[Congressional Record Volume 153, Number 186 (Thursday, December 6, 2007)]
[Senate]
[Pages S14849-S14856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KENNEDY (for himself, Mr. Dodd, Mrs. Clinton and Mr.
Obama):
S. 2419. A bill to permit employees to request, and to ensure
employers consider requests for, flexible work terms and conditions,
and for other purposes; to the Committee on Health, Education, Labor,
and Pensions.
Mr. KENNEDY. Mr. President, the American workplace has changed
significantly in recent years. In the new global economy, many
businesses are open around the clock--and employees often work long
shifts and unpredictable hours. With computers and cell phones,
employers can reach employees almost any time, anywhere. Hard economic
times require many men and women to work longer hours or hold multiple
jobs. Almost 8 million Americans now juggle the demands of at least two
jobs, and tens of millions more find it increasingly difficult to
achieve a fair balance between their work and their family.
These and other shifts in our society mean that many Americans and
their
[[Page S14850]]
families are stretched to the limit. Two-thirds of all families in our
country are headed by either two employed parents or a single working
parent, and parents are working outside the home longer hours than
ever--an average of 91 hours a week for dual income couples.
As the population ages, more and more Americans must also care for
elderly parents and relatives. An aging population also means more
older workers, who want to stay on the job, but don't want or can't
manage long hours any more. Expanding populations in metropolitan areas
mean longer commutes. A recent Gallup poll found that about a third of
American workers spend an hour or more a day getting to and from work.
Our working families deserve a 21st century answer for these 21st
century job challenges. Greater flexibility is an essential part of the
response. More than 80 percent of workers would like more flexibility
in their jobs. Almost half of them, however, worry that asking for such
flexibility will jeopardize their careers.
The Working Families Flexibility Act I am introducing today will give
employees the ability to ask for flexible arrangements without fear.
Flexible scheduling will enable working parents to coordinate child
care more effectively and spend more time with their children. It can
even help workers be better parents. Studies show that parents with
greater control over their schedules spend more time with their
children.
For employees with long commutes, telecommuting reduces stress and
time wasted time wasted on the road. Many workers say they are just as
productive at home, and sometimes even more so.
Flexibility also lets more people stay in the workforce who otherwise
could not. Often coming into the office for a traditional 8 hour day,
five days a week isn't possible for elderly workers or persons with
disabilities. With flexible scheduling and telecommuting, these workers
can continue on the job.
Flexibility is also good for business. Persons with flexible work
arrangements are more reliable employees. In a recent survey, two-
thirds of workers with flexible schedules missed less work because of
such arrangements.
They are also happier employees. Another study showed that almost
three times as many workers in companies that offer flexibility felt
satisfied with their jobs, compared to workers without such options.
Companies that offer flexibility also discover that it helps them
attract and retain better employees.
The Working Families Flexibility Act brings workers and employers
together to find creative ways to provide such flexibilities. Our
legislation allows those who know their jobs best--the ones actually
doing the work--to suggest changes as to when and where they do their
work. It creates a process for workers and employers to come up with
solutions that best fit their particular circumstances.
We know that laws like this will benefit both employers and
employees. Great Britain, Germany, and the Netherlands, have adopted
similar laws with great success. 90 percent of British workers now have
flexible work options, compare to only about a quarter of American
workers. Last year 91 percent of British employers who had employee
requests for flexibility were able to grant them. It is making the
workers more satisfied with their jobs. Those who took advantage of
flexibility were 50 percent more satisfied with their work arrangements
than workers who did not.
We all fill many roles in our lives. We are workers, parents, sons
and daughters, and members of our communities. We struggle to do well
in each responsibility. But when the demands of work overshadow the
rest of our lives, our lives feel out of balance. This legislation
gives millions of American workers the opportunity to restore that
balance--to be good employees and responsible citizens and family
members, too. They deserve no less.
______
By Mr. SCHUMER (for himself and Mr. Brownback):
S. 2421. A bill to amend the Internal Revenue Code of 1986 to provide
tax benefits to individuals who have been wrongfully incarcerated; to
the Committee on Finance.
Mr. SCHUMER. Mr. President, today, I want to say a few words about
the bill I am introducing, the Wrongful Convictions Tax Relief Act of
2007. My bill would provide much-needed assistance to individuals who
have been wrongfully convicted of a crime and subsequently exonerated
by clarifiying that State compensation awards are tax-free; and stating
that exonerees shall have their first $50,000 of earnings free of
federal income and payroll taxes for each year that they were
wrongfully imprisoned. The second benefit would only apply to those who
have never been convicted of a felony for which they were not
exonerated. If they had a conviction prior to their wrongful
conviction, they would not be eligible. If they are subsequently
convicted, they would lose their eligibility as well.
I want to thank Senator Brownback for offering to be the lead
Republican cosponsor of my bill. He and I have worked together on a
number of issues now, and I appreciate his willingness to support this
legislation.
As my colleagues are surely aware, whatever their political leanings
may be, this bill addresses an incredibly timely and important issue.
