Congressional Record: March 14, 2007 (House)
Page H2500-H2507
FREEDOM OF INFORMATION ACT AMENDMENTS OF 2007
Mr. CLAY. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 1309) to promote 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, as amended.
The Clerk read as follows:
H.R. 1309
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Freedom of
Information Act Amendments of 2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Protection of fee status for news media.
Sec. 4. Recovery of attorney fees and litigation costs.
Sec. 5. Disciplinary actions for arbitrary and capricious rejections of
requests.
Sec. 6. Time limits for agencies to act on requests.
Sec. 7. Individualized tracking numbers for requests and status
information.
Sec. 8. Specific citations in exemptions.
Sec. 9. Reporting requirements.
Sec. 10. Openness of agency records maintained by a private entity.
Sec. 11. Office of Government Information Services.
Sec. 12. Accessibility of critical infrastructure information.
Sec. 13. Report on personnel policies related to FOIA.
Sec. 14. Promotion of public disclosure.
Sec. 15. Requirement to describe exemptions authorizing deletions of
material provided under FOIA.
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.
(a) In General.--Section 552(a)(4)(E) of title 5, United
State Code, is amended by adding at the end the following:
``For purposes of this section only, a complainant has
substantially prevailed if the complainant has obtained
relief through either--
``(i) a judicial order, administrative action, or an
enforceable written agreement or consent decree; or
``(ii) a voluntary or unilateral change in position by the
opposing party, in a case in which the complainant's claim or
defense was not frivolous.''.
(b) Limitation.--Notwithstanding section 1304 of title 31,
United States Code, no amounts may be obligated or expended
from the Claims and Judgment Fund of the United States
Treasury to pay the costs resulting from the amendments made
by this section. Any such amounts shall be paid only from
funds annually appropriated for the Federal agency against
which a claim or judgment has been rendered.
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 striking ``determine within 20
days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of any such request'' and
inserting ``within the 20-day period commencing on the date
on which the request is first received by the agency
(excepting Saturdays, Sundays, and legal public holidays),
which shall not be tolled without the consent of the party
filing the request, determine''.
(2) Effective date.--The amendment made by this subsection
shall take effect 1 year after the date of enactment of this
Act.
(b) Applicability of Agency Fees.--
(1) Limitation.--Section 552(a)(4)(A) of title 5, United
States Code, is amended by adding at the end the following:
``(viii) An agency shall refund any fees collected under
this subparagraph if the agency fails to comply with any time
limit that applies under paragraph (6). Such refunds shall be
paid from annual appropriations provided to that agency.''.
(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 shall 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 Freedom
of Information Act Amendments of 2007, 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
[[Page H2501]]
``(ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld;''.
SEC. 9. REPORTING REQUIREMENTS.
(a) Annual Report Requirements.--Section 552(e)(1) of title
5, United States Code, is amended--
(1) in the matter preceding subparagraph (A) by striking
``fiscal year and which'' and inserting ``fiscal year.
Information in the report shall be expressed in terms of each
principal component of the agency and for the agency overall,
and'';
(2) in subparagraph (B)(ii), by inserting after the first
comma the following, ``the number of occasions on which each
statute was relied upon,'';
(3) in subparagraph (C), by inserting after ``median'' the
following: ``and average'';
(4) in subparagraph (E), by inserting before the semicolon
the following: ``, based on the date on which each request
was initially received by the agency''; and
(5) by redesignating subparagraphs (F) and (G) as
subparagraphs (N) and (O), respectively, and inserting after
subparagraph (E) the following new subparagraphs:
``(F) the average number of days for the agency to respond
to requests beginning on the date on which each request was
initially received by the agency, 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;
``(G) based on the number of business days that have
elapsed since each request was initially received by the
agency--
``(i) the number of requests for records to which the
agency has responded with a determination within a period
greater than 1 day and less than 201 days, stated in 20-day
increments;
``(ii) the number of requests for records to which the
agency has responded with a determination within a period
greater than 200 days and less than 301 days;
``(iii) the number of requests for records to which the
agency has responded with a determination within a period
greater than 300 days and less than 401 days; and
``(iv) the number of requests for records to which the
agency has responded with a determination within a period
greater than 400 days;
``(H) the average number of days for the agency to provide
the granted information beginning on the date on which each
request was initially received by the agency, the median
number of days for the agency to provide the granted
information, and the range in number of days for the agency
to provide the granted information;
``(I) the median and average number of days for the agency
to respond with a determination to administrative appeals
based on the date on which each appeal was initially received
by the agency; the highest number of business days taken by
the agency to respond to an administrative appeal; and the
lowest number of business days taken by the agency to respond
to an administrative appeal;
``(J) data on the 10 active requests with the earliest
filing dates pending at the agency, including the amount of
time that has elapsed since each request was initially
received by the agency;
``(K) data on the 10 active administrative appeals with the
earliest filing dates pending at the agency as of September
30 of the preceding year, including the number of business
days that have elapsed since each request was initially
received by the agency;
``(L) the number of expedited review requests received by
the agency, the number that were granted and the number that
were denied, the average and median number of days for
adjudicating expedited review requests, and the number of
requests that adjudicated within the required 10 days;
``(M) the number of fee waiver requests that were granted
and the number that were denied, and the average and median
number of days for adjudicating fee waiver determinations;''.
(b) Availability of Raw Statistical Data.--Section
552(e)(2) of title 5, United States Code, is amended by
adding after the period the following: ``In addition, each
agency shall make the raw statistical data used in its
reports available electronically to the public upon
request.''.
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 21 of title 44, United States
Code, is amended by inserting after section 2119 the
following new section:
``Sec. 2120. Office of Government Information Services
``(a) In General.--There is established in the National
Archives an office to be known as the `Office of Government
Information Services'.
``(b) National Information Advocate.--
``(1) In general.--The Office of Government Information
Services shall be under the supervision and direction of an
official to be known as the `National Information Advocate'
who shall report directly to the Archivist of the United
States.
``(2) Functions of office.--
``(A) Guidance for requesters.--
``(i) In general.--The Office of Government Information
Services shall provide, as a non-exclusive alternative to
litigation, guidance to FOIA requesters.
