[Congressional Record: December 18, 2007 (Senate)]
[Page S15831-S15832]
[Sen. Leahy on Passage of the OPEN Govt Act]
Mr. LEAHY. Mr. President, I am pleased that the Congress will send
the Openness Promotes Effectiveness in our National Government Act--the
``OPEN Government Act--S. 2488, to the President for signature before
the end of this year. With House passage of this bill today, and the
Senate's passage of it last Friday, this historic, bipartisan,
bicameral legislation becomes the first major reform to the Freedom of
Information Act, FOIA, in more than a decade. The American people will
have a new law honoring the public's right to know under the tree this
holiday season.
I commend House Government Reform and Oversight Committee Chairman
Henry Waxman for moving quickly to enact this bill, and for his
leadership of the successful effort to pass FOIA reform legislation in
the House of Representatives. I thank him and his staff, including Anna
Latin, Michelle Ash and Phil Schiliro, for all of their hard work on
this legislation. I also commend Representative William ``Lacy'' Clay,
Jr., for sponsoring this legislation in the House.
I also thank the members of my staff who worked on this bill--Lydia
Griggsby, Lauren Brackett, Erica Chabot, Bruce Cohen and Leila George-
Wheeler--for all of their hard work on this bill.
I also commend the bill's chief Republican cosponsor in the Senate,
Senator John Cornyn, for his commitment and dedication to passing FOIA
reform legislation this year.
I am also appreciative of the efforts of Senator Jon Kyl for
cosponsoring this bill and helping us to reach a compromise on this
legislation this year. I also thank the more than 115 business, news
media and public interest organizations that have endorsed this
legislation.
As the first major reform to FOIA in more than a decade, the OPEN
Government Act will help to reverse the troubling trends of excessive
delays and lax FOIA compliance in our government and help to restore
the public's trust in their government.
This legislation will also improve transparency in the Federal
Government's FOIA process by: restoring meaningful deadlines for agency
action under FOIA; imposing real consequences on Federal agencies for
missing FOIA's 20-day statutory deadline; clarifying that FOIA applies
to government records held by outside private contractors; establishing
a FOIA hotline service for all Federal agencies; and creating a FOIA
Ombudsman to provide FOIA requestors and Federal agencies with a
meaningful alternative to costly litigation.
The OPEN Government Act will protect the public's right to know, by
ensuring that anyone who gathers information to inform the public,
including freelance journalists and bloggers, may seek a fee waiver
when they request information under FOIA.
The bill ensures that Federal agencies will not automatically exclude
Internet blogs and other Web-based forms of media when deciding whether
to waive FOIA fees. In addition, the bill also clarifies that the
definition of news media, for purposes of FOIA fee waivers, includes
free newspapers and individuals performing a media function who do not
necessarily have a prior history of publication.
The bill also restores meaningful deadlines for agency action, by
ensuring that the 20-day statutory clock under FOIA starts when a
request is received by the appropriate component of the agency and
requiring that agency FOIA offices get FOIA requests to the appropriate
agency component within 10 days of the receipt of such requests.
The bill also clarifies that the Supreme Court's decision in
Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health
and Human Resources, which eliminated the ``catalyst theory'' for
attorneys' fees recovery under certain Federal civil rights laws, does
not apply to FOIA cases.
Furthermore, to address concerns about the growing costs of FOIA
litigation, the bill also creates an Office of Government Information
Services in the National Archives and creates an ombudsman to mediate
agency-level FOIA disputes.
In addition, the bill ensures that each Federal agency appoints a
Chief FOIA Officer to monitor the agency's compliance with FOIA
requests, and a FOIA Public Liaison who will be available to resolve
FOIA related disputes. And, the bill creates a better tracking system
for FOIA requests to assist members of the public and clarifies that
FOIA applies to agency records that are held by outside private
contractors, no matter where these records are located.
Finally, this bill contains a number of key improvements championed
by Chairman Waxman. The bill includes ``pay/go'' language that will
ensure that attorneys' fees that are awarded in FOIA litigation are
paid for with annually appropriated agency funds.
