[Congressional Record Volume 153, Number 127 (Friday, August 3, 2007)]
[Senate]
[Pages S10849-S10851]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                Updating the Freedom of Information Law

  Mr. President, I have some good news. We are reaching an agreement 
that should clear the way for Senate passage of the Openness Promotes 
Effectiveness in Our National Government Act, the OPEN Government Act, 
S. 849, which is a mouthful. That means we will have a much needed 
update of the Freedom of Information Act.
  This is comprehensive legislation which Senator Cornyn and I 
introduced earlier this year. A lot of people have not sat by idly 
while there has been obstruction on this floor. They have pushed for it 
and demanded it. I think of all of the editorial writers and letter 
writers who said: Let's do this. I will speak further if we do pass it.
  Every administration, Democratic or Republican, will tell you all the 
things they do right. Most administrations don't want to talk about the 
things that don't go right. It is usually the press and public 
citizens, individuals, who find things out through FOIA.
  Open government and transparent decisionmaking are bedrock American 
values. For more than four decades, FOIA has translated those great 
values into practice by guaranteeing access to government information. 
Just recently, we witnessed the effectiveness of FOIA in shedding light 
on the chronic abuse of National Security Letters, NSLs, at the FBI. 
This disclosure of government documents obtained under FOIA showed the 
FBI reported an intentional and willful violation of the laws governing 
NSLs to the President's Intelligence Oversight Board just before the 
2004 election, contrary to the impression created by testimony of 
Attorney General Gonzales.
  Although FOIA continues to demonstrate its great value in shedding 
light on bad government policies and abuses, this open government law 
is being hampered by excessive delays and lax FOIA compliance. Today, 
Americans who seek information under FOIA remain less likely to obtain 
it than during any other time in FOIA's 40-plus year history. According 
to the National Security Archive, an independent research institute, 
the oldest outstanding FOIA requests date back to 1989, before the 
collapse of the Soviet Union. In fact, more than a year after the 
President's FOIA executive order to improve agency FOIA performance, 
FOIA backlogs are at an all-time high. According to a recent report by 
the Government Accountability Office, federal agencies had 43 percent 
more FOIA requests pending and outstanding in 2006 than in 2002. In 
addition, the percentage of FOIA requestors who obtained at least some 
of the information that they requested from the Government declined by 
31 percent in 2006, according to a study by the Coalition of 
Journalists for Open Government. As the first major reform to FOIA in 
more than a decade, the OPEN Government Act would help to reverse these 
troubling trends and help to begin to restore the public's trust in 
their government. This bill also improves transparency in the Federal 
Government's FOIA process by:

[[Page S10851]]

  Restoring meaningful deadlines for agency action under FOIA;
  Imposing real consequences on Federal agencies for missing FOIA's 20-
day statutory deadline;
  Clarifying that FOIA applies to government records held by outside 
private contractors;
  Establishing a FOIA hotline service for all federal agencies; and
  Creating a FOIA Ombudsman to provide FOIA requestors and Federal 
agencies with a meaningful alternative to costly litigation.
  Let me also be clear about what this bill does not do. This bill does 
not harm or impede in any way the Government's ability to withhold or 
protect classified information. Classified, national security and 
homeland security-related information are all expressly exempt from 
FOIA's public disclosure mandate and this bill does nothing to alter 
these important exemptions. Senator Cornyn and I have been proposing an 
amendment to our own bill that would preserve the right of federal 
agencies to assert these and other FOIA exemptions, even if agencies 
miss the 20-day statutory deadline under FOIA.
  The OPEN Government Act is cosponsored by a bipartisan group of 14 
Senators, including the bill's lead Republican cosponsor, Senator 
Cornyn. This bill is also endorsed by more than 115 business, public 
interest, and news organizations from across the political and 
ideological spectrum, including the American Library Association, the 
U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the 
Republican Liberty Caucus, the Sunshine in Government Initiative and 
the Vermont Press Association. I thank all of the cosponsors of this 
bill for their commitment to open government. I also thank the many 
organizations that have endorsed the OPEN Government Act for their 
support of this legislation.
  I especially want to thank the concerned citizens who have not sat 
idly by while some have sought to delay and obstruct Senate 
consideration of this measure. Instead, knowing the importance of this 
measure to the American people's right to know, they have demanded 
action and refuse to take no for an answer. That is what led to this 
breakthrough and to the commitment of Senate opponents of our FOIA bill 
to come around.
  The OPEN Government Act is a good-government bill that Democrats and 
Republicans, alike, can and should work together to enact. For more 
than 2 years, I have worked on a bipartisan basis to pass this 
legislation and I remain committed to work with any Senator, from 
either party, who is serious about restoring transparency, trust and 
accountability to our government. Open government should not be a 
Democratic issue or a Republican issue. It is an American issue and an 
American value.
  I am glad to announce to today that with Senator Cornyn's help we 
have come to an understanding with Senators Kyl and Bennett that should 
lead to Senate passage before the August recess.
  I ask unanimous consent that a recent USA Today editorial entitled, 
``Our view on your right to know: Endless delays mar requests for 
government information,'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                            [From USA Today]

