<DOC> [110 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:35801.wais] S. Hrg. 110-55 OPEN GOVERNMENT: REINVIGORATING THE FREEDOM OF INFORMATION ACT ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ MARCH 14, 2007 __________ Serial No. J-110-18 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 35-801 WASHINGTON : 2007 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Michael O'Neill, Republican Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 5 Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 4 prepared statement........................................... 35 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin...................................................... 19 prepared statement........................................... 49 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 70 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 3 WITNESSES Cary, Katherine, General Counsel, Texas Office of the Attorney General, Austin, Texas......................................... 12 Curley, Tom, President and Chief Executive Officer, The Associated Press, Representing the Sunshine in Government Initiative, New York, New York................................. 10 Fuchs, Meredith, General Counsel, National Security Archive, George Washington University, Washington, D.C.................. 6 Haskell, Sabina, Editor, Brattleboro Reformer, Brattleboro, Vermont........................................................ 9 QUESTIONS AND ANSWERS Responses of Meredith Fuchs to questions submitted by Senator Leahy.......................................................... 26 SUBMISSIONS FOR THE RECORD Cary, Katherine, General Counsel, Texas Office of the Attorney General, Austin, Texas, statement.............................. 32 Curley, Tom, President and Chief Executive Officer, The Associated Press, Representing the Sunshine in Government Initiative, New York, New York, statement...................... 37 Fuchs, Meredith, General Counsel, National Security Archive, George Washington University, Washington, D.C., statement and attachments.................................................... 50 Haskell, Sabina, Editor, Brattleboro Reformer, Brattleboro, Vermont, statement............................................. 67 OPEN GOVERNMENT: REINVIGORATING THE FREEDOM OF INFORMATION ACT ---------- WEDNESDAY, MARCH 14, 2007 United States Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 10:07 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feingold, Cardin, Specter, Cornyn, and Coburn. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning. Today, our Committee will hold an important hearing on reinvigorating the Freedom of Information Act. I believe the enactment of the FOIA 40 years ago was a watershed moment for our democracy. FOIA guarantees the right of all Americans to obtain information from their Government and to know what their Government is doing. Now in its fourth decade, it has become an indispensable tool in protecting the people's right to know. It sheds light on bad government policies and government waste, fraud, and abuse. Every administration, Democratic or Republican, will send out plenty of press releases when they are proud of things. It takes FOIA to find out when they have made mistakes. Just this week, amid the growing scandal regarding the firing of several of the Nation's U.S. Attorneys, we witnessed the importance of openness in our Government. We have also witnessed the importance in sunshine laws with the Justice Department's Inspector General's report on the FBI's abuse of National Security Letters. That was a report required by the sunshine provisions that Senator Specter, myself, and others in Congress worked hard to include in the PATRIOT Act reauthorization bill. Openness is a cornerstone of our democracy. FOIA lets us know what is happening. Whether it is human rights abuses in Iraq, Afghanistan, and Guantanamo Bay, environmental violations at home, public corruption, information about many of the important issues of our time has been obtained through FOIA. But FOIA is facing challenges like it never has before. During the past 6 years, the administration has allowed lax FOIA enforcement and a near obsession with Government secrecy to dangerously weaken FOIA and undercut the public's right to know. That is because currently Federal agencies operate under a 2001 directive from then Attorney General Ashcroft that reverses the presumption of compliance with FOIA requests that had been issued by the former Attorney General. The administration has sought to erode FOIA by including a broad FOIA waiver for critical infrastructure information in the charter for the Department of Homeland Security, the biggest roll back of FOIA in its 40-year history. The setbacks to FOIA are coupled with the expanding use of Government secrecy stamps to over classify Government information. Billions of dollars of taxpayers' money is spent every year to classify things that sometimes have been on Government web sites for months before they are classified. We have the unprecedented use of presidential signing statements and the state secrets privilege and so on. These plague FOIA. In fact, I was checking with the Federal Government, and I said, ``What is the oldest FOIA request that is pending and has not been answered?'' 1989. That was before the collapse of the Soviet Empire. Things have changed. I praised the President for issuing a directive last year to move forward for Government agencies to improve their FOIA services, but today, more than a year later, they are less apt to get answers than they were before. The Government Accountability Office found that Federal agencies had 43 a Representatives in Congress from the State of percent more FOIA requests pending and outstanding in 2006 than they had in 2002. As the number of FOIA requests continues to rise, the agencies are not keeping pace. OpenTheGovernment.org says the number of FOIA requests submitted annually has increased by more than 65,000 requests, but, of course, when you do not answer them, they are just pending and are carried forward. And then you have the exemptions under Section (b)(3) of FOIA that has allowed FOIA exemptions to be snuck into legislation, sometimes with no debate whatsoever, and passed. Then we have a new report by the National Security Archive stating that, 10 years after Congress passed the Electronic Freedom of Information Act--E-FOIA--which I co-authored in 1996, Federal agencies still do not comply with it. Earlier this week, Senator Cornyn and I reintroduced the OPEN Government Act. We drafted this bill after a long and thoughtful process of consultation with a whole lot of people. I appreciate the strong partnership that I have with Senator Cornyn on open government issues. The thing we both came to conclude is that the temptation to withhold information can be either in Democratic or Republican administrations. Neither of us knows who is going to be in the new administration not quite 2 years from now. But we do know, both of us, that if we put in strong FOIA legislation, they are going to have to answer questions, and we are all going to be better for it. After all, Government is there to serve all of us, not the other way around. And the only way we can know that is if they answer questions. [The prepared statement of Senator Leahy appears as a submission for the record.] Senator Specter? STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. I agree with your basic premise that transparency and openness is the very basis of a democracy, and the Freedom of Information Act, which was passed more than 40 years ago, could be a very major step forward in providing that transparency, providing it is followed or it is enforced. To see the statistics which have been published recently that, out of 149 Federal agencies, only 1 in 5 posts on its website all records which are required is very disturbing. And websites today are a principal, if not the principal way of transmitting that sort of information. I have noted the work which is done by the National Security Archives, talking to Ms. Fuchs for a few moments before we started here. To look at the name of the National Security Archives, you would think it was some high-powered Federal agency, and it is a nonprofit. But they know the questions to ask, and there is much of national security which is outdated or can be disclosed to the public safely. And as I said to Ms. Fuchs, she knows the questions to ask. And she needs help from a statute which can be enforced. I was Talking to Mr. Tom Curley of the Associated Press about the subject of investigative reporting. It has changed a lot in the past several decades. When I was district attorney of Philadelphia many years ago, there was very heavy investigative reporting by the Philadelphia Inquirer and the Philadelphia Bulletin. Today, there is no more Philadelphia Bulletin, as so many afternoon newspapers have ceased to exist. And the Inquirer has changed hands as a result of many cutbacks in staff, and investigative reporting is gone. So that the access to Federal records through the Freedom of Information Act is really a very, very important item. And I believe it has become even more so in the course of the past several weeks as we have seen the heavy intrusion into sources for newspaper reporters, with a parade of reporters taking the stand in a highly unusual fashion in the Libby trial. I hope that we will move ahead with the legislation which will provide on the Federal level a reporter's privilege. There is a split in the circuits. It is a very unclear, muddy situation. There