The bill also eliminates a provision on citations to FOIA (b)(3)
exemptions contained in the earlier Senate bill. In addition, the bill
includes a new provision that requires Federal agencies to disclose the
FOIA exemptions that they rely upon when redacting information from
documents released under FOIA.
And the bill adds FOIA duplication fees for non-commercial
requestors, including the media, to the fee waiver penalty that will be
imposed when an
[[Page S15832]]
agency fails to meet the 20-day statutory clock under FOIA.
The enactment of FOIA reform legislation this year is an important
milestone in the effort to restore openness and transparency to our
government. By sending this meaningful FOIA reform bill to the
President this year, the Congress also sends a powerful message to the
American people that the era of excessive government secrecy has come
to an end.
While I am pleased that the reforms contained in the OPEN Government
Act will ensure that FOIA is reinvigorated for future generations, my
work to strengthen FOIA will not end with the enactment of this
legislation.
There is much more work to be done to ensure that we have a
government that is open and accountable to all Americans. And I will
continue to work with Senator Cornyn, Chairman Waxman and others to
further strengthen this vital open government law.
I urge the President to promptly sign this open government
legislation into law at the earliest opportunity.
So again, I am pleased today that the Congress is going to send the
Openness Promotes Effectiveness in our National Government Act--also
known as the OPEN Government Act--and for those who follow this issue,
FOIA. They are going to send it to the President before the end of this
year. With passage of this bill today in the House and the Senate's
passage of it last Friday, this historic, bipartisan, bicameral
legislation becomes the first major reform of the Freedom of
Information Act in more than a decade. The American people are going to
have a new law honoring the public's right to know, and they will have
it during this holiday season.
I commend the House Government Reform and Oversight Committee
chairman, Henry Waxman, for moving quickly to enact this bill and for
his leadership. I wish to thank him and his staff, including Anna
Latin, Michelle Ash, and Phil Schiliro, for all of their hard work on
the legislation.
I commend also the chief Republican cosponsors in the Senate, Senator
John Cornyn and Senator Jon Kyl, for joining me in this effort.
The reason this legislation is so important is that throughout my
whole career in the Senate, I have always supported the idea of the
Freedom of Information Act. We all know no matter who is in the
administration, whether it is a Democratic or a Republican
administration, that when they do things they want us to know about,
the press releases flow. When they make a mistake--and all
administrations do--they would just as soon we not know about it,
whether money has been wasted or whether a policy has not been
followed. The Freedom of Information Act allows the American public--
and after all, the Government serves them--to find out, through
individual private citizens, and through the press, what is happening
in their government. It has saved billions of dollars over the years
because of what they found out, but more importantly, it has kept our
Government honest. I wrote the Electronic Freedom of Information Act
which allowed us to use the Internet and electronic files for that
purpose.
But this month, the Open Government Act--the first major reform in
more than a decade--is going to help reverse the troubling trends of
excessive delays, the lax compliance with FOIA and will help restore
public trust in our Government. It will improve transparency and
restore meaningful deadlines for agency action under FOIA. It will also
impose real consequences on Federal agencies who miss the 20-day
statutory deadline. It will clarify that FOIA applies to Government
records that are held by outside private contractors. The Open
Government Act will establish a FOIA hotline service for all Federal
agencies, and create a FOIA Ombudsman, which will provide a meaningful
alternative to costly litigation.
Chairman Waxman wanted pay-go language to ensure that attorney's fees
that are awarded in FOIA litigation are paid for with annually
appropriated agency funds, and that has been included in this bill.
This is an important milestone. The Open Government Act contains
reforms that ensure FOIA is reinvigorated for future generations. I
don't intend to give up after this effort, of course. We will continue
to work with our oversight. We will continue to pursue efforts on FOIA.
But what we have said is that no matter who is the next President, they
will have to run a Government that is more open than it has been in the
past, and all 300 million Americans will have a better chance to know
what happens in their Government.
This is a great step forward for the access of a free press, and for
an honest and open Government in this country.
Mr. President, I yield such time as the Senator from Washington State
may need of the time I have. I yield 10 minutes to the Senator from
Washington State.
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