Congressional Record: February 16, 2005 (Senate) Page S1520-S1526 STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. CORNYN (for himself and Mr. Leahy): S. 394. A bill to promote accessibility, accountability, and openness in Government by strengthening section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), and for other purposes; to the Committee on the Judiciary. (See exhibit 1.) Mr. CORNYN. Mr. President, I rise today to introduce a bill, along with the Senator from Vermont who we will hear from shortly, that will help enhance the openness of the Federal Government. This bill is called the Open Government Act of 2005. It is a bipartisan effort to improve and update our public information laws--particularly the Freedom of Information Act. The purpose of the bill is to arm the American people with the information they need to make certain that ours remains a government whose legitimacy is derived from the consent of the governed. This legislation will significantly expand the accessibility, accountability, and openness of the Federal Government. Open government, of course, is one of the most basic requirements of a healthy democracy. 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. As is so often the case, Abraham Lincoln said it best: No man is good enough to govern another without that person's consent. But achieving the true consent of the governed requires something more than just holding elections every couple of years. What we need is informed consent. Informed consent is impossible without open and accessible government. It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act. The Senate Judiciary Committee has not convened an oversight hearing to examine the Freedom of Information Act compliance issue since 1992. And at that time, I believe it is clear that the growth of technology and the Internet has created a real desire among the American people to achieve direct, efficient, and open access to government information. I thank my colleague from Vermont, the ranking member of the Judiciary Committee, who has long been a champion of these issues, for his hard work on this bill. Together our offices have spent a good deal of time meeting with open government advocates. I am proud to say this bill is supported by a broad coalition across the ideological spectrum, because I believe this legislation should not be a partisan or special interest bill. Indeed, it is not. I ask unanimous consent that these endorsement letters from dozens of watchdog groups across the political spectrum be printed in the Record at the close of my remarks. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 2.) Mr. CORNYN. Mr. President, as the Senator from Vermont said at a recent Judiciary Committee hearing: I have always found that every administration, Republican or Democrat, would love to keep a whole lot of things from the public. They do something they are proud of, they will send out a hundred press releases. Otherwise, they will hold it back. We have the Freedom of Information Act, which is a very good thing. It keeps both Democratic and Republican administrations in line. I agree with that. Essentially, we are talking about human nature. It is only natural that elected officials and Government leaders want recognition for their successes but not their failures. But we, as a healthy democracy, need to know the good, the bad, and the ugly. The news media, of course, is the main way people get information about the Government. The media pushes Government entities and elected officials, bureaucrats, and agencies to release information that the people have the right to know, occasionally exposing waste, fraud, and abuse--and hopefully more often than that letting the American people know what a good job their public officials are doing. But we have also seen in recent years an expansion of other outlets for sharing information outside of the mainstream media to online communities, discussion groups, and blogs. I believe all these outlets can and do contribute to the health of our political democracy. Let me make this clear. This is not just a bill for the media, lest anybody be confused. This is a bill that will benefit every man, woman, and child in the United States of America who cares about the Federal Government, cares about how the Federal Government operates, and ultimately cares about the success of this great democracy. By reforming our information policies in order to guarantee true access by all citizens to Government records, we will revitalize the informed consent that keeps America free. The Open Government Act contains over a dozen substantive provisions, designed to achieve the following four objectives: First, it will strengthen the Freedom of Information Act and close loopholes. Secondly, it will help Freedom of Information Act requesters obtain timely responses to their requests. Third, it will ensure that agencies have strong incentives to comply with the law in a timely fashion. Fourth, it will provide Freedom of Information Act officials; that is, people within Government agencies, with all the tools, including the education, they need in order to ensure that our Government remains open and accessible. [[Page S1521]] This legislation is not just pro-openness, pro-accountability and pro-accessibility; it is also pro-Internet. It contains important congressional findings to reiterate the presumption of openness. It includes a provision for a hotline that enables citizens to track the requests and even allows tracking of those requests via the Internet. As a whole, the Open Government Act reiterates the principle that our Government is based not on the need to know but rather on the right to know. We all recognize that America's security should never take a back seat. But nor should the claim, without justification, of national security be used as a barrier against allowing taxpayers to know how their money is being spent. There is a broad consensus across the aisle, the political spectrum, that we currently overclassify Government documents, and that many documents and much information is placed beyond the public view without any real justification. I believe we need a system of classification that strikes the right balance between the need to classify documents in the interest of our national security and our national values of open government. Our default position of the U.S. Government must be one of openness. If records can be open, they should be open. If there is a good reason to keep something closed, it is the Government that should bear the burden, not the other way around. Open government is fundamentally an American issue. It is literally necessary to preserve our way of life as a self-governing people. Ensuring the accessibility, accountability, and openness of the Federal Government is a cause worthy of preservation, and I call on my colleagues to join the Senator from Vermont and I today