[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


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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

                              ----------                              

                    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

                              ----------                              


                       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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