Just 2 days ago, a Federal prosecutor in Jacksonville, Florida
dismissed a murder case against a Florida man, based on DNA evidence,
exonerating him in a 1994 murder. According to the Innocence Project,
this man represents the 209th person nationwide exonerated by DNA
testing.
More and more innocent people are regaining their freedom through
post-conviction DNA testing. No matter what your view may be of the
death penalty; no matter what your view may be of mandatory sentencing
laws; no matter how ``tough on crime'' you want to be--surely everyone
would agree that when innocent people spend time in prison for crimes
that they did not commit, something of value has been taken from them.
In this country, everyone is entitled to a fair trial. Yet for those
wrongfully convicted of a crime, our legal system has failed them. Some
of the common causes of wrongful convictions include eyewitness
misidentification, unreliable or limited evidence tests, and false
information presented by informants. Even more sobering, more than a
quarter of all prisoners exonerated by DNA evidence had falsely
confessed or made incriminating statements, simply to end hours of
aggressive interrogation.
Thankfully, advocacy groups such as the Innocence Project and the
Justice Project have taken on the challenge of addressing what can only
be described as a systemic problem. The Innocence Project at the
Cardozo School of Law in New York City has been a tireless leader in
overturning wrongful convictions, and has led the charge in using DNA
evidence to prove, once and for all, a person's innocence. With new
improvements in DNA testing and technology, we can now positively
identify or rule out suspects based on DNA evidence left at the scene
of a crime. In most wrongful conviction cases, new testing of DNA
evidence taken from the crime scene years before points to another
perpetrator.
Once released, exonerees face huge and sometimes insurmountable
challenges. Multiple studies have shown that upon release, these
individuals often have difficulty reentering society. They have lost
the prime years of their life, serving time in prison for crimes they
did not commit. The vast majority of exonerated individuals entered
prison in their teens or 20s, and they stayed there while some of their
peers on the outside settled on careers, married, started families,
bought homes, and began saving for retirement. They have emerged from
prison many years behind, and it is difficult to catch up. Think about
how much the economy has changed in just the last 10 years, and think
about how difficult it would be to adjust if you had spent that time
behind bars.
Shockingly, despite being imprisoned for an average of 12 years,
exonerees typically leave prison with less help pre-release counseling,
job training, substance-abuse treatment, housing assistance and other
services than some states offer to paroled prisoners. Even the basic
tasks that seem so unremarkable to you and I, like going to the grocery
store, paying bills, and getting to and from work, are huge tasks for
someone who has spent so much time in prison. In fact, in some cases,
people have lost jobs once their employers find out about their past
[[Page S14851]]
conviction, despite the fact that they have been exonerated of the
crime. I know that sounds unbelievable, but it's true. You didn't
commit the crime, it is proven that you didn't commit the crime, but
you still lose your job. Imagine for just a moment if this happened to
one of your friends or family members. You would be outraged. The
unfairness is heartbreaking.
Certainly we can all agree that these individuals deserve and need
support after their release, and lawmakers on both the state and
federal level have begun to address the question of compensation for
wrongfully convicted individuals. In 2004, Congress passed the Justice
for All Act, which I am proud to have cosponsored. This bill, among
other things, raised the cap for potential federal compensation awards
for wrongful convictions to $100,000. Although the federal compensation
has not been claimed, this landmark piece of legislation set a
precedent for state compensation laws. As of now, 22 States have
followed suit and passed compensation laws as well. But the system is a
patchwork. Some States, such as Maine and New York, provide exonerees
with a lump sum as the court sees fit, and cap these awards at specific
levels. Other States, such as California and Texas, give compensation
based on time spent in jail. Only a few States, such as Louisiana,
offer compensation to cover costs such as vocational training, medical
bills and counseling, to aid re-entry.
We can and should do more. Of all people known by the Innocence
Project to have been exonerated through DNA evidence as of August 2007,
at least 79--nearly 40 percent--didn't receive a dime to compensate
them for their years in prison. Even when someone is awarded
compensation, they can wait in limbo for years. More than half of those
who did receive compensation waited two years or longer after
exoneration for the first payment, forcing them to rely on family,
friends, lawyers, and even strangers for shelter, clothing, food and
emotional support immediately after their release.
The Federal Government cannot and should not offer cash compensation
for those who have been wrongfully convicted by state courts, but we do
have the power to address how compensation awards are taxed, and how
these individuals are taxed once they try to rebuild their lives. We
can help even the playing field across all States by changing the law
to ensure that there are some benefits that will be consistent across
all 50 States. My bill changes the law in a number of ways to ensure
that there are some benefits available to everyone, regardless of which
State they call home.
The first change in my bill is more of a clarification than a new tax
benefit. If an exoneree does receive a state compensation award, the
Federal tax laws are unclear as to whether these awards are taxable.
According to the Innocence Project, the Internal Revenue Service has
not yet made any attempts to tax these awards, but the concern remains
that the IRS could make such a claim in the future. My bill
specifically clarifies that any civil damages, restitution, or other
monetary awards related to the wrongful imprisonment are excluded from
taxable income.
