Congressional Record: February 6, 2004 (Senate)
Page S687-S689
THE IMPORTANCE OF STATE AND FEDERAL FREEDOM OF INFORMATION LAWS
Mr. LEAHY. Mr. President, ``We're just everyday people,'' said Linda
Raymond of herself and her husband, Mike, of Woburn, MA. ``But we
stopped a landfill from expanding and raised environmental awareness.
Any community can do what we did.''
The Raymonds live in a blue-collar suburb of Boston where they both
work in the public school system. Three years ago, while walking on a
wooded trail in their neighborhood, they discovered that the city's
landfill, which had been dormant for 15 years, was bustling with truck
traffic. They had cause for alarm. Woburn is the setting of the events
that were described in the book, ``A Civil Action.'' After rates of
leukemia shot upward, local industries were sued in the 1980s for
polluting the area water. The Raymonds, who had not previously been
involved in environmental activism, sprang into action, determined to
discover what was being planned for the landfill and how this would
impact the community's public health.
The Raymonds' story was recounted in the January 25, 2004, issue of
Parade magazine. ``When Linda Raymond contacted town officials to find
out what was going on, she hit a stone wall. `I couldn't get a straight
answer from anyone,' she says. `It was very frustrating.''' The article
describes what the Raymonds did next: ``To get answers--and action--the
Raymonds turned to a powerful set of tools: Federal and State Freedom
of Information (FOI) laws.''
With the information the Raymonds collected under Massachusetts State
FOI laws, they educated the community and held public officials
accountable. Their actions ultimately led to the city shelving plans to
expand the size of the landfill by over a million tons of waste--plans
that had been developed without public knowledge or debate, and which
had not been evaluated for environmental or health impacts.
The Raymonds' triumph highlights the power of Government sunshine
laws. It also demonstrates one of the most common uses of such laws by
citizens and local community groups--that is, reliance on FOI laws to
ensure that schools, neighborhoods and local industries are safe and
secure. Our FOI laws are in danger, however, especially in the post-9/
11 era. As noted by Parade, ``Some journalists and civil liberties
defenders believe that fences have gone up around FOI laws in the
aftermath of 9/11. `Freedom of Information is under threat,' says
Woburn Daily Times Chronicle columnist Marie Coady. `Across the
country, it's becoming harder to access documents.'''
One of the most significant threats to American citizens' right to
know about health and safety issues was enacted by Congress in 2002 in
the form of a broad exemption to the Federal sunshine law, the Freedom
of Information Act, FOIA. The Homeland Security Act of 2002, HSA,
contained a subtitle purportedly designed to protect ``critical
infrastructure information.'' That broadly defined term applies to
information regarding a variety of facilities--such as privately
operated power plants, bridges, dams, ports, or chemical plants--that
might be targeted for a terrorist attack. In exchange for the
cooperation of private companies in sharing information with the
government regarding vulnerabilities in the Nation's critical
infrastructure, those companies would not have to share certain
information with the public.
Encouraging cooperation between the private sector and the Government
to keep our critical infrastructure systems safe from terrorist attacks
is a goal we all support. Unfortunately, rather than increasing
security by encouraging private sector disclosure to the Government,
the law guts FOIA at the expense of our national security and public
health.
The HSA created a new FOIA exemption for ``critical infrastructure
information.'' In HSA negotiations, House Republicans and the
administration promoted legislative language that they described as
necessary to encourage the owners of such facilities to identify
vulnerabilities in their operations and share that information with the
Department of Homeland Security, DHS. The stated goal was to ensure
that steps could be taken to ensure the facilities' protection and
proper functioning.
In fact, such descriptions of the legislation were disingenuous.
These provisions, which were eventually enacted in the HSA, shield from
FOIA almost any voluntarily submitted document stamped by the facility
owner as ``critical infrastructure.'' This is true no matter how
tangential the content of that document may be to the actual security
of a facility. The law effectively allows companies to hide information
about public health and safety from American citizens simply by
submitting it to DHS. The enacted provisions were called ``deeply
flawed'' by Mark Tapscott of the Heritage Foundation. He argued that
the ``loophole'' created by the law ``could be manipulated by clever
corporate and government operators to hide endless varieties of
potentially embarrassing and/or criminal information from public
view.''
In addition, under the HSA, disclosure by private facilities to DHS
neither obligates the private company to address the vulnerability, nor
requires DHS to fix the problem. For example, in the case of a chemical
spill, the law bars the Government from disclosing information without
the written consent of the company that caused the pollution. As the
Washington Post editorialized on February 10, 2003, ``A company might
preempt environmental regulators by `voluntarily' divulging
incriminating material, thereby making it unavailable to anyone else.''
