U.S. SENATOR PATRICK LEAHY

Cornyn, Leahy Introduce Bill
To Promote Openness In Government

…Bipartisan Legislation Improves, Strengthens FOIA

WASHINGTON (Wednesday, Feb. 16) -- U.S. Senators John Cornyn (R-Texas), a member of the Senate Judiciary Committee, and Patrick Leahy (D-Vt.), the ranking Democratic member of the panel, introduced legislation on Wednesday to achieve meaningful reforms to federal government information laws, most notably the Freedom of Information Act of 1966 (FOIA).

The bipartisan “Openness Promotes Effectiveness in our National Government Act of 2005”, or the OPEN Government Act, is aimed at substantially enhancing and expanding the accessibility, accountability, and openness of the federal government.  The legislation is supported by groups from across the political spectrum, including the ACLU and the Heritage Foundation.

“This reform legislation was created from the belief that FOIA establishes a presumption of openness,” said Cornyn, who in 2001 was presented with the James Madison Award for his efforts to promote open government by the Freedom of Information Foundation of Texas. “Open government is one of the most basic requirements of any healthy democracy.  It allows for taxpayers to see where their money is going; it permits the honest exchange of information that ensures government accountability; and it upholds the ideal that government never rules without the consent of the governed.”

“This bill advances one of the most fundamental rights of Americans, the public’s right to know what its government is doing,” said Leahy, who has been a longtime champion of FOIA in Congress.  Leahy sponsored the Electronic Freedom of Information Act Amendments, which updated FOIA for the Internet age, and in 1996 he was installed in the Freedom of Information Act Hall of Fame.

“Access to public information in a timely and effective manner is a vital piece of our democratic system of checks and balances that promotes accountability and imbues trust,” said Leahy. “FOIA represents the foundation of our modern open government laws and this bill builds on that by updating its protections to include new technologies and refining the process to reduce delays and encourage accessibility.” 

The Cornyn-Leahy legislation is not just pro-openness, pro-accountability, and pro-accessibility - it's also pro-Internet.  It includes a hotline enabling citizens to track their requests, including Internet tracking, and grants privileged FOIA fees for bloggers and writers for Internet outlets, providing the same status as traditional media. 

The last time Congress approved major reforms to FOIA was nearly a decade ago, and the Senate Judiciary Committee has not convened an oversight hearing on compliance issues since April 30, 1992. The Senate Homeland Security and Governmental Affairs Committee, which shares jurisdiction over federal government information, has not held a FOIA oversight hearing since 1980.

The OPEN Government Act contains more than a dozen substantive provisions, designed to achieve the following four objectives:

(1)  Strengthen FOIA and close loopholes

(2)  Help FOIA requestors obtain timely responses to their requests

(3)  Ensure that agencies have strong incentives to act on FOIA requests in a timely manner

(4)  Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible

STRENGTHEN FOIA AND CLOSE LOOPHOLES

·        Ensure that FOIA applies when agency recordkeeping functions are outsourced

·        Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation

·        Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information

·        Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association – including bloggers and other Internet-based journalists

·        Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests

HELP FOIA REQUESTORS OBTAIN TIMELY RESPONSES

·        Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests

·        Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation

·        Authorize reasonable recovery of attorney fees when litigation is inevitable

ENSURE THAT AGENCIES HAVE STRONG INCENTIVES TO ACT ON FOIA REQUESTS IN TIMELY FASHION

·        Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request

·        Impose real consequences on federal agencies for missing statutory deadlines

·        Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure

·        Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations

PROVIDE FOIA OFFICIALS WITH THE TOOLS THEY NEED TO ENSURE THAT OUR GOVERNMENT REMAINS OPEN AND ACCESSIBLE

·        Improve personnel policies for FOIA officials to enhance agency FOIA performance

·        Examine the need for FOIA awareness training for federal employees

·        Determine appropriate funding levels needed to ensure agency FOIA compliance

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(Senator Leahy’s remarks on the introduction of the bill, delivered on the Senate floor Wednesday morning, follows.)

MR. LEAHY.  I am pleased to join as a partner with the Senator from Texas in introducing the OPEN Government Act of 2005.  I have devoted a considerable portion of my work in the Senate to improving government oversight, government openness and citizen “right-to-know” laws to make government work better for the American people, and at times it has been a lonely battle.  Finding dedicated allies on the other side of the aisle has proven difficult.  That is why I am delighted to have a partner in John Cornyn.  Senator Cornyn has a distinguished record of supporting open government dating back to his days as Attorney General of Texas.  In fact, some of the provisions in the bill we introduce today are modeled after sections of the Texas Public Information Act.

