Statement Of Senator Leahy On Passage Of Electronic FOIA Act Amendments Of 1996

September 18, 1996

Mr. President: I am delighted that the Senate has today passed important amendments to the Freedom of Information Act that will bring this statute into the electronic age. Passage of these amendments are a tremendous way to mark the 30th anniversary of the Freedom of Information Act.

The FOIA has served the country well in maintaining the right of Americans to know what their government is doing--or not doing. As President Johnson said in 1966, when he signed the Freedom of Information Act into law:

"This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits."

Just over the past few months, records released under the FOIA have revealed FAA actions against Valuejet before the May 11 crash in the Everglades, the government's treatment of South Vietnamese commandos who fought in a CIA-sponsored army in the early 1960's, the high salaries paid to independent counsels, the unsafe lead content of D.C. tap water, and the types of tax cases that the IRS recommends for criminal prosecution.

In the thirty years since the Freedom of Information Act became law, technology has dramatically altered the way government handles and stores information. Gone are the days when agency records were solely on paper stuffed into file cabinets. Instead, agencies depend on personal computers, computer databases and electronic storage media, such as CD-ROMs, to carry out their mission.

The time is long overdue to update this law to address new issues related to the increased use of computers by federal agencies. Computers are just as ubiquitous in federal agency offices as in the private sector. We need to make clear that the FOIA is not just a right to know what's on paper law, but that it applies equally to electronic records.

That is why Senator Brown, Senator Kerry and I, with the strong support of many library, press, civil liberties, consumer and research groups, have pushed for passage of the Electronic FOIA bill. The Senate recognized the need to update the FOIA in the last Congress by passing an earlier version of this bill.

This legislation takes steps so that agencies use technology to make government more accessible and accountable to its citizens. Storing government information on computers should actually make it easier to provide public access to information in more meaningful formats. For example, people with sight or hearing impairments can use special computer programs to translate electronic information into braille or large print or synthetic speech output.

Electronic records also make it possible to provide dial-up access to any citizen who can use computer networks, such as the Internet. Those Americans living in the remotest rural area in Vermont, or in a distant State far from federal agencies' public reading rooms here in Washington, D.C., should be able to use computer networks to get direct access to the warehouse of unclassified information stored in government computer banks. The explosion of the Internet adds enormously to the need for clarification of the status of electronic government records under the FOIA and the significance of this legislation for citizen access. These amendments to the FOIA will encourage federal agencies to use the Internet to increase access to government records for all Americans.

Ensuring public access to electronic government records is not just important for broader citizen access. Information is a valuable commodity and the federal government is probably the largest single producer and repository of accurate information.

This government information is a national resource that commercial companies pay for under the FOIA, add value to, and then sell--creating jobs and generating revenue in the process. It is important for our economy and for American competitiveness that fast, easy access to that resource in electronic form be available. The electronic FOIA bill would contribute to our information economy.

I would like to highlight some of what this bill would accomplish. First, it would require agencies to provide records in a requested format whenever possible.

Second, the bill would encourage agencies to increase on-line access to government records that agencies currently put in their public reading rooms. These records would include copies of records that are the subject of repeated FOIA requests.

Finally, the bill would address the biggest single complaint of people making FOIA requests: delays in getting a response. I understand that at the FBI, the delays can stretch to over four years. Because of these delays, writers, students and teachers and others working under time deadlines, have been frustrated in using FOIA to meet their research needs. Long delays in access can mean no access at all.

The current time limits in the FOIA are a joke. Few agencies actually respond to FOIA requests within the 10-day limit required in the law. Such routine failure to comply with the statutory time limits is bad for morale in the agencies and breeds contempt by citizens who expect government officials to abide by, not routinely break, the law.

I appreciate the budget and resource constraints under which agencies are operating. We have made every effort in this bill to make sure it works for both agencies and requestors. Some agencies, particularly those with huge backlogs of FOIA requests resulting in delays of up to four years for an agency response, are concerned that the bill removes backlogs as an automatic excuse to ignore the time limits. We should not give agencies an incentive to create backlogs. Agencies will have to show that they are taking steps to reduce their backlogs before they qualify for additional time to respond to a FOIA request.

While increased computer access to government records may necessitate an initial outlay of money and effort, as more information is made available on-line, the labor intensive task of physically searching and producing documents should be reduced. The net result should be increased efficiency in satisfying agency FOIA obligations, reduced paperwork burdens, reduced errors and better service to the public.

The Electronic FOIA bill should help agencies comply with the law's time limits by doubling the ten-day time limit to give agencies a more realistic time period for responding to FOIA requests, making more information available on-line, requiring the use of better record management techniques, such as multi-track processing, and providing expedited access to requestors who demonstrate a compelling need for a speedy response.

All these steps, and others in the bill, may not provide a total cure but should help reduce the endemic delay problems.

This has generally been a very partisan Congress. I commend members of the House Government Reform and Oversight Subcommittee on Government Management, Information and Technology, and, in particular, Chairman Stephen Horn, Ranking Member Carolyn Maloney, and Representatives Randy Tate and Collin Peterson, for rising above the partisan fray and moving this legislation in the House. They saw this bill for what it is: a good government issue, not a partisan one. We have worked diligently to sort out any differences in the House and Senate bills, and we can all be proud of the final product reflected in both the Substitute amendment to S. 1090 and the final version of the bill passed by the House.

Even as we have worked on this legislation, new issues about the coverage of the FOIA have surfaced. I refer specifically to the D.C. Court of Appeals case, decided on August 2, 1996, that the National Security Council is not an "agency" subject to the FOIA, despite the fact that the NSC has complied with the FOIA for years under both Republican and Democratic Presidents. Litigation on this matter continues and the case may now go to the U.S. Supreme Court. Clarification of which offices within the White House are "agencies" subject to the FOIA may be a matter requiring congressional attention in the next Congress.

As the Federal government increasingly maintains its records in electronic form, we need to make sure that this information is available to citizens on the same basis as information in paper files. Doing so will fulfill the promise first made thirty years ago in the FOIA that citizens have a right to know and a right to see the records the government collects with their tax dollars.

I ask unanimous consent that the substitute amendment to S.1090 and a section-by-section analysis of that amendment be placed in the record.