in taking a meaningful step toward that goal. Finally, before I yield the floor to the Senator from Vermont, let me again express my appreciation to him and his staff. They have worked very closely with my staff. This is one of those good Government initiatives that knows no party affiliation, no ideological affiliation, but is really one that is essential to the preservation of our way of life as a self-governing democracy. Exhibit 1 Openness Promotes Effectiveness in our National Government Act of 2005 Led by U.S. Senators John Cornyn and Patrick Leahy, the OPEN Government Act of 2005 is a bipartisan effort to achieve meaningful reforms to federal government information laws-- including most notably the Freedom of Information Act of 1966 (``FOIA''). If enacted, the legislation would substantially enhance and expand the accessibility, accountability, and openness of the federal government. It has been nearly a decade since Congress has approved major reforms to FOIA. Moreover, the Senate Judiciary Committee has not convened an oversight hearing to examine FOIA compliance issues since April 30, 1992. (The Senate Homeland Security and Governmental Affairs Committee, which shares jurisdiction over federal government information laws with the Judiciary Committee, has not held a FOIA oversight hearing since 1980.) This legislation is the culmination of months of extensive discussions between the offices of Senators Cornyn and Leahy and various members of the requestor community. The bill is supported by Texas Attorney General Greg Abbott and a broad coalition of organizations across the ideological spectrum, including: American Association of Law Libraries American Civil Liberties Union American Library Association American Society of Newspaper Editors Associated Press Managing Editors Association of Health Care Journalists Center for Democracy & Technology Coalition of Journalists for Open Government Committee of Concerned Journalists Education Writers Association Electronic Privacy Information Center Federation of American Scientists/Project on Government Secrecy Free Congress Foundation/Center for Privacy & Technology Policy Freedom of Information Center, University of Missouri The Freedom of Information Foundation of Texas The Heritage Foundation/Center for Media and Public Policy Information Trust National Conference of Editorial Writers National Freedom of Information Coalition National Newspaper Association National Security Archive/George Washington University Newspaper Association of America People for the American Way Project on Government Oversight Radio-Television News Directors Association The Reporters Committee for Freedom of the Press Society of Environmental Journalists The Act contains important Congressional findings to reiterate and reinforce the view that the Freedom of Information Act establishes a presumption of openness, and that our government is based not on the need to know, but upon the fundamental right to know. The Act also contains over a dozen substantive provisions, designed to achieve the following four objectives: (1) Strengthen FOIA and close loopholes (2) Help FOIA requestors obtain timely responses to their requests (3) Ensure that agencies-have strong incentives to act on FOIA requests in a timely fashion (4) Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible strengthen foia and close loopholes Ensure that FOIA applies when agency recordkeeping functions are outsourced Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association-- including bloggers and other Internet-based journalists Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests help foia requestors obtain timely responses Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation Authorize reasonable recovery of attorney fees when litigation is inevitable ensure that agencies have strong incentives to act on foia requests in timely fashion Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request Impose real consequences on federal agencies for missing statutory deadlines Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations provide foia officials with the tools they need to ensure that our government remains open and accessible Improve personnel policies for FOIA officials to enhance agency FOIA performance Examine the need for FOIA awareness training for federal employees Determine appropriate funding levels needed to ensure agency FOIA compliance Openness Promotes Effectiveness in our National Government Act of 2005 Section-by-Section Analysis Sec. 1. Short Title. The Open Government Act of 2005. Sec. 2. Findings. The findings reiterate the intent of Congress upon enacting the Freedom of Information Act (FOIA), 5 D.S.C. 552 as amended, and restate FOIA's presumption in favor of disclosure. Sec. 3. Protection of Fee Status for News Media. This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity. In determining whether to grant a fee waiver, an agency shall consider the prior publication history of the requestor. If the requestor has no prior publication history and no current affiliation with a news organization, the agency shall review the requestor's plans for disseminating the requested material and whether those plans include distributing the material to a reasonably broad audience. Sec. 4. Recovery of Attorney Fees and Litigation Costs. This section, the so-called Buckhannon fix, amends 5 U.S.C. 552(a)(4)(E) to clarify that a complainant has substantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees, if the complainant has obtained a substantial part of his requested relief through a judicial or administrative order or if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party. The section responds to the Supreme Court's ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598 (2001), which eliminated the ``catalyst theory'' of attorney fee recovery under certain Federal civil rights laws. FOIA requestors have raised concerns that the holding in Buckhannon could be extended to FOIA cases. This section preserves the ``catalyst theory'' in FOIA litigation. Sec. 5. Disciplinary Actions for Arbitrary and Capricious Rejections of Requests. FOIA currently requires that when a court finds that agency personnel have acted arbitrarily or capriciously with respect to withholding documents, the Office of Special Counsel [[Page S1522]] shall determine whether disciplinary action against the involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F). This section of the bill amends FOIA to require the Attorney General to notify the Office of Special Counsel of any such court finding and to report the same to Congress. It further requires the Office of Special Counsel to report annually to Congress on any actions taken by the Special Counsel to investigate cases of this type. Sec. 6. Time Limits for Agencies to Act on Requests. The section clarifies that the 20-day time limit on responding to a FOIA request commences