[Congressional Record Volume 151, Number 17 (Wednesday, February 16, 2005)]
[Senate]
[Pages S1520-S1526]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN (for himself and Mr. Leahy):
  S. 394. A bill to promote accessibility, accountability, and openness 
in Government by strengthening section 552 of title 5, United States 
Code (commonly referred to as the Freedom of Information Act), and for 
other purposes; to the Committee on the Judiciary.
  (See exhibit 1.)
  Mr. CORNYN. Mr. President, I rise today to introduce a bill, along 
with the Senator from Vermont who we will hear from shortly, that will 
help enhance the openness of the Federal Government. This bill is 
called the Open Government Act of 2005. It is a bipartisan effort to 
improve and update our public information laws--particularly the 
Freedom of Information Act.
  The purpose of the bill is to arm the American people with the 
information they need to make certain that ours remains a government 
whose legitimacy is derived from the consent of the governed. This 
legislation will significantly expand the accessibility, 
accountability, and openness of the Federal Government.
  Open government, of course, is one of the most basic requirements of 
a healthy democracy. It allows taxpayers to see where their money is 
going. It permits the honest exchange of information that ensures 
government accountability, and it upholds the ideal that government 
never rules without the consent of the governed. As is so often the 
case, Abraham Lincoln said it best:

       No man is good enough to govern another without that 
     person's consent.

  But achieving the true consent of the governed requires something 
more than just holding elections every couple of years. What we need is 
informed consent. Informed consent is impossible without open and 
accessible government.
  It has been nearly a decade since Congress has approved major reforms 
to the Freedom of Information Act. The Senate Judiciary Committee has 
not convened an oversight hearing to examine the Freedom of Information 
Act compliance issue since 1992. And at that time, I believe it is 
clear that the growth of technology and the Internet has created a real 
desire among the American people to achieve direct, efficient, and open 
access to government information.
  I thank my colleague from Vermont, the ranking member of the 
Judiciary Committee, who has long been a champion of these issues, for 
his hard work on this bill. Together our offices have spent a good deal 
of time meeting with open government advocates. I am proud to say this 
bill is supported by a broad coalition across the ideological spectrum, 
because I believe this legislation should not be a partisan or special 
interest bill. Indeed, it is not.
  I ask unanimous consent that these endorsement letters from dozens of 
watchdog groups across the political spectrum be printed in the Record 
at the close of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. CORNYN. Mr. President, as the Senator from Vermont said at a 
recent Judiciary Committee hearing:

       I have always found that every administration, Republican 
     or Democrat, would love to keep a whole lot of things from 
     the public. They do something they are proud of, they will 
     send out a hundred press releases. Otherwise, they will hold 
     it back. We have the Freedom of Information Act, which is 
     a very good thing. It keeps both Democratic and Republican 
     administrations in line.

  I agree with that. Essentially, we are talking about human nature. It 
is only natural that elected officials and Government leaders want 
recognition for their successes but not their failures. But we, as a 
healthy democracy, need to know the good, the bad, and the ugly.
  The news media, of course, is the main way people get information 
about the Government. The media pushes Government entities and elected 
officials, bureaucrats, and agencies to release information that the 
people have the right to know, occasionally exposing waste, fraud, and 
abuse--and hopefully more often than that letting the American people 
know what a good job their public officials are doing.
  But we have also seen in recent years an expansion of other outlets 
for sharing information outside of the mainstream media to online 
communities, discussion groups, and blogs. I believe all these outlets 
can and do contribute to the health of our political democracy.
  Let me make this clear. This is not just a bill for the media, lest 
anybody be confused. This is a bill that will benefit every man, woman, 
and child in the United States of America who cares about the Federal 
Government, cares about how the Federal Government operates, and 
ultimately cares about the success of this great democracy.
  By reforming our information policies in order to guarantee true 
access by all citizens to Government records, we will revitalize the 
informed consent that keeps America free. The Open Government Act 
contains over a dozen substantive provisions, designed to achieve the 
following four objectives:
  First, it will strengthen the Freedom of Information Act and close 
loopholes.
  Secondly, it will help Freedom of Information Act requesters obtain 
timely responses to their requests.
  Third, it will ensure that agencies have strong incentives to comply 
with the law in a timely fashion.
  Fourth, it will provide Freedom of Information Act officials; that 
is, people within Government agencies, with all the tools, including 
the education, they need in order to ensure that our Government remains 
open and accessible.

[[Page S1521]]

  This legislation is not just pro-openness, pro-accountability and 
pro-accessibility; it is also pro-Internet. It contains important 
congressional findings to reiterate the presumption of openness. It 
includes a provision for a hotline that enables citizens to track the 
requests and even allows tracking of those requests via the Internet. 
As a whole, the Open Government Act reiterates the principle that our 
Government is based not on the need to know but rather on the right to 
know.
  We all recognize that America's security should never take a back 
seat. But nor should the claim, without justification, of national 
security be used as a barrier against allowing taxpayers to know how 
their money is being spent.
  There is a broad consensus across the aisle, the political spectrum, 
that we currently overclassify Government documents, and that many 
documents and much information is placed beyond the public view without 
any real justification. I believe we need a system of classification 
that strikes the right balance between the need to classify documents 
in the interest of our national security and our national values of 
open government.
  Our default position of the U.S. Government must be one of openness. 
If records can be open, they should be open. If there is a good reason 
to keep something closed, it is the Government that should bear the 
burden, not the other way around.
  Open government is fundamentally an American issue. It is literally 
necessary to preserve our way of life as a self-governing people. 
Ensuring the accessibility, accountability, and openness of the Federal 
Government is a cause worthy of preservation, and I call on my 
colleagues to join the Senator from Vermont and I today in taking a 
meaningful step toward that goal.
  Finally, before I yield the floor to the Senator from Vermont, let me 
again express my appreciation to him and his staff. They have worked 
very closely with my staff. This is one of those good Government 
initiatives that knows no party affiliation, no ideological 
affiliation, but is really one that is essential to the preservation of 
our way of life as a self-governing democracy.

