[Senate Hearing 110-55]
[From the U.S. Government Publishing Office]
S. Hrg. 110-55
OPEN GOVERNMENT: REINVIGORATING THE FREEDOM OF INFORMATION ACT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 14, 2007
__________
Serial No. J-110-18
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
35-801 WASHINGTON : 2007
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 5
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 4
prepared statement........................................... 35
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 19
prepared statement........................................... 49
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 70
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Cary, Katherine, General Counsel, Texas Office of the Attorney
General, Austin, Texas......................................... 12
Curley, Tom, President and Chief Executive Officer, The
Associated Press, Representing the Sunshine in Government
Initiative, New York, New York................................. 10
Fuchs, Meredith, General Counsel, National Security Archive,
George Washington University, Washington, D.C.................. 6
Haskell, Sabina, Editor, Brattleboro Reformer, Brattleboro,
Vermont........................................................ 9
QUESTIONS AND ANSWERS
Responses of Meredith Fuchs to questions submitted by Senator
Leahy.......................................................... 26
SUBMISSIONS FOR THE RECORD
Cary, Katherine, General Counsel, Texas Office of the Attorney
General, Austin, Texas, statement.............................. 32
Curley, Tom, President and Chief Executive Officer, The
Associated Press, Representing the Sunshine in Government
Initiative, New York, New York, statement...................... 37
Fuchs, Meredith, General Counsel, National Security Archive,
George Washington University, Washington, D.C., statement and
attachments.................................................... 50
Haskell, Sabina, Editor, Brattleboro Reformer, Brattleboro,
Vermont, statement............................................. 67
OPEN GOVERNMENT: REINVIGORATING THE FREEDOM OF INFORMATION ACT
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WEDNESDAY, MARCH 14, 2007
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feingold, Cardin, Specter, Cornyn,
and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Today, our Committee will
hold an important hearing on reinvigorating the Freedom of
Information Act. I believe the enactment of the FOIA 40 years
ago was a watershed moment for our democracy. FOIA guarantees
the right of all Americans to obtain information from their
Government and to know what their Government is doing.
Now in its fourth decade, it has become an indispensable
tool in protecting the people's right to know. It sheds light
on bad government policies and government waste, fraud, and
abuse. Every administration, Democratic or Republican, will
send out plenty of press releases when they are proud of
things. It takes FOIA to find out when they have made mistakes.
Just this week, amid the growing scandal regarding the
firing of several of the Nation's U.S. Attorneys, we witnessed
the importance of openness in our Government. We have also
witnessed the importance in sunshine laws with the Justice
Department's Inspector General's report on the FBI's abuse of
National Security Letters. That was a report required by the
sunshine provisions that Senator Specter, myself, and others in
Congress worked hard to include in the PATRIOT Act
reauthorization bill.
Openness is a cornerstone of our democracy. FOIA lets us
know what is happening. Whether it is human rights abuses in
Iraq, Afghanistan, and Guantanamo Bay, environmental violations
at home, public corruption, information about many of the
important issues of our time has been obtained through FOIA.
But FOIA is facing challenges like it never has before.
During the past 6 years, the administration has allowed lax
FOIA enforcement and a near obsession with Government secrecy
to dangerously weaken FOIA and undercut the public's right to
know. That is because currently Federal agencies operate under
a 2001 directive from then Attorney General Ashcroft that
reverses the presumption of compliance with FOIA requests that
had been issued by the former Attorney General. The
administration has sought to erode FOIA by including a broad
FOIA waiver for critical infrastructure information in the
charter for the Department of Homeland Security, the biggest
roll back of FOIA in its 40-year history.
The setbacks to FOIA are coupled with the expanding use of
Government secrecy stamps to over classify Government
information. Billions of dollars of taxpayers' money is spent
every year to classify things that sometimes have been on
Government web sites for months before they are classified. We
have the unprecedented use of presidential signing statements
and the state secrets privilege and so on. These plague FOIA.
In fact, I was checking with the Federal Government, and I
said, ``What is the oldest FOIA request that is pending and has
not been answered?'' 1989. That was before the collapse of the
Soviet Empire. Things have changed. I praised the President for
issuing a directive last year to move forward for Government
agencies to improve their FOIA services, but today, more than a
year later, they are less apt to get answers than they were
before.
The Government Accountability Office found that Federal
agencies had 43 a Representatives in Congress from the State of
percent more FOIA requests pending and outstanding in 2006 than
they had in 2002. As the number of FOIA requests continues to
rise, the agencies are not keeping pace. OpenTheGovernment.org
says the number of FOIA requests submitted annually has
increased by more than 65,000 requests, but, of course, when
you do not answer them, they are just pending and are carried
forward.
And then you have the exemptions under Section (b)(3) of
FOIA that has allowed FOIA exemptions to be snuck into
legislation, sometimes with no debate whatsoever, and passed.
Then we have a new report by the National Security Archive
stating that, 10 years after Congress passed the Electronic
Freedom of Information Act--E-FOIA--which I co-authored in
1996, Federal agencies still do not comply with it.
Earlier this week, Senator Cornyn and I reintroduced the
OPEN Government Act. We drafted this bill after a long and
thoughtful process of consultation with a whole lot of people.
I appreciate the strong partnership that I have with
Senator Cornyn on open government issues. The thing we both
came to conclude is that the temptation to withhold information
can be either in Democratic or Republican administrations.
Neither of us knows who is going to be in the new
administration not quite 2 years from now. But we do know, both
of us, that if we put in strong FOIA legislation, they are
going to have to answer questions, and we are all going to be
better for it. After all, Government is there to serve all of
us, not the other way around. And the only way we can know that
is if they answer questions.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. I agree with your
basic premise that transparency and openness is the very basis
of a democracy, and the Freedom of Information Act, which was
passed more than 40 years ago, could be a very major step
forward in providing that transparency, providing it is
followed or it is enforced. To see the statistics which have
been published recently that, out of 149 Federal agencies, only
1 in 5 posts on its website all records which are required is
very disturbing. And websites today are a principal, if not the
principal way of transmitting that sort of information.
I have noted the work which is done by the National
Security Archives, talking to Ms. Fuchs for a few moments
before we started here. To look at the name of the National
Security Archives, you would think it was some high-powered
Federal agency, and it is a nonprofit. But they know the
questions to ask, and there is much of national security which
is outdated or can be disclosed to the public safely. And as I
said to Ms. Fuchs, she knows the questions to ask. And she
needs help from a statute which can be enforced.
I was Talking to Mr. Tom Curley of the Associated Press
about the subject of investigative reporting. It has changed a
lot in the past several decades. When I was district attorney
of Philadelphia many years ago, there was very heavy
investigative reporting by the Philadelphia Inquirer and the
Philadelphia Bulletin. Today, there is no more Philadelphia
Bulletin, as so many afternoon newspapers have ceased to exist.
And the Inquirer has changed hands as a result of many cutbacks
in staff, and investigative reporting is gone. So that the
access to Federal records through the Freedom of Information
Act is really a very, very important item. And I believe it has
become even more so in the course of the past several weeks as
we have seen the heavy intrusion into sources for newspaper
reporters, with a parade of reporters taking the stand in a
highly unusual fashion in the Libby trial.
I hope that we will move ahead with the legislation which
will provide on the Federal level a reporter's privilege. There
is a split in the circuits. It is a very unclear, muddy
situation. There should be an exception on national security
cases, but I believe that before you put a reporter in jail,
especially for a long period of time, like Judith Miller was
for 85 days, there ought to be a very, very serious national
security interest involved. And in that matter, what started
out as the outing of a CIA agent, which is an important
national security matter, that element was dropped early on.