should be an exception on national security cases, but I believe that before you put a reporter in jail, especially for a long period of time, like Judith Miller was for 85 days, there ought to be a very, very serious national security interest involved. And in that matter, what started out as the outing of a CIA agent, which is an important national security matter, that element was dropped early on. And then the leaker was discovered to be Richard Armitage, the Deputy Secretary of State. So it is a little hard to see why so many reporters were pursued with so much intensity, and especially leading to the incarceration of Ms. Miller for a very long period of time. So I think the alternative here of having some real action under the Freedom of Information Act is very, very important. In the 42 seconds I have left on a 5-minute opening, I want to commend Senator Leahy and Senator Cornyn for their leadership on this matter, on the legislation. I did not get through the pile of requests yesterday in time to be an original cosponsor, so I will be an un-original cosponsor. [Laughter.] Senator Specter. And add my name to that legislation today. Chairman Leahy. Without objection. Senator Specter. And, Mr. Chairman, I want to yield back my 14 seconds. Chairman Leahy. Thank you. Normally we would get right into this, but with Senator Cornyn as one of the two main sponsors of this, I do want to hear from him. Senator Specter. If I may say one more word, I am going to yield to my distinguished colleague, Senator Cornyn, who will take the lead on this side of the aisle. We are very heavily engaged in the U.S. Attorneys issue, and-- Chairman Leahy. I read about that. [Laughter.] Senator Specter. And with Senator Leahy occupied, I better go take care of some other Committee business. Thank you, Mr. Chairman. Chairman Leahy. Thank you. We have a few things on the agenda, but, Senator Cornyn? STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Thank you, Mr. Chairman. I appreciate your comments and your leadership on this important issue, and I am proud to join you in what I think will be very beneficial legislation, which will create greater transparency. Almost as importantly, this will create some procedures with real consequences for the handling of Freedom of Information requests. I would note Senator Leahy is one of the few members of this Committee who actually participated in the passage of Freedom of Information Act legislation. My experience and my passion for this issue really came from my service as Texas Attorney General, and I would just note that in that capacity I was responsible for enforcing our own State Sunshine Laws, our own State open government legislation. And, you know, I think the Federal Government can learn a lot from the States, and in this area in particular. And I am proud that Missy Cary, who was my right arm on so many of these open government issues, is going to be testifying today and perhaps providing some helpful information to Congress on how we might embrace some of the experience of the States in improving our transparency and the procedures by which we handle open government requests. I have a longer statement, which I would ask to be made part of the record. Chairman Leahy. Without objection. Senator Cornyn. Thank you. I will keep this short and sweet so we can hear from the witnesses. But I do want to quote from a portion of Ms. Cary's statement, which itself quotes the policy statement that introduces the Texas Public Information Act, because I think it so concisely and so accurately states the issue. It says, ``The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.'' To me, that very concisely states the issue, and I would just close by saying the entire legitimacy of our form of Government and self-determination is premised upon consent of the governed. We, the people, are in charge. The instruments, in the words of the Texas Public Information Act, the Government, do not tell us what is good for us. We tell the Government what we want. But the only way we can do that knowledgeably is to know what is going on. And with so much temptation to hide the ball--and we all understand that human nature is the same whether it is Republican or Democrat, the temptation is to trumpet your successes and to hide your failures, and we all understand why people do that. But it is important to recognize that the very legitimacy of our form of Government is premised upon consent of the governed. And the people cannot consent to what they do not know, and that is why this legislation and this hearing are so important. Thank you very much. [The prepared statement of Senator Cornyn appears as a submission for the record.] Chairman Leahy. Thank you. And, Senator Cornyn, Senator Specter is not coming back, if you are going to take the role of the senior Republican here, come on down. You may have difficulty getting re-elected in Texas if we all move down. I would ask the witnesses to please stand and raise your right hand. Do you solemnly swear that the testimony you are about to give before this Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Ms. Fuchs. I do. Ms. Haskell. I do. Mr. Curley. I do. Ms. Cary. I do. Senator Coburn. Mr. Chairman, might I have the privilege of just a few comments? Chairman Leahy. Of course. STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF OKLAHOMA Senator Coburn. I have another hearing I have to go to. You know, it is interesting that we have a letter in my office from somebody who has been trying to get information through FOIA for 18 years--18 years. In this past Congress, we passed the Accountability and Transparency Act, which is going to help. But one of the reasons there is a crisis of confidence in this country over the Government is because there is not transparency. Without transparency, accountability cannot be carried out. I hope to eventually become a cosponsor of this legislation. There are a couple of small areas in it that I have concerns with, but the more information the American public has, it builds confidence, and it also corrects errors. And it is something we ought to all be engaged in. The other thing I would caution my fellow Senators is just because we pass a law does not mean it is going to happen. You saw that evidenced yesterday on the floor vote. There is a law called the Improper Payments Act. It mandates every agency of the Government to do a review of where they are at risk and report to Congress. The Senate refused to force once agency to comply with that law yesterday, which means none of the other agencies have to comply with it either, since now we have voted that Homeland Security does not have to comply with it. So it is important for us to be realistic. We can pass all the laws we want, but unless Congress is going to put teeth into the laws with consequences, a FOIA change is not going to happen unless there is teeth behind it. So I thank the Chairman for having this hearing. I am very impressed and excited about the bill, and hopefully the small changes that we would like to see in it will allow us to cosponsor it. Chairman Leahy. Thank you. Thank you very much. Our first witness will be Meredith Fuchs. She is General Counsel for the National Security Archive. During the time she has been there, she supervised five governmentwide audits of Federal agency FOIA performances, including an audit released this week entitled ``File Not Found: Ten Years After E-FOIA, Most Agencies Are Delinquent.'' That gives some indication what the report says. Previously, she was a partner at the Washington, D.C., law firm of Wiley, Rein & Fielding and served as a law clerk to Hon. Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit and the Honorable Paul Friedman, U.S. District Court for the District of Columbia. She graduated from the London School of Economics and Political Science with a Bachelor's of Science degree and received her J.D. cum laude from the New York University Law School. Please go ahead. STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY ARCHIVE, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C. Ms. Fuchs. Chairman Leahy, Ranking Member Specter, and members of the Senate Committee on the Judiciary, I am pleased to appear before you to support efforts to improve the Freedom of Information Act. Senator Leahy already talked about the National Security Archive. We are a nonprofit research institute and leading user of the FOIA. I have attached to my written statement our E-FOIA report that was issued this week, and I would be happy to talk about it in questions. But I want to touch on a few other issues about why it is so important today for Congress to act. There are many ways to measure the role of the Freedom of Information Act in our Nation. One way is to look at the work of the news organization headed by Mr. Curley, who sits on this witness panel. The AP has reported remarkable news stories based on records released under FOIA, but this would not have been possible if the AP had not been willing to litigate in court to enforce its rights to information. This illustrates a significant problem. While the FOIA has been a powerful tool to advance honesty, integrity, and accountability in Government, there is still a culture of resistance to the law in many Federal agencies. Instead of viewing the public as the customer or part of the team, the handling of FOIA programs at some agencies suggests that the public is considered the enemy and any effort to obstruct or interfere with the meddlesome public will be tolerated. The FOIA is a unique law. There is no Federal, State, or local