The second change in my bill will help provide much-needed economic
assistance to exonerees that are trying to rebuild their lives, but
finding it hard to make ends meet. My bill says that, for every year
that someone was wrongfully imprisoned and then exonerated, up to 15
years, the first $50,000 they earn each year after their release will
be free of Federal income and payroll taxes. For married couples filing
jointly, the tax-free amount would be $75,000 per year. Again, the
benefit would only apply to those who have never been convicted of a
felony. If they had a conviction prior to their wrongful conviction,
they would not be eligible. If they are subsequently convicted, they
would lose their eligibility as well.
In terms of real dollars, let us take the example of someone earning
$20,000 post-imprisonment. In a typical tax filing scenario, my bill
will save them nearly $2,800 in income and payroll taxes. This is a
real benefit that can make wages go just that much farther--it can pay
for a few months' rent, or a community college course, or any number of
things that can help this victim return to a productive life.
As my colleagues know, I feel very strongly about justice and
fairness. I am not one to shy away from making tough decisions to
strengthen our laws, but I also believe that when someone has been
treated unfairly by the law, it is our responsibility to provide some
help. I sincerely believe that people who have been wrongfully
convicted of a crime have had parts of their lives taken from them,
plain and simple.
Mr. President, I thank you for the opportunity to speak on the issue
of fair compensation for wrongful convictions. I stand ready to work
with Senator Brownback and my colleagues on both sides of the aisle,
including the chairman and ranking member of the Finance Committee, to
get this bill enacted next year.
______
By Mrs. FEINSTEIN:
S. 2423. A bill to facilitate price transparency in markets for the
sale of emission allowances, and for other purposes; to the Committee
on Environment and Public Works.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce ``The
Emission Allowance Market Transparency Act.''
This legislation would establish necessary market oversight
authorities to prevent Enron-type fraud and manipulation in the new
greenhouse gas credit markets that are expected to emerge once Congress
approves comprehensive climate change legislation.
The goal is simple: To prevent the same type of fraud and
manipulation that occurred during the Western Energy Crisis from
happening if a new greenhouse market is established.
The bill would establish transparency and anti-manipulation
provisions modeled after energy markets protections that were
established by the Energy Policy Act of 2005.
Additionally, the legislation includes anti-fraud provisions and
limits excessive speculation. The bill would establish strong financial
penalties. Each offense would result in a fine of up to $1 million and
10 years in jail.
Simply put, this legislation is a necessary and critical part of any
new carbon trading markets approved by Congress.
Specifically, the legislation would require the Environmental
Protection Agency to create a regulatory structure to oversee the new
carbon credit markets.
This system would be parallel to the system used by the Federal
Energy Regulatory Committee FERC for the electricity and natural gas
markets.
The EPA would publish market price data in order to increase
transparency; monitor trading for manipulation and fraud; and limit the
size of speculative holdings to prevent any single trader from being
able to set the price.
The bill would also prohibit traders from: reporting false
information; manipulating the market; and cheating or defrauding
another market participant.
Any trader who violated this Act would pay a maximum $1 million fine
and spend 10 years in jail for each offense.
We believe that this will strongly discourage traders from seeking to
manipulate the market.
This legislation is the key part of an effort to prevent newly
emerging greenhouse gas markets from evolving without rules or
regulation. These markets are coming, and we need to have the law in
place to receive them.
California has passed legislation and will soon establish a cap and
trade system to control carbon dioxide emissions.
Many members of the U.S. Senate support legislation, such as the
Electric Utility Cap and Trade Act that I have introduced, to establish
a Federal cap and trade system.
Legislation sponsored by Senators Warner and Lieberman to establish a
national, economy-wide greenhouse gas cap and trade system will be
marked up in the Environment and Public Works Committee this week.
If we don't set up a framework for oversight, the greenhouse gas
market could turn into a wild west. The market--estimated to be worth
as much as $300 billion annually--would invite the worst kind of
manipulation, fraud, and abuse. The resulting volatility would affect
consumer energy costs.
This is not a hypothetical. In 2000 and 2001, newly created
California energy markets lacked the basic protections in this bill.
The electricity and related natural gas markets emerged
[[Page S14852]]
before the law caught up, and much of the manipulation that resulted,
shockingly, was legal.
Enron, for instance, ran a market where only they knew the prices.
Without market transparency laws, this one-sided market was legal.
Enron manipulated natural gas and electricity prices--but nothing in
the Natural Gas Act or the Federal Power Act made this manipulation
unlawful.
Only years later, after millions of consumers had been harmed, after
billions of dollars had been lost, and after the entire west had
endured an energy crisis largely fabricated by traders, did Congress
act.
We were able to increase market transparency and prohibiting
manipulation in natural gas and electricity markets were adopted.
The provisions finally gave a sheriff the ability to impose oversight
and record-keeping.
The Federal Energy Regulatory Commission, has put its new authority
to good use. It has performed aggressive natural gas market oversight.
This summer it brought its first manipulation case, against
Amaranth--a notorious hedge fund that allegedly manipulated natural gas
prices month after month.