And then the leaker was discovered to be Richard Armitage, the
Deputy Secretary of State. So it is a little hard to see why so
many reporters were pursued with so much intensity, and
especially leading to the incarceration of Ms. Miller for a
very long period of time. So I think the alternative here of
having some real action under the Freedom of Information Act is
very, very important.
In the 42 seconds I have left on a 5-minute opening, I want
to commend Senator Leahy and Senator Cornyn for their
leadership on this matter, on the legislation. I did not get
through the pile of requests yesterday in time to be an
original cosponsor, so I will be an un-original cosponsor.
[Laughter.]
Senator Specter. And add my name to that legislation today.
Chairman Leahy. Without objection.
Senator Specter. And, Mr. Chairman, I want to yield back my
14 seconds.
Chairman Leahy. Thank you. Normally we would get right into
this, but with Senator Cornyn as one of the two main sponsors
of this, I do want to hear from him.
Senator Specter. If I may say one more word, I am going to
yield to my distinguished colleague, Senator Cornyn, who will
take the lead on this side of the aisle. We are very heavily
engaged in the U.S. Attorneys issue, and--
Chairman Leahy. I read about that.
[Laughter.]
Senator Specter. And with Senator Leahy occupied, I better
go take care of some other Committee business.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
We have a few things on the agenda, but, Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman. I appreciate your
comments and your leadership on this important issue, and I am
proud to join you in what I think will be very beneficial
legislation, which will create greater transparency. Almost as
importantly, this will create some procedures with real
consequences for the handling of Freedom of Information
requests.
I would note Senator Leahy is one of the few members of
this Committee who actually participated in the passage of
Freedom of Information Act legislation. My experience and my
passion for this issue really came from my service as Texas
Attorney General, and I would just note that in that capacity I
was responsible for enforcing our own State Sunshine Laws, our
own State open government legislation. And, you know, I think
the Federal Government can learn a lot from the States, and in
this area in particular. And I am proud that Missy Cary, who
was my right arm on so many of these open government issues, is
going to be testifying today and perhaps providing some helpful
information to Congress on how we might embrace some of the
experience of the States in improving our transparency and the
procedures by which we handle open government requests.
I have a longer statement, which I would ask to be made
part of the record.
Chairman Leahy. Without objection.
Senator Cornyn. Thank you. I will keep this short and sweet
so we can hear from the witnesses. But I do want to quote from
a portion of Ms. Cary's statement, which itself quotes the
policy statement that introduces the Texas Public Information
Act, because I think it so concisely and so accurately states
the issue.
It says, ``The people, in delegating authority, do not give
their 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 retain
control over the instruments they have created.''
To me, that very concisely states the issue, and I would
just close by saying the entire legitimacy of our form of
Government and self-determination is premised upon consent of
the governed. We, the people, are in charge. The instruments,
in the words of the Texas Public Information Act, the
Government, do not tell us what is good for us. We tell the
Government what we want. But the only way we can do that
knowledgeably is to know what is going on. And with so much
temptation to hide the ball--and we all understand that human
nature is the same whether it is Republican or Democrat, the
temptation is to trumpet your successes and to hide your
failures, and we all understand why people do that. But it is
important to recognize that the very legitimacy of our form of
Government is premised upon consent of the governed. And the
people cannot consent to what they do not know, and that is why
this legislation and this hearing are so important.
Thank you very much.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Leahy. Thank you. And, Senator Cornyn, Senator
Specter is not coming back, if you are going to take the role
of the senior Republican here, come on down. You may have
difficulty getting re-elected in Texas if we all move down.
I would ask the witnesses to please stand and raise your
right hand. Do you solemnly swear that the testimony you are
about to give before this Committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Ms. Fuchs. I do.
Ms. Haskell. I do.
Mr. Curley. I do.
Ms. Cary. I do.
Senator Coburn. Mr. Chairman, might I have the privilege of
just a few comments?
Chairman Leahy. Of course.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. I have another hearing I have to go to.
You know, it is interesting that we have a letter in my
office from somebody who has been trying to get information
through FOIA for 18 years--18 years. In this past Congress, we
passed the Accountability and Transparency Act, which is going
to help.
But one of the reasons there is a crisis of confidence in
this country over the Government is because there is not
transparency. Without transparency, accountability cannot be
carried out.
I hope to eventually become a cosponsor of this
legislation. There are a couple of small areas in it that I
have concerns with, but the more information the American
public has, it builds confidence, and it also corrects errors.
And it is something we ought to all be engaged in.
The other thing I would caution my fellow Senators is just
because we pass a law does not mean it is going to happen. You
saw that evidenced yesterday on the floor vote. There is a law
called the Improper Payments Act. It mandates every agency of
the Government to do a review of where they are at risk and
report to Congress. The Senate refused to force once agency to
comply with that law yesterday, which means none of the other
agencies have to comply with it either, since now we have voted
that Homeland Security does not have to comply with it.
So it is important for us to be realistic. We can pass all
the laws we want, but unless Congress is going to put teeth
into the laws with consequences, a FOIA change is not going to
happen unless there is teeth behind it.
So I thank the Chairman for having this hearing. I am very
impressed and excited about the bill, and hopefully the small
changes that we would like to see in it will allow us to
cosponsor it.
Chairman Leahy. Thank you. Thank you very much.
Our first witness will be Meredith Fuchs. She is General
Counsel for the National Security Archive. During the time she
has been there, she supervised five governmentwide audits of
Federal agency FOIA performances, including an audit released
this week entitled ``File Not Found: Ten Years After E-FOIA,
Most Agencies Are Delinquent.'' That gives some indication what
the report says. Previously, she was a partner at the
Washington, D.C., law firm of Wiley, Rein & Fielding and served
as a law clerk to Hon. Patricia Wald of the U.S. Court of
Appeals for the District of Columbia Circuit and the Honorable
Paul Friedman, U.S. District Court for the District of
Columbia. She graduated from the London School of Economics and
Political Science with a Bachelor's of Science degree and
received her J.D. cum laude from the New York University Law
School.
Please go ahead.
STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY
ARCHIVE, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C.
Ms. Fuchs. Chairman Leahy, Ranking Member Specter, and
members of the Senate Committee on the Judiciary, I am pleased
to appear before you to support efforts to improve the Freedom
of Information Act.
Senator Leahy already talked about the National Security
Archive. We are a nonprofit research institute and leading user
of the FOIA. I have attached to my written statement our E-FOIA
report that was issued this week, and I would be happy to talk
about it in questions. But I want to touch on a few other
issues about why it is so important today for Congress to act.
There are many ways to measure the role of the Freedom of
Information Act in our Nation. One way is to look at the work
of the news organization headed by Mr. Curley, who sits on this
witness panel. The AP has reported remarkable news stories
based on records released under FOIA, but this would not have
been possible if the AP had not been willing to litigate in
court to enforce its rights to information.
This illustrates a significant problem. While the FOIA has
been a powerful tool to advance honesty, integrity, and
accountability in Government, there is still a culture of
resistance to the law in many Federal agencies. Instead of
viewing the public as the customer or part of the team, the
handling of FOIA programs at some agencies suggests that the
public is considered the enemy and any effort to obstruct or
interfere with the meddlesome public will be tolerated.
The FOIA is a unique law. There is no Federal, State, or
local agency that enforces it. It depends on the public to make
it work with the tools provided by Congress and an independent
judiciary that is willing to remind agencies of their
obligations. Based on their own reporting, we know agencies
will not make FOIA a tool for timely education about Government
activities.
