    House Committee the number of classification decisions has
    increased from nine million in 2001 to 16 million in 2004, and
    the cost alone in 2003 was $7 billion to classify them. It is
    almost getting, if a story is in one of our major newspapers
    about something that went wrong in the government, somebody is
    going to mark the newspaper ``top secret'' to try and classify
    it. We have to have open government.
        I mentioned that Parade magazine story about Linda and Mike
    Raymond in Woburn, Massachusetts. In the 1980s, after rates of
    leukemia spiked upward, the local industries were sued for
    polluting the area's water. Four years ago, the Raymonds
    discovered the city's landfill that has been dormant for 15
    years was bustling with truck traffic. They contacted the local
    officials who stonewalled her. They relied on a State FOIA law
    to get answers, putting the light on what is going on.
        That is why a law can be done at the States. I am delighted
    to see one of your successors is the Attorney General from
    Texas here, and we are glad to have you here, Attorney General.
    That is why when Senator Cornyn and I introduced S. 394, the
    OPEN Government Act, it is just common sense things.
        One thing it does is talk about agency delay. The oldest
    requests we know of date back to the late 1980s. They were
    filed before the collapse of the Soviet Union. A lot has gone
    on in the world since then.
        The oldest we know of was a FOIA request at the FBI for
    information on the Bureau's activities at the University of
    California. It was filed in November 1987. You had a bunch of
    court cases, five rulings that the FBI had violated FOIA by
    withholding records, and then after you had this 2002 article
    in the San Francisco Chronicle and inquiries from Senator
    Feinstein, the FBI acknowledged that, whoops, we are
    withholding some records. Well, how much? A few. How much?
    Seventeen-thousand pages, and apparently 15,000 still out
    today. Now, that is an extreme case, but we have introduced
    legislation to speed these things up.
        We have, with all good intention, in the Homeland Security
    law a provision that allows big polluters or other offenders to
    hide mistakes from public view. They just stamp it ``critical
    infrastructure information.'' We have got to do better than
    that. We have got to make sure that people know what is going
    on.
        FOIA is a cornerstone of our democracy. It guarantees a
    free flow of information. When you get--I mentioned two people,
    Mr. Chairman, are going to be here. One is Walter Mears. I have
    known Mr. Mears for many, many years. His hair was dark and I
    had hair when we first met. He joined the Associated Press when
    he was a student at Middlebury College in Vermont, became the
    AP's first correspondent at the State House in Montpelier. He
    came down here to Washington, won the Pulitzer Prize for his
    coverage of the 1976 Presidential campaign. He has covered 11
    of those for the AP.
        And Lisa Graves, who has recently served as my Chief
    Nominations Counsel, but she has worked in all three branches
    of government. One of the first cases she worked on after
    graduating from law school was to help Terry Anderson in his
    battle to obtain information under FOIA about the decision of
    the U.S. Government related to his captivity in Lebanon. They
    had a lengthy fight and he finally got documents, page after
    page after page, that were totally blacked out except for his
    name and the page number, a big help there. They finally--
    President Clinton in 1995 issued Executive Order 12958, which
    led to an unprecedented effort to declassify millions of those
    pages.
        We are usually stronger when we know what is going on. So,
    Mr. Chairman, I can't applaud you enough. I joke that when I
    say all these nice things about the Chairman that there is
    going to be a recall petition for him back in Texas--
        [Laughter.]
        Senator Leahy. --but what he is doing is very reflective of
    what we think about in Vermont with our open government and our
    town meetings. Thank you.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]
        Senator Cornyn. Thank you very much, Senator Leahy. Again,
    I can't say enough nice things about you and your longstanding
    commitment to this issue. It makes so much sense to you and me.
    Surely, it has got to make sense to all of our colleagues.
    Hopefully, this legislation will pass out of here at a speed
    usually unknown in the U.S. Senate, which is not known for its
    speed, but we will keep pushing.
        We are pleased to have a distinguished panel here before us
    today. Ordinarily, when we choose witnesses for panels, each
    side of the aisle picks its own witnesses, but that is not the
    case today. Again, in keeping with the spirit in which we are
    here, I am particularly pleased that today's witnesses were
    selected jointly by Senator Leahy and I, consistent with the
    bipartisan spirit on this issue.
        I will introduce the panel and ask each of them to give
    brief opening statements and then we will ask questions.
        The first witness is Katherine Cary--her friends call her
    Missy--starting here on my left. She is the Assistant Attorney
    General of Texas and Chief of the Open Records Division for the
    State of Texas, and I had the pleasure of working with her when
    I served as Texas's Attorney General. My successor, General
    Abbott, had the good sense to keep her on in light of the great
    work that she is doing and I commend him and her for their
    continued good work.
        Because the OPEN Government Act borrows from some core
    concepts that we already have in place in State law, I thought
    it would be helpful to have one of our top legal experts on
    this subject here with us today. But most of all, Missy, I
    thought it would be nice just to see you again, so welcome
    here.
        We are honored to have Walter R. Mears here, and Senator
    Leahy has already spoken eloquently about him. But, he is a
    former Washington Bureau Chief and former Executive Editor for
    the Associated Press and the author of Deadlines Past: Forty
    Years of Presidential Campaigning, a Reporter's Story. And, of
    course, as we heard, he has been honored with receiving the
    Pulitzer Prize, and we are certainly glad to have you here, Mr.
    Mears, to talk today about the importance of this issue to the
    news media, although I am always eager to say that this is not
    just an issue for the media. This is about the American
    citizens' ability to get information that they need in order to
    arm themselves to be good citizens. But we look forward to your
    testimony here, your statement here soon.
        Mark Tapscott is the Director of the Center for Media and
    Public Policy at the Heritage Foundation. Mr. Tapscott has
    written extensively on the freedom of information and media
    issues. Before joining the Heritage Foundation in 1999, he
    served as a newspaper editor and reporter. He also worked in
    the Reagan administration and as Communications Director to the
    immediate former Chairman of the Senate Judiciary Committee,
    Senator Orrin Hatch.
        Sitting next to our Heritage Foundation representative
    today is Lisa Graves, who you have already heard something
    about, Senior Counsel for Legislative Strategy for the American
    Civil Liberties Union. She is quite familiar, as you have
    heard, with members of this Committee, having served with
    Senator Leahy as his Chief Nominations Counsel. She has also
    served previously as Deputy Assistant Attorney General in the
    Justice Department, so she is intimately familiar with the
    burdens imposed by the Freedom of Information Act on Federal
    agencies. Ms. Graves, welcome back to Dirksen Room 226.
        Meredith Fuchs is the General Counsel of the National
    Security Archive at George Washington University. In that
    capacity, she has become one of the top FOIA experts this city
    has to offer. She has previously served as a partner in the
    prestigious Washington law firm of Wiley, Rein and Fielding,
    and I am pleased to say we have worked together not just on the
    OPEN Government Act, but on other FOIA-related issues, as well.
    And I must say, the National Security Archive has one of the
    best websites and one of the most informative websites on this
    issue that I have seen, so I am glad you are here with us.
        Finally, we are glad to have Thomas M. Susman with us here
    today. He is a partner at the law firm of Ropes and Gray LLP.
    He is also the former Chief Counsel of the Senate Subcommittee
    on Administrative Practice and Procedure and former General
    Counsel of the Senate Judiciary Committee under Senator
    Kennedy. He is widely recognized as one of the top FOIA experts
    in Washington, and I am grateful for all of the advice that he
    has provided my office in helping to draft this legislation and
    working with Senator Leahy.
        Unfortunately--this is the bad news--we have to ask each of
    you to keep your opening statement to about five minutes to
    start with to ensure we have plenty of time to hear from
    everybody, and then Senator Leahy and other Senators who arrive
    here will be able to ask you to amplify on those during the
    Q&A.
        At this time, Ms. Cary, I would be glad to hear from you
    first. And if you will just remember to push that button, and
    the light indicates that your microphone is on so we can all
    hear you. Thank you.

        STATEMENT OF KATHERINE MINTER CARY, CHIEF, OPEN RECORDS
     DIVISION, OFFICE OF THE TEXAS ATTORNEY GENERAL, AUSTIN, TEXAS

        Ms. Cary. Thank you. Thank you, Senator Cornyn, thank you,
    Senator Leahy, for letting me appear before you today. For the
    record, my name is Katherine Minter Cary and I am the Division
    Chief of the Open Records Division at the Texas Office of
    Attorney General. Again, it is an honor to appear before you
    today and convey to you what I do every day in Texas.