agency that enforces it. It depends on the public to make it work with the tools provided by Congress and an independent judiciary that is willing to remind agencies of their obligations. Based on their own reporting, we know agencies will not make FOIA a tool for timely education about Government activities. Each agency is required to submit an annual report that provides FOIA processing statistics as well as information on the agency's progress in achieving goals that they set themselves under FOIA improvement plans that were mandated by Executive Order 13392. The reports for fiscal year 2006 were due by February 1, 2007. As of this past Monday, the reports of only 8 out of 15 Federal departments and only 51 out of 75 Federal agencies were available. The Department of Justice has taken the lead on guiding agencies through the Executive order process. Its own annual report acknowledges that DOJ components have failed to meet 30 different goals set out in its FOIA improvement plan. Most striking to me is the Federal Bureau of Investigation section, which indicates that eight of the FBI's FOIA improvement goals were not met. For some of these goals, the FBI simply pushed back its deadlines by 1 year. For example, they reported that they had 60 vacancies in their FBI FOIA staff and set a goal to fill those vacancies by September 30, 2006. They did not do it, and instead the goal has now been moved to September 30, 2007. They set a goal to review and update their website by December 31, 2006, and as you can see from our E-FOIA report, it is much needed. They failed to do it, and instead moved the deadline to December 31, 2007. As you know, the FOIA requires a response to FOIA requests within 20 business days. Attached to my testimony is a compilation of the date ranges of pending FOIA requests at Federal agencies. The list was compiled from the agency annual reports referenced above. As you can see from the charts, at least seven departments have FOIA requests still pending that are more than 10 years old. An additional seven have requests that are more than 5 years old. And 28 more have requests that are more than a year old. And those are just the agencies whose reports are already available. At a hearing held in the House of Representatives on February 14, 2007, Melanie Pustay from the Department of Justice testified that agencies have made great progress handling their backlogs. While this certainly may be true, I want to give you an example of how they are eliminating backlogs. The story begins in 2001 when my organization, the National Security Archive, received a series of letters from the Department of the Treasury asking us whether we would continue to be interested in 31 individual FOIA requests that had been submitted throughout the mid-1990's. We indicated that we continue to be interested. Then in December 2005, President Bush issued Executive Order 13392, which specifically directed agencies to set goals designed to reduce or eliminate their backlogs. Here is what happened next. On June 14, 2006, the Department of Treasury set a goal to reduce its FOIA backlog by 10 percent by January 1, 2007. Starting in August 2006, we began to get letters from Treasury asking if we continued to be interested in our FOIA requests. The letters warned ``if we do not receive a reply...within 14 business days...we will close our files regarding this matter.'' On January 9th, I wrote a letter to Treasury in which I wrote: ``In many instances, we have received two or three letters [threatening to close] a particular FOIA request despite the fact that we already advised the Department of our continued interest...'' I concluded, ``I request that you do not close any Archive FOIA request or appeal without processing it.'' On February 23rd, Treasury sent another letter asking whether we continue to be interested in several additional old FOIA requests. In it, they acknowledged they received my letter. ``We received a letter from Meredith Fuchs of the National Security Archive...[but] we are in the process of reducing [Treasury's] significant backlog by communicating with requesters as to which of those requests have gone stale.'' We received those letters for the same 31 requests that we were asked to abandon in 2001. But that is not the punch line. The punch line is that some of the letters that we received since August also indicated that the original requests--which were submitted in the mid-1990's--have been destroyed, and they asked if we could send them new copies of our FOIA requests. Well, I wonder what the Department of Treasury FOIA program has done in the last 6 years after they first asked us to abandon our requests. And it certainly be interesting to know how many requests they are able to close in this manner under the Executive order's mandate to reduce backlogs. While this may be one way to eliminate backlogs, it cannot possibly be what Congress intended from FOIA. There are several provisions of the OPEN Government Act of 2007, introduced yesterday, that I think are critical for improving the functioning of FOIA. Most critical are the provisions that restore the catalyst theory for attorneys' fees awards and the provisions for better reporting. I detail the benefits of these and other provisions in my written testimony, and I am happy to respond to your questions. [The prepared statement of Ms. Fuchs appears as a submission for the record.] Chairman Leahy. Thank you very much. You should probably send them a copy of ``Catch-22'' in response to the requests. [Laughter.] Chairman Leahy. Sabina Haskell is the editor of the Brattleboro Reformer located in Brattleboro, Vermont, in Windham County, a very pretty part of our State. But she is also the President of the Vermont Press Association which is statewide; a founding member of the newly created Vermont Coalition for Open Government, a nonprofit consortium of organizations and individuals who want to enhance the performance of Vermont's right-to-know laws; has 10 years experience in Vermont journalism as a reporter, assignment editor, city editor, and editor of the Bennington Banner, Rutland Herald, and Brattleboro Reformer. Just pure coincidence we have someone from Vermont here. Ms. Haskell. Pure coincidence. [Laughter.] Chairman Leahy. Please go ahead, Ms. Haskell. STATEMENT OF SABINA HASKELL, EDITOR, BRATTLEBORO REFORMER, BRATTLEBORO, VERMONT Ms. Haskell. Good morning. First of all, thank you for inviting me to speak here today and to talk to you about the needed forms to the Freedom of Information Act. I am Sabina Haskell, and I am the editor of the Brattleboro Reformer, and we are a circulation 10,000 paper in southeastern Vermont. Even at that small size, we are the third largest newspaper in Vermont, and we are in good company. Eighty-five percent of the newspapers in the United States have circulations of 50,000 or less. The smaller newspapers generally pursue public records from the State and local officials, not the Federal sources, but our efforts to do so are a quagmire, and they are getting worse. As President of the Vermont Press Association, I can tell you that we are very frustrated with the de facto sentiment of secrecy that seems to be appearing at every level of government, and I think it begins at the top, where we are getting stripped of our constitutional rights. The fear-mongering that is exposed at the Federal level where questions and requests for information are viewed as suspect is being replayed time and time again at the State and local level. And I believe the effort to seal off the Federal Government is the primary reason that there are increased efforts to close the doors on transparent Government at the State and local level. The anecdotes I am going to share with you come from the dozen dailies and the four dozen non-dailies that are members of our association. If you multiply us in Vermont by all 50 States and 1,500 newspapers, you can understand the problem. The Freedom of Information Act is supposed to allow anybody, regardless of citizenship, whether they are a person or a business, to get a record without explanation or justification. We are supposed to get those records with little effort and in a timely manner. Only yesterday, we were told by the Vernon Fire Department that we could not have the records to their books. And, in fact, the fire chief took my reporter and said to him, ``If you publish this, I can assure you there is going to be retaliation.'' Chairman Leahy. I should note that the Vernon Fire Department is in a town where there is a nuclear reactor. Ms. Haskell. Yes, thank you, Senator. And we went ahead and we started the legal process, and we will be fighting this, as you can imagine. When we asked for a copy of the Brattleboro police chief's contract and a record of how many days he spent at the station, we were rebuffed. ``Why do you want that? What do you need that information for?'' We were told that we would get the contract when we gave them those answers, and we still do not have the contract. In northeastern Vermont, a little non-daily wanted to do a story about a new handicapped-accessible ramp outside of the town hall, built of pressure-treated lumber. And when they asked for an illustration, an architect's rendering to go with the illustration, they were told they could not have it because of homeland security reasons. In Winooski, the school board made a sweetheart deal with the superintendent and bought out his contract. The Burlington Free Press sued. It took them 18 months to win the case, and in that time, everybody's interest had gone on to something else, and the