Each agency is required to submit an annual report that
provides FOIA processing statistics as well as information on
the agency's progress in achieving goals that they set
themselves under FOIA improvement plans that were mandated by
Executive Order 13392. The reports for fiscal year 2006 were
due by February 1, 2007. As of this past Monday, the reports of
only 8 out of 15 Federal departments and only 51 out of 75
Federal agencies were available.
The Department of Justice has taken the lead on guiding
agencies through the Executive order process. Its own annual
report acknowledges that DOJ components have failed to meet 30
different goals set out in its FOIA improvement plan. Most
striking to me is the Federal Bureau of Investigation section,
which indicates that eight of the FBI's FOIA improvement goals
were not met. For some of these goals, the FBI simply pushed
back its deadlines by 1 year. For example, they reported that
they had 60 vacancies in their FBI FOIA staff and set a goal to
fill those vacancies by September 30, 2006. They did not do it,
and instead the goal has now been moved to September 30, 2007.
They set a goal to review and update their website by December
31, 2006, and as you can see from our E-FOIA report, it is much
needed. They failed to do it, and instead moved the deadline to
December 31, 2007.
As you know, the FOIA requires a response to FOIA requests
within 20 business days. Attached to my testimony is a
compilation of the date ranges of pending FOIA requests at
Federal agencies. The list was compiled from the agency annual
reports referenced above.
As you can see from the charts, at least seven departments
have FOIA requests still pending that are more than 10 years
old. An additional seven have requests that are more than 5
years old. And 28 more have requests that are more than a year
old. And those are just the agencies whose reports are already
available.
At a hearing held in the House of Representatives on
February 14, 2007, Melanie Pustay from the Department of
Justice testified that agencies have made great progress
handling their backlogs. While this certainly may be true, I
want to give you an example of how they are eliminating
backlogs.
The story begins in 2001 when my organization, the National
Security Archive, received a series of letters from the
Department of the Treasury asking us whether we would continue
to be interested in 31 individual FOIA requests that had been
submitted throughout the mid-1990's. We indicated that we
continue to be interested.
Then in December 2005, President Bush issued Executive
Order 13392, which specifically directed agencies to set goals
designed to reduce or eliminate their backlogs. Here is what
happened next.
On June 14, 2006, the Department of Treasury set a goal to
reduce its FOIA backlog by 10 percent by January 1, 2007.
Starting in August 2006, we began to get letters from Treasury
asking if we continued to be interested in our FOIA requests.
The letters warned ``if we do not receive a reply...within 14
business days...we will close our files regarding this
matter.''
On January 9th, I wrote a letter to Treasury in which I
wrote: ``In many instances, we have received two or three
letters [threatening to close] a particular FOIA request
despite the fact that we already advised the Department of our
continued interest...'' I concluded, ``I request that you do
not close any Archive FOIA request or appeal without processing
it.''
On February 23rd, Treasury sent another letter asking
whether we continue to be interested in several additional old
FOIA requests. In it, they acknowledged they received my
letter. ``We received a letter from Meredith Fuchs of the
National Security Archive...[but] we are in the process of
reducing [Treasury's] significant backlog by communicating with
requesters as to which of those requests have gone stale.''
We received those letters for the same 31 requests that we
were asked to abandon in 2001. But that is not the punch line.
The punch line is that some of the letters that we received
since August also indicated that the original requests--which
were submitted in the mid-1990's--have been destroyed, and they
asked if we could send them new copies of our FOIA requests.
Well, I wonder what the Department of Treasury FOIA program has
done in the last 6 years after they first asked us to abandon
our requests. And it certainly be interesting to know how many
requests they are able to close in this manner under the
Executive order's mandate to reduce backlogs. While this may be
one way to eliminate backlogs, it cannot possibly be what
Congress intended from FOIA.
There are several provisions of the OPEN Government Act of
2007, introduced yesterday, that I think are critical for
improving the functioning of FOIA. Most critical are the
provisions that restore the catalyst theory for attorneys' fees
awards and the provisions for better reporting. I detail the
benefits of these and other provisions in my written testimony,
and I am happy to respond to your questions.
[The prepared statement of Ms. Fuchs appears as a
submission for the record.]
Chairman Leahy. Thank you very much. You should probably
send them a copy of ``Catch-22'' in response to the requests.
[Laughter.]
Chairman Leahy. Sabina Haskell is the editor of the
Brattleboro Reformer located in Brattleboro, Vermont, in
Windham County, a very pretty part of our State. But she is
also the President of the Vermont Press Association which is
statewide; a founding member of the newly created Vermont
Coalition for Open Government, a nonprofit consortium of
organizations and individuals who want to enhance the
performance of Vermont's right-to-know laws; has 10 years
experience in Vermont journalism as a reporter, assignment
editor, city editor, and editor of the Bennington Banner,
Rutland Herald, and Brattleboro Reformer. Just pure coincidence
we have someone from Vermont here.
Ms. Haskell. Pure coincidence.
[Laughter.]
Chairman Leahy. Please go ahead, Ms. Haskell.
STATEMENT OF SABINA HASKELL, EDITOR, BRATTLEBORO REFORMER,
BRATTLEBORO, VERMONT
Ms. Haskell. Good morning. First of all, thank you for
inviting me to speak here today and to talk to you about the
needed forms to the Freedom of Information Act. I am Sabina
Haskell, and I am the editor of the Brattleboro Reformer, and
we are a circulation 10,000 paper in southeastern Vermont.
Even at that small size, we are the third largest newspaper
in Vermont, and we are in good company. Eighty-five percent of
the newspapers in the United States have circulations of 50,000
or less. The smaller newspapers generally pursue public records
from the State and local officials, not the Federal sources,
but our efforts to do so are a quagmire, and they are getting
worse.
As President of the Vermont Press Association, I can tell
you that we are very frustrated with the de facto sentiment of
secrecy that seems to be appearing at every level of
government, and I think it begins at the top, where we are
getting stripped of our constitutional rights.
The fear-mongering that is exposed at the Federal level
where questions and requests for information are viewed as
suspect is being replayed time and time again at the State and
local level. And I believe the effort to seal off the Federal
Government is the primary reason that there are increased
efforts to close the doors on transparent Government at the
State and local level.
The anecdotes I am going to share with you come from the
dozen dailies and the four dozen non-dailies that are members
of our association. If you multiply us in Vermont by all 50
States and 1,500 newspapers, you can understand the problem.
The Freedom of Information Act is supposed to allow
anybody, regardless of citizenship, whether they are a person
or a business, to get a record without explanation or
justification. We are supposed to get those records with little
effort and in a timely manner. Only yesterday, we were told by
the Vernon Fire Department that we could not have the records
to their books. And, in fact, the fire chief took my reporter
and said to him, ``If you publish this, I can assure you there
is going to be retaliation.''
Chairman Leahy. I should note that the Vernon Fire
Department is in a town where there is a nuclear reactor.
Ms. Haskell. Yes, thank you, Senator. And we went ahead and
we started the legal process, and we will be fighting this, as
you can imagine.
When we asked for a copy of the Brattleboro police chief's
contract and a record of how many days he spent at the station,
we were rebuffed. ``Why do you want that? What do you need that
information for?'' We were told that we would get the contract
when we gave them those answers, and we still do not have the
contract.
In northeastern Vermont, a little non-daily wanted to do a
story about a new handicapped-accessible ramp outside of the
town hall, built of pressure-treated lumber. And when they
asked for an illustration, an architect's rendering to go with
the illustration, they were told they could not have it because
of homeland security reasons.
In Winooski, the school board made a sweetheart deal with
the superintendent and bought out his contract. The Burlington
Free Press sued. It took them 18 months to win the case, and in
that time, everybody's interest had gone on to something else,
and the attorney said to the Free Press, ``You don't think we
lost, do you?''