on the date on which the request is first received by the agency. Further, the section states that if the agency fails to respond within the 20-day limit, the agency may not then assert any FOIA exemption under 5 U.S.C. 552(b), except under limited circumstances such as endangerment to national security or disclosure of personal private information protected by the Privacy Act of 1974, unless the agency can demonstrate, by clear and convincing evidence, good cause for failure to comply with the time limits. Sec. 7. Individualized Tracking Numbers for Requests and Status Information. Requires agencies to establish tracking systems by assigning a tracking number to each FOIA request: notifying a requestor of the tracking number within ten days of receiving a request; and establishing a telephone or Internet tracking system to allow requestors to easily obtain information on the status of their individual requests, including an estimated date on which the agency will complete action on the request. Sec. 8. Specific Citations in Exemptions. 5 U.S.C. 552(b)(3) states that records specifically exempted from disclosure by statute are exempt from FOIA. This section of the bill provides that Congress may not create new statutory exemptions under this provision of FOIA unless it does so explicitly. Accordingly, for any new statutory exemption to have effect, the statute must cite directly to 5 U.S.C. 552(b)(3), thereby conveying congressional intent to create a new (b)(3) exemption. Sec. 9. Reporting Requirements. This section adds to current reporting requirements by mandating disclosure of data on the 10 oldest active requests pending at each agency, including the amount of time elapsed since each request was originally filed. This section further requires agencies to calculate and report on the average response times and range of response times of FOIA requests. (Current requirements mandate reporting on the median response time.) Finally, this section requires reports on the number of fee status requests that are granted and denied and the average number of days for adjudicating fee status determinations by individual agencies. Sec. 10. Openness of Agency Records Maintained by a Private Entity. This section clarifies that agency records kept by private contractors licensed by the government to undertake recordkeeping functions remain subject to FOIA just as if those records were maintained by the relevant government agency. Sec. 11. Office of Government Services. This section establishes an Office of Government Information Services within the Administrative Conference of the U.S. Within that office will be appointed a FOIA ombudsman to review agency policies and procedures, audit agency performance, recommend policy changes, and mediate disputes between FOIA requestors and agencies. The establishment of an ombudsman will not impact the ability of requestors to litigate FOIA claims, but rather will serve to alleviate the need for litigation whenever possible. Sec. 12. Accessibility of Critical Infrastructure Information. This section requires reports on the implementation of the Critical Infrastructure Information Act of 2002, 6 U.S.C. 133. Reports shall be issued from the Comptroller General to the Congress on the number of private sector, state, and local agency submissions of CII data to the Department of Homeland Security and the number of requests for access to records. The Comptroller General will also be required to report on whether the nondisclosure of CII material has led to increased protection of critical infrastructure. Sec. 13. Report on Personnel Policies Related to FOIA. This section requires the Office of Personnel Management to examine how FOIA can be better implemented at the agency level, including an assessment of whether FOIA performance should be considered as a factor in personnel performance reviews, whether a job classification series specific to FOIA and the Privacy Act should be considered, and whether FOIA awareness training should be provided to federal employees. Exhibit 2 February 15, 2005. Hon. John Cornyn, Chairman, U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights & Property Rights, Washington DC. Dear Senator Cornyn: I strongly endorse the proposed OPEN Government Act or 2005, which will strengthen the federal Freedom of Information Act (FOIA) and advance government openness. James Madison once observed that ``[k]nowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.'' The Father of the Constitution recognized that our constitutional democracy, which is rooted in self-government, requires the informed consent of the people. I share Madison's belief, and yours, that a government of the people, by the people, and for the people must operate in full view of the people. Openness and accountability--not secrecy and concealment--are what keep democracies strong and enduring. A commitment to open government underpins both FOIA and the Texas Public Information Act, which you interpreted and forcefully defended as the 49th Attorney General of Texas. As your successor I am proud that Texas leads the nation in promoting open government and privileged to build upon your efforts to make sure the public's business is conducted in full sunshine. As you know, the Texas Public Information Act declares that ``government is the servant and not the master of the people,'' and ``[t]he people 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 OPEN Government Act of 2005 will bring similar benefits to all Americans and ensure that FOIA finally lives up to its noble ideals. By closing loopholes and enabling government to be more responsive to requests for information, the OPEN Govermnent Act of 2005 will modernize FOIA's nearly 40-year- old commitment to open and accessible government. Our system of self-government does not rest on the public's need to know, but on its fundamental right to know. Your proposed legislation will codify this venerable standard in federal law and reinforce one of our nation's first principles: open government leads inexorably to good government. I cannot overstate my support for these important reforms and commend you for your exceptional leadership on this issue. Sincerely, Greg Abbott, Attorney General of Texas. ____ American Association of Law Libraries, Washington Affairs Office, Washington, DC, February 14, 2005. Hon. John Cornyn, U.S. Senate, Washington, DC. Dear Senator Cornyn: On behalf of the American Association of Law Libraries, I commend you for your leadership in promoting access to government information by introducing the Openness Promotes Effectiveness in our National (OPEN) Government Act of 2005. We share your belief that accessible government information is both an essential principle of a democratic society and a valuable public good. The American Association of Law Libraries (AALL) is a nonprofit educational organization with over 5000 members nationwide who