I believe that we both see this effort as the first of many bipartisan steps we can take together in the new Congress.  Senator Cornyn and I began to forge a partnership on improving public access to government information well over a year ago when, during the 108^th Congress, we worked with several other Senators and with the Library of Congress to improve the publicly accessible congressional information website, THOMAS.  He and I also cooperated last fall in a successful effort to ensure that “government information,” including the application of the Freedom of Information Act (FOIA), be subject to the jurisdiction of both the Judiciary Committee and the newly constituted Homeland Security and Governmental Affairs Committee.

The bill we introduce today is a collection of commonsense modifications designed to update FOIA and improve the timely processing of FOIA requests by Federal agencies.  It was drafted after a long and thoughtful process of consultation with individuals and organizations that rely on FOIA to obtain information and share it with the public, including the news media, librarians, and public interest organizations representing all facets of the political spectrum.

The OPEN Government Act reaffirms the fundamental premise of FOIA: government information belongs to all Americans and should be subject to a presumption in favor of disclosure.  James Madison said that “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.”  His caution rings just as true today.  The public’s right to know what its government is doing promotes accountability, imbues trust and contributes to our system of checks and balances.

First enacted in 1966, FOIA represents the foundation of our modern open government laws.  In 1996, I was the principal author of the Electronic Freedom of Information Act Amendments, which updated FOIA for the internet age.  The bill we introduce today is the next step: a practical set of important modifications that respond to common complaints and limitations in the current system that we have heard, whether from frequent FOIA requestors, such as representatives of the press, or individual citizens who may only occasionally rely on FOIA, but who nonetheless deserve timely and comprehensive responses to their requests. 

Chief among the problems with FOIA implementation is agency delay.  Following the successful model of the Texas Public Information Act, this legislation imposes penalties on agencies that miss statutory deadlines to release documents and strengthens reporting requirements on FOIA compliance. 

The OPEN Government Act responds to some confusion over the applicability of FOIA to agency records that are held by outside private contractors.  It does this by clarifying that such records are subject to FOIA wherever they are located. 

Our legislation establishes an ombudsman to mediate FOIA disputes between agencies and requestors, a step that many FOIA requestors believe will help to ameliorate the need for FOIA litigation in the Federal courts.  We hope that this mechanism will work to the benefit of all parties.  However, where mediation fails to resolve disputes, our bill preserves the rights of requestors to litigate under FOIA. 

Our bill responds to recent Federal jurisprudence by explicitly providing for recovery of attorneys’ fees under the so-called “catalyst theory.”  That is, where a FOIA lawsuit was the catalyst for an agency determination to release documents prior to a court’s entry of judgment, the plaintiff may recover attorneys’ fees. 

Finally, the bill requires reports on a controversial law, the Critical Infrastructure Information Act, enacted as part of the Homeland Security Act of 2002, and it protects fee-waiver status for journalists under FOIA. 

Letters of support for the OPEN Government Act have been submitted by the American Association of Law Libraries, American Civil Liberties Union, American Library Association, American Society of Newspaper Editors, Associated Press Managing Editors, Association of Health Care Journalists, Center for Democracy & Technology, Coalition of Journalists for Open Government, Committee of Concerned Journalists, Education Writers Association, Electronic Privacy Information Center, Federation of American Scientists/Project on Government Secrecy, Free Congress Foundation/Center for Privacy & Technology Policy, Freedom of Information Center/University of Missouri, The Freedom of Information Foundation of Texas, The Heritage Foundation/Center for Media and Public Policy, Information Trust, National Conference of Editorial Writers, National Freedom of Information Coalition, National Newspaper Association, National Security Archive/George Washington University, Newspaper Association of America, People for the American Way, Project on Government Oversight, Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, and the Society of Environmental Journalists.

The Freedom of Information Act is an invigorating mechanism that helps keep our government more open and effective and closer to the American people.  FOIA has had serious setbacks in recent years that endanger its effectiveness.  This legislation is a rare chance to advance the public’s right to know.   

I thank my colleague, the Senator from Texas, for the time and effort he has devoted to protecting the public’s right to know, and I urge all members of the Senate to join us in supporting this important legislation. 

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