And in Jamaica, a town official asked for some documents
about the sheriff's department. He wanted time sheets for her.
He wanted time sheets for a deputy and for a detective. He
wanted the records to show what expenses had been reimbursed,
and he asked for records to show their whereabouts for 3 days.
Two of them were dismissed under public records law, and the
third she outright told a lie. And, in fact, she was convicted
of embezzlement and resigned in disgrace, obviously. So he paid
for that all by himself and had to do it, and he still lost.
The amendments that you propose will go a long way to make
the Freedom of Information Act stronger. We do not get the
records we want within the allotted time, we have to chase them
on our own dime, and enforcement is lax. And the amendments
that you will do will help us at the local and the State level.
Thank you.
[The prepared statement of Ms. Haskell appears as a
submission for the record.]
Chairman Leahy. Thank you very much, and I apologize. Your
first name is pronounced ``Sabina.''
Ms. Haskell. That is okay. Everybody does it wrong.
Chairman Leahy. I had it wrong.
Tom Curley, who is going to be our next witness, was named
President and Chief Executive Officer of the Associated Press
in June 2003. Mr. Curley has--and I say this as a compliment--
deepened the Associated Press' longstanding commitment to the
people's right to know. He serves as one of the country's most
aggressive advocates for open government. He previously served
as President and publisher of USA Today. He holds a political
science degree from Philadelphia's LaSalle University, a
master's degree in business administration from Rochester
Institute of Technology. And, Mr. Curley, thank you very much
for coming here today.
STATEMENT OF TOM CURLEY, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
THE ASSOCIATED PRESS, REPRESENTING THE SUNSHINE IN GOVERNMENT
INITIATIVE, NEW YORK, NEW YORK
Mr. Curley. Mr. Chairman, Senator Cornyn, thank you. Your
efforts to strengthen the Freedom of Information Act show an
absolutely courageous and timely commitment to the essence of
our democratic values.
FOIA was a promise to the people that, whatever they might
want to know about their Government, they could find out and
that the law would back them in all but a few kinds of highly
sensitive or confidential matters. Well, the law does back
them, but in too many cases, the Government does not back the
law.
I know you are aware that the FOIA backlog requests are
rising every year. The failure is costly in ways the numbers
cannot show. When agencies respond, as the law says they
should, the information they reveal can provoke public response
that improves Government operations, curbs waste and fraud, and
even saves lives. When agencies do not respond, those
opportunities are delayed or lost entirely.
I can tell you about one such opportunity. In 2005,
Government scientists tested 60 school lunchboxes for toxic
lead. Afterward, the Consumer Product Safety Commission told
the public it found, in these words, ``no instances of
hazardous levels.'' The Associated Press filed a FOIA request
and learned several boxes had more than 10 times the maximum
acceptable level.
You might have expected to read our report more than a year
ago, when we filed our first expedited FOIA request. But our
story was just published last month. It took us an entire year
to get the documents. Apparently, the Commission still thinks
the boxes are safe. They told us children do not use their
lunchboxes in a way that exposes them to the lead found in the
tests. Maybe they are right, but maybe they are not.
We talked to expert researchers that told us the lead
levels were cause for serious concern, and when the Food and
Drug Administration saw the test results, they warned lunchbox
manufacturers they could face penalties. One major store chain
quietly pulled the boxes off its shelves nationwide.
Evidently, reasonable people can disagree, and that is the
point. Reasonable people can disagree, but only if they know.
Why did it take a year for the Commission to respond to a
relatively simple request that FOIA says it was supposed to
answer in 20 working days? It took a year because FOIA imposes
no penalty for ignoring deadlines. The OPEN Government Act
legislation, introduced yesterday by Senators Leahy and Cornyn,
includes real FOIA enforcement provisions. The Sunshine in
Government Initiative urges enactment of the legislation this
year.
The predisposition to deny has grown steadily worse in
recent years. Federal officials who used to provide information
for the asking now say you have to file a time-consuming FOIA
request. If the request is denied, administrative appeals are
often no more than occasion for further broken deadlines and
ritual denials. And the requester finally ends up with a choice
between giving up or commencing litigation that can easily cost
well into six figures. Even AP has to choose its fights
carefully.
Another problem with the law as it stands is that we can
litigate a FOIA denial for years and still not get our legal
fees reimbursed if an agency turns over the goods before a
court actually orders it to do so. How many of your small
business or private constituents just have to give up because
they cannot afford to sue?
There could easily be a third way. A strong FOIA ombudsman
within the Federal Government could help requesters around some
of the most unreasonable obstacles without forcing them to go
to court. This is a legislative priority for our media
coalition.
By no means is the news from the FOIA front all bad. I can
tell you FOIA success stories, too, which illustrate why FOIA
is such a cornerstone of our democracy. Thanks to FOIA, AP last
year was able to report for the first time the extent of deaths
and injuries among private contract workers in Iraq. And FOIA
requests were a crucial part of AP's reporting which showed
that highly publicized Federal fines against companies that
break the law are increasingly being written down afterwards,
sometimes by more than 90 percent.
It is a tribute to the professionalism and respect for the
rule of law of so many agency FOIA officers that they respond
correctly to thousands of requests each year. But their
achievements are too often undermined by others who think
obstructing information flow is a national policy. The Ashcroft
memorandum advising agencies that the Justice Department was
ready to back any plausible argument for denying a FOIA request
continues to set the tone for access.
When Government has trained itself to believe that the
risks from openness are substantial while the risks from
keeping secrets are negligible, you begin to get the kind of
Government nobody wants--a Government that believes its job is
to do the thinking for all of us.
You get, for example, the Consumer Product Safety
Commission that decides on its own, for all of us, that a
little bit of toxic lead in a lunchbox is okay and the matter
needs no further discussion. ``Further discussion'' is the
essence of a free society. We need a strong and effective
Freedom of Information Act to make sure that discussion
flourishes.
We are grateful for this opportunity to appear before you
today. The Sunshine in Government Initiative wants to work with
you to deliver the Open Government Initiative legislation this
year.
Thank you, Senators.
[The prepared statement of Mr. Curley appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Katherine Cary is an Assistant Attorney General with the
Texas Office of the Attorney General. Like the coincidence of
Ms. Haskell being from Vermont, we have the coincidence of Ms.
Cary being from Texas. She served 6 years as Chief of the Open
Records Division for that office. She studied at Hollins
College in Roanoke, Virginia, received a B.A. from Texas A&M in
1987, and a J.D. degree at St. Mary's University in 1990. And
as Senator Cornyn has pointed out, she was honored with the
James Madison Award in 2003 by the Freedom of Information
Foundation of Texas for her work to protect the public's right
to know. And while this is not a normal thing we do because the
transcript of this will someday be in the Cary archives, I know
you have several members of your family here. Would you just
mention their names so they could be also in the record?
STATEMENT OF KATHERINE CARY, GENERAL COUNSEL, TEXAS OFFICE OF
THE ATTORNEY GENERAL, AUSTIN, TEXAS
Ms. Cary. Thank you very much, Senator Leahy. I appreciate
that.
This is my father, Alan Minter; my mother, Patricia Minter;
my son, Everett Cary, who helped me with my remarks today; and
my daughter, Katie Cary. My husband is in court today in Texas.
He is also a lawyer, and so he would send his greetings to the
Senate via a Texas connection.
Thank you for the opportunity to testify today. I
appreciate it. As Senator Cornyn said, most people who know me
well call me ``Missy.'' My real name is Katherine Cary. I am
the General Counsel of the Texas Attorney General's Office, and
I do appreciate the high honor of appearing before you today.