respond to the legal information needs of legislators, judges, and other public officials at all levels of government, corporations and small businesses, law professors and students, attorneys, and members of the general public. Our mission is to promote and enhance the value of law libraries, to foster law librarianship and to provide leadership and advocacy in the field of legal information and information policy. AALL believes that public inspection of government records, including electronic records, under the Freedom of Information Act (FOIA) is the foundation for citizen access to government information. The OPEN Government Act of 2005 provides important and timely amendments to FOIA. AALL supports this important legislation and we look forward to working with you to ensure its prompt enactment. Sincerely, Mary Alice Baish, Associate Washington Affairs Representative. ____ American Civil Liberties Union, Washington, DC, February 14, 2005. Hon. John Cornyn, U.S. Senate, Washington, DC. Hon. Patrick Leahy, U.S. Senate, Washington, DC. Dear Senators Cornyn and Leahy: On behalf of the American Civil Liberties Union and its more than 400,000 members, we are pleased to endorse the Openness Promotes Effectiveness in our National Government Act of 2005, the ``OPEN Government Act of 2005.'' As the Supreme Court has made clear, ``disclosure, not secrecy, is the dominant objective of the Act,'' Department of the Air Force v. Rose, 425 U.S. 352 (1976). Nevertheless, secrecy, not openness, all too often seems to be the dominant trend of agencies in recent times. The OPEN Government Act includes a series of much-needed corrections to policies that have eroded the promise of the Freedom of Information Act (FOIA). These include ensuring requesters will have timely information on the status of their requests, enforceable time limits for agencies to respond to requests, news media status rules that recognize the reality of freelance journalists and the Internet, and strong incentives--including both carrots and sticks--for agency employees to improve FOIA compliance. The OPEN Government Act also includes a much needed review of the new exemption in the Homeland Security Act for critical infrastructure information. James Madison warned against ``a popular Government without popular information,'' saying that ``a people who mean to be their own Governors, must arm themselves with the power knowledge gives.'' We strongly urge passage of the OPEN Government Act [[Page S1523]] of 2005 to help restore to the people some of that power. Sincerely, Laura W. Murphy, Director, Washington Legislative Office. Timothy H. Edgar, Legislative Counsel. ____ American Society of Newspaper Editors, Reston, VA, February 9, 2005. Hon. John Cornyn, U.S. Senate, Washington, DC. Dear Senator Cornyn: On behalf of the American Society of Newspaper Editors (ASNE), I am writing to congratulate you on the Introduction of the ``Open Government Act.'' Since the organization was founded in 1922, ASNE's membership of directing editors of dally newspapers throughout the United States has worked to assist journalists and provide an unfettered and effective press in the service of the American people. ASNE is proud to endorse the Open Government Act as legislation that can help us achieve these ideals. As you wrote in your recent article in the LBJ Journal of Public Affairs, ``Our national commitment to democracy and freedom is not merely some abstract notion. It is a very real and continuing effort, and an essential element of that effort is an open and accessible government'' The Open Government Act is a ringing reminder that the Freedom of Information Act (FOIA) is the cornerstone of this principle. Your bill comes at a time when many executive agencies are able to shortcut FOIA's guarantees of access to government documents while avoiding any repercussion for their actions. We appreciate your desire to provide a meaningful enforcement mechanism for those who see that FOIA is not achieving its promise of open and accessible records for all. The bill's pragmatic focus on procedural, rather than substantive, change is noteworthy; instead of rewriting the law in a way that would promote or disfavor certain special interests, you wisely seek to bring government and citizenry together to make FOIA more efficient and effective. ASNE applauds your efforts and joins you in urging passage of this bill in the 109th Congress. Sincerely, Karla Garrett Harshaw, President. ____ Federation of American Scientists, Washington, DC, February 4, 2005. Senator John Cornyn, U.S. Senate, Washington, DC. Dear Senator Cornyn: I am writing to express the support of the Federation of American Scientists for your continuing efforts to promote openness in government, and specifically for your proposed legislation to strengthen the Freedom of Information Act (FOIA). It is our belief that openness generally, and the FOIA in particular, have an importance that transcends the usual political divides. By making information available to our citizens, we advance the ideals of democratic self-governance that we all share. Your proposed legislation would strengthen the FOIA in several important ways: It would reverse recent trends to use fee recovery as an impediment to FOIA processing; it would strengthen the position of requesters who are forced to pursue litigation to gain the records they seek; it would enhance and clarify the administration of the FOIA; and it would create an important new mechanism to audit agency compliance with the FOIA, among other important provisions. Perhaps most fundamentally, your legislation marks a hopeful new resurgence of congressional attention to these fundamental issues. Thank you for your leadership. Sincerely, Steven Aftergood, Project Director, FAS Project on Government Secrecy. ____ Free Congress Foundation, Washington, DC, February 11, 2005. Hon. John Cornyn, U.S. Senate, Washington, DC. Dear Senator Cornyn: We would like to commend your introduction of the OPEN Government Act of 2005. Conservatives believe checks and balances are essential to our system of government. One important check is to ensure that citizens and the news media have access to what the Federal Government's departments and agencies are doing. Unfortunately, as noted by Austin American Statesman reporter Chuck Lindell, too often the Federal Government's bureaucracy demonstrates no interest in replying to such requests in a timely and efficient manner. It prefers to operate in darkness, not having their actions exposed to the sunlight of public scrutiny. Citizens have a right to know what the Federal Government is doing with their tax dollars. The fact that the Department of Agriculture and the Environmental Protection Agency can take years to answer requests for information should be disturbing to conservatives who bemoan the arrogance and unresponsiveness of Big Government. Every citizen and every news