Bipartisan Leahy-Cornyn Bill Passes Senate,
On Course To Increase Government Transparency
WASHINGTON (Monday, Aug. 6) – The
U.S. Senate has passed sweeping bipartisan legislation that will
streamline and increase government transparency. The OPEN
Government Act of 2007 (S.849), introduced by Judiciary Committee
Chairman Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas), a
member of the panel, passed Friday night by unanimous consent.
“For more than four decades, FOIA has translated the great American
values of openness and accountability into practice by guaranteeing
access to government information,” said Leahy, a longtime leader on
FOIA legislation and government transparency. “The OPEN Government
Act will help ensure that these important values remain a
cornerstone of our American democracy.”
The OPEN Government Act – the first major strengthening of FOIA in
more than a decade -- is expected to pass the House when Congress
returns to session this September, and the President is expected to
sign the bill.
[Below is Leahy’s statement on the passage of the OPEN Government
bill. Background summaries on the Kyl-Leahy Amendment and the
Cornyn-Leahy Bill follow.]
Statement Of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
On Passage Of The OPEN Government Act
Senate
Proceedings
August 3, 2007
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. The bill creates a
tracking system for FOIA requests to assist members of the public
and the media. Tracking numbers are not required for FOIA requests
that are anticipated to take ten days or less to process. 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.
# # # # #
Kyl-Leahy Amendment To The OPEN
Government Act
§ 3 – DEFINITION OF NEWS MEDIA
* “Representative of the news media” is defined broadly enough
to encompass all members of the old and new media. It includes
anyone who gathers information of “potential interest to a segment
of the public,” uses an editorial process and disseminates their
product to an audience of any size. It states explicitly that as
methods of news delivery evolves, alternative media shall be
encompassed. This provision ensures that blogs and other Web-based
forms of media are covered by the bill.
§ 4 – ATTORNEYS’ FEES
· A 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.
§ 6(a) – 20-DAY TIME LIMIT AND TOLLING
· The 20-day period that agencies have to respond to FOIA
requests is changed to commence when the request is received by the
appropriate component of the agency. If a FOIA request is received
by a different component of the agency that handles FOIA requests,
the agency has 10 days to deliver the request to the appropriate
agency component before the 20-day clock starts to run.
· Allows federal agencies to toll the 20-day clock while
awaiting a response to a request for information from a FOIA
requester on one occasion reasonable, or while awaiting
clarification regarding a fee assessment.
§ 6(b) – COMPLIANCE WITH TIME LIMITS
· Changes the penalty for non-compliance with the 20-day time
limit from the loss of the agency’s ability to claim an exemption
under FOIA to a waiver of search fees.
§ 7(a) – STATUS OF REQUESTS
· Clarifies that tracking numbers are not required for FOIA
requests that are anticipated to take 10 days or less to process.
§ 8 – CLEAR STATEMENT FOR EXEMPTIONS
· Ensures that FOIA statutory exemptions enacted after the
passage of this bill clearly cite the FOIA statute and state the
intent to exempt the legislation from FOIA.
§ 10 – PRIVATE RECORDS MANAGEMENT
· Clarifies that FOIA applies to government records
maintained by government contractors who have been contracted to
store and manage data for federal agencies or departments.
§ 11 – OFFICE OF GOVERNMENT INFORMATION SERVICES/OMBUDSMAN
· Creates an Office of Government Information Services in the
National Archives and creates an ombudsman to mediate agency-level
FOIA disputes
· Ensures that each federal agency shall appoint:
1. A Chief FOIA Officer who will monitor the agency’s
compliance with FOIA requests, and ensure that they are responded to
quickly and efficiently.
2. A FOIA Public Liaison who will be available to FOIA to
resolve FOIA related disputes.
§ 12 – CRITICAL INFRASTRUCTURE INFORMATION
· Strikes the Critical Infrastructure Information reporting
requirements from the bill.
# # # # #
BACKGROUND ON THE LEAHY-CORNYN OPEN
GOVERNMENT ACT
Led by U.S. Senators Patrick Leahy and John Cornyn , the OPEN
Government Act of 2007 is a bipartisan effort to achieve meaningful
reforms to federal government information laws – including, most
notably, the Freedom of Information Act of 1966 (“FOIA”). The
legislation would substantially enhance and expand the
accessibility, accountability, and openness of the federal
government. It has been nearly a decade since Congress has approved
major reforms to FOIA.
This legislation is the culmination of extensive discussions between
the offices of Senators Leahy and Cornyn and various members of the
requestor community. The bill is supported by a broad coalition of
organizations across the ideological spectrum, including:
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
Society of Environmental Journalists
Vermont Coalition for Open Government
Vermont Press Association
The bill contains important Congressional findings to reiterate and
reinforce the view that the Freedom of Information Act establishes a
presumption of openness, and that our government is based not on the
need to know, but upon the fundamental right to know. The bill also
contains over 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 fashion.
(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.
· Restore the catalyst theory for the 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.
# # # # #