First, on behalf of Attorney General Greg Abbott, let me
convey his strong support for the bipartisan OPEN Government
Act of 2007. Attorney General Abbott, like Senator Cornyn
before him, has a strong record on open government and believes
that as stewards of the public trust, Government officials have
a duty of transparency when governing. They both often quote
Supreme Court Justice Louis D. Brandeis, who said, ``Sunshine
is the best disinfectant.''
As the leading open government expert in the Office of the
Attorney General, I work daily to apply, educate, and enforce
one of the most proficient open government laws in the United
States. As I have said before to this Committee, unfettered
access to government is a principled--and an achievable--
reality. But it takes the right mix--the right mix of legal
authority and the right mix of vigilance.
Texas is a big State. We have more than 2,500 governmental
bodies that span 268,801 square miles. From El Paso to the
Panhandle and from Texarkana to Brownsville, the Texas Public
Information Act ensures that information is placed into the
public's hands every day without dispute.
Under the Texas Public Information Act, just like the
Federal Freedom of Information Act, information is supposed to
be promptly released. Texas law defines this to mean as soon as
possible, within a reasonable time, without delay. Any
governmental body that wants to withhold information from the
public must, within 10 business days, seek a ruling from the
Texas Attorney General's Office.
In Texas, a governmental body that fails to take that
simple procedural step to keep information closed waives any
required exceptions to disclosure unless the information is
made confidential by law. It is this waiver provision that
provides the meaningful consequences that prevent Government
from benefiting from its own inaction. Under the Texas Public
Information Act, if an entity disregards the law and fails to
invoke the provisions that specifically protect certain
categories from disclosure, it has forfeited its rights to use
those exceptions. The OPEN Government Act would institute a
very similar waiver provision. The Texas experience shows that
striking this balance is fair and practical. Simply stated, it
works.
In 1999, with Senator Cornyn as Attorney General,
governmental bodies in Texas sought roughly 4,000 rulings from
the Texas Attorney General. Last year, we issued about 15,000
such rulings. This is staggering when you consider that these
rulings are a mere fraction of the number of requests for
information that are promptly fulfilled every single day.
But what I have found is that education is vital. A
noncompliance with open government laws often results from a
misunderstanding of what the law requires rather than a true
malicious intent. For this reason, our office asked the Texas
Legislature to require mandatory open government training for
public officials in Texas. They agreed, requiring a course of
training that must either be done by or approved by the
Attorney General's Office. We offer the training by free video
or DVD that is available on the Attorney General's Office
website. To date, our office has issued completed training
certificates to almost 40,000 people in Texas.
In addition to open government training, our office
provides an open government handbook, similar to the Federal
handbook--much smaller but similar--an extensive open
government website, and an open government hotline that is
toll-free staffed by attorneys who help clarify the law and
make open government information readily available to any
caller. This service includes updating callers on where a
request for ruling is in the process. That probably sounds a
little familiar to the OPEN Government Act that you proposed.
It answers about 10,000 calls a year. This provides citizens
with customer service, attention, and access that they deserve
from their public servants.
My office also handles citizen complaints. The Open Records
Division's attorneys attempt, with a 99-percent success rate,
to mediate compliance with open records requirements. The OPEN
Government Act would create a similar system that Texas has
already demonstrated successfully. Resolving matters
efficiently certainly underscores the usefulness of a dispute
resolution function.
We have learned that it only requires a few legal actions
by the Attorney General for word to get out that we are serious
about enforcing compliance. We have enforced compliance in
several instances sounding very similar to those that were
mentioned by Ms. Haskell from Vermont. It appears that the
proposed Special Counsel will be in a comparable position to
achieve positive results on the Federal level.
Finally, Texas has a legal presumption that all information
collected, assembled, or maintained by or for a governmental
body by a third party is open to the public. Records kept by
third parties on behalf of Texas governmental bodies remain
accessible by request to the governmental body, as long as the
governmental body enjoys a ``right of access'' to that
information.
Moreover, Texas law does not allow the Government to
contract away agency access to public records. The OPEN
Government Act would appropriately extend the availability of
Federal Government records to non-governmental third parties.
As Senator Cornyn said, the policy statement that
introduces the Texas Public Information Act I believe is on
point. I think it bears repeating.
The people, in delegating authority, do not give their
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 upon remaining informed so that they may retain control
over the instruments they have created.
The United States Supreme Court has held that the Freedom
of Information Act's ideals are analogous, stating:
The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption, and to hold the Governors
accountable to the governed.
Thank you for the privilege of appearing before you today.
Thank you for recognizing my family, and thank you for helping
to ensure that my children, who sit behind me, will live in a
society where they are the Governors of the government.
Thank you.
[The prepared statement of Ms. Cary appears as a submission
for the record.]
Chairman Leahy. Thank you, Ms. Cary. And I kind of
whispered to Senator Cornyn, as I listened to the description
of your Freedom of Information Act, no wonder he is so
passionate about this.
Let me also ask, does anybody else have family members
here? I do not mean to--okay.
Ms. Fuchs. My husband is here.
Chairman Leahy. There you go. Let me start with you.
The National Security Archive is one of the most active
users of FOIA. So I am interested in your views about the Bush
administration's efforts to address the problems of lax FOIA
enforcement, and the President did issue Executive Order 13392
asking agencies to submit FOIA improvement plans by June of
2006. Both Senator Cornyn and I applauded that effort.
We find now, more than a year after the President's
Executive order, that Americans who seek information from FOIA,
unless I am misinformed, remain less likely to obtain it. The
Coalition of Journalists for Open Government has found that the
percentage of FOIA requesters obtain at least some of the
information that they request from the Government fell by 31
percent last year.
Do you think that the President's Executive order alone is
enough to reduce the almost 200,000 backlog FOIA requests?
Ms. Fuchs. Thank you for the question. I believe that
Executive Order 13392 was a useful exercise, and it did get
agencies to look at their FOIA programs, and that was valuable.
And for the agencies that took it seriously, they have good
ideas and good goals that they would like to make. They are
somewhat hampered by lack of leadership at some of those
agencies and by lack of resources, but they are making an
effort.
Some agencies, however, we found the Executive Order
improvements plans showed, had made no effort in the past. For
example, the VA had never even updated its regulations after
the 1996 E-FOIA amendments. So those things were shown by that.
But I think that without Congress acting, the agencies are
not on their own going to accomplish it.
Chairman Leahy. You also have, do you not, the Executive
order could be changed by the next Executive, whereas the
legislation is the legislation.
Ms. Fuchs. Right. And the legislation has strong teeth in
it that will hopefully change the culture at agencies.
Chairman Leahy. That is also why we have been trying to do
this before a new President takes office, so that it is clear
that it applies.
Ms. Haskell, one, I am delighted to have somebody from one
of Vermont's best newspapers here.
Ms. Haskell. Oh.
Chairman Leahy. I mean that. In your view, what is the
biggest hurdle that reporters encounter when they try to use
the Federal FOIA law to get information?
Ms. Haskell. Our biggest hurdles are that people do not
know whether or not they are allowed to give documents.
Chairman Leahy. You mean the people being requested do not
know whether they are allowed.
Ms. Haskell. That is right. And we started the law, and
Vermont started out with 36 exemptions. We have 207 and
counting. They do not know what to do, and so they immediately
say no before they will say yes, and then you have to convince
them that--it is like you are guilty until you are proven
innocent.
The other problem is that you cannot--there is no
enforcement to the law at all. The Burlington Free Press spent
about $12,000 trying to get the hazing documents. Never saw a
dime of it.
Chairman Leahy. That is our State's largest newspaper, I
should note.
Ms. Haskell. Right. There was, you know, a town board in
Barre that was fined for illegally holding an open meeting.