attorney said to the Free Press, ``You don't think we lost, do you?'' And in Jamaica, a town official asked for some documents about the sheriff's department. He wanted time sheets for her. He wanted time sheets for a deputy and for a detective. He wanted the records to show what expenses had been reimbursed, and he asked for records to show their whereabouts for 3 days. Two of them were dismissed under public records law, and the third she outright told a lie. And, in fact, she was convicted of embezzlement and resigned in disgrace, obviously. So he paid for that all by himself and had to do it, and he still lost. The amendments that you propose will go a long way to make the Freedom of Information Act stronger. We do not get the records we want within the allotted time, we have to chase them on our own dime, and enforcement is lax. And the amendments that you will do will help us at the local and the State level. Thank you. [The prepared statement of Ms. Haskell appears as a submission for the record.] Chairman Leahy. Thank you very much, and I apologize. Your first name is pronounced ``Sabina.'' Ms. Haskell. That is okay. Everybody does it wrong. Chairman Leahy. I had it wrong. Tom Curley, who is going to be our next witness, was named President and Chief Executive Officer of the Associated Press in June 2003. Mr. Curley has--and I say this as a compliment-- deepened the Associated Press' longstanding commitment to the people's right to know. He serves as one of the country's most aggressive advocates for open government. He previously served as President and publisher of USA Today. He holds a political science degree from Philadelphia's LaSalle University, a master's degree in business administration from Rochester Institute of Technology. And, Mr. Curley, thank you very much for coming here today. STATEMENT OF TOM CURLEY, PRESIDENT AND CHIEF EXECUTIVE OFFICER, THE ASSOCIATED PRESS, REPRESENTING THE SUNSHINE IN GOVERNMENT INITIATIVE, NEW YORK, NEW YORK Mr. Curley. Mr. Chairman, Senator Cornyn, thank you. Your efforts to strengthen the Freedom of Information Act show an absolutely courageous and timely commitment to the essence of our democratic values. FOIA was a promise to the people that, whatever they might want to know about their Government, they could find out and that the law would back them in all but a few kinds of highly sensitive or confidential matters. Well, the law does back them, but in too many cases, the Government does not back the law. I know you are aware that the FOIA backlog requests are rising every year. The failure is costly in ways the numbers cannot show. When agencies respond, as the law says they should, the information they reveal can provoke public response that improves Government operations, curbs waste and fraud, and even saves lives. When agencies do not respond, those opportunities are delayed or lost entirely. I can tell you about one such opportunity. In 2005, Government scientists tested 60 school lunchboxes for toxic lead. Afterward, the Consumer Product Safety Commission told the public it found, in these words, ``no instances of hazardous levels.'' The Associated Press filed a FOIA request and learned several boxes had more than 10 times the maximum acceptable level. You might have expected to read our report more than a year ago, when we filed our first expedited FOIA request. But our story was just published last month. It took us an entire year to get the documents. Apparently, the Commission still thinks the boxes are safe. They told us children do not use their lunchboxes in a way that exposes them to the lead found in the tests. Maybe they are right, but maybe they are not. We talked to expert researchers that told us the lead levels were cause for serious concern, and when the Food and Drug Administration saw the test results, they warned lunchbox manufacturers they could face penalties. One major store chain quietly pulled the boxes off its shelves nationwide. Evidently, reasonable people can disagree, and that is the point. Reasonable people can disagree, but only if they know. Why did it take a year for the Commission to respond to a relatively simple request that FOIA says it was supposed to answer in 20 working days? It took a year because FOIA imposes no penalty for ignoring deadlines. The OPEN Government Act legislation, introduced yesterday by Senators Leahy and Cornyn, includes real FOIA enforcement provisions. The Sunshine in Government Initiative urges enactment of the legislation this year. The predisposition to deny has grown steadily worse in recent years. Federal officials who used to provide information for the asking now say you have to file a time-consuming FOIA request. If the request is denied, administrative appeals are often no more than occasion for further broken deadlines and ritual denials. And the requester finally ends up with a choice between giving up or commencing litigation that can easily cost well into six figures. Even AP has to choose its fights carefully. Another problem with the law as it stands is that we can litigate a FOIA denial for years and still not get our legal fees reimbursed if an agency turns over the goods before a court actually orders it to do so. How many of your small business or private constituents just have to give up because they cannot afford to sue? There could easily be a third way. A strong FOIA ombudsman within the Federal Government could help requesters around some of the most unreasonable obstacles without forcing them to go to court. This is a legislative priority for our media coalition. By no means is the news from the FOIA front all bad. I can tell you FOIA success stories, too, which illustrate why FOIA is such a cornerstone of our democracy. Thanks to FOIA, AP last year was able to report for the first time the extent of deaths and injuries among private contract workers in Iraq. And FOIA requests were a crucial part of AP's reporting which showed that highly publicized Federal fines against companies that break the law are increasingly being written down afterwards, sometimes by more than 90 percent. It is a tribute to the professionalism and respect for the rule of law of so many agency FOIA officers that they respond correctly to thousands of requests each year. But their achievements are too often undermined by others who think obstructing information flow is a national policy. The Ashcroft memorandum advising agencies that the Justice Department was ready to back any plausible argument for denying a FOIA request continues to set the tone for access. When Government has trained itself to believe that the risks from openness are substantial while the risks from keeping secrets are negligible, you begin to get the kind of Government nobody wants--a Government that believes its job is to do the thinking for all of us. You get, for example, the Consumer Product Safety Commission that decides on its own, for all of us, that a little bit of toxic lead in a lunchbox is okay and the matter needs no further discussion. ``Further discussion'' is the essence of a free society. We need a strong and effective Freedom of Information Act to make sure that discussion flourishes. We are grateful for this opportunity to appear before you today. The Sunshine in Government Initiative wants to work with you to deliver the Open Government Initiative legislation this year. Thank you, Senators. [The prepared statement of Mr. Curley appears as a submission for the record.] Chairman Leahy. Thank you very much. Katherine Cary is an Assistant Attorney General with the Texas Office of the Attorney General. Like the coincidence of Ms. Haskell being from Vermont, we have the coincidence of Ms. Cary being from Texas. She served 6 years as Chief of the Open Records Division for that office. She studied at Hollins College in Roanoke, Virginia, received a B.A. from Texas A&M in 1987, and a J.D. degree at St. Mary's University in 1990. And as Senator Cornyn has pointed out, she was honored with the James Madison Award in 2003 by the Freedom of Information Foundation of Texas for her work to protect the public's right to know. And while this is not a normal thing we do because the transcript of this will someday be in the Cary archives, I know you have several members of your family here. Would you just mention their names so they could be also in the record? STATEMENT OF KATHERINE CARY, GENERAL COUNSEL, TEXAS OFFICE OF THE ATTORNEY GENERAL, AUSTIN, TEXAS Ms. Cary. Thank you very much, Senator Leahy. I appreciate that. This is my father, Alan Minter; my mother, Patricia Minter; my son, Everett Cary, who helped me with my remarks today; and my daughter, Katie Cary. My husband is in court today in Texas. He is also a lawyer, and so he would send his greetings to the Senate via a Texas connection. Thank you for the opportunity to testify today. I appreciate it. As Senator Cornyn said, most people who know me well call me ``Missy.'' My real name is Katherine Cary. I am the General Counsel of the Texas Attorney General's Office, and I do appreciate the high honor of appearing before you today. First, on behalf of Attorney General Greg Abbott, let me convey his strong support for the bipartisan OPEN Government Act of 2007. Attorney General Abbott, like Senator Cornyn before him, has a strong record on open government and believes that as stewards of the public trust, Government officials have a duty of transparency when governing. They both often quote Supreme Court Justice Louis D. Brandeis, who said, ``Sunshine is the best disinfectant.'' As the leading open government expert in the Office of the