                               Exhibit 1

 Openness Promotes Effectiveness in our National Government Act of 2005

       Led by U.S. Senators John Cornyn and Patrick Leahy, the 
     OPEN Government Act of 2005 is a bipartisan effort to achieve 
     meaningful reforms to federal government information laws--
     including most notably the Freedom of Information Act of 1966 
     (``FOIA''). If enacted, the legislation would substantially 
     enhance and expand the accessibility, accountability, and 
     openness of the federal government. It has been nearly a 
     decade since Congress has approved major reforms to FOIA. 
     Moreover, the Senate Judiciary Committee has not convened an 
     oversight hearing to examine FOIA compliance issues since 
     April 30, 1992. (The Senate Homeland Security and 
     Governmental Affairs Committee, which shares jurisdiction 
     over federal government information laws with the Judiciary 
     Committee, has not held a FOIA oversight hearing since 1980.)
       This legislation is the culmination of months of extensive 
     discussions between the offices of Senators Cornyn and Leahy 
     and various members of the requestor community. The bill is 
     supported by Texas Attorney General Greg Abbott and a broad 
     coalition of organizations across the ideological spectrum, 
     including:

     American Association of Law Libraries
     American Civil Liberties Union
     American Library Association
     American Society of Newspaper Editors
     Associated Press Managing Editors
     Association of Health Care Journalists
     Center for Democracy & Technology
     Coalition of Journalists for Open Government
     Committee of Concerned Journalists
     Education Writers Association
     Electronic Privacy Information Center
     Federation of American Scientists/Project on Government 
         Secrecy
     Free Congress Foundation/Center for Privacy & Technology 
         Policy
     Freedom of Information Center, University of Missouri
     The Freedom of Information Foundation of Texas
     The Heritage Foundation/Center for Media and Public Policy
     Information Trust
     National Conference of Editorial Writers
     National Freedom of Information Coalition
     National Newspaper Association
     National Security Archive/George Washington University
     Newspaper Association of America
     People for the American Way
     Project on Government Oversight
     Radio-Television News Directors Association
     The Reporters Committee for Freedom of the Press
     Society of Environmental Journalists

       The Act contains important Congressional findings to 
     reiterate and reinforce the view that the Freedom of 
     Information Act establishes a presumption of openness, and 
     that our government is based not on the need to know, but 
     upon the fundamental right to know. The Act also contains 
     over a dozen substantive provisions, designed to achieve the 
     following four objectives:

     (1) Strengthen FOIA and close loopholes
     (2) Help FOIA requestors obtain timely responses to their 
         requests
     (3) Ensure that agencies-have strong incentives to act on 
         FOIA requests in a timely fashion
     (4) Provide FOIA officials with all of the tools they need to 
         ensure that our government remains open and accessible


                  strengthen foia and close loopholes

       Ensure that FOIA applies when agency recordkeeping 
     functions are outsourced
       Establish a new open government impact statement, by 
     requiring that any future Congressional attempt to create a 
     new FOIA exemption be expressly stated within the text of the 
     legislation
       Impose annual reporting requirement on usage of the DHS 
     disclosure exemption for critical infrastructure information
       Protect access to FOIA fee waivers for legitimate 
     journalists, regardless of institutional association--
     including bloggers and other Internet-based journalists
       Provide reliable reporting of FOIA performance, by 
     requiring agencies to distinguish between first person 
     requests for personal information and other kinds of requests


              help foia requestors obtain timely responses

       Establish FOIA hotline services, either by telephone or on 
     the Internet, to enable requestors to track the status of 
     their requests
       Create a new FOIA ombudsman, located at the Administrative 
     Conference of the United States, to review agency FOIA 
     compliance and provide alternatives to litigation
       Authorize reasonable recovery of attorney fees when 
     litigation is inevitable


ensure that agencies have strong incentives to act on foia requests in 
                             timely fashion

       Restore meaningful deadlines for agency action by ensuring 
     that the 20-day statutory clock runs immediately upon the 
     receipt of the request
       Impose real consequences on federal agencies for missing 
     statutory deadlines
       Enhance authority of the Office of Special Counsel to take 
     disciplinary action against government officials who 
     arbitrarily and capriciously deny disclosure
       Strengthen reporting requirements on FOIA compliance to 
     identify agencies plagued by excessive delay, and to identify 
     excessive delays in fee status determinations


  provide foia officials with the tools they need to ensure that our 
                 government remains open and accessible

       Improve personnel policies for FOIA officials to enhance 
     agency FOIA performance
       Examine the need for FOIA awareness training for federal 
     employees
       Determine appropriate funding levels needed to ensure 
     agency FOIA compliance

 Openness Promotes Effectiveness in our National Government Act of 2005

                      Section-by-Section Analysis

       Sec. 1. Short Title. The Open Government Act of 2005.
       Sec. 2. Findings. The findings reiterate the intent of 
     Congress upon enacting the Freedom of Information Act (FOIA), 
     5 D.S.C. 552 as amended, and restate FOIA's presumption in 
     favor of disclosure.
       Sec. 3. Protection of Fee Status for News Media. This 
     section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that 
     independent journalists are not barred from obtaining fee 
     waivers solely because they lack an institutional affiliation 
     with a recognized news media entity. In determining whether 
     to grant a fee waiver, an agency shall consider the prior 
     publication history of the requestor. If the requestor has no 
     prior publication history and no current affiliation with a 
     news organization, the agency shall review the requestor's 
     plans for disseminating the requested material and whether 
     those plans include distributing the material to a reasonably 
     broad audience.
       Sec. 4. Recovery of Attorney Fees and Litigation Costs. 
     This section, the so-called Buckhannon fix, amends 5 U.S.C. 
     552(a)(4)(E) to clarify that a complainant has substantially 
     prevailed in a FOIA lawsuit, and is eligible to recover 
     attorney fees, if the complainant has obtained a substantial 
     part of his requested relief through a judicial or 
     administrative order or if the pursuit of a claim was the 
     catalyst for the voluntary or unilateral change in position 
     by the opposing party. The section responds to the Supreme 
     Court's ruling in Buckhannon Board and Care Home, Inc. v. 
     West Virginia Dep't of Health and Human Resources, 532 U.S. 
     598 (2001), which eliminated the ``catalyst theory'' of 
     attorney fee recovery under certain Federal civil rights 
     laws. FOIA requestors have raised concerns that the holding 
     in Buckhannon could be extended to FOIA cases. This section 
     preserves the ``catalyst theory'' in FOIA litigation.
       Sec. 5. Disciplinary Actions for Arbitrary and Capricious 
     Rejections of Requests. FOIA currently requires that when a 
     court finds that agency personnel have acted arbitrarily or 
     capriciously with respect to withholding documents, the 
     Office of Special Counsel