They did not get fined, nor did they get the misdemeanor
charges.
Chairman Leahy. Do you think that if we passed the OPEN
Government Act, some of the things we have here, do you think
that that might help in Vermont? Has it been your experience
that sometimes Vermont will follow these Federal laws or model
after these Federal laws?
Ms. Haskell. That is my experience, and sometimes we lead
the way, too. But--
Chairman Leahy. I know that.
Ms. Haskell. But, yes, I think that the--it has to come
from the top that, you know, we are an open government, because
everybody sees it being hidden from the top on down.
Chairman Leahy. And in that question--and I assure you I am
not trying to--I try never to tell the Vermont Legislature in
the vain hope that they would return the compliment.
[Laughter.]
Chairman Leahy. They usually do not. Mr. Curley, you
represent the Sunshine in Government Initiative. We all know
some of the things that FOIA has found, contaminated ground
turkey in plants in Minnesota, health risks with the birth
control patch, unreported asbestos-related illnesses and so on.
Have members of the Sunshine in Government Coalition
experienced a delay in reporting important information relating
to public health and safety because of excessive delays in
processing FOIA requests? I am talking about public health and
safety now, not malfeasance in Government. Public health and
safety.
Mr. Curley. Absolutely, Mr. Chairman. I think the moist
dramatic example was a story that was published about February
1st. AP, USA Today, and a number of other organizations had
filed FOIA requests and found out that there were 122 levees
across the country, from Maryland to California, that could be
overwhelmed by heavy flooding. A story that hit the AP wire
yesterday was that the pumps in New Orleans that had been put
in trying to make the deadline before the hurricane season last
summer were defective and many have to be overhauled or
replaced.
So this is an area of ongoing and, I think, incredible
public interest concern.
Chairman Leahy. My time is up, and if you will allow an
editorial comment, you should not have had to drag that out.
Our Government should have been trumpeting it and saying,
``Look, we have got a problem.'' I mean, if Katrina taught us
anything, it is that.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
I want to start with the proposition, Ms. Cary, that you
talked about in terms of elected officials, Government
officials, perhaps not being well informed of what their
responsibilities are under the law, and then move down to Ms.
Fuchs to talk about attorneys' fees and the importance of that
provision in this legislation.
But it strikes me, Ms. Cary, that, you know, most of the
so-called Government officials are citizens who for a period of
time may offer themselves to serve in public office, whether a
school board or city council or something like that. They are
not necessarily professional politicians, nor are they lawyers,
necessarily, and aware of what their obligations are under the
law.
But can you expound just briefly on why you believe it is
so important that, whatever we do, we provide the means to
educate agency officials about their responsibilities and how
that can avoid some of the problems?
Ms. Cary. Of course, Senator. What I found after I got
started working in this area is really that most governmental
entities are made up of just regular people. Like you said,
they are volunteer school board members; they are sometimes
elected sheriffs. But there are a lot of public officials, and
most often the law is complicated. As Ms. Haskell says, the
same in Texas, every year the Texas Public Information Act when
the legislature is in session is amended--new requirements,
requirements change. And they need a go-to source. They need to
know what they can go to and where they can go to find accurate
advice about what is open and what is closed, because the human
response is always to say it is closed, because there are
criminal penalties, at least in the Texas Public Information
Act, for releasing information that is confidential by law, for
example, information that is private or information that is
related to security.
And so there are, you know, important balancing acts that
must go on, but most of the time, public officials just simply
do not know what the law is that day and, exactly, there are
some malicious public officials in the world. But that is the
clear minority.
And so what we have set out to try to do is to put out an
excellent website so that people can read at their own leisure
what the law is and what the requirements are, stated from the
source, the Attorney General's Office. We have this training
video which gives the basics so that even if they are out to
hire local counsel or legal counsel, they understand the basic
requirements and know whether the advice that they are getting
is accurate at some basic level.
We also find that the hotline is an excellent resource.
Senator Cornyn. Let me ask Mr. Curley about that issue. Mr.
Curley, this bill attempts to introduce informal dispute
resolution mechanisms that would allow an expeditious
resolution of the kind of conflict Ms. Cary mentioned where
perhaps there are privacy laws that would prohibit the release
of certain information, and so the custodian of the records is
in some doubt. Do you think the working press would find it
useful to have a person or a number they could call and go to
to have an expeditious resolution of those disputes and perhaps
get the information in a more timely way?
Mr. Curley. Senator, it would be helpful, but I think your
point is right on target, that this really has to work for the
people. And the press has to be a part of the people. When the
press gets in trouble--and it deserves to get in trouble when
it tries to do things on its own and separate itself from the
public's right and the public's right to know. The underlying
provisions here, to put in an ombudsman would benefit the
people. And when you look at third-party requests, only 6
percent of the third-party requests are by the press. A third
are by citizens or citizens groups about public interest
matters.
So this whole area is about helping in what is increasingly
becoming a sophisticated information-gathering operation,
getting people some relief, and also, if we can put in some
tracking provisions. You know, if Brown can do it, Red, White,
and Blue should, too.
Senator Cornyn. Well said. Your point about this not being
legislation ``for the press'' I think is an important one. This
is for all of us as American citizens. This is about our right
to know, and I think we need to recognize the transformation in
both the technology and information gathering and in
publication.
I remember, for example, the story in Thomas Friedman's
book, ``The World Is Flat,'' about the blogger who confronts
Bob Schieffer outside of a morning news show and where he has
been interviewed and says, ``Can I ask you a few questions?''
He asks him about national or international matters. He says,
``May I take your picture?'' Pulls out his telephone camera,
takes his picture, and goes back and uploads that on his
website. I mean, I think that individual needs to get access to
information, too, as do individual citizens.
Finally--and my time is running out--has run out, but let
me ask you, Ms. Fuchs, this issue of attorneys' fees, I suspect
we are going to get significant pushback on this issue of
recovery of attorneys' fees. But I just want to ask whether you
are familiar with the example of the Pacific Fisheries versus
IRS case, a FOIA request in 2004 to the IRS. The requester had
to file a lawsuit, and then months later, the IRS responds to
the lawsuit with a claim that all responsive documents are
exempt. But then a year later, on the eve of the dispositive
motion deadline, the IRS produced 313 pages of responsive
documents. Under the prevailing attorneys' fees decisions by
the United States Supreme Court, the Buchanan case, they would
not be entitled to any attorneys' fees even though they had
gone through litigation to get something that they should have
gotten in the first place.
Could you just briefly address the importance of that
provision?
Ms. Fuchs. Right. Well, what is particularly wonderful or
interesting about that case is that it shows the Court itself
was so irritated at how the Government handled the FOIA request
that it found that the Government's delay was censurable and
possibly subject to sanctions. And what happened in that case
was the Court ordered the Government to show cause why it
should not be sanctioned, and the parties ultimately settled
and they paid the attorneys' fees.
What is unique about FOIA cases and what this example shows
is that they are easy to moot out, because what we are asking
for is documents. And so we can litigate, we can file summary
judgment motions, as long as the Government gives us the
documents before the Court issues its order. Then the case is
mooted out, and we have no recourse.
And, frankly, it is very expensive to bring this
litigation, I mean, at least $10,000, $15,000 for an
individual. I am sure the AP's cases, which have resulted in
really remarkable releases, have cost even more than that.
Senator Cornyn. Thank you.
Chairman Leahy. Thank you very much.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Chairman Leahy, for holding
this hearing on an issue of vital importance. The Freedom of
Information Act is an essential piece of legislation for our
democracy. It enables researchers, journalists and interested
citizens to obtain executive branch documents at a reasonable
cost.