Attorney General, I work daily to apply, educate, and enforce one of the most proficient open government laws in the United States. As I have said before to this Committee, unfettered access to government is a principled--and an achievable-- reality. But it takes the right mix--the right mix of legal authority and the right mix of vigilance. Texas is a big State. We have more than 2,500 governmental bodies that span 268,801 square miles. From El Paso to the Panhandle and from Texarkana to Brownsville, the Texas Public Information Act ensures that information is placed into the public's hands every day without dispute. Under the Texas Public Information Act, just like the Federal Freedom of Information Act, information is supposed to be promptly released. Texas law defines this to mean as soon as possible, within a reasonable time, without delay. Any governmental body that wants to withhold information from the public must, within 10 business days, seek a ruling from the Texas Attorney General's Office. In Texas, a governmental body that fails to take that simple procedural step to keep information closed waives any required exceptions to disclosure unless the information is made confidential by law. It is this waiver provision that provides the meaningful consequences that prevent Government from benefiting from its own inaction. Under the Texas Public Information Act, if an entity disregards the law and fails to invoke the provisions that specifically protect certain categories from disclosure, it has forfeited its rights to use those exceptions. The OPEN Government Act would institute a very similar waiver provision. The Texas experience shows that striking this balance is fair and practical. Simply stated, it works. In 1999, with Senator Cornyn as Attorney General, governmental bodies in Texas sought roughly 4,000 rulings from the Texas Attorney General. Last year, we issued about 15,000 such rulings. This is staggering when you consider that these rulings are a mere fraction of the number of requests for information that are promptly fulfilled every single day. But what I have found is that education is vital. A noncompliance with open government laws often results from a misunderstanding of what the law requires rather than a true malicious intent. For this reason, our office asked the Texas Legislature to require mandatory open government training for public officials in Texas. They agreed, requiring a course of training that must either be done by or approved by the Attorney General's Office. We offer the training by free video or DVD that is available on the Attorney General's Office website. To date, our office has issued completed training certificates to almost 40,000 people in Texas. In addition to open government training, our office provides an open government handbook, similar to the Federal handbook--much smaller but similar--an extensive open government website, and an open government hotline that is toll-free staffed by attorneys who help clarify the law and make open government information readily available to any caller. This service includes updating callers on where a request for ruling is in the process. That probably sounds a little familiar to the OPEN Government Act that you proposed. It answers about 10,000 calls a year. This provides citizens with customer service, attention, and access that they deserve from their public servants. My office also handles citizen complaints. The Open Records Division's attorneys attempt, with a 99-percent success rate, to mediate compliance with open records requirements. The OPEN Government Act would create a similar system that Texas has already demonstrated successfully. Resolving matters efficiently certainly underscores the usefulness of a dispute resolution function. We have learned that it only requires a few legal actions by the Attorney General for word to get out that we are serious about enforcing compliance. We have enforced compliance in several instances sounding very similar to those that were mentioned by Ms. Haskell from Vermont. It appears that the proposed Special Counsel will be in a comparable position to achieve positive results on the Federal level. Finally, Texas has a legal presumption that all information collected, assembled, or maintained by or for a governmental body by a third party is open to the public. Records kept by third parties on behalf of Texas governmental bodies remain accessible by request to the governmental body, as long as the governmental body enjoys a ``right of access'' to that information. Moreover, Texas law does not allow the Government to contract away agency access to public records. The OPEN Government Act would appropriately extend the availability of Federal Government records to non-governmental third parties. As Senator Cornyn said, the policy statement that introduces the Texas Public Information Act I believe is on point. I think it bears repeating. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist upon remaining informed so that they may retain control over the instruments they have created. The United States Supreme Court has held that the Freedom of Information Act's ideals are analogous, stating: The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption, and to hold the Governors accountable to the governed. Thank you for the privilege of appearing before you today. Thank you for recognizing my family, and thank you for helping to ensure that my children, who sit behind me, will live in a society where they are the Governors of the government. Thank you. [The prepared statement of Ms. Cary appears as a submission for the record.] Chairman Leahy. Thank you, Ms. Cary. And I kind of whispered to Senator Cornyn, as I listened to the description of your Freedom of Information Act, no wonder he is so passionate about this. Let me also ask, does anybody else have family members here? I do not mean to--okay. Ms. Fuchs. My husband is here. Chairman Leahy. There you go. Let me start with you. The National Security Archive is one of the most active users of FOIA. So I am interested in your views about the Bush administration's efforts to address the problems of lax FOIA enforcement, and the President did issue Executive Order 13392 asking agencies to submit FOIA improvement plans by June of 2006. Both Senator Cornyn and I applauded that effort. We find now, more than a year after the President's Executive order, that Americans who seek information from FOIA, unless I am misinformed, remain less likely to obtain it. The Coalition of Journalists for Open Government has found that the percentage of FOIA requesters obtain at least some of the information that they request from the Government fell by 31 percent last year. Do you think that the President's Executive order alone is enough to reduce the almost 200,000 backlog FOIA requests? Ms. Fuchs. Thank you for the question. I believe that Executive Order 13392 was a useful exercise, and it did get agencies to look at their FOIA programs, and that was valuable. And for the agencies that took it seriously, they have good ideas and good goals that they would like to make. They are somewhat hampered by lack of leadership at some of those agencies and by lack of resources, but they are making an effort. Some agencies, however, we found the Executive Order improvements plans showed, had made no effort in the past. For example, the VA had never even updated its regulations after the 1996 E-FOIA amendments. So those things were shown by that. But I think that without Congress acting, the agencies are not on their own going to accomplish it. Chairman Leahy. You also have, do you not, the Executive order could be changed by the next Executive, whereas the legislation is the legislation. Ms. Fuchs. Right. And the legislation has strong teeth in it that will hopefully change the culture at agencies. Chairman Leahy. That is also why we have been trying to do this before a new President takes office, so that it is clear that it applies. Ms. Haskell, one, I am delighted to have somebody from one of Vermont's best newspapers here. Ms. Haskell. Oh. Chairman Leahy. I mean that. In your view, what is the biggest hurdle that reporters encounter when they try to use the Federal FOIA law to get information? Ms. Haskell. Our biggest hurdles are that people do not know whether or not they are allowed to give documents. Chairman Leahy. You mean the people being requested do not know whether they are allowed. Ms. Haskell. That is right. And we started the law, and Vermont started out with 36 exemptions. We have 207 and counting. They do not know what to do, and so they immediately say no before they will say yes, and then you have to convince them that--it is like you are guilty until you are proven innocent. The other problem is that you cannot--there is no enforcement to the law at all. The Burlington Free Press spent about $12,000 trying to get the hazing documents. Never saw a dime of it. Chairman Leahy. That is our State's largest newspaper, I should note. Ms. Haskell. Right. There was, you know, a town board in Barre that was fined for illegally holding an open meeting. They did not get fined, nor did they get the misdemeanor charges. Chairman Leahy. Do you think that if we passed the OPEN Government Act, some of the things we have here, do you think that that might help in Vermont? Has it been your experience that sometimes Vermont will follow these Federal laws or model after these Federal laws? Ms. Haskell. That is my experience, and sometimes we lead the way, too. But-- Chairman Leahy. I know that. Ms. Haskell. But, yes, I think that