``(ii) Types of guidance.--In providing such guidance, the
Office shall provide informal guidance to requesters and may
provide fact-finding reviews and opinions to requesters. All
reviews and opinions shall be non-binding and shall be
initiated only on the request of FOIA requesters.
``(iii) Availability.--Any written opinion issued pursuant
to this section shall be available on the Internet in an
indexed, readily accessible format.
``(iv) FOIA requesters.--In this paragraph, the term `FOIA
requester' or `requester' means a person who has made a
request under section 552 of this title and who has been
denied records or has not received a timely response to the
request or to an administrative appeal.
``(B) Analyses of agency operations.--The Office of
Government Information Services shall--
``(i) review polices and procedures of administrative
agencies under section 552 of this title and compliance with
that section by administrative agencies; and
``(ii) recommend policy changes to Congress and the
President to improve the administration of section 552 of
this title, including whether agencies are receiving and
expending adequate funds to ensure compliance with that
section.
``(3) Impact on requester access to litigation.--Nothing in
this section shall affect the right of requesters to seek
judicial review as described in section 552 of this title.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 21 of title 44, United States Code, is
amended by inserting after the item relating to section 2119
the following:
``2120. Office of Government Information Services.''.
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;
(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.
SEC. 14. PROMOTION OF PUBLIC DISCLOSURE.
Section 552 of title 5, United States Code, is amended by
adding at the end the following:
[[Page H2502]]
``(h)(1) The policy of the Federal Government is to release
information to the public in response to a request under this
section--
``(A) if such release is required by law; or
``(B) if such release is allowed by law and the agency
concerned does not reasonably foresee that disclosure would
be harmful to an interest protected by an applicable
exemption.
``(2) All guidance provided to Federal Government employees
responsible for carrying out this section shall be consistent
with the policy set forth in paragraph (1).''.
SEC. 15. REQUIREMENT TO DESCRIBE EXEMPTIONS AUTHORIZING
DELETIONS OF MATERIAL PROVIDED UNDER FOIA.
Section 552(b) of title 5, United States Code, is amended
in the matter appearing after paragraph (9)--
(1) in the second sentence, by inserting after ``amount of
information deleted'' the following: ``, and the exemption
under which the deletion is made,''; and
(2) in the third sentence, by inserting after ``amount of
the information deleted'' the following: ``, and the
exemption under which the deletion is made,''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Missouri (Mr. Clay) and the gentleman from Ohio (Mr. Turner) each will
control 20 minutes.
The Chair recognizes the gentleman from Missouri.
General Leave
Mr. CLAY. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Missouri?
There was no objection.
Mr. CLAY. Mr. Speaker, as chairman of the Oversight Subcommittee on
Information Policy, Census and National Archives, and lead sponsor of
the Freedom of Information Act Amendments of 2007, I strongly urge my
colleagues to support H.R. 1309.
H.R. 1309 champions the values of transparency and open government
that we celebrate during Sunshine Week and that are embodied in the
Freedom of Information Act, or FOIA, as it is referred to.
Introduced with my colleagues Representative Waxman, chairman of the
full Committee on Oversight and Government Reform, and Representative
Platts, this bipartisan legislation is necessary to strengthen FOIA as
a tool for enabling public access to government records.
During a hearing in February, the subcommittee heard extensive
testimony concerning long delays and bureaucratic obstacles experienced
by requesters when trying to obtain government records under FOIA.
According to testimony from GAO, most agencies throughout the
government are failing to keep pace with the volume of requests they
are receiving, the number of pending requests carried over from year to
year has been steadily increasing, and the rate of increase is growing.
A report released on Monday by the nonprofit National Security
Archive further highlights the failure of agencies to make information
available to the public in a timely way. According to the report, just
22 percent of agencies are complying with the 1996 ``e-FOIA law,''
which requires agencies to post frequently requested information on
their Web sites.
An insufficient level of resources available for FOIA processing is
one reason requesters are being forced to wait long periods of time for
responses from agency FOIA offices. Another factor is the current
administration's policy of withholding government information that
would have been released under previous administrations. Government
secrecy has increased as the volume of requests has gone up
dramatically.
Building on the OPEN Government Act introduced in the last Congress
by Senators Cornyn and Leahy and Representative Lamar Smith, H.R. 1309
contains 13 substantive provisions aimed at removing obstacles to
complete and timely government responses to FOIA requests.
The bill would re-establish the policy of the Clinton administration,
under which agencies were directed to disclose requested information
unless the disclosure would result in some harm. The current
administration has encouraged agencies to be more aggressive in
asserting statutory exemptions to deny FOIA requests.
In addition, the bill proposes a government-wide ombudsman to mediate
disputes between agencies and requesters. This would help to reduce the
number of disputes resolved through costly and time consuming
litigation.
Other key provisions include: A requirement that agencies respond to
FOIA requests within 20 business days or face meaningful administrative
penalties; the establishment of a publicly accessible tracking system
for pending FOIA requests; and new reporting requirements to allow
Congress to evaluate agency compliance with FOIA laws and regulation.
In conclusion, Mr. Speaker, H.R. 1309 provides a strong, reasonable
and bipartisan approach to streamlining the FOIA process and increasing
transparency in government. It has the vigorous support of every major
organization representing the media industry, journalists, historians,
archivists and the public interest in government openness and
accountability.
We owe it to our constituents to pass this legislation and ensure
that the Freedom of Information Act provides actual access to
government information to which the American people are entitled.
I urge all of my colleagues to support the bill.
Mr. Speaker, I reserve the balance of my time.
Mr. TURNER. Mr. Speaker, I yield myself as much as I may consume.
Mr. Speaker, we have a bit of irony in play here on the House floor.
This week the Democratic leadership has declared it Open Government
Week, Open Government Week as we take up amendments to the Freedom of
Information Act, an act that is incredibly important as a tool for us
to hold our government accountable because it gives people the
opportunity to access information that can be reviewed by people to
determine what action needs to be taken.
But, unfortunately, in the middle of this Open Government Week we
have a bill that is coming to the floor, not the bill that went to the
committee, not the bill that went through the subcommittee hearings,
but an amended bill that has not been reviewed, and was handed to us 10
minutes ago.
