[Congressional Record Volume 151, Number 28 (Thursday, March 10, 2005)]
[Senate]
[Pages S2485-S2486]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN (for himself and Mr. Leahy):
  S. 589. A bill to establish the Commission on Freedom of Information 
Act Processing Delays; to the Committee on the Judiciary.
  Mr. CORNYN. Mr. President, on February 16, shortly before the 
President's Day recess in February, the Senator from Vermont and I 
introduced the OPEN Government Act of 2005--bipartisan legislation to 
promote accountability, accessibility, and openness in government, 
principally by strengthening and enhancing the Federal law commonly 
known as the Freedom of Information Act.
  When I served as Attorney General of Texas, it was my responsibility 
to enforce Texas's open government laws. I am pleased to report that 
Texas is known for having one of the strongest set of open government 
laws in our Nation. And ever since that experience, I have long 
believed that our federal government could use ``a little Texas 
sunshine.'' I am thus especially enthusiastic about the OPEN Government 
Act, because that legislation attempts to incorporate some of the most 
important principles and elements of Texas law into the federal Freedom 
of Information Act.
  Today, I am pleased to join the Senator from Vermont again, to 
commence another bipartisan effort to reinforce our national commitment 
to freedom of information and openness in government. Indeed, this is 
an especially appropriate time to promote this important cause, because 
starting this Sunday, America will observe the first-ever national 
Sunshine Week--a celebration of our nation's founding principles and 
commitment to freedom of information and openness in government. It is 
also long past due. It has been nearly a decade since Congress has 
approved major reforms to the Freedom of Information Act. Moreover, a 
Senate Judiciary subcommittee hearing that the Senator from Vermont and 
I will lead next Tuesday morning to examine our open government laws 
will be the first such hearing since 1992.
  The Faster FOIA Act of 2005 would establish an advisory Commission on 
Freedom of Information Act Processing Delays. The Commission would be 
charged with reporting to Congress and the President its 
recommendations for steps that should be taken to reduce delays in the 
administration of the Freedom of Information Act.
  The Commission would be comprised of 16 members. Twelve of them would 
be appointed by members of Congress--three by the chairman of the 
Senate Judiciary Committee, three by the chairman of the House 
Government Reform Committee, and three each by the ranking minority 
member of the two committees. These four members of Congress would each 
be required to appoint at least one member to the Commission with 
experience submitting FOIA requests on behalf of nonprofit research or 
educational organizations or news media organizations, and at least one 
member with experience in academic research in the fields of library 
science, information management, or public access to Government 
information. The remaining four positions on the Commission would be 
held by designees of the Attorney General, the Director of the Office 
of Management and Budget, the Archivist of the United States, and the 
Comptroller General.

  The Commission would be responsible for producing a study to identify 
methods to reduce delays in the processing of FOIA requests and to 
ensure the efficient and equitable administration of FOIA throughout 
the Federal Government. The Commission would also be charged with 
examining whether the system for charging fees and granting fee waivers 
under FOIA should be reformed in order to reduce delays in processing 
fee requests. The report would be due no later than one year after the 
date of enactment of this Act, and would include recommendations for 
legislative and administrative action to enhance FOIA performance. The 
Commission would expire thirty days after the submission of the report.
  The Faster FOIA Act is important legislation to strengthen openness 
in our Federal Government, and I am pleased to join with the Senator 
from Vermont once again in furtherance of this cause.
  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. 589

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

     SECTION 1. COMMISSION ON FREEDOM OF INFORMATION ACT 
                   PROCESSING DELAYS.

       (a) Short Title.--This Act may be cited as the ``Faster 
     FOIA Act of 2005''.
       (b) Establishment.--There is established the Commission on 
     Freedom of Information Act Processing Delays (in this Act 
     referred to as the ``Commission'') for the purpose of 
     conducting a study relating to methods to help reduce delays 
     in processing requests submitted to Federal agencies under 
     section 552 of title 5, United States Code (commonly referred 
     to as the ``Freedom of Information Act'').
       (c) Membership.--
       (1) In general.--The Commission shall be composed of 16 
     members of whom--
       (A) 3 shall be appointed by the chairman of the Committee 
     on the Judiciary of the Senate;

[[Page S2486]]