the--it has to come from the top that, you know, we are an open government, because everybody sees it being hidden from the top on down. Chairman Leahy. And in that question--and I assure you I am not trying to--I try never to tell the Vermont Legislature in the vain hope that they would return the compliment. [Laughter.] Chairman Leahy. They usually do not. Mr. Curley, you represent the Sunshine in Government Initiative. We all know some of the things that FOIA has found, contaminated ground turkey in plants in Minnesota, health risks with the birth control patch, unreported asbestos-related illnesses and so on. Have members of the Sunshine in Government Coalition experienced a delay in reporting important information relating to public health and safety because of excessive delays in processing FOIA requests? I am talking about public health and safety now, not malfeasance in Government. Public health and safety. Mr. Curley. Absolutely, Mr. Chairman. I think the moist dramatic example was a story that was published about February 1st. AP, USA Today, and a number of other organizations had filed FOIA requests and found out that there were 122 levees across the country, from Maryland to California, that could be overwhelmed by heavy flooding. A story that hit the AP wire yesterday was that the pumps in New Orleans that had been put in trying to make the deadline before the hurricane season last summer were defective and many have to be overhauled or replaced. So this is an area of ongoing and, I think, incredible public interest concern. Chairman Leahy. My time is up, and if you will allow an editorial comment, you should not have had to drag that out. Our Government should have been trumpeting it and saying, ``Look, we have got a problem.'' I mean, if Katrina taught us anything, it is that. Senator Cornyn? Senator Cornyn. Thank you, Mr. Chairman. I want to start with the proposition, Ms. Cary, that you talked about in terms of elected officials, Government officials, perhaps not being well informed of what their responsibilities are under the law, and then move down to Ms. Fuchs to talk about attorneys' fees and the importance of that provision in this legislation. But it strikes me, Ms. Cary, that, you know, most of the so-called Government officials are citizens who for a period of time may offer themselves to serve in public office, whether a school board or city council or something like that. They are not necessarily professional politicians, nor are they lawyers, necessarily, and aware of what their obligations are under the law. But can you expound just briefly on why you believe it is so important that, whatever we do, we provide the means to educate agency officials about their responsibilities and how that can avoid some of the problems? Ms. Cary. Of course, Senator. What I found after I got started working in this area is really that most governmental entities are made up of just regular people. Like you said, they are volunteer school board members; they are sometimes elected sheriffs. But there are a lot of public officials, and most often the law is complicated. As Ms. Haskell says, the same in Texas, every year the Texas Public Information Act when the legislature is in session is amended--new requirements, requirements change. And they need a go-to source. They need to know what they can go to and where they can go to find accurate advice about what is open and what is closed, because the human response is always to say it is closed, because there are criminal penalties, at least in the Texas Public Information Act, for releasing information that is confidential by law, for example, information that is private or information that is related to security. And so there are, you know, important balancing acts that must go on, but most of the time, public officials just simply do not know what the law is that day and, exactly, there are some malicious public officials in the world. But that is the clear minority. And so what we have set out to try to do is to put out an excellent website so that people can read at their own leisure what the law is and what the requirements are, stated from the source, the Attorney General's Office. We have this training video which gives the basics so that even if they are out to hire local counsel or legal counsel, they understand the basic requirements and know whether the advice that they are getting is accurate at some basic level. We also find that the hotline is an excellent resource. Senator Cornyn. Let me ask Mr. Curley about that issue. Mr. Curley, this bill attempts to introduce informal dispute resolution mechanisms that would allow an expeditious resolution of the kind of conflict Ms. Cary mentioned where perhaps there are privacy laws that would prohibit the release of certain information, and so the custodian of the records is in some doubt. Do you think the working press would find it useful to have a person or a number they could call and go to to have an expeditious resolution of those disputes and perhaps get the information in a more timely way? Mr. Curley. Senator, it would be helpful, but I think your point is right on target, that this really has to work for the people. And the press has to be a part of the people. When the press gets in trouble--and it deserves to get in trouble when it tries to do things on its own and separate itself from the public's right and the public's right to know. The underlying provisions here, to put in an ombudsman would benefit the people. And when you look at third-party requests, only 6 percent of the third-party requests are by the press. A third are by citizens or citizens groups about public interest matters. So this whole area is about helping in what is increasingly becoming a sophisticated information-gathering operation, getting people some relief, and also, if we can put in some tracking provisions. You know, if Brown can do it, Red, White, and Blue should, too. Senator Cornyn. Well said. Your point about this not being legislation ``for the press'' I think is an important one. This is for all of us as American citizens. This is about our right to know, and I think we need to recognize the transformation in both the technology and information gathering and in publication. I remember, for example, the story in Thomas Friedman's book, ``The World Is Flat,'' about the blogger who confronts Bob Schieffer outside of a morning news show and where he has been interviewed and says, ``Can I ask you a few questions?'' He asks him about national or international matters. He says, ``May I take your picture?'' Pulls out his telephone camera, takes his picture, and goes back and uploads that on his website. I mean, I think that individual needs to get access to information, too, as do individual citizens. Finally--and my time is running out--has run out, but let me ask you, Ms. Fuchs, this issue of attorneys' fees, I suspect we are going to get significant pushback on this issue of recovery of attorneys' fees. But I just want to ask whether you are familiar with the example of the Pacific Fisheries versus IRS case, a FOIA request in 2004 to the IRS. The requester had to file a lawsuit, and then months later, the IRS responds to the lawsuit with a claim that all responsive documents are exempt. But then a year later, on the eve of the dispositive motion deadline, the IRS produced 313 pages of responsive documents. Under the prevailing attorneys' fees decisions by the United States Supreme Court, the Buchanan case, they would not be entitled to any attorneys' fees even though they had gone through litigation to get something that they should have gotten in the first place. Could you just briefly address the importance of that provision? Ms. Fuchs. Right. Well, what is particularly wonderful or interesting about that case is that it shows the Court itself was so irritated at how the Government handled the FOIA request that it found that the Government's delay was censurable and possibly subject to sanctions. And what happened in that case was the Court ordered the Government to show cause why it should not be sanctioned, and the parties ultimately settled and they paid the attorneys' fees. What is unique about FOIA cases and what this example shows is that they are easy to moot out, because what we are asking for is documents. And so we can litigate, we can file summary judgment motions, as long as the Government gives us the documents before the Court issues its order. Then the case is mooted out, and we have no recourse. And, frankly, it is very expensive to bring this litigation, I mean, at least $10,000, $15,000 for an individual. I am sure the AP's cases, which have resulted in really remarkable releases, have cost even more than that. Senator Cornyn. Thank you. Chairman Leahy. Thank you very much. Senator Feingold? STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator Feingold. Thank you, Chairman Leahy, for holding this hearing on an issue of vital importance. The Freedom of Information Act is an essential piece of legislation for our democracy. It enables researchers, journalists and interested citizens to obtain executive branch documents at a reasonable cost. At the same time, the Act protects certain documents from disclosure to shield national security, privacy, trade secrets and other privileges. A government that permits citizens access to records that document its day-to-day decisions is one that fulfills the promise of democracy in a particularly significant way. Congress should regularly review and update how the law that makes such access possible is working. When the