reporter is entitled to a prompt answer to their request for information. ``The buck stops here'' is a snappy soundbite, and may have once represented a workable philosophy of governing in simpler times. The reality is that in today's Washington it's hard to tell where the buck is because it is simply obscured by an unresponsive bureaucracy. Ironically, technology and increasing expectations of transparency in government render the mindset practiced by a recalcitrant bureaucracy obsolete. A measure such as the OPEN Government Act of 2005 can help level the playing field in favor of the citizenry. Sincerely, Steve Lilienthal, Director, Center for Privacy & Technology Policy. ____ The Freedom of Information Foundation of Texas, Dallas, TX, February 8, 2005. Ms. Katherine Garner, Executive Director. Dear Board Members: United States Senator John Cornyn will introduce legislation to strengthen the Freedom of Information Act next week. Among other things, the Open Government Act of 2005 would provide meaningful deadlines for federal agencies to act on Freedom of Information requests and impose consequences on federal agencies for missing statutory deadlines. In light of the fact that some federal agencies have had requests for information pending for as long as seventeen years, the Foundation believes Senator Cornyn's proposals are much needed and overdue. The proposed legislation would also make it easier for successful litigants to recover their attorney's fees when litigation becomes necessary, strengthen reporting requirements on government agencies' FOIA compliance, establish an ombudsman to resolve FOIA complaints without the need to resort to litigation and enhance the authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure. The Foundation therefore enthusiastically endorses Senator Cornyn's proposed legislation and encourages each of your organizations to do the same. Sincerely, Joel R. White. ____ The Heritage Foundation, Center for Media and Public Policy, Washington, DC, February 11, 2005. Sen. John Cornyn, Hart Senate Office Building, Washington, DC. Dear Senator Cornyn: Insuring the continuance of our Republican liberty depends upon maintaining the right of the people to know as much as possible about what their government is doing in order to hold the public officials and employees accountable. Protecting this accountability tool grows ever more important as the power of the federal government continues its historic growth, with its attendant tendency continually to become more and more resistant to genuine transparency. That is why a healthy Freedom of Information Act is so vital. But while the federal government has grown exponentially since passage of the FOIA in 1966, the law's effectiveness has steadily declined as politicians and career bureaucrats with a shared interest in avoiding accountability have become increasingly skilled at exploiting loopholes, creatively interpreting administrative provisions and relying upon the paucity of legal resources available to many requestors to avoid satisfying either the letter or spirit of the statute. Indeed, the National Security Archive's 2003 survey that found an FOIA system ``in extreme disarray.'' The Archive found that ``agency contact information on the web was often inaccurate; response times largely failed to meet the statutory standard; only a few agencies performed thorough searches, including e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress.'' I believe the comprehensive package of reforms contained in ``The Open Government Act of 2005'' would go far in restoring the effectiveness of the FOIA as an accountability tool for the people in dealing with their government. We must remember that transparency and accountability are the strongest antidotes to the inevitable abuses of Big Government and are thus essential guarantors of every individual's liberty and prerequisites for the maintenance of our common security. Sincerely, Mark Tapscott, Director. ____ National Newspaper Association, Washington Programs, Arlington, VA, February 9, 2005. Hon. John Cornyn, U.S. Senate, Washington DC. Dear Senator Cornyn: The National Newspaper Association, an organization representing over 2,500 community newspapers nationwide, supports your efforts to strengthen the Freedom of Information Act. The OPEN Government Act of 2005 is a sound step toward a better FOIA. Openness and transparency in government is vital to the proper functioning of a democratic government. Ensuring unhindered access to government information by the public is the utmost responsibility of our elected leaders, for without this access, it would be impossible for the consent of the governed to be truly informed. The Freedom of Information Act is an important tool in achieving this lofty goal, and [[Page S1524]] it has proven to be useful to community newspapers around the country. The Act requires continual oversight from Congress to ensure the spirit of the law remains intact. Congress has neglected this duty in recent years, and we are pleased that you have undertaken efforts to rectify this neglect. We want to emphasize that FOIA serves a function beyond providing records to requesters filing written requests. It also serves as a talisman for openness in similar state laws. It provides a framework for releasing information that is informally requested by journalists and others--a function of particular importance to community newspapers. We will look forward to working with you as the bill is considered by the Judiciary Committee. Sincerely, Matthew Paxton, Chairman, Government Relations Committee. ____ Newspaper Association of America, Vienna, VA, February 10, 2005. Hon. John Cornyn, Chairman, Senate Judiciary Subcommittee on the Constitution, Civil Rights, & Property Rights, Washington, DC. Dear Senator Cornyn: On behalf of the Newspaper Association of America (NAA), a non-profit organization representing more than 2,000 newspapers in the United States and Canada, I want to thank you for introducing the Open Government Act of 2005. The Freedom of Information Act is premised on the belief that an informed citizenry is essential to democracy. The Open Government Act will strengthen the Freedom of Information Act and send a clear message that the openness and accessibility of the federal government is a vital part of our democratic process. We commend you for your outstanding leadership, especially with regard to the inclusion of the provisions that would close current FOIA loopholes, prevent new ones, and restore meaningful deadlines for agency action on FOIA requests. Additionally, the legislation will make it easier for the public to access information about their government through the creation of a FOlA ombudsmen, agency FOIA hotlines, and tracking systems for FOIA requests. Thank you again for your leadership on this important issue. We look forward to working with you and your staff in the coming