Now, the reason why bills come on the Suspension Calendar where we
agree to suspend the rules is because they are bills that have been
fully vetted, that have openness to them, and that people are aware of
what they are and have the opportunity to review them when we have an
understanding that more than a majority of this House supports what is
in that bill.
But today, without prior notice, and 10-minute amendments to the
bill, we have a bill that we are currently reviewing to determine what
changes have been made and what the implications would be.
Some of the speakers on the other side of the aisle talked about in
Open Government Week that we wanted to make certain that there weren't
backroom deals that were being made. Well, clearly the bill,
unfortunately, that comes before us on the Freedom of Information Act
is the product of a backroom deal where the majority of this House is
going to be left with reviewing it to determine what is in it after it
had come through our committee and subcommittee.
So my comments about this bill will be about the one that came from
the committee and the subcommittee that the subcommittee Chair and the
chairman worked so hard in a bipartisan way to bring to this floor.
I know others on this side of the aisle will be reserving their
comments for the areas of the bill where it has been modified, where
the backroom deals have been made. And we are all unaware of its
impact.
The Freedom of Information Act is a popular tool for inquiry for the
press, researchers, business, attorneys, activists. But most
importantly, it remains a tool for the citizen. Improving the
procedural aspects of the act is certainly a worthy goal.
Legislation designed to streamline and improve the Freedom of
Information Act process was introduced last Congress by the gentleman
from Texas (Mr. Smith). His bill, H.R. 867, has moved through
subcommittee to the full committee. This was a solid bipartisanship
bill that Republicans introduced and guided through the legislative
process. This year the majority took that bipartisanship bill and made
a few changes.
Republicans offered two amendments that were not included in the
reported
[[Page H2503]]
bill. First, the attorneys' fee provision appears to significantly
lower the bar for the recovery of fees, making it easier for those
seeking information from the Federal Government to recover legal fees.
The language in this bill differs from that in H.R. 867. The Supreme
Court has ruled on this matter in the Buckhannon case, and now some
fear the effect of this decision, what it might have on their ability
to get attorneys' fees.
The language of section 4 of this bill would make plaintiffs eligible
for attorneys' fees in almost any case, so long as they can show that
the defending government agency somehow changed its position once the
case had commenced. I hope we can closely consider the rationale behind
this provision, and its implications for the numerous Federal statutes
providing for attorneys' fee awards where the United States or a
Federal agency or official is a party. You have to assume that if this
is the provision that passes, everyone litigating under any private
right of action will clamor for the same favorable legislative
treatment.
An amendment was offered in committee to strike section 4 to preserve
settled judicial precedent regarding attorneys' fees and highlight this
issue. I hope my colleagues in the House and the other body will take a
close look at this section as the legislation moves forward.
Second, the majority has taken to heart various groups' concerns
about the so-called Ashcroft memo. During President Clinton's
administration, Attorney General Janet Reno issued a memorandum
establishing a presumption of disclosure if no foreseeable harm would
result from the release of information.
Shortly after 9/11, and recognizing the challenges of the standard
and the challenges that we face in the global war on terror, Attorney
General Ashcroft issued a memorandum that encouraged agencies to
carefully consider the protection of the values of interest embodied in
the statutory exemptions to FOIA when making disclosure determinations.
I understand that there are serious concerns with this section, and I
understand the gentleman from Texas (Mr. Smith) will speak on this bill
and this provision.
Nevertheless, I hope that we continue to balance the need for open
government with the need to protect information vital to national
security and homeland security, and I hope we keep in mind the
importance of individual privacy throughout this debate.
Mr. Speaker, I reserve the balance of my time.
Mr. CLAY. Mr. Speaker, at this time I yield 5 minutes to the
distinguished chairman from California, Mr. Waxman.
Mr. WAXMAN. Thank you very much, Mr. Clay, the chairman of the
subcommittee, and I thank the gentleman from Ohio, the ranking member
of the subcommittee.
Mr. Speaker, I first of all have to express my regret in response to
the complaint that, while we have openness in government, we had an
amendment to this bill suddenly presented to the minority.
{time} 1130
And let me explain why that happened. The legislation before us was
completely bipartisan in committee. I don't think anybody voted against
the bill passing out of our committee, for all the reasons that both
the Chair of the subcommittee and the ranking member described, and I
would like to get into those substantive issues as well, because this
is the best known and most important of the freedom of information that
people look to when they want to be able to find out what government is
doing. It is called the Freedom of Information Act for that reason.
But we did not have presented to us in committee any objection to the
fact that there is a score on this bill of $7 million. But because
there is a score, we found out last night that there might be an
objection to the bill; and we didn't want to have an objection to the
bill, possibly cause people to come to the floor and vote against
something as important as the Freedom of Information Act. So we added
an amendment to the bill that simply provided that the $7 million,
which, by the way, is only expended if the government is sued and loses
and has to pay the penalty owed to people for withholding the
information. But because there is a $7 million score, we added to this
bill that there would be nothing paid unless there is an appropriation
of that money. So the bill would not be scored as costing any money at
all.
I wish we had more time to bring this to everyone's attention, but no
one brought to our attention in the committee that there was concern
about this score.
Nevertheless, this bill goes to the heart of the public's access to
find out information about what its government is doing. And as we look
at what we have designated ``Sunshine Week,'' we are considering this
legislation to improve and strengthen this vital law.
H.R. 1309 has been in effect for 40 years, but yet we have a dozen
provisions that will increase public access to information under FOIA.
These provisions will help FOIA requesters obtain timely responses to
their requests, reduce the backlogs at agencies, increase transparency
in agency compliance, and provide an alternative to litigation for
requesters who are facing delays or denials.
In addition, this bill will restore an important element of the
Freedom of Information Act, the presumption of disclosure. Through
memoranda issued in 2001 and 2002, the Bush administration discouraged
agencies from releasing any document if they could find a technical
reason for withholding it. This bill before us today reverses this
policy by codifying the presumption of disclosure. Under this bill,
agencies will revert to their former policies that emphasized public
disclosure and supported the withholding of information only when the
agency could foresee a harm from disclosure. This is an important
change that will ensure continued public access to government
information.
The bill is a bipartisan bill, it is an important bill for openness
in government, and I urge my colleagues to support the legislation.