executive branch knows its actions are subject to public scrutiny, it has an added incentive to act in the public interest. And I fear that this important value of government openness has taken a back seat in the years since the terrible events of September 11th. Protecting our citizens from terrorist attacks must be the top priority of government. But we can do that while still showing the proper respect for the public's right to know. Unfortunately, that has not been this administration's attitude. From the excessive secrecy surrounding the post-9/11 detainees to the lack of information about implementation of the controversial provisions of the USA PATRIOT Act, to instructions to Federal agencies issued by former Attorney General Ashcroft that tightened the standards for granting a FOIA request, this administration has too often tried to operate behind a veil of secrecy. That is why I intend to cosponsor this bill that Senators Leahy and Cornyn introduced yesterday to strengthen the Freedom of Information Act. Thank you again, Mr. Chairman, for being such a tremendous leader on this issue. I am proud to join with you in working to empower individual citizens to obtain the information they need to hold their Government accountable. In so doing, we can help ensure that our democracy remains strong and vibrant. And I also want to talk a little bit about the attorneys' fees that Senator Cornyn mentioned, but let me first thank him for his work on this bill, and in particular, for his comments about the attorneys' fees. I have proposed legislation to correct the problem across the whole Government because the attorneys' fees statutes are affected by the decision that you discussed, and I would very much like to work with the Senator from Texas on this issue if he agrees this is a problem. I want to continue to make a record here on this attorneys' fees issue. Mr. Curley, you mentioned in your testimony the problem of not being able to have legal fees reimbursed in the FOIA litigation because an agency will comply with a FOIA request right before the court orders it to do so, as was just mentioned. As I understand it, this problem stems from the fact that under a Supreme Court interpretation of a fee-shifting provision similar to the one contained in the FOIA, you can only get the attorneys' fees if there is a final court order or settlement of your case, so that even if the Government has resisted providing the requested documents, forced you to file suit, dragged out the litigation for quite some time at significant expense in terms of attorneys' fees and other costs, it can avoid paying attorneys' fees by releasing the documents at the last minute before the court actually rules. Sir, could you provide examples of an agency engaging in these tactics to avoid reimbursing attorneys' fees? Mr. Curley. Well, the case that has gotten the most attention is our efforts to get information about what is taking place at Guantanamo Bay. We have spent well into the six figures. We have won every one of those rulings. In the case that is coming down, the Department of Defense is willing to give us $11,000. Obviously, we are going to go back and have to sue them again to get a higher and fairer number. Now, we have some resources that other do not, but if every situation comes down is a threat of six figures, it just is not right. The McClatchy News Service, then Knight Ridder, spent six figures' worth of money chasing information on the Veterans Administration. So if you get into anything that is at all complicated, Senator, it clearly is a six-figure proposition. Senator Feingold. Is this practice common enough to actually deter attorneys from taking these cases? And what is the overall effect on those attorneys who are bringing these cases and on the general availability of legal representation to challenge FOIA delays or denials? Mr. Curley. Well, as you know, it is a tough time for media, and you can only have so many battles these days. There are a lot of cutbacks and a lot of revenue going in different directions. So every news organization has to figure out how much it is willing to spend in this area. Right now everyone, of course, is still willing to stand up on the major issues and make a case and write the checks. There are a lot of great representatives out there trying to help us, legally and otherwise, in these areas. But I do fear, given the funding issues facing the media, where we are going. It is increasingly harder and more expensive to do good investigative reporting. Senator Specter was right. The growth of Government has been exponential, and media have not kept pace with the ability to provide oversight. Senator Feingold. Ms. Fuchs, did you want to add anything to this issue? Ms. Fuchs. Well, you had asked about examples of agencies changing their minds right before having a court do anything. We have a case involving our news media status at the National Security Archive where in 1990 the D.C. Circuit ruled that we are representative of the news media. In a case against the CIA, the district court adopted that same ruling. For 15 years, the CIA and other agencies treated us as representatives of the news media. Suddenly, in October 2005, the CIA stopped doing that and refused to treat us as representatives of the news media, taking the position that they can determine what is newsworthy--not the requester but the CIA. Imagine that. So I met with them. I laid out all my legal arguments. Nothing changed. Finally, I filed a lawsuit. Nothing changed. Finally, we filed for summary judgment. That night, the night after we filed for summary judgment, at 6:30 on a Friday, I got a letter from the CIA changing their mind. Suddenly we are representatives of the news media for those 42 requests. Now, that is an example of a situation where--I mean, their next argument was our whole case is moot, and I am sure after that they are going to say no attorneys' fees. I had to sue to get them to agree to that. Senator Feingold. Thank you very much. Thank you, Mr. Chairman. Chairman Leahy. Thank you very much. Senator Cardin? Senator Cardin. Senator Leahy and Senator Cornyn, thank you very much for your leadership on this issue. We appreciate the fact that we have legislation before us that I think is very important for us to move forward on the FOIA laws. Let me just mention one area that may not be apparent to why it is important that we modernize our FOIA laws. I have the opportunity to chair the Senate Helsinki Commission, and we use that as an opportunity to raise internationally issues that are important on human rights, security, and economics and the environment. Many times, the United States delegation is requesting information from other countries to try to understand what they are doing in different areas, documents, et cetera. And on more than one occasion it has come back to me that, well, you know, in the United States you would have a hard time getting that information. And we are not in a strong position internationally for openness and transparency in Government because of the way that we have operated our request for information. I am interested as to whether there are other countries that could give us a better model as to how FOIA requests should be handled or how they use technology or how they use public information to make it easier, that perhaps we could pattern our reforms based upon the experiences of some of our allied countries. Are there some countries that are better than others in getting information to you? Ms. Fuchs. If I may respond, I guess I would say that I think the United States is a remarkable example of a country where things are quite open, and that is part of the reason that our country is such a strong democracy. And, in fact, in our experience, because the United States gathers so much information, we have managed at the National Security Archive to use records we have obtained from U.S. agencies to help advance human rights causes abroad as well. Having said that, our law is 40 years old, and there are some problems with it. In some countries, there actually are penalties for delay. In fact, in India, the civil servant who does not respond within the time period is fined six rupees, or something like that. So there are penalties in other countries. And another example of something that we could look at as a model from other countries is Mexico where they have an agency which acts sort of as an ombudsman--it is an information commissioner--and which has been really effective because it has a budget to do that work. It posts its decisions online so people can see them. And having a strong agency like that to serve the function of the ombudsman would be something that would be outstanding. Ms. Cary. Senator, if I could respond, I had the opportunity to go to Mexico several times and assist them with the formation of that law and was very involved in the formation of the committee. I enjoyed talking to the citizens of Mexico about looking at their different laws. They talked to many different governmental entities. Interestingly, they hold the United States and different States in the United States up as a good example. But they formulated this very interesting and intriguing idea, which is, instead of just one ombudsman, they actually have a governmental committee--since they have concerns about the honesty of their core system, is how it was explained by Mexicans to me--that they have great faith in and that they do a lot of education, they try to do a lot of things on the Internet, and they try to put a lot of faith in this sort of free resources, which