The Emission Allowance Market Transparency Act would establish
transparency and anti-manipulation provisions mirroring the provisions
from the Energy Policy Act of 2005.
Markets would be transparent, and manipulation would be illegal.
In addition, this legislation adds anti-fraud provisions and limits
excessive speculation. These additional market protections are
longstanding principles of the Commodity Exchange Act.
By mirroring proven market oversight mechanisms that protect market
participants and consumers, this legislation would slip already broken-
in regulatory concepts onto a new market.
This Nation needs to reduce greenhouse gas emissions, and many
economists believe that a cap and trade system with a greenhouse gas
market would be the most cost efficient way to guarantee emissions
reductions.
The economists also tell us that markets are most efficient when
buyers and sellers have complete information, no market participant can
cheat another, and prices result from supply and demand, not
manipulation.
That is why we need to prevent manipulation, fraud, and a lack of
transparency.
So this legislation would provide buyers and sellers with complete
information; and prevent manipulation, fraud, and excessive
speculation.
Bottom line: this legislation is vital to protecting the market
integrity of greenhouse gas emissions markets, and it should be
included as part of any cap and trade legislation approved by Congress.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2423
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 ``Emission Allowance Market
Transparency Act of 2007''.
SEC. 2. EMISSION ALLOWANCE MARKET TRANSPARENCY.
(a) Purpose.--The purpose of this section is to facilitate
price transparency in markets for the sale of emission
allowances (including markets for real-time, forward,
futures, and options) to the maximum extent practicable,
taking into consideration--
(1) the public interest;
(2) the integrity of those markets;
(3) fair competition; and
(4) protection of consumers.
(b) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Emission allowance.--The term ``emission allowance''
means any allowance, credit, or other permit issued pursuant
to any Federal law (including regulations) to any individual
or entity for use in offsetting the emissions of any
pollutant (including any greenhouse gas) by the individual or
entity.
(c) Duties of Administrator.--
(1) Regulations.--The Administrator shall promulgate such
regulations as the Administrator determines to be necessary
to achieve the purpose of this section, including regulations
that provide for the dissemination, on a timely basis, of
information regarding the availability and prices of emission
allowances with respect to--
(A) the Administrator;
(B) State regulatory authorities;
(C) buyers and sellers of the emission allowances; and
(D) the public.
(2) Obtaining information.
(A) In general.--Subject to subparagraph (B), the
Administrator may--
(i) obtain the information described in paragraph (1)
directly from any emission allowance market participant; or
(ii) enter into an agreement under which another entity
obtains and makes public that information.
(B) Limitation.--Any activity carried out by the
Administrator or another entity to obtain information
pursuant to subparagraph (A) shall be subject to applicable
rules designed to prevent the disclosure of information the
disclosure of which would be detrimental to the operation of
an effective emission allowance market, as determined by the
Administrator.
(3) Use of existing price publishers and service
providers.--In carrying out this subsection, the
Administrator shall--
(A) take into consideration the degree of relevant price
transparency provided by price publishers and providers of
trade processing services in operation on the date of
enactment of this Act; and
(B) use information and services provided by those
publishers and providers to the maximum extent practicable.
(d) Actions by Individuals and Entities.--
(1) Prohibitions.--It shall be unlawful for any individual
or entity--
(A) to knowingly provide to the Administrator (or another
entity acting pursuant to an agreement described in
subsection (c)(2)(A)(ii)) any false information relating to
the price or quantity of emission allowances sold, purchased,
transferred, banked, or borrowed by the individual or entity,
with the intent to fraudulently affect the data being
compiled by the Administrator or other entity;
(B) directly or indirectly, to use in connection with the
purchase or sale of an emission allowance any manipulative or
deceptive device or contrivance (within the meaning of
section 10(b) of the Securities Exchange Act of 1934 (15
U.S.C. 78j(b))), in contravention of such rules and
regulations as the Administrator may prescribe to protect the
public interest or consumers; or
(C) to cheat or defraud, or attempt to cheat or defraud,
another market participant, client, or customer.
(2) Monitoring.--The Administrator shall monitor trading to
prevent false reporting, manipulation, and fraud under this
section.
(3) Effect of subsection.--Nothing in this subsection
creates any private right of action.
(e) Excessive Speculation.--
(1) Finding.--Congress finds that excessive speculation
relating to emission allowances--
(A) can cause sudden or unreasonable fluctuations or
unwarranted changes in the price of emission allowances; and
(B) imposes an unnecessary burden on--
(i) the development of a well-functioning emission
allowance market;
(ii) the planning decisions of businesses and industry; and
(iii) consumers.
(2) Prevention of burdens.--
(A) In general.--To prevent, decrease, or eliminate the
burdens associated with excessive speculation relating to
emission allowances, the Administrator, in accordance with
subparagraph (B) and after providing notice and an
opportunity for public comment, shall adopt position
limitations or position accountability for speculators as the
Administrator determines to be necessary on--
(i) the quantity of trading transactions allowed to be
conducted, and the positions eligible to be held, by any
individual or entity in any emission allowance market; and
(ii) any emission allowance auction conducted pursuant to
Federal law (including regulations).
