Vermont Editor Testifies Before Leahy Panel
On Need For Stronger Open Government Laws

WASHINGTON (Wednesday, March 14) – A Vermont newspaper editor and President of the Vermont Press Association testified Wednesday before Senator Patrick Leahy’s Judiciary Committee about the importance of transparency in government and the need to strengthen federal open government laws.

Leahy invited Sabina Haskell, editor of the Brattleboro Reformer and President of the Vermont Press Association, to serve on a witness panel of leading media and FOIA experts who testified before the committee at its hearing, “Open Government: Reinvigorating the Freedom of Information Act.”

“The Freedom of Information Act is clear in its charge:  We are a country where we do the people’s business,” said Haskell, who is also a founding member of the Vermont Coalition for Open Government.  “And the people have the right to know what local, state and federal officials are doing.”

The hearing focused on bipartisan legislation introduced this week by Leahy and Senator John Cornyn (R-Texas), also a member of the committee.  They introduced the “Openness Promotes Effectiveness in our National Government Act” (OPEN Government Act of 2007), which would create more concrete deadlines for agencies to respond to requests for information and ensure the public has easier access to government records and information.

“From human rights abuses in Iraq, Afghanistan and Guantanamo Bay, to environmental violations at home, to public corruption at the highest levels of our government, information about many of the important issues of our time have been obtained through FOIA,” said Leahy, who introduced a similar bill in the last Congress.  “But sadly, today FOIA also faces challenges like never before.”

The committee’s hearing coincides with the third annual national Sunshine Week, a week devoted to creating a dialogue about government transparency and the public’s ability to access information. 

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(Below are Leahy’s statement from the hearing, and Haskell’s testimony.)

Statement Of Senator Patrick Leahy,
Chairman, Committee Of The Judiciary
Hearing On “Open Government:  Reinvigorating The Freedom Of Information Act”
March 14, 2007

Today, the Committee holds an important hearing on reinvigorating the Freedom of Information Act.  The enactment of the FOIA forty years ago was a watershed moment for our democracy.  FOIA guarantees the right of all Americans to obtain information from their government and to know what their government is doing.

Now in its fourth decade, FOIA has become an indispensable tool in protecting the people’s right to know and in shedding light on bad government policies and government waste, fraud and abuse.  Just this week -- amid the growing scandal regarding the firing of several of the Nation’s U.S. Attorneys -- we witnessed the importance of openness in our government.  We have also witnessed the importance in Sunshine laws with the Justice Department’s Inspector Generals report on the FBI’s abuse of National Security Letters – a report required by the Sunshine provisions that I and others in Congress worked hard to include in the PATRIOT Act reauthorization bill. 

Openness is a cornerstone of our democracy and open government laws like FOIA help guarantee that the people’s right to know what their government is doing.  From human rights abuses in Iraq, Afghanistan and Guantanamo Bay, to environmental violations at home, to public corruption at the highest levels of our government, information about many of the important issues of our time have been obtained through FOIA.  But sadly, today, FOIA also faces challenges like never before. 

During the past six years, the Bush Administration has allowed lax FOIA enforcement and a near obsession with government secrecy to dangerously weaken FOIA and to undercut the public’s right to know.  Currently, federal agencies operate under a 2001 directive from former Attorney General John Ashcroft that reverses the presumption of compliance with FOIA requests previously issued by former Attorney General Janet Reno.  The Administration has also sought to erode FOIA by including a broad FOIA waiver for critical infrastructure information in the charter for the Department of Homeland Security B the biggest single rollback of FOIA in its history. 

The troubling setbacks to FOIA are coupled with the expanding use of government secrecy stamps to over-classify government information and the unprecedented use of presidential signing statements and the states secrets privilege to further erode the public’s right to know.  The consequence of these policies is a FOIA process that is plagued by excessive delays and focused on secrecy rather than transparency.

Today, the oldest FOIA requests pending in federal agencies date back to 1989 – before the collapse of the Soviet Empire.  And, more than a year after the President’s directive to government agencies to improve their FOIA services, Americans who seek information under FOIA remain less likely to obtain it. 