[[Page S1522]]

     shall determine whether disciplinary action against the 
     involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F). 
     This section of the bill amends FOIA to require the Attorney 
     General to notify the Office of Special Counsel of any such 
     court finding and to report the same to Congress. It further 
     requires the Office of Special Counsel to report annually to 
     Congress on any actions taken by the Special Counsel to 
     investigate cases of this type.
       Sec. 6. Time Limits for Agencies to Act on Requests. The 
     section clarifies that the 20-day time limit on responding to 
     a FOIA request commences on the date on which the request is 
     first received by the agency. Further, the section states 
     that if the agency fails to respond within the 20-day limit, 
     the agency may not then assert any FOIA exemption under 5 
     U.S.C. 552(b), except under limited circumstances such as 
     endangerment to national security or disclosure of personal 
     private information protected by the Privacy Act of 1974, 
     unless the agency can demonstrate, by clear and convincing 
     evidence, good cause for failure to comply with the time 
     limits.
       Sec. 7. Individualized Tracking Numbers for Requests and 
     Status Information. Requires agencies to establish tracking 
     systems by assigning a tracking number to each FOIA 
     request: notifying a requestor of the tracking number 
     within ten days of receiving a request; and establishing a 
     telephone or Internet tracking system to allow requestors 
     to easily obtain information on the status of their 
     individual requests, including an estimated date on which 
     the agency will complete action on the request.
       Sec. 8. Specific Citations in Exemptions. 5 U.S.C. 
     552(b)(3) states that records specifically exempted from 
     disclosure by statute are exempt from FOIA. This section of 
     the bill provides that Congress may not create new statutory 
     exemptions under this provision of FOIA unless it does so 
     explicitly. Accordingly, for any new statutory exemption to 
     have effect, the statute must cite directly to 5 U.S.C. 
     552(b)(3), thereby conveying congressional intent to create a 
     new (b)(3) exemption.
       Sec. 9. Reporting Requirements. This section adds to 
     current reporting requirements by mandating disclosure of 
     data on the 10 oldest active requests pending at each agency, 
     including the amount of time elapsed since each request was 
     originally filed. This section further requires agencies to 
     calculate and report on the average response times and range 
     of response times of FOIA requests. (Current requirements 
     mandate reporting on the median response time.) Finally, this 
     section requires reports on the number of fee status requests 
     that are granted and denied and the average number of days 
     for adjudicating fee status determinations by individual 
     agencies.
       Sec. 10. Openness of Agency Records Maintained by a Private 
     Entity. This section clarifies that agency records kept by 
     private contractors licensed by the government to undertake 
     recordkeeping functions remain subject to FOIA just as if 
     those records were maintained by the relevant government 
     agency.
       Sec. 11. Office of Government Services. This section 
     establishes an Office of Government Information Services 
     within the Administrative Conference of the U.S. Within that 
     office will be appointed a FOIA ombudsman to review agency 
     policies and procedures, audit agency performance, recommend 
     policy changes, and mediate disputes between FOIA requestors 
     and agencies. The establishment of an ombudsman will not 
     impact the ability of requestors to litigate FOIA claims, but 
     rather will serve to alleviate the need for litigation 
     whenever possible.
       Sec. 12. Accessibility of Critical Infrastructure 
     Information. This section requires reports on the 
     implementation of the Critical Infrastructure Information Act 
     of 2002, 6 U.S.C. 133. Reports shall be issued from the 
     Comptroller General to the Congress on the number of private 
     sector, state, and local agency submissions of CII data to 
     the Department of Homeland Security and the number of 
     requests for access to records. The Comptroller General will 
     also be required to report on whether the nondisclosure of 
     CII material has led to increased protection of critical 
     infrastructure.
       Sec. 13. Report on Personnel Policies Related to FOIA. This 
     section requires the Office of Personnel Management to 
     examine how FOIA can be better implemented at the agency 
     level, including an assessment of whether FOIA performance 
     should be considered as a factor in personnel performance 
     reviews, whether a job classification series specific to FOIA 
     and the Privacy Act should be considered, and whether FOIA 
     awareness training should be provided to federal employees.

                               Exhibit 2

                                                February 15, 2005.
     Hon. John Cornyn,
     Chairman, U.S. Senate Judiciary Subcommittee on the 
         Constitution, Civil Rights & Property Rights, Washington 
         DC.
       Dear Senator Cornyn: I strongly endorse the proposed OPEN 
     Government Act or 2005, which will strengthen the federal 
     Freedom of Information Act (FOIA) and advance government 
     openness.
       James Madison once observed that ``[k]nowledge will forever 
     govern ignorance; and a people who mean to be their own 
     governors must arm themselves with the power which knowledge 
     gives.'' The Father of the Constitution recognized that our 
     constitutional democracy, which is rooted in self-government, 
     requires the informed consent of the people. I share 
     Madison's belief, and yours, that a government of the people, 
     by the people, and for the people must operate in full view 
     of the people. Openness and accountability--not secrecy and 
     concealment--are what keep democracies strong and enduring.
       A commitment to open government underpins both FOIA and the 
     Texas Public Information Act, which you interpreted and 
     forcefully defended as the 49th Attorney General of Texas. As 
     your successor I am proud that Texas leads the nation in 
     promoting open government and privileged to build upon your 
     efforts to make sure the public's business is conducted in 
     full sunshine. As you know, the Texas Public Information Act 
     declares that ``government is the servant and not the master 
     of the people,'' and ``[t]he people 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 OPEN Government Act of 2005 will bring similar benefits 
     to all Americans and ensure that FOIA finally lives up to its 
     noble ideals. By closing loopholes and enabling government to 
     be more responsive to requests for information, the OPEN 
     Govermnent Act of 2005 will modernize FOIA's nearly 40-year-
     old commitment to open and accessible government.
       Our system of self-government does not rest on the public's 
     need to know, but on its fundamental right to know. Your 
     proposed legislation will codify this venerable standard in 
     federal law and reinforce one of our nation's first 
     principles: open government leads inexorably to good 
     government.
       I cannot overstate my support for these important reforms 
     and commend you for your exceptional leadership on this 
     issue.
           Sincerely,
                                                      Greg Abbott,
     Attorney General of Texas.
                                  ____