Mr. TURNER. Mr. Speaker, I appreciate the chairman's description of
that. I do want to note that my understanding of the applicable dates
are that the markup of our bill occurred on March 8 and the CBO cost
estimate I believe is dated March 12, which would explain perhaps why
there were no objections in the committee.
Mr. Speaker, I yield 4 minutes to the gentleman from Wisconsin (Mr.
Ryan).
Mr. RYAN of Wisconsin. Mr. Speaker, I came to the floor to oppose the
bill not on the merits of the FOIA policy, but on the grounds that this
bill had a budget section 303 point of order against it and that it
violated the new PAYGO rules we have before us.
This bill that we just now got 10 minutes ago, as we read it, we
believe does not violate section 303 of the Budget Act or the PAYGO
rules. But I think the point I would like to make is this: 10 minutes
ago this bill did have a section 303 violation against it; 10 minutes
ago this bill did violate the majority's own PAYGO rules they put in
place less than 10 months ago. And it scores not just a $7 million, but
a $63 million increase over 10 years. So $63 million over 10 years is a
lot of money. And given the fact that this new amended bill, as it
appears as we read it, does have the required language, subject to
appropriations, that it is not out of order, it doesn't waive the PAYGO
rules because it does pay for itself subject to appropriations.
I will withhold my objection, but I simply want to say to the
majority this place would run a lot better if, when we put bills on the
calendar and bring them to the floor, that they comply with the rules
that the majority themselves put in place just 2 months ago with
respect to PAYGO and with respect to the Budget Act. I just think the
whole place would work a lot better if we do that. Then we get on to
debating the merits of this legislation.
I think FOIA is an important tool. It needs to work better. I think
there is a lot of merit to that point. But let's make sure that as we
take a look at our budget problems, and they are enormous, our budget
problems, if we can't make sure that bills that spend $63 million over
10 years can't comply with the Budget Act, can't comply with PAYGO, who
is to say that bills that spend $2.9 trillion like our Federal budget
can comply with it? So if we
[[Page H2504]]
can't get the rules right on small bills, who is to say we are going to
get the budget discipline rules right on the big bills?
Fiscal discipline starts one step at a time, starts one bill at a
time. We have got to get fiscal discipline rules in place and right on
small business, especially if this Congress is going to get our arms
around our larger fiscal problems.
That is simply the point I want to make to the chairman.
Mr. WAXMAN. Mr. Speaker, will the gentleman yield?
Mr. RYAN of Wisconsin. I yield to the gentleman from California.
Mr. WAXMAN. I thank the gentleman for yielding to me, and I just want
to say what is seldom said on the House floor, that I agree with you.
And we tried to correct the problems so that we didn't make the error
that would have violated our PAYGO principles. And I thank the
gentleman for pointing it out, and I think you have raised a very good
point and we should all be mindful of it, including the points about
the deficit, which I strongly think we need to deal with. So we will
have differences about that, but I do want to show my agreement with
your basic statement.
Mr. RYAN of Wisconsin. I appreciate the gentleman.
Mr. CLAY. Mr. Speaker, I reserve the balance of my time.
Mr. TURNER. Mr. Speaker, I yield 4 minutes to the gentleman from
Texas (Mr. Smith).
Mr. SMITH of Texas. Mr. Speaker, I appreciate my colleague from Ohio
yielding me time, and I also want to thank Ranking Member Tom Davis and
Chairman Henry Waxman for their hard work on this issue. I know how
strongly they feel about the need for more open government, and I and
many others appreciate their efforts.
The process for obtaining government information is overly
burdensome, and Federal agencies have become less and less responsive
to requests for information. This deters citizens from obtaining
information to which they are entitled.
H.R. 1309, the Freedom of Information Act Amendments of 2007, has
much to recommend it, but it contains at least one fatal flaw, the
statutory presumption of disclosure. For that reason, I oppose this
legislation.
The presumption of disclosure would reverse the FOIA guidelines set
out by former Attorney General John Ashcroft. Shortly after September
11, 2001, then-Attorney General John Ashcroft directed that FOIA be
used to ensure an open and accountable system of government while at
the same time protecting national security and personal privacy.
The directive encouraged agencies, when making a decision on
discretionary disclosure, to carefully consider whether national
security, privacy, and government's interest would be jeopardized.
Unfortunately, this bill only exacerbates national security and
personal privacy concerns. Instead of allowing agency discretion
regarding national security concerns, this statutory language would
mandate the release of information if the information does not
blatantly fall under an existing exemption.
For instance, under the bill's language there is no discretion to
determine whether the information requested will invade personal
privacy. Also, if information requested is required by FOIA to be
released, under this language it could tip off a terrorist to an
investigation that is being conducted. So the bill could set in motion
events that could compromise our national security.
Last year, neither the House nor Senate bipartisan legislation
included this questionable presumption of disclosure language. It is my
understanding that this year's bipartisan Senate version also will not
include this questionable language. And, furthermore, Mr. Speaker, the
administration opposes this provision, too.
There is no good reason to support a flawed bill, and I encourage my
colleagues to oppose it.
Mr. Speaker, I would ask unanimous consent to have the statement of
opposition by the administration be made a part of the Record.
Statement of Administration Policy--H.R. 1309--Freedom of Information
Act Amendments of 2007--(Rep. Clay (D) Missouri and two cosponsors)
The Administration shares the goals of H.R. 1309 of
increasing the timeliness of Freedom of Information Act,
FOIA, responses and ensuring a customer-oriented approach to
FOIA processing. The Administration has been pursuing these
goals, and will be continuing to pursue them, through the
strong management review and reforms that the President
directed 15 months ago in the first-ever Executive Order on
FOIA--Executive Order 13392, ``Improving Agency Disclosure of
Information''--which he signed on December 14, 2005.
However, the Administration cannot support H.R. 1309. The
Administration believes it would be premature and
counterproductive to the goals of increasing timeliness and
improving customer service to amend FOIA before agencies have
had sufficient time to implement the FOIA improvements that
the President directed them to develop, put into place,
monitor, and report on during FYs 2006 and 2007. For example,
as explained below, several of the bill's provisions would
impose substantial administrative and financial burdens on
the Executive Branch. These provisions could result in
slower, not faster, agency processing of FOIA requests, and
the personnel and funds needed to implement them would have
to come from existing agency resources. Moreover, the agency
reports that were issued last summer, and the improvement
plans that are being implemented, illustrate that the
challenges that agencies face in responding to FOIA requests
are often unique to each agency and, therefore, require
agency-tailored reforms, not a government-wide, one-size-
fits-all legislative approach.
