Cornyn, Leahy Introduce Bill to Strengthen FOIA

Posted February 16, 2005 at 6:26pm

Two key Senators on the Judiciary Committee introduced legislation Wednesday that would dramatically strengthen the federal government’s open-information laws.

Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.), both longtime proponents of the Freedom of Information Act, aim to close loopholes in the current law, ensure timely responses to FOIA requests, create incentives for agencies to provide information promptly and make it more difficult for Congress to create new exemptions.

“Open government is one of the most basic requirements of any healthy democracy,” Cornyn said in a statement. “It allows taxpayers to see where their money is going; it permits the honest exchange of information that ensures government accountability; and it upholds the ideal that government never rules without the consent of the governed.”

A hearing is planned for mid-March. Although Cornyn gave up the relevant subcommittee gavel at the end of the 108th Congress, he is expected to preside over the hearing.

Even though the idea of open government has long had consistent backing from coalitions representing both ends of the political spectrum, the issue hasn’t exactly been at the top of Congress’ agenda in recent years. The last oversight hearing on FOIA was in 1992, and the statute — originally signed into law by President Lyndon Johnson in 1966 — hasn’t been significantly altered in nearly a decade.

In an interview last year, Cornyn laid out an ambitious agenda for reforming the federal government’s information laws, including bringing Congress under FOIA for the first time. This bill does not tackle that objective, but a spokesman for Cornyn said the issue will likely come up in future efforts by the Texas Republican.

“There will be other efforts on this,” Cornyn spokesman Don Stewart said. “These are things we thought we could get some agreement on.”

Still, the bill that has just been introduced is relatively broad.

It would ensure that the Freedom of Information Act still applies when agency recordkeeping functions are outsourced to private firms; provide consistent reporting of agency performance on FOIA requests; protect access to fee waivers for reporters, including for the first time bloggers and other Internet journalists; require that any future Congressional attempts to create new FOIA exemptions be expressly stated within the text of the legislation; and impose an annual reporting requirement on the Homeland Security Department’s usage of its exemption from disclosing security-sensitive infrastructure.

In addition, the Leahy-Cornyn proposal would also create a FOIA hotline to track the status of requests; establish a new FOIA ombudsman; authorize the recovery of attorney’s fees if a request proceeds to litigation; ensure that the 20-day statutory clock for agencies to respond to requests begins the day the requests are received; impose sanctions on agencies for missing deadlines; increase disciplinary actions against government employees who wrongfully deny disclosure; and determine appropriate funding levels needed to bolster the agency’s FOIA compliance.

“Access to public information in a timely and effective manner is a vital piece of our democratic system of checks and balances that promotes accountability and imbues trust,” Leahy said in a statement.

Cornyn, recognizing likely criticism of his proposal, asserted that national security “should never take a back seat,” but added that it also shouldn’t be used as an automatic barrier to open government.

Leahy and Cornyn’s bill follows widespread criticism of the way agencies have handled FOIA in recent years.

“It seems like both reporters and citizens constantly and bitterly criticize so much of the federal government for the failure to uphold its responsibilities with FOIA,” said Gary Ruskin, director of the Congressional Accountability Project.

Ruskin said the most commonly cited problems are “failure to do full searches, which to me is especially bad in the branches of the armed services. In my opinion, there are increasingly efforts to threaten groups … with high copying fees and high reproduction costs. The delays sometimes are outrageous.”

According to a study done in late 2003 by the National Security Archive, a nonprofit research center at George Washington University, many agencies had requests dating back more than a decade, some filed as long ago as 1989.

Ruskin said that despite criticisms that the Bush administration has tightened access to information, he doesn’t think the issue is a partisan one. “The Clinton administration wasn’t a whole lot better,” Ruskin said, asserting that the problem is longstanding.

Despite resistance in Washington, Ruskin maintains that the issue of open government is broadly supported among the electorate. “These kinds of things are pretty popular across the spectrum,” he said.

Indeed, a long list of groups representing conservative as well as liberal interests have come out in support of Cornyn and Leahy’s bill. They include the Heritage Foundation’s Center for Media and Public Policy, People for the American Way, the National Security Archive and the American Civil Liberties Union, among nearly a dozen other groups.

It is also supported by a litany of media organizations, including The Associated Press Managing Editors, the Committee of Concerned Journalists, the National Newspaper Association and the Radio-Television News Directors Association.