        First, let me convey for the record Texas Attorney General
    Greg Abbott's strong support for the bipartisan OPEN Government
    Act. As you can tell, General Abbott is here today to offer you
    that support.
        As I said, I have the pleasure and the responsibility of
    working on a daily basis to apply, educate, and enforce one of
    the strongest, most effective public information acts in the
    United States of America. I want to state unequivocally to you
    that unfettered access to government is an achievable reality.
    Texas has over 2,500 governmental bodies scattered throughout
    the State, but every single day, I oversee a process that
    succeeds in getting thousands of pieces of information into the
    public's hands without controversy. At last check, from the
    statistics I got before I left the office, two million open
    records requests are fulfilled every year in Texas.
        Under the Texas Public Information Act, as under FOIA,
    requested information is supposed to be given out promptly.
    Texas law defines this to mean as soon as possible and without
    delay. Any governmental body that wants to withhold records
    from the public must, within ten days, seek a ruling from the
    Texas Attorney General's Office, specifically from my division,
    the Open Records Division.
        In Texas, a governmental body that fails to take those
    simple required procedural steps to keep information closed has
    waived any exceptions to disclosure unless another provision of
    Texas law explicitly makes the information confidential. This
    waiver provision, above all else, has provided meaningful
    consequences to prevent government from benefitting from its
    own inaction. Under Texas law, if a governmental body--either
    State, local, county--disregards the law and fails to invoke
    these provisions that specifically protect certain categories
    of information from disclosure, it forfeits its right to use
    those disclosure exceptions.
        The OPEN Government Act would institute a very similar
    waiver provision and it attempts to strike the careful balance
    as not to negatively affect third parties' rights or violate
    strict confidentiality. The Texas experience shows that finding
    this balance is realistic, fair, and workable.
        Our pro-openness system of disclosure has boasted great
    success, and without dire consequences, for 32 years through
    innumerable high-profile events, including the Space Shuttle
    Columbia disaster, the suicide of an Enron executive, the death
    of 19 immigrants in a heated tractor trailer in South Texas,
    and several very high-profile front page murder trials.
        In 1999, governmental bodies in Texas sought roughly 4,000
    rulings from you, the Attorney General Cornyn. Last year, my
    division handled 11,000 such requests. These requests show an
    increase in compliance that is directly related to outreach and
    enforcement.
        Often, non-compliance results from a simple lack of
    understanding rather than malicious intent. For this reason,
    the Texas Attorney General's Office has worked aggressively to
    prevent violations of the Texas Public Information Act.
        We offer training. We offer videos, handbooks. We have,
    most importantly, an open government hotline. It is toll-free
    in the State of Texas and is charged with helping to clarify
    the law and make open government information readily available
    to any caller. This service includes, as the OPEN Government
    Act would, an update on where a request is in the system. The
    Texas open government hotline answers about 10,000 calls a
    year. There is no question that the addition of a similar
    system under the proposed OPEN Government Act provides citizens
    customer service, attention, and access they deserve from their
    public servants. Our hotline has been a resounding success,
    from the both the perspective of requestors and from
    governmental entities.
        My office also has attorneys that handle citizens'
    complaints as well as respond to their questions about the law.
    These attorneys attempt, with a 99 percent success rate, to
    mediate compliance with open records regulations. The OPEN
    Government Act would create a similar system, and Texas's
    demonstrated success in resolving such matters underscores the
    utility of such a dispute resolution function.
        Our experience has shown that it requires a few actions by
    the Attorney General for word to get out that we are serious
    about enforcing compliance. I believe that the Office of
    Special Counsel provisions as proposed in your OPEN Government
    Act will experience the same positive results on the Federal
    level.
        Finally, with regard to outsourcing, Texas has a legal
    presumption that all information collected or assembled or
    maintained by or for a governmental body by a third party are
    open to the public. The OPEN Government Act would also extend
    the availability of government records held by non-governmental
    parties. Records kept on behalf of Texas governmental bodies
    remain accessible by request as long as the governmental body
    has a right of access to the information. Texas law does not
    allow the government to contract away access to records held by
    its agents.
        I personally believe this portion of the policy statement
    that introduces the Texas Public Information Act is
    instructive. The people, in delegating their authority, do not
    give the public servants the right to decide what is good for
    the people to know and what is not good for them to know. The
    people insist on remaining informed so that they may maintain
    control over the instruments that they have created.
        My experience and our State's experience with openness, its
    commitment to that people have a right to know, not just a need
    to know, has been a resounding success for 32 years. As
    Attorney General Abbott noted in his recent letter to you
    supporting the OPEN Government Act, open government leads
    inextricably to good government. Openness and accountability,
    not secrecy and concealment, is what keeps our democracy strong
    and enduring.
        Thank you again, Senator Cornyn, for the privilege of
    appearing before you today.
        Senator Cornyn. Thank you, Ms. Cary. I appreciate your
    being here.
        Ms. Cary. Thank you, sir.
        [The prepared statement of Ms. Cary appears as a submission
    for the record.]
        Senator Cornyn. Mr. Mears, we would be glad to hear from
    you.

     STATEMENT OF WALTER MEARS, FORMER WASHINGTON BUREAU CHIEF AND
    EXECUTIVE EDITOR, ASSOCIATED PRESS, CHAPEL HILL, NORTH CAROLINA

        Mr. Mears. Thank you. I appreciate the opportunity to be
    here today in familiar territory. I spent more than 40 years as
    an Associated Press reporter, editor, and Washington Bureau
    Chief, and so I am no stranger to Congressional hearing rooms,
    but this is my first experience on this side of the table. With
    that, another disclaimer. I am not an expert on the legal
    aspects and the fine print of freedom of information law. I
    hope that you will allow me to interpret my franchise broadly
    so that I can speak about what I know best, which is the
    crucial importance of the free flow of information about
    government to the people.
        Too many people in government have an instinct or acquire
    an instinct to limit that flow because they think that things
    work better without people they regard as nosy outsiders prying
    into what they regard as their business. It is not their
    business. It is all of our business. That is what a free
    democratic government is all about, and you can't have one
    unless people know what is going on behind government doors. I
    believe that as a reporter and I believe it today as a retired
    American watching government from a distance.
        President Bush spoke to Russia's President Putin at the
    Kremlin about the need for free press in a democracy. What was
    true at the Kremlin also is true in Washington. The free flow
    of information is vital to a free press and to a free people.
        There is a difficult balance to be kept in this, especially
    since September 11 brought home to us all the menace of terror
    in our midst. No reporter I know would demand or publish
    anything that would serve the purposes of a terrorist. The
    problem in times like these is to judge what would or would not
    weaken America against terrorism.
        Tom Curley, the President of the Associated Press, observed
    that the United States was attacked in large part because of
    the freedoms it cherishes, and Tom said that the strongest
    statement we can make to an enemy is to uphold those values.
    They would be upheld by the OPEN Government Act of 2005.
        Knowing that you will hear from people far more expert than
    I on the detailed provisions of the bill, I would like to offer
    some comments about the findings that preface it, the first of
    them being that the informed consent of the voters, and thus
    the governed, is crucial to our system of self-government. That
    was the mission that guided me through my career as a political
    reporter, from the State House in Vermont to the Capitol to the
    Presidential campaigns I covered for the AP.
        The bill also would have Congress find, and this is a
    quote, ``the American people firmly believe that our system of
    government must itself be governed by a presumption of
    openness.'' I wish that an act of Congress could make that so.
    In my experience, many--too many--people do not believe that at
    all and are willing to let the government determine what we,
    and therefore they, ought to know.
        But the freer the flow of information, the better the job
    we do of delivering it, the more likely we can meet the
    standard on which the bill quotes Justice Hugo Black. ``The
    effective functioning of a free government like ours depends
    largely on the force of informed public opinion. This calls for
    the widest possible understanding of the quality of government
    service rendered by elected and appointed officials or
    employees.''
        The Freedom of Information Act gets straight to that point.
    We use it to get data on the quality of government service. In
    a perfect world, that would be an aim shared by those who cover
    government and those who run it, and sometimes it is. The
    information flows because the people who control it realize
    that it belongs to the people. Too frequently, it is not,
    sometimes for valid reasons of security and privacy, on which
    you will hear no argument from us, but more often, it happens
    because when people get in the government, they tend to get
    proprietary and protective.