Just recently, the Government Accountability Office found that federal agencies had 43 percent more FOIA requests pending and outstanding in 2006, than they had in 2002.  In addition, as the number of

FOIA requests that Americans submit to federal agencies each year continues to rise, our federal agencies remain unable – or unwilling -- to keep pace.  According to a new report by OpenTheGovernment.org, the number of FOIA requests submitted annually has increased by more than 65 thousand requests (65,543) since 2004. But, because federal agencies have not kept up with this demand, more and more pending FOIA requests are being carried over from year to year. 

FOIA implementation has also been hampered by the increasing use of exemptions under section (b)(3) of FOIA, allowing FOIA exemptions to be snuck into legislation passed by the Congress without debate or public scrutiny  I am also troubled by the findings in a new report by the National Security Archive that, ten years after Congress passed the Electronic Freedom of Information Act (“E-FOIA”) Amendments, which I coauthored in 1996, federal agencies are still not complying with the requirements of that law.

Earlier this week, Senator Cornyn and I reintroduced the OPEN Government Act to address some of the major problems that I have outlined regarding FOIA implementation.  We drafted this bill after a long and thoughtful process of consultation with individuals and organizations that rely on FOIA to obtain information and I hope that the Senate will promptly pass this bill. 

I appreciate the strong partnership that I have with Senator Cornyn on open government issues and thank him for his dedication to reinvigorating FOIA.  I also thank the distinguished witnesses that are appearing before the Committee today.  They each bring valuable perspectives on the importance of FOIA in guaranteeing the public’s right to know.

There is much work to be done to correct the many problems with lax FOIA enforcement, to ensure that our federal FOIA law is properly enforced.  Congress must do its part to make sure that this open government law not only survives, but thrives for the next forty years.  This Committee will do its part to reinvigorate the Freedom of Information Act, so that this important open government tool will be available to future generations.  I look forward to a meaningful exchange.

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Testimony Of Sabina Haskell
Before The Senate Committee On The Judiciary
Hearing On “Open Government:  Reinvigorating The Freedom Of Information Act”
March 14, 2007

Good morning and thank you for inviting me to talk to you about the Freedom of Information Act and the needed reforms to protect our First Amendment rights. I am Sabina Haskell and I am the editor of the Brattleboro Reformer, a newspaper 10,000 circulation located in southeastern Vermont.

Even at that small size, we’re the third largest newspaper in Vermont. And we’re in good company: about 85 percent of the daily newspapers in the United States have circulations of 50,000 or less. Smaller newspapers generally pursue public records from state and local officials, rather than from federal sources, but our daily efforts to do so are a quagmire and it’s getting worse.  

In Vermont, where I am also president of the Vermont Press Association, we’re frustrated by the de facto sentiment of secrecy that seems to be seeping down to every level of government – and it begins at the top, where it appears the Bush administration is unilaterally stripping Americans of their Constitutional rights.

The most recent example of the need for the Freedom of Information Act came only last week, when the inspector general released a report revealing that the FBI had improperly used the USA Patriot Act to obtain information about people and businesses. It was through the efforts of Sen. Leahy and others that the Freedom of Information Act was amended last year, making it possible to obtain the records needed to expose the wrongdoing at the bureau.

The fear-mongering espoused at the federal level – where questions and requests for information are viewed as suspect – is replayed time and time again at state and local levels. I truly believe the effort to seal off the federal government is the primary reason that there is increased efforts to close the doors on transparent government at the local and state levels.

The anecdotes I will share come from the dozen dailies and more than four dozen non-dailies that are members of the Vermont Press Association. Multiply us in Vermont by all 50 states and almost 1,500 newspapers and you can understand the magnitude of the problem.

The Freedom of Information Act is supposed to allow any person — individual, corporate, and regardless of citizenship — to request without explanation or justification, access to existing, identifiable executive branch agency records of any topic. Requesters are supposed to get timely answers at little or no cost.

But when we wanted a copy of the Brattleboro police chief’s contract and a record of the days he’s away from his job, we were rebuffed. We were asked: Why did we want that information? What were we going to do with it? We were told the information would be provided when we answered their questions. We still don’t have the documents.

In northeastern Vermont, a weekly newspaper wanted to do a story on the town hall’s new handicapped-accessible ramp, paid for, in part, by federal grant money. It was supposed to be a nice, feel-good story about disabled people having better access to their local town hall.