At the same time, the Act protects certain documents from
disclosure to shield national security, privacy, trade secrets
and other privileges. A government that permits citizens access
to records that document its day-to-day decisions is one that
fulfills the promise of democracy in a particularly significant
way. Congress should regularly review and update how the law
that makes such access possible is working.
When the executive branch knows its actions are subject to
public scrutiny, it has an added incentive to act in the public
interest. And I fear that this important value of government
openness has taken a back seat in the years since the terrible
events of September 11th. Protecting our citizens from
terrorist attacks must be the top priority of government. But
we can do that while still showing the proper respect for the
public's right to know.
Unfortunately, that has not been this administration's
attitude. From the excessive secrecy surrounding the post-9/11
detainees to the lack of information about implementation of
the controversial provisions of the USA PATRIOT Act, to
instructions to Federal agencies issued by former Attorney
General Ashcroft that tightened the standards for granting a
FOIA request, this administration has too often tried to
operate behind a veil of secrecy.
That is why I intend to cosponsor this bill that Senators
Leahy and Cornyn introduced yesterday to strengthen the Freedom
of Information Act. Thank you again, Mr. Chairman, for being
such a tremendous leader on this issue. I am proud to join with
you in working to empower individual citizens to obtain the
information they need to hold their Government accountable. In
so doing, we can help ensure that our democracy remains strong
and vibrant. And I also want to talk a little bit about the
attorneys' fees that Senator Cornyn mentioned, but let me first
thank him for his work on this bill, and in particular, for his
comments about the attorneys' fees.
I have proposed legislation to correct the problem across
the whole Government because the attorneys' fees statutes are
affected by the decision that you discussed, and I would very
much like to work with the Senator from Texas on this issue if
he agrees this is a problem. I want to continue to make a
record here on this attorneys' fees issue.
Mr. Curley, you mentioned in your testimony the problem of
not being able to have legal fees reimbursed in the FOIA
litigation because an agency will comply with a FOIA request
right before the court orders it to do so, as was just
mentioned. As I understand it, this problem stems from the fact
that under a Supreme Court interpretation of a fee-shifting
provision similar to the one contained in the FOIA, you can
only get the attorneys' fees if there is a final court order or
settlement of your case, so that even if the Government has
resisted providing the requested documents, forced you to file
suit, dragged out the litigation for quite some time at
significant expense in terms of attorneys' fees and other
costs, it can avoid paying attorneys' fees by releasing the
documents at the last minute before the court actually rules.
Sir, could you provide examples of an agency engaging in
these tactics to avoid reimbursing attorneys' fees?
Mr. Curley. Well, the case that has gotten the most
attention is our efforts to get information about what is
taking place at Guantanamo Bay. We have spent well into the six
figures. We have won every one of those rulings.
In the case that is coming down, the Department of Defense
is willing to give us $11,000. Obviously, we are going to go
back and have to sue them again to get a higher and fairer
number.
Now, we have some resources that other do not, but if every
situation comes down is a threat of six figures, it just is not
right. The McClatchy News Service, then Knight Ridder, spent
six figures' worth of money chasing information on the Veterans
Administration. So if you get into anything that is at all
complicated, Senator, it clearly is a six-figure proposition.
Senator Feingold. Is this practice common enough to
actually deter attorneys from taking these cases? And what is
the overall effect on those attorneys who are bringing these
cases and on the general availability of legal representation
to challenge FOIA delays or denials?
Mr. Curley. Well, as you know, it is a tough time for
media, and you can only have so many battles these days. There
are a lot of cutbacks and a lot of revenue going in different
directions. So every news organization has to figure out how
much it is willing to spend in this area.
Right now everyone, of course, is still willing to stand up
on the major issues and make a case and write the checks. There
are a lot of great representatives out there trying to help us,
legally and otherwise, in these areas. But I do fear, given the
funding issues facing the media, where we are going. It is
increasingly harder and more expensive to do good investigative
reporting. Senator Specter was right. The growth of Government
has been exponential, and media have not kept pace with the
ability to provide oversight.
Senator Feingold. Ms. Fuchs, did you want to add anything
to this issue?
Ms. Fuchs. Well, you had asked about examples of agencies
changing their minds right before having a court do anything.
We have a case involving our news media status at the National
Security Archive where in 1990 the D.C. Circuit ruled that we
are representative of the news media. In a case against the
CIA, the district court adopted that same ruling. For 15 years,
the CIA and other agencies treated us as representatives of the
news media.
Suddenly, in October 2005, the CIA stopped doing that and
refused to treat us as representatives of the news media,
taking the position that they can determine what is
newsworthy--not the requester but the CIA. Imagine that.
So I met with them. I laid out all my legal arguments.
Nothing changed. Finally, I filed a lawsuit. Nothing changed.
Finally, we filed for summary judgment. That night, the night
after we filed for summary judgment, at 6:30 on a Friday, I got
a letter from the CIA changing their mind. Suddenly we are
representatives of the news media for those 42 requests.
Now, that is an example of a situation where--I mean, their
next argument was our whole case is moot, and I am sure after
that they are going to say no attorneys' fees. I had to sue to
get them to agree to that.
Senator Feingold. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Cardin?
Senator Cardin. Senator Leahy and Senator Cornyn, thank you
very much for your leadership on this issue. We appreciate the
fact that we have legislation before us that I think is very
important for us to move forward on the FOIA laws.
Let me just mention one area that may not be apparent to
why it is important that we modernize our FOIA laws. I have the
opportunity to chair the Senate Helsinki Commission, and we use
that as an opportunity to raise internationally issues that are
important on human rights, security, and economics and the
environment.
Many times, the United States delegation is requesting
information from other countries to try to understand what they
are doing in different areas, documents, et cetera. And on more
than one occasion it has come back to me that, well, you know,
in the United States you would have a hard time getting that
information. And we are not in a strong position
internationally for openness and transparency in Government
because of the way that we have operated our request for
information.
I am interested as to whether there are other countries
that could give us a better model as to how FOIA requests
should be handled or how they use technology or how they use
public information to make it easier, that perhaps we could
pattern our reforms based upon the experiences of some of our
allied countries. Are there some countries that are better than
others in getting information to you?
Ms. Fuchs. If I may respond, I guess I would say that I
think the United States is a remarkable example of a country
where things are quite open, and that is part of the reason
that our country is such a strong democracy. And, in fact, in
our experience, because the United States gathers so much
information, we have managed at the National Security Archive
to use records we have obtained from U.S. agencies to help
advance human rights causes abroad as well.
Having said that, our law is 40 years old, and there are
some problems with it. In some countries, there actually are
penalties for delay. In fact, in India, the civil servant who
does not respond within the time period is fined six rupees, or
something like that. So there are penalties in other countries.
And another example of something that we could look at as a
model from other countries is Mexico where they have an agency
which acts sort of as an ombudsman--it is an information
commissioner--and which has been really effective because it
has a budget to do that work. It posts its decisions online so
people can see them. And having a strong agency like that to
serve the function of the ombudsman would be something that
would be outstanding.
Ms. Cary. Senator, if I could respond, I had the
opportunity to go to Mexico several times and assist them with
the formation of that law and was very involved in the
formation of the committee. I enjoyed talking to the citizens
of Mexico about looking at their different laws. They talked to
many different governmental entities. Interestingly, they hold
the United States and different States in the United States up
as a good example. But they formulated this very interesting
and intriguing idea, which is, instead of just one ombudsman,
they actually have a governmental committee--since they have
concerns about the honesty of their core system, is how it was
explained by Mexicans to me--that they have great faith in and
that they do a lot of education, they try to do a lot of things
on the Internet, and they try to put a lot of faith in this
sort of free resources, which is this Committee that will
mediate disputes and really dive into the issues.