months to ensure passage of the Open Government Act of 2005 in the 109th Congress. Thanks for reading, John F. Sturm, President and CEO. ____ People for the American Way, Washington, DC, February 9, 2005. Hon. John Cornyn, U.S. Senate, Washington, DC. Hon. Patrick Leahy, U.S. Senate, Washington, DC. Dear Senators Cornyn and Leahy: On behalf of People For the American Way (PFAW) and its more than 675,000 members and supporters, I write in support of your efforts to strengthen the Freedom of Information Act (FOIA) and promote greater public access to government records through the proposed Open Government Act of 2005 (OGA). Open government is a vital component of this country's democratic framework, allowing citizens to learn about the activities of their government and helping ensure government accountability. FOIA, which permits public access to federal records, has helped establish the public's right to obtain government information and created a strong presumption in favor of disclosure. Serious problems have arisen with full and timely agency compliance with FOIA and its goals, however, necessitating the types of important FOIA reforms contemplated in the OGA. In particular, PFAW is supportive of the Act's use of penalties to enforce compliance with FOIA deadlines, particularly the provision imposing a presumptive waiver of FOIA exemptions when an agency fails to meet the 20-day production deadline, and the requirement that Congress be explicit when it considers creating additional exemptions under 5 U.S.C. 552(b)(3). We also support the provision in the bill that would permit an award of attorney fees when a nonfrivolous lawsuit has served as the catalyst for voluntary disclosure of a substantial part of a FOIA request. It is imperative that a requester--who must incur litigation costs to enforce agency compliance with the law--be able to recover attorneys' fees and litigation costs in such cases, particularly in order to discourage arbitrary and unlawful agency rejections of legitimate FOIA requests. Finally, we believe that the various recordkeeping and monitoring provisions of the Open Government Act--including monitoring of the Department of Homeland Security's use of its ``critical infrastructure information'' exemption and mandatory agency disclosure of the 10 oldest active requests--are useful and necessary to ensure the integrity of the open government process and to gather the information needed to modify and adjust our open government laws going forward. We applaud your efforts to reaffirm the vital importance of open government in this country and believe that the Open Government Act is an encouraging first step toward that goal. Sincerely, Ralph G. Neas, President. Mr. CORNYN. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 394 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Openness Promotes Effectiveness in our National Government Act of 2005'' or the ``OPEN Government Act of 2005''. SEC. 2. FINDINGS. Congress finds that-- (1) the Freedom of Information Act was signed into law on July 4, 1966, because the American people believe that-- (A) our constitutional democracy, our system of self- government, and our commitment to popular sovereignty depends upon the consent of the governed; (B) such consent is not meaningful unless it is informed consent; and (C) as Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), ``The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.''; (2) the American people firmly believe that our system of government must itself be governed by a presumption of openness; (3) the Freedom of Information Act establishes a ``strong presumption in favor of disclosure'' as noted by the United States Supreme Court in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act; (4) ``disclosure, not secrecy, is the dominant objective of the Act,'' as noted by the United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976)); (5) in practice, the Freedom of Information Act has not always lived up to the ideals of that Act; and (6) Congress should regularly review section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), in order to determine whether further changes and improvements are necessary to ensure that the Government remains open and accessible to the American people and is always based not upon the ``need to know'' but upon the fundamental ``right to know''. SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA. Section 552(a)(4)(A)(ii) of title 5, United States Code, is amended by adding at the end the following: ``In making a determination of a representative of the news media under subclause (II), an agency may not deny that status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester. Prior publication history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no prior publication history or current affiliation, the agency shall consider the requestor's stated intent at the time the request is made to distribute information to a reasonably broad audience.''. SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS. Section 552(a)(4)(E) of title 5, United States Code, is amended by adding at the end the following: ``For purposes of this section, a complainant has `substantially prevailed' if the complainant has obtained a substantial part of its requested relief through a judicial or administrative order or an enforceable written agreement, or if the complainant's pursuit of a nonfrivolous claim or defense has been a catalyst for a voluntary or unilateral change in position by the opposing party that provides a substantial part of the requested relief.''. SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS REJECTIONS OF REQUESTS. Section 552(a)(4)(F) of title 5, United States Code, is amended-- (1) by inserting ``(i)'' after ``(F)''; and (2) by adding at the end the following: ``(ii) The Attorney General shall-- ``(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and ``(II) annually submit a report to Congress on the number of such civil actions in the preceding year. ``(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i).''. SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS. (a) Time Limits.-- (1) In general.--Section 552(a)(6)(A)(i) of title 5, United States Code, is amended by inserting ``, and the 20-day period shall commence on the date on which the request is first received by the agency, and shall not be tolled without the consent of the party filing the request'' after ``adverse determination''. (2) Effective date.--The amendment made by this subsection shall take effect 1 year after the date of enactment of this Act. [[Page S1525]] (b) Availability of Agency Exemptions.-- (1) In general.