[Congressional Record (Bound Edition), Volume 150 (2004), Part 1]
[Senate]
[Pages 1226-1228]
[From the U.S. Government Publishing Office, www.gpo.gov]




    THE IMPORTANCE OF STATE AND FEDERAL FREEDOM OF INFORMATION LAWS

  Mr. LEAHY. Mr. President, ``We're just everyday people,'' said Linda 
Raymond of herself and her husband, Mike, of Woburn, MA. ``But we 
stopped a landfill from expanding and raised environmental awareness. 
Any community can do what we did.''
  The Raymonds live in a blue-collar suburb of Boston where they both 
work in the public school system. Three years ago, while walking on a 
wooded trail in their neighborhood, they discovered that the city's 
landfill, which had been dormant for 15 years, was bustling with truck 
traffic. They had cause for alarm. Woburn is the setting of the events 
that were described in the book, ``A Civil Action.'' After rates of 
leukemia shot upward, local industries were sued in the 1980s for 
polluting the area water. The Raymonds, who had not previously been 
involved in environmental activism, sprang into action, determined to 
discover what was being planned for the landfill and how this would 
impact the community's public health.
  The Raymonds' story was recounted in the January 25, 2004, issue of 
Parade magazine. ``When Linda Raymond contacted town officials to find 
out what was going on, she hit a stone wall. `I couldn't get a straight 
answer from anyone,' she says. `It was very frustrating.''' The article 
describes what the Raymonds did next: ``To get answers--and action--the 
Raymonds turned to a powerful set of tools: Federal and State Freedom 
of Information (FOI) laws.''
  With the information the Raymonds collected under Massachusetts State 
FOI laws, they educated the community and held public officials 
accountable. Their actions ultimately led to the city shelving plans to 
expand the size of the landfill by over a million tons of waste--plans 
that had been developed without public knowledge or debate, and which 
had not been evaluated for environmental or health impacts.
  The Raymonds' triumph highlights the power of Government sunshine 
laws. It also demonstrates one of the most common uses of such laws by 
citizens and local community groups--that is, reliance on FOI laws to 
ensure that schools, neighborhoods and local industries are safe and 
secure. Our FOI laws are in danger, however, especially in the post-9/
11 era. As noted by Parade, ``Some journalists and civil liberties 
defenders believe that fences have gone up around FOI laws in the 
aftermath of 9/11. `Freedom of Information is under threat,' says 
Woburn Daily Times Chronicle columnist Marie Coady. `Across the 
country, it's becoming harder to access documents.'''
  One of the most significant threats to American citizens' right to 
know about health and safety issues was enacted by Congress in 2002 in 
the form of a broad exemption to the Federal sunshine law, the Freedom 
of Information Act, FOIA. The Homeland Security Act of 2002, HSA, 
contained a subtitle purportedly designed to protect ``critical 
infrastructure information.'' That broadly defined term applies to 
information regarding a variety of facilities--such as privately 
operated power plants, bridges, dams, ports, or chemical plants--that 
might be targeted for a terrorist attack. In exchange for the 
cooperation of private companies in sharing information with the 
government regarding vulnerabilities in the Nation's critical 
infrastructure, those companies would not have to share certain 
information with the public.
  Encouraging cooperation between the private sector and the Government 
to keep our critical infrastructure systems safe from terrorist attacks 
is a goal we all support. Unfortunately, rather than increasing 
security by encouraging private sector disclosure to the Government, 
the law guts FOIA at the expense of our national security and public 
health.
  The HSA created a new FOIA exemption for ``critical infrastructure 
information.'' In HSA negotiations, House Republicans and the 
administration promoted legislative language that they described as 
necessary to encourage the owners of such facilities to identify 
vulnerabilities in their operations and share that information with the 
Department of Homeland Security, DHS. The stated goal was to ensure 
that steps could be taken to ensure the facilities' protection and 
proper functioning.