And so I think it is a really neat system, and I think the
ombudsman that is proposed in this bill also could create an
office that would be very similar, work in a similar manner, to
really provide up-front assistance.
It is hard to get your request answered in a vacuum, and so
if particular requests that are precise can be mediated with
the players, you know, on-site in real time, I think that makes
all the difference in the world.
Senator Cardin. It is clear to me that we could use
technology much more effectively, the agencies could use
technology much more effectively than they are doing, and your
survey points that out pretty clearly.
I do not want to let this opportunity pass without you
commenting, if you want, on the branch of Government that we
serve in, the Congressional branch, as to whether there is need
for change in the way that we make information available. Now,
both the House and Senate have passed legislation for more
transparency generally, but I do believe that we should set
examples, the legislative branch of Government, and we should
be subject to the same types of standards.
This is your opportunity.
Mr. Curley. Senator, that is a wonderful, wonderful
opportunity. FOIA does not apply to the Congress of the United
States, but beyond that, let me say thank God for the Hill.
Obviously, we get a lot of stories up here.
Senator Cardin. I will pass that on to them.
Ms. Fuchs. If I may add, I mean, one thing that I think
that Congress certainly could look at is Congressional Research
Service reports, which are not publicly available, although, in
fact, many are made available to the public. But they contain a
wealth of interesting information and analysis that I think
members of the public do find interesting.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
I just want to explore some of the comments, and you will
forgive me, Ms. Haskell or Ms. Fuchs. I cannot remember which
one of you made this characterization, but please jump right
in, that we not treat the public as the enemy but, rather, as
the customer. I thought that was helpful because I do believe
that we must have a culture change in Washington about how we
regard the American people. And let me just give you one
example, and I think, Mr. Curley, you alluded to this a little
bit.
If I am not mistaken, a huge number of the open government
or the FOIA requests being made of Federal agencies consist of
veterans requesting their own record from the Veterans
Administration, which just strikes me as very odd. I mean, I do
not understand how an individual cannot call, write, fax, e-
mail a Government agency and say, ``I would like my own
record,'' rather than have to submit a FOIA request like a
third-party requester would.
Do you have any comments or any observations about that,
Mr. Curley? And then, Ms. Fuchs and Ms. Haskell, I would be
interested in your thoughts.
Ms. Fuchs. I would be happy to start off. Senator, I think
that what you are saying about the public being customer is a
very, very apt observation. Senator Leahy wrote an article that
was published in the Administrative Law Review in 1997 which
talked about the remarkable information resource that has been
created by the U.S. Government, paid for at taxpayer expense.
With respect to something like the VA, what happens is
Privacy Act requests, requests by someone for their own
information, have been counted now as FOIA requests. The
problem with that is that information does not have to be
reviewed. It is released. It is their own information.
For example, when my father passed away, I asked for his
military discharge records. I submitted a FOIA request. I got
his military discharge records. We should be able to do that
without it have anything to do with the FOIA system.
The way it works now, all of the data for Privacy Act and
FOIA requests are aggregated together. It makes it difficult to
really examine what is happening with the FOIA system. Your
legislation, I believe, includes a provision that would
disaggregate those statistics, and if that is the case, I think
it would be very helpful for helping the Congress be in a
position to focus on FOIA and let the Privacy Act requests
function on their own smoothly.
Senator Cornyn. There is a Statement of Administration
Policy on H.R. 1309, which is not our bill, but it is a House
bill, the Freedom of Information Act Amendments of 2007. I just
want to give you an opportunityto respond--maybe, Mr. Curley,
you would be the appropriate one for me to ask--but the
administration says it would be premature and counterproductive
to the goals of increasing timeliness or improving customer
service to amend FOIA before agencies have been given a
sufficient time to implement the FOIA improvements that the
President directed them to develop, put in place, monitor, and
report during fiscal year 2006 and 2007.
Do you agree with that, or do you disagree?
Mr. Curley. Strenuously disagree, as you might imagine. We
are all pleased that the President recognized the importance of
freedom of information, that there was at least an
acknowledgment of this area as an important cornerstone of the
efforts to keep Government credible and open. But there was no
teeth, and it was an Executive order. As Senator Leahy says,
they can come and go. But the underlying trend is the trend,
and the trend is quite ugly.
The E-FOIA is less than 10 percent effective. The regular
FOIA are seeing increasing delays. Buck passing is Washington
agencies' best game, and we are seeing people become more and
more sophisticated at it as time goes on.
There is no provision to enforce FOIA right now. That is
the problem. The new provisions in the legislation that you and
Senator Leahy proposed give some incentives for the agencies to
respond to FOIA in a more timely way. It is night and day
better and necessary.
Senator Cornyn. I know Senator Leahy has indicated we have
a roll call vote that started. Let me just ask this last
question for my part.
Mr. Curley, this SAP, Statement of Administration Policy,
says, ``The administration strongly opposes commencing the 20-
day time limit for processing FOIA requests on the date that
the request is `first received by the agency' and preventing
the collection of search fees if the timeline is not met.''
The concern, I guess, is if a citizen submits a FOIA
request and they do not get it in the right box or to the right
agency, the administration wants to wait until it gets to the
right place. Do you have a view about that?
Mr. Curley. If we give anybody any more excuse or reason
for delay, you are going to see that the request will take 2
years, not 1 year.
I think what we have to do is face the facts. They are not
responding properly. They need to put in place systems that
work. There are places in this town where you can get effective
response. You get people with the right attitude working with
the public from the get-go. But in too many places, it is part
of a larger game to delay.
Senator Cornyn. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. I see the 5-minute light is going on, and
this is a cloture vote. So, Ms. Fuchs, I am going to ask you to
elaborate for the record on this. But is it your position that
the Federal agencies are not complying with E-FOIA?
Ms. Fuchs. Oh, it is absolutely my position after we looked
at 149 websites from agencies and components that they are not
complying. Only one in five have required records, and that
means the records that show what their policies and positions
are.
Chairman Leahy. Please, if you want to elaborate on that,
because obviously more and more people go online today, and
this would be the best thing if it was working.
Ms. Fuchs. Well, and especially--
Chairman Leahy. And, Mr. Curley, would it be your position
that an ombudsman, an effective ombudsman as an alternative to
litigation might be helpful?
Mr. Curley. Absolutely.
Chairman Leahy. And, Mr. Curley, about a year ago during
Sunshine Week, I wrote an op-ed piece--I do not know if you had
a chance to read it or not--on FOIA. Would you agree or
disagree with a conclusion I reached that in the last 6 years
it has been more and more difficult to get information under
FOIA?
Mr. Curley. Absolutely, and there are many facts to support
that, sir.
Chairman Leahy. Thank you.
I have been asked to give you a copy of a book written by a
former AP reporter--I will not elaborate further on it, but you
may want to glance at it--from Vermont. If you want to add a
book review for the record, feel free.
Mr. Curley. All news is local and understood.
Chairman Leahy. Well, you know, it is especially important
in Vermont where the Associated Press--not only in Vermont, but
in many States--has become the overriding wire service. And we
have to rely on you.
But I will close with this, and I have said it over and
over again. We Americans are not here to serve the Government.
It is the other way around. The Government is here to serve us.
And Government, no matter what administration, will always tell
you everything they are doing that they are proud of.
I want to make sure we know those things where they make
mistakes so that we can correct them--not to play ``gotcha,''
but just so we can correct them. And I think FOIA can be one of
the greatest tools Americans have, but it can be awful if we do
not use it.
So, with that, we will stand in recess, and, again, I thank
the Senator from Texas for all his help.
[Whereupon, at 11:25 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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