        As an AP veteran, I take pride in objectivity. We are
    concerned what is happening now, what is happening during this
    administration, and we should be, but I do not limit my
    observations to the Bush years. This is not new business.
        I remember writing a story that angered Lyndon Johnson when
    he was President. He wasn't satisfied with the way the PR
    people in his executive branch were getting out his chosen
    message, so he called in their supervisors and he told them
    that if they didn't do better, he would replace every one of
    them with a high school senior from Johnson City, Texas. The
    White House wouldn't comment on my story, but as soon as it hit
    the wire, they flatly denied it. It just wasn't so. And
    immediately after that, they set about trying to find out who
    leaked it to me.
        While restrictions on information have tightened in this
    administration, I believe that whoever had been in office,
    regardless of party, when those terrorists destroyed the World
    Trade towers, the administration would have erred on the side
    of security. That makes this legislation especially vital in a
    difficult time. There is a need to reinforce the public's need
    to know.
        It was encouraging to see that Attorney General Gonzales
    has told you that he will examine Justice Department policies
    and practices under FOI. It will be more encouraging should he
    amend the restrictive line set by his predecessor in the memo
    that essentially flipped the policy from favoring disclosure to
    one in which the presumption was that the Justice Department
    would defend any decision to withhold information.
        As I said, there is a valid need for secrecy in government
    operations, but the presumption should be in favor of openness,
    and much of the information pried loose by pressure of FOI
    action has nothing to do with security. For example, the AP
    found that the NIH, National Institutes of Health, researchers
    were collecting royalties on drugs and devices they were
    testing on patients who did not know their financial interest
    in the product. The practice ended under a new policy announced
    immediately after the story hit the wire.
        The New York Daily News found that the Federal courthouse
    in lower Manhattan had maintenance and cleaning costs double
    those at State court buildings a block away and that in 1997,
    it cost $84,812 to polish the brass at the entrances to the
    building.
        Along with those FOI success stories, there are too many
    episodes of information blocked by delays and by agencies bent
    on secrecy. One remarkable example, Terry Anderson has been
    mentioned, the former AP man held hostage for seven years in
    Lebanon. When he was writing his book, he filed an FOI request
    for information about his captivity and he says that he was
    told he couldn't have everything he was seeking because of the
    privacy rights of his kidnappers.
        The OPEN Government Act you are considering will plug some
    holes and repair some problems in the FOI Act, and for that, it
    should be approved. But I think beyond the specific steps, the
    message behind this measure is even more important because its
    enactment would once again declare that the public has the
    right to obtain information from Federal agencies and not to
    have it withheld in favor of secrecy as opposed to disclosure.
        I think this hearing and a full discussion of FOI in
    Congress will serve that mission well. As you have mentioned,
    as you begin this legislative work, we in the news media are
    undertaking a project entitled the Sunshine in Government
    Initiative with a similar mission. What you are trying to do by
    law, we are trying to do by example and with our reporting.
        We newspeople are the highest-profile advocates and users
    of the Freedom of Information Act, but it is not only a tool
    for reporters. Increasingly, requests do not come from us but
    from people like veterans and retirees trying to get
    information about their government benefits, from citizens
    looking for information about what is happening in their
    government. That is worth emphasizing, because it points out
    that access to information is best for everyone.
        We need to find ways to keep that flow of information open,
    not just for the press, but for all Americans, and to keep it a
    topic of national concern. So I thank you for what you are
    doing in that cause and for inviting me to join in that effort.
        Thank you, Mr. Mears.
        [The prepared statement of Mr. Mears appears as a
    submission for the record.]
        Senator Cornyn. Mr. Tapscott?

      STATEMENT OF MARK TAPSCOTT, DIRECTOR, CENTER FOR MEDIA AND
        PUBLIC POLICY, THE HERITAGE FOUNDATION, WASHINGTON, D.C.

        Mr. Tapscott. Thank you, Senator. It is a pleasure and an
    honor to be here to testify today about the OPEN Government Act
    of 2005. I have submitted my statement for the record, so I am
    just going to summarize.
        Senator Cornyn. That would be fine. All your written
    statements will be made part of the record, without objection.
        Mr. Tapscott. Among Secretary of Defense Donald Rumsfeld's
    probably lesser-known marks of distinction in his career was an
    important role that he played back in 1966 as one of the
    cosponsors of the Freedom of Information Act, and he made a
    remark during the floor debate on that Act that I think has a
    great deal of relevance to us today and to what you and Senator
    Leahy are doing.
        He said, and I quote, ``This legislation was initially
    opposed by a number of agencies and departments, but following
    the hearings and issuance of the carefully prepared report,
    which clarifies legislative intent, much of the opposition
    seems to have subsided. There still remains, however, some
    opposition on the part of a few government administrators who
    resist any change in the routine of government. They are
    familiar with the inadequacies of the present law and over the
    years have learned how to take advantage of its vague
    phrases,'' unquote.
        I think what Rumsfeld described in 1966 is a problem that
    we are dealing with still today, and in one sense, we shouldn't
    be surprised by it because we have a career workforce precisely
    to insulate them from improper, inappropriate political
    influences. But one of the problems that comes along with that
    insulation is precisely the delays and other problems that we
    are dealing with here today in freedom of information.
        And I say that--I should point out that I am the fourth
    generation in my family to have worked in the government. My
    father was a civil servant in Oklahoma and my grandfather and
    great-grandfather were mail carriers in East Texas, Senator, so
    I have a great deal of respect for government employees. But
    they are not exempt from human nature, and unfortunately, when
    it comes to the Freedom of Information Act, the path of least
    resistance too often results in a misadministration of the Act.
        I believe this process accounts for most of the problems
    that we have, and this was illustrated by a survey in 2003 by
    the National Security Archive, which I think is one of the best
    surveys that has been done in this area. They found, among
    other things, that, quote, ``the agency contact information on
    the web was often inaccurate, response times largely failed to
    meet the statutory standard, only a few agencies performed
    thorough searches, including e-mail and meeting notes, and the
    lack of central accountability at the agencies resulted in lost
    requests and inability to track progress.'' They summarized the
    results of that survey by saying that the system is a system
    in, quote, ``disarray.'' I think that was a very accurate
    description.
        Having spent nearly two decades in this town as an ink-
    stained wretch in the journalism world and having filed more
    FOI requests than I care to remember over the years, I wasn't
    surprised by these results. When you ask a typical journalist,
    and I am sure that my colleague, Walter Mears, will agree, why
    they don't use the FOI more frequently, the reply will
    invariably be something along the lines of, well, it is going
    to take too long, they won't give me what I need and what I ask
    for anyway, and we will just have to court and that will be a
    lot of expense and my editor will say, what is the point?
        I think the OPEN Government Act addresses all of the major
    problems that have been spotlighted over the years by people on
    this panel and elsewhere. I am not going to go into detail on
    why I think it is so effective. I would point out, however,
    that I think it is especially encouraging that you have decided
    to make real consequences for failing to administer the Act in
    an appropriate way and the establishment of an ombudsman to act
    as a neutral arbiter, if you will, in disputes between
    requestors and agencies. Those are the two most important
    accomplishments that could be obtained by this bill.
        It is also my hope that those members of Congress who
    consider themselves to be of a conservative persuasion will pay
    particular attention to this Act, to this bill, because it can
    be an effective resource for restoring our government to its
    appropriate size and functions. Sunshine is the best
    disinfectant, not only in the physical world, but also in
    combatting things like waste and fraud in government, and I
    hope that my fellow conservatives in Congress will pay very
    close attention to that fact.
        We are, indeed, fighting a global war on terrorism. It is a
    war that puts unusual demands on the FOI system. But
    conservatives and liberals alike should always remember that an
    ever-expansive, ever-intrusive government is ultimately
    antithetical to the preservation and expansion of individual
    liberty and democratic accountability in public affairs.
        Having said that, Senator, I commend you and Senator Leahy
    and I hope that this ends in a great success.
        Senator Cornyn. Thank you very much for that opening
    statement.
        [The prepared statement of Mr. Tapscott appears as a
    submission for the record.]
        Senator Cornyn. Ms. Graves, we would be glad to hear from
    you.

       STATEMENT OF LISA GRAVES, SENIOR COUNSEL FOR LEGISLATIVE
       STRATEGY, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, D.C.