The Administration's specific concerns with the bill
include the following.
The Administration strongly opposes expanding the
definition of ``representative of the news media.'' The bill
would exempt a larger class of requesters from the obligation
to pay fees assessed for searching for responsive documents.
Expanding the definition would have serious fiscal
consequences for the Executive Branch. Moreover, with no
requirement that requesters pay search fees, they have no
incentive to tailor their requests and will likely make
overly broad requests, which, in turn, will stretch agency
resources and increase the time it takes to process all
requests. Further, under current law, agencies have authority
to waive or reduce fees upon a determination that disclosure
of information will contribute significantly to public
understanding.
The Administration also strongly opposes reinstating the
so-called ``catalyst theory'' for the reimbursement of FOIA
litigation fees. The Administration is concerned that its
reinstatement would serve as a disincentive to an agency's
voluntarily revisiting decisions and improving procedures
with respect to FOIA requests, because doing so could make
the agency liable for a complainant's legal fees.
Furthermore, the bill could be interpreted to include an
``administrative action'' through the FOIA appeals process as
a possible means by which a requester can obtain ``relief''
that would justify attorneys fees. Such an interpretation
would be a major departure from long-standing administrative
law practice and would severely undercut the traditional
function of the administrative appeal process, which is
designed to provide the requester with an avenue of further
review at the agency, thereby reducing the likelihood of a
lawsuit. If this provision covers relief provided at the
administrative appeal stage, this could increase the FOIA
program costs dramatically and would serve as a disincentive
to release records at the administrative appeal stage.
The Administration strongly opposes commencing the 20-day
time limit for processing FOIA requests on the date that the
request ``is first received by the agency,'' and preventing
the collection of search fees if the timeline is not met.
This provision represents a very significant change from
current practice in which the 20-day clock begins once the
appropriate element of an agency has received the request in
accordance with the agency's FOIA regulations. The provision
fails to take into account the complexity of many requests,
the need to consult with other Executive Branch entities, or
the need to search for records in multiple locations,
including at Federal records centers. As noted above, the
Executive Order requires agencies to implement improvement
plans specifically focused on eliminating or reducing any
backlog of FOIA requests, and the Justice Department's
preliminary review of the agencies' annual reports indicates
that some agencies have already realized meaningful backlog
reductions.
The Administration is opposed to the creation of an
``Office of Government Information Services'' within the
National Archives and any intent that the proposed Office
would be given any sort of policymaking role with respect to
FOIA compliance. The FOIA compliance function remains
appropriately placed with the Department of Justice, the lead
agency in implementing Executive Order 13392.
Finally, the Administration strongly opposes the provision
in the bill that appears to be an attempt to repeal Attorney
General Ashcroft's FOIA Memorandum and return to Attorney
General Reno's pre-9/11 FOIA guidance. The Administration
believes that the structure of the FOIA reflects the
appropriate balance between the public's right to know how
the government is operating and the equally important need to
safeguard certain information, such as that pertaining to
personal privacy or homeland security.
[[Page H2505]]
Mr. CLAY. Mr. Speaker, at this time I yield 4 minutes to my
distinguished colleague from New York (Mrs. Maloney).
Mrs. MALONEY of New York. I thank the gentleman for yielding and for
his leadership, along with Mr. Waxman, on working on so many sunshine
bills to make government more open and accountable to the citizens, to
our taxpayers, to the American public. And an important part of
sunshine is the Freedom of Information Act Amendments, it is a
tremendously important bill, H.R. 1309, of 2007.
Since coming to Congress, I have been working on this committee, and
improved FOIA processes which are critical to an open government and
making our government more transparent is very fundamental to our
democracy.
We have made improvement over the years, and I am pleased to have
been one of the authors of the Electronic Freedom of Information Act of
1996. This important law was intended to make FOIA more efficient by
providing public access to information, including in an electronic
format.
The Oversight and Government Reform Committee, of which I am a
member, has held many hearings on FOIA over the past few years, and we
have learned that it has not progressed as well as we had hoped. Some
agencies and Departments are doing a better job of fulfilling freedom
of information requests, while some continue to have terrible records
and lag far, far behind. Requesters often wait months or years to find
out the status of their requests or to obtain the information. And I am
pleased that we have report language that clarifies that they have to
get back quickly on requests and at least let them know where they are.
As a result, the backlogs at agencies and Departments continue to
grow, and frequently the only recourse for the denial of requested
information is to file lawsuits. But many people, many Americans cannot
afford the high costs associated with court costs. So by not moving in
a timely manner, you are depriving them of this information.
H.R. 1309 includes many important provisions that my colleagues have
spoken about and that I hope will improve the process and eliminate the
problems that exist in today's system, including an amendment that I
offered in committee that would provide for greater disclosure to the
FOIA requester about the exemption under which a deletion has been made
from requested material.
I often hear from constituents, they come to my office with piles of
FOIA requests and like the whole thing is redacted and there is
absolutely no explanation why. This is really not fair, and we hope
that this amendment will improve the process.
I am pleased that it was accepted in a bipartisan way by Ranking
Member Davis and Ranking Member Turner. I really feel this legislation
is long overdue, and I commend Chairman Waxman and Ranking Member Davis
and Chairman Clay and Ranking Member Turner for bringing this
bipartisan legislation to the floor with the many other very important
sunshine bills to make our government more open and accountable to the
American public.
Mr. TURNER. Mr. Speaker, I yield 3 minutes to the gentleman from
Pennsylvania (Mr. Platts).
Mr. PLATTS. Mr. Speaker, I rise in support of H.R. 1309, the Freedom
of Information Act Amendments of 2007.
Open and accountable government make up the cornerstones of good
government. This legislation before us today seeks to strengthen these
cornerstones.