Last March, I introduced a bill to repeal this dangerously broad FOIA
exemption and to replace it with a balanced measure that will protect
our Nation's critical infrastructure without obliterating public
oversight. The Restoration of Freedom of Information Act--Restore
FOIA--would protect legitimate records pertaining to critical
infrastructure safety, but would remove the free pass given by the HSA
to industry for any information that a facility chooses to label
``critical infrastructure.''
Perhaps most important to people like the Raymonds, who relied on
State
[[Page S688]]
FOI laws to obtain information on the Woburn landfill, the Restore FOIA
bill also allows local authorities to apply their own sunshine laws.
Unlike the provisions of the HSA, the Restore FOIA bill does not
preempt any State or local disclosure laws for information obtained
outside the Department of Homeland Security. Likewise, it does not
restrict the use of such information by State agencies.
By enacting Restore FOIA, we can protect the Nation's critical
infrastructure without cutting the public out of the loop. James
Madison said, ``A popular government, without popular information, or
the means of acquiring it, is but a prologue to a farce or tragedy or
perhaps both.'' I urge my colleagues to support Restore FOIA so that
this basic and fundamental principle is upheld.
I ask unanimous consent that the Parade article describing the
Rayburns fight for open and accountable Government be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Parade Magazine, Jan. 25, 2004]
How They Uncovered the Truth
(By Micah Morrison)
At first glance, they don't look like activists. Mike and
Linda Raymond of Woburn, Mass., a blue-collar community north
of Boston, are both in their mid-50s. They have been married
35 years, with two grown sons and four grandchildren. Mike
teaches computer and fitness classes at the local high
school. Linda is a secretary with the public school system.
But these self-described ``everyday working people'' took on
City Hall in a battle to protect their community.
Family pictures are on proud display in the Raymonds'
comfortable home on North Maple Street in one of Woburn's
many close-knit neighborhoods. ``It's a good place to raise
kids,'' Mike Raymond says of his town. ``It has excellent
schools and a good health-care system.'' Yet, on an autumn
day three years ago, the Raymonds discovered something about
their community that troubled them deeply.
The Raymonds took a walk down the wooden path at the end of
their street. Past small ponds and a rise of trees, they came
upon an astonishing sight: Trucks loaded with debris were
rumbling up the 60-foot slopes at the Woburn Landfill. The
40-acre mountain of trash had been dormant for more than 15
years--now, mysteriously, it was growing again.
``I worried,'' Linda Raymond recalls. ``Who had opened the
landfill? Was it toxic? Why hadn't people in the neighborhood
been told?''
Given Woburn's history, the Raymonds had reason for
concern. In the 1980s, the town was rocked by a lawsuit
against local industries claiming that water pollution had
led to an increase in leukemia deaths. The story was revived
in the '90s with the book and movie A Civil Action. Today,
Woburn Mayor John Curran says the city ``has worked hard to
overcome the Civil Action stigma. Our drinking water has been
of the highest quality for over 20 years.''
Getting no answers. But when Linda Raymond contacted town
officials to find out what was going on, she hit a stone
wall. ``I couldn't get a straight answer from anyone,'' she
says. ``It was very frustrating.'' So, to get answers--and
action--the Raymonds turned to a powerful set of tools:
federal and state Freedom of Information (FOI) laws.
As the Raymonds discovered, FOI requests can be made by
anyone. ``There are a million ways the public can use FOI
laws,'' says Robert Freeman of the New York State Committee
on Open Government. ``When property taxes are raised, you can
review the assessment rolls to ensure that you've been
treated fairly. You can find out if your child's teacher is
really certified to teach math. You can find out if a
restaurant has health-code violations.''
First steps. After researching FOI laws, Linda Raymond
figured that her first letter should go to the Massachusetts
Department of Environmental Protection. She wrote asking for
``any and all documents pertaining to the Woburn Landfill,''
noting that she was making the request under the state's
Freedom of Information laws. The agency quickly complied,
inviting Linda to come review the files.
Speeky cooperation from government agencies is not always
the norm. ``There will be delays,'' Linda says. ``Something
you have to be persistent. And it's important to know your
rights--including the right to an appeal when documents are
denied.''
Looking over the files, Linda made some important
discoveries. Under state law, the city was required to bring
in material to ``cap'' the landfill and close it with a
protective lining of topsoil, loam and netting. She found
that, to pay for the multimillion-dollar project, Woburn had
hired a private contractor who was hauling in soil and debris
from construction sites to cover the capping costs. In
reading through the documents, Linda also discovered that the
bottom of the landfill did not have a protective lining.
That's when the Raymonds really began to worry, because the
landfill sits on top of a watershed feeding into the
nearby Aberjona River. ``We found medical waste, coal ash,
construction debris and oil seeping into the wetlands,''
Mike recalls. Were contaminants polluting the watershed?