        Ms. Graves. Good morning, Chairman Cornyn. Thank you for
    the invitation to testify today before the Subcommittee on
    Terrorism, Technology, and Homeland Security on behalf of the
    American Civil Liberties Union. We are very pleased to testify
    in support of your bill, the OPEN Government Act, S. 394, which
    was introduced last month by both you and Senator Leahy, who
    have been leaders in open government policies in Texas and
    nationally. This bill makes agency compliance with the Freedom
    of Information Act a priority and not an afterthought, and for
    that, we commend you. It supports accountable, democratic
    government by finally giving teeth to the deadlines set by
    Congress.
        Second, it will help bring FOIA into the 21st century by
    applying FOIA's rules to government contractors in this era of
    outsourcing and also by leveling the playing field for
    independent reporters and publishers in the Internet age.
        Third, it protects incentives for the enforcement of FOIA
    when a litigant is a catalyst for change and for the disclosure
    of information that the public is entitled to.
        And finally, fourth, it emphasizes that the core purpose of
    FOIA is disclosure and not secrecy.
        The ACLU has experienced lengthy delays in the handling of
    some of its FOIA requests. For example, in October 2003, the
    ACLU filed a FOIA request for information about detainees held
    overseas by the United States, and then we filed a lawsuit in
    June of 2004 asking that the government comply with the terms
    of FOIA. In August of last year, a Federal court ordered the
    government to disclose documents responsive to that request. As
    a result of those disclosures, the public has learned about
    executive branch policy decisions about detainees, individuals
    kept from inspection by the Red Cross, as well as information
    about the treatment of those detainees.
        The underlying disclosures raise very troubling issues, but
    that is not the purpose of my testimony today. The fact of
    disclosure, even as a result of court order, demonstrates the
    continuing vitality of the democratic principles of an open
    society and the central importance of FOIA in our country.
        The OPEN Government Act takes important steps toward
    keeping the promises made by FOIA. S. 294 improves FOIA and
    government openness not by necessarily making more records
    subject to disclosure or by eliminating FOIA exemptions, but by
    helping ensure that agencies follow the law and disclose
    information that the Freedom of Information Act requires them
    to disclose. It is a very good beginning.
        Finally, I would like to note that in the wake of 9/11,
    there has been an epidemic of over-classification. However,
    this over-classification is not something new, as Terry
    Anderson's case in the Clinton administration and so many
    others have shown. Senator Cornyn, you recently commented on
    the problem of over-classification in your article in the LBJ
    Journal of Public Affairs. You noted that the Honorable Thomas
    Kean, the Chair of the 9/11 Commission, had stated that in
    reviewing the documents, the important documents that the
    Commission reviewed for its report, three-fourths of what he
    saw was classified and shouldn't have been.
        Government secrecy can be an enemy of an open society and
    democracy, but, of course, this does not mean that every piece
    of information the government has can or should be made open to
    the public. There are limits, many of which the ACLU supports,
    to protect other important national and individual interests.
    But we as a people must continue to resist the culture of
    secrecy when it unnecessarily permeates our government, no
    matter which party is in power. When it comes to information
    about how the government is using its vast powers, ignorance is
    definitely not bliss.
        The ACLU supports S. 394 because this much-needed bill will
    help buck the growing trend of hiding government action from
    public scrutiny. We commend you, Senator Cornyn and Senator
    Leahy, for introducing the OPEN Government Act and we urge
    members to join you in support of this good government measure
    which will strengthen our nation's democracy. Thank you.
        Senator Cornyn. Thank you very much.
        [The prepared statement of Ms. Graves appears as a
    submission for the record.]
        Senator Cornyn. Ms. Fuchs, we are glad to hear from you.

    STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY
        ARCHIVE, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C.

        Ms. Fuchs. Thank you, Senator Cornyn. Mr. Chairman, thank
    you for the opportunity to speak with you today about the
    reforms that would be enacted by the OPEN Government Act of
    2005. I wish to commend the cosponsors of this bill, Senator
    Cornyn and Senator Leahy. Each of you has an established record
    as a defender of open government and we appreciate the effort
    you are making to make our government more responsive and
    accountable to the citizens.
        I have extensive experience in the Freedom of Information
    Act. The National Security Archive, of which I am the General
    Counsel, is one of the most active and successful nonprofit
    users of the FOIA in this country. Our work has resulted in
    more than six million pages of documents that otherwise would
    be secret today being available to the public, and we have
    conducted two studies of Federal Government administration of
    the FOIA and most of my remarks today are based on what we
    learned doing those audits.
        I want to start by talking about why FOIA is important. In
    a world in which terrorism is commonplace and where the people
    are caught in a balance of terror, our soldiers are fighting
    the war to promote democratic ideals, an informed citizenry is
    the most important weapon that the country has, an informed
    citizenry that will support and be loyal to its government.
        Our FOIA law is one of the best mechanisms for empowering
    the public to participate in governance. The fact of the matter
    is that there is a reflex of secrecy in the government right
    now. People are afraid to open up the proceedings of government
    to the public. But in many cases, there is a need for the
    public to know what is happening, to know what the risks are
    that they face.
        Certainly national security is a very real and important
    concern, but it is not the only concern and there is often
    times when it can be impacted by public activity. Just last
    summer, Congressman Shays of Connecticut gave a striking
    example of the paradox that is caused by secrecy and against
    the public interest in disclosure. He talked about a 1991
    Department of Defense Inspector General report that was
    classified that showed that 40 percent of the gas masks used by
    our military leaked. He couldn't talk about the report because
    it was classified. He couldn't tell his constituents who were
    soldiers who fought in the Gulf War what happened and why they
    might have Gulf War illnesses.
        Six years later, finally, the report was declassified and
    people could learn what was the cause of their Gulf War
    illnesses. The rest is history, so to speak. Those are the
    kinds of things that the public needs to know and that the
    government needs to acknowledge so that instead of hiding these
    secrets, we can confront the problems and fix them.
        Indeed, this is the lesson of the inquiries concerning the
    September 11 attacks on the United States. It was most directly
    addressed by Eleanor Hill, the Staff Director of the joint
    House-Senate Intelligence Committee investigation, who said,
    quote, ``The record suggests that prior to September 11, the
    U.S. intelligence and law enforcement communities were fighting
    a war against terrorism largely without the benefit of what
    some would call their most potent weapon in that effort, an
    alert and committed American public.''
        This conclusion is echoed in the report of the 9/11
    Commission, which includes only one finding that the attacks on
    the United States could have been prevented. As you will see in
    the graphic that I included and appended to my testimony, the
    9/11 Commission specifically talks about the interrogation of
    one of the hijackers' paymasters, Ramzi Binalshibh. Binalshibh
    commented that if the organizers, particularly Khalid Sheikh
    Mohammed, had known that the so-called 20th hijacker, Zacarias
    Moussaoui, had been arrested at his Minnesota flight school on
    immigration charges, then bin Laden and Mohammed would have
    called off the 9/11 attacks. The Commission's wording is
    important here. Only publicity could have derailed the attacks.
        We see many examples of how the public is empowered by
    information released under FOIA. I have appended to my
    testimony a list of 21st century FOIA successes, a list of news
    articles that resulted from information disclosed under FOIA.
        It is interesting. I remember when a foreign official
    visited my office on the eve of his own country adopting a FOIA
    law and asked, what happens if it discloses something bad that
    the government did, and my answer to him, and my answer to you,
    is that is exactly what FOIA is about. The American public
    deserve a government that can acknowledge its mistakes, can
    correct those mistakes, and do better in the future.
        A key part to empowering the public, however, is giving
    them information in sufficient time for them to do something
    about it, and one of the things that we found in the audit of
    Federal agencies that we conducted is that there is a
    persistent problem of backlog and delay in FOIA. Your bill goes
    very far to address that and we are very grateful that you have
    taken into consideration some of the lessons that we found in
    our audit.
        You all know the old adage that justice delayed is justice
    denied. Well, we have found in our own FOIA requests to Federal
    agencies that when there is a long delay in the release of
    documents, the documents often disappear. They may be
    destroyed. They may be lost. And yes, we can sue, but really,
    we would rather not have to sue to get documents.
        How much worse is it for reporters who are handling
    breaking news who really need the documents quickly? What about
    communities that have health and safety problems in their
    community and they want to protect their children? What about
    the advocacy groups that are telling the people about the risks
    in the water or of mercury in fish? This information needs to
    get out to people quickly.