The Freedom of Information Act was signed into law over 40 years ago,
in July 1966, enacted after 11 years of debate. FOIA established a
statutory right of public access to executive branch information.
FOIA provides that any person has the right to obtain Federal agency
records. Originally, the act included nine categories of information
protected from disclosure, and Congress has added additional exemptions
over time.
Balancing the need for open government with the needs to protect
information vital to national security and personal privacy is a
constant struggle. Federal Departments and agencies are operating in
the post-9/11 information age and face 21st century security,
information management, and resource challenges.
As we seek to achieve this balance we must remember the words of
Thomas Jefferson who said, ``Information is the currency of
democracy.'' FOIA is an essential tool to ensure that the citizens of
our great Nation have access to information in the way that Thomas
Jefferson envisioned.
Over the past several years, the Government Reform Subcommittee on
Government Management, Finance, and Accountability, on which I had the
privilege to serve as Chair, conducted multiple hearings on FOIA
implementation.
{time} 1145
In response to legislative proposals introduced last session in the
House and Senate, as well as the oversight conducted by the
subcommittee, President Bush issued Executive Order 13392, entitled
Improving Agency Disclosure of Information, on December 14, 2005. This
document sought to improve the overall processing of FOIA requests,
creating a more citizen-centered and results-oriented approach to
information policy. And I certainly commend the administration for
their efforts.
In response to that effort, though, we believed further work was
needed. On September 27, 2006, the subcommittee marked up legislation
very similar to that legislation before us here today. Specifically,
the OPEN Government Act, introduced by my colleague from Texas, Lamar
Smith, like the bill before us today, would close loopholes in FOIA,
help requesters obtain more timely response, and provide FOIA officials
with the tools they need to ensure that the Federal Government remains
open and accessible.
While the legislation before us today includes provisions not
included in Representative Smith's legislation from last session and to
which he is currently opposed, I certainly want to commend
Representative Smith for his leadership and dedicated efforts to
improve the Freedom of Information Act and to make government more open
and accountable.
I also want to thank Chairman Waxman of the full committee and
subcommittee Chairman Clay for their efforts in moving this legislation
forward quickly and, as well, recognize Ranking Member Davis of the
full committee and Ranking Member Turner at the subcommittee for their
efforts.
This legislation is about open and accountable government. I urge a
``yes'' vote.
Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
In closing, I would like to thank my colleagues on both sides of the
aisle for working together on this bill to open up our government to
the people of the United States. And I also want to thank Mr. Smith,
who has reservations about the bill, but I want to thank him for his
leadership in championing the cause of freedom of information in this
country.
I want to also thank my friend from Wisconsin for agreeing with us
that the bill was modified since it came out of committee, and that
modification was in order to eliminate the costs associated with the
bill.
Let me say that H.R. 1309 champions the values of transparency and
open government that we celebrate during Sunshine Week and that are
embodied in the Freedom of Information Act. The bill does several
things: It would reestablish the policy of previous administrations
under which agencies were directed to disclose requested information
unless the disclosure could result in harm. In addition, the bill
proposes a government-wide ombudsman to mediate disputes between
agencies and requesters. This would help to reduce the number of
disputes resolved through costly and time-consuming litigation.
It does several other things: There is a requirement that agencies
respond to FOIA requests within 20 business days or face meaningful
administrative penalties. It establishes a publicly accessible tracking
system for pending FOIA requests.
Mr. Speaker, in conclusion, H.R. 1309 provides a strong, reasonable,
and bipartisan approach to streamlining FOIA and increasing
transparency in government. I urge all of my colleagues to support this
bill.
Mr. Speaker, I yield back the balance of my time.
[[Page H2506]]
Mr. TURNER. Mr. Speaker, I yield 3 minutes to the gentleman from
Idaho and a member of our subcommittee (Mr. Sali).
Mr. SALI. Mr. Speaker, I rise today because of my serious concerns
with section 4 of H.R. 1309.
As I begin, let me emphasize that I support the intent of H.R. 1309.
Transparency in government is an important priority. I campaigned on it
and voted for the new ethics package that came before this House in
early January with the hope that Congress might be more openly
accountable to those who elected us.
This is a government of, by, and for the people, and the people
deserve to know what their government is doing. Except for critical
issues of national security policy, there must be a much better level
of openness in the conduct of the Federal Government and the access of
the American people to information about it.
However, section 4 of the bill before us, as it is currently drafted,
appears to authorize Federal courts to award attorneys' fees to a
plaintiff even when the opposing parties mutually reach and execute a
settlement agreement.
The policy of FOIA is, and should be, to expedite and streamline
production of documents falling within the statute. My concern is that
when a Federal statute provides attorneys' fees after the parties
mutually reach a voluntary settlement, it runs contrary to that very
goal. Resolution short of protracted litigation should be encouraged,
not discouraged. The current proposed language of section 4 of H.R.
1309 may have a devastating, perverse effect.
Second, the statute may further allow plaintiffs to receive
attorneys' fees in almost any case they file so long as they can show
that the defending government agency, for any reason, changed its
position once the case had been commenced.
While it is true that FOIA complainants often face an uphill battle
when they deal with a Federal agency, the language, as proposed,
invites litigation instead of resolving it. Additionally, the
legislation, as drafted, may actually undermine the stated ``dominant
objective'' of the act by giving an incentive by Federal Departments to
avoid disclosure.
The question this raises in my mind, Mr. Speaker, is that given the
provisions of section 4 of the bill, why would any agency settle? As I
read the bill, once a lawsuit is commenced, any change in position by a
Federal Department or agency would be tantamount to an admission of
liability for attorneys' fees. This would only encourage the filing of
a myriad of lawsuits. If lawyers know they will make money no matter
what the outcome, they will see this as a great opportunity to file,
file, and file again. We will likely see a cottage industry for
litigants who may not even care about the underlying documents.
Because of the concerns I have that the current proposal provides
incentives to prolong litigation, I cannot support this measure in its
current form. I regret that because I want to vote for any bill that
prudently opens the door of government to those whom government
represents, our fellow citizens. But the law of unintended consequences
is at play here, and unless we strike section 4, we will see massive
new litigation that will only clog the Federal docket, hamstring
legitimate functions of government, and cost taxpayers potentially
untold millions of dollars.
