Statement Of Sen. Patrick
Leahy,
Chairman, Senate Judiciary Committee,
On Passage Of The OPEN Government Act
U.S. Senate Proceedings
August 3, 2007
Mr. LEAHY: Mr. President, I am
pleased that the Senate has passed the
Leahy-Cornyn
Openness Promotes Effectiveness in
our National Government Act” (the “OPEN Government Act”),
S.849, before adjourning for the August recess. This important
Freedom of Information Act legislation will strengthen and
reinvigorate FOIA for all Americans.
For more than four decades, FOIA has
translated the great American values of openness and accountability
into practice by guaranteeing access to government information. The
OPEN Government Act will help ensure that these important values
remain a cornerstone of our American democracy.
I commend the bill’s chief Republican
cosponsor, Senator John Cornyn, for his commitment and dedication to
passing FOIA reform legislation this year. Since he joined the
Senate five years ago, Senator Cornyn and I have worked closely
together on the Judiciary Committee to ensure that FOIA and other
open government laws are preserved for future generations. The
passage of the OPEN Government Act is a fitting tribute to our
bipartisan partnership and to openness, transparency and
accountability in our government.
I also thank the many cosponsors of
this legislation for their dedication to open government and I thank
the Majority Leader for his strong support of this legislation. I
am also appreciative of the efforts of Senator Kyl and Senator
Bennett in helping us to reach a compromise on this legislation, so
that the Senate could consider and pass meaningful FOIA reform this
legislation before the August recess.
But, most importantly, I especially
want to thank the many concerned citizens who, knowing the
importance of this measure to the American people’s right to know,
have demanded action on this bill. This bill is endorsed by more
than 115 business, public interest, and news organizations from
across the political and ideological spectrum, including the
American Library Association, the U.S. Chamber of Commerce,
OpenTheGovernment.org, Public Citizen, the Republican Liberty
Caucus, the Sunshine in Government Initiative and the Vermont Press
Association. The invaluable support of these and many other
organizations is what led the opponents of this bill to come around
and support this legislation.
The First FOIA
Reforms in More Than a Decade
As the first major reform to FOIA in
more than
a decade, the OPEN
Government Act will help to reverse the troubling trends of
excessive delays and lax FOIA compliance in our government and help
to restore the public’s trust in their government. This
bill will also improve transparency in the Federal Government’s FOIA
process by:
-
Restoring
meaningful deadlines for agency action under FOIA;
-
Imposing real
consequences on federal agencies for missing FOIA’s 20-day
statutory deadline;
-
Clarifying that
FOIA applies to government records held by outside private
contractors;
-
Establishing a
FOIA hotline service for all federal agencies; and
-
Creating a FOIA
Ombudsman to provide FOIA requestors and federal agencies with a
meaningful alternative to costly litigation.
Specifically, the OPEN Government Act
will protect the public’s right to know, by ensuring that anyone who
gathers information to inform the public, including freelance
journalist and bloggers, may seek a fee waiver when they request
information under FOIA. The bill ensures that federal agencies will
not automatically exclude Internet blogs and other Web-based forms
of media when deciding whether to waive FOIA fees. In addition, the
bill also clarifies that the definition of news media, for purposes
of FOIA fee waivers, includes free newspapers and individuals
performing a media function who do not necessarily have a prior
history of publication.
The bill also restores meaningful
deadlines for agency action, by ensuring that the 20-day statutory
clock under FOIA starts when a request is received by the
appropriate component of the agency and requiring that agency FOIA
offices get FOIA requests to the appropriate agency component within
10 days of the receipt of such requests. The bill allows federal
agencies to toll the 20-day clock while they are awaiting a response
to a reasonable request for information from a FOIA requester on one
occasion, or while the agency is awaiting clarification regarding a
FOIA fee assessment. In addition, to encourage agencies to meet the
20-day time limit, the bill prohibits an agency from collecting
search fees if it fails to meet the 20-day deadline, except in the
case of exceptional circumstances as defined by the FOIA statute.
The bill also addresses
a relatively new concern that, under current law,
federal agencies have an incentive to delay compliance with FOIA
requests until just before a court decision that is favorable to a
FOIA requestor. The Supreme Court’s decision in
Buckhannon Board and Care Home,
Inc. v. West Virginia Dep’t of Health and Human Resources,
532 U.S. 598 (2001), eliminated the “catalyst theory” for attorneys’
fees recovery under certain federal civil rights laws. When applied
to FOIA cases, Buckhannon
precludes FOIA requesters from ever being eligible to recover
attorneys fees under circumstances where an agency provides the
records requested in the litigation just prior to a court decision
that would have been favorable to the FOIA requestor. The bill
clarifies that Buckhannon
does not apply to FOIA cases. Under the bill, a FOIA requester
can obtain attorneys’ fees when he or she files a lawsuit to obtain
records from the government and the government releases those
records before the court orders them to do so. But, this provision
would not allow the requester to recover attorneys’ fees if the
requester’s claim is wholly insubstantial.
To address concerns
about the growing costs of FOIA litigation, the bill also creates
an Office of Government Information Services in the National
Archives and creates an ombudsman to mediate agency-level FOIA
disputes. In addition the bill ensures that each federal agency
will appoint a Chief FOIA Officer, who will monitor the agency’s
compliance with FOIA requests, and a FOIA Public Liaison who will be
available to FOIA to resolve FOIA related disputes.
Finally, the bill does several things
to enhance the agency reporting and tracking requirements under FOIA.
Tracking numbers are not required for FOIA requests that are
anticipated to take ten days or less to process. The bill creates a
tracking system for FOIA requests to assist members of the public
and the media. The bill also establishes a FOIA hotline service for
all federal agencies, either by telephone or on the Internet, to
enable requestors to track the status of their FOIA requests.
In addition, the
bill also clarifies that FOIA applies to agency records that are
held by outside private contractors, no matter where these records
are located. And, to create more transparency about
the use of statutory exemptions under FOIA, the bill ensures that
FOIA statutory exemptions that are included in legislation enacted
after the passage of this bill clearly cite the FOIA statute and
clearly state the intent to be exempt from FOIA.
OPEN Government Is
An American Value
The Freedom of Information Act is
critical to ensuring that all American citizens can access
information about the workings of their government. But, after four
decades this open government law needs to be strengthened. I am
pleased that the reforms contained in the OPEN Government Act will
ensure that FOIA is reinvigorated so that it works more effectively
for the American people.
I am also please that,
by passing this important reform legislation today, the Senate has
reaffirmed the principle that open government is not a Democratic
issue or a Republican issue. But, rather, it is an American issue
and an American value. I commend all of my Senate colleagues, on
both sides of the aisle, for unanimously passing this historic FOIA
reform measure. I hope that the House of Representatives, which
overwhelmingly passed a similar measure earlier this year, will
promptly take up and pass this bill and that the President will then
promptly sign it into law.
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