[Congressional Record Volume 153, Number 192 (Friday, December 14, 2007)]
[Senate]
[Pages S15649-S15650]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          OPEN GOVERNMENT ACT

  Mr. KYL. Madam President, I rise today to comment on the OPEN 
Government Act. This bill is only a slightly modified version of S. 
849, a bill that passed the Senate on August 3 of this year. At that 
time, I made a more complete statement regarding the bill--see 153 
Congressional Record at S10987 to S10989 in the daily edition of the 
Record,, on August 3, 2007--as did Senators Leahy and Cornyn--see the 
Record at S10986 to S10987 and S10989 to S10990. Thus my remarks today 
need only describe the changes made to the bill and a few other 
matters.
  One section of the bill that makes important changes to the law and 
thus deserves comment is section 6. Although this section appeared in 
S. 849, I did not address the provision in August because final 
negotiations regarding the language of that section were completed only 
an hour or so before we began a hotline of the bill. The purpose of 
section 6 is to force agencies to comply with FOIA's 20-day deadline 
for responding to a request for information. The original introduced 
version of S. 849 sought to obtain agency compliance by repealing 
certain FOIA exemptions in the event that an agency missed the 20-day 
deadline, an approach that I and others argued would impose penalties 
that were grossly disproportionate and that would principally punish 
innocent third parties--see S. Rep. 110-059 at 13-14 and 15-19. The 
current draft applies what is in my view a much better calibrated 
sanction, the denial of search fees to agencies that miss the 20-day 
deadline with no good excuse.
  Several features of this new system merit further elaboration. First, 
the 20-day deadline begins to run only when a FOIA request is received 
by the appropriate component of the agency, but in any event no later 
than 10 days after the request is received by a FOIA component of the 
agency. The reasoning behind this distinction is that requesters should 
receive the full benefit of the 20-day deadline if they make the effort 
to precisely address their request to the right FOIA office, and that 
they should also be protected by the secondary 10-day deadline if they 
at least ensure that their request goes to some FOIA component of the 
agency. So long as a misdirected request is sent to some FOIA component 
of an agency, it is reasonable to expect that such component will be 
able to promptly identify that missive as a FOIA request and redirect 
it to its proper destination.
  On the other hand, if a FOIA request is sent to a part of an agency 
that is not even a FOIA component, it is difficult to impose particular 
deadlines for processing the request. For example, if a request is sent 
to an obscure regional office of an agency, it will probably simply be 
sent to regional headquarters. Many agencies have a large number of 
field offices whose staff handle very basic functions and are not 
trained to handle FOIA requests. Such staff probably will not recognize 
some requests as FOIA requests. Implementing a deadline that extended 
to FOIA requests that are received by such staff would effectively 
require training a large number of additional agency staff in FOIA, 
something that Congress has not provided the resources to do.
  Also, because this bill imposes significant sanctions on an agency 
for a failure to comply with the 20-day deadline, it is important that 
the deadline only begin to run when the agency can reasonably be 
expected to comply with it, and that the law not create opportunities 
for gamesmanship. If the deadline began to run whenever an agency 
component receives the request, for example, sophisticated commercial 
requesters might purposely send their request to an obscure field 
office in the hope that by the time the FOIA office receives the 
request, it will be impossible to meet the deadline, and the requester 
will thereby be relieved from paying search fees. Given the wide 
variety of types of FOIA requesters, Congress cannot simply assume that 
every requester will act in good faith and that no requester will seek 
to take advantage of the rules. The present bill therefore initiates 
the 20-day deadline only when the request is received by the proper 
FOIA component of the agency, or no later than 10 days after the 
request is received by some FOIA component of the agency.
  Section 6 of the bill also allows FOIA's 20-day response deadline to 
be tolled while an agency is awaiting a response to a request for 
further information from a FOIA requester, but only in two types of 
circumstances. Current practice allows tolling of the deadline whenever 
an agency requests further information from the requester. Some FOIA 
requesters have described to the Judiciary Committee situations in

[[Page S15650]]

