Fixing FOI
Bill to revamp FOI Act suggests first real changes since ’96
From the Spring 2005 issue of The News Media & The Law, page 7.
He came to Washington in December 2002, a reputed champion of open government in Texas. Last summer, Sen. John Cornyn (R-Texas) began living up to that reputation in the nation’s capital when he asked the top lawyer for a Senate subcommittee he leads to bone up on the federal Freedom of Information Act.
During his fact finding, James Ho, chief counsel to the Senate Subcommittee on the Constitution, Civil Rights and Property Rights, heard an earful from public interest groups, media organizations, librarians and others increasingly troubled by roadblocks FOI Act requesters face getting information.
Exemptions to the act are vastly overused, they complained. Privacy exemptions, they said, are used to keep far too many secrets, including the names of prisoners and their guards. Even the identities of dead people are shielded. “National security” has become so overused as an excuse to withhold records that virtually any information any hypothetical terrorist might use for any reason is blocked from public disclosure, they told Ho.
There was more: Federal agencies almost never grant or deny a request within the 20-day response time called for in the law, they said. Some requests go unanswered for a month, a year, a decade — and in some cases agencies never respond. And federal officials face little if any consequence for ignoring open records requests. Requesters who get no response have the same right to go to court as requesters who are formally denied information, but litigation is expensive, slow and often not satisfactory.
In February, after months of research, an improbable political duo — Cornyn and veteran FOI advocate Sen. Patrick Leahy (D-Vt.) — introduced a bill to revamp the FOI Act for the first time since the 1996 passage of the Electronic FOI Act.
The Cornyn-Leahy bill, dubbed the “Openness Promotes Effectiveness in our National Government Act” (S. 394) goes further. It would create a program to mediate disputes between the government and FOI Act requesters; prohibit agencies from using FOI Act exemptions if they exceed the 20-day response time and allow requesters to track their FOI Act requests, among other provisions.
For now, the senators have not tackled the overuse of exemptions to the FOI Act. Instead they have concentrated on these procedural changes, what Ho calls “common sense” reforms.
In March, Cornyn and Leahy teamed with Sens. Chuck Grassley (R-Iowa) and Richard Durbin (D-Ill.) to introduce the “Faster FOIA Act” (S. 589) that would create and empower a 16-member commission to advise Congress and the president about FOI Act processing delays and ways to reduce them.
Rep. Lamar Smith, R-Texas, introduced the House version of the bills — “OPEN Government Act” (H R. 867) and the “Faster FOI Act” (H.R. 1620).
In March, during the first Senate hearing on the FOI Act since 1992, groups as diverse as the conservative Heritage Foundation and the American Civil Liberties Union told the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security that they support the proposed FOI Act reforms.
Mark Tapscott, director of the Heritage Foundation’s Media and Public Policy Center, cited a 2003 study of 35 federal agencies that accounted for 97 percent of all FOI Act requests the previous year. The study, by the National Security Archive, found the FOI Act system in “extreme disarray.”
The proposed reforms would address two of the most serious problems of the current FOI system, Tapscott said: A lack of serious consequences for officials who violate the act and the absence of a neutral arbiter to oversee disputes between requesters and agencies.
Those reforms and others in the bill would make agency compliance “a priority, not an afterthought,” Lisa Graves, the ACLU’s senior counsel for legislative strategy, told the panel.
“This much-needed bill will help buck the trend of hiding government action from public scrutiny,” she said.
Walter Mears, who spent more than 40 years in Washington as a reporter, editor and bureau chief for The Associated Press, said at the hearing that greater government secrecy can backfire on the government when vital information that should remain secret is released by whistle
“There is a valid need for secrecy in some government operations. But the presumption should be in favor of openness, not clamping down on information,” Mears said.
The public’s need to be informed is crucial to “our system of self-government,” he said, noting stories that grew out of FOI Act requests. One request by AP found that researchers at the National Institutes of Health were collecting royalties on drugs and devices they were testing on patients who did not know of their financial interests in the products, violating an NIH pledge to Congress, Mears said. The practice ended after the story broke
In Cornyn’s home state of Texas, a pro-openness system of disclosure has worked for 32 years through such events as the space shuttle Columbia disaster, the suicide of an Enron executive, the death of 19 immigrants in a heated tractor-trailer in south Texas and several high-profile murder trials, Katherine Minter Cary told the Senate subcommittee.
Cary, chief of the Open Records Division in the Texas Attorney General’s Office, said her office issued 11,000 rulings last year in response to governmental bodies with open records questions. That’s up from 4,000 in 1999, she said, showing “an increase in compliance that is directly related to outreach and enforcement.”
“Every single working day, the process I oversee succeeds in getting thousands of pieces of information into the public’s hands without controversy, ” she said.
The Senate Judiciary Committee sent the bill that would create a FOI Act commission to the full chamber where it could come up for a vote this year. The more comprehensive reform plan is “going to take a little more time,” Sen. Cornyn told the Texas Press Association in March.
Cornyn’s aide Ho told the American Society of Access Professionals that a provision making agencies forfeit some use of exemptions when they fail to respond is likely to change before the measure advances.
In mid-May the House Subcommittee on Government Management, Finance and Accountability held an FOI Act hearing questioning officials from the Department of Justice, the National Archives and Records Administration and the Government Accountability Office.
Rep. Henry Waxman (D-Calif.) told the panel that “pseudo-classification” stamps such as “Sensitive But Unclassified” and “For Official Use Only” are overused — and may incorrectly keep information out of reach of the FOI Act. Waxman also discussed a bill he is drafting to address such labels and improve openness in the federal government.