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The yin and yang of FOI reformers

John Cornyn and Patrick Leahy team to push for changes to the federal records law From the Spring 2005 issue…

John Cornyn and Patrick Leahy team to push for changes to the federal records law

From the Spring 2005 issue of The News Media & The Law, page 4.

By Kirsten B. Mitchell

They are an odd couple, politically.

Sen. John Cornyn (R-Texas) supports a constitutional amendment banning gay marriage, voted to allow exploratory oil drilling in the Arctic National Wildlife Refuge and cosponsored a bill giving jurisdiction of Terri Schiavo’s case to federal courts.

Sen. Patrick Leahy (D-Vermont) disagrees with Cornyn on all three issues.

The pair of polar opposites agrees on at least one thing: Freezing citizen access to government information erodes democracy. They have teamed to sponsor two bills to reform the Freedom of Information Act, although Leahy is alone in sponsoring a FOI Act reform bill that would limit the scope of some secrecy provisions in the Homeland Security Act. (See story, page 7)

Cornyn, 53, offers Leahy support from the Republican side of the aisle. And Leahy, 65, brings to the relationship Capitol Hill savvy garnered over three decades.

Both have long championed government openness &#151 Cornyn during three years as attorney general of the Lone Star state and Leahy during a lengthy Senate career.

“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,” Leahy said Feb. 16 when one of the FOI bills was introduced.

“Pat Leahy and I don’t agree on much at all and I relish finding something that we do agree on,” Cornyn said March 16 at the Freedom Forum’s Freedom of Information Day.

The duo’s membership on the Senate Judiciary Committee first threw Leahy and Cornyn together. Knowing that Cornyn had campaigned on government openness, Leahy aides contacted Cornyn counterparts about FOI Act issues. The two collaborated with other senators and the Library of Congress to incrementally improve public access to THOMAS, the Web site providing congressional information.

The pair also cooperated to ensure that the Senate Judiciary Committee and the new Homeland Security and Governmental Affairs Committee have jurisdiction over government information and the FOI Act.

The pair is not totally in tandem on FOI Act issues. Cornyn did not sign onto Leahy’s “Restore FOIA Act” which would restore what Leahy calls “the biggest rollback” in FOI Act’s history. The bill, which has no Republican cosponsors, would limit the Homeland Security Act’s mandatory protection from FOI Act requests given to “critical infrastructure information” submitted to the Department of Homeland Security by private companies. CII is information about telecommunications, banks, bridges, dams, water and sewer plants, nuclear power plants, ports, public utilities and other entities necessary to the nation’s well-being which, if incapacitated or destroyed, could jeopardize security, public health or safety.

Cornyn did not sign onto the bill because he does not think it has as good a chance of passing as the two Cornyn-Leahy bills, said Don Stewart, Cornyn’s spokesman.

The pair of Senators acquired their mutual interest in FOI Act issues in different fashions.

In speeches and op-ed pieces about open government, Leahy frequently mentions that “as the son of printer . . . I came by my interest in press freedom honestly.” He grew up across the street from the Vermont state Capitol and remembers a time when anyone with a question about state government could stroll into any office, even the governor’s office, and ask questions, said Leahy’s spokesman, David Carle.

While Leahy built a career in the Senate, where he arrived at age 34, Cornyn’s career included six years as a Texas district judge, seven years on the state Supreme Court and three years as attorney general. Cornyn majored in journalism at Trinity University in San Antonio, but was never a practicing reporter.

During his tenure on the Texas high court &#151 from 1990 to 1997 &#151 he wrote no opinions dealing directly with First Amendment or other press issues, although he joined the majority in cases upholding the rights of the news media, according to online legal research.

In a 1993 majority opinion Cornyn wrote, the dissent accused the majority of creating a new category of court secrecy by allowing health care providers to remain anonymous in reporting adverse drug reactions to pharmaceutical makers

At issue in the case was whether court-ordered discovery for the plaintiff Biffle family &#151 who was suing drug maker Eli Lilly & Co. for Michael Biffle’s alleged Prozac-induced suicide &#151 could include the names and addresses of doctors who voluntarily reported their patients’ adverse drug reactions to the pharmaceutical giant.

The drug company produced the adverse-reaction documents with the reporting doctors’ names and addresses redacted. A trial court ordered the doctors’ identities revealed.

Cornyn, writing for the majority, agreed with the drug company that the doctors’ information should be secret. The court reasoned that otherwise, health care providers would be less likely to voluntarily report adverse drug reactions that are of great public interest. In returning the case to trial court, the Cornyn majority ruled that the burden was on the Biffles to show why their need for the doctors’ information outweighed the public’s interest in secrecy that would prompt greater reporting of drug reactions.