                            American Association of Law Libraries,


                                    Washington Affairs Office,

                                Washington, DC, February 14, 2005.
     Hon. John Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn: On behalf of the American Association 
     of Law Libraries, I commend you for your leadership in 
     promoting access to government information by introducing the 
     Openness Promotes Effectiveness in our National (OPEN) 
     Government Act of 2005. We share your belief that accessible 
     government information is both an essential principle of a 
     democratic society and a valuable public good.
       The American Association of Law Libraries (AALL) is a 
     nonprofit educational organization with over 5000 members 
     nationwide who respond to the legal information needs of 
     legislators, judges, and other public officials at all levels 
     of government, corporations and small businesses, law 
     professors and students, attorneys, and members of the 
     general public. Our mission is to promote and enhance the 
     value of law libraries, to foster law librarianship and to 
     provide leadership and advocacy in the field of legal 
     information and information policy.
       AALL believes that public inspection of government records, 
     including electronic records, under the Freedom of 
     Information Act (FOIA) is the foundation for citizen access 
     to government information. The OPEN Government Act of 2005 
     provides important and timely amendments to FOIA. AALL 
     supports this important legislation and we look forward to 
     working with you to ensure its prompt enactment.
           Sincerely,
                                                 Mary Alice Baish,
     Associate Washington Affairs Representative.
                                  ____



                               American Civil Liberties Union,

                                Washington, DC, February 14, 2005.
     Hon. John Cornyn,
     U.S. Senate,
     Washington, DC.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senators Cornyn and Leahy: On behalf of the American 
     Civil Liberties Union and its more than 400,000 members, we 
     are pleased to endorse the Openness Promotes Effectiveness in 
     our National Government Act of 2005, the ``OPEN Government 
     Act of 2005.''
       As the Supreme Court has made clear, ``disclosure, not 
     secrecy, is the dominant objective of the Act,'' Department 
     of the Air Force v. Rose, 425 U.S. 352 (1976). Nevertheless, 
     secrecy, not openness, all too often seems to be the dominant 
     trend of agencies in recent times.
       The OPEN Government Act includes a series of much-needed 
     corrections to policies that have eroded the promise of the 
     Freedom of Information Act (FOIA). These include ensuring 
     requesters will have timely information on the status of 
     their requests, enforceable time limits for agencies to 
     respond to requests, news media status rules that recognize 
     the reality of freelance journalists and the Internet, and 
     strong incentives--including both carrots and sticks--for 
     agency employees to improve FOIA compliance. The OPEN 
     Government Act also includes a much needed review of the new 
     exemption in the Homeland Security Act for critical 
     infrastructure information.
       James Madison warned against ``a popular Government without 
     popular information,'' saying that ``a people who mean to be 
     their own Governors, must arm themselves with the power 
     knowledge gives.'' We strongly urge passage of the OPEN 
     Government Act

[[Page S1523]]

     of 2005 to help restore to the people some of that power.
           Sincerely,
                                                  Laura W. Murphy,
                          Director, Washington Legislative Office.
                                                 Timothy H. Edgar,
     Legislative Counsel.
                                  ____

                                               American Society of


                                            Newspaper Editors,

                                     Reston, VA, February 9, 2005.
     Hon. John Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn: On behalf of the American Society of 
     Newspaper Editors (ASNE), I am writing to congratulate you on 
     the Introduction of the ``Open Government Act.'' Since the 
     organization was founded in 1922, ASNE's membership of 
     directing editors of dally newspapers throughout the United 
     States has worked to assist journalists and provide an 
     unfettered and effective press in the service of the American 
     people.
       ASNE is proud to endorse the Open Government Act as 
     legislation that can help us achieve these ideals. As you 
     wrote in your recent article in the LBJ Journal of Public 
     Affairs, ``Our national commitment to democracy and freedom 
     is not merely some abstract notion. It is a very real and 
     continuing effort, and an essential element of that effort is 
     an open and accessible government'' The Open Government Act 
     is a ringing reminder that the Freedom of Information Act 
     (FOIA) is the cornerstone of this principle. Your bill comes 
     at a time when many executive agencies are able to shortcut 
     FOIA's guarantees of access to government documents while 
     avoiding any repercussion for their actions.
       We appreciate your desire to provide a meaningful 
     enforcement mechanism for those who see that FOIA is not 
     achieving its promise of open and accessible records for all. 
     The bill's pragmatic focus on procedural, rather than 
     substantive, change is noteworthy; instead of rewriting the 
     law in a way that would promote or disfavor certain special 
     interests, you wisely seek to bring government and citizenry 
     together to make FOIA more efficient and effective.
       ASNE applauds your efforts and joins you in urging passage 
     of this bill in the 109th Congress.
           Sincerely,
                                            Karla Garrett Harshaw,
     President.
                                  ____



                            Federation of American Scientists,

                                 Washington, DC, February 4, 2005.
     Senator John Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn: I am writing to express the support of 
     the Federation of American Scientists for your continuing 
     efforts to promote openness in government, and specifically 
     for your proposed legislation to strengthen the Freedom of 
     Information Act (FOIA).
       It is our belief that openness generally, and the FOIA in 
     particular, have an importance that transcends the usual 
     political divides. By making information available to our 
     citizens, we advance the ideals of democratic self-governance 
     that we all share.
       Your proposed legislation would strengthen the FOIA in 
     several important ways: It would reverse recent trends to use 
     fee recovery as an impediment to FOIA processing; it would 
     strengthen the position of requesters who are forced to 
     pursue litigation to gain the records they seek; it would 
     enhance and clarify the administration of the FOIA; and it 
     would create an important new mechanism to audit agency 
     compliance with the FOIA, among other important provisions.
       Perhaps most fundamentally, your legislation marks a 
     hopeful new resurgence of congressional attention to these 
     fundamental issues.
       Thank you for your leadership.
           Sincerely,

                                             Steven Aftergood,

                                                 Project Director,
     FAS Project on Government Secrecy.
                                  ____



                                     Free Congress Foundation,

                                Washington, DC, February 11, 2005.
     Hon. John Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn: We would like to commend your 
     introduction of the OPEN Government Act of 2005.
       Conservatives believe checks and balances are essential to 
     our system of government. One important check is to ensure 
     that citizens and the news media have access to what the 
     Federal Government's departments and agencies are doing. 
     Unfortunately, as noted by Austin American Statesman reporter 
     Chuck Lindell, too often the Federal Government's bureaucracy 
     demonstrates no interest in replying to such requests in a 
     timely and efficient manner. It prefers to operate in 
     darkness, not having their actions exposed to the sunlight of 
     public scrutiny.
       Citizens have a right to know what the Federal Government 
     is doing with their tax dollars. The fact that the Department 
     of Agriculture and the Environmental Protection Agency can 
     take years to answer requests for information should be 
     disturbing to conservatives who bemoan the arrogance and 
     unresponsiveness of Big Government. Every citizen and every 
     news reporter is entitled to a prompt answer to their request 
     for information.
       ``The buck stops here'' is a snappy soundbite, and may have 
     once represented a workable philosophy of governing in 
     simpler times. The reality is that in today's Washington it's 
     hard to tell where the buck is because it is simply obscured 
     by an unresponsive bureaucracy. Ironically, technology and 
     increasing expectations of transparency in government render 
     the mindset practiced by a recalcitrant bureaucracy obsolete. 
     A measure such as the OPEN Government Act of 2005 can help 
     level the playing field in favor of the citizenry.
           Sincerely,