--Section 552(a)(6) of title 5, United States Code, is amended by adding at the end the following: ``(G)(i) If an agency fails to comply with the applicable time limit provisions of this paragraph with respect to a request, the agency may not assert any exemption under subsection (b) to that request, unless disclosure-- ``(I) would endanger the national security of the United States; ``(II) would disclose personal private information protected by section 552a or proprietary information; or ``(III) is otherwise prohibited by law. ``(ii) A court may waive the application of clause (i) if the agency demonstrates by clear and convincing evidence that there was good cause for the failure to comply with the applicable time limit provisions.''. (2) Effective date and application.--The amendment made by this subsection shall take effect 1 year after the date of enactment of this Act and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date. SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND STATUS INFORMATION. (a) In General.--Section 552(a) of title 5, United States Code, is amended by adding at the end the following: ``(7) Each agency shall-- ``(A) establish a system to assign an individualized tracking number for each request for information under this section; ``(B) not later than 10 days after receiving a request, provide each person making a request with the tracking number assigned to the request; and ``(C) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including-- ``(i) the date on which the agency originally received the request; and ``(ii) an estimated date on which the agency will complete action on the request.''. (b) Effective Date and Application.--The amendment made by this section shall take effect 1 year after the date of enactment of this Act and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date. SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS. Section 552(b) of title 5, United States Code, is amended by striking paragraph (3) and inserting the following: ``(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute-- ``(A) if enacted after the date of enactment of the Openness Promotes Effectiveness in our National Government Act of 2005, specifically cites to this section; and ``(B)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or ``(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld;''. SEC. 9. REPORTING REQUIREMENTS. Section 552(e)(1) of title 5, United States Code, is amended-- (1) in subparagraph (F), by striking ``and'' after the semicolon; (2) in subparagraph (G), by striking the period and inserting a semicolon; and (3) by adding at the end the following: ``(H) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally filed; ``(I) the average number of days for the agency to respond to a request beginning the date on which the request was originally filed, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests; and ``(J) the number of fee status requests that are granted and denied, and the average number of days for adjudicating fee status determinations. When reporting the total number of requests filed, agencies shall distinguish between first person requests for personal records and other kinds of requests, and shall provide a total number for each category of requests.''. SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE ENTITY. Section 552(f) of title 5, United States Code, is amended by striking paragraph (2) and inserting the following: ``(2) `record' and any other term used in this section in reference to information includes-- ``(A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and ``(B) any information described under subparagraph (A) that is maintained for an agency by an entity under a contract between the agency and the entity.''. SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES. (a) In General.--Chapter 5 of title 5, United States Code, is amended-- (1) by redesignating section 596 as section 597; and (2) by inserting after section 595 the following: ``Sec. 596. Office of Government Information Services ``(a) There is established the Office of Government Information Services within the Administrative Conference of the United States. ``(b) The Office of Government Information Services shall-- ``(1) review policies and procedures of administrative agencies under section 552 and compliance with that section by administrative agencies; ``(2) conduct audits of administrative agencies on such policies and compliance and issue reports detailing the results of such audits; ``(3) recommend policy changes to Congress and the President to improve the administration of section 552, including whether agencies are receiving and expending adequate funds to ensure compliance with that section; and ``(4) offer mediation services between persons making requests under section 552 and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, issue advisory opinions if mediation has not resolved the dispute.''. (b) Technical and Conforming Amendment.--The table of sections for chapter 5 of title 5, United States Code, is amended by striking the item relating to section 596 and inserting the following: ``596. Office of Government Information Services. ``597. Authorization of appropriations.''. (c) Effective Date.--The amendments made by this section shall take effect 1 year after the date of enactment of this Act. SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE INFORMATION. (a) In General.--Not later than January 1 of each of the 3 years following the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the implementation and use of section 214 of the Homeland Security Act of 2002 (6 U.S.C. 133), including-- (1) the number of persons in the private sector, and the number of State and local agencies, that voluntarily furnished records to the Department under this section; (2) the number of requests for access to records granted or denied under this section; (3) such recommendations as the Comptroller General considers appropriate regarding improvements in the collection and analysis of sensitive information held by persons in the private sector, or by State and local agencies, relating to vulnerabilities of and threats to critical infrastructure, including the response to such vulnerabilities and threats; and (4) an examination of whether the nondisclosure of such information has led to the increased protection of critical infrastructure. (b) Form.