FOIA Fixes Greeted Warmly

Posted March 15, 2005 at 6:46pm

In what amounted to a two-hour lovefest extolling the virtues of public access to government documents, the Senate Judiciary Committee heard unanimous praise Tuesday for a measure to strengthen the Freedom of Information Act.

Sen. John Cornyn (R-Texas) chaired the terrorism, technology and homeland security subcommittee hearing on a bill he had introduced along with Judiciary ranking member Patrick Leahy (D-Vt.). The legislation would establish, in the Senators’ words, “a presumption of openness” and eliminate the bureaucratic backlogs that have delayed the release of information months, years or even decades after FOIA requests have been filed with federal agencies.

“The enactment of FOIA was a watershed moment for democracy, but this bulwark of open government is under assault. Liberals and conservatives both recognize a dangerous trend toward over-classification of information, at enormous cost to the taxpayers and risk to our citizens,” Leahy said at the hearing.

For years, Leahy has railed against what he believes are serious assaults on FOIA. But Cornyn is the first Republican to join his efforts. The duo now appears to be gaining early steam.

The full Judiciary panel is set to mark up related legislation on Thursday that would create an advisory commission on delays in processing FOIA requests. The Faster FOIA Act, also co-sponsored by Leahy, would direct the commission to report to Congress and the president on how to reduce the lengthy delays in the federal government’s handling of FOIA inquiries.

Under the statute, first enacted in 1966, federal agencies have 20 days, with a possible 10-day extension, to respond to requests for information. But in practice, requesters frequently wait months or years with no response and are faced with the prospect of costly litigation as the only means to obtain the data, according to testimony from an ideologically diverse panel at Tuesday’s hearing.

The group included Katherine Minter Cary, division chief of the Open Records Division of the Texas attorney general’s office; Walter Mears, former Associated Press Washington bureau chief; Mark Tapscott, director of the Center for Media and Public Policy at the Heritage Foundation; Meredith Fuchs, general counsel at the nonprofit National Security Archive; Lisa Graves, senior counsel at the American Civil Liberties Union; and Thomas Susman, a FOIA attorney with Ropes and Gray LLP.

In her testimony, Fuchs outlined some of what she deemed “unacceptable” delays. In one example, she told the committee of the National Security Archive’s request to the Defense Intelligence Agency in 1993 for records concerning the heroin trade in Colombia. “A document was located and sent to the Coast Guard for review and release in 1995. Nine years later we were told that the Coast Guard lost the document.”

Mears gave another “remarkable” example. When Terry Anderson, the former AP reporter held hostage for seven years in Lebanon, filed a FOIA request for information about his captivity, “he was told he couldn’t have all he sought because of the privacy rights of the kidnappers.”

Cornyn said after the hearing that he hasn’t sensed any resistance to the efforts that he and Leahy are making. “My hope is that now that we’ve had this hearing we’ll get additional Senators signed on.” Sen. Johnny Isakson (R-Ga.) has already sponsored the bill.

In the House, Rep. Lamar Smith (R-Texas) has introduced a companion measure, and Cornyn thinks Smith’s seniority on the Judiciary Committee will further the effort. “I have the impression that he’ll be able to help us quite a bit over there,” he said of his Lone Star State colleague.

Cornyn held the hearing Tuesday to coincide with national Freedom of Information Day, celebrated annually on James Madison’s birthday, as well as the first annual Sunshine Week. The latter is sponsored by the Sunshine in Government Initiative, a coalition of media groups promoting accountable and accessible government.

Anticipating possible criticism of the legislation on national security grounds, Fuchs pointed to a conclusion in the 9/11 commission report “which includes only one finding that the attacks might have been prevented.” According to the report, the hijacker’s financier, Ramzi Binalshibh, told interrogators that if senior al Qaeda organizers had known that the alleged 20th hijacker had been arrested at a flight school in Minnesota, then Osama bin Laden likely would have called off the attacks. “The Commission’s wording is important here,” Fuchs submitted in her written testimony, as “only ‘publicity’ could have derailed the attacks.”

“We see in examples again and again that an informed public is an empowered public that can protect the health, safety and security of their own communities,” Fuchs added.

“The fact of the matter is, however, that there is a bureaucratic resistance — to some extent justified — to opening government proceedings and filing cabinets to public scrutiny,” Fuchs said. “But often the secrecy reflex should have given way to the right to know, and indeed, the need to know.”