[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
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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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