Mr. TURNER. Mr. Speaker, I yield myself such time as I may consume.
I want to commend the Chair of our subcommittee, Mr. Clay, for his
thoughtful approach to hearings on this matter and his leadership in
shepherding this bill. I want to thank Chairman Waxman for his efforts
in having a very bipartisan discussion in the committee on the bill. He
was very welcoming of the input from all of the committee members.
Unfortunately, though, here, right in the middle of Open Government
Week, we have the irony that this is not the bill that both of these
gentlemen worked so diligently on a bipartisan basis for in the
committee and subcommittee. It has been amended, unfortunately, as the
other side of the aisle decried, in a back room by Democratic
leadership in order to make the bill conform to the rules of the House
for it to be able to move forward.
In the middle of Open Government Week, what does that mean? Well, it
means that while we all stand up here and talk about the importance of
freedom of information, and freedom of information is important because
it gives people the ability to hold their government accountable; but
as we all discuss that, we have a bill that is going to be moving
forward and come before this House that the members of the committee
did not see, the members of the subcommittee did not see, that each of
them is going to have to review and have to have their staff review,
that members of the public at large who may have been following this
bill in the professional community or average citizens who had an
interest in it will go to a Web site and look at a bill that was
approved by the committee and approved by the subcommittee, but
unfortunately, is not the bill that is before us.
And it is not before us because in the middle of Open Government
Week, the bill that was placed before us was amended without the
participation of the committee, without the participation of the
subcommittee, and without the participation of this body. We will all
come to vote on a bill that has been amended in a back room by
Democratic leadership.
You have heard that there are a number of concerns that people on
this side of the aisle have about the bill. As you are aware, this bill
began as a Republican bill offered by Mr. Smith of Texas, H.R. 867. It
has been modified in several ways about which individuals do have
concern. But the underlying principle, freedom of information, that
encourages effective government and encourages government to be
responsive, is one that we all support and hold dear and certainly we
should continue to support the Freedom of Information Act.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in strong support
of H.R. 1309, the ``Freedom of Information Act Amendments of 2007.''
This legislation contains a dozen substantive provisions that will
increase public access to Government information by strengthening the
Freedom of Information Act (FOIA).
Mr. Speaker, the principles embodied by FOIA are intended to make the
Government, in President Lyndon B. Johnson's words, ``as open as the
security of the Nation permits.'' But in recent years, Federal agencies
have come to look on FOIA requests as something to be prevented and
obstructed, rather than welcomed and facilitated. The bill before us
will help end that way of doing business.
Mr. Speaker, H.R. 1309 restores the presumption of disclosure to FOIA
by making it clear that records should be released to the public if
disclosure is allowable under law and the agency cannot reasonably
foresee any harm from such a disclosure.
Mr. Speaker, under current law, agencies are required to respond to a
request for information filed under the FOIA within 20 days but as we
all know, delays and backlogs are all too common. H.R. 1309 makes this
deadline meaningful by ensuring that the 20-day statutory clock runs
immediately upon an agency's receipt of a request. The bill imposes
consequences on Federal agencies for missing the deadline. For example,
agencies are prevented from charging processing fees whenever they
failed to meet the 20-working day response deadline.
The bill also requires agencies to provide requesters individualized
tracking numbers for each request and access to a telephone or internet
hotline with information about the status of requests.
Another important feature of the bill is that it strengthens agency
reporting requirements to identify excessive delays and requires each
agency to make the raw data used to compile its annual reports publicly
available. Also, the bill requires the Government Accountability Office
to report annually on the Department of Homeland Security's use of the
broad disclosure exemption for ``critical infrastructure information.''
I also commend to Members another feature of H.R. 1309 that should
reduce the need to resort to litigation. The bill creates the new
position of FOIA Ombudsman to help FOIA requesters resolve problems
without having to turn to the courts. The FOIA ombudsman will be
located at the National Archives and will help requesters by providing
informal guidance and nonbinding opinions regarding rejected or delayed
FOIA requests. The FOIA ombudsman will also review agency compliance
with FOIA.
Last, Mr. Speaker, H.R. 1309 makes it more feasible for citizen
groups to challenge the improper withholding of Government information
by expanding access to attorneys' fees for FOIA requesters who
successfully challenge
[[Page H2507]]
an agency's denial of information. The bill also holds agencies
accountable for their decisions by enhancing the authority of the
Office of Special Counsel to take disciplinary action against
Government officials who arbitrarily and capriciously deny disclosure.
Mr. Speaker, I strongly support H.R. 1309 and urge all my colleagues
to join me in supporting this legislation that will restore public
confidence in the administration of the executive branch of the Federal
Government.
Mr. UDALL of Colorado. Mr. Speaker, I strongly support this bill,
which will increase the transparency and accountability of the Federal
Government by making a number of long-overdue revisions to the Freedom
of Information Act, or FOIA.
The bill will reemphasize that disclosure is to be the rule, secrecy
the exception. It will help people seeking documents to get timely
responses, and improve transparency in agency compliance. It will
reduce the need for people seeking documents to go to court, and
provide accountability for agency decisions on whether to release
requested information.
Mr. Speaker, the enactment of FOIA in 1966 was a watershed. It
established as fundamental policy the principle that information within
the government's control should be available and established a
presumptive right for the public to obtain identifiable, existing
records of Federal agencies. Anyone can use FOIA to request access to
Government information. Requesters do not have to show a need or reason
for seeking information, and the burden of proof for withholding
requested material rests with the department or agency that seeks to
deny the request. Agencies may deny access only to records, or portions
of records, that fall within certain specific categories.
FOIA has been used effectively by journalists, public interest
organizations, corporations, and individuals to access Government
information. But the process could be better--because of delays and
backlogs, requesters often have found it hard to learn about the status
of their requests, and a recent Supreme Court decision has hampered
requesters' ability to litigate their claims.
H.R. 1309 would address these and other concerns about the
implementation of FOIA. It is a modest measure, but an important one
that deserves the approval of the House.
That's especially true because, as the Rocky Mountain News noted in a
recent editorial, ``The Bush administration may have been the most
openly contemptuous of FOIA's mission since the act first passed. . . .