[[Page 1227]]

  In fact, such descriptions of the legislation were disingenuous. 
These provisions, which were eventually enacted in the HSA, shield from 
FOIA almost any voluntarily submitted document stamped by the facility 
owner as ``critical infrastructure.'' This is true no matter how 
tangential the content of that document may be to the actual security 
of a facility. The law effectively allows companies to hide information 
about public health and safety from American citizens simply by 
submitting it to DHS. The enacted provisions were called ``deeply 
flawed'' by Mark Tapscott of the Heritage Foundation. He argued that 
the ``loophole'' created by the law ``could be manipulated by clever 
corporate and government operators to hide endless varieties of 
potentially embarrassing and/or criminal information from public 
view.''
  In addition, under the HSA, disclosure by private facilities to DHS 
neither obligates the private company to address the vulnerability, nor 
requires DHS to fix the problem. For example, in the case of a chemical 
spill, the law bars the Government from disclosing information without 
the written consent of the company that caused the pollution. As the 
Washington Post editorialized on February 10, 2003, ``A company might 
preempt environmental regulators by `voluntarily' divulging 
incriminating material, thereby making it unavailable to anyone else.''
  Last March, I introduced a bill to repeal this dangerously broad FOIA 
exemption and to replace it with a balanced measure that will protect 
our Nation's critical infrastructure without obliterating public 
oversight. The Restoration of Freedom of Information Act--Restore 
FOIA--would protect legitimate records pertaining to critical 
infrastructure safety, but would remove the free pass given by the HSA 
to industry for any information that a facility chooses to label 
``critical infrastructure.''
  Perhaps most important to people like the Raymonds, who relied on 
State FOI laws to obtain information on the Woburn landfill, the 
Restore FOIA bill also allows local authorities to apply their own 
sunshine laws. Unlike the provisions of the HSA, the Restore FOIA bill 
does not preempt any State or local disclosure laws for information 
obtained outside the Department of Homeland Security. Likewise, it does 
not restrict the use of such information by State agencies.
  By enacting Restore FOIA, we can protect the Nation's critical 
infrastructure without cutting the public out of the loop. James 
Madison said, ``A popular government, without popular information, or 
the means of acquiring it, is but a prologue to a farce or tragedy or 
perhaps both.'' I urge my colleagues to support Restore FOIA so that 
this basic and fundamental principle is upheld.
  I ask unanimous consent that the Parade article describing the 
Rayburns fight for open and accountable Government be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From Parade Magazine, Jan. 25, 2004]

                      How They Uncovered the Truth

                          (By Micah Morrison)