                                             Steve Lilienthal,

                                                         Director,
     Center for Privacy & Technology Policy.
                                  ____

                                        The Freedom of Information


                                          Foundation of Texas,

                                     Dallas, TX, February 8, 2005.
     Ms. Katherine Garner,
     Executive Director.
       Dear Board Members: United States Senator John Cornyn will 
     introduce legislation to strengthen the Freedom of 
     Information Act next week. Among other things, the Open 
     Government Act of 2005 would provide meaningful deadlines for 
     federal agencies to act on Freedom of Information requests 
     and impose consequences on federal agencies for missing 
     statutory deadlines. In light of the fact that some federal 
     agencies have had requests for information pending for as 
     long as seventeen years, the Foundation believes Senator 
     Cornyn's proposals are much needed and overdue. The proposed 
     legislation would also make it easier for successful 
     litigants to recover their attorney's fees when litigation 
     becomes necessary, strengthen reporting requirements on 
     government agencies' FOIA compliance, establish an ombudsman 
     to resolve FOIA complaints without the need to resort to 
     litigation and enhance the authority of the Office of Special 
     Counsel to take disciplinary action against government 
     officials who arbitrarily and capriciously deny disclosure.
       The Foundation therefore enthusiastically endorses Senator 
     Cornyn's proposed legislation and encourages each of your 
     organizations to do the same.
           Sincerely,
     Joel R. White.
                                  ____

                                          The Heritage Foundation,


                           Center for Media and Public Policy,

                                Washington, DC, February 11, 2005.
     Sen. John Cornyn,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Cornyn: Insuring the continuance of our 
     Republican liberty depends upon maintaining the right of the 
     people to know as much as possible about what their 
     government is doing in order to hold the public officials and 
     employees accountable.
       Protecting this accountability tool grows ever more 
     important as the power of the federal government continues 
     its historic growth, with its attendant tendency continually 
     to become more and more resistant to genuine transparency. 
     That is why a healthy Freedom of Information Act is so vital.
       But while the federal government has grown exponentially 
     since passage of the FOIA in 1966, the law's effectiveness 
     has steadily declined as politicians and career bureaucrats 
     with a shared interest in avoiding accountability have become 
     increasingly skilled at exploiting loopholes, creatively 
     interpreting administrative provisions and relying upon the 
     paucity of legal resources available to many requestors to 
     avoid satisfying either the letter or spirit of the statute.
       Indeed, the National Security Archive's 2003 survey that 
     found an FOIA system ``in extreme disarray.'' The Archive 
     found that ``agency contact information on the web was often 
     inaccurate; response times largely failed to meet the 
     statutory standard; only a few agencies performed thorough 
     searches, including e-mail and meeting notes; and the lack of 
     central accountability at the agencies resulted in lost 
     requests and inability to track progress.''
       I believe the comprehensive package of reforms contained in 
     ``The Open Government Act of 2005'' would go far in restoring 
     the effectiveness of the FOIA as an accountability tool for 
     the people in dealing with their government.
       We must remember that transparency and accountability are 
     the strongest antidotes to the inevitable abuses of Big 
     Government and are thus essential guarantors of every 
     individual's liberty and prerequisites for the maintenance of 
     our common security.
           Sincerely,
                                                    Mark Tapscott,
     Director.
                                  ____

                                   National Newspaper Association,


                                          Washington Programs,

                                  Arlington, VA, February 9, 2005.
     Hon. John Cornyn,
     U.S. Senate,
     Washington DC.
       Dear Senator Cornyn: The National Newspaper Association, an 
     organization representing over 2,500 community newspapers 
     nationwide, supports your efforts to strengthen the Freedom 
     of Information Act. The OPEN Government Act of 2005 is a 
     sound step toward a better FOIA.
       Openness and transparency in government is vital to the 
     proper functioning of a democratic government. Ensuring 
     unhindered access to government information by the public is 
     the utmost responsibility of our elected leaders, for without 
     this access, it would be impossible for the consent of the 
     governed to be truly informed.
       The Freedom of Information Act is an important tool in 
     achieving this lofty goal, and

[[Page S1524]]

     it has proven to be useful to community newspapers around the 
     country. The Act requires continual oversight from Congress 
     to ensure the spirit of the law remains intact. Congress has 
     neglected this duty in recent years, and we are pleased that 
     you have undertaken efforts to rectify this neglect.
       We want to emphasize that FOIA serves a function beyond 
     providing records to requesters filing written requests. It 
     also serves as a talisman for openness in similar state laws. 
     It provides a framework for releasing information that is 
     informally requested by journalists and others--a function of 
     particular importance to community newspapers.
       We will look forward to working with you as the bill is 
     considered by the Judiciary Committee.
           Sincerely,

                                               Matthew Paxton,

                                                         Chairman,
     Government Relations Committee.
                                  ____



                             Newspaper Association of America,

                                    Vienna, VA, February 10, 2005.
     Hon. John Cornyn,
     Chairman, Senate Judiciary Subcommittee on the Constitution, 
         Civil Rights, & Property Rights, Washington, DC.
       Dear Senator Cornyn: On behalf of the Newspaper Association 
     of America (NAA), a non-profit organization representing more 
     than 2,000 newspapers in the United States and Canada, I want 
     to thank you for introducing the Open Government Act of 2005.
       The Freedom of Information Act is premised on the belief 
     that an informed citizenry is essential to democracy. The 
     Open Government Act will strengthen the Freedom of 
     Information Act and send a clear message that the openness 
     and accessibility of the federal government is a vital part 
     of our democratic process.
       We commend you for your outstanding leadership, especially 
     with regard to the inclusion of the provisions that would 
     close current FOIA loopholes, prevent new ones, and restore 
     meaningful deadlines for agency action on FOIA requests. 
     Additionally, the legislation will make it easier for the 
     public to access information about their government through 
     the creation of a FOlA ombudsmen, agency FOIA hotlines, and 
     tracking systems for FOIA requests.
       Thank you again for your leadership on this important 
     issue. We look forward to working with you and your staff in 
     the coming months to ensure passage of the Open Government 
     Act of 2005 in the 109th Congress.
           Thanks for reading,
                                                    John F. Sturm,
     President and CEO.
                                  ____



