Cornyn Takes Up FOIA Fight

Posted October 20, 2004 at 6:36pm

Nearly unnoticed recently amid proposals to reorganize committee oversight of the intelligence agencies was a provision to move sole jurisdiction of government-information laws to the Governmental Affairs Committee.

But the junior Senator from Texas wanted none of it. For decades the Judiciary Committee had concurrent jurisdiction over such laws as the Freedom of Information Act and the Privacy Act. And Sen. John Cornyn (R) wanted it to remain that way.

So along with a colleague on Judiciary, ranking member Patrick Leahy (D-Vt.), Cornyn worked to retain the panel’s jurisdiction — and succeeded.

Given that Judiciary hasn’t held an oversight hearing on FOIA in more than 12 years, and Governmental Affairs hasn’t done so since 1980, oversight of the nation’s information laws wouldn’t seem a hot issue.

But Cornyn’s efforts were anchored in grander intentions for the statute itself. At the beginning of the 109th Congress, Cornyn plans to introduce legislation that would put access to federal information more on par with Texas’ open government laws, which are widely regarded as some of the nation’s strongest.

Cornyn is hardly trailblazing in his attempts to make government information more accessible. House Government Reform ranking member Henry Waxman (D-Calif.) recently introduced the Restore Open Government Act, with nine co-sponsors. That group, however, is comprised of progressive Democrats, who have historically shown more interest in promoting open-government laws than their Republican counterparts.

Cornyn, on the other hand, is as conservative as they are liberal.

And he’s making this overture with a Republican administration that open-government observers deem to be one of the most secretive in history.

If President Bush is re-elected, Cornyn’s desire to expand FOIA could set up a fight over public access with the former Texas governor, again. In his capacity as attorney general in May 2002, Cornyn ruled that Bush’s gubernatorial papers were subject to the state’s Public Information Act. The National Archives, which had custody over the papers because Bush had sent them to his father’s presidential library, subsequently claimed it did not have the staff to comply with Texas’ 10-day requirement for providing documents.

“There aren’t too many people as far as Republicans that we have ever worked with promoting access to government records,” said Scott Amey, general counsel to the Project on Government Oversight.

“He has his staff doing their homework,” Amey added. “He is making his rounds trying to talk to everyone he can possible talk to in Washington.”

Cornyn said his passion for freedom of information goes back to his tenure as Texas attorney general, and as a judge before that.

“My interest in it really goes back to basics — my philosophy of government and why I am proud to call myself a conservative,” he said in an interview. “That is because all legitimate government authority flows from the consent of the governed, and the governed can’t consent if they don’t know what is going on.

“One of the ironies is that the conservatives, of which I am proud to be one, are not generally thought to be good on this issue. I, for one, have never understood why,” Cornyn added. “It just shows how sometimes people fall into bad habits without really thinking about the consequences of it.”

He also said that “if we are really for limiting government,” then the federal bureaucracy must provide access to the vast troves of information it holds, because the information doesn’t really belong to the government anyway.

As attorney general, Cornyn oversaw, and in many cases enforced, Texas’ broad open-government laws. He was awarded the James Madison award from the Texas Freedom of Information Foundation for his efforts to make state records accessible to residents.

“Washington is far different from Austin,” Cornyn acknowledged. Nonetheless, he would like federal FOIA laws to begin with the underlying assumption used in Texas: that a citizen is presumed to have a right to the information unless the government can prove that releasing it would not be in the public interest.

In Texas, Cornyn said, “we have a statutory presumption in favor of disclosure. The framework should not put such a heavy burden on the person requesting the document.”

Agencies in the Lone Star State have to promptly produce requested documents or provide a reason why they cannot within 10 days. If an agency claims the materials are exempt from disclosure, the attorney general’s office must rule on that determination.

If the AG sides with the requester, the government must promptly produce the materials or has 30-days to protest the office’s ruling in court. Otherwise, the AG’s office could, and during Cornyn’s tenure occasionally did, sue the agency to provide the documents. If an agency withholds information that the attorney general’s office deems excepted, the AG then defends that decision in court. (Cornyn emphasized that barriers were in place to prevent conflicts of interest within his office.)

“We were literally all over this issue, and it was one that I took a lot of pride in, both in our productivity and responsiveness,” Cornyn recalled in an interview.

During his tenure, the AG’s office issued an unprecedented number of open-records rulings, dramatically decreased turnaround times and established a statewide, toll-free, open-government hotline which handled more than 11,000 calls in 2000.

That’s a far cry from how FOIA is carried out on the federal level. If an agency denies or ignores a request for information, the only recourse is a lawsuit — an avenue financially feasible usually only to large media organizations and privately-funded watchdog groups.

“Right now my impression from the research we’ve done is that if the agency can out wait the journalist, then the news value goes down. Obviously, the more obstacles go up — time, money or just the hassle factor — then people are going to loose interest.”

FOIA is near and dear to journalists, a group not always popular with conservatives, which makes Cornyn’s interest in it even more unlikely. But Cornyn went so far as to make it an issue, albeit an obscure one, while campaigning for the Senate in 2002.

“While some people say that this is an area of law that journalists and the media care about — certainly, it’s the press that invokes this law on behalf of the public — there ought to be a mechanism that an ordinary citizen could get it,” Cornyn said.

But while watchdog groups are ecstatic to have a conservative Republican Senator from Texas as a champion for open-government, that excitement is abated by a certain nervousness.

“Being a new Senator, I hope he doesn’t try to do too much too early,” POGO’s Amey said, expressing his belief that too many proposed changes may generate a push-back that could doom any strengthening of FOIA.

Seeming to anticipate those worries, and fears that open government could compromise national security, Cornyn said he intends to take a measured approach.

“I think probably what we would be well-advised to do is find some areas that are relatively non-controversial and move forward on those and use that as a beachhead,” he said.

But Cornyn’s long-term goals are far from modest and don’t necessarily end at the executive branch. As it stands, Congress and the courts are not subject to the 1967 statute.

“I don’t see any good reason why it ought to apply to some branches and not others,” he said. “I am skeptical of a blanket exclusion.”