        The OPEN Government Act of 2005 will go far to motivate
    agencies to process FOIA requests and to process them in a
    timely fashion. Despite there being 3.6 million FOIA requests
    reported in fiscal year 2003, there are not that many lawsuits,
    and so I commend you in particular for the provision that would
    impose a penalty when there are lawsuits--when in lawsuits it
    is found that the government has not met a statutory standard
    of clear and convincing evidence for good failure to comply
    with time limits.
        That penalty provision may come under attack for fear that
    it is going to result in troubling disclosures, but in fact, it
    is not going to result in disclosures of the information that
    is most important to be kept protected. It is not going to
    result in national security information, privacy information,
    or information that Congress has mandated be secret, such as
    intelligence sources and methods being disclosed.
        In fact, I would liken the impact of that proposed penalty
    to the impact that automatic declassification in Executive
    Order 12958 had on the declassification of historical
    materials. Even though no agency has seen its records
    automatically declassified, agencies were forced to put in a
    process that would result in declassification, and the number
    of declassification decisions went up dramatically. We need a
    penalty to make clear that FOIA matters.
        I would also note that the provision to require the
    Attorney General to notify the Office of Special Counsel of
    judicial findings of arbitrary and capricious agency
    withholding makes clear that the Attorney General is going to
    take some action when agency personnel ignore FOIA. It makes
    this stop being an ``us'' versus ``them'' procedure and makes
    clear that it is the government's obligation and mission to
    support FOIA.
        I am going to close now since I have run out of time, but I
    have submitted the rest of my comments for the record.
        Senator Cornyn. Thank you very much.
        [The prepared statement of Ms. Fuchs appears as a
    submission forthe record.]
        Senator Cornyn. I would like to note that we have been
    joined by Senator Kyl, who graciously has agreed to let us use
    his Subcommittee as the forum to have this hearing, and without
    his help, we wouldn't be here today, so I want to say thanks to
    him for that.
        He noted that he has got a pretty hectic schedule today and
    I would just tell everybody out there and everybody watching
    that the fact that we don't have all these seats occupied is no
    reflection on the importance of this, and frankly, no
    reflection on how, I think, well the message will be received
    and addressed, but it just is a fact of life in the United
    States Senate. It seems like we are always flying by the seat
    of our pants to some extent.
        Chairman Kyl. Thank you, and Mr. Chairman, let me just
    reiterate that. That is why we have staff and why we have a
    record. Unfortunately, this is scheduled during the week that
    we are debating the budget and that makes it a very difficult
    thing. I will only be able to be here a few minutes, but I
    wanted to specifically come by and acknowledge all of you and
    welcome you and indicate that I think what Senator Cornyn is
    doing is very, very important, to take a look at the status of
    our FOIA laws right now, and to let all of you know that we
    will want to continue to receive your comments and that my
    staff will try to be in touch with you. So my lack of being
    here for most of the morning shouldn't be taken as a lack of
    interest in the subject. Thank you very much.
        Senator Cornyn. Thank you very much, Senator Kyl, and I am
    sure that is true for all of us. This is just the beginning.
    This is not the end.
        Mr. Susman, we would be glad to hear from you.

    STATEMENT OF THOMAS M. SUSMAN, ROPES AND GRAY LLP, WASHINGTON,
                                  D.C.

        Mr. Susman. Mr. Chairman, Mr. Chairman, I am honored to
    appear today with such an esteemed group of colleagues to
    support S. 394. This legislation is balanced and modest, but it
    is extremely valuable and would strengthen the Freedom of
    Information Act in many important respects.
        Senator Cornyn, you mentioned that this was the first
    hearing on freedom of information in the Senate since 1992. I
    sit in this chair somewhat nostalgically. I testified in 1992
    before Senator Leahy on what became the Electronic Freedom of
    Information Amendments. I had a chance to testify a decade
    before that on what became the set of amendments in the mid-
    1980s. And I began my career with freedom of information
    sitting where Jim Ho is back there in the Subcommittee in the
    late 1960s and early 1970s. Frankly, you read a lot about how
    Congress and the Senate has changed through the decades, but
    one thing that seems to be improving with age is the quality of
    staff in the Judiciary Committee.
        [Laughter.]
        Mr. Susman. In my prepared testimony, I begin with a
    discussion of how the business community has made use of the
    Freedom of Information Act. I intend that as a complement to
    the media, advocacy groups, think tanks, public interest
    groups, that business requestors as well as individuals and
    non-governmental organizations serve an important public
    interest by bringing about disclosure of how policy decisions
    are made in agencies, how programs work, how products are
    regulated, how laws are enforced, and how contracts are
    awarded.
        On a broader plain, the marketplace generally functions
    more efficiently through enhanced access to information, and
    especially government information. Clearly, businesses benefit
    both directly and indirectly from open government information.
        S. 394 addresses some of the really important issues that
    frustrate freedom of information administration today, but it
    does so carefully. It recognizes that FOIA isn't a game of
    ``us'' versus ``them,'' and it approaches responsibly and
    sensitively the issue so that it serves the needs of both
    ``us'' and ``them,'' that is, the requestor community and
    government agencies that have to administer this law.
        In my prepared testimony, I go through each of the sections
    and review all of the provisions of this statute, but for my
    few minutes of oral testimony, I would like to concentrate on
    three issues.
        The first is the Office of Government Information Services.
    Section 11 of the bill establishing this new office is to me
    the most important provision in the legislation. This new
    office has a number of functions, all of which are important.
    It will assist the public in resolving disputes with agencies
    as an alternative to litigation. It has the authority to review
    and to audit agency compliance with the Act. And it can make
    recommendations and reports on freedom of information
    administration. A number of States have this kind of function,
    including the State of Texas where the Attorney General plays
    this important role.
        Appropriations for the Administrative Conference, where
    this new office would be located, must be restored for this to
    work the way in which the legislation proposes. ACUS is the
    right place for this office of Government Information Services
    since it has historically been a nonpartisan agency dedicated
    to improving administrative procedures and assisting agencies
    do a better job. If Congress does not make this modest
    investment to restore ACUS, and I urge it to do so, then this
    office should nonetheless still be established and a location
    found elsewhere, perhaps in the National Archives. I am
    confident, Mr. Chairman, that the Office of Government
    Information Services will more than pay for itself in diverting
    cases from the courts, cases that could be settled with an
    objective arbiter between the requestor and the agency.
        The second issue, recovery of attorneys' fees in
    litigation. It is imperative that Congress reverse the
    application of the Supreme Court's Buckhannon decision to FOIA
    cases. While this may seem a little self-serving, since I have
    been known to litigate an occasional freedom of information
    case over the past couple of decades, it is important for the
    plaintiff to be able to recover fees and costs where the court
    does not finally adjudicate the issue of disclosure for a
    special reason in these cases.
        It is clear to me, and I believe all of us who have worked
    with the Freedom of Information Act, that government
    occasionally withholds requested information to keep it out of
    the public domain for as long as possible, knowing full well
    that the law will ultimately not support withholding. Or, on
    occasion, delay may be caused by some other purpose, but the
    only thing that a requestor can do ultimately to get the
    information which ought to have been released earlier is to
    file a lawsuit. These cases don't move quickly through the
    courts and they can be expensive to pursue. So when the
    government sees the end of the road, it only has to hand over
    the information at that time and the case becomes moot with no
    consequences to the agency. In the freedom of information
    context, the Buckhannon decision rewards agency recalcitrance
    and delay.
        I should repeat the same point that Meredith did a few
    minutes ago. Lawyers working with the media, with advocacy
    groups, even with businesses, view litigation as a last resort.
    Our clients would rather have a timely response from the
    agency. They would rather have an Office of Government
    Information Services to help resolve disputes. They would
    rather negotiate than litigate their differences with the
    agencies.
        But when a lawsuit is filed, the plaintiff is assuming the
    same role as law enforcer played by the Texas Attorney General.
    That is, where the lawsuit is responsible for disclosure, a
    public service has been performed. In those cases, recovery of
    fees and costs is appropriate.
        Third issue, enhanced Congressional oversight. That is not
    captured by a single section in the bill, but by a number of
    sections, and additionally, by the Faster Freedom of
    Information Act introduced by the two of you last week, Senator
    Leahy and Senator Cornyn, which I was delighted to hear is on a
    fast track for consideration by the Committee. That bill and a
    number of provisions of S. 394 reflect a commitment by Congress
    to improve its ability to oversee and strengthen administration
    of the Freedom of Information Act and related laws. I list a
    number of provisions, starting with the findings and going all
    the way through the studies at the end of the bill that will
    enhance Congress's ability to strengthen and oversee the law.