--The report shall be submitted in unclassified form, but may include a classified annex. SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO FOIA. Not later than 1 year after the date of enactment of this Act, the Office of Personnel Management shall submit to Congress a report that examines-- (1) whether changes to executive branch personnel policies could be made that would-- (A) provide greater encouragement to all Federal employees to fulfill their duties under section 552 of title 5, United States Code; and (B) enhance the stature of officials administering that section within the executive branch; (2) whether performance of compliance with section 552 of title 5, United States Code, should be included as a factor in personnel performance evaluations for any or all categories of Federal employees and officers; (3) whether an employment classification series specific to compliance with sections 552 and 552a of title 5, United States Code, should be established; (4) whether the highest level officials in particular agencies administering such sections should be paid at a rate of pay equal to or greater than a particular minimum rate ; and (5) whether other changes to personnel policies can be made to ensure that there is a clear career advancement track for individuals interested in devoting themselves to a career in compliance with such sections; and (6) whether the executive branch should require any or all categories of Federal employees to undertake awareness training of such sections. Mr. LEAHY. Mr. President, I am pleased to join as a partner with the Senator from Texas in introducing the OPEN Government Act of 2005. I have devoted a considerable portion of my work in the Senate to improving Government oversight, Government openness and citizen ``right-to-know'' laws to make Government work better for the American people, and at times it has been a lonely battle. Finding dedicated allies on the other side of the aisle has proven difficult. That is why I am delighted to have a partner in John Cornyn. Senator Cornyn has a distinguished record of supporting open government dating back to his days as Attorney General of Texas. In fact, [[Page S1526]] some of the provisions in the bill we introduce today are modeled after sections of the Texas Public Information Act. I believe that we both see this effort as the first of many bipartisan steps we can take together in the new Congress. Senator Cornyn and I began to forge a partnership on improving public access to Government information well over a year ago when, during the 108th Congress, we worked with several other Senators and with the Library of Congress to improve the publicly accessible congressional information website, THOMAS. He and I also cooperated last fall in a successful effort to ensure that ``government information,'' including the application of the Freedom of Information Act, FOIA, be subject to the jurisdiction of both the Judiciary Committee and the newly constituted Homeland Security and Governmental Affairs Committee. The bill we introduce today is a collection of commonsense modifications designed to update FOIA and improve the timely processing of FOIA requests by Federal agencies. It was drafted after a long and thoughtful process of consultation with individuals and organizations that rely on FOIA to obtain information and share it with the public, including the news media, librarians, and public interest organizations representing all facets of the political spectrum. The OPEN Government Act reaffirms the fundamental premise of FOIA: Government information belongs to all Americans and should be subject to a presumption in favor of disclosure. James Madison said that ``a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' His caution rings just as true today. The public's right to know what its government is doing promotes accountability, imbues trust and contributes to our system of checks and balances. First enacted in 1966, FOIA represents the foundation of our modern open Government laws. In 1996, I was the principal author of the Electronic Freedom of Information Act Amendments, which updated FOIA for the internet age. The bill we introduce today is the next step: a practical set of important modifications that respond to common complaints and limitations in the current system that we have heard, whether from frequent FOIA requestors, such as representatives of the press, or individual citizens who may only occasionally rely on FOIA, but who nonetheless deserve timely and comprehensive responses to their requests. Chief among the problems with FOIA implementation is agency delay. Following the successful model of the Texas Public Information Act, this legislation imposes penalties on agencies that miss statutory deadlines to release documents and strengthens reporting requirements on FOIA compliance. The OPEN Government Act responds to some confusion over the applicability of FOIA to agency records that are held by outside private contractors. It does this by clarifying that such records are subject to FOIA wherever they are located. Our legislation establishes an ombudsman to mediate FOIA disputes between agencies and requestors, a step that many FOIA requestors believe will help to ameliorate the need for FOIA litigation in the Federal courts. We hope that this mechanism will work to the benefit of all parties. However, where mediation fails to resolve disputes, our bill preserves the rights of requestors to litigate under FOIA. Our bill responds to recent Federal jurisprudence by explicitly providing for recovery of attorneys' fees under the so-called ``catalyst theory.'' That is, where a FOIA lawsuit was the catalyst for an agency determination to release documents prior to a court's entry of judgment, the plaintiff may recover attorneys' fees. Finally, the bill requires reports on a controversial law, the Critical Infrastructure Information Act, enacted as part of the Homeland Security Act of 2002, and it protects fee-waiver status for journalists under FOIA. Letters of support for the OPEN Government Act have been submitted by the American Association of Law Libraries, American Civil Liberties Union, American Library Association, American Society of Newspaper Editors, Associated Press Managing Editors, Association of Health Care Journalists, Center for Democracy & Technology, Coalition of Journalists for Open Government, Committee of Concerned Journalists, Education Writers Association, Electronic Privacy Information Center, Federation of American Scientists/Project on Government Secrecy, Free Congress Foundation/Center for Privacy & Technology Policy, Freedom of Information Center/University of Missouri, The Freedom of Information Foundation of Texas, The Heritage Foundation/Center for Media and Public Policy, Information Trust, National Conference of Editorial Writers, National Freedom of Information Coalition, National Newspaper Association, National Security Archive/George Washington University, Newspaper Association of America, People for the American Way, Project on Government Oversight, Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, and the Society of Environmental Journalists. The Freedom of Information Act is an invigorating mechanism that helps keep our government more open and effective and closer to the American people. FOIA has had serious setbacks in recent years that endanger its effectiveness. This legislation is a rare chance to advance the public's right to know. I thank my colleague, the Senator from Texas, for the time and effort he has devoted to protecting the public's right to know, and I urge all members of the Senate to join us in supporting this important legislation. ______