is this Committee that will mediate disputes and really dive into the issues. And so I think it is a really neat system, and I think the ombudsman that is proposed in this bill also could create an office that would be very similar, work in a similar manner, to really provide up-front assistance. It is hard to get your request answered in a vacuum, and so if particular requests that are precise can be mediated with the players, you know, on-site in real time, I think that makes all the difference in the world. Senator Cardin. It is clear to me that we could use technology much more effectively, the agencies could use technology much more effectively than they are doing, and your survey points that out pretty clearly. I do not want to let this opportunity pass without you commenting, if you want, on the branch of Government that we serve in, the Congressional branch, as to whether there is need for change in the way that we make information available. Now, both the House and Senate have passed legislation for more transparency generally, but I do believe that we should set examples, the legislative branch of Government, and we should be subject to the same types of standards. This is your opportunity. Mr. Curley. Senator, that is a wonderful, wonderful opportunity. FOIA does not apply to the Congress of the United States, but beyond that, let me say thank God for the Hill. Obviously, we get a lot of stories up here. Senator Cardin. I will pass that on to them. Ms. Fuchs. If I may add, I mean, one thing that I think that Congress certainly could look at is Congressional Research Service reports, which are not publicly available, although, in fact, many are made available to the public. But they contain a wealth of interesting information and analysis that I think members of the public do find interesting. Senator Cardin. Thank you, Mr. Chairman. Chairman Leahy. Thank you very much. Senator Cornyn? Senator Cornyn. Thank you, Mr. Chairman. I just want to explore some of the comments, and you will forgive me, Ms. Haskell or Ms. Fuchs. I cannot remember which one of you made this characterization, but please jump right in, that we not treat the public as the enemy but, rather, as the customer. I thought that was helpful because I do believe that we must have a culture change in Washington about how we regard the American people. And let me just give you one example, and I think, Mr. Curley, you alluded to this a little bit. If I am not mistaken, a huge number of the open government or the FOIA requests being made of Federal agencies consist of veterans requesting their own record from the Veterans Administration, which just strikes me as very odd. I mean, I do not understand how an individual cannot call, write, fax, e- mail a Government agency and say, ``I would like my own record,'' rather than have to submit a FOIA request like a third-party requester would. Do you have any comments or any observations about that, Mr. Curley? And then, Ms. Fuchs and Ms. Haskell, I would be interested in your thoughts. Ms. Fuchs. I would be happy to start off. Senator, I think that what you are saying about the public being customer is a very, very apt observation. Senator Leahy wrote an article that was published in the Administrative Law Review in 1997 which talked about the remarkable information resource that has been created by the U.S. Government, paid for at taxpayer expense. With respect to something like the VA, what happens is Privacy Act requests, requests by someone for their own information, have been counted now as FOIA requests. The problem with that is that information does not have to be reviewed. It is released. It is their own information. For example, when my father passed away, I asked for his military discharge records. I submitted a FOIA request. I got his military discharge records. We should be able to do that without it have anything to do with the FOIA system. The way it works now, all of the data for Privacy Act and FOIA requests are aggregated together. It makes it difficult to really examine what is happening with the FOIA system. Your legislation, I believe, includes a provision that would disaggregate those statistics, and if that is the case, I think it would be very helpful for helping the Congress be in a position to focus on FOIA and let the Privacy Act requests function on their own smoothly. Senator Cornyn. There is a Statement of Administration Policy on H.R. 1309, which is not our bill, but it is a House bill, the Freedom of Information Act Amendments of 2007. I just want to give you an opportunityto respond--maybe, Mr. Curley, you would be the appropriate one for me to ask--but the administration says it would be premature and counterproductive to the goals of increasing timeliness or improving customer service to amend FOIA before agencies have been given a sufficient time to implement the FOIA improvements that the President directed them to develop, put in place, monitor, and report during fiscal year 2006 and 2007. Do you agree with that, or do you disagree? Mr. Curley. Strenuously disagree, as you might imagine. We are all pleased that the President recognized the importance of freedom of information, that there was at least an acknowledgment of this area as an important cornerstone of the efforts to keep Government credible and open. But there was no teeth, and it was an Executive order. As Senator Leahy says, they can come and go. But the underlying trend is the trend, and the trend is quite ugly. The E-FOIA is less than 10 percent effective. The regular FOIA are seeing increasing delays. Buck passing is Washington agencies' best game, and we are seeing people become more and more sophisticated at it as time goes on. There is no provision to enforce FOIA right now. That is the problem. The new provisions in the legislation that you and Senator Leahy proposed give some incentives for the agencies to respond to FOIA in a more timely way. It is night and day better and necessary. Senator Cornyn. I know Senator Leahy has indicated we have a roll call vote that started. Let me just ask this last question for my part. Mr. Curley, this SAP, Statement of Administration Policy, says, ``The administration strongly opposes commencing the 20- day time limit for processing FOIA requests on the date that the request is `first received by the agency' and preventing the collection of search fees if the timeline is not met.'' The concern, I guess, is if a citizen submits a FOIA request and they do not get it in the right box or to the right agency, the administration wants to wait until it gets to the right place. Do you have a view about that? Mr. Curley. If we give anybody any more excuse or reason for delay, you are going to see that the request will take 2 years, not 1 year. I think what we have to do is face the facts. They are not responding properly. They need to put in place systems that work. There are places in this town where you can get effective response. You get people with the right attitude working with the public from the get-go. But in too many places, it is part of a larger game to delay. Senator Cornyn. Thank you very much. Thank you, Mr. Chairman. Chairman Leahy. I see the 5-minute light is going on, and this is a cloture vote. So, Ms. Fuchs, I am going to ask you to elaborate for the record on this. But is it your position that the Federal agencies are not complying with E-FOIA? Ms. Fuchs. Oh, it is absolutely my position after we looked at 149 websites from agencies and components that they are not complying. Only one in five have required records, and that means the records that show what their policies and positions are. Chairman Leahy. Please, if you want to elaborate on that, because obviously more and more people go online today, and this would be the best thing if it was working. Ms. Fuchs. Well, and especially-- Chairman Leahy. And, Mr. Curley, would it be your position that an ombudsman, an effective ombudsman as an alternative to litigation might be helpful? Mr. Curley. Absolutely. Chairman Leahy. And, Mr. Curley, about a year ago during Sunshine Week, I wrote an op-ed piece--I do not know if you had a chance to read it or not--on FOIA. Would you agree or disagree with a conclusion I reached that in the last 6 years it has been more and more difficult to get information under FOIA? Mr. Curley. Absolutely, and there are many facts to support that, sir. Chairman Leahy. Thank you. I have been asked to give you a copy of a book written by a former AP reporter--I will not elaborate further on it, but you may want to glance at it--from Vermont. If you want to add a book review for the record, feel free. Mr. Curley. All news is local and understood. Chairman Leahy. Well, you know, it is especially important in Vermont where the Associated Press--not only in Vermont, but in many States--has become the overriding wire service. And we have to rely on you. But I will close with this, and I have said it over and over again. We Americans are not here to serve the Government. It is the other way around. The Government is here to serve us. And Government, no matter what administration, will always tell you everything they are doing that they are proud of. I want to make sure we know those things where they make mistakes so that we can correct them--not to play ``gotcha,'' but just so we can correct them. And I think FOIA can be one of the greatest tools Americans have, but it can be awful if we do not use it. So, with that, we will stand in recess, and, again, I thank the Senator from Texas for all his help. 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