(B) Consultation.--In carrying out subparagraph (A), the
Administrator shall consult with--
(i) the Commodity Futures Trading Commission;
(ii) the Federal Trade Commission; and
(iii) the Federal Energy Regulatory Commission.
(C) Nonapplicability to bona fide hedging transactions or
positions.--
(i) In general.--No regulation promulgated pursuant to this
paragraph shall apply to a transaction or position described
in subparagraph (A)(i) that is a bona fide hedging
transaction or position, as determined by the Administrator.
(ii) Regulations for definitions.--The Administrator shall
promulgate such regulations as the Administrator determines
to be necessary to define the term ``bona fide hedging
transaction or position'' for purposes of clause (i),
including regulations that permit individuals or entities to
hedge any legitimate anticipated business need for any
subsequent period during which an appropriate futures
contract is open and available on an exchange or other
emission allowance market or auction.
(f) Penalties.--An individual or entity that, as determined
by the Administrator, violates an applicable provision of
this section or a regulation promulgated pursuant to this
section shall be subject to a fine of $1,000,000, or
imprisonment for not more than 10 years, or both, for each
violation.
(g) Jurisdiction of Commodity Futures Trading Commission.--
Nothing in this section abrogates the jurisdiction of the
Commodity Futures Trading Commission with
[[Page S14853]]
respect to any contract, agreement, or transaction for future
delivery of an emission allowance (including a carbon dioxide
credit).
______
By Mr. LEAHY (for himself and Mr. Cornyn):
S. 2427. 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.
Mr. LEAHY. Mr. President, today, I have joined with Senator Cornyn to
reintroduce the ``Openness Promotes Effectiveness in our National
Government Act--or the OPEN Government Act--the first major reform to
the Freedom of Information Act, FOIA, in more than a decade. The Senate
passed this historic FOIA reform legislation, S. 849, before adjourning
for the August recess. But, sadly, this measure has been stalled in the
House Oversight and Government Reform Committee for several months,
preventing these long-overdue FOIA reforms from being enacted into law.
Despite the unfortunate delay of this bill, I remain deeply committed
to enacting FOIA reform legislation this year. Because time is of the
essence, I am requesting that this legislation be immediately placed on
the Senate Calendar and that the Senate promptly take up and pass this
bill by unanimous consent, so that it can be sent to the House.
The version of the bill introduced today includes ``pay/go'' language
that has been requested by the House and eliminates the provision on
citations to FOIA exemptions. After needlessly delaying the enactment
of this bill for several months, I hope that the House Oversight and
Government Reform Committee will promptly take up this important
measure, so that the House can enact this legislation and send it to
the President before the end of the year.
As the first major reform to FOIA in more than a decade, the OPEN
Government Act will help to reverse the troubling trends of excessive
delays and lax FOIA compliance in our government and help to restore
the public's trust in their government. This bill will also improve
transparency in the Federal Government's FOIA process by: 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
requesters and Federal agencies with a meaningful alternative to costly
litigation.
Specifically, the OPEN Government Act will protect the public's right
to know, by ensuring that anyone who gathers information to inform the
public, including freelance journalists and bloggers, may seek a fee
waiver when they request information under FOIA. The bill ensures that
Federal agencies will not automatically exclude Internet blogs and
other Web-based forms of media when deciding whether to waive FOIA
fees. In addition, the bill also clarifies that the definition of news
media, for purposes of FOIA fee waivers, includes free newspapers and
individuals performing a media function who do not necessarily have a
prior history of publication.
The bill also restores meaningful deadlines for agency action, by
ensuring that the 20-day statutory clock under FOIA starts when a
request is received by the appropriate component of the agency and
requiring that agency FOIA offices get FOIA requests to the appropriate
agency component within 10 days of the receipt of such requests. The
bill allows Federal agencies to toll the 20-day clock while they are
awaiting a response to a reasonable request for information from a FOIA
requester on one occasion, or while the agency is awaiting
clarification regarding a FOIA fee assessment. In addition, to
encourage agencies to meet the 20-day time limit, the bill requires
that an agency refund FOIA search fees if it fails to meet the 20-day
deadline, except in the case of exceptional circumstances as defined by
the FOIA statute. To address pay/go concerns, the bill requires that
these refunds come from annual agency appropriations.
The bill also addresses a relatively new concern that, under current
law, Federal agencies have an incentive to delay compliance with FOIA
requests until just before a court decision is made that is favorable
to a FOIA requester. The Supreme Court's decision in Buckhannon Board
and Care Home, Inc. v. West Virginia Dep't of Health and Human
Resources, 532 U.S. 598, 2001, eliminated the ``catalyst theory'' for
attorneys' fees recovery under certain Federal civil rights laws. When
applied to FOIA cases, Buckhannon precludes FOIA requesters from ever
being eligible to recover attorneys' fees under circumstances where an
agency provides the records requested in the litigation just prior to a
court decision that would have been favorable to the FOIA requestor.