which some agencies have abused this process. For example, some 
agencies, when they are about to miss the 20-day deadline, allegedly 
have contacted a requester to simply inquire whether the requester 
still wants the request, or with other frivolous inquiries, all for the 
purpose of obtaining tolling of the deadline. Such practices should not 
be permitted. On the other hand, agencies do have a legitimate need for 
some tolling of the deadline. The language of subclauses (I) and (II) 
is the result of hard-fought negotiations between the FOIA requester 
community and representatives of the agencies, negotiations to which 
Senator Leahy and I, frankly, served more as mere conduits rather than 
full participants. This language allows tolling whenever and as often 
as necessary to clarify fee issues, and also allows one additional 
catch-all request with the stipulation that this additional request 
must be reasonable.
  With regard to the tolling for requests for information relating to 
fee assessments that is authorized by subclause (II), neither agencies 
nor requesters would benefit if agencies could not contact requesters 
and toll the deadline while waiting to hear whether a requester still 
wanted the request in light of, for example, a substantial upward 
revision in the search fees that would be assessed in relation to a 
FOIA request. And because such upward revisions might occur multiple 
times as a request is processed, it is not practical to impose a 
numerical limit on such fee-related requests. Such requests need only 
be necessary in order to be entitled to tolling under this subclause. 
Presumably, a request as to whether a requester still wanted his 
request in light of a trivial upward revision in the search-fees 
estimate would not be ``necessary,'' and therefore would not be 
entitled to tolling. Moreover, tolling only occurs while the agency is 
awaiting the requester's response. If an agency were to call or e-mail 
a requester and inquire whether he still wanted the request in light of 
a $100 increase in estimated review or search fees, and the requester 
immediately responded yes, no tolling would occur. At least at this 
time, it is not apparent how this tolling exception could be abused.
  With regard to the catch-all requests authorized by subclause (I), 
representatives of the agencies identified for the committee a wide 
array of additional reasons for which agencies reasonably need to 
request additional information from the requester and should be 
entitled to tolling. The agencies' representatives, however, also 
thought that an agency would not need to make more than one such non-
fee-related information request. Since the agencies are the masters of 
their own interests, we have incorporated that limit into this bill, 
allowing the agencies to make a tolling-initiating request for any 
purpose and in addition to previous fee-related requests, with the 
additional stipulation that these one-time requests also be reasonable.
  Additional changes were made to this bill from S. 849. This bill 
omits section 8 of the August-passed bill. The former section 8 
maintained the requirement that previously enacted statutes only be 
construed to create exemptions to FOIA if the statute at least 
established criteria for withholding information, but required that 
future statutes instead include a clear statement that information is 
not subject to release under FOIA. I only grudgingly accepted former 
section 8 since I do not favor the use of clear statement rules in this 
circumstance. The rule likely would serve as a trap for unwary future 
legislative drafters. Under such a rule, even a statement in a statute 
that particular information shall not be released under any 
circumstances whatsoever would be construed not to preclude release of 
the information under FOIA. On the other hand, some FOIA requesters 
came to have second thoughts about section 8's elimination of the 
requirement for future legislation that FOIA exemptions at least set 
criteria for what information may be withheld. In my view, it would not 
be practical to require a clear statement in addition to requiring that 
exemptions only be implied when release criteria are identified. At the 
very least, it would pose a difficult question of statutory 
construction were a court asked to construe a statute to allow 
information to be ``FOIAble'', despite a clear statement in the statute 
that the information was not subject to release under FOIA, because the 
statute did not also set criteria for withholding the information. I 
have never seen such a ``clear-statement-plus rule.'' I think that 
simple clear-statement rules themselves reach the zenith of one 
legislature's power to bind future legislatures, and that a ``clear-
statement-plus rule'' would cross that line. Given the preference of 
some advocates for this bill for keeping the requirement that FOIA 
exemptions identify withholding standards or criteria, and my objection 
to combining a clear-statement rule with additional requirements for 
identifying a FOIA exemption, the compromise reached in this bill was 
simply to strike the previous section 8.
  This draft also includes a provision that is now subsection (b) of 
section 4 that requires that attorneys' fees assessed against agencies 
be extracted from the agencies' own appropriated budgets rather than 
from the U.S. Treasury. This change was necessary in order to avoid an 
unwaivable point of order against the bill in the House of 
Representatives under that body's pay-go rules. I do not like this 
provision. As I explained in my August 3 remarks, I believe that 
section 4 already awards attorneys' fees too liberally in the 
circumstances of a settlement. Effectively, it protects an agency from 
fee assessments not when the agency's legal position would prevail on 
the merits, but rather only when the requester's claims would not 
survive a motion to dismiss or for summary judgment. I believe that 
this standard will discourage agencies from settling--even a case that 
the agency believes that it will win at trial it likely will be 
disinclined to settle if the agency believes that the claims would not 
be dismissed on summary judgment. Subsection (b), by extracting the 
fees out of the agency's own budget, substantially aggravates section 
4's de facto no-good-deed-goes-unpunished rule, and will further 
aggravate section 4's tendency to discourage agencies from settling 
FOIA lawsuits. Unfortunately, we have been unable to identify any way 
of solving the bill's pay-go problems other than by partly repealing or 
delaying the implementation of parts of the OPEN Government Act, 
solutions to which advocates for the bill balked. The effects of 
subsection (b) should be monitored and, if the provision is as 
discouraging of settlements and disruptive to agency budgets as I fear 
that it might be, perhaps the provision should be repealed or a 
separate fund established to pay the fees assessed pursuant to FOIA's 
fee-shifting rules.
  Finally, the bill includes two changes that were sought by the House. 
One is to expand section 6's denial of search fees to agencies that 
miss the response deadline to also include duplication fees in the case 
of media requesters and other subclause (II) requesters who already are 
exempted from search fees. Since these requesters already do not pay 
search fees, in their cases the threat of denying agencies such fees if 
the 20-day response deadline is not met is not much of a sanction. 
Although duplication fees for idiosyncratic requests sometimes are 
massive and denying such fees in all cases would be excessive--paper 
and toner do cost money--it is my understanding that media and other 
subclause (II) requesters typically make narrow and tailored requests 
that do not result in massive duplication costs.
  The last change made in this bill is the addition of the new section 
12, which requires that when an agency deletes information in a 
document pursuant to a FOIA exemption, that it identify at the place 
where the deletion is made the particular exemption on which the agency 
relies.
  Overall, I believe that the bill that will pass the Senate today 
strikes the right balance and that it will improve the operation of the 
Freedom of Information Act, and I encourage my colleagues to support 
this legislation.

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