    Now these, of course, won't do anything in and of themselves,
    but they signal that Congress intends the Freedom of
    Information Act to work efficiently and smoothly and will
    continue aggressively to oversee agencies to make sure that is
    the case.
        I want to end with a brief personal story that illustrates
    the power of what I believe to be a truly magnificent law.
    About 25 years ago, I sent a Freedom of Information request to
    the Justice Department for records relating to my father, who
    had been a lawyer in the Justice Department in the 1920s. Since
    he died when I was very young, our family knew nothing about
    his early professional career, how he came to Justice, what he
    did while he was there, or how he wound up living in Houston,
    where I was brought up. All of this information and more was
    contained in a package of photocopies of faded personnel and
    litigation records that I obtained from the Department under
    the Freedom of Information Act. I immediately made copies and
    distributed them to all the family, and our family's
    understanding and pride in our own heritage had been enriched
    by this experience. My own pride in having worked for the
    Justice Department was certainly enhanced by knowing of my
    father's role in that agency many decades before.
        The Freedom of Information Act remains a powerful tool that
    contributes meaningfully to our democracy, and S. 394 does an
    excellent job of addressing some of its remaining weaknesses.
        I appreciate the opportunity to testify and I look forward
    to continuing to work with the staff of the Subcommittee and
    the Committee to see this legislation enacted during this
    Congress. Thank you.
        Senator Cornyn. Thank you very much, Mr. Susman. I
    appreciate your statement.
        [The prepared statement of Mr. Susman appears as a
    submission for the record.]
        Senator Cornyn. Now, we will go to a round of questions. I
    will start with Ms. Cary. I believe Ms. Fuchs mentioned that
    there were about 3.6 million Freedom of Information Act
    requests in the Federal Government in the year 2003, and did I
    hear you correctly that your office, General Abbott's office,
    administered two million in a single year? Did I get that
    right?
        Ms. Cary. Not General Abbott's office. We administer the
    ones, as you know, that people object to release. Texas
    Building and Procurement Commission let out some statistics
    last week that were reported in The Statesman that said that
    they estimated two million requests fulfilled for the fiscal
    year, I think it was 2004--the 2003-04 fiscal year, and so we
    only did--we did about 11,000 ruling off the two million
    requests. So, you see, the information is going out at a much
    greater pace than it is being withheld.
        Senator Cornyn. Thank you for that clarification. So it
    sounds like requests for a ruling is clearly the exception and
    not the rule. The rule is that recognizing their
    responsibility, governmental entities are providing the
    information really without objection, without asking for any
    intervention by your office, is that correct?
        Ms. Cary. Yes, sir. That is our belief.
        Senator Cornyn. One of the things that I also want to
    follow up on from my experience, and I know your experience in
    the AG's Office, is that many government entities, of course,
    they have their budgetary struggles. We are having to deal with
    the entire Federal budget. But, each agency has their own
    budget and perhaps is reluctant to allocate a portion of those
    limited resources to having a Freedom of Information Officer or
    somebody who is actually there to administer it, someone to
    secure the records and the like. Can you just speak briefly to
    your experience in terms of what kind of commitment it requires
    government to make in order to be responsive to these requests?
        Ms. Cary. In Texas, the law says that the Officer for
    Public Information by law is the chief executive officer of any
    agency unless they designate. So, there is a little bit of
    motivation on the part of most chief executives to make a
    designation of a Public Information Officer, at least one. At
    the Attorney General's Office, we have two lawyers and one
    paralegal that work full time answering the requests that come
    just to the Office of the Attorney General. It is my experience
    that most cities get by with at least one Public Information
    Officer, with help from their legal counsel. So, generally
    speaking, one person is budgeted in most cities, most counties,
    and on the State level, there is usually a staff of several
    people that answer public information requests. So those things
    are committed to.
        It is a top-down commitment, as you know, Senator Cornyn.
    If your executive head of your agency is supportive of prompt
    release of public information and they appoint an officer that
    shares that feeling, as you did with me when I was your Public
    Information Officer, then things move very quickly because you
    just need to send the information out promptly. So it is a
    matter of just the time in gathering it and sending it out,
    so--
        Senator Cornyn. Thank you very much.
        Ms. Cary. Yes, sir.
        Senator Cornyn. Mr. Mears, you alluded to, as we all are
    conscious of, the fact that we are living in a post-9/11 world,
    and that security always remains a paramount concern for
    government. I believe the first requirement of government is to
    keep the people safe. And I know that there are always concerns
    about whether government itself is perhaps protecting more
    information than it should in the name of security. But, what
    this bill does, in part, I think, is to require it not take
    away any security exemptions that exist under the law but
    require the government entity who requests the information to
    simply demonstrate in some satisfactory fashion that it is not
    just take the word for it, but to actually show how, without
    revealing too much, that indeed it is a security exemption.
        And, I would like for you to comment on that, but first,
    let me say, you know, I am struck how, of course, in Washington
    that, unfortunately, we get too embroiled in finger pointing,
    and, of course, people who criticize the current administration
    forget maybe that Democrat administrations had the same
    problems, and that was alluded to here. But, one of the things
    I was struck by when I was thinking about the Iraq war, for
    example, is the historic embedding of reporters with our troops
    as they went into Iraq and elsewhere. I think we need to work
    to try to keep this balance, and I also want to make sure that
    we don't degenerate into finger pointing, which I think would
    be destructive of our efforts to move forward on something we
    all agree on on a bipartisan basis.
        But could you just speak as a reporter how you view the
    balance between the security interests that obviously are so
    important and the public's right to know?
        Mr. Mears. Obviously, drawing that line has always been a
    very difficult decision to make. It seems to me that the
    starting assumption ought to be that ``classified'' and
    ``security'' don't mean the same thing. It has been pointed out
    that over-classification may have contributed to the
    terrorists' feeling that they were operating secretly and could
    go ahead with 9/11. There has been, I think, a 60 percent
    increase in classification of documents in recent years.
        That does two things. It seems to me to speak to going too
    far over the line on the side of secrecy as opposed to
    disclosure and of over-classification, of making classification
    decisions that aren't warranted. I believe that Tom Ridge made
    that observation himself, that much of what he saw classified
    shouldn't have been classified. I remember Senator Moynihan,
    the late Senator Moynihan fought a long battle about
    classification and about taking some of these reams of
    documents, some of them ancient history, that are still
    classified secret.
        My other observation on the classification problem would be
    that if you classify more and more material, you are much more
    likely to lessen the use of valid classification to protect
    real necessary secrets. If everything is classified, then my
    colleagues are going to go after everything. I have already
    said a couple of times, we don't want security information. We
    don't want to equip terrorists with information that could hurt
    this country. But neither do we want to be deprived of
    information that the people of the United States ought to know.
        One of the stories you will find in my written testimony is
    about a Civil War episode in which an AP reporter tried to file
    a story about Robert E. Lee's army marching up the Shenandoah
    Valley and was told that it couldn't be reported because it
    would compromise secrets. Our guy, my ancient journalistic
    ancestor, said, ``Well, don't you suppose the Confederates know
    they are marching up the Shenandoah Valley?''
        [Laughter.]
        Mr. Mears. And the censor said, ``I guess they do,'' and
    let the story go. I think there is a lot of that mindset and
    that it is something we need to guard against.
        Senator Cornyn. Thank you. Senator Leahy?
        Senator Leahy. Thank you very much. Listening to Mr. Mears,
    it makes me think of a time, I remember once on the
    Intelligence Committee, the third time in two weeks the then-
    Director of the CIA was in. They had this emergency meeting to
    say, here is something I realize I am required to tell you by
    law, and I hadn't told--he hadn't told anybody in the Congress.
    But the reason we had these three emergency meetings, it had
    been on the front page of either the New York Times or the
    Washington Post. None of us had been told about it, but there
    it was. And he came up and said, ``I was supposed to, under
    law, I was supposed to tell you and I didn't get around to it,
    but now it has been in the press.'' So I finally said, you
    know, we could save so much money and come up here, just each
    day have a copy of the Times delivered to us marked ``top
    secret.''
        [Laughter.]
        Senator Leahy. I said, we get three benefits from this.
    One, we are going to hear about the information much, much
    sooner than we will ever hear about it from you--this was Bill
    Casey at the time. Secondly, we will get it in far greater
    detail. And third, the greatest advantage, we get that
    wonderful crossword puzzle.