President Bush will leave office in 2009, but it's not enough to trust
that future administrations will abide by the promise of openness that
FOIA represents. The law needs specific measures to ensure
accountability, and the amendments within H.R. 1309 mark a large stride
forward.''
For the information of our colleagues, I attach the complete text of
that editorial:
[From the Rocky Mountain News, Mar. 13, 2007]
Open Records Upgrade
Congress has chance to improve critical law
We welcome bipartisan efforts in Congress to beef up the
Freedom of Information Act--the four-decade-old law that
affords citizens access to the inner workings of the
executive branch.
FOIA could certainly stand a little love, as open
Government has been attacked many times since Lyndon Johnson
signed the act into law July 4, 1966.
The revisions to FOIA in H.R. 1309, which could come before
the full House as early as today, would both shine more light
on the nooks and crannies of federal bureaucracies and force
agencies to better respect the spirit of the law.
Here are a few of the improvements:
The Government would have to act on FOIA requests more
quickly. Agencies that did not respond to a request within 20
business days would forfeit any copying and research fees;
agencies are now supposed to respond within that period, but
there are no penalties.
Federal departments would have to set up FOIA hotlines and
individual tracking numbers so that people and organizations
that file FOIA requests can easily follow the process.
Citizen journalists and freelancers would gain new
credibility. An agency could no longer summarily deny FOIA
requests from journalists who are not employed or under
contract with established media organizations or watchdog
groups. Such requests from unaffiliated individuals can now
be rejected.
The amended law would force agencies to consider any
request to disseminate information to a broad audience as
legitimate, particularly if the party making the request has
any record of publication (including bloggers).
The Government would have to reimburse the legal fees of
more parties that sue under FOIA. Currently, there's only one
way a party that has filed suit to enforce a FOIA request can
get repaid: The Government has to lose in court. The
amendments would force agencies to repay attorney fees if the
government turns over records before a final ruling is
issued. This would prevent agencies from sticking media
groups with attorney fees by surrendering records just before
a judge rules.
The Bush administration may have been the most openly
contemptuous of FOIA's mission since the act first passed.
Former Attorney General John Ashcroft urged Federal agencies
to fight FOIA requests and not presume that the public has a
right to know what goes on inside the executive branch. The
administration also placed gratuitous limits on requests to
the Department of Homeland Security.
President Bush will leave office in 2009, but it's not
enough to trust that future administrations will abide by the
promise of openness that FOIA represents. The law needs
specific measures to ensure accountability, and the
amendments within H.R. 1309 mark a large stride forward.
Mr. TURNER. Mr. Speaker, I yield back the balance of my time
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Missouri (Mr. Clay) that the House suspend the rules and
pass the bill, H.R. 1309, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. TURNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.
____________________
[Congressional Record: March 14, 2007 (House)]
[Page H2509]
FREEDOM OF INFORMATION ACT AMENDMENTS OF 2007
The SPEAKER pro tempore. The pending business is the question of
suspending the rules and passing the bill, H.R. 1309, as amended.
The Clerk read the title of the bill.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Missouri (Mr. Clay) that the House suspend the rules and
pass the bill, H.R. 1309, as amended, on which the yeas and nays are
ordered.
This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 308,
nays 117, not voting 8, as follows:
[Roll No. 144]
YEAS--308
Abercrombie
Ackerman
Alexander
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bartlett (MD)
Bean
Becerra
Berkley
Berman
Berry
Bilbray
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blumenauer
Blunt
Bonner
Boozman
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Brady (TX)
Braley (IA)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Calvert
Camp (MI)
Capito
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castle
Castor
Chabot
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Crowley
Cuellar
Culberson
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dent
Dicks
Dingell
Doggett
Donnelly
Doyle
Duncan
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Farr
Fattah
Ferguson
Filner
Fortenberry
Frank (MA)
Frelinghuysen
Gallegly
Gerlach
Giffords
Gilchrest
Gillibrand
Gillmor
Gohmert
Gonzalez
Goode
Gordon
Graves
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herger
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hobson
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jindal
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kagen
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Kirk
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Lee
Levin
Lewis (CA)
Lewis (GA)
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCaul (TX)
McCollum (MN)
McCotter
McDermott
McGovern
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Millender-McDonald
Miller (MI)
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Paul
Payne
Perlmutter
Peterson (MN)
Peterson (PA)
Pickering
Platts
Poe
Pomeroy
Porter
Price (NC)
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Reyes
Rodriguez
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Shuler
Simpson
Sires
Skelton
Slaughter
Smith (NE)
Smith (NJ)
Smith (WA)
Snyder
Solis
Space
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh (NY)
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Weller
Wexler
Wilson (OH)
Wolf
Woolsey
Wu
Wynn
Yarmuth
Young (FL)
NAYS--117
Aderholt
Akin
Bachmann
Bachus
Baker
Barrett (SC)
Barton (TX)
Biggert
Bilirakis
Blackburn
Boehner
Bono
Buchanan
Buyer
Campbell (CA)
Cannon
Cantor
Carter
Coble
Cole (OK)
Conaway
Cubin
Davis (KY)
Davis, David
Deal (GA)
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Everett
Fallin
Feeney
Flake
Forbes
Fossella
Foxx
Franks (AZ)
Garrett (NJ)
Gingrey
Goodlatte
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Hoekstra
Hunter
Inglis (SC)
Issa
Johnson, Sam
Jordan
Keller
King (IA)
King (NY)
Kingston
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Lewis (KY)
Linder
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCrery
McHenry
Mica
Miller (FL)
Miller, Gary
Musgrave
Myrick
Neugebauer
Nunes
Pearce
Pence
Petri
Pitts
Price (GA)
Pryce (OH)
Putnam
Radanovich
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Royce
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shimkus
Shuster
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Terry
Thornberry
Upton
Walberg
Wamp
Weldon (FL)
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Young (AK)
NOT VOTING--8
Brown (SC)
Davis, Jo Ann
Granger
Kanjorski
Meehan
Miller, George
Saxton
Spratt
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised there
are 2 minutes remaining on this vote.
{time} 1242
Ms. ROS-LEHTINEN changed her vote from ``nay'' to ``yea.''
So (two-thirds being in the affirmative) the rules were suspended and
the bill, as amended, was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________