                                  People for the American Way,

                                 Washington, DC, February 9, 2005.
     Hon. John Cornyn,
     U.S. Senate,
     Washington, DC.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senators Cornyn and Leahy: On behalf of People For the 
     American Way (PFAW) and its more than 675,000 members and 
     supporters, I write in support of your efforts to strengthen 
     the Freedom of Information Act (FOIA) and promote greater 
     public access to government records through the proposed Open 
     Government Act of 2005 (OGA).
       Open government is a vital component of this country's 
     democratic framework, allowing citizens to learn about the 
     activities of their government and helping ensure government 
     accountability. FOIA, which permits public access to federal 
     records, has helped establish the public's right to obtain 
     government information and created a strong presumption in 
     favor of disclosure. Serious problems have arisen with full 
     and timely agency compliance with FOIA and its goals, 
     however, necessitating the types of important FOIA reforms 
     contemplated in the OGA.
       In particular, PFAW is supportive of the Act's use of 
     penalties to enforce compliance with FOIA deadlines, 
     particularly the provision imposing a presumptive waiver of 
     FOIA exemptions when an agency fails to meet the 20-day 
     production deadline, and the requirement that Congress be 
     explicit when it considers creating additional exemptions 
     under 5 U.S.C. 552(b)(3).
       We also support the provision in the bill that would permit 
     an award of attorney fees when a nonfrivolous lawsuit has 
     served as the catalyst for voluntary disclosure of a 
     substantial part of a FOIA request. It is imperative that a 
     requester--who must incur litigation costs to enforce agency 
     compliance with the law--be able to recover attorneys' fees 
     and litigation costs in such cases, particularly in order to 
     discourage arbitrary and unlawful agency rejections of 
     legitimate FOIA requests.
       Finally, we believe that the various recordkeeping and 
     monitoring provisions of the Open Government Act--including 
     monitoring of the Department of Homeland Security's use of 
     its ``critical infrastructure information'' exemption and 
     mandatory agency disclosure of the 10 oldest active 
     requests--are useful and necessary to ensure the integrity of 
     the open government process and to gather the information 
     needed to modify and adjust our open government laws going 
     forward.
       We applaud your efforts to reaffirm the vital importance of 
     open government in this country and believe that the Open 
     Government Act is an encouraging first step toward that goal.
           Sincerely,
                                                    Ralph G. Neas,
                                                        President.

  Mr. CORNYN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 394

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Openness Promotes 
     Effectiveness in our National Government Act of 2005'' or the 
     ``OPEN Government Act of 2005''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the Freedom of Information Act was signed into law on 
     July 4, 1966, because the American people believe that--
       (A) our constitutional democracy, our system of self-
     government, and our commitment to popular sovereignty depends 
     upon the consent of the governed;
       (B) such consent is not meaningful unless it is informed 
     consent; and
       (C) as Justice Black noted in his concurring opinion in 
     Barr v. Matteo (360 U.S. 564 (1959)), ``The effective 
     functioning of a free government like ours depends largely on 
     the force of an informed public opinion. This calls for the 
     widest possible understanding of the quality of government 
     service rendered by all elective or appointed public 
     officials or employees.'';
       (2) the American people firmly believe that our system of 
     government must itself be governed by a presumption of 
     openness;
       (3) the Freedom of Information Act establishes a ``strong 
     presumption in favor of disclosure'' as noted by the United 
     States Supreme Court in United States Department of State v. 
     Ray (502 U.S. 164 (1991)), a presumption that applies to all 
     agencies governed by that Act;
       (4) ``disclosure, not secrecy, is the dominant objective of 
     the Act,'' as noted by the United States Supreme Court in 
     Department of Air Force v. Rose (425 U.S. 352 (1976));
       (5) in practice, the Freedom of Information Act has not 
     always lived up to the ideals of that Act; and
       (6) Congress should regularly review section 552 of title 
     5, United States Code (commonly referred to as the Freedom of 
     Information Act), in order to determine whether further 
     changes and improvements are necessary to ensure that the 
     Government remains open and accessible to the American people 
     and is always based not upon the ``need to know'' but upon 
     the fundamental ``right to know''.

     SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.

       Section 552(a)(4)(A)(ii) of title 5, United States Code, is 
     amended by adding at the end the following:

     ``In making a determination of a representative of the news 
     media under subclause (II), an agency may not deny that 
     status solely on the basis of the absence of institutional 
     associations of the requester, but shall consider the prior 
     publication history of the requester. Prior publication 
     history shall include books, magazine and newspaper articles, 
     newsletters, television and radio broadcasts, and Internet 
     publications. If the requestor has no prior publication 
     history or current affiliation, the agency shall consider the 
     requestor's stated intent at the time the request is made to 
     distribute information to a reasonably broad audience.''.

     SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.

       Section 552(a)(4)(E) of title 5, United States Code, is 
     amended by adding at the end the following: ``For purposes of 
     this section, a complainant has `substantially prevailed' if 
     the complainant has obtained a substantial part of its 
     requested relief through a judicial or administrative order 
     or an enforceable written agreement, or if the complainant's 
     pursuit of a nonfrivolous claim or defense has been a 
     catalyst for a voluntary or unilateral change in position by 
     the opposing party that provides a substantial part of the 
     requested relief.''.

     SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS 
                   REJECTIONS OF REQUESTS.

       Section 552(a)(4)(F) of title 5, United States Code, is 
     amended--
       (1) by inserting ``(i)'' after ``(F)''; and
       (2) by adding at the end the following:
       ``(ii) The Attorney General shall--
       ``(I) notify the Special Counsel of each civil action 
     described under the first sentence of clause (i); and
       ``(II) annually submit a report to Congress on the number 
     of such civil actions in the preceding year.
       ``(iii) The Special Counsel shall annually submit a report 
     to Congress on the actions taken by the Special Counsel under 
     clause (i).''.

     SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.

       (a) Time Limits.--
       (1) In general.--Section 552(a)(6)(A)(i) of title 5, United 
     States Code, is amended by inserting ``, and the 20-day 
     period shall commence on the date on which the request is 
     first received by the agency, and shall not be tolled without 
     the consent of the party filing the request'' after ``adverse 
     determination''.
       (2) Effective date.--The amendment made by this subsection 
     shall take effect 1 year after the date of enactment of this 
     Act.