        [Laughter.]
        Senator Leahy. A couple of his staff laughed. They were
    given a look by the Director, which makes me think their next
    assignment was not the best.
        [Laughter.]
        Senator Leahy. Ms. Graves, the ACLU has several high-
    profile FOIA cases pending now, including ones related to the
    PATRIOT Act and the question of foreign prisoner abuse. On
    PATRIOT, the ACLU forced the Department of Justice and the FBI
    to release data on the provisional law, it has gotten more
    attention than anything else, Section 215. I think that it is
    fair to say the ACLU has actually forced the public release of
    far more information than Congress has obtained carrying out
    its oversight role, to whatever extent it has been on this.
    Does this mean that--I will toss you a nice softball--does this
    mean that we need FOIA and can't rely just on the Congressional
    oversight?
        Ms. Graves. Well, thank you so much for that question,
    Senator, and also for your kind welcoming remarks to me
    earlier.
        My answer would be that FOIA is essential, that
    notwithstanding the separation of powers that is enshrined in
    the Constitution, that gives the legislature a check over the
    executive branch's execution of the powers that are contained
    in the statutes passed by Congress, the fact of the matter is
    that public citizens, that individuals and public interest
    organizations have at times had much greater success in getting
    access to information from the government than Committees of
    the Senate and the House have.
        I think that the most recent disclosures that we have
    received have reinforced that notion. I think the ACLU has
    received approximately 35,000 documents to date in response to
    the FOIA lawsuit and the order of the court in the prison
    treatment cases. About 20,000 of those documents, I believe,
    have been public, but 15,000 were not, and there are many more
    documents that under court order are still being reviewed by
    the Department of Defense and the CIA is undertaking a similar
    review.
        So ideally, FOIA requests by the public and Congressional
    oversight can work hand in hand in making sure that our
    government is accountable to the people.
        Senator Leahy. I think about when you worked at the Justice
    Department, the FOIA guidelines erred on the side of
    disclosure. Now, the guidelines tell agencies the Department of
    Justice will defend the use of FOIA exemptions. I think that is
    resulting in, from what I see, withholding of a lot of
    unclassified documents. Both Senator Cornyn and I talked to
    Attorney General Gonzales about this. I wish they would go back
    to a policy that presumes disclosure unless you have something
    that is really classified.
        It is the case, I mean, we have actually requested material
    that has been in the press, verbatim in the press, and we have
    been told, well, it is classified. We have got to go on the
    assumption--and again, it is not a liberal or conservative
    issue--we have got to go on the assumption of put things out
    unless it really does affect national security.
        Mr. Mears, I take it from reading through your statement
    you feel the war on terrorism has changed the government's
    attitude toward openness?
        Mr. Mears. I think that it has predictably led to a more
    restrictive policy toward information. I suspect that it was
    also the case in such circumstances before my time. I grew up
    during World War II and I remember seeing the posters around
    that said, ``Loose lips sink ships.''
        Senator Leahy. Yes.
        Mr. Mears. That presumed that people walking around
    Lexington, Massachusetts, knew where the ships were, which I
    don't think we did.
        [Laughter.]
        Mr. Mears. But I think that instinct has been repeated over
    our history and I think it is in play now.
        Senator Leahy. When I was four years old, I can remember my
    father going out wearing this tin air raid warden's hat going
    around urging the people in Montpelier, Vermont, to pull their
    shades. I did not really think that we were the number one
    target in the world, although when you read General Walters'
    book, Vernon Walters' book, you find that he was, as a young
    lieutenant, rousted out of bed in the middle of the night and
    asked if he spoke German. He said, ``Yes, I speak about ten
    languages.'' And he was at Fort Ethan Allen outside of
    Burlington and they were intercepting some radio messages from
    Stowe being sent to U-boats. Subsequently, they found out who
    the Nazi sympathizer was there.
        I think sometimes we get--there are still things we do that
    make you wonder. Don't photograph this site. Well, we have got
    a photograph of it here that has been published last year. That
    was last year. Don't photograph it this year. I think we have
    to be careful.
        Are there threats to the United States? Of course. Is there
    a real terrorist threat? Yes. I just, though, remind everybody
    what, to paraphrase Benjamin Franklin, who said that the people
    who would trade their liberty for security deserve neither.
        Mr. Chairman, again I thank you for doing this. I want to
    put in the record a statement by Senator Feingold, if I might--
        Senator Cornyn. Certainly, without objection.
        Senator Leahy. --nd I will submit other questions for the
    record.
        Senator Cornyn. Absolutely.
        Senator Leahy. Thank you.
        Senator Cornyn. Thank you. I think the discussion up to
    this point leads me to want to ask a little bit about process
    issues. One of the differences I found coming from the State
    government to the Federal Government is a lack of process by
    which people understood what their responsibilities were. At
    the State level there were consequences for not acting within a
    particular time period and there was actually somebody, if you
    had a dispute, let us say a legitimate dispute about what the
    law required, what was open and what was not open, somewhere
    you could go and ask.
        I wonder, Mr. Susman, can you share with us some of your
    thoughts? You talked a little bit about attorneys' fees, the
    importance of this ombudsman. We heard something about
    resources people can go to to find out what their
    responsibilities are, how could we improve those incentives to
    comply in a way that would reduce the need for people
    ultimately to go to court?
        Mr. Susman. Thank you, Mr. Chairman. Let me start by saying
    that I do not tend to view the professionals who administer
    Freedom of Information Act requests from day to day, the access
    professionals in the bureaucracies, as the problem because, for
    the most part, they follow the policy directions from above.
    They work with the resources that they have. They work with the
    systems that they have. They work with the technology that they
    have.
        So I think that the issues, the process issues,
    administration issues, are not the fault of those who receive
    the requests, open them, and have to find the documents and
    respond, but they arise higher up in the agency. And most
    agencies, and certainly the executive branch generally, do not
    have the structure for dealing with disputes in a regular and
    rapid way.
        So, for example, if there is a delay that an agency
    experiences or if there is a dispute over fees, a lot of the
    times the reason you have to go directly to court is because
    you can't otherwise get a person high enough up in the agency
    to focus on the subject quickly enough. Sometimes, you go to
    court in order to get the Justice Department involved because
    the agency doesn't want to disclose something that will be
    embarrassing, and it is only when the U.S. Attorney's Office or
    a Justice Department lawyer calls a meeting with his or her
    client before the status conference in court that the
    discussion is had that Senator Leahy refers to in terms of the
    Attorney General's memorandum. It may say we will defend you,
    but these lawyers on the line don't want to go before the
    District Court judges and defend cases that are indefensible.
        So that supports having, for example, a tracking system
    that your legislation calls for in the first instance. I was
    talking to some of my colleagues about the number of times I
    have used the Freedom of Information Act request and had to
    follow up with a faxed copy of the request or call and send
    another one or even two over again because the agencies haven't
    had the systems in place to track them and to let you know
    readily where the request is. This is technology most foreign
    countries, which have been adopting open government statutes
    over the last decade, already have. It is time for us, too.
        Once you begin to deal with the agency, if there is a
    dispute, a lot of times, these disputes are caused by simply
    mistrust. The agencies have had their fill of requestors trying
    to get this kind of information and the requestor has had their
    fill of getting what is viewed as stonewalling by the agency,
    and yet there is no place else to go. There is just no place to
    go.
        You can go to the Justice Department for advice, but they
    defend the agencies, so that is not at all like the Texas
    Attorney General's Office. That is not exactly where I would
    put my hotline in the Federal Government. We need an
    independent office that can act as a neutral, objective arbiter
    between the requestor and the agency, and then at the end of
    each year say, these are the kinds of problems, in some ways
    perhaps like your Faster FOIA Commission would work, these are
    the kinds of problems that we see happening over time and let
    us work on them. Let us not have Congress have to come back
    every few years and make the adjustments. Let us do it
    ourselves.
        The Justice Department has not played that role. The White
    House has not played that role, and it is useful to have
    another agency that can play that role.
        Senator Cornyn. Mr. Tapscott, I guess we have talked a
    little bit about the ideological spectrum reflected here. I
    think we cover the whole spectrum, which is good. I think, as
    Senator Leahy and I have said time and time again, this is not
    a Democrat or Republican issue. And I guess, really, I am
    trying to figure out in my own inarticulate way how to say that
    the facts are the facts are the facts, and the interpretation
    that you draw from the facts or perhaps the way you see the
    world based on those facts may differ and that may be what
    makes some people conservative, some liberal, some Republican,
    some Democrat. But what we are talking about is getting access
    to the facts.