The bill clarifies that Buckhannon does not apply to FOIA cases. Under
the bill, a FOIA requester can obtain attorneys' fees when he or she
files a lawsuit to obtain records from the Government and the
Government releases those records before the court orders them to do
so. But this provision would not allow the requester to recover
attorneys' fees if the requester's claim is wholly insubstantial. To
address pay/go concerns, the bill also requires that any attorneys'
fees assessed under this provision be paid from annually appropriated
agency funds.
To address concerns about the growing costs of FOIA litigation, the
bill also creates an Office of Government Information Services in the
National Archives and creates an ombudsman to mediate agency-level FOIA
disputes. In addition the bill ensures that each Federal agency will
appoint a Chief FOIA Officer, who will monitor the agency's compliance
with FOIA requests, and a FOIA Public Liaison who will be available to
resolve FOIA-related disputes.
Finally, the bill does several things to enhance the agency reporting
and tracking requirements under FOIA. Tracking numbers are not required
for FOIA requests that are anticipated to take 10 days or less to
process. The bill creates a tracking system for FOIA requests to assist
members of the public and the media. The bill also establishes a FOIA
hotline service for all federal agencies, either by telephone or on the
Internet, to enable requestors to track the status of their FOIA
requests. The bill also clarifies that FOIA applies to agency records
that are held by outside private contractors, no matter where these
records are located.
The Freedom of Information Act is critical to ensuring that all
American citizens can access information about the workings of their
government. But, after four decades, this open government law needs to
be strengthened. I am pleased that the reforms contained in the OPEN
Government Act will ensure that FOIA is reinvigorated so that it works
more effectively for the American people.
I commend the bill's chief Republican cosponsor, Senator John Cornyn,
for his commitment and dedication to passing FOIA reform legislation
this year. I also thank the many cosponsors of this legislation for
their dedication to open government and I thank the Majority Leader for
his strong support of this legislation. I am also appreciative of the
efforts of Senator Kyl in helping us to reach a compromise on this
legislation, so that the Senate could consider and pass meaningful FOIA
reform legislation.
But, most importantly, I especially want to thank the many concerned
citizens who, knowing the importance of this measure to the American
people's right to know, have demanded action on this bill. This bill is
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. The invaluable support of these and many other
organizations is what led the opponents of this bill to come around and
support this legislation.
I hope that by once again passing this important FOIA reform
legislation, the Senate will reaffirm the principle that open
government is not a Democratic issue or a Republican issue. But,
rather, it is an American issue and an American value. I encourage all
of my Senate colleagues, on
[[Page S14854]]
both sides of the aisle, to unanimously pass this historic bill.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2427
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 2007'' or the
``OPEN Government Act of 2007''.
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:
``The term `a representative of the news media' means any
person or entity that gathers information of potential
interest to a segment of the public, uses its editorial
skills to turn the raw materials into a distinct work, and
distributes that work to an audience. The term `news' means
information that is about current events or that would be of
current interest to the public. Examples of news-media
entities are television or radio stations broadcasting to the
public at large and publishers of periodicals (but only if
such entities qualify as disseminators of `news') who make
their products available for purchase by or subscription by
or free distribution to the general public. These examples
are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic
dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be
news-media entities. A freelance journalist shall be regarded
as working for a news-media entity if the journalist can
demonstrate a solid basis for expecting publication through
that entity, whether or not the journalist is actually
employed by the entity. A publication contract would present
a solid basis for such an expectation; the Government may
also consider the past publication record of the requester in
making such a determination.''.
SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.
(a) In General.--Section 552(a)(4)(E) of title 5, United
States Code, is amended--
(1) by inserting ``(i)'' after ``(E)''; and
(2) by adding at the end the following:
``(ii) For purposes of this section, a complainant has
substantially prevailed if the complainant has obtained
relief through either--
``(I) a judicial order, or an enforceable written agreement
or consent decree; or
``(II) a voluntary or unilateral change in position by the
agency, provided that the complainant's claim is not
insubstantial.''.
(b) Limitation.--Notwithstanding section 1304 of title 31,
United States Code, no amounts may be obligated or expended
from the Claims and Judgment Fund of the United States
Treasury to pay the costs resulting from fees assessed under
section 552(a)(4)(E) of title 5, United States Code. Any such
amounts shall be paid only from funds annually appropriated
for the Federal agency against which a claim or judgment has
been rendered.
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 striking ``determination;'' and
inserting ``determination. The 20-day period shall commence
on the date on which the request is first received by the
appropriate component of the agency, but in any event no
later than ten days after the request is first received by
any component of the agency that is designated in the
agency's FOIA regulations to receive FOIA requests. The 20-
day period shall not be tolled by the agency except--
``(I) that the agency may make one request to the requester
for information and toll the 20-day period while it is
awaiting such information that it has reasonably requested
from the FOIA requester; or
``(II) if necessary to clarify with the requester issues
regarding fee assessment. In either case, the agency's
receipt of the requester's response to the agency's request
for information or clarification ends the tolling period;''.
(2) Effective date.--The amendment made by this subsection
shall take effect 1 year after the date of enactment of this
Act.