“By ordering disclosure without a showing of particularized relevance and need by the Biffles, the trial court failed to apply the correct legal standard for determining if this confidential information should be released,” Cornyn wrote for the court.

But the dissent argued that no state or federal law protected the names from being released by a drug company.

“This court’s once strong commitment to open discovery is quickly being replaced with a new double standard of justice that promotes secrecy,” Justice Lloyd Doggett &#151 now U.S. Rep. Doggett (D-Texas) &#151 wrote in a dissenting opinion.

Cornyn resigned from the high court in 1997 to run for attorney general. He and other candidates for the office appeared at a forum sponsored by the Freedom of Information Foundation of Texas, where Cornyn pledged to fight for open government.

“They all give the right answers when they are questioned as candidates. It’s their action once they get into office” that count and Cornyn’s actions on open government issues fulfilled his promises, said Katherine Garner, the foundation’s executive director.

In three years with Cornyn at the helm, the office relaunched open records enforcement after a period of dormancy and established a toll-free open records hotline. It also issued more than 20,000 open records rulings in response to questions from Texas government officials and citizens. The rulings, signed by assistant attorneys general, are informal letters answering questions that are applicable only to specific documents and circumstances surrounding them and cannot be cited as legal precedent.

Cornyn “was really a good administrator in terms of making the open records machine of government work better,” said lawyer Tom Leatherbury, who has represented the media during a 25-year career in Texas. As attorney general, Cornyn was not a “showboat politician” who craved publicity, Leatherbury said.

Two of those open records rulings came in 2000 when freelance writer Vanessa Leggett tried to obtain autopsy photos of Roger Angleton, one of the subjects of her upcoming book. Angleton allegedly committed suicide in prison after confessing to murdering his sister-in-law, Houston socialite Doris Angleton.

Cornyn’s office first told Leggett, correctly, that autopsy photos are not covered by the Texas open records law. But Leggett had not told the Open Records Division that Angleton died while in the custody of law enforcement and when she did, the office helped her obtain the photos under an exception to the autopsy records law that allows their release if the person died while in government custody. After six months, Leggett ultimately obtained the photos, but only after a ruling from Cornyn’s office.

Three years after leaving the attorney general post to run for U.S. Senate, Cornyn’s legacy is that elected officials better understand open government, said Donnis Baggett, publisher and editor of The (Bryan-College Station) Eagle and legislative chairman for the Texas Press Association and the Texas Daily Newspaper Association.

“I believe most office holders have a higher regard for the law than they did before,” Baggett said.

During his tenure as attorney general, Cornyn also wrote many opinions &#151 written interpretations of existing law for certain state and local officials, including the governor. In May 2002, he ruled that President George W. Bush’s 1995-2000 gubernatorial records are subject to the state’s public-records law even though they are at his father’ s presidential library.

“The records remain the property of the state of Texas, and remain subject to the Texas Public Information Act,” Cornyn wrote. The younger Bush gave his records to the elder Bush’s George Bush Presidential Library and Museum in College Station, Texas. The facility is administered by the National Archives and Records Administration, which is not subject to the state open-records act. The younger Bush continues to want to shroud the records and a lawsuit over the matter is pending.

As attorney general, Cornyn signed 19 open records decisions, formal opinions answering unique or problematic legal questions from government officials about the state Public Information Act.

Among information Cornyn ruled must be released to the public, according to the Texas attorney general’s Web site: a computer-generated map of the port of Corpus Christi; communication and records of victim-offender mediation except for “highly intimate and embarrassing” information that has no legitimate public interest; and cost reports submitted to the Texas Department of Human Services by nursing facilities with Medicaid contracts.

Cornyn ruled secret certain telephone company and U.S. Postal Service information used for computerized 911 service; ingredients in tobacco products reported to the state Department of Health; information that a municipally owned power utility discloses to a municipally appointed citizen advisory board; weekly index reports produced for the judiciary by a county district clerk of court’s office; and information in archival state records that was confidential in the custody of the originating governmental body.

Cornyn also ruled that public information must be released “promptly.”

“If public information is not available because it is in immediate active use or storage, the public information officer must certify that fact in writing to the requester and set a date and hour within a reasonable time when the information will be made available, Cornyn wrote in a February 2000 letter.

Later that year, he wrote a government official that a “governmental body may not charge for electronic copies of public information that is available on its Internet web site.”