       At first glance, they don't look like activists. Mike and 
     Linda Raymond of Woburn, Mass., a blue-collar community north 
     of Boston, are both in their mid-50s. They have been married 
     35 years, with two grown sons and four grandchildren. Mike 
     teaches computer and fitness classes at the local high 
     school. Linda is a secretary with the public school system. 
     But these self-described ``everyday working people'' took on 
     City Hall in a battle to protect their community.
       Family pictures are on proud display in the Raymonds' 
     comfortable home on North Maple Street in one of Woburn's 
     many close-knit neighborhoods. ``It's a good place to raise 
     kids,'' Mike Raymond says of his town. ``It has excellent 
     schools and a good health-care system.'' Yet, on an autumn 
     day three years ago, the Raymonds discovered something about 
     their community that troubled them deeply.
       The Raymonds took a walk down the wooden path at the end of 
     their street. Past small ponds and a rise of trees, they came 
     upon an astonishing sight: Trucks loaded with debris were 
     rumbling up the 60-foot slopes at the Woburn Landfill. The 
     40-acre mountain of trash had been dormant for more than 15 
     years--now, mysteriously, it was growing again.
       ``I worried,'' Linda Raymond recalls. ``Who had opened the 
     landfill? Was it toxic? Why hadn't people in the neighborhood 
     been told?''
       Given Woburn's history, the Raymonds had reason for 
     concern. In the 1980s, the town was rocked by a lawsuit 
     against local industries claiming that water pollution had 
     led to an increase in leukemia deaths. The story was revived 
     in the '90s with the book and movie A Civil Action. Today, 
     Woburn Mayor John Curran says the city ``has worked hard to 
     overcome the Civil Action stigma. Our drinking water has been 
     of the highest quality for over 20 years.''
       Getting no answers. But when Linda Raymond contacted town 
     officials to find out what was going on, she hit a stone 
     wall. ``I couldn't get a straight answer from anyone,'' she 
     says. ``It was very frustrating.'' So, to get answers--and 
     action--the Raymonds turned to a powerful set of tools: 
     federal and state Freedom of Information (FOI) laws.
       As the Raymonds discovered, FOI requests can be made by 
     anyone. ``There are a million ways the public can use FOI 
     laws,'' says Robert Freeman of the New York State Committee 
     on Open Government. ``When property taxes are raised, you can 
     review the assessment rolls to ensure that you've been 
     treated fairly. You can find out if your child's teacher is 
     really certified to teach math. You can find out if a 
     restaurant has health-code violations.''
       First steps. After researching FOI laws, Linda Raymond 
     figured that her first letter should go to the Massachusetts 
     Department of Environmental Protection. She wrote asking for 
     ``any and all documents pertaining to the Woburn Landfill,'' 
     noting that she was making the request under the state's 
     Freedom of Information laws. The agency quickly complied, 
     inviting Linda to come review the files.
       Speeky cooperation from government agencies is not always 
     the norm. ``There will be delays,'' Linda says. ``Something 
     you have to be persistent. And it's important to know your 
     rights--including the right to an appeal when documents are 
     denied.''
       Looking over the files, Linda made some important 
     discoveries. Under state law, the city was required to bring 
     in material to ``cap'' the landfill and close it with a 
     protective lining of topsoil, loam and netting. She found 
     that, to pay for the multimillion-dollar project, Woburn had 
     hired a private contractor who was hauling in soil and debris 
     from construction sites to cover the capping costs. In 
     reading through the documents, Linda also discovered that the 
     bottom of the landfill did not have a protective lining.
       That's when the Raymonds really began to worry, because the 
     landfill sits on top of a watershed feeding into the nearby 
     Aberjona River. ``We found medical waste, coal ash, 
     construction debris and oil seeping into the wetlands,'' Mike 
     recalls. Were contaminants polluting the watershed?
       Digging deeper. The Raymonds zeroed in with more specific 
     requests. A second FOI petition went to the Woburn city clerk 
     for the contract the town had signed with the waste-
     management firm. The response brought some startling news: 
     ``The original contract called for 300,000 tons of waste to 
     be brought in,'' Mike explains, ``but the town was looking to 
     expand the landfill by another million tons.''
       A third request, to the Woburn Board of Health, brought 
     documents revealing that the former mayor had quietly 
     assembled a panel to advise him on landfill issues, with no 
     public input. The documents also showed discussions of plans 
     for the future of the site, including turning it into a 
     picnic area or police shooting range.
       ``We got very angry,'' Linda recalls. ``We felt the 
     politicians were making plans without anyone knowing about 
     it. And there were possible health risks.''
       Taking action. The Raymonds swung into action. They 
     organized their neighbors, contacted the media and raised the 
     issue at public meetings. ``The documents we obtained under 
     FOI educated us,'' Linda says. ``And we in turn were able to 
     educate the community.''
       At first, their aims were modest. ``We wanted to postpone 
     the capping until the landfill could be tested and deemed 
     environmentally safe,'' Mike says. But the Raymonds had hit a 
     nerve. Under mounting pressure, plans for the landfill were 
     shelved.
       ``Without FOI laws,'' Linda says, ``we couldn't have done 
     it.''
       A threat to access? Next time, it might be more difficult. 
     Some journalists and civil liberties defenders believe that 
     fences have gone up around FOI laws in the aftermath of 9/11. 
     ``Freedom of Information is under threat,'' said Woburn Daily 
     Times Chronicle columnist Marie Coady. ``Across the country, 
     it's becoming harder to access documents.''
       On the federal level, ``there has been a major change in 
     atmosphere since 9/11,'' says Lucy Dalglish, executive 
     director of the Reporters Committee for Freedom of the Press. 
     Federal officials ``are not releasing information they would 
     have provided five years ago.''
       Still, thousands of Freedom of Information requests 
     continue to be routinely processed every year. And with legal 
     challenges under way, ultimately the courts will decide 
     whether the new restrictions are a reasonable response to a 
     changed world.