[[Page S1525]]

       (b) Availability of Agency Exemptions.--
       (1) In general.--Section 552(a)(6) of title 5, United 
     States Code, is amended by adding at the end the following:
       ``(G)(i) If an agency fails to comply with the applicable 
     time limit provisions of this paragraph with respect to a 
     request, the agency may not assert any exemption under 
     subsection (b) to that request, unless disclosure--
       ``(I) would endanger the national security of the United 
     States;
       ``(II) would disclose personal private information 
     protected by section 552a or proprietary information; or
       ``(III) is otherwise prohibited by law.
       ``(ii) A court may waive the application of clause (i) if 
     the agency demonstrates by clear and convincing evidence that 
     there was good cause for the failure to comply with the 
     applicable time limit provisions.''.
       (2) Effective date and application.--The amendment made by 
     this subsection shall take effect 1 year after the date of 
     enactment of this Act and apply to requests for information 
     under section 552 of title 5, United States Code, filed on or 
     after that effective date.

     SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND 
                   STATUS INFORMATION.

       (a) In General.--Section 552(a) of title 5, United States 
     Code, is amended by adding at the end the following:
       ``(7) Each agency shall--
       ``(A) establish a system to assign an individualized 
     tracking number for each request for information under this 
     section;
       ``(B) not later than 10 days after receiving a request, 
     provide each person making a request with the tracking number 
     assigned to the request; and
       ``(C) establish a telephone line or Internet service that 
     provides information about the status of a request to the 
     person making the request using the assigned tracking number, 
     including--
       ``(i) the date on which the agency originally received the 
     request; and
       ``(ii) an estimated date on which the agency will complete 
     action on the request.''.
       (b) Effective Date and Application.--The amendment made by 
     this section shall take effect 1 year after the date of 
     enactment of this Act and apply to requests for information 
     under section 552 of title 5, United States Code, filed on or 
     after that effective date.

     SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS.

       Section 552(b) of title 5, United States Code, is amended 
     by striking paragraph (3) and inserting the following:
       ``(3) specifically exempted from disclosure by statute 
     (other than section 552b of this title), provided that such 
     statute--
       ``(A) if enacted after the date of enactment of the 
     Openness Promotes Effectiveness in our National Government 
     Act of 2005, specifically cites to this section; and
       ``(B)(i) requires that the matters be withheld from the 
     public in such a manner as to leave no discretion on the 
     issue; or
       ``(ii) establishes particular criteria for withholding or 
     refers to particular types of matters to be withheld;''.

     SEC. 9. REPORTING REQUIREMENTS.

       Section 552(e)(1) of title 5, United States Code, is 
     amended--
       (1) in subparagraph (F), by striking ``and'' after the 
     semicolon;
       (2) in subparagraph (G), by striking the period and 
     inserting a semicolon; and
       (3) by adding at the end the following:
       ``(H) data on the 10 active requests with the earliest 
     filing dates pending at each agency, including the amount of 
     time that has elapsed since each request was originally 
     filed;
       ``(I) the average number of days for the agency to respond 
     to a request beginning the date on which the request was 
     originally filed, the median number of days for the agency to 
     respond to such requests, and the range in number of days for 
     the agency to respond to such requests; and
       ``(J) the number of fee status requests that are granted 
     and denied, and the average number of days for adjudicating 
     fee status determinations.

     When reporting the total number of requests filed, agencies 
     shall distinguish between first person requests for personal 
     records and other kinds of requests, and shall provide a 
     total number for each category of requests.''.

     SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE 
                   ENTITY.

       Section 552(f) of title 5, United States Code, is amended 
     by striking paragraph (2) and inserting the following:
       ``(2) `record' and any other term used in this section in 
     reference to information includes--
       ``(A) any information that would be an agency record 
     subject to the requirements of this section when maintained 
     by an agency in any format, including an electronic format; 
     and
       ``(B) any information described under subparagraph (A) that 
     is maintained for an agency by an entity under a contract 
     between the agency and the entity.''.

     SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.

       (a) In General.--Chapter 5 of title 5, United States Code, 
     is amended--
       (1) by redesignating section 596 as section 597; and
       (2) by inserting after section 595 the following:

     ``Sec. 596. Office of Government Information Services

       ``(a) There is established the Office of Government 
     Information Services within the Administrative Conference of 
     the United States.
       ``(b) The Office of Government Information Services shall--
       ``(1) review policies and procedures of administrative 
     agencies under section 552 and compliance with that section 
     by administrative agencies;
       ``(2) conduct audits of administrative agencies on such 
     policies and compliance and issue reports detailing the 
     results of such audits;
       ``(3) recommend policy changes to Congress and the 
     President to improve the administration of section 552, 
     including whether agencies are receiving and expending 
     adequate funds to ensure compliance with that section; and
       ``(4) offer mediation services between persons making 
     requests under section 552 and administrative agencies as a 
     non-exclusive alternative to litigation and, at the 
     discretion of the Office, issue advisory opinions if 
     mediation has not resolved the dispute.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 5 of title 5, United States Code, is 
     amended by striking the item relating to section 596 and 
     inserting the following:

``596. Office of Government Information Services.
``597. Authorization of appropriations.''.

       (c) Effective Date.--The amendments made by this section 
     shall take effect 1 year after the date of enactment of this 
     Act.

     SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE 
                   INFORMATION.

       (a) In General.--Not later than January 1 of each of the 3 
     years following the date of the enactment of this Act, the 
     Comptroller General of the United States shall submit to 
     Congress a report on the implementation and use of section 
     214 of the Homeland Security Act of 2002 (6 U.S.C. 133), 
     including--
       (1) the number of persons in the private sector, and the 
     number of State and local agencies, that voluntarily 
     furnished records to the Department under this section;
       (2) the number of requests for access to records granted or 
     denied under this section;
       (3) such recommendations as the Comptroller General 
     considers appropriate regarding improvements in the 
     collection and analysis of sensitive information held by 
     persons in the private sector, or by State and local 
     agencies, relating to vulnerabilities of and threats to 
     critical infrastructure, including the response to such 
     vulnerabilities and threats; and
       (4) an examination of whether the nondisclosure of such 
     information has led to the increased protection of critical 
     infrastructure.
       (b) Form.--The report shall be submitted in unclassified 
     form, but may include a classified annex.

     SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.