(b) Compliance With Time Limits.--
(1) In general.--
(A) Search fees.--Section 552(a)(4)(A) of title 5, United
States Code, is amended by adding at the end the following:
``(viii) an agency shall refund search fees under this
subparagraph if the agency fails to comply with any time
limit under paragraph (6), provided that--
``(I) no unusual or exceptional circumstances (as those
terms are defined for purposes of paragraphs (6)(B) and (C),
respectively) apply to the processing of the request; and
``(II) such refunds shall be paid from annual
appropriations provided to that agency.''.
(B) Public liaison.--Section 552(a)(6)(B)(ii) of title 5,
United States Code, is amended by inserting between the first
and second sentences the following: ``To aid the requester,
each agency shall make available its FOIA Public Liaison, who
shall assist in the resolution of any disputes between the
requester and the agency.''.
(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 received that will take
longer than ten days to process and provide to each person
making a request the tracking number assigned to the request;
and
``(B) 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. REPORTING REQUIREMENTS.
(a) In General.--Section 552(e)(1) of title 5, United
States Code, is amended--
(1) in subparagraph (B)(ii), by inserting after the first
comma ``the number of occasions on which each statute was
relied upon,'';
(2) in subparagraph (C), by inserting ``and average'' after
``median'';
(3) in subparagraph (E), by inserting before the semicolon
``, based on the date on which the requests were received by
the agency'';
(4) by redesignating subparagraphs (F) and (G) as
subparagraphs (N) and (O), respectively; and
(5) by inserting after subparagraph (E) the following:
``(F) the average number of days for the agency to respond
to a request beginning on the date on which the request was
received by the agency, 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;
``(G) based on the number of business days that have
elapsed since each request was originally received by the
agency--
[[Page S14855]]
``(i) the number of requests for records to which the
agency has responded with a determination within a period up
to and including 20 days, and in 20-day increments up to and
including 200 days;
``(ii) the number of requests for records to which the
agency has responded with a determination within a period
greater than 200 days and less than 301 days;
``(iii) the number of requests for records to which the
agency has responded with a determination within a period
greater than 300 days and less than 401 days; and
``(iv) the number of requests for records to which the
agency has responded with a determination within a period
greater than 400 days;
``(H) the average number of days for the agency to provide
the granted information beginning on the date on which the
request was originally filed, the median number of days for
the agency to provide the granted information, and the range
in number of days for the agency to provide the granted
information;
``(I) the median and average number of days for the agency
to respond to administrative appeals based on the date on
which the appeals originally were received by the agency, the
highest number of business days taken by the agency to
respond to an administrative appeal, and the lowest number of
business days taken by the agency to respond to an
administrative appeal;
``(J) 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
received by the agency;
``(K) data on the 10 active administrative appeals with the
earliest filing dates pending before the agency as of
September 30 of the preceding year, including the number of
business days that have elapsed since the requests were
originally received by the agency;
``(L) the number of expedited review requests that are
granted and denied, the average and median number of days for
adjudicating expedited review requests, and the number
adjudicated within the required 10 days;
``(M) the number of fee waiver requests that are granted
and denied, and the average and median number of days for
adjudicating fee waiver determinations;''.
(b) Applicability to Agency and Each Principal Component of
the Agency.--Section 552(e) of title 5, United States Code,
is amended--
(1) by redesignating paragraphs (2) through (5) as
paragraphs (3) through (6), respectively; and
(2) by inserting after paragraph (1) the following:
``(2) Information in each report submitted under paragraph
(1) shall be expressed in terms of each principal component
of the agency and for the agency overall.''.
(c) Public Availability of Data.--Section 552(e)(3) of
title 5, United States Code, (as redesignated by subsection
(b) of this section) is amended by adding after the period
``In addition, each agency shall make the raw statistical
data used in its reports available electronically to the
public upon request.''.
SEC. 9. 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 Government
contract, for the purposes of records management.''.
SEC. 10. OFFICE OF GOVERNMENT INFORMATION SERVICES.
(a) In General.--Section 552 of title 5, United States
Code, is amended by adding at the end the following:
``(h) There is established the Office of Government
lnformation Services within the National Archives and Records
Administration. The Office of Government Information Services
shall review policies and procedures of administrative
agencies under section 552, shall review compliance with
section 552 by administrative agencies, and shall recommend
policy changes to Congress and the President to improve the
administration of section 552. The Office of Government
Information Services shall offer mediation services to
resolve disputes between persons making requests under
section 552 and administrative agencies as a non-exclusive
alternative to litigation and, at the discretion of the
Office, may issue advisory opinions if mediation has not
resolved the dispute.
``(i) The Government Accountability Office shall conduct
audits of administrative agencies on the implementation of
section 552 and issue reports detailing the results of such
audits.
``(j) Each agency shall--
``(1) Designate a Chief FOIA Officer who shall be a senior
official of such agency (at the Assistant Secretary or
equivalent level).