But when the paper requested an architect’s drawing of the exterior wooden ramp to illustrate the story, the newspaper was denied because of Homeland Security concerns. It’s hard to understand how a wooden ramp and railings, built of pressure-treated lumber, could be viewed as a security risk. You could wait six months, drive by and then snap the picture.

In Winooski, the school board went behind closed doors to make a sweetheart deal to buy out the embattled superintendent’s contract. The Burlington Free Press sued to get the details of the settlement and when the newspaper finally won 18 months later and was given the documents, the school district’s attorney’s response was, “You don’t think we lost, do you?” By stalling, the school district and its lawyer kept running up the legal bill on the taxpayers, knowing full well it was all public information, but hoping some of the storm would subside by the time they agreed to follow the law and release the information.  

In Jamaica, Vermont, a town official, requested the public documents about the sheriff’s department:

·        copies of timesheets for the sheriff, a deputy and a detective.

·        records showing reimbursed or partially reimbursed expenses incurred by the three

·        timesheets and other records that would identify the "whereabouts and activities" of the three for three days in January 2004.

Two of the three requests were denied under subsections of Vermont public records law. The third request was denied because the sheriff was "unable to recall any instance" in which the three incurred a business expense that was reimbursed by the department.  The attorney for the sheriff’s department then intimidated this local official, reminding him that there would a 45 cent charge for every minute in excess of a half-hour the bookkeeper spends searching for responsive documents.

The sheriff was later found to be misappropriating money; she resigned in disgrace and was subsequently convicted.

The town official’s assessment: "So -- I'm kept from a public record. I take the matter to court on my own dime, and I get falsified information back. Who picks up the tab? Me."

Keeping bad news – mistakes out of the public eye may work in the short-term – but the long-term outcome is the ever-increasing mistrust of government and politicians.

A survey conducted by the American Society of Newspaper Editors confirms this: More than two-thirds of Americans polled said the federal government is “somewhat secretive” or “very secretive.” People overwhelmingly believe their federal leaders have become sneaky, listening to telephone conversations or opening private mail without getting court permission, the study found.

In fact, the Coalition of Journalists for Open Government has found that the backlog of requests continues to grow. Its latest research found that an all-time record of 31 percent of requests went unprocessed in 2005 – up 138 percent in seven years. More important was the finding that half of the 26 federal agencies in the study said they failed to comply with even simple requests within the federally mandated 20 days.

The Freedom of Information Act is clear in its charge: We are a country where we do the people’s business. And the people have a right to know what local, state and federal officials doing.

FOIA allows but nine exemptions in considering whether a record is open or not. Federal agencies are mandated to reply within 20 days to a request for documents.

But stall tactics and legal costs to challenge officials’ decisions effectively closes the doors to government. Requesters are treated as guilty until proven innocent.

In Vermont, a legislative study last summer found that our open government laws have been rewritten and amended to allow 207 exemptions and counting. Like the federal law, Vermont has provisions to reimburse requesters for their costs to obtain the public documents. Like the federal law, those penalties are rarely enforced.

State law, like the federal act, speaks to mandates but enforcement is lax. The Vermont attorney general believes his job is to defend the state officials breaking the law, not protect the citizens who own the public records.

The amendments proposed by Sens. Leahy and Cornyn in S. 394 and in those proposed in the House, under H.R. 1309, are needed and should be passed.

Starting with the premise that records should be considered public, the amendments would strengthen the Freedom of Information Act requiring these safeguards:

·        Enforcing the 20-day statutory clock on FOIA requests

·        Imposing consequences on agencies that do not respond in a timely manner

·        Tracking requests with individualized case numbers and providing telephone and internet access to the status of such requests

·        Strengthening reporting requirements, which would identify excessive delays

·        Creating a FOIA ombudsman to mediate problems with requests without resorting to litigation

·        Making it easier for requesters to recoup costs for successful FOIA challenges

·        Holding agencies accountable for their decisions by giving the Office of Special Counsel the ability to take disciplinary action against officials who deny disclosure

These amendments will go a long way to enhancing the Freedom of Information Act and will set higher standard of conduct for state and local officials to follow.

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