Senate subcommittee hears testimony on FOI Act reform bill

• Five witnesses with varying interest in government openness told a Senate subcommittee that proposed Freedom of Information Act reforms are needed, including hiring a federal ombudsman to mediate records disputes.

March 15, 2005 — Greater government secrecy raises the risk that vital information that should remain shrouded is released by confidential sources, a retired Associated Press journalist told a Senate subcommittee today.

Walter Mears, who spent more than 40 years as a Washington reporter, editor and bureau chief, urged a Senate subcommittee to reform the Freedom of Information Act so Americans have better, easier access to government information.

“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 told the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security.

Mears, was one of five witnesses who spoke in support of two bills recently introduced by Sens. John Cornyn (R-Tex.) and Patrick Leahy (D-Vt.). The “OPEN the Government Act” would reform the FOI Act with such changes as creating a telephone and Internet tracking system so citizens can check the progress of their FOI Act requests. The bill calls for an FOI Act ombudsman to review agency openness and mediate records request disputes.

Cornyn told the panel that Attorney General Alberto Gonzales is interested in FOI Act reform, and that the Justice Department has made “positive comments about the legislation.” Leahy said he had spoken to Gonzales about the need for Justice Department policy to revert to a presumption of openness, as it had been prior to former Attorney General John Ashcroft’s tenure. In an October 2001 memorandum, Ashcroft encouraged federal officials to fully consider reasons for invoking FOI Act exemptions and assured them that the Justice Department will fully defend the withholding of material where an exemption is legally defensible.

Another bill introduced by Cornyn and Leahy, The “Faster FOIA Act,” would establish a one-year, 16- member commission to study and report to the Congress and the president on what changes would speed FOI Act response times.

Katherine Minter Cary, an assistant Texas Attorney General and chief of the state’s open records division, urged the committee to consider her state’s Public Information Act as a model. In Texas, a government body forfeits its right to claim a disclosure exemption when it does not invoke that exemption within 10 days of a request, she said. Cornyn’s and Leahy’s bill would impose a similar rule using a 20-day grace period which, Cary said, would “prevent government from benefitting from its own inaction.”

Mears said a federal ombudsman would “find solutions to FOIA disputes short of going to court.” A FOI Act expert and lawyer, Thomas M. Susman, said creating a federal ombudsman job is the bill’s most important provision. Currently, “you can go to the Justice Department for advice [on FOI Act disputes], but because they defend the agencies,” having an independent arbiter makes a lot more sense, he said. As for the cost of a federal ombudsman, Susman told the committee that the government would save a money by avoiding costly FOI Act litigation.

Susman also applauded the bill’s proposed correction of a 2001 U.S. Supreme Court case — Buckhannon Board and Care Home Inc. v. West Virginia Dep’t of Health and Human Resources — which has been interpreted to preclude FOI Act requesters from recovering attorney fees when the mere filing of a lawsuit against the government but not an actual ruling by a judge finally prompts the release of records.

Granting such attorney fees would “give teeth to the deadlines imposed by FOIA,” agreed Lisa Graves from the American Civil Liberties Union. Her organization faced government stonewalling, she said, when it filed a request for records relating to U.S. treatment of detainees on foreign soil in October 2003, and after waiting nearly a year had to file a lawsuit to force a response.

Mark Tapscott, director for the Heritage Foundation’s Center for Media and Public Policy, highlighted the need for faster FOI Act responses by referring the subcommittee to a 2003 study by the National Security Archive that found government agencies consistently failed to meet the 20-day response time demanded by current law. Tapscott said that as part of that study, the National Security Archive asked 35 agencies in January 2003 for “lists of the 10 oldest outstanding FOIA requests in their systems.” Six agencies had not fully responded approximately one year after the request was made, he said.

The committee also heard testimony from the National Security Archive general counsel Meredith Fuchs, who said a hotline to track records requests “is critical for making agencies responsive.” The bills also would standardize FOI Act process, she said. Currently, there are 35 government agencies that field 97% of records requests, each of which has a different structure, leading to a decentralized and confusing landscape for requesters, she said.

Cornyn said this legislation represents “the beginning and not the end” of open government reform. He characterized it as not controversial, as “common sense” and as a measure to assist agencies in “doing the job the law requires them to do.”

— RL

Related stories:

• Senators propose commission to study FOI Act (03/10/2005)
• Senate bill aims to strengthen FOI Act (02/16/2005)

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