``(a) General Duties.--The Chief FOIA Officer of each
agency shall, subject to the authority of the head of the
agency--
``(A) have agency-wide responsibility for efficient and
appropriate compliance with the FOIA;
``(B) monitor FOIA implementation throughout the agency and
keep the head of the agency, the chief legal officer of the
agency, and the Attorney General appropriately informed of
the agency's performance in implementing the FOIA;
``(C) recommend to the head of the agency such adjustments
to agency practices, policies, personnel, and funding as may
be necessary to improve its implementation of the FOIA;
``(D) review and report to the Attorney General, through
the head of the agency, at such times and in such formats as
the Attorney General may direct, on the agency's performance
in implementing the FOIA; and
``(E) facilitate public understanding of the purposes of
the FOIA's statutory exemptions by including concise
descriptions of the exemptions in both the agency's FOIA
handbook issued under section 552(g) of title 5, United
States Code, and the agency's annual FOIA report, and by
providing an overview, where appropriate, of certain general
categories of agency records to which those exemptions apply.
``(2) Designate one or more FOIA Public Liaisons who shall
be appointed by the Chief FOIA Officer.
``(b) General Duties.--FOIA Public Liaisons shall report to
the agency Chief FOIA Officer and shall serve as supervisory
officials to whom a FOIA requester can raise concerns about
the service the FOIA requester has received from the FOIA
Requester Center, following an initial response from the FOIA
Requester Center Staff. FOIA Public Liaisons shall be
responsible for assisting in reducing delays, increasing
transparency and understanding of the status of requests, and
assisting in the resolution of disputes.
``(c) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act.''.
SEC. 11. 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.
______
By Mr. BROWN:
S. 2431. A bill to address emergency shortages in food banks; to the
Committee on Appropriations.
Mr. BROWN. Mr. President, across Ohio and the Nation, many families
rely on food banks to survive. I rise to introduce an emergency
assistance measure--$40 million in bridge funding for the Emergency
Food Assistance Program.
When a child knows there will be no dinner waiting for her at home,
that is an emergency. When a mother or father cannot put food on the
table for a family, that is an emergency. When an elderly couple eats
one small meal a day, that is an emergency. Across the country, lines
at food banks are already longer than they were at this time last year.
That is an emergency. It is a health emergency. It is a humanitarian
emergency.
In Ohio, food reserves intended to last until July are projected to
run out by February. Food banks are being forced to ration food and
turn hungry people away already, in a particularly bad time of year. In
Lorain County, in north central and northern Ohio, the food bank has
run out of food three times this winter. Remember, it is only early
December. Many of us, especially in this Chamber, who are so very
blessed, celebrate the holidays by buying presents for our loved ones.
For too many families in Ohio and in other States across this country,
food on the
[[Page S14856]]
table will be the greatest gift they can give this holiday season.
In Cleveland, one of the food distribution centers is Cooley Avenue
Church of God. There, Pastor Richard Bolls hands out food to an elderly
man, Norm. Of the food bank, Norm says:
At the end of the month I have just $19 left after paying
for my rent, my utilities, and my medicine. Normally I
wouldn't get fruit and vegetables to eat. I consider this my
ice cream.
It was 28 degrees and windy in Cleveland on Tuesday, colder today. At
11 o'clock in the morning, Christian, a native of the Mount Pleasant
area of Cleveland, and her newborn stood in line for food at the
Cleveland Food Bank, recognized as the No. 1 food bank in the country
recently. Christian is a trained nurse's assistant. She has been
searching for a job for 6 months since she had her baby, without luck.
She notices the price of food she buys at the supermarket seems to rise
every day. with the cost of caring for a newborn and the rise in food
and fuel prices--heating and gasoline--Christian stood in line at the
food bank Tuesday because she cannot afford to feed her family without
some additional help.
Christian and Norm have heartbreaking stories, but their stories are
not unique. More Americans are lining up at food banks this year. Most
are working Ohioans and working people. Many are middle-class
Americans, teetering on the edge. Additional funding for the emergency
food stamp program is the most immediate Federal solution to the
national food crisis.
This food bank crisis underscores the need to pass the farm bill. The
farm bill is an agriculture bill, it is a hunger bill, it is an energy
bill, it is a conservation bill. I applaud Chairman Tom Harkin, the
Senator from Iowa, for his leadership on this bill. This farm bill
helps family farmers in Ohio and across the country by strengthening
the farm safety net. For the first time ever, farmers will be able to
enroll in a program that ensures against revenue instability, which for
many farmers means either a bad yield or low prices. But either can be
devastating.
With the right resources and the right incentives, farmers can help
decrease our dependence on foreign oil and produce clean, sustainable,
renewable energy.
This bill, the farm bill which we hope to pass before we leave this
month, increases food stamp benefits and indexes the benefits to
inflation. When the purchasing power of food stamps erodes, so does our
progress against hunger. Food stamps today amount to about $1 per
person per meal. A mother with two children gets about $9 in food
stamps. That is the extent of the benefit. This farm bill, bipartisanly
agreed to, will increase that.
We are the wealthiest country in the world, a caring and
compassionate people. Families in our country, especially families who
work hard and play by the rules, should never, ever go hungry.
____________________