       (B) 3 shall be appointed by the ranking member of the 
     Committee on the Judiciary of the Senate;
       (C) 3 shall be appointed by the chairman of the Committee 
     on Government Reform of the House of Representatives;
       (D) 3 shall be appointed by the ranking member of the 
     Committee on Government Reform of the House of 
     Representatives;
       (E) 1 shall be appointed by the Attorney General of the 
     United States;
       (F) 1 shall be appointed by the Director of the Office of 
     Management and Budget;
       (G) 1 shall be appointed by the Archivist of the United 
     States; and
       (H) 1 shall be appointed by the Comptroller General of the 
     United States.
       (2) Qualifications of congressional appointees.--Of the 3 
     appointees under each of subparagraphs (A), (B), (C), and (D) 
     of paragraph (1)--
       (A) at least 1 shall have experience in submitting requests 
     under section 552 of title 5, United States Code, to Federal 
     agencies, such as on behalf of nonprofit research or 
     educational organizations or news media organizations; and
       (B) at least 1 shall have experience in academic research 
     in the fields of library science, information management, or 
     public access to Government information.
       (d) Study.--The Commission shall conduct a study to--
       (1) identify methods that--
       (A) will help reduce delays in the processing of requests 
     submitted to Federal agencies under section 552 of title 5, 
     United States Code; and
       (B) ensure the efficient and equitable administration of 
     that section throughout the Federal Government; and
       (2) examine whether the system for charging fees and 
     granting waivers of fees under section 552 of title 5, United 
     States Code, needs to be reformed in order to reduce delays 
     in processing requests.
       (e) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Commission shall submit a report 
     to Congress and the President containing the results of the 
     study under this section, which shall include--
       (1) a description of the methods identified by the study;
       (2) the conclusions and recommendations of the Commission 
     regarding--
       (A) each method identified; and
       (B) the charging of fees and granting of waivers of fees; 
     and
       (3) recommendations for legislative or administrative 
     actions to implement the conclusions of the Commission.
       (f) Staff and Administrative Support Services.--The 
     Comptroller General of the United States shall provide to the 
     Commission such staff and administrative support services, 
     including research assistance at the request of the 
     Commission, as necessary for the Commission to perform its 
     functions efficiently and in accordance with this section.
       (g) Information.--To the extent permitted by law, the heads 
     of executive agencies, the Government Accountability Office, 
     and the Congressional Research Service shall provide to the 
     Commission such information as the Commission may require to 
     carry out its functions.
       (h) Compensation of Members.--Members of the Commission 
     shall serve without compensation for services performed for 
     the Commission.
       (i) Travel Expenses.--The members of the Commission shall 
     be allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (j) Applicability of Federal Advisory Committee Act.--The 
     Federal Advisory Committee Act (5 U.S.C. App.) shall apply to 
     the Commission.
       (k) Termination.--The Commission shall terminate 30 days 
     after the submission of the report under subsection (e).

  Mr. LEAHY. Mr. President, I am pleased to join my colleague from 
Texas, Senator John Cornyn, in introducing what is our second 
cooperative action in this Congress to improve the implementation of 
the Freedom of Information Act, or FOIA. This bill, called the ``Faster 
FOIA Act of 2005,'' responds to commonly voiced concerns of FOIA 
requestors over agency delay in processing requests.
  I want to express my appreciation to all of the FOIA officers and 
other Federal employees who work hard to process FOIA requests quickly 
and efficiently. I know that many simple requests are filled within a 
few days, and I understand that complex requests dealing with national 
security issues can take time for declassification, redaction, or 
release, as appropriate.
  There are, nonetheless, significant delays at many agencies. In 2003, 
a non-governmental organization, the National Security Archive, looked 
into just how long some FOIA requests are left unfulfilled. The group 
found that the oldest requests dated back to the late 1980s, before the 
collapse of the Soviet Union. The oldest of these was a request to the 
FBI for information on the Bureau's activities at the University of 
California. First filed in November 1987, this request was partially 
fulfilled in 1996 after extensive litigation. According to the National 
Security Archive, the documents that were released revealed ``unlawful 
FBI intelligence activities and the efforts to cover up such conduct.'' 
After a 2002 article in the San Francisco Chronicle, and inquiries from 
Senator Feinstein, the Bureau acknowledged that there were at least 
17,000 pages of records that still had not been produced. Since then, 
some data has been released, but the requestor recently told me that he 
believes more than 15,000 pages remain outstanding.
  This is an extreme case, but delays are commonplace. Sometimes 
slowdowns are caused by poorly managed or decentralized data systems 
that result in an agency not knowing what documents are located where. 
Other times, components within a single agency do not effectively 
communicate with one another, so that no one can say whether a request 
has been filled or not. Finally, we have heard anecdotal evidence of 
certain agencies engaging in protracted disputes over fee waivers 
sought by FOIA requestors. I have worked closely with the Government 
Accountability Office over the past few years to obtain detailed 
analysis of how fees are collected and how fee waiver requests are 
processed. The analysts at GAO have looked long and hard at these 
issues. I am grateful for their efforts and look forward to the results 
of their study later this year.
  One of the problems faced by GAO, and anyone else who has looked into 
agency delay, is the lack of comprehensive reporting data. We address 
this problem in our companion bill, S.94, the Open Government Act, by 
calling for more detailed reporting from agencies on FOIA processing.
  These issues deserve a closer look in the short term, however. In 
this bill, we propose to establish a commission to review agency delay 
and to make recommendations for reducing impediments to the efficient 
processing of requests. The Commission would also examine whether the 
system for charging fees and granting waivers should be modified.
  The Commission would be made up of government and non-governmental 
representatives with a broad range of experience in both submitting and 
handling FOIA requests, in information science, and in the development 
of government information policy.
  I understand that many requests are complex and that the resources 
devoted to agency FOIA processing are often lacking. Our companion 
bill, S. 394, the Open Government Act, addresses this issue by 
establishing a FOIA ombudsman requiring the Office of Personnel 
Management to examine how FOIA can be better implemented at the agency 
level. If the Commission finds that limited resources are a significant 
factor in slowing down the fulfillment of requests, then Congress 
should address the issue by increasing funding levels for FOIA 
processing.
  I want to thank the Senator from Texas for his diligent work and 
flexibility in crafting a Commission structure that is balanced and 
fair, and that will bring extraordinary expertise to solving these 
nettlesome problems. I urge all of our colleagues to support the Faster 
FOIA Act, which has the potential to help agencies and requestors alike 
in the service of open government.
                                 ______