        It has been my experience that, from a conservative
    standpoint, the facts will often reveal abuses, waste. My
    experience has also been that the facts will often reveal what
    a good job government officials are doing. And, my experience
    has been that most people that work in government are good
    people trying to do their best to live up to their
    responsibility.
        Would you address, in terms of the waste and abuse and the
    importance that you see in having a robust Freedom of
    Information Act, why it is so important in that area?
        Mr. Tapscott. Certainly. Let me preface that by saying,
    Senator, that I occasionally wear a pink shirt to work and I
    have noted on occasion that when I have done that, that some of
    my colleagues at Heritage say something along the lines of,
    ``He has been talking to Leahy again.''
        [Laughter.]
        Senator Leahy. You weren't supposed to tell anyone.
        [Laughter.]
        Mr. Tapscott. I think your point is absolutely right.
    Government frequently cheats itself of the benefit of people
    knowing what a good job most government employees do. The fact
    is, however, with any government as big as the Federal
    Government or a government the size of the State of Texas or
    wherever it may be, there will be problems and there will be
    waste and fraud occurring.
        Two examples that come to my mind, which I allude to in my
    statement, the Sun Sentinel in Florida found through the FOI
    that in spite of the fact that Hurricane Frances had landed 100
    miles north of Miami-Dade County, that residents there had
    collected about $28 million in Federal reimbursements for
    things that had been destroyed by this hurricane, like
    televisions and sofas and things like that. The highest
    recorded winds in Miami-Dade County were 47 miles an hour. We
    wouldn't have known about that without the FOI.
        More importantly, there is a case going on right now which
    I think speaks to one of Tom's points, and that is Cox
    Newspapers has been requesting from the Department of Justice a
    database of grants from the Federal Government to State and
    local law enforcement. The reason they are looking for this is
    they have discovered in Georgia that there are several thousand
    illegal aliens who are--excuse me, in Georgia, several hundred
    illegal aliens who had been convicted of serious felonies and
    released but then not deported as they are required to be under
    Federal law, the reason being the immigration officials from
    the Federal Government just didn't show up. And the suspicion
    obviously is that the reason the Department of Justice will not
    release this database is because they are afraid of the
    headlines that could result.
        If they did release that, for the same reason that
    ``Wanted'' posters work in the post office, if these reporters
    had access to this database, private citizens and the media all
    over the country could help the government find these people
    who have committed serious crime.
        Senator Leahy. Thank you, Mr. Chairman. I worry about that
    very same thing, the number picked up, released.
        Let me ask this question regarding the National Security
    Archive. You are one of the most active users of FOIA in the
    nonprofit community. I am told by my staff you filed 30,000
    requests, made six million pages of documents available. You
    have probably heard my story before about Bill Casey and stamp
    the newspaper top secret. But you sort of go across the board
    to a whole lot of different agencies. I mean, it might be
    Agriculture, it might be Justice, it might be anything else. Do
    you find a difference in the way agencies monitor and track
    their FOIA requests? Is there uniformity among agencies?
        Ms. Fuchs. No, Senator Leahy, there is not uniformity
    amongst agencies, and in fact, it is some of those differences
    that really highlight why the proposals in the bill, such as
    the hotline and the tracking and monitoring, is so necessary.
        What we have found in looking at over 35 Federal agencies
    is that they have completely different systems. Some are so
    decentralized that once you submit your FOIA request, you have
    absolutely no idea where it goes, whether it goes to another
    component of the agency, whether it gets referred out to
    another agency altogether, and there is no way of finding that
    out except by making many, many phone calls. You know, we have
    a full-time person who monitors our FOIA requests and we have a
    database in which we keep track of every FOIA request and what
    happens with it. But for most FOIA requestors, they don't have
    the ability or the resources to do that.
        I think that requiring agencies to acknowledge requests,
    requiring them to set up a FOIA hotline so you can find out
    where your requests are are critical for making the agencies be
    responsive. And frankly, I think it is going to reduce disputes
    and litigation, as well, because by having an agency let the
    FOIA requestor know, we have your request, it is in the line,
    we are taking care of it, this is our estimated completion
    time, people are going to feel that the government is
    responding to them.
        What happens right now is with many agencies, it is a
    complete black hole. We have one agency where we have something
    like 100 requests that are, oh, between two and 14 years old
    that we don't get any responses to, despite follow-up. Well,
    that is not going to be possible when agencies have to have a
    tracking system in place.
        Senator Leahy. I also see some of these new
    classifications, ``sensitive but unclassified,'' or ``for
    official use only.'' These don't have any legal protections
    under FOIA, do they?
        Ms. Fuchs. They shouldn't have legal protection under FOIA.
        Senator Leahy. But do agencies tend to hold back? I mean,
    do they have a chilling effect on FOIA?
        Ms. Fuchs. Well, we at the National Security Archive,
    particularly because many of our requests go to military and
    intelligence agencies, we worry about that. We have seen an
    increase in the labeling of information as ``sensitive but
    unclassified,'' ``for official use only,'' and agency officials
    tell us it doesn't have an impact on FOIA, but, in fact, it is
    hard to believe that when documents are coming across for
    review and they say, ``sensitive but unclassified,''
    ``sensitive security,'' ``sensitive homeland security
    information,'' or any of the other combinations of letters,
    that they are not being held back from disclosure.
        Senator Leahy. I remember one of the first trips as a young
    Senator I took to the then-Soviet Union and we were in what was
    then called Leningrad, now St. Petersburg, a beautiful city,
    and I was walking around to do photography, and they still had
    signs on all the bridges. I had seen the maps that had the city
    about eight miles off from where it really was, as though your
    satellites couldn't make any difference, and the bridges had
    signs in Russian, English, I think French, saying no
    photography allowed there. One is a beautiful bridge with great
    sculptures. I had my wife who stands while I was taking a
    photograph of her with a telephoto lens but shooting over her
    shoulder.
        But then I came to a church, and again, it was being
    repaired. Here is this sign. I couldn't understand the reason.
    The person who was with us was actually in the KGB, although
    that is not what they told us--we knew it, he wasn't going to
    say it--but he said, ``Go ahead and take the picture.'' As soon
    as I put up the camera, a police officer comes running down the
    street. I thought, God, I am going to end up in jail. He got
    almost up to this guy, who flashed his ID at him and the man
    starts going backwards saluting. And he turns to me and says,
    ``Like I said, take the picture.''
        [Laughter.]
        Senator Leahy. I worry in some ways we are doing this.
    Again, I don't want somebody to send out a list of here are our
    12 undercover agents in this particular country. Of course not.
    Nobody is asking for that. But it is so easy to say, well, if
    we classify everything, we can never be accused of letting the
    wrong thing come out.
        I appreciate what you are doing and Senator Cornyn and I
    will continue our work. I mean, he has had his own experience
    in Texas and can sell how well it can work. We will just keep
    on it, but thank you. I will submit the rest of my questions.
        Senator Cornyn. Ladies and gentlemen, all good things must
    come to an end and we are going to close this hearing for now.
    But, as I said earlier, this is, from my standpoint and I trust
    from Senator Leahy's standpoint, the beginning and not the end.
    We consciously chose in our discussions about what to file in
    terms of early legislation things that we thought would not be
    particularly controversial, things that were common sense and
    would assist agency representatives both through education and
    training and other things to do the job that the law already
    requires them to do.
        I not only want to thank you for your testimony, your oral
    and written testimony today, but also thank you for your
    willingness to work with us on this important issue and trust
    that we can continue to call on you from time to time to help
    us as we move forward, because as I said, this is just the
    beginning and not the end.
        So, on behalf of Chairman Specter and certainly Senator Kyl
    and Senator Feinstein, as I said, Senator Leahy, they allowed
    us to hijack their Subcommittee for purposes of this hearing, I
    want to express my appreciation to them, but also finally again
    to Senator Leahy and his staff for their great work.
        We will leave the record open until 5:00 p.m. next Tuesday,
    March 22. There will be, no doubt, written questions that
    others would like to submit to you which we would like to get
    your answers for the record and would ask you to respond to
    those as soon as you can.
        With that, the hearing is adjourned.
        [Whereupon, at 11:48 a.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
        [Additional material is being retained in the Committee
    files.]

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