    Our View on Your Right To Know: Endless Delays Mar Requests for 
                         Government Information

       Federal agencies are supposed to respond to requests for 
     information within 20 business days. In some cases, 20 years 
     has been more like it. A sampling of pending queries:
       In 1987, lawyers for the Church of Scientology asked the 
     State Department for information about whether the department 
     had been gathering information about the church or about 
     ``cults.''
       In 1988, steelmaker USX Corp. requested government data on 
     the steel industry in Luxembourg.
       And in 1989, the Armenian Assembly of America sought 
     documents on the Armenian genocide that occurred more than 70 
     years earlier during World War I.
       What these queries have in common is that they are among 
     thousands of requests that have been sandbagged, stonewalled 
     or lost by government agencies.
       Congress passed the Freedom of Information Act in 1966 to 
     give citizens and taxpayers access to government-held records 
     that they've paid to have gathered. But 40 years later, 
     scores of agencies still can't--or won't--get it right.
       Compliance with the 20-day deadline is ``an exception 
     rather than a standard practice,'' according to a report this 
     month from the Knight Foundation and the National Security 
     Archive watchdog group.
       Twelve agencies, ranging from the Defense Department to the 
     Environmental Protection Agency, have backlogs of 10 years or 
     more. Only one-fifth of federal agencies are in compliance 
     with a 10-year-old law that was supposed to put so much 
     government information on the Internet that most FOIA 
     requests would no longer be needed.
       Long-overdue reforms that sailed through the House in March 
     with a wide bipartisan majority have been stalled in the 
     Senate--largely because of opposition from Sen. Jon Kyl, R-
     Ariz.--despite a unanimously favorable vote by the Judiciary 
     Committee.
       The ugly reality is that the freedom-of-information law has 
     been sabotaged for years by politicians and bureaucrats 
     trying to make it hard, if not impossible, for citizens to 
     obtain information to which they're entitled.
       The pending reforms would restore meaningful deadlines for 
     agency action and impose serious consequences on agencies 
     that miss those deadlines. The bill also would establish a 
     freedom-of-information hotline to enable citizens to track 
     the status of their requests. And it seeks to repeal a 
     perverse incentive that encourages agencies to delay 
     compliance with information requests until just before a 
     court decision that is going to be favorable to the 
     requester.
       Of the more than 500,000 freedom-of-information requests 
     filed every year, over 90% are from private citizens, 
     businesses or state and local agencies seeking information 
     that's important to them and that in most cases they are 
     entitled to.
       Critics of the legislation object to getting tough on 
     agencies that flout the law and claim that some of the 
     proposed reforms would force the disclosure of sensitive 
     information. If so, these are issues that should be thrashed 
     out in Congress, not used as a club to stall consideration of 
     this long-overdue legislation. The public's right to know is 
     too important to remain on hold.

  The ACTING PRESIDENT pro tempore. All time has expired.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the 
nomination.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Timothy D. DeGiusti, of Oklahoma, to be a United States District 
Court Judge for the Western District of Oklahoma?
  The yeas and nays have been ordered, and the clerk will call the 
roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Connecticut (Mr. Dodd), the Senator from South Dakota 
(Mr. Johnson), and the Senator from Washington (Mrs. Murray) are 
necessarily absent.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 96, nays 0, as follows:

                      [Rollcall Vote No. 308 Ex.]

                                YEAS--96

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--4

     Clinton
     Dodd
     Johnson
     Murray
  The nomination was confirmed.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
motion to reconsider is laid upon the table, and the President shall be 
immediately notified of the Senate's action.

                          ____________________