[[Page 1228]]

       The Raymonds say they'll keep using FOI laws. Although the 
     state of Massachusetts has given the Woburn Landfill a clean 
     bill of health, the couple plan to closely watch the results 
     of the elaborate pollution-monitoring procedures established 
     at the site.
       ``We're just everyday people,'' Linda says, ``but we 
     stopped a landfill from expanding and raised environmental 
     awareness. Any community can do what we did.''
       Mike agrees. He cites his favorite quote, from 
     anthropologist Margaret Mead: ``Never doubt that a small 
     group of thoughtful, committed citizens can change the world; 
     indeed, it's the only thing that ever has.''


                    a powerful tool everyone can use

       It's not difficult to use Freedom of Information laws, and 
     there's no telling what you might turn up. Here are some tips 
     on getting the information you want:
       Research First.--Who has the information you're seeking? 
     Identify your targets. Ask your local librarian for help. 
     Check municipal, state and federal Web sites. Most states 
     have a designated office to help with public-records 
     searches. Federal agencies have FOI officers. The Reporters 
     Committee for Freedom of the Press (www.rcfp.org) publishes 
     guides to using state and federal Freedom of Information 
     laws.
       Put It in Writing.--While some states allow oral requests, 
     it's best to write a short letter stating what information 
     you're seeking. Note that you're making the request under a 
     State or Federal Freedom of Information statute. Be as 
     specific as possible. The Reporters Committee for Freedom of 
     the Press has a helpful sample letter at its Web site.
       Show Them the Money.--Often there will be a photocopying 
     fee and other costs related to your request. You can speed 
     the process by stating in your letter how much you're willing 
     to pay and asking to be notified if costs exceed that amount. 
     You also can request a fee waiver. In some cases, you can go 
     to a government office to view the documents and do your own 
     copying.
       Exemptions and Appeals.--Many public records are exempt 
     from FOI laws. The U.S. Congress did not make itself or the 
     courts subject to the statute. Most documents impacting 
     minors, criminal investigations, trade secrets and personal 
     privacy are off-limits. But you also may be denied documents 
     that you have a right to see. If you are denied access, be 
     sure to use the FOI appeals process. A brief letter to the 
     agency head requesting a review of the decision will get the 
     ball rolling. Meanwhile, make photocopies of everything you 
     send out. Above all, be patient and persistent. You may be 
     pleasantly surprised!


                      There's More You Can Discover

        There's a common belief that FOI laws are used mainly in 
     environmental cases. Not true. Here are examples of other 
     uses of this powerful tool:
       In Grand Rapids, MI, a high school government class used 
     Freedom of Information laws to expose flaws in the county's 
     jury-selection system.
        In Fulton, MO, a concerned citizen used State open-
     government laws--kissing cousins to FOI statutes--to force 
     disclosure of town-council discussion about building a golf 
     course at taxpayer expense.
        In Washington, D.C., a women used FOI laws to find out 
     about the ownership of some drug-infested, abandoned 
     buildings. The owner? The District of Columbia government!
        The U.S. Department of Agriculture--as a result of an FOI 
     request--revealed accounts of the mistreatment of circus 
     elephants.

                          ____________________