       Not later than 1 year after the date of enactment of this 
     Act, the Office of Personnel Management shall submit to 
     Congress a report that examines--
       (1) whether changes to executive branch personnel policies 
     could be made that would--
       (A) provide greater encouragement to all Federal employees 
     to fulfill their duties under section 552 of title 5, United 
     States Code; and
       (B) enhance the stature of officials administering that 
     section within the executive branch;
       (2) whether performance of compliance with section 552 of 
     title 5, United States Code, should be included as a factor 
     in personnel performance evaluations for any or all 
     categories of Federal employees and officers;
       (3) whether an employment classification series specific to 
     compliance with sections 552 and 552a of title 5, United 
     States Code, should be established;
       (4) whether the highest level officials in particular 
     agencies administering such sections should be paid at a rate 
     of pay equal to or greater than a particular minimum rate ; 
     and
       (5) whether other changes to personnel policies can be made 
     to ensure that there is a clear career advancement track for 
     individuals interested in devoting themselves to a career in 
     compliance with such sections; and
       (6) whether the executive branch should require any or all 
     categories of Federal employees to undertake awareness 
     training of such sections.

  Mr. LEAHY. Mr. President, I am pleased to join as a partner with the 
Senator from Texas in introducing the OPEN Government Act of 2005. I 
have devoted a considerable portion of my work in the Senate to 
improving Government oversight, Government openness and citizen 
``right-to-know'' laws to make Government work better for the American 
people, and at times it has been a lonely battle. Finding dedicated 
allies on the other side of the aisle has proven difficult. That is why 
I am delighted to have a partner in John Cornyn. Senator Cornyn has a 
distinguished record of supporting open government dating back to his 
days as Attorney General of Texas. In fact,

[[Page S1526]]

some of the provisions in the bill we introduce today are modeled after 
sections of the Texas Public Information Act.
  I believe that we both see this effort as the first of many 
bipartisan steps we can take together in the new Congress. Senator 
Cornyn and I began to forge a partnership on improving public access to 
Government information well over a year ago when, during the 108th 
Congress, we worked with several other Senators and with the Library of 
Congress to improve the publicly accessible congressional information 
website, THOMAS. He and I also cooperated last fall in a successful 
effort to ensure that ``government information,'' including the 
application of the Freedom of Information Act, FOIA, be subject to the 
jurisdiction of both the Judiciary Committee and the newly constituted 
Homeland Security and Governmental Affairs Committee.
  The bill we introduce today is a collection of commonsense 
modifications designed to update FOIA and improve the timely processing 
of FOIA requests by Federal agencies. It was drafted after a long and 
thoughtful process of consultation with individuals and organizations 
that rely on FOIA to obtain information and share it with the public, 
including the news media, librarians, and public interest organizations 
representing all facets of the political spectrum.
  The OPEN Government Act reaffirms the fundamental premise of FOIA: 
Government information belongs to all Americans and should be subject 
to a presumption in favor of disclosure. James Madison said that ``a 
popular government, without popular information, or the means of 
acquiring it, is but a prologue to a farce or tragedy or perhaps 
both.'' His caution rings just as true today. The public's right to 
know what its government is doing promotes accountability, imbues trust 
and contributes to our system of checks and balances.
  First enacted in 1966, FOIA represents the foundation of our modern 
open Government laws. In 1996, I was the principal author of the 
Electronic Freedom of Information Act Amendments, which updated FOIA 
for the internet age. The bill we introduce today is the next step: a 
practical set of important modifications that respond to common 
complaints and limitations in the current system that we have heard, 
whether from frequent FOIA requestors, such as representatives of the 
press, or individual citizens who may only occasionally rely on FOIA, 
but who nonetheless deserve timely and comprehensive responses to their 
requests.
  Chief among the problems with FOIA implementation is agency delay. 
Following the successful model of the Texas Public Information Act, 
this legislation imposes penalties on agencies that miss statutory 
deadlines to release documents and strengthens reporting requirements 
on FOIA compliance.
  The OPEN Government Act responds to some confusion over the 
applicability of FOIA to agency records that are held by outside 
private contractors. It does this by clarifying that such records are 
subject to FOIA wherever they are located.
  Our legislation establishes an ombudsman to mediate FOIA disputes 
between agencies and requestors, a step that many FOIA requestors 
believe will help to ameliorate the need for FOIA litigation in the 
Federal courts. We hope that this mechanism will work to the benefit of 
all parties. However, where mediation fails to resolve disputes, our 
bill preserves the rights of requestors to litigate under FOIA.
  Our bill responds to recent Federal jurisprudence by explicitly 
providing for recovery of attorneys' fees under the so-called 
``catalyst theory.'' That is, where a FOIA lawsuit was the catalyst for 
an agency determination to release documents prior to a court's entry 
of judgment, the plaintiff may recover attorneys' fees.
  Finally, the bill requires reports on a controversial law, the 
Critical Infrastructure Information Act, enacted as part of the 
Homeland Security Act of 2002, and it protects fee-waiver status for 
journalists under FOIA.
  Letters of support for the OPEN Government Act have been submitted by 
the American Association of Law Libraries, American Civil Liberties 
Union, American Library Association, American Society of Newspaper 
Editors, Associated Press Managing Editors, Association of Health Care 
Journalists, Center for Democracy & Technology, Coalition of 
Journalists for Open Government, Committee of Concerned Journalists, 
Education Writers Association, Electronic Privacy Information Center, 
Federation of American Scientists/Project on Government Secrecy, Free 
Congress Foundation/Center for Privacy & Technology Policy, Freedom of 
Information Center/University of Missouri, The Freedom of Information 
Foundation of Texas, The Heritage Foundation/Center for Media and 
Public Policy, Information Trust, National Conference of Editorial 
Writers, National Freedom of Information Coalition, National Newspaper 
Association, National Security Archive/George Washington University, 
Newspaper Association of America, People for the American Way, Project 
on Government Oversight, Radio-Television News Directors Association, 
The Reporters Committee for Freedom of the Press, and the Society of 
Environmental Journalists.
  The Freedom of Information Act is an invigorating mechanism that 
helps keep our government more open and effective and closer to the 
American people. FOIA has had serious setbacks in recent years that 
endanger its effectiveness. This legislation is a rare chance to 
advance the public's right to know.
  I thank my colleague, the Senator from Texas, for the time and effort 
he has devoted to protecting the public's right to know, and I urge all 
members of the Senate to join us in supporting this important 
legislation.
                                 ______