Digging deeper. The Raymonds zeroed in with more specific
requests. A second FOI petition went to the Woburn city clerk
for the contract the town had signed with the waste-
management firm. The response brought some startling news:
``The original contract called for 300,000 tons of waste to
be brought in,'' Mike explains, ``but the town was looking to
expand the landfill by another million tons.''
A third request, to the Woburn Board of Health, brought
documents revealing that the former mayor had quietly
assembled a panel to advise him on landfill issues, with no
public input. The documents also showed discussions of plans
for the future of the site, including turning it into a
picnic area or police shooting range.
``We got very angry,'' Linda recalls. ``We felt the
politicians were making plans without anyone knowing about
it. And there were possible health risks.''
Taking action. The Raymonds swung into action. They
organized their neighbors, contacted the media and raised the
issue at public meetings. ``The documents we obtained under
FOI educated us,'' Linda says. ``And we in turn were able to
educate the community.''
At first, their aims were modest. ``We wanted to postpone
the capping until the landfill could be tested and deemed
environmentally safe,'' Mike says. But the Raymonds had hit a
nerve. Under mounting pressure, plans for the landfill were
shelved.
``Without FOI laws,'' Linda says, ``we couldn't have done
it.''
A threat to access? Next time, it might be more difficult.
Some journalists and civil liberties defenders believe that
fences have gone up around FOI laws in the aftermath of 9/11.
``Freedom of Information is under threat,'' said Woburn Daily
Times Chronicle columnist Marie Coady. ``Across the country,
it's becoming harder to access documents.''
On the federal level, ``there has been a major change in
atmosphere since 9/11,'' says Lucy Dalglish, executive
director of the Reporters Committee for Freedom of the Press.
Federal officials ``are not releasing information they would
have provided five years ago.''
Still, thousands of Freedom of Information requests
continue to be routinely processed every year. And with legal
challenges under way, ultimately the courts will decide
whether the new restrictions are a reasonable response to a
changed world.
The Raymonds say they'll keep using FOI laws. Although the
state of Massachusetts has given the Woburn Landfill a clean
bill of health, the couple plan to closely watch the results
of the elaborate pollution-monitoring procedures established
at the site.
``We're just everyday people,'' Linda says, ``but we
stopped a landfill from expanding and raised environmental
awareness. Any community can do what we did.''
Mike agrees. He cites his favorite quote, from
anthropologist Margaret Mead: ``Never doubt that a small
group of thoughtful, committed citizens can change the world;
indeed, it's the only thing that ever has.''
a powerful tool everyone can use
It's not difficult to use Freedom of Information laws, and
there's no telling what you might turn up. Here are some tips
on getting the information you want:
Research First.--Who has the information you're seeking?
Identify your targets. Ask your local librarian for help.
Check municipal, state and federal Web sites. Most states
have a designated office to help with public-records
searches. Federal agencies have FOI officers. The Reporters
Committee for Freedom of the Press (www.rcfp.org) publishes
guides to using state and federal Freedom of Information
laws.
Put It in Writing.--While some states allow oral requests,
it's best to write a short letter stating what information
you're seeking. Note that you're making the request under a
State or Federal Freedom of Information statute. Be as
specific as possible. The Reporters Committee for Freedom
of the Press has a helpful sample letter at its Web site.
Show Them the Money.--Often there will be a photocopying
fee and other costs related to your request. You can speed
the process by stating in your letter how much you're willing
to pay and asking to be notified if costs exceed that amount.
You also can request a fee waiver. In some cases, you can go
to a government office to view the documents and do your own
copying.
Exemptions and Appeals.--Many public records are exempt
from FOI laws. The U.S. Congress did not make itself or the
courts subject to the statute. Most documents impacting
minors, criminal investigations, trade secrets and personal
privacy are off-limits. But you also may be denied documents
that you have a right to see. If you are denied access, be
sure to use the FOI appeals process. A brief letter to the
agency head requesting a review of the decision will get the
ball rolling. Meanwhile, make photocopies of everything you
send out. Above all, be patient and persistent. You may be
pleasantly surprised!
There's More You Can Discover
There's a common belief that FOI laws are used mainly in
environmental cases. Not true. Here are examples of other
uses of this powerful tool:
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In Grand Rapids, MI, a high school government class used
Freedom of Information laws to expose flaws in the county's
jury-selection system.
In Fulton, MO, a concerned citizen used State open-
government laws--kissing cousins to FOI statutes--to force
disclosure of town-council discussion about building a golf
course at taxpayer expense.
In Washington, D.C., a women used FOI laws to find out
about the ownership of some drug-infested, abandoned
buildings. The owner? The District of Columbia government!
The U.S. Department of Agriculture--as a result of an FOI
request--revealed accounts of the mistreatment of circus
elephants.
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